Equal Protection

Question 1

Equal Protection Clause

Answer 1

An equal protection claim arises whenever the government treats people differently from others
-State action required

Fourteenth amendment (state government) | Fifth Amendment (federal government)

Applicable standards:
-Fundamental right or suspect classification (strict scrutiny)
-Quasi-suspect classification (intermediate scrutiny)
-Everything else (rational basis review)

Question 2

Discriminatory Classifications

Answer 2

Intent must be intentional for strict or intermediate scrutiny, which can be shown by:
1. Facial Discrimination
2. Discriminatory application of facially neutral law + evidence of discrimination
3. Facially neutral law with disparate impact on protected attack + evidence of discrimination

Question 3

Suspect Classifications

Answer 3

1. Race
2. National Origin
3. Alienage (citizenship status)

Question 4

Race and national origin classifications

Answer 4

Race and national origin classifications are judged by strict scrutiny standard
-Housing patterns resulting in racial imbalance are valid
-Remedying the past effects of segregation (i.e., busing) are valid
>But assigning public primary or secondary students solely based on race to promote diversity in invalid
-Affirmative action to remedy general past “societal discrimination” is invalid
-Race may be used as non-predominant factor in high education affirmative action
>But affirmative action programs are not required and may be eliminated

Question 5

Alienage classification (citizenship status)

Answer 5

Because of Congress’s plenary (absolute) power over aliens, federal alienage classifications are not subject to strict scrutiny
-Rational basis
-But state and local laws on alienage are subject to strict scrutiny
>Exception for participation in state government (i.e. jury service or voting) or non-elective offices (i.e., police officers or schoolteachers)
>Exceptions apply rational basis standard

*Undocumented aliens are not a suspect classification
-Subject to rational basis standard
>Undocumented alien children cannot be denied free public education

Question 6

Quasi-Suspect classification

Answer 6

1. Gender
2. Legitimacy

Question 7

Gender classification

Answer 7

Requires intermediate scrutiny: must be substantially related to an important government purpose
-Government must show exceedingly persuasive justification for the discrimination
>Based on role stereotypes are invalid
>Designed to remedy past discrimination may be valid

Gender Classifications:
1. Gender-based death benefits (invalid)
2. Gender-based peremptory strikes (invalid)
3. Alimony for women only (invalid)
4. Discriminatory minimum drinking age (invalid)
5. Discriminatory statutory rape laws (valid)
6. All-male draft (valid)
7. Requiring American fathers, but not mothers, to prove their parentage of non-marital children born abroad in order to obtain U.S. citizenship for them (valid)