Quasi-Suspect Classes and Proof of Discriminatory Intent: A New Model
The Yale Law Journal · 1981
Current equal protection law provides inadequate protection to quasi-suspect classes' alleging that the burdens of a facially neutral law fall on them with a disproportionate impact. 2 Under the present approach to analyzing disproportionate impact claims raised by either a suspect or a quasi-suspect class, an equal protection violation is established if the plaintiff shows not only that the disproportionate impact in fact occurred, but also that it was imposed with a discriminatory intent.3 This approach will be referred to as disproportionate impact analysis.Although the Supreme Court has expressed a willingness to examine both direct and circumstantial evidence of discriminatory intent, 4 it has refused to rely on purely circumstantial evidence.5 The intent requirement and the standards for satisfying it have been developed in cases involving claims by suspect classes.6 That analysis then has been applied unquestioningly by the Court to the allegations of a quasi-suspect class.7 This Note argues that it is inappropriate automatically to extend to the claims of quasi-suspect classes concepts that were designed to address the claims of suspect classes.The Note proposes an alternative model for proving discriminatory intent that addresses the special needs of quasi-suspect classes.To illustrate the problems facing quasi-suspect classes under the current paradigm, the Note also examines the claims of linguistic minorities to an equal protection right to bilingual education.8 Be-443 U.S. 526 (1979); Columbus Bd. of Educ.v. Penick, 443 U.S. 449 (1979); Village of Arlington Heights v. Metropolitan Hous.Dev.Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).7. Personnel Adm'r v. Feeney, 442 U.S. 256, 273-74, 279 n.24 (1979).The Court did not discuss why it required proof of intent in cases involving quasi-suspect classes, nor did it explain why it invoked a standard of proof similar to that used in cases involving suspect classes.The proof requirements established in Village of Arlington Heights v. Metropolitan Hous.Dev.Corp., 429 U.S. 252, 266-68 (1977), were applied without discussion by the Court.442 U.S. at 279 n.24.8. Bilingual education refers to a broad spectrum of programs, ranging from assimilative, English-as-a-second-language (ESL) programs to pluralistic bilingual-bicultural programs.Foster, Bilingual Education: An Educational and Legal Survey, 5 J.L. & EDUC.149, 154-57 (1976).The considerable variety of programs may account in part for the scholarly disagreement on the pedagogical effectiveness of bilingual education.At least one review of the existing research, however, has found that bilingual education improved, or did not impede, oral language development, reading and writing abilities, mathematics and social studies achievement, cognitive functioning, and self-image for non-English-speaking students.L. ZAPPERT & B.