IS ALL DISCRIMINATION CREATED EQUAL?

By RANDALL KENNEDY

THE O.J. SIMPSON TRIAL, HIS ACQUITTAL, REACTIONS TO IT AND reactions to the reactions have revealed a racial division in our society more stark than most of us could have ever imagined. The question now is, How can we move forward toward a more fair and neighborly American community?

First and most important, everyone must use every resource to stigmatize racism. The campaign against invidious racial discrimination is one of the most successful reform movements in 20th century American history. Its monuments include Brown v. Board of Education, the civil rights laws of the 1960s and a profound change in the hearts and minds of many Americans. This movement has largely succeeded in making bigotry unfashionable, so that racists now feel it necessary to obscure their views. But given the deep-rootedness of prejudice in our culture, we should not be surprised that we still face a long and difficult task. Some have tired of this taxing and expensive work. Some are rebelling against it. The destructive influence of Mark Fuhrman on the administration of justice, however, is a vivid illustration of why, as a practical as well as moral matter, it must continue.

Beyond ostracizing the racists among us, however, we must also change policies that are racially discriminatory, even though they may seem to many quite rational. Consider the following case: a federal officer at the Kansas City, Kansas, airport stops, questions and eventually arrests a man named Arthur Weaver for drug trafficking. The officer later testifies that he decided to stop Weaver because of a variety of factors--dress, age, the luggage he was carrying, the city from which he was arriving (Los Angeles), and the fact that he was black. The U.S. Court of Appeals found no fault with the officer's actions. It condoned the common practice of using race as an indicia of suspicion, on the grounds that, proportionally, blacks engage in certain sorts of criminality at far higher rates than whites.

Many courts, including the Supreme Court, have reached similar conclusions, though not without dissent. In Weaver's case, Richard Arnold, the chief judge of the Eighth Circuit Court of Appeals, wrote that "use of race as a factor simply reinforces the kind of stereotyping that lies behind drug-courier profiles. When public officials begin to regard large groups of citizens as presumptively criminal, this country is in a perilous situation indeed.''

Many who unequivocally attack affirmative action on the grounds that the government should hardly ever differentiate between people on a racial basis fall mum in the face of systematic racial discrimination by law-enforcement agencies. Conservatives bear a special burden in this matter, because they have made color-blind treatment the central theme of their race-relations policy. Chief Justice William H. Rehnquist, for example, has opposed nearly all forms of affirmative action, yet has upheld the authority of police to engage in "reasonable" racial discrimination in deploying their limited resources.

When police routinely stop a black man in circumstances in which they would not stop a white, they generate the sort of bone-deep resentments that have come to the surface since Simpson's acquittal. But even now, after a week of public soul baring, it appears to me that many Americans don't grasp the deep sense of aggrievement among blacks at all levels of the social structure, and don't see the constant irritants that nourish that sense. There are large dangers ahead unless ways can be found to diminish this alienation.

In 1989, in a powerful essay titled "Willie Horton and Me," Anthony Walton, who was educated at Brown University, described with unusual candor the fury that grips him and his black Ivy League friends when they are treated more suspiciously than whites by police officers (and doormen, pedestrians and taxicab drivers) because of their race. These young black professionals are cynically biding their time, he writes, "waiting for some as-yet-unidentified apocalypse that will enable us to slay the white dragon, even as we work for it, live next to it, and sleep with it."

Obviously there is an urgent need to find ways to drain this deep reservoir of corrosive bitterness. One way to begin is to scrutinize all racial discriminations used by police more closely. We need also to nourish the precious and delicate intellectual quality of empathy--the ability to see things from another person's perspective. This does not mean giving up one's own point of view but rather making an effort to see an opposing argument in the best light available. A properly empathetic critic of Simpson's acquittal would concede that a person could reasonably conclude that the prosecution failed to prove its allegations beyond a reasonable doubt. Similarly, a properly empathetic defender of the verdict should concede that there is a good reason for observers to think that a guilty man has eluded justice.

Simply acknowledging a reasonable basis for disagreement might not appear to be a major accomplishment. But in fact it is, because it allows us to begin building the bridges that must be built if we are to knit together the various groups that constitute our multiracial republic.

Randall Kennedy, a professor at Harvard Law School, is completing a book on race and the criminal justice system.