Tuesday, October 07, 2014

Araiza Responds to Carpenter: Is Arlington Heights Relevant to Animus Analysis?

Guest Blogger

Bill Araiza

This post is part of the Symposium on Unconstitutional Animus.

In his post summarizing his recent law review article, Dale Carpenter draws from the Court’s discriminatory purpose jurisprudence, most notably its 1977 Arlington Heights case, to find guideposts for identifying animus.  Thus, according to Dale, Arlington Heights factors such as the substantive or procedural deviations reflected in the challenged law, and (more distantly in his analysis) the degree of the law’s disparate impact, all feed into the determination whether a challenged law reflects animus.  That conclusion then triggers (in his fifth step) a flipping of the burden of proof onto the government – and hence, a decision by the court to go beyond traditional rational basis review, with all its government-friendly presumptions.

I don’t necessarily disagree with Dale’s analogizing to Arlington Heights, although I don’t believe every Arlington Heights factor can be found in each and every of the canonical animus cases.  (I think Dale agrees with that last statement.)  But I would caution about taking that analogy to the next level.  If we follow the Arlington Heights path, then a facially race-neutral/facially non-animus-based law, if unmasked to be really race-based/animus-based, triggers heightened judicial scrutiny.  In other words, in the race context, if a court concludes, based on Arlington Heights, that a law is race-based, that’s not the end of the case: instead, the Court then applies the strict scrutiny that it has continually cautioned is “not necessarily fatal in fact.” 

By contrast, when Dale lumps into the animus identification phase of the analysis the burden-shifting that he identifies as his fifth step, he seems to be suggesting that the result of those five steps should be (or maybe just is, as a descriptive matter) the end of the case.  I think that’s the correct approach.  As I suggested in my response to Susannah’s initial post, it seems to me that a conclusion of animus should end the case, in the plaintiff’s favor.  I’m concerned that uncritical application of the Arlington Heights analogy would lead courts to conclude that an animus finding simply triggers more searching review.  To be sure, Justice O’Connor’s equal protection concurrence in Lawrence at least implies this latter approach.  (In Lawrence she wrote: “When a law exhibits . . . a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”)  But that approach opens up the (perhaps just theoretical) possibility that a law reflecting animus could in fact be upheld, if it satisfies such heightened review.  Dale’s approach is different, as it “bakes in” to the animus determination itself the heightened ends-means review that Justice O’Connor implies is a distinct phase of the analysis.

This may be splitting hairs.  But I think analytical clarity is furthered by splitting these particular locks.  “Bad intent” is a concept thrown around a lot in equal protection doctrine.  Justice O’Connor herself tossed it back and forth in her Croson opinion when she expressed concern that race classifications of any sort carried a high risk of the “bad intent” of “simple racial politics.”  Note that this latter version of “bad intent” was not the sort addressed by Arlington Heights or Washington v. Davis: the Richmond contracting set-aside was explicitly race-based, thus, there was no need to determine if the government “intended” to classify based on race.  Rather, the type of bad intent she addressed in Croson was of the “ultimate” sort – was the city’s MBE plan an unconstitutional use of race? – rather than of the “threshold” sort – was the plan race-based, such that it triggered strict scrutiny, which might or might not be fatal in this particular case? 

To me, a finding of animus ought to be akin to what I call here an “ultimate” finding of unconstitutionality.  That approach makes animus fit more comfortably with the earlier idea of class legislation, that my own post identified as a precursor the modern concept of animus.  Dale’s analysis, by baking into that finding the heightened ends-means review we see in lots of animus cases to date (e.g., Cleburne and Romer), appears consistent with that view.  But we need to be careful about analogies.

Bill Araiza is a Professor at Brooklyn Law School.  He can be reached at: bill.araiza at

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