Equal protection should mean equal opportunity! In reaching this assertion, it is important to outline where we have come in terms of the 14th Amendment’s equal protection clause, and where we should be with regards to not just assessing laws for discriminatory intent, but also the disparate impact that laws may have that wrongly placed minority groups or protected classes at a disadvantage.

The equal protection clause was created by the post-Civil War amendments (thirteenth, fourteenth, and fifteenth) as a reaction to the slavery and the Civil War. However, as Plessy v. Ferguson (1896) illustrated early on, the notion of equal protection was distorted in ways that allowed a discriminatory and segregationist agenda to thrive. The resulting separate, but equal interpretation created a system where African-Americans and Caucasian-Americans were separated with the justification that both races would have access to the equal resources and facilities. However, African-American facilities were not given the funding to be equal, and resources during Jim Crow were not remotely close to equal opportunity. Brown v. Board of Education (1954) was the landmark case to right the wrongs of Plessy v. Ferguson, starting with how public education was administered.

However, even after reaching a landmark decision such as Brown v. Board of Education, the Court has been reluctant to progress on to forbid government policies that lead (intentionally or not) to racial disparities. The lack of progress on this front is exemplified by laws which on their face do not have clear evidence of discriminatory intent, but still have an unintentional disparate impact. A couple illustrative cases that the Supreme Court has decided are Arlington Heights v. Metropolitan Housing Corp. and Washington v. Davis. Both cases said that the laws did not have on their face a discriminatory intent. However, in both scenarios the Court was reluctant to consider the disparate impact as a determinative part of equal protection. Rather, the Court stated that the impact merely has evidentiary value.

On the criminal law side, equal protection is limited by the Court when it comes to disparate impact and convictions/death sentences. In McClesky v. Kemp, the Court stated that the Baldus study presented by the defense failed to prove that Georgia’s legislature and executive branch violated equal protection. Another example is in the case of Hernandez v. New York, where it was deemed that a strict scrutiny review was not required for Latino jurors who were being prevented from weighing in on the criminal trial. While this scenario appears like a Batson type challenge (due to the racially motivated intent behind the excusals), it was deemed okay by the Court.

In both the civil and criminal contexts, the Court is unwilling to extend the standard of review of legislative action (federal and state) from rational basis to strict scrutiny (requiring proof of a compelling state interest that is achieved through the least restrictive means possible) or even intermediate scrutiny (important/significant state interest that substantially relates to the state interest). A reason that has been given is the reluctance of the Court to rely on empirical data, due to its possible skewing of the information. I do not, however, find this reluctance to be a persuasive reason for keeping cases that involve disparate impact at such a deferential level of scrutiny. It is highly important to ensure that laws that marginalize or intend to marginalize minorities are put under a closer microscope than they currently are. For example, voter ID laws should be placed under strict scrutiny, as it can be noted that the intent and impact of many of the voter ID laws are to make voting difficult for minorities, specifically the elderly, who may not have as much as an identification card due to no longer driving a car or needing to drive (if living in a large city and access to public transportation).

As a country, we have made a substantial amount of progress to try and correct the ills of the past, but there is a substantial amount of ground to be gained. The best way to start is to ensure that in any situation where there is a facially discriminatory law, or a law applied in a discriminatory manner, or a law that can be analyzed on an objective basis to have a disparate impact, there must be a higher level of review than for the government to simply provide a rational basis to justify their agenda. At the very least, it is best to elevate scrutiny in these situations to nothing lower than intermediate, so that there is accountability at the government level for the laws that are passed, and courts become less deferential to the legislature towards these very significant and crucial matters of social justice.

Nathan Ayala

Sources consulted:

https://www.washingtonpost.com/news/in-theory/wp/2015/09/23/heres-why-equal-protection-may-not-protect-everyone-equally/?utm_term=.284a918a578b

https://www.law.cornell.edu/supct/html/89-7645.ZS.html

http://www.americanbar.org/publications/gp_solo/2014/november_december/the_meaning_equal_protection_then_now_and_tomorrow.html