Reviving the Disparate Impact Doctrine to Combat Unconscious Discrimination: A Study of Chin v. Runnels

Abstract:     
This brief Article focuses on a 2004 decision from the United States District Court for the Northern District of California in which the court considers a claim of discrimination stemming from a 36 year absence of minorities serving as grand jury forepersons. Although the court ultimately affirmed the decision in favor of the defendant, the court's conclusion focuses on the prevalence of unconscious bias in our society and the troubling subjectivity involved in the judge's selection of the grand jury forepersons.

Through a study of Chin v. Runnels, I delve deeper into the salience of unconscious discrimination in Equal Protection jurisprudence. In particular, I address whether the antidiscrimination principle should address such subtle discrimination (to which question I answer yes), and if so, how? My response is to argue for the Supreme Court to overrule the intent requirement from Washington v. Davis and adopt the disparate impact doctrine's burden-shifting framework in subjective selection cases. Only when the intent doctrine is dismantled and a heavier burden is placed on the government can unconscious discrimination be addressed and remedied by United States courts.

Keywords: unconscious, discrimination, disparate

JEL Classifications: Z00

Accepted Paper Series