Document Type
Article
Publication Title
Harvard Civil Rights-Civil Liberties Law Review
Publication Date
2026
Volume
61
First Page
615
Abstract
(Excerpt)
If negligence doctrine can hold polluters liable for foreseeable toxic harm, should it not also hold schools liable for the racial toxins their policies foreseeably cause? Negligence serves as a critical doctrinal vehicle for redressing harm resulting from failures to exercise care. Embedded in common law traditions, negligence doctrine has evolved significantly through application to new contexts where systemic, rather than individualized, failures produce harm. Some courts have applied negligence doctrine to an expanding range of institutional responsibilities, from medical malpractice to corporate liability. Yet, despite the doctrine’s flexibility, courts have not applied the framework to address one of the most pervasive, enduring, and structurally embedded forms of harm in American society: systemic racism.
As used throughout this Article, systemic racism does not refer to every instance of racial disparity, but to contemporary racial inequities that result from rules, statutes, regulations, and policies that reinforce the centuries-long, imbalanced accumulation of racial power. Such rules allocate opportunity and risk along established racial lines and thereby reproduce and perpetuate racial hierarchy even when individual actors do not harbor discriminatory intent. This Article contends that systemic racism is the foreseeable consequence of institutional design choices that ignore the historical context of how racial power operates across systems and through policy. As such, this Article argues that systemic racism is a legally cognizable harm under existing negligence doctrine and that American societal institutions, specifically public school districts, should be held liable when institutional policies foreseeably entrench racial disparities. Foreseeability is established through institutional knowledge of racially disparate impacts, public and administrative data documenting these disparities, or through special relationships.
Comments
Available at: https://journals.law.harvard.edu/crcl/vol-61-no-2-summer-2026/