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Informing
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April 27, 2023
Equal Protection: Strict Scrutiny of Racial Classifications
Under the Equal Protection Clause of the Fourteenth
Amendment, [n]o State shall ... deny to any person within
its jurisdiction the equal protection of the laws. The same
equal protection obligation applies to the federal
government through the Fifth Amendment. In general, the
rule governs claims that the government is improperly
treating individuals or groups differently. In most contexts,
the government only has to show that distinctions it draws
in law or policy are rational, rather than arbitrary. However,
the Supreme Court has held that classifications based on
race call for enhanced safeguards, known as strict
scrutiny, under the Equal Protection Clause. This In Focus
outlines that analysis.
When Strict Scrutiny Applies
When a statute, regulation, or other government action
distributes burdens or benefits based on race, ethnicity, or
national origin, courts will impose a rigorous, strict
scrutiny test to decide whether it violates constitutional
equal protection principles. (While courts apply strict
scrutiny in other contexts, including to decide whether
content-based restrictions on speech comport with the First
Amendment, this In Focus limits its discussion to racial
classifications under the Equal Protection Clause.) To pass
the strict scrutiny test, a law must be narrowly tailored to
serve a compelling government interest.
The same test applies whether the racial classification aims
to benefit or harm a racial group. Strict scrutiny also applies
whether or not race is the only criteria used to classify. For
example, if a grant program prioritizes three applicant
groups: veterans, people with disabilities, and members of a
minority racial group, the racial preference triggers strict
scrutiny, even though it is not the only preference.
Similarly, if race is a determinative factor in deciding who
gets a benefit, the benefits program must pass strict
scrutiny, even if nonracial factors also play a part. Benefits
for federally recognized Indian tribes present a special case;
such measures may hinge on a political status-tribal
membership-rather than race.
Equal protection principles limit only intentional race-based
actions. Classifications that have an unintentional effect on
a racial group (sometimes called a disparate impact) are not
subject to strict scrutiny. A government benefit offered
based on income or home ownership, for example, would
not face strict scrutiny even if members of a particular
racial group less often qualify for the benefit. Race-based
classifications affording no benefits or burdens will not be
subject to strict scrutiny. Collecting racial demographic
data, for example, rarely implicates equal protection.
When strict scrutiny applies, the government has the burden
of proving both a compelling interest and narrow tailoring,
and neither is easy to do.
A CompeIling G overn ment Interest and
a Strong Basis in Evidence
Typically, racial classifications in legislation seek to
remedy past discrimination. This goal can qualify as a
compelling government interest. In practice, courts have
viewed this interest as more compelling when the aim is
correcting past government discrimination, or government
participation in discrimination. The Supreme Court has
stated, although arguably not as part of a controlling
majority holding, that remedying general, societal
discrimination is not a sufficiently compelling interest to
satisfy strict scrutiny. See, e.g., Shaw v. Hunt, 517 U.S. 899,
909-10 (1996); City of Richmond v. J.A. Croson Co., 488
U.S. 469, 499 (1989) (plurality op.).
When the government aims to remedy discrimination, it
must prove that there was in fact discrimination to establish
a compelling government interest. In such cases, the
Supreme Court has required that there be a strong basis in
evidence-that is, an extensive and specific record in
support. City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989). The evidence must align with the challenged
remedial program. If a state government gives a
construction contracting preference to Black and Asian-
owned businesses, for example, the government must
present evidence of discrimination against Black-owned
construction businesses and Asian-owned construction
businesses in that state's construction industry.
What types of evidence are courts looking for? When it
comes to legislative action, courts have considered
legislative findings, reports to Congress, testimony, and
floor speeches-in short, the whole legislative record. In
contrast, statements made after a law's enactment, and
evidence not before legislators, cannot generally be used to
show lawmakers' remedial aims.
Statistical evidence also may be important. Courts have
sometimes cited agency data, congressional studies, or
academic research included in the legislative record.
Hearings and expert testimony might introduce this
statistical evidence and illustrate its significance. Courts
sometimes treat anecdotal evidence as relevant, particularly
in showing that a statistical disparity is likely the result of
discrimination rather than benign factors. However, courts
have not viewed conclusory assertions by legislators as
establishing a strong basis in evidence.
It is hard to say how much evidence is needed; courts
evaluate each record in context. To justify a nationwide](ViewImageLocal?handle=hein.crs/govelkx0001&div=1&collection=&method=preview&ext=.png&size=3)
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