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Racial disparities remain a disturbing fact of American life but whether those disparities are the product of discrimination remains deeply contested. This is an important question because as a society we are committed to remedying discrimination but are significantly more conflicted over addressing racial disparities that are not tied to discrimination. This essay explores the question of how we can determine when statistical disparities are the product of discrimination, and relies on two areas where the presence of racial disparities are incontrovertible – police automobile stops and school discipline. Based on a large number of studies, there is little question that African-American drivers are stopped and searched more frequently than whites, even though contraband is found more commonly on white drivers. Similarly, based on studies dating to the 1970s, African-American students are suspended and expelled at rates that are generally three times as high as white students, and there is little reason to believe that the disparities are solely explained by the behavior of African-American students. After refuting the nondiscriminatory explanations that are often offered to justify the disparities, the last part of the essay urges policymakers to treat repeated patterns of behavior as intentional, as opposed to implicit, discrimination, and offers a critique of the recent turn to implicit bias.

GW Paper Series

GWU Law School Public Law Research Paper No. 2016-19; GWU Legal Studies Research Paper No. 2016-19

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