Equal Protection

Question 1

Where does Equal Protection come from

Answer 1

For the states: it comes from the 14th amendment

For the federal government: it comes from the 5th Amendment Due Process Clause.

Question 2

Equal protection requires the government to justify

Answer 2

when it discriminates

Question 3

For an equal protection question:

Answer 3

1) Identify the type of discrimination

2) level of scrutiny

Question 4

Rational basis:

Answer 4

Will be the level or review in situations of disparate impact. Disparate impact, by itself, is not discrimination.

Question 5

Rational basis standard of review:

Answer 5

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.

Question 6

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.

Answer 6

Rational basis

Question 7

Who typically prevails when rational basis review is applied?

Answer 7

The government

Question 8

Intermediate Scrutiny

Answer 8

Government must show substantial relation to important interest.

Question 9

Intermediate scrutiny applies to

Answer 9

government discrimination regarding sex and illegitimacy

Question 10

Strict Scrutiny

Answer 10

Government must prove that the measure being challenged serves a compelling state interest and its necessary to further that interest.

Question 11

The government usually ___ to prove its burden under strict scrutiny.

Answer 11

fails

Question 12

Strict Scrutiny applies to classifications based on

Answer 12

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.

Question 13

State laws prohibiting interracial marriages or interracial cohabitation are unconstitutional because they

Answer 13

facially discriminate on the basis of race.

Question 14

De jure segregation: Laws that deliberately segregate on the basis of race.

Answer 14

This will face strict scrutiny and almost always be found unconstitutional

Question 15

De facto segregation

Answer 15

segregation in fact but not by operation of law. Not discrimination as no state action

Question 16

Overt classifications may pass strict scrutiny where:

Answer 16

1) (exceptional situation) a police separating a crowd by race in the middle of a riot
2) there is affirmative action

Question 17

There are two compelling interests for affirmative action

Answer 17

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)

Question 18

Alienage Discrimination by States

Answer 18

When states discriminate based on alienage, strict scrutiny will be applied

Question 19

Public Function Exception

Answer 19

Some jobs or activities may be withheld from resident aliens including the following:

1) police officers
2) government officials
3) public school teachers

Question 20

Ilegal aliens

Answer 20

rational basis review applies to discrimination against illegal aliens. However, states cannot enact their own immigration policy. That is reserved for the federal government.

Question 21

Intermediate Scrutiny

Answer 21

Illegitimacy: Laws that treat people differently based on whether their parents were married.

Question 22

Sex discrimination

Answer 22

Laws that treat men and women differently must meet intermediate scrutiny.

Question 23

Constitutional sexual discrimination

Answer 23

Draft and statutory rape

Question 24

Affirmative action

Answer 24

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.

Question 25

General rule: Affirmative action benign discrimination in favor of women

Answer 25

upheld to make up for past discrimination either by the person who is offering the program or to make up for societal discrimination.

Question 26

Age 
Alienage (federal) 
Disability
Sexual orientation
Wealth
All else

Answer 26

rational basis

Question 27

Gender
Illegitimacy
Undocumented alien children

Answer 27

Intermediate scrutiny

Question 28

Alienage (state)
domestic travel
national origin
race
voting

Answer 28

strict scrutiny