Equal Protection Flashcards

Seek the origins of the equal protection clause. Learn the extent of its protection and the levels of scrutiny applied when a violation is claimed.

1
Q

What is the Equal Protection Clause?

A

Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)

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2
Q

Does the Equal Protection Clause apply to the federal government?

A

Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause

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3
Q

How do you distinguish due process from equal protection issues?

A

Ask: does the statute contain a classification along suspect lines? If yes, it is an equal protection issue. If not, due process issue.

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4
Q

What are 4 steps to analyzing equal protection questions?

A
  1. Is there a classification by the government?
    • ​​P must prove classification was made with discriminatory intent
  2. What is the classification?
    • Suspect, quasi, or other
  3. What level of scrutiny applies?
    • Suspect = strict
    • Quasi = intermediate
    • Other = rational basis
  4. Does the government action satisfy the level of scrutiny?
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5
Q

What are the suspect classifications?

A
  1. Race;
  2. Alienage (state laws);
  3. Religion; and
  4. National origin

⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.

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6
Q

What are quasi-suspect classifications?

A
  1. Gender; and
  2. Legitimacy

⭐️ Intermediate scrutiny

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7
Q

What are non-suspect classifications?

A
  1. Alienage if:
    1. Federal alienage classification; or
    2. State restriction on alien’s participation in government functions
  2. Age
  3. Wealth
  4. Sexual orientation
  5. Disability
  6. Any other classification not governed by strict or intermediate scrutiny

⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group

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8
Q

What are 3 ways that P can show a classification is discriminatory?

A
  1. Classification is discriminatory on its face: text of the law itself is unconstitutional.
  2. Classification is facially neutral, but discriminatory as applied: classification is discriminatory in its application or administration. Requires proof of both discriminatory intent and discriminatory effect.
  3. Discriminatory purpose/motive: P m​ust show proof of discriminatory purpose.
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9
Q

Define

de jure segregation

A

Intentional segregation imposed by law. Subject to strict scrutiny.

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10
Q

Define

de facto segregation

A

Segregation that results from private action (e.g. choosing housing in certain neighborhoods). No equal protection violation because no government action.

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11
Q

For affirmative action to survive strict scrutiny, what must the government prove?

A

Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.

Must show evidence of past discrimination.

⚠️ Exception: quotas are almost never allowed.

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12
Q

Are racial quotas constitutional?

A

No, will almost always be struck down for failure to pass strict scrutiny unless gov. can prove quota is necessary to remedy pervasive, current discrimination

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13
Q

Is affirmative action in higher education admissions constitutional?

Note: This is changed as of June 29, 2023. MBE will likely not be updated, so still be able to answer the former rule.

A

Race may be used as a factor among many if state shows action is necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity

⭐️ Numbers-based quotas will almost always be struck down

2023 NOTE: SCOTUS ruled race cannot be used as a factor in admissions in Students for Fair Admissions (June 29, 2023). The MBE will likely not be updated - please know the former rule as well.

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14
Q

Alienage classifications trigger strict scrutiny unless:

A
  1. Classification is pursuant to Congress’ plenary powers to regulate immigration; or
  2. Classification is related to essential government functions and/or processes. Valid restrictions include:
    • Voting and jury membership
    • Working as public school teacher
    • Working as police officer
    • Working as probation officer

⭐️ If based on either circumstance, rational basis will apply

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15
Q

Are undocumented aliens a suspect class?

A

No, generally subject to rational basis review

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16
Q

Discrimination against the children of undocumented aliens triggers what level of scrutiny?

A

intermediate scrutiny

(ex. denying children the right to attend public schools)

17
Q

Gender classifications trigger what level of scrutiny?

A

Intermediate scrutiny (substantially related to important government interest)

AND

proof of “exceeedingly persuasive justification”

18
Q

Is affirmative action based on gender constitutional?

A

Yes, if necessary to achieve a compelling governmental interest in remedying past discrimination based on gender

19
Q

Classifications based on legitimacy trigger what level of scrutiny?

A

Intermediate scrutiny.

Laws cannot discriminate against children of nonmarried parents without substantial relation to an important government interest

20
Q

What is the “one person, one vote” requirement?

A

Each person’s vote must be equal to another person’s vote

⚠️ Exception: limited purpose elections

21
Q

Voting legislation is subject to what level of scrutiny?

A

If based on anything other than age, residency, or citizenship, strict scrutiny applies.

22
Q

List 4 examples of voting regulations that have been upheld

A
  1. Reasonable residency requirements;
  2. Reasonable registration requirements;
  3. Reasonable time and manner regulations; and
  4. Denial of voting rights to felons
23
Q

What are four examples of unconstitutional voting restrictions?

A
  1. Poll taxes;
  2. Limiting school board elections to only parents and property owners
  3. Counting votes using overly vague standards; and
  4. Requiring political party registration for a general election (can be limited for primary elections)
24
Q

Can states limit felon voting rights?

A

Yes, pursuant to Section 2 of the 14th Amendment

25
Q

Does Congress have the power to override state laws concerning federal elections?

A

Yes, pursuant to the Elections Clause (Article I, Section IV)

26
Q

Restrictions on travel trigger what level of scrutiny?

A

strict scrutiny

⚠️ Note: Only interstate travel; international travel is not a protected right

27
Q

What is the test applied to non-resident discrimination?

A

There must be a substantial connection between the discrimination and a substantial state interest.

28
Q

What does the Privileges or Immunities Clause under the 14th Amendment protect?

A

Right to interstate travel (very narrowly construed)

**Be careful. Privileges or immunities is almost never the right answer on the MBE.

29
Q

List two examples of constitutional non-resident discrimination

A
  1. Charging more for recreational licenses (hunting or fishing); and
  2. Treating non-residents differently to preserve in-state natural resources
30
Q

List four examples of unconstitutional non-resident discrimination.

A
  1. Charging higher fee for commercial licenses for non-residents
  2. Commuter taxes applied only to non-residents
  3. Limiting abortions to only local residents
  4. Mandating that employers only hire state-residents
31
Q

Can states exclude non-citizens from jobs related to state governance (e.g. police officers, government officials, public school teachers)?

A

Yes

32
Q

Can a state ban all write-in candidates for the primary and general election?

A

Yes, as long as there are reasonable, alternative methods of getting on the ballot

33
Q

Can a state refuse to put a candidate on ballot unless a minimum amount of voter support is shown? (e.g. via signatures, etc)

A

Yes