New Article: Discriminatory Dualism

New Article: Swan, Sarah Lynnda, Discriminatory Dualism (November 1, 2019). Georgia Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3478962 Abstract below: 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 phenomenon, which this Article terms “discriminatory dualism,” occurs in multiple contexts and domains, including policing, housing, and employment. In policing, communities of color experience overpolicing (the aggressive overenforcement of minor crime) at the same time as they experience underpolicing (the persistent failure to address violent crime). In housing, redlining (the denial of credit to aspiring homeowners based on race) combines with its opposite, reverse redlining (the over-offering of credit on exploitative terms) to suppress minority homeownership. And, in employment, sexual harassment (unwanted sexual attention) combines with shunning (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 in fact fundamentally connected. They are iterations of the same broader phenomenon. This recognition generates three important insights: first, understanding discriminatory dualism as a common technology of oppression signals the possibility that it is also occurring in additional contexts, and allows future flips and switches to be better anticipated. Second, it diagnoses why previous reform mechanisms have failed. Third, this frame surfaces the distinct harms caused by discriminatory dualism. Specifically, because each paradox is made up of two co-existing, contradictory strands which simultaneously deny and support each other’s existence, discriminatory dualism creates profoundly destabilizing systems that thwart and confound conceptualization and countermobilization efforts. The conceptualization challenges have created hermeneutical injustices. And the countermobilization challenges have made discriminatory dualism difficult to constrain and combat. Nevertheless, understanding the dynamic and systemic processes of discriminatory dualism offers tools to begin the necessary work of dismantling it.