Understanding the Mark: Race, Stigma, and Equality in Context

Abstract

In its Fourteenth Amendment jurisprudence, the Supreme Court regards intentional discrimination as the principal source of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social science insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies challenged on the grounds of race. Drawing on the social science work of Erving Goffman and the ground-breaking work of Charles H. Lawrence, Professor Lenhardt argues that courts should reframe the constitutional inquiry to account for the risk or evidence of stigmatic harm to racial minorities. Professor Lenhardt explains that stigmatic harm occurs when a given act or policy sends the message that racial difference renders a person or a group inferior to Whites, the category constructed as the racial norm. This stigma imposes what Professor Lenhardt calls citizenship harms, which prevent members of racial minorities from participating fully in society in a variety of contexts. Professor Lenhardt proposes a four-part test to determine whether an act or policy--whether it is intentionally race based or carries a disparate racial impact--imposes a significant risk of stigmatic harm such that it should be subject to strict scrutiny. First, courts should examine the specific historical origins of the constitutional provision they are being asked to interpret. Second, they should consider the socio-historical context of the challenged act or policy. Third, they should evaluate the current context of the act or policy, *804 including consideration of a possible disparate impact on members of racial minorites. Finally, courts should consider the probable future effects of the act or policy in terms of its likely citizenship effects on members of racial minorities. Professor Lenhardt argues that, while the use of this test will not eliminate racial harms altogether, it will enable courts and policymakers to engage in a disciplined and systematic analysis of racial harm which will ultimately provide the basis for more effective means of addressing racial stigma and persistent racial inequalities in the United States.