Professor Taifha Natalee Alexander’s forthcoming article, Systemic Racism as Negligence, examines how tort law can respond to systemic racial harms. The Article will be published in the Harvard Civil Rights-Civil Liberties Law Review this summer.

Here is the abstract:

Stark racial disparities persist across societal institutions. People of color face disproportionate policing, harsher sentencing, higher rates of unemployment, and unequal access to education and healthcare. These disparities are not solely the result of individual racial animus, but of institutional policies that ignore the enduring structures of racial power. Rather than addressing these systemic harms, the recent wave of anti-CRT legislation entrenches these racial realities further by codifying racial erasure into law.

This Article argues that systemic racism, defined as racial inequity produced by facially neutral policies that disregard the historical accumulation of racial power, constitutes a legally cognizable harm under existing negligence doctrine. Negligence law holds institutions liable when a breach of duty causes foreseeable harm, regardless of intent, as long as the elements of duty, breach, causation, and damages are met. Courts have recognized institutional negligence in the context of toxic tort, corporate malfeasance, and public health failures where diffuse injuries result from systemic practices or institutional design choices. While tort law has evolved to encompass institutional responsibility for systemic risk, courts have failed to apply this framework to racialized institutional harm. This failure reflects not a doctrinal incapacity, but a jurisprudential reluctance to move beyond intent based antidiscrimination models that obscure structural racial injury.

Drawing on Critical Race Theory (CRT), this Article proposes a doctrinal recognition that treats systemic racism as a foreseeable institutional harm actionable under negligence while also critiquing the evidentiary and conceptual limitations of antidiscrimination law, particularly intentbased frameworks. Unlike antidiscrimination law, negligence does not require proof of intent and allows for liability where institutional actions or omissions create foreseeable risk. A detailed case study of Georgia’s Forsyth County Schools illustrates how the systemic racism as negligence framework would apply to anti-CRT policies that foreseeably reinforce racial subordination.

Ultimately, this Article offers a doctrinal intervention: a systemic racism negligence framework grounded in tort law and informed by CRT, which provides a normatively urgent and legally viable pathway for redressing systemic racial harm.