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There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of less fortunate racial minority group members in the United States.

Part I of this essay discusses the claim that we have now become a post-racial society, arguing that this claim itself constitutes a form of systemic discrimination against racial minorities. Section I.A describes the history of Supreme Court involvement in the sacrifice of minority interests for the benefit of the white majority in order to establish a context in which the racial jurisprudence of the contemporary Supreme Court can be assessed. Section I.B describes how the contemporary Court has used post-racial assumptions to perpetuate discrimination against racial minorities in the name of protecting the equality interests of whites.

Part II discusses the Supreme Court’s hostility to disparate impact claims. Section II.A describes how the Court rejected disparate impact claims under its constitutional equality jurisprudence. Section II.B describes how the Roberts Court is extending this hostility to the statutory disparate impact claims created by Congress in Title VII.

Part III argues that the recognition of disparate impact claims is a sensible precommitment strategy for the resolution of the nation’s persistent racial discrimination problem. Section III.A argues that racial discrimination is so deeply embedded in United States culture that it cannot be eradicated through mere voluntary efforts to behave in nondiscriminatory ways. Section III.B argues that viewing racially disparate impact as sufficiently suspect to warrant a presumptive remedy would enable the culture to approximate the genuine racial equality that its ingrained racial attitudes have thus far precluded it from attaining. The Conclusion expresses the fear that Supreme Court jurisprudence will continue to reject disparate impact claims in the name of post-racialism precisely because the Court is one of the institutions on which the culture relies to perpetuate its systemic discrimination against racial minorities.

Publication Citation

98 Geo. L.J. 1133-1163 (2010)