Ending qualified immunity is important, but a much more consequential Supreme Court decision is being overlooked.
in the New York Times, the result of this decision was the perpetuation of systemic racial discrimination and the ascendance of “what is now known as the ‘intent doctrine,’ which emerged in later cases as a simplistic search for a smoking gun—individual bad actors intentionally doing bad things with nothing but racial animus on their minds.”
That isn’t how structural racism works, it never was, and it meant that—ironically enough—policing itself became both a profession with higher barriers to Black people and a mechanism to carry out racially discriminatory criminal laws. And discriminatory intent became a kind of unprovable holy grail in any effort to redress racist policies. A state simply had to assert a reasonable public interest to justify laws, such as promoting health, safety, or morals.
The result is a kind of cyclical trap. Requiring evidence of racist intent means that many laws that harm minorities, either by design or as a result of vestigial racial bias, nevertheless survive constitutional scrutiny. Those laws in turn perpetuate racial disparities and weaken minorities’ political power, while the people who make laws have no incentive to upend the order they have created. For example, an Aprilin Iowa revealed that 7.3 times more Black people in that state and 3.
One might think this systemic inequality can be solved by voting for legislators who will not tolerate racial disparities. But that option is also walled off. In 2008, the U.S. Supreme Court’s decision inprovided that photo ID requirements for voting were allowed, although the evidence clearly showed the purportedly neutral rules had a disparate impact on minority voting.
In short, the U.S. Supreme Court’s cramped reading of the equal protection clause in the 1970s has actively subjected people of color to unfair treatment, across the decades, and it has led to a ponderous case-by-case scrutiny of subjective bad intentions of selective bad apples, ducking a broad and results-oriented scrutiny of racialized systems.
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