Judging Discriminatory Intent

Abstract

The Constitution’s protection of racial and religious groups is organized around the concept of discriminatory intent. The Supreme Court, however, has never provided a crisp, single definition of ‘discriminatory intent’ that applies across institutions and among policy contexts. Instead, current jurisprudence deploys an embarrassment of competing conceptions. Amplifying the doctrinal complexity, the Court has taken conflicting approaches to the practical—and highly consequential—question of how to go about substantiating impermissible motives with admissible evidence. The Court’s pluralistic conception of intent is plausible and perhaps even unavoidable. But its lack of any principled approached to the evidentiary approaches to unconstitutional motive is not defensible. Instead, the current doctrinal apparatus for the discovery of discriminatory intent not only fails to account for the latter when it arises in practice, but itself works a fresh set of distributional and epistemic harms. The Article points the way toward a revised doctrinal framework that acknowledges conceptual pluralism in the constitutional law of antidiscrimination, but that reorients the evidentiary framework for demonstrating discrimination intent to mitigate the presently biased allocation of judicial resources, which disadvantages otherwise deserving litigants.

Keywords: Equal Protection; discrimination law; Religion Clauses