Equal Protection - Constitutional Analysis

In Palmer, the Court held that a city council decision to close municipal swimming pools following court-ordered integration did not violate the Equal Protection Clause. After observing that “no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it,” the Court advanced two reasons why investigation of purpose was improper: (1) the difficulty of ascertaining motive; and (2) an “element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters.” The Court distinguished Gomillion as resting on the actual effect of the enactment,not the motivation which led the State to behave as it did. The Washington v. Davis court sought to distinguish Palmer on the ground that the poll closing extended “identical treatment to both whites and Negroes.” Taken together, Palmer and Davis suggest that a facially neutral statute is subject to enhanced review only when it has both a discriminatory purpose and a disproportionate impact. But it is difficult to see how this would be consistent with Brown v. Board of Education.

In Davis, the Court held that there must be proof of discriminatory purpose in order to subject a facially neutral law to strict scrutiny under the equal protection clause. The Court reasoned that the central purpose of the equal protection clause was to prevent official conduct discriminating on the basis of race (causing expressive harm) – not to provide substantive racial equality. And the Court emphasized that allowing discriminatory impact to suffice in proving a racial classification “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” Nonetheless, the Court indicated that “an invidious discriminatory purpose may often be inferred form the totality of the relevant facts, including that the law bears more heavily on one race than another.” The Court declined to invalidate the use of Test 21, finding that it was neutral on its face and rationally designed to serve a purpose that the government was constitutionally empowered to pursue.

Tribe wrote:

The goal of the Equal Protection Clause is not to stamp out impure thoughts, but to guarantee a full measure of human dignity for all. Beyond the purposeful affirmative adoption or use of rules that disadvantage them, minorities can also be injured when the government is “only” indifferent to their suffering. Strict judicial scrutiny should be used for those government acts that, given their history, context, source, and effect, seem most likely not only to perpetuate subordination but also to reflect a tradition of hostility [or indifference] towards a historically subjugated group.

In Arlington Heights, the Court held that the Village’s refusal to rezone from single family to multi-family, so as to permit the respondent’s construction of racially integrated housing, did not violate equal protection. The Court held that proof that discriminatory purpose was a motivating purpose in the legislative decision was necessary to establish strict scrutiny, and that there were three ways to demonstrate a discriminatory purpose: (1) demonstrating a statistical pattern that can only be explained by a discriminatory purpose (e.g. Yick Wo); (2) demonstrating that the history surrounding the government’s action makes a discriminatory purpose clear; and (3) where the legislative or administrative history of a law reflects a discriminatory intent. Finding none of these factors suggested a discriminatory purpose behind the Village’s decision, the Court upheld the decision, despite the fact that the decision arguably bore more heavily on racial minorities. “

In Yick Wo, a city ordinance required that laundries be located in brick or stone buildings unless a waiver was obtained from the board of supervisors. The plaintiff alleged that over 200 petitions by those of Chinese ancestry had been denied, but all but one of the petitions filed by non-Chinese individuals had been granted. The Court unanimously reversed Yick Wo’s conviction: “The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by public authorities charged with the administration … with a mind so unequal and oppressive as to amount to a practical denial by the State of equal protection of the laws.” See also Gomillion v. Lightfoot (case involving the redrawing of Tuskegee, Alabama’s boundaries to exclude blacks from participating in city election).

In Feeney, the Court upheld Massachusetts’ absolute lifetime preference to veterans for state civil service positions, even though the preference overwhelmingly operated to the advantage of males. The Court wrote that “impact provides an important starting point, but purposeful discrimination is the condition that offends the Constitution.” The Court concluded that too many men were affected by the preference to permit the inference that the statute was but a pretext for preferring men over women. “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.”

In Cleburne, the Court held that rational basis review was the appropriate standard for evaluating government actions discriminating against the mentally disabled, but nonetheless held that a city ordinance that required a special permit for the operation of a group home for the mentally disabled was unconstitutional. The Court rejected the city’s argument that the law was justified because private property owners in the area were opposed to having a facility for the mentally disabled in the community, stating that private bias is not a legitimate government purpose. Further, the Court dismissed the city’s contention that the law was justified because the home was on a five hundred year flood plain. The Court dismissed this concern because the city’s concern over the number of individuals who would live in the home would also apply to nursing homes and other facilities not covered by the restriction. Thus, although the Court claimed to be applying rational basis review, it was actually applying something more stringent, “rational basis review with bite.”

In Plessy, the Court upheld laws that mandated that blacks and whites use “separate, but equal facilities.” The Court concluded that the law in question, which required the separation of blacks and whites in public conveyances, was no more unreasonable or obnoxious to the Fourteenth Amendment than the separation of black and white children in school, “the constitutionality of which does not seem to have been questioned.” The Court explicitly addressed the claim that these laws were based on the assumption of the inferiority of blacks and thus had a stigmatizing effect: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Harlan, J., dissented. He argued that the law plainly had a discriminatory purpose: “Every one knows that [the law] had its origin in the purpose …...