Equal Protection

Question 1

Source

Answer 1

EP against state action comes from the 14th Amendment and EP against federal action comes from the 5th Amendment.

Question 2

Steps to Approaching an EP Q

Answer 2

1) Determine the type of discrimination
2) Against whom
3) Identify and apply the appropriate level of scrutiny.

Question 3

Levels of Scrutiny for EP

Answer 3

• Rational Basis
• Intermediate Scrutiny
• Strict Scrutiny

Question 4

EP: Rational Basis

Answer 4

P must prove that there is no rational relation to any legitimate gov. interest.

Question 5

EP: Intermediate Scrutiny

Answer 5

Gov must prove its classification is substantially related to an important gov interest

Question 6

EP: Strict Scrutiny

Answer 6

Government must prove its classification is necessary to achieve a compelling gov. interest.

Question 7

When is Rational Basis Review Applied?

Answer 7

• In situations involving disparate impact (when a statute is neutral on its face)
• All classifications not falling under SS or IS including: age, disability, alienage (federal), sexual orientation (but it has teeth), and wealth

Question 8

Two Exceptions to RB Review

Answer 8

• If the purpose of the measure being challenged was intended to have racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny
• If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny

Question 9

Common Result of RB Review

Answer 9

Gov often wins, but watch out for cases involving discrimination against sexual orientation.

Question 10

When is Intermediate Scrutiny Applied?

Answer 10

-Gov discrimination against quasi-suspect classes (gender and illegitimacy)

Question 11

When is Strict Scrutiny Applied?

Answer 11

When there is:

• alleged discrimination against a suspect class including: alienage (state), national origin, race, or
• there is discrimination involving a fundamental right (domestic travel, voting)

Question 12

Racial Discrimination

Answer 12

Can include:

• (De jure segregation)- laws that deliberately segregate on the basis of race (will be unconstitutional under SS)
• (De facto segregation)- segregation in fact but not by operation of law (is not discrimination)

Question 13

Racial Affirmative Action (Passing SS)

Answer 13

• When a policy is narrowly tailored to one of two compelling gov interests:
• remedying the effects of past discrimination by the state; and
• achieving a diverse student body in an institute of higher education (but overt quotas will be unconstitutional because they are not narrowly tailored).

Question 14

Watch out for School Desegregation

Answer 14

The U.S. SC has explicitly ruled that a school district may not assign individual students to schools based on race to achieve racial balancing when school segregation is caused by de facto segregation.

Question 15

Alienage Discrimination by States:

Answer 15

Warrant SS.

Question 16

Alienage Discrimination: Public-Function Exception

Answer 16

Some jobs or activities may be withheld from resident aliens, including:

• police officers
• gov officials
• public school teachers
• For such restrictions –> RB review applies

Question 17

Alienage Discrimination: Undocumented Aliens

Answer 17

RB review applies to discrimination against undocumented aliens.

Question 18

Sex Discrimination: Unconstitutional Laws Under IS

Answer 18

Include:

• a state law giving preference to men over equally qualified women to be administrators of decedent’s estates
• authorizing alimony payments to women but not to men
• higher drinking age for men than for women

Question 19

Sex Discrimination: Constitutional Laws Under IS

Answer 19

• Registration of males but not females for draft (Congress pursuant to its military powers has determined it is necessary to further important gov interests.
• State statutory rape laws may set the age of consent higher for females than for males (because of the state interest in preventing teen pregnancy)

Question 20

Gender Affirmative Action

Answer 20

Need only pass IS. The general rule is that benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimintion.

Question 21

Whether an Exam Q is Looking for EP or DP

Answer 21

To determine whether a Q is looking for EP or DP –> look at whether the policy in the Q draws a distinction between different categories of people or instead applies as a complete deprivation or right to exercise the fundamental right.