Ian F. Haney-Lopez (UC Berkeley School of Law) has posted Intentional Blindness: The Entwined Origins of Colorblindness and Discriminatory Intent on SSRN. Here is the abstract:
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This Article reconsiders “intent doctrine,” governing how courts evaluate claims of unconstitutional discrimination against nonwhites. Today this doctrine ostensibly requires proof of malice on the part of a precisely identified decisionmaker, an absurdly onerous evidentiary burden that numerous scholars have critiqued. This Article takes a different approach. It is the first to detail the deep dept owed by current intent doctrine to the rise of colorblind reasoning in equal protection jurisprudence. It makes two overarching contributions.
First, it upends the conventional wisdom that intent doctrine’s current obsession with actual motives dates back to a 1976 decision, Washington v. Davis. It does not. This misconception obscures a startling truth now almost completely forgotten: intent doctrine was once the undivided heart of equal protection, and worked tolerably well for detecting the mistreatment of nonwhites, and also in distinguishing benign from invidious discrimination.
Second, this Article demonstrates that today’s malice test emerged immediately after and in reliance on Bakke, the 1978 case that first introduced colorblindness as a basis for striking down race-conscious remedies. Reconsidering the operation of the malice test in this light, the Article ultimately shows to be false the foundational assumption of both its proponents and critics: that it involves a search for subjective motives. As employed by the Supreme Court, the malice test never looked at motives. Instead, it operated as a ready excuse for excluding the sorts of historical and sociological evidence without which discrimination can almost never be proved.
