The State’s Compelling Interest in Substantive Equality
Does the state have a legitimate interest in promoting substantive race and sex equality? In the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1,1 a plurality of the U.S. Supreme Court answered this question in the negative, at least as to race. To do so, the plurality exploited an area of confusion in equal protection doctrine: in several cases, the Supreme Court has held that existing conditions of inequality cannot justify particular racial remedies, such as quotas. The Parents Involved plurality argued that, therefore, existing conditions of inequality cannot justify any race-conscious remedy and are of no legitimate concern of the state. In other words, complete colorblindness is the only acceptable stance, and the current fact of racial inequality is constitutionally protected from state intervention.
When state actors seek to advance the cause of racial equality, the Supreme Court has long exhorted them to do so in ways that do not require the classification of individuals according to race. One would think that the legitimacy of such measures and of their goal—increased racial equality—would be obvious, but the Parents Involved plurality called them into question.2 This chapter demonstrates one way in which the plurality’s position is contrary to precedent. First it shows that the Court has allowed the state to pursue sex equality by a variety of means, even when similar strategies are impermissible with respect to race. Second, it shows that the key difference between these race and sex cases is not that racial equality is a less worthy constitutional goal but that the Court is uncomfortable with classifying individuals according to racial labels. Race-conscious remedies for inequality that do not involve individual classification are thus constitutionally valid.
Two Kinds of Affirmative Action
The phrase “affirmative action” most often calls to mind race- or sex-specific preferences in hiring or in university admissions. When the Supreme Court has struck down those kinds of affirmative action programs, it has often held out the alternative of facially neutral strategies for meeting the state’s goals.3 Increasingly, as the federal courts and many states have restricted the use of traditional affirmative action, institutions have turned to these alternative, facially neutral means for increasing diversity and providing equal opportunities.
One well-known example of race-neutral, but race-conscious, affirmative action is the Texas Ten Percent Plan. The Ten Percent Plan guarantees admission to any public college for students in the top ten percent of any Texas high school’s graduating class.4 At the K-12 level, school districts have experimented with income-based instead of race-based busing.5 Schools, employers, and governments bidding out contracts have expanded recruitment efforts to target minority applicants.6
Justice Ginsburg has pointed out that “only an ostrich could regard the[se] supposedly neutral alternatives as race unconscious.”7 The Ten Percent Plan assumes the existence of racially segregated high schools and exploits that segregation to attain racially diverse university admissions without explicitly referring to race. “It is race consciousness, not race blindness, that drives such plans,” which therefore “suffer from ‘the disadvantage of deliberate obfuscation.’”8
For purposes of this chapter, however, the key difference between these programs and traditional preferences is that the alternative programs seek to ameliorate inequality and segregation without facially classifying individuals by race.9 Traditional preferences depend on identifying individual applicants who belong to particular disadvantaged groups. The alternative strategies either operate more diffusely or capitalize on correlations that are created by existing conditions of inequality. Although these policies are facially neutral, they are adopted with the hope that they will lead to greater diversity within institutions and equality across society. The purpose is thus to combat structural inequality.
In the oral argument of the Parents Involved case, several justices inquired about the status of facially neutral policies adopted for the purpose of achieving racial diversity in the schools.10 Justice Kennedy posed the hypothetical of a school district deciding where to build a new school. In light of existing segregation in housing, one location would result in a racially diverse school, while the other would contribute to the de facto segregation of the schools. Could the school district choose the former, because it wants racial diversity? Counsel for the plaintiffs said that it could not, because any race-related motive for state action is forbidden.11 Although no member of the Court appeared to support this position at oral argument, the four-justice plurality ultimately endorsed it. The court thus came within one vote of holding that the government had no legitimate interest in striving for racial equality and integration.
That one vote belonged to Justice Kennedy. Justice Kennedy wrote separately and distanced himself from the plurality on this point, emphasizing his discomfort with racial classifications of individuals but also the importance of racial equality and integration. Examining cases involving sex equality confirms that the latter concern is firmly grounded in precedent.
“Only One Equal Protection Clause”:12 Existing Inequality and the Sex Cases
Just as “[t]here is only one Equal Protection Clause,”13 there is only one underlying doctrinal structure for equal protection cases. Doctrinal shifts in one context carry over into others.14 The outcome of the struggle over the legitimacy of the goal of racial equality necessarily affects whether the government can properly seek sex equality as well. Similarly, cases in which the Court allowed the state to pursue the goal of sex equality demonstrate that the Parents Involved plurality was wrong to claim that substantive racial equality is an illegitimate goal.
In the context of sex classifications, the state may seek to overcome not only societal discrimination against women but even what the Court perceives as women’s inherent biological disadvantages. The key doctrinal reason why governments have such leeway with respect to sex is that classification of individuals according to sex, rather than race, is not troubling to the Court.15 Isolating that factor clarifies the error in the Parents Involved plurality’s rejection of the state’s compelling interest in equality.
The Sex Classification Cases
One of the ironies of equal protection doctrine is that it is easier to justify remedial sex classifications than to justify remedial or benign racial classifications.16 Doctrinally, this discrepancy is a function of the lower level of scrutiny for sex classifications.17 Because of this reduced scrutiny, the state has more leeway to shape gender relations than race relations. Of course, the state may use this leeway to perpetuate stereotypes and inequality. The state may also, however, try to improve the relative status of women, including through affirmative action programs.18
A striking example of a remedial sex classification was the compensatory social security program upheld in Califano v. Webster.19 Under the program, women and men were subject to different rules for calculating their social security benefits. The result was higher benefits for a woman than for a man with the same earning history. The Supreme Court had no trouble accepting the important state interest justifying this outcome: “[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women.”20 Less dramatically, the same state interest has justified affirmative action for women in areas such as public employment, which has proceeded with far less controversy than what swirls around race-based affirmative action.21 Equal protection analysis that takes into account the need to combat existing inequality is thus well established in the field of sex classifications.22
Importantly, the gender differential in Webster was intended to redress private discrimination in employment. There was no suggestion that Congress was at fault or had itself violated the Equal Protection Clause by, say, failing to outlaw discrimination by private actors.23 The inequality that justified this sex classification is thus analogous to the structural inequality that the Parents Involved plurality called into question as a justification for race-conscious action. It is the sort of inequality that does not meet the test for state action and thus does not trigger a judicial remedy under the Equal Protection Clause. Nonetheless, Congress had a legitimate interest in redressing the existing inequality. Congress’s ability to favor women in the benefits calculation was contingent on that inequality. The Parents Involved plurality’s refusal to apply the same analysis to remedies for racial inequality is inconsistent with the Court’s willingness to apply this analytical structure to the remediation of sex inequality in Webster.
Of course, there are differences between race and sex—in doctrine and in reality—that might explain different outcomes. It is difficult to imagine the Court upholding a compensatory social security system similar to Webster but designed to compensate individual members of racial minorities for private employment discrimination.24 A racial Webster would apply a different level of scrutiny. Breaking down the analysis, however, reveals that the difference cannot lie in the legitimacy or weight of the state interest in ameliorating racial inequality as compared to sex inequality. Rather, the difference lies in what the Court considers acceptable means for ameliorating different kinds of inequality.
Judicial scrutiny of sex classifications is, at least in theory, less intense than scrutiny of race classifications in two ways. First, a race classification must serve a “compelling” state interest, while a sex classification need serve only an “important” state interest.25 Second, the means of achieving the state interest must be appropriate: if the means include a race classification, it must be “narrowly tailored” to the state interest.26 A sex classification need only be “substantially related” to the state interest or, when the Court is feeling particularly hostile to sex classifications, have an “exceedingly persuasive” justification.27 If a racial Webster would come out differently, then the difference must lie either in the state interest asserted or in the means used to effectuate that interest.
The Supreme Court has never provided a comparative analysis of the difference between “important” and “compelling” state interests. Indeed, it has barely distinguished between those categories and other legitimate state interests. Most legitimate state interests seem capable of being deemed at least important, with the sole exception of mere administrative convenience.28 While the “compelling” category may yet turn out to be narrower than the “important” category, the state interest in fighting inequality is obviously the wrong place to draw that line. To hold that equality is an important but not compelling goal under the Fourteenth Amendment would be bizarre, even where the equality sought is more positive and substantive than the negative right to equal treatment enforced by the Court. Equally strange would be to hold that racial inequality was a lesser concern than sex inequality under that Amendment. Thus, if race and sex cases have different outcomes, it cannot be because of the formal difference between “important” and “compelling” state interests.
The Supreme Court has similarly failed to explicate the difference between “narrowly tailored” and “substantially related” means for achieving state interests by way of race or sex classifications. One of the reasons, however, that sex classifications trigger a lower level of scrutiny is that the Court does not consider the government’s classification of an individual as female or male to be inherently offensive. In Bakke, Justice Powell explained that sex classifications do not create the same “analytical and practical problems” as race classifications because “there are only two possible classifications” and thus “no rival groups” to claim entitlements.29 Thirty years later, the Court has not yet confronted cases involving intersexed or transsexual individuals under the Equal Protection Clause. It has barely scratched the surface of other claims involving individuals whose gender or sexual identity resists binary classification. The Court’s awkward stumbling in cases involving homosexuality does not bespeak a Court inclined to question its binary definition of sex.30
Lower court cases reflect a similar insistence on the binary determinability of sex. In Title VII cases, courts faced with questions about “correct” racial classification have in recent years fallen back on social reality and perception rather than purportedly scientific definitions of race.31 Not so for sex classifications. In cases ranging from discrimination to the validity of marriages, courts have insisted on a binary, biological definition.32 Although this approach is unrealistic and harmful in many contexts,33 its prevalence illuminates equal protection doctrine: sex cases demonstrate what courts and other state actors may do in the face of historic and persisting inequality when the classification itself is not deemed pernicious.
Because of the tolerance for individual classification, a variety of means remain open to a state actor seeking to ameliorate sex inequality. In contrast, to implement a Webster-like program for race, Congress would have to define each person’s race with the precision of Jim Crow.34 That act of classification—not the state interest in equality—is what distinguishes Parents Involved from Webster.
The Real Differences Cases
The binary sex classification is so untroubling to the Supreme Court that purportedly innate sex differences can justify sex classifications in the law. While laws based on “real differences” often perpetuate archaic stereotypes, they can also reflect state efforts to promote sex equality. For example, a state can require employers to provide pregnancy leave to their employees,35 and Congress enacted the Family and Medical Leave Act in part to help level the playing field for working women.36 As with affirmative action, the Supreme Court has never held that governments are required to take these steps toward substantive equality.37 But unlike the race-based affirmative action cases, the “real differences” cases have easily permitted governments to choose accommodation of “women’s differences,” which the Court perceives as inequality imposed by nature. In the absence of an inherently pernicious classification, the state is free to seek affirmative, substantive equality. The real differences cases thus further demonstrate that the Parents Involved plurality’s rejection of the state interest in equality is unfounded in prior equal protection jurisprudence.
Sylvia Law and Ann Freedman first identified the real differences cases as those in which the Supreme Court invokes natural sex differences to justify different legal treatment of men and women.38 Of course, the Court’s perception of which differences are natural has changed over time. In the infamous Bradwell v. Illinois,39 the Court perceived men and women as differently situated, by biology and the “law of the Creator,” with respect to the practice of law.40 Purported natural differences also justified early labor restrictions for female workers when men’s labor was still subject to Lochner v. New York.41 More recently, the Court has been receptive to real differences arguments only when the link to reproductive biology is more direct.42 In Michael M. v. Superior Court, for example, the Court accepted women’s vulnerability to pregnancy as a justification for sex-specific statutory rape laws.43 In Dothard v. Rawlinson, the Court equated femaleness with rapeability to justify restricting employment opportunities for female prison guards.44
The most infamous of the real differences cases is Geduldig v. Ailleo.45 Geduldig involved a comprehensive short-term disability policy for state employees in California. The Court held that the exclusion only of pregnancy from coverage under the policy was not sex discrimination. The policy, said the Court, did not distinguish between women and men but between “pregnant women and nonpregnant persons.”46 The Constitution did not require the state to make up for what the Court perceived as a natural disadvantage in the labor market.
Other cases, however, show that the state may choose to enact laws to promote sex equality in the face of sex differences. After the Court extended Geduldig’s cramped conception of sex discrimination to Title VII,47 Congress responded with the Pregnancy Discrimination Act (PDA).48 The PDA defines discrimination “because of sex” to include discrimination because of pregnancy, and it requires that employers treat pregnancy the same as any comparable physical condition.49 The PDA thus protects women not just from irrational discrimination based on pregnancy but also from indifference to pregnancy’s effect on their ability to work.50
The State of California went even further than the PDA, affirmatively mandating childbirth-related maternity leave, even for employees who were not protected against any other short-term disabilities.51 The Supreme Court upheld this statute in California Federal Savings and Loan Association v. Guerra (CalFed),52 in which an employer argued that the California law constituted both sex discrimination and pregnancy discrimination. The employer pointed out that the maternity leave requirement contradicted the PDA’s insistence that pregnancy be treated “the same as” other comparable conditions. Looking to congressional intent, the CalFed Court read “the same as” to mean “no less favorably than.” The state was thus given a choice: it could seek substantively equal outcomes in the face of natural difference, or it could allow natural differences to translate into unequal outcomes.
A common denominator of the real differences cases is that, regardless of whether the classification is challenged by a male or female party, the justifying biology—susceptibility to pregnancy or rape—is constructed as the natural disadvantage of women.53 States have the option either to entrench the existing disadvantage or to counteract it with the force of law. The real differences cases thus share the same analytical structure as cases like Webster, with the purportedly natural disadvantage of biology playing the role of structural inequality. Cases like CalFed show that states may legitimately promote substantive equality even when existing inequality is deemed to be caused not by discriminatory state action or even by diffuse societal discrimination, but by nature itself.
The shared structure of Webster and the real differences cases can also be seen in how lawyers define the category of real differences cases. Two cases involving the exclusion of women from combat service in the military are routinely classified as real differences cases.54 The difference—the combat exclusion—was clearly de jure. What mattered, however, was that, like structural inequality or biological sex differences, the combat exclusion was unquestioned in the context of the litigation. Because an admitted inequality was beyond the Court’s power to remedy, the state had the option to level the playing field or to leave it askew.
The military cases are the only modern real differences cases that do not claim to rest strictly on biology. Rostker v. Goldberg upheld male-only registration for the draft.55 Schlesinger v. Ballard upheld the navy’s policy of giving women extra time to achieve promotion under the up-or-out policy.56 Both cases were premised on the unchallenged exclusion of women from combat positions. In Rostker, women’s exclusion from combat was the purported reason for excluding them from the draft, since Congress believed a draft would most likely seek combat troops.57 In Ballard, exclusion from combat and sea duty limited women’s ability to acquire the prerequisites for promotion; the navy allowed them extra time to make up for its own discriminatory policy.58
Rostker and Ballard are consistently classed with the real differences cases, even though they are based not on biological differences but on the military’s explicit, sex-based exclusion of women from combat.59 Analytically, then, Rostker and Ballard show that what makes a difference “real” is that the law takes it as a given. No party in Ballard or Rostker challenged women’s exclusion from combat.60 This failure made the fact that women did not serve in combat, even though clearly a function of law, just as “real” as the differences that the Court saw as imposed by nature in cases like Michael M., Dothard, and Geduldig. A real difference is simply one that the Court can not (or will not) order to be changed.61
This analytical structure unites the real differences cases with the explicitly remedial cases involving social security, affirmative action, and integration. In all of these cases, the Court’s analysis takes some social fact of inequality—structural race or sex inequality, biological sex differences, or the combat exclusion—as a given for purposes of the litigation. Because that social fact is treated as unproblematic under the Equal Protection Clause, the state is under no duty to try to change it. But because that social fact creates conditions of actual inequality, the state has a legitimate interest in change if it chooses to try.
Because the analytical structure is the same, the plurality view in Parents Involved threatens not only remedial efforts that involve race-conscious state action but also those that involve sex classifications and even sex-conscious social policy. For example, under Geduldig, the PDA and the California maternity leave statute arguably do not contain sex classifications. Because pregnancy is not a sex classification, special protection for pregnancy fails to trigger heightened review, just as the targeted exclusion failed to trigger heightened review in Geduldig. However, both the PDA and the California law were adopted to give women a relative advantage, as compared to a status quo in which disfavored treatment of pregnancy was legal. Altering the playing field in women’s favor was a motivating factor for the legislation.
Similarly, in the past, the Supreme Court has endorsed the use of facially gender-neutral policies that Congress intends to promote sex equality. Both the Violence against Women Act (VAWA)62 and the Family and Medical Leave Act (FMLA)63 are textually gender-neutral; both were enacted and the FMLA was upheld by the Supreme Court as an attempt to achieve greater substantive equality for women.64