Hastings Law Journal
The U.S. Supreme Court’s race jurisprudence suffers from a stunning lack of imagination where possibilities for meaningful local government involvement in combating structural racial inequality are concerned. Cases such as Parents. and Ricci limit dramatically the freedom that localities have to address racial inequity within their borders. Instead of constraints on local efforts in the race context, Professor Lenhardt argues that what we need, if persistent racial inequalities are ever to be eliminated, is greater innovation and experimentation. In this article, Professor Lenhardt thus introduces an extra-judicial tool called the race audit, which would permit individual cities or a regional coalition of localities voluntarily to determine the extent to which their governmental systems and policies create, enable, or perpetuate inequitable conditions for racial minorities. This tool, grounded in the tenets of structuralism, breaks from traditional audit mechanisms in the race context by eschewing a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that generate cumulative racial disadvantage across domains, time and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit’s main goal – which falls outside the reach of most existing tools for measuring discrimination – would be achieved through the work of a “community of inquiry” consisting of academics, philanthropic organizations, non-profits and civil rights groups, governmental agencies, and business leaders charged with assessing the segregative effects of the locality’s policies and programs. The race audit process, whose results might be similar to those produced by truth and reconciliation commissions, would produce a counter-narrative about race in metropolitan areas whose telling would have numerous benefits, including generating more effective remedies for addressing structural discrimination, and promoting democratic conversations about equality and what is necessary to secure belonging at the local level. Most of all, the race audit would make apparent the deep potential cities have for being important “equality innovators.” designed to identify the sources of persistent racial inequality that can be productively deployed by localities. This tool, grounded in the tenets of structuralism, eschews a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that create cumulative racial disadvantage across domains, time, and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit process, in addition to highlighting the capacity of localities to be important change agents, would help produce a counternarrative about race and the seeming naturalness of the racial segregation and disadvantage now evident in urban and suburban areas alike. The Author contends that, in doing so, the race audit would identify better, more effective strategies for alleviating structural racial inequality. Situating the race audit proposal in a larger project on the commitments underlying civil rights advocacy more broadly, she highlights the potential that the race audit and other innovative tools might have to spur democratic conversations about race and the conditions necessary for belonging at the local level; generate a thicker, more substantive account of equality than has thus far been forthcoming in U.S. Supreme Court cases; and reconcile the perceived tensions between notions of equality and liberty in the area of race.
Race Audits, 62 Hastings L.J. 1527 (2010-2011)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/457