Discriminatory Intent

In Washington v. Davis (1976), the Supreme Court held that the Equal Protection Clause was violated only by government actions that were taken with an intent to injure the group adversely affected. In Personnel Administrator of Massachusetts v. Feeney (1979), the Court explained that such intent was present when the government took the challenged action “because of” and not merely “in spite of” an adverse impact on the affected group. These cases rejected the argument that equal protection required that the government refrain from actions that have a disparate negative impact on minority groups. The Court's majority believed that a disparate‐impact test would require substantial modifications in many government policies that dealt with general social problems—policies that, given the nature of U.S. society, necessarily have a disparate impact on minority groups. In addition, the idea of “intent” fits well with the idea that the Equal Protection Clause was meant to eliminate actions based on prejudice, which is ordinarily thought of as a willingness—that is, an intention—to inflict injury on others. Determining discriminatory intent can be difficult, however, because legislation may result from mixed motives or from decisions by political coalitions in which some members have discriminatory intent and others do not. The Court suggested that statements about intent might be particularly revealing where the nondiscriminatory reasons for the policy appeared weak. The distinction between discriminatory intent and disparate impact was weakened by the acknowledgement, in Village of Arlington Heights v. Metropolitan Development Corp. (1977), that disparate impact can provide evidence of discriminatory intent, particularly when it is accompanied by evidence that the government departed from its ordinary practices in adopting the challenged policy.

See also Housing Discrimination; Race and Racism.

— Mark V. Tushnet