Washington v. Davis,
426 U.S. 229 (1976)

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U.S. Supreme Court

Washington v. Davis, 426 U.S. 229 (1976)

Washington v. Davis

No. 74-1492

Argued March 1, 1976

Decided June 7, 1976

426 U.S. 229


Respondents Harley and Sellers, both Negroes (hereinafter respondents), whose applications to become police officers in the District of Columbia had been rejected, in an action against District of Columbia officials (petitioners) and others, claimed that the Police Department's recruiting procedures, including a written personnel test (Test 21), were racially discriminatory and violated the Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code § 1-320. Test 21 is administered generally to prospective Government employees to determine whether applicants have acquired a particular level of verbal skill. Respondents contended that the test bore no relationship to job performance, and excluded a disproportionately high number of Negro applicants. Focusing solely on Test 21, the parties filed cross-motions for summary judgment. The District Court, noting the absence of any claim of intentional discrimination, found that respondents' evidence supporting their motion warranted the conclusions that (a) the number of black police officers, while substantial, is not proportionate to the city's population mix; (b) a higher percentage of blacks fail the test than whites; and (c) the test has not been validated to establish its reliability for measuring subsequent job performance. While that showing sufficed to shift the burden of proof to the defendants in the action, the court concluded that respondents were not entitled to relief, and granted petitioners' motion for summary judgment, in view of the facts that 44% of new police recruits were black, a figure proportionate to the blacks on the total force and equal to the number of 20- to 29-year-old blacks in the recruiting area; that the Police Department had affirmatively sought to recruit blacks, many of whom passed the test but failed to report for duty; and that the test was a useful indicator of training school performance (precluding the need to show validation in terms of job performance), and was not designed to, and did not, discriminate against otherwise qualified blacks. Respondents on

Page 426 U. S. 230

appeal contended that their summary judgment motion (which was based solely on the contention that Test 21 invidiously discriminated against Negroes in violation of the Fifth Amendment) should have been granted. The Court of Appeals reversed, and directed summary judgment in favor of respondents, having applied to the constitutional issue the statutory standards enunciated in Griggs v. Duke Power Co., 401 U. S. 424, which held that Title VII of the Civil Rights Act of 1964, as amended, prohibits the use of tests that operate to exclude members of minority groups unless the employer demonstrates that the procedures are substantially related to job performance. The court held that the lack of discriminatory intent in the enactment and administration of Test 21 was irrelevant; that the critical fact was that four times as many blacks as whites failed the test; and that such disproportionate impact sufficed to establish a constitutional violation, absent any proof by petitioners that the test adequately measured job performance.


1. The Court of Appeals erred in resolving the Fifth Amendment issue by applying standards applicable to Title VII cases. Pp. 426 U. S. 238-248.

(a) Though the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the Government from invidious discrimination, it does not follow that a law or other official act is unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. Pp. 426 U. S. 239-245.

(b) The Constitution does not prevent the Government from seeking, through Test 21, modestly to upgrade the communicative abilities of its employees, rather than to be satisfied with some lower level of competence, particularly where the job requires special abilities to communicate orally and in writing; and respondents, as Negroes, could no more ascribe their failure to pass the test to denial of equal protection than could whites who also failed. Pp. 426 U. S. 245-246.

(c) The disproportionate impact of Test 21, which is neutral on its face, does not warrant the conclusion that the test was a purposely discriminatory device, and, on the facts before it, the District Court properly held that any inference of discrimination was unwarranted. P. 426 U. S. 246.

(d) The rigorous statutory standard of Title VII involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is

Page 426 U. S. 231

appropriate under the Constitution where, as in this case, special racial impact, but no discriminatory purpose, is claimed. Any extension of that statutory standard should await legislative prescription. Pp. 426 U. S. 246-248.

2. Statutory standards similar to those obtaining under Title VII were also satisfied here. The District Court's conclusion that Test 21 was directly related to the requirements of the police training program, and that a positive relationship between the test and that program was sufficient to validate the test (wholly aside from its possible relationship to actual performance as a police officer) is fully supported on the record in this case, and no remand to establish further validation is appropriate. Pp. 426 U. S. 248-252.

168 U.S.App.D.C. 42, 12 F.2d 956, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and in Parts I and II of which STEWART, J., joined. STEVENS, J., filed a concurring opinion, post, p. 426 U. S. 252. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 426 U. S. 256.

Page 426 U. S. 232

Primary Holding

Government discrimination can be found only when a law or policy has a discriminatory purpose rather than just a disproportionate effect on a protected group.


The District of Columbia Metropolitan Police Department required all applicants to score at least a 40 on Test 21 to be eligible to join the police. The Civil Service Commission had devised this test for use throughout the federal service. It was intended to test verbal ability, vocabulary, reading, and comprehension. African-American test takers who fell short of the required score sought a declaratory judgment that it was unconstitutionally discriminatory against African-Americans under the Due Process Clause of the Fifth Amendment. They prevailed in the lower courts.



  • Byron Raymond White (Author)
  • Warren Earl Burger
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist
  • John Paul Stevens
  • Potter Stewart

While a disproportionate effect may offer evidence supporting the existence of a discriminatory purpose, it is not sufficient to establish that a racial classification exists by itself. Strict scrutiny is not appropriate unless a racial classification is shown, and the test is racially non-discriminatory on its face because it is based on race-neutral attributes.


  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall

The burden should have shifted to the government to show that this test measured skills appropriate to the job or predicted future job performance. Correlations with written examinations in a training course should not be enough to demonstrate the test's validity because it is possible that people do well on both sets of tests because they have good verbal skills, rather than a trait that is particularly relevant to the job.


  • John Paul Stevens (Author)

Case Commentary

A law must specifically treat a protected group differently or be susceptible to an inference of discriminatory intent for strict scrutiny to apply. Otherwise, even if there is a disparate impact on a protected group, only rational basis review is required. This difference is critical because the standard of review usually determines the outcome of Fourteenth Amendment challenges.

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