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Hastings Law Journal

Abstract

The Social Security Act was passed in the middle of the Great Depression to alleviate the terrible poverty in which many elderly Americans found themselves mired. Social Security was designed as an insurance program in which workers contribute during their working years and receive payments during retirement. On its face, the program is equitable, with all individuals-with few exceptions-required to pay taxes into the program and all eligible to collect retirement benefits. However, there is an inherent inequality in Social Security due to differences in life expectancies. African Americans live an average of seven years less than do white Americans. Therefore, while all individuals pay into Social Security at the same rates, African Americans receive much less from the program after retirement simply because they do not live as long.

This Note argues that the inequalities resulting from such life expectancy differences violate the Constitution's guarantee of equal protection. It first outlines the Supreme Court's equal protection jurisprudence as it pertains to statistically based claims of discrimination. It then explores the legislative history behind the original 1935 Social Security Act to illustrate how African Americans were intentionally excluded from coverage. Given the fact that Congress has maintained Social Security despite the lingering discriminatory effects, the Note concludes that the program runs afoul of the equal protection guarantee.

Finally, this Note proposes a number of remedies by which the discriminatory effects of the Social Security program can be eliminated. Congress may amend the program by expressly taking race into account. The author argues that such a response would not itself be an equal protection violation. Alternatively, Congress may select from a number of race-neutral remedies which are briefly explored.

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