Suspect Classifications Based on Race
By and large, the suspect classifications most frequently at issue are racial classifications. Traditionally, race and national origin were the only suspect classifications. For a time, however, it appeared that alienage would be viewed as a suspect classification as well, and classifications based on alienage would therefore be subjected to the strict scrutiny standard of review. However, such extensive exceptions have been made to the use of strict scrutiny in cases involving laws which discriminate based on alienage that it too has essentially been relegated to the realm of intermediate scrutiny (with laws that discriminate on the basis of gender). So far, no classifications other than those based on race and national origin have been squarely labeled “suspect” by the Supreme Court, but it is important to know that the door is open. It is also important to note that while no other types of classifications have been deemed “suspect,” the same strict scrutiny standard applied to these classifications is also applied to laws which burden fundamental rights regardless of who is burdened or whether a suspect classification is used.
In order to apply the strict scrutiny standard based on the use of a racial classification, the classification must be (1) purposeful, and (2) invidious. We will address each in turn.
EXAMPLE: (1) Westernstate passes a law which mandates that “no person who was born in Japan shall be eligible for jury service.” This law explicitly discriminates on the basis of national origin and no independent showing of discriminatory intent is required. The law will be subject to strict scrutiny, which most likely means that it will be struck down.
EXAMPLE: (2) A law requires all city students be tested at the beginning of each school year to determine which classes they will take. Although the school district has approximately equal numbers of white and black students, a disproportionate number of black students are placed in “Special Education” classes. Absent a showing of discriminatory intent, the law will not be subjected to strict scrutiny. However, the disparate impact can be used as evidence in an attempt to show a discriminatory intent. If the discriminatory intent is found by the court, then the law will be subjected to strict scrutiny.
EXAMPLE: (3) A city ordinance requires that all residents making alterations to their homes first obtain permission from the city council. In the past three years, approximately 98% of the requests made by white home owners have been approved while less than 5% of the requests by non-whites have been approved. This racially discriminatory administration of the facially neutral law could almost certainly be used to show that the law is purposefully discriminatory.
state of Wyorado passes a law mandating that “all citizens with
brown eyes must pass a written test and a driving test to receive their
driver’s license” while all other citizens need pass only
a written test. Although the discrimination is purposeful on the face
of the statute, it is not invidious, as “brown-eyed persons”
do not comprise a “discrete and insular minority” such that
the extra protection afforded by strict scrutiny is required. Mere rational
basis review will be applied to this law. (Of course, this does not
mean that the law will stand. The state will still have to show a rational
purpose behind this discrimination against brown eyed people.)
Is awarded the primary federal contract for the construction of several
government buildings in downtown Shakesville. BrunoCo. solicits bids
for the pouring of concrete for the buildings. Bee, Inc. submits the
lowest bid, but BrunoCo. hires Louis Concrete instead. The terms of
BrunoCo.’s federal contract provide additional compensation if
BrunoCo. hires subcontractors certified as small businesses controlled
by “socially and economically disadvantaged individuals,”
and Louis Concrete is so certified. Federal law requires the additional
compensation clause and further requires that the clause indicate that
“the contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic Americans, Native Americans,
Asian Pacific Americans, and other minorities, or other individuals
found to be disadvantaged by the Small Business Association." This
affirmative action program must pass strict scrutiny or be struck down
as an Equal Protection violation.
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