EJS Law Review Summary — Dismantling the Intent Doctrine:
Five Key Law Review Articles

By Susan Kiyomi Serrano, Research Director

As part of an ongoing effort to provide legal scholars, practicing attorneys, advocates and students with critical analysis and tools to fight discrimination and assaults on civil rights, the Equal Justice Society is committed to summarizing and sharing important scholarship and decisions.  This is the first in a regular series of columns on key law review articles of interest to progressives in law, media, social science and working in the public interest.

The Equal Justice Society works to dismantle the structural underpinnings of discrimination by crafting legal strategies and public policies that can withstand long-term challenges from the Right.  This includes transforming the very legal doctrines that support ongoing discrimination in society.  The “Intent Doctrine,” first articulated in the 1976 Supreme Court case of Washington v. Davis, 426 U.S. 229 (1976), now forms one of the largest doctrinal challenges for progressive civil rights advocates because it requires the near-impossible:  a specific showing of an individual perpetrator’s intent to discriminate.  Social psychologists, critical sociologists and other social scientists have developed empirical and theoretical research showing that the intent doctrine fails to reflect how a large part of discrimination actually occurs.  According to these studies and theories, all of us have “subconscious” biases that influence how we perceive and make decisions about other people.  Individual and institutional discrimination, often guided by these cognitive biases and stereotypes, can occur even in the absence of blatant prejudice, ill-will or animus.

Legal academics have begun to translate these theories into practical strategies in law journal articles, beginning with the pathbreaking work by Charles R. Lawrence, III, The Id, The Ego, and Equal Protection:  Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).  Many of these powerful theories and studies, however, are not being fully utilized on the front lines of the political debate or in courtrooms by civil rights advocates.  In order to provide lawyers with the theoretical tools to challenge the faulty assumptions of the intent doctrine, EJS is providing below five brief summaries of selected law review articles by leading legal scholars.  For additional summaries, please visit www.equaljusticesociety.org.  Through this and other collaborations with social scientists, lawyers, pollsters and academics, EJS aims to develop long-term strategies for introducing a more accurate understanding of discrimination into the law.

STORIES IN THIS ISSUE

Contents

Welcome to the launch of our first EJS e-newsletter!

Racial Justice and Affirmative Action: The Year in Review

SF Reception for EJS Board Chair, Professor Charles Ogletree

Notes on the Right

Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of Michigan Decisions

EJS Law Review Summary:
Dismantling the Intent Doctrine: Five Key Law Review Articles

The Justice Journal - EJS Calendar of Events

EJS Staff News

Making Change - Become a Part of the Equal Justice Society

1. Linda Hamilton Krieger, The Content Of Our Categories: A Cognitive Bias Approach To Discrimination And Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995) — Krieger draws from cognitive social psychology to demonstrate that many biased employment decisions result not from discriminatory motivation, but from a “variety of categorization-related judgment errors characterizing normal human cognitive functioning.”  According to Professor Krieger, Title VII jurisprudence is inadequate to address subtle, unconscious bias because it assumes that “disparate treatment discrimination, whether conscious or unconscious, is primarily motivational, rather than cognitive, in origin.  This one-sided understanding of bias leads courts to approach every disparate treatment case as a search for discriminatory motive or intent.” 

Social cognition theory, on the other hand, demonstrates that “cognitive structures and processes involved in categorization and information processing can in and of themselves result in stereotyping and other forms of biased intergroup judgment previously attributed to motivational processes.”   This process plays out in three main parts.

First, “stereotyping is nothing special.” It is a form of categorization “that all people . . . use to simplify the task of perceiving, processing, and retaining information” about others. Second, “once in place, stereotypes bias intergroup judgment and decisionmaking.” In this way, stereotypes “operate as ‘person prototypes’ or ‘social schemas’ that bias “the perception, interpretation, encoding, retention, and recall of information about other people.” These biases “operate absent intent to favor or disfavor members of a particular social group [and] bias a decisionmaker’s judgment long before the ‘moment of decision.’” Third, these filters operate beyond the reach of decisionmaker self-awareness and therefore may be “both unintentional and unconscious.”

Professor Krieger explores the legal and policy implications of a cognitive process approach to discrimination.  She advocates for the elimination of the pretext model of disparate treatment proof and suggests replacing it with a “motivating factor” analysis.  She also suggests “grafting onto Title VII a two-tier approach to liability and relief, similar to that used in cases under the Age Discrimination in Employment Act.”  Finally, she suggests that the law should “evolve to encompass a prescriptive duty of care to identify and control for category-based judgment errors and other forms of cognitive bias in intergroup settings.”  For more on social cognition theory and employment discrimination, see Judith Olans Brown, Stephen N. Subrin, Phyllis Tropper Baumann, Some Thoughts About Social Perception and Employment Discrimination Law:  A Modest Proposal for Reopening the Judicial Dialogue, 46 Emory L.J. 1487 (1997) (research on subconscious discrimination can be introduced to judges and juries through jury instructions, judicial notice and expert testimony, by using concepts of due process, the right to trial by jury, and notions of fairness). 

2. Gary Blasi, Advocacy Against The Stereotype:  Lessons From Cognitive Social Psychology, 49 UCLA L. Rev. 1241 (2002) — Blasi describes new experiments, theories and models in cognitive social psychology and cognitive neuroscience, and outlines the possible implications of this research for lawyers, advocates and legal scholars.  The research generally concludes that “all of us behave in ways that demonstrate that we are subject to the effects of stereotypes, including those we expressly disavow.”  One of the most important implications of this research is that “there are likely to be very few situations in which stereotypes are not—through webs of intermediate connections—relevant to social judgment and behavior.”  The research also shows that “while we may be unable to do much about [stereotypes’] automatic activation, we can nevertheless behave in substantially nonprejudiced ways if we are so motivated.”  In order to counter the effects of the automaticity of stereotype activation, Professor Blasi suggests various approaches for advocates, including recognizing and studying the pervasiveness of these processes, providing counterstereotypical exemplars to alter existing stereotypes, and introducing anti-discrimination norms through argument, jury instruction, or by implicit invocation.

3. Ian F. Haney Lopez, Institutional Racism:  Judicial Conduct and a New Theory of Racial Discrimination, 109 Yale L.J. 1717 (2000) — Lopez draws from New Institutionalism theory, a genre of organizational sociology, to show that discrimination is often not consciously motivated, “but instead stems from the unconsidered repetition of cognitively familiar routines.”  “New Institutionalism posits that frequently repeated but largely unexamined social practices or patterns at once structure and give meaning to human interaction.”  Within institutional structures and practices, “frequently repeated patterns of activity relatively quickly take on an unexamined, rule-like status such that they are spontaneously followed and disrupted only with difficulty."  In other words, “we often act in definable ways without a consciously formulated purpose, simply because it is ‘the way it is done.’”  As part of the institutional structure, individuals therefore “fail to recognize their reliance on racial notions, and indeed may stridently insist that no such reliance exists, even while acting in a manner that furthers racial status hierarchy.”  Organizational sociologists thus observe that, to a significant degree, discriminatory human behavior within organized settings often does not occur at a high level of consciousness.  Applying institutional analysis to the Los Angeles Superior Court’s grand juror selection practices during 1968 and 1969, Professor Lopez argues that “institutional analysis brings into view important features of the judges’ nonintentional decision-making processes. . . [and] suggests that judicial conduct pursuant to such unexamined decision making often produces discrimination.” 

4. Tristin K. Green, Discrimination in Workplace Dynamics:  Toward a Structural Account of Disparate Treatment Theory, 38 Harv. C.R-C.L. L. Rev. 91 (2003) — Green offers a “structural disparate treatment” legal theory that “accounts for discrimination in the modern workplace.”  Existing Title VII jurisprudence is inadequate to address more subtle forms of discrimination largely because it ignores the interplay between the individualistic and institutional conceptions of discrimination.  Discrimination should be conceptualized “in terms of workplace dynamics rather than solely in existing terms of an identifiable actor’s isolated state of mind[.]”  This type of conceptualization puts "emphasis on structural factors while making clear that both conscious and unconscious bias operate at multiple levels of social interaction, often resulting in decreased opportunity for disfavored groups without producing a single, identifiable discriminatory decision or a perceptibly hostile work environment.”  Drawing from existing theories of liability under Title VII, Professor Green proposes “a structural account of disparate treatment theory . . . that holds employers directly liable for organizational structures and institutional practices that unreasonably enable the operation of discriminatory bias in the workplace.” 

5. Rachel D. Godsil, Expressivism, Empathy and Equality, 36 U. Mich. J.L. Reform 247 (2003) — Godsil draws from Establishment Clause jurisprudence to suggest an alternative intent standard that requires courts to determine the “expressive content” of a government action by “discerning how a reasonable member of the allegedly affected community would view the action.”  “In recent Establishment Clause, voting rights, and affirmative action cases, the Supreme Court has reinvigorated [expressivism,] a strand of constitutional interpretation that assesses whether the message sent by a government action comports with the underlying values embodied in the constitutional provision at issue.”  Expressivist scholars have argued that the meaning of government action should be determined from the perspective of an "objective observer," but Professor Godsil suggests that, instead, “the meaning of a government action [should] be determined from the perspective of a reasonable member of the allegedly affected community” because racial and gender groups often place different meaning upon the “expressive content of a government action that affects them differently.”  The intent standard requires judges to “stand in the shoes of the government actor to assess whether racial animus might have existed” and many judges will be reluctant to decide “that a government actor with whom he has been invited to empathize is a racist.”  On the other hand, “an expressive harm test that requires the court to determine the expressive content of the government action by discerning how a reasonable member of the allegedly affected community would view the action will invite the judge to empathize with the community rather than the allegedly discriminating government actor.”