There’s been much in the news lately about the stunning racial disparities experienced in North Carolina as a result of the horrifying coronavirus. African American Tar Heels have seen dramatically disproportionate rates of exposure, severe illness, death, access to health care, unemployment, job and family benefits, allowances to work at home, food insecurity, income, wealth, and misery.

The discordant numbers chill. But they don’t surprise.

Racial disparity marks every component of economic, social, and political life in North Carolina. Twice as many Blacks live in poverty as whites do. Almost three times as many Black kids are poor. The disparity is even higher for children under five. Historically (even before the virus), twice as many African Americans here are unemployed, much higher percentages are uninsured, and three times as many families report negative net worth. 

Black families possess, on average, an astonishing 8 percent of the wealth held by white families. Black kids attend, very disproportionately, North Carolina’s highest-poverty schools. Nearly 60 percent of the state’s prison inmates are Black, though African Americans make up only 22 percent of the population. An unending cascade of irrefutable empirical studies also demonstrates massive and unexplainable racial disparities in policing, adjudication, employment, housing, and health care.

Poverty, race, and marginalization are constant and pervasive companions in the Tar Heel State. Ever has it been so, from our first day of existence until this morning. 

Without doubt, unless the term is to be drained of all meaning, North Carolina today experiences an intense, debilitating, and systemic (“of, or relating to, the entire body of an organism”) regime of racial subordination. No thoughtful and fair-minded person familiar with our past undertakings and present circumstance could think we’re done with the challenges of equality, justice, and meaningful integration.

But we don’t talk much about this gaping and aspiration-negating chasm. Not in our politics, in our public discourse, in our Rotary Clubs and chambers of commerce, on our campuses or in our pulpits. I’m guessing if the racial roles were somehow reversed and white folks were disproportionately lodged at the bottom of our social and economic markers, we would regard it as a state emergency of the highest order. Special sessions of the legislature would be triggered with dispatch.

As it is, colossal disparities between the conditions, circumstance, opportunity, and life chances of Blacks and whites in North Carolina are accepted as natural, expected, and unworrisome—like daybreak in the eastern sky. 

This silence, in the face of such wrenching and historic discrimination, is surely a principal reason for the powerful demonstrations sweeping North Carolina and the nation in the wake of the brutal police-inflicted murder of George Floyd. 

There is unsurpassed outrage over the cold, ruthlessly administered killing, of course. Killing after barbarous killing. 

But demonstrators also speak passionately of the world they see around them—the hardship, the cruelty, the denials of dignity and opportunity that torment their communities. Protesters in the streets are, in effect, crying out, “Our leaders may find this tolerable, but we reject and despise such a hypocritical vision of life—we’re not helpless, and we will confront you at every turn.” 

Still, the exception, as they say, demonstrates the rule.

Here’s something we also don’t discuss much, somewhere the disparity is even starker: The Republican Party has controlled both houses of the General Assembly since 2011. It has often done so through very large majorities. From 2011 until January 2019, Republicans enjoyed veto-proof supermajorities in both chambers. Those margins were pared in the 2018 elections, but they remain large—10 seats in the House and eight in the smaller Senate.

More alarming, all Republican legislators, in both chambers, are white. 

As the surprisingly candid Republican Representative Holly Grange of Wilmington put it in 2019: “On my side, there’s not a lot of diversity; it’s a middle-age white man’s club.”

In 2020, there are 26 African American representatives in the state House. There are 10 Black senators. One Native American and two Indian Americans serve in the General Assembly. No people of Latinx descent do.

The overall numbers, scant as they are, still mislead. In the House, the 26 African Americans and one Native American are all Democrats. All 65 Republicans are white. In the Senate, the 10 African Americans and two Indian Americans are Democrats. Every Republican (29) is white. (Similar Republican tallies appeared in the 2011–12, 2013–14, 2015–16, and 2017–18 sessions.) So when the majority caucuses in each chamber retire to their private deliberations to craft the laws of North Carolina, only white people attend. 

One hundred and fifty years after the adoption of the 14th Amendment, North Carolina is effectively ruled by a White People’s Caucus.

Let that sink in for a minute.

Over the last decade, what legacy has this White People’s Caucus delivered?

In a sentence, North Carolina Republican lawmakers have repeatedly, pervasively, intentionally, and invidiously used government power to diminish the electoral, representational, legal, educational, and dignitary rights of African Americans. The Republican caucuses of the North Carolina General Assembly not only look like white conclaves; they govern like them.

A brief listing will illustrate the point. (It’s impossible to explore the racialized Republican anti-equality work in detail in a 2,800-word essay. I have, however, recently written a book on the subject, Indecent Assembly.)

First, to protect their electoral prospects, Republicans immediately redrew their own districts, as the federal courts later ruled, to deliver one of the “largest racial gerrymanders ever confronted by an [American] court.” It represented a “widespread, serious, longstanding constitutional violation”—denying an ample percentage of North Carolinians “a constitutionally adequate voice in the state legislature.” The racial violation was so pronounced, the court said, it defeated the legislature’s legitimacy in subsequent sessions, violating the foundational notion of “popular sovereignty.” (I’ve been reading constitutional decisions for almost 45 years. I’ve rarely seen such strong words of condemnation by a court.)

They didn’t stop there. In 2013, they passed an array of voting restrictions, including a voter identification requirement aimed at limiting African American access to the ballot. The provision ended same-day voter registration, shortened the early voting period, ended out-of-precinct voting, and restricted various early-registration practices. Another federal court later concluded that Republican leaders had studied every mechanism that elevated Black turnout and then, with “almost surgical precision,” eliminated or restricted each practice. The lawmakers’ talk about ballot integrity, the court said, was a lie. The restrictions were about race, not fairness. It was old-fashioned Jim Crow work. The judges noted that “neither this legislature, nor, as far as we can tell, any other legislature in the country has ever done so much, so fast, to restrict access to the franchise.”

Republican lawmakers were again called on the carpet in 2015 for trying to crush the representational and voting rights of Black candidates and voters. Unhappy with the outcome of Greensboro City Council elections, which produced a Democratic majority and four African American council members, the General Assembly used a “truncated process,” pushed by Republican Senator Trudy Wade, to simply overturn the unseemly results by creating new districts double-bunking incumbents. Wade claimed legislative immunity in the ensuing lawsuit to avoid having to explain, or answer for, her discriminatory motives. Judge Catherine Eagles saw through the ruse and held this to be yet another move by the General Assembly to disenfranchise Black Tar Heels.

The White People’s Caucus hasn’t limited its efforts to merely suppressing Black voter rights.  After several Black defendants, having received death sentences in their criminal trials, proved that their capital sentence had “been sought or obtained on the basis of race,” in violation of North Carolina’s Racial Justice Act, the General Assembly simply repealed the statute. Rather than opting to fix the discriminatory practices pled and proven, lawmakers shot the messenger. They said, in effect, if prosecutors are seeking death sentences on racial grounds, we prefer not to know. In North Carolina, that’s what we mean by “racial justice.”

The all-white Republican lawmakers also repaired to their closed meetings to significantly expand school charter and voucher programs in ways that would lead, as they did, to greater racial segregation in the schools. Unlike the rest of the country, they responded to the Black Lives Matter movement by making it harder to obtain police-camera video. And, famously, Republican lawmakers passed a new statute making it illegal for local authorities or state agencies to remove Confederate war memorials. 

Governor Cooper tried to convince them to change course, saying, “We cannot continue to glorify a war against the United States of America fought in the defense of slavery.”

The bill’s sponsor, Senator Tommy Tucker, responded by noting that the Civil War had nothing to do with slavery: “It was caused by the North and their tariffs over Southern goods.”

It’s almost hard to believe they struggle to win Black votes.

You would think that an all-white Republican governing majority in the statehouse, regularly and demonstrably passing statutes to burden, handicap, and harass Black citizens, would be an intense and heatedly contested focus of our political and social lives. After all, this is not Mississippi or Alabama. It’s North Carolina.

But many Tar Heels, maybe most, seem to think little or nothing of it. As if someone here had quietly constructed a bridge to the 1950s.  

And this “hear no evil, see no evil” approach apparently includes an odd “speak no evil” component as well. Not only is the heavily racialized agenda of the Republican General Assembly not to be witnessed or heard, but in a twisting of the aphorism, it is also not to be mentioned by critics of the crusade against people of color. Somehow it is thought to be too rude or uncivil to characterize a legislative program as race-based. That implies, the theory seems to go, that the folks carrying out the schemes to use state power to burden and handicap racial minorities are vile and reprehensible characters. Even if their work is race-based, the label still shouldn’t be mentioned. It’s too barbaric, too unseemly.  

It is the Voldemort of modern North Carolina politics.

I have at least a little experience on this front. I speak across North Carolina a good deal and write regularly for three of its major newspapers. For some years now, I’ve been sufficiently discourteous to mention, out loud and in print, the racial makeup of the Republican House and Senate caucuses as I described the elements of their potently racialized agenda. I’m also a law professor at UNC-Chapel Hill. This has led more than one campus administrator to suggest to me that pointing out the all-white status of the Republican caucus infuriates state lawmakers—it is overtly playing of the race card—and it will lead, or has led, to retaliation. 

It is vulgar to mention that our Republican lawmakers constitute a White People’s Caucus.

Apparently, it’s not vulgar to be a White People’s Caucus. 

It’s just nasty to name it.

Governor Pat McCrory signed, as a first priority of his administration, a massive voter suppression law—later found, as I said earlier, to be directed specifically African Americans. Election law scholars called it the most oppressive in the nation, and the attorney general of the United States sued North Carolina, saying the voter ID requirement was designed to do the same job as poll taxes had in the Jim Crow South: diminish the Black vote. I wrote that McCrory might be a backslapping glad-hander, but he was also “a 21st-century successor to Maddox, Wallace, and Faubus.” 

A couple of days later, the leaders of the Pope Center and Civitas Institute published a joint article saying I’d launched such a “nasty and unhinged attack … so detached from reality [that] it’s hard to imagine a more vicious and false comparison for McCrory.” University administrators issued warnings that I might be fired. Civitas filed a series of public records requests demanding my correspondence, calendar entries, phone logs, text messages, and emails by the thousands. When I rebuffed legislators’ demands that I stop publishing in The News & Observer, the UNC Board of Governors closed the Poverty Center I ran. Some months later, lawmakers cut the budget of the law school where I work by a half-million dollars by enacting what Democrats labeled “the Gene Nichol transfer amendment.”

When I wrote a subsequent newspaper article, in April 2019, outlining a long list of the General Assembly’s race-based constitutional violations and characterized the efforts as reflective of an agenda of “muscular racism,” Senator Vicki Sawyer published a response indicating that, “as a lifelong Republican and public servant,” she was “horrified to read Gene Nichol’s race-baiting diatribe.” I had purportedly carried out “a crusade to sully the reputations of decent people … with horrible labels.”

A few months earlier, in September 2018, I had participated in a debate sponsored by the N&O with conservative columnist J. Peder Zane, whom I like and enjoy reading. Zane made an analogous and more thoughtful point. “When you say Republicans are being racist,” he said, it is “like the worst thing that can be said about somebody, the worst name someone can be called, at least in modern culture.” You are saying “they are absolutely repugnant people, repugnant human beings.”

I suggested my goal was not to call names but to focus on what lawmakers do: “I say we’ve had this array of legislative enactments from Republicans in the statehouse with the decided purpose of making life more difficult and challenging for African Americans, and that is unacceptable.” And it’s not just me saying that, I added, it’s “court after court, state and federal.”

Zane responded: “If you’re saying they intentionally used the power of state government to harm Black people, because they’re Black, you’re saying they’re racist.”

Therein, perhaps, lies the rub. It’s not enough, apparently, to point out that our lawmakers purposefully harm Black Tar Heels. You have to show they do it with the darkest of hearts. For me, I don’t care much about their hearts one way or the other.

The disagreement modestly mirrors a point now made occasionally by the U.S. Supreme Court. As Justice Samuel Alito explained in his dissent in the 2017 case Cooper v. Harris: “Courts are obliged to exercise extraordinary caution in adjudicating claims that a state has drawn districts on the basis of race. The evidentiary burden is demanding. When a federal court says that race was a legislature’s predominant purpose in drawing a district, it accuses the legislature of offensive and demeaning conduct. That is a grave accusation to level against a state.”

So, the theory goes, stay away from race. Don’t name it.

If you can show that lawmakers are using racial determinations to burden their adversaries, don’t mention the R-word. Keep mum because saying they are using the power of government to constrain or wound Black Tar Heels sounds like you’re saying they are racist. Civility demands that it goes unmentioned. It sounds too grizzly. It says something too dark.

After all, our lawmakers aren’t going around in white-robed lynching parties. Black Tar Heels who try to vote aren’t being shot outside the polls. It’s not Wilmington in 1898. We’ve come far in North Carolina. Saying our lawmakers are carrying out a racialized agenda in the statehouse in 2020, with our apparent consent, would be announcing something about ourselves, collectively, that we couldn’t bear. It’s best to leave such odious landscapes unexplored.

But here’s what that means in North Carolina: All-white caucuses repair to closed-door meetings to decide our laws. No persons of color are present to object. The all-white assemblies routinely propose laws that disadvantage and are strongly opposed by African Americans and other racial minorities, making it tougher for them to vote, to get effective representation, to hold on to elections already won, to get access to the courts, to be free from a racially imposed sanctions, to enjoy an equal education, to escape police brutality. 

The lawmakers regularly enact statutes that are invalidated by both state and federal courts as clear examples of intentional race discrimination. They occasionally admit that they legislate to disadvantage Black people, but they claim they do so because the Black people are Democrats, not because they’re Black.

Despite all this, it is quite routine to say this portfolio cannot be characterized as “racialized” or “race-based” or reflective of “racism”—because that is too horrifying to the modern ear. 

These wounds best go unmentioned. Better for Black Tar Heels to suffer than for white folks to feel bad about themselves. 

Gene Nichol is the Boyd-Tinsley Distinguished Professor of Law at UNC-Chapel Hill. His most recent book is Indecent Assembly: The North Carolina Legislature’s Blueprint for the War Against Democracy and Equality. 

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