Equal Protection

Introduction

The Equal Protection Clause of the Fourteenth Amendment provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Ratified in 1868, the Equal Protection Clause is one of the most significant provisions in the Constitution, prohibiting state governments from discriminating against individuals or groups without adequate justification. The clause has been the foundation for landmark civil rights decisions, including Brown v. Board of Education (1954), which ended racial segregation in public schools.

The Equal Protection Clause was enacted as part of the Reconstruction Amendments to protect the civil rights of newly freed African Americans. Its language — “any person” — extends beyond citizens to all persons within a state’s jurisdiction. The clause does not require identical treatment for all persons but requires that similarly situated individuals be treated alike, subject to appropriate constitutional justification for differential treatment.

Tiers of Scrutiny

The Supreme Court has developed a multi-tiered framework for evaluating equal protection claims. The level of scrutiny — the degree of judicial deference to the government’s classification — depends on the type of classification and the nature of the right affected.

Strict scrutiny applies to classifications based on race, national origin, and alienage, and to classifications that burden fundamental rights. Under strict scrutiny, the law must be narrowly tailored to serve a compelling government interest. The government bears the burden of proving that the classification is necessary to achieve a compelling objective. Strict scrutiny is often described as “strict in theory, but fatal in fact,” though the government occasionally satisfies it.

Intermediate scrutiny applies to classifications based on gender and illegitimacy. Under intermediate scrutiny, the law must be substantially related to an important government interest. The government must show that the classification serves an important objective and that the means chosen are substantially related to achieving that objective.

Rational basis review applies to all other classifications, including age, disability, and economic regulations. Under rational basis review, the law need only be rationally related to a legitimate government interest. This deferential standard virtually always results in the law being upheld, as courts will accept any reasonably conceivable set of facts that could justify the classification.

Suspect Classifications

Race is the paradigmatic suspect classification. The Supreme Court has subjected racial classifications to strict scrutiny since Korematsu v. United States (1944), though the outcome in that case upheld the internment of Japanese Americans during World War II. In Palmore v. Sidoti (1984), the Court held that racial classifications are subject to the most rigid scrutiny, even when they purport to benefit the classified group.

National origin classifications are treated similarly to racial classifications. Courts examine whether the classification discriminates on the basis of ancestry or ethnicity. Alienage classifications — distinctions between citizens and non-citizens — are subject to strict scrutiny when state laws discriminate against non-citizens, though federal classifications are subject to rational basis review under the plenary federal power over immigration.

Gender classifications are subject to intermediate scrutiny. In Craig v. Boren (1976), the Court announced that gender classifications must serve important governmental objectives and be substantially related to achieving those objectives. In United States v. Virginia (1996), the Court applied an “exceedingly persuasive justification” standard, holding that Virginia could not maintain the Virginia Military Institute as an all-male institution.

Brown v. Board of Education and Desegregation

Brown v. Board of Education (1954) is the most important equal protection decision. The Court held that racial segregation in public schools violated the Equal Protection Clause, rejecting the “separate but equal” doctrine from Plessy v. Ferguson (1896). Chief Justice Warren’s opinion concluded that separate educational facilities are inherently unequal and that segregation generates a feeling of inferiority damaging to African American children.

Brown did not order immediate desegregation; the Court’s implementing decision in Brown II (1955) required desegregation “with all deliberate speed.” Resistance to Brown was widespread in the South, and desegregation proceeded slowly until the Court’s decision in Cooper v. Aaron (1958) and the enactment of the Civil Rights Act of 1964. Brown’s reasoning has been extended to other contexts, including the invalidation of segregation in public facilities, parks, and transportation.

Affirmative Action

Affirmative action programs that use racial classifications to benefit historically disadvantaged groups are subject to strict scrutiny. In Regents of the University of California v. Bakke (1978), the Court held that racial quotas in university admissions violate the Equal Protection Clause but that race may be considered as one factor among many in admissions decisions.

In Grutter v. Bollinger (2003), the Court upheld the University of Michigan Law School’s affirmative action program, holding that the educational benefits of diversity constitute a compelling government interest and that the program was narrowly tailored. In Gratz v. Bollinger (2003), the Court struck down the undergraduate admissions program, which awarded automatic points based on race.

In Students for Fair Admissions v. Harvard (2023), the Court overruled Grutter and held that race-based affirmative action in college admissions violates the Equal Protection Clause. The Court held that admissions programs must treat applicants as individuals and that race-neutral alternatives are available to achieve diversity.

Intent Requirement

The Equal Protection Clause prohibits intentional discrimination, not merely disparate impact. In Washington v. Davis (1976), the Court held that a law or policy that has a disproportionate impact on a racial group does not violate the Equal Protection Clause unless the plaintiff proves discriminatory intent. The impact may be evidence of intent but is not alone sufficient.

Discriminatory intent may be established through direct evidence, such as statements by decision-makers, or circumstantial evidence, including the historical background of the decision, the sequence of events leading to the law, and departures from normal procedures. The intent requirement limits equal protection challenges to laws and policies adopted for discriminatory reasons, preserving the government’s ability to adopt policies with differential impact.

Equal Protection and Other Classifications

The Equal Protection Clause also protects against discrimination based on other classifications. Sexual orientation discrimination is subject to heightened scrutiny, as the Court held in Romer v. Evans (1996) and Lawrence v. Texas (2003) and applied in United States v. Windsor (2013) and Obergefell v. Hodges (2015), which recognized same-sex marriage as a constitutional right.

Disability discrimination is evaluated under rational basis review, though the Americans with Disabilities Act provides statutory protection beyond the constitutional minimum. Age discrimination is also subject to rational basis review. Wealth discrimination is not a suspect classification, though classifications that burden fundamental rights like access to courts may receive heightened scrutiny.

Conclusion

The Equal Protection Clause prohibits state governments from denying any person the equal protection of the laws. Through the tiers of scrutiny framework, courts evaluate whether government classifications are justified by legitimate, important, or compelling interests. The clause has been the foundation for the nation’s most important civil rights decisions, from the abolition of school segregation to the recognition of marriage equality. The Equal Protection Clause remains a vital constitutional safeguard against discrimination, requiring the government to justify differential treatment and ensuring that all persons are treated with equal dignity and respect under the law.