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Are We Truly Colorblind? The Racialization of “Race-Neutral” American Policy

Updated: Nov 24, 2020

Though a law may be “fair on its face,” if it is “administered by public authority with an evil eye and an unequal hand,” it is in violation of our Constitution’s Fourteenth Amendment guaranteeing equal protection under the law. This unanimous court decision written by Justice T. Stanley Matthews in 1886 remains of the utmost relevance and importance today.

In the 1850s, after the discovery of California gold, an influx of Chinese immigrants came to the United States seeking better economic opportunities for themselves and their families. Violence and other means of pressure by White Americans who would not tolerate economic competition with ethnic minorities led to the passage of the 1882 Chinese Exclusion Act, the first and only federal law to bar an ethnic group from entering the country on the basis of race. Legal exclusion allowed discrimination to continue unbridled, exemplified by San Francisco’s granting of laundry licenses only to white applicants. In 1886, Chinese laundryman Lee Yick made history in bringing discrimination to court and setting the legal precedent via court case Yick Wo v. Hopkins, which formally recognizes the unconstitutional, discriminatory potential of laws and policies beyond the papers on which they are written.

Despite this revolutionary epiphany on the legal front, the fight against institutionalized inequality reached its climax nearly a full century later. The Civil Rights Movement of the mid-1960s garnered unprecedented gains in civil rights and equality for all American citizens, most notably via the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Together, this legislation introduced measures to actively and systematically put a stop to racial discrimination in all forms of civic participation, including but not limited to employment opportunities, voting and housing. The magnitude of progress towards equality is undeniable – as is the amount left undone and unaddressed, even within our legal system itself.

The Civil Rights era of the 1960s marked yet another significant turning point in American history: the peak of colorblindness and neoconservativism. Politically conservative leaders vehemently attested to the post-racial democracy and equality formally established by official legislation. Eager to counter international accusations of racism from communist nations like the Soviet Union, American policymakers held up Asian Americans’ hard-earned success as alleged proof of institutional race-neutrality. The construction of the “model minority” myth is one of countless examples of American leaders instigating animosity between peoples of color in order to preach individualism and “mask persistent inequalities” on a systemic level (Lee, 2015). Now, more than ever, the mantra of personal responsibility was ignited throughout public discourse to blame people of color for their own shortcomings and to deem them more fallible than the policies that failed to serve them the equality they were promised.

For nearly half a century, social justice advocates have endeavored to expose and mitigate the continuing disparities between egalitarian legislation and its unequal realization. From the Civil Rights Movement of the 1960s to the Black Lives Matter movement founded in 2013, Americans have been incessantly demanding an explanation as to why our Black citizens’ levels of poverty, underemployment, political alienation and incarceration are significantly and systematically higher than those of whites. As of 2017, Black Americans comprised roughly 12 percent of the United States population, and yet 33% of the American prison population and double the number of unemployed workers compared with their white counterparts (U.S. Bureau of Labor Statistics, 2017).

Throughout the legally colorblind decades following the groundbreaking Civil Rights movement, resource scarcity remained unseen and unheard, buried under the allegedly post-racial mantras of personal responsibility and Black pathology. In 1965, Assistant Secretary of Labor Daniel Patrick Moynihan, a liberal Democrat, published “The Negro Family: The Case for National Action,” better known as “The Moynihan Report,” a call to action against the weak and “broken Negro family” doomed by a matriarchal structure and a “tangle of pathology” (Kendi, 2019). Despite the hypocrisy of “model minorities” such as Japanese Americans publicly praised by the media for devoted single-parenthood, Moynihan used his position of power to stamp a badge of behavioral inferiority on Black Americans allegedly otherwise unimpeded by race-neutral American law.

The beginnings of the movement for environmental justice in the 1980s is debatably the crux of the post-Civil Rights struggle against resource scarcity and disparity. Black activists and community members began to organize in protest against state governments’ systematic allocation of landfills and other means of hazardous-waste disposal in predominantly poor communities of color despite regulatory policies and scientifically proven health risks. Following the Environmental Protection Agency (EPA)’s ban on the resale of toxic oil in 1979, haulers illegally dumped over 30,000 gallons of PCB-laced oil along the roadways of North Carolina, the largest PCB spill ever documented in U.S. history. While corporate company leaders associated with the spill were jailed and persecuted for the irrevocable contamination of American soil and the prospective detrimental effects on the health of the (white) people, North Carolina governor James B. Hunt decided to quietly bury all of the poisoned soil at a site in Warren County, a community with an over 84% Black population (Bullard, 2000).

This racialized affront led to the immediate organizing of Black civil rights leaders and area activists and residents in 1982, the first nationwide protest for environmental equality and against resource disparities in black and brown communities. The EPA stood by its health-centered policies, with the chief of hazardous waste implementation William Sanjour advising protestors to “keep doing what you’re doing” (Bullard). Despite the official sanction of the EPA and the unprecedented demands and arrests of hundreds of county residents, the state continued to dump thousands of truckloads of toxins into the community unimpeded.

This grassroots organization of motivated Black activists marks the beginnings of the contemporary environmental justice (EJ) movement, a movement demanding to know why Black communities must disproportionately bear the burden of environmental toxins and the paucity of educational, community and health resources despite decades of legalities guaranteeing full equality. The community of West Dallas, Texas, with an 85% Black population, was another one of countless spaces victimized by racialized environmental policy implementation. Decades after the construction of schools and public housing just yards away from the highly toxic RSR lead smelter, Dallas health officials associated exposure to the contaminated soil and air with a 36% increase in blood lead levels and urged the city to regulate its lead companies in 1972. Additionally, the EPA established the National Ambient Air Quality Standard in 1978 and further pressed concerns about health risks resulting from lead companies’ noncompliance. The city of Dallas ignored all calls to action, and waited until 1981 to inform the outraged residents of the ongoing health catastrophe (Bullard).

The urgency of the environmental justice movement as a critical sector of civil rights has led to countless grassroots organizations, political activists and civil rights advocates responding to the call for action via public demonstrations, lobbying, lawsuits and litigation. The fight against environmental injustice has continued for decades, capturing national attention during the present-day Flint water crisis. In 2014, the city of Detroit, Michigan, in an effort to save money, switched the water supply of the majority-black Flint community to be sourced from the Flint river, despite its known usage as an unofficial disposal site by local industries (Derchak, 2018).

Mere months after the switch to the contaminated river, official tests confirmed the presence of E. Coli bacteria, carcinogens including TTHM, and remarkably high levels of lead in the water. Despite the giant corporation General Motors declaring the Flint water inadequate for its commercial operations, action on behalf of the health of Flint residents rested with independent teams of researchers. In 2015, a Virginia Tech team confirmed Flint water’s lead to be nearly triple the toxicity level and a local medical study determined that the number of children with elevated blood lead levels had doubled since the water supply switch. It is public information that lead contamination is known to cause mental retardation, learning disabilities, pregnancy complications, severe pneumonia (Legionnaires’ disease), and other serious and even deadly diseases as per the World Health Organization (Kennedy, 2016).

By the time the city of Detroit responded to the crisis and switched Flint back to Detroit’s regulated and safe water supply a full year later, lead had already contaminated the drinking water at such high levels as to prompt multiple state and federal policymakers, including President Barack Obama and the EPA, to declare a state of emergency in 2016. The subsequent lawsuits and litigation have placed the responsibility for this fatal catastrophe with the criminal neglect of Michigan’s Department of Environmental Quality (MDEQ) and Michigan