Equal Protection: Strict Scrutiny of Racial Classifications

Equal Protection: Strict Scrutiny of Racial Classifications

Updated June 30, 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 that remedying general, “societal discrimination” is
not a sufficiently compelling interest to satisfy strict
When Strict Scrutiny Applies
scrutiny. Students for Fair Admissions, Inc. v. President
When a statute, regulation, or other government action
and Fellows of Harvard College, 600 U.S. _ (2023). For
distributes burdens or benefits based on race, ethnicity, or
several decades, the Court also recognized achieving a
national origin, courts will impose a rigorous, “strict
diverse student body as a compelling government interest,
scrutiny” test to decide whether it violates constitutional
permitting some use of race in higher education admissions.
equal protection principles. (While courts apply strict
In 2023, the Court held that two schools’ race-based
scrutiny in other contexts, including to decide whether
admissions programs relying on this interest violated equal
content-based restrictions on speech comport with the First
protection, although the Court observed that schools may
Amendment, this In Focus limits its discussion to racial
consider a student’s individual life experience with race “be
classifications under the Equal Protection Clause.) To pass
it through discrimination, inspiration, or otherwise.” Id.
the strict scrutiny test, a law must be narrowly tailored to
serve a compelling government interest.
When the government aims to remedy discrimination, it
must prove that there was in fact discrimination to establish
The same test applies whether the racial classification aims
a compelling government interest. In such cases, the
to benefit or harm a racial group. Strict scrutiny also applies
Supreme Court has required that there be a strong basis in
whether or not race is the only criteria used to classify. For
evidence—that is, an extensive and specific record in
example, if a grant program prioritizes three applicant
support. City of Richmond v. J.A. Croson Co., 488 U.S. 469
groups: veterans, people with disabilities, and members of a
(1989). The evidence must align with the challenged
minority racial group, the racial preference triggers strict
remedial program. If a state government gives a
scrutiny, even though it is not the only preference.
construction contracting preference to Black and Asian-
Similarly, if race is a determinative factor in deciding who
owned businesses, for example, the government must
gets a benefit, the benefits program must pass strict
present evidence of discrimination against Black-owned
scrutiny, even if nonracial factors also play a part. Benefits
construction businesses and Asian-owned construction
for federally recognized Indian tribes present a special case;
businesses in that state’s construction industry.
such measures may hinge on a political status—tribal
membership—rather than race.
What types of evidence are courts looking for? When it
comes to legislative action, courts have considered
Equal protection principles limit only intentional race-based
legislative findings, reports to Congress, testimony, and
actions. Classifications that have an unintentional effect on
floor speeches—in short, the whole legislative record. In
a racial group (sometimes called a disparate impact) are not
contrast, statements made after a law’s enactment, and
subject to strict scrutiny. A government benefit offered
evidence not before legislators, cannot generally be used to
based on income or home ownership, for example, would
show lawmakers’ remedial aims.
not face strict scrutiny even if members of a particular
racial group less often qualify for the benefit. Race-based
Statistical evidence also may be important. Courts have
classifications affording no benefits or burdens will not be
sometimes cited agency data, congressional studies, or
subject to strict scrutiny. Collecting racial demographic
academic research included in the legislative record.
data, for example, rarely implicates equal protection.
Hearings and expert testimony might introduce this
statistical evidence and illustrate its significance. Courts
sometimes treat anecdotal evidence as relevant, particularly
in showing that a statistical disparity is likely the result of
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Equal Protection: Strict Scrutiny of Racial Classifications
discrimination rather than benign factors. However, courts
availability of qualified minority subcontractors in each
have not viewed conclusory assertions by legislators as
industry and region, rather than on statewide demographics.
establishing a strong basis in evidence.
Finally, a narrowly tailored remedy should minimize harm
It is hard to say how much evidence is needed; courts
to third parties such as nonminority firms, applicants, or
evaluate each record in context. To justify a nationwide
recipients. In competition for limited benefits, a court may
program, lawmakers need to show discrimination of
find that racial preferences impose unjustified harms. In
national significance—rather than isolated instances—
general, a racial classification is more problematic under
although state-by-state evidence is not required.
this factor if it affects third parties’ vested interests in some
way, leaves third parties worse off than they were before
Narrowly Tailored Remedies
(e.g., layoffs), or is unavailable to nonminorities.
If a court finds a firm basis in evidence to support a
compelling government interest in taking race-based action,
Although there are several ways to tailor a remedy, it can be
it will look to see if the action is narrowly tailored to
hard to predict judicial outcomes. Decisionmakers may use
address that interest. On the whole, the court will consider
any or all of the Paradise factors. As a whole, the Paradise
whether the racial distinctions are necessary and whether
factors help courts assess whether a race-conscious remedy
they are over-inclusive or under-inclusive. The Supreme
is under-inclusive or over-inclusive. Sometimes, however,
Court’s plurality opinion in United States v. Paradise, 480
courts consider this more directly, looking at whether race-
U.S. 149 (1987), identifies several relevant factors: “the
based policies benefit those who have not suffered
necessity for the relief and the efficacy of alternative
discrimination (i.e., are over-inclusive) or fail to benefit
remedies; the flexibility and duration of the relief, including
those who have (i.e., are under-inclusive). A narrowly
the availability of waiver provisions; the relationship of the
tailored remedy avoids both.
numerical goals to the relevant labor market; and the impact
of the relief on the rights of third parties.”
Considerations for Congress
Applying precedent in this area can be difficult. Cases are
First, to decide whether the race-based government action is
few, as laws that use race are rare. Many of the Supreme
necessary, a court may look for race-neutral options. Race-
Court’s cases on the subject have produced splintered
based government action might be more likely to survive
opinions with no clear majority rule. Historically, Supreme
strict scrutiny if race-neutral options have failed. A state
Court precedent on racial classifications comes almost
employer might expand outreach and recruiting to minority
entirely from three contexts—contracting, hiring, and
applicants, for example, before implementing a race-based
higher-education admissions; and the Supreme Court has
hiring goal. If these attempts do not sufficiently achieve the
recently expressed disapproval of affirmative action in
compelling interest, later race-based policies are easier to
higher education. Extrapolating from the limited cases to
justify.
assess the constitutional vulnerability of other kinds of race-
based actions is difficult, given that equal protection
Next, courts may look to see if a racial classification is too
analysis is context-specific. There are no bright-line rules.
broad. As part of the analysis, a court may consider the
program’s flexibility. Race-based quotas represent the least
Thus, if legislators undertake race-based actions, the more
flexible options and are disfavored. Flexible measures
comprehensive the legislative record, the better. Remedying
include ways to opt into or out of the preference. For
past discrimination is the most well-established government
example, a preference for minority firms in construction
interest supporting race-based legislation, and a record
subcontracting might exclude wealthier firms (which have
supporting this interest generally includes detailed findings
made more progress in overcoming discriminatory barriers)
of discrimination and strong supporting evidence. Once a
to focus on smaller, under-resourced firms.
record is built, a more limited remedy more easily passes
strict scrutiny. Sunset provisions, reauthorization
Adding waiver provisions may also help. If a government
requirements, race-neutral criteria, and waiver provisions
sets a minority hiring goal, for example, a waiver option
can help. If legislation includes a numerical goal, it can be
might excuse noncompliance if hiring officials show good-
tailored to reflect available data. Finally, measures to
faith efforts in outreach and recruiting, or show a lack of
minimize harms to third parties can reduce a statute’s
qualified minority candidates. How long the relief program
vulnerability to equal protection challenges under strict
lasts is also important. A preference with a sunset provision
scrutiny.
or a reauthorization requirement is more narrowly tailored
than one of indefinite length, as it is less likely to last past
As strict scrutiny is demanding, legislators may consider
the time when discrimination’s effects have receded.
using nonracial classifications. These could be measures of
health, education, income, access to resources (e.g.,
While courts disfavor quotas, they may allow targets or
hospitals, transportation, or grocery stores), or proximity to
goals, provided they reflect relevant data. In evaluating a
hazards (e.g., pollution, underperforming schools, or high
goal or preference, courts may consider the relevant market,
crime).
or applicant pool. Courts may refer to the government’s
evidence supporting the compelling interest, reflecting
April J. Anderson, Legislative Attorney
demonstrated disparities in minority participation. A narrow
plan for requiring prime contractors to hire minority
IF12391
subcontractors, for example, would tie hiring goals to
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Equal Protection: Strict Scrutiny of Racial Classifications

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