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In Washington v. Davis (1976), the Supreme Court ruled that laws or procedures that have a disparate impact (also called an adverse effect), but are facially neutral and do not have discriminatory intent, are valid under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A plaintiff must show that the government action has both a disparate impact and a discriminatory intent for it to be unconstitutional.
Fast Facts: Washington v. Davis
- Case Argued: March 1, 1976
- Decision Issued: June 7, 1976
- Petitioner: Walter E. Washington, Mayor of Washington, D.C., et al
- Respondent: Davis, et al
- Key Questions: Did Washington, D.C.'s police recruiting procedures violate the Equal Protection Clause of the Fourteenth Amendment?
- Majority Decision: Justices Burger, Stewart, White, Blackmun, Powell, Rehnquist, and Stevens
- Dissenting: Justices Brennan and Marshall
- Ruling: The Court held that as the D.C. Police Department's procedures and written personnel test did not have discriminatory intent and were racially neutral measures of employment qualification, they did not constitute racial discrimination under the Equal Protection Clause.
Facts of the Case
Two black applicants were rejected from the District of Columbia Metropolitan Police Department after failing Test 21, an exam which measured verbal ability, vocabulary, and reading comprehension. The applicants sued, arguing that they had been discriminated against on the basis of race. A disproportionately low number of black applicants passed Test 21, and the complaint alleged that the test violated the applicant's rights under the Fifth Amendment's Due Process Clause.
In response, the District of Columbia filed for summary judgment, asking the court to dismiss the claim. The District Court looked only at the validity of Test 21 to rule on summary judgment. The District Court focused on the fact that applicants could not show intentional or purposeful discrimination. The court granted the District of Columbia's petition for summary judgment.
The applicants appealed the District Court's judgment on a constitutional claim. The U.S. Court of Appeals found in favor of the applicants. They adopted the Griggs v. Duke Power Company test, invoking Title VII of the Civil Rights Act of 1964, which had not been brought up in the claim. According to the Court of Appeals, the fact that the Police Department's usage of Test 21 did not have any discriminatory intent was irrelevant. The disparate impact was enough to show a violation of the Fourteenth Amendment Equal Protection Clause. The District of Columbia petitioned the Supreme Court for certiorari and the Court granted it.
Is Test 21 unconstitutional? Do facially-neutral recruiting procedures violate the Fourteenth Amendment Equal Protection Clause if they disproportionately impact a specific protected group?
Attorneys on behalf of the District of Columbia argued that Test 21 was facially neutral, meaning that the test was not designed to adversely impact a particular group of people. In addition, they stated that the Police Department had not discriminated against the applicants. In fact, according to the attorneys, the Police Department had made a major push to hire more black applicants, and between 1969 and 1976, 44% of recruits had been black. The test was only one part of a comprehensive recruiting program, which required a physical test, high school graduation or an equivalent certificate, and a score of 40 out of 80 on Test 21, an examination which was developed by the Civil Service Commission for federal servants.
Attorneys on behalf of the applicants argued that the Police Department had discriminated against black applicants when it required them to pass an exam unrelated to job performance. The rate at which black applicants failed the test compared to white applicants demonstrated a disparate impact. According to the applicant's attorneys, the use of the test violated the applicant's rights under the Due Process Clause of the Fifth Amendment.
Justice Byron White delivered the 7-2 decision. The Court evaluated the case under the Equal Protection Clause of the Fourteenth Amendment, rather than the Due Process Clause of the Fifth Amendment. According to the Court, the fact that an act disproportionately impacts one racial classification does not make it unconstitutional. In order to prove that an official act is unconstitutional under the Equal Protection Clause, the plaintiff must show that the respondent acted with discriminatory intent.
According to the majority:
“Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.”
When addressing the legality of Test 21, the Court chose only to rule on whether it was constitutional. This meant that the Court did not rule on whether it violated Title VII of the Civil Rights Act of 1964. Instead, it evaluated the constitutionality of the test under the Equal Protection Clause of the Fourteenth Amendment. Test 21 did not violate the applicant's rights under the Equal Protection Clause of the Fourteenth Amendment because the plaintiffs could not show that the test:
- was not neutral; and
- was created/used with discriminatory intent.
Test 21, according to the majority, was designed to evaluate an applicant's basic communication skills independent of individual characteristics. The majority opinion clarified, “As we have said, the test is neutral on its face, and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue.” The court also noted that the Police Department had made strides to even out the ratio between black and white officers in the years since the case was filed.
Justice William J. Brennan dissented, joined by Justice Thurgood Marshall. Justice Brennan argued that the applicants would have succeeded in their claim that Test 21 had a discriminatory impact if they had argued on statutory, rather than constitutional, grounds. The courts should have evaluated the case under Title VII of the Civil Rights Act of 1964 before looking to the Equal Protection Clause. The dissent also expressed concerns that future Title VII claims would be adjudicated based on the majority decision in Washington v. Davis.
Washington v. Davis evolved the concept of disparate impact discrimination in constitutional law. Under Washington v. Davis, plaintiffs would need to prove discriminatory intent if a test was shown to be facially neutral when mounting a constitutional challenge. Washington v. Davis was part of a series of legislative and court-based challenges to disparate impact discrimination, up to and including Ricci v. DeStefano (2009).
- Washington v. Davis, 426 U.S. 229 (1976).