Equal Protection Flashcards
Where does Equal Protection come from
For the states: it comes from the 14th amendment
For the federal government: it comes from the 5th Amendment Due Process Clause.
Equal protection requires the government to justify
when it discriminates
For an equal protection question:
1) Identify the type of discrimination
2) level of scrutiny
Rational basis:
Will be the level or review in situations of disparate impact. Disparate impact, by itself, is not discrimination.
Rational basis standard of review:
The burden is on the plaintiff to show the measure being challenged is not rationally related to any legitimate interest. The plaintiff will almost always lose.
Two exceptions:
1) If the purpose of the measure being challenged was intended to have a racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny.
2) If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny.
What classification applies to all not falling under strict or intermediate scrutiny, such as qualifications based on age, disability, and alienage if done by Congress.
Rational basis
Who typically prevails when rational basis review is applied?
The government
Intermediate Scrutiny
Government must show substantial relation to important interest.
Intermediate scrutiny applies to
government discrimination regarding sex and illegitimacy
Strict Scrutiny
Government must prove that the measure being challenged serves a compelling state interest and its necessary to further that interest.
The government usually ___ to prove its burden under strict scrutiny.
fails
Strict Scrutiny applies to classifications based on
race, alienage, and national origin. Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest.
State laws prohibiting interracial marriages or interracial cohabitation are unconstitutional because they
facially discriminate on the basis of race.
De jure segregation: Laws that deliberately segregate on the basis of race.
This will face strict scrutiny and almost always be found unconstitutional
De facto segregation
segregation in fact but not by operation of law. Not discrimination as no state action
Overt classifications may pass strict scrutiny where:
1) (exceptional situation) a police separating a crowd by race in the middle of a riot
2) there is affirmative action
There are two compelling interests for affirmative action
1) remedying the effects of past discrimination by the state and
2) achieving a diverse student body in an institute of higher education (no fixed weight, one factor among many)
Alienage Discrimination by States
When states discriminate based on alienage, strict scrutiny will be applied
Public Function Exception
Some jobs or activities may be withheld from resident aliens including the following:
1) police officers
2) government officials
3) public school teachers
Ilegal aliens
rational basis review applies to discrimination against illegal aliens. However, states cannot enact their own immigration policy. That is reserved for the federal government.
Intermediate Scrutiny
Illegitimacy: Laws that treat people differently based on whether their parents were married.
Sex discrimination
Laws that treat men and women differently must meet intermediate scrutiny.
Constitutional sexual discrimination
Draft and statutory rape
Affirmative action
Level of scrutiny for gender based affirmative action: need only pass intermediate scrutiny. Less demanding than strict scrutiny so does get upheld in more circumstances.
