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Vol. 103, Issue 5


What is Discriminatory Intent?

Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, Mark Claster Mamolen Teaching Scholar.

28 Jul 2020

The Constitution’s protection of racial and religious groups is organized around the concept of discriminatory intent. But the Supreme Court has never provided a crisp, single definition of ‘discriminatory intent’ that applies across different institutions and public policy contexts. Instead, current jurisprudence tacks among numerous, competing conceptions of unconstitutional intent. Amplifying the doctrine’s complexity, the Court has also taken conflicting approaches to the question of how to go about substantiating impermissible motives with admissible evidence.

The Court’s pluralistic view of intent is in theory plausible, and perhaps even unavoidable. But its lack of any consistent approach in practice to the question of how to sift and weigh different sorts of evidence of unconstitutional motive is not defensible. Rather, the current doctrinal apparatus for discovering discriminatory intent has hidden regressive effects: It subtly and silently moves evidentiary burdens between different plaintiffs and between different defendants. The resulting case outcomes are likely to shape the way in which the public perceives the extent and nature of unconstitutional discrimination. This perceptual effect, in turn, compounds and entrenches the doctrine’s regressive distributive effects.

In lieu of current arrangements, I propose a revised doctrinal framework that acknowledges conceptual pluralism in the constitutional law of antidiscrimination, while encouraging courts to acknowledge frankly and manage responsibly that conceptual diversity. It also reorients the evidentiary framework for demonstrating discriminatory intent to mitigate the presently distorted allocation of judicial resources.

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