This article anticipates that the next president and the current Congress will likely pursue civil rights legislation for the first time since 1991. Their most significant and difficult task will be determining whether to retain the Supreme Court’s intentional discrimination standard. Because this issue has so often led to polemic debates and court decisions in the past, this article attempts to provide a neutral framework for that discussion. Relying on tort concepts and their longstanding connection to constitutional torts, it demonstrates that the attempt to create a standard to prohibit immoral or “wrongful” conduct is both misguided and will prove fruitless. In fact, fault is not a normative concept and has no inherent meaning. Rather, being at fault simply means that one has transgressed some standard that a legislature or court has adopted. These standards are adopted to produce and pursue societal goals, not identify or punish wrongful conduct. A review of Supreme Court decisions on equal protection and antidiscrimination, however, reveals that the Court has tried to articulate much of its precedent in terms of fault, while at the same time pursuing a set of implicit societal goals. This approach has led to distractions with a normative concept of fault and an imprecise consideration of the goals of antidiscrimination and the standards that can produce them. The article clarifies this confusion by simply querying whether the intentional discrimination standard produces the Court’s desired results. However, the article emphasizes that the goals of antidiscrimination law must be those of Congress and the country, not the Supreme Court. Thus, in the upcoming legislative debate, the article calls for a serious discussion of the appropriate goals of civil rights, whether they be addressing racial inequities or maintaining current practices and patterns. Once those goals are settled through an open democratic process, the task of adopting a standard will become one of mere mechanics. The article assists legislators in that process by evaluating the various imputations of the intent and other standards to determine what results they can consistently and efficiently produce.
Derek W. Black, Framework for the Next Civil Rights Act: What Tort Concepts Reveal about Goals, Results, and Standards, 60 Rutgers L. REV. 259 (2008).