Equal Protection Flashcards
When is equal protection invoked?
When a law treats one person or class differently from others
What does equal protection require from the government?
Government must justify its action when it discriminates
What is the constitutional Basis of Equal Protection for state action ?
- Equal Protection clause of 14th Amend.
What is the constitutional basis for equal protection for Federal Action?
No federal equal protection clause
- BUT the 5th amendment due process clause includes the rights guaranteed by the equal protection clause
What are the Standards of Review ?
- Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
- Intermediate Scrutiny - Law must be substantially related to an important government interest
- Rational Basis - Law must be rationally related to a legitimate gov’t int.
What are the steps in analyzing an equal protection question?
- Identify the status of the actor discriminating (gov’t or priv.)
- If gov’t, identify the type of discrimination. If private, EP doesn’t apply
- Identify and apply the level of scrutiny attached to that discrimation
What must be present to trigger strict or intermediate scrutiny?
There must be discriminatory intent on the part of the government
- Disparate effect alone w/out intent is not enough
- Discriminatory intent can be shown facially, as applied, or when there is discriminatory motive
Facial Discrimination
Law that, by its lang., creates distinction b/w classes of persons is discriminatory on its face
Discriminatory application
Law appears neutral on its face but is applied in a discrim. fashion
Discriminatory Motive
Law is neutral on its face and in its application
- BUT still results in disparate impact
- Still need prood of discrim. intent
Equal Protection - What is the level of Scrutiny for Race, Ethnicity & National Origin Classification
Strict Scrutiny - law must be the least restrictive means to achieve a compelling gov’t interst
Define de jure segragation
Segregation imposed by law
- Will almost always be unconst.
Define De facto segregation
Not legally required but happens by private choice
- no const. issue b/c there is no state action
School Integration
Discrim. must be intentional so only de jure segregation in schools violates EP clause
- School board must take steps to elim. int. racial seg. or schools
- Court can order dist. to implement measures (busing) to remedy the discrim.
- Temp. - Must be terminated once the past discrim. has been eliminated
Equal Protection - Racial Classification Benefitting Minorities
Level of Scrutiny
Strict Scrutiny
- gov’t must prove means chosen are nec. to achieve a compelling gov’t int.
- Compelling Gov’t Int. - e.g. to remedy clearly proven past discrimination, diversified student body
What are the 2 compelling interests the government has in Affirmative Action ?
- Past Discrimination by the Government AND
- The benefits should go as closely as possible to the ppl discriminated
- Diversity in Public Universities and Colleges
- Race can be one factor among many with no fixed weight
- Use of racial quoatas or race as a determinative criterion is unconst.
Equal Protection - Racial Classification Benefitting Minorities
Numerical Set Asides
Numerical set asides require clear Proof of past discrimination
Equal Protection - Racial Classification Benefitting Minorities
Public School Systems
Sch. dist. can’t assign students to schols on the basis of race unless it is necessary to accomplish a compelling interest (e.g. remedy past discrim.)
- Only intentional segregation is unconst.
- School can use facially neutral criteria that may have the same effect
- Strategic site selection for new schools or
- redrawing of attendance zones
Equal Protection - Discriminatory Use of Preemptory Challenge Based on Race
In both civil & Crim. cases
- violates EP & is unconst
Equal Protection - Racial Gerrymandering
Race can’t be predominant factor in drawing boundaries of voting district unless district plan meets strict scrutiny
Equal Protection - Alienage Classifications
Level of Scrutiny
Status as a lawful resident of the United States
- Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
- BUT some situations, discrimination against non-citizens is reviewed under Rational basis
Equal Protection - Alienage Classifications
Which situations are reviewed under Rational Basis
- Federal Discrimination Against Aliens
- Self Gov’t & Democratice Process
- Undocumented Aliens
What level of scrutiny will a state’s discrimination based upon alienage receive?
Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
- Generally struck down if law discrim. against aliens
- Exception - State law that restricts or prohibits an alien’s participation in gov’t functions
- Can exclude non-citizens from jobs related to state governance (cops, officials, pub. sch. teacher)
- Only need rational relationship to legit. int.
What test is applied when states discriminate against illegal aliens ?
Not a suspect class
- Not protected
- Discrim. against them will recieve rational basis review
- BUT can’t deny prim. or sec. edu benefits to undoc. aliens
Equal Protection - Alienage Classifications
Federal Discrimination Against Aliens
Rational Basis Review
- When cong. passes statute discrim. against aliens
- Congress has plenary power over aliens, classification likely valid unless arbitrary and unreas.
Equal Protection - Alienage Classifications
Undocumented Aliens
Rational Basis Review
- They’re not considered a suspect class so state laws that discriminate against them are reviewed under RB
- Exception
- Denial of Free Pub. Edu. to Undocumented Alien Children = Intermediate Scrutiny (due to powerless nature of the class & importance of edu.)
Equal Protection - What are the Quasi-Suspect Classifications ?
- Gender
- Legitimacy
Equal Protection - Gender Classification
Level of Scrutiny
- Intermediate Scrutiny -
Law must be substantially related to an important government interest
AND
* Exceedingly Persuasive Justification exists for the distinction
Equal Protection - Gender Classification
Proving Existence of Gender Classification
- Facially Discriminates - Terms of law draws distinction among ppl based on gender OR
- Facially Neutral - Must have discrim. impact & discriminatory intent
Equal Protection - Gender Classification
Discriminatory Use of Preemptory Challenges based on Gender
Both Civil & Crim cases
- challenges on basis of gender violates EP & is unconst.
Equal Protection - Gender Classification
Classifications Benefiting Women (Gender based affirmative action)
Intermediate Scrutiny
- Role Stereotypes = Unconstitutional - Gender Classification that benefit women on basis of role stereotypes aren’t allowed
- Remedy Past Discrimination = Valid
Equal Protection - Legitimacy Classifications
Discrim. against children conceived out of wedlock
- Level of Scrutiny - Intermediate - Law must be subst. related to important gov’t interest
Equal Protection - Religion Classifications
No cases but it is assumed that discrim. based on religion would be viewed under strict scrutiny
Equal Protection - Rational Basis Review
Used for all other types of discrimination- Law must be rationally related to a legitimate gov’t int.
- Age Discrimination
- Disability Discrimination
- Wealth Discrimination
- Economic Regulations
- Sexual Orientation
- Alienage Classifications Re: Self Gov’t & Democratic Process
- Congressional Discrimination Against Aliens
- Convicts - SCOTUS has not held that convicts are a suspect class
Equal Protection - Laws Discriminating against Sexual Orientation
Rational Basis Review - Ct. unwilling to treat gays as suspect or even semi-suspect class
BUT Federal Gov’t Can’t discriminate Against Same Sex Couples Legally Married Under State Law
- 2013 - SCOTUS struck down Defense of Marriage Act (DOMA)
- Holding - When a same sex couple has been legally married under state law, fed. gov’t can’t discriminate against the same sex couples
- Ct. didn’t address whether state would violate EP Clause by banning same sex marriage
Fundamental Rights Unique to Equal Protection
Fund. rights guar. by substantive due process are protected by equal protection principles as well
- Impingement of the right to vote, to travel, or to marry may trigger an inquiry under either DP or EP BUT
- Certain rights are particular to equal protection
- One Person, One Vote
- Gerrymandering
The right to vote in state elections comes from where ?
EP clause of the 14th amendment
One Person One Vote Define
One person’s vote must be essentially equal to any other person’s vote
- When gov’t est. voting districts for the election of reps. the number of persons in each district must be approx. equal
What is the test applied to laws departing from one person one vote ?
Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
Gerrymandering
When a state draws election districts for the purp. of scattering a racial or ethnic minority among several districts in order to prevent the minority form exercising its voting strength
- State action violates EP clause
