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Is Discrimination Elusive?, 55 Stanford Law Review 2419 (2003)


The fine reviews included in this Symposium stake out various positions on whether discrimination is elusive. At one extreme, Rachel Moran claims that after reading 800 pages she still doesn't even know what discrimination means. At the other, Kevin Haynes claims that "for millions of black Americans [there is] no question at all. . . . [R]ace discrimination is pervasive . . . ."

This essay claims that the conceptual core of race discrimination—what I will call race-contingent behavior—is not elusive in the sense of being undefined or somehow ineffable. Indeed, discrimination in this sense is not just knowable, it is increasingly known. There is mounting evidence that race-contingent decisionmaking is still a pervasive factor in many (but not all) facets of everyday life.

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