The 14th Amendment was enacted after the Civil War to ensure that all Americans would receive equal protection of our nation’s laws regardless of their race or ethnicity. Despite the passage of the 14th Amendment, the nation suffered almost a century of State-sponsored segregation, intentionally promoted by Right-wing ideologues who value money and power over fairness and equality.
Many thought that era had ended when after decades of courageous – and often brutal – struggles for civil rights, the U.S. Supreme Court decided in 1954, in the landmark case of Brown v. Board of Education that the legal underpinnings of segregation were unconstitutional.
Yet two decades later, a more conservative court decided in Washington v. Davis that the protections against racial discrimination only applied if one could prove that it was intentional, creating what is known today as the Intent Doctrine. Today, because of the Intent Doctrine, it is no longer sufficient to prove that discrimination happened – one has to now prove that it was intentional, a legal standard absent in the international community of democratic societies.
But today, more than 140 years after the 14th Amendment was enacted, and five decades after Brown v. Board of Education, deep racial disparities persist. Equal protection jurisprudence has failed to keep pace with the way that discrimination is now practiced and experienced in contemporary American society. Three factors explain why: an assault by ideologues who promote a “colorblind” society; the doctrine of “intent,” which obstructs access to justice for victims of implicit bias and structural exclusion; and a conservative judiciary that has steadily chipped away at civil rights protections.