Strict Scrutiny - De Jure Versus de Facto Discrimination

De Jure Versus de Facto Discrimination

As applied in Korematsu v. United States, a wartime decision upholding as constitutional the race-based curfew during World War II of the Japanese Americans who had resided on the West Coast of the United States, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute.

The Supreme Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent becomes apparent, the presence of any of which demands the harsher equal protection test. The Court must use strict scrutiny if one of these tests is met:

1. the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins
2. the historical background suggests intent
3. the legislative and administrative records show intent