Guest Blogger: Intent Doctrine--Its Relationship to Seattle and Louisville School Cases and the Need to Preserve Brown's Legacy

by Nicholas Espíritu

For more than 30 years, the Supreme Court has advanced a constricted view of discrimination that all but prohibits redress of significant racial and social inequities. This constricted view has led us to question if it is constitutionally impermissible to actively seek racial integration in our public schools, given that a scant few decades ago the Constitution was interpreted as compelling governments and localities to remedy such racial inequities through race conscious plans.

Many of the problems stem from a Court-imposed ideology -- color-blindness -- that combined with the "intent doctrine" blinds government to a wide range of social inequality and racial discrimination. Under this jurisprudence, the Courts treats any use overt uses of race with its highest level of scrutiny, regardless of whether it is used for good or ill.

Actions that have a known harmful effect on racial groups, but do not overtly mention race, almost always survive constitutional scrutiny.

Recent events -- from Katrina to the recent school desegregation cases in Seattle and Louisville -- bring back into stark relief the continuing and lasting effects of entrenched inequality that remains unaddressed by the Court's cramped understanding of discrimination.

Without the ability to use race-conscious remedies, the oppression of opportunity caused by discrimination, including the resegregation of pubic schools, will remain inadequately addressed by law.

Read EJS's paper, "Relationship of the Intent Doctrine to Seattle and Louisville and the Need to Preserve Brown's Legacy" at http://motleyfellow.org/archives/13.