Equal Protection

Question 1

What are the constitutional bases for equal protection?

Answer 1

The 5th and 14th Amendments proved that no state or federal government shall deny to any person the equal protection of the laws.

The constitution requires the government to justify when it discriminates.

Question 2

What are the standards of review?

Answer 2

1. Strict Scrutiny:
   Government must prove;
2. there is a compelling government interest; and
3. that the regulation is necessary to serve that interest/it is the least restrictive alternative/it is narrowly tailored.

Applies to: race, alienage, national origin.

2. Intermediate Scrutiny:
   Government must prove:
3. There is an important, substantial government interest; and
4. that the regulation is substantially related to the achievement of that interest.

Applies to: sex, illegitimacy.

3. Rational basis review:
   P must prove:
4. There is not any legitimate government interest; or
5. the regulation is not rationally related to any legitimate government interest.

Applies to: all other classifications, incl age, wealth, disability, and need for necessities.

Question 3

What rules govern proving discrimination?

Answer 3

Discriminatory intent, or purpose, must be shown to trigger strict or intermediate scrutiny. Discriminatory effect, or disparate impact, triggers rational basis review.

Discriminatory intent can be proved facially or where a discriminatory motive exists.

Question 4

What are suspect classifications?

Answer 4

These are classifications based on race, alienage, and national origin. Strict scrutiny is used.

Racial Discrimination:
Prohibiting interracial marriages or cohabitation is unconstitutional.
De jure segregation violates equal protection.
Plans to hinder desegregation are unconstitutional.
Schools have an affirmative duty to eliminate intentional racial segregation. Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school district.

Overt classifications may pass strict scrutiny where:

1. police separate a crowd by race in the middle of a riot; or
2. there is affirmative action.

Affirmative action is allowed under two compelling interests:

1. remedying the effects of past discrimination in the same industries and specific racial groups; and
2. achieving a diverse student body in an institute of higher education where race is only one factor with no fixed weight.

A school district may not assign students to schools based on race when the segregation is the result of de facto segregation. However, it is permitted to carry out structural changes.

Alienage Discrimination:
There is a public function exception. States may discriminate against aliens in activities where participation in the functioning of government is involved. That includes police officers, government officials, and public school teachers.

Question 5

What are quasi-suspect classifications?

Answer 5

Illegitimacy:

A law cannot favor legitimates over illegitimate children.

Gender:

Statutes that reinforce archaic, gender-based stereotypes will be found unconstitutional.

An interest related to biology can pass intermediate scrutiny.

Affirmative action based on sex can be upheld based on specific remedial program or to make up for societal discrimination.