Equal Protection Answers

1) I understood that in Parents Involved, the plurality adopted an anti- classification understanding of Equal Protection under Brown. The dissenting adopted an anti-subordination vision of Brown allowing the State to make some racial classification if the purpose is to overcome racial subordination. Justice Kennedy, concurring in the judgment, assumed an intermediate position considering that some race conscious classifications are valid although that was not the case of Parents Involved. Is conscious race classification the narrowest ground? I cannot see how justice Kennedy’s idea of conscious race classification might be accepted by the majority, who were rejecting racial classification.

 

Narrowest grounds is not the narrowest grounds that would have been accepted by the majority—if the majority would accept the concurrence’s analysis, it would have adopted that analysis. Narrowest grounds means narrowest grounds that support the judgment in the case (that is, the outcome--who wins the case). Kennedy's approach is narrower than the plurality--the plurality rejects all racial classifications, while Kennedy rejects this racial classification but allows for other possible future classifications. Think of it from the standpoint of the judge in the next case, having to figure out what the precedent is. Imagine you are the district judge in the next case challenging a racial classification: What is a narrower ground: "This new classification is invalid because all racial classifications are invalid" or "This new classification may be valid, depending on the factors described by Justice Kennedy's concurrence." 

 

We apply Equal Protection to the Federal government through the Fifth Amendment because Due Process has been understood as having a component of equal protection. My question is whether we apply the same analysis to determine the standard of review that we apply under the Equal Protection. I was looking at the language of the Court in Korematsu where the court said that the court will apply “the most rigid scrutiny” but in Bolling the court said that segregation was not “reasonable related to any proper government objective”.

 

The use of what we call "strict scrutiny" was not as well developed or precise at the time of Brown and Bolling. The standard of scrutiny will be the same for challenges to state and federal regulations--the only question is whether the federal government might have more leeway to draw classifications.