There’s no question that systemic racism existed in this country in the form of slavery, Jim Crow laws, and the like. However, all forms of systemic racism have been made illegal since the 1960s. Systemic racism does not exist in America today. That’s not to say there are no racists left in America. Surely there are, but they are few in number. To say systemic racism no longer exists in America is to say that racism is no longer embedded in society’s systems. There are no institutions or laws that are explicitly or implicitly based on racist ideology, nor policies that treat people differently based on their race.

Many disagree with this assessment. They will agree that there are no institutions, laws, or policies that explicitly treat people differently based on their race (racism proper), but they argue that racism is still implicit in our institutions, law, and policies as evidenced by racial disparities in outcome. Black people are arrested at higher rates, have a higher incarceration rate than whites, earn less income than whites, etc.

While such racial disparities could be the result of implicit systemic racism, they could also be due to other factors as well. Racism must be proved, not assumed. If the racial disparities can be explained by differences in personal choices or behaviors, then there is no reason to think racism plays any major factor.

Let’s consider laws for a moment. If we find that there are racial disparities when a particular law is enforced, it could be the result of racism. Perhaps the law is prima facie racist. However, if the wording of the law does explicitly discriminate based on race, then the law is not racist on its face. It is race-neutral. But, perhaps those who passed the law had an implicit racist intent for passing the law. They knew it would adversely affect one race over another. It would be difficult to demonstrate this, however. Not only would you have to show that the legislators knew the law would adversely affect one race more than others, but also that the reason they passed the law was because they wanted to hurt the race they knew would be most impacted by the law.

To illustrate what I mean, consider a law that criminalizes a certain drug. Those who passed the legislation may have known that black people use this particular drug more than whites, and thus, that blacks would be disproportionately affected by the legislation if they choose to continue using the drug after the legislation is passed. However, this foreknowledge of a disparity in racial outcomes alone does not make the passage of the law racist. It could very well be that the legislators passed the law because they saw the harm that these drugs were inflicting on America, and they wanted to minimize that harm. In an alternative universe, in which whites used this particular drug more than blacks, these same legislators may have passed the same legislation, knowing that it would disproportionately affect whites. Simply put, if there is no racist intent behind a law that led to disparate racial outcomes, there is no legitimate basis on which to conclude that the legislators (or the system they run) is racist. In fact, it is a rational mistake to make such a conclusion, and yet this mistake accounts for virtually every “evidence” put forth for systemic racism.

There’s something else that should be considered when trying to establish intent. If black people are part of the system, and they also supported the legislation in question, that’s good reason to doubt that the law was racist. Otherwise, you would have to conclude that none of the black people who voted for the law could foresee the disparities in racial outcome that the law would create (only the white legislators could see that). That would mean they are either stupid or deceived. It’s more likely that they foresaw those outcomes but voted for the law because they, like their white counterparts, were doing so for the benefit of society rather than to oppress a particular race.

Perhaps neither the law itself nor the legislators who passed it are racist, but those who enforce the law are racist. One could agree that the language of the law is race-neutral and that the legislators had no racist intent when they passed it, but that law enforcement officers are racist in how they enforce that law. Instead of policing white and black communities equally, the cops choose to ignore white neighborhoods and over-police black neighborhoods. That’s possible, but to prove that, one would have to show that whites and blacks are breaking the law in proportionate numbers, but being arrested at disproportionate rates. One would also have to show that the situations were largely the same. For example, it could be that cops only arrest people for drug use when that drug is found in conjunction with another crime (e.g. robbery). To illustrate, if 80% of white people who use the drug are not committing any other crimes when they are caught by police, whereas 80% of black people who use the drug are committing a second crime when caught by police, this could explain why 80% of white people are not arrested whereas 80% of black people are.

Or, perhaps it is not law enforcement that is racist, but the criminal justice system. Maybe judges are sentencing blacks at a higher rate than whites, for the same crimes. Or perhaps judges are sentencing both in equally proportionate numbers, but giving harsher sentences to blacks. Perhaps, but this would have to be demonstrated. And once again, one would have to show that the situations are similar. A man who is being charged with both robbery and drug possession will surely be given a stiffer sentence than a man who is only charged with drug possession. One must also consider the past history of each person. The man who has been in and out of jail his entire life will probably get sentenced differently than a first-time offender.

Systemic racism must be proved rather than assumed. Racial disparities in outcome alone is not sufficient to demonstrate racism. One must either show that (1) the law is prima facie racist, (2) the legislators who passed the law had racist intent for doing so, (3) enforcement of the law is based on race rather than behavior, or (4) the criminal justice system is meting out punishment based on race. If you cannot demonstrate racism at any of these levels, then there is no basis for claiming there is systemic racism.