As discussed above, the most limited level of review to which a law can be subjected under Equal Protection analysis is "rational basis" review. This standard of review is applied when the classification in the law is “nonsuspect”. At this level, great deference is given to the legislature’s decision to use the classification to bring about some legitimate state goal. So long as the classification is not “purely arbitrary,” the law will be upheld, even if
“in practice it results in some inequity.”See Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 68 (1911).
In Idaho Department of Employment v. Smith, 434 U.S. 100, 101 (1977), the Court put it quite nicely:
"[Following are] the requirements of the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits. 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."
In other words, the standard of review for general legislation regarding social welfare and economics is the rational basis test. In addition, many might be surprised to discover that discriminatory laws which classify on the basis of age or sexual orientation and laws which treat the disabled differently are subjected only to the weaker "rational basis" test and not strict scrutiny or even intermediate scrutiny, as these are neither suspect nor quasi-suspect classifications. So long as laws which make use of these classifications are rationally related to some legitimate state purpose they will not be struck down as Equal Protection violations.
In Idaho Dep’t of Employment, the statute in question denied unemployment benefits to people who were otherwise eligible but who chose to attend school during the day. Similarly situated citizens who chose to attend school at night were still able to receive their unemployment benefits. The Supreme Court of Idaho struck down the law as an Equal Protection violation. However, the U.S. Supreme Court disagreed, finding the classification was rationally related to a legitimate state purpose. After all, it is easier to find employment during the day than during the night, and therefore, the choice to attend school during the day limits the chance of finding a job. The state legislature’s choice to offer unemployment benefits only to those citizens who maximized their chances of finding work (by not making themselves unavailable to work during the day) was a legitimate goal. So the Idaho law, while discriminating against people who attend school during the day for purposes of unemployment eligibility, did not violate the Equal Protection clause.
EXAMPLE: Massahampshire passes a law requiring all pubic universities to develop standards for the instructional workloads carried by their professors. The law dictates that those standards are not subject to collective bargaining, thus creating a class of public employees who could not bargain regarding their workload. All other public employees in Massahampshire can negotiate their workload through the collective bargaining process. Because the law is rationally related to a conceivable, legitimate state purpose, (increasing the time faculty members spend in the classroom) it would pass rational basis review, which is appropriate, given the law’s regulation of an economic or social welfare issue and the nonsuspect classification involved. See Central State University v. American Association of University Professors, 526 U.S. 124 (1999).
EXAMPLE: A Montana statute, as interpreted by its courts, allows anyone to sue an out-of-state corporation in any county in Montana but requires that a suit brought against a corporation formed under the laws of Montana be brought only in the county where that corporation has its principal place of business. This discrimination based on the classification of out-of-state corporations as distinguished from local corporations will be subject to the rational basis test as a nonsuspect classification. See Burlington Northern Railroad Co. v. Ford, 504 U.S. 648 (1992).
In Burlington Northern Railroad, the Montana venue statute might at first appear to discriminate against out-of-state corporations. After all, they are subject to suit in more counties in the state than are local corporations. The issue in that case, however, was the relative inconvenience of being sued in a given location. A local company would certainly be more inconvenienced by being sued in a distant county than if it were sued in the location of its principal place of business. A foreign corporation, however, will be equally inconvenienced no matter where in Montana the suit is heard.
Although state residency is not a suspect classification, and therefore is subject to only the rational basis test, laws which use such classifications to discriminate against out-of-staters will often be struck down under this mild test as pursuing an illegitimate purpose. Earlier, in Subchapter 1, we saw how discriminating against out-of-state corporation in favor of local companies could run awry of the Fourteenth Amendment. See Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985). Discriminating against people who are residents of other states in favor of state citizens is also an impermissible state goal and statutes which discriminate based on residency will be struck down. See Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985). See also Zobel v. Williams, 457 U.S. 55 (1982).
EXAMPLE: New York decides that the recent difficulties experienced by local firefighters and police officers might be helped by granting their families a tax exemption for several years. Since the legislature’s intent is to help those families who were affected by the terrorist attacks of September 11, 2001, the exemption is limited to those families who resided within New York State prior to September, 2001. This award of benefits certainly falls within the “social welfare or economic” realm, and the classification is not itself suspect, so the rational basis test applies. Discriminating against those families who were out-of-staters at a certain time, however, is not a legitimate state objective and the law will likely be struck down.
The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits states from denying any person within its territory the equal protection of the laws. This means that a state must treat an individual in the same manner as others in similar conditions and circumstances. The Federal Government must do the same, but this is required by the Fifth AmendmentDue Process.
The point of the equal protection clause is to force a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights.
Every equal protection clause issue can be broken down into three questions:
- What classification does a government action create?
- What level of scrutiny should be applied to this classification?
- Does this particular government action meet that level of scrutiny?
Moreover, the equal protection clause analysis becomes more complicated when an individual is discriminated against because of his unique positions (i.e. as a class-of-one). Additional challenges arise when laws favor a group of people, rather than discriminating against a group of people (e.g. affirmative action). The equal protection clause could also be implicated when states redraw district lines (racial gerrymandering). The following sections will present a brief summary of these issues.
When does a law classify?
The first step is to identify the classification that a government action creates. Sometimes, a classification appears on the face of a government action. For example, a legislation that requires that every post office worker be a U.S. citizen, facially classifies people into U.S. citizens and non-U.S. citizens. A problem arises when a law is facially neutral, but has a disparate impact on a particular group of people. For example, a law that requires every post office worker to be over six feet tall appears to be race- and gender-neutral. However, men are far more likely to be over six feet tall than women. Thus, this law disfavors women.
To challenge a law is facially neutral but creates a disparate impact, an individual must show that the government intended to discriminate against the affected group. In the post office worker hypothetical above, an individual must show that the government’s purpose in enacting the law was to discriminate against women. Thus, both discriminatory intent and effect are required to implicate the equal protection clause. If a law discriminates on its face but has no effect, it will survive an equal protection challenge. Similarly, if a law creates a disparate impact but this impact was not the purpose of the law, it will survive an equal protection challenge.
While the first step of an equal protection clause analysis is to identify how the government classifies individuals, it is important to remember that not every classification is unconstitutional. The equal protection clause, for example, does not forbid states from treating different entities differently. In Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973), the Supreme Court permitted a state to tax personal property of corporations without also taxing personal property of individuals.
Once it is established that a law classifies individuals, the next question is, “What level of scrutiny applies to a classification?”
How strictly to scrutinize a classification and does a law pass this level of scrutiny?
Once the classification is identified, the next step is to identify what level of scrutiny is to be applied. The Supreme Court has made it clear that different levels of scrutiny will apply to different types of classifications. The more egregious the classification, the higher a level of scrutiny it would need to pass.
When a law is subject to strict scrutiny, the government must prove that the law is narrowly tailored to advance a compelling government interest. This means that the classification is no broader than absolutely necessary. The government interest must be compelling enough to warrant the classification. Strict scrutiny applies whenever a law targets a “suspect class” or burdens one’s right to exercise a “fundamental right.” A law discriminates on basis of a “suspect class,” if it classifies people on basis of race, national origin, or, in certain cases, non-U.S. citizenship (i.e. discriminates against documented aliens within the United States). Thus, a law would not be subject to strict scrutiny if it discriminates against undocumented aliens or aliens outside of the United States. A law burdens a “fundamental right” if it affects rights such as the freedom of speech, the right to marry, the right to travel, the right to vote, etc.
Intermediate Scrutiny is less rigorous than strict scrutiny. When a law is subject to intermediate scrutiny, the government has the burden of proving that the statutory classification is substantially related to a legitimate government objective. Thus, a law fails intermediate scrutiny if it does substantially advance a government objective, or if the objective is not legitimate (e.g. based on stereotype, bias, or animus). A law is subject to intermediate scrutiny if it burdens a “quasi-suspect class.” A class is characterized “quasi-suspect” if the class is not entirely politically powerless, but traditionally lacks substantial political power. For example, women are considered a quasi-suspect class. Laws that burden children born out of wedlock are also subjected to intermediate scrutiny.
Rational Basis Test
Rational basis review is the lowest level of scrutiny, where an individual challenging the law – not the government – must prove that the classification is not reasonably related to some rational purpose. In other words, an individual must prove that the classification advances no government purpose: either by showing that the purpose is illegitimate, arbitrary, or capricious, or that the law cannot possibly advance it. On other hand, so long as the government shows that the classification theoretically advances any government purpose, the challenge fails. Rational basis test is used whenever a classification does not fall into the other categories. For example, a law that creates tax credits for companies that sell milk in carton boxes. This law classifies between products (favors carton boxes over glass or plastic bottles), but does not affect a suspect class, quasi-suspect class, or a fundamental right. Such a law would be subject to the differential rational basis review. It must also be noted that, while laws that burden documented aliens within the United States are subject to strict scrutiny, laws that burden undocumented aliens or foreign nations are subject to rational basis review.
While the three standards of review outlined above appear to be clear, the practical application of these tests is far more complicated. It is not clear whether only three tests exist. Depending on the facts, the Supreme Court has applied a mixture of the aforementioned tests. Thus, some writers suggest that there is a spectrum of levels of scrutiny, rather than three distinct categories.
Discrimination against a single individual—class of one
An individual does not need to identify as a member of a class or a group to be entitled to equal protection. For the purposes of equal protection clause analysis, a class can consist of a single member. This “class of one” doctrine protects individuals from wholly arbitrary acts of state governments.
To qualify for “class of one” equal protection, an individual must first show that he or she was treated differently from similarly situated persons and that the different treatment was intentional and had no rational basis. Then, the individual must show that this differential treatment flows from an illegitimate animus, rather than from coincidence, chance, or a permissible governmental classification.
There are some exceptions to the “class of one” doctrine. For example, the doctrine does not apply in the public employment context. Furthermore, an individual is only entitled to “class of one” equal protection doctrine if he was intentionally singled out because of his membership in the class. In other words, he cannot simply be a random victim of governmental incompetence.
Equal Protection Clause and Affirmative Action
Affirmative action finds its roots in judicial remedies against segregated schools following Brown v. Board of Education, 347 U.S. 483 (1954). Following Brown v. Board of Education, there was massive resistance to school desegregation. Aggressive desegregation resulted in “white-flight”—as schools integrated, white members of communities would flee to largely white suburbs. Some courts, legislatures, and schools established racial quotas to integrate schools and communities and to have districts adequately represent a diverse group of people.
Recently, however, the Supreme Court has held racial quotas unconstitutional. In Parents Involved in Community Schools v. Seattle School District Number 1, 551 U.S. 701 (2007), the Supreme Court held affirmative action programs subject to strict scrutiny whenever the programs based admission solely on one’s race.
However, not all use of race in university admission is unconstitutional. As the Supreme Court explained in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), student body diversity is a compelling state interest that can justify the use of race in university admissions. While these two holdings have allowed universities to use race in the admission process, the holdings do not mean that a court will presume that a university is using race in an acceptable way. As the Supreme Court clarified in Fisher v. University of Texas, 133 S. Ct. 2411 (2013), a court must closely scrutinize the use of race in the admission process to see if the use comports with the equal protection clause’s guarantees.
Equal Protection Clause and Racial Gerrymandering
Equal protection clause forbids states from engaging in “racial gerrymandering.” Racial gerrymandering occurs when a state relies on race to draw up boundaries of one or more specific electoral districts. Such gerrymandering is impermissible because it harms an individual, who is subjected to a racial classification, and the individual’s legislator, who believes his primary obligation is to represent only a specific racial group.
The Supreme Court views racial gerrymandering as so egregious that states cannot escape an equal protection challenge by drawing up some districts based on race but not others. As the Supreme Court clarified in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), the fact that some districts are not racially motivated does not defeat a claim that other districts were.
To make out a racial gerrymandering claim a plaintiff must show that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within a specific district. In considering whether race is a predominant factor, one must consider to what extent was the legislator motivated by individuals’ race rather than “traditional race-neutral districting principles” (i.e. compactness, contiguity, respect for political subdivisions, incumbency protection, and communities’ political affiliations). Thus, if a legislature was primarily motivated by the traditional race-neutral districting principles, an equal protection clause challenge fails.
Menu of Sources
Useful Supreme Court Decisions
- Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) (racial gerrymandering)
- Bernal v. Fainter, 467 U.S. 216 (1984) (strict scrutiny alienage classifications)
- Clark v. Jeter, 486 U.S. 456 (1988) (intermediate scrutiny and paternity)
- Engquist v. Oregon Dept. of Agr., 553 U.S. 591 (2008) (public employment and class of one equal protection claim)
- Gratz v. Bollinger, 539 U.S. 244 (2003) (affirmative action)
- Grutter v. Bollinger, 539 U.S. 306 (2003) (affirmative action)
- McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969) (strict scrutiny and prisoners’ right to vote)
- Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) (rational basis test and milk products)
- Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (strict scrutiny and right to marry)
- Parents Involved in Community Schools v. Seattle School District Number 1, 551 U.S. 701 (2007) (affirmative action)
- Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (rational basis test and incidental disparate impact)
- Plyler v. Doe, 457 U.S. 202 (1982) (rational basis test and undocumented aliens)
Equal Protection Clause in the News
Last edited in June of 2016 by Eugene Temchenko