The Text and Its Reach
The Equal Protection Clause of the Fourteenth Amendment, ratified in 1868 after the Civil War, applies directly to the states and to local governments, school districts, and other public bodies. In Bolling v. Sharpe (1954), the Supreme Court held that the Fifth Amendment's Due Process Clause imposes the same equal protection requirements on the federal government.
Equal protection does not require that every law treat everyone identically. Laws classify people all the time — by age for driver's licenses, by income for taxes. The question is whether the government has a sufficient reason for the classification.
The Three Levels of Scrutiny
| Level | Applies to | Government must show | Usual outcome |
|---|---|---|---|
| Strict scrutiny | Race, national origin, alienage (for state laws), and classifications burdening fundamental rights | The law is narrowly tailored to a compelling government interest | Law usually struck down |
| Intermediate scrutiny | Sex and gender; nonmarital children | The law is substantially related to an important government interest; for sex, an "exceedingly persuasive justification" | Mixed |
| Rational basis | Most other classifications, such as age, disability, wealth, and economic regulation | The law is rationally related to a legitimate government interest | Law usually upheld |
In United States v. Virginia (1996), the Court held that the Virginia Military Institute's male-only admissions policy violated equal protection because the state lacked an exceedingly persuasive justification.
Landmark Equal Protection Cases
- Brown v. Board of Education (1954): Racially segregated public schools are inherently unequal and unconstitutional, rejecting "separate but equal."
- Loving v. Virginia (1967): Laws banning interracial marriage violate equal protection and due process (388 U.S. 1).
- Reed v. Reed (1971): First case striking down a law for discriminating based on sex.
- Plyler v. Doe (1982): A state cannot deny free public education to children because they are undocumented.
- Obergefell v. Hodges (2015): Same-sex couples have the right to marry under due process and equal protection (Obergefell).
- Students for Fair Admissions v. Harvard (2023): Race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause and Title VI (SFFA).
Intent Matters
To prove a constitutional equal protection violation, a plaintiff generally must show the government acted with a discriminatory purpose. A law that is neutral on its face but has a disproportionate impact on a group is not unconstitutional for that reason alone (Washington v. Davis, 1976). Evidence of intent can include the law's history, the sequence of events leading to it, and departures from normal procedures.
Some statutes go further. For example, Title VII and the Fair Housing Act recognize disparate impact claims, where a neutral policy with an unjustified discriminatory effect can be unlawful even without proof of intent.
Other Equal Protection Doctrines
- "Class of one": A person can bring a claim if the government intentionally treated them differently from others similarly situated without any rational basis.
- Voting: The "one person, one vote" principle requires legislative districts to have roughly equal populations.
- Fundamental rights: Classifications that burden fundamental rights, such as voting or interstate travel, receive strict scrutiny.
State Action
Equal protection applies only to government action. Discrimination by private businesses, employers, or individuals is addressed through civil rights statutes, such as the Civil Rights Act of 1964 and the Fair Housing Act, rather than the Equal Protection Clause itself.
How Equal Protection Claims Are Brought
Claims against state and local governments are commonly brought under 42 U.S.C. § 1983, which allows lawsuits for violations of constitutional rights by officials acting under state law. Remedies can include court orders stopping the discriminatory practice, damages in some cases, and attorney's fees.
