Equal Protection Clause Flashcards
State Action
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”
This clause applies only to states and localities.
Federal Action
Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states.
Proving Discrimination
To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.
Facial Discrimination
A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face.
Discriminatory Application
A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.
Discriminatory Motive
A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause
Standard of Review
Suspect classification = strict scrutiny
Quasi-suspect classification = intermediate scrutiny
Non-suspect classification = rational basis
SC - Race, ethnicity, national origin
Laws or regulations that intentionally disadvantage on the basis of race, ethnicity, or national origin have almost always been struck down for failing to advance a compelling state interest.
One exception was Korematsu v. United States, in which the internment of Japanese-Americans during World War II was upheld in the name of national security.
SC - Affirmative action
Affirmative action programs that expressly took race into account not to exclude racial minorities but to increase their representation in higher education, employment, and government contracts
Race may be used as a “plus factor” (i.e., one of a range of factors to consider) in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body.
The use of racial quotas or of race as a determinative criterion, however, violates equal protection and is unconstitutional
Past Discrimination by Gov’t
For a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than a history of societal discrimination.
The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects.
QSC - Gender
Intentional discrimination through gender classification will generally be struck down under the intermediate scrutiny standard.
For example, a state law giving preference to men over women to be administrators of decedents’ estates was invalid. Reed v. Reed, 404 U.S. 71 (1971)
also United States v. Virginia
QSC - Gender Affirmative Action
The Court has upheld affirmative action regulations granting beneficial treatment to women over men (such as tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge) because providing a remedy for past gender-based discrimination is an important governmental interest.
Califano v. Webster
