Discriminatory Purpose vs. Effect (pp. 657–676)
Rule: government action may not be facially classified but still have disproportionate impacts against certain classes of people. Sometimes that impact is unintentional, sometimes intentional.
Standard: for a facially neutral government action to trigger review under a heightened level of scrutiny (strict or intermediate), the claimant must prove both:
- The government action has a discriminatory impact on a certain class; and
- The action itself was enacted with a discriminatory purpose.
Facially neutral = discriminatory impact + discriminatory purpose. Always need to prove both.
Foundational Framework
- Washington v. Davis (1976) — established the framework. The Court will not strike down a racially neutral action just because it affects one class more than another. Disproportionate impact is not irrelevant; it can be used to prove discriminatory purpose (see Yick Wo).
- This analysis is limited to EPC violations. Congress can allow discriminatory impact alone to demonstrate discrimination by statute (e.g., Title VII, ADEA, ADA).
Applications
- McCleskey v. Kemp (1987) — application to judicial discretion; statistics alone insufficient.
- City of Mobile v. Bolden (1980) — application to elections; discriminatory impact alone does not suffice.
- Rogers v. Lodge (1982): at-large election systems can be unconstitutional with adequate proof of discriminatory purpose.
- Palmer v. Thompson (1971) — even a discriminatory purpose without disparate impact generally does not violate the EPC (very rare scenario).
- Distinguished from Loving v. Virginia: Loving's statute was facially discriminatory; Palmer's closure was not.
- Personnel Administrator of Massachusetts v. Feeney (1979) — foreseeable discriminatory effect ≠ discriminatory purpose. Discriminatory purpose = acting "because of" a discriminatory purpose; not merely "in spite of" a discriminatory effect.
- Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) — discrimination need not be the sole reason; must be a motivating factor.
Arlington Heights Factors (proof of motivating factor)
- Disproportionate impact — whether the action bears more heavily on specific classes (rarely sufficient on its own).
- Historical background — series of official actions taken for invidious purposes.
- Specific sequence of events — events leading up to the decision.
- Procedural or substantive departures — deviation from normal procedures.
- Legislative or administrative history — contemporary statements, minutes, reports.
Burden-Shifting Framework for Discriminatory Purpose
- Challenger must prove discrimination was a motivating factor.
- State actor must prove it would have acted anyway, even without the discriminatory motive.
- If the state actor persuades the Court it would have acted anyway, the inquiry is over and rational basis applies.
- If not, the challenger has proven the discriminatory element; if there is also discriminatory impact (likely), apply the appropriate heightened level of scrutiny.
When Discriminatory Impact Alone Can Prove Discriminatory Purpose (rare)
- Yick Wo v. Hopkins (1886) — facially neutral ordinance denied 199/200 petitions of Chinese laundromat owners; only rational conclusion was discriminatory purpose. The "res ipsa loquitur" of EPC analysis.
- Gomillion v. Lightfoot (1960) — Tuskegee redrew its boundaries to surgically exclude 395 of 400 Black residents; struck down under the 15A.