Facial Race Discrimination/ Discriminatory Impact Race Discrimination/ School De- Segregation / Affirmative Action

Question 1

What happens when the government classifies by race on its face?
(Facial Racial Discrimination)

Answer 1

FACIAL CLASSIFICATION GETS STRICT SCRUTINY

Question 2

Plessey v. Feurgeson

Answer 2

Separate but equal facilities do not violate equal protection

• Separate but equal is constitutional

(was dealing more with equal treatment than equal outcome)

Question 3

Brown v. Board of Education

Answer 3

• Even Separate but equal is not constitutional
• No longer care about equal treatment but concerned with EQUAL OUTCOMES
• LOOK FOR EQUAL OUTCOMES AFTER BROWN V. BOARD OF EDUCATION

Question 4

Strict Scrutiny Test

Answer 4

•Means have to be narrowly tailored or necessary or no lessor discriminatory way to achieve a compelling government interest

Question 5

About Strict Scurinty

Answer 5

• Burden is on the government
  (vast majority falls under strict scrutiny)
• If means have to be necessary or no lessor discriminatory way, if anyone can come up with a way that government can achieve its goal w/o using race, then it fails

(P can show that there is another way to achieve its goal w/o using race)

Question 6

Ways to argue against Strict Scrutiny

Answer 6

1) there is a lessor discriminatory way to achieve its goal
2) its over inclusive
3) its under inclusive
4) the governments end is not compelling

Question 7

dejurie segregation

Answer 7

• Can use racial means to desegregate in laws
• REMEDY OWN PRIOR ILLEGAL DISCRIMINATION BY RACE is a compelling state interest and is narrowly tailored to achieve the government interest so passes SS.
• Problem was by race, only way to solve problem is by race, courts can do this

Question 8

Defacto Segregation

Answer 8

• Courts cannot use race based measures to overcome defacto segregation
• Was in North, ex: giving loans to only whites to make certain areas
• problem because no state actor, not own prior illegal discrimination

Question 9

Difference b/w dejurie and defacto segregation

Answer 9

• courts CAN order race based desegregation remedies to overcome dejuire segregation
• but courts CANNOT use race based measures to overcome defacto segregation

Question 10

What happens when facially neutral government action but disproportionate outcome?

Answer 10

• When government action is racially equal/ neutral you are not going to activate SS only RBR
• only considered by equal treatment principle, if everyone is treated equally even if unequal outcome only applies RBR

Question 11

Arlington Heights Factor

Answer 11

-If racially neutral law but want to show intent and amp up the review from RBR to SS

1) P looks to CIRCUMSTANTIAL evidence (look at data and numbers)
- P is trying to show Prima Facie case of discrimination

2) If P can make a prima facie case that race based discrimination was the purpose, then government can show that race neutral decision
3) If D does that, then P can show discrimination again by PRETEXT (government stated neutral reason but really discrimination was the purpose)

Question 12

Affirmative Action

Answer 12

• Gets Strict Scrutiny
• State may use race based discrimination to overcome OWN PRIOR ILLEGAL DISCRIMINATION so long as it is narrowly tailored and no lessor discriminatory way to achieve government interest (de jurie)

Question 13

What to look for to show racial intent in Arlington Heights

Answer 13

1) look at the actual outcome
2) look at the history
3) look at the sequence of events (is there any monkey business going on)
4) minutes of reports or meetings etc

Question 14

If P can prove racial intent in Alrington Heights what happens?

Answer 14

• If P proves that racial intent in neutral law then shifts test towards Strict Scrutiny. Still have to proof fails under Strict Scrutiny

Question 15

Affirmative Action if on race

Answer 15

• Gets Strict Scrutiny

Question 16

If Affirmative Action on geography

Answer 16

• gets RBR

Question 17

Can Affirmative Action be past and forward looking?

Answer 17

Yes

• Past to remedy for OWN PRIOR ILLEGAL DISCRIMINATION
  (a) has to be govt own action
  (b) has to be illegal
  (c) has to be discrimination

-Forward looking: for the compelling government interest of intellectual diversity in higher education

Question 18

Forward looking Affirmative Action.

What can have and what cannot have

Answer 18

Forward looking for the compelling government interest of intellectual diversity in higher education

• Fitness for Higher Education
  1) no quotas
  2) no raw point system to grant points by people on their race
  3) CAN use race as one of several different factors to achieve racial diversity in higher educations

(must be range of factors

• GPA
• Geography
• Income
• Test Scores
• Race