Equal Protection Clause Flashcards
(38 cards)
Analytical Framework
Step 1: Does the law Facially “classify” on the basis of a “suspect” classification or is it nonfacial?
- Facial
o Suspect/quasi-suspect nature
o Illicit Equal Protection Classifications
o Facial Non-Suspect?
- Non-Facial
o Arlington Heights Considerations
Step 2: What is the Proper Standard of Review
i) Suspect Classification => Strict Scrutiny
ii) Quasi-Suspect Classification => Intermediate Scrutiny
iii) Non-Suspect Classification /Non-Facial Classification => Rational Basis Review or RBPlus
Step 3: Frontiero Factors to argue something should be subjected to heightened scrutiny (either Quasi-Suspect or Suspect)
Illicit Equal Protection Classifications
Race (ethnicity and national origin) - Suspect
Alienage (citizenship) – suspect
Exceptions: Self-governance and the democratic process, Federal Interest Exception
Gender - Quasi suspect
Legitimacy (non-marital children) - quasi suspect
Current Non-suspect Classifications
Age (Murgia)
LGBTQ/Sexual Orientation (Romer v. Evans)
Distinguishing b/w people who stop at stop signs and people who don’t stop at stop signs
Non-Facial Classifications
Must prove EXCLUSIONARY EFFECT and EXCLUSIONARY PURPOSE to prove non-facial classification exists (Very hard to prove there is a non-facial sex/race classification)
Exam: “We would like to argue that the law classifies on the basis of race despite the law being facially race neutral.”
RACE/SEX Exclusionary Effect (Palmer v. Thompson): Easy to prove b/c you can get empirical evidence to prove disparate impact- the main problem in is proving exclusionary purpose – but you need to prove both
Exclusionary Purpose: Must prove the legislature adopted this policy BECAUSE OF and not merely IN SPITE OF its adverse effects on an identifiable group (Feeney) => very hard to prove
Standard of Review
If P can prove existence of non-facial race or gender classification, then court uses SS or IS, but if P can’t then court uses default of RBR
How to prove BECAUSE OF and not merely IN SPITE OF
Arlington Heights Considerations:
1) Extreme statistical proof (not dispositive)
(i) Ex: A pattern inexplicable by anything but race
2) Deviation from procedure/events leading up are suspicious
3) Decision inconsistent with typical priorities
E.g., Typically the town approves all rezoning applications, but are deviating here because the occupants will be African American?
4) Legislative or administrative history surrounding the adoption of the classification
E.g., Contemporaneous statement showing intent to exclude
There will need to be a smoking gun
Suspect Classification => Strict Scrutiny
The Classification used by the government must be narrowly tailored to serve a compelling government interest.
(a) Presumption: Laws are presumptively unconstitutional and P usually wins
ENDS: Compelling gov interest
- Nat’l Security (Korematsu),
- NOT white supremacy (Loving v. Virginia)
MEANS: Tight fit required (i.e. the means is necessary) and thus P will argue that a law is overinclusive or underinclusive and thus not a tight fit
(a) Underinclusive: If law fails to include all individuals who should be included to accomplish the law’s purpose
(i) Korematsu is underinclusive b/c they are trying to catch spies and this executive order didn’t even catch any spies.
(b) Overinclusive: If laws include individuals whose inclusion DOES NOT help accomplish the law’s purpose
(i) Korematsu was overinclusive from perspective of who gets imprisoned b/c it imprisons people who are not a danger to national security
Quasi-Suspect Classification => Intermediate Scrutiny
The classification used by the gov must be substantially related (means) to an important government interest (purpose) (see Orr v. Orr)
ENDS: Must be important gov interest
Important Gov Interests:
- Traffic safety,
- Pedagogical (teaching) benefits,
- Having a draft to ensure we have a good army,
- Preventing teenage pregnancy, helping a needy spouse
Not Important:
- Reaffirming gender roles/stereotype (see VMI),
- Efficiency and cost-saving reasons
Rational Basis Review
Rational Basis Review: The classification used by the gov must be rationally related to a legitimate gov interest
(a) Presumption: Laws are presumptively constitutional and gov usually wins
(b) End: Legitimate purpose: virtually any goal that is not forbidden by the Const will be deemed sufficient to meet RBR
(i) Exam tip: All court does is ask if this is something you could have thought would help - and it doesn’t even have to achieve that goal at all, it’s just something leg could have thought (See Railway Express)
Rational Basis Plus
RB+ analysis is diff from Frontiero factors (which tries to say a classification is suspect).
Here we have already decided a classification isn’t suspect, but we are trying to see if we can apply something other than RBR
ENDS
A law (the gov action) that seems inexplicable by anything but animus towards a class is not a legitimate gov purpose
(i) Gov lawyer response: “we didn’t do it b/c we had animus towards this group”
(ii) Then prof says it’s unclear how to rebut that as a P
Exam tip: The court does not discuss the tightness of fit or even railway express analysis when applying RBPlus b/c the whole point of RBPlus is that gov fails Ends prong
Frontiero Factors
Used to argue that something should be subjected to heightened scrutiny (either Quasi-Suspect or Suspect)
(1) When the characteristic in the law has a history of being the basis for purposeful discrimination
- Use experts to prove there has been a history of mistreatment of this class
- Is the history of mistreatment similar to race? If so, likely to meet this factor
(2) When the characteristic in the law has an immutable characteristic
- Is socio-economic classification immutable? No, you can get rich.
- Counter: some can’t
- Race and gender are immutable (something you cant change)
(3) When the characteristic in the law makes group members relatively politically powerless compared to non-group members.
- Groups historically oppressed by legislation or lack sufficient political power to protect themselves from discriminatory or oppressive legislation (see Murgia)
- Ability of the group to protect itself through the political process
- Difficulty in holding political positions? Participation in politics? Getting to the polls?
Race and EPC
Current Rule (1) Where the basis for difference in treatment is race, the classification is Suspect.
Suspect classification is subject to Strict Scrutiny by the court.
Strict Scrutiny provides the classifications used by the government must be narrowly tailored to serve a compelling government interest.
Plessy v. Ferguson
FACTS
Louisiana passes law requiring races to be segregated in “separate but equal” train cars. Plessy, a passenger, refused to go to black area of the train and SC held that separate but equal did not violate EPC of 14A.
HOLDING
Just because the facilities are separate does not mean they are not equal. The law is not discriminatory because it applies equally to both whites and blacks. Whites are not allowed in Black train cars either
Classic counter-precedent – this case does not cite rules or language in the Constitution, just latent beliefs about race.
Harlan’s Dissent
(a) Everyone knows that this law’s purpose was not protecting black ppl from sitting next to white and the purpose was to keep whites separate from black b/c of white supremacy (belief that whites are the superior race)
(b) Says Const. is colorblind and that all citizens are equal before the law
This dissent always comes up in the context of the current debate about affirmative action/racially inclusive laws.
Brown v. Board of Education
TAKEAWAY
Ended America’s legal racial caste system (Separate but equal is not equal)
ISSUE
Whether several state laws segregating public schools by race violated the EPC of the 14th A
RULE
Jim Crow laws violate the EPC
Brown II
Court didn’t order a remedy because the individual justices were worried about going too fast.
Holding: Court creates system where each school district had to be individually litigated.
Court defines parameters: Admit students as soon as possible, but, delay may be allowed if:
(a) Public interest – want to make sure that desegregation doesn’t cause a lot of trouble for the schools
(i) Burden rests on defendant schools to argue how much time is necessary
(b) “With all deliberate speed.”
(i) Deliberate means slow — this is an invitation to be slow and this is what states did => MASSIVE RESISTANCE
Korematsu
First case to articulate Strict Scrutiny Test based on race and national origin. GOV WINS (Unusual)
Upheld the executive order that forced people of Japanese ancestry to go to interment camps b/c nation thought they were a threat/danger based on their ancestry and potential spies after pearl harbor
Gov’s compelling purpose: national security/ preventing spies from telling enemy where to bomb
- Narrowly Tailored to achieve that purpose? Court says: Yes - there was no way to identify which of the Japanese Americans were disloyal, so for purposes of national security we have to include all of them.
Dissent: Not narrowly tailored b/c applied to all Japanese people in general - including babies (but babies are not a danger to national security). This is a loose fit
Framework for Equal Protection Analysis
- Discriminatory on its face?
- If no, demonstrate that a facially neutral law has a discriminatory impact and purpose. - Identify the level of scrutiny to be applied.
(i) Strict Scrutiny:
i. Race or national origin
ii. Alienage (some exceptions)
iii. Gov has the burden of proof
iv. Must serve some compelling gov purpose
(ii) Intermediate Scrutiny
i. Gender
ii. Nonmarital children
iii. Must be substantially related to an important government purpose (“important” rather than “compelling”, substantially related but not necessary)
iv. Burden on the gov
(iii) Rational Basis Test
i. Minimum level of scrutiny
ii. Law must be rationally related to a legitimate government purpose
iii. Challenger has the burden of proof
iv. Very deferential to the government - Does the Gov Action Meet the Level of Scrutiny
Ends/ Means analysis
- Strict Scrutiny
1) the end must be deemed compelling for the law to be upheld
- Intermediate Scrutiny
1) the end has to be regarded as important
- Rational Basis Test
1) Just needs to be a legitimate purpose
Loving v. Virginia
ISSUE
Whether a VA state law prohibiting interracial marriage (white people marrying outside of their race) violated the EPC
VA says both parties would be punished equally
Court said:
○ This law is so off (purpose is white supremacy), although it is narrowly tailored
○ They fail on the PURPOSE prong, not the MEANS prong
City of Richmond v. J.A. Croson Co.
Court applies SS to a law that attempts to “rectify” the wrongs of slavery in VA
Gov Law: Minority Business Utilization Plan (MBUP)
- Requires primary contractors to whom the City awarded construction contracts to subcontract at least 30 percent of the dollar value of the contract to one or more Minority Business Enterprises (MBEs).
When gov uses a facial racial classification for inclusion purposes, SS applies.
(a) Ends/Compelling Gov Purpose: Rectifying past societal racial discrimination is NOT a compelling government purpose (b) Narrowly Tailored/Means: Explicit Numerical Quotas are insufficient to satisfy means prong (i) Prof: Anything w/ quotas make it harder to satisfy means prong (1) Likelihood of Success: Gov is unlikely to get over hurdle of Strict Scrutiny b/c Nothing has gotten over SS in contracting race based affirmative action
Concurrence (Scalia): Agree, but does not think there is ever a reason to use racial classification/discrimination to ameliorate the effects of past discrimination.
Dissent: Old capital of the confederacy should be able to rectify it’s past discrimination
Craig v. Boren
Oklahoma statute prohibits the sale of 3.2% beer to men until the age of 21, but women can buy it at the age of 18. This triggers heightened scrutiny (IS)
Purpose: Traffic safety and prevent drunk driving => court accepts this as important purpose
Means: What the law did wasn’t good enough b/c the gov gave the court statistics, but they were bad statistics that didn’t even prove their point b/c they were not significant.
Exam tip: statistics can be used to justify a real difference (see VMI), but here the gov didn’t even show a real difference between male and female drivers through their statistics and the court thought they were doing this law based on a stereotype.
Prof: Statistics were bad: there wasn’t a sufficient correlation. The statistics were about drunk driving, but the prohibition was just to selling beer to males, and not about prohibiting drinking by males. Court also said 2% is tenuous fit
U.S. v. Virginia (VMI)
State college in VA that taught similar to a military bootcamp was only available to men. CoA said it violated EPC, so VMI then opened up a college just for women. Women’s institute differed from VMI in its academic offerings, methods of education, and financial resources.
ISSUE
Whether excluding women from admission due to their gender violates the 14th Amendment of EPC => YES
PURPOSE: Unique benefit of single-sex education; diversity of educational offerings; adversative method would change if women are admitted
Since certain groups of men would also fall into the category of “Not being Capable” the law is not justified in classifying based on sex.
- KWF: Complete exclusion of people who cannot physically and mentally go through the rigor of VMI is how the purpose can be accomplished regardless of the applicant’s gender. Thus, there is not a sufficient fit between the purpose and the means because VMI is using gender stereotype
MEANS: Court did not reach the mean prong because VMI failed the purpose prong
Orr v. Orr
Alabama law that required male spouses to pay alimony but not female divorced spouses to pay alimony violated EPC => court applied IS
Purpose: help for needy spouses => court says that is an important gov purpose
Means: Using the sex classification isn’t a sufficiently tight fit to helping needy spouses - it’s grounded in a stereotype that man is always the breadwinner and always makes more $ than their wives.
Gov used sex stereotype and didn’t use real difference. Means prong fails.
NOTE: The way u argue that gov can’t get over IS, show that gov is relying on stereotypes in the facts
Mississippi v. Hogan
Male plaintiff (student) who applied to a nursing school turned away
- Court struck down law saying he couldn’t go
- Gov cannot have single-sex institutions
Michael M.
- Gov law criminalizes sex w underage female BUT NOT with underage male
- Gov wins when an arg can be made that they are using the sex classification based on a real difference (i.e. men need to get hard to have sex? Males can’t get pregnant)
- How does that survive intermediate scrutiny? (Some say they didn’t apply it correctly)
- P does not get to argue what the purpose is?
Rostker v. Goldberg
- Upheld based on a real difference, it is not a real BIOLOGICAL difference
- Real difference: as a matter of US Military policy (Fed Law), men are permitted to engage in combat and women are not
○ Nothing in the opinion relies on a biological difference - Court deferential to military
- NOW: WOMEN ARE NOW ALLOWED TO TAKE PART IN COMBAT
○ Who knows what would happen with this today
- NOW: WOMEN ARE NOW ALLOWED TO TAKE PART IN COMBAT
