A. SCOTUS-Classification Analysis
The disbursement portion of the Social Security Act is written in a manner that renders it facially neutral. Therefore, it is necessary to look deeper into the statute and its implementation to tease out whether there is a discriminatory impact or discriminatory effects from the law's application. The Supreme Court has communicated plainly that discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, determining a race or gender classification requires proof that there is a biased purpose behind the law. Thus, in order to establish that the Social Security disbursement policy is discriminatory, a showing of intent must be established.
The Court explained in Washington v. Davis that “a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is not unconstitutional solely because it has a racially disproportionate impact.” The Court goes on to explain that discriminatory impact, “[s]tanding along ... [d]oes not trigger the rule that racial *496 classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”
The Court has stated that laws that are facially neutral as to race and national origin will obtain a higher standard of review if there is proof of a discriminatory purpose. The Court's reasoning for adopting this policy is that the Equal Protection Clause is intended to “prevent official conduct discriminating on the basis of race. The Court moves on to further reason that allowing discriminatory impact to avail in supporting a racial classification “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”
The crucial question when conducting a classification analysis then becomes: How can it be established that a facially neutral law is motivated by a discriminatory purpose? The Supreme Court has been adamant that showing such a purpose requires confirmation that the government took an action with the awareness that its actions would have discriminatory results. In Personnel Administration of Massachusetts v. Feeney, the Court declared: “Discriminatory purpose, ‘however; implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”'
The Supreme Court has recognized several ways in which a discriminatory purpose can be established. First, the impact of the law may be so clearly discriminatory as to allow no other justification than that it was implemented for impermissible reasons. The Court states that “the impact of the official action--whether it ‘bears more heavily on one race than another'--may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, *497 emerges from the effect of the state action even when the governing legislation appears neutral on its face.”
Another way of establishing discriminatory purpose is through the history surrounding the government's action. In Arlington Heights, the Court states “the historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes.”
Lastly, discriminatory purpose may be recognized through the legislative or administrative history of a law. The Court explained in Arlington Heights that “the legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports.”
The Court has outlined a difficult standard in terms of demonstrating that a facially neutral law is motivated by a discriminatory purpose. However, this standard is not impossible. Moreover, the legislative history of the Social Security Act of 1935 provides great insight in establishing potential discrimination. The Social Security Act was passed as a New Deal initiative; the New Deal as a whole faced many challenges. The policies of the New Deal, focusing on restoring economic prosperity or upsetting the delicate balance of southern white power, faced extremely tough criticism from Southern Democrats. The past shines a great light on the racially charged political culture of the 1930s. Additionally, the legislative history and the historical record of that period serve to connect the dots to further illustrate that the act is still highly segregated along racial lines.
