Fourteenth Amendment, Section 1 — Equal Protection: Race-Based Classifications Generally

Amdt14.S1.8.1.1 Overview of Race-Based Classifications

When the government legislates or acts on the basis of a “suspect” classification, the Court sets aside the traditional standard of equal protection review and exercises a heightened standard of review referred to as “strict scrutiny.”¹ Paradigmatic of “suspect” categories is classification by race. Under the strict scrutiny standard, the government must demonstrate a compelling interest; usually little or no presumption favoring the classification is to be expected from courts. In addition, the government must demonstrate that its use or reliance on a racial classification is narrowly tailored to further that compelling interest.² Both prongs of the Court’s strict scrutiny standard involve the case-by-case analysis of multiple factors.

Before settling on strict scrutiny for evaluating racial classifications for equal protection purposes, the Supreme Court’s jurisprudence on racial classifications went through significant change over the years. In its 1944 decision Korematsu v. United States,³ for example, the Court adjudicated the wartime forced removal of Japanese-Americans from the West Coast. In that case, the Court said that because government action targeted only a single ethnic-racial group it was “immediately suspect” and subject to “rigid scrutiny.”⁴ In the context of striking down state laws prohibiting interracial marriage or cohabitation in the late 1960s, the Court stated in its 1967 decision Loving v. Virginia that racial classifications “bear a far heavier burden of justification” than other classifications and that these state laws were invalid because no “overriding statutory purpose”⁵ was shown and they were not necessary to some “legitimate overriding purpose.”⁶

Meanwhile, not all racial classifications harm a particular group, and the Justices debated which standard to apply to racial classifications motivated by a “benign” interest to help or assist a particular racial group. The Court ultimately concluded in its 1995 decision Adarand Constructors v. Pena, that one standard—strict scrutiny—applies to evaluate all racial classifications.⁷ Thus, government actions that use a racial classification to remedy or ameliorate conditions resulting from intentional discrimination must also undergo strict scrutiny.⁸

Amdt14.S1.8.1.2 Equal Protection and Rational Basis Review Generally

Every draft leading up to the final version of Section 1 of the Fourteenth Amendment contained a guarantee of equal protection of the laws.¹ The Amendment’s sponsors aimed to provide a firm constitutional basis for already-enacted civil rights legislation² and to ensure that equal protection could not be repealed by a simple majority in a future Congress.³ There were, however, conflicting interpretations of the phrase “equal protection” among sponsors and supporters, and the legislative history does little to clarify whether any sort of consensus was accomplished, and if so, what it was.⁴ Although the Court early recognized that African Americans were the primary intended beneficiaries of the new constitutional protections thus adopted,⁵ the Amendment’s language is not limited to any one racial or other group. Though efforts to argue for an expansive interpretation met with little initial success,⁶ the equal protection standard ultimately came to apply to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties with regard to differential treatment of persons and classes.

While the traditional standard of review for equal protection challenges to government classifications developed largely, though not entirely, in the context of economic regulation,⁷ it appears in many other contexts as well,⁸ including so-called “class-of-one” challenges to the government’s alleged mistreatment of an individual.⁹ The mere fact of classification will not void legislation,¹⁰ because, in exercising its powers, a legislature has considerable discretion in recognizing differences between and among persons and situations.¹¹ The Court has observed: “[S]tatutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.”¹²

To determine whether a classification is permissible or invidious courts must first identify the characteristic used to classify.¹³ For most classifications that do not involve an inherently suspect characteristic (such as sex or race) or a fundamental right (such as a personal constitutional right), the Court applies rational basis review.¹⁴ This standard generally differentiates between permissible and impermissible classifications by asking whether “the statute is rationally related to a legitimate state interest.”¹⁵ Applying a presumption that legislation is valid, the Court has held that “[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude.”¹⁶ Recognizing that a classification may be overinclusive or underinclusive and pass rational basis review, the Court has stated: “If the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.”¹⁷

Amdt14.S1.8.1.3 Marriage and Facially Non-Neutral Laws

Statutes that forbid the contracting of marriage between persons of different races are unconstitutional,¹ as are statutes that penalize interracial cohabitation.² Nor may a court deny custody of a child based on a parent’s remarriage to a person of another race and the presumed “best interests of the child” to be free from the prejudice and stigmatization that might result.³

Amdt14.S1.8.1.4 Judicial System and Facially Non-Neutral Laws

Segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience¹ or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible.² Jail inmates have a right not to be segregated by race unless there is some overriding necessity arising out of the process of keeping order.³

Amdt14.S1.8.1.5 Public Designation and Facially Non-Neutral Laws

It is unconstitutional to designate candidates on the ballot by race,¹ and apparently, any sort of designation by race on public records is suspect, although not necessarily unlawful.²

Amdt14.S1.8.1.6 Public Accommodations and Facially Non-Neutral Laws

Whether discrimination practiced by operators of retail selling and service establishments gave rise to a denial of constitutional rights occupied the Court’s attention considerably in the early 1960s, but it avoided finally deciding one way or the other, generally finding forbidden state action in some aspect of the situation.¹ Passage of the Civil Rights Act of 1964 obviated any necessity to resolve the issue.²

Amdt14.S1.8.1.7 Political Process Doctrine

The Court has also analyzed equal protection challenges to voter referenda approving restrictions or prohibitions on methods of addressing racial segregation.¹ In such cases, the Court must consider if a measure that changes how desegregation is implemented “distorts the political process for racial reasons.”² In a 1982 case, Washington v. Seattle School District, the Court addressed circumstances in which Washington voters, following the Seattle school board’s implementation of a mandatory busing program to reduce the racial isolation of minority students, approved an initiative banning school boards from assigning students to any but the nearest or next nearest school offering the students’ course of study. The voter initiative included many exceptions that allowed the school board to assign students beyond nearby schools for various reasons, but notably had no exception that allowed the school board to bus students for desegregation purposes.³ That same year, the Court addressed a California case, in which California state courts had interpreted the California constitution to require school systems to eliminate both de jure and de facto segregation. In that case, Crawford v. Los Angeles Board of Education, voters approved an initiative that prohibited state courts from ordering busing unless the school segregation violated the Fourteenth Amendment, and a federal judge would have power to order busing under Supreme Court precedent.⁴

By a 5-4 margin, the Court held that the Washington measure was unconstitutional, but upheld the California measure with near unanimity of result if not of reasoning. The Court held that the Washington measure was unconstitutional because it imposed a different and more severe burden on school boards to address racial desegregation through busing than it imposed on any other educational policy.⁵ While local school boards could make education policy on a range of matters, they required state level approval to bus students for desegregation purposes.⁶ By imposing these greater burdens on school boards, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority.⁷

By contrast, the Court found no such racially discriminatory differences⁸ or motive in the California measure. There, the Court described the voter initiative as a simple repeal of a desegregation remedy that the federal Constitution did not require.⁹ “It would be paradoxical,” the Court observed, “to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”¹⁰ Having previously gone beyond the requirements of the federal Constitution, the Court concluded that the state was free to “pull back” to a standard that conformed to federal requirements.¹¹ In addition, the lower court found no evidence indicating that voters were motivated by a discriminatory purpose in enacting the measure.¹² “In sum,” the Court stated, “the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.”¹³ Concurring in the result, Justice Harry Blackmun, joined by Justice William Brennan, distinguished the California measure because it merely repealed “the right to invoke a judicial busing remedy.”¹⁴ Because legislatures, and not courts, create laws, in his view the measure did not reallocate decision making authority in constitutionally meaningful way.¹⁵

In its 2014 Schuette v. Coalition to Defend Affirmative Action decision,¹⁶ the Court considered the constitutionality of an amendment to the Michigan Constitution, approved by the state’s voters, to prohibit admissions preferences at state universities based on race, color, ethnicity, national origin, or sex.¹⁷ Six Justices agreed that the Michigan amendment did not violate the Equal Protection Clause, but Schuette produced no majority opinion on the legal rationale for that conclusion.¹⁸ A three-Justice plurality of the Schuette Court construed its earlier precedent to invalidate state voter initiatives on equal protection grounds only where the state action “had the serious risk, if not purpose, of causing specific injuries on account of race.”¹⁹ Finding no similar risks of injury with regard to the Michigan amendment and no similar allegations of past discrimination in the Michigan university system,²⁰ the plurality ultimately concluded there was no basis to set aside the state amendment.²¹ The plurality opinion questioned and rejected aspects of the Court’s analysis in Washington v. Seattle School District,²² while two other Justices argued that that decision, and Hunter v. Erickson, 393 U.S. 385 (1969), should be overturned in their entirety.²³

Amdt14.S1.8.1.8 Peremptory Challenges

Following its 1880 Strauder v. West Virginia decision that a law that discriminates in selecting jurors based on their color violates the Fourteenth Amendment’s Equal Protection Clause,¹ the Court recognized that excluding a defendant’s racial or ethnic group from the grand jury² that indicts them or the petit jury³ that tries them, or from both,⁴ denies the defendant equal protection of the laws and requires reversing the conviction or dismissing the indictment.⁵ Even if the defendant’s race differs from that of the excluded jurors, the Court has held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.⁶ Indeed, people categorically excluded from jury service may seek affirmative relief to outlaw discrimination in the procedures a jurisdiction uses to call and qualify jurors, as the Court has held that “[d]efendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection.”⁷ The Court has further noted that “[p]eople excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.”⁸

A plaintiff can make out a prima facie case of deliberate and systematic exclusion by showing that no Black citizens have served on juries for a period of years⁹ or that the number of Black jurors who served was grossly disproportionate to the percentage of Black citizens eligible for jury service.¹⁰ Once this prima facie showing has been made, the Court has held that the burden is upon the jurisdiction to prove that it had not practiced discrimination and testimony by jury selection official that they did not discriminate is not sufficient.¹¹ Although the Court, in cases with great racial disparities, has voided certain practices that facilitated discrimination,¹² it has not outlawed discretionary jury selection pursuant to general standards of educational attainment and character that can be administered fairly.¹³ Similarly, the Court declined to rule that African Americans must be included on all-White jury commissions that administer jury selection laws in some states.¹⁴

In its 1965 Swain v. Alabama decision,¹⁵ the Court examined a circumstance where African Americans regularly appeared on jury venires but no African American had actually served on a petite jury in fifteen years.¹⁶ The reason no Black jurors served in defendant’s case, the Court found, was that attorneys used peremptory challenges—which allow them to remove a certain number of potential jurors without justification—to eliminate potential African American jurors.¹⁷ Nevertheless, the Court refused to set aside the conviction. The Court held the prosecution could use peremptory challenges to exclude African Americans in this particular case, regardless of motive, but indicated that consistent use of such challenges to remove African Americans across many cases would violate equal protection.¹⁸ Because the record did not show that the prosecution was solely responsible for African Americans’ absence from the jury and suggested the defense requested some exclusions, the Court rejected the defendant’s claims.¹⁹

In Batson v. Kentucky, however, the Court overruled Swain’s holding as to the evidentiary standard, ruling that “a defendant may establish a prima facie case of purposeful [racial] discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s [own] trial.”²⁰ To rebut this showing, the Court explained, the prosecutor “must articulate a neutral explanation related to the particular case,” but the explanation “need not rise to the level justifying exercise of a challenge for cause.”²¹ The Court further stated: “Although the prosecutor must present a comprehensible reason, ‘[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.”²² After such a rebuttal, the Court noted: “the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but the ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’”²³ The Court also noted deference due to the trial court’s determination of discriminatory intent, commenting: “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.”²⁴

Notably, on more than one occasion, the Supreme Court has reversed trial courts’ findings of no discriminatory intent.²⁵ Indeed, in post-Batson review, the Court has closely reviewed transcripts of jurors’ pretrial voir dire questioning, applying a “comparative juror analysis.”²⁶ In this analysis, the Court considers the minority jurors the prosecution struck and the reasons it gave for each strike at the Batson hearing before trial.²⁷ Then the Court will see if there were similar, White jurors the prosecution did not strike. Inconsistencies could show that the alleged race-neutral reasons for striking minority jurors are pretextual.²⁸ The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,²⁹ and by a defendant in a criminal case,³⁰ as peremptory challenges always encompass state action, and cannot be considered mere private conduct.³¹

Discrimination in selecting grand jury foremen presents a closer question, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus, the Court “assume[d] without deciding” that a judge’s discrimination in selecting foremen for state grand juries would violate equal protection in a system in which the foreman served as a thirteenth voting juror and exercised significant powers.³² The Court did not reach the same result, however, in a decision on a due process challenge to the federal system, where the foreman’s responsibilities were “essentially clerical” and where the judge chose the foreman from among the members of an already chosen jury.³³

In its 1987 decision McCleskey v. Kemp³⁴ the Court rejected an equal protection claim based on statistical evidence of systemic racial discrimination in sentencing, declining to extend the jury selection rules. The defendant, a Black man who received a death sentence after being convicted for murdering a White victim, presented a statistical study showing that defendants charged with murdering White people were more than four times likely to receive a death sentence in the state than defendants charged with killing Black people.³⁵ The Court distinguished Batson v. Kentucky by characterizing capital sentencing as “fundamentally different” from jury venire selection; consequently, relying on statistical proof of discrimination is less appropriate.³⁶ The Court stated: “Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.”³⁷ Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination because jurors deciding sentencing issues may not be required to testify to their motives unlike attorneys selecting jurors.³⁸