Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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 whether a person was born out of wedlock 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.1 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.2 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.3 Further, the Court had considered various civil rights statutes which provided that when employment practices are challenged for disqualifying a disproportionate number of black applicants, discriminatory purpose need not be proved and that demonstrating a rational basis for the challenged practices was not a sufficient defense.4 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.5 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.6
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 black and low-income persons than upon others, the Court in Village of Arlington Heights v. Metropolitan Housing Dev. Corp.7 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.8 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.9 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.10 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.11
Moreover, in City of Mobile v. Bolden12 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 black and Hispanic citizens 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.13 But in the plurality opinion in Mobile, each of the factors, viewed
alone, was deemed insufficient to show purposeful discrimination.14 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.15 But, contemporaneously with Congress’s statutory rejection of the Mobile plurality standards,16 the Court, in Rogers v. Lodge,17 appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of
circumstantial evidence18 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 Clause19 and the Fifteenth Amendment. The fact that the system operated to cancel out or dilute the votes of black citizens, 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.20 Turning to the lower court’s enunciation of standards, the Court approved the Zimmer formulation. The fact that no black person had ever been elected in the county, in which black citizens were a majority of the population but a minority of registered voters, was
important evidence of purposeful exclusion.21 Standing alone this fact was not sufficient, but a historical showing of past discrimination, of systemic exclusion of black citizens 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 citizens' access to voting power.22 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.23 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.24 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.25 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.