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Of Legal Interest: Education & Psychology Can Address Racial Discrimination

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Robert Carter, Teachers College, Columbia University

Racial discrimination can cause trauma and injury, which more people are addressing in court. Thanks to expert testimony provided by education and psychology researchers like Professor Robert Carter, more individuals who have experienced discrimination are initiating civil lawsuits and winning in court. In the United States, a number of groups have experienced racial discrimination, including African-Americans, Native Americans, Latinos and Asian-Americans. Robert Carter and other scholars are applying their research in legal settings as they work with members of these groups.

The application of research to discrimination cases is being carried out a generation of students trained by scholars like Robert Carter. The tide is beginning to turn against discriminators. But there still remains the stubborn judicial history of courts failing to recognize and contend with race-based traumatic stress injury. The concept “injury” means that a person’s rights were unfairly violated, leaving the person the option to seek redress. The recognition of “impairment” resulting from discrimination doesn’t mean that the person isn’t a strong, whole person. It just means that racial discrimination hurt the person in some way, which often can be demonstrated in a court of law.

Psychological evidence is court is undergoing rapid changes as more people and their expert witnesses are bringing race-based discrimination cases into the courtroom. For a person to take a discriminator to court, court officials no longer assume that a discriminatory violation produces PTSD (or post-traumatic stress disorder) or a psychiatric disorder, two insufficient categories that once were routinely pulled from the Diagnostic and Statistical Manual of Mental Disorders. In fact, race-based discrimination impacts individuals in many ways. To go to court, an individual has to show that the act of discrimination produced some kind of race-based injury.

The concept of race-based traumatic stress injury (and related research procedures) is a powerful new tool that can help individuals seek redress for racial discrimination. This concept and related, individualized research make it easier for a person to show that an employer, state service agency, business owner, or landlord (for example) caused emotional pain by carrying out blatant discrimination or more subtle racist acts. The fact that individuals exhibit strong, intact resiliency against the racist system does not preclude them from demonstrating race-based injury and winning cases against discriminatory agents. After all, many strong and resilient individuals are injured by racial discrimination.

Providing the foundation for these cases are civil rights laws, including the Civil Rights Act of 1866 (section 1891), the Civil Rights Act of 1964, the Civil Rights Act of 1991, Title VII of the 1964 Civil Rights Act, state civil rights laws and municipal-county civil rights statutes.

Successful civil cases for race-based injury are just beginning to stack up, partly because the court system still puts the burden of proof on the person who faced discrimination, whether it be racial harassment, avoidance, or some other violation. Early 2000s studies show that, although 40 to 88 percent of racial minority participants indicated they experienced racial discrimination, about 80 percent of plaintiffs did not win in courts (although some may have won through out-of-court settlements). Careful researchers and expert witnesses are beginning to help address racial discrimination through carefully prepared civil cases, and by the development of new standards that help demonstrate racial injury. This major change is putting discriminators on notice, letting them know that they may be confronted in court by very well-prepared plaintiffs, expert witnesses, and determined lawyers.

Some useful articles are: 1) Carter, R.T. & Forsyth, J. (2009) A Guide to the Forensic Assessment of Race-Based Traumatic Stress Reactions, Journal of American Academy of Psychiatry and the Law, 37 (1), 28-40; 2) Carter, R. T. (Dec. 1, 2006) Race-Based Traumatic Stress, Psychiatric Times.

By Debra Benson