Equal Protection Clause

Question 1

Analytical Framework

Answer 1

Step 1: Does the law Facially “classify” on the basis of a “suspect” classification or is it nonfacial?
- Facial
o Suspect/quasi-suspect nature
o Illicit Equal Protection Classifications
o Facial Non-Suspect?
- Non-Facial
o Arlington Heights Considerations

Step 2: What is the Proper Standard of Review

i) Suspect Classification => Strict Scrutiny
ii) Quasi-Suspect Classification => Intermediate Scrutiny
iii) Non-Suspect Classification /Non-Facial Classification => Rational Basis Review or RBPlus

Step 3: Frontiero Factors to argue something should be subjected to heightened scrutiny (either Quasi-Suspect or Suspect)

Question 2

Illicit Equal Protection Classifications

Answer 2

Race (ethnicity and national origin) - Suspect

Alienage (citizenship) – suspect
Exceptions: Self-governance and the democratic process, Federal Interest Exception

Gender - Quasi suspect

Legitimacy (non-marital children) - quasi suspect

Question 3

Current Non-suspect Classifications

Answer 3

Age (Murgia)

LGBTQ/Sexual Orientation (Romer v. Evans)

Distinguishing b/w people who stop at stop signs and people who don’t stop at stop signs

Question 4

Non-Facial Classifications

Answer 4

Must prove EXCLUSIONARY EFFECT and EXCLUSIONARY PURPOSE to prove non-facial classification exists (Very hard to prove there is a non-facial sex/race classification)

Exam: “We would like to argue that the law classifies on the basis of race despite the law being facially race neutral.”

RACE/SEX
Exclusionary Effect (Palmer v. Thompson): Easy to prove b/c you can get empirical evidence to prove disparate impact- the main problem in is proving exclusionary purpose – but you need to prove both 

Exclusionary Purpose: Must prove the legislature adopted this policy BECAUSE OF and not merely IN SPITE OF its adverse effects on an identifiable group (Feeney) => very hard to prove

Standard of Review
If P can prove existence of non-facial race or gender classification, then court uses SS or IS, but if P can’t then court uses default of RBR

Question 5

How to prove BECAUSE OF and not merely IN SPITE OF

Answer 5

Arlington Heights Considerations:

1) Extreme statistical proof (not dispositive)
(i) Ex: A pattern inexplicable by anything but race

2) Deviation from procedure/events leading up are suspicious

3) Decision inconsistent with typical priorities
E.g., Typically the town approves all rezoning applications, but are deviating here because the occupants will be African American?

4) Legislative or administrative history surrounding the adoption of the classification
E.g., Contemporaneous statement showing intent to exclude
There will need to be a smoking gun

Question 6

Suspect Classification => Strict Scrutiny

Answer 6

The Classification used by the government must be narrowly tailored to serve a compelling government interest.
(a) Presumption: Laws are presumptively unconstitutional and P usually wins

ENDS: Compelling gov interest

• Nat’l Security (Korematsu),
• NOT white supremacy (Loving v. Virginia)

MEANS: Tight fit required (i.e. the means is necessary) and thus P will argue that a law is overinclusive or underinclusive and thus not a tight fit

(a) Underinclusive: If law fails to include all individuals who should be included to accomplish the law’s purpose
(i) Korematsu is underinclusive b/c they are trying to catch spies and this executive order didn’t even catch any spies.
(b) Overinclusive: If laws include individuals whose inclusion DOES NOT help accomplish the law’s purpose
(i) Korematsu was overinclusive from perspective of who gets imprisoned b/c it imprisons people who are not a danger to national security

Question 7

Quasi-Suspect Classification => Intermediate Scrutiny

Answer 7

The classification used by the gov must be substantially related (means) to an important government interest (purpose) (see Orr v. Orr)

ENDS: Must be important gov interest
Important Gov Interests:
- Traffic safety,
- Pedagogical (teaching) benefits,
- Having a draft to ensure we have a good army,
- Preventing teenage pregnancy, helping a needy spouse

Not Important:

• Reaffirming gender roles/stereotype (see VMI),
• Efficiency and cost-saving reasons

Question 8

Rational Basis Review

Answer 8

Rational Basis Review: The classification used by the gov must be rationally related to a legitimate gov interest

(a) Presumption: Laws are presumptively constitutional and gov usually wins
(b) End: Legitimate purpose: virtually any goal that is not forbidden by the Const will be deemed sufficient to meet RBR

(i) Exam tip: All court does is ask if this is something you could have thought would help - and it doesn’t even have to achieve that goal at all, it’s just something leg could have thought (See Railway Express)

Question 9

Rational Basis Plus

Answer 9

RB+ analysis is diff from Frontiero factors (which tries to say a classification is suspect).

Here we have already decided a classification isn’t suspect, but we are trying to see if we can apply something other than RBR

ENDS
A law (the gov action) that seems inexplicable by anything but animus towards a class is not a legitimate gov purpose
(i) Gov lawyer response: “we didn’t do it b/c we had animus towards this group”
(ii) Then prof says it’s unclear how to rebut that as a P

Exam tip: The court does not discuss the tightness of fit or even railway express analysis when applying RBPlus b/c the whole point of RBPlus is that gov fails Ends prong

Question 10

Frontiero Factors

Answer 10

Used to argue that something should be subjected to heightened scrutiny (either Quasi-Suspect or Suspect)

(1) When the characteristic in the law has a history of being the basis for purposeful discrimination
- Use experts to prove there has been a history of mistreatment of this class
- Is the history of mistreatment similar to race? If so, likely to meet this factor

(2) When the characteristic in the law has an immutable characteristic
- Is socio-economic classification immutable? No, you can get rich.
- Counter: some can’t
- Race and gender are immutable (something you cant change)

(3) When the characteristic in the law makes group members relatively politically powerless compared to non-group members.
- Groups historically oppressed by legislation or lack sufficient political power to protect themselves from discriminatory or oppressive legislation (see Murgia)
- Ability of the group to protect itself through the political process
- Difficulty in holding political positions? Participation in politics? Getting to the polls?

Question 11

Race and EPC

Answer 11

Current Rule
(1) Where the basis for difference in treatment is race, the classification is Suspect.  

Suspect classification is subject to Strict Scrutiny by the court.

Strict Scrutiny provides the classifications used by the government must be narrowly tailored to serve a compelling government interest.

Question 12

Plessy v. Ferguson

Answer 12

FACTS
Louisiana passes law requiring races to be segregated in “separate but equal” train cars. Plessy, a passenger, refused to go to black area of the train and SC held that separate but equal did not violate EPC of 14A.

HOLDING
Just because the facilities are separate does not mean they are not equal. The law is not discriminatory because it applies equally to both whites and blacks. Whites are not allowed in Black train cars either

Classic counter-precedent – this case does not cite rules or language in the Constitution, just latent beliefs about race.

Harlan’s Dissent

(a) Everyone knows that this law’s purpose was not protecting black ppl from sitting next to white and the purpose was to keep whites separate from black b/c of white supremacy (belief that whites are the superior race)
(b) Says Const. is colorblind and that all citizens are equal before the law

This dissent always comes up in the context of the current debate about affirmative action/racially inclusive laws.

Question 13

Brown v. Board of Education

Answer 13

TAKEAWAY
Ended America’s legal racial caste system (Separate but equal is not equal)

ISSUE
Whether several state laws segregating public schools by race violated the EPC of the 14th A

RULE
Jim Crow laws violate the EPC

Question 14

Brown II

Answer 14

Court didn’t order a remedy because the individual justices were worried about going too fast.

Holding: Court creates system where each school district had to be individually litigated.

Court defines parameters: Admit students as soon as possible, but, delay may be allowed if:

(a) Public interest – want to make sure that desegregation doesn’t cause a lot of trouble for the schools
(i) Burden rests on defendant schools to argue how much time is necessary
(b) “With all deliberate speed.”
(i) Deliberate means slow — this is an invitation to be slow and this is what states did => MASSIVE RESISTANCE

Question 15

Korematsu

Answer 15

First case to articulate Strict Scrutiny Test based on race and national origin. GOV WINS (Unusual)

Upheld the executive order that forced people of Japanese ancestry to go to interment camps b/c nation thought they were a threat/danger based on their ancestry and potential spies after pearl harbor

Gov’s compelling purpose: national security/ preventing spies from telling enemy where to bomb
- Narrowly Tailored to achieve that purpose? Court says: Yes - there was no way to identify which of the Japanese Americans were disloyal, so for purposes of national security we have to include all of them.

Dissent: Not narrowly tailored b/c applied to all Japanese people in general - including babies (but babies are not a danger to national security). This is a loose fit

Question 16

Framework for Equal Protection Analysis

Answer 16

1. Discriminatory on its face?
   - If no, demonstrate that a facially neutral law has a discriminatory impact and purpose.
2. Identify the level of scrutiny to be applied.
   (i) Strict Scrutiny:
   i. Race or national origin
   ii. Alienage (some exceptions)
   iii. Gov has the burden of proof
   iv. Must serve some compelling gov purpose
   (ii) Intermediate Scrutiny
   i. Gender
   ii. Nonmarital children
   iii. Must be substantially related to an important government purpose (“important” rather than “compelling”, substantially related but not necessary)
   iv. Burden on the gov
   (iii) Rational Basis Test
   i. Minimum level of scrutiny
   ii. Law must be rationally related to a legitimate government purpose
   iii. Challenger has the burden of proof
   iv. Very deferential to the government
3. Does the Gov Action Meet the Level of Scrutiny
   Ends/ Means analysis
   - Strict Scrutiny
   1) the end must be deemed compelling for the law to be upheld
   - Intermediate Scrutiny
   1) the end has to be regarded as important
   - Rational Basis Test
   1) Just needs to be a legitimate purpose

Question 17

Loving v. Virginia

Answer 17

ISSUE
Whether a VA state law prohibiting interracial marriage (white people marrying outside of their race) violated the EPC

VA says both parties would be punished equally

Court said:
○ This law is so off (purpose is white supremacy), although it is narrowly tailored
○ They fail on the PURPOSE prong, not the MEANS prong

Question 18

City of Richmond v. J.A. Croson Co.

Answer 18

Court applies SS to a law that attempts to “rectify” the wrongs of slavery in VA

Gov Law: Minority Business Utilization Plan (MBUP)
- Requires primary contractors to whom the City awarded construction contracts to subcontract at least 30 percent of the dollar value of the contract to one or more Minority Business Enterprises (MBEs).

When gov uses a facial racial classification for inclusion purposes, SS applies.

(a) Ends/Compelling Gov Purpose: Rectifying past societal racial discrimination is NOT a compelling government purpose
(b) Narrowly Tailored/Means: Explicit Numerical Quotas are insufficient to satisfy means prong 
	(i) Prof: Anything w/ quotas make it harder to satisfy means prong
(1) Likelihood of Success: Gov is unlikely to get over hurdle of Strict Scrutiny b/c Nothing has gotten over SS in contracting race based affirmative action  

Concurrence (Scalia): Agree, but does not think there is ever a reason to use racial classification/discrimination to ameliorate the effects of past discrimination.

Dissent: Old capital of the confederacy should be able to rectify it’s past discrimination

Question 19

Craig v. Boren

Answer 19

Oklahoma statute prohibits the sale of 3.2% beer to men until the age of 21, but women can buy it at the age of 18. This triggers heightened scrutiny (IS)

Purpose: Traffic safety and prevent drunk driving => court accepts this as important purpose

Means: What the law did wasn’t good enough b/c the gov gave the court statistics, but they were bad statistics that didn’t even prove their point b/c they were not significant.

Exam tip: statistics can be used to justify a real difference (see VMI), but here the gov didn’t even show a real difference between male and female drivers through their statistics and the court thought they were doing this law based on a stereotype.

Prof: Statistics were bad: there wasn’t a sufficient correlation. The statistics were about drunk driving, but the prohibition was just to selling beer to males, and not about prohibiting drinking by males. Court also said 2% is tenuous fit

Question 20

U.S. v. Virginia (VMI)

Answer 20

State college in VA that taught similar to a military bootcamp was only available to men. CoA said it violated EPC, so VMI then opened up a college just for women. Women’s institute differed from VMI in its academic offerings, methods of education, and financial resources.

ISSUE
Whether excluding women from admission due to their gender violates the 14th Amendment of EPC => YES

PURPOSE: Unique benefit of single-sex education; diversity of educational offerings; adversative method would change if women are admitted
 Since certain groups of men would also fall into the category of “Not being Capable” the law is not justified in classifying based on sex.

• KWF: Complete exclusion of people who cannot physically and mentally go through the rigor of VMI is how the purpose can be accomplished regardless of the applicant’s gender. Thus, there is not a sufficient fit between the purpose and the means because VMI is using gender stereotype

MEANS: Court did not reach the mean prong because VMI failed the purpose prong

Question 21

Orr v. Orr

Answer 21

Alabama law that required male spouses to pay alimony but not female divorced spouses to pay alimony violated EPC => court applied IS

Purpose: help for needy spouses => court says that is an important gov purpose

Means: Using the sex classification isn’t a sufficiently tight fit to helping needy spouses - it’s grounded in a stereotype that man is always the breadwinner and always makes more $ than their wives.

Gov used sex stereotype and didn’t use real difference. Means prong fails.

NOTE: The way u argue that gov can’t get over IS, show that gov is relying on stereotypes in the facts

Question 22

Mississippi v. Hogan

Answer 22

Male plaintiff (student) who applied to a nursing school turned away

• Court struck down law saying he couldn’t go
• Gov cannot have single-sex institutions

Question 23

Michael M.

Answer 23

• Gov law criminalizes sex w underage female BUT NOT with underage male
• Gov wins when an arg can be made that they are using the sex classification based on a real difference (i.e. men need to get hard to have sex? Males can’t get pregnant)
• How does that survive intermediate scrutiny? (Some say they didn’t apply it correctly)
  
  • P does not get to argue what the purpose is?

Question 24

Rostker v. Goldberg

Answer 24

• Upheld based on a real difference, it is not a real BIOLOGICAL difference
• Real difference: as a matter of US Military policy (Fed Law), men are permitted to engage in combat and women are not
  ○ Nothing in the opinion relies on a biological difference
• Court deferential to military
  
  • NOW: WOMEN ARE NOW ALLOWED TO TAKE PART IN COMBAT
    ○ Who knows what would happen with this today

Question 25

Califano v. Webster

Answer 25

FACTS
The Federal government calculates your social security check based on how much money you made before you retired. Women can subtract their three lowest-earning years from the equation.

ISSUE
Does that policy violate the 5th Amendment’s non-textual Equal Protection component?

ANALYSIS: No.
The law classifies on the basis of gender, so intermediate scrutiny applies.
1. Important government purpose? Yes. Compensating for past economic discrimination.
2. Law substantially related to achieving that purpose? Yes. The law puts money directly back in women’s pockets to compensate for the discrimination.

KWF: It becomes better for gender rights advocates to have intermediate scrutiny rather than strict scrutiny, because it makes it easier to have affirmative action laws

Question 26

Foley v. Connelie

Answer 26

Holding NY law banning non-citizens from job of NY state trooper is a CONSTITUTIONAL citizenship classification related to self-government and the democratic process.

Also applies to:
Voting
Political Office
Jury Service
Law Enforcement Officer
Public School Teacher	
BUT NOT Notary Public

Question 27

Federal Interest Exception

Answer 27

RBR applies: Federal government is allowed to treat people differently based on their citizenship status

NOT about documented/undocumented non-citizen classification
- This is treated more like the “stop sign”. “Undocumented” non-citizens have broken a law

Question 28

Plyer v. Doe

Answer 28

Law that bans undocumented children from public schools is unconstitutional, BUT based on unique circumstances

If you were to see a gov that is trying to completely ban access to undocumented children

Question 29

Railway Express Agency, Inc. v. New York

Answer 29

Non-Suspect Classifications

ISSUE
Does the NY law prohibiting advertising on the sides of trucks, unless the ads were for the products of the truck’s owner, violate the EPC?

HOLDING
No. Court used RBR

PURPOSE: Traffic safety was legitimate gov purpose (Craig v. Boren says traffic safety is even an important gov purpose, but there they used IS)

MEANS: Problem is that if these ads are distracting then it doesn’t matter who owns the ad. (Underinclusive law) However Court says it is rationally related to purpose.
(i) Ps lose b/c even though might be better ways to help traffic safety, the court says it doesn’t have to be good at accomplishing your goals it just has to be something you could have imagined might be good at accomplishing your goals. The post Lochner era - the court defers to legislature under RBR.

Question 30

Massachusetts Board of Retirement v. Murgia

Answer 30

Gov Action: MA law forced state police officers to retire at age 50

• Murgia was policeman who at age 50 was forced to retire despite being in excellent physical condition.
• Court held MA’s mandatory retirement law did not violate EPC b/c age is a non-suspect classification and thus was held to RBR

Murgia did not meet Frontiero Factors:

• History of discrimination: Court says older people haven’t experienced a history of unequal treatment the same way there was unequal treatment on the basis of race
• Immutable trait: Yes, you can’t change your age and we all get old
• Politically Powerless: No, AARP has a lot of power and most congressmen are older

End: making sure police officers are physically fit. Court held this was a legitimate purpose

Means (real issue for P): the means to accomplish this end of getting physically fit police officers was to force officers to automatically retire at age 50. RBR requires a loose fit and thus it’s easy for gov to get over this hurdle b/c from Railway express we learned that means can be anything you could have thought to accomplish your goal.

Question 31

City of Cleburne, Texas v. Cleburne Living Center, Inc

Answer 31

Discrimination Based on Disability

The Supreme Court used the rational basis test to declare unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled.
○ Historically classifications? Yes
○ Immutable? Yes
○ Politically powerless? No, there has been legislation to protect them
• THIS IS RB+, they are not applying heightened scrutiny

Question 32

San Antonio Independent School District v. Rodriguez

Answer 32

Wealth Discrimination

Upheld a state law that put a cap on welfare benefits to families regardless of their size. Children in larger families therefore received less per person than those in smaller families

No fundamental right to education.

HOLDING THAT CLASSIFYING ON BASIS OF SOCIOECONOMIC STATUS ARE NON-SUSPECT AND HOLDING THAT EQUAL PROTECTION CLAUSE DOES NOT CONFER CHILDREN A FUNDAMENTAL RIGHT TO A QUALITY EDUCATION

Question 33

Romer v. Evans

Answer 33

CO Ballot initiative repealed all state and local laws that prohibited discrimination against gays and prevented future laws to protect gays. Court held this was unconstitutional and failed to meet RB Plus review.

ENDS: Gov argued purpose was to prevent discriminatory access to service. Ends was that no one gets special treatment. Gov was saying you can’t put someone on a pedestal, but court disagrees and said the purpose was based on an animosity towards the class and that can never be a legitimate gov purpose

MEANS: also lost on means prong – amendment was overinclusive – b/c gov indentified a huge group

Prof: This holding is limited to just this fact pattern.

- Does not recognize sexual orientation as a suspect classification.
- Majority particularly upset that the affected group could not seek help directly from legislators but were required to amend the Constitution.

Scalia’s Dissent

(a) He argues that LGBTQ groups are a politically powerful minority, and thus do not deserve heightened scrutiny
(b) Points to precedent (Bowers v. Hardwick) to show inconsistency of this decision
(c) Argues that the amendment simply denies gays preferential treatment, it does not disfavor them (policy judgment)

Question 34

Washington v. Davis

Answer 34

Applicants for the police force in Washington D.C. were required to take a test and statistics revealed that blacks failed the exam much more often than whites.

Issue was whether the police department’s use of a score on a standardized test as a use of criteria for being selected for police officer violated 5A EP principles => Answer is No
- Gov argued law classified as people who scored above a threshold on test v. not above a threshold

Court ended up using RBR b/c Ps lawyers were unsuccessful in proving nonfacial racial classification

Davis + Feeney creates a high evidentiary bar
- Need to prove the policy was adopted with discriminatory purpose

Exclusionary Effect: Yes, Higher % of blacks failed the test. However, proving exclusionary effect alone is not enough to receive heightened scrutiny!

Exclusionary Purpose? Court says Ps couldn’t prove exclusionary purpose and SC didn’t like idea of forcing a gov to justify if there was simply disparate impact b/c legislature has lot of policies /regulations that have disparate impact

Dissent: Annoyed that majority is hiding behind this by saying it would open up the court to judicial scrutiny of more laws and Dissenters don’t see why that’s bad

Question 35

Palmer v. Thompson

Answer 35

Public swimming pools closed after they were forced to desegregate

(Race/Sex) Exclusionary Effect (Palmer v. Thompson)
(i) Easy to prove: b/c you can get empirical evidence to prove disparate impact- the main problem in is proving exclusionary purpose – but you need to prove both

Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of “the equal protection of the laws.”

Question 36

Personnel Administrator of MA v. Feeney

Answer 36

State law required that veterans applying for civil service positions be considered/ hired before non-veterans applying w/ same qualification (or even better qualifications).

Feeney was a women and at the time 98% of vets were men so men were always getting the jobs.

Issue: Whether MA’s veteran preference policy for hiring civil servants violated the EPC.
Answer => No doesn’t violate EPC and court applied RBR

Gov argued law classified as veteran v. non-veteran

(a) Exclusionary Effect: Yes, very high % of veterans are men so was enough to prove EE
(b) Exclusionary purpose: Feeney wanted courts to use tort lens to analyze Exclusionary purpose (“was it foreseeable that the preference for veterans would disproportionately exclude”) => Court rejects this as a possible way to see exclusionary purpose

Legitimate purpose: helping vets => Yes
Rational Relationship => RBR (railway express) so this is almost always met

Question 37

Geduldig v. Aiello

Answer 37

CA doesn’t consider pregnancy to be a disability for purpose of getting disability insurance.

Does the CA policy violate EPC => No

Court said this law does not classify based on gender as law includes non-pregnant women – court’s reasoning was that law classified into 2 groups: Pregnant (women only) and non-pregnant (men and women) => RBR

Purpose here probably was to save money (no reason to think otherwise i.e. to exclude women from disability insurance)

Question 38

McCleskey v. Kemp

Answer 38

TAKEAWAY:
It doesn’t matter how final and significant the impact are - it can be the death penalty, but is still won’t be enough to change how the law classifies in court’s mind if you can’t get over burden of b/c of and not in spite of

A gov action involving death penalty being imposed
- All the parties in this case agreed that imperially, race was playing a predominant role (i.e. the race of the person committing the crime influences whether they get the death penalty)

P lawyers could not prove the existence of a non-facial racial classification
- All the gov had to do was say that they didn’t adopt the policy BECAUSE of it’s racial impact
○ Say adopted death penalty to discourage certain crimes