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Was Blind, But Now I See: White Race Concsiousness and the Law

BARBARA J. FLAGG
Copyright Date: 1998
Published by: NYU Press
Pages: 204
https://www.jstor.org/stable/j.ctt9qg8wx
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  • Book Info
    Was Blind, But Now I See
    Book Description:

    "Race" does not speak to most white people. Rather, whites tend to associate race with people of color and to equate whiteness with racelessness. As Barbara J. Flagg demonstrates in this important book, this "transparency" phenomenon--the invisibility of whiteness to white people-- profoundly affects the ways in whites make decisions: they rely on criteria perceived by the decisionmaker as race-neutral but which in fact reflect white, race-specific norms. Flagg here identifies this transparently white decisionmaking as a form of institutional racism that contributes significantly, though unobtrusively, to the maintenance of white supremacy. Bringing the discussion to bear on the arena of law, Flagg analyzes key areas of race discrimination law and makes the case for reforms that would bring legal doctrine into greater harmony with the recognition of institutional racism in general and the transparency phenomenon in particular. She concludes with an exploration of the meaning of whiteness in a pluralist culture, paving the way for a positive, nonracist conception of whiteness as a distinct racial identity. An informed and substantive call for doctrinal reform, Was Blind But Now I See is the most expansive treatment yet of the relationship between whiteness and law.

    eISBN: 978-0-8147-2887-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-x)
  2. Table of Contents
    (pp. xi-xii)
  3. Acknowledgments
    (pp. xiii-xiv)
  4. 1 Introduction
    (pp. 1-18)

    THE MOST STRIKING characteristic of whites’ consciousness of whiteness is that most of the time we don’t have any. I call this thetransparency phenomenon:the tendency of whites not to think about whiteness. Instead, white people externalize race. For most whites, most of the time, to think or speak about race is to think or speak about people of color, or perhaps, at times, to reflect on oneself (or other whites) in relation to people of color. But we tend not to think of ourselves or our racial cohort as racially distinctive. Whites’ “consciousness” of whiteness is predominantlyunconsciousness...

  5. 2 An Overview of Race and Racism
    (pp. 19-38)

    THOUGH THE TRANSPARENCY phenomenon itself should be easily recognizable to whites in this society, the proposition that it is a form of racism may not be equally uncontroversial. This chapter provides a framework for understanding the role of transparency as a tool of white supremacy. First, I explore the concept of race as a social process, rather than biological “fact.” Second, I locate the transparency phenomenon on a conceptual map of racism, with the objective of examining useful strategies for combatting racism in its various forms and manifestations. In particular, the technique of skepticism that emerges as an appropriate and...

  6. 3 The Constitutional Requirement of Discriminatory Intent
    (pp. 39-65)

    THE EQUAL PROTECTION Clause of the U.S. Constitution proscribes race discrimination, and accordingly is the provision to which one should look for legal redress when government engages in transparently white decisionmaking. Because transparency involves facially neutral criteria of decision, the specific doctrines of interest here are those that apply when government adopts a rule or makes a decision that is neutral on its face but carries racially disparate effects. This chapter describes the law currently governing constitutional disparate effects cases, concludes that it is inadequate to the task of challenging the transparency phenomenon, and proposes an alternative framework that might...

  7. 4 Constitutional Qualms
    (pp. 66-82)

    I BELIEVE THE PROPOSAL set forth in chapter 3 is adoptable, in the sense that it is consistent with Equal Protection principles and with what we know about transparently white decisionmaking, the problem it was designed to address. However, some constitutional scholars would disagree with the first of those propositions, and in addition might argue that this proposal is inconsistent with a principle of judicial restraint that today affects virtually all constitutional analysis. This chapter addresses in turn these two sources of resistance to the proposed transparency-conscious rule.

    The proposed rule clearly abandons the colorblindness principle, which disapproves any use...

  8. 5 Disparate Impact under Title VII
    (pp. 83-116)

    TITLE VII OF the Civil Rights Act of 1964 governs discrimination in employment, and currently includes a doctrine that predicates liability upon proof of disparate impact alone, without requiring the plaintiff to establish discriminatory intent. Even in the absence of that requirement, however, existing Title VII doctrine requires modification if it is to provide a remedy for transparently white decisionmaking. After exploring the deficiencies in the current rules, this chapter proposes two transparency-conscious alternatives, paying special attention to the fact that Title VII, unlike the Constitution, regulates private conduct.

    Goodson, Badwin & Indiff is a major accounting firm employing more than...

  9. 6 Statutory Interpretation
    (pp. 117-128)

    BECAUSE THE PROPOSALS discussed in chapter 5 implicate interpretation of a statute—Title VII—they raise issues somewhat different from those addressed in chapter 4 concerning constitutional interpretation. However, there are some parallels as well. Before implementing either of the alternative models of Title VII liability, a court would have to be persuaded that the statute’s fundamental policy regarding race discrimination encompasses discrimination in the form of transparently white decisionmaking. Moreover, some might argue that there is an issue of judicial role to be addressed here too, though it does not loom nearly as large as in the constitutional realm....

  10. 7 Notes on Doctrinal Reform
    (pp. 129-148)

    THE PROPOSED TRANSPARENCY-CONSCIOUS modifications of Equal Protection and Title VII doctrines give rise to several jurisprudential considerations. First, they embody a more constructive discourse of responsibility, in place of the existing discourse of blame. Second, they implicate the problem of legal indeterminacy: If doctrine does not genuinely constrain legal decisionmakers, doctrinal reform seems an empty exercise. Finally, the project of reforming race discrimination law can benefit the larger enterprise of constructing an antiracist white identity.

    Both of the doctrines under examination here—the constitutional requirement of discriminatory intent and Title VII’s existing disparate impact rule—reflect a practice of blaming...

  11. Notes
    (pp. 149-182)
  12. Index
    (pp. 183-188)
  13. About the Author
    (pp. 189-190)
  14. Back Matter
    (pp. 191-191)