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Stephanie M. Wildman
Excerpted from: Stephanie M. Wildman, THE PERSISTENCE OF WHITE
PRIVILEGE , 18 Washington University Journal of Law and Policy 245-
264, 258-264 (2005)(92 Footnotes omitted)
Audiences at presentations and lectures about privilege frequently
ask, "What does privilege have to do with law?" The fact that any
analysis of privilege has been omitted historically from legal
reasoning does not mean it could not be a useful lens, perhaps more
useful than discrimination, for viewing fact patterns. The
socio-cultural factors, discursive practices, patterns of behavior,
and thinking patterns created by language have resulted in an
absence of an awareness of privilege in legal arguments. Courts'
failure to recognize the privileging dynamic and to include it in
legal analysis further perpetuates that privilege.
Court decisions have recognized privilege without naming it as such.
For example, in Sweatt v. Painter, one of the legal building blocks
that led to the decision in Brown v. Board of Education, Thurgood
Marshall and the lawyers who worked with him tackled inequality and
segregation in legal education. Heman Marion Sweatt, who was African
American, applied for admission to the University of Texas Law
School. The school denied his application because it admitted only
white students. The Court acknowledged the potential argument that
no denial of equal protection had occurred because, just as Texas
excluded African-American students from the University of Texas, it
excluded white students from the School of Law of the Texas State
University for Negroes, a black law school created in response to
the litigation. In Sweatt, the Court stepped out of the traditional
legal liberalism, "equal treatment" paradigm. The Court rejected the
argument that excluding whites from an all black school paralleled
excluding blacks from a white school. Rather the Court said that
argument "overlook[ed] realities." In Sweatt, the Court identified
tangible and intangible factors that were important to a quality
education, factors that related to privilege. Although the Court did
not use the term privilege, it recognized its existence in the form
of tangible factors, like faculty, courses, and library, and
intangible factors such as faculty reputation, administration
experience, alumni influence, school tradition, and prestige. That
recognition of privilege has been largely absent in post-Brown
jurisprudence. The absence of a privilege analysis in law can result
in the perpetuation of injustice, as occurred in the case based on
the following facts. In March 1995, Denise Arguello and her family,
including her father Alberto Govea, stopped to purchase gas at a
Conoco gas station in Fort Worth, Texas. After her husband pumped
the gas, Ms. Arguello and her father entered the station's
convenience store to pay for the gas and to purchase beer. They
waited in line while Cindy Smith, a clerk, helped other customers.
Fifth Circuit Judge Jerry E. Smith summarizes the testimony about
what happened next:
Arguello testified that Smith was rude to her when she reached the
counter and that her demeanor was less friendly than it had been
with the customers she had previously served. After Arguello
presented her credit card as payment, Smith requested
identification. Arguello testified that Smith singled her out by
demanding that she provide identification; Smith contends that she
requested identification because Arguello was attempting to buy
beer.
Arguello, an Oklahoma resident, presented Smith with her valid
Oklahoma driver's license. Smith initially refused to accept it,
claiming she could not take an out-of-state license, but she
eventually accepted it and completed the transaction. During
Arguello's purchase, Govea became increasingly frustrated with the
manner in which Smith was treating his daughter. Consequently, he
left the beer he had intended to purchase on the counter and walked
out of the store.
After Smith completed Arguello's sale, the tension between them
escalated into a confrontation. Arguello testified that Smith began
shouting obscenities at her and making racially derogatory remarks.
[According to the trial court memorandum opinion Arguello alleged
that "Smith referred to her as a 'f* * * ing [sic] Iranian Mexican
bitch."' Arguello began to leave with her purchase, but realized
that she had the wrong copy of the credit card slip and approached
the counter again. After another argument, Arguello and Smith
exchanged copies. As Arguello walked away the second time, Smith
shoved a six-pack of beer off the counter and onto the floor.
Plaintiffs testified that after Arguello left the store, Smith began
screaming racist remarks over the intercom. At the same time, Smith
laughed at Arguello and her family and made several crude gestures.
Govea and other family members telephoned Conoco from a payphone
outside the store to lodge a complaint. During that telephone
conversation, the Conoco official indicated that he wanted to know
the name of the clerk in question. When Govea attempted to re-enter
the store to determine Smith's name, Smith locked him out while
laughing and making crude gestures. Arguello and Govea sued claiming
race discrimination under 42 U.S.C. § 1981. A jury decided the case
in their favor, but the district court granted Conoco's motion for a
judgment as a matter of law. The Fifth Circuit affirmed the district
court ruling in favor of Conoco. The Fifth Circuit began its
decision by reviewing the elements of a § 1981 claim:
[A] plaintiff must establish "(1) that she is a member of a racial
minority; (2) that [the defendant] had intent to discriminate on the
basis of race; and (3) that the discrimination concerned one or more
of the activities enumerated in the statute." The court acknowledged
no dispute existed over plaintiffs' status as racial minorities and
that the evidence had been sufficient to create a jury question as
to whether they had suffered discrimination during their visit to
defendant's store. The court stated: "this case turns on the third
element, namely, whether Smith's conduct implicated rights
guaranteed by § 1981." Fifth Circuit law for establishing a denial
of § 1981 rights in the retail setting requires evidence of an
attempt to contract that was thwarted by the defendant merchant. The
purchase must be thwarted, not merely deterred by the merchant. The
Fifth Circuit stated that because Govea voluntarily left the beer on
the counter and exited the store without trying to buy it, the clerk
Smith did not prevent Govea from making the purchase. The court
similarly found Arguello without remedy because she did
"successfully complete the transaction." Plaintiffs had argued for a
broader interpretation of the statute that included "the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship." The court declined to follow this
proposed broader application. Rather, it distinguished case law
involving both discriminatory service in restaurants and clubs and
other cases concerning discriminatory prepayment or check-writing
policies. The lack of outrage surrounding the result illustrates
another way that privilege operates. The decision does not merely
reflect the view of an aberrational circuit court ignored by the
Supreme Court in its denial of certiorari; the case also becomes
precedent, setting the terms for appropriate future behavior. How
will the general counsel of Conoco advise employees to act in the
future? What advice might corporate counsel have given to employees
if the result had come out differently? This decision permits
subordination and abuse to continue without redress or even
acknowledgment that it was wrong. That continuation reinscribes the
white privilege that made the conduct and ensuing judicial decision
possible. White privilege enabled the judges to cast Mr. Govea's
transaction as a voluntary withdrawal from purchasing beer. Most
likely, the judges had been to convenience stores much like this
one, but they probably had not been welcomed with racial epithets.
Life lived in the white comfort zone made it easy for judges to miss
the injustice. The judges likely experienced their own convenience
store visits as individuals. As individuals they were unable to see
the group identification that represents the lived reality for
non-whites. That reality means not only facing this kind of
harassment but also never knowing when it will strike as one goes
about the business of life. That fear of a world gone awry, like a
rug pulled from under one's feet, has not been part of the white
comfort zone. The push to colorblindness further supports law
operating within these cultural practices to ignore the racialized
reality in which the transaction took place. The judicial form of
"taking back the center" maintains the status quo that led to the
injustice.
Until law and the legal system address scenarios like that faced by
Ms. Arguello and Mr. Govea, subordinating practices will continue.
This case suggests the limits of antidiscrimination law, which does
seem fairly useless if its scope cannot comprehend the injustice
apparent in this situation. Reflecting on the inexplicable
unfairness of key judicial decisions, Jerome Culp asked:
How do you defend the tests in Washington v. Davis, the decision in
Bowers, or the rule in Korematsu, the failure to apply prior
principles in McCleskey, or the reasoning in Shaw v. Reno? He
answers his question, "The court ultimately simply responds that we
the white majority have the power to do what we want in these
cases." He reminds us that white judges, who do not face the same
risk in making contracts as the Arguello family, have the power,
reinforced by white privilege, to ignore the non-privileged reality.
This failure to recognize privilege results in injustice like the
Arguello case.
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