Facially Neutral Laws - Constitutional

Discriminatory impact, and

Motivated by a discriminatory purpose

Yick Wo v. Hopkins (1886) : SF ordinance makes it illegal to operate a laundry, except in a building made of brick or stone, “without having first obtained the consent of the board of supervisors.” 320 laundires opearating in SF; 240 are operated by Chinese. 310 of 320 are wood. 150 Chinese indviduals arrested for operating wood laundry, only one non-Chinese arrested. 200 Chinese individuals have sought licenses and all have been denied. All non-Chinese except one have received licenses.

1. Held: ordinance applied with a mind so unequal and oppressive as to amount to a practical denial by the state of EP

Washington v. Davis (1975): 2 black men applying with the police force alleged that the Department's recruiting procedures, including a written personnel test, discriminated against racial minorities. They claimed that the test was unrelated to job performance and excluded a disproportionate number of black applicants.

1. Held: Disparate impact without discriminatory purpose is subject only to rational basis review

   1. Only laws motivated by a discriminatory purpose are presumptively unconstitutional under EP and subject to strict scrutiny

   2. Impact can be evidence of purpose, but only in rare cases will it be considered dispositive

McCleskey v. Kemp (1986): Black man convicted of murdering police officer and sentenced to ddeath. In writ of habeus corpus, he argued that the Baldus Study shows that prosecutors seek the death penalty in 70% of caes involving black defendants and white fictims; and only 19% of cases involving white defendnts and black victims. Death imposed in 22% of cases with black defendants and white victims; and only 3% of cases with white defendants and black victims

1. Held: McCleskey cannot show that all of the actors involved in the death penalty determination were motivated by a discriminatory purpose.

   1. The Court held that since McCleskey could not prove that purposeful discrimination which had a discriminatory effect on him existed in this particular trial, there was no constitutional violation. Justice Powell refused to apply the statistical study in this case given the unique circumstances and nature of decisions that face all juries in capital cases. He argued that the data McCleskey produced is best presented to legislative bodies and not to the courts.

City of Mobile v. Bolden (1978): Class action on behalf of all black citizens in Mobile. Blacks were 1/3 of the population, but had never been elected to the 3-person board. History of past discrimination. White elected officials were discriminating against blacks in the provision of goods.

1. Held: None of this evidence treated in isolation is sufficient to prove a violatin of 14th or 15th Amendments

   1. 15th amendment, like 14th, requires a showing of discriminatory purpose. “A plaintiff must prove that the disputed plan was conceived or operated as a purposeful device to further racial discrimination.”

   2. The Court held that the Fifteenth Amendment did not entail "the right to have Negro candidates elected," and that only purposefully discriminatory denials of the freedom to vote on the basis of race demanded constitutional remedies.

Arguments against requiring discriminatory purpose

1. It is really hard to prove discriminatory purpose

2. Problem of old laws adopted with a discriminatory purpose but maintained for a non-discriminatory purpose

   1. Example: felon disenfranchisement laws

3. Discriminatory impace is often the result of discriminatory purpose

4. Discriminatory impact that does not result from purpose should be enough

5. Discriminatory purpose requirement misses the point – the problem of unconscious bias

Palmer v. Thompson (1970): city maintained segregated swimming pool until segregation found unconstitutional – so city closed all pools instead of desegregated

1. Held: a showing of discriminatory motivation without disparate impact is not enough to show that an action is presumptively unconstitutional under the Equal Protection Clause

   1. Pools are not a constitutional right like education is, so a city may choose to close a pool for any reason. SCOTUS has never held an act uconstitutional solely because of the motivations of men who voted for it.

   2. Dissent: A state may not avoid integration by eliminating all of its public services such as school, parks or pools. It may not close facilities for the purpose of “perpetuating or installing apartheid.”

Argument against requiring disparate impact

1. The whole point of anti-discrimination law is to prevent bad government intentions

Discriminatory purpose/intent

1. Different from criminal law

   1. Intent means desire to bring about consequences

2. Different from torts

   1. Acting with knowledge of what the foreseeable results will be

Personnel Administrator of Massachusetts v. Feeny (1978): A Massachusetts law gave hiring preference to honorably discharged veterans applying for state civil service positions. Feeney, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores.

1. Held: tort and criminal law intent standard is rejected. Discriminatory purpose...