by Liz Jordan
February is my favorite month of the year. As a history buff and African-American Studies major, February is one of the few times in the year when I can speak about Black history and the Black experience as much as I please. Throughout my life, February has been a time to relish in my ancestors’ accomplishments. Though imperfect, Black History Month has historically been a month in which the Black American experience was valued—at least somewhat more than it was in the other eleven months.
This Black History Month, though, I recognize something different.
Every time I have turned on the news in the last month, I have been met with a reminder of the evolution of race and racism in America. Most people are familiar with the accepted narrative of American racial progress—the children’s story of how America went from slavery to freedom and from the Civil Rights Movement to a Black president. The end to that story is one of achievement—one of a “post-racial” society.
From the purported “Celebrity Boxing Match” starring the murderer of a Black teenager, to the complete media denigration of a Stanford graduate and Superbowl champ, to a defense attorney’s justification of a Black boy’s murder because his music was too loud, I am reminded that this “post-racial” narrative is unhelpful at best and damaging at worst.
It’s how Michael Dunn described Jordan Davis and his friends as they sat listening to music in a gas station parking lot. It’s how a large portion of the country described Richard Sherman after he exhibited what in any other case would have brushed off as post-game passion—what one might call a “boy will be boys” moment after a big game. It’s the way the media and George Zimmerman portrayed 17 year old Trayvon Martin.
“The reason it bothers me is because it seems like it’s an accepted way of calling somebody the N-word now,” said Sherman, in reference to the attacks against him in an interview on January 22nd.
Rather than truly striving for racial equality by acknowledging that race, while socially constructed, has historical and social significance, a subset of our population would rather appear to ignore race. It’s this colorblind philosophy that allows racial epithets to become coded—“thug” instead of a more obviously racialized term—and swept under the rug. By making this language harder to identify, it becomes harder to attack.
As codified in the United States Code, a hate crime occurs when one “willfully causes bodily injury to any person or [ . . . ], attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person.” 18 U.S.C. § 249. A race-based hate crime, then, requires proof that the person was acting based on the victims’ race. If one uses a word like “thug” in reference to his killing of a black child, is it a hate crime? What about if he had used “black boy”? What if he had used “nigger”?
Hate crimes aren’t the only subset of laws affected by this rise in coded racism as a result of the post-racial myth. In Alexander v. Sandoval, the Supreme Court held that private citizens could not bring suit against those who enact discriminatory policies unless that discriminatory action could be proved by intent. Discriminatory intent, as opposed to disparate impact, can be much harder to prove. For discriminatory intent, you need a smoking gun—a statement or some other evidence that the actor purposefully and consciously decided to act based on race. It doesn’t matter if the policies only affect people of one particular race. It doesn’t matter if the racism was implicit. As long as it’s coded, it’s likely to survive under discriminatory intent. It’s the difference between “thug,” and “nigger.”
If Zimmerman had used a historically identifiable racial epithet rather than coded language, would the case have turned out differently? What about Michael Dunn? If instead of calling the hip-hop emanating from the car “thug music” he had called it “Black music,” would his animus have been easier to identify? Is it really progress if we simply replace one set of words with another? In a legal system that prefers intent-based racial discrimination claims, how does this coded language affect our ability to push forward toward progress and equality? And what can we do about it?