How a Key Civil Rights Era Shift Paved the Way for Today’s Political Fallout... and Why It Matters
TL;DR A society that abandons intent abandons social trust, trust in institutions, and ultimately, democracy itself.
Saturday, March 8, marks the 54th anniversary of the Griggs v. Duke Power Supreme Court decision. This relatively little-known decision was the legal embodiment of a moral shift that would reverberate throughout our political discourse for the next half a century.
In Griggs v. Duke Power, SCOTUS unanimously determined that discrimination could exist without the intent to disadvantage one group over another. Whereas before this ruling, proving discrimination required demonstrating an intent to do so, afterwards, disparate impact—the unequal outcomes of policies—could be used as grounds for the same charge.
In many ways, this change was a necessary win for civil rights. After all, it meant employers could no longer hide behind facially neutral policies that disproportionately harmed black, or other, applicants. Nor could they use such policies as a cover for biases they were unwilling to admit.
At the same time, it had unforeseen consequences.
While the Griggs ruling reflected a bipartisan judicial view that certain barriers were discriminatory regardless of the driving motive, the underlying moral principle—that intent doesn’t matter when it comes to racism, discrimination, and other forms of bigotry—became one of the key philosophical dividing lines in American politics. I say “dividing” because, generally speaking, the left adopted this principle, while the right didn’t.
In other words, consensus in the courtroom didn’t meant consensus in the wider culture.
The fact that society split in its adherence to this moral principle doesn’t mean that the arguments to now swing in one direction or another should be viewed as equally compelling. On the contrary, a return to policies, institutions, and norms that integrate intent is the only long-term strategy a democracy can tolerate.
This is, in part, because of what the idea that “intent doesn’t matter” inevitably means for political disagreement. For instance, when disparities are assumed to be evidence of systemic oppression, disagreement with efforts designed to reduce those disparities can itself be viewed as racist. And when disagreement is framed as immoral complicity, resentment on the part of those being condemned builds. It builds until someone emerges who's willing to challenge prevailing norms without concern for the blowback.
In a system where dissent brings moral condemnation, the leaders who emerge will be those who see norm defiance as a source of strength rather than a liability. It’s a landscape that will naturally select for individuals with both the temperament to withstand intense social condemnation and the psychological predisposition to view all norms as negotiable rather than of value. And this selection mechanism makes further transgressions—including when it comes to democratic norms—practically inevitable once the power of deliberate provocation is observed.
It’s difficult to overstate how consequential this moral shift away from intent has been. Today, we see its effects in nearly all of our most contentious conversations linked to race, gender, and identity.
It’s visible in the way institutions have approached concepts like microaggressions—where a question like Where are you from? is considered inherently racist.
It’s there in how we think about cultural sensitivity—in the assumption that, for instance, a white person wearing corn rows is participating in something intrinsically exploitative.
And it’s apparent in the now-federally-banned diversity and anti-racism initiatives that shifted organizations’ focus from eliminating overt bias to addressing systemic barriers, unconscious bias, and outcome disparities.
This moral shift had such far-reaching consequences that it can help explain:
the rise of identity politics (when fairness is defined by group outcomes rather than by neutral rules, it makes sense that activism would shift from individual rights to collective identity-based grievances),
the decline of trust in institutions (institutions focused on outcomes are no longer seen as neutral arbiters, but as actors enforcing ideological preferences),
the current dismantling of institutions (when institutions are seen as irredeemably corrupt and ideologically-driven, the goal shifts from reforming them to destroying them),
the fact that each political party seems to live in a different reality (The idea that intent doesn’t matter collapses the distinction between facts—what is—and moral imperatives—what ought to be, leading to competing epistemic bubbles. These distinct realities are then reinforced by the lack of trust in institutions (see above).)
To be sure, neither the left nor the right has yet reckoned with this moral shift or its implications. And yet, understanding the link I’m describing here has immediate implications for how the left criticizes the current presidential administration.
For starters, criticizing Trump from within the same moral framework that made him attractive to so many in the first place will only strengthen this appeal. When critics respond to Trump's statements or policies without considering his stated intentions, they reinforce the exact dynamic that drove many voters to him in the first place.
More generally, when critics dismiss Trump and his supporters without addressing the deeper cultural and political forces that led to his rise, they send a clear message: the concerns that brought Trump to power in the first place are not only wrong but illegitimate. This deepens the cycle of distrust and ensures that the conditions that led to Trump’s rise remain firmly in place—regardless of whether he himself remains on the political stage.
Ultimately, rebuilding trust requires coupling criticism of this administration with a commitment to reintegrating the importance of intent into our policies, institutions, norms, and discourse.
Doubters and skeptics need only look at the recent political dynamics in countries including the Netherlands, Hungary, Germany, and Poland. In each, the political left embraced a moral framework that treated particular questions—such as whether immigrants were integrating into society—as inherently morally suspect or racist. This, in turn, fueled a backlash on the populist right, as those who rejected this framework turned to candidates who would challenge it outright. In other words, far from being unique to the US; this is a consistent and repeatable pattern.
I’m aware that some people will dismiss this analysis entirely.
And yet, if we choose to ignore how the abandonment of intent has fueled distrust, division, and political instability, it makes little sense to be surprised when the cycle of populist backlash, social mistrust, two realities, and institutional decay continues to accelerate—perhaps until there is little left to defend at all.
If you find this writing interesting or thought-provoking, please check out The Certainty Trap on Amazon.
This is a terrific piece, Ilana. Thanks for highlighting this particular case, and its un-intended consequences (pun intended). I appreciate how you tie this decision to the issues in identity politics and declining trust in institutions, and Americans’ unwillingness to listen to others - “a system where dissent brings moral condemnation.” I agree with your concern that issues have become moral ones and therefore impede meaningful dialogue. For me, the purity and sanctimony of moral views in politics are the greatest problem in American political culture today. (My latest post is about this in fact: https://raphaelrosen.substack.com/p/the-only-way-out-is-through-each) You're highlighting the Griggs vs. Duke Power case illuminates much of the cultural fissure that divides Americans. Thank you!
You misread Griggs, or perhaps, shorthand it too aggressively. "What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." 'Invidious' means something other than 'intent does not matter,' and the observation that the barriers subject to attack are the 'artificial, arbitrary, and unnecessary' ones highlights that the presumption is not that there was no racism or racist intent. I do not think that Griggs started or ended with the proposition that 'intent does not matter.' Rather, it recognized that intent is very difficult to prove, and that it is easy to craft neutral-appearing policies to effectuate racist aims. Duke Power Co. explicitly denied black people access to several roles throughout the company. Literally on Title VII's effective date, Duke Power Co. swapped out the racially discriminatory hiring and advancement requirements for testing requirements that effectively kept black people out of the same positions they were explicitly prohibited from taking prior to the effective date. The education requirements that made up the basis of this testing were not related to Duke Power Co.'s business aims and the white employees grandfathered in without diplomas under earlier policies showed no record of poor performance qua education. Disparate impact law has future twists and turns, but it definitely started in a place where racialized intent was inferred, just in a way that was novel and needed properly explained in Tit. VII's framework.
I encounter 'intent does not matter' in two different contexts. One is kind of an activist shortening of the larger empirical observation that racist consequences can follow from policies regardless of the original intents of those policies. That is, the true logic of the statement 'intent does not matter' runs in a different direction. It is an admonishment towards vigilance and encouragement to look beyond the traditional measures of what makes a policy 'good.' A policy can look good and justifiable 'on average,' in aggregate data, but when we lift the hood we find that the benefits are concentrated in one group of people (white people) and the disadvantages in another (black people). And this can occur even though before that analysis we may have assumed that every individual stood the same 70% chance of benefit or 30% chance of disadvantage. Knowing that 'intent does not matter' (the policy and its crafters may have been very far removed from explicit racial reasoning!) has helped us uncover and in some instances correct course when we realize the true effects of a neutral-seeming policy. 'Intent does not matter' does not mean (or, does not have to mean...) that the person crafting the policy was inherently racist because the policy churned out racist results, it just means that the racist results exist and are ripe for addressing regardless of racial motives. To me, 'intent does not matter' = the past lack of racial intent should not prevent us from addressing the present racial consequences.
The other context in which I encounter 'intent does not matter' is in the complex discussion of internal workplace grievances. You capture one stereotype of these discussions - that this issue of 'intent does not matter' cascades into a series of difficult to keep pace with code words, and that using the wrong words means your intent does not matter and you can be dismissed as inherently racist. But I recently was in a large, professional roundtable about microagressions and intent with people running legal Bar Associations and developing educational materials for lawyers. In that room, 'intent does not matter' was a way to make it clear to someone that 'that comment still hurt me.' It's very ordinary, in a childish way, when someone points out that you hurt them, to react and say, 'I did not mean it! I did not do anything wrong because I did not mean to do anything wrong!' But I think we learn as we progress through childhood the better answer is, 'I'm sorry, I'll try not to do that again' or 'I'm sorry, but I'm trying to get something done, and next time you might have to [stay out of my way] [respect my space] [&c]' Your intent in wishing me Merry Christmas does not matter because I'm your coworker and colleague and you know I'm Jewish and that being constantly inundated with Merry Christmases makes me feel othered and alone in a holiday season that seems so joyous for everyone else, please respect me.' 'Whatever your intent in wishing me Merry Christmas is, it reflects that you want to treat me as an interchangeable cog with all the assumptions you make about everyone else in the office, instead of respecting me as an individual.'
And I don't know, maybe it can be a little annoying working with people that use therapy-speak all the time, but that's a workplace culture issue that can be addressed in many many ways, without blowing it up into a bright line between left and right with national consequences.
P.S. As a nonbinary person, I know that there are people who look at, judge, and have negative opinions of me. They say mean and crude things to me that walk the line of acceptable and unacceptable. When I tell them to stop, they tell me, 'I did not mean it.' I think there are many people who take 'intent does not matter' to the extreme because it is so frustrating dealing with how effective a shield 'I did not mean it' is honored to be.