Flashcards in Equal Protection-Race Deck (27):
What are the 3 steps in an Equal Protection Analysis?
1. What is the classification of the law?
b. neutral law but is discriminatory impact or discriminatory purpose
2. What level of scrutiny applies?
a. Strict - race and national origin, alienage; compelling purpose and necessary to achieve that purpose. Government has burden of proof
b. Intermediate - gender and illegitimacy; substantial relationship to an important purpose; government has burden of proof
c. Rational relationship - rationally related to a legitimate purpose; challenger has the burden of proof
3. Does the government meet the burden?
What are the important factors to determine the level of scrutiny?
- Immutable things normally require higher standard of review - something that you cannot change.
- Access to political process - less access could mean higher standard of review
- History and likelihood of prejudice.
Railway Express Agency v. New York
New York law prohibited advertising on the side of trucks, but provided an exemption that truck owners could advertise their own business on trucks they owned.
Equal Protection Analysis:
• Classification - Facial, someone who owns their own business with a truck vs. someone who just owns a truck.
• Purpose - public safety to decrease distractions on the road.
Legislators are allowed to take "one step at a time" to meet the purpose. Example, eliminating the ability of one group to place advertising on trucks, if it is moving toward the purpose of eliminating distractions.
Overinclusivity is ok, even if it disadvantages some people.
U.S. Dept. of Agriculture v. Moreno
Food stamp program limited assistance to groups of related individuals living together. Households of non-related people not eligible for food stamps.
"A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
Village of Willowbrook v. Olech
Class of One - possible (but very unlikely) to show that you are being treated differently as an individual, and there is not rational relationship for that treatment. Must show you are identical to others similarly situated.
Strauder v. West Virginia
state law declared only whites could serve as jurors. Determined unconstitutional because the 14th amendment was intended to eradicate racial discrimination
- Purpose of the reconstruction amendments; Securing to a race recently emancipated all the civil rights the superior race enjoy.
- Ok to restrict to males, freeholders (landowners), educational qualifications.
Plessy v. Ferguson
Louisiana Law required separate train cars for colored people and prohibited blacks from sitting in white cars, and vice versa. Upheld and put in place the "separate but equal" doctrine. Court claims the separation does not imply inferiority.
How is race determined (theories)?
• Genetics - widely accepted now that there is more in common across races than within races, genetics does not determine race. (Genetic differences based on race has been scientifically disproven)
• Ancestry - parentage
• Physical Appearance - not always determinative
There is no single scientific way to determine "race." Race is merely a social construct.
• This means that society can change to create a race that was not there before.
• E.g.: "Muslims" are generally considered a race since 9-11. This was constructed by public perception and encompasses numerous groups and even different religions.
Brown v. Board of Education
Separation violates equal protection because separation creates feelings of inferiority, even if it is equal.
• Separate educational facilities are inherently unequal
• Led to numerous decisions (without explanation) striking down separation laws
• No remark about the moral concerns with separation
De Facto vs de jure segregation
South had laws that required segregation (de Jure, aka of law). North did not, but schools were still segregated in fact due to geographic differences where people lived.
○ Only in areas where there was a law, can drastic measures, such as bussing across district lines, be enacted (theory that the Court should only step in where there was a violation of law)
§ Court cannot force people to want to live/go to school together. However, they can correct LAWS that prevent that.
Loving v. Virginia
Law prohibited whites from marrying other races "to preserve the purity of the White race."
The Court said laws based on race, or making racial classifications, must be subjected to the most rigid scrutiny
• Set the stage for later "strict scrutiny" review
• Cannot change race, limited in the political process, history of racial discrimination
• Race is the standard against which all other discrimination is measured.
What is Intersectionality?
being discriminated on different levels (e.g., women and black)
Black woman must decide to file suit for sex discrimination or race discriminate, cannot file both.
Korematsu v. U.S.
Japanese-Americans banned from certain areas in Hawaii and California and placed into internment camps. Korematsu arrested for being in a restricted area and fought the internment laws as unconstitutional.
Court declared that strict scrutiny should be applied to racial classifications, but found the government's reasons met that criteria.
First case to apply strict scrutiny to racial classifications.
• Military necessity is a sufficient purpose to justify internment based on race.
What does strict scrutiny require?
Necessary for a compelling government interest with no less restrictive alternative.
Hernandez v. Texas
Mexican Americans and all other racial groups in the US had protection under the 14th Amendment.
• Plaintiffs had to show they were a group deserving of protection.
• Issue raised after Hernandez indicted for murder and Jury had no Mexicans (no Mexicans on jury in last 25 years, even though 14% of the population)
• Social construction of race - how to argue for a new classification
Washington v. Davis
Establishes that a discriminatory purpose is needed and required for a law to get strict scrutiny under equal protection.
Challenging a discriminatory act:
1. Establish adverse effect
Court can infer purpose, but impact alone is not enough to trigger strict scrutiny (for de facto discrimination).
Impact is only enough in de jury discrimination cases.
Factors sufficient to find discriminatory purpose in a neutral act (use this to argue why there is discrimination and why it is different from AH):
• Sudden change in practice or policy
• Departure from normal procedural sequence
• Unusual and unexpected decision
• Legislative or administrative history
If part of the motivation is discriminatory, the burden shifts to the defendant to prove it would have made the same decision without the discriminatory purpose.
McClesky v Kemp
Study showed you are 4 times more likely to get the death penalty if a black person kills a white victim.
Discriminatory purpose means the act must be because of, not in spite of, adverse consequences.
• Very high bar
What is unconscious intent?
when a person says he treats everyone the same, but unconsciously treats others different.
Regents of Univ. of California v. Bakke
Compelling purposes for AA put forth by UC:
• Deficit of minorities in med school,
○ Court said not a compelling interest - racial quota is not constitutional
• Countering discrimination,
○ Must show there was actual, previous discrimination by the organization (must show the medical school had discriminated against minority students)
○ Harms innocent individuals who did not discriminate (applicants who did not discriminate could be denied admission)
• Increasing services to their communities,
○ Court found no proof that minority students were more likely to go back to underserved communities. No data was provided to support this point
• Educational benefits of diversity.
○ Court said this was a compelling purpose. Diversity is ok, but focusing on race is not. (Diversity does not equal race, it included numerous things)
What are the three key points regarding Affirmative Action in universities from Bakke?
• Universities cannot use racial quotas in admissions
• Race may be used as one factor in the admission process
Wygant v. Jackson Board of Education
collective bargaining agreement provided that layoffs for fiscal reasons would be based on seniority, but at no point could a higher percentage of minority teachers be laid off.
• Argued that providing minority teachers as role models was a compelling interest.
• Court did not agree. Societal discrimination alone is not sufficient to justify racial classification.
Adarand Constructors, Inc. v. Pena
says every government program that applies race must meet strict scrutiny (no deference).
Differed from Fullilove (Congress can use its spending power to enact remedial legislation that is not "wholly color blind") and Croson Co.
Reasons to hold all applications of race to strict scrutiny:
• Skepticism - reason for holding all applications of race to strict scrutiny, there is a initial doubt that race is required to be used.
• Consistency - does not matter what race it is, court must hold all racial classifications the same way.
• Congruence - between the 5th and 14th Amendments, language and intent is the same, they should be held to the same standard.
○ Different rules in different states can affect people in other states (e.g., if California does not have affirmative action, but Hawaii does, there is a different requirement for people from other states)
○ Why should they be different? Argument that states, especially in the South, have a history of racism and may have to receive a harder look than the federal government.
Grutter v. Bollinger
Grutter placed on waiting list to University of Michigan Law School. Filed suit on the diversity policy of affirmative action.
Court says the University is not required to exhaust all other alternatives, but to only consider them (Rationalized by differing to the experience of the University).
Gratz v. Bollinger
Challenge to the admissions policy of the University of Michigan, undergraduate college. Members of racial minorities get 20 points towards admission (total of 150 points available, 100 points is guaranteed admission)
Court says there is no individualized selection process and so is not narrowly tailored.