Testing Facially Neutral Classifications Which Impact on Minorities

A classification made 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.1513 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.

In Washington v. Davis, the Court held that is necessary that one claiming harm based on the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate.1514 For a time, 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 violation, lower courts had questioned this proposition.1515 Further, the Court had considered various civil rights statutes which provided that when employment practices are challenged for disqualifying a disproportionate numbers of blacks, discriminatory purpose need not be proved and that demonstrating a rational basis for the challenged practices was not a sufficient defense.1516 Thus, the lower federal courts developed a constitutional “disproportionate impact” analysis under which, absent some justification going substantially beyond what would be necessary to validate most other classifications, a violation could be established without regard to discriminatory purpose by showing that a statute or practice adversely affected a class.1517 These cases were disapproved in Davis, 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 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.”1518

The application of Davis in the following Terms led to both elucidation and not a little confusion. Looking to a challenged zoning decision of a local board that had a harsher impact upon blacks and low-income persons than upon others, the Court in Village of Arlington Heights v. Metropolitan Housing Dev. Corp.1519 explained in some detail how inquiry into motivation would work. 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.1520 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.1521 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.”1522 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 a 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 non-veterans, 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 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 non-veterans to permit such a conclusion, and some women are 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.”1523

Moreover, in City of Mobile v. Bolden1524 a plurality of the Court apparently attempted to do away with the totality of circumstances test and to separately evaluate 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 by listing and weighing a series of factors which in totality showed invidious discrimination, but the Court did not consider whether its ruling was premised on discriminatory purpose or adverse impact.1525 But in the plurality opinion in Mobile, each of the factors, viewed “alone,” was deemed insufficient to show purposeful discrimination.1526 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 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.1527 But, contemporaneously with Congress’s statutory rejection of the Mobile plurality standards,1528 the Court, in Rogers v. Lodge,1529 appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of “circumstantial evidence”1530 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 Clause1531 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.”1532 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.”1533 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 segregation 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.1534 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 also seemed to allow what it had said in Davis and Arlington Heights it would not permit.1535 Noting that disproportion alone is insufficient to establish a violation, the Court nonetheless held that the plaintiff ’s showing that 79 percent of the county’s population was Spanish-surnamed, whereas 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.1536 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.1537 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.

Footnotes

1513
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). Government may make a racial classification that, for example, does not separate whites from blacks but that by focusing on an issue of racial import creates a classification that is suspect. Washington v. Seattle School Dist., 458 U.S. 457, 467–74 (1982). [Back to text]
1514
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.”) A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under the lenient, rationality standard. Id. 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) (no discriminatory purpose shown). See also Bazemore v. Friday, 478 U.S. 385 (1986) (existence of single-race, state-sponsored 4–H Clubs is permissible, given wholly voluntary nature of membership). [Back to text]
1515
The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which a 5-to-4 majority refused to order a city to reopen its swimming pools closed allegedly to avoid complying with a court order to desegregate them. The majority opinion strongly warned against voiding governmental action upon an assessment of official motive, id. at 224–26, but it also drew the conclusion (and the Davis Court read it as actually deciding) that, because the pools were closed for both whites and blacks, there was no discrimination. The city’s avowed reason for closing the pools—to avoid violence and economic loss—could not be impeached by allegations of a racial motive. See also Wright v. Council of City of Emporia, 407 U.S. 451 (1972). [Back to text]
1516
Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The Davis Court adhered to this reading of Title VII, merely refusing to import the statutory standard into the constitutional standard. Washington v. Davis, 426 U.S. 229, 238–39, 246–48 (1976). Subsequent cases involving gender discrimination raised the question of the vitality of Griggs, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), but the disagreement among the Justices appears to be whether Griggs applies to each section of the antidiscrimination provision of Title VII. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Furnco Const. Co. v. Waters, 438 U.S. 567 (1978). But see General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required). [Back to text]
1517
See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (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 segregation. In Cisneros v. Corpus Christi Indep. School Dist. 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc), cert. denied, 413 U.S. 920 (1973), the court held that motive and purpose were irrelevant and the “de facto and de jure nomenclature” to be “meaningless.” After the distinction was reiterated in Keyes v. Denver School District, 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. Texas Educ. Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229 (1976), modified and adhered to, 564 F.2d 162, reh. denied, 579 F.2d 910 (5th Cir. 1977–78), cert denied, 443 U.S. 915 (1979). See also United States v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of analysis was, however, substantially cabined in Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), although foreseeability as one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979). [Back to text]
1518
Washington v. Davis, 426 U.S. at 242 (1976). [Back to text]
1519
429 U.S. 252 (1977). [Back to text]
1520
429 U.S. at 265–66, 270 n.21. See also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284–87 (1977) (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); Hunter v. Underwood, 471 U.S. 222 (1985) (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 whites would also be disenfranchised thereby). [Back to text]
1521
Arlington Heights, 429 U.S. at 266. [Back to text]
1522
429 U.S. 267–68. [Back to text]
1523
Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). This case clearly established the application of Davis and Arlington Heights to all nonracial classifications attacked under the Equal Protection Clause. But compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979), in the context of the quotation in the text. These cases found the Davis standard satisfied on a showing of past discrimination coupled with foreseeable impact in the school segregation area. [Back to text]
1524
446 U.S. 55 (1980). Also decided by the plurality was that discriminatory purpose is a requisite showing to establish a violation of the Fifteenth Amendment and of the Equal Protection Clause in the “fundamental interest” context, vote dilution, rather than just in the suspect classification context. [Back to text]
1525
White v. Regester, 412 U.S. 755 (1972), was the prior case. See also Whitcomb v. Chavis, 403 U.S. 124 (1971). Justice White, the author of Register, dissented in Mobile, 446 U.S. at 94, on the basis that “the totality of the facts relied upon by the District Court to support its inference of purposeful discrimination is even more compelling than that present in White v. Register.” Justice Blackmun, id. at 80, and Justices Brennan and Marshall, agreed with him as alternate holdings, id. at 94, 103. [Back to text]
1526
446 U.S. at 65–74. [Back to text]
1527
446 U.S. at 73–74. The principal formulation of the test was in Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and its components are thus frequently referred to as the Zimmer factors. [Back to text]
1528
By the Voting Rights Act Amendments of 1982, P.L. 97–205, 96 Stat. 131, 42 U.S.C. § 1973 (as amended), see S. REP. NO. 417, 97th Congress, 2d Sess. 27–28 (1982), Congress proscribed a variety of electoral practices “which results” in a denial or abridgment of the right to vote, and spelled out in essence the Zimmer factors as elements of a “totality of the circumstances” test. [Back to text]
1529
458 U.S. 613 (1982). The decision, handed down within days of final congressional passage of the Voting Rights Act Amendments, was written by Justice White and joined by Chief Justice Burger and Justices Brennan, Marshall, Blackmun, and O’Connor. Justices Powell and Rehnquist dissented, id. at 628, as did Justice Stevens. Id. at 631. [Back to text]
1530
458 U.S. at 618–22 (describing and disagreeing with the Mobile plurality, which had used the phrase at 446 U.S. 74). The Lodge Court approved the prior reference that motive analysis required an analysis of “such circumstantial and direct evidence” as was available. Id. at 618 (quoting Arlington Heights, 429 U.S. at 266). [Back to text]
1531
The Court confirmed the Mobile analysis that the “fundamental interest” side of heightened equal protection analysis requires a showing of intent when the criteria of classification are neutral and did not reach the Fifteenth Amendment issue in this case. 458 U.S. at 619 n.6. [Back to text]
1532
458 U.S. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). [Back to text]
1533
458 U.S. at 623–24. [Back to text]
1534
458 U.S. at 624–27. The Court also noted the existence of other factors showing the tendency of the system to minimize the voting strength of blacks, including the large size of the jurisdiction and the maintenance of majority vote and single-seat requirements and the absence of residency requirements. [Back to text]
1535
Castaneda v. Partida, 430 U.S. 482 (1977). The decision was 5-to-4, Justice Blackmun writing the opinion of the Court and Chief Justice Burger and Justices Stewart, Powell, and Rehnquist dissenting. Id. at 504–07. [Back to text]
1536
430 U.S. at 493–94. This had been recognized in Washington v. Davis, 426 U.S. 229, 241 (1976), and Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 n.13 (1977). [Back to text]
1537
Castaneda v. Partida, 430 U.S. 482, 494, 497–99 (1977). [Back to text]