Equal protection Flashcards
Level of scrutiny for race
As of Loving v. VA racial terms now trigger strict scrutiny
Is de jure or re facto discrimination required for strct scrutiny?
Strict scrutiny is triggered only by a showing of de jure (by law)discrimination.
When is De Jure discrimination shown?
- Term: race is used as a term in the statute
- Administration: there is evidence that the policy is not applied evenly
- Purpose: When there is a showing of intent to discriminate by race.
Washington v. Davise
Adoption of Test 21 for police hiring
Knowledge of disparate impact is not purpose to discriminate.
intention by knowledge, like in torts, is not applied here
When will the court consider statistics in finding De Jure discrimination by admiration
Basically needs to have facts like Yick Wo
degrees of underrepresentation as de jure discrimination
If a discrepancy is sufficently large, then it is unlikely that it is due soley to chance or accident, & w/o evidence to the contrary, once must conclude that race is a factor
De Jure as to purpose
This is inconsistant though. A panel of 11 white people and 2 blacks in Philly wasn’t enough.
Parents involved
Statutes can not use racial catagories to remedy de facto segregation, only remedial use is permitted.
“If the schools segregate de jure then you can desegregate de jure” -L.
Under incusion
claim that a statute is underinclusive means that not all members of the class causing the harm at which the statute is aimed are regulated.
Why aren’t you regulating them? They’re as bad as I am.
Over inclusion
Overinclusion means that a party that is regulated is not part of the class causing the harm.
Why are you regulating me? I’m not the problem.
When is a staute allowed to be over or under inclusive
rational basis but unconstitutional in all levels of scrutiny
How may the gov’t fail rational basis
- The government’s interest may be deemed not to be legitimate
- the means pursued may be irrational
Review for sex based discrimination
At least intermediate scrutiny. Must be Substantially related to achievement of important state objective. Closer to strict scrutiny than to rational basis review.
Real differences
For purposes of legal analysis race does not exist, but physical differences between sexes does but must be biological. There can also be discrimination to remedy prior discrimination against woman.
