The Intent Doctrine and CERD: How the United States Fails to Meet its International Obligations in Racial Discrimination Jurisprudence

Audrey Daniel

Abstract

This article explores the United States’ constitutional discrimination standard, first annunciated in Washington v. Davis, within the context of its international human rights obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). It posits that the United States falls short of its obligations by imposing on plaintiffs the heavy burden of demonstrating intentional discrimination, while CERD requires party states to redress all racial discrimination claims that meet a lower disparate impact standard. A near-universally supported convention, many of CERD’s other party states have adopted the disparate impact standard that is equipped to deal with latent discrimination such as implicit bias and structural racism. However, the United States has refused to adopt this standard, imposing the anachronistic intent requirement that is inadequate to address such modern forms of racism. After comparing the intent standard to the disparate impact standard in CERD, adopted by other party states, the article seeks to offer suggestions as to how practitioners and others may work towards updating United States discrimination law to meet that of the international community.