Until recently, allegations of racism in the public sphere have operated like first-degree murder charges do in courts of law—in order to establish such a charge, mainstream media often demanded proof of the alleged racist’s intent. Dictionary definitions have long tracked this blinkered view of racism. For decades, Merriam-Webster’s entry described racism as a “belief” of racial supremacy, or a program designed to put that belief into action. Because many people—and some judges—treat dictionary definitions as if they are legal prescriptions, accusations of racism have required proof of intent: a purposeful, race-based disparity in conduct or consequence. Without that, the accusation wouldn’t stick.
Thus, the legal framework for considering racial discrimination has largely echoed the dictionary’s narrow take on racism. The intent requirement was even written into the Supreme Court’s constitutional case law. And while the court recognized in Griggs v. Duke Power that the Civil Rights Act “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation,” the history of that 1971 ruling is measured predominantly by its erosion. As scholar Ibram X. Kendi summarized, “intent—not outcome—became the preferred proof of discrimination.” Ultimately, a requirement to show racist intent infected our legal instruments just as it lingered in our dictionaries.
But now the dictionary is finally changing. “It is necessary to scrutinize not only the truth of what we speak, but the truth of that language by which we speak it,” Audre Lorde once wrote. And as John McWhorter recently cataloged, thought leaders like Kendi have shifted our conversation around racism since last the dictionary was updated, focusing the language we speak on the disparate impacts of our social interactions and social constructs rather than on the motives foundational to them. Pushed to action by an email campaign from recent Drake University grad Kennedy Mitchum, Merriam-Webster last month recognized that its definition of racism is out of date. The dictionary announced, at last, that the “intent” element will be dropped from some entries to better accommodate references to “racial prejudice combined with systemic oppression.” Backed now by the authority of a dictionary reference, we can readily declare that a policy or paradigm is racist if it disproportionately brutalizes Black bodies, breaks Black families, or dims Black futures.
For lexicographers, this shift may seem incremental—a tweak to bring a once-less-common usage to the fore in order to reflect the broader modern dialogue. But to a lawyer, dropping the mental-state element from the checklist of required proof is a sea change. It profoundly affects how violations can be conceptualized and proved—as well as the kinds of remedies that can be crafted to redress the harms.
By way of illustration, consider the parallel history of environmentalism. Following the lead of popular efforts like Rachel Carson’s Silent Spring, the passage of pollution control laws like the Clean Air Act and the Clean Water Act in the 1970s helped mark a similar shift in conceptualizing environmental protection. The conversation about environmental harms moved away from a “who did what to whom” framework and toward a strict liability program that trained its focus on harmful conduct. Of course, the air and water acts still criminalize knowing violations and so still attend to the more intentional environmental crimes—dumping barrels or venting tanks in the dark of night. But those laws also predominately regulate behavior on a strict liability basis, attending directly to the consequences of harmful activities in the language of permitting requirements and emissions limitations.
This conceptual shift conferred at least three distinct advantages to those interested in working for environmental protection and in environmental law. First, harmful conduct becomes a lot easier to prove, both in the courtroom and the court of public opinion, when you don’t have to demonstrate intent. Prosecutors did not need show that facility operators meant to release toxins into their surrounding area—only that they did. And advocates aiming to curb the use of plastic bags did not have to prove that consumers meant to choke sea turtles when they put their groceries in single-use bags; it was enough that the bags did so to cast the action as socially impermissible.
For white America, perpetuating racist paradigms is like taking a plastic bag at the grocery store—you almost certainly do it, and you probably don’t get called out for it often. An understanding of racism that allows for strict liability applications can help skirt the defensive posturing that plagues discussions around racism and cut to the chase: Certain things are harmful whether you meant them to be or not—whether it’s how you ask questions when interviewing job applicants or where you chose to put your child through school. By sidelining the touchy subject of intent, it is easier for people to recognize their own role in systems that are entrenched, entangled, and harmful.
Second, focusing on the consequences makes it easier to see their aggregate impact. Olden-days environmental litigation focused on impacts to individuals, which meant proving a case with medical diagnoses and establishing proximate causes. Litigants seeking relief would have to trace molecules of a specific toxin from one company’s operations to one resident’s bloodstream—and then show that toxin was the straw that broke the resident’s immune defenses. We now are freed from always having to show that specific emissions caused a specific illness. It can be enough to show that pollution burdens nearby communities with increased—and intolerable—risks to their health and welfare.
Similarly, the harms of systemic or institutional racism can seem small when taken one at a time—a delayed license, a denied loan—but with a strict-liability language of racism, we can aggregate impacts to address the concerns of the system as a whole. A thousand paper cuts should not require a thousand lawsuits or a thousand separate complaints. Anti-racism advocates have long endeavored to leverage systemic impacts to win systemic reform. Now, perhaps, the language we use will better reflect their insight and the urgency of their message. We can, for example, better see the scourge of racist police brutality as a public health crisis and muster the tools of epidemiology to evaluate reform efforts. Indeed, separating racism from the will of a single actor helps how underscore racism itself—not just police brutality—is a crisis besetting every aspect of the public landscape.
Finally, the shift away from intent and toward consequence highlights that the work is without end. The pollution control statutes placed risk assessments in the hands of experts, and the laws put a timeline on reevaluating those risks in light of new evidence. As with chemical safety regulation, the study of racism progresses, evidence mounts, and what once seemed a low risk to communities may later be revealed an intolerable threat. Like environmental protection, civil equality is a means more than an end, a statement of vigilance rather than a description of circumstance.
Before Rachel Carson published Silent Spring, Long Island landowners couldn’t convince a court to stop the government from treating private property with DDT. In the decades since, public concern for pollution and the legal mechanisms to deal with it have evolved alongside each other substantially. Merriam-Webster’s coming amendment to the definition of racism illustrates the Carson-like power that voices like Kimberlé Crenshaw’s and Ibram Kendi’s have wielded in the anti-racism conversation. That is cause for cautious optimism. Here’s hoping that, with new credentials, their language will guide the conversation in boardrooms and classrooms—and perhaps courtrooms—in the decades to come.
The views expressed are the author’s own and should not be attributed to his employer or his clients.
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