Proving Intentional Discrimination in Equal Protection Cases: The Growing Burden of Proof in the Supreme Court

Introduction

The U.S. Supreme Court has for almost a century recognized that neutral state action—that is, action that does not on its face deny any group the equal protection of the laws—may nevertheless operate invidiously to discriminate against racial minorities. With varying degrees of enthusiasm, the Court has recognized the principle that a discriminatory result may invalidate a neutral law as violative of the equal protection clause of the fourteenth amendment.

Yet, the application of this principle to the facts of particular cases has rarely been easy. What was an appropriate ratio decidendi in cases involving blatant maladministration of the laws has become encumbered by qualifications and heightened standards of proof when applied to laws whose unequal effects are more subtle. A paradigmatic example analyzed in this Note is at-large electoral districts, whose deleterious effects on minority voting strength will be set forth in detail below. Such cases are problematic because it is frequently difficult, if not impossible, to distinguish between partisan political struggles, which courts must avoid, and the struggle for equal protection of the laws, in which courts must join if they are to fulfill their role in a constitutional system.

The premise of this Note is that the Supreme Court’s response to this dilemma has been less than satisfactory. When faced with increasingly subtle mechanisms of discrimination, the Court has been unwilling to invalidate state action that, though neutral on its face, tends to perpetuate racial stereotypes, oppression, and political impotence. The Court instead has placed increasing emphasis on judicial restraint and deference to local initiative. The legal underpinning of this growing restraint has been the requirement that plaintiffs demonstrate that state officials conceived or maintained the challenged law for a discriminatory purpose. In an age when bigoted legislators can no longer be expected to make their motivations public, theCourt has placed an extraordinary burden on plaintiffs by focusing on purpose rather than effect.

This Note traces the development of the intent requirement in equal protection cases before the Supreme Court. It will be shown that, until recently, a racially discriminatory impact was deemed sufficient to invalidate neutral state laws. Within the last six years, however, there has been a profound shift in the Court’s view of equal protection law. In the areas of employment, housing, and, most significantly, voting rights, the Court has declared that only a showing of discriminatory purpose will invalidate a neutral state law.

The keystone case in this development is the recent decision in City of Mobile v. Bolden. This case is particularly significant because it applies the intent requirement to an area that has traditionally been accorded the greatest constitutional respect: voting. Mobile is also important because it is the Court’s latest and potentially most far-reaching pronouncement on the law of equal protection. This Note will argue that the decision greatly enhances the burden of proof in that area, and represents a major obstacle to successful litigation. Finally, Mobile is also an extremely ambiguous decision that, as Justice White observed, “leaves the courts below adrift on uncharted seas ….”

The Mobile decision thus forms the centerpiece of this discussion, but the scope of the analysis is broader. It attempts to clarify an uneven line of precedent by tracing the emergence of the intent requirement and its latest exposition by the Supreme Court. The goal is to articulate the Court’s new standards in equal protection cases. Ultimately, the hope is that an analysis of both Mobile and the older cases will provide potential litigants with guidelines for equal protection practice in the 1980’s.

Accordingly, this Note will summarize the most significant cases in equal protection law, focusing on the tension between the intent requirement and the impact standard. Then, Mobile will be analyzed to see how it fits-or fails to fit-into that evolution. The following section will examine how the lower courts have interpreted and applied the intent requirement in the equal protection cases before them. Drawing from those cases and the opinions of the Court in Mobile, this Note will then set out the standards with an eye to determining how the burden of proof of discriminatory official motivation can be met. The Note will conclude with a critique of the current criteria and will propose alternative standards. The suggested standards, while assuming the continued application of the intent requirement, would afford plaintiffs a more realistic prospect of prevailing in equal protection litigation.

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