Bar Exam EP

Question 1

Priv. & Immunities

Answer 1

i. Privileges or Immunities of National Citizenship under the 14th Amendment - means nothing today (so never the correct answer on the MBE)
ii. Note 2: Privileges and Immunities of national Citizenship Clause in Article 4 (Comity Clause) has a narrow but important meaning. It prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market, i.e. prohibits requiring those who work in the state to live in the state

Question 2

EP of 14th

Answer 2

1. Applies to localities and states
2. Note 3: Though no Equal Protection Clause guarantee technically applies to the Fed. gov., equal protection concepts are applied to the Fed. gov. via the Due Process Clause of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the Fed. gov., equal protection and due process are called Fifth Amendment Due Process.

Question 3

Race, ethnicity and national origin

Answer 3

strict scrutiny

Question 4

Discriminatory purpose

Answer 4

i. May be explicit on the face of the statute, or may be proved by a history of discriminatory application or by extrinsic evidence about the purposes of those who passed the law (discriminatory motive).
1. School desegregation: De jure (by law) segregation is unconstitutional. De facto segregation is not (usually by residential housing patterns).

Question 5

Affirmative Action

Answer 5

1. is a racial classification; an effort to benefit a racial or ethnic minority.
2. Triggers strict scrutiny and requires a compelling interest
3. Specific past discrimination: Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.
   a. General societal discrimination does not justify affirmative action.

Question 6

Affirmative Action in Schools

Answer 6

a. Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education
b. Must be a strong showing that racial preferences are essential to achieving a diverse class.
c. Racial preferences must be “holistic” (can be built into an evaluation if every student is evaluated individually in a holistic way) and flexible.
d. Quotas are not allowed
e. Separate tracks or procedures for minority applicants are not allowed.
f. Preferential admissions not allowed for secondary schools (schools may be located and attendance zones created to maximize diversity)

Question 7

alienage

Answer 7

1. Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest, but two important exceptions to strict scrutiny for alienage apply:
   a. Fed. gov.
   i. Congress has plenary power over citizenship and naturalization.
   ii. Fed. classifications based on U.S. citizenship do not trigger strict scrutiny.
   iii. Fed. classifications are valid unless arbitrary and unreasonable
   b. State and local participation in gov. functions
   i. These are jobs that have a particular relevance to the role of gov. and non- U.S. citizens can be barred from these jobs.
   ii. States and localities may require U.S. citizenship for participation in gov. functions, including voting, serving on a jury, and working in any kind of gov. law enforcement position (including probation and parole officers), or as a public school teacher.
   iii. Rule: States and localities cannot require U.S. citizenship for access to private employment or for gov. benefit
   iv. Note 4: Constitutional rights of illegal aliens – Plyler v. Doe - Undocumented aliens are not a suspect class. Even so, states cannot deny undocumented children public education.

Question 8

Gender

Answer 8

intermediate scrutiny

i. classifications almost always invalid
1. Permissible examples of gender classifications:
a. Statutory rape can be gender specific (historically); and
b. The draft.

Question 9

legitimacy

Answer 9

i. (i.e., something depends on whether parents were married at the time of one’s birth) laws are almost always invalid, especially if punitive in nature.

Question 10

Age and wealth

Answer 10

i. Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under EP
1. Triggers rational basis
ii. Wealth is not a suspect or quasi-suspect classification, but the gov. has to waive filing fees for indigents when charging the fees would deny a fundament right.
iii. Examples include: divorce (because marriage is a fundamental right); transcript for appeal of criminal conviction (because appellate review is a fundamental right); transcript for appeal of termination of parental rights.

Question 11

Voting Rights

Answer 11

1. Requires districts of approximately equal size, i.e. approximately the same number of voters in each
2. Applies whenever you elect representatives by district
   a. Ex: U.S. House of Representatives; both houses of a state legislature; local gov.s when they elect representatives by district.
   b. Exception: Special purpose gov.s—A highly specialized gov. (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements).

Question 12

Racial Gerrymandering

Answer 12

1. Racial gerrymandering
   a. Vote Dilution: Drawing districts to scatter minorities so that they are not crucial in any one district. If done with a discriminatory purpose = unconstitutional.
   b. Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts.
   i. Rule: Race may be a factor in drawing district lines, but not the only or predominant factor.
   ii. Other factors include compactness and observing local, political subdivisions.
2. A bizarrely-shaped district may be evidence of a predominant racial purpose.

Question 13

Political Gerrymanding

Answer 13

1. Political gerrymandering (drawing districts to hurt one party)
   a. Supreme has not found any judicially manageable standards for implementing that guarantee.
   b. A political question (non-justiciable)