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Constitutional Law II
Villanova University School of Law
Lanctot, Catherine J.

Equal Protection

Rational Basis Review; Racial Classifications


The 14th Amendment Equal Protection Clause: “No state shall deny to any person the equal protection of the law.”
Tiers of Review:

i. Strict Scrutiny: Reserved for particular types of classifications such as race or national origin.
ii. Intermediate Scrutiny
iii. Rational Basis: Lowest level.

Policy: People should be treated similarly unless the state has a legitimate basis for differentiation.

Rational Basis Generally

Rational Basis Test: The state must be pursuing a legitimate state purpose and the means employed by the state must be rationally related to that purpose.
Argument Against: To combat a law, it must be argued that the state objective is:

i. Overinclusive (too broad)
ii. Underinclusive (too narrow)
iii. If either of these is shown, then the statue violates the equal protection clause and is unconstitutional.

Traditional Equal Protection – Railway Express Agency v. NY: NYC traffic regulation bans the placing of advertising on vehicles, except that the owner of a vehicle may advertise his own products. The purpose of the regulation is to reduce traffic hazards. The act is challenged on the theory that a vehicle carrying advertising for the vehicle’s owner is no less distracting than a vehicle carrying advertisers for others. Also, the challenger has pointed out that other visual displays (such as “vivid displays on Times Square”).

Held: The regulation is not a violation of equal protection, “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”
Concurrence: The concurrence contends that the holding of the court allows legislatures to choose only a few situations where they will apply legislation versus others. The concurrence was based on the rationale that advertising for ones own business is significantly different than advertising for another.
Note: When considering the legitimate objective prong, the court will look to the text to see if one is stated, but if no such objective is stated the court will sometimes look to see if one can be inferred.

The Discrimination Spectrum – Section Roadmap:

i. Facial Discrimination: Korematsu, Loving. Affirmative Action fits here, this receives strict scrutiny. Today it is rare to see facial discrimination based on race.
ii. Neutral Law: Washington v. Davis, Arlington Heights. Laws challenged due to disproportionate impact. Strict Scrutiny upon showing of discriminatory intent.
1. Discriminatory Application: Yick Wo. Strict scrutiny upon showing that statute is applied in discriminatory fashion.
2. Adopted in spite of, not because of, disproportionate impact: Feeney.

Racial Classifications: Race is a suspect class and subjected to strict scrutiny. As a matter of general logic, race is very improbably related to a legitimate government objective.

Korematsu v. US: Internment camp case. The P’s argued that the policy was overinclusive because it lumped loyal Japanese citizens with disloyal ones and argued that it was under inclusive because it did not include German’s and Italians. Strict scrutiny was applied here.

i. Strict Scrutiny Test: A statute must be created to effectuate:
1. A compelling state interest and;
2. the statute must be narrowly tailored.
ii. Held: The order was upheld in this widely criticized case.

Loving v. VA: A VA statute prohibits marriage between a white and a non-white. The state rebuts an equal protection attack by contending that the statute applies equally to whites and blacks, since members of each race are punished to the same degree. Strict Scrutiny was applied here.

i. Held: The statute was found to violate equal protection. The statute contains a racial classification, and the fact that it has “equal application” does not immunize does not immunize it from strict scrutiny. Since the legislative history shows that the statute was enacted to “preserve the racial integrity” of citizens (i.e. whites), the statute has only an invidious (intent to harm a particular race), discriminatory, purpose and has no “legitimate overriding” one.

Discriminatory Application – Yick Wo v. Hopkins: A state ordinance required a permit to operate a laundry business. While the statute itself is neutral, the application of the statute is anything but as only 1 of 200 Chinese applicants are not granted laundry permits.

Held: The neutral test of the statute is enforced with and “evil eye and an unequal hand.” This is always an argument to look for in an equal protection claim.
Three Ways to Show Purpose: Purposeful discrimination may appear in any of three ways;

i. (1) The law discriminates on its face
ii. (2) The law is administered in a discriminatory way, although facially neutral
iii. (3) The law, although facially neutral and applied in accordance with its terms, was enacted with a purpose of discriminating, as shown by the law’s legislative history, statements made by legislators, the law’s disparate impact, or other circumstantial evidence of intent.

Suspect Classifications – Race

Neutral Laws Challenged Due to Disproportionate Impact

Washington v. Davis: Civil service exam failed by blacks at a 4:1 ratio compared to whites, P’s argue that the administration of the exam discriminates against blacks.

i. Held: Disproportionate impact alone cannot be sufficient in an equal protection claim to trigger strict scrutiny. The P must prove intent to discriminate in order to review under strict scrutiny, otherwise rational basis review. Otherwise, a showing or racial impact by itself is never enough to prove discriminatory intent. The Court was concerned with potential the invalidation of other government functions.

Arlington Heights v. Metropolitan Housing Development Corp.: A land developer sought a zoning change from single family to multi-family, when denied, P brought suit alleging racial discrimination.

i. Held: Although a discriminatory purpose is required for invocation of strict scrutiny, such a purpose need not be the sole purpose of the statute. It is enough that the purpose was a “motivating factor” in the legislature’s decision to enact the statute.

Statutes Found Constitutional in Spite of Disproportionate Impact – Feeney: Veterans were given a lifetime preference on civil service jobs in MA, and 98% of veterans are men. A woman argued that the statute must have been adopted to advance men and disadvantage women. The State argued that the statute was adopted in spite of its discriminatory result, not because of it.

i. Held: The government knew that there may be some harm, but where a statute is adopted in spite of a discriminatory result it is valid.

Practical Methods of Dealing with an Equal Protection Claim

If Trying to Overturn Government Action: You want strict scrutiny review, gives the least deference to the government.
Dealing with a Neutral Statute: The government will always seek rational basis rev

ing of attendance zones is a permissible technique for remedying desegregation. New zones need not be compact or contiguous.
v. Busing: “Desegregation cannot be limited to the walk in school.” Busing was approved by the Court.
vi. Later Unintentional Imbalances Allowed: Swann establishes that once the effects of official segregation have been even temporarily remedied, later imbalances caused by changing residential patterns or other non-official conduct may not be cured by a federal court.

Affirmative Action

Generally: Strict scrutiny applies to affirmative action statutes. The Bakke court struck down a quota system through strict scrutiny. It was held that a quota cannot pass strict scrutiny because it is not narrowly tailored. The Court says that systems falling short of a quota system may pass strict scrutiny if applied.
City of Richmond v. J.A. Croson Co.: A Richmond statute required that 30% of city contracts be awarded to minority owned businesses in order to make up for past discrimination and build minority businesses for the future. The Court analyzed under strict scrutiny and the statute ultimately fell;

i. Level of Scrutiny: This is the most notable aspect of this case, all affirmative action claims are analyzed under strict scrutiny for schemes imposed by state and local governments. Beneficial and benign statutes based on race are subjected to strict scrutiny. This decision was based upon the argument that you can’t tell which racial classifications are truly benign and which are illegitimate. Additionally, the Court spoke of stigmatic harm to minorities.
ii. Compelling Interest: Did not exist. Compelling state interest must be shown with sufficient evidence of actual discrimination (in the case of a city “passive participation” suffices).
iii. Narrow Tailoring: Not narrowly tailored. Overbroad, the proposed statute included Eskimos (whom there is no evidence of discrimination or even a presence of in Richmond). Race neutral alternative must be considered first (i.e. economic factors). Additionally, there was no indication that the 30% figure proposed by the city counsel really spoke to any alleged problems.
iv. Marshall Dissent: Majority acts as if racism is a thing of the past. Just because blacks in Richmond have become politically powerful was no reason to apply strict scrutiny to prevent them from remedying past wrongs.

Adarand Constructors v. Pena: Strict scrutiny must be applied to race-based affirmative action schemes imposed by Congress, just as it applied to those imposed by state and local governments.

Affirmative Action and Education

Post-Graduate Education – Grutter v. Bollinger: Educational Affirmative Action survives strict scrutiny review because there is a compelling interest (diversity in the classroom – great deference is given to schools and their mission statements)