Equal Protection

Question 1

General Considerations

Answer 1

Exam Note - immunities of national citizenship mean nothing today and are never correct on exam

Exam Note - privileges and immunities of state citizenship (comity clause) is narrow but important

Two Due Process Clasues

1. 5th A applies to the federal governemt
2. 14th A applies states

One Equal Protection Clause - 14th A and applis to localities and states

Question 2

Standards of Review

Answer 2

Strict Scrutiny- is the law necessary for a compelling intrest

Intermediate Scrutiny - is the law substantially related to an important government interest

Rational Basis - is the law rationally realted to a legitamate government interest

Homosexuality - laws disadvantaging gays might be sruct down as irrational because they are not supported by reasons other than mere prejudice

Question 3

Suspect Classifications

Answer 3

Review - triggers strict scrutiny and arise under equal protection

Race, Ethnicity, or National Origin - laws that disadvatage minorities will be struct down

Test - discriminatory purpose is required, showing a disproportionate impact is not enough and may be shown by the face of the statute, proven by a history of discriminatory application, or extrinsic evidence about purpose

School Desegregation - by law segregation is unconstitutional, de factor is not

Affirmative Action - triggers strict scrutiny and requires a compelling interest; permissive in two cases

1. Specific Past Discrimination - affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action
2. General Societal Discrimination - does not judtfy affirmative action

Colleges & Universities - preferential admissions allowed if necessary to achieve a diverse student body and diversity is essential to the education (no quotas allowed) but no preferential admissions are allowed for secondary schools

• must be a strong showing that racial preferences are in fact necssary to achieving a diverse class
• racial preferecnes must be holistic and flexible
• hard quotas are not allowed
• separate tracks or procedures for minority applicants are not allowed

Question 4

Alienage - Requirements for US CItizenship

Answer 4

Note - heavily tested on MBE

Trigger - strict scrutiny except two exceptions:

Rule - states and localities cannot require US citizenship for access to private employment or for government benefits

1. Federal Government

• Congress has plenary power over citizenship and naturalization
• federal calssifications based on US citizenship do not trigger strict scrutiny
• federal classifications are valid unless arbitrary and unreasonable

2. State and Local Participation in Government Functions

• can bar from jobs that have particular relevance to the role of government
• such functions include voting, serving on a jury, working in any kind of government law enforcement (including probation/parole officer), or public school teacher

Question 5

Quasi Suspect Classifications (Gender & Legitimacy)

Answer 5

Trigger - intermediate scrutiny - is the law substantially related to an important government interests

Gender Classifications - almost always invalid except in statutory rape and draft laws

Legitamacy - (if parents were married at time of birth) laws are almost always invalid, especially if punitive in nature

Question 6

Non-Suspect Classes (Age & Wealth)

Answer 6

Age - discrimination in employment is barred by statute but is not a suspect class; triggers rational basis

Wealth - not suspect class but the government has to waive fees for indigents when charging the fees would deny a fundamental right

Ex: marriage, trancript for appeal of criminal conviction, transcript for apeal of termination of parental rights

Question 7

Fundamental Rights

Answer 7

Some fundamental rights almost always come up under equal protection

1. Right to Travel
2. Right to Vote - one person one vote

• requires districts of approximately equally sie
• applies whenever you elect representatives by district
• exception - special purpose governments - highly specialized government (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage held or water enttitlements)

3. Gerrymandering - comes in two forms
   a. Racial Gerrymandering
   * Rule - race may be a factor in drawing district lines but not the predominant or only factor (look to bizarrely shaped district and racial impact
   * vote dilution - drawing districts to scatter minorities so that they are not crucial in any one district and done so with a discriminatory purpose is unconstitutional
   b. Political Gerrymandering
   * violates equal protection but hardly ever struct down