Publication Date
6-1-2025
Abstract
Despite considerable data demonstrating disparate government treatment of racially minoritized groups, recent race-based equal protection cases have met only measured success because courts often find statistical evidence of racial bias to be too attenuated. Without an explicitly racist statement, policy, or law made by government officials, many courts will not intervene in systems that have long, consistent histories of racially discriminatory impacts. But this contradicts the purpose of the Equal Protection Clause: to prevent people of color—particularly Black people—from being discriminated against and kept in a functional caste system. Courts and scholars have consistently identified this purpose, and throughout equal protection's evolution, the heart of the doctrine has remained the same. Thus, when decades of data demonstrate disparate racial impacts in a system or government practice, we would expect that system to be found to violate the Equal Protection Clause. This should include the protest policing and cash bail systems. Decades of research have consistently found racial discrimination and disparate impacts in both practices. Both systems give government officials significant, largely subjective discretion to determine who is “dangerous,” which allows for invidious discrimination in otherwise neutral policies. Both practices police Black bodies and restrict their rights. Unsurprisingly, both systems have been challenged as equal protection violations. Yet, equal protection claims against both systems have rarely been successful. If the purpose of the Equal Protection Clause is to allow an avenue for redress against racist structures, judicial precedent must allow a framework that can bare teeth to enforce that ideal. But apart from a few limited exceptions, courts have refused to act on the consistent, empirically driven scholarship that concludes people of color are not treated equally. Rather, the current framework allows for discrimination as long as government statements, policies, and laws are facially neutral. In the view of many courts, equal protection does not need to mean equal impact. It seems many courts will only find an equal protection violation if a statute explicitly says, “Mostly Black people will be subject to this law.” In other words, absent an unmistakable “clear intent,” de facto discrimination is effectively constitutional. This Article proposes that a framework shift showing the interrelated nature of particular discriminatory systems would help courts include research on discriminatory practices to evidence an equal protection violation. As an example, this Article explores the intersection between protest policing and cash bail to show a uniquely intertwined connection that can help litigants prove a common thread of discrimination to satisfy the evidentiary requirements of their equal protection claims.
First Page
851
Recommended Citation
Alireza Nourani-Dargiri, Protesting, Cash Bail, and (Un)Equal Protection: Using Empirical Data to Prove Equal Protection Violations, 102 Denv. L. Rev. 851 (Fall 2025).