Washington v. Davis: Background
“De jure” and “De facto” are Latin phrases. “De jure” means “as a matter of law.” “De facto” means “as a matter of fact.” Statutes (or other governmental policies) vary in the ease with which a reader can see that the statute will disadvantage certain groups. In cases such as Strauder v. West Virginia (1880) ([Only] “white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors”), a classification based on race is apparent from the face of the statute. Such facial classifications are one type of de jure discrimination under current law. In addition, a statute may not mention race at all, but it could be used intentionally to disadvantage a racial minority. This type of intentional discrimination can arise in two situations.
First, a seemingly neutral statute could be enacted for the purpose of disadvantaging a racial minority. For example, in Guinn v. United States (1915), the Court struck down an Oklahoma constitutional amendment that imposed a literacy test as a condition of voting but exempted anyone from its operation if either they or their lineal ancestors had been able to vote in 1866. While race was not mentioned in the statute, the Court recognized that the purpose of the “grandfather clause” was to exempt illiterate whites and to have the new restrictions affect only blacks, who had been ineligible to vote in Oklahoma in 1866. In Rogers v. Lodge (1982), the Court struck down a race-neutral at-large voting scheme which it said was “neutral in origin” because it was being maintained for the invidious purpose of minimizing black voting strength.
Second, a law may be neutral on its face and have been enacted with pure motives, but be administered in a discriminatory way. For example, in Yick Wo v. Hopkins (1886), the Court overturned the conviction of a Chinese laundry owner for operating a laundry without a license. While it is certainly within the police power to inspect and license laundries, the Board of Supervisors in San Francisco would not give Chinese owners a license if they operated in a wooden building, while freely granting licenses to Caucasians operating in wooden buildings.
A statute may also have an unequal effect on a protected group even though it was not designed to discriminate and there was no malice in its administration. In Griggs v. Duke Power Co. (1971), the Court analyzed the use of a standardized “intelligence” test for screening job applicants that disproportionately affected racial minorities. The Court found that the use of the test violated Title VII of the Civil Rights Act of 1964 because of the disparate impact on racial minorities. Where a plaintiff showed a neutral employment practice produced a disparate impact, the Court’s statutory interpretation required the employer to justify its actions. By reading Title VII in this way, the Court in effect subjected the employer’s test to an analysis similar to heightened scrutiny under the Equal Protection Clause.
In Washington v. Davis (1976), plaintiffs made a similar challenge to a standardized test, but this time based on the equal protection component of the 5th Amendment’s Due Process Clause. Since Title VII did not cover the federal government at that time, plaintiffs had to make a constitutional claim. The Court rejected the claim, holding that disparate impact without evidence of discriminatory intent was not actionable. Thus, the government’s use of the test was subjected only to rational basis review.
The judicial determination of legislative intent or motive raises many difficult conceptual issues. The first is whether or not such a thing as “intent” can exist for a collective group. Justice Scalia opposes the use of legislative history in construing statutes. He has called the search for legislative intent “a wild goose chase”:
In the vast majority of cases I expect that Congress neither (1) intended a single result, nor . . . (3) [even thought] about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which congress can legislate.
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.
Chief Justice Rehnquist has similarly criticized the use of the legislative intent concept. In Kassel v. Consolidated Freightways Corporation (1981), he rebuked Justice Brennan for focusing on the motives of the Iowa legislature in passing an allegedly protectionist truck-length statute:
My Brother Brennan argues that the Court should consider only the purpose the Iowa legislators actually sought to achieve by the length limit, and not the purposes advanced [after the fact] by Iowa’s lawyers in defense of the statute. . . . The problems with [this] view . . . are apparent. To name just a few, it assumes that individual legislators are motivated by one discernible “actual” purpose, and ignores the fact that different legislators may vote for a single piece of legislation for widely different reasons. How, for example, would a court adhering to the views expressed in the opinion concurring in the judgment approach a statute, the legislative history of which indicated that 10 votes were based on safety considerations, 10 votes were based on protectionism, and the statute passed by a vote of 40–20? What would the actual purpose of the legislature have been in that case? This Court has wisely “never insisted that a legislative body articulate its reasons for enacting a statute.”
Even if legislative motive can be determined, what should the Court do if a legislature passes an otherwise lawful statute, but does so with an unlawful motive? (For example, the legislature enacts a law with the purpose of harming blacks, even though the legislation itself makes no reference to race.) If a court invalidates the statute, a legislature with pure motives can re-enact the exact same statute and it will be valid. This problem had led the Court to take the position that legislative motive was irrelevant if the statute was otherwise lawful. In United States v. O’Brien (1968), the Court refused to consider powerful evidence that the increased penalty for burning a draft card was passed specifically to punish this type of anti-war demonstration:
Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a “wiser” speech about it.
The Court took the same approach in Palmer v. Thompson (1971). The evidence indicated that officials in Jackson, Mississippi closed the public swimming pools rather than operate them on an integrated basis because of their opposition to integration:
Petitioners have also argued that respondents’ action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck (1810), where the Court declined to set aside the Georgia Legislature’s sale of lands on the theory that its members were corruptly motivated in passing the bill.
A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O’Brien (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body re-passed it for different reasons.
In spite of these theoretical problems, in Washington v. Davis (1976) and later Equal Protection Clause cases, the Court did rely on legislative motivation when faced with statutes that contained neutral criteria that disproportionately disadvantaged a protected class. See, e.g., Rogers v. Lodge (1982).
Suppose a police department requires its officers to be six feet tall and weigh 200 pounds? Females, Mexican-Americans, and Asian-Americans are going to be disadvantaged more than Anglo-American males. Under Title VII of the Civil Rights Act of 1964, if a plaintiff shows that a criterion produces a disparate impact upon a protected group, the statute shifts the burden of proof to the defendant to justify the necessity of such a criterion.
Now consider the constitutional issue. Assume the legislature or executive had no improper discriminatory motive in adopting such a criterion. Should the Constitution similarly require it to justify its choice of means if those means inadvertently harm a group that receives heightened scrutiny under the Equal Protection Clause?
Washington v. Davis
426 U.S. 229 (1976)
[Majority: White, Burger (C.J.), Blackmun, Powell, Rehnquist, Stewart (in part), and Stevens. Concurring: Stevens. Dissenting: Brennan and Marshall.]
Mr. Justice White delivered the opinion of the Court.
This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We . . . reverse. . . .
- . . . [The plaintiffs alleged] that the Department’s recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents’ rights under the due process clause of the 5th Amendment. . . . The District Court granted petitioners’ and denied respondents’ motions [for summary judgment. The Court of Appeals reversed.] . . .
According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which “was developed by the Civil Service Commission, not the Police Department, “and which was “designed to test verbal ability, vocabulary, reading and comprehension.”
The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.” Respondents’ evidence, the District Court said, warranted three conclusions: “(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its reliability for measuring subsequent job performance.” This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District Court relied on several factors. Since August 1969, 44% of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was “satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operates (sic.) to discriminate against otherwise qualified blacks.” It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance “The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process.” The District Court ultimately concluded that “[t]he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability” and that the Department “should not be required on this showing to lower standards or to abandon efforts to achieve excellence.”
Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the 5th Amendment. The Court of Appeals, addressing that issue, announced that it would be guided by Griggs v. Duke Power Co. (1971), a case involving the interpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to govern the due process question tendered in this one. The court went on to declare that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that a far greater proportion of blacks — four times as many — failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program, a burden which the court ruled petitioners had failed to discharge. . . .
- Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents’ favor. Although the petition for certiorari did not present this ground for reversal, our Rule 40(1)(d)(2) provides that we “may notice a plain error not presented;” and this is an appropriate occasion to invoke the Rule.
As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer’s possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.
The central purpose of the Equal Protection Clause of the 14th Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the 5th Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.
Almost 100 years ago, Strauder v. West Virginia (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. “A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas (1945). A defendant in a criminal case is entitled “to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.”
The rule is the same in other contexts. Wright v. Rockefeller (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature “was either motivated by racial considerations or in fact drew the districts on racial lines;” the plaintiffs had not shown that the statute “was the product of a state contrivance to segregate on the basis of race or place of origin.” The dissenters were in agreement that the issue was whether the “boundaries . . . were purposefully drawn on racial lines.”
The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of De jure segregation is “a current condition of segregation resulting from intentional state action.” The differentiating factor between De jure segregation and so-called De facto segregation . . . is purpose or intent to segregate.” The Court has also recently rejected allegations of racial discrimination based solely on the statistically disproportionate racial impact of various provisions of the Social Security Act because “[t]he acceptance of appellants’ constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be.”
This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an “unequal application of the law . . . as to show intentional discrimination.” A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community. With a prima facie case made out, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.”
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. It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.
There are some indications to the contrary in our cases. In Palmer v. Thompson (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that racially invidious motivations had prompted the city council’s action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance to preserve peace and avoid deficits were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences.[1] . . .
Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several contexts, including public employment, that the substantially disproportionate racial impact of a statute or official practice standing alone and without regard to discriminatory purpose, suffices to prove racial discrimination violating the Equal Protection Clause absent some justification going substantially beyond what would be necessary to validate most other legislative classifications.[2] The cases impressively demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement.
As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.
Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.”
Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the 5th and the 14th Amendments in cases such as this.
A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.[3]
Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription.
As we have indicated, it was error to direct summary judgment for respondents based on the 5th Amendment. . . .
III. . . . The judgment of the Court of Appeals accordingly is reversed. So ordered.
Mr. Justice Stewart joins Parts I and II of the Court’s opinion.
Mr. Justice Stevens, concurring.
While I agree with the Court’s disposition of this case, I add these comments on the constitutional issue discussed in Part II. . . .
Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.
My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume. I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown. On the other hand, when the disproportion is as dramatic as in Gomillion v. Lightfoot (1960) or Yick Wo v. Hopkins (1886), it really does not matter whether the standard is phrased in terms of purpose or effect. Therefore, although I accept the statement of the general rule in the Court’s opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have formulated the governing standard in different language.
Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. [Omitted.]
[1]. To the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases as indicated in the text are to the contrary; and very shortly after Palmer, all Members of the Court majority in that case joined the Court’s opinion in Lemon v. Kurtzman (1971), which dealt with the issue of public financing for private schools and which announced, as the Court had several times before, that the validity of public aid to church-related schools includes close inquiry into the purpose of the challenged statute.
[2]. [The Court lists 19 cases from federal district and circuit courts.]
[3]. Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif.L.Rev. 275, 300 (1972), suggests that disproportionate-impact analysis might invalidate “tests and qualifications for voting, draft deferment, public employment, jury service, and other government-conferred benefits and opportunities . . . ; [s]ales taxes, bail schedules, utility rates, bridge tolls, license fees, and other state-imposed charges.” It has also been argued that minimum wage and usury laws as well as professional licensing requirements would require major modifications in light of the unequal-impact rule. Silverman, Equal Protection, Economic Legislation, and Racial Discrimination, 25 Vand.L.Rev. 1183 (1972).
Constitutional Law in Context 