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The Neuroscience of the Intent Doctrine

How the Doctrine Facilitates the Brain’s Bias

By Kimberly Papillon

New developments in neuroscience are finding evidence of the power and impact of “implicit bias,” a form of discrimination that is unconscious but no less real. These results are at odds with the intent doctrine—the requirement established in Washington v. Davis that plaintiffs, to obtain relief, must prove that a discriminatory action was intentional and that showing that a policy has a disparate impact on people of color is not sufficient. Advocates are finding that neuroscience is offering new tools in challenging the intent doctrine.

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