Abstract
Excerpted From: Deirdre Pfeiffer and Xiaoqian Hu, Deconstructing Racial Code Words, 58 Law and Society Review 294 (June, 2024) (7 Footnotes) (Full Document)
Racism has become more covert in post-civil rights America. A few examples illustrate this trend. A city council denies rezoning to accommodate multifamily housing based on fears of crime. A nightclub owner instructs his bouncer to turn away anyone in big chains. A tech company rejects a minority applicant who cannot fit our corporate culture. Nowhere are specific references to race made. Yet, attributes like dress and cultural fitness can be seemingly race-neutral proxies or codes for members of specific racial groups. Similarly, concerns about crime may mask residents' racially motivated fears about their future neighbors and convey a subtext that equates Racial/Ethnic Minorities with poverty, pollution and criminality. Denying rezoning, employment or club entry based on these concerns may bar Racial/Ethnic Minorities from housing and labor markets and social networking. Practices that transmit racial narratives, like use of stereotypes, work together with practices that exclude racial groups from domains of social life, like markets and networks, to perpetuate racial hierarchy and inequality.
Although the Equal Protection Clause and civil rights laws (broadly termed antidiscrimination law) prohibit racially discriminatory practices, their operating logic is poorly equipped to address the deleterious effects of coded language. Contemporary race scholars have examined practices of covert racism in diverse settings and proposed various theories to better understand it. However, comprehensive knowledge is lacking on what codes “colorblind” race talk deploys, how these codes propel racism in post-civil rights America and ultimately how to confront them in law and social practice. We help to fill this knowledge gap by focusing on one instrument of “colorblind” race talk: racial code words, which we define as (1) indirect signifiers of racial or ethnic groups that contain (2) at least one positive or negative value judgment and (3) contextually implied or salient meanings.
We create a novel corpus of 734 racial code words through a systematic literature review of 97 scholarly texts that document race talk in post-civil rights America. We then conduct thematic analysis of these code words and develop an interpretive framework that explains their tropes, linguistic mechanisms and unique roles in perpetuating racism, drawing from race, linguistic and cultural studies. We find that racial code words promote tropes of White people's respectability and privilege and Racial/Ethnic Minorities' pathology and inferiority in efficient, adaptable, plausibly deniable and almost always racially stratifying ways, often through euphemism, metonymy and othering. Racial code words construct a “colorblind” discursivity and propel both epistemic racism (racism in knowledge) and systemic racism (racism in action). We narrow a disciplinary divide between sociolegal studies of race and Critical Race Theory (CRT) by integrating CRT insights with our findings into a “racial meaning decoding tool” to assist researchers, legal professionals and social justice advocates in detecting coded race talk. We conclude by highlighting the major contributions and notable limits of our study and reflecting on future research needed to help further deconstruct racial code words and update the right to nondiscrimination for a “colorblind” society.
Covert racism in law and social theory
The U.S. civil rights movement delegitimized blatant, biologically based, segregationist racism and ushered in new legislation and stronger application of constitutional equal protection to address racism. However, these victories were partial because the legal definition of racism fails to match the social reality of racism. Antidiscrimination law largely treats race as biologically derived, racism as rooted in individual bigotry and racial discrimination as based on immutable traits possessed by all group members. Yet, race is socially constructed through ever-evolving meaning systems, and racism results from diffuse, multiscalar and intersecting forces that organize American life in racially stratifying ways. As a result, a chasm exists between race and racism operating on the ground and race and racism recognized by antidiscrimination law.
Racial/Ethnic Minorities (particularly Black people) experience the criminal justice system as an expansive, accumulating and mighty apparatus of oppression where law emboldens racism, legal professionals “do racism” as they “do justice,” and a “street law” is created for “street people”. Conversely, they experience antidiscrimination law as a narrow, disaggregating and weakened shield of protection that is more promissory than real (Murakawa and Beckett 2010). The “social regime of strict scrutiny” omnipresently surveils, disciplines and traps Black people in a liminal space of life and death and safety and punishment, while the legal regime of strict scrutiny narrowly constricts racially conscious remediation efforts and naturalizes and reinforces their racial subordination. Hence, although antidiscrimination law vows to eliminate racism, it takes a formalist and skin-deep approach to race, “aggressively disaggregates” systemic racism and racial causation and is “a jurisprudence of racial nonrecognition” rather than the supposed opposite.
Law partakes and is a central site of the social construction of race. This jurisprudence of racial nonrecognition is in essence a special form of legal construction of race. Similar to how courts in past prerequisite cases constructed racial categories by determining who was and was not White (ibid), courts in racial discrimination cases construct racial boundaries by determining whether a justification is racial or not. In prerequisite cases, courts constructed race by drawing boundaries between races, with classification as White entailing legal protections and advantages. In antidiscrimination cases, courts construct race by drawing boundaries between racial and nonracial explanations, with classification as racial entailing (equal treatment) legal protections and advantages. In both settings, the law demarcates racial boundaries and creates a prized classification (Whiteness and raciality, respectively), courts narrowly guard eligibility for the prize, and plaintiffs are forced to simultaneously abide by and perpetuate the classification to receive legal protection.
Racial codes arise from the chasm between race and racism on the ground and in antidiscrimination law. They give the user “plausible deniability” of race-based decision making (i.e., the ability to deny that actions were racially motivated). Hence, redress for victims of coded racial discrimination depends on whether they succeed or fail to uncloak plausible deniability. If they succeed, courts recognize the accused act as illegal racial discrimination. If they fail, courts classify the accused act as nonracial and the code provides a legal hack for discrimination with impunity. Antidiscrimination law's inability to crack racial codes is a major cause of their ascent.
Various theories illuminate how covert racism works. Covert racism spreads a narrative that American society is fair and justifies racial inequality on ostensibly non-racial grounds, such as White cultural/ideological values of individualism, meritocracy and free-market competition (e.g., “symbolic racism”); “modern racism”; “laissez-faire racism”; “colorblind racism”). These values are so pervasive and hegemonic that they form part of commonsense knowledge about race and racial inequality, to the point of making racist beliefs and actions “automatic,” “unconsidered” and even “unconscious” (e.g., “unconscious racism”; “commonsense racism”; “implicit bias”). A smaller, though sizable, literature investigates mechanisms, processes and effects of covert racial discourses. Beckett exposes how political and media elites socially constructed the war on crime and the war on drugs in the latter 20th century to stoke racial anxieties and advance a conservative agenda. Mendelberg, Haney López and Bennett and Walker show how strategic actors imbue race-neutral words like fundamental rights, gun ownership, welfare, crime and criminal justice, and states' rights with racial meaning to seek political, economic and ideological gains. López-Espino exposes how legal professionals create covert discourses to racialize and coerce obedience from parents in child welfare cases through techniques of silencing, voicing figures of disbelief and labeling their speech as lies and excuses.
Despite these vibrant and growing studies of covert racism, comprehensive knowledge on tropes, mechanisms, evolving processes, and individual and systemic effects of covert racial discourses is lacking. Our research seeks to narrow this gap. We analyze one type of discourse--racial code words. We ask: What forms do contemporary racial code words take? What tropes do they convey? What functions do they perform and with what mechanisms? What knowledge, if any, can we gain about racial code words that could help researchers, legal professionals and social justice advocates detect coded race talk?
We also seek to narrow a disciplinary gap between sociolegal studies and CRT. On the one hand, we respond to sociolegal race scholars' calls to study race capaciously, operationally and systemically. We investigate micro-instances of racial code word use and examine their tropes, individual and systemic effects, and linguistic mechanisms. On the other hand, we bring CRT to bear on sociolegal studies of race. The legal realist movement in the early 20th century and the law and society movement in the latter 20th century have made it a common and honored practice to apply social science insights to legal issues. In recent decades, in the context of race, the neutrality and necessity of applying social science insights to adjudication have been challenged from the left (CRT) and the right (legal formalists), respectively. We deploy CRT insights to inform, energize and stimulate debate in sociolegal studies of race and racism, a practice explicitly advocated by former Law and Society Association President Laura Gómez.
More concretely, we integrate CRT scholars' insights as we search for ways to deconstruct the hack of racial code words. CRT scholars have long lamented how antidiscrimination law programmatically denies redress to victims of discrimination based on racially salient features such as housing patterns, hairstyles, names or accents and proposed innovative doctrinal solutions. Lawrence introduces a cultural meaning test for equal protection adjudication. The test asks courts to act “much like a cultural anthropologist” and investigate whether the government defendant's conduct conveys “a symbolic message to which the culture attaches racial significance”. If the court determines that more likely than not “a significant portion of the population thinks of the governmental action in racial terms,” the court will assume that unconscious racism has influenced the decision-maker and thereby “apply heightened scrutiny”. Rich shows how race/ethnicity is embodied in various socially coded racial/ethnic markers and offers a racial/ethnic performativity test to better address modern forms of employment discrimination. Under this test, the plaintiff must establish that the performative act on which discrimination is based carries racial/ethnic significance and that the association between the act and the racial/ethnic identity is too strong to require the individual to change. The defendant then must offer a race-neutral value or justification and specifically explain how the plaintiff's performance thwarts that value. Lastly, Onwuachi-Willig and Barnes propose a creative transplant of the “regarded as” verbiage in the Americans with Disabilities Act to employment discrimination law to address racial discrimination by proxy. If an employer uses a racial proxy (name, hairstyle, voice, etc.) to determine that a job applicant belongs to a certain race and denies the latter a job based on that determination, the employer has conducted illegal discrimination. Our study integrates these CRT insights into a “racial meaning decoding tool” to support researchers, legal professionals and social justice advocates in detecting racial code words in varied settings.
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[R]esearch into racial code words' life cycles and continuums of harm is needed. Why do some retain their coding while others become decoded? Racial code words may have thresholds of efficacy; as they are widely adopted, their effectiveness may first grow but later shrink due to increased exposure and scrutiny. Why are some more effective in achieving racist outcomes than others? Discursive practices like othering may play a role. Code words that exhibit total and insurmountable forms of othering and thematic dimensions of Villain are most harmful, while those that convey thematic dimensions of Passing are less harmful, though there is harm in how they function to codify White normality and erase racial and ethnic differences. Why do some persist after decoding while others perish or evolve? While racial meanings and codes change over time, some may change faster than others, including in particular social contexts and historical periods. There is opportunity to marry historical, sociological and discourse analysis in building continuums of harm and tracing pathways of codedness in various settings, particularly those relevant to antidiscrimination law. Despite its limitations, antidiscrimination law can be a more powerful tool for positive social change if we invest in developing, applying and refining methods to expose racial codes and their functions in the reproduction of racism and racial stratification.
Dr. Deirdre Pfeiffer, School of Geographical Sciences & Urban Planning, Arizona State University, Tempe, AZ, USA
Dr. Xiaoqian Hu, University of Arizona James E. Rogers College of Law, Tucson, AZ, USA
Corresponding author: Deirdre Pfeiffer; Email:
