Terms:

Invidious Discrimination:
Discrimination based on some prejudice. Discrimination which is arbitrary, irrational and not reasonably related to a legitimate purpose. Black’s Law Dictionary, 6th Ed., West Publishing Co., 1990.

De Jure:
Literally “of the law” or “by law,” to establish something de jure is to have it established as a matter of law. Contrast with de facto which means, roughly, “in fact.” De jure segregation exists when there is a discriminatory purpose, whereas de facto segregation exists when the segregation is inadvertent or caused by economic or social conditions which are not part of any state action.

Affirmative Action:
An affirmative action program is a program designed as a means of remedying discriminatory practices in minority hiring. Age, sex, race, color and creed are the usual factors in such programs. These programs can be aimed at remedying practices by private employers, state or federal employers, or state or federal contracts.

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 which 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.

Purposeful Discrimination

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 which 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.

Invidious Discrimination

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 City of Richmond v. J.A. Croson Co, 488 U.S. 469 (1989). Shortly after Croson, in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), the Supreme Court applied intermediate scrutiny, and not strict scrutiny, to a race-conscious "affirmative action" act of Congress. However, with the 1995 decision of Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), it was made clear that federal laws, like state laws, will be subjected to strict scrutiny when racial classifications are used, whether the laws are aimed at helping or hurting a minority class.

EXAMPLE: BrunoCo. Is awarded the primary federal contract for the construction of several government buildings in downtown Shakesville. BrunoCo. solicits bids for the pouring of concrete for the buildings. Bee, Inc. submits the lowest bid, but BrunoCo. hires Louis Concrete instead. The terms of BrunoCo.’s federal contract provide additional compensation if BrunoCo. hires subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals,” and Louis Concrete is so certified. Federal law requires the additional compensation clause and further requires that the clause indicate that “the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or other individuals found to be disadvantaged by the Small Business Association." This affirmative action program must pass strict scrutiny or be struck down as an Equal Protection violation.