Intent, purpose

Douglas Laycock DLaycock at
Sun Nov 20 19:53:36 PST 2005

Intention in class of one cases is cannot be the same as purpose in disparate impact cases.  Disparate impact can arise only with respect to groups.  Often the defendant's formal rule is clear; the first explanation of why some applicants were not hired is that they did not score well on the test.  It is generally impossible to say that the employer refused to hire blacks; it hired blacks that passed the test and rejected whites that failed the test.  The purpose inquiry goes to subjective motivation; the employer is liable if it adopted the test because of its tendency to screen out a disproportionate number of black applicants.
In the class of one cases, there are no groups, no statistics, and no proportions.  There is no clear rule that provides a first order explanation of why plaintiff was rejected, or fired, or taxed at a higher rate, or whatever.  What the Court means by intentional is not perfectly clear, but I think it means only that whatever defendant did, it did on purpose.  Intention here does not refer to motivation, but to volition.  The essence of the claim is that defendant intentionally fired the plaintiff (or treated plaintiff badly in some other way), and there is no rational explanation for it.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-471-6988 (fax)


From: conlawprof-bounces at on behalf of Edward Still
Sent: Sun 11/20/2005 9:29 PM
Subject: Intent, purpose

The Supreme Court explained in Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (per curiam):
        Our cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.  See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). 

In Washington v. Davis, the Court rejected the idea that "a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact."

Are "intent" in Olech and "purpose" in Davis the same thing?  If so, is the Court adding something to "class of one" cases not found in equal protection (rational relationship) cases?

Let me put this another way.  Chemerinsky says in his treatise, "In other words, there are two alternative ways of proving the existence of a classification: showing that it exists on the face of the law or demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose."  If proof of discriminatory purpose is necessary only to attack a facially neutral law, why did the Court talk about (and seem to require proof of) intentional discrimination in Olech, Sioux City Bridge, and Allegheny Pittsburgh?

Edward Still
attorney and mediator
Suite 201
2112 11th Ave S.
Birmingham AL 35205
  phone 205-320-2882
  fax toll free 1-877-264-5513
  still at <>


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