Regarding Will Sutton’s column on racial profiling, which recounts instances of blacks’ (himself included) offers to take group photos of whites being declined, and of a white woman opting not to sit next to a black man on a bus:
I have been practicing discrimination law, mostly employment-related, for over 30 years. Our federal and state legislators — whom we assume chose their words very carefully — outlawed discrimination because of any protected trait: race, color, nationality etc. “Because of” means that for “disparate treatment” discrimination to be illegal, it must have been intended by the discriminator as a decisive reason why he or the company took the action it took.
Any lawyer (especially the criminal bar) knows that a human’s “intent” — what was in his or her mind at the precise moment of deciding — is virtually impossible to demonstrate without his or her admission, orally or in writing, that “I/we hate that no good ______.” (Here fill in the despised minority.)
Now, because bigots are usually sneakier, discriminatory intent is not so easy to prove — to demonstrate what was in a person’s mind at the precise moment of deciding — and our courts have adopted a fairly intelligent, logical scheme to prove intent, known as the McDonnell Douglas test. It applies to the “disparate treatment” of an individual, who must touch every base of a four-part analysis before discriminatory intent can be established.
Much to the dismay of the woke (who see discrimination in any slight by any white male against any member of our new rainbow world) and of blacks (many of whom see discrimination and slavery residue in any slight by anyone), the First Amendment guarantees every private person, in private interactions, to diss anyone even if it is because he or she is black, Arab, Jew, etc. (excluding, of course, “hate crimes”). It may be woefully un-woke, but Big Brother has not (yet) decided to put every white male on trial to decipher his actual intent in slighting another person. So the man on the street can snub anyone for the right reason, the wrong reason, no reason, or any reason. Who is going to police every person’s preference of one over another?
Well, apparently Sutton. He has leapfrogged this entire analysis and imputed racial animosity to the whites he has skewered. In essence, he has read their minds and concluded that what was in their minds at the precise moment of their decisions was racial profiling. Maybe so. But their actual intent will thankfully remain private, protected from public scrutiny, a closed book.
Who’s racial profiling now, Mr. Sutton? Perhaps you might distribute this letter to your essay contestants.
Michael McGrath Duran Sr.