Policy Presuming “White Privilege” Violates Equal Protection Under the Law

I often preface my remarks concerning race and the criminal justice system by making sure my audience knows that I am a civil libertarian and a proponent of policing reform. I recognize that there are racial disparities in police practices, most notably in investigative stops that move under the cover of traffic stops. These practices must be considered as a matter of public policy and our commitment to due process.

The Routine Traffic Stop: How Officers Have Used License Plate ...
Traffic stops are a common occurrence in America

Each year, around twelve percent of drivers in the United States are stopped by the police. That figure is almost double among racial minorities. While it is true that racial minorities are overrepresented in Index crime statistics—in fact, in the case of blacks, overrepresentation in the most serious crimes is greater than it is in traffic stops—the probable cause requirement of the Fourth Amendment is not triggered by abstract demographic overrepresentation.

Put another way, police officers operating on the basis of cognitive stereotypes, however much those stereotypes are supported by aggregate statistics, runs afoul of the US Constitution. This is not to suggest that all or even most of the overrepresentation in traffic stops is due to stereotyping. Police are more likely to interact with blacks because of black overrepresentation in serious criminal offending. But there are also stops motivated by profiling on the basis of perception of race (as well as perception of class and sex). To the extent that these are occurring, governments should confront the problem.

I use Charles R. Epp and associates Pulled Over: How Police Stops Define Race and Citizenship (2014) in my criminal justice course to engage students about this issue. I recommend this book to readers of my blog.

All that being said, unjustified overrepresentation (if demonstrable) should not be characterized as “white privilege.” If a police officer or department is stopping more blacks than those of other races without probable cause, then that’s an example of race discrimination, specifically racial profiling. In addressing a problem such as racial profiling, we have to call things what they are and not engage in the hyperbole of antiracist ideology.

The construct “white privilege” make no sense from a rational justice standpoint. I have said this before, but it bears repeating: It is not a privilege to not be pulled over without probable cause. Not being pulled over when the police do not have a legitimate reason to pull over a driver is the right of all civilians. The police cannot stop and detain people without probable cause. (Except for border control, I oppose checkpoints for this reason.) Constitutional rights are not privileges.

This right is found in the Fourth Amendment in the US Bill of Rights and it applies to all the people equally. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. If this rule of law is not being applied equally, then the right of the people is being violated.

This is why I argue from the equal protection/rights position. Equality before the law is all-inclusive—the principle as fundamental law secures the legal principle of due process for all the people.

Because of the problem of racialized chattel slavery in our history, in which the sphere of “the people” did not include all individuals residing in the nation, the US government clarified the extent of this right in another amendment to the US Constitution, the Fourteenth Amendment: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment was added specifically to address the problem of race discrimination. To be sure, the Supreme Court corrupted the meaning of the amendment in Plessy v Ferguson (1896), but this corruption was rooted out by a later Court (Brown v Board of Education, 1954). A decade later, Congress moved to criminalize race discrimination by government and in public accommodations in the historic Civil Rights Act of 1964.

This progress could occur because of a national commitment to the principle of equal protection—because the just-minded pursued the goal of fully realizing a rational and humanist ethic in practice. It did not occur because of a desire to invert the racial hierarchy. Racial equality is about aligning practice with creed. That has always been the promise of America.

Equal protection under the law makes it possible to hold individuals and organizations accountable for race discrimination. White privilege rhetoric, in contrast, shifts the blame from individuals and organizations we can potentially hold accountable for discrimination to an abstract system where there can be no accountability under the law.

Because the construct of white privilege rests on the fallacy of misplaced concreteness, by supposing all individuals identified with an arbitrary demographic category enjoy a dispensation (it is plainly false that those identified as white in fact escape the arm of the law—and that has always been true), the construct of white privilege can do no good work.

Indeed, as racialized abstraction, a mode of tribalism, blame for inequalities on the basis of the white privilege notion becomes antagonistic and divisive. It’s a pernicious concept. The rhetoric of white privilege asserts the primitive ethic of collective punishment based on blood guilt. It is religious-like in character. It is not a rational principle, but one based on racial reification. It is, as such, a species of racialist thinking.

Pursuing such an irrationalism in law and policy risks destructive official practices, practices violative of constitutional principle, by providing a dispensation to members of an arbitrary demographic category. We hear this in calls for racially-differential policing practices—the rhetoric of “policing our own communities.” Such an action would represent formal or de jure re-racialization of the law and law enforcement. This would not only represent an injustice in principle, but an injustice in practice; it would undermine public safety, which is foundational to individual liberty and human rights.

Differential treatment of persons on the basis of race violates the Fourth and Fourteenth Amendments, the latter written to specifically guarantee equal rights to all citizens in the United States because our slavery was an obstacle to the full realization of the former. Policing must, therefore, to square with the law, occur on a race neutral basis. If equal protection results in higher rates of arrests, convictions, and incarceration for members of some races, and no bias can be demonstrated, then an accusation of discrimination cannot be sustained. As I have written about in recent blogs, while we can identify race prejudice and acts of race discrimination, there is no systemic race bias in criminal justice in America.

Inequality is not prima facie evidence of inequity. To presume that it is, and develop policy around a false inference, establishes the regime of systemic discrimination against persons of disfavored categories. The rhetoric of white privilege identifies in its very term the disfavored race whose status under the cover of law is to be degraded: white people. This is the wrong path to go down.

The problem of racism is not solved by inverting presumed racial hierarchies. The problem of racism is solved by ending racist policies and punishing racist actors.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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