strict scrutiny vs intermediate scrutiny

535 (1974), but on the basis that the classification was political rather than racial. Preferential treatment for American Indians was approved, Morton v. 313 (1977), but gender classifications are not as suspect as racial ones. Programs to overcome past societal discriminations against women have been approved, Kahn v. and had allowed preferences for members of certain non-suspect classes that had been the object of societal discrimination, 3 Footnote

Charlotte-Mecklenburg Board of Education, 402 U.S. Although the Court had previously accepted the use of suspect criteria such as race to formulate remedies for specific instances of past discrimination 2 FootnoteĮ.g., Swann v. Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. And, court-ordered relief pursuant to title VII may benefit persons not themselves the victims of discrimination. Nor does title VII prohibit a court from approving a consent decree providing broader relief than the court would be permitted to award. 193 (1979), the Court held that title VII did not prevent employers from instituting voluntary, race-conscious affirmative action plans. The Court emphasized that it was not passing at all on the permissibility of affirmative action programs. 273 (1976), held, not in the context of an affirmative action program, that white people were as entitled as any group to protection of federal laws banning racial discrimination in employment. While the emphasis is upon governmental action, private affirmative actions may implicate statutory bars to uses of race. Often the issue is framed in terms of reverse discrimination, in that the governmental action deliberately favors members of one class and consequently may adversely affect nonmembers of that class.

Of critical importance in equal protection litigation is the degree to which government is permitted to take race or another suspect classification into account when formulating and implementing a remedy to overcome the effects of past discrimination. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Strict scrutiny vs intermediate scrutiny