still at votelaw.com
Mon Nov 21 08:54:42 PST 2005
In addition to trying to explain levels of scrutiny to my students, I
am working on a paper for a lawyers' group about the Class of One
cases. Let me try this out on you. Forgive me if I sound rather
simple-minded, but I am trying to lay all this stuff out in a clear,
The words "intent" and "motive" are often used interchangeably but
Black's Law Dictionary (the final authority on all questions in the
law, of course) distinguishes motive from intent, stating "motive is
the inducement to do some act, intent is the mental resolution or
determination to do it." One court explained the difference by
referring to a murder case. The defendant intended to pull the
trigger, but his motive was revenge.
"The unlawful administration by state officers of a state statute
fair on its face, resulting in its unequal application to those who
are entitled to be treated alike, is not a denial of equal protection
unless there is shown to be present in it an element of intentional
or purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 8
(1944). I understand this "intent" to be the "pull the trigger" type.
In order to invoke strict scrutiny against a facially neutral
statute, the plaintiff must show that the defendant had "an invidious
discriminatory purpose" which is a showing of motive. Unfortunately,
this is sometimes called "intent to discriminate," which may lead us
to believe that this is the same sort of intent necessary in all
Equal Protection cases.
That's what I will tell the students. Does that make sense so
far? Now for (some of) what I explain to the lawyers:
The problem with Class of One cases is the fuzziness of the word
"intentional" as used by the Court in Olech. If we assume that the
Court is requiring volitional, as opposed to negligent, conduct, then
Class of One cases seem to fall into the realm of non-strict-scrutiny
Equal Protection cases. (There is another problem involving the use
of "rational relationship" instead of "rational basis," but I will
leave that alone for now.)
At 09:53 PM 11/20/2005, Douglas Laycock wrote:
>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.
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX 78705
>From: conlawprof-bounces at lists.ucla.edu on behalf of Edward Still
>Sent: Sun 11/20/2005 9:29 PM
>To: CONLAWPROF at lists.ucla.edu
>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?
>attorney and mediator
>2112 11th Ave S.
>Birmingham AL 35205
> phone 205-320-2882
> fax toll free 1-877-264-5513
> still at votelaw.com
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