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Hastings Law Journal

Article Title

Race Audits

Authors

R. A. Lenhardt

Abstract

The persistence of the problems that attend the American color line makes clear the need for greater experimentation and innovation in the area of race. For years now, we have looked primarily to courts for solutions. But current jurisprudence offers very little that is useful in dealing with the modern realities of durable racial inequality and segregation. As cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano make clear, it limits dramatically the tools available to address racial inequality, regarding as “bad cities” localities that try affirmatively to grapple with matters of race. This Article thus urges a focus on localities and the deep potential that such entities—because of their intimate experience with race and how it operates on the ground—have to do “good,” to be “equality innovators.” The Article develops a proposal for the “race audit,” a voluntary, evaluative measure designed to identify the sources of persistent racial inequality that can be productively deployed by localities. This tool, grounded in the tenets of structuralism, eschews a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that create cumulative racial disadvantage across domains, time, and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit process, in addition to highlighting the capacity of localities to be important change agents, would help produce a counternarrative about race and the seeming naturalness of the racial segregation and disadvantage now evident in urban and suburban areas alike. The Author contends that, in doing so, the race audit would identify better, more effective strategies for alleviating structural racial inequality. Situating the race audit proposal in a larger project on the commitments underlying civil rights advocacy more broadly, she highlights the potential that the race audit and other innovative tools might have to spur democratic conversations about race and the conditions necessary for belonging at the local level; generate a thicker, more substantive account of equality than has thus far been forthcoming in U.S. Supreme Court cases; and reconcile the perceived tensions between notions of equality and liberty in the area of race.

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