//  8/25/17  //  Commentary

President Donald Trump’s supporters and detractors agree that the President has little regard for norms or decorum.  But the President’s response to Charlottesville touched on a norm that even some fans of his norms-defying behavior couldn’t stomach: the norm against overt racism.

This norm has been so entrenched for decades that some have argued it actually functions as an impediment to remedying racial discrimination. The Court’s equal protection jurisprudence requires plaintiffs who are challenging a facially neutral government policy (i.e., one that does not explicitly differentiate people on the basis of race) to establish that the policy was enacted for a discriminatory purpose.  In a 1997 Stanford Law Review article, Reva Siegel posited that equal protection jurisprudence has evolved in response to disestablishing particular forms of racial hierarchy and discrimination.  Siegel argued that the tripartite civil-political-social rights distinction of the Plessy v. Ferguson era “offered a framework within which white Americans could disestablish slavery, guarantee the emancipated slaves equality at law, and yet continue to justify policies and practices that perpetuated the racial stratification of American society.”  She wrote that “[j]ust as the interpretation of equal protection offered in Plessy emerged from the Court’s efforts to disestablish slavery, the interpretation of equal protection we inherit today emerged from the Court’s efforts to disestablish segregation” by constraining only “explicitly race-based forms of state action” while “authoriz[ing] certain forms of state action that perpetuate racial stratification”—namely, policies that don’t discriminate on their face, but have discriminatory effects.

Personnel Administrator v. Feeney established a demanding definition of the kind of “discriminatory purpose” that plaintiffs challenging facially neutral policies must show.  Feeney explained that a policy has a “discriminatory purpose” if it was enacted “at least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an identifiable group.”  Siegel’s argument—in 1997, we emphasize—was that this “discriminatory purpose” requirement failed to protect against discrimination because the norm against overt racism was so strong that plaintiffs could almost never mount the evidence necessary to establish a discriminatory purpose.  In other words, the norm against overt racism has been firmly entrenched for decades.  Only fringe actors would ever overtly defend white nationalists or espouse overtly racist ideas.

Perhaps nowhere has Trump’s disregard for norms been more apparent than in his support of white nationalists in the wake of Charlottesville.  On a recent episode of the New York Times podcast The Daily, Derek Black, a former white nationalist, spoke to the President’s stunning breach of the norm against overt racism during his disastrous press conference:

The Tuesday remarks took my breath away.  To begin with, I think it’s very important to understand that from the perspective of white nationalists, it’s basically the definition of the movement that you’re working against the establishment.  And that’s what every white nationalist event is.  It is very easy for the local politicians to condemn it, and you expect them to condemn it, and there’s nothing else that you would dream might happen.  And so that’s the context.  And all the usual condemnations came from everybody else—people in Congress and governors and mayors and people who just wanted to get in their condemnation because everybody knows it’s extremely easy to condemn a white nationalist rally.  Then on Saturday, it was weird that he didn’t. Everybody [in white nationalist circles] took that as a huge victory.  

But Tuesday, I was sitting in a coffee shop and I thought basically the news from this was done, when I read that he had come back and he had said there were good people in the white nationalist rally and he salvaged their message. . . . The message that they were trying to get out was that tearing down Robert E. Lee’s statue is an assault on white culture, so if you think tearing down the statue of Robert E. Lee is the wrong choice, then these are your guys, these are the people who are willing to say it. But then amidst all of the violence and chaos, I think that got lost.  You’re not going to follow these people even if you believe that, and in [President Trump’s] message saying that these are good people because they are fighting for something that a lot of people believe in, he salvaged the message that they wanted to spread, which is that ‘if you believe this too, and maybe you’re on the edge about whether this is a fringe movement or not, Donald Trump thinks we’re fine.’ I don’t think the whole world reads it that way but within the white nationalist movement and anyone who is thinking ‘maybe this might be a movement for me,’ suddenly being at that rally becomes a historical moment.  What they wanted to do was blow apart that context—to say that if you think Robert E. Lee’s statue should stay up, then there’s no distinction between what you believe and what a white nationalist believes.  And it felt like he was agreeing with them.

I think [the President’s press conference on] Tuesday was the most important moment in the history of the modern white nationalist movement. It’s impossible to say what will happen in the future, maybe nothing.  But if you were on the fence about whether you should get involved in this movement or not, the President’s okay is the biggest thing that’s ever happened.

I don’t want to be alarmist and say this is a movement that is going to take over the world, but it’s more precarious now than any point in my life on whether this thing as a movement and as a dangerous ideology grows because we don’t seem to be as clear as we once were that we have to keep this suppressed, that we cannot let this be who we are.

 

Black made the same argument in a New York Times piece over the weekend, writing, “My dad [white supremacist leader Don Black] often gave me the advice that white nationalists are not looking to recruit people on the fringes of American culture, but rather the people who start a sentence by saying, ‘I’m not racist, but …’”

Trump’s press conference was a shocking breach of the norm against overt support of white supremacists.  According to the New York Times, “members of the president’s staff, stunned and disheartened, said they never expected to hear such a voluble articulation of opinions that the president has long expressed in private.” (Emphasis ours.)  That is, even his staff didn’t expect him, the Chief Norms Defier, to break the norm against the overt articulation of racism.  (As if it wasn’t horrifying enough that he was expressing support for white nationalism in private.)

Norms are just that—norms.  Norms become norms because they’re viewed as inviolable based on history, practice, and experience.  And they cease to become norms when they’re not viewed or treated that way.   Emily Bazelon wrote eloquently on the fragility of norms: “We say that laws are ‘broken’—a definitive act of rupture.  Norms merely erode, slowly, amid argument and equivocation about the significance of a breach, until they’ve been destroyed.” 

Already Trump’s breach of the norm against overt racism has inspired others to equivocate and defend his breach.  Polls found that an astounding 67% of self-identified Republicans approved of the President’s comments.  Those numbers make it hard to believe that, in the future, espousing overt racism would be viewed as disqualifying by Republican voters.  That, in turn, lessens the political incentives that may lead candidates to refrain from espousing explicitly racist views.  There are, to be sure, more than enough other reasons to refrain from espousing and enabling racism.  But at least one person (the President) has suggested that the only reason to condemn neo-Nazis is to receive public praise for doing so.  

Trump has also undermined our ability to police the norm against overt racism in the future.  Many officials refused to condemn the President for supporting white nationalism.  Many others quickly shifted from criticizing the President to publicly fawning over him after he delivered a speech about Afghanistan.  Their lack of commitment to the norm against overt racism undermines their credibility to criticize another official for supporting or engaging in overtly racist behavior in the future. 

Trump’s breach of the norm against overt racism may have even caused some to espouse similar views.  Trump’s lawyer John Dowd followed the President’s comments by circulating an email espousing the same white nationalist talking points that Robert E. Lee and George Washington are indistinguishable.

Trump’s refusal to condemn racism has also emboldened white nationalists, who view Trump’s post-Charlottesville remarks as a huge victory for their cause.  Despite the violence that white nationalists caused in Charlottesville, they were able to secure a major victory—Trump’s salvaging of their message, as Derek Black put it.  Bolstering the white nationalist cause could enable more racist violence in the future.  White nationalists were able to get the President of the United States to advance their message immediately after their members terrorized a city, killed a woman, beat a black man with a pipe, and injured many others.  Their success in spite of that violence may reduce their incentives to take measures to prevent violence in the future.


Still, it’s not too late to defend the norm, or to rebuild it.  Trump’s norms-defying speech in Arizona actually may provide some evidence that the norm against overt racism still has some force.  At the rally, Trump read the statements he made about Charlottesville in an effort to show that “the words were perfect.”  But when he read his statements, he left out the most controversial part of the first statement—the infamous “many sides” remarks that equated the counter-protesters with white supremacists, neo-Nazis, and the KKK.  In doing so, Trump implicitly recognized that those particular words were not, in fact, “perfect,” and that maybe, just maybe, he should not have embraced the white nationalist rhetoric and cause.  Of course, in the same speech, Trump also belligerently signaled his support for Sheriff Joe Arpaio, the man who was convicted of ignoring a federal court order that directed Arpaio to stop conducting unconstitutional detentions and searches of Latinx communities and undocumented persons.  But Trump’s revision of his Charlottesville remarks is a small indication that something of a constraint remains.  It provides all the more reason for everyone—not just a few dozen of the hundreds of Republican congresspersons—to speak up and defend the norm against overt racism, which twenty years ago seemed unbreakable.


Key Context for Trump's Rhetoric About Immigrants

5/17/19  //  In-Depth Analysis

President Trump's rhetoric draw upon a familiar narrative that pathologizes immigration and immigrant reproduction as a threat while protecting and supporting the nation’s “good” mothers, families, and neighborhood

Yvonne Lindgren

UCSF Law School

Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More

5/16/19  //  Uncategorized

This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Courts, Law, and Social Change: A Response to Litman

5/15/19  //  In-Depth Analysis

Courts are important, but they are not the only sun around which all other entities revolve and from which they gain their light

Courtney Cahill

FSU College of Law