equal protection

Question 1

Equal Protection issues

Answer 1

analytical approach
Constitutional provisions concerning EP
Classifications based on race/national origin
Classifications based on gender
Classifications based on alienage
Discrimination against non-marital children
Other types of discrimination

Question 2

Equal Protection issues

analytical approach

Answer 2

Approach to EP questions

1. What is the classification? (How is the govt drawing distinction among people?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?

Question 3

Equal Protection issues

Constitutional provisions concerning EP

Answer 3

EPC of 14th AMD applies ONLY to state and local govts.

EP is applied to the federal govt through the Due Process Clause of the 5th AMD.

Question 4

Equal Protection issues

Classifications based on race/national origin

Answer 4

1. Strict scrutiny is used
2. Racial classification is proven 1) on the face of the law or 2) if facially neutral, demonstrating BOTH discriminatory impact AND discriminatory intent.
   i. e. discriminatory use of preemptory challenges based on race DENIES EP

Question 5

Equal Protection issues
Classifications based on race/national origin
How should racial classifications benefiting minorities be treated?

Answer 5

1. Still strict scrutiny
2. Numerical set-asides require clear proof of past discrimination
3. Educational institutions may use race as ONE FACTOR in admissions decisions to help minorities. They must show, however, that there is no race neutral alternative which could achieve diversity. Additionally, educational institutions may NOT add points to applicant admissions scores based on race.
4. Public school systems may not use race as a factor in assigning students to schools UNLESS strict scrutiny is met.

Question 6

Equal Protection issues

Classifications based on gender

Answer 6

1. Intermediate scrutiny is used
2. Gender classification is proven 1) on the face of the law or 2) if facially neutral, demonstrating BOTH discriminatory impact AND discriminatory intent.
   i. e. discriminatory use of preemptory challenges based on gender DENIES EP
3. Gender classifications benefiting women that are based on role stereotypes will NOT be allowed
4. Gender classifications designed to remedy past discrimination and differences in opportunity WILL be allowed.

Question 7

Equal Protection issues

Classifications based on alienage

Answer 7

1. Generally, strict scrutiny is used
2. Alienage classifications that concern self-government and the democratic process use rational basis. (i.e. voting, jury service, or being a teacher, police officer, probation officer)
3. Congressional discrimination against aliens uses rational basis
4. It appears that intermediate scrutiny is used for discrimination against undocumented alien children

Question 8

Equal Protection issues
Discrimination against non-marital children
(legitimacy)

Answer 8

1. Intermediate scrutiny is used

2. Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional

Question 9

Equal Protection issues

other types of discrimination

Answer 9

All other types of discrimination use rational basis

Including discrimination in age, disability, wealth, sexual orientation, and economic regulations