Facially Neutral LAWS WITH A Discriminatory Impact PDF

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Constitutional Law II Notes on Facially Neutral Laws...

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Constitutional Law II Notes from Class Lecture Spring 2020

FACIALLY NEUTRAL LAWS WITH A DISCRIMINATORY IMPACT Rule: Strict Scrutiny is not triggered for facially race neutral policies unless π can show disparate impact and discriminatory intent/purpose. Impact alone not enough. Washington v. Davis (SCOTUS, 1976) [Strict Scrutiny Denied—Facially Neutral] – Two African American police officers (πs) filed against the then Commissioner of the District of Columbia, the Chief of the District’s Metropolitan Police Department, and the Commissioners of the U.S. Civil Service Commission. Harley and Sellers (πs) were permitted to intervene, their amended complaint asserting that their applications to become police officers had been rejected, and that the Department’s recruiting procedures discriminated on the basis of race against black applicants by a series of practices 1 including, a written personnel test which excluded a disproportionately high number of black applicants. The District Court held for Washington, but the Court of Appeals reversed on the grounds that Test 21 was unconstitutional because of its disproportionate impact on African Americans, regardless of whether the police department’s motive was to use the test to discriminate against a particular race. The United States Supreme Court granted certiorari. • Rule: A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment’s Due Process Clause only if it is shown to have both a disproportionate impact on a particular race and is motivated by invidious racial discrimination. o A non-facially discriminatory law is a violation of the Equal Protection when a discriminatory impact and a discriminatory purpose can be proven. • Holding: Test 21, the test used by the Washington, D.C. police department to screen new employees, does not violate the Fifth Amendment’s Due Process Clause 2. 1Test

21: An examination that is used generally throughout the federal service, which was developed by the Civil Service Commission, not the Police Department, and which was designed to test verbal ability, vocabulary, reading and comprehension.

o A law that is neutral on its face is not invalid simply because it may affect a greater proportion of one race than another. o Strict Scrutiny: State has the burden of proving that their process is compelling. ▪ Need some classification that race has something to do with this in order to get strict scrutiny. The πs failed to do so! o Rational Basis: Here, the test is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue. The fact that there is a discriminatory impact is not sufficient evidence of discriminatory purpose • Takeaway: The Court has frequently applied Washington v. Davis to reject equal protection challenges to facially neutral laws that have a racially discriminatory impact. A particularly important example of this is McClesky v. Kemp, in which the Court rejected an equal protection challenge to the administration of the death penalty. • Class Notes: o How much are we concerned about race? Need an invidious and classification nature. o Advice: Try to pinpoint intent to get strict scrutiny. Impact 3 is insufficient. Have to show that members of a group are discriminated individually to trigger strict scrutiny. ▪ Important: EP PROTECTS INDIVIDUALS, NOT GROUPS!

3 Effects ALONE

are not enough to grant strict scrutiny; must have effects + intent....