Charles Lawrence III

The Id. The Ego and Equal Protection: Reckoning with Unconscious Racism
Prepared by Joshua Lee

I. The False Dichotomy Between Discriminatory Intent and Disproportionate Impact

a. Current Race Jurisprudence
i. Treats disproportionate impact and governmental motive as mutually
exclusive
ii.Courts think of facially neutral actions as either intentionally and
unconstitutionally or unintentionally and constitutionally discriminatory
b. The false dichotomy
i. Traditional notions of intent do not reflect the fact that decisions about
racial matters are influence by facts that cannot be characterized as
intentional or unintentional
1. Intentional – self consciously sought
2. Unintentional – outcomes are random, fortuitous, and uninfluenced
by decision maker’s beliefs, desires, and wishes.
ii.We are all racists
1. Racism has played a dominant role in the common historical and
cultural heritage of Americans shaping attitudes towards
nonwhites
2. A large part of behavior that produces racial discrimination is
unconscious
iii.Psychological Reasons unconscious nature of racially discriminatory
beliefs
1. Defense mechanism against guilt
a. Freudian theory explains that mind defends itself against
discomfort of guilt by denying or refusing to recognize that
in conflict with what that individual has learned is right
b. When there is conflict between racist ideas and societal
ethic that condemns those ideas, the mind excludes racism
from consciousness
2. Subconscious transmission of racist lessons
a. Culture transmits certain belief and lessons
b. Racism is so deeply ingrained in culture and is likely to be
transmitted by tacit understandings
c. The Inadequacy of Intentional motivation standard
i. Requiring intentional or conscious motivation as a perquisite ignores much
of what we know about the human mind
II. The New Test to Trigger Judicial Recognition of Race-Based Behavior
a. The Test: Evaluate governmental conduct to determine whether it conveys a
symbolic message to which the culture attaches racial significance
i. Finding that culture thinks of an allegedly discriminatory action in racial
terms would lead to a finding that there was racial motivation
1. Government actors are part of the culture and could not have acted
by racial considerations, even if they were unconscious
ii.Then apply strict scrutiny to the government action
b. Criticism of law and legal discourse
i. Most extreme view: law serves a hegemonic function by legitimizing
oppressive power relationships through false or misleading ideologies
ii.Less extreme: criticizes approaches that claim the existence of some
preexisting natural order
1. Acknowledges existence and legitimacy of conflicting perspectives
and encourages confrontation and debate among views
c. The author’s vision to an approach toward race
i. Judges should base constitutional decisions on their own sense of what
values best reflect our cultural tradition so long as it is made explicit
ii.This will put debate at the forefront and judging more honest.