Equal Protection

Question 0

Where does Equal Protection of the Laws come from for the Federal Government

Answer 0

5th Amendment Due process clause

Question 1

Where does Equal Protection of the Laws come from for the States?

Answer 1

14th Amendment - Equal Protection Clause

Question 2

What does the equal protection require?

Answer 2

Requires the government to justify when it discriminates

Question 3

How to analyze an equal protection question

Answer 3

1. Identify type of discrimination

2. Identify and/or apply the level of scrutiny attached to that discrimination

Question 4

Disparate Impact - defined

Answer 4

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

Question 5

2 Exceptions where disparate impact will NOT

receive rational basis review

Answer 5

1. Intentional disparate impact - method employed to discriminate racially - knowledge not sufficient, must be intentional - strict scrutiny will apply.
2. Discriminatory application - neutral standard applied in discriminatory way - strict scrutiny applied

Question 6

Where rational basis review will apply to equal protection question

Answer 6

age, disability, and alienage if done by congress.
Disparate impact

Government prevails except classification on sexual orientation
failed for lack of legitimate government interest

Question 7

Rational basis reivew

Answer 7

P must show government action
not rationally related to
legitimate government interest.

Question 8

Intermediate Scrutiny - Test

Answer 8

Government must show discrimination is
substantially related
to an important government interest.

interest must be actual reason for discrimination

Question 9

Where intermediate scrutiny is applied

Answer 9

Sex
illegitimacy
Undocumented Alien Children

Question 10

Strict Scrutiny Test

Answer 10

NECESSARY to ACHIEVE
COMPELLING state interest and
and is narrowly tailored.

Question 11

Where Strict Scrutiny will apply

VRANT

Answer 11

Alienage (state)
Domestic Travel
Race
National Origin
Voting

Question 12

De jure Segregation

Answer 12

Segregation based on law is

almost always unconstitutional

Question 13

De facto segregation

Answer 13

Segregation by choice, not law.
Not unconstitutional

No state action

Question 14

School Segregation

Answer 14

School boards have duty to eliminate racial segregation from schools. busing constitutional where implemented to remedy past discrimination in a particular school system.

Question 15

Where overt classifications may pass strict scrutiny

Answer 15

Police responding to race riot
separate races to end violence.

Affirmative Action

Question 16

Compelling interests for affirmative action

Answer 16

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.

Question 17

Alienage Discrimination by States

Answer 17

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.

Question 18

Illegal Aliens and Discriminatory Actions

Answer 18

not a protected class 
rational basis review 

except
children of illegals will receive intermediate scrutiny.

Or if it amounts to an immigration policy.

Question 19

Illegitimate Children

Answer 19

intermediate scrutiny
almost always fail
action serves no important government interest

Question 20

Examples of Sex Discrimination found Unconstitutional

Answer 20

Estate Administration
Military Housing
Alimony restrictions on who is eligible to receive
Drinking age
*Failed under intermediate scrutiny*

Question 21

Where Sex Discrimination found Constitutional

Answer 21

Draft

Statutory Rape Laws

Question 22

Gender based affirmative action

Answer 22

Intermediate scrutiny - substantially related to important government interest.

Discrimination making up for past discrimination, even if societal, will be upheld.

Question 23

Who bears the burden on the 3 standards of review?

Answer 23

Rational Basis - Plaintiff

Strict and Intermediate - Government

Question 24

What government interests are served by the levels of scrutiny

Answer 24

Rational Basis - any legitimate government interest
Intermediate - Important Government Interest
Strict - Compelling Government Interest

Question 25

What is the level of relationship between the regulation and the government interest in the 3 levels of scrutiny

Answer 25

Rational Basis - no rational relation
Intermediate - Substantially Related
Strict Scrutiny - Necessary to achieve and narrowly tailored

Question 26

Where can states exclude persons on the basis of citizenship

Answer 26

Public Function exception - police officers, public officials, public school teachers.

Will not apply to purely ministerial positions - notary public

Strict Scrutiny Applies