Administering Suspect Classes

40 Pages Posted: 11 Dec 2018

See all articles by Bertrall L. Ross

Bertrall L. Ross

University of California, Berkeley School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: 2017

Abstract

It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied suspect-class status — and the special judicial protections associated with it — to the elderly, the disabled, and the poor, and it has avoided suspect-class determinations when addressing laws that discriminate against members of the LGBTQ community. Administrative agencies, however, have stepped in to provide marginalized groups with some protections through their interpretation of civil rights laws. The Court has shown hostility to those agency interpretations, often in opaque decisions that seem to rest on principles of judicial supremacy as much as substantive constitutional principles.

This Article argues that the Court’s hostility to agencies’ role in this area is misguided. Courts should defer to administrative agencies when they protect suspect classes on the basis of reasonable interpretations of civil rights statutes. The principle of judicial supremacy is not relevant: the Court’s abandonment of suspect classes appears driven by the Justices’ concern that the judiciary is intervening too much into the political process rather than a genuine belief that the groups in question do not qualify for suspect status. Given that this court-centered institutional concern does not apply to agencies, it is entirely appropriate for administrative officials to step in to fill the gap in protecting vulnerable minorities. Further, agencies are better positioned than other institutions to calibrate the protection of groups according to the societal context and the need for intervention.

Keywords: Administrative constitutionalism, administrative law, constitutional law, equal protection, suspect classes

Suggested Citation

Ross, Bertrall LeNarado, Administering Suspect Classes (2017). Duke Law Journal, Vol. 66, May 2017, Available at SSRN: https://ssrn.com/abstract=3286493

Bertrall LeNarado Ross (Contact Author)

University of California, Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5788 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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