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

How do you distinguish due process from equal protection issues?

Answer 3

Ask: does the statute contain a classification along suspect lines? If yes, it is an equal protection issue. If not, due process issue.

Question 4

What are 4 steps to analyzing equal protection questions?

Answer 4

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 5

What are the suspect classifications?

Answer 5

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

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

Question 6

What are quasi-suspect classifications?

Answer 6

1. Gender; and
2. Legitimacy

⭐️ Intermediate scrutiny

Question 7

What are non-suspect classifications?

Answer 7

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 8

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

Answer 8

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 9

Define

de jure segregation

Answer 9

Intentional segregation imposed by law. Subject to strict scrutiny.

Question 10

Define

de facto segregation

Answer 10

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

Question 11

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

Answer 11

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 12

Are racial quotas constitutional?

Answer 12

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 13

Is affirmative action in higher education admissions constitutional?

Note: This is changed as of June 29, 2023. MBE will likely not be updated, so still be able to answer the former rule.

Answer 13

Race may be used as a factor among many if state shows action is necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity

⭐️ Numbers-based quotas will almost always be struck down

2023 NOTE: SCOTUS ruled race cannot be used as a factor in admissions in Students for Fair Admissions (June 29, 2023). The MBE will likely not be updated - please know the former rule as well.

Question 14

Alienage classifications trigger strict scrutiny unless:

Answer 14

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 15

Are undocumented aliens a suspect class?

Answer 15

No, generally subject to rational basis review

Question 16

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

Answer 16

intermediate scrutiny

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

Question 17

Gender classifications trigger what level of scrutiny?

Answer 17

Intermediate scrutiny (substantially related to important government interest)

AND

proof of “exceeedingly persuasive justification”

Question 18

Is affirmative action based on gender constitutional?

Answer 18

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

Question 19

Classifications based on legitimacy trigger what level of scrutiny?

Answer 19

Intermediate scrutiny.

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

Question 20

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

Answer 20

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

⚠️ Exception: limited purpose elections

Question 21

Voting legislation is subject to what level of scrutiny?

Answer 21

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

Question 22

List 4 examples of voting regulations that have been upheld

Answer 22

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

Question 23

What are four examples of unconstitutional voting restrictions?

Answer 23

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 24

Can states limit felon voting rights?

Answer 24

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

Question 25

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

Answer 25

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

Question 26

Restrictions on travel trigger what level of scrutiny?

Answer 26

strict scrutiny

⚠️ Note: Only interstate travel; international travel is not a protected right

Question 27

What is the test applied to non-resident discrimination?

Answer 27

There must be a substantial connection between the discrimination and a substantial state interest.

More Info: The Privileges and Immunities Clause

Question 28

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

Answer 28

Right to interstate travel (very narrowly construed)

**Be careful. Privileges or immunities is almost never the right answer on the MBE.

Question 29

List two examples of constitutional non-resident discrimination

Answer 29

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

Question 30

List four examples of unconstitutional non-resident discrimination.

Answer 30

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 31

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

Answer 31

Yes

Question 32

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

Answer 32

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

Question 33

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 33

Yes