Functional test
1.
how important is the gov interest
2.
how important is the regulation to achieving that governmental interest?
Marshall’s functional test: sliding scale approach between the right & discrimination rather than whether right exists/ not
descriptive approach Q. is that right? (Farbman believes that really understanding about how worried we should be about a thing and how it plays out through the doctrinal analysis)
Washington v Davis (stevens concurrence): do a functional test – ongoing response about tiers of scruitny test
Marshall: use affirmative action to fix past history of racism
Thomas: cannot fix racism by continuing to distinguish; even from antisubordination view, classification on the basis of race only perpetuates view of racial inferiority.
1.
Facially neutral? a) Discriminatory enforcement (yick wo) i.
Yes: = how suspect? ii.
No
1.
Disparate impact a) Obvious (ho aw kwo) i.
Yes = how suspect? ii.
No = Arlington heights
1.
Intent? a) No = rational basis review test iii.
Doesn’t protect
1.
Covert bias –
2.
Implicit bias – unconscious bias