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Erasing Racial Harms in CFPB v. Community Financial Services Association

By Callan Showers. Full Text.

Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by a perpetrator onto a victim. By conflating the concept of equality with race neutrality, race neutrality becomes synonymous with legal credibility. The victim, then, must prove fault and causation against a blameworthy individual who may still evade liability by demonstrating his action was taken for good reason (or sometimes for no reason at all). Freeman conceives of an alternate reality told from the “victim perspective” in which racial discrimination is construed as part and parcel of the systemic conditions of a member of a “perpetual underclass.” Told from the victim perspective, the law holds the potential to right systemic wrongs.

We see the perpetrator perspective at work today in the persistence of economic inequality. Yet the endurance of these racialized myths sets a stage for facially “colorblind” challenges to progressive policies that hold the potential to facilitate racial justice. One such challenge is in the 2023 United States Supreme Court case CFPB v. Community Financial Services Association (“Community Financial”). Despite the traceable and widely discussed racial implications of a case that could render unconstitutionally void an agency expressly tasked with preventing economic racial discrimination, race plays no part in the case’s merit arguments.

This essay provides an analysis of this case within this context, proceeding in three parts. Part I explains the racialized history of economic discrimination, the racial wealth gap, and the founding of and progress made by the CFPB. Part II explains the current challenge to the CFPB’s funding structure in Community Financial, the past challenge to the CFPB’s administrative structure in CFPB v. Seila Law, and the racial politics of restricting the administrative state. Part III uses critical race theory methods to demonstrate that the law in its current state does not recognize racial harm as a legitimate claim or defense and allows colorblind challenges with negative racial consequences, such as Community Financial, to thrive via the perpetrator perspective. Thus, regardless of whether the Supreme Court invalidates the CFPB in the present case, the racial consequences of economic harms in this and future challenges are rendered invisible inside the courtroom un- less and until the law acknowledges prospective racial injuries.