Equal Protection

Question 1

Approach to Equal Protection Questions

Answer 1

1. What is the classification?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?

Question 2

Constitutional Provisions Concerning Equal Protection

Answer 2

The equal protection clause of the Fourteenth Amendment applies only to state and local governments

Equal protection is applied to the federal government through the due process clause of the Fifth Amendment

Question 3

Classifications Based on Race and National Origin

Answer 3

Strict scrutiny is used (even if benefiting minorities)
a. Numerical set-asides require clear proof of past discrimination

Question 4

How is the existence of a racial classification proven?

Answer 4

The classification exists on the face of the law

If the law is facially neutral, but there is BOTH a discriminatory impact AND discriminatory intent

Question 5

Race Classifications in Education

Answer 5

Educational institutions MAY use race as one factor in admissions decisions to help minorities:

BUT they must show that there is no race neutral alternative which could achieve diversity.

Educational institutions may not add points to applicants’ admissions scores based on race.

Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.

Question 6

Gender Classifications

Answer 6

Intermediate scrutiny is used

What about gender classifications benefiting women?
a. If based on role stereotypes, will not be allowed
b. If designed to remedy past discrimination and differences in opportunity, will be allowed

Question 7

How is the existence of a gender classification proven?

Answer 7

The classification exists on the face of the law

If the law is facially neutral, proving a gender classification requires BOTH discriminatory impact and discriminatory intent

Question 8

Discrimination Against Non-Citizens

Answer 8

Generally, strict scrutiny is used

Intermediate scrutiny is used for discrimination against undocumented immigrant children

Rational basis test is used for:
- Discrimination against non- citizens that concern self-government and the democratic process
- Congressional discrimination against non-citizen

Question 9

Discrimination Against Non-Marital Children

Answer 9

Intermediate scrutiny is used

Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional

Question 10

Rational Basis Review for Other Classifications

Answer 10

1. Age discrimination
2. Disability discrimination
3. Wealth discrimination
4. Economic regulations
5. Sexual orientation discrimination