In the last post, we explored a big idea in equal protection law: it’s not enough to show that a law has a racially unequal effect, you have to also prove that the government intended to discriminate.
But what does that actually mean in practice?
Governments rarely say out loud that they’re passing a law to hurt one group. So courts have to read between the lines. They look at history, patterns, timing, and process. In other words, intent can be inferred, even when it’s not written into the law.
That’s exactly what was at stake in the 1977 Supreme Court case Village of Arlington Heights v. Metropolitan Housing Corp.
The Case: Subsidized Housing and Zoning Fights
In Arlington Heights, a nonprofit wanted to build federally subsidized housing in a predominantly white suburb of Chicago. The housing would have made the neighborhood more racially and economically diverse.
But the city refused to change its zoning laws to allow multi-family housing on the proposed site.
The nonprofit sued. Their argument? The refusal wasn’t just about zoning—it was racially motivated.
The case gave the Court a chance to clarify what counts as intentional discrimination when the law doesn’t mention race at all.
How Courts Infer Discriminatory Intent
The Court agreed on one key point: just because a law has a disproportionate racial impact doesn’t make it unconstitutional. But that doesn’t mean intent has to be spoken out loud. It can be shown through evidence.
Here are the clues the Court said judges should look for:
Historical Background – Is there a pattern of racial exclusion?
Sequence of Events – Did the rules change suddenly when race entered the picture?
Departures from Normal Procedure – Did officials ignore or bend the usual process?
Legislative or Administrative History – Are there documents or statements suggesting race played a role?
In Arlington Heights, the Court found that these clues weren’t strong enough. The zoning law had existed for years. There was no obvious break from normal procedure. And no one in power had said anything racially charged. So the law stood.
Still, the case set the stage for how future courts would assess claims of hidden discrimination.
What Happens If Discrimination Is Proven?
Here’s where it gets more complicated.
Even if a court finds that race was a factor in the government’s decision, that doesn’t automatically strike the law down. Under the rule from Arlington Heights (borrowing from a First Amendment case, Mt. Healthy), the burden shifts:
The plaintiff has to show that race was a motivating factor.
Then, the government has a chance to show it would have made the same decision anyway, even without race.
If the government succeeds, the law survives. If it can’t justify its actions on neutral grounds, the law is struck down.
This burden-shifting rule reflects a deeper tension in the law: the goal is to stop real discrimination—but not to second-guess every policy that has a racial effect.
Sidebar: Intent, Impact, and Two Paths
Rogers v. Lodge (1982): A Georgia county used an at-large voting system that consistently blocked Black voters from electing candidates, even though they made up a majority of the population. The Court found intentional discrimination based on historical patterns and maintained exclusion.
Hunter v. Underwood (1985): Alabama’s constitution barred people with certain convictions from voting. The law looked neutral, but the historical record showed it was designed to target Black voters. The Court struck it down, citing both intent and impact.
Disparate Impact Under Other Laws
While the Equal Protection Clause requires proof of intent, other civil rights laws do allow disparate impact claims—challenges based on unequal results, even without proof of motive.
In Texas Dept. of Housing v. Inclusive Communities Project (2015), the Court ruled that plaintiffs could bring disparate impact claims under the Fair Housing Act. But they also made it clear: not every statistical difference counts. Plaintiffs have to show that a specific policy caused the disparity.
Justice Kennedy warned that if courts strike down laws based on numbers alone, it could lead to “unconstitutional racial quotas.” He wanted a robust causality requirement, a way to prevent lawsuits from chilling good policy decisions made in good faith.
The Debate: Should Courts Do More to Address Racial Disparities?
Some argue that the intent requirement sets the bar too high.
In their view, the Washington v. Davis standard is out of step with how modern discrimination works. Today, bias rarely comes with a paper trail. It’s built into systems: zoning rules that lock neighborhoods into patterns of segregation, school funding formulas tied to property taxes, hiring requirements that sound neutral but exclude certain groups.
None of these policies say anything about race. But they often produce predictable racial disparities.
Critics argue that if courts demand direct evidence of bias, most of these cases go nowhere. Laws that reinforce inequality are upheld simply because they don’t use offensive language. As a result, the Equal Protection Clause ends up protecting against only the most explicit forms of discrimination, while systemic injustice thrives in silence.
Others warn that loosening the standard could backfire.
They worry that allowing courts to strike down laws based only on unequal outcomes could pressure governments and employers to make decisions based on race, which might itself be unconstitutional.
That concern came to a head in Ricci v. DeStefano (2009), where New Haven threw out firefighter exam results after no Black candidates qualified. The city feared a lawsuit for racial disparity. But the Court ruled that discarding results solely because of race, without strong evidence the test was flawed, was itself discriminatory.
Justice Scalia went further: If the Constitution bars race-based decision-making, then policies that adjust outcomes based on race (even to avoid discrimination claims) could violate equal protection.
Two Visions of Equality
This debate reflects two visions of equality under the Constitution:
One focuses on outcomes: If a law reinforces racial hierarchies, it should be suspect—no matter how it’s written.
The other focuses on formal neutrality: So long as laws treat everyone the same on paper, and race isn’t an explicit factor, they should be presumed constitutional.
The law is still trying to walk the line between these two visions—protecting against hidden discrimination without requiring race-based decision-making that might undermine constitutional principles of fairness.