Equal Protection Flashcards
Source
EP against state action comes from the 14th Amendment and EP against federal action comes from the 5th Amendment.
Steps to Approaching an EP Q
1) Determine the type of discrimination
2) Against whom
3) Identify and apply the appropriate level of scrutiny.
Levels of Scrutiny for EP
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
EP: Rational Basis
P must prove that there is no rational relation to any legitimate gov. interest.
EP: Intermediate Scrutiny
Gov must prove its classification is substantially related to an important gov interest
EP: Strict Scrutiny
Government must prove its classification is necessary to achieve a compelling gov. interest.
When is Rational Basis Review Applied?
- In situations involving disparate impact (when a statute is neutral on its face)
- All classifications not falling under SS or IS including: age, disability, alienage (federal), sexual orientation (but it has teeth), and wealth
Two Exceptions to RB Review
- If the purpose of the measure being challenged was intended to have racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny
- If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny
Common Result of RB Review
Gov often wins, but watch out for cases involving discrimination against sexual orientation.
When is Intermediate Scrutiny Applied?
-Gov discrimination against quasi-suspect classes (gender and illegitimacy)
When is Strict Scrutiny Applied?
When there is:
- alleged discrimination against a suspect class including: alienage (state), national origin, race, or
- there is discrimination involving a fundamental right (domestic travel, voting)
Racial Discrimination
Can include:
- (De jure segregation)- laws that deliberately segregate on the basis of race (will be unconstitutional under SS)
- (De facto segregation)- segregation in fact but not by operation of law (is not discrimination)
Racial Affirmative Action (Passing SS)
- When a policy is narrowly tailored to one of two compelling gov interests:
- remedying the effects of past discrimination by the state; and
- achieving a diverse student body in an institute of higher education (but overt quotas will be unconstitutional because they are not narrowly tailored).
Watch out for School Desegregation
The U.S. SC has explicitly ruled that a school district may not assign individual students to schools based on race to achieve racial balancing when school segregation is caused by de facto segregation.
Alienage Discrimination by States:
Warrant SS.
Alienage Discrimination: Public-Function Exception
Some jobs or activities may be withheld from resident aliens, including:
- police officers
- gov officials
- public school teachers
- For such restrictions –> RB review applies
Alienage Discrimination: Undocumented Aliens
RB review applies to discrimination against undocumented aliens.
Sex Discrimination: Unconstitutional Laws Under IS
Include:
- a state law giving preference to men over equally qualified women to be administrators of decedent’s estates
- authorizing alimony payments to women but not to men
- higher drinking age for men than for women
Sex Discrimination: Constitutional Laws Under IS
- Registration of males but not females for draft (Congress pursuant to its military powers has determined it is necessary to further important gov interests.
- State statutory rape laws may set the age of consent higher for females than for males (because of the state interest in preventing teen pregnancy)
Gender Affirmative Action
Need only pass IS. The general rule is that benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimintion.
Whether an Exam Q is Looking for EP or DP
To determine whether a Q is looking for EP or DP –> look at whether the policy in the Q draws a distinction between different categories of people or instead applies as a complete deprivation or right to exercise the fundamental right.
