Equal Protection

Question 1

What is the Equal Protection Clause?

Answer 1

Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)

14th Amendment

More info: Equal Protection

Question 2

Does the Equal Protection Clause apply to the federal government?

Answer 2

Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause

Question 3

What are 4 steps to analyzing equal protection questions?

Answer 3

1. Is there a classification by the government?
   
   • ​​P must prove classification was made with discriminatory intent
2. What is the classification?
   
   • Suspect, quasi, or other
3. What level of scrutiny applies?
   
   • Suspect = strict
   • Quasi = intermediate
   • Other = rational basis
4. Does the government action satisfy the level of scrutiny?

Question 4

What are the suspect classifications?

Answer 4

1. Race;
2. Alienage (state laws);
3. Religion; and
4. National origin

⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.

Question 5

What are quasi-suspect classifications?

Answer 5

1. Gender; and
2. Legitimacy

⭐️ Intermediate scrutiny

Question 6

What are non-suspect classifications?

Answer 6

1. Alienage if:
   
   1. Federal alienage classification; or
   2. State restriction on alien’s participation in government functions
2. Age
3. Wealth
4. Sexual orientation
5. Disability
6. Any other classification not governed by strict or intermediate scrutiny

⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group

Question 7

What are 3 ways that P can show a classification is discriminatory?

Answer 7

1. Classification is discriminatory on its face: text of the law itself is unconstitutional.
2. Classification is facially neutral, but discriminatory as applied: classification is discriminatory in its application or administration. Requires proof of both discriminatory intent and discriminatory effect.
3. Discriminatory purpose/motive: P m​ust show proof of discriminatory purpose.

Question 8

Define

de jure segregation

Answer 8

Intentional segregation imposed by law. Subject to strict scrutiny.

Question 9

Define

de facto segregation

Answer 9

Segregation that results from private action (e.g. choosing housing in certain neighborhoods). No equal protection violation because no government action.

Question 10

For affirmative action to survive strict scrutiny, what must the government prove?

Answer 10

Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.

Must show evidence of past discrimination.

⚠️ Exception: quotas are almost never allowed.

Question 11

Are racial quotas constitutional?

Answer 11

No, will almost always be struck down for failure to pass strict scrutiny unless gov. can prove quota is necessary to remedy pervasive, current discrimination

Question 12

Is affirmative action in higher education admissions constitutional?

Answer 12

As of June 29, 2023, race may not be used as a factor in higher education admissions decisions (other than military academies).

Prior to that date, race could be used as a factor among many if state showed action was necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity

Question 13

Alienage classifications trigger strict scrutiny unless:

Answer 13

1. Classification is pursuant to Congress’ plenary powers to regulate immigration; or
2. Classification is related to essential government functions and/or processes. Valid restrictions include:
   
   • Voting and jury membership
   • Working as public school teacher
   • Working as police officer
   • Working as probation officer

⭐️ If based on either circumstance, rational basis will apply

Question 14

Are undocumented aliens a suspect class?

Answer 14

No, generally subject to rational basis review

Question 15

Discrimination against the children of undocumented aliens triggers what level of scrutiny?

Answer 15

intermediate scrutiny

(ex. denying children the right to attend public schools)

Question 16

Gender classifications trigger what level of scrutiny?

Answer 16

Intermediate scrutiny (substantially related to important government interest)

AND

proof of “exceeedingly persuasive justification”

Question 17

Is affirmative action based on gender constitutional?

Answer 17

Yes, if necessary to achieve a compelling governmental interest in remedying past discrimination based on gender

Question 18

Classifications based on legitimacy trigger what level of scrutiny?

Answer 18

Intermediate scrutiny.

Laws cannot discriminate against children of nonmarried parents without substantial relation to an important government interest

Question 19

What is the “one person, one vote” requirement?

Answer 19

Each person’s vote must be equal to another person’s vote

⚠️ Exception: limited purpose elections

Question 20

Voting legislation is subject to what level of scrutiny?

Answer 20

If based on anything other than age, residency, or citizenship, strict scrutiny applies.

Question 21

List 4 examples of voting regulations that have been upheld

Answer 21

1. Reasonable residency requirements;
2. Reasonable registration requirements;
3. Reasonable time and manner regulations; and
4. Denial of voting rights to felons

Question 22

What are four examples of unconstitutional voting restrictions?

Answer 22

1. Poll taxes;
2. Limiting school board elections to only parents and property owners
3. Counting votes using overly vague standards; and
4. Requiring political party registration for a general election (can be limited for primary elections)

Question 23

Can states limit felon voting rights?

Answer 23

Yes, pursuant to Section 2 of the 14^th Amendment

Question 24

Does Congress have the power to override state laws concerning federal elections?

Answer 24

Yes, pursuant to the Elections Clause (Article I, Section IV)

Question 25

Restrictions on **travel** trigger what level of scrutiny?

Answer 25

strict scrutiny ## Footnote ⚠️ Note: Only interstate travel; international travel is not a protected right

Question 26

What is the **test** applied to **non-resident discrimination**?

Answer 26

There must be a **substantial** **connection** between the discrimination and a **substantial state interest**. ## Footnote *More Info:* [The Privileges and Immunities Clause](http://nationalparalegal.edu/conLawCrimProc_Public/CongressionalPowers/Privileges&ImmunitiesClause.asp)

Question 27

What does the **Privileges or Immunities Clause** under the 14^th Amendment protect?

Answer 27

Right to **interstate** travel (very narrowly construed) ## Footnote \*\*Be careful. Privileges or immunities is almost never the right answer on the MBE.

Question 28

List two examples of **constitutional** non-resident discrimination

Answer 28

1. Charging more for **recreational** licenses (hunting or fishing); and 2. Treating non-residents differently to preserve in-state **natural resources**

Question 29

List four examples of **unconstitutional** **non-resident discrimination**.

Answer 29

1. Charging higher fee for commercial licenses for non-residents 2. Commuter taxes applied only to non-residents 3. Limiting abortions to only local residents 4. Mandating that employers only hire state-residents

Question 30

Can states exclude **non-citizens** from jobs related to state governance (e.g. police officers, government officials, public school teachers)?

Answer 30

Yes

Question 31

Can a state ban all **write-in candidates** for the primary and general election?

Answer 31

Yes, as long as there are reasonable, alternative methods of getting on the ballot

Question 32

Can a state refuse to put a candidate on ballot unless a minimum amount of voter support is shown? (e.g. via signatures, etc)

Answer 32

Yes