In this article, I argue that the regular and recurrent examples of white people calling 911 on black people constitute a new sort of racially restrictive covenant – an updated version of the now outlawed racially restrictive housing covenants of the past – that work in a similar way by invoking the power of the state to construct and maintain “white spaces” where people of color are by default deemed suspect and out of place.
I argue first, that we need to consider how the legal framework of implicit bias actually has reinforced conservative approaches to racial justice, (culminating most recently in the cases of in Trump v. Hawaii (the Muslim travel ban) and Abbot v. Perez (racial gerrymandering)), by accepting the idea that explicit racism is largely a thing of the past.
Second, I elaborate how a more direct and explicit engagement with the present reality of racism has the potential to reinvigorate both liberal jurisprudence and liberal activism.
Third, focus on recent incidents such as Starbucks and Roseanne’s tweet to argue that we need to revisit, update, and extend the work of Jody Armour from the 1990s that uses the cases of Palmore v. Sidoti and Shelley v. Kraemer to consider how the state can be implicated in ratifying societal racism in ways the violate Equal Protection. I will further consider the need to shift from Armour’s frame of implicit bias to issues of explicit racism and apply this to situations such as the rising spate of 911 calls where private citizens, in effect, enlist the police to enforce their own personal discomfort at seeing black people who seem to be “out of place” in public spaces. This not only constitutes the state enforcing private racism but also amounts to a literal inversion of one of the original purposes of the Equal Protection clause which was enacted, in part, to protect newly freed black people from private vigilante mobs. Now, in these recent incidents we have the police being used, in effect, to enforce the racist attitudes of private vigilantes instead of protecting blacks from those attitudes.
I conclude that only by acknowledging the ways current racist practices such as the 911 covenant can we hope to understand and address the new and recurring manifestations of legal complicity in the perpetual of racial injustice in this country.