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Osagie Obasogie, UC Hastings College of Law

Osagie Obasogie

Associate Professor of Law

 

                                     ‘RACE’ IPSA LOQUITUR:  HOW BLIND PEOPLE UNDERSTAND

                                      RACE AND ITS IMPLICATIONS FOR EQUAL PROTECTION

                Lay understandings of race largely attribute its salience – why race is a noticeable, conspicuous, and striking aspect of human relations – to its visual obviousness. To the extent that law often reflects lay understandings of social phenomena, I show in this Article that Equal Protection jurisprudence has similarly come to orient around the idea that the salience, coherence, and perceptibility of race stems from visually obvious cues (skin color, facial features, etc.) that are self-evidently known and exist apart from any broader social or legal process. I call this Equal Protection’s ‘race’ ipsa loquitur trope; race is thought to speak for itself. For courts, the moral, legal, and conceptual salience of race stems from a reductionist account that largely treats it as a visually obvious attribute that is selfevidently known by simple observation.

                ‘Race’ ipsa loquitur has influenced the Court’s administration of Equal Protection in at least three areas. First, the tiered system of scrutiny used to determine the appropriate level of review (strict scrutiny, intermediate scrutiny, or rational basis review) for laws burdening particular groups privileges, in large part, racial minorities and groups with visible race-like traits while affording lower scrutiny to others. The presumably self-evident nature of race largely justifies the Court’s heightened judicial solicitude for racial minorities. Second, the Court’s embracing of colorblindness as a normative framework for understanding Equal Protection’s boundaries is driven by a visual metaphor that frames race and discrimination as quintessentially visual experiences. Since it is largely believed that blindness leads to a diminished understanding of race, the Court’s colorblind approach attempts to transcend racial antagonisms through a jurisprudence of racial non-recognition that, by being ‘blind’ to color, is thought to mimic blind people’s racially utopian experiences. Third, the post-Washington v. Davis intent doctrine that has come to stand for the need to demonstrate individual malice to sustain claims of discrimination similarly frames race as a self evident trait whose salience is thought to exist on its own terms (apart from social structure and racial hierarchy) to render a reductionist conception where race is simply visually obvious.

                The centrality of ‘race’ ipsa loquitur to Equal Protection jurisprudence raises a critical question that has yet to be addressed by the literature: does the salience of race – the ability to see and differentiate among human groups – turn on obvious visual cues? This Article presents an alternative viewpoint that critiques Equal Protection’s emphasis on visibility by empirically examining the experiences and understanding of race among people without vision, i.e. blind people. The data collected from these respondents empirically isolates the significance of vision to the salience of race as a sociological manner, which provides empirical data to critically assess this theory of race in Equal Protection law. I find not only that blind people have as significant an understanding of race as anyone else but that they also understand race visually. Moreover, I also find that this visual understanding of race stems from interpersonal and institutional socializations; the visual salience of race is a social rather than ocular phenomenon, which belies the ‘race’ ipsa loquitur understanding of race embedded in Equal Protection doctrine and scholarship.

                This research and its findings are important for Equal Protection in that they empirically destabilize the ‘race’ ipsa loquitur trope enmeshed in this jurisprudence. It also offers data demonstrating how the embedded assumption throughout these three areas of Equal Protection fails to appreciate how this salience is produced by constitutive social practices that make human difference visible in particular ways. I argue, as a normative matter, that ‘race’ ipsa loquitur must be thoroughly eviscerated from Equal Protection; it is simply an inaccurate and therefore inappropriate framework from which to understand race. The theory of race driving Equal Protection must be reconstructed around the social practices shown by this Article to produce the salience of race that has been mistakenly assumed to be self-evident for far too long. I conclude by discussing why it is important for the Court to have an empirically accurate understanding of why race is salient and how re-orienting Equal Protection’s theory of race around social practices can re-introduce the important roles of social context and racial hierarchy in generating a just and equitable jurisprudence.

 

                      University of Pennsylvania Journal of Constitutional Law (Forthcoming 2012).

 

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