The article can be downloaded here.

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine: that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motives.

But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high.

Brando’s article argues that the Equal Protection Clause is no longer an effective tool for stigmatized minorities, and needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional.

Brando argues that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention.

Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues.

The Equal Protection Clause, writes Brando, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

The article has already generated a reaction from Lawrence B. Solum, John E. Cribbet Professor of Law and Philosophy and Co-Director of the Institute for Law and Philosophy at the University of Chicago School of Law on the Legal Theory Blog:

I enjoyed this interesting piece, but it’s exposition of originalism does (by my lights) capture the content of contemporary originalist theory (the so-called “new originalism” or “original public meaning originalism”). In particular, the author might want to consider the distinction (original made by Mark Greenberg and emphasized by Jack Balkin) between original expected applications and the original public meaning of the constitutional text.

Brando graduated in June of 2008 with a J.D. from Harvard Law School, where he was a research assistant at both the Jamestown Project, a think tank, and at the Law School’s library researching various matters for professors. He was also was an opinion editorialist for the Harvard Law Record, the school’s newspaper.

He also published several works: Uncle Tom and Clarence Thomas: Is the Abuse Defensible?, The Veil of Fair Representation: Maurice Clarett v. NFL, “Acting White” and the Achievement Gap: Burden or Myth?: A Research Brief & Recommendations for Educators, Policymakers & Members of the Media, and Drastic Action: The 1983 Course Boycott at Harvard Law School.

We feel sadness because Kimberly’s contributions to EJS and to the cause of social and racial justice have been immense. We are grateful because her presence here for the past four years has been a true pleasure. We will miss her.

Those of you who have been lucky enough to work with Kimberly fully understand the depth and breadth of the loss we have suffered. Our EJS board member, Professor Eric Yamamoto, put it best when he said after hearing the sad news: “You bring such deep intelligence, people insight, dedication and heart to all you do.” We second that emotion.

During her time with us she has worked closely with the California Teachers Association on the issue of unconscious bias in the classroom. She also was the key moving force in three meetings of folks who litigate in the United States Supreme Court.

Her combination of scholarly understanding of equal protection jurisprudence coupled with a preacher’s kid’s comfort with making arrangements for large groups of people contributed to the success of these events that took place twice at Duke University and once at UC Irvine.

Kimberly supervised countless law clerks and younger attorneys. She always took the time to help them develop their skills as they also contributed to the legal work here at EJS. There were countless things that Kimberly worked on while she was here. She did them all with style, depth, intelligence and grace.

We were also continually astonished at the work Kimberly and her family does in the community. Her father is the pastor of a church in Richmond, Calif. The church makes sure that people in the community were fed and clothed and loved.

We joked about the fact that Kimberly and her family routinely cooked Thanksgiving meals for hundreds of people. We wanted her to cater our events but she drew the line there.

As you can readily see, Kimberly is an amazing woman.

Kimberly will continue working with us here at EJS on race and gender conscious contracting issues so she will not be leaving us completely, but her official last day in the office is June 25. She can be reached via email after that date at kdtrapp@comcast.net.

We wish her the best and know that we will be hearing about her next successes as she moves on to the next challenge.

Thanks so much Kimberly. We will miss you a lot.

On behalf of your friends and colleagues at EJS,

EVA PATERSON