Supreme Court applies three standards of scrutiny or levels of
review to cases involving equal protection issues. These
standards are called rational, intermediate, and strict scrutiny. They
include a two-part analysis of a governmental program.
First, there is a determination of whether the governmental
program serves a valid purpose, objective, or interest.
Second is an analysis of the means the government uses to
fulfill the purpose, objective, or interest.
In many cases, a Justice will use certain key words that can
help identify the standard being used. However, a Justice may
use slightly different terminology also.
Below is a brief explanation of these standards.
rational standard of scrutiny is the least thorough standard of
scrutiny. The governmental purpose or interest may be referred
to as "legitimate." The means to achieve the
interest is reviewed to determine if it is "rationally
related" to the accomplishment of the governmental purpose,
interest. For example,
withstand equal protection review, legislation that distinguishes
between the mentally retarded and others must be rationally
related to a legitimate governmental purpose." (Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432 (1985))
of the cases in this article are reviewed under rational
The intermediate standard of
scrutiny is a more thorough analysis than rational scrutiny.
The governmental purpose, objective, or interest may be referred to as
"important." The means to achieve the interest
is reviewed to determine if it is "substantially related"
to the accomplishment of the governmental purpose or interest. For
a number of considerations -- developed in gender discrimination
cases but which carry even more force when applied to racial
classifications -- lead us to conclude that racial classifications
designed to further remedial purposes 'must serve important governmental objectives, and must be
substantially related to achievement of those objectives.'"
Califano v. Webster, supra at 317, quoting Craig v. Boren, 429 U.S.
190, 197 (1976).” (Regents
of the Univ. of Cal. v. Bakke, 438
U.S. 265, 359. (1978)
The strict scrutiny standard is
the most thorough analysis. Sometimes it is referred to as
strict in theory but fatal in fact because few governmental programs
survive strict scrutiny. The governmental purpose, objective, or
interest may be referred to as "compelling."
The means to achieve the purpose, objective, or interest is reviewed to determine if it is
"narrowly tailored" to the accomplishment of the
governmental purpose, objective, or interest. For example,
"We must decide whether the
layoff provision is supported
by a compelling state purpose and whether the means chosen to
accomplish that purpose are narrowly tailored."
(Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986))
THE COURT'S APPLICATION OF
ITS STANDARDS OF SCRUTINY.
In 1996, Justice Scalia provided an
explanation of the Court's application of its standards of scrutiny.
shall devote most of my analysis to evaluating the Court's opinion
on the basis of our current equal protection jurisprudence, which
regards this Court as free to evaluate everything under the sun by
applying one of three tests: 'rational basis' scrutiny,
intermediate scrutiny, or strict scrutiny. These tests are
no more scientific than their names suggest, and a further element
of randomness is added by the fact that it is largely up to us
which test will be applied in each case. Strict scrutiny, we
have said, is reserved for state 'classifications based on
race or national origin and classifications affecting fundamental
rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation
omitted). It is my position that the term 'fundamental
rights' should be limited to 'interest[s] traditionally
protected by our society,' Michael H. v. Gerald D., 491 U.S.
110, 122 (1989) (plurality opinion of Scalia, J.); but the Court
has not accepted that view, so that strict scrutiny will be
applied to the deprivation of whatever sort of right we consider 'fundamental.' We have no established criterion
for 'intermediate scrutiny' either, but essentially
apply it when it seems like a good idea to load the dice.
So far it has been applied to content neutral restrictions
that place an incidental burden on speech, to disabilities
attendant to illegitimacy, and to discrimination on the basis of
no problem with a system of abstract tests such as rational basis,
intermediate, and strict scrutiny (though I think we can do better
than applying strict scrutiny and intermediate scrutiny whenever
we feel like it)."
States v. Virginia et al. (94-1941), 518 U.S. 515 (1996))
is disheartening to have a Supreme Court Justice explain the Court's
standards of review in this manner.
However, a review of numerous cases makes it impossible to
refute his statement.
As he explains, there is no established criteria for
intermediate scrutiny. Intermediate scrutiny was used in
several of the
Adarand and the supporting decisions. However, it cannot be
determined what the Justices did to reach their opinions. For
strict scrutiny, the Justices seem to have a better idea of what to
do. Strict scrutiny also was used in the Adarand and
the strict scrutiny analysis appears to be controlling at the moment
for race- or ethnic-based classifications, a framework for the
analysis is provided below.
THE STRICT SCRUTINY
explained the two-step process of a strict scrutiny analysis by
are two prongs to this examination. First, any racial
classification 'must be justified by a compelling governmental
interest.' Palmore v. Sidoti, 466 U.S. 429 , 432 (1984); see
Loving v. Virginia, supra, at;
cf. Graham v. Richardson, 403 U.S. 365 , 375 (1971) (alienage).
Second, the means chosen by the State to effectuate its purpose
must be 'narrowly tailored to the achievement of that goal.'
Fullilove, supra, at 480. We must decide whether the
layoff provision is supported by a compelling state purpose and
whether the means chosen to accomplish that purpose are narrowly
tailored." (Wygant v. Jackson Board of Education,
476 U.S. 267 @274 (1986))
elimination of the effects of racial or ethnic discrimination is a
compelling governmental interest.
However, the government needs to prove the existence of the
compelling interest which is evidence of the effects of
Justice O'Connor explains that
"While the States and their
subdivisions may take remedial action when they possess evidence
that their own spending practices are exacerbating a pattern of
prior discrimination, they must identify that discrimination, public
or private, with some specificity before they may use race-conscious
@ p. 505)
So how does one prove a compelling
interest? It seems that
a simple cause and effect relationship should suffice. Even here, mistakes have been made by governments.
For example, Justice Powell criticized a Michigan school
board and union because they sought to establish a direct comparison
of the number of minority faculty to the number of minority students to
show the effects of discrimination.
are numerous explanations for a disparity between the percentage of
minority students and the percentage of minority faculty, many of
them completely unrelated to discrimination of any kind.
In fact, there is no apparent connection between the two
groups." (Wygant @ p. 276)
Justice O'Connor criticized the City of Richmond's efforts to
compare contracts awarded to minority firms and the minority
population of the city.
on the disparity between the number of prime contracts awarded to
minority firms and the minority population of the city of Richmond
is similarly misplaced."
(Croson @ p. 501)
key to proving a compelling interest is a comparison between like
For example, the number of contracts awarded and the number
of qualified contractors.
The Justices provide some direction for a proper comparison.
For example, Justice Stewart said
"The Court of Appeals was
correct in the view that a proper comparison was between the
racial composition of Hazelwood's teaching staff and the racial
composition of the qualified public school teacher population in
the relevant labor market."
District v United States 433 U.S.
299 (1977) at p. 308)
where special qualifications are necessary, the relevant statistical
pool for purposes of demonstrating discriminatory exclusion must be
the number of minorities qualified to undertake the particular
(Croson @ p. 501)
there is a significant statistical disparity between the number of
qualified minority contractors willing and able to perform a
particular service and the number of such contractors actually
engaged by the locality or the locality's prime contractors, an
inference of discriminatory exclusion could arise. In such a case,
the city would have a compelling interest in preventing its tax
dollars from assisting these organizations in maintaining a racially
segregated construction market." (Croson,
@ p. 503 )
Narrowly Tailored Remedy
a compelling interest is proven, the selected remedy must be
tailored to fulfill the government's specific goal.
The ideal is to identify only those affected by
discrimination and to eliminate the effects of the
discrimination--and no more.
Justice Powell pieced together an example of a narrow
tailoring process in Fullilove
"When reviewing the selection
by Congress of a race-conscious remedy, it is instructive to note
the factors upon which the Courts of Appeals have relied in a
closely analogous area. Courts reviewing the proper scope of
race-conscious hiring remedies have considered (i)
the efficacy of alternative remedies, NAACP
v. Allen, 493 F.2d 614, 619 (CA5 1974); Vulcan
Society Inc. v. Civil Service Comm'n, 490 F.2d 387, 398 (CA2
1973), (ii) the planned duration of the remedy, id.
at 399; United States v Wood,
Wire & Metal Lathers Local 6, 471 F.2d 408, 414, n. 12
(CA2), cert. denied, 412 U.S. 939 (1973), (iii) the relationship between
the percentage of minority workers to be employed and the percentage
of minority group members in the relevant population or workforce, Association
Against Discrimination v. Bridgeport, 594 F.2d 306, 311 (CA2
1979); Boston Chapter NAACP v. Beecher, 504 F.2d 1017, 1026-1027 (CA1
1974), cert. denied, 421
U.S. 910 (1975); Bridgeport
Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d
1333, 1341 (CA2 1973) cert.
denied, 421 U.S. 991 (1975); Carter
v. Gallagher, 452 F.2d 315, 331 (CA8) (en banc), cert.
denied, 406 U.S. 950 (1972), and (iv) the availability of waiver
provisions if the hiring plan could not be met, Associated
General Contractors, Inc. v. Altshuler, 490 F.2d 9, 18-19 (CA1
1973), cert. denied, 416
U.S. 957 (1974)." (Fullilove @ 510)
Justice Brennan outlined factors to review and said
"In determining whether
race-conscious remedies are appropriate, we look to several factors,
including the necessity for the relief and the efficacy of
alternative remedies; the flexibility and duration of the relief,
including the availability of waiver provisions; the relationship of
the numerical goals to the relevant labor market; and the impact of
the relief on the rights of third parties."
(United States v.
Paradise, 480 U.S. 149 @ p. 171)
this assistance provided by the Court, and with other bits and
pieces of information from the Court's decisions, we can patch
together a framework to determine if a remedy is narrowly tailored.
This framework includes
use of alternative remedies before resorting to a race- or
of the proposed remedy,
for a waiver from the program or the flexibility of the program,
of the class to receive the preference, and
placed on innocent third parties.
Court looks to see if the government used alternatives to race-based
or ethnic-based remedies to eliminate the effects of discrimination.
For example, if minority firms lack the capital needed to
compete, an alternative would be a financing program designed to
assist small businesses.
This would have the effect of assisting minority small
Justice O'Connor made this point in Croson
where she said
of the barriers to minority participation in the construction
industry relied upon by the city to justify a racial
classification appear to be race neutral. If MBE's
disproportionately lack capital or cannot meet bonding
requirements, a race-neutral program of city financing for small
firms would, a fortiori, lead to greater minority
(Croson @ p. 507)
in the absence of evidence of discrimination, the city has at its
disposal a whole array of race-neutral devices to increase the
accessibility of city contracting opportunities to small
entrepreneurs of all races. Simplification of bidding procedures,
relaxation of bonding requirements, and training and financial aid
for disadvantaged entrepreneurs of all races would open the public
contracting market to all those who have suffered the effects of
past societal discrimination or neglect. Many of the formal
barriers to new entrants may be the product of bureaucratic
inertia more than actual necessity, and may have a
disproportionate effect on the opportunities open to new minority
firms. Their elimination or modification would have little
detrimental effect on the city's interests and would serve to
increase the opportunities available to minority business without
classifying individuals on the basis of race. The city may also
act to prohibit discrimination in the provision of credit or
bonding by local suppliers and banks."
(Croson @ p. 509)
of the Remedy
This part of the analysis is not
well-documented or at least not well-documented in this line of
cases. However, it
appears that the Court will look to determine if there is a time
limit on the program. For
example, Justice Powell said
"The 103 (f) (2) set-aside is
not a permanent part of federal contracting requirements.
As soon as the PWEA program concludes, this set-aside program
ends. The temporary
nature of this remedy ensures that a race-conscious program will not
last longer than the discriminatory effects it is designed to
eliminate. It will be
necessary for Congress to re-examine the need for a race-conscious
remedy before it extends or re-enacts 103 (f) (2)."
(Fullilove @ p.
An opportunity to
obtain a waiver from the program is often referred to as flexibility
of the program. For example, Justice Powell noted that
announced policy makes clear the administrative understanding that
a waiver or partial waiver is justified (and will be granted) to
avoid subcontracting with a minority business enterprise at an 'unreasonable' price, i.e.,
a price above competitive levels which cannot be attributed to the
minority firm's attempt to cover costs inflated by the present
effects of disadvantage or discrimination."
(Fullilove, @ p.
Identification of the Class
Another important feature of
"narrow-tailoring" is to have the program apply only to
those who have suffered from the effects of discrimination.
The closer the program is to identifying its target, the more chance
it has to survive. Key words in this part of the
analysis may include "over-inclusive" (too many
participants in the program) or "under-inclusive" (not
enough participants covered in the program). In Croson,
the city of Richmond identified the class to receive the benefit as
"Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or
@ p 478). Additionally,
"There was no geographic limit to the Plan; an otherwise
qualified MBE from anywhere in the United States could avail itself
of the 30% set-aside." (Croson
@ p. 478). In her
evaluation of the class, Justice O'Connor said
"It may well be that Richmond
has never had an Aleut or Eskimo citizen.
The random inclusion of racial groups that, as a practical
matter, may never have suffered from discrimination in the
construction industry in Richmond suggests that perhaps the city's
purpose was not in fact to remedy past discrimination."
(Croson @ p. 506)
"If a 30% set-aside was
'narrowly tailored' to compensate black contractors for past
discrimination, one may legitimately ask why they are forced to
share this 'remedial relief' with an Aleut citizen who moves to
Richmond tomorrow? The
gross overinclusiveness of Richmond's racial preference strongly
impugns the city's claim of remedial motivation." (Croson
@ p. 506)
Burden Placed on Third Parties
If one class receives a preference,
another class must pay the price.
However, Chief Justice Burger explained that
"It is not a constitutional defect in this program that it
may disappoint the expectations of nonminority firms.
When effectuating a limited and properly tailored remedy to
cure the effects of prior discrimination, such 'a sharing of the
burden' by innocent parties is not impermissible."
(Fullilove @ p.
some Justices may consider some burdens placed on innocent parties
as too harsh.
For example, Justice Powell said
"While hiring goals impose a
diffuse burden, often foreclosing only one of several opportunities,
layoffs impose the entire burden of achieving racial equality on
particular individuals, often resulting in serious disruption of
their lives. That
burden is too intrusive. We
therefore hold that, as a means of accomplishing purposes that
otherwise may be legitimate, the Board's layoff plan is not
sufficiently narrowly tailored. Other, less intrusive means of
accomplishing similar purposes - such as the adoption of hiring
goals - are available. For
these reasons, the Board's selection of layoffs as the means to
accomplish even a valid purpose cannot satisfy the demands of the
Equal Protection Clause."
(Wygant @ p. 283)
On the other hand, the loss of a job
may not harm a narrowly tailored remedy.
For example, Justice Scalia said
"And, of course, a State may 'undo the effects of past discrimination' in the sense of
giving the identified victim of state discrimination that which it
wrongfully denied him - for example, giving to a previously rejected
black applicant the job that, by reason of discrimination, had been
awarded to a white applicant, even if this means terminating the
latter's employment. In
such a context, the white jobholder is not being selected for
disadvantageous treatment because of his race, but because he was
wrongfully awarded a job to which another is entitled."
(Croson @ p. 526)
Justice may throw in another factor if it suits a purpose.
However, the above are, at least, a good starting point.
Even at that, one Justice may view an item differently from another Justice.
Additionally, as time goes by, a Justice's opinion may change
slightly or dramatically.
As Justice Scalia explained, this analysis is not scientific.