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Paper: Constitution’s equal protection clause inadequate shield against discrimination

Embedded in the 14th Amendment to the U.S. Constitution is the equal protection clause, which is the primary constitutional mechanism guaranteeing people equal treatment under the law. But according to a new paper co-written by Robin B. Kar, a University of Illinois professor of law and of philosophy, the Supreme Court’s current interpretation of the equal protection clause is poorly suited to guarantee people genuine equal treatment under the law when it comes to race.

“The ideal in American law is that all people are treated equally under the law, and that the law should treat people based on their particular choices and actions, and never on legally irrelevant grounds like race,” Kar said.

But the Supreme Court requires a finding of “intentional discrimination” for an equal protection violation. According to Kar, that requirement fails to acknowledge how many ordinary beliefs about race regularly function in prejudicial ways, even when there’s no intention to discriminate. Thus, the equal protection clause as it’s currently interpreted “fails to guarantee people actual equal treatment under the law,” said Kar, who co-wrote the paper with John Lindo of the University of Chicago.

To understand the psychological mechanisms that create this problem requires an interdisciplinary look into human psychology, evolution and genetics, Kar said.

“Unfortunately, scholars who study race and the law often resist integrating insights from evolutionary theory and biology into their understanding of human psychology and behavior,” he said.

Although some resistance is understandable, it’s also a mistake given the major advances that have been occurring in these fields, said Kar, an expert on the relationships between law and genetics and evolutionary psychology.

“The law must constantly adapt to the technological developments and findings from other fields, and recent events and research make it increasingly clear that there is a problem with this aspect of the Supreme Court’s jurisprudence,” he said.

Kar’s research suggests that certain psychological mechanisms regularly function to produce disparate impacts on people of different races. Many of these mechanisms operate without any conscious intentions to discriminate, Kar said, and are untouched by the Supreme Court’s current equal protection jurisprudence.

“Rather than guaranteeing the actual equal treatment of persons under the law, this jurisprudence allows some of the most potent forms of discrimination to persist and shape aspects of how the law operates in the real world,” he said.

A signal example was in the grand jury testimony of former police office Darren Wilson in the 2014 shooting death of Michael Brown in Ferguson, Missouri.

“Wilson said that when he shot Brown, he acted out of fear, stating that Brown ‘looked like a demon’ at the time of the shooting,” Kar said. “The studies we cite in the paper show that fear and dehumanization are triggered more easily toward members of a perceived out-group, including a perceived racial out-group, than members of one’s own perceived race. But no fact in the world can turn a human into a demon. When perceptions of race create perceptions like these, they are creating something akin to optical illusions. And these illusions undermine the capacity of our legal system to treat people equally.”

Kar said other examples are discussed in the article.

“The existence of psychological mechanisms like these suggests that much more thought needs to be given to how to create legal systems that can guarantee people genuine equal treatment under the law,” he said. “Much of our paper is devoted to describing these psychological mechanisms and how they function in anti-social manners.”

Kar and Lindo also make several legal and policy recommendations in the paper. They urge the Supreme Court to reinterpret the equal protection clause so that it safeguards not only against intentional discrimination but also “any disparate impact caused by racial beliefs that regularly function to produce inequality.”

The authors also recommend that the plain meaning of the equal protection clause demands this reorientation, “given our best contemporary understanding of human psychology and genetics,” Kar said.

“We also believe that certain remedial forms of affirmative action should be used for redress not only for past practices of intentional discrimination, but also for the continuing effects of current unconscious discrimination,” he said.

Affirmative action is an issue that the Supreme Court will likely address this term, and Kar says he hopes the justices will take into account these recent developments in the sciences.

The authors also advocate for more policies that promote racial integration, “a goal that has largely been abandoned since the last concerted efforts to enforce Brown v. Board of Education in the 1980s,” Kar said.

Kar said that this integration cannot be “atomistic” and must instead be fashioned to ease the possibility of genuine cooperative ventures and bonds of affiliation among diverse groups.

In addition, “state actions and police policies that impact minorities should be based on deliberations that involve more diverse constituents,” he said. “For example, mechanisms to produce racially diverse juries in some criminal and antidiscrimination cases should be developed.”

The paper will be published in the Oxford Handbook on Law and Technology.

Editor’s notes: To contact Robin B. Kar, call 217-333-4461; email rkr@illinois.edu.

The paper “Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law” is available online.

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