Equal Protection Flashcards
What is the general constitutional basis for Equal Protection?
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.
what about equal protection and federal action?
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.
What are the standards for review under equal protection analyses?q
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.
- Strict Scrutiny
- Intermediate Scrutiny
- Rational Basis
What is the Strict scrutiny test under equal protection?
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.
What are the suspect classifications for strict scrutiny?
The suspect classifications are:
Race
Ethnicity
National Origin,
Alienage (if the classification is by state law)
What is the intermediate scrutiny test under equal protection?
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
What is the rational basis test
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.
When would a category normally under rational basis review receive heightened scrutiny?
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.
How do you prove discrimination in order to trigger strict or intermediate scrutiny?
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.
How is discriminatory intent shown?
Facially,
As applied, or
when there is discriminatory motive
What is facial discrimination in equal protection cases?
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
How do you show discriminatory application in EP cases?
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.
How do you show discriminatory motive in EP cases?
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.
What are suspect classifications under the EP clause of the 14th?
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.
Under 14th amend EP, how are laws that intentionally disadvantage on the basis of suspect classifications usually treated?
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
How is school integration treated under 14th EP theory?
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.
How are affirmative action programs generally treated under 14th amendment EP theory?
programs that favor racial or ethnic minorities are also subject to strict scrutiny
How are government-run affirmative action programs meant to remedy past discrimination treated under 14th amend DP theory?
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.
How may diversity be treated in public universities and colleges under 14th amend EP theory?
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
How are laws regarding diversity in elementary and high schools treated under 14th amend EP?
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.
How is private affirmative action treated under the 14th amend DP theory?
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.
How is racially-motivated gerrymandering treated under the 14th amend DP clause?
Race may not the be predominant factor in determining the boundary lines of legislative districts
How are classifications based on alienage treated under the 14th amendment DP clause?
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.
How is alienage treated when it is a federal classification under 14th amend EP?
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.
