Law & Policy: Redefining Discrimination
We strive to redefine discrimination and promote equal opportunity through legal, legislative, and policy advocacy and also through developing the next generation of legal advocates.
Driven by a vision of a society where race is no longer a barrier to opportunity, EJS is one of few institutions explicitly focused on overturning barriers to implementing the robust anti-discrimination protections inherent in the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
As a result of the 1976 Supreme Court decision, Washington v. Davis, U.S. Supreme Court jurisprudence requires plaintiffs to prove a perpetrator’s discriminatory “intent” in order to prove an anti-discrimination claim. However, because contemporary discrimination is frequently structural in nature, unconscious, and/or hidden behind pretexts (despite the fact that a tangible harm has resulted from their actions), the showing of “intent” becomes a near impossible burden for plaintiff’s to prove.
To address this problem, EJS has successfully facilitated the incorporation of the cognitive science theory of “implicit bias” (also known as “unconscious bias”) into both litigation and public policy discourse surrounding discrimination law. “Implicit bias” challenges the common perception and legal fallacy that discrimination solely results from intentionally malicious attitudes and actions – instead postulating that all of us, regardless of gender, race, or background have cognitive biases that can influence our perceptions and decisions relative to others around us.
Existing equal protection law fails to incorporate many modern-day manifestations of discrimination and therefore deprives many of access to our courts and redress for discrimination. Moreover, conservatives have worked to entrench the “intent” approach and push us down a path towards a colorblind Constitutionalim.
For instance, in 1988, the U.S. Department of Justice Office of Legal Policy disseminated a blueprint for the Right-Wing takeover of the courts and continued enforcement of the “intent” standard. In the following year, a Supreme Court majority embraced a colorblind approach to the law when it rejected race-conscious remedies in City of Richmond v. Croson. Notions of the Constitution requiring “colorblindness” had begun a decade earlier amidst opinions of a fractured Court in Regents of University of California v. Bakke. The Croson Court held that affirmative action measures must be subjected to the same strict scrutiny applied when reviewing laws designed to promote white supremacy. This is the highest and most difficult standard of review ever applied by the Court and requires that a race-based remedy be “narrowly tailored” to achieve a “compelling government interest.”
By the 2000’s, consistent with the “colorblind” and “intent” related movements, the Court delivered another blow to plaintiffs seeking redress for discrimination. In Alexander v. Sandoval, the “intent” doctrine was extended to limit the reach of Title VI, relying on the “colorblind” rationale articulated in Croson. Prior to Sandoval, private plaintiffs had been able to use Title VI to seek redress for institutional, structural, and systemic discrimination promulgated by institutions receiving federal funds. However, contrary to nearly thirty years of precedent, the Court held that private plaintiffs could no longer utilize Title VI. In this one decision, the Court significantly impeded private enforcement of civil rights laws.
The notion of proving “intent” has also bled into areas of law outside of equal protection jurisprudence. In recent years, courts have demanded that plaintiffs prove “intent” in education, employment, criminal law and environmental cases. Thus, protection against any form of discrimination is under attack as long as the “intent” doctrine remains in place, making our work ever more pertinent. EJS has played a defining role at the state and national levels in the courts, on policy initiatives, and in the public discourse on race. This includes transforming the very legal doctrines that support ongoing discrimination in society.
EJS is not solely focused on the courts and litigation. As a number of other racial justice advocates have articulated, changing racism on a structural level requires far more than winning court cases. Per our theory of change, we believe that communications and alliance-building strategies are critical components to advancing our legal strategy.
EJS is intricately connected with what has come to be known as “radical” or “collaborative” lawyering. In fact, our core partnerships are with organizations and groups that operate explicitly within anti-racism and other anti-oppression lenses. We also work with anti-discrimination attorneys and other legal advocates who rely on more traditional litigation strategies…that is, until we engage them. EJS has challenged a number of litigators to think beyond their individual clients or complaints, resulting in a new understanding of their roles as actors within a broad racial justice movement.
