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Flashcards in Sex Discrimination - Sheet1 Deck (28)
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... is based on “an over-broad sex-based generalization.” The Court characterizes the plan as rational ..., but this Court has rejected even rational and empirically-supported “official actions that classify unnecessarily and over broadly by gender when more accurate and impartial functional lines can be drawn.” This law is “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for non-marital children.”

Nguyen v. INS (2001)O’Connor, with Souter, Ginsburg, Breyer (dissenting):


“Despite the enlightened emancipation of women, . . . woman is still regarded as the center of the home and family life.”

Hoyt v. Florida (1961)


“Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.”

Nevada Dept. of Human Resources v. Hibbs (2003)


“The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. That is the law of the creator.”

Bradwell v. Illinois (1873)


“the vast changes in the social and legal position of women … [do] not preclude States from drawing a sharp line between the sexes . . . .”

Goesaert v. Cleary (1948)


(Important purpose): The academies were developed in response to a crisis facing young AA boys manifested by high homicide, unemployment, and drop-out rates. This is an important objective. (Not substantially related): Board has not demonstrated that excluding girls from the classes serves the purpose. Female students in Detroit are facing the same obstacles. The schools impermissibly rely on gender as a “proxy” for at-risk individuals. “Ignoring the plight of urban females institutionalizes inequality and perpetuates the myth that females are doing well in the current system.” There is also no evidence that co-ed schools will not serve the interest, i.e. that co-ed schools have failed to protect boys from the risks.

Garrett v. Board of Education … (E.D. Mich. 1991)


(No important purpose): Stated purpose: compensating for past discrimination. The State has not carried its burden for this purpose. Has not demonstrated with evidence that women suffered a disparity of opportunity in this field. In fact, history supports this to be a female-dominated field. This law only further perpetuates the stereotype that nursing is a woman’s job. (Not substantially related): The law allows men to audit classes, so this undermines the claim that women are adversely affected by the presence of men.

Mississippi Univ. for Women v. Hogan (1982)


Absent being present at birth, “it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock.” “There is nothing irrational or improper in the recognition that at the omen of birth—a critical event in the statutory scheme and in the whole tradition of citizenship law—the mother’s knowledge of the child and the fat of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.”

Nguyen v. INS (2001)


Agree the law is unconstitutional under 5th Amd. BUT Sex should not be included as a suspect classification. Reed controls this case perfectly and reaches the same outcome. The Court should not jump ahead of the democratic process on sensitive issues like sex discrimination when, as is the case here, the legislature is just a step away from doing so (Equal Rights Amendment). “[D]emocratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.”

Frontiero v. Richardson (1973)Powell (concurring)


Differential wage laws (disparity in freedom of K) between men and women cannot be justified on “physical differences.” Inequalities between men and women “have now come almost, if not quire, to the vanishing point[,]” so there is less reason for protecting women with laws. The Nineteenth Amendment has emancipated com an “from that old doctrine that she must be given special protection . . . .”

Adkins v. Children’s Hospital (1923)


Fails a “but for” test of discrimination. Washington v. Davis and Arlington heights made it clear that evidence of discriminatory intent is necessary to prove a constitutional violation in disparate impact cases. There is a two-part inquiry: (1) Is the law facially neutral? (2) If facially neutral, has the state undertaken the law with a discriminatory purpose? "Discriminatory purpose" implies more than awareness of consequences—it's about intent, “because of” not merely “in spite of.”

Personnel Administrator v. Feeney (1979)


Govt’s rationale for the law: reducing admin costs. 99% of uniformed services is male; women are usually the dependents, so it would cost more money to make male servicemen to show need for spousal support as women have to.

Frontiero v. Richardson (1973)Brennan, with Douglas, White, Marshall (plurality):


Held: CONSTITUTIONAL. The classification here is between “domestic” disputes and “non-domestic” disputes—not men and women. The plaintiff failed to show that sex was a motivating factor in the decisions.

Hynson v. City of Chester (3d Cir. 1988)


IS applies—state must offer an “exceedingly persuasive” justification for the classification. Inherent differences between men and women are “cause for celebration, but not for . . . artificial constraints on an individual’s opportunity.” “[S]uch classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

United States v. Virginia (1996)


Party seeking to uphold a statute that classifies individuals on the basis of sex must show an “exceedingly persuasive justification” and that the classification serves “important governmental objectives and that the discriminatory means employed [are] substantially related to the achievement of those objectives.”

Mississippi Univ. for Women v. Hogan (1982)


Strict scrutiny applies. History of discrimination against womenSex is an immutable characteristic. “[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ;the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .’” Congress has also taken a sex-equality approach with Equal Pay Act and Title VII CRA.

Frontiero v. Richardson (1973)Brennan, with Douglas, White, Marshall (plurality):


The “degree of the preference . . . should make no constitutional difference. Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude. Discriminatory intent is not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not.”

Personnel Administrator v. Feeney (1979)


The Court applied the wrong test. The “exceedingly persuasive justification” phrase is closer to SS than a proper application of IS. A more lenient standard, such as RBR that was applied for centuries, would be more in line with the Carolene Products footnote, that reserved heightened scrutiny for “discrete and insular minorities”—which women are not.

United States v. Virginia (1996)Scalia (dissenting):


The Court’s decision “ensures that single-sex public education is functionally dead.” No public official in his right mind would pursue a single-sex school—they are too risky and expensive from a litigation standpoint.

United States v. Virginia (1996)Scalia (dissenting):


The Court’s decision sweeps aside tradition. VMI is a historical and important institution that should be preserved as it was. This Court has a duty to “preserve our society’s values regarding equal protection.” “[I]t is my view that ‘when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”

United States v. Virginia (1996)Scalia (dissenting):


The degree, inevitability, foreseeability of a racial preference should be how we determine the constitutionality of a race-neutral classification.

Personnel Administrator v. Feeney (1979)Dissent


The law is “narrowly targeted at the fault line between work and family—precisely where sex-based overgeneralization has been and remains strongest—and affects only one aspect of the employment relationship.”

Nevada Dept. of Human Resources v. Hibbs (2003)


The law is not discriminatory along sex lines—rather, it discriminates between pregnant females and non-pregnant persons (which includes both males and females). The state has a legitimate interest in allocating limited resources and maintaining the fiscal integrity of its disability program.

Geduldig v. Aiello (1974)


The State justifies the pedagogical differences based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” that are “real” and “not stereotypes.” But “[G]eneralizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

United States v. Virginia (1996)


This law effectively abolishes all-female schools. (SOR) Heightened scrutiny should not have been applied in this case. The state was simply creating an option for those who prefer the single-sex school. The equal protection standard for sex discrimination should not be applied here—the law was designed to maximize opportunity for women, not harm them.

Mississippi Univ. for Women v. Hogan (1982)Powell (dissenting)


We have held that “State actors controlling gates to opportunity . . . may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.’” This perpetuates the same self-fulfilling prophecies that have excluded women from different spheres in society, including juries and the legal profession. It is true that some single-sex schools seek to “dissipate, rather than perpetuate, traditional gender classifications” but that is not what this school is doing.

United States v. Virginia (1996)


We should not be so quick to accept the state’s assertion that the law will affect its purpose. It doesn’t make sense that a class of persons especially vulnerable to the targeted harm should be exempted from the law, rather than subject to it. HYPO: If white employees are more vulnerable to skin cancer from exposure to a certain chemical on the job, it wouldn’t make sense to require black employees only to wear protective clothing and exempt the white employees. It is irrational to exempt 50% of the participants in the risky conduct.

Michael M. v. Superior Ct. (1981)Stevens (dissenting):


Women were at a disadvantage in the struggle for subsistence—they depended on men because of their “physical structure and the performance of maternal functions.” Thus, “legislation designed for her protection may be sustained . . . .”

Muller v. Oregon (1908)