EQUAL PROTECTION

Question 1

EP Application & Approach

Answer 1

The EPC prohibits the govt from unreasonably treating similarly situated persons differently. The EPC applies to state/local govts through the 14th A and applies to the federal govt by incorporation though the 5th A DP Clause

Approach to EP:
1) Is there a discriminatory classification?
» To receive heightened scrutiny, a discriminatory classification must be proved

2) What level of scrutiny applies given the classification?
» Suspect Class = SS
» Quasi-Suspect Class = IS
» All other alleged classifications = RB

3) Does the classification satisfy the proper level of scrutiny?

Question 2

Proving Discriminatory Classification

Answer 2

Classifications must be discriminatory to be reviewed under heightened scrutiny (intermediate or strict scrutiny)

There are 3 ways to prove a discriminatory classification:
1) Law discriminates on its face–By its terms, the law treats classes of people differently

2) Facially-neutral law applied in a discriminatory manner–The law does not create a classification by its terms, but does so as applied (e.g. only men arrested under an otherwise valid law)
» Proving Classification–P can demonstrate either:
a) Disparate Impact–The law has a discriminatory
impact (i.e. it creates a classification), or
b) Disparte Treatment–There is discriminatory intent
behind the law

3) Discriminatory motive/purpose behind the law–Demonstrating discriminatory impact alone is not enough; there must be evidence of govts discriminatory motive

Question 3

EP Standards of Review

Answer 3

Rational Basis

1) Alienage, but only if classification:
a) Relates to the democratic process, or
b) Is a congressional acton concerning immigration
2) All other classifications

Intermediate Scrutiny (Quasi-Suspect Classification)

1) Gender
2) Non-Marital Children

Strict Scrutiny (Suspect Classification)

1) Race
2) National Origin
3) Alienage
4) Right to Travel
5) Right to Vote

Question 4

Classifications Based on Race OR National Origin

Answer 4

Classifications based on race or national origin are suspect classifications requiring review under strict scrutiny

Classifications Benefitting Minorities (Affirmative Action)
* Quotas–To be valid, require clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs. Quotas are unlikely to be upheld

• Admissions–Educational institutions may use race or national origin as a factor in determining admission decisions, but not as a defining criterion
  » E.g. An admission process that awards “points” to some
  applicants based on race is unconstitutional
• Public School Integration–Public school systems may not assign students to schools on the basis of race to achieve integration

Question 5

Alienage Classifications

Answer 5

Classifications based on alienage are suspect classifications requiring review under strict scrutiny, subject to certain exceptions. Alienage relates to citizenship status

EXCEPTIONS–Rational Basis applies if the classification is:
1) Related to self-goat and the democratic process; OR
» Often arises where job applicants are denied govt
employment based on their citizenship status
» Areas where alienage classifications have been upheld
under RB review:
* Voting
* Serving on a jury
* Working as a police officer
* Working as a teacher
* Working as a probation officer
» Working as a notary public is NOT integral to self-goat
and the democratic process

2) A congressional law regulating immigration. Congress has plenary powers to regulate immigration

Note: Undocumented Aliens are NOT considered a suspect class. Rather they are analyzed under IS

Question 6

Gender & Non-Marital Children Classifications

Answer 6

Gender–IS + “exceedingly persuasive justification”
Gender classifications receive IS (i.e. they must be substantially related to an important govt purpose). Additionally, courts often require an “exceedingly persuasive justification” for the classification

Classifications discriminating against men are usually invalid. Some have passed IS, e.g. statutory rape laws applying only o men, all-male military draft

Classifications benefitting women:

1) Classifications based on stereotypes are impermissible
2) Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld

Non-Marital Children–usually arises with intestacy statues
Illegitimacy classifications requie IS fi the a law grants benefits to all marital children but dense benefits to some non-maritial children.

Laws that deny benefits to all non-marital children while granting benefits to all marital children are unconstitutional on their face

Receiving benefits only after a paternity test is considered constitutional

Question 7

Rational Basis Classifications

Answer 7

All classifications not qualifying for SS or IS receive RB review

Examples:

• Age
• Disability
• Wealth
• Economics
• Sexual Orientation Discrimination

[Also alienage classifications arising from congressional regulation of immigration or relating to self-goat and the democratic process]

Question 8

Right to Travel and Right to Vote under EP

Answer 8

Although both the right to travel and right to vote are both FR that can be analyzed under SDP, they often arise as classification issues requiring EPC analysis

Right to Travel–SS

• Usually arises when laws impede movement between states
• Durational Residency Requirements–Laws requiring some period of in-state residency to qualify for a state benefit

> > Invalid Residency Requirements: 1-yr residency to receive welfare, subsidized medical care, to vote in state elections

> > Valid Residency Requirements: 30-day residency to vote in state elections; 1-yr residence to get a divorce

Right to Vote–SS
* Arises when laws that deny some citizens the right to vote
* The “one person, one vote” requirement must be met for all state and local elections
» For elected bodies, voting districts must be similar in
population
* At-large districts, when voters vote for all office holders, are constitutional

Question 9

Equal Protection Quick Recap

Answer 9

A. Is there a classification?
1. On the face of the law, or
2. If facially neutral, you need disc intent and disc impact
B. Level of scrutiny
1. Strict scrutiny: Law must be necessary to achieve a compelling government purpose
a) Race
(1) Quotas require proof of past disc. Schools can use race as one factor only
(2) Seniority systems can’t be disrupted for affirmative action
b) National origin
c) Alienage: Generally
d) Travel (not foreign travel) [fundamental right]
(1) Preventing people from moving into a state
(2) Durational residency requirements
e) Voting [fundamental right]
(1) Using race to draw district lines
(2) Counting uncounted votes without standards
(3) Exception: Water district elections
C. Intermediate scrutiny: Law must be substantially related to an important government purpose
1. Gender
a) Classifications benefiting women based on stereotypes not ok
b) Classifications designed to remedy past disc ok
2. Illegitimate children
3. Undocumented alien children
D. Rational basis: Law must be rationally related to a legitimate government interest
1. Alienage related to self government and democratic process
a) Example Voting, serving on a jury
2. Congressional regulation of aliens
a) Congress has plenary power to regulate immigration
3. Age
4. Handicap
5. Wealth
6. Economic
7. Sexual orientation
8. All other classification
9. Hints: Equal protection (EP) applies to states via 14th, to federal via 5th