Intent Standard

Challenging the Intent Standard

Driven by a vision of a society where race is no longer a barrier to opportunity, EJS is one of few institutions explicitly focused on overturning barriers to implementing the robust anti-discrimination protections inherent in the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

What is the intent standard?

The Intent Standard was established as a result of the 1976 Supreme Court decision, Washington v. Davis, which requires plaintiffs to prove a perpetrator’s discriminatory “intent” in order to prove an anti-discrimination claim.  However, because contemporary discrimination is frequently structural in nature, unconscious, and/or hidden behind pretexts (despite the fact that a tangible harm has resulted from their actions), the showing of “intent” becomes a near impossible burden for plaintiffs. We believe that the courts should strike down the intent standard and replace it with the disparate impact standard, which instead asks for a plaintiff to prove whether a policy or action causes disproportionate harm to their protected class, often through statistical evidence.

What is the history of the standard?

In the wake of Washington v. Davis, the Supreme Court has expanded the intent standard’s reach into almost all equal protection cases. In 1987, McCleskey v. Kemp imposed it on challenges to death sentences, almost entirely preventing capital defendants from raising the issue of race in their defense. Alexander v. Sandoval (2001) employed the standard to prevent private plaintiffs from using Title VI to seek redress for institutional, structural, and systemic discrimination promulgated by institutions receiving federal funds.

The notion of proving “intent” has also bled into areas of law outside of equal protection jurisprudence.  In recent years, courts have demanded that plaintiffs prove “intent” in education, employment, criminal law and environmental cases.  Thus, protection against any form of discrimination is under attack as long as the “intent” standard remains in place, making our work ever more pertinent.

How does it affect the pursuit of racial justice?

Existing equal protection law fails to incorporate many modern-day manifestations of discrimination and therefore deprives potential plaintiffs of access to our courts and redress for discrimination.  Moreover, conservatives have worked to entrench the “intent” approach and push us down a path towards colorblind Constitutionalism.

To address this problem, EJS has successfully facilitated the incorporation of the cognitive science theory of “implicit bias” (also known as “unconscious bias”) into both litigation and public policy discourse surrounding discrimination law.  “Implicit bias” challenges the common perception and legal fallacy that discrimination solely results from intentionally malicious attitudes and actions – instead postulating that all of us, regardless of gender, race, or background, have cognitive biases that can influence our perceptions and decisions relative to others around us.

EJS has played a defining role at the state and national levels in the courts, on policy initiatives, and in the public discourse on race. This includes transforming the very legal doctrines that support ongoing discrimination in society.