When it was ratified, the Constitution provided no guarantee of equal protection under the law. Only after the Civil War was the Fourteenth Amendment, with its Equal Protection Clause, added to the Constitution. Moreover, until the Civil Rights Movement of the mid-to-late 20th century, the Equal Protection Clause made little difference in the lives of many minorities and disadvantaged populations. An 1896 Supreme Court decision, Plessy v. Ferguson, allowed institutionalized discrimination on the theory that the “equal protection clause” allowed race-based differentiation as long as the facilities were “separate but equal.” In practice, however, until a plethora of Supreme Court cases and federal laws stripped away the concept of separate but equal from the American legal system, separate was very much unequal.
The Equal Protection Clause, which some refer to as “the single most important concept in the Constitution for the protection of individual rights” extends beyond ensuring equality of treatment based on race and other criteria. The clause has also produced desegregation and affirmative action and has promoted equal treatment and concern for different groups under the law. In this module, we’ll discuss the Equal Protection Clause’s history and its many applications in the modern legal system.
Development and History of the Equal Protection Clause
Until the Civil War, nothing in the Constitution addressed equality. The Bill of Rights’ purpose was to address fears that a too-powerful federal government might invade a citizen’s sphere of rights or the sovereignty of the states. The Fifth Amendment prohibited the federal government from depriving a person of life, liberty, or property without due process of law, but this did not necessarily mandate equality. This was made clear by the fact that this same Constitution tacitly endorsed slavery and counted slaves as three-fifths of a person for some legal purposes.
Even after the Civil War, though the slaves had been freed by the emancipation proclamation and slavery was barred by the 13th Amendment, several southern states enacted a series of “Black Codes” that, in effect, maintained appalling treatment of newly freed slaves. For example, Black Codes barred a freedman from possessing weapons, from preaching to his congregation, from gathering in crowds without supervision by a “white person,” and from being unemployed. In response, Congress forced southern states to ratify the 14th Amendment as a condition to regain representation in the federal government. The Equal Protection Clause, located at the end of Section 1 of the 14th Amendment, requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” It would take almost a century for the Amendment to be enforced, though. Until the 1950’s and 60’s, Jim Crow and similar laws maintained racial segregation in the former confederacy and open racial discrimination persisted in many northern cities as well.
The beginning of the end of legalized race-based discrimination came in the 1954 case, Brown v. Board of Education. In Brown, the Court concluded that maintaining racially segregated public schools violated the Equal Protection Clause of the Fourteenth Amendment. The case did not strike down the entire concept of “separate but equal” but did rule that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” While the equal protection clause, by its terms, applies only to states, in another 1954 school desegregation decision, Bolling v. Sharpe, the Supreme Court concluded that intentional acts of racial discrimination could be a violation of due process of law, reasoning that the Fifth Amendment’s Due Process Clause compels the federal government to provide a person with due process before depriving him of life, liberty, or property. That case involved school segregation in the District of Columbia, which is not a state and so was not technically subject to the equal protection clause. The effect of Bolling is that equal protection rules apply to the federal government and not just state governments.
In a later case, Reed v. Reed, the Supreme Court elaborated on the Equal Protection Clause:
“The Equal Protection Clause … den[ies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on [a] basis … wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the … legislation, so that all persons similarly [situated are] treated alike.’”
Equal Protection Analyses of Non-Suspect Classifications
In Module 1, we looked at the reasons for differing levels of scrutiny in equal protection cases and discussed the applicable standards. Now, we will look at each of these standards in greater depth. The first level of scrutiny is rational basis review which a court will apply to determine the constitutionality of a law that is based on a non-suspect classification. Non-suspect classifications include economic-based regulations, such as those based on income level or eligibility for government financial assistance. They also include classifications based on age, such as setting minimum ages for holding certain public offices.
As long as the law is rationally related to serving a legitimate state interest, a court will uphold it. The Supreme Court explained rational basis analysis in a 1969 case, McDonald v. Board of Elections, as follows:
The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside… only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally… and their statutory classifications will be set aside only if no grounds can be conceived to justify them.
In Armour v. Indianapolis, decided by the Supreme Court in 2012, an Indiana law required property owners to pay their “fair shares” for civic projects such as new roads or sewers, and an Indianapolis ordinance allowed taxpayers to choose whether to pay for sewer connection monthly or as a lump sum. Later, the city switched its payment system, and forgave any amounts still owed by those paying under installment plans. Those who had paid in full thought that this new law was unfair because they had paid everything they owed, while their neighbors hadn’t. They sued, requesting refunds on what they had paid.
The Court employed rational basis review and ruled that the city need not issue refunds to those who had paid in full. The Court ruled that Indianapolis had a rational basis for its distinction – avoiding the administrative costs of calculating precisely who had paid their fair shares and how much should be refunded and the further administrative headache of collecting funds from the installment plan payers to offset the refunds. While arbitrarily cutting off all outstanding obligations may not be completely “fair” in the classic sense of the word, it was not irrational. Note that a three-Justice dissent would have struck down the rule even under a rational basis analysis. Courts have also applied rational basis review and upheld laws regulating terms and conditions of pensions guaranteed by the United States, regulating the services of opticians, and laws banning the sale of milk in non-recyclable plastic containers.
Equal Protection Analyses of Quasi-Suspect Classifications
Next, we’ll move to quasi-suspect classification, in which laws are judged against an analysis known as “intermediate” or “medium” scrutiny. A law subjected to medium scrutiny will be upheld only if the government can show that it is substantially related to an important government interest. The Supreme Court created intermediate scrutiny and applied it to gender-based classifications when analyzing the constitutionality of Oklahoma’s alcohol statute in Craig v. Boren. The law set the minimum legal age for consuming 3.4% beer at 18 for women but 21 for men. Oklahoma had found evidence that men tended to drive drunk more often than women, thus precipitating the law. The Supreme Court struck down the rule under the Equal Protection Clause, reasoning that gender is a protected class. The Court found that Oklahoma had not demonstrated a substantial connection between the alcohol law and the government interest in traffic safety purportedly served by the law.
Twenty years later, in United States v. Virginia, the Supreme Court ruled unconstitutional the operation of Virginia Military Institute, a state school which operated as a men-only institution. While the state had established a comparable school for women – the Virginia Women’s Institute for Leadership – Justice Ginsburg’s majority opinion ruled that the women’s school would not provide women with the same type of training, experience and connections as did VMI. The Court’s ruling further states that to sustain a gender-based classification, the government needed an “exceedingly persuasive justification,” which Virginia had not shown. Equal protection claims based on sexual orientation have also recently been analyzed based on heightened scrutiny. A 1996 Supreme Court case, Romer v. Evans, held that sexual orientation was not a suspect or quasi-suspect classification. Interestingly, though the Colorado provision at issue there – which prevented Colorado cities from prohibiting discrimination based on sexual orientation – was subjected only to rational basis review, it was still ruled unconstitutional.
In 2013, in United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act, which had limited marriage to heterosexual couples for most federal purposes. The Second Circuit had maintained that classifications based on sexual orientation should be subject to intermediate scrutiny. The Supreme Court’s decision did not expressly adopt that position, but implied that the Defense of Marriage Act failed rational basis review in any case. Two years later, in the landmark case, Obergefell v. Hodges, the Court ruled that same-sex couples had a constitutional right to marry. That decision, again without taking a position on whether heightened scrutiny should apply to sexual orientation classifications, relied as much on “due process” grounds as on equal protection. Thus, despite the grant of same-sex couples the right to marry, we are left without clear Supreme Court authority that sexual orientation classifications are subject to medium scrutiny.
More recently, the question has arisen as to whether transgender classifications are subject to heightened scrutiny or merely rational basis review. In 2016, North Carolina passed a law requiring state and local governments and public schools to restrict use of their gender-segregated restrooms and showering facilities according to the biological sex of users. In response, the federal government issued a guidance letter that concluded that school board policies and state laws that enforced gender stereotypes in public schools violated federal civil rights laws. Gavin Grimm, a transgender student, sued his Virginia school district for enforcing a similar rule and won a district court decision in his favor. An appeal may still be pending.
As gender-identity-based minority groups continue to press for the dignity of equal treatment under law, it remains to be seen whether the Supreme Court will conclude that all such categorizations related to gender and sex, like those specifically discriminating between men and women, will be held subject to heightened scrutiny.
Equal Protection Analyses of Suspect Classifications
Finally, we’ll look at suspect classifications, which are subject to strict scrutiny. Strict scrutiny is applied when a government regulation or action discriminates based on race or national origin and to laws that burden fundamental rights such as the right to vote or the right to travel between states. Strict scrutiny also applies to state laws that differentiate based on citizenship status (though not to federal laws that do the same). When strict scrutiny applies, the government must show that its law is the most narrowly tailored (least restrictive) way to achieve a compelling government interest. Lawyers and legal theorists sometimes contend that the strict scrutiny test is “strict in theory but fatal in fact.” That means that, with few exceptions, a court employing strict scrutiny will invalidate a challenged law. Ironically, the most iconic example of the application of strict scrutiny was in a much-maligned case in which a discriminatory government act was upheld under strict scrutiny analysis. This was Korematsu v. United States, which upheld the internment of Japanese Americans during World War II. The Court found that internment did not violate the Equal Protection Clause, finding that relocation and confinement of Japanese-Americans was a “military urgency” in the war against Japan, justified by concern over domestic espionage and sabotage.
Strict scrutiny is only applied when a regulation intentionally discriminates based on one of the prohibited criteria. Where there is no intent to discriminate, a law is subject only to rational basis review, even if it disproportionately impacts minorities. Thus, in Washington v. Davis, the Supreme Court upheld the District of Columbia’s use of a written test for police officer applicants even though they had a disproportionately negative impact on racial minorities, because the plaintiffs could not show discriminatory intent. However, even a facially neutral law will be subject to strict scrutiny if discriminatory intent can be shown. A more recent example of the Court’s refusal to apply strict scrutiny concerned a 2017 series of Executive Orders issued by President Donald Trump, restricting travel from specified Middle Eastern and North African countries. Dozens of lawsuits were filed, alleging that the travel targeted Muslim countries and should be subject to strict scrutiny analysis. In Trump v. Hawaii, though, the Supreme Court upheld the constitutionality of the President’s Executive Order. In doing so, the Court did not employ strict scrutiny to the claimed violation of the Equal Protection Clause.
“Benign” Discrimination and Affirmative Action Programs
Benign discrimination is generally defined as a racial preference which advances the interests of minorities and as a result, incidentally burdens the majority. These rules, called “affirmative action” usually take the form of preferences for minority applicants in universities or employment. Affirmative action programs exemplify benign discrimination because they are designed to eliminate existing discrimination against women, racial, and ethnic minorities, to remedy the lingering effects of past discrimination against these groups, to achieve diversity in schools or in the workforce and to prevent future discrimination against these groups. Though the language of Footnote 4 in Caroline Products would seem to indicate that there is no reason to subject these to heightened scrutiny (as they do not disadvantage discreet and insular minorities) and though government-sponsored affirmative action was not always subject to strict scrutiny, the Supreme Court ruled in 1995 that all race-based government differentiation must pass struct scrutiny.
Despite being subject to strict scrutiny, some affirmative action programs in government schools and workplaces have been upheld. In 2003, in Grutter v. Bollinger, the Court upheld a “race-conscious admissions” process that may favor underrepresented minority groups because it also accounted for other factors and evaluated every applicant on an individual basis. On the other hand, “set-asides” that mandate that a specific percentage of a class or workforce must be set aside for minorities, have been ruled unconstitutional. Another Texas affirmative action program came up for review in Fisher v. University of Texas at Austin. In 2008, the university denied Abigail Fisher, a Caucasian female, admission to the University after it had adopted a race-conscious admissions program. The University’s program granted automatic admission to all students in the top 10% of their class at high schools. Remaining applicants were reviewed under a “holistic review program”, which considers race among other factors. Fisher challenged the constitutionality of the university’s race-conscious admissions policy. In 2013, the Supreme Court held that the appellate court was wrong in failing to apply strict scrutiny to the race-conscious policy. Instead, it had erroneously required Fisher to show that the University’s consideration of race among other factors was not “in good faith.” On remand, the lower courts again decided in favor of the University of Texas and the Supreme Court heard arguments again to decide whether the school’s use of racial preferences passed strict scrutiny. By a 4-3 decision, the Court held that the race-conscious admission plan was constitutionally permissible, as it was narrowly tailored to pursue the University’s compelling interest of promoting the educational benefits that spring from student body diversity.
In our next module, we’ll turn from equal protection to “due process,” which focuses on the protections against government deprivation of rights without appropriate justifications and procedures.
 14th Amendment, History.com, https://www.history.com/topics/black-history/fourteenth-amendment (last visited July 10, 2018).
 Plessy v. Ferguson, 163 U.S. 537 (1896).
 Separate but Equal, The Law of the Land, Smithsonian, http://americanhistory.si.edu/brown/history/1-segregated/separate-but-equal.html (last visited July 10, 2018).
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 14th Amendment, History.com, https://www.history.com/topics/black-history/fourteenth-amendment (last visited July 10, 2018).
 U.S. Const. amend. XIV, § 1.
 Melvin I. Urofsky, Jim Crow Law, Britannica, https://www.britannica.com/event/Jim-Crow-law (last visited July 10, 2018).
 Gene Dattel, Northern Racism Helped Doom Reconstruction, Encounter Books, (Oct. 10, 2017), https://www.encounterbooks.com/features/northern-racism-helped-doom-reconstruction/.
 Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
 Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
 Reed v. Reed, 404 U.S. 71, 75-76 (1971).
 See James v. Valtierra, 402 U.S. 137, 141 (1971)
 See Manson v. Edwards, 482 F. 2d 1076, 1077 (6th Cir. 1973)
 McDonald v. Board of Elections, 394 US 802, 809 (1969)
 Scott Chinn & Daniel E. Pulliam, “Minimalist Developments In Indiana Constitutional Law–Equal Privileges Progresses Slowly”,49 Ind. L. Rev. 1003, 1020 (2016).
 Armour v. City of Indianapolis, 566 U.S. 673, 681-82 (2012).
 Id. at 2084.
 Pension Benefit Guaranty Corporation v. R.A. Gray & Co., 467 U.S. 717, 730 (1984).
 Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 463-64 (1955).
 Minnesota v. Clover Leaf Creamery, 449 US 456, 464 (1981).
 Craig v. Boren, 429 US 190, 200-02 (1976).
United States v. Virginia, 518 U.S. 515, 531 (1996).
 Romer v. Evans, 517 US 620, 635 (1996).
 United States v. Windsor, 570 U.S. 744, 770 (2013).
 Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012)
 Obergefell v. Hodges, 135 S. Ct. 2584, 2598-99 (2015).
 North Carolina’s “Bathroom Bill,” https://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v1.pdf.
 Dear Colleague Letter, U.S. Dep’t Justice, Civil Rights Div., & U.S. Dep’t Educ., Off. of Civil Rights, (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
 Matt Stevens, Transgender Student in Bathroom Dispute Wins Court Ruling, N.Y. Times, (May 22, 2018), https://www.nytimes.com/2018/05/22/us/gavin-grimm-transgender-bathrooms.html
 Brett Snider, Challenging Laws: 3 Levels of Scrutiny Explained, FindLaw, (Jan. 27, 2014),https://blogs.findlaw.com/law_and_life/2014/01/challenging-laws-3-levels-of-scrutiny-explained.html.
 Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972-1973).
 Korematsu v. United States, 323 U.S. 214, 219-20 (1944).
 Washington v. Davis, 426 U.S. 229, 239-240 (1976)
 See Yick Wo v. Hopkins, 118 U.S. 356 (1886)
 Litigation Documents & Resources Related to Trump Executive Order on Immigration, LawFare
https://www.lawfareblog.com/litigation-documents-resources-related-trump-executive-order-immigration#State%20of%20Hawaii (last visited July 10, 2018).
 Trump v. Hawaii, 2018 U.S. LEXIS 4026 (June 26, 2018).
 Graig Alvarez, “Equal Protection – Affirmative Action – The Supreme Court’s Continuing Journey to the Legal High Ground, Adarand v. Pena, 115 S. Ct. 2097 (1995)”, 38 S. Tex. L. Rev. 225, 235 (1997).
 See Adarand Constructors, Inc. v.Peña, 515 U.S. 200, 227 (1995)
Grutter v. Bollinger, 539 U.S. 306, 334 (2003).
 Regents of the University of California v. Bakke, 438 U.S. 265, 318-19 (1978)
 R. Nicholas Rabold, “The Smug Assumption of Reverse Discrimination: Abigail Fisher and Fisher v. University of Texas at Austin”, 105 Ky. L.J. 705, 710 (2016).
 Fisher v. Univ. of Tex., 570 U.S. 297, 311 (2013).
Fisher v. Univ. of Tex., 136 S. Ct. 2198, 2214 (2016).