'Race' Ipsa Loquitur: How Blind People Understand Race and Its Implications for Equal Protection

Abstract

14th Amendment Equal Protection jurisprudence offers stronger Constitutional protections to racial minorities because, in part, the basis of their discrimination is presumed to be fixed and visible, e.g. phenotype. This is what I term the ‘race’ ipsa loquitur trope in Equal Protection law, meaning that the moral, legal, and conceptual significance of race stems from a reductionist account that treats race as a visually obvious and self-evident marker of human difference that is exogenous and exists autonomously from any social, legal, or political process. Race is thought to speak for itself; it is what is seen. Critical Race Theorists have offered unparalleled insight into the social construction of race, challenging the longstanding presumption that race reflects natural categories of human difference by demonstrating the way racial meanings are produced by social, political, legal, and economic conditions. But less attention has been paid to a completely separate question: how do visual cues associated with race become socially (and therefore legally) salient? Are they, as Equal Protection jurisprudence largely assumes, merely self-evident triggers of group conflict that are visually obvious? This article is based on the hypothesis that the visual cues that have come to define race are not obvious in any objective sense, but capture our attention through constitutive social practices that treat race as a visually obvious part of the social world. As an empirical matter, this article explores the accuracy of the ‘race’ ipsa loquitur theory driving Equal Protection law by interviewing blind people about race. By collecting qualitative data from blind people about their understanding of and experiences with race, this approach is able to empirically isolate the significance of vision to race’s salience in critiquing the dominant theory of race in Equal Protection law. I find (1) blind people have as significant an understanding of race as anyone else and that they understand race visually, (2) this visual understanding of race stems from interpersonal and institutional socializations, and (3) these socializations are significant in shaping how they view themselves and interact with others. The findings highlight how visual understandings of race are encoded into individuals through iterative social practices that train people to think a certain way about the world around them - regardless of what that world actually looks like. These findings also raise serious questions about the appropriateness of the current approach to race embedded in Equal Protection jurisprudence. While well intentioned, it might limit broader discussions of what race is and, more importantly, may obscure the most effective way to use racial categorizations in a thoughtful, non-discriminatory manner.