Amendment 14 — Facially Neutral Laws Implicating Suspect Classifications

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Applying the Equal Protection Clause of the Fourteenth Amendment , the Court ordinarily upholds classifications in law or government policy so long as they are supported by a rational basis. However, the Court will apply strict scrutiny to an express racial classification and will often invalidate it; similarly, it will more closely scrutinize an express classification based on sex, alienage, or whether a person was born out of wedlock.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn1amd14 " These levels of scrutiny are discussed in other essays. For assessments of racial classifications, see . For gender, see . For alienage and for nonmarital birth, see . ") In reviewing a neutral classification that is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis, the Court will apply heightened scrutiny and, often, invalidate the provision containing the classification.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn2amd14 " See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960). A law may be unconstitutional even if it does not facially discriminate on the basis of race, if it “uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470 (1982). ") But a neutral law that has a disproportionately adverse effect upon a racial group or upon another group entitled to heightened protection under the Equal Protection Clause presents a much more difficult case.

In Washington v. Davis, the Court held that someone claiming harm from the disparate or disproportionate racial impact of a race-neutral law or policy must prove the government’s intent to discriminate.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn3amd14 " Washington v. Davis, 426 U.S. 229, 242 (1976) ( “[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is [not] invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” ). Davis was decided under the Fifth Amendment’s Due Process Clause, which the Court has interpreted to incorporate equal protection principles. Bolling v. Sharpe, 347 U.S. 497 (1954). ") A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under only the lenient rationality standard.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn4amd14 " See Davis, 426 U.S. at 247–48; Rogers v. Lodge, 458 U.S. 613, 617 n.5 (1982). The Court has applied the same standard to a claim of selective prosecution allegedly penalizing exercise of First Amendment rights. Wayte v. United States, 470 U.S. 598 (1985) (holding no discriminatory purpose shown); see also Bazemore v. Friday, 478 U.S. 385 (1986) (holding existence of de facto, single-race, state-sponsored 4-H Clubs is permissible, given membership was voluntary and open to all regardless of race). ") Before Davis, lower courts had relied on a prior Supreme Court decision suggesting the racially disparate effects of government conduct alone could support a constitutional claim.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn5amd14 " The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which a five-to-four majority refused to order a city to reopen its swimming pools closed allegedly to avoid desegregation orders. See also Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). The Davis Court read Palmer to hold that there was no discrimination, because the pools were closed to black and white residents alike, and that the city’s avowed reasons—to avoid violence and economic loss— “were not open to impeachment by evidence that the councilmen were actually motivated by racial consideration.” Davis, 426 U.S. at 242–43. ") Further, the Court had upheld similar claims under certain civil rights statutes without requiring plaintiffs to prove a discriminatory purpose.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn6amd14 " Griggs v. Duke Power Co., 401 U.S. 424 (1971) (interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (same); see also Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015). But see Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (holding discriminatory intent required for claims under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866). The Davis Court affirmed Griggs’ reading of Title VII but declined to import the statutory standard for discrimination into the Constitutional standard. 426 U.S. at 238–39, 246–48 (1976). But see Gen. Bldg. Contractors Ass’n, 458 U.S. (holding that, unlike Title VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required). ") Accordingly, the lower federal courts developed a constitutional “disproportionate impact” framework within which government conduct lacking a substantial justification violated equal protection when it resulted in adverse, disparate impacts on racial minorities.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn7amd14 " See Davis, 426 U.S. at 244 n.12 (listing and disapproving cases). Cases that the Court did not cite include those in which the Fifth Circuit wrestled with the distinction between de facto and de jure school segregation. In Cisneros v. Corpus Christi Indep. Sch. Dist., the circuit court held that motive and purpose were irrelevant and that the “de facto and de jure nomenclature” were “meaningless.” 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc). After the Supreme Court reiterated the distinction between de facto and de jure school segregation in Keyes v. Denver Sch. Dist., 413 U.S. 189 (1973), the Fifth Circuit adopted the position that a decisionmaker must be presumed to have intended the probable, natural, or foreseeable consequences of his decision and therefore that a school board decision that results in segregation is intentional in the constitutional sense, regardless of its motivation. United States v. Tex. Educ. Agency, 532 F.2d 380 (5th Cir. 1976), vacated by Austin Indep. Sch. Dist. v. United States, 429 U.S. 990 (1976), cert. denied 443 U.S. 915 (1979); see also United States v. Tex. Educ. Agency, 600 F.2d 518 (5th Cir. 1979). The Court substantially constrained this form of analysis, however, in Mass. Pers. Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), it acknowledged that the foreseeability of racially disparate impacts remained evidence of proof of intent in Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979). ") Davis rejected the approach of these cases, but the Court noted that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” [8](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn8amd14 " Davis, 426 U.S. at 242. ")

The Court has since clarified how courts might identify a discriminatory intent behind a facially neutral law. Looking to a challenged local zoning decision that had a greater adverse impact on black and low-income residents than on others, the Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. explained in some detail how a court could inquire into a defendant’s motivation.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn9amd14 " 429 U.S. 252 (1977), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified as amended in 52 U.S.C.S. § 10301), as recognized in Chapman v. Nicholson, 579 F. Supp. 1504, 1514 (N.D. Ala. 1984). ") First, a plaintiff is not required to prove that discrimination was the only motive; establishing “a discriminatory purpose” among other, permissible purposes shifts the burden to the defendant to show that it would have made the same decision without the impermissible motive.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/facially-neutral-laws-implicating-suspect-classifications#fn10amd14 " Id. at 265–66, 270 n.21; see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284–87 (1977), superseded by statute, Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 30, as recognized in Rivera v. United Stat