ARTICLES UNDERSTANDING THE MARK: RACE, STIGMA, AND EQUALITY IN CONTEXT R.A. LENHARDT* In its FourteenthAmendment jurisprudence,the Supreme Court regards intentional discriminationas the principalsource of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social sci- ence insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies chal- lenged on the grounds of race. Drawing on the social science work of Erving Goffman and the ground-breakingwork of Charles H. Lawrence, Professor Len- hardt argues that courts should reframe the constitutionalinquiry to account for the risk or evidence of stigmatic harm to racialminorities. Professor Lenhardt explains that stigmatic harm occurs when a given act or policy sends the message that racial difference renders a person or a group inferior to Whites, the category constructed as the racialnorm. This stigma imposes what Professor Lenhardt calls citizenship harms, which prevent members of racial minorities from participating fully in society in a variety of contexts. Professor Lenhardt proposes a four-part test to determine whether an act or policy-whether it is intentionally race based or carries a disparate racial impact-imposes a significant risk of stigmatic harm such that it should be subject to strict scrutiny. First, courts should examine the specific histor- ical origins of the constitutional provision they are being asked to interpret. Second, they should consider the socio-historicalcontext of the challenged act or policy. Third, they should evaluate the current context of the act or policy, * Copyright © 2004 by R.A. Lenhardt. Fellow, Georgetown University Law Center; Associate Professor of Law Designate, Fordham University Law School; A.B., Brown Uni- versity, 1989; J.D., Harvard Law School, 1995; L.L.M., Georgetown University Law Center, 2004; law clerk to Justice Stephen G. Breyer, U.S. Supreme Court, 1996-97. The ideas and arguments developed in this Article are ones I first began to explore almost a decade ago with the encouragement of Professor Randall L. Kennedy. I am extremely grateful to Professor Kennedy and to the following individuals for their support and com- ments on this Article: Michelle Adams, Rick Banks, Donna Christian, Devon Carbado, Sheryll Cashin, William T. Crawley III, Martha Field, James Forman, Mitu Gulati, Camille Holmes, Vicki Jackson, Olati Johnson, Emma Coleman Jordan, Neal Katyal, Charles H. Lawrence III, Tamara Lawson, Charles Ogletree, Spencer Overton, Elizabeth Patterson, John Payton, Carolyn Shapiro, Gerry Spann, and the N.E. Corridor Collective, especially Taunya Banks, Carmia Caesar, Tanya Hernandez, Sherilynn Ifill, Audrey McFarlane, and Margaret M. Barry. In addition, I am indebted to Jenny Maldanado for her research assis- tance and to Marguerite Walter, Debra Greenberger, James Marvin Pdrez, and the other staff members of the New York University Law Review for their excellent editorial work on this Article. Finally, I would like to thank H. and my other family members and friends for their encouragement, support, and patience as I completed this project. This Article is dedicated to Mary Nell Hill, Mary Katherine Mackey, and Michelle Mackey Cook, whose struggle made this possible. 803 Imaged with Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 79:803 including consideration of a possible disparate impact on members of racial minorites. Finally, courts should consider the probablefuture effects of the act or policy in terms of its likely citizenship effects on members of racial minorities. Pro- fessor Lenhardt argues that, while the use of this test will not eliminate racialharms altogether, it will enable courts and policymakers to engage in a disciplined and systematic analysis of racial harm which will ultimately provide the basis for more effective means of addressing racial stigma and persistent racial inequalities in the United States. INTRODUCTION ................................................... 805 I. WHAT IS RACIAL STIGMA 9 .. 814 A. The Components of Racial Stigma .................. 816 1. Dehumanization and the Imposition of Virtual Identity ......................................... 816 2. Shared Negative Meanings About the Racially Stigm atized ..................................... 823 3. The Automatic Nature of Responses to the Racially Stigmatized ............................ 825 4. The Reinforcing Nature of Racial Stigma and Stereotypes ...................................... 830 B. The Dimensions of Racially Stigmatic Harm ........ 836 1. Group Stigmatic Harms: Racial Disparities, Discrimination,and Microaggressions........... 836 2. Individual Stigmatic Harms: Uncertainty, Internalization of Dehumanizing Norms, and A nxiety ......................................... 839 a. Uncertain Social Identity and Ambiguity ... 839 b. Internalization of Dehumanizing Identity N orm s ...................................... 841 c. Anxiety and "Stereotype Threat"........... 843 3. Race-Based Citizenship Harms .................. 844 C . Sum m ary ........................................... 847 II. PUTTING RACIAL STIGMA IN CONTEXT ................. 848 A. Story Telling and Retelling .......................... 848 B. How Racial Stigma Got Its Meaning ................ 851 1. Constraints on Traditional Citizenship Activities and Racial Isolation ............................. 852 2. Limitations on Family and Intimate Relationships .................................... 855 3. The Proliferationof Negative Racial Stereotypes and Im ages ..................................... 858 4. Racial Terrorism and the Criminalizationof R ace ............................................ 861 C . Sum m ary ........................................... 863 Imaged with Permission of N.Y.U. Law Review June 2004] UNDERSTANDING THE MARK III. MAPPING U.S. SUPREME COURT CASES ON RACIAL STIGMA ................................................... 864 IV. DEVELOPING A JUDICIAL ANALYSIS FOR RACIALLY STIGMATIC MEANING AND HARM ....................... 878 A. Differing Accounts of Racial Injury and Meaning... 882 1. Paul Brest's Stigma Theory ..................... 882 2. Charles Lawrence's Theory of Unconscious Racism and Cultural Meaning .................. 885 B. (Re)Considering Racially Stigmatic Harm and M eaning ............................................ 887 1. Taking a New Look at Old Accounts ........... 887 a. Stigma as the Source of Racial Injury ...... 887 b. Rejecting a Focus on Perpetrators .......... 888 c. Shifting from Motive to Harm .............. 889 d. Concentrating on the Full Range of Racially Stigmatizing Acts and Policies .............. 890 2. A Structured Analysis of Racially Stigmatic Harm and Meaning ............................. 890 C. Applying the Analysis in Old Contexts .............. 896 1. A llen v. W right ................................. 897 2. M illiken v. Bradley ............................. 898 D. Applying the Analysis in New Contexts ............. 901 1. The Higher Education and Affirmative Action C ontexts ........................................ 902 2. The Felon Disenfranchisement Context .......... 916 E. Responding to Possible Objections to the A nalysis ............................................ 925 CONCLUSION ...................................................... 930 INTRODUCTION In 1903, W.E.B. DuBois asserted in The Souls of Black Folk, his deeply insightful and profound study of race and inequality in the United States, that the problem of the twentieth century was that of the "color line"-the American caste system whose brutality and forced separation of the races effectuated the economic, political, and social exploitation and subordination of generations of African Amer- icans and other racial minorities.1 Over one hundred years later, in 2004, there is unfortunately reason to believe that DuBois's statement might well apply to the twenty-first century as well. To be sure, the precise contours of the color line have shifted in many important and perhaps even unexpected respects in the last century. As a nation, we I See W.E.B. DuBois, THE SOULS OF BLACK FOLK 3 (Vintage Books 1990) (1903). Imaged with Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 79:803 have gone from a period in which the division of the races was set by law and characterized in turns by the enslavement, mistreatment, and subjugation of African Americans to one in which our judicial prece- dents, legislative enactments, and social norms permit no efforts to draw formal distinctions between the races. Race no longer provides an adequate legal basis for efforts to exclude racial minorities from 2 schools, housing, or employment. There is no question that real progress has been made in the area of race, as we see African Americans and other racial minorities assume positions of prominence in business, medicine, law, and gov- ernment. And, yet, it also seems clear that the promise of equality for African Americans and other racial minorities-made first through the adoption of the Reconstruction Era amendments and then again through the legislative enactments and judicial decisions of the Civil Rights Era-has not been fully realized. 3 Studies show that the vast majority of African Americans and other racial minorities lead lives that are qualitatively different from those