While the debate about a post-racial society rages, our justice system continues to operate in a way that is race-conscious. It seems as though most of the discussion about race and the justice system concerns criminal justice, juvenile justice, education, and immigration. But race consciousness also impacts family law. Nonetheless, the family law canon does not scrutinize race-based disparities in laws, procedures, and outcomes, and that omission feeds a mistaken notion of a race-blind or a post-racial society. One consequence of this omission is that it obscures race-based decision making by legislatures, judges, legal reform organizations, legal scholars, lawyers, and child welfare workers, and thereby immunizes race-based decision making from scrutiny. This article suggests that the family law canon inaccurately describes a race-neutral or post-racial state for family law and that the canon should correct its colorblindness so that legal authorities can address the problems that structural racism creates for African-American families.
Shani M. King, The Family Law Canon in a (Post?) Racial Era, 72 Ohio St. L.J. 575 (2011), available at http://scholarship.law.ufl.edu/facultypub/232