Equal Protection of the Laws (Update 1)

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Two questions have dominated the Supreme Court's equal protection opinions since 1985. The first, largely a matter of rhetoric, is the question of the appropriate standard of review. The second and more important question is the relevance of racial groups in determining the existence of discrimination and in providing legislative or judicial remedies for the harms of discrimination.

The uninitiated reader of the Court's opinions surely would think the process of decision in an equal protection case begins with a selection of the appropriate standard of judicial review from among three well-worn formulas: (1) strict scrutiny, which requires the government to offer compelling justification for an inequality it has imposed, and so generally results in the invalidation of governmental action; (2) rational basis, in which the Court pays strong deference to the government's assertions of justification and generally upholds the governmental action; or (3) the "intermediate," "heightened" scrutiny that falls between these two polar extremes, requiring "important" justification. Then, the same reader might imagine, the Court measures the government's asserted justifications against the proper standard of review, and on that basis reaches judgment.

More skeptical readers know that the order of the decisional process is often quite the reverse, with a judgment on the merits of the case preceding—even dictating—the selection of a standard of review as an opinion's rhetorical structure. The skeptics know, too, how misleading it is to speak of "the" standard of review, given the Court's occasional willingness to require significant justification in the name of "rational basis" review. Justice thurgood marshall has long (and accurately) insisted that the Court's decisions add up to a sliding scale in which the standard of review varies according to the importance of the interests at stake. Justice john paul stevens made a similar point when he said, "There is only one equal protection clause." In equal protection cases, as in other cases, the Court decides by weighing interests.

The Court's post-1985 equal protection decisions are illustrative. A 6–3 majority of the Justices used the traditional, highly deferential, "rational basis" standard to uphold two acts of Congress governing eligibility for welfare benefits and food stamps in Lyng v. Castillo (1986) and Lyng v. Automobile, Aerospace and Agricultural Implement Workers (1988). Similarly, in Kadrmas v. Dickinson Public Schools (1988), the Court upheld, 5–4, a state law authorizing some school districts to impose on unwilling parents user fees for school-bus transportation. The majority specifically rejected the argument of two dissenting Justices that plyler v. doe (1982) demanded heightened judicial scrutiny for wealth classifications governing access to public education. Plyler 's opinion had been written in the language of "rational basis" review, but no one among the Justices or the Court's commentators had been deceived into believing that the Court was being deferential to the legislature's judgment. In fact, the Court in Kadrmas explicitly called Plyler a case of heightened scrutiny. The post-1985 decisions may be less than satisfying, but they are conventional applications of existing doctrine.

The dissenters' invocation of Plyler v. Doe reminds one, however, that Justices can make "rational basis" into the equivalent of heightened scrutiny when they are so inclined. Two recent cases evoked such responses. attorney general of new york v. sotolopez (1986) was a challenge to a state law that gave veterans of the armed forces a preference in civil-service hiring, but only if the veterans were New York residents when they entered the forces. A four-Justice plurality concluded that the law failed to pass the heightened scrutiny demanded by the right to travel. Two other Justices rejected both the "right to travel" argument and the conclusion that heightened scrutiny was appropriate; nonetheless, they concluded that the law lacked a rational basis and so violated the equal protection clause. Plainly, this is not a classical "rational basis" decision, any more than was Plyler v. Doe.

In cleburne v. cleburne living center (1985) the Justices were unanimous in holding unconstitutional a Texas town's refusal to grant a zoning variance to allow the operation of a group home for mentally retarded persons. The court of appeals had concluded that an official classification based on mental retardation required justification at the level of "intermediate" scrutiny, but a majority of the Supreme Court disagreed. Vigorously arguing that the proper standard was "rational basis," the majority proceeded to a meticulous examination of the justifications offered by the town, rejecting each one as insufficient. As Justice Marshall, concurring, pointed out, Cleburne has taken its place alongside Plyler as a leading modern example of the sliding scale of standards of review in action.

In at least two kinds of cases, the "rational basis" standard, initially given "bite" in the fashion of Plyler and Cleburne, has been transformed into candid recognition of a more rigorous judicial scrutiny of governmental justifications. The law of sex discrimination moved from the "rational basis" explanation of Reed v. Reed (1971) to the explicit "intermediate" scrutiny of craig v. boren (1976). A similar rhetorical change is visible in the law governing classifications based on the legal status of illegitimacy. First came the "rational basis" language of levy v. louisiana (1968); eventually, the open adoption of "intermediate" scrutiny in Clark v. Jeter (1988). These progressions exemplify the normative power of the factual: the practice of heightened scrutiny eventually leads to its formal recognition as doctrine. It is not extravagant to expect a similar treatment of the claims of the mentally retarded in some future opinion. In the end, the standard of judicial review seems not so much to govern decisions as to provide a rhetorical framework on which lawyers and judges can fasten the substantive considerations that are the heart of argument and decision: the harms of governmental actions to constitutionally protected interests and the government's justifications for those actions.

In contrast, arguments about the relevance of group harms and the validity of group remedies are of major importance in deciding cases—and, indeed, in deciding whether the nation will seriously address the continuing harms of racial discrimination. Certainly racial discrimination happens to people one by one, but it happens because they are members of a racial group. The harms of group subordination have multiple causes; actions are harmful because of their contexts. Yet our current constitutional law pays little attention to context and, instead, centers on a principle demanding no more of government than formal racial neutrality. To establish a claim of racial discrimination that violates the equal protection clause, normally one must show that identifiable officers of the government have purposefully acted on a racial ground to produce the harm in question—a proposition typically hard to prove.

A rare case in which the requisite purpose was found was Hunter v. Underwood (1985). The Supreme Court concluded that a clause in Alabama's 1901 state constitution disenfranchising persons convicted of crimes of "moral turpitude" had been adopted for the purpose of preventing black citizens from voting and continued in the present to have racially disparate effects. Accordingly, the Court held that it was unconstitutional for the state to deny the vote on the basis of a conviction for the misdemeanor of passing a worthless check. The Court based its conclusion about the law's continuing racially disparate effects on statistics showing that blacks in two Alabama counties had been disenfranchised under the law at a rate at least 1.7 times the rate for whites.

Two years later, however, in rejecting an equal protection attack on the constitutionality of the death penalty, a majority of the Justices refused to give similar weight to a statistical demonstration of racial discrimination. A study of some 2,000 Georgia murder cases in the 1970s showed dramatic racial disparities in the likelihood that capital punishment would be imposed. In mccleskey v. kemp (1987) the Court decided, 5–4, that those statistics were irrelevant; to prevail on a claim of racial discrimination, a defendant must show some specific acts of purposeful discrimination by the prosecutor, jury, or judge in his or her own case. Surely the majority Justices understood that a contrary decision would have threatened wholesale reversals of death sentences—a course they were unwilling to take.

Both the Hunter and McCleskey cases raised questions concerning the relevance of group subordination in equal protection analysis. McCleskey illustrates the present majority's devotion to the principle of formal racial neutrality and its reluctance to accept a showing of disparity among racial groups as proof of the discrimination that violates the equal protection clause. In interpreting a number of federal civil rights statutes, however, the Court has accepted this sort of statistical proof of discrimination.

The issue of the constitutionality of affirmative action brings together the rhetorical question of the standard of judicial review and the more substantive question of group remedies. Although, since 1985, the Supreme Court has remained fragmented on both these aspects of affirmative action, the practical effects of the decisions show a remarkable stability.

Given the acceptability of statistical proof of violation of a number of major antidiscrimination laws, many an affirmative-action program amounts to the substitution of one group remedy for another. Accordingly, there is broad agreement among the Justices on the validity of affirmative-action programs that are seen to be genuinely remedial. Yet the dominant principle for the Court's current majority is one of formal racial neutrality, and there is some awkwardness in squaring affirmative action with this principle. In two recent affirmative-action cases—wygant v. jackson board of education (1986), on public hiring, and richmond (city of) V. J. A. croson co. (1989), on public contracting—the key opinions were written by Justices lewis f. powell and sandra day o'connor. On the surface, these opinions minimize group concerns, but together they make clear how a public institution can constitutionally adopt an affirmative action program. The approved method, explained as a form of remedy for past discrimination, makes judicious use of statistics showing racial disparities. In short, Justices Powell and O'Connor have found a way to use the language of individual justice in the cause of ending group subordination.

The prevailing opinions in Wygant and Croson emphasize the "strict scrutiny" standard of review, employing this standard both in evaluating the justifications for affirmative action as a remedy for past discrimination and in requiring "narrow tailoring" of a racially based remedy. In metro broadcasting, inc. V. fcc (1990), however, a different 5–4 majority announced that the less demanding "intermediate" scrutiny was appropriate in evaluating an affirmative-action program approved by Congress. In an opinion by Justice william j. brennan, the majority upheld a congressionally approved program of the Federal Communications Commission (FCC) for a limited number of racial preferences in the distribution of broadcast licenses. Here the majority said that Congress was not limited to providing remedies for past discrimination; rather, the affirmative-action program was aimed at achieving a greater diversity in broadcast programming. The four dissenters, in opinions by Justice O'Connor and Justice anthony m. kennedy, insisted on "strict scrutiny" for congressional affirmative action as well as for state or local governmental programs and argued that the nonremedial purpose of broadcasting diversity was not a sufficiently compelling governmental purpose to pass the test.

Even after the retirement of Justice Brennan, there remains a majority of Justices who agree that Congress has the power, in enforcing the fourteenth amendment, to remedy societal discrimination, both private and governmental, through affirmative-action programs. Presumably, in future cases, that result will be described, as it was in Croson, as consistent with "strict scrutiny." Indeed, in Metro Broadcasting itself one might have imagined an opinion upholding the FCC's diversity program as broadly "remedial." In the affirmative-action context, as elsewhere in equal protection doctrine, discussions of the standard of review serve purposes that are mainly rhetorical.

Kenneth L. Karst

(see also: Capital Punishment and Race; Discrete and Insular Minorities; Race and Criminal Justice; Race-Consciousness; Racial Preference.)


Bell, Derrick A. 1987 And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books.

Karst, Kenneth L. 1989 Belonging to America: Equal Citizenship and the Constitution. New Haven, Conn.: Yale University Press.

Kennedy, Randall L. 1988 McCleskey v. Kamp: Race, Capital Punishment, and the Supreme Court. Harvard Law Review 101:1388–1433.

Lawrence, Charles R., III 1987 The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism. Stanford Law Review 39:317–388.

Minow, Martha 1987 The Supreme Court, 1986 Term—Foreword: Justice Engendered. Harvard Law Review 101: 10–95.