Imagine if the U.S. passed a law today banning immigrants from a particular race or ethnicity. Most people would think: That’s unconstitutional. And they’d be right—at least in theory.
But it hasn’t always been that way.
In 1882, Congress passed the Chinese Exclusion Act, which barred Chinese laborers from entering the country. It was the first major federal law to ban immigration based explicitly on race. And the Supreme Court upheld it. The Court said the federal government had broad power to exclude foreigners, even if that exclusion was based entirely on race.
That power to exclude would later be cited in other cases—sometimes involving national security, sometimes framed in race-neutral terms, but still having a profound racial impact. The deeper legal question remains: when does discrimination become unconstitutional? Only when it’s obvious and explicit? Or also when it’s hidden beneath neutral language?
When Neutral Laws Discriminate
Take the case of Yick Wo v. Hopkins (1886). On paper, the law at issue seemed fair: San Francisco required permits for laundries in wooden buildings. But in practice, the law was used to target Chinese business owners. Nearly every Chinese applicant was denied, while nearly every non-Chinese applicant was approved.
The Supreme Court saw through it. They ruled that even though the law didn’t mention race, it was still unconstitutional because it was enforced in a racially biased way.
This principle—that facially neutral laws can still be discriminatory if they’re applied unfairly—was a powerful one. But courts haven’t always followed it as boldly as they did in Yick Wo.
Intent vs. Impact
That brings us to a much later case: Washington v. Davis (1976). Two Black men applied to become police officers in D.C. but were rejected because they failed a verbal test. The test disproportionately disqualified Black applicants. They sued, arguing that the test had a discriminatory effect.
The Supreme Court said: unequal outcomes aren’t enough. To win an Equal Protection case, you have to show that the government intended to discriminate, not just that the policy ended up harming one group more than another.
That ruling set a high bar. Since then, courts have been reluctant to strike down laws with racially unequal effects unless there’s clear evidence that lawmakers meant to discriminate.
Why This Matters
Here’s the dilemma: today’s discrimination often hides behind neutral language.
A city might close a public pool rather than integrate it. A school district might change its funding formula in ways that quietly cut resources from predominantly Black schools. A hiring policy might require qualifications that disproportionately exclude certain groups, even if that wasn’t the stated goal.
In each case, it’s hard to prove intent. And under Washington v. Davis, if you can’t prove intent, the law stands—even if the real-world effects are deeply unequal.
That’s why many civil rights challenges fail in court. The law asks: Did the government mean to discriminate? But in practice, discrimination isn’t always that blunt. It’s often built into systems and practices that appear neutral on their face.
Should the Law Evolve?
Some legal scholars and advocates think the courts should do more. If a policy consistently harms one racial group more than others, maybe that’s enough to raise constitutional concerns, even without a “smoking gun” of intent.
Others argue that expanding the Equal Protection Clause in this way could tie the hands of policymakers. They worry it would turn every unequal outcome into a lawsuit, even when the law was passed in good faith.
Imagine a school district that redraws attendance zones to relieve overcrowding. The decision is based on geography and available classroom space, not race. But because of residential segregation, the new zones end up funneling more Black and Latino students into under-resourced schools. Should that be grounds for a constitutional lawsuit?
Or consider a city that increases police presence in high-crime neighborhoods, many of which are predominantly Black or brown. The intention may be to reduce violence, but the result is more arrests, more surveillance, and more fractured community trust in those same neighborhoods. Is that intent to discriminate, or a consequence of structural inequality?
Critics of a broader Equal Protection standard argue that if courts start striking down policies based solely on unequal effects, it could discourage governments from acting at all. Legislators might avoid important but imperfect reforms—like standardized testing or zoning adjustments—out of fear that any racial disparity could lead to a lawsuit. The fear isn’t just of litigation, but of paralysis: the idea that the law becomes so sensitive to impact that it punishes even good-faith efforts to govern.
This is the tension: do we judge laws by the world they create, or by the motives that shaped them?
Sidebar: Two Cases, Two Different Approaches
Palmer v. Thompson (1971): When Jackson, Mississippi chose to shut down public swimming pools rather than integrate them, the Court upheld the decision. Even though the city’s intent was widely understood, the Court ruled there was no constitutional violation because both Black and white residents were equally denied access.
Griggs v. Duke Power Co. (1971): In contrast, the Supreme Court struck down a high school diploma requirement for employment under Title VII of the Civil Rights Act. Even though there was no clear intent to discriminate, the rule had a severe disparate impact on Black workers. Civil rights law—not the Constitution—allowed the Court to act based on effect.
Questions Worth Asking
So where does this leave us?
Should laws be judged only by their words, or also by their impact?
Should courts require proof of discriminatory intent, or is a pattern of harm enough?
And how should the law respond when racial inequality is baked into systems that no longer speak their biases out loud?
Have you ever seen a rule or policy that seemed fair on paper, but felt discriminatory in practice? What made you see it that way?