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FL & Fed Const Law Bar Exam 2020 > Equal Protection > Flashcards

Equal Protection Flashcards

1
Q

When is equal protection invoked?

A

When a law treats one person or class differently from others

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2
Q

What does equal protection require from the government?

A

Government must justify its action when it discriminates

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3
Q

What is the constitutional Basis of Equal Protection for state action ?

A
  • Equal Protection clause of 14th Amend.
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4
Q

What is the constitutional basis for equal protection for Federal Action?

A

No federal equal protection clause

  • BUT the 5th amendment due process clause includes the rights guaranteed by the equal protection clause
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5
Q

What are the Standards of Review ?

A
  1. Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
  2. Intermediate Scrutiny - Law must be substantially related to an important government interest
  3. Rational Basis - Law must be rationally related to a legitimate gov’t int.
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6
Q

What are the steps in analyzing an equal protection question?

A
  1. Identify the status of the actor discriminating (gov’t or priv.)
  2. If gov’t, identify the type of discrimination. If private, EP doesn’t apply
  3. Identify and apply the level of scrutiny attached to that discrimation
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7
Q

What must be present to trigger strict or intermediate scrutiny?

A

There must be discriminatory intent on the part of the government

  • Disparate effect alone w/out intent is not enough
  • Discriminatory intent can be shown facially, as applied, or when there is discriminatory motive
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8
Q

Facial Discrimination

A

Law that, by its lang., creates distinction b/w classes of persons is discriminatory on its face

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9
Q

Discriminatory application

A

Law appears neutral on its face but is applied in a discrim. fashion

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10
Q

Discriminatory Motive

A

Law is neutral on its face and in its application

  • BUT still results in disparate impact
  • Still need prood of discrim. intent
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11
Q

Equal Protection - What is the level of Scrutiny for Race, Ethnicity & National Origin Classification

A

Strict Scrutiny - law must be the least restrictive means to achieve a compelling gov’t interst

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12
Q

Define de jure segragation

A

Segregation imposed by law

  • Will almost always be unconst.
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13
Q

Define De facto segregation

A

Not legally required but happens by private choice

  • no const. issue b/c there is no state action
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14
Q

School Integration

A

Discrim. must be intentional so only de jure segregation in schools violates EP clause

  • School board must take steps to elim. int. racial seg. or schools
  • Court can order dist. to implement measures (busing) to remedy the discrim.
    • Temp. - Must be terminated once the past discrim. has been eliminated
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15
Q

Equal Protection - Racial Classification Benefitting Minorities

Level of Scrutiny

A

Strict Scrutiny

  • gov’t must prove means chosen are nec. to achieve a compelling gov’t int.
  • Compelling Gov’t Int. - e.g. to remedy clearly proven past discrimination, diversified student body
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16
Q

What are the 2 compelling interests the government has in Affirmative Action ?

A
  1. Past Discrimination by the Government AND
    • The benefits should go as closely as possible to the ppl discriminated
  2. Diversity in Public Universities and Colleges
    • Race can be one factor among many with no fixed weight
    • Use of racial quoatas or race as a determinative criterion is unconst.
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17
Q

Equal Protection - Racial Classification Benefitting Minorities

Numerical Set Asides

A

Numerical set asides require clear Proof of past discrimination

18
Q

Equal Protection - Racial Classification Benefitting Minorities

Public School Systems

A

Sch. dist. can’t assign students to schols on the basis of race unless it is necessary to accomplish a compelling interest (e.g. remedy past discrim.)

  • Only intentional segregation is unconst.
  • School can use facially neutral criteria that may have the same effect
    • Strategic site selection for new schools or
    • redrawing of attendance zones
19
Q

Equal Protection - Discriminatory Use of Preemptory Challenge Based on Race

A

In both civil & Crim. cases

  • violates EP & is unconst
20
Q

Equal Protection - Racial Gerrymandering

A

Race can’t be predominant factor in drawing boundaries of voting district unless district plan meets strict scrutiny

21
Q

Equal Protection - Alienage Classifications

Level of Scrutiny

A

Status as a lawful resident of the United States

  • Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
    • BUT some situations, discrimination against non-citizens is reviewed under Rational basis
22
Q

Equal Protection - Alienage Classifications

Which situations are reviewed under Rational Basis

A
  1. Federal Discrimination Against Aliens
  2. Self Gov’t & Democratice Process
  3. Undocumented Aliens
23
Q

What level of scrutiny will a state’s discrimination based upon alienage receive?

A

Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest

  • Generally struck down if law discrim. against aliens
  • Exception - State law that restricts or prohibits an alien’s participation in gov’t functions
    • Can exclude non-citizens from jobs related to state governance (cops, officials, pub. sch. teacher)
    • Only need rational relationship to legit. int.
24
Q

What test is applied when states discriminate against illegal aliens ?

A

Not a suspect class

  • Not protected
  • Discrim. against them will recieve rational basis review
  • BUT can’t deny prim. or sec. edu benefits to undoc. aliens
25
Q

Equal Protection - Alienage Classifications

Federal Discrimination Against Aliens

A

Rational Basis Review

  • When cong. passes statute discrim. against aliens
  • Congress has plenary power over aliens, classification likely valid unless arbitrary and unreas.
26
Q

Equal Protection - Alienage Classifications

Undocumented Aliens

A

Rational Basis Review

  • They’re not considered a suspect class so state laws that discriminate against them are reviewed under RB
  • Exception
    • Denial of Free Pub. Edu. to Undocumented Alien Children = Intermediate Scrutiny (due to powerless nature of the class & importance of edu.)
27
Q

Equal Protection - What are the Quasi-Suspect Classifications ?

A
  1. Gender
  2. Legitimacy
28
Q

Equal Protection - Gender Classification

Level of Scrutiny

A
  • Intermediate Scrutiny -

Law must be substantially related to an important government interest

AND
* Exceedingly Persuasive Justification exists for the distinction

29
Q

Equal Protection - Gender Classification

Proving Existence of Gender Classification

A
  • Facially Discriminates - Terms of law draws distinction among ppl based on gender OR
  • Facially Neutral - Must have discrim. impact & discriminatory intent
30
Q

Equal Protection - Gender Classification

Discriminatory Use of Preemptory Challenges based on Gender

A

Both Civil & Crim cases

  • challenges on basis of gender violates EP & is unconst.
31
Q

Equal Protection - Gender Classification

Classifications Benefiting Women (Gender based affirmative action)

A

Intermediate Scrutiny

  • Role Stereotypes = Unconstitutional - Gender Classification that benefit women on basis of role stereotypes aren’t allowed
  • Remedy Past Discrimination = Valid
32
Q

Equal Protection - Legitimacy Classifications

A

Discrim. against children conceived out of wedlock

  • Level of Scrutiny - Intermediate - Law must be subst. related to important gov’t interest
33
Q

Equal Protection - Religion Classifications

A

No cases but it is assumed that discrim. based on religion would be viewed under strict scrutiny

34
Q

Equal Protection - Rational Basis Review

A

Used for all other types of discrimination- Law must be rationally related to a legitimate gov’t int.

  • Age Discrimination
  • Disability Discrimination
  • Wealth Discrimination
  • Economic Regulations
  • Sexual Orientation
  • Alienage Classifications Re: Self Gov’t & Democratic Process
  • Congressional Discrimination Against Aliens
  • Convicts - SCOTUS has not held that convicts are a suspect class
35
Q

Equal Protection - Laws Discriminating against Sexual Orientation

A

Rational Basis Review - Ct. unwilling to treat gays as suspect or even semi-suspect class

BUT Federal Gov’t Can’t discriminate Against Same Sex Couples Legally Married Under State Law

  • 2013 - SCOTUS struck down Defense of Marriage Act (DOMA)
  • Holding - When a same sex couple has been legally married under state law, fed. gov’t can’t discriminate against the same sex couples
  • Ct. didn’t address whether state would violate EP Clause by banning same sex marriage
36
Q

Fundamental Rights Unique to Equal Protection

A

Fund. rights guar. by substantive due process are protected by equal protection principles as well

  • Impingement of the right to vote, to travel, or to marry may trigger an inquiry under either DP or EP BUT
  • Certain rights are particular to equal protection
    1. One Person, One Vote
    2. Gerrymandering
37
Q

The right to vote in state elections comes from where ?

A

EP clause of the 14th amendment

38
Q

One Person One Vote Define

A

One person’s vote must be essentially equal to any other person’s vote

  • When gov’t est. voting districts for the election of reps. the number of persons in each district must be approx. equal
39
Q

What is the test applied to laws departing from one person one vote ?

A

Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest

40
Q

Gerrymandering

A

When a state draws election districts for the purp. of scattering a racial or ethnic minority among several districts in order to prevent the minority form exercising its voting strength

  • State action violates EP clause

FL & Fed Const Law Bar Exam 2020 (18 decks)

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