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Racial Privacy | The Nation

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Diary of a Mad Law Professor

Racial Privacy

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Ward Connerly, figurehead for California's anti-affirmative action Proposition 209, is up to more mischief. This time it's a push to prevent California's public agencies from classifying "any individual by race, ethnicity, color or national origin in the operation of public education, public contracting or public employment." Classification is defined as any "act of separating, sorting or organizing by race, ethnicity, color or national origin including, but not limited to, inquiring, profiling, or collecting such data on government forms."

Patricia Williams will be on leave until September.
      --The Editors

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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Shrewdly titled the Racial Privacy Initiative, it sounds like a plan to protect us from the manipulative purview of Big Brother, or perhaps an act to prohibit police profiling or to protect medical records from being misused or to prevent consumer credit and employment histories from being revealed in ways that discriminate against minorities. "Racial privacy" beguiles with the promise of removing race and all its contentiousness from public view, keeping its secrets in a vault for only the rightful owner to know. A kind of "don't ask, don't tell" stance of racial revelation.

In fact, the proposed enactment contains a series of crucial exceptions that quickly turn such rosily "color-blind" expectations completely upside down. First, in a blatant concession to Big Brother writ large, there is an exemption for police. Sociologists Troy Duster and Andy Barlow have worried that this exemption will allow police alone to collect racial data: "What about the concern of many citizens that police practices need to be monitored for racial profiling? The racial privacy initiative would not allow such data to be kept."

Similarly, while permitting racial and ethnic classification of "medical research subjects and patients," the initiative bars the collection of data for population-based surveys that are the cornerstone of public health administration. And while there is a superficially charitable exemption for the Department of Fair Employment and Housing, that much of a given is rather severely constrained in that the department "shall not impute a race, color, ethnicity or national origin to any individual." In any event, this particular exemption "shall expire ten years after the effective date of this measure."

In fact, the Racial Privacy Initiative is not about protecting data from being misused; instead it effectively eliminates data collection at all. If enacted, it would continue a trend begun by Ronald Reagan and pursued by every Republican administration since: limiting the accountability of public institutions by making vital public information unavailable. In such a world, there can be no easy way to know whether Native American women are being sterilized at higher rates in public hospitals than other groups. One would not be able to determine whether public schools were tracking black students into remedial classes and white students into advanced placement. Documentation of ghettoization and other patterns of residential segregation would be magically wiped from census data.

With no impartial public archive of such data, the burden of compiling such statistics would fall either upon independent academics who would have to find funding for their studies on a project-by-project basis; or upon a cacophony of competing interest groups--a competition that no doubt will be more than skewed by better-funded conservative think tanks like the Manhattan Institute and the American Enterprise Institute.

Indeed, this initiative is not about "privacy" as most laypeople think of it. It is actually about privatizing racially based behavior. And privatized racism has been a dream of the far right since the first whites-only private schools sprang up in the wake of Brown v. Board of Education. Segregation is "private choice," a "social" problem, not a legal one, according to this logic. You can't force people to love you. Suing over discrimination is victimology. As long as the government doesn't force you to drink out of a separate water fountain or go to a separate school, then that is the limit of equal opportunity.

Eliminating official knowledge of race and ethnicity in the public sphere at first sounds like part of the same enterprise as eliminating Jim Crow laws. (Indeed, many California voters seem as confused about the meaning of the initiative as they were about Prop 209, which sounded to many as though it would lead to more inclusion rather than less.) In fact, however, "racial privacy" accomplishes little more than institutionalizing an official stance of denial and, in the process, eviscerates essential civil rights enforcement mechanisms. Californians may as well put those three little moral idiots, Hear-no-evil, See-no-evil and Speak-no-evil, in charge of remediation for discrimination.

In what has been one of the most effective manuevers of the right in recent years, defenders of the initiative have co-opted a good deal of the vocabulary of the civil rights community in a blizzard of definitional inversions. Ward Connerly insists that this measure will keep the state from "profiling" its citizens. If one accepts that to most Americans "profiling" connotes the unethical use of data to discriminate (as in Driving While Black), this conflation with the neutral act of data collection itself is tremendously misleading. By the same token, the name of Connerly's group, the American Civil Rights Coalition, would seem to imply a greater measure of protection for civil rights rather than lesser. I do worry that such studied reversals of terms will come to overtake the discourse as much as the term "quota" has displaced any public understanding of the actual meaning of affirmative action.

The publicly collected statistics we take for granted today show undisputed racial and ethnic disparities in every realm of American life. Any proposition that this gap is either not worth documenting--or, even more insidiously, is aggravated by the gathering of such knowledge--consigns us to a world in which "intelligence" is the exclusive preserve of unrestrained police surveillance. The collective ignorance with which we will be left will quite literally keep us from ever speaking truth to power.

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