Equal Protection

Question 1

Mere Rationality

Answer 1

Legitimate State Objective, &
Rational Relation (Conceivable reason)
(e.g. health, or general welfare)
Burden = Challenger

Question 2

Intermediate Review

Answer 2

Important Objective &

Substantially related Means.

Question 3

Strict Scrutiny

Answer 3

Compelling Objective &
Necessary Means,
(no less restrictive alternative)
Burden = Gov’t.

Question 4

A neutral Gov action that has the incidental effect of restricted the right of one particular group:

Answer 4

Equal Protection- BUT- NOT Strict:
Purposeful & Invidious? (Y=Fails)

Disparate effects alone require showing of intention.

Arlington Heights Test:
1) Did it impacted one race;
2) History of decisions - unequally applied to race;
3) Sequences of events leading to decision- departures from normal procedures, was race deciding factor; AND
4) Legislative history.
(Wash v Davis: < blacks fail police test - but precinct made efforts to recruit them= not invidious.)
(Yick Wo: Asian Laundry=Neutral but invidious “as applied”)
(Wash v Seattle: Law banning bussing was Race motivated- NO special burdens on one race in political process.)

Question 5

How to recognize Suspect Class for equal protection?

Answer 5

Race, National Origin (Italian), Alienage-citizen status).
(Palmore: Can’t give white parent custody to protect child from being stigmatized child.)
(Anderson: Race of candidates on ballot=unconst.)
(Graham: Resident aliens get equal protection.)

Question 6

Traits showing “Suspect Class”:

Answer 6

1) Immutable,
2) Stereotypes,
3) Political Powerlessness.
4) “discrete and insular minority” (Carolene-Footnote 4.)

Question 7

Gov restricts “Fundamental right” of “Non-Suspect” class:

Strict Scrutiny

Answer 7

1) Non-citizens:
(In re Griffith: may work as lawyers in other state.)
(Sugarman v Dougall: exception for functions that go to heart of representative gov’t.)

2) Voting:
May require ID to vote. (Crawford)
May deny vote to felons: (Ramirez: in const.)
NO poll tax: (Harper: discrim poor)
NO duration req. (Dunn:1 yr= punish travel.)
NO “special interest” req. (Kramer: own property or have kids.)
EXCEPTION: Vote = Limited purpose & effects one group. (Ball)

3) Marriage: NO fee to get divorced. (Boddie)
4) Access to Courts: (Griffin: NO fee for trial transcript or counsel on 1st criminal appeal.)

Question 8

Gov restricts “non-fund” right of “Non-Suspect” class:

Answer 8

Mere Rationality (generally heightened):
1) Education: Not fund right - but:
(Plyler v Doe: ilegal alien children prevail: gov objective not rational.)
(San Antonio v Rodriguez: district taxes may be kept to district school, if NO history of discrim & NO complete deprivation of school.)
2) Welfare & necessities = Not Fund - but:
(Shaprio: Durational requirement punishes travel.)
(Dandridge: Gov may distribute unevenly.)

Question 9

How to recognize Invidious Gov Acts for Strict Scrutiny:

Answer 9

1) Separate but equal= Invidious. (Loving)
(Brown v B o Ed: overruled Plessy v Fergison: “Intangible effects= per se invidious)

2) Past Discrim:
Racial diversity=NOT compelling w/out
“clear evidence” of past discrim by this particular gov’t. (general societal disrim=not enough)

Question 10

Mid-Level “Skeptical” Scrutiny for “class based” gov action:

Answer 10

1) Need INTENT to discrim based on Gender, Illegitimate, or Alien:

2) Harm OR Help: BOTH prohibited:
(Craig v Boren: Higher drinking age for men-Not substantially related.)
(VMI case: women can’t handle program - separate school not equal.)
(Hogan: Can’t deny men nursing school- NO stereotypical generalizations- even to HELP women.)

Question 11

“Non-Suspect” classes that get Mere Rationality Test:

Answer 11

1) Economic Regulations:
Only need conceivable objective.
(CT may infer objective: e.g. safeguarding health & safety.)
(Railway Express: Ads on vehicles-“gov make take one step at a time.”)

2) Age: (If Relevant to gov action)
(Murgia: police over 50 must retire=relation between age and fitness.)

3) Poor:
(San Antonio v Rodriguez: rich district may keep taxes in district school, if NO history of discrim & NO complete deprivation of school.)

Question 12

“Non-Suspect” classes that get “Heightened Rational” Test:

Answer 12

Indications of Animus:
Harming unpopular group is not a leg gov objective:

1) Sexual Orientation:
(Romer v Evans: Harming unpopular group is not leg gov obj = Banning Anti-discrim law.)
(Bowers: today would be seen as neutral but invidious.)

2) Mentally Retarded: (Not powerless)
(Cleburne: Mental home allowed-Gov objective NOT rational-attended same school, not frat house, indication of animus.)
Marshall Concur: 1) Societal Importance, & 2) history of discrim.

3) Unpopular groups in general:
(Moreno: Housing class changed to family - so hippies could not get Food stamps. No rational relation-did not prevent the harm.)

Question 13

How to determine if Race based Affirmative Action is constitutional:

Answer 13

Always Strict: (Croson: race basis= Strict.)

1) NO Quotas:
(Bakke: No Mechanical Approaches - not “necessary.”)

2) NO tie breakers:
(Parents v Seattle: white v non-white.)

3) NO “Bonus points”:
(Adarand: extra fed funding.) (Gratz: auto-20 points.)

4) YES Plus Factors= Ind evaluations.
(Grutter: holistic & narrowly tailored.)

Question 14

What are Fund Rights under 14th Priviliges and Immunities?

Answer 14

Right to Travel & Vote in national election.

Saenz v Roe:
State cannot give new citizens benefits they received in their previous home state. Punishes right to travel.