Equal Protection Tiers of Scrutiny Flashcards
The Fourteenth Amendment
“No state shall deny. . . to any person the equal protection of the laws.”
Brown v. Board of Education (1954)
Case Facts: The court found that states denied equal protection by failing to provide equal education opportunities for black people that were available for white people.
Majority: Separate, but equal was impermissible in the realm of public education.
Significance: Overruled Plessy. Ushered in the modern era of Equal Protection analysis, paving the way for the Equal Protection Clause to be used to combat discrimination and to protect fundamental rights.
Equal Protection Clause Analysis
“Whether the government’s classification of individuals under the law is justified by a sufficient purpose.”
Depending on the classification, different levels of scrutiny will be employed to decide whether the classification is constitutional: strict scrutiny, intermediate scrutiny, and rational basis review.
Three step analysis:
(1) What is the classification?
(2) What is the appropriate level of scrutiny?
(3) Does the governmental action survive the appropriate scrutiny?
EPC Analysis: Step 1 - Classification
Two basic ways to arrive at the solution:
(1) Look for facial classifications, which are found in the text of the law. Ex: only white men may serve on juries; only those aged 16 and older are eligible for driver’s licenses. The greatest concern arises when the classification involves immutable characteristics - those things we cannot change about ourselves.
(2) Some laws are facially neutral, but there is a discriminatory impact from the law or there are discriminatory effects of its administration. Ex: a law requiring police officers to be over 5’10” includes at least half of men, but very few women. It’s facially neutral, but has a discriminatory gender-based impact.
- Discriminatory impact alone is insufficient to prove a race or gender classification. If a law is facially neutral, demonstrating a potentially improper race or gender classification requires proof that there is some discriminatory purpose behind the law.
EPC Analysis: Step 2 - Level of Scrutiny
Strict: Discrimination based on race or national origin is subjected to strict scrutiny. Under strict scrutiny a law must be proven to be necessary (narrowly tailored) to achieve a compelling government purpose. The government has the burden of proof to show that it cannot achieve its goals through any less discriminatory purpose.
Intermediate: Intermediate scrutiny is most notably used for discrimination based on gender. Under IS, a law is upheld if it is substantially related to an important government purpose. A court need not find the government’s purpose compelling, but it must be important. The means used by the law need not be necessary, but they must bear a substantial relationship to the ends being sought. The burden of proof remains on the state.
Rational basis review: RBR is the minimum level of scrutiny that all laws must meet. Under RBR, a law will be upheld if it is “rationally related to a legitimate government purpose.” The government’s ends need not be compelling or important, and the means need not be necessary or substantially related to the end. We are simply looking for a legitimate end and rational means. And the challenger (aka not the government) bears the burden of proof under RBR. It is enormously deferential to the government, and only rarely to courts declare laws unconstitutional for failing to meet this level of review.
Note:
Immutable characteristics - race, gender, national origin, and marital status of one’s parents warrant heightened (strict or I) scrutiny.
A history of discrimination against the group is relevant.
EPC Analysis: Step 3 - Does the Gov’t Action Survive the Level of Scrutiny
In determining constitutionality under the EPC, the court looks at both the ends and means.
Strict scrutiny = must be a very close fit
Intermediate scrutiny = a close fit still is necessary, but it is a bit looser
Rational basis review = a very loose fit is necessary
Plessy v. Ferguson (1896)
Case Facts: A Louisiana statute required “separate, but equal” facilities for people who were white and people who were black.
Majority: No constitutional problem with race-based segregation.
Loving v. Virginia (1967)
Case Facts: This was a challenge to VA’s anti-miscegenation law, a statute that prohibited interracial cohabitation and marriage.
Majority: Not only was there a classification, but the court also found an invidious/discriminatory motive behind the law and struck it down.
Non-Facial Race-Based Cases
The court has held that there must be proof of a discriminatory purpose IN ADDITION TO discriminatory impact in order for such laws to be subjected to heightened scrutiny.
Example: Yick Wo v. Hopkins (1886). Involved a facially neutral law administered in a discriminatory fashion. A San Francisco ordinance required that laundries be located in brick buildings unless a waiver was obtained via petition. The law was racially neutral, but its application was not Over two hundred petitions filed by Chinese-Americans had been denied, and all but one of the petitions filed by non-Chinese-Americans was granted.
Those facts established a pattern of administration that was directly discriminatory against a class of people based on national origin that was ruled illegal.
Washington v. Davis (1976)
Case Facts: Applicants for the Washington, D.C. police force were required to take a test to get the job, and statistics revealed that black people failed the test at a much higher rate than white people. Plaintiffs argued that the test was unconstitutional because it meant that black individuals didn’t receive the job as often as white people.
Majority: Court rejects this argument and says discriminatory IMPACT is not enough. It’s relevant, though. Laws that are facially neutral as to race and national origin will be stricken/receive heightened scrutiny only if there is proof of a discriminatory purpose (in addition to impact).
Regents of the University of California v. Bakke (1978)
Case Facts: The University of California-Davis Medical School had designed a special admissions program to assure the admission of certain minorities. Bakke, a white man, challenged this system, claiming that the admissions program violated the Equal Protections Clause.
Majority: The university put forward many arguments, all of which the court rejected except - it would be constitutionally permissible to employ some sort of race-based admission program in order to achieve a diverse student body. The court accepted that argument, but found that the university did not meet its burden of proof in that regard. Race can be a factor in admissions, but not the factor. Court found the UC-Davis model to be unconstitutional.
Affirmative Action/Race-Based Admission Programs
Are constitutional to the extent that they are trying to achieve diversity in education and using race as ONE factor but not THE factor that determines admission.
Bowser Notes:
Strict Scrutiny will be applied whenever state or local governments use race as a factor in contracts or licenses without regard to whether the use is benign or invidious
A. Remedying past, general, societal discrimination is NOT a “compelling interest.”
B. Remedying demonstrated past discrimination in a part of government is a compelling interest and using race to address the demonstrated discrimination in that part of the government is narrowly tailored to that end.
Bradwell v. Illinois (1873)
Upholding a law that prohibited women from becoming licensed to practice law.
Craig v. Boren (1976)
Case Facts: An Oklahoma law allowed women to buy 3.2% alcohol “near beer” at age 18; men could not do so until age 21.
Majority: The court declared the law unconstitutional using IS.
United States v. Virginia (1996)
Case Facts: A challenge to the all-male Virginia Military Institute.
Majority: The exclusion of women by VMI is unconstitutional. The court used IS.
