The authors of the Declaration of Independence outlined a bold vision for America: a nation in which there would be equal justice for all. More than 200 years later, it has yet to be achieved. Though generations of civil rights activism have led to important gains in legal, political, social, employment, educational, and other spheres, the forced removal of indigenous peoples and the enslavement of those of African descent marked the beginnings of a system of racial injustice from which our country has yet to break free. From our public schools where students of color are too often confined to racially isolated, underfunded, and inferior programs to our criminal justice system that disproportionately targets and incarcerates people of color and criminalizes poverty to the starkly segregated world of housing, the dream of equal justice remains an elusive one.
Racial and Economic Justice
For much of the country’s history, formal and explicit racial restrictions prevented people of color from accessing the mainstays of economic life, including employment and homeownership. Though explicit racial classifications were outlawed by the civil rights statutes passed in the 1960s, yawning disparities in wealth, income, and other economic opportunities remain, preventing us from achieving true racial justice in America. These racially disparate outcomes reflect a combination of covert discrimination, structural inequality, and implicit biases, and they have become more severe in the continuing aftermath of the economic crisis of 2008.
Focusing especially on issues relating to credit and homeownership, the ACLU uses litigation and other advocacy to remedy deeply entrenched sources of inequality and ensure that access to opportunity is not allocated according to race. Because, as Dr. Martin Luther King Jr. put it, “What does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?”
Race and Inequality in Education
The ACLU’s education work centers on a disturbing trend called the school-to-prison pipeline, a set of policies in our nation’s public schools that pushes an alarming number of kids into the juvenile and criminal justice systems when they most need support from their schools and communities. We believe that this trend is reflective of our country’s prioritization of incarceration over education. It’s made worse as resources for public schools are decreased. From inadequate counseling to an overreliance on school-based police officers to enforce schools’ harsh zero-tolerance policies, many students, overwhelmingly students of color, face very adult consequences for adolescent mistakes.
Zero-tolerance policies criminalize minor infractions of school rules, while police officers in schools lead to students being criminalized for behavior that should be handled inside the school. Students of color are especially vulnerable to push-out trends and the discriminatory application of discipline. The ACLU believes that children should be educated, not incarcerated. We are working to challenge numerous policies and practices within public school systems and the juvenile justice system that contribute to the school-to-prison pipeline.
What You Need to Know
• Black students are suspended and expelled from school three times more often than white students.
• The median accumulated wealth of white households is 20 times that of black households and 18 times that of Latino households.
• Seven in ten blacks said they are treated less fairly than whites in their dealings with police.
Race and Inequality in Employment
The establishment of formal legal equality has not led to the elimination of unjust differences based on skin color—major disproportions persisting in education, housing, imprisonment, family structure, unemployment, wealth, and opportunities for advancement.
Seniority systems in employment, in the absence of prior skin-color discrimination, would seem to be a fair way of distributing scarce jobs and promotions. But layered on top of centuries of skin-color discrimination and exclusion, seniority systems have the effect, if not the intention, of replicating and reifying inequality, of rewarding the unjust beneficiaries and punishing the victims of prior discriminations and exclusions, thereby deepening and aggravating the initial injury. This is true even if the seniority system is currently and prospectively implemented in a race-neutral way; indeed, race-neutral mechanisms layered onto systems created by prior exclusions and discrimination almost always and inevitably have the function and effect of perpetuating and worsening the original exclusion. This fact is the basis for the moral and legal foundation for affirmative action.
But while such affirmative action remedies, if implemented, may cure structurally discriminatory employment systems, the deeper inequalities in wealth and assets and the ways in which those deeper inequalities limit equal opportunities across a broad spectrum of essential items, such as housing, jobs, education, and capital formation, do not yield and probably cannot yield to such legal remedies. In effect, such deeper inequalities are able to maintain themselves without any current violation of law and in the absence of any current discrimination. For although those structural inequalities based on skin color were created and maintained by governmental actions, they do not require any governmental action now or prospectively in order to maintain unjust skin-color differentials into the indefinite future. Nor is it necessary for antidiscrimination laws to be violated in order for such differentials to endure. In effect, a regime of formal equality, layered on top of these structural inequalities, functions as a seniority system for injustice, placing a veneer of fairness over a fundamentally unfair structure. It’s for this reason that the remedies of formal equality, developed during the era when establishing formal equality was critical, are no longer sufficient to establish remedies for racial injustice and, in some instances, may even be regressive.
New paradigms will have to be developed, new ways of thinking about and analyzing the problem, and new ways of conceiving the problem will have to be invented before remedies can be found for the racial injustice lying ossified beneath the hard, outer shell. The fact is that the search for such remedies represents an entirely different stage of the quest for racial justice.
At the same time, it would be a mistake to assume that because formal equality exists, current skin-color and ethnic discrimination does not. To the contrary, traditional discrimination against African Americans, Latinos, Asian Americans, Arab Americans, and others continues to escape the enforcement of civil rights laws. The focus cannot be exclusively devoted to the second-stage problem described above, but must also be focused on new forms of old injustices, some of them arising in ways that traditional civil rights advocates have not always been swift to recognize.
In coalition with our National ACLU office and state affiliates, other civil rights groups, and local advocates, we lobby in local and state legislatures and support grassroots movements. Through these efforts, we strive to educate and empower the public on a variety of racial justice issues.
Cassandra Bowers is the communications director at ACLU of Wisconsin.
ACLU of Wisconsin
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Milwaukee, WI 53202