Equal Protection


The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits states from denying any person within its territory the equal protection of the laws.  This means that a state must treat an individual in the same manner as others in similar conditions and circumstances.  The Federal Government must do the same, but this is required by the Fifth Amendment Due Process.

The point of the equal protection clause is to force a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.  Thus, the equal protection clause is crucial to the protection of civil rights.

Every equal protection clause issue can be broken down into three questions:

  1. What classification does a government action create?
  2. What level of scrutiny should be applied to this classification?
  3. Does this particular government action meet that level of scrutiny?

Moreover, the equal protection clause analysis becomes more complicated when an individual is discriminated against because of his unique positions (i.e. as a class-of-one).  Additional challenges arise when laws favor a group of people, rather than discriminating against a group of people (e.g. affirmative action).  The equal protection clause could also be implicated when states redraw district lines (racial gerrymandering).  The following sections will present a brief summary of these issues.

When does a law classify?

The first step is to identify the classification that a government action creates.  Sometimes, a classification appears on the face of a government action.  For example, a legislation that requires that every post office worker be a U.S. citizen, facially classifies people into U.S. citizens and non-U.S. citizens.  A problem arises when a law is facially neutral, but has a disparate impact on a particular group of people.  For example, a law that requires every post office worker to be over six feet tall appears to be race- and gender-neutral.  However, men are far more likely to be over six feet tall than women.  Thus, this law disfavors women. 

To challenge a law is facially neutral but creates a disparate impact, an individual must show that the government intended to discriminate against the affected group.  In the post office worker hypothetical above, an individual must show that the government’s purpose in enacting the law was to discriminate against women.  Thus, both discriminatory intent and effect are required to implicate the equal protection clause.  If a law discriminates on its face but has no effect, it will survive an equal protection challenge.  Similarly, if a law creates a disparate impact but this impact was not the purpose of the law, it will survive an equal protection challenge.

While the first step of an equal protection clause analysis is to identify how the government classifies individuals, it is important to remember that not every classification is unconstitutional.  The equal protection clause, for example, does not forbid states from treating different entities differently.  In Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973), the Supreme Court permitted a state to tax personal property of corporations without also taxing personal property of individuals.

Once it is established that a law classifies individuals, the next question is, “What level of scrutiny applies to a classification?”

How strictly to scrutinize a classification and does a law pass this level of scrutiny?

Once the classification is identified, the next step is to identify what level of scrutiny is to be applied.  The Supreme Court has made it clear that different levels of scrutiny will apply to different types of classifications.  The more egregious the classification, the higher a level of scrutiny it would need to pass.

Strict scrutiny
When a law is subject to strict scrutiny, the government must prove that the law is narrowly tailored to advance a compelling government interest.  This means that the classification is no broader than absolutely necessary.  The government interest must be compelling enough to warrant the classification. Strict scrutiny applies whenever a law targets a “suspect class” or burdens one’s right to exercise a “fundamental right.”  A law discriminates on basis of a “suspect class,” if it classifies people on basis of race, national origin, or, in certain cases, non-U.S. citizenship (i.e. discriminates against documented aliens within the United States).  Thus, a law would not be subject to strict scrutiny if it discriminates against undocumented aliens or aliens outside of the United States.  A law burdens a “fundamental right” if it affects rights such as the freedom of speech, the right to marry, the right to travel, the right to vote, etc.

Intermediate Scrutiny
Intermediate Scrutiny is less rigorous than strict scrutiny.  When a law is subject to intermediate scrutiny, the government has the burden of proving that the statutory classification is substantially related to a legitimate government objective.  Thus, a law fails intermediate scrutiny if it does substantially advance a government objective, or if the objective is not legitimate (e.g. based on stereotype, bias, or animus).  A law is subject to intermediate scrutiny if it burdens a “quasi-suspect class.”  A class is characterized “quasi-suspect” if the class is not entirely politically powerless, but traditionally lacks substantial political power.  For example, women are considered a quasi-suspect class.  Laws that burden children born out of wedlock are also subjected to intermediate scrutiny. 

Rational Basis Test
Rational basis review is the lowest level of scrutiny, where an individual challenging the law – not the government – must prove that the classification is not reasonably related to some rational purpose.  In other words, an individual must prove that the classification advances no government purpose: either by showing that the purpose is illegitimate, arbitrary, or capricious, or that the law cannot possibly advance it.  On other hand, so long as the government shows that the classification theoretically advances any government purpose, the challenge fails.  Rational basis test is used whenever a classification does not fall into the other categories.  For example, a law that creates tax credits for companies that sell milk in carton boxes.  This law classifies between products (favors carton boxes over glass or plastic bottles), but does not affect a suspect class, quasi-suspect class, or a fundamental right.  Such a law would be subject to the differential rational basis review. It must also be noted that, while laws that burden documented aliens within the United States are subject to strict scrutiny, laws that burden undocumented aliens or foreign nations are subject to rational basis review.

While the three standards of review outlined above appear to be clear, the practical application of these tests is far more complicated.  It is not clear whether only three tests exist.  Depending on the facts, the Supreme Court has applied a mixture of the aforementioned tests.  Thus, some writers suggest that there is a spectrum of levels of scrutiny, rather than three distinct categories.

Discrimination against a single individual—class of one

An individual does not need to identify as a member of a class or a group to be entitled to equal protection.  For the purposes of equal protection clause analysis, a class can consist of a single member.  This “class of one” doctrine protects individuals from wholly arbitrary acts of state governments. 

To qualify for “class of one” equal protection, an individual must first show that he or she was treated differently from similarly situated persons and that the different treatment was intentional and had no rational basis.  Then, the individual must show that this differential treatment flows from an illegitimate animus, rather than from coincidence, chance, or a permissible governmental classification.

There are some exceptions to the “class of one” doctrine.  For example, the doctrine does not apply in the public employment context.  Furthermore, an individual is only entitled to “class of one” equal protection doctrine if he was intentionally singled out because of his membership in the class.  In other words, he cannot simply be a random victim of governmental incompetence.

Equal Protection Clause and Affirmative Action

Affirmative action finds its roots in judicial remedies against segregated schools following Brown v. Board of Education, 347 U.S. 483 (1954).  Following Brown v. Board of Education, there was massive resistance to school desegregation.  Aggressive desegregation resulted in “white-flight”—as schools integrated, white members of communities would flee to largely white suburbs.  Some courts, legislatures, and schools established racial quotas to integrate schools and communities and to have districts adequately represent a diverse group of people. 

Recently, however, the Supreme Court has held racial quotas unconstitutional.  In Parents Involved in Community Schools v. Seattle School District Number 1, 551 U.S. 701 (2007), the Supreme Court held affirmative action programs subject to strict scrutiny whenever the programs based admission solely on one’s race. 

However, not all use of race in university admission is unconstitutional.  As the Supreme Court explained in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), student body diversity is a compelling state interest that can justify the use of race in university admissions.  While these two holdings have allowed universities to use race in the admission process, the holdings do not mean that a court will presume that a university is using race in an acceptable way.  As the Supreme Court clarified in Fisher v. University of Texas, 133 S. Ct. 2411 (2013), a court must closely scrutinize the use of race in the admission process to see if the use comports with the equal protection clause’s guarantees.

Equal Protection Clause and Racial Gerrymandering

Equal protection clause forbids states from engaging in “racial gerrymandering.”  Racial gerrymandering occurs when a state relies on race to draw up boundaries of one or more specific electoral districts.  Such gerrymandering is impermissible because it harms an individual, who is subjected to a racial classification, and the individual’s legislator, who believes his primary obligation is to represent only a specific racial group.  

The Supreme Court views racial gerrymandering as so egregious that states cannot escape an equal protection challenge by drawing up some districts based on race but not others.  As the Supreme Court clarified in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), the fact that some districts are not racially motivated does not defeat a claim that other districts were.

To make out a racial gerrymandering claim a plaintiff must show that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within a specific district.  In considering whether race is a predominant factor, one must consider to what extent was the legislator motivated by individuals’ race rather than “traditional race-neutral districting principles” (i.e. compactness, contiguity, respect for political subdivisions, incumbency protection, and communities’ political affiliations).  Thus, if a legislature was primarily motivated by the traditional race-neutral districting principles, an equal protection clause challenge fails.

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Last edited in June of 2016 by Eugene Temchenko