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 that 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.
Absent a legislative intent to discriminate on the basis of race or national origin, the classification will not be suspect and therefore not subject to strict scrutiny. In some cases, a law will be facially discriminatory, meaning that it explicitly discriminates based on racial classifications. In these cases, it is not necessary to make a separate showing that there was a racially discriminatory intent. More subtly, a law that is facially neutral may be shown to have discriminatory intent based on legislative history, the law’s effect, or other facts from which intent may be inferred. Finally, some facially neutral laws which lack any racially discriminatory intent are carried out in a racially discriminatory manner. These, too, meet the “purpose” requirement, and will be subjected to strict scrutiny.
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.
The requirement that for a classification to be suspect, it must be invidious, is the main reason that only race and national origin have been categorized as suspect. The rationale is that the political process is the primary means by which different groups may protect themselves from disadvantage. But, as Justice Stone once wrote in a still apt footnote,
“prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” -
U.S. v. Carolene Products Co., 304 U.S. 144, 153 (1938).
In other words, not all forms of discrimination create this “special condition” of political impotence and thus, not all forms of discrimination warrant application of the strict scrutiny standard.
EXAMPLE: The 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.)
So, generally, only laws using classifications based on race or national origin can result in invidious discrimination, and if the discrimination is purposeful, the law will be subjected to strict scrutiny. However, the question that arises is what to do with laws that seek to remedy past discrimination by giving advantages in certain areas to certain minorities in an attempt to remedy the effects of the past discrimination. This form of "remedial" discrimination is often known as "affirmative action." Should this form of discrimination also be subjected to strict scrutiny or should it get a lower standard of review based on the fact that it is not "invidious"?
Since 1989, it has been clear that state laws imposing affirmative action are subject to the same strict scrutiny standard as state laws that disadvantage minority groups. See