The application of rights language to questions of racial justice in a post-civil rights era has been problematic for at least three reasons. First, it has reduced questions of racial justice to the treatment of individuals at the expense of considering the massively disproportionate consequences of public policies on racial groups (e.g. the war on drugs; or housing/zoning policies). Second, this same individualistic focus has fueled arguments for “colorblind” public policies seeking to eliminate race as a relevant public policy consideration on the grounds that considerations of race in public policy are exactly what the civil rights movement sought to eliminate once and for all. Third, it is never clear exactly what rights might be relevant to questions of race and racial inequality once all forms of explicit discrimination by race in law and in economic life have been outlawed. Libertarian rights of noninterference do nothing to reduce racial inequality and if anything have become essential to supporting new de facto forms of segregation. Arguments for positive rights such as affordable housing or equal education are not widely supported and they are difficult to link explicitly to individuals based on their race.
If arguments about the effect of stigma on blacks are accurate (see Glenn Loury’s Anatomy of Racial Inequality, or my own efforts to make this case here (in long form) and here (in short form)), then one of the major problems facing blacks as a group in the United States is not first how they are treated, but more fundamentally how they are understood. I have argued that most of White America and even lots of Black America have divided blacks into two groups, the successful and the broken, and that, at least for most whites, black people are assumed to be broken until proven otherwise. That is, blacks as a group are still “suspect as such,” which ultimately amounts to still understanding them as inferior in general. White support for successful blacks is essential to white beliefs that racism has been dispelled from their minds even as whites fail to realize that thinking well of some black people has not required them to think well of black people as a group. Successful blacks are simply judged (for the moment at least) to be free of whatever forms of brokenness and inferiority are thought to lurk within blacks in general. The suspicion of brokenness, of some kind of inferiority, affects all blacks, but it is especially harmful to those struggling within low-income and low-opportunity communities. Their bad outcomes (educational, economic, interpersonal, or otherwise) are judged to be confirmations of their brokenness, not the consequences of racial injustice.
It would seem that stigma cannot be addressed through questions of rights. How one is treated (negative rights) or what one should receive (positive rights) do not speak to how one should be understood. Moreover, it certainly would seem impossible to enforce such rights as it would seem impossible to show that a given person has actually understood blacks as a stigmatized group. The effects of stigma are rarely explicitly admitted and the consequences of stigma manifest themselves in inaction (about matters of racial inequality) or in subtle forms (not believing that a black child can learn as well as nonblack children and so teaching that child differently) that often are really harmful only as they aggregate over time.
However, an understanding of rights as derived from a person’s worth (in a normative, not an economic sense) just might provide a way to understand a right to not being stigmatized. This idea of rights is developed in Nicholas Wolterstorff’s book Justice: Rights and Wrongs. I am just beginning to understand Wolterstorff’s argument, and it certainly will be a controversial argument for many people, as Wolterstorff argues that the fundamental worth of a person, and so the fundamental justification for rights, is derived from the worth of a person that results from that person being loved by God (the interesting problem for the non-theist who believes a person has intrinsic worth is figuring out where that worth comes from). For now, I only want to appeal to the general idea put forth by Wolterstorff that one has a right not to be treated in such as way that undervalues or “under-respects” one’s worth. It is the under-respecting part that has me excited. As Wolterstorff puts it, “one treats a human being with under-respect when the respect-disrespect import of one’s actions would only fit someone of lesser worth” (302). If blacks as a group are stigmatized, and if one is committed to a belief that one’s skin color is irrelevant to one’s worth (especially in terms of God’s love!), then those things that perpetuate stigma perpetuate an under-respecting of blacks as a group and of every black person in particular. This follows because the stigma attached to blacks results in the conclusion that blacks in general are of “lesser worth” than whites; they do not have the same claim to worth as whites.
Wolterstorff’s argument seems to open up a new kind of right that is both negative (no under-respect) and positive (full respect). Not only does one have rights to noninterference, one has rights to not being under-respected. Under-respecting wrongs blacks, and blacks, following Wolterstorff’s terms, have an “inherent” right not to be wronged in this way. [To be very clear, this application of Wolterstorff is my own. I have no idea if he would endorse it.]
So how might a black person’s right not to be stigmatized create any kind of obligation for me? It certainly will be very difficult to enforce an obligation for people not think in ways that stigmatize blacks. But it should be possible to argue that people not publicly affirm ways of thinking about racial inequality that stigmatize blacks. That is, blacks can insist that all people are obligated not to perpetuate stigma and obligated to repudiate such stigmatized thinking whenever it is affirmed (this need not mean that governments would be obligated to prevent such public articulations of stigmatized understandings of blacks; that is, governments need not be understood as the guarantors of every right a person has).
If it can be shown that some ways of understanding racial inequality inherently perpetuate notions of white supremacy and black inferiority (as I suggest that any understanding of racial inequality does when it includes claims of even partial responsibility for that inequality on the part of (usually poor) black people making bad choices) then we could conclude that blacks have a right to expect the repudiation of these perpetuations of white supremacy.
If I am correct that racial inequality is exclusively a matter of public and especially political concern, then it should follow that blacks a right to public articulations of this conclusion, especially by political leaders. The failure of such leaders to affirm this conclusion is an implicit participation in a way of thinking that stigmatizes blacks, and as such wrongs all black people. Blacks have a right to live in a political order that does not stigmatize them.
If the mere existence of racial inequality perpetuates stigma in a world not fully committed to public and political responsibility for eliminating that inequality, then blacks as a group and to a person have a right to demand the elimination of that racial inequality. If, as Wolterstorff argues, justice is respect for inherent rights, then working for justice in society requires working to eliminate all sources of racial stigma, and so working to eliminate all sources of racial inequality.
Maybe all of this is just to say that blacks have a right not to endure racist thinking and a racist political order. But even if it only does argue for these rather obvious conclusions, I think, the argument still might clarify in part what it means to endure racist thinking and to live in a racist political order. Living a life free of racism would then mean not enduring under-respect due to race in personal and public interactions, and it would also mean demanding that the public narrative about racial inequality not entrench such under-respect in social and political life.