For just over 30 years, the
Supreme Court has been a contributor to our nation’s current
state of racial discrimination. The Court’s establishment of
an impenetrable divide between racial and economic equality has
been used to render the Equal Protection Clause of the Constitution
substantially less potent. The result is that our nation, as seen
in the images of those left to contend with Katrina’s destruction,
still possesses the embarrassing remnants of Jim Crow.
The problem is partly in the way that the Equal Protection Clause
operates. Currently, for a person to win on a race-based equal protection
claim the court has to find that a racially discriminatory purpose
supported the government action; discriminatory impact alone is
not enough. If this “invidious purpose” is established,
the government has the burden of proving that the discrimination
was based on a “compelling state interest”—in other
words, a “damn good reason.” Without this intent, the
burden is on the party bringing the suit to prove that the government
had no “rational basis” to act as it did. Contrary to
the “compelling state interest” threshold, “rational
basis” is the easiest test and typically results in the government’s
The greater difficulty is that a party is unable to link the claims
of race-based and wealth-based discrimination into a single argument.
While evident race-based discrimination establishes the need for
a “compelling state interest,” wealth- based discrimination
only needs to pass the “rational basis” test to be sustained.
The effect of this wide separation is that it allows for governments
to use wealth as a proxy, to indirectly discriminate on the basis
of race by blatant discrimination on the basis of income. Even if
a clear race-based effect exists, the easier constitutional test
will be applied in the absence of proving racist intent.
This reality did not die with the abolition of poll taxes. It is
currently seen in state and local school subsidy programs with funding
disparities favoring predominantly white municipalities. Additionally,
the dissimilar punishment under the federal sentencing guidelines
has historically resulted in lighter sentences for wealthier, white
cocaine users and stiffer penalties for poorer African American
crack users. Recently, Georgia instituted a program where people
without drivers’ licenses may have to buy ID cards in order
to vote, which is likely to adversely affect poor and African American
reason for this operational malfunction lies with two important
Supreme Court cases. In 1976 the Court held in Washington v.
Davis that the Equal Protection Clause is only applicable in
instances of intentional racial discrimination by a government actor.
In the 1973 case San Antonio School District v. Rodriguez,
the Court addressed a funding provision that was yielding over $200
less per student in a poor, predominantly black and Latino municipality
than in a more affluent, white township. In addition to ruling that
the provision was constitutionally sound, the Court took the opportunity
to discount the link between race and economics: “Nor does
it now appear that there is any more than a random chance that racial
minorities are concentrated in property-poor districts.” Until
his death, Rehnquist represented the only living justice who voted
with the majority in both of these regressive cases.
Davis and Rodriguez have since been applied in federal
courts to preserve government programs that have produced racially
disparate effects, allowing judges to apply the easiest constitutional
test to determine whether these programs pass muster. Educational
funding programs in New York and Kansas, both of which yielded per
student spending disparities along racial lines, were upheld. In
California a provision that called for candidates to pay a fee in
order to have a campaign statement on a sample ballot was found
to be constitutional regardless of its likely disproportionate impact
on minority contenders. A New York program that called for the demolition
of unsafe residential buildings was also upheld, notwithstanding
the program’s overwhelming focus on areas of lesser wealth
and high minority populations; 12 of the 14 communities that were
subject to this program were in the Bronx and Brooklyn. Of course,
none of this includes the cases that likely never made it to court
because of the hindrances that come with proving “invidious
The enduring effect is that our federal courts are essentially insulated
from, and therefore less able to perceive and address, an apparent
reality that wealth and race are not entirely separate. According
to the 2005 book The State of Working America, 30.9 percent
of African Americans possessed zero or negative net worth, as opposed
to 13.1 percent of white Americans; and that the median wealth for
African Americans was 10 percent of the median wealth for whites.
The recently released poverty rates for African, Latino, and white
Americans were 24.7 percent, 21.9 percent, and 8 percent respectively.
Tragically, the child poverty rates for African, Latino, and white
Americans were 30 percent, 28 percent, and 9.5 percent res- pectively
The solution is rather simple. Equal protection should be modified
so that a claim of discrimination, one that is rooted in both race
and economic class, and where discriminatory intent cannot be proven,
would trigger the intermediate standard of constitutional review.
This mid-level test is already applied when dealing with gender-based
claims of discrimination and should serve as the proper test in
these matters. In this case, as opposed to the “rational basis”
test, the burden would be on the government to prove that an “important
government interest” necessitated the unequal treatment, as
opposed to the mere existence of any rational reason. The intermediate
standard is harder to satisfy than “rational basis,” yet
easier than the more strict “compelling state interest”
test. Essentially, this would make it harder for governments to
covertly discriminate on the basis of race through the surrogate
More than this, it would reflect the proper approach and perception
that the courts, as well as society, should possess in regards to
the relationship of race and wealth. Courts have historically distinguished
race, a supposedly biological or “immutable” characteristic
from income. However, the U.S. socio-economic history has been somewhat,
if not greatly defined, by the correlation between race and wealth.
More than the statistics, the events of recent months have served
as an extension of this distressing historical narrative, demonstrated
when one analyzes the differences between those who successfully
fled from Hurricane Katrina and those who were left behind and forced
to confront it.
an increasingly conservative Supreme Court comes the decreased likelihood
of any change in the Equal Protection Clause to address the historical
link of race and means. In that case, the United States would have
achieved a profoundly humiliating distinction. That in the pursuit
of both legal and social equality, a cause that started with the
brutal murder of Emmett Till and the birth of the Civil Rights Movement
50 years ago, our nation has been unable to achieve either.
Mikhail teaches criminal justice and political science at Rutgers
University. He has worked with the Center for Constitutional Rights
in New York City.