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1

EPC: const basis: states

14A EPC

2

EPC: const basis: feds

5A DPC

3

EP: most basic rule

EP requires the gvt to justify when it discriminates

4

EP analysis

1) ID type of discrim
2) what's standard of review
3) apply (for tailoring, consider who is under/over included)

5

standard?: disparate impact

if facially neutral, NOT discrim, and gets RBR

6

standard?: disparate impact: exceptions

both of these ARE discrim and get SS:
1) INTENTIONAL disparate impact (must be gvt's purpose not just that they knew)
2) disrcrim APPLICATION of neutral test

7

RBR: rule

1) BOP P
2) gvt action is not rationally related to
3) any legit gvt interest
4) (can include purported/not actul interests)

8

RBR: when use

all classifications not falling under strict or intermediate scrutiny

9

age: standard?

RBR

10

disability; standard?

RBR

11

alienage? standard?

RBR if done by Congress
SS if done by states

12

RBR: result

gvt usually wins

13

sexual orientation: standard?

RBR
BUT: no legit gvt purpose (rare thing that can pass RBR)

14

intermediate scrutiny: test

1) gvt must show (BOP)
2) substantial relation
3) to an important interest
4) which must be the actual interest

15

intermediate scrutiny: when use

1) sex
2) illegitimacy

16

strict scrutiny: rule

1) gvt must show (BOP)
2) necessary (no other way) to achieve
3) compelling gvt interest
4) which is the actual interest

17

strict scrutiny: "necessary" synonyms

narrowly tailored, least restrictive alternative)

18

strict scrutiny: result

gvt usually fails

19

strict scrutiny: whe use

1) race
2) alienage by state
3) ntl origin

20

de jure segregation: def + result

segregation by law
almost always unconst, def unconst if stigmatizing

21

de facto segregation: def + result

seg by private choice (not by operation of law):
NO const problem bc no state action

22

school segregation: currently

affirmative duty to eliminate past intentional race discrim of schools (not by classifying/moving individual students based on race)

bussing constitutional for htis

23

times when racial classification may pass strict scrutiny

1) exceptional circs (race riot)
2) affirmative action

24

affirmative action: def

classification intended to benefit historically discriminated group

25

affirmative action: compelling interests

1) remedying state's past discrim
2) diversity in higher ed (only)

26

affirmative action: 1) remedying state's past discrim: how to narrowly taiilor?

benefits go to same industry where there was discrim

27

affirmative action: diversity in higher ed: how to narrowly tailor?

race can be one factor among many, no fixed weight (quotas is not narrowly tailored)

28

alienage discrim by states: test

SS (wrt resident aliens)

29

alienage discrim by states: exception

public function exception:
gvt jobs involving discretion: ok USCs only
1) police
2) gvt officials
3) pub school teachers
but NOT purely ministerial function: notary

30

alienage discrim by states: illegal aliens

RBR if based on lawful presence

31

alienage discrim by states: illegal aliens: exceptions

1) alien children: intermediate scrutiny
2) im preemption -- states can't enact own im policies

32

illegitimacy: examples

IS, usu fail (no impt gvt interest)
denying welfare, or worker's comp death benefits = both unconst

33

sex discrim: held unconst bc dn pass intermediate scrutiny

estate administration
military housing benefits
alimony
drinking age

34

sex discrim: single sex education: "rule"

single sex education (prob ok if avail for all, but no unique opportunity)

35

sex discrim: held const bc did pass IS

1) draft
2) statutory rape laws setting higher age of consent for women (actual bio basis)

36

sex discrim: general rule

more liekly to be const if based on real biological basis

less likely to be const if based on stereoypes

37

gender affirmative action: rule

IS scrutiny --> it's ok to make up for past discrim by ANYONE (dnn race/SS)

38

wealth: scrutiny?

RBR

39

domestic travel: scrutiny?

SS

40

voting: scrutiny?

SS

41

sexual orientation: scrutiny?

RBR-ish: majority has never said that passing RBR is enough to make the law ok, bc have always held that dn pass even RBR

42

sexual orientation: DOMA case

def of "marriage" and "spouse" lacked const legit purpose bc was jsust movitaved by animus which violates DP

43

sexual orientation: Marriage

EPC + DPC both protect marriage

44

privileges + immunities: 2 sources

1) 14A
2) Art 4 Sec 2
(both against states)

45

14A priv + immunities: rule

"no state shall make or enforce any law which shall bridge the P or I of citizens of the US"

46

14A P+I: scope

"citizens," so NOT corporations, not aliens

47

14A priv + immunities: rights

1) travel (interestate + move)
2) petition Congress
3) vote for fed ofices
4) assemble
5) enter pub lands

48

Art 4 P+I: rule

Art 4 S 2: "the citizens of each state shall be entitled to all privielges and immunities of citizens in the several states"

49

Art 4 P+I: aka

comity clause

50

Art 4 P+I: def

prohibits states from discriminating against nonresidents, re activities fundamental to the national union

51

Art 4 P+I: test (+ gloss)

substantial relation to substantial state interest

(desire to favor locals is NOT a substantial interest)

52

Art 4 P+I: scope

"citizens" -- no corps, no aliens

corps can protect against oos discrim by DCC

53

Art 4 P+I: held INVALID

1) commercial licenses (fee higher)
2) commuter tax only for nonresidents
3) abortion (only locals)
4) hiring preference (all or private ers)

54

Art 4 P+I: held VALID

1) recreational licenses
2) state's purpose is preserving in-state nat resources

55

contract clause: rule

Art 1 S 10: "No state shall...pass any...law impairing obligation of contracts"

56

contract clause: scope

1) state only not fed ("no state")
2) legislation only not court decs ("pass any law"
3) only existing ks!

57

contract clause: test

to decide if can modify the existing k, bal:
1) severity of impairment of k right, vs
2) importance of public interest

58

contract clause: result

state can usu modify ks, but less likely if state trying to get out of its own k

59

ex post facto laws: scope

against states AND fed

60

ex post facto: kinds prevented

1) new crime
2) more punishment
3) less evidence needed to convict
4) longer limitations period AFTER EXPIRATION

61

ex post facto: kinds prevented: less evidence needed: dx

(ok quasi procedural)
but making a broader inadmissibility standard does not violate EXPF clause

62

bills of attainder: scope

against states and fed

63

bill of attainder: def

1) legislation
2) that punshes
3) w/o trial
4) named indivs, or readily identifiable group
5) for past conduct

64

bill of attainder: example

YES a bill of attainder where made crime for communist to be officer of labor union (was like punishment)