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Stephanie M. Wildman

Excerpted from: Stephanie M. Wildman, THE PERSISTENCE OF WHITE PRIVILEGE , 18 Washington University Journal of Law and Policy 245- 264, 258-264 (2005)(92 Footnotes omitted)/br />
Audiences at presentations and lectures about privilege frequently ask, "What does privilege have to do with law?" The fact that any analysis of privilege has been omitted historically from legal reasoning does not mean it could not be a useful lens, perhaps more useful than discrimination, for viewing fact patterns. The socio-cultural factors, discursive practices, patterns of behavior, and thinking patterns created by language have resulted in an absence of an awareness of privilege in legal arguments. Courts' failure to recognize the privileging dynamic and to include it in legal analysis further perpetuates that privilege.

Court decisions have recognized privilege without naming it as such. For example, in Sweatt v. Painter, one of the legal building blocks that led to the decision in Brown v. Board of Education, Thurgood Marshall and the lawyers who worked with him tackled inequality and segregation in legal education. Heman Marion Sweatt, who was African American, applied for admission to the University of Texas Law School. The school denied his application because it admitted only white students. The Court acknowledged the potential argument that no denial of equal protection had occurred because, just as Texas excluded African-American students from the University of Texas, it excluded white students from the School of Law of the Texas State University for Negroes, a black law school created in response to the litigation. In Sweatt, the Court stepped out of the traditional legal liberalism, "equal treatment" paradigm. The Court rejected the argument that excluding whites from an all black school paralleled excluding blacks from a white school. Rather the Court said that argument "overlook[ed] realities." In Sweatt, the Court identified tangible and intangible factors that were important to a quality education, factors that related to privilege. Although the Court did not use the term privilege, it recognized its existence in the form of tangible factors, like faculty, courses, and library, and intangible factors such as faculty reputation, administration experience, alumni influence, school tradition, and prestige. That recognition of privilege has been largely absent in post-Brown jurisprudence. The absence of a privilege analysis in law can result in the perpetuation of injustice, as occurred in the case based on the following facts. In March 1995, Denise Arguello and her family, including her father Alberto Govea, stopped to purchase gas at a Conoco gas station in Fort Worth, Texas. After her husband pumped the gas, Ms. Arguello and her father entered the station's convenience store to pay for the gas and to purchase beer. They waited in line while Cindy Smith, a clerk, helped other customers. Fifth Circuit Judge Jerry E. Smith summarizes the testimony about what happened next:

Arguello testified that Smith was rude to her when she reached the counter and that her demeanor was less friendly than it had been with the customers she had previously served. After Arguello presented her credit card as payment, Smith requested identification. Arguello testified that Smith singled her out by demanding that she provide identification; Smith contends that she requested identification because Arguello was attempting to buy beer.

Arguello, an Oklahoma resident, presented Smith with her valid Oklahoma driver's license. Smith initially refused to accept it, claiming she could not take an out-of-state license, but she eventually accepted it and completed the transaction. During Arguello's purchase, Govea became increasingly frustrated with the manner in which Smith was treating his daughter. Consequently, he left the beer he had intended to purchase on the counter and walked out of the store.

After Smith completed Arguello's sale, the tension between them escalated into a confrontation. Arguello testified that Smith began shouting obscenities at her and making racially derogatory remarks. [According to the trial court memorandum opinion Arguello alleged that "Smith referred to her as a 'f* * * ing [sic] Iranian Mexican bitch."' Arguello began to leave with her purchase, but realized that she had the wrong copy of the credit card slip and approached the counter again. After another argument, Arguello and Smith exchanged copies. As Arguello walked away the second time, Smith shoved a six-pack of beer off the counter and onto the floor.

Plaintiffs testified that after Arguello left the store, Smith began screaming racist remarks over the intercom. At the same time, Smith laughed at Arguello and her family and made several crude gestures. Govea and other family members telephoned Conoco from a payphone outside the store to lodge a complaint. During that telephone conversation, the Conoco official indicated that he wanted to know the name of the clerk in question. When Govea attempted to re-enter the store to determine Smith's name, Smith locked him out while laughing and making crude gestures. Arguello and Govea sued claiming race discrimination under 42 U.S.C. � 1981. A jury decided the case in their favor, but the district court granted Conoco's motion for a judgment as a matter of law. The Fifth Circuit affirmed the district court ruling in favor of Conoco. The Fifth Circuit began its decision by reviewing the elements of a � 1981 claim:

[A] plaintiff must establish "(1) that she is a member of a racial minority; (2) that [the defendant] had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute." The court acknowledged no dispute existed over plaintiffs' status as racial minorities and that the evidence had been sufficient to create a jury question as to whether they had suffered discrimination during their visit to defendant's store. The court stated: "this case turns on the third element, namely, whether Smith's conduct implicated rights guaranteed by � 1981." Fifth Circuit law for establishing a denial of � 1981 rights in the retail setting requires evidence of an attempt to contract that was thwarted by the defendant merchant. The purchase must be thwarted, not merely deterred by the merchant. The Fifth Circuit stated that because Govea voluntarily left the beer on the counter and exited the store without trying to buy it, the clerk Smith did not prevent Govea from making the purchase. The court similarly found Arguello without remedy because she did "successfully complete the transaction." Plaintiffs had argued for a broader interpretation of the statute that included "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." The court declined to follow this proposed broader application. Rather, it distinguished case law involving both discriminatory service in restaurants and clubs and other cases concerning discriminatory prepayment or check-writing policies. The lack of outrage surrounding the result illustrates another way that privilege operates. The decision does not merely reflect the view of an aberrational circuit court ignored by the Supreme Court in its denial of certiorari; the case also becomes precedent, setting the terms for appropriate future behavior. How will the general counsel of Conoco advise employees to act in the future? What advice might corporate counsel have given to employees if the result had come out differently? This decision permits subordination and abuse to continue without redress or even acknowledgment that it was wrong. That continuation reinscribes the white privilege that made the conduct and ensuing judicial decision possible. White privilege enabled the judges to cast Mr. Govea's transaction as a voluntary withdrawal from purchasing beer. Most likely, the judges had been to convenience stores much like this one, but they probably had not been welcomed with racial epithets. Life lived in the white comfort zone made it easy for judges to miss the injustice. The judges likely experienced their own convenience store visits as individuals. As individuals they were unable to see the group identification that represents the lived reality for non-whites. That reality means not only facing this kind of harassment but also never knowing when it will strike as one goes about the business of life. That fear of a world gone awry, like a rug pulled from under one's feet, has not been part of the white comfort zone. The push to colorblindness further supports law operating within these cultural practices to ignore the racialized reality in which the transaction took place. The judicial form of "taking back the center" maintains the status quo that led to the injustice.

Until law and the legal system address scenarios like that faced by Ms. Arguello and Mr. Govea, subordinating practices will continue. This case suggests the limits of antidiscrimination law, which does seem fairly useless if its scope cannot comprehend the injustice apparent in this situation. Reflecting on the inexplicable unfairness of key judicial decisions, Jerome Culp asked:

How do you defend the tests in Washington v. Davis, the decision in Bowers, or the rule in Korematsu, the failure to apply prior principles in McCleskey, or the reasoning in Shaw v. Reno? He answers his question, "The court ultimately simply responds that we the white majority have the power to do what we want in these cases." He reminds us that white judges, who do not face the same risk in making contracts as the Arguello family, have the power, reinforced by white privilege, to ignore the non-privileged reality. This failure to recognize privilege results in injustice like the Arguello case.