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.
Derek W. Black, Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge, 43 Conn. L. Rev. 503 (2010).