Amdt14.S1.4.1.1 Race-Based Classifications: Overview

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.

When government legislates or acts either on the basis of a suspect classification or with regard to a fundamental interest, the traditional standard of equal protection review is abandoned, and the Court exercises a strict scrutiny. Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of intermediate scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.

Paradigmatic of suspect categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States, 1 concerning the wartime evacuation of Japanese-Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was immediately suspect and subject to rigid scrutiny. The school segregation cases 2 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications bear a far heavier burden of justification than other classifications and were invalid because no overriding statutory purpose3 was shown and they were not necessary to some legitimate overriding purpose.4 A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.5 Remedial racial classifications, that is, the development of affirmative action or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain. 6 A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect. 7

Footnotes

  1.  Jump to essay-1323 U.S. 214, 216 (1944). In applying rigid scrutiny, however, the Court was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers.
  2.  Jump to essay-2Brown v. Board of Education, 347 U.S. 483 (1954).
  3.  Jump to essay-3McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964).
  4.  Jump to essay-4Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v. Washington, 390 U.S. 333 (1968), it was indicated that preservation of discipline and order in a jail might justify racial segregation there if shown to be necessary.
  5.  Jump to essay-5Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982).
  6.  Jump to essay-6Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287-20 (1978) (Justice Powell announcing judgment of Court) (suspect), and id. at 355-79 (Justices Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part) (intermediate scrutiny); Fullilove v. Klutznick, 448 U.S. 448, 491-92 (1980) (Chief Justice Burger announcing judgment of Court) (a most searching examination but not choosing a particular analysis), and id. at 495 (Justice Powell concurring), 523 (Justice Stewart dissenting) (suspect), 548 (Justice Stevens dissenting) (searching scrutiny).
  7.  Jump to essay-7Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist., 458 U.S. 457 (1982).