1. Explicitly Discriminatory Laws: Strict Scrutiny

For a federal or state law that makes classifications based explicitly on race, color, or national origin to be valid under the Fourteenth Amendment, it must withstand strict scrutiny review. Under a strict scrutiny review, the state must prove two elements: (1) that the law furthers a compelling interest, and (2) that the law is as narrowly tailored as possible, so that there are no less restrictive means available to effectuate the desired end.

2. Facially Neutral Laws: Rational Basis

Facially neutral laws, on the other hand, must pass a much lower hurdle to be upheld--the rational basis test. Under the rational basis test, the state must show only that the law rationally furthers the purpose identified by the state. Only if the petitioner can show that the state had a discriminatory purpose or motive in enacting the challenged law will strict scrutiny be applied to a facially neutral law.

Although the U.S. Supreme Court has held that showing a racially disproportionate effect of official action is an important starting point in determining whether the law has a discriminatory intent or motive, the existence of a disproportionate impact alone--even a negative disproportionate impact on a suspect class--is not enough to invoke strict scrutiny. In fact, in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), the court maintained that [a] lthough negative attitudes' and fear often accompany irrational biases, their presence alone does not a constitutional violation make.