CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #34

D. The Requirement of a Discriminatory Purpose -- Relevance of Discriminatory Impact

WASHINGTON V. DAVIS, p. 800 (1976)

• What regulation, with what purpose?
• On what ground was it alleged that the regulation was racially discriminatory?
• purposeful discrimination?
• discriminatory effect?
• what evidence was offered to refute the claim of purposeful discrimination?
• did the Court apply "heightened scrutiny"? If not, why not?
• compare Palmer v. Thompson (1971), described pp. 804
• given that all of the private swimming pools in the city were segregated and would remain so, was the Court's conclusion in Palmer that the closing of the public pools was race-neutral plausible?
• is the Court's distinction of Palmer in Washington -- that it did not involve a law having neutral purposes but disproportionate racial consequences -- sound, or even relevant to its conclusion in Washington?
• was it a constitutionally available option to school districts, when faced with desegregation orders, simply to shut down all public schools and stop any future support for schools of any kind?

Personnel Administrator of Massachusetts v. Feeney, p. 810 (1979)

• why is it not an intentional use of a gender classification, to choose a category of persons to receive a substantial benefit, 98% of whom are male? would the result have been different, if the category were 100% male?
• does the statutory scheme reflect inappropriate stereotyping, as Marshall suggests?

ROGERS V. LODGE, p. 815 (1982)

• what regulation, with what purported purpose?
• on what evidentiary basis does the Court conclude that the regulation was maintained with "invidious purpose"?
• do these voting rights cases -- juxtaposed with the school and pool and veterans' preference cases -- cast doubt on the reliability of a subjective "invidious purpose" standard? Did Congress help matters with its amended Voting Rights Act, p. 823?