Race-Based Discrimination: What Standard For Constitutional Review?

The standard of constitutional review applied to race-based discrimination is strict scrutiny. Strict scrutiny is a form of judicial review that US courts use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification, including race, religion, national origin, and alienage. Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action, with intermediate scrutiny and the rational basis test being the other two standards. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a compelling state interest. The Supreme Court has held that strict scrutiny applies to a governmental entity's intentional use of race.

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Strict scrutiny

The Supreme Court has held that strict scrutiny applies to a governmental entity's intentional use of race, and that all race-based classifications must be subjected to strict scrutiny. For example, in Korematsu v. United States, which upheld the race-based exclusion order and internment of Japanese Americans during World War II, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute.

While strict scrutiny is often perceived as "strict in theory, fatal in fact", an empirical study of strict scrutiny decisions in federal courts found that laws survive strict scrutiny more than 30% of the time.

Intermediate scrutiny

The courts have applied intermediate scrutiny in various cases, including those involving sex-based classifications and gender discrimination. For example, in Craig v. Boren, the Supreme Court determined that sex-based classifications were subject to an intermediate standard of judicial review. In Caban v. Mohammed, the Court held that gender discrimination was grounds for intermediate scrutiny of statutory denial of the father-child relationship.

The choice between strict and intermediate scrutiny can have significant implications for the outcome of a case. For example, in Romer v. Evans, the Supreme Court struck down an amendment to the Colorado Constitution that invalidated legal protections based on sexual orientation, finding that it violated the Equal Protection Clause. The Court applied intermediate scrutiny in this case, holding that the amendment was motivated by a desire to harm a politically unpopular group, which is never a legitimate governmental interest.

Rational basis test

The rational basis test is a judicial review test used by courts to determine the constitutionality of a statute or ordinance. It is also referred to as "rational review". The rational basis test is generally used when no fundamental rights or suspect classifications are at issue. The test prohibits the government from imposing arbitrary restrictions on liberty or drawing distinctions between persons that serve no constitutionally legitimate end.

Under the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute's means and goals. The Supreme Court has never set forth standards for determining what constitutes a legitimate government interest. If the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand rational basis review.

The rational basis test is one of three judicial review tests, the other two being intermediate scrutiny and strict scrutiny. The rational basis test is considered to be more lenient than the other two tests, and courts applying it will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur.

The concept of rational basis review can be traced to an influential 1893 article, "The Origin and Scope of American Constitutional Law", by Harvard law professor James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is "so clear that it is not open to rational question".

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Direct evidence of intent

In the context of race-based discrimination, direct evidence of intent typically involves a statement from a decision-maker that expresses a discriminatory motive. This is often referred to as an "express classification", and it constitutes the clearest form of direct evidence of discriminatory intent. For example, if a recipient official admits to having considered race during the decision-making process or explicitly conditions the receipt of benefits or services on the basis of race, this would be considered direct evidence of discriminatory intent.

In the case of Coghlan v. Am. Seafoods Co., it was held that direct evidence of discriminatory intent is evidence that, "if believed, proves the fact [of discriminatory intent] without inference or presumption". This means that direct evidence proves discriminatory intent without the need for further interpretation or explanation.

Other forms of direct evidence include any statement or document that shows on its face that an improper criterion, such as race, served as the basis for a decision. For instance, in In re Rodriguez, a court found that a Hispanic employee was not selected for promotion based on a manager's impression of the applicant's "language" and "how he speaks". This evidence was considered direct evidence of discrimination.

It is important to note that the likelihood of obtaining direct evidence of discrimination is often slim, as supervisors and company personnel are usually well-trained to avoid openly expressing their biases and prejudices. As a result, individuals often rely on circumstantial evidence to create a presumption of discrimination. This involves using different types of evidence that, when taken collectively, can demonstrate that a decision was made, at least in part, because of race.

In the United States, strict scrutiny is applied to governmental actions that involve a "suspect classification", such as race or national origin. This is the highest standard of judicial review, and it requires the government to demonstrate a compelling governmental interest and that its actions are narrowly tailored to achieve that interest.

Equal Protection Clause

The Equal Protection Clause, part of the first section of the Fourteenth Amendment to the United States Constitution, came into effect in 1868. The clause provides that "no state... [may] deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law.

The Fourteenth Amendment was intended to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the right to equal protection under the law. The Amendment was also directed at remedying discrimination against African Americans, and it gave citizenship and the privileges of citizenship to persons of colour. However, the text of the Clause is worded very broadly, and it has evolved significantly from its original purpose. For example, despite its reference to "states", the Clause has been interpreted to prevent the federal government from discriminating as well.

The Equal Protection Clause has been applied in numerous landmark cases. In Strauder v. West Virginia (1880), the Supreme Court concluded that the exclusion of blacks from juries was a denial of equal protection to black defendants. In Nixon v. Herndon (1927), the Court ruled that the Fourteenth Amendment prohibited the denial of the vote based on race. In Baker v. Carr (1962), the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned that they violated the Equal Protection Clause. In Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 (2007), the Supreme Court held that strict scrutiny applies to a governmental entity's intentional use of race.

More recently, in Students for Fair Admissions v. Harvard (2023), and its companion case, the Supreme Court held that race and ethnicity cannot be used in admissions decisions. Chief Justice Roberts clarified that universities may not establish "through application essays or other means the regime we hold unlawful today". These opinions effectively ended affirmative action in schools.

The Equal Protection Clause has been the subject of much debate, with controversies surrounding whether sexual orientation should be considered a "suspect classification".

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