This Article highlights the inherent ambiguities of racial antidiscrimination’s core legal language: “equal protection under the law” and “discrimination based on race.” It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court’s standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection’s meaning, the standard lacks any basis and is but a reflection of the Court’s values. In addition, the intent standard has proven unreliable in application and has provided lower courts with inadequate guidance. This inconsistency and unreliability is increasingly surfacing in recent years as the Court’s simplistic iterations of discrimination are insufficient to resolve complex situations. To create a consistency with equal protection’s meaning and resolve application problems, this Article proposes a new standard of deliberate indifference. Deliberate indifference requires the government to consider the racial harms that it perpetrates and avoid them when possible or when no legitimate reason justifies them. In this respect, it ensures that the government affords its citizens the equal consideration, value, and protection to which the Fourteenth Amendment entitles them.
Derek W. Black, The Contradiction Between Equal Protection's Meaning and Its Legal Substance: How Deliberate Indifference Can Cure It, 15 Wm. & Mary Bill Rts. J. 533 (2006).