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What is Equal Protection and how is it applied to fed/state?

14th- "No state shall deny to any person w/in its jurisdiction the equal protection of the law"

Challenges to fed- 5th Amend (protects the abuse of gov. authority in legal procedure)
Challenges to state- implicitly through 14th


Framework for Equal Protection Analysis?

1) What is the government’s classification?
-How is the gov. drawing a distinc. Between people?
i. Is it facially discriminatory?
ii. Is it facially neutral but has a discriminatory impact?
3) What level of scrutiny should be applied?
i. STRICT SCRUTINY→ Suspect class
ii. INTERMEDIATE→ Quasi suspect
iii.RATIONAL BASIS→ Non suspect
4) Does the particular gov. action meet the level of scrutiny?


How do you know if its suspect class?

1) History of Discrimination?
2)I Politically powerless?
3)Is the group defined by immutable characterist?
4)Relevance of characteristic to social functioning and therefore the subject reg/leg. EX. Race→ no bearing, but age is different.


What is the rational basis test?

TEST: Law must be rationally related to a legitimate government purpose (strong presumption in favor of law)
**Burden on the challenger


What is a legitimate gov. purpose?

if it advances a traditional police power: protecting the safety, public health, or public morals (general welfare)→deference given to states legislatures to identify legitimate purpose (not an exclusive list)
1. Laws can be over and under inclusive


What happened in Romer v. Evans?

Challenge to Colo. Amend. 2

• This is one situation where public morals was not enough to justify a legitimate purpose→classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else
• Colo. Argues that gays are not a class that needs protection
• The amendment effectively denied the political process to a group of people→it identifies a person by a single trait and then denies them protection across the board


What is an underinclusive law?

When the law does not regulate all who are similarly situated (gov. can take step by step to address problem)


What happened in Railway Express v. NY?

• Forbids advertising on trucks unless directly related to business, not for only advertising
• State says legitimate purpose is public safety→this law is underinclusive bc its not designed to prevent all harms but this is rational basis so its legit


What is an overinclusive law?

If it regulates individuals who are not similarly situated (does it cover more people then it needs to to accomplish the purpose)


What happened in NY Transit v. Beazer?

NY law forbids hiring of employees for public transit who use narcotics (including methadone for recovery)
• Purpose=safety; sufficient relationship to law
• Overinclusive bc 75% recover and they are affected by this law


What are arbitrary and unreasonable laws?

Laws that seem arbitrary or have nothing to do with the goal at hand, Court rational basis with bite. Rawr.


What happened in US Dept. of Ag. v. Moreno?

Challenge to Food Stamp Act
Brought under 5th bc Fed→denies food stamps to those household where people are living and unrelated
• Purpose=to prevent fraud from hippies
• Court=bare desire to harm a politically unpopular group is not a legit government interest→already restrictions in place to prevent fraud
**Most be some basis between interest and group classification


What happened in City of Cleburne v. Cleburne Living Center? (retards)

Are mentally retarded people a suspect class?

• Court says that they are not a quasi-suspect class but they will still protect them→not politically powerless, history of discrim. But always legislation to protect them, it is immutable but there is a broad range of functioning individuals so we can’t just lump them all together
• Private biases outside reach of law but the law can’t give them effect
• Requiring a permit appears to rest on an irrational prejudice


What test is applied for Race and National Origin?

Strict Scrutiny, no matter if the laws help or hurt


What is the strict scrutiny test?

1. The law will be upheld only if it is narrowly tailored to achieve a compelling government interest (necessary and appropriate to achieve that interest)
2. There are no less discriminatory alternatives available
3. If strict scrutiny law is likely to be struck down
4. Over/Under almost always fatal→bc less discrim. alternative
5. Must show specific evidence of harm


How do you prove a law is discriminatory?

1. Facially Discriminatory
2. Facially neutral but discriminatory purpose AND impact
3. Law was enacted because of not in spite of (Feeny)


What are the 3 ways to identify discriminatory purpose?

1. Impact of a law may be so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes

2. History surrounding the government’s action→have the consistently passed laws

3. Legislative or administrative history of law→what’s going on at the time the law was passed


Who bears the burden if the defendant can produce evidence of discriminatory purpose?

The burden of proof shifts to the government to prove it would have taken the same action without discriminatory motivation


What happened in Korematsu?
What kind of law was this?
What level of scrutiny was used?

1. Facially discriminatory law
2. Strict scrutiny used

During WWII US allows military to relocate all Japanese Americans into internment camps
• Legal restrictions which curtail the civil rights of a single racial group are immediately suspect→BUT pressing public necessity may sometimes justify the existence of such restrictions
• BUT racial antagonism never can justify this discrimination

**This is an anomaly→both under/over inclusive but this was during a war (no less restrictive alternative)


What happened in Plessy?
What kind of law was this?
What level of scrutiny?
(Sep. but equal)

Separate but equal law-but is separate really equal?

• Louisiana law the provides for separate but equal railway carriages for the white and colored races
• Court found separate but equal did not mean racism→ if one race is socially inferior to another the Constitution can’t change that
• Harlan only dissenter→Constitution is color-blind…the humblest is the peer of the most powerful


What happened in Brown v. Board of Education? (sep. but equal)

• The main question is whether public segregation of children in schools deprives children of an equal footing in education and for their life-YES
• We must consider public education in light of its full development and its present place in American life throughout the Nation
• Segregation instills in black children a sense of inferiority which is detrimental to the learning process
**Court only addresses education


What does the court say about laws that burden whites and blacks?

These laws are impermissible under equal protection clause because they are based on assumptions of the inferiority of blacks to whites
a. Laws must serve legitimate overriding purpose independent of invidious racial discrimination


What happened in Loving v. Virginia? (miscegenation)

(applied to whites)
Court declared unconstitutional state’s miscegenation statute making it a crime for whites to marry outside the race
• Rejected the notion that mere equal application of the statute concerning racial classifications is enough to remove the classification from the 14th proscription of all invidious racial discriminations


What level of scrutiny is used if not both discriminatory purpose and impact?

rational basis


Washington v. Davis
(Facially neutral only discriminatory effect)

• Blacks fail a police dept. test more than whites but the court said that disproportionate impact is not enough standing without a discriminatory purpose to trigger strict scrutiny and find that a law is unconstitutional
• Must have intent and impact (bc only discriminatory in effect=rational basis=ok!)


McKleskey v. Kemp
(facially neutral only discriminatory effect)

Black people are put to death way more often then white people
• Law wasn’t enacted because of black people it just existed in spite of→effect is incredibly discriminatory but wasn’t created to be discriminatory


What happened in Feeny?
(facially neutral but discrimn. effect)

Law gave preference to veterans in hiring
• Law passed giving preference to veterans for jobs→in this state 98% of veterans were male, so fewer females were hired
• Purpose=to reward veterans for their service, the fact that male veterans outnumbered females is not enough→not a gender classification bc law facially gender neutral


Village of Arlington Heights?
(facially neutral but discriminatory in effect)

• City refuses to rezone parcel of land to allow low and moderate income housing
• Plaintiffs=had discriminatory effect in excluding blacks from the city
• They failed the equal protection challenge to state law=ok law


Palmer v. Thompson
(facially neutral but discriminatory in purpose)

Equal protection not violated when a city closed down all of its pools rather then integtate them (would be different if left white pools open)
• The state said that they didn’t think they could be operated safely or economically so they closed all pools
• Court says can’t invalidate a law because of motives of supporters=only rational basis bc no discrim. impact


What kind of scrutiny is applied to benign racial classification?

Strict scrutiny is used to evaluate all government affirmative action plans

d. Must have a showing of past racial discrimination and it has to a specific instance of conduct in the jurisdiction not just a general wish to reverse past discrimination