EQUAL PROTECTION Flashcards
CONSTITUTIONAL SOURCE
- EPC of 14th Amend has no counterpart in the Constitution applicable to fed gov; it is limited to state action.
- Nevertheless, it is clear that grossly unreasonable discrimination by the fed gov violates DPC of 5th Amend.
- Ex. racial discrimination in public schools of D.C.: violation of due process
- Thus, there are really 2 equal protection guarantees
- Ct usually applies same standards under either constitutional provision.
APPLICABLE STANDARDS
- Ct will apply 1 of 3 standards when examining governmental action involving classes of persons.
- If a suspect classification/fundamental right is involved: strict scrutiny standard will be applied & action will be struck down unless gov proves that it is NECESSARY to achieve COMPELLING interest.
- If a quasi-suspect class is involved, Ct will likely require gov to prove that action is SUBSTANTIALLY RELATED to an IMPORTANT gov interest.
- If any other class is involved, action will be upheld unless challenger proves that action is NOT RATIONALLY RELATED to LEGIT gov interest.
PROVING DISCRIMINATORY CLASSIFICATION
- The mere fact that legislation/ gov action has a discriminatory effect is not sufficient to trigger strict scrutiny/ intermediate scrutiny.
- Gov must intend to discriminate
- Intent can be shown in 3 ways:
(1) facial discrimination;
(2) discriminatory application; or
(3) discriminatory motive.
Facial Discrimination
- Law may include a classification on its face.
- Makes an explicit distinction between classes of persons (perhaps by race/gender).
- Cts merely have to apply appropriate standard of review for that classification.
- Standards for racial classifications & gender classifications are described below.
Facial Discrimination Absent Racial Language
- In a few cases, SC has held that a law used a racial classification “on its face” even though law’s language did not include racial language.
- In these cases, law could not be explained except in racial terms.
Note:
- If a legislative districting map could be explained in terms other than race, Ct would not find law constituted racial discrimination on its face.
- In such a case, persons attacking legislative districts as being based on racial classification would have to show that district lines were drawn for a racially discriminatory purpose.
Discriminatory Application
- In some instances, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons.
- If persons challenging gov action can prove that gov officials applying law had a discriminatory purpose (& used discriminatory standards based on traits such as race/gender), law will be invalidated
Discriminatory Motive
- Sometimes a gov action will appear to be neutral on its face & in its application, but will have DISPROPORTIONATE IMAPCT on a PARTICULAR CLASS (like racial minority/women).
- Such a law will be found to involve a classification (& be subject to the level of scrutiny appropriate to that classification) only if ct finds the law-making body enacted/maintained law for a discriminatory purpose
- In such cases, ct should admit into evidence statistical proof the law has a disproportionate impact on one class of persons.
- However, mere statistical evidence will rarely be sufficient in itself to prove the gov had a discriminatory purpose in passing a law.
- Statistical evidence may be combined w/ other evidence of legislative/admin intent to show that a law/regulation is product of discriminatory purpose.
SUSPECT CLASSIFICATIONS : Race and National Origin
- If gov action classifies persons based on exercise of a fundamental right/involves a suspect classification (race, national origin, or alienage), strict scrutiny is applied.
- The result is invalidation of almost every case where classification would burden a person b/c of her status as a member of a racial/national origin minority.
School Integration
- Discrimination must be intentional to create discriminatory classifications for strict scrutiny
- Only intentional segregation in schools will be invalidated by EPC
Remedying Intentional School Segregation
- If proven that school board has racially districted schools, board must take steps to eliminate effects of discrimination (e.g., busing students).
- If school board refuses to do so, a ct may order school district to take all appropriate steps to eliminate discrimination.
Order Limited
- Ct may not impose remedy that goes beyond purpose of remedying remainder of past segregation.
- Thus, ct cannot impose a remedy whose purpose is to attract nonminority students from outside school district when there is no evidence of past segregation outside the district.
- Ex. State not required to fund salary increases& remedial programs to create magnet schools to attract suburban students to urban schools
“Benign” Government Discrimination—Affirmative Action
- Gov action—whether by fed, state, or local gov bodies—that favors racial/ethnic minorities is subject to strict scrutiny, as is gov action discriminating against racial/ethnic minorities.
Note:
Prior to its ruling in Adarand, supra, the Supreme Court upheld a federal requirement that 10% of federal grants for public works be set aside for minority businesses. [Fullilove v. Klutznick, 448 U.S. 448 (1980)] In Adarand, the Court reserved judgment on whether a Fullilove-type program would survive strict scrutiny. Some commentators have suggested that it might, because the Court might give Congress more deference than the states based on Congress’s power under the Enabling Clause of the Fourteenth Amendment (see XII.A.3., supra), but the continued validity of Fullilove is, at best, uncertain.
Remedying Past Discrimination
.
- Gov has a compelling interest in remedying past discrimination against a racial/ethnic minority.
- Thus, if ct finds a gov agency has engaged in racial discrimination, it may employ a race-conscious remedy tailored to end discrimination & eliminate its effects.
- A remedy of this type is permissible under EPC b/c it is narrowly tailored to further a compelling interest (elimination of illegal/unconstitutional discrimination)
Where There Has Been No Past Discrimination by Government
- Even where a state/local gov has not engaged in past discrimination, it may have a compelling interest in affirmative action.
- However, the gov action must be narrowly tailored to that interest.
Remedial Justifications
(1)
Local Private Discrimination
- Remedying past private discrimination w/in gov agency’s jurisdiction is a compelling interest, but there is no compelling interest in remedying general effects of societal discrimination.
- Thus, for a city to give a preference to minority race applicants for city construction Ks, it must identify the past unconstitutional/illegal discrimination against minority-owned construction businesses that it is now attempting to correct
Diversity in Primary and Secondary Public Education
- A school board may not assign students to a public primary/secondary school on basis of race unless necessary to achieve a compelling interest, such as remedying past unconstitutional (i.e., intentional) discrimination.
- A majority of Ct has not found diversity itself to be a sufficiently compelling interest