Sunday, November 19, 2017

Ian Haney-López

Abstracted from: Ian Haney-López, Intentional Blindness, 87 New York University Law Review 1996 (December, 2012)(280 Footnotes)


       The Court that refused to see inequality . . . would be making the only kind of law that can be warranted outrageous in advance--law based on self-induced blindness, on flagrant contradiction of known fact.  --Charles Black 
 

      Since the end of the civil rights era in the early 1970s, the emancipatory potential of the Fourteenth Amendment has been thoroughly undone. Today, its guarantee of “equal protection” no longer promotes reform but rather protects the racial status quo. This undoing has spanned four decades, with sharp plunges followed by ever-lower plateaus. These reversals have come in two principal areas: in how the Supreme Court evaluates claims of discrimination against non-Whites, an area governed by intent doctrine; and in how it regards affirmative action designed to ameliorate racial inequality, where colorblindness reigns.

      We find ourselves now in a renewed period of rapid devolution for equal protection. With Ricci v. DeStefano in 2009, conservatives on the Court began to export the logic of intent doctrine beyond constitutional law to statutes prohibiting discrimination. This logic impugns the use of social science to prove discrimination and insists instead on unworkable determinations of individual animus. Meanwhile, the Court extended colorblind hostility beyond affirmative action with its 2007 decision Parents Involved in Community Schools v. Seattle School District No. 1. In addition to proscribing efforts to preserve integrated K-12 education, Parents Involved may imperil race-consciousness in general policymaking, even where no individual is classified by race or suffers a discrete harm. Given the emergence of Justice Anthony Kennedy as the swing vote in racial cases, there is also good reason to fear that the Court will soon end affirmative action in higher education. Finally, speculation is rife that the Court may be tempted to extend this ban beyond state actors and to prohibit affirmative action by private universities as well as corporations, foundations, unions, and hospitals.

      In the next few months and years, scholars will react to these changes, a few extolling and most bemoaning them, many focusing on distinct cases and some seeing overarching patterns. Yet almost all will accept as the foundation for their engagement the basic division in equal protection between intent and colorblindness. Most critics of intent doctrine ignore its relationship to colorblindness, and vice versa. Others perceptively note that intent and colorblindness work hand-in-glove to preserve the racial status quo, but stop short of examining how these doctrines inform each other. This Article takes a completely different approach. It seeks to understand the present and near future by revising our understanding of the past. In this vein, it offers a wholly new conception of the relationship between discriminatory intent doctrine and colorblindness.

      The pronounced tendency to regard these doctrines as fundamentally distinct is understandable. They not only operate in different domains, they also seem to be mirrored inversions of one another. Colorblindness today applies when a government actor explicitly employs a racial classification. In practice, this covers affirmative action policies and little else. Under colorblindness, the remedial motives behind affirmative action are irrelevant. Indeed, frequently the Court asserts that whether the government's motives are benign or invidious is inherently unknowable. Distrusting its ability to parse the state's intentions, the Court under colorblindness subjects all affirmative action policies to the most stringent level of “scrutiny,” which is to say, it requires the highest level of governmental necessity before such programs will be allowed. This scrutiny is so onerous that, since colorblindness gained five adherents on the Court in 1989, only one affirmative action case has been held to meet that standard --a holding that is now imperiled as the Court reconsiders affirmative action in higher education in the 2012 Fall Term.

      In contrast, intent doctrine applies to allegations of discriminatory treatment where a racial classification is not explicitly used. In effect, this covers all contemporary cases of discrimination against non-Whites, since instances of frank and open mistreatment are now virtually nonexistent. In its modern incarnation, intent doctrine demands that plaintiffs prove a state of mind akin to malice on the part of an identified state actor. Theoretically, the existence of an illicit purpose is the touchstone of the doctrine. In practice, however, the requirement that malice be proved is so exacting that, since this test was announced in 1979, it has never been met--not even once. The result is that, under intent doctrine, the Court defaults to the most lenient level of review and then rejects the discrimination claim in all cases involving allegations of discrimination against non-Whites.

      In short, colorblindness applies to affirmative action; intent doctrine sweeps up allegations of discriminatory treatment against non-Whites. Colorblindness denies that the state's purposes can be discerned; intent doctrine demands proof of malicious purpose. Colorblindness consistently imposes the most stringent form of scrutiny; intent cases always default to the most lenient form of constitutional review. Plaintiffs challenging affirmative action under colorblindness virtually always win; parties challenging discrimination under intent doctrine almost invariably lose.

      Yet despite these dramatic dissimilarities, intent and colorblindness are profoundly connected. How could they not be? The contemporary versions of these doctrines were elaborated at the same time, by the same Justices, and to the same ultimate effect: to defeat challenges to, and remedies for, discrimination against non-Whites.

      Moreover, for both doctrines, the basic method was and is the same: to deny that context matters. In declaring that malice is the only form of intent that counts, discriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science. More generally, it blinds the courts to the obvious truth that discrimination has evolved since the civil rights era and no longer exclusively takes the form of hooded bigotry. Meanwhile, in pronouncing that motives are unknowable and hence irrelevant, colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration. Most fundamentally, colorblindness ignores the changes wrought by the civil rights movement itself, which moved the country from one seeking to enforce racial supremacy to one hoping for its eradication.

      As we grapple with the present and look to the future, we should no longer see equal protection as divided between intent and colorblindness. Instead, we should understand it as unified under what might best be termed “intentional blindness.” Combining the names of the two doctrines, this portmanteau expresses the marrow of the Court's racial jurisprudence--which seems intentionally blind to racial context, including the persistence of racial discrimination against non-Whites, and the desire of democratic majorities to remedy this lingering stain on American justice.

      This Article is divided roughly in half. The first half, comprised of Parts I through III, examines equal protection before the advent of colorblindness. At that time, one doctrine--discriminatory intent--applied to both express and non-express uses of race. These Parts reconsider intent doctrine as it functioned through Washington v. Davis in 1976 and slightly beyond. The overwhelming consensus among constitutional scholars is that Davis is the source of today's failed doctrine, insofar as it required direct proof regarding the minds of government actors. In the words of Laurence Tribe, “Davis announced . . . a search for a bigoted decision-maker.” Indeed, this is what virtually every constitutional law casebook teaches. But this is wrong, and consequentially so, for this mistake precludes attention to a doctrine that once worked tolerably well.

      Part I reviews intent doctrine as it operated during the civil rights era, showing that a contextually grounded evaluation of governmental purposes undergirded the Court's dismantling of Jim Crow segregation. To describe this practice, this Part introduces a core distinction between “contextual intent” and “malicious intent.” Contextual intent characterizes intent as applied until the late 1970s, during which time it was a broadly informed inferential approach that focused on motives only in the loosest sense (and sometimes not at all). Malicious intent, characteristic of contemporary jurisprudence, declares direct proof of injurious motives a prerequisite and, more pertinently, renders contextual evidence irrelevant.

      Part II focuses on Davis. While acknowledging that Davis formed part of a gathering backlash against civil rights, this Part also shows that Davis did not demand proof regarding individual mindsets. Instead, Davis helped formalize the Court's long-established contextual approach to proving intent. Part III demonstrates why the corrective rehabilitation described in Part II is so important. Focusing on two all-but-forgotten cases from 1977, Part III shows that the contextual intent approach worked tolerably well through that year. First, in Castaneda v. Partida, the recourse to broadly inferential methods--including the use of social science--allowed the Court to identify entrenched discrimination even when it did not take the form of de jure segregation. Second, and more startling from a contemporary perspective, Part III shows that intent doctrine once applied to affirmative action. As late as 1977, equal protection was unified under the contextual intent approach, and did not distinguish cases based on the presence of an express racial classification. Moreover, when applied in United Jewish Organizations of Williamsburgh, Inc. v. Carey (UJO) to race-based classifications used by the government to promote racial equality, the intent test readily upheld affirmative action. In short, in 1977 the contextual intent test proved able to accomplish the two fundamental tasks at which current equality jurisprudence grievously fails: detecting discrimination against non-Whites and distinguishing invidious from remedial government practices.

      The Article's second half, in Parts IV through VII, details the heretofore unrecognized symbiosis between colorblindness and intent: Colorblindness arose in response to intent doctrine, especially as applied to affirmative action, and in turn, colorblindness impelled intent doctrine toward a singular focus on malice. Part IV sketches a timeline of colorblindness cases--showing that the Court decided Bakke, which first introduced colorblind reasoning, one year after its decision in UJO upholding affirmative action. The main focus of this part, however, is on Personnel Administrator of Massachusetts v. Feeney, the intent case that first introduced the malice standard. This part shows that Feeney drew directly on Bakke in announcing a new (and now settled) bifurcation of equal protection. Express uses of race would now receive strict scrutiny under colorblindness, while cases lacking an express use of race would fall under intent doctrine. It then argues that colorblindness directly contributed to shifting intent from a focus on context to a demand for proof of malice.

      Part V traces the rise and application of malicious intent across the 1980s in three key cases: Mobile v. Bolden, involving voting rights; Memphis v. Greene, closing a public street traveling between White and Black neighborhoods; and McCleskey v. Kemp, the infamous Georgia death penalty case. It shows that the malice test rendered historical and contemporary evidence of ongoing discrimination irrelevant, including powerful evidence from the social sciences. This Part also demonstrates how a double standard arose in these cases. To defeat claims of discrimination against non-Whites, the Court consistently turned to the sorts of contextual evidence and broad inferential reasoning it otherwise disallowed when plaintiffs sought to prove mistreatment. In other words, the Court consistently inferred innocence, even as it repeatedly demanded direct proof of malice.

      Part VI reconsiders the actual operation of malice doctrine to offer a damning critique heretofore missing from the literature. Virtually all of intent doctrine's critics accept that today's intent standard actually searches for illicit motives. This is evident in the two primary critiques they lodge. First, critics reprove an exclusive focus on conscious animus that imperils attention to unconscious bias. Second, they remonstrate that requiring proof of malice disables the courts from remedying entrenched disadvantage. In either event, they chide the Justices for failing to improve intent doctrine by updating its conception of cognition and broadening its focus from mindsets to structures. Yet in both cases, these critics assume that the malice test is in fact geared to searching for illicit motives.

      Upon reexamination, the conservative Justices may have repeatedly exhorted proof of malice, but they showed no interest in parsing mental states. Instead, their demands seemed geared to closing the courthouse doors to evidence showing continued racial hierarchy. To make this point as powerfully as possible, this Part asks how the malice test would resolve a challenge to Jim Crow segregation. It concludes that the malice approach would fail to arrive at the correct result even in a case like Brown v. Board of Education--the paradigmatic equal protection case of the twentieth century.

      Bringing the analysis up to the present, Part VII starts by demonstrating the consolidation of intent and colorblindness during the 1990s. This consolidation occurred in two senses: first, in terms of the emergence of a solid bloc of conservative Justices who repeatedly voted to ignore racial discrimination and to strike down affirmative action; and second, in terms of a striking convergence between colorblindness and intent. In a series of decisions challenging the race-conscious creation of voting districts with non-White majorities, the Court applied the intent test, but altered its meaning yet again. The conservative Justices no longer looked for malice, but instead for the intentional use of race--what might be termed “classificatory intent.” Of course, an intent test that searches for an intentional use of a racial classification differs little from a colorblindness rule that applies whenever there is an intentional use of race.

      Part VII continues by discussing intentional blindness and the Roberts Court, considering specifically Parents Involved and Ricci. Taken together, these cases as well as others suggest a new plunge in equal protection doctrine. Until very recently, intentional blindness toward racial discrimination was an affliction largely imposed only on the courts. Recent cases suggest a move to blind government generally, as well as to blind private actors such as employers, foundations, universities, and unions.

      The Article concludes by offering an encomium to recently retired Justice John Paul Stevens. Appointed by a Republican president and initially hostile to affirmative action as well as to claims of discrimination against non-Whites, Stevens proved willing to learn over his career about racism and social repair. His trajectory emphasizes the irreducible importance of a judiciary with an open mind. Meanwhile, the degree to which his trajectory is truly exceptional serves as an indictment of the current Court, which remains dominated by conservatives wedded to intentional blindness.

      A last introductory word: This Article focuses on doctrine, but it is not a doctrinal article. Instead, it takes doctrine seriously in order to lay bare the racial politics of the conservative Justices who have reversed equal protection over the last four decades. This story could be told much more simply in terms of elections and judicial appointments. In this version, equal protection's transmogrification since the 1970s follows most fundamentally from a broad backlash against civil rights that resulted in the election of presidents, and in turn the appointment of Justices, hostile toward racial progress. Those Justices, who consistently refused to find discrimination against non-Whites, or to support affirmative action programs, were prepared to reach those results without doctrine or evidence on their side. Crucially, though, they were also quick to craft doctrines and evidentiary standards that confirmed their favored outcomes. It is here that the story becomes complicated, widely misunderstood, and critically important. True, malice doctrine and colorblindness were not so much engines for rolling back civil rights as they were a dissimulating gloss. Over time, however, this gloss has hardened into a strong protective carapace. So long as colorblindness and discriminatory intent remain misunderstood as separate and plausible doctrines, it will be all but impossible to understand ongoing devolutions in the Court's racial jurisprudence. Charles Black in 1960 described the refusal to see racial inequality as self-induced blindness. Colorblindness and intent doctrine are the bandages the Justices use to blind themselves to continued racism against non-Whites. The doctrines also serve to hide from public view the Court's ferocious disfigurement of equal protection. This Article aims to help strip away those stained dressings of rhetoric and pretense.

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