Equal Protection Analysis - Law and Higher Education
Although the concept of equal protection of the laws is not mentioned in the original U.S. Constitution as drafted and ratified, this idea has become an important constitutional concept, especially in the world of higher education. Equal protection does not require identical treatment of all people in all situations. Instead, when the federal or state governments, through their officials, make distinctions between and among individuals, the courts employ equal protection analysis by looking at the specific distinctions and applying a corresponding level of scrutiny to determine whether the government action is constitutional.
Courts employ equal protection analysis when governmental officials treat people differently based on specified characteristics such as race, gender, or age. Courts also rely on equal protection analysis when governmental entities create distinctions among people who exercise fundamental rights such as those identified in the Constitution. In light of the significant impact that equal protection analysis has had on the world of higher education and beyond, this entry highlights its application in specific cases and factual circumstances involving colleges and universities.
History and Structure of Equal Protection Analysis
In 1868, following the Civil War, the Equal Protection Clause became a part of the Constitution with the ratification of the Fourteenth Amendment, the first section of which states that “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. Equal protection analysis includes three tiers of classification: strict scrutiny, intermediate scrutiny, and rational basis review. Rational basis review is the minimum level of scrutiny for equal protection challenges, while intermediate scrutiny and strict scrutiny are heightened levels of scrutiny. At its heart, this analysis recognizes that because no governmental action is neutral—all acts of government have an impact on the rights of persons (the Constitution distinguishes between persons and citizens)—varying degrees of scrutiny are necessary if these actions are to withstand judicial analysis.
When the government, acting in and through public officials, treats individuals differently due to their race, national origin, religion, or citizenship status, with some exception, courts employ strict scrutiny in their equal protection analyses. Strict scrutiny is also used when governmental actors make distinctions between and among people based on their exercise of fundamental rights, such as those identified in the Constitution. Strict scrutiny has not been applied to higher education cases directly, because the U.S. Supreme Court has not identified education, at any level, for that matter, as a fundamental constitutional right. Under strict scrutiny, governmental actions are upheld as constitutional only if such classifications are narrowly tailored to further compelling governmental interests (for example, when policies such as affirmation action discriminate among racial or ethnic groups). In most cases, the result of strict scrutiny equal protection analysis is the invalidation of the governmental actions or policies.
When the government or its officials treat individuals differently due to their gender or legitimacy, courts apply intermediate scrutiny in their equal protection analysis. Under intermediate scrutiny, courts sustain discriminatory governmental actions only if they are substantially related to the achievement of important governmental interests. With respect to discriminatory gender classifications, the Supreme Court requires governmental entities to demonstrate exceedingly persuasive justification for their actions.
All other discriminatory governmental classifications of individuals result in judicial application of rational basis review for their equal protection analysis. This analysis applies to the work of public higher education, where officials are in colleges and universities, institutions that are considered “arms of their states.” Under rational basis review, which usually examines day-to-day institutional concerns, such as course requirements for specific degrees in public institutions of higher learning, officials’ actions are ordinarily upheld as constitutional as long as their actions or classifications are rationally related to the attainment of legitimate institutional interests. Typically, when courts apply rational basis scrutiny, governmental or institutional actions are upheld. As noted in the following sections, the Supreme Court has applied equal protection analysis in key cases associated with race and gender that remain highly relevant to higher education.
Race and Higher Education
The Supreme Court resolved three key cases, State of Missouri ex rel. Gaines v. Canada (1938), Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950), which involved discriminatory racial classifications in higher education, prior to its expressly articulating the strict scrutiny standard for these types of disputes. Gaines, Sweatt, and McLaurin provided a vital foundation for the Court’s treatment of cases involving governmental distinctions based on race in higher education. While these cases did not reverse the “separate but equal” precedent of Plessy v. Ferguson (1896), they did illustrate the Court’s developing equal protection analysis and foreshadowed the dismantling of Plessy in Brown v. Board of Education, Topeka (1954).
In Gaines, Lloyd L. Gaines, an African American Missourian, applied to the State University of Missouri School of Law but was denied admission solely on the basis of his race. Insofar as Missouri did not have a state-supported law school that admitted African Americans, the Supreme Court found that this denial of admission violated the Equal Protection Clause. As a result, the Court directed officials to admit Gaines to the law school due to the lack of substantially equal legal training for him in the state.
In Sweatt, Hemon Marion Sweatt, an African American Texan, applied to the University of Texas Law School, which denied him admission based solely on his race. When Sweatt sued the law school and various officials, the state responded by attempting to establish a substantially equal law school for African Americans. Yet, Sweatt argued, ultimately successfully, that this attempt did not satisfy his right to equal protection under the law, and a unanimous Supreme Court agreed. The Court held that the Equal Protection Clause required that Sweatt be admitted to the University of Texas Law School, because a separate law school would not have provided him with an equivalent legal education.
In McLaurin, George W. McLaurin, an African American living in Oklahoma, unsuccessfully applied to the University of Oklahoma to pursue a doctorate in education. After McLaurin was denied admission based solely on his race, he sought assistance from the federal trial court, which ordered university officials to admit him as a student. Eventually, officials at the graduate school admitted McLaurin, but on a segregated basis, which meant that he was required to sit apart from the Caucasian students in classrooms, the library, and the cafeteria. McLaurin turned to the federal courts again, and the case eventually was appealed to the Supreme Court. The Court determined that the actions of university officials violated his right to equal protection, because the Fourteenth Amendment prohibited such differential treatment based on race. The Court ordered university officials to treat McLaurin the same as the other students.
The Supreme Court did not address governmental distinctions based on race in higher education again until 1978, when it resolved Regents of the University of California v. Bakke (1978). In Bakke, Allan Bakke, a Caucasian, applied twice to the Medical School of the University of California at Davis and was rejected twice. Thereafter, Bakke filed suit, claiming that the medical school’s special admissions program, which was designed to increase student diversity and which set aside a certain number of slots for minority students, was a violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause. On appeal to the Supreme Court, the justices authored separate opinions in a plurality judgment, with no majority opinion on whether strict scrutiny was appropriate for affirmative action racial classifications in higher education. Instead, a plurality of the Court decided that the consideration of race was constitutionally permissible in admissions. However, the Court added in a separate plurality opinion that racial quotas like the one employed by the University of California at Davis were illegal under Title VI, resulting in an order to admit Bakke.
Bakke left key equal protection questions unresolved, including whether strict scrutiny was the appropriate level of scrutiny for affirmative action classifications in higher education and, if so, whether student body diversity could be a compelling government interest to satisfy strict scrutiny. In Adarand Constructors v. Pena (1995), the Supreme Court ruled that strict scrutiny was appropriate for federal affirmative action programs such as those involving building projects. The Court followed Adarand in providing a firm answer to the final question left open by Bakke in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003).
The Supreme Court applied strict scrutiny analysis to the affirmative action policies in effect at the University of Michigan School of Law in Grutter and in an undergraduate program in Gratz. The law school policy used race as a plus factor, meaning that it could be taken into account as a kind of bonus for minority students, alongside individualized consideration of applicants. In Grutter, the Court ruled that the law school’s interest in maintaining student body diversity was a compelling state interest. Finding that the law school’s admissions policy furthered student body diversity and was sufficiently narrowly tailored to meet this compelling interest, the Court concluded that the law school’s policy did not violate the Equal Protection Clause.
Conversely, in Gratz, the Supreme Court reasoned that the University of Michigan’s undergraduate admissions policy violated the Equal Protection Clause. Unlike officials in the law school, the Court noted that officials in the undergraduate program assigned an automatic 20 points, which was the equivalent of one-fifth of the required points for admission, to members of the underrepresented minority groups of African Americans, Hispanics, and Native Americans. The Court observed that the policy met the first prong of strict scrutiny, that the undergraduate program’s classification’s objective of increasing student diversity was a compelling government interest. However, the Court struck the undergraduate policy down as unconstitutional insofar as it was not narrowly tailored to meet this compelling interest due to its failure to provide for individualized consideration of applicants.
Gender and Higher Education
The judiciary employs intermediate scrutiny with respect to discriminatory gender classifications. The Supreme Court has handed down two key opinions in the area of equal protection analysis with respect to higher education: Mississippi University for Women v. Hogan (1982) and United States v. Virginia (1996).
In Hogan, Joe Hogan, a male nurse, applied to the Mississippi University for Women School of Nursing. After he was denied admission solely based on his gender, Hogan filed suit, alleging that officials violated his rights to equal protection. When the case was appealed to the Supreme Court, it applied intermediate scrutiny, requiring the state to show an exceedingly persuasive justification for its gender-based classification. The Court pointed out that the state’s officials failed to show that the school met the requirements of either prong of the requisite intermediate scrutiny test. The Court was of the view that the alleged purpose for the classification, namely compensating for past discrimination against women, was an insufficient justification, because the state legislature failed to prove that its intended single-sex policy served to compensate anyone for perceived gender-based discrimination. Insofar as the actions of state officials failed to survive intermediate scrutiny, the Court concluded that the university’s policy of denying men admission to its nursing school was an unconstitutional violation of the Equal Protection Clause.
In Virginia, the United States brought suit against the Commonwealth of Virginia, claiming that the policy of the publicly supported Virginia Military Institute of admitting only men was a violation of the Equal Protection Clause. Applying intermediate scrutiny in its analysis, the Supreme Court agreed. The Court explained that Virginia’s proffered rationale for the gender-based distinction— that the importance of same-sex education justified the complete exclusion of women—failed to satisfy the heightened scrutiny required to pass constitutional muster. In its analysis, the Court rejected Virginia’s attempt to offer military education for women at the separate facility of the Virginia Women’s Institute for Leadership as a cure for the constitutional infirmity, because the programs would not have offered the same level of prestige to both men and women.
As demonstrated by the review of litigation in this entry, equal protection analysis has played a significant role in helping to shape contemporary higher education. Furthermore, there is no reason to believe that equal protection will play any less a role in shaping activities on college and university campuses in the future.
Amanda Harmon Cooley
- Adarand Constructors v. Pena, 515 U.S. 200 (1995).
- Brown v. Board of Education, Topeka, 347 U.S. 483 (1954).
- Civil Rights Act of 1964, Pub. L. No. 88-352.
- Gratz v. Bollinger, 539 U.S. 244 (2003).
- Grutter v. Bollinger, 539 U.S. 306 (2003).
- McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950).
- Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).
- Plessy v. Ferguson, 163 U.S. 537 (1896).
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
- State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).
- Sweatt v. Painter, 339 U.S. 629 (1950).
- United States v. Virginia, 518 U.S. 515 (1996).