Article | Constitutional Law
Rethinking Racial Entitlements: From Epithet to Theory
by Tristin K. Green*
From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 217 (2020)
Keywords: Racial Entitlements, Voting Rights Act, Affirmative Action, Title VII
From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.
In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.
Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.
*. Professor of Law, University of San Francisco School of Law. This Article benefited from participation in the UCLA Critical Race Studies Symposium: Whiteness as Property (2014), where I first presented the idea, and the panel on Law, Discrimination, and Constructions of Inequality at the Annual Law and Society Meeting in Mexico City (2017), as well as from presentations at the University of Washington School of Law and USF School of Law. I also owe thanks to Rachel Arnow-Richman, Angela Harris, Peter Honigsberg, Osamudia James, Yvonne Lindgren, Orly Lobel, Rhonda Magee, Gowri Ramachandran, Jalen Russell, Leticia Saucedo, Michelle Travis, and Deborah Widiss for feedback on drafts. Most of all, thanks to Camille Gear Rich for intense re-tooling and inspired conversation about racial entitlements and more.