Intentional Blindness

Ian Haney-López

Interpreting the Fourteenth Amendment’s guarantee of “equal protection,” the Supreme Court applies two basic approaches to charges of racial discrimination. If the challenged action expressly invokes race, the Court employs a colorblindness rule. Absent a direct reference to race, the Court demands proof of a discriminatory purpose under intent doctrine.

Supporters and critics of these doctrines on and off the Court understandably view them as fundamentally distinct: They operate in different domains, and seem to inversely mirror one another. Colorblindness applies to affirmative action; intent doctrine covers discriminatory treatment against non-Whites. Colorblindness denies that courts can discern the state’s purposes; intent doctrine demands proof of malicious motives. Colorblindness imposes the most stringent form of scrutiny; intent cases always default to the most lenient level of constitutional review. Plaintiffs attacking affirmative action under colorblindness virtually always win; parties challenging discrimination under intent doctrine almost invariably lose.

Yet despite these dramatic dissimilarities, intent and colorblindness profoundly shape each other. How could they not? The same conservative Justices elaborated these doctrines simultaneously, and to the same ultimate effect: to defeat challenges to, and remedies for, discrimination against non-Whites.

Moreover, both doctrines employ the same basic method: both deny that context matters. In declaring that only malice counts, intent doctrine excludes evidence of continued discrimination highlighting historical oppression, shifting contemporary practices, or advances in social scientific understandings of bias. More generally, malice doctrine blinds the courts to the obvious truth that discrimination has evolved since the civil rights era, and no longer exclusively takes the form of hooded bigotry. Colorblindness similarly closes the courthouse doors to context: Pronouncing motives unknowable, it dismisses from consideration the evident fact that state actors sometimes use race to remedy inequality and foster integration. More fundamentally, colorblindness refuses to see the changes wrought by the civil rights movement, which moved a national majority from seeking to preserve to hoping to eradicate racial supremacy.

We should no longer view equal protection as divided between intent and colorblindness. Instead, we should understand it as unified under “intentional blindness.” Combining the two doctrines’ names, this portmanteau expresses the marrow of the Court’s racial jurisprudence—which seems intentionally blind to racial context, including the persistence of racial discrimination against non-Whites, and the desire of democratic majorities to remedy this lingering stain on American justice. And to fully comprehend the import of intentional blindness today, we must understand its origins forty years ago, as a backlash against the civil rights era’s achievements. In particular, we must reconsider the fundamentally misunderstood doctrine of discriminatory intent.

I. Contextual Intent

A. Discrimination

The stock story of intent doctrine presents the prime villain as a 1976 case, Washington v. Davis.1  In the 1980s, the leading treatise on constitutional law summarized Davis in the following terms: “In essence, Washington v. Davis announced that henceforth every lawsuit involving constitutional claims of racial discrimination directed at facially race-neutral rules would be conducted as a search for a bigoted decision-maker.”2  In so writing, Laurence Tribe accurately captured the state of intent doctrine at that date. But he wrongly imputed this structure to Davis—and erred not once, but twice.

To begin with, Davis did not require a search for a bigoted decisionmaker, but instead envisioned a weighing of the totality of the circumstances. Rather than inventing a regressive doctrine, Davis helped formalize the Court’s basic approach to allegations of discrimination practiced since Brown v. Board of Education struck down segregated schools in 1954.3  During the civil rights era, the Court evaluated the general purposes behind challenged government actions using a broadly inferential approach, rather than by conducting a hunt for bigots. Sometimes this inferential process reflected little more than judicial notice of race relations. At other times, the Justices relied on a more focused examination of surrounding racial patterns, including through engaging social science. Whatever the combination, the Court did not demand direct proof of subjective mindsets. Instead, findings of discriminatory purpose reflected inferences drawn from the challenged action as well as the surrounding context—in a phrase popular with the Court, from the “totality of the circumstances.”4 Davis followed this approach, holding that “[n]ecessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts.”5

Next, Tribe misrepresented intent under Davis as applying to “claims of racial discrimination directed at facially race-neutral rules”—thereby implying that intent doctrine did not apply when the state expressly used race.6  On the contrary, up through Davis and just beyond, equal protection’s evaluative approach gave no import to whether the challenged government action expressly invoked race. Illustrating this, Davis presumed that the intent test applied to race-conscious state action. Immediately after announcing the need to show an invidious purpose, the Court explained: “This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute.”7  Davis thus assumed that the intent test applied to express uses of race and clarified that it might also apply to race-neutral practices. By offering this clarification, Davis pointed back toward a basic fact virtually all scholars have forgotten: The Jim Crow cases directly mandating segregation provided the initial quintessential intent cases.

If Tribe’s treatise misapprehended Davis, it nevertheless correctly described intent doctrine as it stood in the late 1980s. To contrast the two versions of intent doctrine, distinguish “contextual” from “malicious” approaches. Where contextual intent focused on motives only in the loosest sense and emphasized instead a broad inferential approach to evaluating possible discrimination, today’s malice doctrine makes direct proof of injurious motives a prerequisite to finding discrimination—and concomitantly declares contextual evidence irrelevant. What prompted the fateful shift from contextual to malicious intent? This requires understanding the strengths of contextual intent. More specifically, it requires recovering the relationship between intent and affirmative action.

B. Affirmative Action

Contextual intent, as its name implies, asked courts to consider the larger context in which challenged actions occurred. This allowed courts to discern racial discrimination even when it did not take the form of archetypal Jim Crow segregation. More strikingly, however, it also provided a ready means to distinguish oppressive uses of race from remedial ones. In other words, contextual intent leaned toward upholding affirmative action.

One year after Davis, the Court decided United Jewish Organizations of Williamsburgh, Inc. v. Carey,8  or UJO, involving the creation of two majority-minority districts in the Williamsburgh area of Brooklyn. UJO thus concerned what Justice William Brennan characterized as the use of “race-centered remedial devices.”9  The nearly unanimous decision upheld New York’s legislative action, though the Justices employed various rationales. Two Justices applied Davis directly: “Under the Fourteenth Amendment the question is whether the reapportionment plan represents purposeful discrimination against white voters. Washington v. Davis.”10  They held it did not. Three others used an intent analysis, though without specifically citing Davis. Because the “plan represented no racial slur or stigma with respect to whites or any other race,” they concluded, “we discern no discrimination violative of the Fourteenth Amendment.”[11. Id.]  Brennan concurred but hesitated to fully endorse the intent analysis, lest this suggest that merely rational review would suffice. For Brennan, even remedial uses of race carried sufficient risks to warrant a more searching, though not strict, review.11  Sifting through these rationales, a surprising result emerges: Five Justices—and not just any five, but Byron White, John Paul Stevens, William Rehnquist, Potter Stewart, and Lewis Powell—thought courts should treat race-conscious remedies just like every other use of race, evaluating such efforts only for an intent to harm. With the exception of White, all of these Justices would soon support the rise of colorblindness.

To reiterate, in UJO those Justices poised to embrace colorblindness concluded that, in the absence of any intent to harm, affirmative action comported with equal protection. What a brief, remarkable constitutional moment. In the first case to squarely address the constitutionality of a race-conscious remedy, the Court for the last time found affirmative action lawful by applying the intent test.

II. Colorblindness and Malice

UJO seemed to jolt the racially conservative Justices, warning that race-conscious remedies, when reviewed for discriminatory intent, would be readily upheld. Betraying dissatisfaction with that result, the next year in Regents of the University of California v. Bakke five Justices voted to restrict affirmative action. 12 Yet, likely reflecting their holding just the prior year, four avoided the constitutional question altogether. Standing alone, Powell experimented with a constitutional argument. He started by rejecting colorblindness, at least when defined as a per se prohibition on any use of race. In its place, however, Powell established the fundamentals of modern colorblind analysis: not automatic invalidity but its close cousin, the application of the highest level of constitutional hostility to all express uses of race—which is to say, to affirmative action.13

Powell initially attracted no other votes for this perversion of equal protection. Two years later, Stewart and Rehnquist exploited the opening created by Powell when they dissented in a case upholding a minority set-aside in federal construction contracts. For the first time, conservative Justices declared that the “Constitution is color-blind,” hijacking John Marshall Harlan’s famous aphorism from his dissent in Plessy v. Ferguson.14  Yet this position, adopted by only two Justices, still seemed so bizarre that Chief Justice Warren Burger’s majority opinion began: “As a threshold matter, we reject the contention that in the remedial context the Congress must act in a wholly ‘color-blind’ fashion.”15  Nine years would pass before a majority consolidated behind colorblind logic to overturn an affirmative action program, in City of Richmond v. Croson Co.16  Since then, colorblindness has dominated the Court’s reasoning, striking down remedial program after program, even if typically only with the votes of a bare majority of Justices.

Now place malicious intent’s origins into the colorblindness timeline. Just one year after Bakke, in Personnel Administrator of Massachusetts v. Feeney, five conservative Justices began to rework intent doctrine.17  Strikingly, they directly relied upon Powell’s colorblind reasoning—making Feeney, not Croson, the first case to assemble a majority behind colorblindness. “Most laws classify,” Feeney began, observing that equal protection generally required subjecting distinctions among classes to no more than rational review.18  The opinion continued: “Certain classifications, however, in themselves supply a reason to infer antipathy. Race is the paradigm.”19  In this narrative, the simple use of race, without more, triggered constitutional suspicion. “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”20  Feeney pretended to reach back to Brown for this radical proposition, when clearly the appropriate citation was Powell’s lone opinion in Bakke the year before. A full decade before Croson, Feeney assembled five votes for a rule rendering all uses of race, even if remedial, “presumptively invalid.”[22. Id. at 272.]

Only after announcing a mechanical distrust of race did Feeney address intent doctrine, whereupon the majority recast it as the flip side of colorblindness. Where colorblindness embodied an automatic hostility to express uses of race, intent doctrine would largely defer to government action that did not directly reference race—even if it severely harmed non-Whites. In effect, Feeney and Bakke bifurcated equal protection into two domains with two dramatically different presumptions of constitutionality. Colorblindness would regard remedial uses of race with nearly fatal suspicion, while the malice test would look benignly on facially race-neutral discrimination. Herein lies the precise origin of today’s regressive equal protection jurisprudence.

Most scholars know Feeney not as a colorblindness case, but for notoriously announcing that discriminatory intent requires proving that the state pursued the challenged action maliciously, “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects.”21  Feeney should be known for both, and more deeply, for showing the close symbiosis between colorblindness and malice. Colorblindness arose in response to contextual intent, in particular to its potential to uphold affirmative action. In turn, the malice test developed as a mirror to colorblindness, deeming all facially race-neutral government practices presumptively innocent and imposing an egregiously high burden to prove otherwise.

III. Intentional Blindness

Moving beyond its imbrication with colorblindness, the most important indictment of malice doctrine stems from its actual operation. The Supreme Court concocted the malice test not to find discrimination, but to justify dismissing contextual evidence—the sort of evidence theretofore indispensable to proving continued racial mistreatment. The Court fully elaborated the malice approach in a series of cases in the 1980s culminating in the Georgia death penalty case, McCleskey v. Kemp.22  In these cases, the Court never inquired into the motives of alleged discriminators, despite what one would have expected if the goal were to detect possible discrimination. Instead, in each case the Court justified dismissing historical and social scientific evidence on the ground that such material could not prove a malicious mindset. As the conservative majority flatly pronounced, “these gauzy sociological considerations have no constitutional basis.”23  Geared toward excluding evidence of discrimination, malicious intent predictably—indeed, designedly—proved an extraordinarily difficult doctrine under which to prevail. Since its adoption, not a single Supreme Court decision employs malicious intent to strike down racial abuse by current officials.

Damningly, current intent doctrine would struggle to detect impermissible mistreatment even in Jim Crow laws: The malice test would likely uphold segregation in a case like Brown. In 1954, there would have been few rank expressions of animus by responsible government officials to put before the Court. George Wallace was not yet standing in the schoolhouse door ranting “segregation forever,” and White mobs were not yet hurling spittle-laced invective on Black children being marched into White schools between phalanxes of soldiers. Those explosive images of racial hate lay in the future, as the response to Brown and civil rights activism. Instead, public discourse came in the susurrations of entrenched hierarchy, the calm tones of a social oppression so thoroughly and completely enforced it could be presented as with the consent and for the benefit of the subjugated. Yes, evidence abounded that segregation aimed to oppress: Such proof lay manifest in the systematic material harm done to Black children, including inferior school buildings, tattered or missing textbooks, and dilapidated grounds and facilities. It also lay bare in the larger context, in local patterns of racial degradation and stigmatized separation, a social order founded on racial hierarchy, and a history of racism running directly from Jim Crow through the Black Codes and back to slavery. In other words, proof of purposeful mistreatment lay plain for all to see—but in exactly those “gauzy sociological considerations” malice doctrine dismisses as having “no constitutional basis.”

Contextual intent dismantled Jim Crow; intent’s modern incarnation should be at least capable of this most basic task. But it is not. Unfortunately, few make this critique, partly because most presume that intent doctrine simply never applied to express uses of race. This reveals yet another debt malicious intent owes to colorblindness. The malice cases betray Brown, yet hide from indictment in shadows deepened by colorblind mythmaking.

Today, we find ourselves in a period of renewed assault on efforts to promote racial progress. With Ricci v. DeStefano, conservatives on the Court began to export malice doctrine’s logic beyond constitutional law, to statutes prohibiting discrimination.24  This approach disingenuously promotes unworkable determinations of individual animus, while hamstringing the more successful use of social science to prove mistreatment. Meanwhile, the Court extended colorblind hostility beyond affirmative action in Parents Involved in Community Schools v. Seattle School District Number 1, proscribing efforts to preserve integrated K-12 schooling.25 Justice Anthony Kennedy’s emergence as the swing vote in racial cases gives good reason to fear the Court will soon end affirmative action in higher education. The Court may even extend this ban beyond state actors, to prohibit affirmative action by private universities as well as corporations, foundations, unions, and hospitals.

To more fully grasp the near future, we must parse the entwined evolution of malice doctrine and colorblindness, thus laying bare the racial politics that have animated reversals in equal protection over the last four decades. Those Justices who consistently refused to find discrimination against non-Whites, or to support affirmative action programs, were prepared to reach those results without doctrine or evidence on their side. Crucially, though, they quickly crafted doctrines and evidentiary standards that confirmed their favored outcomes. Malice doctrine and colorblindness did not drive the civil rights roll back so much as provide a dissimulating gloss. Over time, however, the Court has hardened this gloss into a strong protective carapace. So long as colorblindness and malice remain misunderstood as separate and plausible doctrines, it will be all but impossible to grasp the severity of the ongoing devolutions in the Court’s racial jurisprudence—for instance, that as recently as 1977 equal protection could distinguish affirmative action and racial oppression, but now intent doctrine cannot even detect the racism animating segregation laws in 1954. At the height of the civil rights movement Charles Black wrote: “The Court that refused to see inequality . . . would be making the only kind of law that can be warranted outrageous in advance—law based on self-induced blindness, on flagrant contradiction of known fact.”26  The conservative Justices use colorblindness and malice doctrine as bandages to cover their eyes to continued racism against non-Whites, and also use these stained dressings to hide from public view the Court’s ferocious disfigurement of equal protection.


Copyright © 2012 by Ian Haney-López, John H. Boalt Professor of Law, University of California, Berkeley.

This Legal Workshop Editorial is based on the following Article: Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. REV. (forthcoming 2012).

  1. 426 U.S. 229 (1976).
  3. 347 U.S. 483 (1954).
  4. White v. Regester, 412 U.S. 755, 769 (1973).
  5. 426 U.S. 229, 242 (1976).
  6. Tribe, supra note 2, at 1509.
  7. 426 U.S. at 241 (emphasis added).
  8. 430 U.S. 144 (1977).
  9. Id. at 169 (Brennan, J., concurring).
  10. Id. at 179 (Stewart, J., concurring) (citing 426 U.S. 229).
  11. See id. at 170–75 (Brennan, J., concurring).
  12. 438 U.S. 265 (1978).
  13. For a full discussion of Bakke and the rise of colorblindness, see Ian Haney López, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007).
  14. Fullilove v. Klutznick, 448 U.S. 448, 522 (1980) (Stewart, J., dissenting) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)).
  15. Fullilove, 448 U.S. at 483 (majority opinion).
  16. 488 U.S. 469 (1989).
  17. 442 U.S. 256 (1979).
  18. Id. at 272.
  19. Id.
  20. Id. (emphasis added).
  21. Id. at 279.
  22. 481 U.S. 279 (1987).
  23. Mobile v. Bolden, 446 U.S. 55, 75 n.22 (1980).
  24. 557 U.S. 557 (2009).
  25. 551 U.S. 701 (2007).
  26. Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 426 (1960).

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