Andrew Biviano: Haskell is wrong, county should reject efforts to thwart racial equity

Spokane County Prosecutor Larry Haskell would have you believe that racial equity is not permitted in our legal system. He is trying to convince our county commissioners that adopting racial equity as a goal of our criminal justice system would violate the Constitution and expose the county to lawsuits. The commissioners would be wise to ignore Mr. Haskell, because he is dead wrong. Racial equity is required by law, and the commissioners open themselves and the county to legal liability by openly rejecting it.

The Fourteenth Amendment to the Constitution does not call for equal treatment under the law, but rather “equal protection.” This is a key distinction: because we all face different challenges and barriers, many of us need different treatment in order to be equally protected. White Americans have never needed laws or litigation to be able to vote, get a job or buy a home, but this has not been true for African Americans and other people of color. We have needed laws and policies directed at helping disadvantaged groups in order to protect them equally. These laws include the Civil Rights Act, Voting Rights Act, Fair Housing Act, and Washington Law Against Discrimination.

It is critical that our leaders and the public understand that these laws do not simply require equal treatment that is blind to the ideas of equity and justice. The drafters of these laws recognized the truth expressed by author and scholar Kimberlé Crenshaw that “treating different things the same can generate as much inequality as treating the same things differently.” As a result, these laws forbid both “disparate treatment” as well as “disparate impact.” The ban on disparate treatment means that people need to be treated the same, regardless of race–what is often referred to as “equality.” But the prohibition of disparate impact goes much further: it makes it illegal to implement practices or policies that disproportionately harm members of a protected class (such as race, sex, and religion) even if the policy claims to treat people equally. This is what is meant by the term “equity.” It simply means that the outcome matters more than intent.

This makes absolute sense, as the outcome of our actions is the only true way to measure our success. What good is it if we outlaw overt racism but allow covert systemic racism to create the same results? If we are sincere in our desire to stamp out racism and prejudice in all its forms, we must get to the root of the systemic biases that cause it. These are found in policies – especially in criminal justice – that do not mention race but ensure outcomes that perpetuate and amplify racial injustices. These policies must end. We must have equity. The Constitution and laws of our nation demand it.

The county commissioners should also be advised that they can make the county taxpayers liable for any county policies and practices that lead to disparate racial impacts, even if they claim to be striving for equal treatment. The Supreme Court has made clear that counties can be held liable for the actions and decisions of their policymakers. The commissioners’ public decision to reject the principle of equity – one that had been agreed to by more 30 elected officials and members of the justice system – provides a strong basis for county liability. Mr. Kerns and Mr. French leave no question that the inequity and inequality that will result from their decision are the fault of the county’s top policymakers. Rather than avoiding lawsuits, they are strengthening racial discrimination lawsuits that may be brought against the county.

In this historic moment and opportunity to heal the gaping wounds that racism has afflicted on this nation for centuries, it is beyond dispiriting to see our elected officials take a stand against equity. It may also be found illegal and cost taxpayers greatly. It is time for all of us to demand that our leaders move us toward a more just society, not retreat from this chance to live up to the promise of this nation.

Andrew Biviano is an attorney in Spokane with practice areas in civil rights and discrimination law.