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Conlaw II > Equal Protection > Flashcards

Equal Protection Flashcards

1
Q

constitutional prongs

EQUAL PROTECTION

A
  1. EP clauses of 14th amendment, applies only to state and local gov
  2. EP is applied to fed gov through DP clause of 5th amendment
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2
Q

general basis

EQUAL PROTECTION

A

whenever gov draws distinction between people = there is a basis for EP claim

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3
Q

approach

EQUAL PROTECTION

A

all EP Qs/cases can be broken down into 3 steps
1. what is the classification?
= how is the gov drawing distinction btwn people
2. what is the level of scrutiny?
3. does the gov action meet the level of scrutiny?

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4
Q

scrutiny

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

strict scrutiny

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5
Q

facially discriminatory

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

= law in its very terms draws a distinction between people based on race/national origin

EXAMPLES

  • only white males can be jurors
  • school segregation laws
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6
Q

facially neutral

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

requires demonstrating BOTH

  1. discriminatory impact AND
  2. discriminatory intent

EXAMPLE
discriminatory use of preemptory challenges based on race = unconstitutional

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7
Q

classifications benefitting minorities

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

strict scrutiny still used, whether classification is invidious or benign

EXAMPLES

  1. diversity quota/set-asides
  2. affirmative action
  3. school desegregations
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8
Q

school desegregation

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

use of race in assigning students to elementary and high schools must meet strict scrutiny

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9
Q

scrutiny

GENDER CLASSIFICATIONS

A

EITHER modified intermediate scrutiny OR rational basis review

EXCEPTION = discriminatory law benefiting women

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10
Q

facially discriminatory

GENDER CLASSIFICATIONS

A

= law in its very terms draws a distinction between people based on gender

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11
Q

facially neutral

GENDER CLASSIFICATIONS

A

requires demonstrating BOTH

  1. discriminatory impact AND
  2. discriminatory intent

EXAMPLE
discriminatory use of preemptory challenges on basis of sex = unconstitutional

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12
Q

scrutiny for classifications benefitting women

GENDER CLASSIFICATIONS

A

intermediate scrutiny used

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13
Q

types of classifications benefitting women

GENDER CLASSIFICATIONS

A

more specific rules for gender classifications benefitting women

  1. based on role stereotypes = not allowed
  2. designed to remedy past discrimination or differences in opportunities = will be allowed

EXAMPLE
AL law that women get alimony, men don’t = not allowed

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14
Q

definition

ALIENAGE CLASSIFICATIONS

A

= laws that discriminate against non-US citizens

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15
Q

scrutiny

ALIENAGE CLASSIFICATIONS

A 
generally, strict scrutiny used
BUT 3 exceptions where court has used less than strict scrutiny
1. political function
2. federal law
3. undocumented alien kids
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16
Q

political function

ALIENAGE CLASSIFICATIONS

A

only rational basis test used for alienage classification IF
related to self-government or democratic process
= gov can discriminate against non-citizens with regard to
1. voting
2. serving on a jury
3. being a judge, police officer, teacher, or probation officer

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17
Q

federal law

ALIENAGE CLASSIFICATIONS

A

only rational basis review for congressional discrimination against aliens (like ICE) because fed gov has plenary power over immigration

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18
Q

undocumented alien children

ALIENAGE CLASSIFICATIONS

A

appears intermediate scrutiny review for discrimination against undocumented alien children

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19
Q

definition

LEGITIMACY CLASSIFICATIONS

A

= discrimination against non-marital children

20
Q

scrutiny

LEGITIMACY CLASSIFICATIONS

A

intermediate scrutiny is used

21
Q

law benefitting marital kids

LEGITIMACY CLASSIFICATIONS

A

laws that provides a benefit to all marital kids but not non-marital kids
= always unconstitutional
(intermediate scrutiny used, but always invalidated)

22
Q

law benefitting non-marital kids

LEGITIMACY CLASSIFICATIONS

A

law that provides a benefit to some non-marital kids but denies it to other non-marital kids
= treated case-by-case with intermediate scrutiny

23
Q

6 non-suspect classifications

EQUAL PROTECTION

A
  1. age discrimination
  2. disability discrimination
  3. wealth discrimination
  4. education discrimination
  5. economic regulations
  6. sexual orientation discrimination
    = generally get only rational basis
24
Q

scrutiny/basis for economic regulations challenges

EQUAL PROTECTION

A

gets only rational basis

REGARDLESS of whether challenge comes under EP or DP clause

25
Q

sexual orientation discrimination

EQUAL PROTECTION

A

probably gets only rational basis

  • only three cases
  • one case used rational basis
  • other two cases (most recent) didn’t say
26
Q

2 suspect classifications

EQUAL PROTECTION

A
  1. race/national origin
  2. alienage
    = get more than rational basis
    STRICT SCRUTINY
27
Q

2 quasi-suspect classifications

EQUAL PROTECTION

A
  1. gender
  2. legitimacy
    = get more than rational basis
    INTERMEDIATE SCRUTINY
28
Q

de jure discrimination

EQUAL PROTECTION

A

AKA by right

= discrimination created by law

29
Q

de facto discrimination

EQUAL PROTECTION

A

AKA by effect

= discrimination created by voluntary/organic practice

30
Q

fundamental rights protected by EP clause

EQUAL PROTECTION

A
  1. Right to vote

2. Right to travel

31
Q

right to vote

EQUAL PROTECTION

A
  • Fundamental right to vote in national, state, and local elections
  • Restrictions on voting, other than those based on age, residency, and citizenship are generally invalid
32
Q

4 invalid restrictions

RIGHT TO VOTE

A
  • Racial restrictions (under 15th amendment)
  • Requirement that voters have children in order to vote in school board election
  • Poll taxes
  • Property ownership (except water district elections)
33
Q

2 valid restrictions

RIGHT TO VOTE

A
  • Presentation of picture IDs

- Proof of residency for short period (30-50 days)

34
Q

constitutional prong

RIGHT OF SAME-SEX COUPLES TO MARRY

A

Same-sex couples have a fundamental right to marry protected by a convergence of both the Due Process and Equal Protection Clauses

35
Q

2 ways to trigger strict scrutiny under EP

EQUAL PROTECTION

A
  1. Suspect classification

2. Fundamental right

36
Q

inability to pay fee

WEALTH CLASSIFICATION

A

inability to pay a governmentally required fee cannot be the sole basis upon which a person is deprived of fundamental constitutional right

37
Q

abortions

WEALTH CLASSIFICATION

A

SC upheld governmental refusal to pay for abortions
= woman does not have a fundamental constitutional right to obtain abortion services, instead has a fundamental right to choose w/o gov interference

38
Q

mental illness/disability

DISABILITY CLASSIFICATION

A
  • GENERALLY not suspect classification = subject only to deferential rational basis review
  • IN APPLICATION, courts have often applied “rational basis plus bite” review
39
Q

rational basis plus bite review

DISABILITY CLASSIFICATION

A

= a somewhat less deferential version of rational basis review

EXAMPLE
in 1985, SC struck down TX zoning ordinance that prevented building a home for the mentally disabled, even though SC declared that the mentally disabled were not a suspect or quasi-suspect class

40
Q

affirmative action scrutiny

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

ALL race-based affirmative-action programs = evaluated under strict scrutiny

41
Q

valid affirmative action

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

programs more likely to be upheld if there’s proof of

  1. history of discrimination AND
  2. current underrepresentation
42
Q

invalid affirmative action

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

even with required proof, programs will fail if they
a. set specific quota
b. set numerical targets
c. give extra points to minority students solely based on their race
AKA programs that use race as a “soft variable” are more likely to upheld

43
Q

diversity as compelling gov interest

RACE/NATIONAL ORIGIN CLASSIFICATIONS

A

(schools) achieving diverse student body = YES, compelling gov interest

(non-school settings) increasing minority presence and achieving racial balance = NO, not compelling gov interests by themselves

44
Q

single-sex schools rule

GENDER CLASSIFICATIONS

A

= potentially equal, thus potentially constitutional

UNLIKE single-race schools

45
Q

single-sex schools alternative

GENDER CLASSIFICATIONS

A

single-sex admissions policy = unconstitutional when only alternative does not offer substantially similar curriculum

46
Q

modified intermediate scrutiny

GENDER CLASSIFICATIONS

A

modified intermediate scrutiny IF
a. gender-based classification on face of the statute OR
b. intent to discriminate based on gender
= intermediate scrutiny PLUS additional requirement that gov have an EXCEEDINGLY PERSUASIVE JUSTIFICATION (instead of important gov interest)

47
Q

rational basis review

GENDER CLASSIFICATIONS

A

rational basis review IF

a. facially neutral AND
b. no intent to discriminate

Conlaw II (7 decks)

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