Editing Equal Protection Clause (section)

==Discriminatory intent and disparate impact==
{{Main|Disparate impact}}
Because inequalities can be caused either intentionally or unintentionally, the Supreme Court has decided that the Equal Protection Clause itself does not forbid governmental policies that unintentionally lead to racial disparities, though Congress may have some power under other clauses of the Constitution to address unintentional disparate impacts. This subject was addressed in the seminal case of ''[[Arlington Heights v. Metropolitan Housing Corp.]]'' (1977). In that case, the plaintiff, a housing developer, sued a city in the suburbs of [[Chicago, Illinois|Chicago]] that had refused to [[zoning|re-zone]] a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of [[Arlington Heights, Illinois|Arlington Heights's]] planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice [[Lewis Franklin Powell Jr.|Lewis Powell]], writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an [[evidence|evidentiary]] value; absent a "stark" pattern, "impact is not determinative."<ref>{{cite journal |last1=Kroll |first1=Joshua |title=Accountable Algorithms (Ricci v. DeStefano: The Tensions Between Equal Protection, Disparate Treatment, and Disparate Impact) |journal=University of Pennsylvania Law Review |date=2017 |page=692|volume=165 |url=https://scholarship.law.upenn.edu/penn_law_review/vol165/iss3/3/}}</ref> 

The result in ''Arlington Heights'' was similar to that in ''[[Washington v. Davis]]'' (1976), and has been defended on the basis that the Equal Protection Clause was not designed to guarantee [[equality of outcome|equal outcomes]], but rather [[equal opportunity|equal opportunities]]; if a legislature wants to correct unintentional but racially disparate effects, it may be able to do so through further legislation.<ref>{{cite web |url=http://left2right.typepad.com/main/2005/03/constitutional__1.html |title=Constitutional Rights: Two |last=Herzog |first=Don |date=March 22, 2005 |work=Left2Right }} Note that the Court has put significant limits on the [[congressional power of enforcement]]. See ''[[City of Boerne v. Flores]]'' (1997), ''[[Board of Trustees of the University of Alabama v. Garrett]]'' (2001), and ''[[United States v. Morrison]]'' (2000). The Court has also interpreted federal statutory law as limiting the power of states to correct disparate effects. See ''[[Ricci v. DeStefano]]'' (2009).</ref> It is possible for a discriminating state to hide its true intention, and one possible solution is for disparate impact to be considered as stronger evidence of discriminatory intent.<ref>See {{cite journal |last=Krieger |first=Linda Hamilton |year=1995 |title=The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity |journal=[[Stanford Law Review]] |volume=47 |issue= 6|pages=1161–1248 |doi=10.2307/1229191 |jstor= 1229191 |hdl=10125/66110 |hdl-access=free }}, and {{cite journal |last=Lawrence |first=Charles R. III |year=1987 |title=Reckoning with Unconscious Racism |journal=Stanford Law Review |volume=39 |issue= 2|pages=317–388 |doi=10.2307/1228797 |jstor= 1228797 |hdl=10125/65975 |hdl-access=free }}</ref> This debate, though, is currently academic, since the Supreme Court has not changed its basic approach as outlined in ''Arlington Heights''.

For an example of how this rule limits the Court's powers under the Equal Protection Clause, see ''[[McClesky v. Kemp]]'' (1987). In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A study found that killers of whites were more likely to be sentenced to death than were killers of blacks.<ref name="Baldus1983">{{cite journal |last=Baldus |first=David C. |author2=Pulaski, Charles |author3=Woodworth, George  |year=1983 |title=Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience |journal=Journal of Criminal Law and Criminology |volume=74 |issue=3 |pages=661–753 |doi=10.2307/1143133 |jstor= 1143133|url=https://scholarlycommons.law.northwestern.edu/jclc/vol74/iss3/2 |type=Submitted manuscript |url-access=subscription }}</ref> The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch.

The "[[Stop-and-frisk in New York City|Stop and Frisk]]" policy in New York allows officers to stop anyone who they feel looks suspicious. Data from police stops shows that even when controlling for variability, people who are black and those of Hispanic descent were stopped more frequently than white people, with these statistics dating back to the late 1990s. A term that has been created to describe the disproportionate number of police stops of black people is "Driving While Black." This term is used to describe the stopping of innocent black people who are not committing any crime.

In addition to concerns that a discriminating statute can hide its true intention, there have also been concerns that facially neutral evaluative and statistical devices that are permitted by decision-makers can be subject to racial bias and unfair appraisals of ability.'<ref name="auto">{{cite journal |last1=Feingold |first1=Jonathon |title=Equal Protection Design Defects |journal=Temple Law Review |date=2019 |volume=91 |url=https://scholarship.law.bu.edu/faculty_scholarship/833}}</ref>  As the equal protection doctrine heavily relies on the ability of neutral evaluative tools to engage in neutral selection procedures, racial biases indirectly permitted under the doctrine can have grave ramifications and result in 'uneven conditions.' '<ref name="auto"/><ref>{{cite journal |last1=Barocas |first1=Solon |title=Big Data's Disparate Impact |journal=California Law Review |date=2016 |volume=104 |issue=3 |pages=671–732 |jstor=24758720 }}</ref>   These issues can be especially prominent in areas of public benefits, employment, and college admissions, etc.'<ref name="auto"/>