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[A] History [of Discrimination] Only Goes So Far
[in Equal Protection Litigation]

Melanie Kalmanson*

I. Introduction43
II. The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution43
A. History of the Equal Protection Clause44
B. Language of the Equal Protection Clause45
C. Implicit Equal Protection Clause in the Fifth Amendment47
III. Litigating an Equal Protection Violation48
A. Establishing a Class, Looking to Carolene Products “Footnote Four”51
B. Determining the Appropriate Level of Scrutiny53
C. Providing Proof of an Equal Protection Violation: History Loses Its Clout58
IV. Effects of this Ironic Treatment of History in Equal Protection Litigation60
A. Disparate Impact Claims60
B. Justifying Affirmative ActionClaims62
C. Rights Founded in Due Process Rather than Equal Protection67
V. Conclusion68


The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has become the source of several constitutional rights. As a result, it is often the topic of contentious discussions in the courts and academia. Distinct doctrine and jurisprudence accompanies the Amendment’s Equal Protection Clause and Due Process Clause, rendering each of these clauses individual sources of specific rights and remedies. Focusing on these clauses, this Article identifies a glaring inconsistency, or irony, in equal protection doctrine—specifically, how courts treat a history of discrimination in reviewing an equal protection claim. While a history of discrimination is first considered in establishing and determining the suspectness of a class, it then is ignored in determining whether an equal protection violation against that same class has occurred.

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I.   Introduction

Imagine this. You go on the first few dates with someone. Naturally, you both explain your history—where you grew up, your family dynamics, past relationships, personal struggles, your passions, and anything else you feel is important to your identity. Fast forward, and you are now in a relationship with that person. One day, your partner does something—as simple as it may seem—that upsets you due to sensitivities caused by your past. Your partner cannot understand why you are upset. It has not been too long since your first few dates. While your partner knows your past, he or she does not know you well enough yet to understand how your sensitivities manifest in day-to-day life. Then, imagine that you cannot explain the specific context of your past that gave rise to your emotion and, instead, must only talk about what happened in this instance to overcome this misunderstanding. Unproductive?

Transfer that scenario to a fundamental protection under the U.S. Constitution—specifically, the right to equal protection under the law, as guaranteed by the Fifth and Fourteenth Amendments. Essentially, as this Article explains, this is the long-standing doctrine of the Equal Protection Clause of the Fourteenth Amendment and, therefore, the implicit Equal Protection Clause of the Fifth Amendment. This Article identifies the irony in long-standing equal protection doctrine, which allows the use of a history of discrimination to establish standing for equal protection claims but precludes the same history as proof of an equal protection violation. Part II canvasses the history of the Fourteenth Amendment and provides an in-depth review of the language of the Equal Protection Clause. Part III explains perhaps the most famous footnote in U.S. Supreme Court jurisprudence and its role as the framework for establishing equal protection claims. Part IV details, through case law, the irony of excluding a history of discrimination to prove a violation of the guarantees of the Equal Protection Clause after using that history to establish a protected class. Part V explains the effect of this ironic treatment in modern topics of developing litigation. Part VI concludes.

II.   The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution

The legal equalities and fairness that define today’s American society have not always been reality in this country. Nor may the ideological America actually be modern reality. In fact, “[i]t is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.”1 Despite the shortcomings of the country in which we now live, the United States and its laws have undoubtedly

* J.D., Florida State University College of Law, magna cum laude, 2016. Thank you to Professor Courtney Cahill for motivating me to write this Article.
1. Grutter v. Bollinger, 539 U.S. 306, 345 (2003) (Ginsburg, J., concurring).

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progressed towards equality and fairness since the Declaration of Independence in 1776.2

It was not long ago that women could not vote or own property, blacks could not vote,3 and blacks were property.4 Decades, even centuries, of jurisprudence and constitutional amendments have paved the current landscape in which women and blacks are enfranchised;5 women and blacks may both own property; and women and blacks are, in theory, equal to their counterparts—men and whites, respectively—under the law.6 The Equal Protection Clause of the Fourteenth Amendment significantly contributed to this progress and served as an avenue towards equality for many groups in various contexts. This Part details the Fourteenth Amendment’s history and analyzes the language of the Equal Protection Clause.

A. History of the Equal Protection Clause

Despite the Framers’ efforts to establish this country on equality and fairness, original U.S. laws gravely undermined these principles. Even more, the Framers’ intentions contradicted their individual lives—white, slave-owning men whose wives were subordinate versus a Constitution contemplating freedom.7 For decades, the morality, legality, and natural permissibility of slavery has polarized the United States.8 Likewise, many U.S. laws were grounded on the traditional view that women were property of their husbands and second-class citizens who served specific, domestic purposes and had no concrete place in society. Women, like blacks, fought long and hard to overcome this discrimination, though their victory of hard-earned equality came much later than equality of the races.9

2. See Donald P. Comers, The Right to Vote and Its Implementation, 39 Notre Dame Law. 365, 365 (1964).
3. Id. at 368, 376-77.
4. The Fifteenth Amendment, enacted with the Fourteenth Amendment, was an effort to ban slavery in the United States. See U.S. Const. amend. XV.
5. See, e.g., id.
6. See Brown v. Bd. of Educ., 347 U.S. 483 (1954). How that practically applies is debatable. See, e.g., Pay Equity & Discrimination, Inst. For Women’s Pol’y Res., http://www.iwpr.org/initiatives/pay-equity-and-discrimination [https://perma.cc/H4BV-R8Z3] (last visited Sept. 7, 2017).
7. See Dredd Scott v. Sandford, 60 U.S. (19 How.) 393, 409-10 (1857); Erwin Chemerinsky, Constitutional Law 711 (4th ed. 2013); Stephen E. Ambrose, Founding Fathers and Slaveholders, Smithsonian.com (Nov. 2002), http://www.smithsonianmag.com/history/
founding-fathers-and-slaveholders-72262393/?no-ist [https://perma.cc/27NW-XDXW].
8. See Melanie Kalmanson, Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims, 43 Fla. St. U. L. Rev. 1359, 1363-65 (2016).
9. See U.S. Const. amends. XV, XIX.

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In 1866,10 the Framers recognized this issue and formed the Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution.11 This discussion focuses on the Fourteenth Amendment—the Reconstruction Amendment that produced extensive jurisprudence and interpretation. The Fourteenth Amendment “was intended to bridge the gap between positive law and higher law by empowering the national government to protect the natural rights of its citizens.”12

The Fourteenth Amendment was ratified on July 9, 1868—almost 100 years after the United States declared its sovereignty from England.13 A result of the Civil War, the Fourteenth Amendment aimed to restore rights—such as dual citizenship14 and equality under the law—to blacks in the United States.15 The Equal Protection Clause, specifically, aimed to “stop states from discriminating against blacks”16 by requiring equal protection under the law. This Clause is the focus of this Article. To provide a more in-depth view of the Equal Protection Clause’s effect, the following Section explores the language of the Equal Protection Clause.

B. Language of the Equal Protection Clause

Section 1 of the Fourteenth Amendment, in its entirety, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.17

10. This is the year Congress passed the Fourteenth Amendment. Amendment XIV, Const. Ctr., http://constitutioncenter.org/interactive-constitution/amendments/amendment-xiv [https://perma.cc/QG7U-RMUC] (last visited Sept. 7, 2017).
11. The Thirteenth Amendment explicitly outlawed slavery. U.S. Const. amend. XIII; see, e.g., Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1872). The Fifteenth Amendment granted voting rights to blacks. Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendments, U.S. Senate [hereinafter Landmark Legislation], http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm [https://perma.cc/56CS-9FS8] (last visited Sept. 7, 2017).
12. Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235, 236 (1994).
13. Amendment XIV, supra note 10.
14. U.S. Const. amend. XIV, § 1.
15. Brian Fitzpatrick & Theodore M. Shaw, The Equal Protection Clause, Const. Ctr., http://constitutioncenter.org/
interactive-constitution/amendments/amendment-xiv/the-equal-protection-clause/clause/20 [https://perma.cc/S2KU-JK88] (last visited Sept. 7, 2017); Landmark Legislation, supra note 11.
16. Fitzpatrick & Shaw, supra note 15. But see Gerard E. Lynch, Government by Judiciary: The Transformation of the Fourteenth Amendment, 63 Cornell L. Rev. 1091, 1092 (1978) (book review).
17. U.S. Const. amend. XIV, § 1 (emphasis added).

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Aside from the Equal Protection Clause, emphasized above, Section 1 of the Fourteenth Amendment contains the Citizenship Clause,18 the Privileges or Immunities Clause,19 and the Due Process Clause20—all of which have resulted in extensive discourse and jurisprudence, which is not discussed in this Article.

In the text of the Equal Protection Clause, two words are distinctly important: “deny” and “laws.” First, while “deny” may ordinarily be defined several ways, the Supreme Court has narrowly interpreted its meaning in this constitutional context. For example, “deny” could be read to mean any action, the effect of which is inequality to classes of the same rights or protections.21 As interpreted by the Court, however, “deny” refers only to an overt action by the government that results in inequality.22 For example, the state could enact a law that amounts to an equal protection violation. As the Supreme Court stated in Romer v. Evans, “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”23 Thus, one may claim an equal protection violation only when there has been affirmative state action that amounts to a constitutional violation.24 In other words, the government is not required to affirmatively act to protect citizens’ rights under the Equal Protection Clause but, instead, is prohibited from acting in such a way that denies the rights guaranteed by the Equal Protection Clause.

18. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72-74 (1872) (defining the effect of the Citizenship Clause).
19. For more information on the Privileges or Immunities Clause and its Framers’ intentions, see generally Philip Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011). This Clause was rendered toothless, or an empty source for rights, by the U.S. Supreme Court in Slaughter-House Cases, 83 U.S. at 77-78.
20. The Due Process Clause has evolved to protect both procedural due process and substantive due process. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); Stephen F. Williams, “Liberty” in the Due Process Clauses of the Fifth and Fourteenth Amendments: The Framers’ Intentions, 53 U. Colo. L. Rev. 117, 118, 127 (1981).
21. See, e.g., Deny, Merriam-Webster, http://www.merriam-webster.com/dictionary/deny?utm_campaign=sd&utm_medium=serp&utm_source=jsonld [https://perma.cc/B9A6-STR5] (last visited Sept. 7, 2017) (defining “deny” as both “to refuse to give” and “to prevent someone from having or receiving”); Deny, Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/deny [https://perma.cc/CR6Q-S5A8] (last visited Sept. 7, 2017).
22. Civil Rights Cases, 109 U.S. 3, 11-12 (1883); see also Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1219 (1992).
23. Romer v. Evans, 517 U.S. 620, 633 (1996).
24. Civil Rights Cases, 109 U.S. at 11-12.

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Likewise, under the state action doctrine, the Equal Protection Clause does not protect from private discriminatory action. Rather, the Equal Protection Clause protects only from discriminatory governmental action or “state action.”25 To that end, state inaction does not amount to an actionable offense or constitutional violation.26 In other words, the state is not required to ensure equal protection; rather, the Equal Protection Clause bans the state from affirmatively denying equal protection of the law. Thus, the right to equal protection under the law is a negative right rather than a positive right.27

Second, the word “laws,” as used in the Equal Protection Clause, has been interpreted to indicate that only the actual letter of the law is reviewable in equal protection litigation, not factual circumstances. For an equal protection claim to stand, the plaintiff must identify a specific law causing discrimination. In technical terms, there must be de jure discrimination; de facto discrimination is insufficient to support a claim of an equal protection violation.28 Stated another way, factual discrimination, separation, or inequality is insufficient to justify an equal protection claim. Thus, the effect of the Equal Protection Clause dislodges from “States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.”29

C. Implicit Equal Protection Clause in the Fifth Amendment

Not only did the Equal Protection Clause pioneer protection for citizens under state law, but it did the same under federal law. While the Fourteenth Amendment applies only to actions by the states, the Fifth Amendment applies to actions by the federal government. Although the Fifth Amendment does not contain an explicit Equal Protection Clause,30 the Supreme Court stated that “it would be unthinkable that the same Constitution would impose a lesser duty [of ensuring equality] on the Federal Government.”31 Thus, the federal government is equally prohibited by the Fifth Amendment as states are by the Fourteenth. Having established the meaning of the Equal Protection Clause and its functional existence within the Fifth and Fourteenth Amendments, the next Part explains the process of litigating claims of equal protection violations.

25. Id. at 11.
26. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989); Kalmanson, supra note 8, at 1373-76 (discussing the DeShaney opinion in depth in this specific context).
27. See Williams, supra note 20, at 117-18.
28. See Parents Involved in City. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (“Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees.”).
29. Reed v. Reed, 404 U.S. 71, 75-76 (1971).
30. See U.S. Const. amend. V; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995).
31. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

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III.   Litigating an Equal Protection Violation

When bringing an equal protection claim, the plaintiff alleges that the government’s actions have denied him or her some right to which others, who the plaintiff believes are similarly situated, are apprised. When successful, the court finds that the government has wrongly denied the plaintiff and other members of his or her “class” a constitutional right.

Both the Fourteenth Amendment, in general, and the Equal Protection Clause, specifically, have “come a long way from [their] original purpose” of protecting only blacks.32 In fact, the Equal Protection Clause has served as a route to constitutional protection for blacks and other classes in the United States, such as women,33 criminals,34 and homosexuals.35 In 1942, the Supreme Court employed the Equal Protection Clause to protect criminals affected by Oklahoma’s law mandating the sterilization of those convicted “two or more times for crimes ‘amounting to felonies involving moral turpitude.’ ”36 The Court found that the law wrongly classified criminals by the crime they committed, or did not treat all criminals alike and, likewise, wrongly denied the affected persons’ rights to procreate.

In 1967, the Supreme Court used the Equal Protection Clause to invalidate a Virginia law that criminalized interracial marriage, stating that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”37 The Court proceeded to conclude:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.38

32. Fitzpatrick & Shaw, supra note 15.
33. E.g., United States v. Virginia, 518 U.S. 515, 534 (1996) (using the Equal Protection Clause to determine that gender-restrictive schools funded by the State are unconstitutional).
34. Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (using the Equal Protection Clause to strike down a mandatory sterilization statute that classified certain types of criminals).
35. See Obergefell v. Hodges, 135 S. Ct. 2584, 2590 (2015); see also Lawrence v. Texas, 539 U.S. 558 (2003). As this Article explains, the Lawrence Court may have decided the issue under the Equal Protection Clause but for its need to use history as support. As this author explains in a working paper, Obergefell may have changed this rigid structure. See Melanie Kalmanson & Riley Fredrick, Finding Abortion in Equality After Obergefell (Mar. 9, 2018) (unpublished manuscript).
36. 316 U.S. at 536 (quoting Okla. Stat. Ann. tit. 57, § 171 (1942)).
37. Loving v. Virginia, 388 U.S. 1, 11 (1967).
38. Id. at 12 (emphasis added) (quoting Skinner, 316 U.S. at 541) (citing Maynard v. Hill, 125 U.S. 190 (1888)).

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Likewise, in 1978, the Supreme Court used the Equal Protection Clause to invalidate a Wisconsin statute that required fathers, who were not married to their child(sen)’s mother and were ordered to pay child support, to obtain court permission to marry a third party.39 The Court determined that the statute was both under- and over-inclusive—indications of an equal protection violation—as well as not narrowly tailored to ensure that parents honor child support obligations.40 Thus, the Court concluded that the law wrongly denied a class of fathers the right to marry—a liberty protected by the Fourteenth Amendment.41

In 1982, in Mississippi University for Women v. Hogan, the Supreme Court invalidated a state nursing school’s “single-sex admissions policy”42 whereby the school only admitted women as an alleged effort to help women who had previously experienced discrimination. The Court found that the State of “Mississippi . . . made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the [school] opened its door or that women currently are deprived of such opportunities.”43 Further, the Court determined that the admissions policy “tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.”44 The Court concluded that the policy violated the Equal Protection Clause because the state failed to justify the admission policy under intermediate scrutiny review.45

Similarly, in 1996, in United States v. Virginia (VMI), the Supreme Court reviewed an admissions policy employed by the Virginia Military Institute (VMI School), which was inverse of the one reviewed in Hogan.46 Under this policy, VMI School only admitted males as students.47 As the Court stated, the State of Virginia “elected to preserve exclusively for men the advantages and opportunities a VMI [School] education affords.”48  At the time, VMI School was the only “single-sex school

39. Zablocki v. Redhail, 434 U.S. 374, 375 & n.1, 382 (1978).
40. Id. at 388, 390.
41. See Loving, 388 U.S. at 12; cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (granting the right to marry on Due Process grounds for the first time in U.S. Supreme Court jurisprudence).
42. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 727, 733 (1982).
43. Id. at 729.
44. Id. (footnote omitted).
45. Id. at 731.
46. United States v. Virginia, 518 U.S. 515, 520 (1996).
47. Id.
48. Id.

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among Virginia’s 15 public institutions of higher learning.”49 When “a female high-school student seeking admission to VMI” School filed a complaint with the Attorney General, “the United States sued the Commonwealth of Virginia and VMI [School], alleging that the admission policy violated the Equal Protection Clause.”50

In a majority opinion authored by Justice Ginsburg, the Supreme Court held that it was unconstitutional for the state to sponsor gender-restricted schools.51 The majority explicitly invalidated gender stereotypes, providing protection for the class of one or an individual who may have interests different than his or her gender stereotype, stating: “State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.’ ”52 Thus, Hogan and VMI stand for the proposition that a state-sponsored school cannot deny admission to all of one gender simply because most of that gender would not be interested in attending the institution. As Justice Ginsburg remarked years after the VMI opinion, “[Hogan] paved the way for the VMI case some 15 years later . . . . Both cases made the same point, that government can’t prefer men or can’t prefer women for an opportunity, that all doors must be open to our sons and daughters.”53

At the core of each equal protection decision is a test established in 1938 by the Supreme Court in United States v. Carolene Products Co.54 To bring an equal protection claim, a plaintiff must first establish his or her membership in a protected class, a sort of standing requirement.55 Depending on the class affected, the challenged law is reviewed with various levels of rigor. This Part outlines the equal protection framework within this hierarchy of classes: the criteria for establishing a class and the levels of scrutiny—strict scrutiny, intermediate scrutiny, and rational basis—under which challenged laws are reviewed depending upon the class that is established. Namely, the test is considering the indicia of suspectness outlined by footnote four of the Supreme Court’s opinion in Carolene Products (Footnote Four).

49. Id.
50. Id. at 523 (citation omitted).
51. Id. at 519-20.
52. Id. at 541 (citation omitted) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
53. Laura Vozzella, Justice Ginsburg Makes Her First Visit to the Military Institute She Remade, Wash. Post. (Feb. 1, 2017) (quoting Ginsburg, J.), https://www.washingtonpost.com/local/virginia-politics/justice-ginsburg-makes-her-first-visit-to-the-military-institute-she-remade/2017/02/01/4ae42b70-e89b-11e6-b82f-687d6e6a3e7c_story.html?utm_term=.0a39550531e9 [https://perma.cc/8GWM-TFUF].
54. United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
55. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 315 (1976); see also sources cited infra note 56.

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A. Establishing a Class, Looking to Carolene Products “Footnote Four”

Dispelling the notion that footnotes are superfluous, Footnote Four established the framework for determining whether a class exists to bring an equal protection claim.56 In pertinent part, Footnote Four stated:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . .

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether 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.57

The framework of Footnote Four is comprised of five indicia of suspectness for establishing a class:

1. a history of discrimination,
2. political powerlessness,
3. immutable trait,
4. discrete and insular minority,58 and
5. relevant trait to contributing to society.59

56. E.g., Lewis F. Powell, Jr., Carolene Products Revisited, 82 Colum. L. Rev. 1087, 1087 (1982); see also U.S. Const. amends. V, XIV; Frontiero v. Richardson, 411 U.S. 677, 680 n.5 (1973) (quoting Schneider v. Rusk, 377 U.S. 163, 168 (1964); first citing Shapiro v. Thompson, 394 U.S. 618, 641-42 (1969); and then citing Bolling v. Sharpe, 347 U.S. 497 (1954)).
57. Carolene Prods. Co., 304 U.S. at 152 n.4 (citations omitted).
58. “Discrete” means the class opposed the majority’s stance on a piece of legislation. See Powell, Jr., supra note 56, at 1090. “Insular” means the class “was unable to form coalitions with other groups that would have enabled it to achieve its desired ends through the political process.” Id.
59. Carolene Prods. Co., 304 U.S. at 152 n.4.

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Applying Footnote Four, a court must evaluate the alleged class within these indicia to determine the level of suspectness the class holds to determine then the resulting level of scrutiny under which the challenged law will be reviewed.60 In application, these indicia are not conjunctive, meaning a plaintiff does not automatically fail if one factor is not established. However, a close review of the list shows a sort of entanglement between these indicia such that the existence of one likely leads to another.

The first indicator—a history of discrimination—inheres the presence of an immutable trait—the third indicator. By the definition of discrimination,61 if there is a “history of discrimination” against the class, an “immutable trait” exists that is relevant to the legislation that allegedly violates the Equal Protection Clause because, otherwise, the unequal treatment would not qualify as discrimination. Likewise, the bases upon which classification suffices to establish discrimination—race, age, sex, nationality, religion, or disability62—are all immutable traits, or traits central to one’s existence which are not fluid or easily changed.63 “The notion is that it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change.”64 In other words, one does not choose his race, age, sex,65 nationality, or disability.

Further, political powerlessness seems to be the natural consequence of a history of discrimination. By definition, discrimination is the suppression of a class’s rights and influence by relegating the class, without justification, to a lower status than the discriminating majority. For example, slavery is the ultimate history of discrimination borne by African Americans in the United States. Such discrimination and suppression by whites rendered blacks politically powerless and subordinate. Thus, the second indicator—political powerlessness—is a consequence or result of the first—a history of discrimination.

60. E.g., Frontiero v. Richardson, 411 U.S. 677, 686-88 (1973).
61. Black’s Law Dictionary 566 (10th ed. 2014); see Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976), superseded by statute, 42 U.S.C. § 2000e (1976); EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016).
62. Frontiero, 411 U.S. at 686-87.
63. If one argues that an individual chooses his or her religion, again arises an intra-constitutional conflict between the First Amendment’s right of freedom of religion and the Fourteenth Amendment’s guarantee of one’s fundamental right to parent his or her children. Thus, (a) such freedom of choice may not be a reality for many people born into a religion, and (b) religion may be considered part of one’s being that cannot easily be changed.
64. Chemerinsky, supra note 7, at 714.
65. While the fluidity of gender is being questioned in modern discourse, this is not addressed here. See generally, e.g., Bruce McKenna, The Transgender Dilemma, 61 Fed. Law. 4 (2014).

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This Article focuses on the first indicia of suspectness from Footnote Four: a history of discrimination, which the reviewing court emphasizes in determining that the class shall receive protection from de sure discrimination.66 In other words, if a group claims discrimination is occurring, the court will review whether the group has been discriminated against in the past. Thus, the test for establishing a class to garner protection under the Equal Protection Clause is backward-looking and considers the class’s history.67 As stated above, the type of class dictates the level of rigor with which the court reviews the challenged law. The next Section reviews the different standards applied depending on the type of class that is established.

B. Determining the Appropriate Level of Scrutiny

“The level of scrutiny is the rule of law that is applied to the particular government action being challenged as denying equal protection.”68 Depending upon the outcome of the Footnote Four analysis, a challenged law is reviewed under one of three levels of scrutiny: rational basis, intermediate scrutiny, or strict scrutiny. Discussing these three tiers of review in his dissenting opinion in VMI, Justice Scalia stated, “Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that ‘equal protection’ our society has always accorded in the past.”69 Each test is explained in turn below.

1. Suspect Class: Strict Scrutiny

First, courts apply “strict scrutiny review” when “the political process . . . cannot be trusted to protect [certain] groups in the way it protects most of us.”70 Footnote Four essentially created what we know today as strict scrutiny. Strict scrutiny is the most rigorous standard under which a court reviews the validity of a law. In other words, courts are toughest on a law and, thereby, the legislature that enacted it when applying strict scrutiny. Applying strict scrutiny, the court determines whether the statutory classification is “narrowly tailored to further compelling governmental interests.”71 Though it is the most rigid standard and implies a presumption of unconstitutionality,72 “strict scrutiny . . . is not inevitably ‘fatal in fact.’ ”73

66. E.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
67. U.S. Const. amend. XIV, § 1; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
68. Chemerinsky, supra note 7, at 715.
69. United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting).
70. Powell, Jr., supra note 56, at 1088-89.
71. Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
72. Korematsu v. United States, 323 U.S. 214, 216 (1944).
73. Virginia, 518 U.S. at 582 n.6 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)).

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The U.S. Supreme Court “has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin . . . .”74 Race is a long-established suspect class and receives strict scrutiny.75 In Korematsu v. United States, the Supreme Court reviewed the constitutionality of “Civilian Exclusion Order No. 34 . . . which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from [San Leandro, California].”76 In doing so, the Supreme Court established that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.”77

Likewise, in 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, reviewing “student assignment plans that rel[ied] upon race to determine which public schools certain children may attend,”78 the Court further explained that “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”79 In sum, a reviewing court applies strict scrutiny when a suspect class is established pursuant to Footnote Four.

2. Quasi-Suspect Class: Intermediate Scrutiny

The intermediate level of scrutiny is aptly referred to as “intermediate scrutiny,” which a court employs when the law discriminates against a quasi-suspect class. Under this test, to be proven valid, “a statutory classification [must] be substantially related to an important governmental objective.”80 First, the “important governmental objective” cannot be created post hoc but, rather, must be the legislature’s actual purpose for enacting the law at issue.81 Second, as to the substantial relationship to the important government purposes, the Court explained in Mississippi University for Women v. Hogan:

If the State’s objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present. The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about

74. Id.; accord Korematsu, 323 U.S. at 216.
75. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (citing Johnson v. California, 543 U.S. 499, 505-06 (2005)); Grutter, 539 U.S. at 326; Pena, 515 U.S. at 224.
76. Korematsu, 323 U.S. at 215-16.
77. Id. at 216.
78. Parents Involved in City. Sch., 551 U.S. at 709-10.
79. Id. at 720 (quoting Gratz v. Bollinger, 539 U.S. 244, 270 (2003)).
80. Clark v. Jeter, 486 U.S. 456, 461 (1988) (emphasis added).
81. See infra note 95 and accompanying text.

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the proper roles of men and women. The need for the requirement is amply revealed by reference to the broad range of statutes already invalidated by this Court, statutes that relied upon the simplistic, outdated assumption that gender could be used as a “proxy for other, more germane bases of classification,” Craig v. Boren, 429 U.S. 190, 198 (1976), to establish a link between objective and classification.82

In practice, the test applied by courts employing intermediate scrutiny review is not always this clear.

Essentially, intermediate scrutiny falls almost anywhere between rational basis review (discussed below) and strict scrutiny on the spectrum of rigidity. Such variance is due to the lack of definition in the terms of intermediate scrutiny review.83 While the terms in rational basis review and strict scrutiny may also be indefinite, the presumptions in rational basis review and strict scrutiny are more absolute, whereas no presumption really exists in intermediate scrutiny review, requiring each side to prove or disprove an equal protection violation.

Gender, for example, is quasi-suspect, which requires some type of heightened review—intermediate scrutiny.84 In VMI, the Court established:

Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification [for the statute at issue] is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’ ” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on over broad generalizations about the different talents, capacities, or preferences of males and females.85

While the standard actually used as intermediate scrutiny seems fluid across cases, gender remains in the quasi-suspect category due to the real possibility that gender classifications are based on true biological differences between the sexes.

82. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26 (1982) (footnotes omitted).
83. See, e.g., United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting).
84. See id. at 555 (majority opinion). But cf. Frontiero v. Richardson, 411 U.S. 677 (1973), in which the Court applied strict scrutiny to a gender classification. However, in Frontiero, the law differentiating between males and females had no biological rationale for the differentiation. See id. at 688-90.
85. Virginia, 518 U.S. at 532-33 (second alteration in original) (emphasis added) (quoting Miss. Univ. for Women, 458 U.S. at 724) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-24 (1977) (Stevens, J., concurring)).

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Additionally, classifications “that burden illegitimate children for the sake of punishing the illicit relations of their parents” are also reviewed under intermediate scrutiny.86 In Weber v. Aetna Casualty & Surety Co.,87 the Supreme Court invalidated a statute that distinguished between legitimate and illegitimate children for workmen’s compensation benefits. Based on the second prong of the intermediate scrutiny test—a substantial relation to the law’s objective—the Court found that the distinction did not serve any state interest, even “protecting ‘legitimate family relationships.’ ”88 The Court concluded that the statute’s classification was unfair to the child, who was ultimately affected and not responsible for the harm that the law aimed to remedy—sexual intercourse outside of marriage.89

One key aspect of intermediate scrutiny review is that it allows the court to consider possible legitimate reasons why the legislature created the classification under review. For example, in Gomez v. Perez, the Court “acknowledged that it might be appropriate to treat illegitimate children differently in the support context because of ‘lurking problems with respect to proof of paternity.’ ”90 Note the difference between the reasoning in Gomez and Weber; in the former, the detriment would be to the parent who would be forced to support a child who may or may not actually be his, while the detrimental effect in the latter was on the child who would not receive benefits.

Intermediate scrutiny can fall almost anywhere between rational basis review (discussed below) and strict scrutiny on the spectrum of rigidity. Such variance is due to the lack of definition in the terms of intermediate scrutiny review.91 While the terms in rational basis review and strict scrutiny may also be indefinite, the presumptions in rational basis review and strict scrutiny are more absolute; whereas, no presumption really exists in intermediate scrutiny review, requiring each side to prove or disprove an equal protection violation.

3. Rational Basis Review as the Catch-All

Finally, rational basis review is the default standard of review unless the plaintiff proves that intermediate or strict scrutiny is appropriate. Classes within noneconomic legislation that routinely receive rational basis review include age, disability,92 sexual orientation,93 height, weight, wealth, and any other non suspect classification.94 The first two classes—age and

86. Clark v. Jeter, 486 U.S. 456, 461 (1988).
87. Weber v. Aetna Cas. & Surety Co., 406 U.S. 164 (1972).
88. Id. at 171 n.9, 173 (quoting Stokes v. Aetna Cas. & Sur. Co., 242 So. 2d 567, 570 (1970)).
89. See id. at 175-76.
90. Clark, 486 U.S. at 461 (quoting Gomez v. Perez, 409 U.S. 535, 538 (1973)).
91. See, e.g., United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting).
92. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 445 (1985) (stating that “the mentally retarded” should not be “deemed quasi-suspect”).
93. Bowers v. Hardwick, 478 U.S. 186, 196 (1986), overruled by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). But cf. Romer v. Evans, 517 U.S. 620 (1996) (suggesting a higher level of scrutiny than rational basis review). However, the U.S. Supreme Court’s recent decision in Obergefell, 135 S. Ct. at 2584, seems to support a heightened level of scrutiny based upon sexual orientation. This discussion is outside the scope of this Article.
94. See, e.g., N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 570, 593-94 (1979) (finding that a state actor “refus[ing] to employ persons who use methadone” did not violate the Equal Protection Clause because the policy was generally applicable). Note that the level of scrutiny may be heightened if a claim is brought under statutory authority providing protection to these nonsuspect classes.

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disability—do not receive heightened scrutiny because they are traits that, arguably, do affect one’s ability to contribute to society (the fifth indicator in Footnote Four). Therefore, regulations based on age or disability may be validly connected to a governmental interest, such as safety. Similarly, height and weight likely do not contribute to one’s ability to contribute to society (the fifth indicator). However, there may be rational or reasonable explanations as to how nonsuspect classes may affect regulations. For example, height may affect one’s physical ability to fill a position or conduct a task, and age may affect one’s ability to properly make mature decisions (younger concerns) or perform tasks (elderly concerns). Thus, regulations of non suspect classes are valid so long as they relate to a rational basis (discussed further below).

When rational basis review controls, the party challenging the law (rather than the government) bears the burden of proving that the challenged law is unconstitutional.95 To prevail, the challenger must prove that the “law [does not] bear a rational relationship to a legitimate governmental purpose.”96 “To withstand equal protection review, legislation that [discriminates against a non suspect class] must be rationally related to a legitimate governmental purpose.”97

Rational basis review applies “a strong presumption in favor of laws that are challenged under the rational basis test.”98 Therefore, laws reviewed under this standard usually survive, or are deemed constitutional. Not only is this because the test sets a low standard for what constitutes a valid government purpose in enacting the law (i.e., anything that is not arbitrary), but the court may “conceive” a legitimate purpose for the law to uphold it upon a challenge.99 So, even if the purpose purported by the government in litigation is considered insufficient, the court may, on its own, create an alternative,

95. E.g., Chemerinsky, supra note 7, at 718.
96. Romer, 517 U.S. at 635 (citing Kadrmas v. Dickinson Public Sch., 487 U.S. 450, 462 (1988)).
97. Cleburne, 473 U.S. at 446.
98. Chemerinsky, supra note 7, at 718 (citing McGowan v. Maryland, 366 U.S. 420, 425-26 (1961)).
99. See id.

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legitimate purpose for the law to justify it being upheld.100 For example, in United States Railroad Retirement Board v. Fritz,101 the Supreme Court stated: “Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.’ ”102 Strengthening the presumption of validity even further, the Supreme Court stated in FCC v. Beach Communications, Inc. that “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it.’ ”103

C. Providing Proof of an Equal Protection Violation: History Loses Its Clout

State laws may be challenged on equal protection grounds in several contexts. For example, a law may be invidiously discriminatory, neutral on its face while imposing a disparate impact, or benign and challenged for what appear to be correcting actions by the state—also known as affirmative action. Regardless of the context, one party must prove that there is, in fact, discrimination.

When a law is invidiously discriminatory, proof is easier to find. However, when the law is facially neutral with a disparate impact, the challenger (i.e., the injured plaintiff) must prove disparate impact on a minority group by demonstrating that the law functions as a smokescreen for discrimination.104 Or, when an affirmative action program is challenged, the state must prove that the law seeks to remedy existing discrimination.105 De facto discrimination or segregation is insufficient to substantiate an Equal Protection Clause claim. Creating a fairly high standard, the Court in Personnel Administrator of Massachusetts v. Feeney defined “[d]iscriminatory purpose” as “impl[ying] more than intent as volition or intent as awareness of consequences.”106 Thus, it must be the government’s goal to discriminate to substantiate an equal protection violation.

Where the burden lies to prove discrimination depends upon the class that is established under Footnote Four. When intermediate or strict scrutiny applies, it is the government’s burden to prove the validity of the law—namely, that it is not discriminatory or that the affirmative action is justified. Otherwise, when rational basis review applies, the plaintiff bears

100. Id. at 718, 724-25.
101. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980).
102. Id. at 179 (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960)).
103. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) (citing Hodel v. Indiana, 452 U.S. 314, 331-32 (1981)).
104. See, e.g., Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979).
105. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 510-11 (1989).
106. Feeney, 442 U.S. at 279 (emphasis added) (citing United Jewish Orgs., Inc. v. Carey, 430 U.S. 144, 179 (1977) (Stewart, J., concurring)).

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the burden of proving that the state has no legitimate explanation for the law. Really, because the court can impose an explanation for the state, the plaintiff must prove that no legitimate explanation exists for the law. This Part discusses the information that the party bearing the burden may use to prove its case—either victimization by discrimination or validating a program aiming to rectify previous discrimination.

When required to prove a case, plaintiffs are left without one important piece of information—a history of discrimination—despite the fact that this history was likely used and given great weight in the Footnote Four test to establish a class in the beginning of the litigation. In other words, once the case reaches the point of proving discrimination, a factor from the Footnote Four analysis loses its legitimacy as proof of an equal protection violation. Thus, constitutional doctrine surrounding the litigation of equal protection claims has evolved to an ironic and seemingly illogical treatment of a history of discrimination—one of the driving forces behind the formation of the Fourteenth Amendment.

The Supreme Court has long expressed a general uneasiness toward using history as proof of constitutional violations. In Washington v. Davis, the plaintiffs (two black police officers) challenged “the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department.”107 Arguing both a violation of equal protection and a violation of Title VII,108 Plaintiffs claimed that the test, which tested “verbal ability, vocabulary, reading and comprehension,” was actually a method of racial discrimination employed by the police department to disqualify African-American applicants.109 The Supreme Court held that past discriminatory intent cannot amount to current discriminatory intent, stating that precedent does not “embrace[] the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”110

Even more explicitly excusing history as proof, in City of Mobile v. Bolden, the Court made clear that it is not modern society’s duty to constantly pay off the debt of our predecessors, stating that “past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.”111

107. Washington v. Davis, 426 U.S. 229, 229, 232 (1976).
108. See id. at 238-39.
109. Id. at 234-35 (quoting Davis v. Washington, 348 F. Supp. 15, 16 (D.D.C. 1972)).
110. Id. at 239.
111. City of Mobile v. Bolden, 446 U.S. 55, 74 (1980).

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Similarly, the Court stated recently in Shelby County v. Holder that the Equal Protection Clause “is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress . . . must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”112 Essentially, the Court has made clear that the effect of history—even discrimination—must end eventually.

IV.   Effects of this Ironic Treatment of History in Equal Protection Litigation

This Part contemplates the effect of the conflicting treatment of historical support on specific types of claims commonly brought under the Equal Protection Clause—allowing it to establish the legitimacy of a claim but then precluding it to substantiate a claim. Section A discusses how this affects disparate impact claims, and Section B discusses how this affects challenges to affirmative action programs. Generally, the Equal Protection Clause doctrine fails to realize that “fifty years is not a short time, even in the life of social institutions.”113

A. Disparate Impact Claims

In a disparate impact claim, the plaintiff argues that the impact of a facially neutral law is discriminatory against a protected class.114 The Supreme Court first recognized this cause of action in 1971 in Griggs v. Duke Power Co.115 As Reva Siegel explains, “Judges and commentators . . . understand disparate impact liability to redress at least three kinds of discrimination that are common in societies that have recently repudiated centuries old traditions of discrimination”: (1) “covert intentional discrimination,” (2) “implicit or unconscious bias,” and (3) “structural discrimination.”116 Siegel further noted:

For those who believed that past and present bias continued to play a role in shaping the workplace, disparate impact was an important tool for uncovering hidden and hard to prove intentional and unconscious discrimination, and for ensuring that workplace standards did not unnecessarily perpetuate the legacy of past discrimination.117

112. Shelby Cty. v. Holder, 133 S. Ct. 2612, 2629 (2012) (emphasis added) (citation omitted).
113. J.D. Hyman, Segregation and the Fourteenth Amendment, 4 Vand. L. Rev. 555, 557 (1951).
114. Reva B. Siegel, Race-Conscious but Race-Neutral: The Constitutionality of Disparate Impact in the Roberts Court, 66 Ala. L. Rev. 653, 656 (2014).
115. Id.
116. Id. at 657-58.
117. Id. at 663-64.

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Two cases from 1979 involved this type of claim and made clear that history is insufficient to prove the need for relief.

First, in Washington v. Davis,118 the Court explained that a plaintiff must show that a “statute, otherwise neutral on its face, [has been] applied so as invidiously to discriminate on the basis of race” to justify relief.119 The Court indicated that statistical disparities in a population are not acceptable as proof of discrimination or an Equal Protection Clause violation because the Equal Protection Clause, as interpreted by the Court, protects individuals. Discussing the 1880 case of Strander v. West Virginia, the Davis Court stated that “the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause.”120 The Court determined that group statistics are overbroad and not reflective of the effect of an allegedly discriminatory law.

However, excluding history overlooks the seemingly obvious underpinnings of these excluded statistics. If allowed, history would likely explain statistical disparities and, perhaps, how current circumstances or law is, in fact, discriminatory against the individual. Reviewing conflicting case law, the Court concluded:

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.121

Second, in Personnel Administrator of Massachusetts v. Feeney, a challenge was levied against the Massachusetts veterans’ preference statute, which the plaintiff—a nonveteran—claimed was discriminatory against women.122 While the law appeared neutral on its face by providing the benefit to all veterans, in effect, it “benefit[ted] an overwhelmingly male class” due to the make-up of the armed forces.123 The Court explained, “This is attributable in some measure to the variety of federal statutes, regulations, and policies that have restricted the number of women who could enlist in the United States Armed Forces, and largely to the simple fact that women have never been subjected to a military draft.”124

118. Washington v. Davis, 426 U.S. 229 (1976).
119. Id. at 241 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).
120. Id. at 239.
121. Id. at 248.
122. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 259 (1979).
123. Id. at 269.
124. Id. at 269-70 (footnote omitted).

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After reviewing the statute’s history, the Court narrowed in on gender discrimination, stating:

Classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination. This Court’s recent cases teach that such classifications must bear a close and substantial relationship to important governmental objectives, and are in many settings unconstitutional. Although public employment is not a constitutional right, and the States have wide discretion in framing employee qualifications, these precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment.125

The Court concluded that while the statute may impact men and women unequally, no proof or reasonable explanation was presented that the statute was intended to discriminate against women and, instead, was a result of the fact that there were more nonveteran women than men.126 Therefore, there was no equal protection violation to be remedied.127 Feeney established “that to prove discriminatory purpose, equal protection plaintiffs would have to show that the challenged action was undertaken at least in part because of, and not merely in spite of, its impact on a protected class.”128 Thus, Feeney substantially narrowed “the role that evidence of foreseeable disparate impact could play in proving discriminatory purpose in equal protection cases.”129

Similar to disparate impact claims—in which a remedy is unavailable unless the plaintiff can show that the government had actual purpose in causing the unequal result or that the statute was a cover-up for discrimination—governments are challenged to justify affirmative action programs in which they aim to remedy past discrimination. The next Section discusses this challenge.

B. Justifying Affirmative Action

Oftentimes, government actors initiate affirmative action programs to address the effect of a history of discrimination—de facto inequality in a population or vertical inequality of some sort that would otherwise violate the Equal Protection Clause if instituted de sure. As Reva Siegel has explained:

125. Id. at 273 (citations omitted).
126. Id. at 277-79.
127. Id. at 281.
128. Siegel, supra note 114, at 662 (footnote omitted).
129. Id. (footnote omitted).

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[The] government may engage in race-conscious state action to remedy past discrimination, promote equal opportunity, and achieve diversity, in cases where the law is facially neutral in form. This is not a bug, but a feature of equal protection law. It reflects the understanding that prohibiting de sure segregation was not enough to end discrimination and its legacies; baselines in the United States are still not race neutral.130

When a plaintiff—usually a member of the majority against which the affirmative action program seems to act—challenges an affirmative action program, the government must justify the program, which is reviewed under the same level of scrutiny as would be used for discrimination against the affected class.131 In other words, if the state uses the program to remedy racial discrimination, the program will be reviewed under strict scrutiny—as would a claim for a statutory classification based on race.132 Likewise, if the state is using the program to remedy gender discrimination, the court will apply intermediate scrutiny.133

However, the state is challenged to prove the law’s validity without historical support. This is clear from Hogan, where the Court looked only so far back as the day the school opened to determine whether the state’s purported efforts were effective and genuine.134 Ultimately, the state was unsuccessful, and the Supreme Court invalidated the admission policy.

Notwithstanding, the state was likely seeking to remedy discrimination that started long before the school opened. In other words, the history of discrimination against women likely motivated the state to open the school. Therefore, because “[j]udicial assumptions cannot be dislodged without giving some consideration to what has been built upon them,”135 the legitimacy or accuracy of affirmative action decisions is debatable.

Further, in City of Richmond v. J.A. Croon Co.,136 the Supreme Court reviewed “the use of race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society.”137 The Court denied relief under the Equal Protection Clause to minority groups who benefited from the programs instituted by Richmond, finding that a history of discrimination was insufficient to warrant relief.

130. Id. at 671 (emphasis in original).
131. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003).
132. See id.
133. See, e.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
134. Id. at 729.
135. Hyman, supra note 113, at 557.
136. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
137. Id. at 476-77.

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Instead, the plaintiff must show de jure proof to justify an affirmative action program138 or identify a specific, current law causing the discrimination that the affirmative action program aimed to rectify. The Court stated:

While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the claim that discrimination in primary and secondary schooling justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.139

Thus, the inability to use history presented Richmond with an impossible feat of justifying its program because they could not show the existence of Minority Business Enterprises (MBEs) in the labor market currently experiencing discrimination because MBEs were absent from the current labor market as a result of past discrimination.140 The Court concluded that Richmond violated the Equal Protection Clause because it “failed to identify the need for remedial action in the awarding of its public construction contracts.”141

Dissenting in Croson, Justice Marshall wrote, joined by Justices Brennan and Blackmun:

The essence of the majority’s position is that Richmond has failed to catalog adequate findings to prove that past discrimination has impeded minorities from joining or participating fully in Richmond’s construction contracting industry. I find deep irony in second-guessing Richmond’s judgment on this point. As much as any municipality in the United States, Richmond knows what racial discrimination is; a century of decisions by this and other federal courts has richly documented the city’s disgraceful history of public and private racial discrimination. . . .

More fundamentally, today’s decision marks a deliberate and giant step backward in this Court’s affirmative-action jurisprudence. Cynical of one municipality’s attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority’s unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination.142

138. Id. at 499 (“The 30% quota cannot in any realistic sense be tied to any injury suffered by anyone.”); id. at 500 (reasoning that the city had not shown that “remedial action was necessary” (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986)).
139. Id. at 499.
140. Id. at 510-11.
141. Id. at 511.
142. Id. at 528-29 (Marshall, J., dissenting) (emphasis added) (footnote omitted).

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Thus, the missing information in Croson to prove the remedial program’s legitimacy was historical discrimination.143

Similarly, in Wygant v. Jackson Board of Education, the Supreme Court determined that, under the Equal Protection Clause, a school board could not “extend preferential protection against layoffs to some of its employees because of their race or national origin.”144 Applying strict scrutiny because race was at issue, the Court concluded that the burden imposed by the layoff plan was “too intrusive,” and the plan was “not sufficiently narrowly tailored.”145 The Court explained:

This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.146

. . . .

No one doubts that there has been serious racial discrimination in this country. But as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.147

Contrary to the case law discussed above, in Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court recognized that the state had a compelling interest in “remedying the effects of past intentional discrimination.”148 This interest seems specific to primary education, however, which the Court has treated differently since Brown v. Board of Education.149 Nevertheless, the Court invalidated the affirmative action programs at issue in Parents Involved under strict scrutiny because Seattle public schools could not show “that they were ever segregated by law, and were not subject to court-ordered desegregation decrees.”150

143. See id. at 499 (“It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination . . . .” (emphasis added)).
144. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 269-70, 283-84 (1986).
145. Id. at 283.
146. Id. at 274.
147. Id. at 276 (emphasis added).
148. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (emphasis added) (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)).
149. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
150. Parents Involved in Cmty. Sch., 551 U.S. at 720.

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The Court found that the school district had previously achieved “unitary” status and thereby “remedied the constitutional wrong that allowed race-based assignments.”151 Therefore, again precluding history as proof, Jefferson County could not “rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students.”152 Parents Involved demonstrates the difficulty programs face when attempting to remedy de facto imbalance resulting from history without explicit proof of the imbalance.

In Grutter v. Bollinger,153 “the Court upheld [a law school’s admission] system that . . . treated race as a relevant feature within the broader context of a candidate’s application.”154 Writing for the majority, Justice O’Connor suggested that affirmative action could be used as an immediate, temporary remedy to discriminatory circumstances, stating: “Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. . . . [In] higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.”155

Justice O’Connor reasoned that with effective affirmative action programs and proper societal progression, the need for affirmative action programs would disappear in twenty-five years.156 Concurring in Grutter, Justice Ginsburg questioned the clarity of Justice O’Connor’s timeline.157 In other words, “[d]iscrimination does not end suddenly; it fades slowly.”158 The accuracy of Justice O’Connor’s concrete time-frame on the necessity of affirmative action programs remains to be seen. The sun will set on affirmative action programs in 2028 under the Grutter timeline.159 Regardless, there is a glaring irony in the Court’s willingness to prophesies prospectively by placing a forward-looking timeline on the usefulness of affirmative action while simultaneously refusing to look backward at the same time period.

151. Id. at 721.
152. Id.
153. Grutter v. Bollinger, 539 U.S. 306 (2003).
154. Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2205 (2016) (citing Grutter, 359 U.S. at 337, 343-344).
155. Grutter, 539 U.S. at 311, 342.
156. Id. at 343.
157. See id. at 344-45 (Ginsburg, J., concurring).
158. Siegel, supra note 114, at 657.
159. See Grutter, 539 U.S. at 343. This is twenty-five years from the year of the 2003 opinion. Id. at 306.

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Recently, in Fisher v. University of Texas at Austin, the Supreme Court reviewed the admissions system at the University of Texas, which was implemented in response to the Court’s opinion in Grutter.160 In short, the University of Texas, within its complex review process, considered the applicant’s race and socioeconomic background.161 Ultimately, on equal protection grounds, the Court upheld the university’s affirmative action program by affirming the court of appeals’ decision because no view garnered a majority. Reva Siegel argues that Fisher “provides a concrete illustration of the principle that government may pursue certain race-conscious purposes when it acts by facially neutral means,” even in competitive processes.162 Perhaps Fisher indicated that the Court, at least implicitly, considers historical discrimination in upholding race-conscious programs. Indeed, Siegel states that it is impossible that “the Court overlooked the race-conscious aims of the percent program.”163 Moreover, perhaps Fisher is a shift in case law, as Siegel contends, supporting the constitutionality of disparate impact as an Equal Protection Clause cause of action.164

With Fisher as a somewhat evolutionary exception,165 rather than an effort by the state to remedy its previous errors—including discrimination that may have been legal at the time but is now unconstitutional—the Court seemingly views affirmative action as punitive to the majority. In most cases, precluding historical proof of discrimination for governmental actors trying to remedy such caste structures serves as a roadblock to affirmative action programs, which actually serve the purpose of the Equal Protection Clause.

C. Rights Founded in Due Process Rather than Equal Protection

Perhaps one of the clearest indications of the effect of historical proof is the dichotomy between rights founded in the Due Process Clause and the Equal Protection Clause. When the Supreme Court invalidates a statute under either the Fifth or Fourteenth Amendment, it has two options: (1) determine that the law violates the Equal Protection Clause; or (2) find that the law wrongly infringes upon a fundamental right under the Due Process Clause. Reviewing case law indicates that history plays a large role in the Court making this decision, which has several corollaries.

When a fundamental right is rooted in the Due Process Clause, the state may not regulate the right unless the restriction passes constitutional muster under strict scrutiny review.

160. Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2206 (2016).
161. Id. at 2206-07.
162. Siegel, supra note 114, at 672.
163. Id. at 673.
164. Id. at 678.
165. See id. at 688.

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Alternatively, when a right is rooted in the Equal Protection Clause, the state may regulate it so long as the regulation affects all equally and passes the appropriate level of constitutional review as explained above. Precluding history as support for equal protection claims affects this bifurcated decision by restraining the Court from using equal protection as a source of rights when it seeks to draw support for its decision from history.

For example, in 1973, the Supreme Court emphasized history as a justification for its decision in Roe v. Wade that a woman’s right to choose to terminate her pregnancy is a fundamental right founded in the Due Process Clause of the Fourteenth Amendment.166 Several scholars argue that the right to terminate a pregnancy should have been rooted in the Equal Protection Clause rather than the Due Process Clause.167 Notwithstanding the veracity of these arguments, the Court practically, due to the ironic treatment and categorical exclusion of history as proof in Equal Protection Clause litigation explained herein, had only one doctrinal option in deciding Roe. Even if equal protection seemed like a viable route—as espoused by Justice Ginsburg—the Court was required to rely on due process if it wanted to use history as support because history is unreachable as support in an equal protection theory.168 Likewise, even if history could have been used in a hypothetical Equal Protection Clause theory to establish that women seeking abortions—or women, in general, as the exclusive childbearing gender—were within a quasi-suspect class, history would only go so far. The Court could not have continued to rely on history to argue that abortion restrictions were discriminatory and, therefore, violated the Equal Protection Clause.

V.   Conclusion

Doctrine emanating from the U.S. Supreme Court is often taken for granted. For example, the Court’s jurisprudence on how a history of discrimination functions in equal protection litigation has been accepted and implemented in litigation. Stepping back and viewing how history is used in a holistic scheme, however, reveals a glaring inconsistency in how a history of discrimination is first used to establish a class under Carolene Products Footnote Four and then ignored as proof of a violation of equal protection in the same claim. Exposing this inconsistency, as this Article does, helps to clarify some of the Supreme Court’s decisions that may seem counterintuitive and provides guidance for the future.

166. Roe v. Wade, 410 U.S. 113, 129-47, 164 (1973); see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (affirming the central holding of Roe).
167. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 376 (1985); Neil S. Siegel & Reva B. Siegel, Equality Arguments for Abortion Rights, 60 UCLA L. Rev. Discourse 160, 163 (2013).
168. This author argues in a working paper that founding abortion in equality may be more doctrinally sound as a result of recent case law. See sources cited supra note 36.