Document Type

Article

Publication Date

2004

Abstract

In our society, race can act as a proxy for a long list of characteristics, qualities, and statuses. For people of color, the most powerful of these associations have too often been negative, and have carried with them correspondingly negative consequences. We often link color with undesirable personal qualities such as laziness, incompetence, and hostility, as well as disfavored political viewpoints such as lack of patriotism or disloyalty to the United States. Race even acts as a proxy for susceptibility to some diseases. Medical professionals so often diagnose schizophrenia in blacks, for example, that the association has come full circle, and the diagnosis now acts as a proxy for race. The association with perhaps the most far-reaching effects is that of race as a proxy for criminality and deviance, an association that not only carries into the criminal justice system through practices such as racial profiling in law enforcement, but also has implications for how people of color are treated in contexts as mundane as retail transactions and as consequential as health care. The use of race as a proxy for criminality even supports the converse notion that people of color are suitable targets for crime.

The DePaul Law Review chose an apt phrase in titling this Symposium "Race as Proxy," for the word "proxy" captures the offhand, unthinking, "default" manner in which race often influences decision making. Accordingly, the term also highlights a basic problem with which legal standards have, so far, not come to terms. Despite the wealth of antidiscrimination laws that would seem to prohibit the use of race as a proxy in a wide range of contexts, much race-based decision making escapes legal sanction. Recent legal scholarship has been particularly critical of the prevailing model of intentional discrimination. Scholars have pointed out the inadequacy of individual adjudication under that model to account for the largest share of modern-day discrimination by illuminating the complex and subtle means by which race has come to carry its significant and pernicious associations.

This Article makes the case for institutional change as a means of disrupting the processes by which we come to expect and accept the current state of affairs, adopting as our default the notion that much of the differential treatment of people of color is acceptable and appropriate. It argues for lessening our emphasis on individual wrongdoers and increasing our attention to the context in which individuals operate.

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