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IN THIS ISSUE

Front Page

Letter from the President

Notes on the Right: The Real “Unmentionable Secret”

Poll Shows Californians Think Race Discrimination Still a Problem

Unique Collaboration with Teachers’ Union Addresses Unconscious Bias in the Classroom

Dismantling the Intent Doctrine: an International View

Inequality in the Gene Age

Two New Books Focus on Rights Won and Lost

EJS Welcomes New Members; Motley Fellowship Launch

Staff/Board News & Notes

Newsletter Editors:
Elaine Elinson
Miguel Gavaldon

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Dismantling the Intent Doctrine: An International View

By Marianne Naveran
Spring 2006 EJS Law Clerk

In 1976, the U.S. Supreme Court decided in Washington v. Davis that a plaintiff must prove the intent of the defendant to discriminate, in order to prove that discrimination had occurred. This "intent doctrine" transformed our federal civil rights laws, making it much more difficult to litigate race discrimination cases. Unfortunately, the intent doctrine is still the legal standard in this country, despite the fact that social science has proven that unconscious bias is usually the cause of discrimination, making it near impossible to prove intent.

Today, EJS and other civil rights advocates are fighting to overturn this unattainable standard of intent. Fortunately, we are not alone. Outside of the United States, many countries have recognized that requiring intent hinders those who are the victims of discrimination from achieving equality.

It would be instructive, as United States Supreme Court Justice Anthony Kennedy has noted, to look at how courts in other nations address this issue.

When South Africa adopted its new constitution in 1994 after overthrowing the yoke of apartheid, the lawmakers specifically sought powerful measures to ensure racial equality. In its journey to end decades of brutal segregation and discrimination, the Constitutional Court stated that a showing of intent is not needed in order to establish that discrimination has occurred. One only needs to show that there has been a discriminatory outcome. This means that a plaintiff must prove that there was discrimination, i.e., different and unfair treatment based arbitrarily on immutable characteristics, such as skin color or gender. The Court, in deciding if discrimination has occurred, also takes into consideration the position of the plaintiffs in society and whether they have been victims of past discrimination. If the policy helps victims of past discrimination, such as affirmative action, it is deemed constitutional.

Canada is another example of a country rejecting the intent doctrine. According to the Canadian Supreme Court, in the 1985 case of O'Malley v. Simpsons-Sears:

"It is the discriminatory result, which is prohibited, and not a discriminatory intent. To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184)."

Canada recognizes that racial discrimination occurs through both conscious prejudice and more commonly through subconscious biases. Canadian law also recognizes that racial discrimination occurs on an institutional level. Therefore, an intent requirement would only hinder the pursuit for equality.

The trend of other democratic countries recognizing and rejecting the intent doctrine and its negative impact in addressing discrimination is an important one for U.S. jurists to take into account. Is it possible for the United States to also reject the intent requirement as an insurmountable standard in proving discrimination?

In recent years, several U.S. Supreme Court Justices, including Justices Ginsburg, Stevens, Kennedy, Breyer, Souter and former Justice O'Connor have recognized that court decisions from other countries, though non-binding, can provide useful insight on certain issues. Justice Ginsburg, for example, said that she refers to outside jurisdictions for guidance on common standards of fairness.
Of course, their wisdom has not gone unchallenged. Some Republican members of Congress proposed legislation barring the use of foreign law in Supreme Court decisions. On a more ominous note, Justice Ginsburg and former Justice O'Connor became targets of death threats after they expressed their openness to looking at international views of law.

EJS President Eva Paterson welcomed the views of the justices that international law and examples from other countries should be embraced for potential guidance in shedding light on often very difficult and complex decisions. "If the U.S truly wants to hold itself out as a world leader, then it must make sure that U.S. laws reflect freedom and equality," Paterson said.

"In order to fully eliminate discrimination and create an equal society, the U.S. should take guidance from our Canadian neighbors and our South African brothers and sisters and overturn the intent doctrine," she added.