Note: This is an educational course, not legal advice.
Most laws today do not mention race or sex. What if a law is neutral on its face but falls more heavily on one group? After Brown, this became the central question of equal protection.
Why it works
Why require purpose? The Court reasoned that almost every law, from taxes to licensing to tests, affects groups unequally in some way; a pure impact rule would put a great many laws in doubt, and choices about impact belong to legislatures, which have adopted impact standards in some statutes. Critics answer that purpose is hard to prove and that impact can carry forward past discrimination. Both arguments appear in the opinions. How is purpose proved? Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) listed kinds of evidence: the impact itself (sometimes, as in Yick Wo v. Hopkins (1886), so stark it can only be explained by race), the historical background, the sequence of events, departures from normal procedures or usual standards, and statements by decision-makers. Personnel Administrator of Massachusetts v. Feeney (1979) added that purpose means acting "because of," not merely "in spite of," a law's effect on a group.
Key idea
A facially neutral law violates equal protection only if adopted or applied with discriminatory purpose (Washington v. Davis (1976)). Disparate impact alone is not enough under the Constitution, though it is evidence (Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)) and some statutes, like Title VII, reach impact. Discriminatory enforcement is unconstitutional (Yick Wo v. Hopkins (1886)).
Worked example: A hiring test
A city fire department uses a strength test that more women than men fail. A woman sues under the Equal Protection Clause and shows only the pass rates. Result?
- The test is neutral on its face.
- Under Washington v. Davis and Feeney, she must show the city adopted it because of its effect on women.
- Pass rates alone are not enough under the Constitution. A Title VII claim, which looks at impact, could be different.
Answer: The constitutional claim fails without proof of purpose; a statutory claim may differ.
Worked example: Evidence of purpose
A county moves its only polling place from the town center to a distant site the week after a new group of voters registers, skipping its usual public hearing. Which Arlington Heights factors does this touch?
- The sequence of events (right after registration).
- A departure from normal procedures (no hearing).
- The impact on the group would also be considered.
Answer: Sequence of events, procedural departures and impact.
Common mistake
Thinking unequal results prove a constitutional violation. Under the Constitution, purpose must be shown; disparate impact matters as evidence and under some statutes, such as Title VII of the Civil Rights Act of 1964. Quick check: is the claim under the Constitution or under a statute?