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Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge

Connecticut Law Review, Vol. 43, No. 503, 2010

44 Pages Posted: 14 Oct 2011  

Derek W. Black

University of South Carolina - School of Law

Abstract

The legal standard for race discrimination - the intent standard - has been scrutinized and justified for decades, but that conversation has occurred almost entirely within the legal community. Relatively little effort has been made to engage the public. This Article posits that the discussion of discrimination standards must account for and include public understandings of race and discrimination because race is a socially constructed concept and discrimination is culturally contingent. Race discrimination standards based solely upon the legal community’s perceptions are susceptible to significant flaws. This Article begins the incorporation of public understandings of race and discrimination by examining the public’s reaction to a recent cartoon that, on its face, is racially neutral or ambiguous, but in light of surrounding cultural context and history is arguably racist. The cartoon generated a flurry of internet postings, reactions, and polls. This Article systematically studies those reactions and finds that the public tends to conceptualize race discrimination differently than the courts and, thus, calls into question the validity of current legal standards.

Keywords: intentional discrimination, cultural bias, subconscious bias, racial bias, race discrimination

Suggested Citation

Black, Derek W., Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge. Connecticut Law Review, Vol. 43, No. 503, 2010 . Available at SSRN: https://ssrn.com/abstract=1943580

Derek W. Black (Contact Author)

University of South Carolina - School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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