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ses that the right to vote, 1350 the right of interstate travel, 1351 the right to be free of wealth distinctions in the criminal process, 1352 and the right of procreation 1353 were at least some of those interests that triggered VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00244 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1915 1354 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). 1355 411 U.S. at 30, 33-34. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting). 1356 Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78–80 (Justice O’Connor concurring) (travel). 1357 Zablocki v. Redhail, 434 U.S. 374 (1978). 1358 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). active review when de jure or de facto official distinctions were made with respect to them. This branch of active review the Court also sought to rationalize and restrict in Rodriguez, 1354 which involved both a claim of de facto wealth classifications being suspect and a claim that education was a fundamental interest so that affording less of it to people because they were poor activated the compelling state interest standard. The Court readily agreed that education was an important value in our society. ‘‘But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.’’ 1355 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance. But just as Rodriguez was unable to prevent the Court’s adoption of a ‘‘three-tier’’ or ‘‘sliding-tier’’ standard of review in the first phase of the active-review doctrine, so it did not by stressing the requirement that an interest be expressly or impliedly protected by the Constitution prevent the addition of other interests to the list of ‘‘fundamental’’ interests. The difficulty was that the Court decisions on the right to vote, the right to travel, the right to procreate, as well as others, premise the constitutional violation to be of the equal protection clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right. 1356 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right which required a compelling justification. 1357 While denials of public funding of abortions were held to implicate no fundamental interest—abortion being a fundamental interest—and no suspect classification—because only poor women needed public funding 1358 —other denials of public assistance because of illegitimacy, alienage, or sex have been deemed governed by the same standard of review as affirmative harms imposed on those VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00245 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1916 AMENDMENT 14—RIGHTS GUARANTEED 1359 E.g., Jiminez v. Weinberger, 417 U.S. 628 (1974) (illegitimacy); Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Califano v. Goldfarb, 430 U.S. 199 (1977) (sex). 1360 457 U.S. 202 (1982). 1361 See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960). Government may make a racial classification that, for example, does not separate whites from blacks but that by focussing on an issue of racial import creates a classification that is suspect. Washington v. Seattle School Dist., 458 U.S. 457, 467–74 (1982). 1362 Washington v. Davis, 426 U.S. 229, 242 (1976). A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under the lenient, rationality standard. Id. at 247–48; Rogers v. Lodge, 458 U.S. 613, 617 n.5 (1982). The Court has applied the same standard to a claim of selective prosecution allegedly penalizing exercise of First Amendment rights. Wayte v. United States, 470 U.S. 598 (1985) (no discriminatory purpose shown). And see Bazemore v. Friday, 478 U.S. 385 (1986) (existence of single-race, state-sponsored 4-H Clubs is permissible, given wholly voluntary nature of membership). grounds. 1359 And in Plyler v. Doe, 1360 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated. Thus, the nature of active review in equal protection jurisprudence remains in flux, subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. But the cases, more fully reviewed hereafter, clearly indicate that a sliding scale of review is a fact of the Court’s cases, however much its doctrinal explanation lags behind. Testing Facially Neutral Classifications Which Impact on Minorities A classification 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 illegitimacy 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. 1361 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. It is necessary that one claiming harm through the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate. ‘‘[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is not invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.’’ 1362 In reli- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00246 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1917 1363 The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which a 5-to-4 majority refused to order a city to reopen its swimming pools closed allegedly to avoid complying with a court order to desegregate them. The majority opinion strongly warned against voiding governmental action upon an assessment of official motive, id. at 224–26, but it also, and the Davis Court so read it as actually deciding, drew the conclusion that since the pools were closed for both whites and blacks there was no discrimination. The city’s avowed reason for closing the pools— to avoid violence and economic loss—could not be impeached by allegations of a racial motive. See also Wright v. Council of City of Emporia, 407 U.S. 451 (1972). 1364 Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The Davis Court adhered to this reading of Title VII, merely refusing to import the statutory standard into the constitutional standard. Washington v. Davis, 426 U.S. 229, 238–39, 246–48 (1976). Subsequent cases involving gender discrimination raised the question of the vitality of Griggs, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), but the disagreement among the Justices appears to be whether Griggs applies to each section of the antidiscrimination provision of Title VII. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Furnco Const. Co. v. Waters, 438 U.S. 567 (1978). But see General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required). 1365 See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (listing and disapproving cases). Cases not cited by the Court included the Fifth Circuit’s wrestling with the de facto/ de jure segregation distinction. In Cisneros v. Corpus Christi Indep. School Dist., 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc), cert. denied, 413 U.S. 920 (1973), the court held that motive and purpose were irrelevant and the ‘‘de facto and de jure nomenclature’’ to be ‘‘meaningless.’’ After the distinction was reiterated in Keyes v. Denver School District, 413 U.S. 189 (1973), the Fifth Circuit adopted the position that a decisionmaker must be presumed to have intended the probable, natural, or foreseeable consequences of his decision and thus that a school board decision, whatever its facial motivation, that results in segregation is intentional in the constitutional sense. United States v. Texas Educ. Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229 (1976), modified and adhered to, 564 F.2d 162, reh. denied, 579 F.2d 910 (5th Cir. 1977–78), cert. denied, 443 U.S. 915 (1979). See also United States v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of analysis was, however, substantially cabined in Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), although foreseeability as one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979). ance 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 1363 and upon the Court’s decisions reading congressional civil rights enactments as providing that when employment practices disqualifying disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices, 1364 a number of lower federal courts had developed in constitutional litigation a ‘‘disproportionate impact’’ analysis under which a violation could be established upon a showing that a statute or practice adversely affected a class without regard to discriminatory purpose, absent some justification going substantially beyond what would be necessary to validate most other classifications. 1365 These cases were disapproved in VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00247 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1918 AMENDMENT 14—RIGHTS GUARANTEED 1366 Washington v. Davis, 426 U.S. 229, 242 (1976). 1367 Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). 1368 429 U.S. at 265-66, 270 n.21. See also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284–87 (1977) (once plaintiff shows defendant acted from impermissible motive in not rehiring him, burden shifts to defendant to show result would have been same in the absence of that motive; constitutional violation not established merely by showing of wrongful motive); Hunter v. Underwood, 471 U.S. 222 (1985) (circumstances of enactment made it clear that state constitutional amendment requiring disenfranchisement for crimes involving moral turpitude had been adopted for purpose of racial discrimination, even though it was realized that some poor whites would also be disenfranchised thereby). 1369 Arlington Heights, 429 U.S. at 266. >Davis; but the Court did note 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.’’ 1366 Both elucidation and not a little confusion followed upon application of Davis in the following Terms. Looking to a challenged zoning decision of a local board which had a harsher impact upon blacks and low-income persons than on others, the Court explained in some detail how inquiry into motivation would work. 1367 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. 1368 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. 1369 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 privi- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00248 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1919 1370 429 U.S. 267-68. 1371 Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). This case clearly established the application of Davis and Arlington Heights to all nonracial classifications attacked under the equal protection clause. But compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979), in the context of the quotation in the text. These cases found the Davis standard satisfied on a showing of past discrimination coupled with foreseeable impact in the school segregation area. 1372 446 U.S. 55 (1980). Also decided by the plurality was that discriminatory purpose is a requisite showing to establish a violation of the Fifteenth Amendment and of the equal protection clause in the ‘‘fundamental interest’’ context, vote dilution, rather than just in the suspect classification context. lege.’’ 1370 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 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 there are women 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.’’ 1371 Moreover, in City of Mobile v. Bolden 1372 a plurality of the Court apparently attempted to do away with the totality of circumstances test and to evaluate standing on its own 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 blacks and Hispanics, without considering whether its ruling was pre- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00249 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1920 AMENDMENT 14—RIGHTS GUARANTEED 1373 White v. Regester, 412 U.S. 755 (1972), was the prior case. See also Whitcomb v. Chavis, 403 U.S. 124 (1971). Justice White, the author of Register, dissented in Mobile, 446 U.S. at 94, on the basis that ‘‘the totality of the facts relied upon by the District Court to support its inference of purposeful discrimination is even more compelling than that present in White v. Register.’’ Justice Blackmun, id. at 80, and Justices Brennan and Marshall, agreed with him as alternate holdings, id. at 94, 103. 1374 446 U.S. at 65-74. 1375 446 U.S. at 73-74. The principal formulation of the test was in Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and its components are thus frequently referred to as the Zimmer factors. 1376 By the Voting Rights Act Amendments of 1982, P.L. 97–205, 96 Stat. 131, 42 U.S.C. § 1973 (as amended), see S. Rep. No. 417, 97th Congress, 2d sess. 27– 28 (1982), Congress proscribed a variety of electoral practices ‘‘which results’’ in a denial or abridgment of the right to vote, and spelled out in essence the Zimmer factors as elements of a ‘‘totality of the circumstances’’ test. 1377 458 U.S. 613 (1982). The decision, handed down within days of final congressional passage of the Voting Rights Act Amendments, was written by Justice White and joined by Chief Justice Burger and Justices Brennan, Marshall, Blackmun, and O’Connor. Justices Powell and Rehnquist dissented, id. at 628, as did Justice Stevens. Id. at 631. 1378 458 U.S. at 618-22 (describing and disagreeing with the Mobile plurality, which had used the phrase at 446 U.S. 74). The Lodge Court approved the prior reference that motive analysis required an analysis of ‘‘such circumstantial and direct evidence’’ as was available. Id. at 618 (quoting Arlington Heights, 429 U.S. at 266). 1379 The Court confirmed the Mobile analysis that the ‘‘fundamental interest’’ side of heightened equal protection analysis requires a showing of intent when the criteria of classification are neutral and did not reach the Fifteenth Amendment issue in this case. 458 U.S. at 619 n.6. mised on discriminatory purpose or adverse impact but listing and weighing a series of factors the totality of which caused the Court to find invidious discrimination. 1373 But in the plurality opinion in Mobile, each of the factors, viewed ‘‘alone,’’ was deemed insufficient to show purposeful discrimination. 1374 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. 1375 But, contemporaneously with Congress’ statutory rejection of the Mobile plurality standards, 1376 the Court, in Rogers v. Lodge, 1377 appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of ‘‘circumstantial evidence’’ 1378 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 clause 1379 and the Fifteenth Amendment. The fact that the system operated to cancel out or di- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00250 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1921 1380 458 U.S. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). 1381 458 U.S. at 623-24. 1382 458 U.S. at 624-27. The Court also noted the existence of other factors showing the tendency of the system to minimize the voting strength of blacks, including the large size of the jurisdiction and the maintenance of majority vote and singleseat requirements and the absence of residency requirements. 1383 Castaneda v. Partida, 430 U.S. 482 (1977). The decision was 5-to-4, Justice Blackmun writing the opinion of the Court and Chief Justice Burger and Justices Stewart, Powell, and Rehnquist dissenting. Id. at 504–07. lute black voting strength, 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.’’ 1380 Turning to the lower court’s enunciation of standards, the Court approved the Zimmer formulation. The fact that no black had ever been elected in the county, in which blacks were a majority of the population but a minority of registered voters, was ‘‘important evidence of purposeful exclusion.’’ 1381 Standing alone this fact was not sufficient, but a historical showing of past discrimination, of systemic exclusion of blacks 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 access to voting power. 1382 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 has also seemed to allow what it had said in Davis and Arlington Heights it would not permit. 1383 Noting that disproportion alone is insufficient to establish a violation, the Court nonetheless held that plaintiff’s showing that 79 percent of the county’s population was Spanish-surnamed while 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 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00251 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1922 AMENDMENT 14—RIGHTS GUARANTEED 1384 430 U.S. at 493-94. This had been recognized in Washington v. Davis, 426 U.S. 229, 241 (1976), and Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 n.13 (1977). 1385 Castaneda v. Partida, 430 U.S. 482, 494, 497–99 (1977). 1386 Davidson v. City of New Orleans, 96 U.S. 97, 106 (1878). 1387 Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886); Santa Clara County v. Southern Pacific R.R., 118 U.S. 394 (1886). 1388 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890) (emphasis supplied). 1389 The State ‘‘may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon various trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the State in framing their Constitution.’’ 134 U.S. at 237. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Kahn v. Shevin, 416 U.S. 351 (1974); and City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974). not random. 1384 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. 1385 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 beara heavy and substantial burden in showing discriminatory racial and other animus. TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND RELATED EXERCISES OF THE POLICE POWER Taxation At the outset, the Court did not regard the equal protection clause as having any bearing on taxation. 1386 It soon, however, took jurisdiction of cases assailing specific tax laws under this provision, 1387 and in 1890 it cautiously conceded that ‘‘cle

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