Racial classifications carry the largest taint and require the most justification. Strict scrutiny-the level of scrutiny with which the remainder of the article will be concerned-requires that race-based differentiation serve a compelling state interest and be narrowly tailored to serve that interest, guaranteeing that the reason for the differentiation is extremely important and that the link between the means chosen to meet the ends is extremely tight. Though strict scrutiny is difficult to survive, it is triggered only when a state actor engages in intentional or purposeful racial discrimination. Controversy surrounds whether such a trigger is necessary. However, rather than resolve that issue, this short essay argues that the trigger should be augmented with the presumption, common in tort and criminal law, that an actor intends the natural and probable consequences of his actions. The addition of the presumption does not resolve the conflict between the intent requirement and Fourteenth Amendment principles, but would allow the intent trigger to serve a purpose more consistent with the Fourteenth Amendment's grand purpose of fostering equality among citizens than it currently does. Part I of this essay discusses the Amendment's intent requirement. Part II discusses the natural and probable consequences presumption that shapes intent inquiries in tort and criminal law. Part III explains why such a presumption should be applied to the Fourteenth Amendment intent inquiry.
Henry L. Chambers, Jr., Retooling the Intent Requirement under the Fourteenth Amendment, 13 Temp. Pol. & Civ. Rts. L. Rev. 611 (2004).