Equal Protection Clause Flashcards
EP: Standards of Review
SS
- Burden on Gov’t
- Fundamental Rights
- Race/Ethnicity
- Alienage
IS
- Burden on Gov’t
- Gender
RBT
- Burden on Plaintiff
- Anything that doesn’t fall under SS or IS
EP Overview
The Equal Protection Clause applies to:
Federal gov: through DPC of 5 Am and to
State gov: through EPC of 14 Am
Equal protection: the gov must treat a person in the same way that it treats other people in similar situations and circumstances.
Brown v. Board - Separate but Equal; white and black students were segregated in public schools
Public education at time of 14th A: white education – private; black education – nonexistent
“Separate but equal” – black and white school were “equalized” but still separate and segregation has its effect → deprives minority group of equal educational opportunities
Impact of separation on children: feeling inferior which affects motivation to learn
Warren for the unanimous court–Holding: public education that segregates violates equal protection
Loving v Virginia: Virginia law said whites and POC can’t marry
State’s arguments: the statute punishes whites and blacks alike = no racial discrimination; @ time of the 14 A. they didn’t intend to make miscegenation laws unconstitutional
Warren for the unanimous court:
Court’s POV: equal protection demands that racial classifications be subject to the “most rigid scrutiny” and if it passes it must show a permissible state objective (that’s independent of racial discrimination) → NO purpose or justification for the statute – it just maintains white supremacy
Korematsu v United States: Japanese Americans were relocated and deported to brutal concentration camps during WWII
Racial classification SURVIVED strict scrutiny; claim under equal protection in 5th A.
Court: pressing public necessity may justify racial restrictions (even though racial restrictions are subject to “most rigid scrutiny”) – which was found here bc it was necessary for the military to exclude the presence of “disloyal members of the group”
Black for majority: we are NOT endorsing racial discrimination
Frankfurter in concurrence: congress and prez have certain war powers that allow them to do this for the sake of peace; yes those powers are subject to constitutional limitations and here the military order is valid
Murphy in dissent: although military judgment in war time is appropriate; it was not reasonably related to a public danger that is immediate, imminent, and impending
Also it applied to ALL persons of Japanese ancestry (who may have nothing to do with sabotage or espionage)
Jackson in dissent: although this may or may have not been military precautions, it shouldn’t have been enforced by civil courts bc then the court has validates racial discrimination in crim pro and the constitution
Roberts in dissent: rejected the govt relying on Hirabayashi upholding curfew order bc this was not a temporary exclusion; this was a conviction for not submitting to imprisonment in a concentration camp soly bc his ancestry has made his loyalty questionable (without evidence)
Adarand Constructors Inc. v. Pena: fed govt gave financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals” (specifically race)
O’connor for majority: 14th A. = strict scrutiny of all race-based action by state, local, and federal governmental actors
Race classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests
3 propositions for governmental racial classifications:
Skepticism–any preference based on race/ethnicity receives examination
Consistency–all racial classification under equal protection → subject to strict scrutiny
Congruence–equal protection under 5th = under 14th
Scalia in concurrence: govt can never have a compelling interest in discriminating based on race in order to make up for past racial discrimination
Thomas in concurrence: writes to respond to dissent; believes the govt can’t make us equal; just bc these programs are well intentioned can’t mean they’re constitutional and that there can be distinctions based on race bc such distinctions have a destructive impact on the individual and society; affirmative action programs create attitudes of superiority (and makes minorities inferior) and provoke resentment from those that have been wronged by the govt’s use of race (makes them entitled)
Stevens in dissent: there is a distinction between the govt taking away something bc of race vs giving something bc of race–the latter is acceptable; FEDERAL affirmative action programs represent the will of elected representatives
Ginsburg in dissent: these programs & their improvements should be left to the political branches
Disparate Impact Standard
Discriminatory Purpose may take us back up to SS
Role of disparate impact doesn’t mean there’s a discriminatory purpose but could take you up to SS if the context looks like there’s a discriminatory purpose
Other wise you have RBT if all you have is a disparate impact
Washington v Davis: black applicants rejected from police dept for failing written test
White for majority:
De jure segregation: intentional state action vs de facto segregation
A statute, even though neutral on its face, can be stricken if its application discriminates based on race [Yick Wo]
Disparate impact on its own does NOT trigger strict scrutiny – rational basis applies instead
Holding: The test was neutral on its face and rationally served a govt purpose that is constitutionally allowed
Black people can’t successfully claim the test denied them equal protection just bc more black people, more than white, had been disqualified by the test
Stevens in concurrence: wasn’t prepared to set out a standard but still agrees with the result bc:
The test served a neutral and legitimate purpose to meet a uniform minimum standard of literacy
The same test was used throughout the federal service
Also disagrees with the majority that there is a bright line to distinguish between discriminatory purpose and discriminatory impact; it’s unrealistic to make the person of the alleged discrimination to try and uncover the actual subjective intent of the lawmakers
De Jure Versus De Facto
De Facto: Fact
When people just segregate themselves
(Used in 1960s a lot) describe a situation in which legislation did not overtly segregate students by race, but nevertheless school segregation continued.
Fisher case - top 10% admissions - ensures a certain amount of diversity as there is dif ethnicities/ composition living in different neighborhoods
De jure discrimination (imposed by law, law itself discriminatory): if a regulation is
(1) expressly discriminatory,
(2) neutral on its face but has a discriminatory intent, or
(3) neutral on its face but is applied in a discriminatory manner, strict scrutiny will apply.
to say the law is dong the discriminating on its face, or through its use of pretextual facial neutral content
Yick Wo
Rule: Not facially targeting, but law being applied in a racially discriminatory way [w disparate impact] =violation of EP
SF ordinance that was applied against Chinese laundry owners but not against non-Chinese laundry owners was unconstitutionally discriminatory as applied
If the legislation merely has a discriminatory effect, SS does not apply.
If there is a history of bad behavior we will look closer and see if there is a good enough reason for the distinction they are drawing within the law.
Regents of University of California v. Bakke: UCDavis reserved 16/100 seats of its med school for minorities
Powell for majority: Racial and ethnic classifications → subject to strict scrutiny
4 state compelling state interests: Reducing historic deficit disfavoring minorities in med field; Countering effect of societal discrimination; Increasing the number of physicians who will practice in underserved communities; Obtaining the educational benefits that flow from an ethnically diverse student body
3 reasons court thinks preference programs (affirmative action) are problematic: It’s not always clear that the preference is in fact benign; Preferential programs may reinforce common stereotypes that certain groups can achieve success only with special protection that’s not related to the individual worth; There is a measure of inequity in forcing innocent persons to bear the burden of redressing racism
Court’s POV: preferring members of any one group for no reason other than race or ethnic origin is discrimination which is unconstitutional and there is NO govt interest in doing so; court will not approve a classification that aids one group at the expense of other innocent individuals
The court finds that #4 (diverse student body) is a constitutional interest/goal but it is NOT done in the least restrictive way [compares Harvard program where diversity includes disadvantages economic, racial, and ethnic groups–so race may be a “plus” but it’s not conclusive of the applicant]
Brennan in concurrence and in dissent: there’s a sig risk in racial classifications that serve a benign purpose bc they can be misused; to justify that classification govt must articulate purpose
Disparate impact can be enough for for race-conscious programs
The program compensates applicants who are educationally disadvantaged bc of state action – their performance is still evaluated like regularly admitted students are judged
Setting out a specific number is NOT unconstitutional [disagreed with Harvard program comparison in which race is only a factor instead of using a “quota”]
Marshall in dissent: the constitution used to be interpreted to allow terrible forms of discrimination and it’s being used to stop a state from remedying the legacy of discrimination
Blackmun in dissent: optimistic that US won’t need affirmative action programs anymore bc it’s not possible to have a program like that is racially neutral and have it be successful
Stevens in concurrence with decision but dissents bc Title VI should have resolved the case bc it’s crystal clear that race cannot be used as a basis for excluding anyone from participating in a federally funded program
Fisher v. University of Texas at Austin: U of Texas–75% of admissions were filled thru the Top Ten % plan – other 25% was filled by AI and PAI scores & race was given weight as a sub-factor within the PAI
Kennedy for majority:
A university may have a race-based admissions program for “the educational benefits that flow from student body diversity” BUT they can’t do that through enrolling a certain # of minority students
UofT has met strict scrutiny showing their compelling interests:
Promotion of cross-racial understanding
Preparing students for an increasingly diverse workforce and society
Cultivation of competent leaders
Exchanging ideas, exposure to different cultures,
UofT has also met strict scrutiny by showing this is the narrowly tailored
Provided 39-proposal showing how previous race-neutral policies were not successful in meeting the university’s interests
Race played a role in only a SMALL proportion of the admissions process
Alito in dissent: the university has NOT identified with specificity the interests that its use of race and ethnicity is supposed to serve; they have not justified why racial discrimination is necessary to achieve “educational benefits of diversity” or why the discrimination is needed or how the plan serves those objectives = did not meet heavy burden of strict scrutiny
Craig v. Boren: OK statute prohibited the sale of “non-intoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18
Brennan for majority: Court addresses whether the discrimination between the genders is allowed
STANDARD: gender-based difference must be substantially related to the achievement of the [statutory objective]
State presents (weak) stats of men being more likely to get DUIs → the interest is safety
HOWEVER, the court finds that means (discriminating against men’s drinking age) is NOT substantially related to their interest; no “legitimate, accurate proxy for the regulation of drinking and driving” “the relationship between gender and traffic safety becomes far too tenuous”
Powell in concurrence: strict scrutiny should apply
Stevens in concurrence: no need to talk about tiers of scrutiny, just balance the interests
Rehinquist in dissent: applying rational basis → the state’s law stands
United States v. Virginia (VMI):
The Virginia Military Institute (VMI) was a single-sex public higher education institution that trained men for leadership in civilian life and military service. VMI refused to admit women. After a court ruled that the policy for excluding women violated the Equal Protection Clause, VMI created an alternative program for women called the Virginia Women’s Institute for Leadership (VWIL). VWIL differed from VMI in its academic offerings, methods of education, and financial resources.
Majority (Ginsburg): Single sex education is okay as long as the programs are comparable; not the case here
Public schools cannot exclude women without passing IS
Concurring (Rehnquist):
Single sex schools can be important
All womens schools could be good
However, the all women’s school was inferior so he thus concurs
Reliance: [J.E.B.] and [Hogan]
Parties who seek to defend gender-based gov action must demonstrate an “exceedingly persuasive justification” for action.
No exceedingly persuasive justification could be given for the single sex benefit
Dissent (Scalia): this is practically banning same sex schools because there will always be inherent distinctions
Romer v. Evans: CO Municipalities passed ordinances banning sexual orientation discrimination in housing, employment, public accommodations, health and welfare services, and education. CO voters in response voted for Amendment 2 to their state constitution to say that cities cannot do that.
Analyzed under EPC bc law is based on distinction; failed RBT
Facts: CO passed law preventing government protection of gays
Kennedy Holding: This is neither a fundamental right nor a suspect class and still it fails even on rational basis; Sexual orientation ≠ suspect classification under EP → rational basis (not SS) → moral reasoning of the community does not survive RB Test where the impact is harming a specific class of people (animus) → EP violation
Scalia dissent: Moral reasoning of the community is a reason that survives RB Test; history allows this type of discrimination under DP
Big Question between majority & dissent: leveling playing field for everyone versus creating further discrimination
