Equal Protection

Question 1

Equal Protection Analysis

Answer 1

1. Is there a governmental action that creates a classification?
2. What is the classification?
   Facially discriminatory
   Discriminatory application
   Discriminatory motive
3. What level of scrutiny applies?

4. Is the government justified under the appropriate level of scrutiny?
Ends
Means
Under inclusive
Over inclusive

Question 2

Constitutional Basis for Equal Protection

Answer 2

1. State: 14th Amendment

2. Federal: 5th Amendment Due Process Clause

Question 3

Facially Discriminatory

Answer 3

Clear on the face of the statute

Question 4

Discriminatory Application

Answer 4

Government action administering the statute

Question 5

Discriminatory Motive

Answer 5

Facially neutral law and application that still results in a discriminatory impact

Requires discriminatory intent or application to be unconstitutional

Question 6

Equal Protection Strict Scrutiny

Answer 6

1. Compelling interest
2. No less discriminatory alternative

Burden on government

Fundamental rights, national origin, ethnicity, alienage, and race

Question 7

Equal Protection Intermediate Scrutiny

Answer 7

1. Important interest
2. A substantial relationship between the classification and the interest

Burden on government

Gender, illegitimacy

Gender requires an exceedingly persuasive justification

Question 8

Equal Protection Rational Basis

Answer 8

No rational relation to a legitimate government purpose

Burden on challenger

Age, weight, wealth, anything else

Question 9

Rational Basis with Bite

Answer 9

No rational relation to a legitimate government purpose

But will be struck down if government acted out of animus or fear

Sexual orientation
Developmental disability

Question 10

Ends (Government Action)

Answer 10

Government’s purpose

Question 11

Means (Government Action)

Answer 11

How government regulation relates to achieving the government’s purpose

Question 12

Under Inclusive

Answer 12

Does not apply to individuals who are similar to those to whom the law does apply

Question 13

Over Inclusive

Answer 13

Applies to those who need not be included in order for the government to achieve its purpose

Question 14

Suspect Classification

Answer 14

Strict Scrutiny

National origin
Ethnicity
Alienage (state law)
Race

Question 15

Quasi Suspect Classification

Answer 15

Intermediate Scrutiny

Gender - exceedingly persuasive
Illegitimacy

Question 16

Rational Basis with Bite Classifications

Answer 16

Sexual orientation

Developmental disorders

Question 17

Rational Basis Classification

Answer 17

Anything else

Age
Weight
Wealth

Question 18

Fundamental Rights

Answer 18

Strict Scrutiny

Right to vote
Right to travel
Right of access to courts

Question 19

Not a Fundamental Right

Answer 19

Right to education

Right to welfare

Question 20

De Jure Segregation

Answer 20

Actual segregation law

Usually unconstitutional

States with de facto segregation have a compelling interest in remedying past discrimination

Question 21

De Facto Segregation

Answer 21

Segregation that is not done by law and happens as a result of personal choice

Does not necessarily give rise to a compelling interest in remedying past discrimination

Question 22

Brown v. Board of Ed

Answer 22

I. Moral judgment that racial segregation is inherently discriminatory

Racial segregation in public education is unconstitutional

II. School desegregation should occur with deliberate speed (2-3 decades)

Question 23

Parents Involved v. Seattle Schools

Answer 23

Cannot use race to assign schools

Must meet strict scrutiny

Question 24

Alienage Classification

Answer 24

Federal: congress has plenary power so only invalid if arbitrary and unreasonable

State: strict scrutiny
Exception: participation in the government functions (involved in political process, using discretion)