Equal Protection: Strict Scrutiny

Question 1

Equal Protection 14th

Answer 1

14th. “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” 14th. The Court says the clear and central purpose of the 14th amendment was to eliminate all official state sources of invidious discrimination. Loving. If the federal government is acting, then the 5th acts as the “twin” of the 14th. Bolling v. sharpe.

Question 2

Strict Scrutiny

Answer 2

When there is facial discrimination based on race, national origin, sometimes alienage, we have SS. (Loving; griffin; graham.) Furthermore, when there discrim in-effect from a facially neutral gov action, there is SS if it can be proven the gov had intent to discriminate. (Yick wo.) If we have SS, the gov action must have a compelling purpose and the means must be necessary. (Korematsu.) Define compelling. (Korematsu.) Define necessary. In strict scrutiny, the burden is on the gov’t to show that the gov action meets SS. Korematsu.

Question 3

SS- Facially Discrim Cases

Answer 3

1. Strauder
2. Loving
3. Palmore
4. Korematsu
5. Brown v. Board
6. Johnson v. CA

Question 4

Strauder

Answer 4

1. State law discrimination – no nonwhites on jury
   2.. The court declared the law unconstitutional because it expressly singled out and disadvantage blacks
2. West Virginia’s statute clearly represents a prohibited discrimination, singling out an entire race of people and denying them the right to participate as jurors, thus branding them as inferior, furthering racial prejudice, and impeding their access to equal justice under the law.
   a. This court does not hold that states are prohibited under the Fourteenth Amendment from designating other qualifications for jurors, such as limiting jury selection to males, citizens, landowners, or persons of a certain age or with a certain level of education.

Question 5

Loving

Answer 5

1. White and black marriage not bad case.
   a. Interracial marriage ban applied equally to everyone (Not good.)
2. We reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations.
   a. Just because you apply it equally doesnt make it ok

Question 6

Palmore

Answer 6

1. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.
   a. Referring to the child custody case, where he thought that because private people may have biases against interracial families, I should do what is in the best interest of the child and let him go to his non-interracial dad.

Question 7

Korematsu

Answer 7

1. Compelling purpose
   a. War is a compelling purpose, easily. No one debates that.
2. Means
   a. Extremely weak evidence, racist assumptions about japanese people.
   b. Not necessary. Europeans had a better system of figuring this out than concentration camps -> held trials instead.
   c. The racial classification was enormously over inclusive
   i. All Japanese Americans were evacuated and interned because a few might be disloyal
   d. The racial classification was also under inclusive
   i. Those of other races who post the threat of disloyalty were not interned and evacuated

Question 8

Brown v. Board

Answer 8

The court declared that state mandated segregation inherently stamps black children as inferior and impairs their educational opportunities

Question 9

Johnson v. CA

Answer 9

1. The Supreme Court held strict scrutiny must be used in evaluating the routine racial segregation of prisoners
   a. Prison officials argued that such racial segregation was necessary to prevent prison violence
   i. Remanded the case down
2. “We therefore hold that the Court of Appeals erred when it failed to apply strict scrutiny to the CDC’s policy and to require the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest.”
3. The Supreme Court and a 5 to 3 decision stressed that ALL racial classifications must meet strict scrutiny

Question 10

SS - Facially Neutral Cases

Answer 10

1. Yick Wo
2. Washington v. Davis
3. Arlington Heights
4. Mobile
5. McCleskey

Question 11

Facially Neutral

Answer 11

1. Laws that are facially race neutral are administered in a matter that discriminates against minorities or has a disproportionate impact against them
2. SCOTUS has held that there must be proof of a DISCRIMINATORY PURPOSE in order for such laws to be treated as racial or national original classifications.
3. What is the battle going on here?
   a. Hypo:
   i. State law limiting people to be a minimum 5’10 to join fire department
   A. On its face, this law discriminates against height. Thus, likely Rational Basis
   B. However, most women will not be taller than 5’10. Gender discrim receives higher scrutiny and shifts burden.
   ii. As the government – you do not have the burden, you want to remain in Rational Basis in order to keep your law as is.
   iii. As challenger, you want show proof of a discriminatory purpose and shift burden and likely make the law fail.

Question 12

Yick Wo

Answer 12

1. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race.
2. unequal, biased enforcement of the city ordinance against one race/national origin violated EP clause
3. the San Francisco ordinance appears to be neutral and fair on its face.
   a. However, the ordinance has been applied unequally to similarly situated people.
   b. Notwithstanding the fact that Yick Wo and Wo Lee have complied with all requirements of the ordinance, the administrators denied their petitions and the petitions of all but one of the other laundry operators of Chinese descent, while granting permits to 80 of 81 applicants who were not of Chinese descent.
   c. These facts demonstrate that the permits were denied for no reason other than hostility against their Chinese nationality
4. This is the perfect scenario of a facially neutral law that is discriminatory in effect.

Question 13

Washington v. Davis

Answer 13

1. Not friendly to blacks police test
2. an invidious discriminatory purpose may often be inferred from the totality of the relevant facts - totality test. (Rule)
3. Only had evidence of impact in effect, but that is not enough. (“proof of a discriminatory impact is insufficient, by itself, to show existence of a racial classification”)
   a. WHY THEY WONT ALLOW THIS REASONING:
   The court also emphasize that allowing discriminatory impact to suffice improving a racial classification would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory and licensing statutes that may be more burdensome to the poor and the average black then to other more affluent whites
   b. When this happens, they will look at it not through strict scrutiny. They will look at it through the facial classification of the law itself
   Which, here, moved it to rational basis
4. Those challenging the law want to shift the burden to something higher out of rational basis
   a. So remember on the final, depending on which side you choose based on the fact pattern, you are doing some persuasive writing as well.

Question 14

Arlington Heights

Answer 14

1. Denying of rezoning of housing for low to moderate income tenants
2. Denied SS -> Denied strict scrutiny
   Not enough evidence of purpose discrimination
   In fact, they gave tons of consideration for this permit, held hearings/meetings on whether to do this

Question 15

Arlington Heights Factors

Answer 15

1. Court listed some categories
   a. if you can show a specific sequence of events that leads up to the challenge decision, it could like shed some light on it.
   (1) You can make an reasoned assumption based on the sequence of events -> Like if it was always R5 which allows it, but then suddenly changed to R3
   (2) Direct evidence -> Public comments, memos, etc revealing racial motivations
   (3) Usual procedure -> Its the idea that there is this usual procedure which then suddenly changes to not usual )(Not following the usual procedure)
   (4) Legislative history!!!!

Question 16

Mobile

Answer 16

1. Status quo is racist, but there is no proof that the status quo was intentionally racist
   a. The Fifteenth Amendment does not entail the right to have black candidates elected but prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote “on account of race, color, or previous condition of servitude.”
2. The court declared: “Only if there is purposeful discrimination can there be a violation of the equal protection clause . . . . This principal applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination”

Question 17

McCleskey v. Kemp

Answer 17

1. Death penalty with strong statistical data not enough to move into strict scrutiny
   a. Stat evid shows huge disparity
2. The issue is where is the evidence to show us that Mr. Mcklensky was individually discriminated against!!!
   a. Show us someone in the legislature was hoping writing this law to harm black people
   b. Show us the racist prosecutor in this particular case
   c. Show us racist jury for this case
   (1) This is the intent we are looking for.
   (2) “He must show prove that the decisionmakers in HIS case acted with discriminatory purpose”
3. Court typically will assume good faith in gov

Question 18

SS - Affirmative Action Cases

Answer 18

1. Harvard
2. UC v. Bakke
3. Fullilove
4. Croson
5. US v. Paradise
6. Mygant

Question 19

Harvard

Answer 19

1. Any exception to the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Under that standard we ask, first, whether the racial classification is used to “further compelling governmental interests.” Second, if so, we ask whether the government’s use of race is “narrowly tailored” meaning “necessary” - to achieve that interest. (Harvard)
2. Harvard listed some interests that it viewed as compelling
   a. But they cannot be subjected to meaningful judicial review
   (1) Training future leaders in the public and private sectors
   (2) Preparing grads to adapt to an increasingly pluralistic society
   (3) Better educating it students through diversity
   (4) Producing knew knowledge stemming from diverse outlooks
   b. Court thought it was unclear how they are supposed to measure these goals
3. Means
   Harvard’s admission program fails to articulate a meaningful connection b/w the means they employ and the goals they pursue. They work to avoid underrepresentation of minority groups. To accomplish both of those goals th universities measure the racial composiion of their classes using categories: Asian, native hawaiian, hispanic, white, black, and native american
   However, it is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue
   the categories are themselves are imprecise
   Overbroad: By grouping all asian students, for example, the universities are apparently uninterested in south asians v. east asians

Question 20

SS - Affirmative Action

Answer 20

1. 3 questions
   a. What level of scrutiny should be used for racial classifications benefiting minorities
   (a) Clearly Strict Scrutiny -> But it took a LONG TIME to get there
   b. What purposes for AA programs are sufficient to meet the level of scrutiny
   (1) Remedying past discrimination
   (2) Enhancing diversity
   (3) Providing role models for those in minority communities
   (4) Increasing services for minority communities
   c. What techniques of affirmative action are sufficient to meet the level of scrutiny

Question 21

UC v. Bakke

Answer 21

1. Set-aside case — 16 out of 100 reserved for minority students,
2. No majority opinion
3. Held it to be permissible for race to be used as one factor in admissions decisions to increase diversity
4. The court held that the interest of diversity is compelling in the context of the universities admissions program
5. Services provided to minority communities
   a. This justification for affirmative action is not accepted as sufficient by the Supreme Court
   b. They rejected this argument and said that there is no proof that training more black doctors would mean that there would be more doctors actually practicing in minority communities
   c. Also there might be other ways of achieving the school more directly, such as by providing incentives for doctors to work in areas that are underserved

Question 22

Fullilove

Answer 22

1. Federal law that required that 10 percent of federal public works monies given to local govt be set aside for minority-owned businesses
2. Couldnt decide on SS
3. Also remedy discrimination
   a. The court emphasize that Congress found a long history of discrimination in the construction industry and that the affirmative action program was justified as a remedy
   Do not cite

Question 23

Croson

Answer 23

1. SCOTUS expressly held that SS should be used in evaluating state and local AA programs
2. Richmond, VA, had a plan to set aside 30% of public works monies for minority-owned businesses
   a. Minority groups was defined as blacks, spanish speaking, indians, eskimos, aleuts
   b. The plan declared that it was remedial in nature, and enacted for the purposes of promoting wider participation by minority businesses and the construction of public projects
   c. Was in effect for five years
3. Indeed the purpose of ss is to smoke out illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool
   a. The test also ensures that the means chosen fit this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype
   b. One aspect of the judiciary’s role under the EPC is to protect discrete and insular minorities
4. It is beyond dispute that any public entity, state or federal, has a compelling interest in assuring that public dollars drawn from the tax contributions of all citizens, Do not serve to finance the evil of private prejudice – THIS IS THE PURPOSE

Question 24

US v. Paradise

Answer 24

1. SCOTUS upheld a federal court order to remedy proven intentional discrimination by the Alabama Dept. of Public Safety
   a. A qualified Black had to be hired or promoted every time a white was hired or promoted
2. The plurality found that the relief ordered survives even strict scrutiny analysis and the race conscious relief at issue here is justified by a compelling interest in remedy discrimination
3. Lots of evidence of invidious discrimination
4. Purpose = remedy proven intentional discrimination by the Alabama Dept of Public safety
5. This sounds blunt, like Bakki’s quota – so why was it ok?
   a. It did not impose an absolute bar to white advancement, was narrowly drawn to include only specific ranks in the dept, and the dept has annoyed the court for a long time with delay
   (1) If that bold wasn’t the case, it would not happen likely

Question 25

Wygant

Answer 25

1. Affirmative action can also be justified as a way to provide role models in society
   a. However, The Supreme Court has rejected this as a justification for affirmative action
2. In this case the court declared unconstitutional a school systems plan to layoff white teachers with more seniority instead of minority teachers with less seniority
3. Justice power writing for the plurality Said that as a means of accomplishing purposes that otherwise may be legitimate the boards layoff plan is not sufficiently narrowly tailored
   a. Other less intrusive means of accomplishing similar purposes such as the adoption of hiring goals are available
4. Like the “role model” theory employed in this case, a generalized assertion that there has been past discrimination in an entire industry provide no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy
   a. It has “no logical stopping point”

Question 26

Intermediate Scrutiny

Answer 26

Gender is an immutable characteristic and burdens put on this class goes against social policy. (Frontiero) In order to use gender classifications, the classification must serve an important governmental objective and must substantially relate to the achievement of those objectives. (Craig) Furthermore, sex based classifications are valid only when there is an “exceedingly persuasive justification.” (US v. Virginia). Burden on gov. Cite.

Question 27

Frontiero

Answer 27

1. Unequal benefits to servicemen vs. service woman
2. In order to discriminate between sexes for the purpose of administrative convenience you must show that it is cheaper to provide all married men benefits, than it would be to determine, which servicemen and women actually require those benefits.
3. defining case

Question 28

Craig

Answer 28

1. Frat bros mad they can’t drink 3.2% beer
2. SC holds that gender-based classifications are subject to intermediate scrutiny.
3. Data in this case was not enough to prove that giving a lower drinking age limit to women would improve traffic safety.
4. did not meet IS

Question 29

IS Cases

Answer 29

1. Frontiero
2. Craig
3. US v. Virginia

Question 30

US v. Virginia

Answer 30

1. Virginia all men military school teaching “adversative method” training
2. The Court found Virginia’s law unconstitutional because the state failed to justify maintaining VMI as an all-male institution. Virginia’s claim that single-sex education fosters diversity and that admitting women would harm VMI’s unique educational method was dismissed as unproven.
3. The Court emphasized that gender-based classifications require genuine justifications, not post hoc rationalizations. Additionally, Virginia’s parallel program for women at Mary Baldwin College did not provide an equivalent experience, thus failing to remedy the constitutional violation.
   a. The proper remedy requires offering women the same educational opportunities as men at VMI.
4. did not meet IS

Question 31

Michael M. v. Superior Court of Sonoma County

Answer 31

1. Rape statue case to prevent pregnancy
2. Gov can punish males more than women because teen pregnancy mostly falls on females
   a. Thus, the law acts to equalize the deterrents.
3. Furthermore, females may be less likely to report violations if they are subject to prosecution.
4. did meet IS
5. Stereotypes

Question 32

Nguyen v. Immigration and Naturalization Service

Answer 32

1. Bastard child case
2. Gov has a legit interest in ensuring the parent-child relationship exists before granting citizenship.
   a. Women = birth establishes such a relationship.
   b. Men = need additional steps to ensure paternity.
3. Gov has an important interest in ensuring the development of a meaningful relationship between the parent and the child.
   a. Mothers = this relationship inures in the birth itself.
   b. Unwed father may not know that he is the child’s biological father. Even upon proof of paternity, the parent-child relationship may not develop sufficiently to create a traditional family environment.
4. The statute does not need to ignore the basic biological differences of men and women in such circumstances.
5. met IS
6. Biological differences (+ some inherent stereotypes)

Question 33

IS w/ Gender Classification & Remedial Purpose

Answer 33

The desire to remedy past discrimination through favorable treatment is an important government objective as long as gender classification directly serves that purpose. (Califano)

Question 34

Califano v. Webster

Answer 34

1. met IS
2. women could exclude three more low-wage years than men in order to increase their insurance benefits.
3. Reduction of the disparity in economic condition between men and women caused by the long history of discrimination is a governmental interest sufficiently important to justify a gender based classification.