Facially Neutral Laws Implicating Suspect Classifications

prev | next

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Applying the Equal Protection Clause of the Fourteenth Amendment, the Court ordinarily upholds classifications in law or government policy so long as they are supported by a rational basis. However, the Court will apply strict scrutiny to an express racial classification and will often invalidate it; similarly, it will more closely scrutinize an express classification based on sex, alienage, or whether a person was born out of wedlock.1 In reviewing a neutral classification that is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis, the Court will apply heightened scrutiny and, often, invalidate the provision containing the classification.2 But a neutral law that has a disproportionately adverse effect upon a racial group or upon another group entitled to heightened protection under the Equal Protection Clause presents a much more difficult case.

In Washington v. Davis, the Court held that someone claiming harm from the disparate or disproportionate racial impact of a race-neutral law or policy must prove the government’s intent to discriminate.3 A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under only the lenient rationality standard.4 Before Davis, lower courts had relied on a prior Supreme Court decision suggesting the racially disparate effects of government conduct alone could support a constitutional claim.5 Further, the Court had upheld similar claims under certain civil rights statutes without requiring plaintiffs to prove a discriminatory purpose.6 Accordingly, the lower federal courts developed a constitutional “disproportionate impact” framework within which government conduct lacking a substantial justification violated equal protection when it resulted in adverse, disparate impacts on racial minorities.7 Davis rejected the approach of these cases, but the Court noted that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” 8

The Court has since clarified how courts might identify a discriminatory intent behind a facially neutral law. Looking to a challenged local zoning decision that had a greater adverse impact on black and low-income residents than on others, the Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. explained in some detail how a court could inquire into a defendant’s motivation.9 First, a plaintiff is not required to prove that discrimination was the only motive; establishing “a discriminatory purpose” among other, permissible purposes shifts the burden to the defendant to show that it would have made the same decision without the impermissible motive.10 Second, determining whether discrimination was a motivating factor “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 11 A disparate impact provides a starting point, and “[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face,” but the Court anticipated such cases would be “rare.” 12 In the absence of a stark pattern, a court should look to such factors as the “historical background of the decision,” especially if there is a series of official discriminatory actions.13 “The specific sequence of events” may shed light on purpose, as would “departures from the normal procedural sequence” or from the usual substantive considerations.14 A court may evaluate decisionmakers’ statements, and “[i]n some extraordinary instances the members [of the decisionmaking body] might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.” 15 Usually, a court will look to all the circumstances to ascertain intent.

The Court has held that a law that directly and foreseeably perpetuates the effects of past discrimination can be facially neutral, and that these effects may not alone establish the requisite discriminatory intent. In Massachusetts Personnel Administrator v. Feeney, the Court considered a state law requiring that veteran job applicants who passed a civil service examination be ranked ahead of all non-veterans, even those with higher test scores.16 The lower court observed that as a result of the armed forces’ historical exclusion of women, the preference excluded virtually all women from state civil service positions. The lower court held that this result was easily predictable, and so might be intentional.17 Reversing, the Supreme Court found the veteran preference law neither overtly nor covertly gender-based. According to the Court, too many men were non-veterans to permit such a conclusion and some women were veterans.18 That the preference implicitly incorporated past official discrimination against women, the Court held, did not undermine the state’s legitimate public purpose of rewarding veterans for their service.19 Nor did the foreseeability of the preference’s consequences establish the requisite showing of intent. The Court stated: “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” 20 Applying this reasoning in other cases, the Court has held that the repeal of antidiscrimination measures alone does not violate equal protection.21

Since Arlington Heights and Feeney, the Court has taken various approaches to determining intent from showings of disparate racial impacts and other circumstantial evidence. For example, in City of Mobile v. Bolden, the Court considered the constitutionality of the use of a multi-member electoral district in Alabama that diluted the voting strength of Black voters. 22 Rather than consider the totality of circumstances, the plurality evaluated separately such factors as election of minority candidates, discrimination by elected leaders, and a local history or official racial discrimination, holding that none proved a constitutional violation.23 The Court in Rogers v. Lodge, in contrast, considered similar factors in a totality-of-the-circumstances analysis and upheld a lower court ruling that a multi-member electoral district in Georgia was being maintained for a racially discriminatory purpose.24 The Lodge Court did not require direct proof of intent, stating: “[A]n invidious purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” 25 The Court also emphasized that “laws and practices which, though neutral on their face, serve to maintain the status quo” that had been created by intentional discrimination, were “relevant to drawing an inference of purposeful discrimination.” 26 The fact that no black person had ever been elected in the majority-black county, the Court concluded, was “important evidence of purposeful exclusion.” 27 Together with a showing of past discrimination, of systemic exclusion of black citizens from the political process, of educational segregation and discrimination, and of elected officials’ unresponsiveness to the needs of the black community, this evidence indicated the presence of discriminatory motivation. The Court also looked to the “depressed socio-economic status” of the black population as being both a result of past discrimination and a barrier to black citizens’ access to voting power.28 The Court determined that the question of discriminatory intent was one of fact, not law, and therefore reviewed and affirmed the district court’s finding of discriminatory intent under the deferential “clearly erroneous” standard.29

Context matters in cases examining racially disparate impacts. In a grand jury selection case, the Court, in Castenada v. Partida (in a five–four decision) seemingly departed from Davis and Arlington Heights’s refusal to find constitutional violations based on disparate impacts alone.30 Noting that disproportionate impacts did not themselves prove an equal protection claim, the Court nonetheless held that a plaintiff who showed a significant racial discrepancy between the proportion of the county’s population with Spanish surnames and the proportion of recently selected jurors with Spanish surnames established a prima facie case of discrimination, shifting the burden to the defendant to show that racially neutral criteria were used.31 Several factors probably account for the seeming difference in the Court’s rulings. First, the Court has long recognized that discrimination in jury selection can be inferred more easily from disproportionate outcomes than can other forms of discrimination.32 As the Court pointed out in another jury case, “it taxes our credulity to say that mere chance resulted in” marked underrepresentation, and “[t]he result bespeaks discrimination.” 33 Second, the jury selection processes are often “highly subjective” and thus easily manipulated for discriminatory purposes, unlike the processes in Davis and Arlington Heights, which were regularized and open to inspection.34 Thus, in jury cases disparate impacts may suffice to shift the burden to defendants to show a lack of discriminatory intent while in other contexts, at least where the challenged state procedures are open and facially objective, it is the plaintiffs who must show animus.

In a more recent case, Department of Homeland Security v. Regents of the University of California, a four-justice plurality rejected an equal protection challenge premised on disparate impact.35 Like the jury selection cases, in this case the particular context, here immigration, likely played a role. Litigants challenged the Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.36 The DACA program offered “immigration relief” in the form of “favorable treatment” for certain people who arrived in the United States as children.37 The plaintiffs argued that the rescission decision violated equal protection guarantees because it was motivated by impermissible animus, “evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission,” which included shifting positions about whether to continue the program; “and (3) pre- and post-election statements by President Trump” that were critical of Latinos.38 In considering the first factor, the plurality found that this disparate impact was “expected” based on the fact that “Latinos make up a large share of the unauthorized alien population.” 39 On the second factor, the plurality said the Administration’s “decision to reevaluate DACA . . . was a natural response” to new concerns about the program’s legality.40 And finally, the plurality concluded that the President’s statements, “remote in time and made in unrelated contexts,” were not probative of other executive officials’ decision to rescind the program.41

1: These levels of scrutiny are discussed in other essays. For assessments of racial classifications, see Amdt14.S1.8.1.1 Overview of Race-Based Classifications. For gender, see Amdt14.S1.8.8.3 General Approach to Gender Classifications. For alienage and for nonmarital birth, see Amdt14.S1.8.7.3 Out of Wedlock Births.
2: See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960). A law may be unconstitutional even if it does not facially discriminate on the basis of race, if it “uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470 (1982).
3: Washington v. Davis, 426 U.S. 229, 242 (1976) ( “[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is [not] invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” ). Davis was decided under the Fifth Amendment’s Due Process Clause, which the Court has interpreted to incorporate equal protection principles. Bolling v. Sharpe, 347 U.S. 497 (1954).
4: See Davis, 426 U.S. at 247–48; Rogers v. Lodge, 458 U.S. 613, 617 n.5 (1982). The Court has applied the same standard to a claim of selective prosecution allegedly penalizing exercise of First Amendment rights. Wayte v. United States, 470 U.S. 598 (1985) (holding no discriminatory purpose shown); see also Bazemore v. Friday, 478 U.S. 385 (1986) (holding existence of de facto, single-race, state-sponsored 4-H Clubs is permissible, given membership was voluntary and open to all regardless of race).
5: The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which a five-to-four majority refused to order a city to reopen its swimming pools closed allegedly to avoid desegregation orders. See also Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). The Davis Court read Palmer to hold that there was no discrimination, because the pools were closed to black and white residents alike, and that the city’s avowed reasons—to avoid violence and economic loss— “were not open to impeachment by evidence that the councilmen were actually motivated by racial consideration.” Davis, 426 U.S. at 242–43.
6: Griggs v. Duke Power Co., 401 U.S. 424 (1971) (interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (same); see also Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015). But see Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (holding discriminatory intent required for claims under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866). The Davis Court affirmed Griggs’ reading of Title VII but declined to import the statutory standard for discrimination into the Constitutional standard. 426 U.S. at 238–39, 246–48 (1976). But see Gen. Bldg. Contractors Ass’n, 458 U.S. (holding that, unlike Title VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required).
7: See Davis, 426 U.S. at 244 n.12 (listing and disapproving cases). Cases that the Court did not cite include those in which the Fifth Circuit wrestled with the distinction between de facto and de jure school segregation. In Cisneros v. Corpus Christi Indep. Sch. Dist., the circuit court held that motive and purpose were irrelevant and that the “de facto and de jure nomenclature” were “meaningless.” 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc). After the Supreme Court reiterated the distinction between de facto and de jure school segregation in Keyes v. Denver Sch. Dist., 413 U.S. 189 (1973), the Fifth Circuit adopted the position that a decisionmaker must be presumed to have intended the probable, natural, or foreseeable consequences of his decision and therefore that a school board decision that results in segregation is intentional in the constitutional sense, regardless of its motivation. United States v. Tex. Educ. Agency, 532 F.2d 380 (5th Cir. 1976), vacated by Austin Indep. Sch. Dist. v. United States, 429 U.S. 990 (1976), cert. denied 443 U.S. 915 (1979); see also United States v. Tex. Educ. Agency, 600 F.2d 518 (5th Cir. 1979). The Court substantially constrained this form of analysis, however, in Mass. Pers. Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), it acknowledged that the foreseeability of racially disparate impacts remained evidence of proof of intent in Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979).
8: Davis, 426 U.S. at 242.
9: 429 U.S. 252 (1977), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified as amended in 52 U.S.C.S. § 10301), as recognized in Chapman v. Nicholson, 579 F. Supp. 1504, 1514 (N.D. Ala. 1984).
10: Id. at 265–66, 270 n.21; see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284–87 (1977), superseded by statute, Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 30, as recognized in Rivera v. United States, 924 F.2d 948, 954 n.7 (indicating that once plaintiff shows defendant acted from impermissible motive in not rehiring him, burden shifts to defendant to show result would have been same in the absence of that motive; constitutional violation not established merely by showing of wrongful motive).
11: Arlington Heights, 429 U.S. at 266.
12: Id.
13: Id. at 267.
14: Id.
15: Id. at 267–68.
16: 442 U.S. 256, 259–61 (1979). This case clearly established the application of Davis and Arlington Heights to all nonracial classifications attacked under the Equal Protection Clause.
17: Arlington Heights, 429 U.S. at 260–61 (citing Feeney v. Massachusetts, 451 F. Supp. 143, 149-150 (D. Mass. 1978), rev’d Mass. Pers. Adm’r, 442 U.S.).
18: Mass. Pers. Adm’r, 442 U.S. at 275.
19: Id. at 265, 275.
20: Id. at 279. But compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 461 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979), which found discriminatory intent established by a showing of past discrimination coupled with foreseeable impact in the school segregation area. See also Hunter v. Underwood, 471 U.S. 222, 231–32 (1985) (holding the circumstances of enactment made it clear that state constitutional amendment requiring disenfranchisement for crimes involving moral turpitude had been adopted for purpose of racial discrimination, even though it was realized that some poor white people would also be disenfranchised thereby).
21: Brinkman, 433 U.S. at 414 (holding repudiation of an earlier desegregation resolution did not violate the Fourteenth Amendment); Hunter v. Erickson, 393 U.S. 385, 390 n.5 (1969) (approving “mere repeal” of existing antidiscrimination measures); Crawford v. Bd. of Educ. of City of Los Angeles, 458 U.S. 527, 538–39 (1982) (upholding ban on state court busing orders except as a remedy for unconstitutional segregation); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 485–86 (1982) (holding ban on busing for desegregation unconstitutional); see also Amdt14.S1.8.1.7 Political Process Doctrine.
22: 446 U.S. 55 (1980), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified as amended in 52 U.S.C.S. § 10301), as recognized in Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2332 (2021). The plurality also concluded that a discriminatory purpose is needed to establish a violation of the Fifteenth Amendment or a violation of the Equal Protection Clause’s protections against restrictions of a “fundamental” right, not just its protection against racial classifications. Bolden, 446 U.S. at 62–63, 66, 75.
23: Id. at 65–74 (plurality op.). After Mobile, Congress passed the Voting Rights Act Amendments of 1982, proscribing election practices “which result[] in a denial or abridgment of the right . . . to vote on account of race or color,” and spelling out a “totality of circumstances” test. See id.; S. Rep. No. 417, 97th Cong., 2d Sess. 27–28 (1982).
24: 458 U.S. 613, 622–27 (1982). The Lodge Court affirmed that determining discriminatory intent required an analysis of “such circumstantial and direct evidence” as was available. Id. at 618 (quoting Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
25: Lodge, 458 U.S. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)).
26: Lodge, 458 U.S. at 625.
27: Id. at 623–24.
28: Id. at 624–27. The Court also noted the existence of other factors showing the tendency of the system to minimize the voting strength of black citizens, including the large size of the jurisdiction, which made it difficult for Black people to vote or campaign; the maintenance of majority vote and single-seat requirements, which allowed the majority to consistently overrule the minority and “prevent[ed] a cohesive political group from concentrating on a single candidate” ; and the absence of residency requirements, allowing all candidates to come from White neighborhoods. Id. at 627.
29: Id. at 623, 627.
30: Castaneda v. Partida, 430 U.S. 482 (1977).
31: Id. at 486–95.
32: Id. at 493–94. The Court so stated in Washington v. Davis, 426 U.S. 229, 241 (1976), and Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 n.13 (1977).
33: Hernandez v. Texas, 347 U.S. 475, 482 (1954); see also Batson v. Kentucky, 476 U.S. 79, 95 (1986) ( “[T]he Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse.” ). Most of the Court’s jurisprudence adjudicates intentional discrimination through individual peremptory challenges, rather than an inference of discrimination due to underrepresentation. See Amdt14.S1.8.1.8 Peremptory Challenges.
34: Castaneda, 430 U.S. at 494, 497–99. In McCleskey v. Kemp, 481 U.S. 279, 352–53 (1987), the Court stated that a challenge of racial discrimination in jury selection should include a showing that “the allegedly discriminatory procedure is susceptible to abuse or is not racially neutral.”
35: 140 S. Ct. 1891 (2020) (plurality op.).
36: Id. at 1915. A majority of the Court held that the Department’s decision to rescind DACA was “arbitrary and capricious” under the Administrative Procedure Act and remanded the case so the Department could “consider the problem anew.” Id. at 1914, 1916 (majority op.). Four Justices who dissented from this aspect of the Court’s decision concurred in the judgment rejecting the equal protection claim. Id. at 1919 (Thomas, J., concurring in the judgment in part and dissenting in part); id. at 1935–36 (Kavanaugh, J., concurring in the judgment in part and dissenting in part).
37: Id. at 1901 (majority op.).
38: Id. at 1915 (plurality op.).
39: Id. at 1915–16.
40: Id. at 1916.
41: Id.