October 11, 2008
Robson's Saturday Evening Review
Welcome to the first installment of a weekly feature we're calling "Robson's Saturday Evening Review." Every Saturday, I'll be posting about a law review or other scholarly article that I think is especially exciting and changed the way I think about an area of Constitutional Law. The article will probably not be new, but I hope to make it "new" for readers.
I've chosen to start this series with an article by one of my colleagues, Jenny Rivera. In her piece, An Equal Protection Standard For National Origin Subclassifications: The Context That Matters, 82 Wash. Law Review 897 (2007), she examines classifications that rely on terms such as "Hispanic" and "Latino" and argues that such terms actually embrace a host of national origin classifications such as Puerto Rican, Dominican, Chilean, and Portuguese. To my mind, the most revealing portion of the article is Rivera's discussion of seven circuit court cases that have analyzed subclassifications as part of their review of an equal protection challenge to a government-sponsored minority-owned business affirmative action program. As she states, the "majority of these circuits analyzed subclassifications as part of the narrow-tailoring prong of strict scrutiny. Half of these circuits also assessed subclassifications as part of their determinations that the program was “overinclusive" and others "considered whether the subclassifications were so specifically underinclusive as to render the programs unconstitutional."
She argues that neither "overinclusiveness nor underinclusiveness adequately addresses the issues raised by an equal protection challenge to national origin subclassifications," arguing that
National origin groups are not necessarily coextensive with racial groups, and national origin groups have histories of oppression and disempowerment that do not necessarily track those of racial groups. While exclusion from programs benefiting individuals and denial of access to policymaking positions are common experiences for all minority and disempowered groups--whether categorized by race, national origin, or ethnicity--there are individual and community experiences that do not always overlap among members of these groups. These experiences constitute histories that merge for national origin and ethnic groups, expand and contract for subclasses within these groups, and overlap or diverge from other group categories.
AND she doesn't merely criticize, but offers a solution. Context matters, she argues, citing Grutter v. Bollinger, 539 U.S. 306, 327 (2003). She offers a standard to assess "national origin discrimination against Latinos, experienced because they are members of a general 'Latino' category, AND because they are members of particular subclasses that constitute that category. The standard seeks to contextualize culture, ethnicity, language, and historical status, along with race. Moreover, the proposed equal protection subclassification standard would require not only a consideration of how the subclasses' experiences may be varied, but also on how they share commonalities." Here's what she says:
Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.
Rivera then discusses some of the circuit court cases and their probable result under her new standard.
This is an excellent article to give to a student who poses what might be named a "subclassifications" query regarding equal protection analysis. This student asks: "what about differences among Latinos?" - - - or among Asian-Americans or Arab-Americans or African-Americans (especially recent African immigrants, Caribbean immigrants, and the descendants of slaves). One might be tempted to remind the student that both race and national origin classifications merit strict scrutiny, and thus imply that the students' concerns do not matter for equal protection purposes. What Rivera's article demonstrates is that these concerns do matter; when the courts perform the equal protection analysis, these differences are part of "overinclusive" and "underinclusive" determinations.
It is also an article worth reading if you are teaching or working on equal protection issues, even if a student does not raise the problem! The article is available on ssrn, id=1223443.
Full disclosure here: As I said, Jenny Rivera is one of my colleagues and I am named in the acknowledgements. Next Saturday evening (yes, I do have a social life!), I pledge I won't review a piece by one of my colleagues. Indeed, I think I already have an article in mind . . . .
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