Equal Protection, Economic Legislation,and Racial Discrimination

The drive to end racial discrimination now extends beyond blatant racial distinctions to less obvious and less intentional forms of unequal treatment; nonetheless, there still exist laws and governmental programs that are racially neutral on their face but that may have a racially discriminatory impact in practice. Such discrimination can take place when economic and social welfare legislation, lacking a sound economic grounding, attacks symptoms rather than causes and thereby unintentionally compounds the problems facing black people. At the same time, laws that are at the root of unequal treatment seem to go unchallenged. From the point of view of the victim of discrimination, it matters little whether the root of the problem is racists acting with an intent to cause racially discriminatory impact or nonracists acting with no such purpose but causing the same discriminatory result.

The black person is denied an education, a job, or a house just the same. This Article will propose a new direction for law reforms that focuses upon the impact of laws on the causes of unequal treatment; it advocates extending the scope of the equal protection clause to cover racial discrimination resulting from economic and social welfare legislation. The basic rule in this analysis is that the impact of a law on black people is the determining factor, not the intentions of those who design and promote the law.