Washington v. Davis

The D.C. police department requires police recruits to take Test 21 – recruits must receive a grade of at least 40 on the test to be on the force.

The test was attacked as a racial classification under the Equal Protection Clause.

How is this test a racial classification under equal protection? 

When a statute or governmental policy creates a racial classification “on its face,” the equal protection issue is easy to frame.

 Suppose, for example, the D.C. statutes provided that only whites could be police officers.  Or suppose the department established 80% as the passing score for blacks and 70% as the passing score for whites?

The racial classification is clear “on the face” of the statute, and we proceed to apply strict scrutiny.  Since there does not appear to be any compelling reason for this classification, we strike it down.

A second approach is to argue that a law that is neutral on its face is being unevenly applied on the basis of race.  See the Yick Wo case.

In Yick Wo you have a facially neutral health and safety regulation that prohibits the operation of laundries in wooden buildings.  Looks like an easy, minimal scrutiny, economic regulation. Fire Hazard.

But the evidence at trial showed the following: "It was alleged in the petition, that "your petitioner and more than one hundred and fifty of his countrymen have been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of China, and who are conducting eighty odd laundries under similar conditions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The business of your petitioner, and of those of his countrymen similarly situated, is greatly impaired, and in many cases practically ruined by this system of oppression to one kind of men and favoritism to all others...." 

In other words, the laws restrictions were only being enforced against laundries operated by Chinese launderers.

Held:  Denial of equal protection.  The discriminatory application of the law constituted a racial classification.

 Basically, the court inferred racially discriminatory intent from the overwhelming evidence of unequal application (the evidence was so strong in Yick Wo that it's hard to imagine the discrimination was unintentional).

How does Yick Wo cut in our analysis of the D.C. police exam?  Was the exam being unequally applied?  Did both races take the same exam (Exam 21), and did each have to achieve the same passing score?

 Yes.  It is hard to see any argument concerning unequal application.

 If the exam requirement is not discriminatory on its face and is administered evenhandedly, what is the argument that it is discriminatory?

 Basically, the only argument is the disparate impact – unequal results: The record showed that "a far greater proportion of blacks--four times as many--failed the test than did whites."

Are unequal results of an evenhanded merit policy evidence of discriminatory intent?  Should disparate impact trigger strict scrutiny? Or should the test be reviewed under the rational basis test and upheld so long as it is rationally related to a legitimate state interest in requiring that police officers have a reasonable ability "to communicate orally and in writing."

What do you think? Should all laws and policies that fail to produce equal results on the basis of race be struck down under  the compelling interest test? 

Now let's talk about Arlington Heights.