Intent Doctrine

The foundation of the Equal Justice Society (EJS) is based on the premise that racial justice cannot be achieved when the law fails to reflect actual experience.  Under existing equal protection law, the constricted “Intent Doctrine” (as established in the 1976 United States Supreme Court decision Washington v. Davis) ignores much of what we know about the dynamics of modern day discrimination and therefore deprives underrepresented groups access to our courts and redress for discrimination.

The Intent Doctrine requires plaintiffs to prove an almost impossible burden: a decision-maker’s conscious intent to discriminate.  Plaintiffs must show that the defendant “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”  If a plaintiff cannot overcome these challenging hurdles, the law will not recognize the discrimination experienced.

In the 1980s, the United States began effectively locking the courthouse doors to those who used the law to achieve justice in a variety of ways.   In 1988, a blueprint to takeover the courts and maintain enforcement of the Intent standard was disseminated by the U.S. Department of Justice Office of Legal Policy.

In the following year, a U.S. Supreme Court majority embraced a colorblind approach to the law when it rejected race-conscious remedies in City of Richmond v. Croson.  Notions of the Constitution requiring colorblindness had begun a decade earlier amidst opinions of a fractured Court in Regents of University of California v. Bakke.

In Croson, the Court turned a blind eye to the history of racism that has plagued the United States and determined to treat Whites and people of color as if they were similarly situated in certain
contexts.  The Croson Court held that affirmative action measures must be subjected to the same strict scrutiny applied when reviewing laws designed to promote White supremacy.  This is the highest and most difficult standard of review ever applied by the Court and requires that a race-based remedy be “narrowly tailored” to achieve a “compelling government interest.”

At the turn of this century, and consistent with the colorblind and Intent-standard related movements, the Supreme Court delivered another blow to plaintiffs seeking redress for discrimination.  In Alexander v. Sandoval, the Intent Doctrine was extended to limit the reach of Title VI relying on the colorblind rationale
articulated in Croson.

Prior to Sandoval, private plaintiffs had been able to use Title VI to seek redress for institutional, structural, and systemic discrimination promulgated by institutions receiving federal funds.  However, contrary to nearly thirty years of precedent, the Court held that Title VI could no longer be used by private plaintiffs.  In one decision, the Court significantly impeded private enforcement of civil rights laws.  As a result of these attacks on civil rights, it is nearly impossible for victims of race-based discrimination to avail themselves of the protection of the 14 Amendment of the U.S. Constitution.

Social psychologists, critical sociologists and other social scientists have developed empirical and theoretical research showing that the Intent Doctrine fails to reflect how a large part of discrimination actually occurs.  According to these studies, all of us have “unconscious” biases that influence how we perceive and make decisions about other people.  Individual and institutional discrimination, often guided by these cognitive biases and stereotypes, can occur even in the absence of blatant prejudice.

Many of these powerful theories and studies, however, are not being fully utilized on the front lines of the political debate or in courtrooms by civil rights advocates.  In order to provide lawyers with the tools to challenge the faulty assumptions of the Intent Doctrine, EJS brings together social scientists, lawyers, pollsters, legal academics and students to develop long-term strategies for introducing a more accurate understanding of discrimination into the law.

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