Equal Protection of the Laws

Question 1

What is the Rational Basis rule?

Answer 1

1) Legitimate state interest 2) Means are rationally related (Beazer)

Court will not dig to find out the actual ends and will supply conceivable ends if needed (Clover Leaf)

If the end is not legitimate, the statute is not permissible

Question 2

What is the rule if a legislature is phasing legislation and Rational Basis applies?

Answer 2

The Legislature gets deference (REA)

Perform an activity-level analysis to determine if the phasing is rational

If the Court cannot come up with a good reason to think that the hypothetical concern is invalid, it will not strike (Lee Optical/REA)

Question 3

When does Rational Basis Plus arise and what does it do?

Answer 3

1) The Court detects an ends that they do not like (Moreno)
- They will the level of scrutiny on rational fit so that the statute fails
- The Court will not supply a conceivable end

2) The stated ends have better solutions and the Court is aware of a societal animus towards a class (Cleburne)
- The Court will look at whether better solutions are more rationally related
- The Court will interrogate the ends and tease out invidious discrimination

Question 4

Strauder

Answer 4

Categorization and exclusion of a racial group from a right is not acceptable, but there is no right to racial balancing

Question 5

McCabe

Answer 5

Equal protection under the law is an individual right, not a group right

Question 6

Brown

Answer 6

A state/local government cannot operate separate facilities under Separate But Equal, because separation is inherently unequal due to the stigma visited on the separated class

Question 7

What is the remedy for a segregated school district?

Answer 7

If there is de jure segregation, a Court can supervise to de facto integrated school districts

If there is not de jure segregation, there is no remedy

The Court cannot re-draw school districts

Question 8

Ex rel. Gaines

Answer 8

In evaluating Separate But Equal, look at the attendant costs of the separate service

Question 9

Sweatt v. Painter

Answer 9

Adds qualitative criteria to what was laid out in Gaines

Reputation of the faculty, experience of the administration, alumni, standing, tradition, prestige

Question 10

McLaurin v. Oklahoma

Answer 10

Being segregated in the classroom with regard to education is not allowed because it is not an equal educational experience; need to be able to converse with classmates

Question 11

Why do we have strict scrutiny?

Answer 11

• To smoke out invidious discrimination
• Classification itself creates a stigmatic harm (Adarand)

Question 12

Will the Court apply Strict Scrutiny even if there is no harm?

Answer 12

Yes (Johnson)

Question 13

What are the elements of Strict Scrutiny?

Answer 13

• 1) Compelling government ends 2) Served by means narrowly tailored
• The Court will not provide “conceivable” ends

Question 14

What is the list of compelling governmental ends?

Answer 14

• Remedying specific identified discrimination that violated the Constitution or a statute (Crosun)
• Promoting diversity in higher education (SFFA)
• Imminent and serious risks to human safety in prisons
• National security (probably) (Korematsu)

Question 15

What are the principles the Court will leverage when applying Strict Scrutiny?

Answer 15

• Skepticism: The Court will be inherently skeptical of race classifications
• Consistency: The standard of review will be consistent for all race classifications
• Congruence; EPC of 5th A will be treated the same as the EPC of the 14th A

Question 16

What are the requirements of the legislation if the stated end is promoting diversity in higher education?

Answer 16

• Must have a defined end point
• No set-asides, quotas, or points
• No stereotyping that one race brings a particular view
• Any deference accorded to administrators in determining the role of diversity in higher education must be within the constitutional limits of judicial review

Question 17

Parents Involved

Answer 17

Racial balancing is a prohibited governmental interest

Question 18

Washington v. Davis

Answer 18

Discriminatory effect alone is not enough, there must also be evidence of a discriminatory purpose

Question 19

What is the process for determining if behind a facially neutral provision there is motivation that is prohibited or would alter the level of scrutiny?

Answer 19

1) Did the plaintiff succeed in showing the government acted with a discriminatory purpose?
- NO, Rational Basis
2) If YES, the burden shifts to the government to show that the same decision would have been reached without the discriminatory purpose
- Government successful: Rational Basis
3) If the government is not successful, what is the motivation behind the legislation?
- Benign: SS
- Invidious: Call it SS, but will always lose

Question 20

Trump v. Hawaii

Answer 20

In determining whether a facially neutral status was motivated by discriminatory intent, if the SC identifies national security/immigration as a legitimate interest for the legislation, the Government gets deference/the Court ends the inquiry

Question 21

What is the inherent tension between Arlington Heights and the Court’s preference for race-neutral legislation?

Answer 21

Arlington Heights raises the level of scrutiny, regardless of whether the means does not use racial classification which makes it just as difficult for race-neutral legislation as it does for racial classifications

Question 22

What are the requirements for Intermediate Scrutiny?

Answer 22

1) Important governmental objectives
- The Court will only look at actual stated ends (US v. Virginia)
- The Court will interrogated the stated ends to determine if it is actually a means to serve something else (US v. Virginia)
(Boren)

2) Substantially served by the means
- The Court will use some statistics to evaluate the means
- Stereotypes are not allowed: If a sex is wholly excluded and that exclusion does not work for one person, it loses