This Article identifies and theorizes a significant but
previously overlooked feature of structural
discrimination: it frequently develops into two seemingly
opposing, yet in fact mutually supportive practices. This
“discriminatory dualism” occurs in multiple contexts,
including policing, housing, and employment. In
policing, communities of color experience overpolicing
(i.e., the aggressive overenforcement of petty crime) at the
same time as they experience underpolicing (i.e., the
persistent failure to address violent crime). In housing,
redlining (i.e., the denial of credit to aspiring
homeowners based on race) combines with reverse
redlining (i.e., the over-offering of credit on exploitative
terms) to suppress minority homeownership. And in
employment, sexual harassment (i.e., unwanted sexual
attention) combines with shunning (i.e., the refusal to
engage with women workers at all) to deny equal
opportunity in the workplace.
While scholars working in these discrete fields have
noted each of these individual paradoxes, this Article
argues that these paradoxes are iterations of the same
broader phenomenon. Three critical insights flow from
this recognition. First, understanding discriminatory
dualism as a common technology of oppression allows
policymakers to better anticipate its movements and
identify discriminatory dualism as it arises in other
contexts. Second, this frame diagnoses why previous
reform mechanisms have failed. Third, it surfaces the
distinct harms caused by discriminatory dualism.
Because each paradox is made up of two co-existing,
contradictory strands that simultaneously deny and
support each other’s existence, discriminatory dualism
creates destabilizing systems that confound
conceptualization and countermobilization efforts. The
conceptualization challenges create hermeneutical
injustices, and the countermobilization challenges make
discriminatory dualism difficult to combat.
Nevertheless, understanding the dynamic and systemic
processes of discriminatory dualism offers tools to begin
the necessary work of dismantling it.
Swan, Sarah L.
Georgia Law Review: Vol. 54:
3, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol54/iss3/3