Private: Guest Blogger: Dismantling the Intent Doctrine and Healing Racial Wounds

by Susan Kiyomi Serrano, Research Director, Equal Justice Society

Given the public injunction against racism and the legal ban on intentional race discrimination, why is there so much racial angst, so much confusion and anger, and so little harmony?¹

Repairing the frayed and sometimes broken relationships between racial and ethnic groups is an imperative for the 21st Century. The history of racism in American law and culture has left undeniable scars on racial communities and on society's moral fabric. Healing deep wounds is integral to healthy present-day racial interactions.²
Race and racism, however, are topics often difficult to discuss. How do we develop the concepts and language we need to deal with historical and ongoing discrimination and healing "in ways that build, rather than destroy, relationships?"³
One component of racial healing is justice under law. Justice is difficult to achieve when the law fails to reflect the actual experiences and perceptions of communities who have seen and felt discrimination.⁴ The constricted "intent doctrine" that permeates antidiscrimination law, for example, ignores much of what we know about the dynamics of discrimination and therefore deprives many of redress for discrimination.
The intent doctrine requires plaintiffs to prove the near-impossible: a decisionmaker's specific intent to discriminate⁵. In cases alleging violations of the Equal Protection Clause, for example, it is not enough for a plaintiff to show that the defendant acted with knowledge that its actions would have a discriminatory impact on an identifiable racial group.⁶ Instead, plaintiffs much 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 hurdles, the law will not recognize the discrimination he or she has experienced, even though some form of discrimination has come into play.
The "intent" standard is ineffective to remedy continuing racial inequality and disparity because it fails to reflect how a large part of discrimination actually occurs. The doctrine views discrimination as an isolated, individual phenomenon resulting from the specific and identifiable "intent" or bias of a sole actor or set of actors. But what about decisionmaker actions that do not involve "intent" to discriminate, but involve subconscious or institutional bias? In such cases, would the intent requirement undermine a viable discrimination claim?
A New Way to Redefine How Discrimination Occurs: Social Cognition Theory and Critical SociologySubstantial empirical and theoretical work in cognitive social psychology and critical sociology offers new progressive formulations for antidiscrimination law. This impressive body of research has confirmed that much of society's racism is not a series of unconnected, intentional acts, but is a collective, historically-influenced, institutionalized and often subconscious process.
According to social cognition theory, all of us have cognitive biases that influence how we perceive and make decisions about other people.⁷ In other words, the behavior of human beings is often guided by racial and other stereotypes of which we are completely unaware.⁸ Specifically, the human mind relies on categorization as a basic tool for interpreting perceptions, encoding those perceptions into memory, and making both conscious and subconscious decisions based on those perceptions and memories. "[P]eople continually use cognitive shortcuts-exaggerations, oversimplifications, generalizations-to allow them to prioritize and, in some gross way, make sense of the overload of incoming information. Racial stereotyping is one method that people employ almost automatically in order to understand their surroundings."⁹
These cognitive filters and shortcuts distort social perception, judgment, and decisionmaking. This often occurs beyond the decisionmaker's awareness, and without the specific intent to favor members of a particular social group.
This subconscious process contributes to discrimination in several ways. As a result of this stereotyping process, people perceive members of outgroups to be an "undifferentiated mass"-they all look the same. Favorable traits are subconsciously assigned to the individual's own group, and disfavorable traits are assigned to outgroups or "others." People recall negative behavior of outgroup members and tend to favor ingroup members in the allocation of rewards even in the absence of blatant prejudice, ill-will or animus.
Organizational sociology supports and supplements the conclusion that discrimination can occur independent of any invidious intention. This body of work similarly has concluded that discrimination can be built into institutional structures, practices and norms-it is in the fabric of how institutions work. Actors within these structures act according to established institutional norms and practices that, sometimes, reflect discriminatory beliefs. In other words, the discrimination that some groups suffer results not from the tyrannical acts of a dominant ruler, but from the daily practices of a generally well-intentioned society-it is "embedded in unquestioned norms, habits, and symbols."
This extensive empirical and theoretical work shows that the current law ignores much of what we understand about how both the human mind and societal structures work. The "intentionalist" view of discrimination and the law linked to it thus misunderstand the actual cognitive dynamics of discrimination and the impacts of institutional structures on the daily lives of racial communities. Many of these powerful studies and theories, however, are not being fully utilized on the front lines of the political debate or in courtrooms by civil rights advocates.
Implications for Racial Healing and Justice Under Law
The sociological and psychological studies on subconscious and institutional bias can be used in the public discourse to talk about and address racial healing. In general, on a conscious level, people want to be free of racism, but our "cognitive shortcuts often will override even volitional good will."¹⁰ Most people can and do act in a reasonably nonprejudiced way when they are thinking that they might do so, but demonstrate remarkably deep-seated stereotyping in the thousands of other circumstances that happen every day.¹¹
Talking about race in terms of healing rather than blame provides an opportunity to talk about race and racism in ways that build, rather than destroy, relationships.¹² Part of this healing process involves educating each other about the ways in which subconscious bias affects how all of us make judgments and decisions. Indeed, the research "shows that unconscious bias may be reversed for subjects holding conscious egalitarian views once the unconscious bias is brought to the subject's attention."¹³ These studies also provide the tools to begin to redefine antidiscrimination law. The research can be used to craft practical and incremental steps to introduce a new understanding of discrimination into the law using existing case language, but in a fashion that fits closely with psychological and sociological work on how discrimination actually operates. A long-term incremental transformation of "intent" will entail blending innovative legal strategies and argument, scholarship, media, and public education efforts.
The Equal Justice Society (EJS) has long focused its work on intent and bias through our conferences, briefs, reports and writings, and we have assembled an impressive working group that has participated in a series of conference calls to discuss both long-term strategy on intent as well as immediate approaches for litigating intent in pending cases.
EJS is now bringing together key individuals and groups from various disciplines to create a coordinated strategic plan (both long-term and short-term) for dismantling the Intent Doctrine. Specifically, participants are: (1) identifing cases and areas of law where the reframing of intent doctrine is needed; (2) learning about the latest empirical and theoretical studies in cognitive psychology and organizational sociology on how discrimination actually occurs (subconsciously, institutionally, etc.); (3) discussing existing scholarship in this area (legal and otherwise); (4) discussing possible long-term incremental legal strategies to reframe the intent doctrine; and (5) brainstorming ways to introduce a more accurate understanding of discrimination into the law and into the public consciousness (media, law reviews, news articles, op-eds, etc.).
EJS is also hosting its first annual writing competition on the Intent Doctrine. The competition is an integral part of the EJS effort to provide lawyers with the tools to challenge the faulty assumptions of the "Intent Doctrine" and to develop long-term strategies for introducing a more accurate understanding of discrimination into the law. For more information, please visit this link.

Editor's Note: ACSBlog's Moveable Type platform does not easily lend itself to legal citations. Any Bluebooking errors are the fault of either myself or Moveable Type. -Ian
1. ERIC YAMAMOTO, INTERRACIAL JUSTICE: CONFLICT AND RECONCILIATION IN POST-CIVIL RIGHTS AMERICA 83 (1999).
2. See id.
3.Id.
4. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R-C.L. L. REV. 323, 324 (1987) ("[T]hose who have experienced discrimination speak with a special voice to which we should listen. Looking to the bottom-adopting the perspective of those who have seen and felt the falsity of the liberal promise-can assist critical scholars in the task of fathoming the phenomenology of law and defining the elements of justice.").
5. "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265 (1977). According to the United States Supreme Court, "official action will not be held unconstitutional solely because it results in a racially disproportionate impact. 'Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.'" Id. at 264-65 (citing Washington v. Davis, 426 U.S. 229, 242 (1976)). Claims alleging violations of Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance), also require a showing of discriminatory intent. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001) ("Title VI itself directly reach[es] only instances of intentional discrimination.") (citation omitted).Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin) prohibits "not only overt discrimination ["disparate treatment"] but also practices that are fair in form, but discriminatory in operation ["disparate impact"]." Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (brackets added). To prove "disparate treatment" under Title VII, a plaintiff must demonstrate that the "employer . . . treats some people less favorably than others because of their race, color, religion, sex, or national origin." Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335 n.15 (1977). Proof of discriminatory intent in disparate treatment cases, "is critical, although it can in some situations be inferred from the fact of differences in treatment. Id. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence. As Professor Linda Krieger has observed, "under existing law, the disparate treatment plaintiff must prove not only that she was treated differently, but that such treatment was caused by purposeful or intentional discrimination. Particularly in the context of race and national origin, discrimination is represented as resulting from the decisionmaker's discriminatory animus towards members of the plaintiff's racial or ethnic group." Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1168 (1995). In "mixed motive" cases under Title VII, where the employer makes an adverse employment decision based on both legitimate and nonlegitimate reasons, the plaintiff must show that an impermissible reason such as race or gender played a "motivating part in an employment decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989). The employer "may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed [race or] gender to play such a role." Id. at 245.In contrast, claims based on "disparate impact" theory "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Int'l Brotherhood, 431 U.S. at 335 n.15. A plaintiff advancing a claim of discrimination under disparate impact theory need not prove discriminatory intent. See id.
6. Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) ("'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . 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.").
7. Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN L. REV. 317, 323 (1987) ("T]he theory of cognitive psychology states that the culture-including, for example, the media and an individual's parents, peers, and authority figures-transmits certain beliefs and preferences. Because these beliefs are so much a part of the culture, they are not experienced as explicit lessons. Instead, they seem part of the individual's rational ordering of her perceptions of the world. The individual is unaware, for example, that the ubiquitous presence of a cultural stereotype has influenced her perception that blacks are lazy or unintelligent. Because racism is so deeply ingrained in our culture, it is likely to be transmitted by tacit understandings: Even if a child is not told that blacks are inferior, he learns that lesson by observing the behavior of others. These tacit understandings, because they have never been articulated, are less likely to be experienced at a conscious level.").
8. Gary Blasi, Advocacy Against The Stereotype: Lessons From Cognitive Social Psychology, 49 UCLA L. REV. 1241, 1275 (2002).
9. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1188 (1995). Applying cognitive psychology, Professor Krieger examines the assumptions about human inference embedded in current disparate treatment theory and questions the premise that discrimination necessarily manifests an intent or motive. She suggests that a large number of biased employment decisions result not from discriminatory motivation, but from a variety of unintentional categorization-related judgment errors characterizing normal human functioning. See also John F. Dovidio & Samuel L. Gaertner, Aversive Racism and Selection Decisions: 1989 And 1999, 11 PSYCHOL. SCI. 315 (2000); John F. Dovidio et al., Implicit and Explicit Prejudice and Interracial Interaction, 82 J. PERSONALITY & SOC. PSYCHOL. 62 (2002); Allen R. McConnell & Jill M. Leibold, Relations Among the Implicit Association Test, Discriminatory Behavior, and Explicit Measures Of Racial Attitudes, 37 J. EXPERIMENTAL SOC. PSYCHOL. 435 (2001); Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation Of Prejudice Against Black Defendants in the American Courtroom, 7 PSYCHOL. PUB. POL'Y & L. 201 (2001); Steven J. Spencer et al., Automatic Activation Of Stereotypes: The Role Of Self-Image Threat, 24 PERSONALITY & SOC. PSYCHOL. BULL. 1139 (1998).
10. Judith Olans Brown, et al., Some Thoughts About Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 EMORY L.J. 1487, 1497 (1997).
11. See Yamamoto, supra 12. See id.
13. Deana A. Pollard, Unconscious Bias and Self-Critical Analysis: The Case For A Qualified Evidentiary Equal Employment Opportunity Privilege, 74 WASH. L. REV. 913, 915-16 (1999).