Equal Protection

Question 1

FRAMEWORK for EQUAL PROTECTION ANALYSIS

What is the framework for analyzing an equal protection issue?

Answer 1

Equal protection is implicated whenever the gov’t draws DISTINCTIONS AMONG people

3-part framework/analysis…

STEP #1) DETERMINE: What is the CLASSIFICATION?
→ Determine how the gov’t is drawing a distinction among people
→ The existence of a classification is PROVEN EITHER:
(i) Facially: The classification exists on the face of the law itself; OR
(ii) By showing discriminatory IMPACT AND PURPOSE: for a facially neutral law, MUST show BOTH discriminatory impact and purpose/intent
→ example: A police officer admission test that had a discriminatory impact on admitting black officers was constitutional b/c no showing of discriminatory intent

STEP #2) Determine what level of SCRUTINY should be applied?

Strict Scrutiny =
“Law must be necessary to achieve compelling gov’t purp”
• Race • National origin • Alienage - generally

Intermediate Scrutiny =
“Law must be substantially related to imp. gov’t purpose”
• Gender • Illegitimacy • Undocumented alien children

Rational Basis Test =
“Law must be rationally related to a legit gov’t interest”
• Alienage classifications related to self gov’t and the democratic process (voting, jury duty, becoming teacher, cop, or probation officer)
• Congressional regulation of aliens
• Age • Disability • Sexual Orientation • Economic regs
• Wealth (Poverty is NOT a suspect classification)
• All other classifications

STEP #3) Does the law MEET the req’d level of scrutiny?

Question 2

Whichclassifications must meet strict scrutiny under equal protection?

Answer 2

Classifications implicating…
1) Race (both benefiting and discriminating)
• Numerical set-asides require CLEAR proof of past
discrimination
• Law mandating that a black officer be hired or promoted
EVERY time a white officer was as a remedy for past proven discrimination was held to be constitutional
• Race can be a “factor” in HIGHER edu admissions
• Discriminatory use of peremptory challenges based on
race denies equal protection

2) Alienage/national origin by STATE gov’ts NOTE: certain privileges may be reserved JUST for ciztizens (voting; serving on a jury; being a police officer; public school teacher; probation officer; BUT NOT notary publics)
• BUT Strict Scrutiny was used to STRIKE DOWN:
(i) Welfare benefits to citizens only (not allowed)
(ii) Only citizens for civil servant jobs (not allowed)
(iii) Only citizens for entry to legal Bar (not allowed)

NOTE: When it is CONGRESS and NOT the states that are discriminating against aliens, it need only meet RATIONAL basis

3) Travel (BUT not int’l travel)
4) Voting

Question 3

Whichclassifications must meet intermediate scrutiny under equal protection?

Answer 3

Classifications implicating…
1) Gender
IMPORTANT: USE THIS slightly different Intermediate Scrutiny Test Wording:
• “The gov’t can discriminate ONLY if there is an exceedingly persuasive justification”
Classifications BENEFITING women:
(i)based on ROLE stereotypes will NOT be allowed; BUT (ii) designed to REMEDY past discrimination in opportunity WILL be allowed
• example: Soc. Sec. admin allowed to use different formula for calculating benefits for women to remedy m/f wage disparities
• BUT not allowed to have survivor benefits or alimony for women only

2) Illegitimacy (non-marital children)
Laws that deny benefits to all non-marital children, BUT grant such benefits to all marital children are unconst

3) Undocumented alien children

Question 4

Whichclassifications must meet rational basis under equal protection?

Answer 4

Classifications implicating all other classifications arer subject to a rational basis justification only like…
1) Age discrimination 2) Disability discrimination(rational basis w/ bite) 3) Wealth discrimination 4) Gov’t economic regulations 5) Sexual orientation discrimination (rational basis w/ bite)

Question 5

What are the Constitutional provisions concerning equal protection?

Answer 5

1) The equal protection clause of the 14th A. applies only to STATE and LOCAL governments
• REMEMBER the 14th A. NEVER applies to the FEDERAL Gov’t!

2. Equal protection is applied to the federal government through the due process clause of the 5th A.
   • NO constitutional provision states that the gov’t cannot deny equal protection BUT the DUE PROCESS clause of the 5th A. has been held to include equal protection

Question 6

What are the 4 points to know regarding race-based admissions at colleges and universities?

Answer 6

1) Colleges and Universities have a compelling interest in having a diverse student body
2) Colleges and Universities cannot use set-asides or quotas
3) Colleges and Universities may use race as a factor in admissions BUT only if no race neutral alternative exists
4) Colleges and Universities may not add points to admissions scores solely on the basis of race