Equal Protection Flashcards
What is the source of equal protection?
- EP clause of 14th amendment is limited to state action
- HOWEVER, grossly unreasonable discrimination by the federal government violates DP clause of the 5th amendment (Example –> under 5th amendment, court struck down federal law excluding same sex couples from def of marriage)
What are the applicable standards for equal protection?
If it involves a FUNDAMENTAL RIGHT or SUSPECT CLASS –> Strict scrutiny (gov has burden of proof)
- race, national origin, alienage (sometimes
- right to vote, privacy, 1st amendment, interstate travel
If it involves a QUASI-SUSPECT CLASS –> intermediate scrutiny (unclear who has burden of proof)
- gender, legitimacy
If it does NOT involve a fundamental right, or suspect or quasi-suspect class –> Rational basis (challenger has burden of proof)
- age, wealth, disability
What is the rule regarding Equal Protection and “proving discriminatory classification”?
For strict or intermediate scrutiny to apply, there must be INTENT to discriminate:
Intent can be shown by:
- facially discriminatory;
- facially neutral w discriminatory application;
- discriminatory motive (NOTE: discriminatory effect is not enough).
With regards to equal protection, what is a “suspect class”?
What is the appropriate standard?
race, national origin, alienage
Strict scrutiny (gov has burden)
With regards to equal protection, what are “quasi-suspect classifications”?
What is the appropriate standard?
legitimacy, gender
- substantially related;
- important state interest
Gov bears burden of showing “exceedingly persuasive justification”
What (3) issues arise re: “equal protection” and “race/national origin” classifications?
- School integration;
- “Benign” Government Discrimination (Affirmative Action)
- Discriminatory legislative apportionment
What is the general outcome regarding equal protection and school integration?
- only INTENTIONAL segregation violates constitution
- If school systems and attendance zones are established in a racially neutral manner, there is NO violation (even if there is a racial imbalance)
What is the general outcome regarding equal protection and affirmative action?
- Government action (fed/local/state) that FAVORS suspect minority is subject to strict scrutiny
- Remedying past discrimination –> Gov has COMPELLING interest in remedying pas discrimination.
- The past discrimination must have been PERSISTENT and READILY IDENTIFIABLE.
- Cannot seek to remedy general past societal discrimination - If there is NO past discrimination –> even where gov has NOT engaged in past discrimination, it may have a compelling interest in affirmative action. HOWEVER, the government action must be NARROWLY TAILORED to that interest
Elementary/secondary schools –> scotus has not found diversity to be sufficiently compelling to justify moving students based on race
Public colleges –> court HAS deferred to public colleges who claim they have a compelling interest in a diverse student body. HOWEVER, the court will NOT defer re: whether a particular scheme for assuring diversity meets strict scrutiny. The school must show no workable race-neutral alternatives.
May states eliminate race base preferences? (or does it violate EP?)
- States are NOT required to have affirmative action programs for admission to university
- States MAY eliminate race based preferences, including by voter initiative
What is the rule re: “equal protection” and “discriminatory legislative apportionment”?
- Race CAN be considered in drawing up new voting districts, but CANNOT be the predominant factor. x
- if P can show that re-districting plan was drawn up predominantly on the basis of race, the plan will violate EP unless gov can show the plan is narrowly tailored to serve a COMPELLING state interest
What is the rule re: federal alienage classifications?
- NOT subject to strict scrutiny
- Valid if NOT ARBITRARY and unreasonable
REASONING –> Fed’s plenary power over aliens
What is the special rule re: state/local alienage classifications?
- State/local laws on alienage are suspect classifications subject to STRICT SCRUTINY (But see exception for “Participation in self-government process”)
EXAMPLES –> it is unconstitutional for US citizenship to be required for welfare, civil service jobs, or to become a lawyer
What are the exceptions to strict scrutiny for state/local alienage classifications?
- If a law discriminates against alien participation in state government, the RATIONAL BASIS standard is applied.
Examples –> voting, jury service, elective office
-Rational basis ALSO applies to state/local laws limiting certain non-elective offices involving important public policy
Examples –> police officers, probation officers, primary/secondary school teachers
Are “undocumented aliens” a suspect classification?
No.
State laws regarding them are subject to “rational basis” standard
HOWEVER –> denial of free public education to undocumented alien children is invalid, and more than a rational basis standard was used by the court
What is the general outcome of cases involving discrimination against women or men?
Generally invalid.
(intermediate scrutiny)
However, certain laws have been found to be substantially related to an important gov interest:
Examples:
1. statutory rape laws
2. all male draft
