Equal Protection Flashcards
Basics of Equal Protection Clause
“Rules for thee but not for me.”
The EPC prohibits feds, states, and local govs from treating individuals or classes differently under similar circumstances without sufficient justification.
Textual Origin: No state shall “deny to any person within its jurisdiction the equal protection of the laws.” 14A Sec 1. The Court has interpreted the 5A Due Process Clause to include EP against the feds too.
3 Steps to Analyze EP Problems
1) Identify the trait that the government uses to classify people. Without relative treatment based on different trait, there is no EP claim.
2) Determine which classification that trait falls under (suspect, quasi-suspect, or neither). This will determine the SoR.
3) Evaluate the gov’s actions under that level of scrutiny.
OR
Identify a literal violation of EP and strike it down. If a law makes it more difficult for 1 group of citizens than others to seek help from the government.
Equal Protection Standards of Review
Strict Scrutiny Classifications:
1) If a fundamental right is being deprived, courts apply strict scrutiny. The burden is on the government to prove both compelling gov interest + narrowly tailored. This is uncommon because of SDP claims and 1A claims used instead.
2) Suspect classifications also receive strict scrutiny. These include: race, religion, national origin, or lawful alienage. A plaintiff asserting EP claim based on suspect classification must prove discriminatory intent, not just disparate impact. Discriminatory intent need not be sole or primary motivating factor. Absent intent, strict scrutiny does not apply. Intentional racial discrimination always receives strict scrutiny even if benign motives like affirmative action.
Intermediate Scrutiny Classifications:
1) Semi- or quasi-suspect classifications receive intermediate scrutiny. These include: gender or illegitimate birth. Burden is on the gov to prove it is an important gov objective substantially related to achieving its objective.
Rational Basis Classifications:
1) Everything else. There must be legitimate, conceivable gov objective and the means must be rationally related. Burden of proof on P.
Animus:
Fails regardless of SoR
Determining Which SoR to Use for a Classification
1) Consider history of group’s discrimination. Past discrimination makes it more suspect.
2) Consider if involvement in the political process will help to solve the issue. If so, this would be a reason not to treat a distinction with greater scrutiny. Sex is quasi-suspect and not fully-suspect because women can vote and take part in political process at least since 1920s which was harder for black people under Jim Crow. This is from Carolene Footnote 4. DISCRETE AND INSULAR
3) Consider immutability. The more immutable, the stricter the scrutiny.
Class Hypo: Contraception ban among people in their 20s
P could have many claims:
1) SDP claim about fundamental right to use contraception
2) EP claim based on age
3) EP claim based on classifying people with regard to their ability to exercise a fundamental right
Claim 3 is stronger because Claim 2 only gets RB review whereas a fundamental right receives strict scrutiny
Identifying Suspect and Quasi-Suspect Classifications
Generally, both feature immutable characteristics that are usually irrelevant to a government policy. They both have a history of prejudice or discrimination.
Note: Age, mental disability, and sexual orientation do not fall into these categories.
Difference between Equal Protection and Substantive Due Process
SDP is absolute; it’s about guaranteeing you a certain right,
EP is relative; it looks at how you are treated compared to other people.
Class Hypo: if the gov denied you the ability to enter a contract and said you have to be male to make a contract, what is the SDP arg and what is the EP arg?
SDP: This is not a fundamental right (contracting), meaning we apply RB as our SoR. This law cannot even pass RB though, because there is no legitimate interest in only letting males contract.
EPC: By treating the plaintiff differently from others, the gov must justify that distinction but it can’t.
The driving principle is often a sense of “rules for thee but not for me”.
Fundamental Rights in the EPC Context
Note that these differ from the SDP context.
Apply strict scrutiny for the deprivation of a fundamental right under EP.
Fundamental rights for EP include:
1) Vote
2) Access ballot as political candidate
3) Travel to another state
4) Marry, procreate, live as family unit; and
5) Access courts to get justice
How to find fundamental EP right: courts consider whether the Constitution expressly or implicitly guarantees the right, but they stopped doing this in the 70s.
Differences between Facially Discriminatory and As-Applied
A facial challenge asserts that a law discriminates on its face by drawing a distinction between similarly situated persons in its text.
An as-applied challenge asserts that in practice, the challenged law is being administered in an unconstitutional way.
Examples:
Legislative Facially Discriminatory: VMI. Only males can attend according to the law itself.
Executive Facially Discriminatory: A cop says he only pulls over black people for speeding.
Executive Non-Facially Discriminatory: Enforcing a neutral law by race - like only pulling over black people for speeding.
Test for a Non-Facially Discriminatory Law
To show that a classification is being made, P must show that both 1) discriminatory effect / disparate impact AND 2) discriminatory intent/purpose exists.
If missing either, there is no non-facial classification being made.
Examples:
Yick Wo = non-facial executive classification violated EP clause
Tussman and Tenbroek Summary
1 succeeds any SoR
1) All T’s are M’s and all M’s are T’s
Perfectly reasonable
2) No T’s are M’s
Perfectly unreasonable
3) All T’s are M’s but some M’s are not T’s
Underinclusive
4) All M’s are T’s but some T’s are not M’s
Overinclusive
5) Some T’s are M’s; some T’s are not M’s; and some M’s are not T’s
Both under- and over-inclusive
#2 fails any SoR
#3 is underinclusive because lots of bad guys that should be getting hit by the law aren’t getting off scot-free. HOWEVER, underinclusive is usually ok because the gov has to start somewhere
#4 is overinclusive because innocents are getting caught in the cross-fire
#5 is a typical venn diagram
Railway Express Agency v. NY and the Toleration of Underinclusivity
NY was trying to cut down driving distractions so they banned ads on the side of trucks for companies other than the truck’s business.
This was really underinclusive because they singled out a tiny piece of the distracted driving problem. But the law survived because EPC generally tolerates underinclusivity.
Underinclusivity Rules
Rule: A law that is underinclusive per se can still be constitutional.
Policy: The gov has to start somewhere, and it’s ok if it starts small. Better to let lots of guilty go free than to start by punishing innocents (i.e. better underinclusive than overinclusive).
Exception: Underinclusivity could be a sign of something else, like animus.
US Dept of Ag v. Moreno
This is an example of the exception at work, where underinclusivity is not tolerated if it is actually a sign of animus.
The fed gov distinguished between people who were eligible for foodstamps based on if they were living with relatives or not. Court detected animus against hippies who lived in communes with non-family so they struck it down.
Even though this was RB SoR, the court struck it down because if the actual reason was just hostility, that isn’t legitimate even under RB. Fails regardless of SoR.
Plessy v. Ferguson (Separate But Equal)
The EP clause is about political equality (as distinguished from social equality) according to Plessy court. Political equality includes voting, juries, etc.
“Separate but equal” was still sort of useful for civil rights lawyers to point out unequal facilities in terms of “tangible factors”. This is distinguished in Brown v. Board where even the act of separation is considered inherently unequal.
