Who has found (or is even looking for) the “racist” at the center of the foreclosure crisis? Granted, diverse and voluminous people have been harmed by the crisis across America; but growing data demonstrate brown and black renters and homeowners have been disproportionately impacted by the sub-prime mortgage meltdown. Searching for relief using our traditional model of discrimination would lead us down a trail for a single cause or single actor, an individual perpetrator with “intent” to discriminate, who is responsible for the present uprooting of families and utter demise of entire neighborhoods inhabited by people of color.
While there may be no shortage of people, institutions and other places to begin assigning blame, the ultimate root of the foreclosure problem is, in large part, the unfettered capitalist driven interests of financial institutions, mortgage brokers, securities dealers and investors. Certainly, that is not to suggest that people of color and limited income have not been the targets of irresponsible low- and no-money down adjustable rate lending options—which certainly is true in some cases. Rather, the point here is to bring front and center an illustrative example of how a constricted single actor with intent approach will hardly adequately rectify this and other complex systemic problems harming members of our society and impeding the achievement of racial equality in housing, health, employment, education, and other social and economic necessities.
Since Washington v. Davis, 426 U.S. 229 (1976), the disregard of harm experienced by members of society and focus on the intent of decision-makers and institutional actors has placed confounding limitations on constitutional interpretation and the availability of remedies for victims of varying forms of discrimination. Specifically, this Supreme Court case gutted the protections of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution by setting a standard that places the burden on plaintiffs bringing discrimination claims to establish the intent of the alleged perpetrator to discriminate. Under this intent doctrine, the plaintiff alleging an equal protection violation must prove that the discriminating actor or agency “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable [racial] group,” Personnel Administrator of Massachusetts v. Fenney, 442 U.S. 256, 279 (1979). More generally, this intent standard and its proliferation in antidiscrimination jurisprudence unjustly shifts the focus of our protective laws away from shielding members of our society and away from reaching restorative outcomes that begin to address institutional structures, practices and social norms that facilitate the kinds of sub-prime lending abuses and other racial inequities evident today.
Modern science explains why always seeking to finger a racist, or an individual with intent to discriminate, is an outdated approach to combating discrimination. Cognitive and social science research shows we all, at some level, have subconscious or implicit beliefs, attitudes and expectations about people based on our exposure to the race, gender, age or other groups to which such individuals belong. These implicit biases often influence our decisions and interactions with others even though we may not possess any explicit prejudice, ill will, or animus. By now, most of us have heard of the Implicit Association Test (IAT) that measures our subconscious biases or read about research studies looking at the implications of these biases in myriad sectors of society.
For example, the Washington Post ran an article about the reflection of the implicit attitudes of physicians in disparities in their medical judgments and treatment recommendations. (“The Color of Health Care:<
