For more than two decades, the Equal Justice Society has fought to reclaim the 14th Amendment by dismantling the “intent standard” established in the June 7, 1976, decision by the U.S. Supreme Court in Washington v. Davis requiring an almost impossible burden on plaintiffs to prove decision-maker’s conscious intent to discriminate.
Prior to the Washington v. Davis ruling, plaintiffs in equal protection violation cases could prove discrimination in courts by showing “disparate impact” or the discriminatory results of a policy, practice, or action.
By replacing disparate impact with the intent standard, the Supreme Court advanced white supremacy by ruling that it was not enough to demonstrate discriminatory outcomes, but that plaintiffs must also prove that there was discriminatory intent behind the challenged action.
In 1978, the Supreme Court applied the intent standard in McClesky v. Kemp, despite overwhelming evidence presented by the NAACP Legal Defense Fund that the Georgia criminal system administered the death penalty in an arbitrary and racially discriminatory manner against Black defendants.
White supremacy is aided by the erosion of the constitutional protections due people of color, which is exactly what happened in Washington and McClesky. “Requiring evidence of racist intent means that many laws that harm minorities, either by design or as a result of vestigial racial bias, nevertheless survive constitutional scrutiny,” wrote Mark Kende and Dahlia Lithwick. “Those laws in turn perpetuate racial disparities and weaken minorities’ political power, while the people who make laws have no incentive to upend the order they have created.”
EJS has tracked cases in which the intent standard is implicated, participated in amicus briefs related to intent, highlighted the ways in which the intent standard fails to consider modern social science, worked with social scientists to connect concepts of implicit bias and structural racism to the law, and participated as co-counsel in various anti-discrimination cases.
EJS submitted an amicus brief in Texas Department of Housing and Community Affairs v. Inclusive Community Project on the relationship between implicit bias and disparate negative impact in government decision-making. In its critical 2015 decision in that case, the Supreme Court affirmed that disparate impact may be applied in Fair Housing Act cases and stated that such liability standard “permits plaintiffs to counteract unconscious prejudices and disguised animus as disparate treatment.”
On this 46th anniversary of the Washington v. Davis decision, EJS reaffirms its dedication to saving our democracy. We are more committed than ever to name and stand up to white supremacy and racist terror and violence. We are clear-eyed about the SCOTUS right wing supermajority’s assault on civil rights and racial justice and the enormous barriers stacked against the people and communities of color we work with in the federal courts.
These existential challenges do not change the insidious harm caused by the intent standard—science and basic fairness still dictate that it is wrong to require civil rights litigants to prove intent to discriminate to enforce equal protection under the law.
Even in this bleak landscape, there is opportunity for progress through litigation in states like California, and more broadly through policy advocacy and training, to preserve and even broaden application of a disparate impact standard both to prove discrimination and to address structural racism.
EJS utilizes disparate impact and implicit bias frameworks to represent students, parents, and community organizations in challenging California school districts that exclude and unfairly discipline Black and Latinx students and students with disabilities.
EJS and partner organizations are further breaking ground by taking this work to a statewide level in cases that challenge the California Department of Education to implement reforms designed to measurably and significantly reduce racially discriminatory discipline and transfer policies in offending districts. This is the work needed to dismantle the school-to-prison pipeline.
In support of a domestic violence survivor who successfully appealed a custody order that endangered her and her minor son, EJS filed a unique amicus brief that surveyed the research on the relationship between implicit bias and disparate negative outcomes for Black women in family court and other cases. The brief also described measures many courts are taking that have been shown to mitigate implicit race and gender bias.
EJS’s upcoming trainings include Making Equal Protection Real in a Time of Civil Rights Retrenchment: Why the Intent Standard for Proving Discrimination is Still Wrong for Disability Rights California’s summer green bag series on July 20.