I was taking a look at the most-cited law review article and noticed that a favorite article of mine is #8 -- Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987). The article is great and I have cited to it often. For those who don’t know, Lawrence argues that because discrimination is often unconscious, claimants should not have to prove intent under the Equal Protection Clause. He offers a replacement to the Intent Doctrine, the cultural meaning test. It is here where I disagree with Lawrence. In this blog post, I’d like to explain why a cultural meaning test would be a bad idea. I know it's a little "ambitious" for a "nobody" to outline why an iconic piece is wrong, but, you know, whatever...
“This test,” in Lawrence’s own words, “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance.” According to Lawrence, under this test, judges would be akin to cultural anthropologists who would, in light of historical developments and current social contexts, assess whether governmental conduct furthers a racial meaning.
While it has some merit, the cultural meaning test fails on a few levels. First, it is counter-intuitive. Lawrence proffers a great argument over the course of 50 or so pages describing how racism is often unconscious, yet his test forces the very same people who he contends have unwittingly buried their biases to then search for the cultural meaning of certain behaviors. .
Along those lines, Lawrence greatly overstates how obvious cultural meaning is in certain contexts. Does Lawrence truly believe that he and Justice Scalia, for instance, will agree on the cultural meanings that governmental actions convey in varying contexts? The effectiveness of the cultural meaning test, more pointedly, depends highly upon who’s behind the bench. The test can work well if Lawrence is donning the long black robe. But in the hands of others, specifically jurists who do not or choose not to see the salience of race, the cultural meaning test will produce the same results that so perturb Lawrence.
But, for the sake of argument, let’s say that judges will be able to discern history properly and find cultural meanings where they exist. What Lawrence fails to appreciate is that there could be a cultural meaning in nearly everything that occurs in American society. Lawrence makes the point that there is no history of using high fares to subjugate blacks thus a transportation fare increase carries no cultural meaning. But there is no doubt that there is a sad legacy of using blacks’ lack of economic vitality to subjugate. Take peonage for instance. The entire scheme depended on blacks’ lack of wealth. Lawrence, in other words, is wrong. One might find a cultural meaning in increased fares.
Lawrence erred in championing the cultural meaning test. Rather, Lawrence’s detailing of unconscious bias should have led him to endorse an objective test. Instead, he opted for a subjective one that ignores the important lesson his own article instructs: unconscious bias negatively impacts racial minorities’ ability to enjoy the fruits of American democracy. If one believes that to be true, then it makes little sense to promote a standard that permits those same unconscious biases to continue to reign supreme.
I have my own intent fix. I'll blog about it later.
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