Equal Protection

Question 1

EP Analysis

Answer 1

i. State or federal actor
ii. Classification?
iii. What Scrutiny level should apply
iv. Apply Scrutiny to the facts of the case

Question 2

Determining Scrutiny level

Answer 2

1. Race based: classifications; immutable
   Carolene Products: notes case; foot note 4.
   -Past discrimination?
   -Discrete and insular minority?
   -Typically underrepresented in the political process

Question 3

Bolling v. Sharp

Answer 3

District of Colombia issue: (Maintaining racially segregated public schools is violative of due process) Segregation is not reasonable related to an proper government objective

• Reverse incorporation- Watts hates this
  i. Use “liberty” of due process clause instead; the fed gov is under obligation to treat persons equally through liberty
  2. Dred Scott: protections only apply to citizen; he wasn’t one technically in the state he was from

Question 4

Racial Classifications- Cases

Answer 4

Strict: compelling state interest; narrow tailoring
Cases:
Strauder: facial; only white males on juries
Korematsu: Facial-WWII
Brown v. edu: Facially symmetrical
Loving v. VA pt2: facially symmetrical
Johnson: unwritten prison policy
Crosen: preference to minority biz
Effects:
Yick-Wo
Washington v. Davis

Question 5

Strauder

Answer 5

: race; West Virginia restricted jury service to white males; strict scrutiny should apply but court found that it didn’t even pass rational basis scrutiny

a. Courts need only to apply the level of scrutiny necessary to vitiate the law- obviously failed
b. Didn’t actually apply strict scrutiny; bill was dead on arrival
c. Racial classifications are per se unconstitutional

Question 6

Korematsu:

Answer 6

:\National origin classification; facial discrimination- Japanese citizens denied from military zones.

a. Compelling state interest: national security, winning world war II.
b. Narrowly tailored passed.
c. Changed the per se unconstitutional standard

Question 7

Brown vs. Board of edu

Answer 7

a. On its face it is symmetrically neutral. Blacks can’t go to school with whites and vice versa

Question 8

Loving v. Virginia

Answer 8

Interracial marriage part II.

a. Symmetry in the law does not relieve heavy burden of scrutiny
b. But still failed legit interest

Question 9

Johnson v. California (notes)

Answer 9

There was an unwritten policy to separate inmates according to race

a. Interest: here in protecting safety is legitimate and important, but probably not compelling
b. There has to be a connection b/w segregation in cells by race and a reduction I racial violence
c. Here the tailoring should not have generalizations- Could have made it specific to gang affiliation
d. But this is a benign form of discrimination; but it was still remanded to apply strict scrutiny

Question 10

Crosen

Answer 10

Racial classification in applications for city contracts requiring hiring of persons through Minority Business Enterprises

• Interest; make-up for past discrimination… not really compelling here in city’s contracting- Cant do this writ large
• At time less than 1% of the contracts went to minority owned businesses; but this would have had to have been discriminatorily motivated
• Must have discriminatory intent… not merely effects
  i. Also 50% of the city is black, and 5 out of 9 city council seats are held by black members; so the group is not legislatively underrepresented.

Question 11

Yick Wo

Answer 11

: Facially neutral law; discriminatory effect.

a. Wood laundry matts require permits (all Chinese were denied, 1 Caucasian woman denied, all other Caucasians approved)- application process was subjective.
b. Subject to strict scrutiny
c. States purported interest: safety, fire prevention, ect… legitimate interest
a. this a rational way to achieve this interest: maybe; it is a rational way to do this

Question 12

Washington v. Davis

Answer 12

Test disproportionately affected African American applicants.

a. Requirement of purposive discrimination. Effects alone are not enough
b. Test was objective.
c. Legitimate interest: needing an intelligent police force; must be literate and verbally competent police force… would this be a compelling interest (probs not)
a. Tailoring: rationally related to this interest - Here court said yes. Is the minimum score requirement rationally connected to this.

Question 13

Affirmative Action cases

Answer 13

Apply strict scrutiny; deference to interest in most cases
very strict look at tailoring
Bakke-failed
Grutter-passed
Gratz-Failed
Parents involved-failed
Fisher-?

Question 14

CA v. Bakke

Answer 14

1. Medical school reserved a certain # of seats for minority students
2. Established strict scrutiny for affirmative action
3. Interest in re-writing past discrimination not legit
4. Tailoring: quota not narrowly tailored

Question 15

Grutter v. Bollinger

Answer 15

1. Michigan law school considered race as a factor for positive enrollment
2. Interest: enriching the classroom through diversity=compelling
3. Tailoring: legit; looked at every student individually

Question 16

Gratz v. bollinger

Answer 16

1. Michigan undergraduate program. Admission based on point system
   - –Minority students arbitrarily given X amount of points for race
2. Interest: diversity→ legit
3. Tailoring: not narrowly tailored bc advantage was automatic
4. No discussion as to whether this was the only method they had tried

Question 17

Parents Involved

Answer 17

-Seattle high schools used race as a tie breaker when assigning kids to certain high schools to achieve a racially balanced demographic
–This is a quota in disguise
2 Interests:
—Remedying past discrimination: doesn’t apply bc they never had segregation laws
—Achieve diversity to improve the higher education Could have got it here
1.Tailoring was arbitrary: swept too broadly relying on race
—Kennedy wants race-neutral alternative

Question 18

Fisher

Answer 18

1. Admin to University of Texas
   a. Top 10% and then holds that race can be considered a factor
2. Interest: diversity: compelling
3. Tailoring: NO deference here at all; high burden on school showing there’s almost no other way to do this

Question 19

Gender scrutiny and cases

Answer 19

intermediate; important state interest…substantially related
1)Craig v. Boren
2) U.S. v. V.A. (VMI)
3) Personal Administrator of Mass. V. Feeny
notes cases- Reed and Frontiero

Question 20

Craig v. Boren

Answer 20

1. Established intermediate scrutiny for gender
2. State law prevent males from purchasing lower content beer?
3. Interest: safe roads
4. Not substantially related- used stats to show that less than 2% of accidents caused by this group. Also didnt limit other alcohol forms

Question 21

U.S. v. VA–Watts loved this case

Answer 21

Gender segregated military academy
1) Interest: made up after the fact; state took a harder look
–Adversative system offers diverse edu… best for males
–Mission statement: creating citizen soldiers; shouldn’t be restricted to men
3.Tailoring They lost at the tailoring. -substantially related to-
a. Is single sex education tailored to giving a broad range of educational opportunities
You can do this without discriminating on the basis of gender.
+Criag v. Boren overgeneralized about gender; that’s what they’re doing here

Question 22

Personal Administrator of Mass. v. Feeney

Answer 22

1. Law gave preference to administrative positions for veterans; disproportionately disadvantaged women
2. Not clear discriminatory purpose; showed males damaged by law as well was sufficient to prove its neutrality
3. Dissent: state should have burden of proving its not discrim…

Question 23

Reed v. Reed

Answer 23

Preference was given to males

a. It is an immutable characteristic They are/have not been equally represented through the political process.
b. More relevant inquiry: equal access to voting or hidden barriers to women’s voting
c. The Reed court determined the law didn’t pass even under rational basis scrutiny

Question 24

Frontiero

Answer 24

If you are male service member, you don’t have to prove your wife’s dependency–If you are a female service member, you do have to prove your husband’s dependence

a. This was the 70s so stereotypes presume more women are at home.
b. Its also rebuttable; women could prove dependency 2. It was efficiency as the aim, not discrimination
c. strict scrutiny got only 4 votes -The vote in judgment overruled the law 6. But the strict scrutiny usage was a plurality

Question 25

Sexual Orientation cases

Answer 25

Unclear of what level of scrutiny should be used
Cases:
Romer and Windsor

Question 26

Romer v. Evans

Answer 26

1. Colorado voting amendment to prevent legislature from passing laws giving protection to homosexual
2. Literally denied equal protection to an entire class of people
3. Court applied rational-basis
   a. Legit interest: court looked to legislative history to determine discriminatory purpose→ failed here
4. Doesn’t mean RB applies to sexual orientation… just needed to apply the lowest level to fail it.

Question 27

Windsor

Answer 27

1. Couple married in Ontario and moved to New York who recognized their marriage as a valid one. Windsor did not qualify for marital tax exemption from federal estate tax, which excludes from taxation “any interest in property”
2. Doma injures the very class NY protects
   a. Suspectness of the law: “discriminations of the unusual character” requires “careful consideration”
   b. Effect here is clearly discriminatory
   c. House of representatives concluded that DOMA is a moral disapproval of homosexuality

Question 28

Age and Murgia

Answer 28

Age gets RB
i. Board of retirement v. Murgia: (Mandatory retirement for police officers over the age of 50)
3. Legit interest: ensuring an able-bodied and healthy police force
Rationally related: yeah
5. Dissenting justice: brought in right to work and the deprival… foundation of blurring of EP and SDP

Question 29

Equal Protection and Fundamental Rights

Answer 29

-Essentially does traditional EP analysis but examines thing being deprived
-Court has applied it in 2 situations. Voting and Edu
Cases: Harper v. VA Board of Elections; Vieth v. Jubelirer

Question 30

Harper v. VA board of elections

Answer 30

Polling tax; interest was generating $ to maintain voting

1. would maybe pass equal protection; didn’t really run through it
2. but voting is so fundamental and this is what’s being deprived, it’s a huge fucking deal
3. Also Process theory— just don’t mess with t

Question 31

Vieth v. Jubelirer:

Answer 31

1. Gerrymandering case.
2. Politically underrepresented groups do not get strict scrutiny and is not a suspect class.
   a. Problem with effects here is that you don’t know whether you’ve had the effect to delude that persons vote
   b. Concurrence that these are non-justiciable
3. Does this fair very well under the Carolene products analysis
   a. Its too difficult to classify people according to their political affiliation
   b. Class is to poorly defined, this characteristic I not immutable.

Question 32

Plyer v. Doe

Answer 32

Question is whether Texas can deny undocumented school age children public education- failed
Ex. Of how this additional step can save a doomed clause—Argued edu not fundamental
—->But state interests not substantial enough to things being deprived, even though they say rational basis
1) court holds this is not a suspect class=RB
2) Privileges and immunities hold that states cannot sequester themselves. Want to protect mobility-But this only for citizens
3)None of the proffered interests passed the substantial interest
–It was driven up to substantial by virtue of the thing being deprived
–Edu is not fundamental, but its quasi-fundamental?