Equal Protection

Question 1

Equal Protection

Answer 1

No EP in Court until 14th Amendment, which contains EPC to protect former slaves from states; EP applies to FEd by way of DPC of 5th Amendment (5th has implicit “EPC”).

Question 2

Race and National Origin Classification

Answer 2

Racial or Nacial origin discrimination is subject to strict scrutiny; alienage discrimination also subject to Strict Scrutiny (unless its a federal law/govt); law upheld if proven necessary to achieve a compelling govt purpose and no alternatives; burden of proof on govt

Question 3

Gender/Non-Marital Children

Answer 3

Gender/Non-marital children get intermediate scrutiny: law upheld if substantially related to important government purpose. (i.e min driving age. Burden on challenger)

Question 4

Immutable Characterstics

Answer 4

Vulnerable in political process
Discrete/insular minorities
Whether dealing w/ fundamental rights (if Fundamental Right, govt infringements subject to Strict Scrutiny. If not, then only RB applies)
History of discrimination

Question 5

Does govt meet level of scrutiny

Answer 5

Must not be overinclusive/underinclusive

Question 6

Rational Basis application

Answer 6

Age, disability, poverty, sexual orientation.
Law has a legit purpose if it advances safety, public health or public morals
Will pass as long as its not completely arbitrary.
If there are plausible means for Congress’ action, the court’s inquiry ends

Question 7

Rational basis laws that won’t pass

Answer 7

Any law that is passed to attack a group, or grew out of hatred or prejudice
Any law that makes it more difficult for one group to seek aid from the govt
Cannot circumscribe a class characterized by some unpopular trait

Question 8

Over/Under Inclusiveness

Answer 8

Significantly over- and underinclusive laws are allowed

Question 9

RB and Mental Handicap

Answer 9

No heightened scrutiny because they arent really politically powerless (family and friends lobby)
laws are struck down if based on fear and prejudice

Question 10

Race and National Origin- Strict Scrutiny

Answer 10

Law struck down unless it is necessary to achieve a compelling government purpose and is narrowly tailored.
{Palmore} The constitution cannot control private prejudices, but it cannot give them effect either. (giving into irrational fears and racism only perpetuate racism)

Question 11

Racial and national origin analysis

Answer 11

1. First, ask if the classification exists on the face of the law.
2. Facially discriminatory laws are subject to strict scrutiny
3. If facially neutral, then the law will be struck down if there is a discriminatory impact and a discriminatory purpose.

Question 12

5 ways to prove discriminatory purpose

Answer 12

1. Whether the impact bears more heavily on one race
2. Historical Background of decision
3. Specific sequence of events leading up to decision
4. Departures from normal procedural sequence
5. Legislative History

Question 13

Affirmative Action Laws

Answer 13

Schools cannot use quotas, but may use race as one factor in admissions decisions to enhance diversity. They have a compelling interest in diverse student bodies. (point systems aren’t narrowly tailored enough)
Laws are justified when they remedy past discrimination
May have to use race neutral measures first.
Evidence of past discrimination in industries have weight.

Question 14

Gender Classifications

Answer 14

Recieves Intermediate Scrutiny
-Substantially related to an important government purpose.

Speed and efficiency aren’t enough to meet IS

Govt has heightened level of proof: exceedingly persuasive justification

Question 15

Women Immutable Characteristics

Answer 15

Women have immutable characteristics: history of oppression against women, classifications based on stereotypes (but women do have political power and they are a majority)

Question 16

Classifications benefiting women

Answer 16

Even if a legitimate interest cannot be based on stereotypes and should not perpetuate them either.
Laws to deter teenage pregnancy can’t punish women
Govt can do male only selective service b/c its the govt’s duty to raise and support armies
Gender classification for biological differences may be allowed

Question 17

Alienage Classification exceptions

Answer 17

2 Exceptions to the rule that strict scrutiny applies to alienage classifications:

(1) Fed govt needs to only meet rational basis for such classifications (b/c of plenary powers over immigration)
(2) States must only meet rational basis when the statute relates to self-government and democratic process (got jobs, voting, etc)

Question 18

Alienage

Answer 18

Immigrants are a discrete and insular minority, suffer from fear based prejudices, and have absolutely no political power =SS
States have legit interest in preserving fiscal integrity and may limit expenditures, but cannot do this through invidious discrimination among classes.
States have interest in self-govt, police.
States may require citizenship to be probation officer
States can require teachers to be citizens or (or those intending to be)
Saving money is okay for RB
If classification is made by agency regulation, then RB doesnt apply

Question 19

Alienage & Education

Answer 19

States may not deny free public education undocumented immigrant children b/c they have no choice in coming to the US.
Education isn’t a fundamental right

Question 20

Non Marital Children

Answer 20

Intermediate Scrutiny
They have immutable characteristics, suffer from social stigma based on irrational predjucies, but “no badge of illegitimacy”

Question 21

2 Principles of Non Marital Children

Answer 21

1. Laws that provide benefit to all marital children, but not to non-marital children (distinctions on face) are always declared unconstitutional
2. Laws that provide benefits to SOME non-marital children, while denying them to others, are evaluated on case-by-case cases under IS.

Question 22

Other Classifications

Answer 22

Age (age is discrete or insular, lots of political powers, no history of discrim)
Disability-rational basis
Wealthy-rational basis
Wealth- poverty not suspect. Only RB unless it relates to fundamental rights
Sexual orientation