Proving Unconstitutional Discrimination
The issue: How does one prove that a state action or policy violates the Equal Protection Clause?
When a statute or government policy classifies on the basis of race,  the court will strictly scrutinize the classification, insisting that the racial classification be necessary to further a compelling state interest. When, however, a statute is neutral on its face, but is alleged to have been applied in a racially discriminatory way, the ananlysis will not be so simple.  In order to convince the court to apply strict scutiny, it is necessary to show that the state's action was motivated by a discriminatory purpose.

Yick Wo, the earliest case in this set, involved a challenge by a Chinese-American to the San Francisco Board of Supervisors' decision to deny him a license to operate a wooden laundry. Yick Wo alleged discrimination, pointing out that 79 out of 80 non-Chinese who applied for laundry licenses received them, but only 1 out of 200 Chinese applicants were issued licenses.  The Court accepted that Yick Wo's statistical evidence made out a prima facie case of a violation of the Constitution.

Washington v. Davis was a challenge to Washington D. C.'s practice of requiring applicants for the city police force to pass a verbal skills test.  Because of better performance on the verbal skills test, whites were 60% of those passing the test, even though they were only 40% of the applicant pool.  In considering a challenge by black applicants to the city's use of the test, the Court concluded that a showing of disproportionate impact based on race was not sufficient to make out an equal protection violation.  Absent proof that the decision to employ the test was motivated by a desire to discriminate, Washington D. C. need only demonstrate a rational basis for using the test.

Arlington Heights has been called a primer for city officials anxious to discriminate, but concerned about civil rights suits.  The Court's decision, in setting out a difficult standard for plaintiffs to meet in proving discriminatory purpose, tells city officials exactly what they must avoid doing to avoid liability.  Arlington Heights holds that to establish a prima facie case of an equal protection violation, the person alleging discrimination must first show (through use of legislative history, a pattern of events, or departures from usual procedures) that discrimination was a motivating factor in the decision.  Then, according to the Court, the burden shifts to the city to show that the same decision would have resulted even if the discriminatory motive was not present.

Batson v Kentucky holds that excluding a potential juror on account of his or her race violates the Equal Protection Clause.  The problem again turns out to be proving discriminatory motive. 


Yick Wo v. Hopkins (1886)
Washington v. Davis (1976)
Arlington Heights v. MHDC (1977)
Batson v. Kentucky (1986)

Town markers, Arlington Heights, Illinois


1. When is statistical evidence of discriminatory motive sufficient to shift the burden to government to demonstrate that its motive was in fact race-neutral?  What if 20 of 200 Chinese applicants for laundry licenses had received them?
2.  Why shouldn't proof of disparate impact based on race constitute an equal protection violation, even in the absence of evidence of discriminatory motive?
3.  In what contexts are statistical disparities based on race very strong evidence of discrimination?  In what contexts are such disparities only weak evidence of discrimination?
4. What are the problems associated with a test that focuses on motives rather than effects?
5.  Are bigoted statements by the constituents of elected officials relevant evidence of the officials' discriminatory motive?
6. What types of evidence might be introduced to prove discriminatory purpose?
7.  How should the problem of mixed motivation be handled?
8.  Does the Court's test effectively allow governments to discriminate so long as they are careful about it?
9.  Should the court accept race-neutral explanations or consider their weight?  If a principal says, explaining the fact that all black students are assigned seats on one side of the classroom and all whites on the other, "It looks better that way," should a court accept that as race-neutral? 


Proving Discrimination: Key Points

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