Philosophical Considerations
Two forms of injustice:
Treating people “similarly situated,”
i.e., equals, differently in terms of
liabilities imposed or benefits granted or
withheld

Treating people “unsimilarly situated,”
i.e., unequals, the same in terms of
liabilities imposed or benefits granted or
withheld


Nearly all laws are based on “classifications”



What characteristics are significant enough to justify
a “classification”?
Under what circumstances is differential treatment
based on that classification justified?
“Suspect” classifications trigger “strict
scrutiny” level of review

1. STRICT SCRUTINY -- The government must show
that the challenged classification serves a compelling
state interest and that the classification is necessary
to serve that interest.
Application of strict scrutiny analysis

A. When the law creates a “Suspect Classification”:
1. Race
2. National Origin
3. Religion (either under Equal Protection or
Establishment Clause analysis)
4. Alienage (unless the classification falls within a
recognized "political community" exception, e.g.,
voting rights, in which case only rational basis
scrutiny will be applied).

B. When Classifications Burden Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental

Nearly all laws are based on “classifications”

“Suspect” classifications trigger “strict scrutiny” level of review: race,
ethnicity, and religion are the primary examples

“Nearly suspect” classifications trigger
“intermediate” level of review:
 The government must show that the challenged
classification serves an important state interest
and that the classification is at least substantially
related to serving that interest.):
 Quasi-Suspect
1. Gender
2. Illegitimacy
Classifications:

Nearly all laws are based on “classifications”
“Suspect” classifications trigger “strict scrutiny” level of review: race,
ethnicity, and religion are the primary examples
 “Nearly suspect” classifications trigger “intermediate” level of review:
gender, alienage, and legitimacy are primary examples


“Non-suspect” classifications trigger “rational basis”
level of review: The government need only show that
the challenged classification is rationally related to
serving a legitimate state interest.)
Minimum scrutiny applies to all classifications other than those
listed above, although some Supreme Court cases suggest a slightly
closer scrutiny ("a second-order rational basis test") involving some
weighing of the state's interest may be applied in cases, for
example, involving classifications that disadvantage mentally
retarded people, homosexuals, or innocent children of illegal aliens.
 Common examples of non-suspect classifications - age, income
level, disabilities

Equal Protection Clause of 14th Am.
Originally intended only to protect interests
of blacks vis a vis whites
 “State action requirement”

Civil Rights Cases of 1883 overturned Civil Rights
Act of 1875 which had been passed under §5 of
14th Am. but sought to prohibit “private actors”
 Civil Rights Act of 1964, passed under Commerce
Clause of Art. I, §8, accomplished the same
purpose of forbidding discrimination of private
actors involved in interstate commerce


“State-private” distinction survives, but Court
has enlarged the concept of “state action”
 Extent
of gov’t entanglement with private parties
private actors practicing racial discrimination can lose gov’t.
benefits such as grants, contracts, leases, tax exemptions or
deductions, tax-exempt status
 judicial non-enforcement of private contracts [Shelley v
Kramer(1948) involving restrictive covenants]
 access to political process [Reitman v Mulkey(1967) invalidated
CA’s Prop. 14 repealing anti-discrimination law in real estate
transactions – state cannot legislatively embrace a regime of
discrimination, even for individuals]
 Limits on this doctrine – when state requires the entanglement
by licensing requirements [Moose Lodge v Irvis (1972),
issuance of liquor license]


When the nature of the activity is “statelike” (state had
delegated its function to a private party or the private
function is so “affected with the public interest”)

White primaries in South [Smith v Allwright, (1944) ruled on
15th Am., but with language of state-private analysis]
From Desegregation to Integration
District courts given wide powers to remedy
the effects of de jure segregation (Swann v.
Charlotte-Mecklenburg Bd. of Ed.,1971)
 Principle extended to de facto segregation if
 Any evidence of “state involvement” to
maintain segregated schools, even in the
absence of a law requiring a dual system
 Drawing of school attendance boundary
lines or pupil assignment schemes
 Decisions about the placement of schools
(Keyes v Denver School District, 1973)

From Desegregation to Integration
 But
courts cannot fashion a remedy broader
than the scope of violations
 Especially relevant in inter-district school
busing plans (Milliken v Bradley, 1974)
 Even remedies for previous segregation
will be subject to stricter scrutiny (MO v
Jenkins, 1995)

How far can the state go in correcting the
historic consequences of discrimination?
 Controversies over “affirmative action” and
“reverse discrimination”
 Philosophical
issue: group-based vs individualistic
conceptions of rights, e.g., am I entitled to special
treatment because my ancestors were victims of
discrimination even though I have not been
personally? Is there a sufficient “residual effect”
of discrimination against previous generations to
deprive me of “equality” today?
 Racial classifications are suspect even when used
to benefit the “classified” group because such
schemes inherently burden members of the nonprivileged groups
 Court
has waffled on the extent of permissible
race & gender-based legislative benefits
 Generally
upheld the abstract principle of
“affirmative action,” i.e., race, gender can be
“taken into consideration” as a legitimate means
of pursuing the state’s interest in promoting
diversity to remedy the effect of previous
discrimination (Bakke principle)
 EXCEPT in the 5th Circuit as a result of
Hopwood v TX, 1995 and in CA as a result of
Prop. 209
 Court has sidestepped these challenges to the
fundamental premise of affirmative action by
denying cert. on appeals from adverse lower
court rulings
 Court
has waffled on the extent of permissible
race & gender-based legislative benefits
 Generally
disallowed rigid quotas and percentages
in “set asides” – major exceptions have been to
remedy long-standing, entrenched, de jure
segregation
 Seats in graduate/medical/law programs (U.C.
v Bakke, 1978)
 Minority contracts and hiring (Richmond v J.A.
Croson Co., 1989 overturned Fullilove v
Krutznick, 1980)
 Previous distinction between federallymandated and state-mandated set-asides,
established in Metro Broadcasting v FCC, 1990
overturned in Adarand v Peña, 1995
 Strict scrutiny standard applied to all racebased classifications
 When
are differential/discriminatory results
of policy permissible?
 Job requirements/performance criteria
may produce racially or gender skewed
results/outcomes [“disparate results”] if
 Facially non-discriminatory
 Rationally related to the requirements
of the job
 The Davis rule – Washington v Davis
(1976)