by Jonathan Krall
In January 2023, Alexandria city announced a BIPOC Small Business Grant Program to address negative pandemic-era impacts on local businesses, impacts that were “particularly felt by Black, Indigenous and people of color (“BIPOC”) owned businesses due to structural barriers and discriminatory financial lending practices.” Sadly, an “equal protection of the laws” lawsuit alleged discrimination against White people, causing Alexandria “to scrap the grant program.” Reacting to this lawsuit, Meronne Teklu of the Economic Opportunities Commission told me that “City Council needs to push back without compromise; these people want us to believe that reparations of any kind are illegal.” Ms Teklu, and City Council, recognize that it is unjust to treat people “equally” in a society that routinely produces “tailwinds for White people and headwinds for Black people.” Shouldn’t we be allowed to measure and address the impacts of systemic injustice? In some areas of law, the answer is yes. We need to expand that “yes.” The key is to focus on, and push back against, the very real impacts of racial disparities.
As activists, it is up to us to choose where and how to spend our energy and how we frame our messages. In a nation where White people are implicitly raised to be ignorant of racism, how do we identify and oppose racism? How do we address systemic racism, where no specific person can be identified as the cause of the harm? In many instances, as in pandemic impacts on Black-owned businesses, we have numerical measures. As reported by ALXnow, in the USA, “Black-owned businesses were disproportionately hit by the pandemic, showing a 28% earnings decrease in 2020 compared to a 15% drop for White-owned businesses and a 17% overall decline.” The Community Foundation for Northern Virginia found that 79% of White-owned firms received all of the Paycheck Protection Program (PPP) funding they sought, compared to 43% of Black-owned firms. In our quest to push back against systemic racism, instances where we do have clear evidence of racially-disparate impacts seem like a good place to start.
Here in the US, courts often speak (or avoid speaking) about impact, particularly the question of intent versus impact. For example, in striking down affirmative action, Chief Justice Roberts wrote: “Harvard’s admissions process rests on the pernicious stereotype that ‘a black student can usually bring something that a white person cannot offer.'” Siding with Roberts, Justice Clarence Thomas wrote that “Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race.” In other words, SCOTUS is saying that we should be governed by apparently race-neutral policies. That is, we must avoid any appearance of racist intent. If we wish to address racially disparate impacts, we must find another way forward.
In other areas of our lives, we are allowed to detect and address negative impacts. An example is workplace harassment, illegal under civil law. Specifically, it is illegal to provide a “hostile work environment” that “is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” Here the law explicitly includes a “reasonable person” standard as a way to measure the impact of a work environment.
In the case of gender-based discrimination, civil law again prohibits a “hostile or offensive work environment.” Here, the impact is measured based on a “reasonable woman” standard. Under this widely-used approach, the existence (or not) of a hostile or offensive work environment is to be judged based on how that environment would be experienced by a reasonable woman. As explained in this article, the “reasonable woman standard was first developed in American federal courts in response to what the courts perceived as a gender-based difference in acceptable workplace conduct.” For example men working in a repair shop might not think twice about posting a calendar displaying scantily-clad women, especially if the calendar was a free promotion from one of their favorite vendors and if they had been doing so for many years without complaint. By contrast, a reasonable woman would likely see the calendar as a subtle threat: acceptance of a hostile, sexist act (the posting of the calendar) could escalate.
With this background, let us consider the question: Is there a legally defensible way to redress, or at least reduce, a measurable racist harm? If it makes sense to appeal to a reasonable woman to detect harmful sexism, might we appeal to a “reasonable Black person” standard to detect harmful racism? We are motivated to think about these questions because we are hoping to improve our ability to think about racism and to act against racism, particularly systemic racism. We genuinely believe that many of our friends and neighbors wish to do the same.
Here in Alexandria, we do have clear evidence of racial inequity. Our own Alexandria Police Department (APD) has years of data, consistently showing that Black people (20-21% of Alexandrians) are represented in 36-37% of traffic stops, year after year. We also have data on school suspensions, showing significant racial inequities. In these cases, unlike the proposed BIPOC Small Business Grant Program, we have Alexandria-specific data. Referring to the now-defunct BIPOC Small Business Grant Program, Mayor Justin Wilson stated that “I think we’re committed in Alexandria to being very intentional about addressing some of those inequities”.
Another local example comes from across the river in Washington, DC. In a report entitled Divided By Design, Smart Growth America analyzed the costs imposed by the construction of the I-395/I-695 freeways in terms of people displaced (4700), number of housing units lost (1400), and the average home equity lost for each home ($483,000). Again, we have clear harm to a specific population and specific numerical measures of that harm.
One way forward is redress, or compensation. Might a similar analysis be undertaken for specific episodes of housing displacement in Alexandria? Might reparations be computed based on lost housing equity? Alexandria families that retained home-ownership gained wealth from sky-rocketing home prices. Those that were displaced lost out. Might this direct response to a direct racially-disparate harm be legally allowed? Perhaps it is worth a try.
Another way forward is to reduce the harm. A Reveal investigatory report of “61 metro areas across the US” showed that “people of color were more likely to be denied conventional mortgage loans than whites, even when controlling for applicants’ income, loan amount and neighborhood.” Data attached to the report for the DC area suggests that Black people are over twice as likely to be refused a loan, relative to financially-equivalent White people. Such disparities are typically measured by hiring actors and having them apply for loans. A highly-visible annual assessment of racial bias in local community lending institutions would illustrate the problem and might inspire our local lenders to implement effective anti-bias policies. With such indirect approaches, it is necessary to accurately measure and report progress.
Our point is that racial injustice is real and demands a response. If some measure of justice can be achieved through race-neutral policies, that is a step forward. However, the justice system created “protected classes” to address very real harms caused by discrimination against people based on, for example, “race, gender, age, disability, or sexual orientation.” Given that American anti-Blackness is a particularly toxic form of discrimination, we find it disturbing that the Supreme Court seems to be dismantling racial remedies while leaving other protections intact. After all, the term BIPOC was recently invented to highlight the particular histories of anti-Blackness (enslavement, re-enslavement, further re-enslavement, etc.), anti-Indigenous harm (ethnic cleansing on a continental scale), and the through lines that carry those harms forward to the present day. When we look at the numbers and read the stories of, for example, Black infant mortality, we see evidence of a recent scientific finding: societal racism is so pervasive that Black women suffer from a chronic stress condition known as “weathering.” In this case, we cannot help but see a social system that is anything but race neutral.