Gender

Question 1

Reed:

Answer 1

(stricter) RB test: gender classification must not be arbitrary; must have rational basis - st objective
i) “rational” for gender means something different (must be more rational) than other types of discrimination
b) F: law preferring males to females for being estate administrators–>uncon’l
c) Rational that men were more apt for business due to historical social bias (women not in business)traditional RB test would have upheld proxy (NOLA case, Lee Optical), but court says its arbitrary–>stricter (quasi) RB test

Question 2

Frontiero:

Answer 2

Should sex discrimination be treated like race discrimination (SS; suspect)?

i) F: plurality invalidated law requiring wives prove husbands were dependent for allowance, as opposed to men
b) liberal wing: sex = suspect classification (SS)
i) (failed) Equal Rights amendment as ev of changing norms
ii) EP Clause not about minority classification, but about historic oppression, lack of political power based on immutable characteristics
c) conservative wing: not a suspect classification; Reed RB test
i) (failed) Equal Rights amendment as ev of deference to political process
ii) EP Clause for minorities (tyranny of majority)women not a minority and should engage politically

Question 3

Craig:

Answer 3

INTERMEDIATE SCRUTINY: classification by gender must serve important gov’tal objectives and must be substantially related to achieving objectives (problem: intermediate can mean almost SS or almost RB or anywhere in betweenhistory shows us that it more near SS)

i) even if there is some statistical validity, it must be enough to justify discrimination
ii) Intent matters (think Feeny)
b) F: females could buy 3.2% alc at 18, males - 21; statistical ev males marginally more risk for DDinvalid
c) dissent: should be RB analysis; any statistical validity give RB
d) Reason for IS and not SS: problem of dilution: separate bathrooms, draft, dorms were taken as givenat that point, “compelling interest” SS = fatal in fact so didn’t want to lower SS for race by allowing these to pass SS

Question 4

VMI case:

Answer 4

IS + exceedingly persuasive justification (must be actual – not hypothetical and not invented in response to litigation)generalizations will not suffice for sex discrimination (even if empirically valid); must make individualized determination of person’s capacity (no gender proxy)

a) F: justification for not admitting females (adversative approach, privacy, female counterpart)even if generalizations true, not exceedingly persuasive since estimates valid generalization no long justify gender proxies
b) valid Proxy justification: more likely that this form of education will benefit men (can handle it) (i.e. age proxy for pilots because of vision)
i) Assuming proxy is statistically valid, must have individualized determinations due to heightened scrutiny (and also because unlike vision (biologically determined), proxy validity may be because of history/society

c) Hypos:
i) Billionarie woman whose all-female education helped her, wants to giv $5 bil for VA to stary all-female state schooleven assuming no male counterpart, could justify under Craig by saying historically, sex discrimination oppressed females and this makes it harder for women to pursue careers now
ii) Harder case: mirror image of VMI except for women
iii) since data supporting view of separate sex education as valuable for : middle school > high school > higher edeasier case for middle school
iv) Separate but equal applicable to sexif so, is because SoR is lower or because data is favorable (more justification)