A Project by HLS Students for Inclusion!


Supreme Court of the United States (1987)


Often Ignored in Class Discussion:

  • The vigorous and compelling points offered in the dissenting opinions
  • Phenomenon of Mass Incarceration
  • Intentionality requirement in Constitutional Law
  • Racially Biased Views of Discrimination



This is one of the few cases in which you will see a robust dissent.[1]  Each of the dissenting opinions offers its own insight into what the majority either fails to consider or chooses to ignore.  In class discussion, however, the historical and present-day context of the phenomenon of mass incarceration tends to get overlooked.  What is to be made of the thousand of black lives sentenced to rot on death row due to anti-black racial bias in criminal sentencing?  If Harvard Law School were an actual justice school, then perhaps this would be a case in which the professor asked students about the serious effects of mass incarceration on communities of color and the responsibility of the State to ensure that racial bias is not punishing people merely on account of their skin color and class position.

  In addition to that urgent issue, another important issue that goes unnoticed in class is the intentionality requirement used in application to the 14th amendment’s equal protection clause.[2]  Under this requirement, the “analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden proving ‘the existence of purposeful discrimination.”[3]  In this context, the majority basically says that if you cannot prove intentional discrimination based on racial bias, then it does not exist under the eyes of the law.  Do you think is an accurate assessment of how racial discrimination works in practice?  How would a party even go about proving such a claim?


Critical Questions:


         Like many of the cases in the first-year curriculum, this case points to the problem of perspective and flaws inherent in the neutral objective standard.  Do you think the intentionality requirement under the 14th amendment is racism as understood from the perspective of white people?  How might a discrimination requirement be understood from a black perspective?  One possibility might be the clear showing of disproportionate racial impact, which we certainly have in this case. 


[1] See Kadish Et Al. supra note 7 at 557-565.

[2] Id.

[3] Id.