Dissenting Opinions

Life of the Body

Episode Summary

In episode 6 of Deep Dive into Critical Race Theory, Will and Khiara dig into healthcare disparities, discussing possible systemic causes from housing to hospital placements to environmental justice. The discussion circles back to many earlier themes, including implicit bias, structural racism, and more.

Episode Transcription

[Dissenting Opinions theme]

Will: Welcome to Season 2 of Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Baude, and you're listening to a special series we're calling Deep Dive, where a guest and I will take a deep dive into a legal topic. This series will be me and Berkeley Law Professor, Khiara Bridges, talking about critical race theory. Without further ado, let's deep dive into critical race theory.

Can we switch gears from the life of the mind to the body?

Khiara: Okay.

Will: I know this is the core of a lot of what you're interested in, healthcare, reproduction, all that stuff. I have even less of a sense there about what the legal questions are would start. I know there are health disparities that you can observe on the basis of race. But there isn't a Brown v. Board of Education for, I don't even know what for, hospitals or something, or maybe they're [crosstalk] never got taught it. 

Khiara: Right. [chuckles] 

Will: What are the debates there or what should the debates be?

Khiara: Well, I think debate or the conversation is just around why. [laughs] Why is it that people of color, specifically black people, are sicker and die earlier than their nonblack counterparts? Why is it that white people still have longer lives, and have fewer morbidities, and have better quality of life, in terms of pain and ability to move, walk? Why is that? And so, for myself, when I wear the critical race theory hat and I look at those questions, it's incredibly complicated. You're absolutely right. There's no Brown v. Board. There's actually no one institution that's responsible for those disparities in health outcomes. In fact, it is a confluence of systems, and processes, and institutions that make it so. And so, what one can do with that fact, as a critical race theorist, is first identify the systems that are operating and think of ways to disrupt them. I'll just mention a couple.

Environmental injustice is a great contributor to racial disparities in health. By environmental injustice, I mean that people of color, even one who controls the class, black people live in environments that have poor air quality, poor water quality, more degradative soil than their nonblack counterparts, again, even when one controls the class. You can have a nice income, you're still more likely to live in a part of town where the air quality is just not good. Maybe because it's next to the highway or maybe because it's next to an industrial use. Environmental degradation is a huge contributor to racial disparities and health outcomes. We can also talk about residential segregation and the fact that that creates segregated hospitals. When I started doing work around maternal mortality and morbidity, it is a term in the literature called 'high black-serving versus low black-serving hospitals'. It just blew my mind, because I didn't think of hospitals as being segregated, but we have segregated hospitals and it just so happens that the high black-serving hospitals have poor outcomes for their patients than the low black-serving hospitals. So much so that when white people go to high black-serving hospitals, they have poor outcomes and so when black people go to low black-serving hospitals, they have better outcomes.

So, residential segregation is contributing to racial disparities in health outcomes, and I could go on and on and on. So, how would the law interact with that? How would the law interact with the fact of environmental injustice? How would the law interact with the fact of residential segregation?

Will: Yeah. Can we do the hospitals? This is a great-- [crosstalk] 

Khiara: Okay. Mm-hmm.

Will: How does the law interact with that? I'll play naïve for a second. Racial segregation is not required by law or even allowed by law anymore. You can't try to structure formally black neighborhood or white neighborhood. But of course, I'm recording this from city of Chicago, where we have a lot of neighborhoods of that description. So, is that the law's fault and something the law could fix?

Khiara: Yes. [laughs] What's your next question? 


Khiara: No, I was just kidding. Is it the law's fault, is it something that the law can fix? I actually think that is-- when I write an updated version of the critical race theory primer, I think that I'll identify that as one of the assumptions of critical race theory, which is that we believe that the law matters, and that legal change can actually produce social change. It might not be the initial lever that you press, the initial knob that you turn, but there is a relationship between law, and society, and outcomes.

Is it the law’s fault that neighborhoods are segregated? If the law has not worked to produce that very outcome, then I think critical race theorists and a lot of lawyers would say the law is responsible for intervening in the processes to disrupt segregation. To the extent that the law had thrown up his hands and said, “That's just people's choices. People move to Berkeley when they have kids, because they have better schools over there. People are stuck in Oakland--” I think that the critical race theory would say, “Well, if we as a nation, if we really want integration that we say we want," [chuckles] and that even I want as a critical race theorist, we already talked about this, then the law is responsible for producing that very state of affairs.

Will: Yeah. So, who does the law-- what's the program, what's the path for legal elimination of neighborhood segregation?

Khiara: [sighs] Not a property scholar here, but I will say that my answer right now is informed by living in Northern California in the Bay Area. But yeah, zoning laws are wild. In zoning against or zoning only for single family housing, it produces a landscape wherein you have to have a lot of wealth to buy into the neighborhood, and then just to live in the neighborhood. And so, if there is, like I mentioned before, wealth inequality between races, then you have to have some degree of wealth to even buy a home. It's just the down payment, sometimes. Let's not even talk about what you need in order to get a mortgage. 

Yeah, let's just start with interrogating what sort of zoning laws are in place and whether the zoning laws might be working to make neighborhoods racially segregated. I would also ask the same question about zoning laws and environmental degradation. It's a lot of questions we get asked about environmental degradation. But it just so happens to be that the neighborhoods that people of color call home are the ones that are zoned for garbage. They're the ones that are zoned for industrial uses. To the extent that this isn't a function of people of color moving into neighborhoods that are already zoned for garbage, to the extent that this is something like, “Well, this is where people of color live. And so, we're just going to zone this place for industry or other locally unwanted land uses,” then we should think about how that contributes to these poor health outcomes. And also, more segregation, because who's going to move into a neighborhood that's polluted until the gentrification happens? [laughs] 

Will: Yeah, you had me at the zoning reform, I'm a hardcore WIMBY, I guess they're called. 

Khiara: [Laughs] Yes.

Will: [laughs] But I assume I think the Khiara from a little bit earlier was telling me though that it's not all class. There are poor white neighborhoods in Chicago and they're poor black neighborhoods in Chicago, but it's not like the poor neighborhoods are integrated. They still even controlling for class, somehow, we have massive racial segregation. So, I take it that's not going to be the panacea.

Khiara: Right. Yeah, I'm going to nod towards my anthropologist’s hat now, [laughs] because I also think that there might be something particular about a circumstance that you have to figure it out. I moved to Northern California from South Boston, I don’t even know what it's for. Oh, no, it was white. [laughs] It was white. It was even white than the other neighborhoods in Boston and I wonder what local processes, laws are producing that state of affairs in Boston. Are they different from what's happening in Chicago that's producing the poor white neighborhood as the street from the poor neighborhood of color? Yeah, so it could be a large-scale thing that's true across all the nation or it could be something that's more particular to a site. But I think critical race theory would be interested in investigating that. And yeah, like I said, intervening in the process.

Will: Yeah. I'm still thinking about our hospitals and I'm still thinking about Derrick Bell. I'm thinking, “Okay, you've got the tale of two hospitals.” I can't even remember the euphemisms, high black serving and low black serving?

Khiara: High black serving and low black serving. Yes. 

Will: Okay. Yeah, hospitals and one is giving better quality care than the other. The one solution is let's move people around, so we have less residential segregation, so we have more integration across the hospitals. I guess the other solution, the Derrick Bell solution would be, “Let's not move the people around. Let's just make the bad hospital better.”

Khiara: Right. Yeah. 

Will: I don't know. I don't know anything about why the high black-serving hospital is not better. But is that easier, is that a task that's easier for law to handle or more of the critical race theory angle or the intractable problem of residential--? [crosstalk] 

Khiara: Yeah. Okay, if we do the Bell view on hospitals and say, “Well, we just need to make these hospitals better,” I just keep thinking about money.

Will: Yeah.

Khiara: In order to make that the high black-serving hospital better, it needs more funds. I will say that the literature that I've read, part of the explanation as to why high black-serving hospitals don't have as much money as low black-serving hospitals is that high black-serving hospitals have a higher or a larger portion of the patient population that receive Medicaid. And unlike Medicare, Medicaid, the reimbursement rates are dismally low compared to commercial insurances. So much so that when a department like obstetrics department has predominantly or mostly Medicaid patients, they can't afford to be in business. And so, these obstetric departments have closed down in black neighborhoods, because they're just operating in the red, because Medicaid reimbursement rates are so low.

So, if we take the Bell view of hospitals and say, “All right, let's just fix these high black-serving hospitals. This could be a money thing. Let's just bring Medicare reimbursement rates, make them on par or higher even than their commercial counterparts. What about funding hospitals independent of Medicaid and Medicare?" I think that's what the Bell view would be interested in. Yeah. 

Will: Yeah. Okay. The canonical, the uncritical race theory doesn't have a tie on the ball, it doesn't realize that maybe Medicaid reimbursement rates are where the real action is.

Khiara: Yeah. Well, the real uncritical race theory would say something along the lines of, is there a gene that black people has that causes them to die? [laughs] 

Will: Okay.

Khiara: Maybe that's why they're dying. Then, the other uncritical race theory would say something like, “Well, are they exercising? Are they eating well? Are they killing themselves? There might be something in the culture that's killing them.” That's the uncritical race theory. I think the liberal view would be something along the lines of what-- Okay, let me just say, this is like a bad schema. [laughs] There's so many ways of challenging-- [crosstalk] 

Will: I apologize-- [crosstalk]. 

Khiara: [laughs] But I'm thinking of Elizabeth Warren. When she waded into the debate around maternal mortality and she was like, “Oh, how about financial incentives and disincentives when it comes to outcomes?” A hospital that had poor outcomes with maternal mortality and morbidity, they will be financially penalized and the hospitals that have good outcomes, they will be financially rewarded, and you see how that would contribute to low black-serving hospitals is getting more money, because they're being financially rewarded with high black-serving hospitals being financially penalized. 

Again, that could be a liberal position, but it could just be a bad position. I think that critical race theory, the position, I think it would be interested in looking at the larger context in which these hospitals are operating, the residential segregation and environmental degradation. Because note that when a population that a hospital serves is living next to a highway on one side and an industry, a factory on one side, and drinking polluted water on the other side, they're sicker. And so, they're more expensive patients that they're caring, they need to spend more money on them, because they're sick. But they don't even have the same amount of money to care for their patients as the hospital that's caring for population is not as sick on average. 

So, critical race theory would be interested in the context in which the hospital is operating, how this population is made sick in the first instance. And then, because we are lawyers, trying to figure out which legal levers we need to pull, or press, or whatever you do with levers, in order to change things.

Will: Yeah, and I guess, the other thing that maybe the thing that we're not talking about would be the orthodox liberal approach would be like, maybe the doctors need to be less discriminatory. Maybe the problem is that the doctors in these high black-serving hospitals, they need to be hit with antidiscrimination suits because they're not doing a job or something. I take it, that's one of the things we're saying is not-- [crosstalk] 

Khiara: It’s not that. Right. [laughs] Yes, yes, yes, yes, yes. I think it's even hard to call it the liberal position, but just let-- [crosstalk] 

Will: Yeah, I don’t even know if it has that view. 

Khiara: Yeah, it's just a position is to one, antidiscrimination. Disparate treatment is happening. Let me not dismiss it. There's evidence that doctors, healthcare providers do give different care to black patients versus nonblack patients. But most people don't think that is solvable through our antidiscrimination laws. First of all, it's impossible to prove that a doctor is like, “Hmm, being black patient, I'm going to deny them [chuckles] dialysis.” Most people think that what's causing the disparate treatment is implicit bias and so, then the solution becomes, “All right, implicit bias training. Let's make sure everybody takes this IAT. Let's make sure everybody knows that they have implicit biases and make sure we remind them of their implicit biases, so then, ooh, fingers crossed, they give better care." That's the solution that we've just seen time and time again, not just in hospitals, but in police departments, and admissions committees, and so on, and so forth. It's such a narrow understanding of the problem, as well as a narrow intervention into a very, very large complex multifactorial problem.

Critical race theorists would say I say, my scholarship just focusing on implicit bias, it allows us to pat ourselves on the back, because we did something about the problem and then, it's just business as usual, and then we keep Medicaid reimbursement rates the same. We leave the factory over there. We don't try to reduce emissions from cars so that people who live next to highways aren't choked out. It just allows us to keep the status quo, while again, being really self-congratulatory about doing something, because all the providers in the hospital had an implicit bias training.

Will: All right, we're talking about the highways a bunch now. The various, I guess, call it the siting decisions. It seems another part of this problem you're talking about is, the twin problems of when you have to put a new thing that's dirty, or polluting, or something someplace, we're more likely to put it in a neighborhood of color than a white neighborhood. I think it's also the reverse. Once it's there for lots of silo reasons, we talked about people who are more likely to move there, because of the patterns segregation we're talking about. Is this an implicit bias problem or is it a mistake to think of it that way? Because the problem that FERC or whoever it is, who approves pipelines has implicit bias, and they just don't think enough about these issues when they think about where a pipeline can go or it's not that, it's something else?

Khiara: No, what I've read about this is that there's not an evil guy behind the curtain who's like, “Huh, [laughs] I'm going to put this pipeline in a black neighborhood.” It tends to be a question of one-- some of it is just like, the best place to put these factories or what have you are very sparsely populated areas, period. So, rural areas. But for some reason, it tends to be the parts of the rural areas where people of color live. I don't know how to explain that. [chuckles] It's not that I don't have -- I just don't know. I'm not that familiar with the literature. What I wanted to say though was when it comes to whether we're going to place this factory in Oakland versus Berkeley, and let's just say, all things being equal, we could place it in Oakland as easily as we can place it in Berkeley in terms of like, we have the space for it, and blah, blah, blah. Who has political power? The residents of Oakland versus the residents of Berkeley? 

For those who are unfamiliar with the East Bay, Oakland, it seems to be racialized as black, even though they have large nonblack population and Berkeley tends to be racialized as white. So, who has the political power? Who has the ability to get the air of the decision makers with NIMBY impulse equally strong, right? Not in my backyard, as deeply felt in Oakland as it is in Berkeley. When both of those communities have a NIMBY impulse, the one that's going to win and have that facility placed not in their backyard is going to be the one with the political power and that tends to be historically and probably presently, the communities that are white.

I was talking just now about equally matched black and white neighborhoods in terms of class. When the competition is between a wealthier neighborhood in Berkeley versus a poor neighborhood in Oakland, then we really know the disparity among political power of those communities is greater and it's much more likely that the poor residents of color end up with the facility in their backyard. So, somebody's making these decisions and it's not really a question of political-- It's not really a question of like, implicit bias, but it's really just a question of power, and who are your constituents, and are your constituents powerful enough to make you abide by their wishes and demands.

Will: This, again, is where, as I expect something from the critical perspective to say, but the problem is there's no good institution to which we could repair. All right, so, if Berkeley is exercising too much power over Oakland, we need a savior to come in and stop that from happening. So, we'll go to Sacramento. 

Khiara: [laughs] 

Will: We’ll go to Sacramento, and it turns out, also not sufficiently empowered black people. So, we'll go somewhere else. We’ll go to Washington, D.C., they'll be the ticket, but then we look around Congress and say like, “No, that didn't work either.” Then, we’ll go to the UN. So, is there a solution to that or is that just-- this seems like we are in sad critical race theory mode.

Khiara: Right. I know we’re in sad critical race theory. I want to go to sad critical race theory. [laughs] The one thing I will say in all seriousness, critical race theory is interested in how problems shift. And so, once we solve the local problem-- or rather, we might solve the national problem, but then the problem shifts to be a local one or it's just about the flexibility, the shape-shifting nature of problems and power. That being said, I can speak personally. What I've been interested in as a critical race theorist who worries about the fact of power and that powerful people will be able to get their wishes operationalized much more frequently than people without power, and how that power runs along racial lines, I'm interested in what about internalizing than externalizing? What about making the factory bear the cost of their pollution? Like in the sense of, what if we made it so expensive for them to spew toxins over an area? And so, the question becomes less, which area is going to have toxins spewed over it, as opposed to let's incentivize the facility to generate a different process that's actually safe for all. 

Again, if we're changing the question from who's going to get polluted into how can we make it so that the pollution doesn't exist in the first instance, and that seems to be a question of making the facility, making the industry bear the cost of the pollution such that it is untenable, so that they're incentivized to create different processes.


Will: The thing I really like about this and that's something that worries me about it, something I like is that now, it's less zero sum, because we're just in this battle of like, “Should we inflict toxins on people at Berkeley or on the people of Oakland?”

Khiara: Right. [laughs] 

Will: Yeah, that didn't seem very satisfying. Maybe the answer is we should inflict more toxins to people in Berkeley to save people in Oakland. But it isn't a very satisfying approach to public policy. Yeah, this is better, because maybe there's a way that's better for everybody, rather than just being zero sum. But if we just think about it and internalizing the externalities terms, I worry that-- Obviously, the economics of the pollution in a particular industry are very complicated, but a lot of the time, factories emit lots of toxins, because it's profitable and it's actually very profitable.

Khiara: Mm-hmm.

Will: So, even if you made them pay money to people who they're adversely affecting, they'd say, “All right, here’s a check.” 

Khiara: [laughs] 

Will: [crosstalk] are still running.

Khiara: Right. [laughs] 

Will: I guess given the class privilege backgrounds we're talking about, you worry that communities of color might be in more desperate straits and more willing to make those tradeoffs. You can imagine a world where it's like, “All right, fine. You can have terribly polluting factories as long as you buy off the people whose lives you're shortening.” And then, there will be communities of color where there's more compensation, but they still have the factories, because their moral ethics are that tradeoff than the fine people of Berkeley.

Khiara: Right. Yes, that is discussed in the literature. One, I will say, [laughs] spot on by saying that it is incredibly profitable to run a pollution-generating facility and corollary to that, even if you make them internalize externalities, it's still profitable and they'll still do it. So, let's start there. [laughs] Because right now, we live in a world in which those externalities are totally external. So, it will be at least a better outcome than today that if the industry is supporting and compensating in some sense the people who they are killing, whose lives they are shortening.

And then secondly, spot on again you are by observing that poor people and poor people of color are much more willing to be like, “You can place your industry here as long as you pay me for it. You can pay me for it in terms of jobs.” A lot of times, people are like, “Okay, you can place the industry here, the smokestack could be as high as you want it to be. Just let me work in the facility.” So, they're willing to make that exchange of jobs for illness.

I think that, first of all, rational actors, absolutely, not being paternalistic would be to allow somebody to make that exchange. But critical race theory in its finest moments, I think, would be interested in making it so that people would not have to make that tradeoff. It's a hell of a trade to say, “Well, at least I'll be able to eat, but I'll just die from cancer. It's 20, 30 years earlier than I otherwise would have.” How can we support people? Make it so that they have their basic necessities met, that they have a thriving full life so that the exchange of necessity for illness is one that is understood as just an unfair trade to make? I would never trade that. If somebody said, “Hey, drink this poison and I'm going to give you $150,000 a year.” I'm like, “I'm good. I don’t drink need to drink the poison.”

Will: [laughs] Right. 

Khiara: I want it so that communities of color-- People generally realize that trade is one that is as offensive as it is.

Will: Right. So, it's not just the Medicaid reimbursement rates now though. It has to go deeper-- 

Khiara: Bigger. 

Will: Yeah. [crosstalk] require universal basic income? I mean, that's sort of-- [crosstalk] 

Khiara: Right. That's it. I think that there's a lot of folks who are writing that's precisely what we need is a universal basic income. Some of them are writing from a critical race theoretical lens and others are not. Yeah, I don't know. [laughs]

Will: Yeah, okay. Our problems are getting bigger and bigger, the more we talk about them. Maybe that's the nature of the-- [laughs] 

Khiara: I think so. I think that says-- it's probably a strength and a weakness of critical race theory, is its strength, because to the extent that it's true. We see all the various systems that are involved in producing what might be perceived as discrete problems. But it's the weakness in the sense of it becomes harder to solve. [laughs] 

Will: Yeah.

Khiara: All of these things are implicated. If the problem is just Medicaid reimbursement, okay, so then boom, let's go to Congress. Who's responsible for setting Medicaid? Let's talk to those guys. Let's talk to that committee, whatever. But if the problem is, okay, industry and residential segregation, and Medicaid reimbursement rates, and da, da, da, then it becomes, some might say unwieldy. But I also believe that just increases the number of spaces where one can act. It's not just get the phone number of one committee and talk to that one guy who's responsible for the problem. Instead, we can intervene in different spaces and perhaps pull on one thread that is a part of the problem.

Will: Yes, it's a really big rock you need to move, but the good news is there's a lot of different places you can try to push it. [laughs] 

Khiara: Right, get your friends on the left side. I'm going to be over here northwest. Exactly. 

Will: Yeah. I guess this has graduated to another question I had, which maybe takes us-- I don't know where it takes us, but is everything critical race theory? Are there any actual areas of important policy that we just say like, “No, that's not particularly racialized”? Or, “It is racialized, but there's nothing wrong with the liberal race picture. Critical race theory has nothing useful add there”? Or is it everything?

Khiara: Hmm, I don't know. I think of it this way. I think one could say, everything law and economics. I think, I don't know, because I'm not one, but I think a law and economic person would say, “Well, you can try to apply the theory to it and see what shakes out, and it might be useful, and it might not be useful.” But the theory is such that, yeah, it can accommodate most issues. Again, whether the result that the theory yields might be unsatisfactory, it might be awkward. So, I'm thinking of Posner, then we're going to talk about baby selling. [chuckles] It might be awkward, it might be uncomfortable, and we might say it's trash, but you can at least try and see what shakes out. 

I think the same thing is true for critical race theory. You could use your critical race theoretical lens to think about-- I don't know, I'm trying to think of something that might be awkward, space travel. 


Khiara: When you could say, “When black people get to the moon, what parts of the moon will they be allowed to inhabit?” And then, you might walk away and say, “That's not useful.” But I think the lens is such that it allows for the question to be asked. [chuckles] 

Will: Yeah, okay, that makes sense.


Will: Thanks, Khiara. For updates on future episodes, follow us on Twitter @uchicagoconlaw. Make sure to subscribe, rate, and comment wherever you get your podcasts. This Deep Dive into Critical Race Theory was recorded in one big session. So, if the conversation jumps quickly, that's why. Stay tuned for new episodes out every Monday and Thursday.


[Transcript provided by SpeechDocs Podcast Transcription]