Of all the arguments made by conservatives to debunk the existence of institutional racism, one stands out above the rest as the most idiotic of them all.
I’m sure you’ve come across it.
It sounds like this:
Institutional racism is a myth because, unlike during segregation, there are no laws mandating racial oppression. Indeed, the law prohibits discrimination, so whatever racism still exists cannot be institutional. Instead, it is the work of isolated individuals, acting without any structural authority.
If anything, I’ve made the argument sound more intelligent than it is. But whether in my iteration or the more common, “It’s not 1963 anymore, Black people!” version, the argument is nonsensical.
Institutional action is not merely another way of saying “legal action.”
Indeed, that limited interpretation comports with no definition of “institutional” found in any dictionary or in common usage.
Institutions such as the labor market, justice system, housing markets, schools, or electoral systems, operate based on more than just laws dictating their practices or prohibiting others.
They function within a milieu of policies, practices, and procedures, some formal, others informal.
And these policies, practices, and procedures can either further racial injustice (and thus amount to forms of institutional racism) or diminish racial injustice (in which case they are effectively anti-racist).
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To accept that institutional racism can only exist when there are formal racist laws mandating racialized injustice would lead to a preposterous reading of history.
Under this intepretation of the concept, we would have to conclude that there was hardly ever institutional racism in the U.S. outside of the American South — a self-evidently absurd proposition — because most of the North and West maintained racial subordination through informal customs and practices more so than legal apartheid.
But the outcomes were hardly different.
As Gene Slater documents in his book Freedom to Discriminate, realtors operating through the National Association of Real Estate Brokers created segregated housing in places like California and the Midwest early in the 20th century, primarily through professional practices imposed on association members internally, without the force of law, but which compelled them not to sell to certain people.
Every real estate textbook for thirty years during the middle of the 1900s — as the industry professionalized and housing stock exploded — made it explicit: brokers should maintain racial homogeneity in neighborhoods because mixed communities would supposedly lose property value.
And they said this, taught this, and swore by it as an institutional principle, even though the evidence never indicated it was true — quite often the opposite.
Few laws outside the South explicitly required residential segregation, but realtors, banks, and landlords’ policies and practices helped deliver a racist result within housing markets.
And even when the Supreme Court struck down the ability of the state to enforce racially-restrictive covenants in 1948, the practice continued, along with the redlining of Black neighborhoods by banks.
To this, one might say that the Fair Housing Act of 1968 rendered all of that history irrelevant to modern home-seekers. But research suggests widespread “steering” by realtors of persons to same-race neighborhoods continues. And case aftercase of Black sellers getting lower appraisal values for their homes than white sellers suggests the housing market is still rife with institutional racism.
Other examples of institutional racism, even without formal legal mandates, abound.
For instance, the so-called drug war has been waged disproportionately on Black and brown folks, but not because the law requires that.
Cops can selectively enforce laws, whether traffic violations or more serious infractions. But when they do so in a racially disparate way, will we deny that such a thing constitutes institutional racism in law enforcement because there is no law mandating the targeted mistreatment of Black people?
Of course not. Laws don’t only speak.
They also remain silent about certain things.
So if the law allows police to focus their attention on Black lawbreakers, even though all available evidence indicates whites use, possess, and even deal drugs at comparable rates to Black people, the law permits institutional racism in law enforcement, even if it doesn’t require it.
Or consider voting.
When Republicans have sought to limit early voting — a method known to be used disproportionately by voters of color — they haven’t specified that they are trying to restrict Black people from voting. That would be illegal. But the effect of their efforts is to make voting more difficult, specifically for Black and brown voters.
Likewise, when states have mandated voter identification — but only those forms, as in North Carolina, which Black voters are least likely to possess — it would be absurd to deny that such efforts amount to institutional racism just because the law itself “allows” Black people to vote.
In the job market, if companies make hiring decisions disproportionately from networking (and evidence says they do), and people of color are less likely to be in the best word-of-mouth networks, such a practice perpetuates racialized unfairness in the labor market.
And guess what? The labor market is an institution, and that racialized unfairness has a shorter name.
And even though the law prohibits overt discrimination in employment, there is no law (nor could we imagine one) that would proscribe the ability of employers to hire based on informal networks or connections.
The law allows this kind of practice while certainly not mandating it. But the fact that the law neither requires discrimination — whether overt or by default, via networking — nor allows it in the overt case hardly acquits the labor market of the charge of institutional racism when such practices remain common.
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When conservatives deny institutional racism solely by noting legal changes since the 1960s, they prove they are more interested in debating semantics than understanding history or how systems operate.
These are the same people who say things like this:
Name one right white people have that Black people don’t also have.
And they issue this challenge as if it were some ultimate gotcha, all while ignoring the obvious irony of having done so.
Namely, whites and Blacks technically had equal rights ever since the Fourteenth Amendment was passed. But despite that formal equality, officials subverted the law, and private sector institutional actors undermined its spirit blatantly for another century.
To the “formal equality” crowd, all that matters is the existence of words on a page mandating fairness. It makes no difference whether the law is followed.
Extending their logic to its ultimate conclusion, there would have been no institutional racism even in the 1880s, 1920s, or 1950s.
And anyone who believes that is not intellectually capable of engaging in this conversation or being taken seriously when they make the attempt.
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This post was previously published on Medium.com.
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