April 27, 2023
Equal Protection: Strict Scrutiny of Racial Classifications
Under the Equal Protection Clause of the Fourteenth
When strict scrutiny applies, the government has the burden
Amendment, “[n]o State shall … deny to any person within
of proving both a compelling interest and narrow tailoring,
its jurisdiction the equal protection of the laws.” The same
and neither is easy to do.
equal protection obligation applies to the federal
government through the Fifth Amendment. In general, the
A Compelling Government Interest and
rule governs claims that the government is improperly
a Strong Basis in Evidence
treating individuals or groups differently. In most contexts,
Typically, racial classifications in legislation seek to
the government only has to show that distinctions it draws
remedy past discrimination. This goal can qualify as a
in law or policy are rational, rather than arbitrary. However,
compelling government interest. In practice, courts have
the Supreme Court has held that classifications based on
viewed this interest as more compelling when the aim is
race call for enhanced safeguards, known as “strict
correcting past government discrimination, or government
scrutiny,” under the Equal Protection Clause. This In Focus
participation in discrimination. The Supreme Court has
outlines that analysis.
stated, although arguably not as part of a controlling
majority holding, that remedying general, “societal
When Strict Scrutiny Applies
discrimination” is not a sufficiently compelling interest to
When a statute, regulation, or other government action
satisfy strict scrutiny. See, e.g., Shaw v. Hunt, 517 U.S. 899,
distributes burdens or benefits based on race, ethnicity, or
909-10 (1996); City of Richmond v. J.A. Croson Co., 488
national origin, courts will impose a rigorous, “strict
U.S. 469, 499 (1989) (plurality op.).
scrutiny” test to decide whether it violates constitutional
equal protection principles. (While courts apply strict
When the government aims to remedy discrimination, it
scrutiny in other contexts, including to decide whether
must prove that there was in fact discrimination to establish
content-based restrictions on speech comport with the First
a compelling government interest. In such cases, the
Amendment, this In Focus limits its discussion to racial
Supreme Court has required that there be a strong basis in
classifications under the Equal Protection Clause.) To pass
evidence—that is, an extensive and specific record in
the strict scrutiny test, a law must be narrowly tailored to
support. City of Richmond v. J.A. Croson Co., 488 U.S. 469
serve a compelling government interest.
(1989). The evidence must align with the challenged
remedial program. If a state government gives a
The same test applies whether the racial classification aims
construction contracting preference to Black and Asian-
to benefit or harm a racial group. Strict scrutiny also applies
owned businesses, for example, the government must
whether or not race is the only criteria used to classify. For
present evidence of discrimination against Black-owned
example, if a grant program prioritizes three applicant
construction businesses and Asian-owned construction
groups: veterans, people with disabilities, and members of a
businesses in that state’s construction industry.
minority racial group, the racial preference triggers strict
scrutiny, even though it is not the only preference.
What types of evidence are courts looking for? When it
Similarly, if race is a determinative factor in deciding who
comes to legislative action, courts have considered
gets a benefit, the benefits program must pass strict
legislative findings, reports to Congress, testimony, and
scrutiny, even if nonracial factors also play a part. Benefits
floor speeches—in short, the whole legislative record. In
for federally recognized Indian tribes present a special case;
contrast, statements made after a law’s enactment, and
such measures may hinge on a political status—tribal
evidence not before legislators, cannot generally be used to
membership—rather than race.
show lawmakers’ remedial aims.
Equal protection principles limit only intentional race-based
Statistical evidence also may be important. Courts have
actions. Classifications that have an unintentional effect on
sometimes cited agency data, congressional studies, or
a racial group (sometimes called a disparate impact) are not
academic research included in the legislative record.
subject to strict scrutiny. A government benefit offered
Hearings and expert testimony might introduce this
based on income or home ownership, for example, would
statistical evidence and illustrate its significance. Courts
not face strict scrutiny even if members of a particular
sometimes treat anecdotal evidence as relevant, particularly
racial group less often qualify for the benefit. Race-based
in showing that a statistical disparity is likely the result of
classifications affording no benefits or burdens will not be
discrimination rather than benign factors. However, courts
subject to strict scrutiny. Collecting racial demographic
have not viewed conclusory assertions by legislators as
data, for example, rarely implicates equal protection.
establishing a strong basis in evidence.
It is hard to say how much evidence is needed; courts
evaluate each record in context. To justify a nationwide
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Equal Protection: Strict Scrutiny of Racial Classifications
program, lawmakers need to show discrimination of
While courts disfavor quotas, they may allow targets or
national significance—rather than isolated instances—
goals, provided they reflect relevant data. In evaluating a
although state-by-state evidence is not required.
goal or preference, courts may consider the relevant market,
or applicant pool. Courts may refer to the government’s
One other potential compelling interest is achieving
evidence supporting the compelling interest, reflecting
diversity, at least in some contexts. Thus far, the Supreme
demonstrated disparities in minority participation. A narrow
Court has held that a university’s interest in achieving a
plan for requiring prime contractors to hire minority
diverse student body is a compelling government interest.
subcontractors, for example, would tie hiring goals to
Grutter v. Bollinger, 539 U.S. 306, 325 (2003). The Court
availability of qualified minority subcontractors in each
has not extended this rule outside of higher-education
industry and region, rather than on statewide demographics.
admissions, however, and in a pair of cases the Court is
reviewing, petitioners have asked it to reconsider the rule.
Finally, a narrowly tailored remedy should minimize harm
See CRS Legal Sidebar LSB10893, The Supreme Court
to third parties such as nonminority firms, applicants, or
Considers Affirmative Action: Arguments in the Cases
recipients. In competition for limited benefits, a court may
Against Harvard and the University of North Carolina, by
find that racial preferences impose unjustified harms. In
April J. Anderson. If the petitioners prevail, the Court may
general, a racial classification is more problematic under
reverse precedent recognizing diversity as a compelling
this factor if it affects third parties’ vested interests in some
government interest in the higher-education context.
way, leaves third parties worse off than they were before
(e.g., layoffs), or is unavailable to nonminorities.
Narrowly Tailored Remedies
If a court finds a firm basis in evidence to support a
Although there are several ways to tailor a remedy, it can be
compelling government interest in taking race-based action,
hard to predict judicial outcomes. Decisionmakers may use
it will look to see if the action is narrowly tailored to
any or all of the Paradise factors. As a whole, the Paradise
address that interest. On the whole, the court will consider
factors help courts assess whether a race-conscious remedy
whether the racial distinctions are necessary and whether
is under-inclusive or over-inclusive. Sometimes, however,
they are overinclusive or under-inclusive. The Supreme
courts consider this more directly, looking at whether race-
Court’s plurality opinion in United States v. Paradise, 480
based policies benefit those who have not suffered
U.S. 149 (1987), identifies several relevant factors: “the
discrimination (i.e., are over-inclusive) or fail to benefit
necessity for the relief and the efficacy of alternative
those who have (i.e., are under-inclusive). A narrowly
remedies; the flexibility and duration of the relief, including
tailored remedy avoids both.
the availability of waiver provisions; the relationship of the
numerical goals to the relevant labor market; and the impact
Considerations for Congress
of the relief on the rights of third parties.”
Applying precedent in this area can be difficult. Cases are
few, as laws that use race are rare. Many of the Supreme
First, to decide whether the race-based government action is
Court’s cases on the subject have produced splintered
necessary, a court may look for race-neutral options. Race-
opinions with no clear majority rule. Supreme Court
based government action might be more likely to survive
precedent on racial classifications comes almost entirely
strict scrutiny if race-neutral options have failed. A state
from three contexts—contracting, hiring, and higher-
university might try admitting all applicants graduating in
education admissions. Extrapolating from these cases to
the top 10% of the state’s high schools, for example, before
assess the constitutional vulnerability of other kinds of race-
using an explicit racial admission preference. If these
based actions is difficult, given that equal protection
attempts do not sufficiently achieve the compelling interest,
analysis is context-specific. There are no bright-line rules.
later race-based policies are easier to justify.
Thus, if legislators undertake race-based actions, the more
Next, courts may look to see if a racial classification is too
comprehensive the legislative record, the better. Remedying
broad. As part of the analysis, a court may consider the
past discrimination is the most well established government
program’s flexibility. Race-based quotas represent the least
interest supporting race-based legislation, and a record
flexible options and are disfavored. Flexible measures
supporting this interest generally includes detailed findings
include ways to opt into or out of the preference. For
of discrimination and strong supporting evidence. Once a
example, a preference for minority firms in construction
record is built, a more limited remedy more easily passes
subcontracting might exclude wealthier firms (which have
strict scrutiny. Sunset provisions, reauthorization
made more progress in overcoming discriminatory barriers)
requirements, race-neutral criteria, and waiver provisions
to focus on smaller, under-resourced firms.
can help. If legislation includes a numerical goal, it can be
tailored to reflect available data. Finally, measures to
Adding waiver provisions may also help. If a government
minimize harms to third parties can reduce a statute’s
sets a minority hiring goal, for example, a waiver option
vulnerability to equal protection challenges under strict
might excuse noncompliance if hiring officials show good-
scrutiny.
faith efforts in outreach and recruiting, or show a lack of
qualified minority candidates. How long the relief program
As strict scrutiny is demanding, legislators may consider
lasts is also important. A preference with a sunset provision
using nonracial classifications. These could be measures of
or a reauthorization requirement is more narrowly tailored
health, education, income, access to resources (hospitals,
than one of indefinite length, as it is less likely to last past
transportation, or grocery stores), or proximity to hazards
the time when discrimination’s effects have receded.
(pollution, underperforming schools, or high crime).
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Equal Protection: Strict Scrutiny of Racial Classifications

IF12391
April J. Anderson, Legislative Attorney


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