A.  Applicability of the Equal Protection Clause


            The Fourteenth Amendment was passed after the American Civil War, in response to severe discrimination practiced against African Americans by many southern states.  As discussed in previous chapters, this amendment first makes clear that all persons born in the Untied States are citizens and receive the privileges and immunities of citizens of the Untied States.  It also contains the due process clause, which requires states to provide an appropriate hearing before depriving any person of “life, liberty or property.”  The due process clause has also been held to make most of the protections of the Bill of Rights applicable to the states.


            In addition, the Fourteenth Amendment contains the equal protection clause.  This mandates that no state shall… “deny to any person within its jurisdiction the equal protection of the laws.”  This clause has proved to be central in ending and preventing government discrimination based on race and gender.  It has also been held to provide protection from discrimination against other groups of people, such as aliens (non-citizens) and illegitimate children (those born outside of marriage).  This chapter, however, will concentrate on discrimination based on race and gender.


            As mentioned in an earlier chapter, because of the language “no state shall…” which precedes the due process and equal protection clauses, the protections of the Fourteenth Amendment have been held to apply against only governmental discrimination.  In most cases, the amendment has no applicability to prevent discrimination by private citizens.  Congress has passed a number of statutes designed to prevent private discrimination on the basis of race and gender, but these have not been done under its power to enforce the Fourteenth Amendment.  They will be discussed in a later chapter.


            Although adopted in 1868, the amendment provided very little protection to either women or African Americans until the 1950’s.  Statements in some early cases indicate that the Supreme Court felt that the protections of the Fourteenth Amendment were directed at protecting only African Americans, and not women, from discrimination.  Even in the first half of the twentieth century, when the equal protection clause was finally applied to women, a very high standard was required to overturn a discriminatory statute, and many laws which discriminated against women were upheld.  It was not until the 1970’s that most laws treating men and women differently began to be held unconstitutional.


As to racial discrimination, although the equal protection clause clearly applied to African Americans, the Supreme Court held that it did not prohibit laws requiring segregation for whites and blacks.  In the 1896 case of Plessy v. Fergusen, the Court ruled that “separate but equal” facilities were allowed.  It was not until after the 1954 case of Brown v Board of Education (outlawing school segregation) that the Court threw out the separate but equal doctrine, recognizing that separate facilities for blacks and whites never had been and never could be truly equal.


B.  Classifications Under the Equal Protection Clause


            Although the equal protection clause applies to any law that treats different classifications of people differently, varying standards are used to test the law, depending on the type of classification being made by the law.  Laws that make distinctions based on race are subjected to the harshest test, “strict scrutiny.”  Such laws will only be upheld if the state can show that they are necessary to achieve a compelling (extremely important) governmental purpose, which could not be fulfilled through a less discriminatory alternative.  No law subjected to strict scrutiny since World War II has been upheld.


On the other hand, most other laws making distinctions between people based on other factors, such as age or occupation, are subjected to the much easier “rational basis test.”   A law will be upheld as long as it is “rationally related to a legitimate state interest.”  The Court has shown great deference to state legislatures to determine what is a legitimate state interest and what is a reasonable way to go about serving that interest.  In contrast to strict scrutiny, almost all laws subjected to the rational basis test have been upheld.


Originally, laws treating men and women differently were subjected to the minimal scrutiny of the rational basis test.  Laws preventing women from working in certain professions, or serving on juries, or working at night were upheld under this standard.  In the 1970’s, unable to agree on whether gender distinctions should be subject to strict scrutiny or to the rational basis test, the Court developed an intermediate standard.  It held that classifications based on gender must serve important government objectives and must be substantially related to those objectives.  In recent years the Court has made the test closer to strict scrutiny.  In the 1996 case of United States v. Virginia, the Supreme Court held unconstitutional the exclusion of women from a state military college.  Using strong language, the Court declared: “parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action…” and “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females.”  This standard will make it very difficult to justify almost any different treatment based on gender.


C.  What Constitutes Discrimination


1.  Intent v. Impact


Laws that that make distinctions based explicitly on race or gender will be deemed discriminatory.  They will almost certainly be held unconstitutional, especially if they burden a racial minority or women.  Laws that make distinctions based on race and burden both whites and blacks are also unconstitutional.  For example, a state may not prohibit inter-racial marriages, or deny child custody to a couple because they are of different races.  Also, as mentioned above, any laws requiring segregation of the races will be held unconstitutional.


Some laws, however, are neutral on their face, but may have a discriminatory impact on women and minorities.  For example, a law requiring all police officers to be a certain minimum height would have a discriminatory impact on women, since fewer women than men could meet the requirement.  The Supreme Court has held, however, that discriminatory impact alone does not make a law unconstitutional.  In Washington v. Davis, the Court upheld a test required of applicants to the Washington D.C. police force, even though a higher percentage of blacks than whites failed it.


In cases of a neutral law that has a discriminatory effect, the Court held that to challenge the law, opponents must show that it was passed specifically for the purpose of discrimination.  Proving that a law was passed for a discriminatory purpose is very difficult.  The Court has held that mere awareness that the law will have an unequal impact is not enough to prove intent.  The Court upheld a law that gave state preferences in hiring to military veterans, even though it had been clear at the time of its passage that it would not only give an advantage to veterans, but would also have a discriminatory impact on women.  As long as the purpose of the law was to benefit veterans and not to harm women, it would be allowed.


Some civil-rights statutes have been interpreted differently than the equal protection clause in this regard.  Title VII of the 1964 Civil Rights Act has been held to prohibit employment rules that have a disparate effect on minorities and women, unless the employer can show that they are necessary to the business.  Title VII and other civil rights statutes will be discussed in another chapter.


2.  Affirmative Action


Affirmative Action, or the practice of using racial or gender classifications to benefit minorities and women, has proven to be a contentious issue for the last twenty-five years.  The Supreme Court has become less and less tolerant of such programs, and has now held that they must all be subjected to strict scrutiny.  In recent years, the Court has struck down federal, state, and local governmental programs that set aside certain percentages of contracts for minority-owned business.  It is unclear whether affirmative action programs in any form will survive.


In order to pass the strict scrutiny test, the government must show that there is a compelling state interest for the program.  One such claimed interest is to remedy past discrimination.  The Court has approved such a reason, but only when the discrimination was practiced by the government itself.  In such cases, the government may agree to or may be ordered to hire individuals who had been discriminated against.  Further, the government may grant preferences to members of the same minority group, even though they were not themselves victims.  The Court has not, however, allowed affirmative action to remedy past discrimination in an entire field or industry if the particular governmental entity was not itself guilty of discrimination.


Another claimed governmental interest to support affirmative action, enhancing diversity, is used by some public colleges and universities.  These institutions maintain that education is improved in an environment where there are different types of people with different experiences, both as students and as faculty.  Such institutions maintain that they may use race as one of several factors in admissions and hiring, in order to promote such diversity.  The Court has not yet ruled whether this is an acceptable governmental interest to justify affirmative action.