The discriminatory impact of a race-neutral classification may also doom legislation under the Fourteenth Amendment. A law can be neutral on its face or in purpose, but still be applied in a discriminatory manner. White owners of such institutions were permitted to keep their businesses open. Proof of discriminatory purpose, effect, or application can be difficult. Courts will search the legislative history of a particular classification for discriminatory origins.
Courts also consider specific discriminatory actions taken by state officials in the past.
McCleskey involved a black man who was convicted and sentenced to death for killing a white police officer. On appeal, attorneys for the defendant relied on a sophisticated statistical analysis indicating that blacks were significantly more likely to receive the death penalty for killing a white person than were whites convicted of killing a black person. The majority held that the defendant could have prevailed under the Fourteenth Amendment only if he had shown a discriminatory purpose on the part of the Georgia legislature when it enacted the death penalty legislation, or on the part of the jurors in his trial when they imposed the death sentence. See also capital punishment. Racial Classifications Surviving Judicial Scrutiny Classifications based on race usually sound the death knell for the legislation containing them, with two notable exceptions.