The Governor charged communities to re-examine their police departments, and several pieces in the local paper described the disproportionate treatment of African-Americans, ending up with the question whether police are racist. I like and respect the authors and there’s a lot of wisdom in those pieces but, to make progress, I question focusing on blame. Segregation was “inherently unequal” regardless of what the officials thought they were doing. Blame is about fault. I want improvement, not some Grand Inquisitor looking for purity. That makes everything harder.
The Supreme Court under Chief Justice Burger started out with a just-the-facts approach in 1971, saying even unintentional discrimination violated the law without a good reason for a rule that blocked African-Americans from advancing to better jobs. Unequal effects on different racial groups required strong, legitimate justification, regardless of what was in management’s heads or hearts. Congress backed that up in statutes requiring business necessity to justify practices creating a disparate impact among people based on race, color, religion, sex, or national origin. No one needs to be described as racist. They made an unjustified decision, and African-Americans deserved to be treated fairly.
But, starting in 1976, the Court defined denial of equal protection as intentional discrimination. Since then the Rehnquist and Roberts Courts found it easy to use supposedly good motives as a fig leaf covering egregious discrimination.
There’s no good reason to make the same mistake. Arguments about racism start with an accusation, and lead people, whose cooperation is needed, to circle their wagons and bring up their heavy guns, from police unions, to politicians’ simplistic descriptions in heated public debates. No one will break ranks and justice loses.
The answer must be objectives and metrics. What’s a policeman’s job? One piece is simple: “Dead or alive” is movie talk. Arrests are to bring people in alive so we can charge them appropriately, and determine guilt, innocence, and proper punishment, rather than content ourselves with a coroner’s report. People arrested are entitled to due process and a chance to defend themselves. It’s important to encourage police to take the role of peace officers. Whatever other claims we can argue about, the demand of Black Lives Matter that we bring people in alive, not dead, is clearly right. Dead people represent failure. It’s a tough job, but the job is to bring people in alive.
If an inordinate percentage of African-Americans are stopped and arrested, it’s legitimate to ask the cops themselves what they can do to change it. If an inordinate percentage of 911 calls by African -Americans are ignored, it’s legitimate to ask police what they can do to change it. We need action, not blame. And we need peace officers to work with us. The issues are big but we have to cut through the hostility and get to cooperation.
We should hear them out about how they can help solve the problems, how they can help stop needless killing. The defensive answer that everything is fine and we should admire and trust police because they are brave isn’t a defense; it’s an indictment. Bravery has nothing to do with shooting people in the back or killing people already subdued. We can have a realistic discussion of what can be done to make things better only if they are willing to face the problem and agree to help solve it. Once people are doing the right thing, it will eventually seem normal and right.
Meanwhile, we have a right to see action.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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