The Irony Of Proving Discrimination
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Currently America courts require plaintiffs alleging discrimination to not only prove the existence of present day discrimination but to also prove the "discriminatory intent." This dissertation contains two applications of the theory of unconscious discrimination as it reveals the difficulty of prevailing in discrimination cases. The assumption applied is that policy-makers use theories that dismiss or render invisible the presence of subtle discrimination. This perpetuates the problem and hinders its adequate address. Since so many people suffer because of discrimination's invisible-yet present existence, measures must be taken to unveil the remedy this subtler form of discrimination. In this dissertation, I attempt to pull together a variety of eclectic theories about racism (e.g. critical race theory (CRT), unconscious theory, the realist perspective, political economy/Marxism, transparency theory) into a single synthetic framework for the purpose of honing in on why policy makers are striking down affirmative action laws. My unique contribution to the literature is my attempt to synthesize the literature into the contextual, conceptual and subconscious typology to shed light on the interplay (and impact) of "unconscious theory" during the development of social policy. The central inquiries to be addressed in this dissertation are: (1) What makes discrimination hard to see or acknowledge and (2) Why are policy-makers seemingly blind to discrimination in spite of its presence? I attempt to answer these questions by: (1) drawing on existing literature to argue that there are prevailing economic, social, cultural and psychological factors that may contribute to policy-makers' blindness to the phenomenon called discrimination, (2) using Concrete Works vs. the City and County of Denver as a case study to illustrate the court's stance on what constitutes adequate proof of the existence of present day discrimination (Cohn 1999): and then using the Urban Institute and Department of Justices' Nationwide Disparity Study to respond to criticisms and flaws of the Denver's. Disparity Study cited by the justices to have caused the negative judgment against the City and County of Denver, and (3) examining majority and dissenting opinions of Supreme Court Justices' rulings on six precedent-setting cases regarding affirmative action policy to explore value perspectives of the decision makers and check for the presence of the transparency phenomenon to illustrate this blindness in setting anti-discrimination policy. The research suggests that these questions can be answered by focusing on unconscious conditioning, a term borrowed from Richard Delgado (2001), which manifests from what I categorize in this dissertation as three points of influence--contextual, conceptual and subconscious actions. This dissertation hypothesis sets out to test one prevailing thought: Unconscious conditioning, which occurs throughout the life experiences of white Americans, makes it more difficult to acknowledge the existence of discrimination. This inability to recognize the persistence of discrimination, compromises some white American's ability to appreciate the need for or credibility of programs such as Affirmative Action policy. This coupled with the irrepressible nature of discrimination makes it very difficult to prove its existence.