CRS Annotated Constitution
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Thus, the nature of active review in equal protection jurisprudence remains in flux, subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. But the cases, more fully reviewed hereafter, clearly indicate that a sliding scale of review is a fact of the Court’s cases, however much its doctrinal explanation lags behind.[p.1815]
Testing Facially Neutral Classifications Which Impact on Minorities
A classification expressly upon the basis of race triggers strict scrutiny and ordinarily results in its invalidation; similarly, a classification that facially makes a distinction on the basis of sex, or alienage, or illegitimacy triggers the level of scrutiny appropriate to it. A classification that is ostensibly neutral but is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis is subject to heightened scrutiny and ordinarily invalidation.167 But when it is contended that a law, which is in effect neutral, has a disproportionately adverse effect upon a racial minority or upon another group particularly entitled to the protection of the equal protection clause, a much more difficult case is presented.
It is necessary that one claiming harm through the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate. “[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.”168 In reliance upon a prior Supreme Court decision that had seemed to eschew motive or intent and to pinpoint effect as the key to a constitutional violation169 and upon the Court’s decisions reading congressional civil rights enactments as providing that when employment practices disqualifying disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and[p.1816]that it is an insufficient response to demonstrate some rational basis for the challenged practices,170 a number of lower federal courts had developed in constitutional litigation a “disproportionate impact” analysis under which a violation could be established upon a showing that a statute or practice adversely affected a class without regard to discriminatory purpose, absent some justification going substantially beyond what would be necessary to validate most other classifications.171 These cases were disapproved in Davis; but the Court did note that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be 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.”172
Both elucidation and not a little confusion followed upon application of Davis in the following Terms. Looking to a challenged zoning decision of a local board which had a harsher impact upon blacks and low–income persons than on others, the Court explained[p.1817]in some detail how inquiry into motivation would work.173 First, a plaintiff is not required to prove that an action rested solely on discriminatory purpose; establishing “a discriminatory purpose” among permissible purposes shifts the burden to the defendant to show that the same decision would have resulted absent the impermissible motive.174 Second, determining whether a discriminatory purpose was a motivating factor “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 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 this is a rare case.175 In the absence of such a stark pattern, a court will look to such factors as the “historical background of the decision,” especially if there is a series of official discriminatory actions. The specific sequence of events may shed light on purpose, as would departures from normal procedural sequences or from substantive considerations usually relied on in the past to guide official actions. Contemporary statements of decisionmakers may be examined, and “[i]n some extraordinary instances the members 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.”176 In most circumstances, a court is to look to the totality of the circumstances to ascertain intent.
Strengthening of the intent standard was evidenced in a decision sustaining against sex discrimination challenge a state law giving an absolute preference in civil service hiring to veterans. Veterans who obtain at least a passing grade on the relevant examination may exercise the preference at any time and as many times as they wish and are ranked ahead of all nonveterans, no matter what their score. The lower court observed that the statutory and administrative exclusion of women from the armed forces until the recent past meant that virtually all women were excluded from state civil service positions and held that results so clearly foreseen[p.1818]could not be said to be unintended. Reversing, the Supreme Court found that the veterans preference law was not overtly or covertly gender based; too many men are nonveterans to permit such a conclusion and there are women veterans. That the preference implicitly incorporated past official discrimination against women was held not to detract from the fact that rewarding veterans for their service to their country was a legitimate public purpose. Acknowledging that the consequences of the preference were foreseeable, the Court pronounced this fact insufficient to make the requisite showing of intent. “‘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.”177
Moreover, in City of Mobile v. Bolden178 a plurality of the Court apparently attempted to do away with the totality of circumstances test and to evaluate standing on its own each of the factors offered to show a discriminatory intent. At issue was the constitutionality of the use of multi–member electoral districts to select the city commission. A prior decision had invalidated a multi–member districting system as discriminatory against blacks and Hispanics, without considering whether its ruling was premised on discriminatory purpose or adverse impact but listing and weighing a series of factors the totality of which caused the Court to find invidious discrimination.179 But in the plurality opinion in Mobile, each of the factors, viewed “alone,” was deemed insufficient to show purposeful discrimination.180 Moreover, the plurality suggested that some of the factors thought to be derived from its precedents and forming part of the totality test in opinions of the[p.1819]lower federal courts—such as minority access to the candidate selection process, governmental responsiveness to minority interests, and the history of past discrimination—were of quite limited significance in determining discriminatory intent.181 But, contemporaneously with Congress’ statutory rejection of the Mobile plurality standards,182 the Court, in Rogers v. Lodge,183 appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of “circumstantial evidence”184 that is more reminiscent of pre– Washington v. Davis cases than of the more recent decisions.
Rogers v. Lodge was also a multimember electoral district case brought under the equal protection clause185 and the Fifteenth Amendment. The fact that the system operated to cancel out or dilute black voting strength, standing alone, was insufficient to condemn it; discriminatory intent in creating or maintaining the system was necessary. But direct proof of such intent is not required. “[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.”186 Turning to the lower court’s enunciation of standards, the Court approved the Zimmer formulation. The fact that no black had ever been elected in the county, in which blacks were a majority of the population but a minority of registered voters, was “important evidence of purposeful exclusion.”187 Standing alone this fact was not sufficient, but a historical showing of past discrimination, of systemic exclusion of blacks from the political process as well as educational seg[p.1820]regation and discrimination, combined with continued unresponsiveness of elected officials to the needs of the black community, 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 access to voting power.188 As for the district court’s application of the test, the Court reviewed it under the deferential “clearly erroneous” standard and affirmed it.
The Court in a jury discrimination case has also seemed to allow what it had said in Davis and Arlington Heights it would not permit.189 Noting that disproportion alone is insufficient to establish a violation, the Court nonetheless held that plaintiff’s showing that 79 percent of the county’s population was Spanish–surnamed while jurors selected in recent years ranged from 39 to 50 percent Spanish–surnamed was sufficient to establish a prima facie case of discrimination. Several factors probably account for the difference. First, the Court has long recognized that discrimination in jury selection can be inferred from less of a disproportion than is needed to show other discriminations, in major part because if jury selection is truly random any substantial disproportion reveals the presence of an impermissible factor, whereas most official decisions are not random.190 Second, the jury selection process was “highly subjective” and thus easily manipulated for discriminatory purposes, unlike the process in Davis and Arlington Heights which was regularized and open to inspection.191 Thus, jury cases are likely to continue to be special cases and in the usual fact situation, at least where the process is open, plaintiffs will bear a heavy and substantial burden in showing discriminatory racial and other animus.
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