More than 120 years have passed since the states ratified the Fourteenth Amendment, making equal protection of the laws a constitutional right for all citizens. Since the Amendment's passage, courts and academics have struggled to define exactly what government actions are prohibited by the Equal Protection Clause. Courts and scholars generally have understood equality to mean that similar groups should be treated similarly. This definition recognizes that differences exist be- tween people and that ensuring that all people are treated equally in spite of these differences would inhibit progress. The United States Supreme Court, however, has not interpreted the Clause to require that the government always treat similar groups similarly due to concerns that this requirement would stymie government activity.' Rather, the Court has said that it will invalidate a government action under the Equal Protection Clause only when the government has displayed unfair and unequal treatment toward an identifiable group and when certain suspicious circumstances indicate the government did not have good reason to do so.
In the 1970s, the Court developed the discriminatory intent standard to narrow the class of suspicious circumstances that would invoke the Clause's protection. The intent standard requires plaintiffs to show that the state's act disparately affected them and that the act was motivated by discriminatory intent. Otherwise, the Court would merely examine whether the state had a rational basis for its actions, virtually assuring that the challenge would fail. The discriminatory intent standard is based in part on the idea that racial discrimination is conscious, willful, and morally reprehensible. Current studies of the dynamics of racism, however, demonstrate that this understanding of racial discrimination is incomplete: many people learn racist attitudes early in life and unconsciously use them to process information about their environment and to decide how to act. This type of racism has been described as "aversive racism."' Aversive racists consciously know that racism is wrong, yet their cognitive development essentially has predisposed them to make decisions based on racist beliefs anyway. The result is that aversive racists take conscious steps to avoid racism within themselves, yet their unconscious prejudg- ments still influence their decisions. Actors motivated by aversive racism, therefore, may discriminate against a target racial group without consciously intending to do so.
Additionally, scholars now understand that racism may operate on an institutional as well as individual level." Institutional racism occurs when the group in power structures its social institutions so as to maintain its dominance over other groups.
This Note examines aversive, institutional racism for the purpose of determining whether new understandings about racism require a modification of equal protection analysis. To illustrate the causes and effects of institutional racism, this Note focuses on situations in which a government.body sites an environmental hazard in or near a neighborhood with a high percentage of minority residents. Statistics show that a substantial correlation exists between the racial make-up of a neighborhood and the likelihood that an environmental hazard will be located nearby. Some scholars have termed this phenomenon "environmental racism," even though these instances often lack any evidence of conscious discriminatory intent on the part of the decisionmakers. To a person who believes that conscious intent is a necessary component of racial discrimination, it may seem more likely that economic factors, rather than racial prejudices, motivate decisions to place environmental hazards in minority neighborhoods.' Furthermore, to the extent that racial discrimination could influence these decisions, many states and counties have procedural safeguards to protect neighborhoods chosen to host environmental hazards. This Note will address these arguments and show that they rest on flawed assumptions. In many cases, these economic or procedural protections may be illusory.' If racism does in fact drive the phenomenon that minorities bear a disproportionate share of the risk associated with environmental hazards, the courts should modify the equal protection analysis to prohibit insidious as well as invidious discrimination.
Edward P. Boyle,
It's Not Easy Bein' Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis,
46 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol46/iss4/5