For a plaintiff to prevail in a claim that a government act violates
the Equal Protection Clause, the plaintiff must demonstrate that the
government intended to discriminate.
196Intent can be proven by
192. See STONE ET AL., supra note 180, at 680-82. Despite the heightened level of scru-
tiny, the Court has nonetheless continued to uphold some statutes that discriminate against either gender. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 475 (1981) (upholding a statute subjecting men but not women to statutory rape charges when they engage in sex with a partner under the age of 18); Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (upholding the male-only draft); Schlesinger v. Ballard, 419 U.S. 498, 510 (1975) (sustaining a federal statute that granted female navy members a longer time period in which to achieve a mandatory promotion); Kahn v. Shevin, 416 U.S. 351, 356 (1974) (upholding a Florida statute that provided a property tax exemption for widows but not widowers); Gedulig v. Aiello, 417 U.S. 484, 497 (1974) (upholding California’s ex- clusion of pregnancy-related disabilities under the state’s disability insurance program). Consequently, the Court has sent mixed messages as to exactly which level of scrutiny would be used when reviewing equal protection challenges to laws. See STONE ET AL., supra
note 180, at 681-82.
193. See, e.g., Kahn, 416 U.S. at 354.
194. See STONE ET AL., supra note 180, at 713-18.
195. See Califano v. Webster, 430 U.S. 313, 317 (1977) (upholding a federal social secu- rity scheme that provided better benefits to women than men as an appropriate remedial statute designed to redress “‘society’s longstanding disparate treatment of women’” rather than one intending to restrict women to stereotypical female roles, or intentionally dis- criminatory toward men) (citation omitted). But see Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 733 (1982) (striking down a state university’s policy of precluding men from its nursing school as unrelated to remedial goals). Notably, Justice O’Connor wrote that by restricting men the University perpetuated a stereotype that only women should be nurses. See id. at 736.
196. See Washington v. Davis, 426 U.S. 229, 236 (1976) (holding that while a test given to police officers may have had a discriminatory impact against African Americans, dis- criminatory impact alone does not prove a discriminatory intent). The Court compared the Equal Protection Clause to Title VII of the Civil Rights Act and noted that a Title VII plaintiff could prove an intent to discriminate by proving a disparate impact, from which an intent to discriminate would be inferred. See id. at 238. Thus, a plaintiff can more easily prove intent under Title VII than under the Equal Protection Clause. See id.; Rogers v. Lodge, 458 U.S. 613, 617 (1982) (“[I]n order for the Equal Protection Clause to be violated, ‘the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.’”) (citation omitted).
showing that the law is facially discriminatory,
197that the law is ad-
ministered in a discriminatory manner,
198or that although the law is
facially neutral and appears to be applied in a non-discriminatory
manner, discrimination can be proven through an examination of the
legislative history or other evidence that clearly indicates a discrimi-
natory intent.
199Frequently, statistics are used to prove intent to dis-
criminate.
200However, in Rogers, the Court noted that Washington and Arlington Heights v. Metro- politan Housing Development Corp., 429 U.S. 252 (1977), “recognized that discriminatory intent need not be proved by direct evidence. ‘Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.’” Rogers, 458 U.S. at 618 (quoting Washington, 426 U.S. at 242). “Thus determining the existence of a discrimina- tory purpose ‘demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” Id. (quoting Arlington, 429 U.S. at 266). Note that these cases involved race-based rather than gender-based challenges, to which strict scrutiny rather than intermediate scrutiny is applied. See also Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (adding that the discrimination must be “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). In Feeney the Court upheld a state statute awarding a hiring preference to veterans, a group that consisted of 98% men.
See id. at 282.
197. See, e.g., Reed v. Reed, 404 U.S. 71, 76 (1971) (striking down a state law prefer- ring men over women as estate administrators).
198. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (holding that a facially neutral San Francisco ordinance violated the Equal Protection Clause where all members of a class were denied permission to operate a business and almost all non-class members were awarded a license). Since Feeney, however, proving discrimination through disparate administration of a facially neutral law requires a nearly 100% impact against a suspect class. Interview with Steve Gey, John W. & Ashley E. Frost Professor of Law, Florida State University College of Law, in Tallahassee, Fla. (Oct. 16, 1996). Consequently, impact alone will not usually determine intent to discriminate. The Court will look for other evidence that proves the intent to discriminate. See GERALD GUNTHER, INDIVIDUAL RIGHTS IN
CONSTITUTIONAL LAW 365 (4th ed. 1986).
199. See Rogers, 458 U.S. at 627-28 (holding that a facially neutral at-large county election system violated the Equal Protection Clause because it had a discriminatory im- pact on African American citizens and had been maintained by the Legislature for a dis- criminatory purpose). In Rogers, the fact that no African American had ever been elected to the Board did not prove discrimination by itself. See id. at 627. However, a review of racial discrimination inherent in the local and state political process, as well as local elected offi- cials’ discriminatory behavior, allowed the Court to infer an intent to discriminate through maintenance of the election system. See id. It is important to note that besides race, this case involved the right to vote, which is recognized as a fundamental right that must be equitably distributed. See Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (stating that the right to vote “is a fundamental matter in a free and democratic society. . . . [A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scruti- nized”).
200. See GUNTHER, supra note 198, at 354; NOWAK ET AL., supra note 186, at 528-29 (noting that statistical evidence is especially influential when a plaintiff claims that ad- ministrative officials are discriminating when engaging in an individual selection process). Additionally, courts are less likely to defer to the subjective decisions of officials than to legislative acts. See GUNTHER, supra note 198, at 529. When the selection process does not require officials to exercise discretion, however, statistical data is frequently insufficient to establish discrimination. See id.