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Structural Inequality and the Law: part II


K. Sabeel Rahman (@ksabeelrahman) is Associate Professor of Law at Brooklyn Law School. 

In the 2015 case Texas v. Inclusive Communities Project (2014), the Court upheld the application of a disparate impact standard for judging violations of the Fair Housing Act, enabling advocacy groups to challenge urban development policies that (re)produced patterns of racial and economic segregation. In justifying this interpretation of the statute, Justice Kennedy offered in his majority opinion a brief account of the ways in which racial and economic segregation has persisted and been codified by a variety of legal and policy regimes, despite the formal elimination of de jure segregation.  Meanwhile, writing in dissent in the 2013 Shelby County v. Holder case where the Roberts Court struck down the preclearance protections of the Voting Rights Act, Justice Ginsburg provides in her opinion a lengthy exposition of the various “second-order” forms of voter suppression and discrimination, outlining how an apparently well-functioning democratic process in fact was riven by systemic patterns of discrimination and political inequality.

These glimpses are indicative of a growing awareness that social justice must be understood as a structural phenomenon encompassing a complex interplay of economic, racial, gender, and political dimensions. Many different legal and policy choices combine to create systemic forms of inequality and exclusion. As discussed in the previous post, one of the key ways these claims for greater inclusion and equity are precluded is by casting them as products of “natural” economic forces, not subject to human agency and alteration. However, even if structural forces are acknowledged to be within the scope of public redress, how to combat them is often viewed too narrowly. This post suggests that the remedies for structural inequities require a similarly structural approach.

Meliorist Versus Structural Remedies

Even if the structural dimensions of inequality are taken as given, a further fault line arises regarding how to conceptualize the appropriate remedy. Economic equity fundamentally turns on a deeper reform of what Joseph Fishkin calls the “opportunity structure.” Yet what this would look like remains up for debate.

Some policies that would help individuals facing structural inequalities would do so by helping an individual move within a given structure to a higher social or economic position. But they would not alter the structure that creates the hierarchies of subordination in the first place. For example, in a given labor market, increased education and individual skill-building might help some individuals secure higher employment. But such policies, even at scale, are unlikely to alter the background rules and disparities that make, for example, low-skill and low-wage work so precarious and insecure and unrewarding. Similarly, individual-level enforcement of anti-discrimination provisions might make it easier for some individuals to gain redress for instances of racial or gender discrimination, but more would need to be done to systematically uproot systemic patterns racial and gender discrimination.

Fishkin makes a similar distinction in his account, using the metaphor of the bottleneck. There are social and economic gateways that can help launch an individual from a lower socioeconomic position to a higher one: for example, admission to college, or moving to a high-growth and high-opportunity neighborhood. Some interventions can improve an individual’s condition by moving her through the bottleneck, such as affirmative action admissions procedures or targeted educational interventions, or housing voucher programs. But these are distinct from interventions that would dismantle or at least loosen the bottleneck itself. Think of this as the distinction between meliorist approaches to tackling structural inequality, and structural approaches.

This distinction is not always sharp, but it sketches out a spectrum of policy responses to structural inequality. Consider for example, the conventional meritocratic and competitive view of “equal opportunity.” On this view, social policy strives to ensure a fair competition for (scarce) goods and opportunities such that the most meritorious can secure access regardless of their starting point in life. This approach zeroes in on making competitive entry to key opportunities fairer—such as through access to quality schools and college admissions. Such a narrow focus leaves out broader questions, like what “merit” means, or why such opportunities are structurally so scarce and critical for success in the first place. It also means implicitly prioritizing a single pathway for economic well-being, rather than making possible a plurality of life plans.

The “fair competition” view of equal opportunity implicitly also codifies a distinction between the “deserving” and the “undeserving” poor: only those poor individuals who have “merit” can and should benefit from social policies meant to expand economic opportunity. This may seem unobjectionable, but the notion of an undeserving poor has long played a pernicious role in making our social contract and welfare systems unduly punitive and restrictive. Instead of remedying the problem of poverty and insecurity for all, the focus on merit leaves in place an underclass. At best, this approach may diversify the economic elite. But it maintains the disparity between elite and non-elite; providing the “equal opportunity to be unequal.”

Another common way of thinking about equal opportunity and the role of social policy focuses not on fair competition but on the problem of risk mitigation. Much of American social policy can be understood as mechanisms to insure individuals, families, and communities against various kinds of risks and economic shocks. This view of opportunity and social policy fares better than the fair competition view: it lacks the implicit value judgments about deservingness, and suggests a more universalized approach to policy. We are all vulnerable to risks, and social policy should serve to protect each of us from their most severe social and economic repercussions. Instead of identifying the most deserving of impoverished or insecure individuals to grant them more opportunities; an emphasis on risk shifts focus toward enabling all of us to live more secure and stable lives.

Yet many of the inequalities we face in today’s economy are not just a product of increased risk faced by poor families, contingent workers, and the like; rather they are products of deeper structural disparities in access to opportunities. As Iris Young and many others have suggested, disparities in opportunity are not just a product of raw or brute luck, but instead are the result of one’s social position, which itself is produced by an accumulation of policy choices in everything from housing and the geographic structure of the city to race and gender discrimination to the structure of the labor market.

Equal opportunity, in the end, is not about fair competition or risk mitigation; rather, it is fundamentally about freedom—the freedom “to do and become things we otherwise could not.” The risks, vulnerabilities, and barriers that families and individuals face in the market economy are not the product of forces of nature; rather, they arise from the ways in which we structure the market economy. Disparities in bargaining power and positional power between, for example, landlords and tenants, managers and workers, allocate insecurities and opportunities among the members of today’s society. Equality of opportunity, then, must also be understood as a project of expanding freedom from relations of domination, exploitation, exclusion—particularly the kinds of domination that can arise from diffuse systems and structures. Achieving equality understood as economic freedom thus requires something more than a narrow focus on opportunity, desert, risk, or even raw redistribution.

Economic freedom requires asking hard—and empirically-rich—questions about the ways in which our current economic structures work to include or exclude, to empower or subordinate. Responses must include, on the one hand, better protecting vulnerable communities and constituencies from structural subordination, and on the other, affirmatively expanding their capabilities and functionings, their agency and ability to live lives they value. Mitigating risk and investing in the education and capabilities of individuals are of course potential elements of a larger freedom-enhancing framework. But by themselves they can often be approached in an overly narrow way, ignoring the structural inequality at the heart of the problem.

This structuralist approach to economic freedom entails tackling the ways in which law and policy operate in the background to produce structural forms of concentrated private power, patterns of discrimination and segregation, and barriers that exclude access to foundational goods and services. For example, a structural response to economic exclusion might look to change the systemic pattern of racial and economic segregation produced by zoning, urban planning, and architecture. Economic opportunity can be expanded by dismantling the concentration of corporate power and the financialization of industries that together choke of the scope for innovation and dynamism, and depress wages. Economic freedom can also be promoted by a reinvestment in public goods—universal goods and services from healthcare to water to broadband that make economic and social membership and well-being possible.

Indeed, it is this structural quality of economic freedom and justice that is often so difficult to identify and pursue. For meliorist policy thinkers, structure may be part of the diagnosis, but changing structure is under-emphasized as part of the solution. By contrast, contesting structural inequality is a central theme in the many social movements today. The attempt to first politicize, and second transform, these political economic structures is a key focal point for feminist critiques of capitalism, revived literatures on racial capitalism, and the labor movement’s historical and more recent attention to how background structures produce worker precarity and lack of power. Following this more expansive, structural analysis will be key to constructing a viable law and political economy approach to inequality.

Author’s Note: This blog post is adapted from a forthcoming article, “Constructing and contesting structural injustice,” Critical Analysis of Law 5:1 (Spring 2018, forthcoming).