This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.
Reshma M. Saujani,
"The Implicit Association Test": A Measure of Unconscious Racism in Legislative Decision-Making,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol8/iss2/2