Race and the Framework of Review Flashcards
Summary of Current state of the law
a) Racial Discrimination is suspect and subject to strict scrutiny (Korematsu, Loving - standard cite)
i) State must have a compelling interest
(1) Very little deference is made to the original determinations when challenged.
ii) State must use least restrictive alternative iii) Facially race neutral laws can be unconstitutional if administered in a discriminatory way iv) If no intentional discrimination but discriminatory impact, rational basis. Washington v. Davis. v) Race as a proxy can be constitutional if state has compelling interest
Korematsu v. United States (1944)(p.1324):
internment of Japanese Americans
a) Held: Court held that the President and Congress did not go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent.
i) But established Rule: Strict Scrutiny Standard: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” (Suspect Classification) Courts must subject them to the most rigid scrutiny
(1) despite this calling for strict scrutiny, the court noted that during wartime, the Court will give heightened deference to military authorities.
Yick Wo v. Hopkins
Discriminatory Application:
a) Rule: Discriminatory application of a facially constitutional law can be the basis of a constitutional challenge
i) The state cannot do by legislation what it cannot do by official action.
ii) Relevance to dormant commerce clause: will look beyond statute and look at outcomes - is it protectionist?
Loving v. Virginia (1967)(p,1349)
a) Virginia law prohibiting marriage between whites and blacks.
i) VA trying to argue different from Korematsu because they are treating people on both sides of the racial like the same.
b) Rule: The very fact that this is a racial classification produces heighten scrutiny.
i) EPC demands that racial classifications be subjected to the most rigid scrutiny. If they are to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate.
ii) Interesting: “Marriage is one of the basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statues surely denies due process”
- Palmore v. Sidoti (1984)(p.1352)
interracial couple custody dispute
a) Rule: Racial classification of a certain kind, and because this is a radical classification of that kind it is invalid.
i) Once there is a racial classification that moves it to strict scrutiny. Then the state’s goal is suspect and the state has to show a compelling interest.
ii) This case is a good illustration of the idea that reasons that might otherwise be permissible become impermissible under strict scrutiny.
(1) Trial judge might have not wanted to conscript the child to the frontline of racial tension in a world where racism still exists.
Washington v. Davis (1976)(p.1354)
- Laws that have a racially disproportionate impact:
a) Test for higher level police force members (wanted a police force with a certain level of written and verbal skills) resulted in a disproportionate number of black applicants failing the test. Court held the recruiting procedures did not violate EPC
b) Rule: Discriminatory effect, without discriminatory intent, does not get heightened scrutiny. when we have a legitimate goal applied even handedly that produces an effect of racial disparity (disproportional impact) = rational basis.
i) This case is controversial, but it is the law
c) Schauer: There is an absolutely crucial difference between what constitutes a direct constitutional violation and what a legislature may make into a legal violation by virtue of that legislation
i) Ollie’s BBQ is free to discriminate according to the constitution. Congress is free to make laws about what non-governmental entities can and cannot do. Ollie’s BBQ violated statute but not con law. ii) If Congress wants to say that discriminatory effect is a violation, or imposes burdens on the institution, it can.
iii) Difference from Yick Wo: there are circumstances under which statistical disparity will be sufficient to make a strong case for discriminatory intent.
(1) That is, given the underlying population (who are engaged in the laundry business - i.e., the base rate) there is no explanation for the outcome other than intentional discrimination.
(2) In Davis, no one saying this is statistically impossible unless the scorers of the exam are intentionally discriminating. Without discriminatory intent the constitution is not implicated
Personnel Administrator v. Feeny (1979)(1363)
a) A MA law gave hiring preference to veterans applying for state civil service positions. Feeny, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores.
b) Court held that the law did not discriminate against women and therefore did not violate the EPC
i) It was clear that if you give a benefit to veterans, it will benefit men. But the court says, so what? Mass was trying to help veterans not men – mere foreseeability absent a showing of intentionality does not meet the test
(1) The cause of the decision was not to hurt women, even though it was the consequence.
(2) In Yick Wo, it would be hard to find a legitimate justification that would explain the disparity, i.e. it was the cause and the consequence to hurt Chinese operators.
