Equal Protection

Question 1

Framework: EP

Answer 1

1) What trait or basis does the law use to classify?
2) Does that trait or basis involve a suspect class, quasi-suspect class, or fundamental right?
3) What level of judicial review must be applied?
4) What is necessary to prove an intentional govt discrimination?
5) Does the govt’s actions meet the appropriate level of scrutiny?

Question 2

Proving intentional discrimination: EP

Answer 2

1) discriminatory on its face
2) patently discriminatory application of a facially neutral law
3) discriminatory motive behind law or action

Question 3

Affirmative Action: EP

Answer 3

Strict Scrutiny:
1) govt has compelling interest to remedy persistent discrimination affecting readily identifiable individuals
2) to achieve diversity within a public school body
BUT must be narrowly tailored
3) proportionality: plan/scope must be proportional to proven EP violations
4) flexibility: must be flexible enough to stop even if govt could not achieve goals with good faith effort (time limit a good example of this)
5) no burden to innocent 3d parties

WATCH FOR: racial or ethnic quotas, disruption of seniority systems, rigid point systems for school diversification programs

Question 4

Alienage: EP

Answer 4

1) federal govt intentionally discriminates against any aliens, courts apply rational basis review
2) when a state or local government intentionally discriminates against resident aliens, courts apply strict scrutiny
EXCEPTION: participation in self-government process or positions in “political functions” like police or teachers.
3) when a state or local government intentionally discriminates against undocumented aliens, courts apply rational basis review

Question 5

Gender: EP

Answer 5

When a govt action intentionally discriminates against a class based on gender, courts apply intermediate level scrutiny (including for affirmative action)
EXAMPLES: assuming inferiority of one sex to another, stereotyping the proper roles of men and women, assuming financial dependency of women on men

Question 6

Illegitimacy: EP

Answer 6

When a govt action intentionally discriminates against non-marital children, courts apply intermediate-level scrutiny review
EXAMPLES: differential treatment for welfare benefits, parental support obligations, children’s rights to intestate succession

Question 7

Fundamental Rights: EP

Answer 7

Even if not in a suspect or quasi-suspect class = strict scrutiny

1) right to travel
2) voting rights
3) 1st amendment rights

Question 8

Non-suspect and non-fundamental rights classifications

Answer 8

when govt action discriminates on the basis of non-suspect classifications and non-fundamental rights, you get rational basis review
BUT: exception for when the govt is acting solely based on dislike or hostility toward a class, then the court will call it irrational prejudice. Pure prejudice is per se irrational and invalidates the law or regulation.
EXAMPLES: hippies + food stamps, gays and lesbians in CO + state benefits