Introduction [247-249]

 

The Equal Protection Clause of the Fourteenth Amendment was designed to impose upon the states a duty to prohibit legislative classifications and administrative behavior that discriminated against particular groups in the distribution of certain fundamental rights. Drawing on United States v. Carolene Products, 304 U.S. 144 (1938), the suspect class strand of equal protection jurisprudence prohibits government discrimination against groups of people based on race, national origin, gender, alienage, illegitimacy and certain other criteria. The fundamental rights strand of equal protection jurisprudence prohibits discrimination with respect to certain fundamental rights–primarily voting, travel, and access to the judicial process. The impetus that shaped equal protection analysis was discrimination based on race, more specifically the legacy of constitutionalized slavery.

 

§8.01   Segregation in Public Facilities [249-262]

 

            [1]  The Rise and Fall of “Separate but Equal”

 

In the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), the Court rejected the apartheid system that Plessy sanctioned by striking down the doctrine of “separate but equal.”

 

            [2]  Enforcing Brown: The Fashioning of Judicial Relief

 

The prohibitory injunctions necessary to dismantle much of the discriminatory system still in effect after Brown, such as separate water fountains, bathrooms, and bus seating, were relatively straightforward remedies. However, the mandatory injunctions necessary to desegregate public schools are remedies that have remained more controversial and more difficult to effectuate. The Court stated that school authorities must make a prompt and reasonable start. Once such a start was made, the defendant school boards had the burden of establishing the necessity of additional time. In subsequent cases, the Court started to define the types of remedies that would satisfy Brown.

            In 1971, the Court handed down the watershed school desegregation remedy case of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). The Court suggested gerrymandering or clustering of attendance zones as one remedy for correcting past discriminations. Clustering attendance zones of primarily white areas and primarily black areas of the school district often necessitated busing. The Court acknowledged the desirability of neighborhood schools and viewed busing as an interim measure necessary to correct past discrimination. The Court also acknowledged the negative impact of the costs of busing on the educational process and sought to minimize those costs.

 

Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973), Columbus Board of Education v. Penick, 443 U.S. 449 (1979), and Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979), facilitated a plaintiff’s making out a prima facie case of intentional discrimination. The geographic presumption of Keyes allowed a finding of system-wide discrimination from a finding of intentional discrimination in a small segment of a school district. Columbus and Dayton imposed a temporal presumption upon school boards that generated the duty to eradicate the effects of any pre-Brown intentional discrimination that existed in 1954. Basically, these presumptions eroded the intentional discrimination requirement in school desegregation cases. However, the Court did not similarly relax this requirement in other areas, such as employment or housing.

 

            [3]  Limiting the Remedies

 

In 1974, the Supreme Court first began to limit remedies for intentional segregation. In Milliken v. Bradley, 418 U.S. 717 (1974), the Court refused to allow an interdistrict remedy when the lower court found only the city district of Detroit to have intentionally discriminated. The Court allowed interdistrict remedies only where evidence existed of some conspiratorial action among the districts.

 

While Milliken placed a geographic limit on school desegregation remedies, Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976), imposed temporal limits on desegregation orders. In Spangler, the Supreme Court held that once a court implemented a racially neutral attendance plan, it could not modify its order to accommodate changes in the school population that were caused by population shifts rather than the segregative actions of school officials.

 

In Freeman v. Pitts, 503 U.S. 467 (1992), the Court stated that the judiciary should return the supervision of school districts to local school boards as early as possible. The equitable powers of a federal district court ended once a dual system had become unitary. Missouri v. Jenkins (Jenkins II), 515 U.S. 70 (1995), stated that the appropriate inquiry into the district court’s remedies must evaluate whether they helped to restore the victims of segregation to the position they would have occupied had such segregation not occurred.

 

§8.02   Other Forms of Racial Discrimination [262-285]

 

            [1]  General Principles: Purposeful Discrimination and Suspect Classes

 

The school desegregation cases illustrate that an Equal Protection Clause violation requires a finding of discriminatory intent. Even though these cases lightened the burden of proving discriminatory intent, simply proving discriminatory effect or impact was not sufficient. The Court had imposed a much tougher discriminatory intent requirement to prove discrimination in such areas as employment, housing, zoning, and voting–where laws, neutral on their face, have a demonstrably uneven impact on different racial groups.

 

The “suspect class” concept has become an integral part of the equal protection analysis and was a key component of the “two-tiered” standard of equal protection developed by the Supreme Court under Chief Justice Warren. Under this standard, laws that affected “fundamental interests” or “suspect classes” were upheld only if necessary to promote a compelling state interest. In contrast, other laws were sustained if they bore only a reasonable relationship to a legitimate state end. The Warren Court applied the suspect classification strand of two-tiered analysis to government action that discriminated against racial and ethnic minorities. The Court’s more recent affirmative action jurisprudence has extended strict scrutiny to all laws that discriminate based on race even if the disadvantaged group is white. In the area of university admissions, the Court has allowed affirmative action to achieve a “critical mass” of under represented minority groups. Moreover, the Court’s two-tiered equal protection jurisprudence has evolved into a multi-tiered approach with, for example, middle-tiered scrutiny used for discrimination based on gender and illegitimacy. Indeed, even the middle-tier of equal protection is fraying, as the middle-tier standard in gender cases may be more strict than that in illegitimacy cases. A separate standard of heightened rationality is being used for laws that discriminate based on mental retardation.

 

Nevertheless, as a rationale for increased equal protection scrutiny in certain areas, the concept of suspect classes has remained influential. One way to justify a stricter standard of judicial review for suspect classification stems from Justice Stone’s famous Carolene Products footnote four. 304 U.S. 144, 153 (1938). In that footnote, Justice Stone spoke of statutes directed at certain religious groups, nationalities, and racial minorities that comprised “discrete and insular minorities.” Laws necessarily involve line-drawing, but lines adversely affecting discrete and insular minorities required a more searching judicial scrutiny, since these are groups who have historically been unable to protect themselves using the political process. Justice Stone’s formulation had considerable influence when the courts were faced with claims that aliens, women, and illegitimates, among others, were “suspect classes” entitled to the heightened review that the categorization requires. Discrimination based on race, national origin, and alienage received strict scrutiny, while discrimination based on gender and illegitimacy receive middle-tier scrutiny.

 

Demonstrating its hostility to racial classification, the Court has invalidated laws that were racially neutral on their face but challenged as being discriminatory in their administration. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court expressly made the point that facially neutral laws nevertheless violated the Equal Protection Clause if they were administered in a racially discriminatory manner. In that case, the Court struck down a law regulating laundries because it was applied and administered so as to disadvantage only Chinese laundry owners.

 

            [2]  Racial Discrimination in Employment

 

Washington v. Davis, 426 U.S. 229 (1976), was perhaps the key case enshrining this requirement in equal protection jurisprudence. In Davis, the Supreme Court upheld against an equal protection challenge a qualifying test for candidates for police officers.

 

            [3]  Housing and Zoning

 

Under Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), a plaintiff need only show that discrimination was a motivating factor in the decision, not the sole or even the dominant or primary factor. Impact was seldom sufficient, standing alone, to establish discriminatory intent, but disparate impact was an important starting point.

 

            [4]  Voting

 

Early voting rights cases attempted to eliminate racially gerrymandered districts that were drawn to dilute or eliminate the voting strength of black persons. Black neighborhoods were broken into strangely shaped districts to insure a white majority in each of the districts, effectively preventing the election of black candidates. In Shaw v. Reno, 509 U.S. 630 (1993), the Court applied the principles of Gomillion v. Lightfoot, 364 U.S. 339 (1960), to invalidate a racially-based gerrymander designed to foster the election of black candidates. The Court held that irrational reapportionment schemes, which were inexplicable on grounds other than race, had to be narrowly tailored to serve a compelling state interest. Although it remanded the case for further consideration, the Shaw Court did suggest certain race-based districting that may pass strict scrutiny.

In Hunt v. Cromartie II, 532 U.S. 234 (2001), the Court held clearly erroneous the finding of the three-judge District Court that race was a predominant factor in the districting plan for North Carolina’s Congressional District 12. Writing for the majority, Justice Breyer noted that courts should use “‘extraordinary caution’” [id. at 242] examining claims alleging that a State has used race to draw a district’s boundaries, particularly when the State’s districting plan is justified by a “legitimate political explanation” [id.] and the voting population is “one in which race and political affiliation are highly correlated.” Id. Because race and political affiliation were closely connected in North Carolina, a plaintiff must first show “that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles.” Id. at 258. Second, a plaintiff must establish that those alternatives would have created “greater racial balance.” Id.

 

 

            [5]  The Criminal Justice System

 

In Batson v. Kentucky, 476 U.S. 79 (1986), a black defendant challenged the prosecutor’s use of all of his peremptory challenges to strike every black person from the jury. The Court held that race-based peremptory challenges violated the Equal Protection Clause. They not only harmed the defendant, but also undermined public confidence in the criminal justice system. To establish a prima facie case of racially discriminatory use of peremptories: 1) “The defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 96. 2) The defendant can assume that peremptory challenges allow persons to discriminate who wish to discriminate. 3) The defendant must establish using these facts and any other relevant facts an inference of race-based exclusion from the jury.

 

Once the defendant makes a prima facie showing, the burden shifts to the state to give a racially neutral explanation for challenging black jurors. This showing need not rise to the level justifying exercise of a challenge for cause. The prosecutor, however, cannot satisfy her burden merely by stating that she struck jurors of the defendant’s race based on the assumption that the jurors would be biased in favor of the defendant because of their shared race.

 

McCleskey v. Kemp, 481 U.S. 279 (1987), the Court rejected a claim that Georgia administered its capital sentencing process in a racially discriminatory manner. A study alleged that defendants who murdered whites were much more likely to receive the death sentence than those who murdered blacks. The Court states that McCleskey’s equal protection challenge would succeed only if he proved that the decision-makers in his particular case acted with discriminatory purpose in sentencing.