Equal Protection of the Laws

Question 1

What is the Constitutional basis for the EPC?

Answer 1

a) Federal government: 5th Amendment Due Process Clause

b) States: 14th Amendment Equal Protection Clause

Question 2

Rational Basis Review

Answer 2

i) Rule: PLAINTIFF must show that the measure being challenged is not RATIONALLY related to any LEGITIMATE governmental interest
(1) Applies to all classifications not falling under strict or intermediate scrutiny (age, alienage (if done by Congress), disability, sexual orientation, wealth)
(2) Stringent rational basis applies to undocumented alien children

*Remember rational basis with teeth for sexual orientation discrimination

Question 3

Intermediate Scrutiny Review

Answer 3

Rule: GOVERNMENT must show that the measure being challenged is SUBSTANTIALLY related to an IMPORTANT governmental interest
(1) Applies to government discrimination regarding gender and illegitimacy

Question 4

Strict Scrutiny Review

Answer 4

Rule: GOVERNMENT must prove that the measure being challenged serves a compelling
government interest, and that the measure is necessary to further that interest
(1) Applies to classifications based on race, alienage (state), voting, domestic travel, and national origin

Question 5

Exam tip!

Answer 5

identify (1) the type of discrimination; (2) against whom; and (3) identify and/or apply the level of scrutiny attached to that discrimination against that particular group

Question 6

Suspect Classifications: Strict Scrutiny

Racial Discrimination

Answer 6

(1) De jure segregation: laws that deliberately segregate on the basis of race
(a) This will face strict scrutiny and almost always be found unconstitutional

(2) De facto segregation: segregation in fact but not by operation of law
(a) This isn’t discrimination, as there’s no state action

(3) May pass strict scrutiny for classification based on race where:
(a) Police are separating a crowd by race in the middle of a riot; or
(b) Affirmative Action
(i) Compelling interests for affirmative action:
1. Remedying the effects of past discrimination by the state; and
2. Achieving a diverse student body in an institute of higher education…NO QUOTAS or points! (can’t have a fixed weight on race)

Question 7

Suspect Classifications: Strict Scrutiny

Alienage Discrimination by States

Answer 7

(1) Resident Aliens
(a) Rule: When states discriminate against resident aliens, apply strict scrutiny
(i) Public-function exception—some jobs or activities may be withheld from resident aliens, including:
1. Police officers
2. Governmental officials
3. Public school teachers

(2) Undocumented Aliens
(a) Rule: When states discriminate against undocumented aliens, apply rational basis (states cannot enact own immigration policy, this is federal)

Question 8

Suspect Classifications: Intermediate Scrutiny

Illegitimacy & Sex Discrimination

Answer 8

i) Illegitimacy
ii) Sex discrimination
(1) Example of constitutional laws:
(a) State statutory rape laws may set the age of consent higher for females than for males

 (2) Examples of unconstitutional laws:
      (a) Authorizing alimony payments to women, but not to men
      (b) Higher drinking age for men than for women

 (3) Affirmative action
      (a) General rule: Benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimination

Question 9

Exam tip!

Answer 9

If there is a Q with discrimination based on illegitimacy, it will prob be unconstitutional

This sort of discrimination serves no important governmental interest

Question 10

Exam tip!

Answer 10

If a Q involves discrimination that is motivated or reinforced by traditional stereotypes about appropriate sex roles, it will most likely be unconstitutional

Question 11

EP Challenges Categories: Rational Basis

Answer 11

• age
• alienage (federal)
• disability
• sexual orientation (with teeth
• undocumented alien children
• wealth
• all else

Question 12

EP Challenges Categories: Intermediate Scrutiny

Answer 12

• gender

- illegitimacy

Question 13

EP Challenges Categories: Strict Scrutiny

Answer 13

• alienage (state)
• domestic travel
• national origin
• race
• voting