Equal Protection Flashcards
What is equal protection?
An equal protection claim arises whenever the government treats people differently from others. The Equal Protection Clause of the Fourteenth Amendment is limited to state action. While the Equal Protection Clause is not applicable to the federal government, the Due Process Clause of the Fifth Amendment contains an equal protection component. Thus, there are really two equal protection guarantees.
What are the applicable standards of equal protection?
If a fundamental right or suspect classification (for example, race) is involved, the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved (for example, gender), intermediate scrutiny is the applicable standard. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.
How do you know what scrutiny applies under equal protection?
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:
• A law that is discriminatory on its face (that is, facial discrimination),
• A discriminatory application of a facially neutral law, or
• A facially neutral law with a disparate impact on a protected class of people (such as minorities).
Note: The second and third ways to show intentional discrimination (discriminatory intent) are the most difficult to prove. A discriminatory application or effect alone is not enough. The legislature’s discriminatory intent must be shown (for example, by evidence of a history of discrimination).
What are suspect classes?
Classifications are suspect if they are based on race, national origin, or (at the state and local levels) alienage.
How are race and national origin classified?
Classifications based on race or national origin are judged by a strict scrutiny standard.
a. School Integration
Intentional segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is no violation. Thus, there is no violation if housing patterns result in racial imbalance in schools.
Remedying Intentional School Segregation
If it’s proven that a school board has engaged in the racial districting of schools, the board must take steps to eliminate the effects of that discrimination (for example, busing students). If the school refuses to do so, a court can order the school district to take all appropriate steps to eliminate the discrimination, but the order cannot go beyond the purpose of remedying the past effects of segregation. Compare—Promoting Diversity in Primary and Secondary Schools
The Supreme Court has found that assigning students to a public primary or secondary school on the basis of race solely to promote diversity, as opposed to remedying past intentional segregation, does not satisfy strict scrutiny.
How does it work for benign government discrimination?
b. “Benign” Government Discrimination—Affirmative Action Government action—whether by federal, state, or local governmental bodies—that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
Remedying Past Discrimination
The government has a compelling interest in remedying past governmental discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past “societal discrimination.”
Where There Was No Past Discrimination
Even where the government hasn’t engaged in past discrimination, it may have a compelling interest in affirmative action in limited contexts. However, remember that the governmental action must be narrowly tailored to that interest.
— Diversity in Higher Education
Unlike with public primary and secondary schools, the Supreme Court has deferred to public colleges and universities that have claimed that they have a compelling interest in having a diverse student body. Thus, the Court held that race and ethnicity could be used as a factor (although not a predominant factor) in an individualized assessment of each student for admissions. However, the Court will not defer to colleges and universities regarding whether a particular scheme for assuring diversity meets strict scrutiny. The school must show that no workable race-neutral alternatives would assure the diversity sought. States May Eliminate Race-Based Preferences
States aren’t required to have affirmative action
programs for admission to their universities. Moreover, they may eliminate existing race-based preferences, including by voter initiative.
What happens when there is discriminatory legislative apportionment?
c. Discriminatory Legislative Apportionment
If a plaintiff can show that a redistricting plan was drawn up predominately on the basis of racial considerations, strict scrutiny is triggered and the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.
What are alienage classifications?
a. Federal Classifications
Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.
b. State and Local Classifications
Generally, state/local laws on alienage (that is, citizenship status) are suspect classifications subject to strict scrutiny.
What is the exception to alienage classifications?
Exception—Participation in Self-Government Process If a law discriminates against alien participation in state government (for example, voting, jury service, elective office), the rational basis standard is applied. Also, the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy (for example, police officers, probation officers, and primary and secondary schoolteachers).
Are undocumented aliens a suspect class?
c. Undocumented Aliens
Undocumented aliens are not a suspect classification. Thus, state laws regarding them are subject to a “rational basis” standard.
Compare—Undocumented Alien Children
Denial of free public education to undocumented alien children has been held to be invalid. Strict scrutiny does not apply, though; the Supreme Court has used language in its opinions evoking both the rational basis standard and intermediate scrutiny.
What are quasi-suspect classifications?
Classifications based on legitimacy and gender are quasi-suspect.
What are gender classifications?
Gender classifications are reviewed under the intermediate scrutiny standard: They must be substantially related to an important government purpose. The government bears the
burden of showing an “exceedingly persuasive justification” for the discrimination.
Gender classifications based on role stereotypes are generally invalid, whereas those designed to remedy past discrimination are more likely to be upheld under intermediate scrutiny.
What are the classifications of marital and nonmarital children?
Distinctions drawn between marital and nonmarital children are also reviewed under the intermediate scrutiny standard: They must be substantially related to an important government interest. Discriminatory regulations intended to punish nonmarital children (for example, a law providing a benefit to marital children but not to nonmarital children) are invalid.
What are other classifications and what are they evaluated under?
All other classifications are evaluated under the rational basis standard. These include age, disability, and wealth classifications. For example, mandatory retirement ages can
be established; and because education is not a fundamental right, there is no denial of equal protection when wealthier children can afford to pay for access to the best state-operated schools.
What is the animus rational?
If the government’s only interest in denying a benefit to or imposing a burden on a group of people is a dislike of them, the classification will not meet rational basis review.
