Equal Protection

Question 1

EP application

Answer 1

how EP applies to fed, state, & local govts
* 14A EP applies directly to state/local govts
* EP applies to fed govt by incorporation through 5A DP clause (ie, EP does NOT apply directly to fed govt)

NOTE: same analysis and levels of scrutiny applies for EP analysis whether it applies through 5A or 14A

Question 2

EP analysis

Answer 2

if you see anything that could implicate EP, ask:
1. is there a discriminatory classification?
2. what level of scrutiny applies given the classification?
3. does the classification satisfy the appropriate level of scrutiny?

Question 3

is there a discriminatory classification?

Answer 3

to receive heightened scrutiny, a discriminatory classification must be proved

Question 4

what level of scrutiny applies given the classification?

Answer 4

• Strict scrutiny: suspect classifications
• Intermediate scrutiny: quasi-suspect classification
• Rational basis: all other alleged classification

Question 5

provising discriminatory classification

Answer 5

three ways:
1. law discriminates on its face
2. facially-neutral law applied in a discriminatory manner
3. discriminatory motive/purpose behind law and/or application

Question 6

law discriminates on its face

Answer 6

by its terms, the law treats classes of people differently

Question 7

facially-neutral law applied in a discriminatory manner

Answer 7

law does NOT create a classification by its terms BUT does so as applied

eg, only men are arrested under an otherwise valid law

Question 8

discriminatory motive/purpose behind law and/or application

Answer 8

Test: P must show:
* disparate impact - the law has a discriminatory impact (ie, it creates a classification), and
* discriminatory purpose - law was enacted or maintained for reasons involving discrimination

NOTE: demonstrating discriminatory impact alone is NOT enough. There MUST be some evidence of govt’s discriminatory motive

Question 9

proving discriminatory classifications burden

Answer 9

Challenger bears burden: burden is on party challenging the classification to show that it’s discriminatory

Question 10

suspect classification

Answer 10

strict scrutiny
* race
* national origin
* alienage
* right to travel
* right to vote

Question 11

quasi-suspect classification

Answer 11

intermediate scrutiny
* gender
* non-marital children

Question 12

rational basis

Answer 12

1. alienage, but only if classification:
   - relates to self govt, and democratic process, or
   - is a congressional action concerning immigration
2. all other - all other classifications not qualifying for strict or intermediate scrutiny receive rational basis review

eg, age, disability, wealth, economics

Question 13

race & national origin classifications (generally)

Answer 13

classifications based on race or national origin are suspect classification reviewed under strict scrutiny

ET: often arises in context of classifications benefitting minorities (affirmative action), which may be upheld

Question 14

types of classifications benefitting minorities (affirmative action)

Answer 14

1. numerical set-asides (quotas)
2. admissions
3. public school integration

Question 15

numerical set-asides (quotas)

Answer 15

to be valid: requries clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs
- quotas are unlikely to be upheld

Question 16

admissions

Answer 16

b/c student body diversity may be a compelling interest, educational institutions may use race or national origin as a factor in admissions decisions, but not as a defining criterion
- universities must show that no workable race-neutral alternatives would assure the diversity sought

eg, invalid to award “points” to applicants based on race

Question 17

public school integration

Answer 17

public school systems may not assign students to schools on the basis of race to achieve integration
- generally, racial balancing is NOT a compelling state interest

Question 18

alienage classifications

Answer 18

classifications basesd on alienage (ie, citizenship status) are subject to strict scrutiny review, although certain exceptions apply

Question 19

alienage classifications exceptions

Answer 19

rational basis applies if the classification is:
1. related to self-govt and democratic process
2. a congressional law regulating immigration

Question 20

related to self-govt and democratic process

Answer 20

often arises where job applicants are denied govt employment based on their citizenship status

NOTE: areas where alienage classifications have bene upheld under rational basis review
- voting
- serving on a jury
- working as a police officer
- working as a teacher
- working as a probation officer

Question 21

a congressional law regulating immigration

Answer 21

Congress has plenary powers to regulate immigration

NOTE: undocumented aliens are NOT considered a suspect classification

Question 22

gender

Answer 22

intermediate scrutiny + “exceedingly persuasive justification”
* gender classifications receive heightened intermediate scrutiny (ie, they must substantially relate to an important govt purpose)
* Additionally: courts often require an “exceedingly persuasive justification” for the classification

Question 23

classifications discriminating against men

Answer 23

usually invalid
* BUT some have passed intermediate scrutiny (eg, statutory rape laws applying only to men, all-male military draft)

Question 23

non-marital children (legitimacy classifications)

Answer 23

Intermediate scrutiny: applies if a law grants benefits to all marital children but denies benefits to some non-marital children
* laws that deny benefits to all non-marital children while granting benefits to all marital children are unconstitutional on their face

usually arises w/ intestacy statutes

Question 23

classifications benefitting women

Answer 23

• Classifications based on stereotypes are impermissible
• classifications designed to remedy past discrimination or differences in opportunity will likely be upheld

Question 24

right to travel & right to vote

Answer 24

although both are fundamental rights that can be analyzed under substantive due process, the right to travel and vote often arise as classifications issues requiring EP analysis

Question 24

right to travel

Answer 24

strict scrutiny

usually arises when laws impede movement between states

includes durational residency requirements

Question 25

durational residency requirements

Answer 25

laws requiring some period of in-state residency to qualify for a state benefit

Invalid residency requirements: 1-yr residency to:
- receive welfare
- receive subsidized medical care
- vote in state elections

Valid residency requirements:
- 30-day residency to vote in state elections
- 1-yr residency to get divorce

Question 26

right to vote

Answer 26

strict scrutiny
arises w/ laws that deny some citizens the right to vote

“one person, one vote” requirement must be met for all state and local elections
- for elected bodies, voting districts must be similar in population

at large elections (constitutional)
- when all voters vote for all office holders