Equal protection Flashcards
Equal protection
challenge possible whenever govt draws distictions
Approach to equal protection
i. What is the classification?
ii. What is the level of scrutiny?
iii. Does this law meet the level of scrutiny?
Constitutional provisions concerning equal protection
i. EP clause of 14th amdt applies only to state and local governments
1. 14 never applies to fed government
ii. EP applied to the Fed gov’t through the due process clause of 5th amendment
1. reverse incorporation.
classifications based on race and national origin
i. SS is used anytime gov’t discriminates based on race or national origin
ii. How do you prove existence of racial classification? two alternatives
1. Classification exists on the face of the law. Law on its terms draws distinction based on race/ national origin
- OR law is facially neutral. To apply SS bc of a racial classiication–> requires demonstrating both discriminatory impact AND discriminatory intent
a. Washington v. davis—black people more likely to fail PO test.
c. Discriminatory use of peremptory challenges based on race denies EP, bc both impact and intent
iii. If racial classification benefits minorities–> still use SS.
2. Numerical set-asides require clear proof of past discrimination.
b. for ex Richmond set aside 30% to give contracts to minorities—unconst.
c. for ex. AL state police did intentional race discrimination in promotion and hiring. AL required for every white hired or promoted, one black must also be until racism went away. upheld, bc it was a remedy for clearly proven past discrimination.
Can educational institutions use race as a factor in admissions
- Educational institutions may use race as one factor in admissions to help minorities. They must show however there is no race neutral alternative to achieve diversity.
a. Additionally educational institutons may not add points to applicants’ admissions score based on race
b. cant do it in any way that looks like a quota/ numerical. must be holistic. - Public school systems cant use race as a factor in assigning students to schools unless SS is met.
Gender classifications level of scrutiny
i. Intermediate scrutiny is used
1. but mst also have an exceedingly persuasive justification
How to prove the existence of a gender classifciation
? two ways
- Classification exists on the face of the law
a. ex. law saying women could buy low alcohol beer at 18, men couldn’t until 21. unconstitutional
b. ex. – Virginia military institute accepted only men. women had alternative school. gender discrimination evident on the face of the law—no exceedingly persuasive justification - If law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent
a. rational basis review, unless intent was discrimination.
b. ex: discriminatory use of peremptory challenges based on gender denies EP
If gender classification benefits women
- gender classifications benefitting women that are based on role stereotypes aren’t allowed
a. for ex: rewarding alimony to women and not men based on stereotype. law is unconst.
b. for ex: woman automatically gets survivorship benefits, men must show he needs the benefits. unconst based on stereotype that women are economically dependant - Gender classifications designed to remedy past discrimination and differences in opportunity will be allowed.
a. for ex: social security used different formula for women, advantaging men. theres long history of wage discrimination. difference in formula compensates for that discrimination.
b. for ex: if man not promoted without promotion in 6 years man must leave. woman had 10 years. ok bc men have more opportunities too be promoted bc they serve in combat
Alienage classifications level of scrutiny
i. Generally, SS is used.
1. ex. state saying only US citizens can get welfare benefits. SS—unconstitutional.
2. ex. only US citizens can have civil service jobs. SS→ unconst
3. Ex oonly US citizens can be admitted too the bar. SS→ unconst.
ii. only a rational basis test is used for alienage classifciations that concern self government and the democratic process.
Alienage classicifcations– exceptions where less than SS is used
- only rational basis test is used for alienage classifications concerning self gov’t and democratic process
a. allowed too discriminate against aliens when voting, serving on jury, PO, teacher or probationary officer
b. POs are integral to self government, theyuphold laws.
c. teachers are integral to self-government, they inculcate democratic values in kids.
d. But university educators are not!
d. probation officers—like cop
e. contra: notary publics have nothing to do with self government—SS→ unconst - only rational basis test is used for congressional discriminations against aliens
a. congress has plenary power to regulate immigration.
b. if congress discriminates against noncitizens as part of regulating immigration—oonly rational basis - Intermediate scrutiny is used for discrimination against undocument alien children
a. state law:: undocumented alien children would have to pay foor education. SC—unconstitutional. more than rational basis and less than SS.
Discrimination against nonmarital kids (legitimacy classifications) and equal protection
i. intermediate scrutiny is used. govt discriminating against people whose parents were unmarried
ii. llaws denying a abenefit too all nonmarital children but grant it to all marital children are unconst
1. prohibiting nonmarital children from inheriting→ unconstitutional
iii. what if it benefits SOME nonmarital kids, but denies to others
1. State said for kid to benefit, paternity had to be established during father’s life. upheld under intermediate scrutiny. gov’t has important interest in preventing fraud and requiring paternity during life is reasonably related
What level of scrutiny for all other types of discrimination
i. Age discrimination.→ rational basis and gov’t wins
ii. disability discrimination→ cleburn living center. zoning ordinance that kept mentally ill people from being located in its midst
1. only ratinal basis is used. struck down. few cases under ever lost a case under rational basis
iii. wealth discrimination—discriminating against poor = rational basis
1. basically, the discrimination must be based on something really important that is prohibitive to poor people to be struck down for rational basis.
a. marriage licenses costing too much = important enough deprivation
b. ability to join a country club = not important enough deprivation
iv. economic regulations
1. for ex. new Orleans ordiniance that said in order to sell street food, must already have been there 8 years.
2. Court: EP challenge to economic regulation. only rational basis-→ law upheld
v. sexual orientation discrimination— court never indicated level of scrutiny. Windsor, obergefell etc. never said level of scrutiny.
Who has the burden to show there isn’t an equal protection violation
rational basis– burden on π
any other level of scrutiny– burden on the state
