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Abstract:
Building on the psychological research and publications indicating that much discrimination is unconscious and the result of implicit bias, this Article addresses the utility of laws that prohibit intentional discrimination in addressing this recently understood form of discrimination. More specifically, does unconscious discrimination violate a statute that prohibits intentional discrimination? The Article argues that the answer is yes.

Unconscious discrimination is the result of stereotyping or categorization, a cognitive mechanism used by most people to simplify the task of perceiving, processing and retaining information about people. Absent a special effort to overcome this cognitive mechanism in making decisions about people, such decisions are frequently made on the basis of the category into which the decisionmaker places the person, rather than an individualized assessment. When a decisionmaker chooses to base decisions on the category into which an individual falls, rather than an individual assessment, the decisionmaker has made an intentional choice. Thus, the argument advanced here is that the intentional decision to discriminate is made when a decisionmaker chooses to use categories rather than an individual assessment, not at the precise point where a specific decision is made. Therefore, while a specific decision to hire or fire may not be the result of intentional discrimination at the point where the decision is made, it is, nevertheless, the product of intentional discrimination because at some point the decisionmaker decided to base decisions on categories rather than an individual assessment.

The Article also discusses the common proof schemes for disparate treatment claims, including the direct method, the indirect method (McDonnell-Douglas) and mixed-motive. When the direct method is properly understood to include circumstantial evidence, it becomes the dominant method of establishing intentional discrimination. The key to proving intentional discrimination is showing that the decisionmaker engages in stereotyping and a likely way to establish this is through comments made by the decisionmaker, not necessarily in the context of the challenged decision. Once it is established that the decisionmaker engages in stereotyping and has a negative view of persons in the challenger's protected group, the burden of persuasion should shift to the one whose decision is being challenged to establish an affirmative defense. What constitutes an affirmative defense, and the effect of such a defense, is explained in the Article.

Understanding how discrimination works, will help guide organizations that want to eliminate all discrimination, including unconscious discrimination. Once discrimination is better understood, preventive measures can be tailored to addressing the problem.

unconscious discrimination, implicit bias, proof of discrimination, direct evidence, proof scheme, stereotyping comments

Abstract:
This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the separate but equal fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction and for a period of nearly twenty years the Court was intent on eliminating the vestiges of segregation in the schools, approving broad remedial orders. This changed drastically beginning in 1974 when the Court began limiting the available remedies and relieving school systems of the burdens imposed by court orders. Around the same time, the Court decided that equal protection plaintiffs needed to show a discriminatory governmental purpose in order to trigger meaningful constitutional protection. This meant that facially neutral laws and practices with discriminatory effects were largely constitutional.

Beginning with Bakke in 1978, the Court made it difficult, and eventually nearly impossible, for government to take affirmative steps designed to promote equality. A majority of the Court determined that invidious and benign racial classifications should be treated the same under the Equal Protection Clause, with both subjected to strict scrutiny. This completed the Court's interpretation of the Fourteenth Amendment in a manner that makes it a real barrier to racial equality: government is free to engage in invidious discrimination as long as it masks the real purpose, and affirmative steps designed by government to promote equality will be struck down as a violation of equal protection. Ironically, the constitutional amendment designed to promote freedom and equality for the newly-freed slaves now stands in the way of true freedom and equality.

equal protection, race discrimination, equality, equal opportunity, Supreme Court - race discrimination jurisprudence

Abstract:
This article addresses an important issue not decided by the Court in Heller, i.e., the size or scope of the Second Amendment right identified in that case. Heller is a victory for those opposed to gun control legislation, but it could turn out to be a limited victory, depending on the standard of review adopted to decide Second Amendment challenges to gun control laws. I argue the Court should adopt a heightened rational basis standard that rewards an enlightened legislative process and gives deference to the laws that result from this process. Gun control laws serve an important governmental function, promoting safety, and there should be no presumption of either validity or invalidity. Rather, such laws should be judged on their individual merit, taking into account the extent of the problem in the jurisdiction and the match or fit between the problem and the method selected to address the problem. Legislative bodies that make a good faith effort to achieve their safety goals without unduly burdening the self-defense-related right identified in Heller are entitled to deference.

gun control, Second Amendment, level of scrutiny, District of Columbia v. Heller

Abstract:
The decision in Parents Involved brings the Court very close to making strict scrutiny fatal in fact when considering benign, race-conscious actions implemented to address racial inequality. Justice Kennedy supplied the crucial fifth vote in favor of striking down the two school plans at issue in Parents Involved, and his opinion provides a reason to believe that carefully adopted, benign, race-conscious programs can survive Supreme Court review. However, such optimism must take account of the fact that Justice Kennedy has never voted to uphold a benign, race-conscious program and, therefore, race-conscious action by any institution is quite risky. Against this background, this Article makes two points.

First, it is of critical importance that institutions, governmental and private, continue to pursue race-conscious actions aimed at promoting actual equality because the Constitution and laws prohibiting invidious race discrimination have, at best, resulted in formal or legal equality, not actual racial equality. Second, institutions willing to implement voluntary programs must do so in a manner that gives them the best chance of defending the programs in court. This requires the involvement of attorneys and experts at every step in the process, taking into account each aspect of the Court's strict scrutiny analysis.

equal protection, benign race-conscious actions, religious freedom, unconscious race discrimination

Abstract:
Scholars recognize that government acts are expressive; that is, they affect the social meaning of behavior. Nowhere are the expressive effects of government acts more significant than when they affect an individual's understanding of her ability to practice her religion. When government allows a creche to be placed on public property or provides educational vouchers that are used primarily at religious schools, its acts send signals to the population about what the community and the government prefer. As Justice O'Connor has observed, a religious symbol displayed on government property carries a message that affects one's understanding of him or herself as an insider or outsider, favored or disfavored by the political community.

Yet while scholars have recognized that Establishment Clause cases are best understood as analyzing government's expressive acts, they have yet to develop a comprehensive theory of just how government acts actually express particular meanings. Without such a theory, efforts to develop a meaningful Establishment Clause jurisprudence remain unsuccessful. The purpose of this article is to provide such an expressive theory. The article turns to both social and cognitive psychology to develop a model of expressive effects based on the way in which government acts affect beliefs about one's relationship to community or government. This belief-change theory suggests that the primary means by which government acts can affect belief is through the process of inference. When the government places a creche on public property, for example, such an act can lead to reasonable inferences about the religious preferences of both government and the community. Such changes in belief can, in turn, affect the utility of acting in accordance with religious beliefs not preferred by the government or community. By understanding the way in which inference works - in particular the effects of pre-existing beliefs and logical consistency on one's inferential processes - a full expressive theory will be developed.

Once the theory is developed, the article applies it to a number of Establishment Clause cases and ultimately, discusses the theory's implications for Establishment Clause jurisprudence. The article will proceed as follows: Section Two will provide a short introduction to existing Establishment Clause jurisprudence to highlight some of the difficulties and shortfalls of the way in which such cases are currently handled. Section Three will provide a detailed model of the expressive theory while Section Four will apply the theory to a number of Establishment Clause cases. Finally, we will discuss the implications of the expressive theory for Establishment Clause jurisprudence in Section Five. It is our hope by the end of the article to have established a different, more comprehensive and intuitively satisfying test of Establishment Clause violations. We hope also to shed some significant light on current problems in existing Establishment Clause jurisprudence along the way.

Norms, Social Norms, Rational choice, Social Psychology, Cognitive Psychology, Expressive Law