Equal Protection

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For just over 30 years, the Supreme Court has been a contributor to our nation’s current state of racial discrimination. The Court’s establishment of an impenetrable divide between racial and economic equality has been used to render the Equal Protection Clause of the Constitution substantially less potent. The result is that our nation, as seen in the images of those left to contend with Katrina’s destruction, still possesses the embarrassing remnants of Jim Crow. 

The problem is partly in the way that the Equal Protection Clause operates. Currently, for a person to win on a race-based equal protection claim the court has to find that a racially discriminatory purpose supported the government action; discriminatory impact alone is not enough. If this “invidious purpose” is established, the government has the burden of proving that the discrimination was based on a “compelling state interest”—in other words, a “damn good reason.” Without this intent, the burden is on the party bringing the suit to prove that the government had no “rational basis” to act as it did. Contrary to the “compelling state interest” threshold, “rational basis” is the easiest test and typically results in the government’s success. 

The greater difficulty is that a party is unable to link the claims of race-based and wealth-based discrimination into a single argument. While evident race-based discrimination establishes the need for a “compelling state interest,” wealth- based discrimination only needs to pass the “rational basis” test to be sustained. The effect of this wide separation is that it allows for governments to use wealth as a proxy, to indirectly discriminate on the basis of race by blatant discrimination on the basis of income. Even if a clear race-based effect exists, the easier constitutional test will be applied in the absence of proving racist intent. 

This reality did not die with the abolition of poll taxes. It is currently seen in state and local school subsidy programs with funding disparities favoring predominantly white municipalities. Additionally, the dissimilar punishment under the federal sentencing guidelines has historically resulted in lighter sentences for wealthier, white cocaine users and stiffer penalties for poorer African American crack users. Recently, Georgia instituted a program where people without drivers’ licenses may have to buy ID cards in order to vote, which is likely to adversely affect poor and African American communities. 

The reason for this operational malfunction lies with two important Supreme Court cases. In 1976 the Court held in Washington v. Davis that the Equal Protection Clause is only applicable in instances of intentional racial discrimination by a government actor. In the 1973 case San Antonio School District v. Rodriguez, the Court addressed a funding provision that was yielding over $200 less per student in a poor, predominantly black and Latino municipality than in a more affluent, white township. In addition to ruling that the provision was constitutionally sound, the Court took the opportunity to discount the link between race and economics: “Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.” Until his death, Rehnquist represented the only living justice who voted with the majority in both of these regressive cases. 

Davis and Rodriguez have since been applied in federal courts to preserve government programs that have produced racially disparate effects, allowing judges to apply the easiest constitutional test to determine whether these programs pass muster. Educational funding programs in New York and Kansas, both of which yielded per student spending disparities along racial lines, were upheld. In California a provision that called for candidates to pay a fee in order to have a campaign statement on a sample ballot was found to be constitutional regardless of its likely disproportionate impact on minority contenders. A New York program that called for the demolition of unsafe residential buildings was also upheld, notwithstanding the program’s overwhelming focus on areas of lesser wealth and high minority populations; 12 of the 14 communities that were subject to this program were in the Bronx and Brooklyn. Of course, none of this includes the cases that likely never made it to court because of the hindrances that come with proving “invidious purpose.” 

The enduring effect is that our federal courts are essentially insulated from, and therefore less able to perceive and address, an apparent reality that wealth and race are not entirely separate. According to the 2005 book The State of Working America, 30.9 percent of African Americans possessed zero or negative net worth, as opposed to 13.1 percent of white Americans; and that the median wealth for African Americans was 10 percent of the median wealth for whites. The recently released poverty rates for African, Latino, and white Americans were 24.7 percent, 21.9 percent, and 8 percent respectively. Tragically, the child poverty rates for African, Latino, and white Americans were 30 percent, 28 percent, and 9.5 percent res- pectively 

The solution is rather simple. Equal protection should be modified so that a claim of discrimination, one that is rooted in both race and economic class, and where discriminatory intent cannot be proven, would trigger the intermediate standard of constitutional review. This mid-level test is already applied when dealing with gender-based claims of discrimination and should serve as the proper test in these matters. In this case, as opposed to the “rational basis” test, the burden would be on the government to prove that an “important government interest” necessitated the unequal treatment, as opposed to the mere existence of any rational reason. The intermediate standard is harder to satisfy than “rational basis,” yet easier than the more strict “compelling state interest” test. Essentially, this would make it harder for governments to covertly discriminate on the basis of race through the surrogate of income. 

More than this, it would reflect the proper approach and perception that the courts, as well as society, should possess in regards to the relationship of race and wealth. Courts have historically distinguished race, a supposedly biological or “immutable” characteristic from income. However, the U.S. socio-economic history has been somewhat, if not greatly defined, by the correlation between race and wealth. More than the statistics, the events of recent months have served as an extension of this distressing historical narrative, demonstrated when one analyzes the differences between those who successfully fled from Hurricane Katrina and those who were left behind and forced to confront it. 

With an increasingly conservative Supreme Court comes the decreased likelihood of any change in the Equal Protection Clause to address the historical link of race and means. In that case, the United States would have achieved a profoundly humiliating distinction. That in the pursuit of both legal and social equality, a cause that started with the brutal murder of Emmett Till and the birth of the Civil Rights Movement 50 years ago, our nation has been unable to achieve either. 

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David Mikhail teaches criminal justice and political science at Rutgers University. He has worked with the Center for Constitutional Rights in New York City.