What Does Pennsylvania’s Amendment Barring Race Discrimination Actually Do?

A recent amendment to the Pennsylvania Constitution offers a new way to challenge structural racism in the courts.

On May 18, 2021, Pennsylvania voters passed three constitutional amendments and one legislatively referred statutory ballot question. The statutory ballot question expanded a state voluntary fire department loan program’s eligibility and was not controversial. Two of the constitutional amendments enhanced the power of the legislature versus the governor in proclaiming and ending emergency declarations. These amendments were products of partisan differences over the Covid-19 pandemic lockdown regulations and were highly controversial.

The third constitutional amendment placed a prohibition against race discrimination in the Pennsylvania Constitution for the first time. It was widely popular, capturing 72 percent of the vote. The amendment, which provided that “equality of rights under the law shall not be denied or abridged” based on “race or ethnicity,” became Section 29 of Article I of the Pennsylvania Constitution.

But what does this new provision actually do — and how is it different than what’s already provided under the U.S. Constitution?

The prohibition against race discrimination in America is an extensive legal doctrine. In addition to numerous statutory prohibitions passed at all levels of government, the federal Constitution prohibits such discrimination in the three Civil War Amendments and, more generally, in the equal protection provision of the 14th Amendment.

Federal equal protection precedent concerning racial discrimination is complex. To put the matter simply, purposeful racial discrimination by any level of government triggers strict scrutiny by courts and is rarely upheld. Purposeful discrimination can be shown through the use of racial categories, by discriminatory administration of a neutral provision, or by a discriminatory governmental intent.

Once purposeful discrimination is proved, remedial measures, including race-based measures, will often be upheld.

Conversely, where only disparate impact on a racial group is present — that is, with no proof of a discriminatory purpose — the discrimination is described as de facto and does not state a claim for relief under the Equal Protection Clause. In this circumstance, race-based remedial measures themselves trigger strict scrutiny and are generally prohibited. This architecture is why raced-based pupil assignments in public schools were upheld in dismantling Jim Crow schools segregated under law but today usually violate federal equal protection, even when they are being used to address schools that are segregated in practice.

These requirements of federal equal protection were not only already binding on Pennsylvania government at all levels before Section 29 was passed, they were already directly enforceable under Article I, Section 26 of the Pennsylvania Constitution, which bars discrimination by the state “against any person in the exercise of any civil right.”

There is a great deal of dissatisfaction with federal equal protection law in the legal literature. The distinction between discrimination under law and de facto discrimination often renders it difficult to remedy the practical effects of past and present race discrimination in America. In the last U.S. Supreme Court term, for example, because of this structure, the Court essentially outlawed affirmative action in American higher education. The barriers to admission are not the result of purposeful discrimination and, therefore, considerations of the race of an applicant were held not to be justified under strict scrutiny.

Pennsylvania voters are presumably aware, and the legislature is certainly aware, that federal law is supreme. Therefore, Section 29 could not have been intended to authorize racial remedies when they are prohibited by federal law. On the other hand, it would be a bold assertion to suggest that Section 29 was not intended to have any effect at all — that it was proposed as a symbolic measure merely to demonstrate a vague and ineffective commitment to racial justice.

The legislature, for its part, could hardly have proceeded under the illusion that the Pennsylvania courts would effectively ignore a broadly phrased constitutional amendment on an important topic. For years, the Pennsylvania courts gave no real effect to Section 27 of the state constitution — the environmental rights amendment. But then, first by a plurality opinion in 2013 and then by a majority in 2017, the Pennsylvania Supreme Court dramatically changed course and interpretated Section 27 to strike down important provisions of Pennsylvania’s oil and gas laws. The legislature knows, then, that the court is unlikely to treat a constitutional amendment as a mere feel-good exercise.

Seventy years after Brown v. Board of Education, American public schools are still deeply segregated. Public concern about racial justice is high, as manifested in the Black Lives Matter movement and other popular expressions. In voting for Section 29, voters doubtless expected the Pennsylvania courts to do whatever they can given federal constitutional restrictions. But what exactly can the courts do?

The most reasonable interpretation of the effect of Section 29 is that the Pennsylvania courts would interpret the amendment to address racial discrimination where permitted to do so under federal law.

With the remedial side of any such litigation largely foreclosed, what is left is Section 29’s potential to generate legal claims. For years, efforts have been made to utilize federal equal protection to reach government actions with disparate impacts on racial minorities. Those efforts have failed. However, Section 29 could be interpreted to reach claims of de facto racial discrimination. Specifically, it could allow challenges to actions by government in Pennsylvania with foreseeably disparate impacts on racial minorities. Examples could include the decision by a school district to create neighborhood schools in a jurisdiction with residential racial segregation or to utilize employment and educational tests that lead to racially disparate results in hiring and admission.

Stating a claim under Section 29 would not necessarily mean that neighborhood schools and employment and admissions tests are unconstitutional. Rather, in an analogy to the law under employment discrimination statutes, the presence of racially discriminatory results might shift the burden to the government to justify such practices on non-racial grounds as reasonably necessary. In this way, government might at least be forced to mitigate any racial disparities such practices have generated.

In other words, in the context of de facto segregated neighborhood schools, for example, Section 29 could be interpreted to mandate the “race conscious” remedial measures that Justice Anthony Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle would permit under federal equal protection. That could include drawing attendance zones for neighborhood schools that would lessen segregation or even abolishing or limiting neighborhood schools in favor of magnet schools of various types. In the area of employment and admission practices, the government might be required to consider alternative selection processes.

These suggestions are just a start. Because America is so divided by race, many government actions, from criminal law to social welfare regulations, have disparate racial impact. Until now, there has not been a general constitutional framework to effectively challenge the embedded racism that characterizes much of American law and life. Now, under the new Section 29, a constitutional framework may at last be in place to challenge structural racism.

Bruce Ledewitz is the Adrian Van Kaam C.S.Sp. Endowed Chair in Scholarly Excellence at Thomas R. Kline School of Law of Duquesne University.