April 26, 2021 - Professor Nancy Leong of the Sturm College of Law at the University of Denver gathered virtually with University of Houston Law Center faculty and students last week to discuss her latest paper on the rare but notable uses of the phrase “white citizens” in federal law.
Leong spoke about two specific antidiscrimination statutes and how their language sets them apart from others.
The first statute, 42 U.S. Code 1981, states that everyone shall have the same right of contract as is “enjoyed by white citizens,” and the second is 42 U.S. Code 1982, which states that everyone shall have the right to engage in property transactions as is “enjoyed by white citizens.” Leong focused particularly on the peculiar use of the term “enjoy”.
“This is intriguing because it says ‘in regard to white people’ instead of just ‘all people deserve equal treatment,’” she said. “It’s different from language typically used in federal statutory law.”
In her paper, Leong argued that the specific identification of whiteness provides an analytic payoff in three ways. The first is that it makes whiteness explicit.
“Whiteness is the default,” she said. “This is a form of racial privilege. These are the only two statutes in anti-discrimination law that explicitly name whiteness.”
The second point Leong made about the statues’ language was that it inherently required people to acknowledge the country’s long and difficult racial history, and to question why law uses white people as its benchmark. She also said it’s important to examine the use of the word “enjoy” and regard it as an invitation to think about what it means to enjoy property and contract rights instead of to just have or possess them.
Leong said the statutes and how they are applied, specifically 1981, can be used in many more situations than it’s currently used. She cited consumer discrimination, for example, in the way people of different races are treated in restaurants.
“It’s not just the right to exchange money for a meal, but it’s also the quality, wait time, the service treatment and the food,” Leong said.
During the question-and-answer period, faculty and students brought up points surrounding the language of the statues, aristocracy, the potential meanings of “enjoy” and white privilege.
“Naming white people is beneficial because it makes us talk about whiteness and white supremacy,” Leong said. “When we don’t talk about racial wounds, they fester.”
Leong specializes in civil rights, constitutional law and Criminal Procedure. She is a graduate of Northwestern University and Stanford Law School and is the author of more than 30 law review publications. She is also the recipient of numerous awards and accolades, including the university-wide Distinguished Scholar Award for the 2017-2018 academic year. Her book, “Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality,” was published this year via Stanford University Press.