Equal Protection Flashcards
Where does Equal Protection of the Laws come from for the Federal Government
5th Amendment Due process clause
Where does Equal Protection of the Laws come from for the States?
14th Amendment - Equal Protection Clause
What does the equal protection require?
Requires the government to justify when it discriminates
How to analyze an equal protection question
- Identify type of discrimination
2. Identify and/or apply the level of scrutiny attached to that discrimination
Disparate Impact - defined
A requirement that is neutral on its face but impacts one race more than another.
NOT discrimination - will receive rational basis review
P must show that what the government has done is not rationally related to any legitimate interest - P will almost always lose
2 Exceptions where disparate impact will NOT
receive rational basis review
- Intentional disparate impact - method employed to discriminate racially - knowledge not sufficient, must be intentional - strict scrutiny will apply.
- Discriminatory application - neutral standard applied in discriminatory way - strict scrutiny applied
Where rational basis review will apply to equal protection question
age, disability, and alienage if done by congress.
Disparate impact
Government prevails except classification on sexual orientation
failed for lack of legitimate government interest
Rational basis reivew
P must show government action
not rationally related to
legitimate government interest.
Intermediate Scrutiny - Test
Government must show discrimination is
substantially related
to an important government interest.
interest must be actual reason for discrimination
Where intermediate scrutiny is applied
Sex
illegitimacy
Undocumented Alien Children
Strict Scrutiny Test
NECESSARY to ACHIEVE
COMPELLING state interest and
and is narrowly tailored.
Where Strict Scrutiny will apply
VRANT
Alienage (state) Domestic Travel Race National Origin Voting
De jure Segregation
Segregation based on law is
almost always unconstitutional
De facto segregation
Segregation by choice, not law.
Not unconstitutional
No state action
School Segregation
School boards have duty to eliminate racial segregation from schools. busing constitutional where implemented to remedy past discrimination in a particular school system.
Where overt classifications may pass strict scrutiny
Police responding to race riot
separate races to end violence.
Affirmative Action
Compelling interests for affirmative action
Remedying states past discriminatory actions -
narrowly tailored to ensure benefits go to persons affected by discrimination.
in higher education (not lower levels) race can be one of many factors but no fixed weight.
Alienage Discrimination by States
state discrimination on basis of US citizenship strict scrutiny will apply.
State may discriminate against non-citizens in positions related to self-government.
Police, Government Officials, Public School Teachers,
PUBLIC FUNCTION EXCEPTION will not apply to purely ministerial functions - notary public.
Illegal Aliens and Discriminatory Actions
not a protected class rational basis review
except
children of illegals will receive intermediate scrutiny.
Or if it amounts to an immigration policy.
Illegitimate Children
intermediate scrutiny
almost always fail
action serves no important government interest
Examples of Sex Discrimination found Unconstitutional
Estate Administration Military Housing Alimony restrictions on who is eligible to receive Drinking age *Failed under intermediate scrutiny*
Where Sex Discrimination found Constitutional
Draft
Statutory Rape Laws
Gender based affirmative action
Intermediate scrutiny - substantially related to important government interest.
Discrimination making up for past discrimination, even if societal, will be upheld.
Who bears the burden on the 3 standards of review?
Rational Basis - Plaintiff
Strict and Intermediate - Government
What government interests are served by the levels of scrutiny
Rational Basis - any legitimate government interest
Intermediate - Important Government Interest
Strict - Compelling Government Interest
What is the level of relationship between the regulation and the government interest in the 3 levels of scrutiny
Rational Basis - no rational relation
Intermediate - Substantially Related
Strict Scrutiny - Necessary to achieve and narrowly tailored
Where can states exclude persons on the basis of citizenship
Public Function exception - police officers, public officials, public school teachers.
Will not apply to purely ministerial positions - notary public
Strict Scrutiny Applies
