AMERICAN PUBLIC SCHOOL LAW

EIGHTH EDITION
Kern Alexander
Professor
University of Illinois, Urbana-Champaign
M. David Alexander
Professor
Virginia Tech, Blacksburg
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902 CHAPTER 18 DISCRIMINATION IN EMPLOYMENT
EQUAL PROTECTION CLAUSE
The Equal Protection Clause of the Fourteenth
Amendment prohibits actions by state govern-
ments that "draw lines" favoring or disfavoring
aparticular class of persons based on impermis-
sible criteria. This clause has undoubtedly had
greater impact on the social and economic con-
dition in the United States than any other part
of the U.S. Constitution and has had aparticular
influence on equality of employment opportu-
nity. In noting the vital nature of the Equal Pro-
tection Clause, Nowak, et al. have observed that
"{i]nrecent years the equal protection guarantee
has become the single most important concept in
the Constitution for the protection of individual
rights."u
Enacted in 1868, in the aftermath of the Civil
War as a specific prohibition against state dis-
crimination based OIl race or color, the clause
today has evolved, and its applications have
broadened to encompass protections against
more subtle forms of discrimination. As noted in
the Desegregation chapter herein, the Equal Pro-
tection Clause refers only to state governments:
"No state shall ... deny ... equal protection of
the laws." Since Bolling u. Sharpe, which origi-
nated as aresult of school segregation in Wash-
ington, D.C., acompanion case of Brown v. Board
of Education, the Supreme Court has considered
the Due Process Clause of the Fifth Amendment
to apply to Congress the "equal protection" pro-
hibitions as the Equal Protection Clause applies
tostate legislatures.F Thus, neither states nor the
federal government can deny equal protection.
Under theEqual Protection Clause, aquestion
of racial discrimination requires the application
of strict scrutiny. This is, of course, because dis-
crimination based on race is the most offensive
in view of our country's experiences with racial
segregation. Thus, the purpose of the Equal Pro-
tection Clause is to prevent the states from pur-
posefully discriminating between individuals on
the basis of race.P It attempts to remove biased
decisions fromgovernment. Therefore, discriIni-
nation based on raceissuspect, and the Supreme
Court will apply the most rigorous strict scru-
tiny test to the situation. The Supreme Court
has stated that "[d]istinctions between citizens
solely because of their ancestry are by their very
nature odious toafreepeople whose institutions
are founded upon the doctrine of equality," and
"racial discriminations are ... prohibited.t'l! As
aresult, "preferring members of anyone group
for no reason other than race or ethnic origin is
discrimination for its own sake. This the Consti-
tution forbids."ls InAdarand Constructors, Inc. v.
Pena, the Supreme Court reinforced that these
rigorous equal protection standards apply to all
race classifications.w
Thus, if a governmental action distinguishes
between individuals on the basis of race, then
the courts will employ the strict scrutiny stan-
dard. This standard will apply to such actions
whether they are "benign" or "remedial." In CihJ
of Richmond v. J . A. Croson CO.,17the Court stated:
Absentsearchingjudicial inquiryintothejustifica-
tionsfor suchrace-basedmeasures, thereissimply
no way of determining what classifications are
"benign" or "remedial" and what classifications
arein fact motivated by illegitimate notions of
racial inferiority or simply racial politics. Indeed,
the purpose of strict scrutiny is to "smoke out"
illegitimateusesof racebyassuring that thelegis-
lativebodyispursuingagoal important enoughto
warrant useof ahighly suspect tool. Thetest also
ensuresthatthemeanschosen"fit"thiscompelling
goal socloselythat thereislittleor no possibility
that themotivefor theclassificationwas illegiti-
materacial prejudiceorstereotype."
When addressing racial discrimination in em-
ployment using the strict scrutiny analysis, the
courts will pose two questions. First, does the
racial classification serve a compelling govern-
ment interest? Second, is it narrowly tailored to
achieve that goal?" By using strict scrutiny, the
courts "will consistently give racial classifica-
tions ... detailed examination both as to ends
and as to means."?"
The standards under the Equal Protection
Clause are not the same as under the various
statutory provisions that have been enacted by
Congress to eradicate discrimination. The equal
protection standard as developed in the school
desegregation cases prohibits discrimination
that can be ultimately traced to a racially mo-
tivated purpose. Remedial action to overcome
segregation is not required by the courts under
the Equal Protection Clause unless it can be .
shown that segregation was caused by official
actions, the purpose and intent of which were to
discriminate. Toshow merely that the effect o~;
the employer's policy results in adverse impact
on racial minorities is insufficient to prove avio-
lation of the Equal Protection Clause.
If plaintiffs cannot show that segregation was
aresult of discriminatory purpose or intent, the
state need only show that its actions were not ir-
rational. On the other hand, if discriminatory in-
tent is shown, the state must bear the burden of
showing acompelling reason to act as it did. In
contrast, plaintiffs under Title VII may resort to
showing either discriminatory intent or effect.
Equal protection does not permit government
to single out aclass of persons who are unpopu-
lar and impose special burdens or deprivations
on them.P However, government can consti-
tutionally distinguish among some citizens if it
has a compelling reason to classify others if its
reasons are rational. As noted elsewhere in this
book, equal protection is the assurance that simi-
lar people will be dealt with by government in a
similar manner.F It is important to note that the
Equal Protection Clause forbids discrimination
between or among groups or "classes" of peo-
ple; it does not, however, forbid "one-person"
discrimination or "class of one" discrimination.
TheSupreme Court in Enquist v. Oregon, 553U.S.
591,128 S. Ct. 2146(2008), held that a "class of
one" equal protection claim, under which the
plaintiff alleges that he or she has been treated
differently fromother similarly situated persons,
but does not allege that the differential treatment
was due to the plaintiff's membership in a "par-
ticular class," such as race or gender, is not cog-
nizable in the public employment constitutional
context. The Court observed that public employ-
ment decisions areindividualized and often sub-
jective and the Equal Protection Clause does not
alter the "at-will" nature of public employment.
Of course, as we learn elsewhere in this book,
the "at-will" nature of public employment of an
individual may be changed by the presence of a
"liberty" or "property" right under the Due Pro-
cess Clause.
EQUAL PROTECTION OFGENDER
Gender-based legislation will not be upheld if,
as in most cases, the difference between sexes
~ars no legitimate relationship with the ends
~f government. For example, sex cannot be the
reason for deciding if a woman can be the ex-
ecutor of an estate
23
or that awoman is mature
Equal Protection Clause 903
enough to drink alcoholic beverages.
24
InReed v.
Reed,25 a legislature classified women in a
separate category from men, requiring that
where family relationships were the same, the
male could not by law be selected as the party
to be the administrator of an estate. However,
the Supreme Court did not rule that gender is
a '~ect" category r~uiring in all cases that
government bear theburden of proof in ShOwing
acompelling reason to classify women and men
differently. Therefore, in some instances where
persons are classified based on gender, the gov-
ernment may need only to show that its purpose
and end isnot unreasonable. The view that sex is
asuspect class has never obtained amajority of
the votes among the justices of the U.S. Supreme
Court." In essence, the Supreme Court's deci-
sions do not designate sex as asuspect classifica-
tion requiring that government bear the burden
of "strict scrutiny" and the showing that its clas-
sification as to sex is "compelling." In some in-
stances the end of a government classification
may be justified with only the showing that a
classification based on sex is rational. This has
led to the conclusion by constitutional law ex-
perts that classifications based on sex are subject
to an "intermediate standard of review."27
THREE EQUAL PROTECTION TESTS
As further explained below in this book, the Su-
preme Court has set forth three tests to apply to
equal protection deprivarions.P' The first test,
and the most rigorous, is that of "strict judicial
scrutiny." This test is applied when the state de-
prives aperson of a"fundamental constitutional
right:' The second test pertains only to gender-
based discrimination. The designation given for
this test is referred to as "intermediate scrutiny."
When the state advantages or disadvantages
classifications of persons based on sex or gen-
der, the Supreme Court imposes on the state the
burden of showing "exceedingly persuasive jus-
tification" or "important" reasons for the policy.
The third, and least rigorous, test that is applied
to "nonsuspect classifications," classifications
that are not gender-based nor involve a funda-
mental right, is called the r ational r elationship
standard.
The burden of strict scrutiny is extremely dif-
ficult to bear; however, it isnot impossible, asex-
plained in Chapter 20. The Supreme Court ruled
904 CHAPTER 18 DISCRIMlNATION IN EMPLOYMENT
in Bakke, Grutter, Seattle, and Louisville cases that
astate institution may have a"compelling inter-
est" in attaining a"diverse" student body. Court
decisions examining state statutes or regulations
that differentiate as to sex or gender have not
fallen neatly into either the "rational relation-
ship" or the "strict scrutiny" category, and the
effect of the" diversity" exception has not been
fully explored by the courts. The middle test,
"exceedingly persuasive," isaspecial test exclu-
sively reserved for gender-based discrimination.
TheLl.S, Supreme Court in the Virginia Military
Institute caseexplained this test, inpart:
Partieswhoseektodefendgender-basedgovern-
ment action must demonstrate an 'exceedingly
persuasivejustification' for that action.... [This
standard}doesnot makesexaproscribedclassifi-
cation,but ... suchclassificationsmaynotbeused,
astheyoncewere,tocreateorperpetuatethelegal,
social,andeconomicinferiorityofwomen."
The "intermediate" position of sex discrimi-
nation leans toward "strict scrutiny," the rigor-
ous end of the continuum where state action
has to do with economic regulation affecting
the welfare, livelihood, and employment of
women.
A leading figure in the effort to advance
women's rights is Ruth Bader Ginsburg, for-
merly professor of law at Columbia Univer-
sity, and now an associate justice of the U.S.
Supreme Court. J ustice Ginsburg, before she
was on the Court, litigated the first successful
gender-based equal protection case before the
U.S. Supreme Court, the aforementioned Reed v.
Reed in 1971.
30
In this case the female plaintiff
prevailed but the Court did not categorize sex
as a "suspect" classification. Ginsburg again
came before the Supreme Court in 1973and
prevailed in Frontiero v. Richardson= resulting
in awin for the female plaintiff, but the Court
split concerning the strict scrutiny question-
four votes for the classification of gender under
strict scrutiny and four votes to retain the lesser
standard of rational relationship as applied in
Reed v. Reed.
32
Exceedingly Pervasive Justification. Thus, it
is fully recognized today that the Equal Pro-
tection Clause prohibits state discrimination
based on gender; however, if astate statute or
regulation disadvantages persons based on
gender, then they must provide "exceedingly
persuasive" justification for the classification,
not strict scrutiny. The "exceedingly persua-
sive" standard may, in limited circumstances,
permit gender-based classifications if there is a
benefit to members of aclass that is dispropor-
tionately burdened.P Such rationale applies to
discrimination against males as well as females,
yet, infewcircumstances aremales actually dis-
proportionately disadvantaged by government
action. However, it does, on occasion, happen
as was the situation in Mississippi University
for Women v. Hogan,34 where the U.S. Supreme
Court found that a state nursing program for
women discriminated against men. In holding
for the male plaintiff, J ustice O'Connor pointed
out that: "Although the test for determining
the validity of agender-based classification is
straightforward, it must beapplied freeof fixed
notions concerning the roles and abilities of
males and females."35In this case, the state had
made the implicit gender-based assumption
that women should be nurses and men should
not, with the result that men were rejected by
college nursing programs.
Theleading caseon the subject of gender dis-
crimination under the Equal Protection Clause
isprobably the Virginia Military Institute (VMI)
case, titled United States v. Virginia.
36
Inthis case,
J ustice Ginsburg, writing for the majority, held
that the State of Virginia had failed to show an
"exceedingly persuasive justification" for ex-
cluding women fromthe school's citizen-soldier
program at theVirginia Military College, aclear
case of sex discrimination in violation of the
Equal Protection Clause. According to theCourt,
aclassification based ongender requires anequal
protection analysis under which the state must
show, at least, that the challenged classification
serves an "important" governmental objective
and that the discrimination against women is a
means necessary to the government's achieve-
ment of valid governmental objectives. This,
of course, the State of Virginia in the VMI case
could not show.
37
Because Supreme Court interpretation of the
Equal Protection Clause were not as strong and
protective of women's rights as Congress de-
sired it, Congress enacted Titles VII and IX that
expanded women's rights and asserted greater
equality for women. Therefore, most aggrieved
f
, c
Title VI 905
eeStandards for Equal Protection Analysis of ClassDiscrimination
Fundamental
Standard Classification Right J ustification Burden Review
StrictScrutiny SuspectClass Yes Compelling StateDefendant Heightened
(race,religion, Interest (veryrigorous)
;
lineageto
i
national origin,
I
etc.)(proscribed
classifications)
Intermediate Quasi-SuspectClass No Exceedingly StateDefendant Heightened
Scrutiny (gender/sex) (not Persuasive (demanding)
(moresearching) proscribed) ("important")
RationalBasis NonsuspectClass No Rational Plaintiff Notheightened
(notproscribed) (lessrigorous)
(education,etc.)
female plaintiffs alleging sex discrimination
in education claim relief under Titles vn or IX,
rather than theEqual Protection Clause.
. ~The Equal Protection Clause does not require
government to show acompelling reason, sub-
ject tostrict scrutiny and shouldering theburden
of proof, where homosexual discrimination is
concerned. Insuch cases, theplaintiff must show
~hat thedefendant school district treated himdif-
.erently fromothers who were similarly situated,
and intentionally treated himdifferently because
of his membership in the class to which he be-
longed (i.e., homosexuals). Therefore, homo-
sexuals do not enjoy aheightened strict scrutiny
protection under theConstitution.P' Theburden
that must beborne by the government is that of
showing only arational relationship between the
action and alegitimate governmental purpose,
and is not required to sustain the burden of a
compelling interest.'? Theplaintiff must bear the
burden of showing that the school district and
its administrators failed to take effective steps to
prevent him frombeing harassed and that their
failure was intentional or deliberately indifferent
t~his complaints.t"
...~
TITLE VI
TitleVI was passed in accordance with the con-
stitutional authority vested in Congress in Sec-
tion 5 of the Fourteenth Amendment, which
provides that Congress may pass legislation to
enforce the Fourteenth Amendment. Title VI
is an enforcement tool by which federal agen-
cies can deny federal funding to those who
discriminate, Although Titles VI and VII have
the same prohibitory scope, they were enacted
under different constitutional powers of Con-
gress: TItleVI under Section 5of the Fourteenth
Amendment and Titlevn under the Commerce
Clause. Title VI of the Civil Rights Act pro-
hibits discrimination based on race, color, or
national origin in federally assisted programs .
Section 601of Title VI of the Civil Rights Act
reads as follows:
NopersonintheUnitedStatesshall,ontheground
of race,color,or national origin,beexcludedfrom
participation in, bedeniedbenefitsof, or besub-
jectedtodiscriminationunder anyprogramor ac-
tivityreceivingFederal financialassistance.
With Title VI, Congress provided a statutory
remedy against discrimination apart from and
beyond equal protection. It was under Title VI
that Adams v. Richardson" originated, maintain-
ing that the then U'.S. Department of Health,
Education, and Welfare(HEW) had been derelict
in its enforcement responsibilities and that fed-
eral funds could be withheld from institutions
of higher education that discriminated based
on race. In that case, afederal district court as-
sumed the responsibility for monitoring en-
forcement of federal regulations promulgated
by HEW pursuant to TitleVI regulations, which
require desegregation of faculty, administration,
and other personnel positions in public schools
and universities.