Equal Protection

Question 1

What is the general constitutional basis for Equal Protection?

Answer 1

The Equal Protection Clause of the Fourteenth Amendment provides that ‘no state shall…deny to any person within its jdx the equal protection of the laws.” This clause applies only to states and localities.

Question 2

what about equal protection and federal action?

Answer 2

The Equal protection clause of the fourteenth only applies to state and local gov’ts. but the Supreme Court has held that the fifth amendment due process clause includes the rights guaranteed by the equal protection clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states.

Question 3

What are the standards for review under equal protection analyses?q

Answer 3

When reviewing government action under equal protection theories, the Court applies one of three levels of review, depending on the classification of persons or the type of right concerned.

1. Strict Scrutiny
2. Intermediate Scrutiny
3. Rational Basis

Question 4

What is the Strict scrutiny test under equal protection?

Answer 4

Test: the law must be the least restrictive means to achieve a COMPELLING gov’t interest.

Burden of Proof: The burden is on the gov’t to prove that the law is necessary. The gov’t rarely meets this burden; the law is likely to be struck down

Applicability: strict scrutiny is applied if a fundamental right or a suspect classification is involved.

Question 5

What are the suspect classifications for strict scrutiny?

Answer 5

The suspect classifications are:

Race
Ethnicity
National Origin,
Alienage (if the classification is by state law)

Question 6

What is the intermediate scrutiny test under equal protection?

Answer 6

Test: To be constitutional, the law must be substantially related to an important government interest

Burden of Proof: Although the court has not clearly stated the rule, the burden appears to be on the government to prove the law in question passes intermediate scrutiny. As with strict scrutiny, the gov’t must defend the interests it stated at the time the law was enacted, not just any conceivable important interest.

Applicability: Intermediate scrutiny is used when a classification is based on gender or status as a nonmarital child. Note that in gender cases there must be an ‘exceedingly persuasive justification’ for the classification, which may bring the standard in such cases closer to strict scrutiny

Question 7

What is the rational basis test

Answer 7

TEST: a law passes the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny. There need not be a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link.

Burden of Proof: Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.

Applicability: The rational basis standard is used in all cases in which one of the higher standards does not apply, so: age, wealth, weight, business or economic reasons, most other reasons.

The legislature generally gives extreme deference to the legislature’s right to define its own objectives. In order to determine the legislatures purpose, the court will look to the statute and the preamble. If the legislative purpose is not clear from the statute, the court may consider any conceivable purpose.

Question 8

When would a category normally under rational basis review receive heightened scrutiny?

Answer 8

Some classifications, though nominally subject to rational basis review, in practice receive heightened scrutiny like sexual orientation or developmental disability. When the government has acted out of animus toward or fear of a particular group, that action, even if not involving a suspect or quasi-suspect classification, will be searchingly reviewed and ay be struck down even under a rational basis test.

Question 9

How do you prove discrimination in order to trigger strict or intermediate scrutiny?

Answer 9

To trigger strict or intermediate scrutiny, there must be DISCRIMINATORY INTENT by the government. The fact that legislation has a disparate impact on people of different races, genders etc without intent, is insufficient.

Question 10

How is discriminatory intent shown?

Answer 10

Facially,
As applied, or
when there is discriminatory motive

Question 11

What is facial discrimination in equal protection cases?

Answer 11

A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face.

EX: an ordinance states that only males will be considered for a city’s training academy for firefighters

Question 12

How do you show discriminatory application in EP cases?

Answer 12

A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.

EX: a city’s ordinance concerning the policy academy says nothing about gender, but in practice only men are considered for admission.

Question 13

How do you show discriminatory motive in EP cases?

Answer 13

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, disparate impact is not sufficient to trigger strict or intermediate scrutiny. you need to be able to show proof of discriminatory motive or intent.

EX: a city’s paramedic training school is theoretically open to both men and women, but the entrance test includes a height requirement that disproportionately excludes women.

Question 14

What are suspect classifications under the EP clause of the 14th?

Answer 14

Laws that categorize based on race, ethnicity, national origin, or (in some cases) alienage are considered suspect and therefore require closer judicial examination. Such laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling government interest.

Question 15

Under 14th amend EP, how are laws that intentionally disadvantage on the basis of suspect classifications usually treated?

Answer 15

Laws/regs that intentionally disadvantage on the basis of race, ethnicity or national origin have almost always been struck down for failing to advance a compelling state interest.

EXCEPT: Korematsu, because of national security

Question 16

How is school integration treated under 14th EP theory?

Answer 16

Because discrimination must be intentional in order to violate the constitution, only intentional segregation in schools violates the EP clause. Also, a court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. So a state is not compelled to create magnet schools to attract students from outside the district.

If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Busing is temporary, though, and must be terminated once the ‘vestiges of past discrimination’ have been eliminated.

Question 17

How are affirmative action programs generally treated under 14th amendment EP theory?

Answer 17

programs that favor racial or ethnic minorities are also subject to strict scrutiny

Question 18

How are government-run affirmative action programs meant to remedy past discrimination treated under 14th amend DP theory?

Answer 18

In order to be constitutional/survive strict scrutiny, the government entity must show more than a history of society discrimination. The government must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be NARROWLY TAILORED to end that discrimination and eliminate its effects.

In other words, the elimination of past discrimination by a particular gov’t entity is a compelling state interest, but attempting to remedy general societal injustice through affirmative action is not.

Question 19

How may diversity be treated in public universities and colleges under 14th amend EP theory?

Answer 19

Race may be used as a “plus factor” (one of a range of factors to consider) in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the additional educational benefits of a diverse student body.

No quotas though!

And race may not be considered at all unless the admissions process used to achieve a diverse student body can withstand strict scrutiny. Strict scrutiny here demands that the university to clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of classification is necessary to the accomplishment of its purpose

Question 20

How are laws regarding diversity in elementary and high schools treated under 14th amend EP?

Answer 20

A school district may not assign students to schools on the basis of race unless it is necessary to accomplish a compelling interest (like remedy a past discrimination).

BUT, a district may use facially race-neutral criteria that may have the same effect, like strategic site selection or redrawing attendance zones.

Question 21

How is private affirmative action treated under the 14th amend DP theory?

Answer 21

The EP clause applies only to governmental action, so private employers are not restricted by it. Discrimination by private employers is nonetheless regulated by federal statue pursuant to the enabling clause of the 13th and 14th amend in the commerce clause.

Question 22

How is racially-motivated gerrymandering treated under the 14th amend DP clause?

Answer 22

Race may not the be predominant factor in determining the boundary lines of legislative districts

Question 23

How are classifications based on alienage treated under the 14th amendment DP clause?

Answer 23

Classifications based on status as a lawful resident of the U.S. (as opposed to citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification.

Question 24

How is alienage treated when it is a federal classification under 14th amend EP?

Answer 24

Because Congress has plenary power over aliens under Art 1, a federal alienage classification is likely valid unless it is arbitrary and unreasonable.

EX: Medicare regulations may require a 5-year residency requirement despite thereby excluding many lawful residents.

Question 25

How are state laws classifying based on alienage usually treated under EP?

Answer 25

The court will generally apply strict scrutiny and strike down state laws that discriminate against aliens such as laws that prohibit aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare or civil service jobs.

EXCEPT: A growing exception exists, however, for state laws that restrict or prohibit a alien’s participation in government functions. Such laws only need to have a rational relationship to a legitimate state interest. So laws preventing aliens from voting, serving on a jury, being police officer or teachers have all been upheld as preventing aliens from having a direct effect on the functioning of government

NOTE: When determining whether a position or license from which aliens are excluded falls under the gov’t function or political function exception, consider whether the position or license would allow the alien to ‘participate directly in the formulation, execution, or review of broad public policy; or would allow the alien to exercise broad discretion.

Question 26

Are undocumented aliens a suspect class?

Answer 26

No, undocs are not a suspect class, but the states may not deny primary or secondary public education benefits to undocumented aliens.

Question 27

What are the quasi-suspect classifications under 14th amend EP?

Answer 27

Gender

Legitimacy

Question 28

How are quasi-suspect classifications treated under 14th amend EP clause?

Answer 28

Discrimination based on gender is ‘quasi-suspect’ and subject to intermediate scrutiny. Intermediate scrutiny is less stringent than strict scrutiny but tougher than a rational basis test. There must be discriminatory intent by the government; disparate impact is not enough. The burden is on the state to show that a law that treats the sexes differently is substantially related to an important government interest.

Question 29

For gender discrimination, does it matter if the distinction is invidious or benign?

Answer 29

No; intermediate scrutiny applies whether the discrimination is invidious or benign, and more recently the court has been rather more strict, saying that the government must show an ‘exceedingly persuasive’ justification for the distinction, and that separate facilities (such as separate sports team facilities) are ‘substantially equivalent’

In all cases intentional discrimination against women will generally be struck down under this standard. So you can’t make a law giving preference to men as executors of estates, and Virginia Military Institute could not exclude women from admission to public college based on over broad generalizations about the the physical capabilities and preferred educational methods of women.

Question 30

How is discrimination against men treated under the 14th amend EP clause?

Answer 30

Intentional discrimination against men will generally be struct down for violating equal protection. However, there have been some instances of discrimination against meed being upheld because of important gov’t interests:

Drafting only men, in the interest of preparing combat troops

statutory rape law, in the interest of preventing teen pregnancy

Question 31

How is affirmative action/benign discrimination re gender treated under the 14th amend EP clause

Answer 31

Under the 14th amend EP clause the court has held that affirmative action regulations granting beneficial treatment to women over men (such as tax exemptions, increased social security benefits, and increased protection against mandatory armed forces discharge) pass intermediate scrutiny b/c they are providing a remedy for past gender-based discrimination, which is an important gov’t interest.

Question 32

How are distinctions based on legitimacy treated under the 14th amend DP clause?

Answer 32

Like gender, they are subject to intermediate scrutiny and must be substantially related to an important gov’t interest. Laws that are designed to punish the offspring of unmarried parents generally fail then, including:

• no welfare for illegitimate children
• deny access to unmarried parent’s worker’s comp claim or intestate parent
• requiring a different time frame for filing paternity suits.

Question 33

What are non-suspect classifications under the 14th amend EP clause?

Answer 33

• Age
• Poverty
• Sexual Orientation

Question 34

How are nonsuspect classifications treated under the 14th amend EP clause?q

Answer 34

Age, because it is a non-suspect classification, is reviewed under rational basis only.

Age discrimination in violation of the Age Discrimination and Employment Act of 1967 does not provoke heightened scrutiny. So police officers can be forced to retire at age 50 no matter if they are still physically fit as younger officers.

Question 35

How are statues and regulations that classify on the basis of wealth scrutinized under the 14th amendment EP clause?

Answer 35

Most statutes that classify on the basis of wrath (i.e. discriminate against the poor) are subject only to rational basis review and will be upheld. There is an exception for cases in which the governmental action prohibits the poor from exercising the a fundamental right because of a government-imposed fee; strict scrutiny will usually apply in these situations. Door example the availability to an appeal in a criminal case cannot hinge on the ability to pay for a trial transcript. Also, poll taxes are unconstitutional b/c wealth is unrelated to a citizen’s ability to vote intelligently.

Question 36

How are laws that discriminate on the basis of sexual orientation scrutinized under the 14th amend EP clause?

Answer 36

Discrimination on the basis of sexual orientation does not provoke heightened scrutiny. The gov’t, however, cannot impose a burden or deny a benefit on a group of persons solely based on animosity toward the class that it effects (under Romer v Evans)

Question 37

What aren’t the fundamental rights unique two Equal Protection?

Answer 37

The fundamental rights guaranteed by substantive due process are often protected by EP principles as well. This, impingement of the right to vote, to travel, or to marry may trigger an inquiry under either the DP or the EP clauses. However, certain rights and principles are particular to EP.

ONE PERSON ONE VOTE

SO: The right to travel and the right to vote are the most frequently tested fundamental rights in the area of equal protection. (Often, both the DP and EP will apply. EP dominates if the question emphasizes denial of a right to a particular group, and it does not apply if the denial of the right is universal)

Question 38

What is the One Person, One Vote principle generally?

Answer 38

The principle of ‘one person, one vote’ holds that one person’s vote must be essentially equal to another person’s vote. To that end, when the gov’t establishes voting districts for the election of representatives, the number of persons in each district must be approximately equal. Voter approval of a redistributing plan will not justify a violation of this rule.

Question 39

How is 1p/1v upheld in Congressional districts?

Answer 39

When states establish districts for congressional elections, the must achieve nearly precise mathematical equality between the districts. This restriction is imposed on the state by Art. 1, sec 2, which holds that members of the house be chosen by the people.

An unexplained deviation of less than 1 percent may invalidate a statewide congressional district plan. Variations may be justified by the state on the basis of consistently-applied, legitimate state objectives, such as respecting municipal political subdivision boundaries, creating geographically compact districts, and avoiding contests between incumbent representatives. (More below)

Variations may also be based on anticipated population shifts when such shifts can be predicted with a high degree of accuracy and trends are thoroughly documented.

Question 40

How is the 1p/1v rule upheld in the Congressional apportionment of House members?

Answer 40

Congress in not held to mathematical equality when apportioning members among the states. The method adopted by congress is entitled to judicial deference and is assumed to be in good faith. So Montana’s loss of a seat was upheld even though the retention of the seat would have put Monday’s closer to the ideal population size for a congressional district.

Question 41

How is 1p/1v upheld when forming state and local districts?

Answer 41

The size of electoral districts may vary much more in the case of state and local elections, as long as the variance is not unjustifiably large.

A variation of less that 10% is rebuttable presumed to be a minor deviation that does not constitute a prima facie for discrimination.

When the maximum variation is 10% or greater, the state must show that the deviation in equality between the districts is reasonable and designed to promote a legitimate state interest. So a maximum 16% variance was allowed when the state respected the boundaries of political subdivisions.

Question 42

How does 1p/1v apply to bodies performing governmental functions?

Answer 42

The 1p/1v rule applies to local elections of entities that perform governmental functions, even with the functions are specialized rather than generalized in nature (so election of trustees to a jr. college district).

As stated elsewhere, restricting such voting to particular classes triggers strict scrutiny and usually fails (except in water districts)

Question 43

How is 1p/1v upheld in at-large elections?

Answer 43

While an election in which members of a governmental unit are elected at-large does not violate 1p/1v, it may conflict with another constitutional provision, the EP clause, such as when the use of a county-wide system to elect county board members unconstitutionally diluted the voting power of AA citizens. BUT: fed law bans at-large elections for congressional representatives in states that have more than one house member.

Question 44

what is gerrymandering in general?

Answer 44

When the state draws election districts for the purpose of scattering a racial or ethnic minority among several district in order to prevent the minority from exercising its voting strength, the state’s actions are in violation of the EP clause. (So you can’t gerrymander to silence AA voters)

Question 45

How are majority-minority districts realty with under the EP Clause?

Answer 45

Under the EP clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor a historically disenfranchised group/groups.

The state can use traditional factors, such as compactness, contiguity, or honoring political subdivisions as the basis for the district, and it may only consider race if it does not predominate over other considerations. A district’s bizarre shape may be used as evidence that race was a predominating factor, but such. Shape is not necessary for a finding of racial gerrymandering.

Question 46

Gerrymandering and the voting rights act

Answer 46

The Voting Rights Act of 1973 requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e. affirmative gerrymandering). No longer have to get changes to voting rights law precleared; nonetheless, a preclearance does not mean that a law does NOT violate equal protection.

Question 47

When can political gerrymandering violate the EP clause?

Answer 47

Partisan political gerrymandering may violate the EP clause if the challenger can show both:

• Intentional discrimination against an identifiable political group and
• an actual discriminatory affect on that group.

However, lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention can prevent adjudication of political gerrymandering claims.