Part I briefly reviews the case law that has established and elaborated the requirement of discriminatory intent. I discuss the theoretical background against which Washington v. Davis was decided, a debate over the possibility and propriety of judicial review of legislative motive. I suggest that the significant institutional difficulties associated with the triumphant discriminatory intent rule, together with the many substantive criticisms leveled against it, might lead one to expect to see relative doctrinal instability here. On the contrary, the requirement of discriminatory intent has been one of the most stable doctrines in modem constitutional law. I conclude with the speculation that the rule owes its longevity, at least in part, to its conformity with distinctively white ways of thinking about race discrimination.
Part II invites the white reader to undertake the project of becoming conscious of transparency. I pose questions designed to prompt whites to reflect on this phenomenon, and I offer a story illustrative of some of the ways transparency can influence white decisionmaking. I then argue that recognizing transparency impels adoption of a radical skepticism regarding facially race-neutral criteria of decision. The skeptical stance operates as a presumption against the neutrality in fact of any facially neutral criterion of decision employed by a white decisionmaker.
In Part III, I reexamine the requirement of discriminatory intent from the perspective of transparency. The existing rule sharply distinguishes conscious from unconscious reliance on race in decisionmaking; though both constitute race-specific decisionmaking, only the former is constitutionally impermissible. Transparency undermines each of two possible justifications for the Court's position: that unconscious discrimination is relatively rare, and that conscious discrimination is relatively more blameworthy than unconscious discrimination. This Part concludes with a discussion of a theoretical alternative to the practice of blaming.
Part IV proposes an alternative to the existing discriminatory intent rule. The principal features of the proposed rule are that it places on government the burden of justifying all facially neutral criteria of decision that have disparate effects, it mandates pluralist interpretations of government purposes whenever possible, and it requires government to adopt plaintiff-formulated means of achieving those purposes whenever such means are at least as effective as existing measures. I then consider two objections to the proposed rule: that it abandons the colorblindness principle, and that it engages the courts too deeply in economic redistribution. I argue in reply that a carefully conceived race consciousness, one that begins with whites' consciousness of whiteness, can provide better distributive racial justice than the colorblindness principle and is at least equally consistent with the underlying liberal values of equality and autonomy. With regard to the institutional critique, I conclude that the proposed rule indeed has some redistributive effects but that the goal of combatting structural racism clearly justifies these effects.
Barbara J. Flagg,
"Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol91/iss5/5