This chapter will first discuss the concepts of race and ethnicity, and some of the legal roles they play in various political communities. Then, the chapter will highlight the significance of direct or intentional discrimination on the basis of race or ethnicity, a phenomenon that still exists worldwide, but has certainly abated to a large degree in most countries over the last century. Finally, the chapter will discuss the problem of indirect discrimination or disparate impact discrimination, which while diminishing, remains the bulk of the current nature of racial and ethnic discrimination in the twenty-first century. Constitutional orders with written bills of rights appear to be converging in their approaches to racial and ethnic discrimination, with greater convergence occurring with respect to direct discrimination than indirect discrimination. Some constitutional orders require the state to enact positive measures to ameliorate the effects of racial and ethnic discrimination, but there is little evidence to date to suggest convergence on this approach.
Societies have struggled to define ‘race’ for centuries. The term ‘race’ is also sometimes used interchangeably with ‘ethnicity.’ To complicate considerations further, some ethnicities may all be considered to be within one race, and some ethnicities contain several races. In some countries, the concepts intertwine with religious faith as well. However defined, the law has been used historically to classify people on the basis of race or ethnicity. These determinations have resulted in some groups receiving privileged status under the law, directly or informally, and other groups being relegated to an inferior status.
In the nineteenth century, European and American scientists and others attempted to classify human beings into different racial categories. Races were presumed to have distinctive mental, emotional, and moral characteristics as well as physical ones. Using physical characteristics ranging from head shape, nose, eyes, lips, hair, and skin color, they devised a racial hierarchy where Caucasoid, Aryan, or white were terms used to describe the race at the top, and Negroid, Colored, African, or black were terms used to describe the race at the bottom. Additionally, Mongoloid, Oriental, Asian, or yellow were used to describe another racial category. The system presupposed all groups could be fit into one of the racial categories, even though some cultures had characteristics from several races.
Historically, many believed that different races even had different blood. The ‘one drop’ rule—that even one drop of ‘black’ blood made a person black—developed. Since minute distinctions were not visible, court cases often involved evaluations of whether the person in question looked black, lived as a white, or Indian (Gross).
Other laws or policies allocating privilege or discrimination on the basis of race, in the United States but also elsewhere, included: laws keeping blacks in slavery for perpetuity rather than a fixed term, as was the case for whites; anti-miscegenation statutes hindering black–white intermarriage1; segregated public facilities and accommodations laws delineating ‘colored’ and white hotels, restaurants, rest rooms, schools, bus seats, and train cars; removal of Indigenous peoples from land desired by settlers; interning Japanese and Japanese Americans, but not other ethnic groups such as Germans or Italians, during World War II2; restrictive covenants preventing blacks from buying homes in white areas; and limitations on naturalized US citizenship to whites.
In St Francis College v Al-Khazraji, the US Supreme Court recognized how problematic continued efforts at racial characterization are:
Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the ‘average’ individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature.3
Despite the lack of any biological foundation to the concept of race4 and the contemporary rejection of the existence of natural racial hierarchies, discrimination on the basis of race persists throughout the world. What this suggests is that one’s racial identity is not biologically constructed, but rather is socially, politically, and legally constructed by assumptions, beliefs, and practices that change over time and vary from nation to nation. As an example, author Wing is regarded as African American in the United States, part of the so-called Colored group in South Africa, and considered white in Brazil.
As with race, ethnicity has been characterized in many ways. Although some regard ethnicity to be a relatively recent social category, gaining salience in the United States in the 1960s and 1970s (e.g., Glazer & Moynihan at 1; Thompson at 1), the term is derived from the Greek word, ethnos, denoting ‘others’ (Tonkin, McDonald & Chapman at 12–20). An ethnic group generally consists of a set of people who share a sense of identity based on descent, language, religion, tradition, and other common experiences and practices including alphabet, food, music, clothing, and beliefs (Weber at 385–98). As an example, within the US, there is the hyphenated identity notion of ethnicity, a veritable ‘salad bowl’ of groups, including Irish-Americans, Chinese-Americans, Mexican-Americans and more.
While French thinkers like Jean-Jacques Rousseau developed notions of equality, modern-day France treats equality as inconsistent with recognizing or even officially recording ethnicity. The French maintain the ‘melting pot’ notion of identity: ‘we are all French.’ They do not legally recognize the distinctive nature of African, Caribbean, and Arab ethnic groups, who have come mainly from former French colonies. These peoples are often physically distinctive and identifiable by color, language, religion and other characteristics, and are discriminated against in ways that suggest they are not perceived as French by most white French people.
Groups of ethnicities may be referred to as an ethnicity, when it would be more accurate to refer to them in a panethnic fashion. For example, the term ‘Asian Americans’ can refer to people with connection to China, Japan, Vietnam, Cambodia, Thailand, and elsewhere in Asia. Black American or African American may refer to people who are the descendants of slaves or it may refer to a broader group including people more recently from Africa or the Caribbean. People who arrived more recently in the United States may or may not want to be identified with the Black American group. ‘Arab American’ may refer to people from countries ranging from Morocco to Lebanon. ‘Native American’ or ‘American Indian’ may refer to several hundred different tribes, some recognized officially and some lacking recognition from the federal government. Each one of these tribes has its own standards for determining what percent of Indian ‘blood’ makes one a member of the tribe.
To complicate our understanding of ethnicity, people from various ethnicities are not always considered within the same racial group. Hispanic as a panethnic identifier does not provide information about the races involved. There are Puerto Ricans who consider themselves white and others who clearly appear to be black. Many people think of Colombians as being of Spanish white stock mixed to various degrees with indigenous people. There are Afro-Columbians as well.
Further confusing the issue, race and ethnicity also get intertwined with religion. One of the best historic examples involves people of the Jewish faith. In the nineteenth century, they were regarded as an inferior ‘race’ in the United States and Europe; they were not considered white. Nazi Germany valorized the superior Aryan race compared with others, including the inferior Jewish and Roma populations. Today, Jewish Americans may be considered a white ethnic group by many, whether or not an individual Jewish person practices the Jewish religion. In the former Yugoslavia, genocide was committed against Bosnians who were Muslim, a distinct group from Serbian Orthodox or Catholic Croats.
Despite conceptual instabilities surrounding the categories of race and ethnicity, many modern constitutional orders have structural features that take into account the racial and ethnic composition of its citizens. Some have done so in a blatantly discriminatory manner, such as apartheid in South Africa, where the rights of the majority non-white inhabitants of the country were curtailed, and white supremacy and minority rule was maintained.5 More common today are structural features that protect racial or ethnic minorities from majoritarian politics or seek to minimize the potential for racial or ethnic strife and conflict. Some federal systems, such as Canada and India, vest legislative authority in subunits to confer a measure of autonomy on racial or ethnic minorities. Others, such as Mauritius, create incentives for the creation of cross-cutting allegiances among citizens otherwise divided among racial or ethnic lines. Some constitutional orders, such as Belgium, vest minority rights in racial or ethnic communities to shield them from assimilative tendencies emanating from their broader political community. Others, such as Pakistan and Singapore, provide racial or ethnic communities guaranteed political representation in national political institutions. The structural salience of race and ethnicity in constitutional law is addressed elsewhere in this Handbook. But many constitutions also vest individuals and groups with rights of equality before the law and equal protection of the law. In many of these jurisdictions, race and ethnicity feature prominently as markers of individual and group identity that the exercise of state power must respect in the name of equality. A constitution can thus prohibit direct or intentional forms of racial or ethnic discrimination, but it can also prohibit what is known as indirect or disparate impact discrimination on the basis of race or ethnicity.6 Some constitutions authorize ameliorative measures aimed at certain racial or ethnic communities. Others go so far as to require the state to enact such measures. The remainder of this chapter addresses in more detail these differing constitutional commitments to racial and ethnic equality.
Many constitutions prohibit what has been referred to as direct or intentional discrimination on the basis of race or ethnicity. By ‘direct discrimination,’ we mean laws that distribute benefits and burdens on the basis of racial or ethnic difference. Article 1 of the French Constitution, for example, provides that ‘France shall be an indivisible, secular, democratic and social republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.’ It is widely understood as requiring the state to treat all French citizens as formal equals and prohibiting legislative or administrative distinctions among them on account of their race or origin, including measures aimed at protecting racial or ethnic minorities. These considerations are often invoked to explain the French refusal to ratify the European framework convention on the protection of national minorities.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that ‘no state shall … deny to any person within its jurisdiction the equal protection of the laws.’ It was adopted after the Civil War in an effort to abolish state discrimination against African Americans. For many years afterwards, however, the Fourteenth Amendment had little impact on racial discrimination. The courts upheld racial segregation, relying on the notorious ‘separate but equal’ doctrine articulated in the 1896 US Supreme Court case Plessy v Ferguson.7 Under this doctrine, whites and blacks were supposed to be given separate but equal public accommodations and services. In reality, blacks lived a vastly inferior reality.
The US Supreme Court began to revise its views on the legal edifice of racial inequality in the mid-twentieth century after World War II. In its landmark unanimous opinion in Brown v Board of Education, the Court declared that ‘separate but equal’ is ‘inherently unequal’ and ‘has no place’ in the field of public education.8 A follow-up opinion noted that schools should be desegregated ‘with all deliberate speed.’ Unfortunately, school integration never occurred fully, and some school districts are more segregated now than they may have been at the time of Brown.
Modern equal protection jurisprudence in the United States is characterized by a three-tiered approach to the review of legal classifications. Under the first tier, known as strict scrutiny, courts will strike down any legislative classification that is not necessary to achieving a compelling government objective. Strict scrutiny is applied to legislation that classifies on the basis of race or alienage, and legislation that burdens certain fundamental interests. Such laws must be narrowly tailored to meet the compelling governmental objective. If the law is under- or over-inclusive, it will be struck down. The law must use the least restrictive means to achieve its aims. If there are less restrictive means available to achieve permissible goals, it will be struck down. Many have characterized this test as ‘strict in theory, fatal in fact.’
In Parents Involved in Community Schools v Seattle School District No 1,9 the Supreme Court prohibited assigning students to public schools solely for the purpose of achieving race integration and failed to recognize racial balancing as a compelling state interest in a case where there was no history of de jure segregation. In a 5–4 opinion, the majority held that there was no ‘compelling state interest’ that would justify the assignment of school seats on the basis of race. Justice Kennedy filed a concurrence indicating that schools can implement ‘race-conscious’ means to achieve diversity in schools, but that the institutions here did not sufficiently narrow the tailoring of their plans to support their goals.
The second or intermediate tier of scrutiny is applied to classifications on the basis of gender. Legislation will not survive intermediate scrutiny unless the government can demonstrate that the classification is substantially related to an important societal interest. The third tier is known as minimal or rational basis scrutiny. The courts will uphold a law on this approach so long as the classification is reasonably related to a legitimate government interest. Most laws regulating social and economic matters are reviewed and upheld by courts using this minimal level of scrutiny.
Complicating the three levels of scrutiny analysis is the fact that people could be discriminated on the basis of more than one identity simultaneously. Thus, for example, African American women may face discrimination as blacks, as women, and as black women. The law in the US is not set up for proper consideration of an intersectional claim. The potential plaintiff would have to choose whether she would prefer to sue as a black and claim strict scrutiny or as a woman and invoke intermediate scrutiny.10 The problem also exists under Title VII disparate impact analysis, discussed in the next section. Some countries have tried to address the intersectional issue. The South African Constitutional Court has actively accepted the category ‘black woman,’ rather than make plaintiffs choose between their race or gender.
In the modern era, however, such clauses are now more comprehensive than the US equality clause adopted in the mid-nineteenth century. While Article 14 of the Constitution of India generally provides that ‘[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,’ Article 15 specifically prohibits the state from discriminating ‘against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ Article 3(3) of the German Basic Law provides that ‘No person shall be favored or disfavored because of sex, race, language, homeland and origin, or religious or political opinion.’ Section 15(1) of the 1982 Canadian Charter of Rights and Freedoms provides: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or physical or mental disability.’ The 1996 South African Constitution has an extensive list of grounds covered by the equality clause. Art 9(3) says that ‘the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.’
The Supreme Court of India has held that laws that discriminate on the basis of a ground of discrimination prohibited by art 15 should be subject to ‘strict scrutiny,’ which it defines as requiring there to be a reasonable relationship of proportionality between the means used and the aim pursued by the law.11 Laws that do not run afoul of art 15 but that nonetheless deny equality before the law or equal protection of the law contrary to art 14 are subject to more relaxed judicial scrutiny. They must employ a ‘permissible classification,’ namely, (i) the classification must be founded on an intelligible distinction which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) the distinction must have a rational relation to the objective sought to be achieved by the statute in question.12 A final feature of art 14 is that it prohibits ‘arbitrary’ legislation on the basis that ‘equality is antithetic to arbitrariness.’13 If a classification’s objective is illogical, unfair or unjust, then the classification will be held as unreasonable.14
Article 13 of the Constitution of Colombia states that ‘all persons are born free and are equal before the law, they shall receive the same protection and treatment from authorities and enjoy the same rights, liberties and opportunities with no discrimination on the basis of’ several enumerated grounds, including ‘race’ and ‘national origin.’ The Constitutional Court of Colombia has deemed these enumerated grounds to be ‘suspicious’ as they are ‘historically associated with behavior’ that tends ‘to undervalue and place in a disadvantage certain people or groups’ such as women, blacks, homosexuals, and indigenous peoples, among others. According to the Court, race and national origin are ‘categories that (i) are based on people’s permanent features that they cannot change of their own will without risking their identity; (ii) have been traditionally subjected to patterns of cultural appraisal that tend to belittle them, and (iii) do not comprise, per se, criteria enabling a rational and fair distribution of goods, rights or social obligations.’ In several cases, it accordingly has ruled unconstitutional measures that directly discriminate on the basis of race or national origin.
Constitutions that prohibit direct discrimination on racial or ethnic grounds commit to a formal principle of equality requiring like cases to be treated alike, and to the proposition that race or ethnic origin should not count as a relevant difference in the exercise of state power. By invalidating legislative or administrative distinctions that rely on race or ethnic difference to distribute benefits or burdens among citizens, constitutional commitments to formal equality possess the potential to secure the same rights and privileges to all, regardless of race or ethnic difference. They thus stand as potentially powerful constitutional instruments to combat laws that withhold legal rights from some citizens on account of their race or ethnicity. Formal equality, however, does not require the state to seek to ameliorate the historical disadvantages that confront some racial and ethnic minorities; such measures would in fact run counter to the proposition that neither race nor ethnic origin should count as a relevant difference in the exercise of state power. Equality provisions that simply prohibit direct discrimination on these grounds therefore do little to remedy the social and economic consequences of past injustices inflicted on racial or ethnic minorities or their ancestors.
In Brown v Board, the US Supreme Court mentioned the need to look beyond direct discrimination, stating ‘We must look … to the effect of segregation itself on public education.’15 Many constitutions therefore complement provisions that require the state to treat individuals and groups equally regardless of their race or ethnicity with provisions that advance substantive equality. One such instrument is the prohibition of what has been referred to as ‘indirect discrimination’ or disparate impact discrimination on the basis of race or ethnicity. By ‘indirect discrimination,’ we mean laws or policies that rely on apparently neutral provisions or criteria that have the effect of unjustifiably disadvantaging people on account of their race or ethnicity. While the law does not overtly intend to discriminate, the net effect is that certain racial or ethnic groups end up in a disadvantaged position. Constitutions that prohibit indirect discrimination on racial or ethnic grounds move toward a substantive conception of equality by recognizing that apparently equal treatment can entrench racial or ethnic disadvantage. In the United States, the Civil Rights Act—especially Title VII, which regulates discrimination in the private sector, rather than the equal protection clause—covers this type of discrimination.16
Other countries have grappled with how to handle disparate impact cases as well. In Canada, for example, the disparate impact doctrine is called the adverse effects doctrine. There is Canadian case law that expressly stipulates that the adverse effects of legislation can constitute discrimination on the basis of a prohibited ground, such as sex, even though a law might not expressly distinguish between men and women.17 In R v Symes, for example, the Supreme Court of Canada upheld the constitutionality of a provision in the Income Tax Act preventing the deduction of childcare expenses as business expenses from one’s income. Although the Court accepted that women disproportionately bear the social burden of child-care in Canada, there was insufficient evidence establishing that women disproportionately bear the actual financial costs of childcare. The Court nonetheless confirmed that facially neutral laws that adversely affect women in their effects can amount to discrimination on the basis of sex.
In South Africa, City Council of Pretoria v Walker illustrates how that country is handling the concept.18 South Africa has emerged from a recent history of de jure segregation against a black majority by the white minority. The country now has a Constitutional Court that is interpreting the post-apartheid constitution with a detailed equality clause that covers both intentional and unintentional behavior. The Walker case implicated issues of race, class, and housing segregation in interesting ways. In that case, white people who lived in Old Pretoria paid more for electricity. They had meters that charged on a consumption basis. The city was in the process of putting meters in two poorer black areas, Atteridgeville and Mamelodi, and was continuing to charge a lower flat tax until all the meters were installed in the area. The city council also had the habit of selectively enforcing collection of arrearages in Old Pretoria, but not in the two poorer areas where there had been a culture of non-payment.
Mr Walker contended that the council’s conduct breached s 8 of the interim constitution because there was no rational connection between the discriminatory measures taken and a legitimate governmental purpose. The Court disagreed, finding that the temporary measures were developed to provide service continuity in transitional times, while the city was phasing in equality.
The Court did hold that the council’s differential treatment of residents in black areas and residents in white areas constituted indirect discrimination on the grounds of race in violation of s 8(2). The Court suggested it would be artificial to make a comparison between such areas on the grounds of geography alone. The effect of apartheid laws was that race and geography are inextricably linked, and the application of a geographical standard, although seemingly neutral, may in fact be racially discriminatory. Further, proof of intention to discriminate is not required for either direct or indirect discrimination under s 8(2), although the purpose of the conduct or action in question may be relevant in determining whether the discrimination was ‘unfair.’
In Brazil, the doctrine has developed as well. In 2005, Brazilian public prosecutors charged five of the country’s leading banks with violating the Brazilian Constitution by discriminating against Afro-Brazilian employees and job applicants in hiring, promotion, and compensation. The allegations were based on statistical evidence indicating significant disparities in occupational status and compensation of Afro-Brazilian employees relative to their white colleagues at the banks. The suits also asserted that the banks discriminated in hiring, based on underrepresentation of Afro-Brazilians in the banks’ workforce when compared to their share of the local labor market (Hensler).
The indirect discrimination doctrine has developed on a regional basis in Europe. The European Court of Justice (ECJ), which hears cases involving the 27 member states of the European Union, created the doctrine of disparate impact on the basis of Article 119 of the Treaty of the European Community.
Europe has applied the indirect effects notion to a broader array of ‘races’ than the United States. For example, in DH and Others v The Czech Republic, the Grand (Appellate) Chamber of the European Court of Human Rights found the doctrine applied to a case involving the Czech Roma. Nearly 70 percent of these children were placed in special and inferior schools for mentally disabled although they made up only 5 percent of the primary age pupils.19 The equality clause of the European Convention on Human Rights was violated in a de facto school segregation situation even though there was no discriminatory intent.
Another instrument that advances substantive equality is a constitutional provision permitting the state to distinguish on the basis of racial or ethnic difference to ameliorate historical disadvantages faced by racial or ethnic minorities in society. There are numerous examples of provisions that authorize what, in the United States, is referred to as ‘affirmative action.’20 Numerous articles in the Constitution of India, for example, authorize the state to adopt measures that ameliorate the conditions of disadvantaged individuals and groups. Article 15(3) provides that the state may make ‘any special provision for women and children,’ and art 15(4) enables the state to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens or for specified Castes and the Tribes listed in the Constitution.’ Similarly, Article 16, which guarantees to all citizens ‘equality of opportunities’ in ‘matters relating to employment or appointment to any office under the state,’ and forbids discrimination against any citizen on various grounds, including race and caste, is qualified by Article 16(4), which enables the state to make any provision for the reservations of appointments or posts in favor of any backward classes of citizens that in the opinion of the state are not adequately represented in the services under the state.
India’s Union Parliament has been exceptionally active in seeking to mitigate the effects of caste-based subordination. The constitutionality of such measures is frequently challenged in the courts, and there is a rich line of jurisprudence addressing the extent to which the state can provide preferential treatment, known as ‘reservations,’ to disadvantaged individuals and groups. The Supreme Court of India made it clear that it would not apply strict scrutiny to reservations or other affirmative action measures contemplated by the Constitution.
Similarly, Article 13(2) of the Constitution of Colombia provides that ‘the State will foster the conditions required so that equality may be real and effective and will adopt measures in favor of deprived and unfairly treated groups.’ Affirmative action is, therefore, authorized by the Constitution and, consequently, authorities may invoke race or national origin or any other ‘suspicious’ category ‘not to exclude certain people or groups or to perpetuate inequalities, but rather to reduce harmful effects of social behaviors that have placed this same people or groups in unfavorable conditions.’21
Although there is little evidence to date to suggest that constitutional orders are converging on this approach, some states also impose positive obligations on the state to take measures to ameliorate racial or ethnic discrimination in society. Directive Principles enshrined in the Constitution of India, for example, require the state to adopt affirmative action programs to secure substantive equality for the oppressed and weaker sections of the population. Article 46, for instance, obliges the state to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.
The Swedish Constitution also imposes positive obligations to take measures to ameliorate various forms of discrimination, including discrimination on the basis of ‘colour’ and ‘national or ethnic origin.’ Specifically, it states that ‘public institutions shall combat discrimination of persons on grounds of gender, colour, national or ethnic origin, linguistic or religious affiliation, functional disability, sexual orientation, age or other circumstance affecting the private person.’ It states further that ‘[o]pportunities should be promoted for ethnic, linguistic and religious minorities to preserve and develop a cultural and social life of their own.’22
1 These statutes were overturned in Loving v Virginia, 388 US 1 (1967).
2 Korematsu v United States, 323 US 214 (1944). In 1984, Korematsu’s conviction was vacated by a lower federal court, 584 F Supp 1406 (ND Cal 1984), on the grounds of government misconduct in the submission of false information to the Court. In 1988, the US Congress passed a law apologizing for the internment and providing for reparations of $20,000 for each then-living survivor.
3 St Francis College v Al-Khazraji, 481 US 604, 610 (1987), confirmed that Arabs as Caucasians could sue for race discrimination under 42 US Code sec 1981.
4 The best current scientific understanding is that the human species originated in Africa. See Zimmer.
5 See also Johnson v M’Intosh, 21 US (8 Wheat) 543 (1823), where the US Supreme Court ruled that only Indian conveyances of land to the US government were valid.
6 It should be noted that international treaties or conventions also contain equality clauses that include the concept of both intentional discrimination and disparate impact. For example, the International Convention on the Elimination of Race Discrimination states: ‘The term racial discrimination shall mean any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any field of public life.’ International Convention on the Elimination of Race Discrimination, GA Res. 2106 a (XX), 660 U.N.T.S. 195 (1969). See also European Convention on Human Rights Protocol 12 (general prohibition on discrimination including race), http://www.humanrights.coe.int/Prot12/Protocol%2012%20and%20Exp%20Rep.htm.
7 Plessy v Ferguson, 163 US 537 (1896).
8 Brown v Board of Education, 347 US 483 (1954).
9 Parents Involved in Community Schools v Seattle School District No 1, 551 US 701 (2007).
10 Kimberle Crenshaw and others have written about intersectionality as applied to black women. See Crenshaw; Wing 2003.
11 Anuj Garg v Hotel Association of India, (2008) 3 SCC 1.
12 Budhan Choudhry v State of Bihar, AIR 1955 SC 191.
13 Ajay Hasia v Khalid Mujib Sehravardi, (1981) 1 SCC 722.
14 Deepak Sibal v Punjab University, (1989) 2 SCC 145.
15 347 US at 492.
16 See Washington v Davis, 426 US 229 (1976).
17 See Symes v Canada [1993], 110 DLR (4th) 470, 552 (SC) (Can); [1993] 4 SCR 695, 755 (Can); Seiner (observing that the Canadian Supreme Court has recently merged intent and effects tests in employment law).
18 City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC), http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/jfn5sP1cBL/MAIN/64690039/9#top.
19 DH and Others v The Czech Republic, App. No. 57325/00, Grand Chamber Eur Ct HR 13 Nov 2007.
20 In the US, the equal protection clause has been interpreted by the US Supreme Court to permit affirmative action. See Regents of the University of California v Bakke, 438 US 265 (1978) and Grutter v Bollinger, 539 US 306 (2003). Quotas are not permitted. See Gratz v Bollinger, 539 US 244 (2003).
21 Law on Shares Case, Constitutional Court of Colombia, Decision C-371 (2000).
22 Chapter 1, Article 3 of the Instrument of Government of Sweden.
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