Localities as Equality Innovators

Abstract

This Article argues that instead of regarding cities and localities that try to develop serious solutions to existing racial disparities as “bad cities” no different from those whose notorious policies spurred the civil rights movement of the 1950s and 1960s, we should be regarding them as potential “equality innovators.” Their on-the-ground 
experience with the realities of race and its operation in the twenty-first century arguably places them in a better position than courts to develop innovative approaches to the structural racial inequities with which so many municipalities must grapple. Existing doctrine limits dramatically the ability of courts to confront in any meaningful way how localities and the people that inhabit them actually navigate race.

Part I develops the concept of local “equality innovators” by first detailing the parameters of the intellectual property term “user innovation” from which it takes its inspiration, and then considering theoretical support for extending opportunities for innovation from the individual user to the institutional context. Part II takes a closer look at existing judicial barriers to locality-generated innovation, briefly discussing recent cases and the emphasis on “race-neutral alternatives” in Supreme Court jurisprudence. Part III begins by identifying examples of innovative regulatory devices that, consistent with the calls of many legal scholars, focus on structural barriers to racial equality, rather than on intentional racial discrimination alone. It then advances a broad proposal that could be deployed by localities, even within the narrow confines of existing doctrine, to respond more effectively to the structural sources of persistent racial inequality. It outlines some of the benefits that the race audit proposal, which I introduce more fully in an article in the Hastings Law Journal,
innovation in the race context. The article concludes by briefly addressing potential concerns raised by the race audit proposal. It also situates this Article in a larger project on civil rights in the twenty-first century in which I am engaged.

Keywords: race, equality, innovators, innovation