Equal Protection

Question 1

Analysis for Standards of Review

Answer 1

Rational review, unless
1. Fundamental right (due process), or
a. Strict scrutiny, or
b. Rational review with a
bite
2. Suspect classification
(equal opportunity)
a. Strict scrutiny, or
b. Intermediate scrutiny
(gender)

Question 2

Railway Express Agency v. New York

Answer 2

NY ordinance prohibits vehicles with ads on the vehicles unless the ads are for the business that owns the truck
1. State interest is safety
2. Railway argues law is not rationally related
a. should regulate all trucks
b. times square?

Court finds law is rational
1. The law maybe underinclusive.
2. It does not need to be the most effective option to be “rationally related” to the state’s argued legitimate purpose.

Prof note: “Could be” is the bar for rationally related to the state interest. Deference to the legislature.

Question 3

Armour v. Indianapolis

Answer 3

Reducing administrative costs: The lowest bar for legitimate state interest under rational basis review.

1. State charges overtime or lump sum for replacing sewage system
2. Later, forgave debts, but did not offer repayment

Argument: other systems would allow some repayment
Court: Not good, but rational

CJ Roberts Dissent:
1. While rational review may be a low bar, in order for it to be relevant we must strike down a law when appropriate.
2. Here, the administrative burden is as simple as cutting a check.

Question 4

New York City Transit Authority v. Beazer

Answer 4

The law may be overinclusive.
1. Transportation authority does not allow the hiring of drug users, including those on methadone
2. Methadone users who do not recede just as likely to be good workers as general pop

Court Rules:
1. The legitimate interest of safe drivers is clear
2. The rule may be overinclusive, and is valid even if it excludes some methadone users who would be safe drivers from employment

Question 5

Policy Considerations for Standards of Review

Answer 5

1. The court is hesitant to make new rights and even more hesitant to make new suspect classes (where does it stop?)
2. Will the decision of finding a law to be unconstitutional under rational basis review create a flood of suits?

Question 6

Examples of legitimate state interests

Answer 6

We know two things that are explicitly illegitimate
1. The desire to harm a group
2. Trying to regulate based on morality. “Punish sin.” (Lawrence v. Texas)

Legitimate reasons:
1. Government efficiency (even a very small amount) - Armour v. Indianapolis
2. Safety (The steps can be incremental) - Railway Express Agency v. New York
3. Can be less effective than other options - New York City Transit Authority v. Beazer

Question 7

How to identify suspect classes

Answer 7

Congress has decided that the 14th amendment applies to suspect classes

A suspect class is:
1. Immutable characteristic (physically can not change or should not be asked to change)
2. Subject to majority prejudice and discrimination
3. Politically powerless

Question 8

Suspect Classes

Answer 8

1. Race
2. Religion
3. Nationality
4. Legitimacy
5. [alienage] (only subject to strict scrutiny if the states are treating someone unequally, not the feds. May be overturned soon.)

Question 9

Plessy v. Ferguson

Answer 9

Test case to show ridiculousness of segregation

Plessy, ⅞ white, purposefully sits in white only train car, refuses to move and is arrested

Court:
1. There are two kinds of equality: social and political (civil rights)
2. 14th amendment does not enforce social equality
3. segregation laws aren’t harmful, just provide order for social hierarchy

Harlan Dissent:
1. The obvious underlying reason for the law is a belief by the legislature that African Americans are an inferior race
2. Original intent of EP is antisubordination
3. Colorblind Constitution

Question 10

Brown v. Board of Education

Answer 10

Agrees with Harlan’s dissent in Plessy: there is harm in segregation. No segregation in public schools.

Question 11

Harlan’s Dissent in Plessy Used Today

Answer 11

“Colorblind Constitution” - now used to get rid of affirmative action

1. This is not supported by the original constitution (was more of an aspirational statement)
2. Also arguably not supported by examining the actions of the congress that enacted the 14th amendment
   a. Sanctioned segregated
   schools
   b. Other laws which
   legislated based on race
   to the benefit of
   minorities

Question 12

Strauder v. West Virginia

Answer 12

The attempt to harm is clear = subordination

1. Scotus strikes down virginia law preventing African Americans from serving on juries
2. The law is based on race, not other qualifications: clearly an attempt to subordinate and therefore unconstitutional

Question 13

Korematsu v. United States

Answer 13

1st case by SCOTUS to say laws using race classifications are immediately subject to strict scrutiny

Court says law enabling Japanese internment camps passes strict scrutiny despite
1. no detail in military’s “compelling interest”
2. Not narrowly tailored (all Japanese detained, no German or Italian Americans)

since been overruled

Question 14

Yick Wo v. Hopkins

Answer 14

Unequal application = subordination

Facts
1. Permits required for laundries operated unless inside stone buildings (fire risk)
2. 1 out of 200 permit requests granted to Chinese, while 80 out of 81 were granted to other applicants

Court reasons:
1. It does not matter whether or not the injured parties here are citizens, “persons” are protected
2. If the law is applied in a discriminatory manner it does not matter that it is neutral on its face

Question 15

Loving v. Virginia

Answer 15

However, equal application does not mean there is no subordination

Rule: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Question 16

Johnson v. California

Answer 16

Court switches the anti subordination rationale to a colorblind constitution rationale: Even race classifications seeking to assist those in the minority classification are subject to strict scrutiny

1. CA prison segregates prisoners for 60 days, gang violence concerns
2. Court reasons race is involved so strict scrutiny applies (Ginsberg disagrees)
3. Prison policy struck down, not narrowly tailored

Question 17

Defending Affirmative Action

Answer 17

1. Could maybe argue compelling interest, but
2. How to narrowly tailor? There are things other than race (such as poverty) that could identify who to help

Question 18

Washington v. Davis

Answer 18

A state-sponsored disproportionate impact on a racial group only violates EP if it is motivated by a discriminatory purpose

1. Challenge to verbal skills test for hiring police in DC
2. Test disproportionately failed by African Americans

Court reasons
1. A discriminatory purpose can be inferred from the totality of the facts, including the fact that a law burdens one race more heavily than another.
2. However, the mere instance of a disproportionate impact does not, without more, trigger strict scrutiny by the courts.

Question 19

Craig v. Boren

Answer 19

Oklahoma statute prohibited the sale of “non-intoxicating” 3.2 percent alcoholic beer to males under the age of twenty-one, but permitted the sale of such beer to females over the age of 18

Rule: Gender classifications trigger intermediate scrutiny
(1) substantially related to an
(2) important gov purpose

Question 20

United States v. Virginia

Answer 20

Public military school is male only. Court holds must allow women.

J. Ginsberg adds “exceedingly persuasive” to intermediate scrutiny

Question 21

Michael M. v. Superior Court of Sonoma County

Answer 21

CA law: Statutory rape when both are under age of 18, only the male is guilty

Court says it is intermediate scrutiny but seems to be applied as if it were rational review

Question 22

Nguyen v. INS

Answer 22

Law makes it more difficult for a US father to get citizenship for child born overseas than a US mother

The Court is extremely deferential to immigration issues; puts this even closer to rational review

Court finds DNA tests insufficient, need to prove a bond, and mothers inherently have a bond.

O’Connor Dissent: The Court relies on sex-based stereotypes

Question 23

Skinner v. State of Oklahoma

Answer 23

OK law imposing sterilization on “habitual criminals,” those who have committed three or more crimes involving moral turpitude

Holding: There is a fundamental interest in having children, and denying that interest to one group of criminals but not others, who have committed substantively similar crimes, violates equal protection.

Question 24

Zablocki v. Redhail

Answer 24

WI statute: if you owe child support, you can not get a marriage license

There is a fundamental interest in marriage, and the law is discriminatory against the poor.
1. some people may never have the money
2. getting married may improve stability
3. this does not help get child support paid

Question 25

San Antonio Indep. School District v. Rodriguez - the death of fundamental interests

Answer 25

Facts
1. TX allocated an even spread of tax dollars to school districts, allowed districts to supplement through property taxes
2. The poor neighborhood, even taxing up to the limit, would not raise as much money as the affluent neighborhoods under this system

Court Reasons:
1. We will not recognize anything as a fundamental interest that would not also be a fundamental right under substantive due process
2. There is no fundamental right to an education, so no fundamental interest

Marshall dissent:
The majority has made the fundamental interest cases under equal protection superfluous.

Question 26

Plyler v. Doe

Answer 26

TX law withheld state funds for the education of children not legally admitted into the country. Court strikes down the law.

Court: While the judiciary must respect the political decisions of Congress, especially in the area of immigration, states have no similar authority in regard to the classification or discrimination of aliens.

1. No evidence federal policy supports this
2. no substantial goal is furthered

Question 27

City of Cleburne v. Cleburne Living Center

Answer 27

Mental institution group home wants to build in TX
The city denies the permit for the group home, but has approved hospitals and fraternities

State interests
1. Concerned about kids that will make fun of residents
2. The area is a floodplain and mentally disabled residents will be harder to evacuate

Court:
1. does not want to make a new suspect class (mentally disabled have political power)
2. finds law not rationally related to the stated interests

Question 28

Romer v. Evans

Answer 28

CO law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community

Not rational, seeks to harm:
The Amendment does treat homosexual persons differently from the population as a whole because it withdraws from them, but no other persons, specific legal protection from discrimination, and it forbids the reinstatement of laws and policies that would protect their interests.

Question 29

United States v. Windsor

Answer 29

Federal law DOMA says marriage can only be between a man and a woman (prior to obergefell)

Court strikes law down:
DOMA treats marriages of same-sex couples as “second-class” without any legitimate interest justifying discrimination.

Question 30

Analysis for Individual Rights (substantive due process or EP)

Answer 30

1. Would the court recognize this as a fundamental right, or
   a. Washington v glucksberg, or
   b. More libertarian approach
   (Bruen and Obergefell)
2. Is a group being treated differently?
   a. Suspect class - strict scrutiny
   i. Could argue to add
   ii. Court refused to add mentally challenged in Cleburne
   b. Intermediate for gender
   c. Rational review
   i. Would this be upheld? Often yes
   ii. But, if its like cleburne, or windsor, or romer: rational review with a bite “No real rational reason”