Kaplan Pgs 132-139 Equal Protection

Question 1

What to amendments apply to equal protection?

Answer 1

The 14th amendment that says that no state can deny any person in its jurisdiction the equal protection of the laws, as well as the due process clause of the fifth amendment

Question 2

When is the equal protection clause triggered?

Answer 2

When people that are similarly situated are treated differently

Question 3

What are the three standards of review under the equal protection clause?

Answer 3

– Strict scrutiny
– intermediate scrutiny
– rational basis

Question 4

Under strict scrutiny the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. What does the word “necessary“ mean?

Answer 4

There is no less restrictive alternative means available. This requires a very close fit between the means in the end

Question 5

When strict scrutiny is the standard, does the government usually prevail?

Answer 5

No. The government usually fails to prove its burden under the standard, so an equal protection challenge to a law is generally successful and that means the law is presumptively invalid

Question 6

Under the intermediate scrutiny standard, the burden of persuasion is on the government to show that the measure that is being challenged is substantially related to an important government interest. In this context, what does substantially related mean?

Answer 6

An exceedingly persuasive justification has to be shown.

Question 7

Is intermediate scrutiny closer to strict scrutiny or rational basis?

Answer 7

Much closer to strict scrutiny

Question 8

Under the rational basis standard, the burden of persuasion is on the plaintiff to show that the measure being challenged serves no legitimate government interest or is not rationally related to a legitimate interest. In this context, what does rational relationship mean?

Answer 8

That the law cannot be arbitrary or unreasonable

Question 9

Under the rational basis standard of review, do challenges usually prove successful?

Answer 9

No. Mostly any police power regulation that for there’s a health, safety, or welfare purpose is found to be legitimate and the law is upheld

Question 10

What kind of things fall under the rational basis classification in equal protection?

Answer 10

Any classification that doesn’t fall under strict or intermediate scrutiny. This includes age, poverty, wealth, disability, the need for necessities of life like food/shelter/clothing/medical care, etc.

Question 11

What must be shown to trigger a strict scrutiny or intermediate scrutiny analysis under equal protection?

Answer 11

Purposeful discrimination/crematory intent

If the law facially discriminates, that means that its language creates distinctions between classes of people, like white, or male. This very clearly has a discriminatory intent.

But if the law appears neutral on its face, yet its application has a disproportionate effect, strict scrutiny or intermediate scrutiny is only used if the court can find a discriminatory purpose

If a facially neutral lot is applied in a discriminatory manner, as long as the plaintiff can show a discriminatory purpose, it will be invalidated

Question 12

What are the different suspect classifications under equal protection?

Answer 12

– Strict scrutiny
– intermediate scrutiny
- rational basis

Question 13

What are the classifications that apply to each of the suspect classifications for equal protection?

Answer 13

• strict scrutiny: race, alienage, national origin, domestic travel, voting (suspect classifications)
  – intermediate scrutiny: illegitimacy, gender, undocumented alien children (quasi-suspect)
• rational basis: age, some alienage, disability, sexual orientation, wealth, all else

Question 14

Why was a state law that prohibited interracial marriages held to be unconstitutional?

Answer 14

Because it wasn’t necessary to achieve a compelling state interest under the strict scrutiny standard for equal protection that is applied to a race classification

Question 15

Classifications based on race, alienage, and national original are presumptively what?

Answer 15

Invalid unless there’s a showing by the state that the measure is necessary to achieve a compelling state interest

Question 16

Deliberate de jure segregation does what?

Answer 16

Violates equal protection

Question 17

What kind of things are included in deliberate de jure segregation that would violate equal protection?

Answer 17

– Plans to hinder desegregation by doing something like closing all public schools
– giving public aid to private segregated schools in the form of tuition grants or exclusive use of public facilities

Question 18

Why would court-ordered busing be constitutional?

Answer 18

If it is implemented to remedy past discrimination in a particular school system, instead of to attract non-minority students from outside districts to achieve integration. This is a temporary measure that must be terminated once the vestiges of past discrimination have been eliminated

Question 19

When defining the borders for new election districts, what is OK to base it on and what is not?

Answer 19

– OK: contiguity, compactness, community interest

– not OKAY: race being the predominant factor

Question 20

Generally, state laws that discriminate aliens are held to be what?

Answer 20

Unconstitutional.

Question 21

What are some things that a state law cannot do because it would discriminate against aliens and that is a suspect classification that would not meet equal protection?

Answer 21

– Prohibit aliens from owning land
– deny commercial fishing licenses to resident aliens
– exclude financial assistance for higher education to aliens

Question 22

What is involved in a government function test that applies to discriminating against aliens?

Answer 22

States can discriminate against aliens in activities where participation in the functioning of government is involved. This means that for jobs like police officers in public school teachers, the government can require that the people who hold those jobs are citizens because someone like a teacher influences the student’s view toward the government and the political process

Question 23

What is the standard that is applied to undocumented aliens?

Answer 23

Rational basis

Question 24

What have the courts found with regard to undocumented immigrant children being able to attend public school?

Answer 24

That they have a right to free education. The courts have used a stringent version of the rational basis scrutiny test to say that discriminating against these children can hardly be considered rational unless it furthers some substantial goal of the state

Question 25

State laws that discriminate against aliens have to meet strict scrutiny, but what about federal laws that discriminate against aliens?

Answer 25

These are not subject to strict scrutiny because Congress has broad plenary power to regulate immigration

Question 26

Why are classifications that favor legitimate children and disfavor illegitimate children generally struck down?

Answer 26

Because there’s an overriding government interest not to punish the offspring of an illicit relationship

Question 27

What are examples of times that the court struck down state laws that disfavoured illegitimate children?

Answer 27

These laws were held invalid: – a law that didn’t allow illegitimate children to maintain a wrongful death action – one that didn’t allow illegitimate children to share equally with other children in Worker’s Compensation death benefits – one that didn’t allow illegitimate children to get welfare benefits

Question 28

Why has the court been more lenient in applying the intermediate standard of scrutiny to illegitimacy under federal law under state law?

Answer 28

Because it claims that the power to do something like grant immigration preferences to legitimate children is within Congress’ plenary power to regulate immigration

Question 29

What is the difference between invidious and benign classifications under equal protection?

Answer 29

– invidious: intended to harm | – benign: intended to help or to remedy past discrimination

Question 30

What kind of discrimination is required to trigger middle tier scrutiny?

Answer 30

Intentional or purposeful discrimination. Discriminatory effect alone is not sufficient

Question 31

What are some examples of laws that have been struck down because they unlawfully discriminate based on gender under the equal protection clause?

Answer 31

– A state law that gives preference to men over equally qualified women to be administrators of estates – a state law that discriminates in military benefits to service women – A state law that authorizes alimony payment on divorce only to women and not to men – a state law that allows an unwed mom but not an unwed dad to block the adoption of their child – excluding men from state nursing schools

Question 32

In some cases, why are laws that discriminate against men upheld?

Answer 32

If they are substantially related to the achievement of an important government interest. Ie: statutory rape laws that only punish the male and not the female are upheld because they further the important state interest in preventing pregnancy

Question 33

What is the standard that is held to affirmative action measures?

Answer 33

Strict scrutiny

Question 34

What are the only circumstances where affirmative action measures will be upheld?

Answer 34

– when they are remedying the effects of past or present discrimination in a particular institution – when they are achieving a diverse student body in an institute of higher education

Question 35

A school district cannot assign individual students to schools based on their gender in order to achieve racial balancing when what?

Answer 35

The segregation is caused by social factors and not past or present government discrimination

Question 36

In what circumstances can a school district carry out voluntary racial balancing?

Answer 36

By structural measures like re-drawing school zones or building new schools

Question 37

What is the standard that affirmative action based on gender has to pass?

Answer 37

Only intermediate scrutiny. I.e.: Social Security statutes and tax exemptions that entitle women to greater benefits have been upheld

Question 38

What would be the reason that a navy discharge procedure that required men that were denied promotion twice to be automatically discharged but did not require this for women would be upheld under equal protection?

Answer 38

Because in the past men been given greater promotional opportunities than women

Question 39

What is the standard of review that is subjected to minority set-asides/affirmative action established by state or local governments for construction projects where there is a program that makes a fixed percentage of publicly funded money be given to minority owned businesses?

Answer 39

Strict scrutiny review that is nearly tailored to justify a compelling interest

Question 40

Remedying past discrimination in a particular government institution is usually viewed as what?

Answer 40

A compelling interest

Question 41

If the government is attempting to remedy general societal injustice through affirmative action, is that OK?

Answer 41

No, it is only OK if it is remedying past discrimination in a particular government institution

Question 42

Is discrimination by private employers subject to equal protection review?

Answer 42

No