EQUAL PROTECTION

Question 1

CONSTITUTIONAL SOURCE

Answer 1

• EPC of 14th Amend has no counterpart in the Constitution applicable to fed gov; it is limited to state action.
• Nevertheless, it is clear that grossly unreasonable discrimination by the fed gov violates DPC of 5th Amend.
• Ex. racial discrimination in public schools of D.C.: violation of due process
• Thus, there are really 2 equal protection guarantees
• Ct usually applies same standards under either constitutional provision.

Question 2

APPLICABLE STANDARDS

Answer 2

• Ct will apply 1 of 3 standards when examining governmental action involving classes of persons.
• If a suspect classification/fundamental right is involved: strict scrutiny standard will be applied & action will be struck down unless gov proves that it is NECESSARY to achieve COMPELLING interest.
• If a quasi-suspect class is involved, Ct will likely require gov to prove that action is SUBSTANTIALLY RELATED to an IMPORTANT gov interest.
• If any other class is involved, action will be upheld unless challenger proves that action is NOT RATIONALLY RELATED to LEGIT gov interest.

Question 3

PROVING DISCRIMINATORY CLASSIFICATION

Answer 3

• The mere fact that legislation/ gov action has a discriminatory effect is not sufficient to trigger strict scrutiny/ intermediate scrutiny.
• Gov must intend to discriminate
• Intent can be shown in 3 ways:
  (1) facial discrimination;
  (2) discriminatory application; or
  (3) discriminatory motive.

Question 4

Facial Discrimination

Answer 4

• Law may include a classification on its face.
• Makes an explicit distinction between classes of persons (perhaps by race/gender).
• Cts merely have to apply appropriate standard of review for that classification.
• Standards for racial classifications & gender classifications are described below.

Question 5

Facial Discrimination Absent Racial Language

Answer 5

• In a few cases, SC has held that a law used a racial classification “on its face” even though law’s language did not include racial language.
• In these cases, law could not be explained except in racial terms.

Question 6

Note:

Answer 6

• If a legislative districting map could be explained in terms other than race, Ct would not find law constituted racial discrimination on its face.
• In such a case, persons attacking legislative districts as being based on racial classification would have to show that district lines were drawn for a racially discriminatory purpose.

Question 7

Discriminatory Application

Answer 7

• In some instances, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons.
• If persons challenging gov action can prove that gov officials applying law had a discriminatory purpose (& used discriminatory standards based on traits such as race/gender), law will be invalidated

Question 8

Discriminatory Motive

Answer 8

• Sometimes a gov action will appear to be neutral on its face & in its application, but will have DISPROPORTIONATE IMAPCT on a PARTICULAR CLASS (like racial minority/women).
• Such a law will be found to involve a classification (& be subject to the level of scrutiny appropriate to that classification) only if ct finds the law-making body enacted/maintained law for a discriminatory purpose
• In such cases, ct should admit into evidence statistical proof the law has a disproportionate impact on one class of persons.
• However, mere statistical evidence will rarely be sufficient in itself to prove the gov had a discriminatory purpose in passing a law.
• Statistical evidence may be combined w/ other evidence of legislative/admin intent to show that a law/regulation is product of discriminatory purpose.

Question 9

SUSPECT CLASSIFICATIONS : Race and National Origin

Answer 9

• If gov action classifies persons based on exercise of a fundamental right/involves a suspect classification (race, national origin, or alienage), strict scrutiny is applied.
• The result is invalidation of almost every case where classification would burden a person b/c of her status as a member of a racial/national origin minority.

Question 10

School Integration

Answer 10

• Discrimination must be intentional to create discriminatory classifications for strict scrutiny
• Only intentional segregation in schools will be invalidated by EPC

Question 11

Remedying Intentional School Segregation

Answer 11

• If proven that school board has racially districted schools, board must take steps to eliminate effects of discrimination (e.g., busing students).
• If school board refuses to do so, a ct may order school district to take all appropriate steps to eliminate discrimination.

Question 12

Order Limited

Answer 12

• Ct may not impose remedy that goes beyond purpose of remedying remainder of past segregation.
• Thus, ct cannot impose a remedy whose purpose is to attract nonminority students from outside school district when there is no evidence of past segregation outside the district.
• Ex. State not required to fund salary increases& remedial programs to create magnet schools to attract suburban students to urban schools

Question 13

“Benign” Government Discrimination—Affirmative Action

Answer 13

• Gov action—whether by fed, state, or local gov bodies—that favors racial/ethnic minorities is subject to strict scrutiny, as is gov action discriminating against racial/ethnic minorities.

Question 14

Note:

Answer 14

Prior to its ruling in Adarand, supra, the Supreme Court upheld a federal requirement that 10% of federal grants for public works be set aside for minority businesses. [Fullilove v. Klutznick, 448 U.S. 448 (1980)] In Adarand, the Court reserved judgment on whether a Fullilove-type program would survive strict scrutiny. Some commentators have suggested that it might, because the Court might give Congress more deference than the states based on Congress’s power under the Enabling Clause of the Fourteenth Amendment (see XII.A.3., supra), but the continued validity of Fullilove is, at best, uncertain.

Question 15

Remedying Past Discrimination
.

Answer 15

• Gov has a compelling interest in remedying past discrimination against a racial/ethnic minority.
• Thus, if ct finds a gov agency has engaged in racial discrimination, it may employ a race-conscious remedy tailored to end discrimination & eliminate its effects.
• A remedy of this type is permissible under EPC b/c it is narrowly tailored to further a compelling interest (elimination of illegal/unconstitutional discrimination)

Question 16

Where There Has Been No Past Discrimination by Government

Answer 16

• Even where a state/local gov has not engaged in past discrimination, it may have a compelling interest in affirmative action.
• However, the gov action must be narrowly tailored to that interest.

Question 17

Remedial Justifications
(1)
Local Private Discrimination

Answer 17

• Remedying past private discrimination w/in gov agency’s jurisdiction is a compelling interest, but there is no compelling interest in remedying general effects of societal discrimination.
• Thus, for a city to give a preference to minority race applicants for city construction Ks, it must identify the past unconstitutional/illegal discrimination against minority-owned construction businesses that it is now attempting to correct

Question 18

Diversity in Primary and Secondary Public Education

Answer 18

• A school board may not assign students to a public primary/secondary school on basis of race unless necessary to achieve a compelling interest, such as remedying past unconstitutional (i.e., intentional) discrimination.
• A majority of Ct has not found diversity itself to be a sufficiently compelling interest

Question 19

Diversity in Post-Secondary Public Education

Answer 19

• SC has treated post-secondary educational institutions (e.g., public colleges & universities) differently.
• It has held that cts should defer to a public university’s judgments that diversity is itself a compelling interest in post-secondary education.
• Thus, Ct held that race & ethnicity could be used as a factor (although not a predominant factor) in determining whether a particular student should be admitted.
• However, while Ct is willing to grant a public university deference as to the importance of diversity in a student body, cts should not give universities deference on whether a particular scheme for assuring diversity is narrowly tailored to that purpose.
• Strict scrutiny applies, so university must show that no workable race-neutral alternatives would assure diversity sought.
• Further, school’s use of racial preferences is permissible at one particular time does not mean school can continue to rely on same policy w/o “refinement.”
• Universities must continually reassess their need for race-conscious admissions & engage in “constant deliberation & continued reflection” regarding these policies.

Question 20

States May Eliminate Race-Based Preferences

Answer 20

• States are not required to have affirmative action programs for admission to their universities.
• Moreover, states may eliminate existing race-based preferences, including by voter initiative.
• The Ct upheld constitutionality of a Michigan initiative providing that the state & its political subdivisions could not discriminate/give preference based on race/gender in education, contracting, or employment.

Question 21

Discriminatory Legislative Apportionment

Answer 21

• Race can be considered in drawing up new voting districts, but cannot be predominant factor.
• If P can show that a redistricting plan was drawn up predominantly on basis of racial considerations (as opposed to more traditional factors, like compactness, contiguity, & community interest), the plan will violate EPC unless gov can show plan is narrowly tailored to serve a compelling state interest
• Ex. while eradicating effects of past discrimination would be a compelling state interest, the redistricting here was driven by Justice Department’s policy of maximizing number of districts where racial minority members are the majority, which is not a compelling interest

Question 22

Private Affirmative Action
.

Answer 22

• Private employers are not restricted by EPC, since Clause applies only to gov, & private employers lack state action.
• Nevertheless, Congress has adopted statutes regulating private discrimination by employers pursuant to its power under enabling provisions of 13th & 14th Amends & Commerce Clause.
• Thus, if an exam question asks whether private employer discrimination is valid, answer generally cannot be based on equal protection

Question 23

Alienage Classifications
a.
Federal Classifications

Answer 23

• Standard for review of fed gov classifications: NEVER seem to be subject to strict scrutiny.
• Congress’s plenary power over aliens, classifications are valid if not arbitrary & unreasonable.
• Thus, fed Medicare regulations could establish a 5-year residency requirement for benefits that eliminated many resident aliens.

Question 24

State and Local Classifications

Answer 24

• State/local laws are subject to strict scrutiny if based on alienage.
• A “compelling state interest” must be shown to justify disparate treatment.
• EX. a state law requiring US citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down b/c there is no compelling interest justifying requirement.

Question 25

Exception—Participation in Self-Government Process

Answer 25

- If a law discriminates against alien participation in functioning of state gov, RATIONAL BASIS is applied.

Question 26

Undocumented Aliens: Punitive Laws Against Undocumented Alien Adults

Answer 26

- SC has not held that undocumented aliens are a suspect classification. - Thus, a state law that denies benefits to (or imposes burdens on) persons who are in US w/o permission might be upheld under RATIONAL BASIS if law was not totally arbitrary

Question 27

Education Rights of Alien Children .

Answer 27

- Undocumented aliens are “persons” w/in protection of 14th Amend & it is fundamentally unfair to punish children for crimes of their parents - Not rational for a state to deny children of undocumented aliens a free public education unless state can show that the denial furthers SUBSTANTIAL state interest. - Savings in not educating such children is NOT a sufficient interest

Question 28

Compare—Children Living Apart from Parents

Answer 28

- SC upheld state statute that permitted school district to deny tuition-free education to any child (whether/not a US citizen) who lived apart from his parent/lawful guardian if child’s presence in school district was for “primary purpose” of attending school in the district. - The state does not have to consider such a child to be a bona fide resident of the school district.

Question 29

QUASI-SUSPECT CLASSIFICATIONS

Answer 29

- Classifications based on gender/legitimacy are almost always suspect. - When analyzing gov action based on such classifications: intermediate standard & strike action unless SUBSTANTIALLY RELATED to IMPORTANT gov interest.

Question 30

Gender

Answer 30

- Gov bears burden of proof in gender discrimination cases & an “exceedingly persuasive justification” is required in order to show gender discrimination is SUBSTANTIALLY RELATED to IMPORTANT gov interest.

Question 31

Intentional Discrimination Against Women

Answer 31

- Gender classifications that intentionally discriminate against women will generally be INVALID under intermediate standard, b/c gov is unable to show “exceedingly persuasive justification” that is required.

Question 32

Government Interest Must Be Genuine

Answer 32

- The “important gov interest” advanced to justify categorization on basis of gender must be genuine—not hypothesized for purpose of litigation defense - Neither may gov’s justification rely on overbroad generalizations about males & females that will create/perpetuate the legal, social, & economic inferiority of women.

Question 33

Affirmative Action Benefiting Women

Answer 33

- Classifications benefiting women that are designed to remedy past discrimination against women will generally be upheld.

Question 34

Intentional Discrimination Against - Men

Answer 34

- Intentional discrimination against men generally is invalid. - However, a number of laws have been held valid as being substantially related to an important government interest.

Question 35

Invalid Discrimination

Answer 35

- Invalid under EPC: 1) Denial to admit males to a state university/nursing school 2) Law that provides that only wives are eligible for alimony 3) Law that permits unwed mother, but not unwed father, to stop adoption of offspring 4) Law providing a higher min drinking age for men than for women

Question 36

Valid Discrimination

Answer 36

Valid under EPC despite their discriminatory intent: 1) Law punishing males but not females for statutory rape, classification was found to be substantially related to important interest of preventing pregnancy of minors 2) Male-only draft registration, classification was found to be substantially related to important interest of preparing combat troops 3) A law granting automatic US citizenship to nonmarital children born abroad to American mothers, but requiring American fathers of children born abroad to take specific steps to establish paternity in order to make such children US citizens, promotes important gov interest of avoiding proof of paternity problems, which are more difficult to resolve for fathers

Question 37

Legitimacy Classifications

Answer 37

- Distinctions drawn between marital & nomarital children are also reviewed under intermediate scrutiny standard. - Such classifications “must be substantially related to an important governmental objective

Question 38

No Punitive Purpose

Answer 38

- When Ct examines classification based on illegitimacy, it gives greater attention to purpose behind distinction. - It will not uphold discriminatory legislation intended to punish offspring of illicit relationships.

Question 39

Inheritance from Father

Answer 39

- State statute cannot absolutely exclude nomarital children from inheriting from their intestate fathers. - Note: However, to promote efficient disposition of property at death (an important gov interest), a state can require that paternity of father be proved b/f his death, since requirement is substantially related to the important interest.

Question 40

Statute of Limitations on Paternity Suits May Be Discriminatory

Answer 40

- SC struck down state statute that required nomarital children to bring paternity suits w/in 6 years of their birth while allowing marital children to seek support from parents at any time. - Ct found the law was not related to state interest of preventing stale/fraudulent claims.

Question 41

Immigration Preference to Legitimate Children—Permissible

Answer 41

- Due to the plenary power over immigration, Ct upheld fed law granting immigration preferences to marital children.

Question 42

OTHER CLASSIFICATIONS

Answer 42

- All other classifications are reviewed under rational basis standard & will be upheld unless they bear no rational relationship to any conceivable legit gov interest. - Nevertheless, if gov has no interest in denying a benefit/imposing a burden on a group of persons other than a societal fear/dislike of them, the classification will not meet the standard.

Question 43

Age Not Suspect

Answer 43

- Age is not a suspect classification. - Thus, gov action based on age will be upheld if there is a conceivable rational basis for classification. - Ex. police officer can be forced to retire at age 50, even though he is as physically fit as a younger officer; - Ex. state constitution that requires state judges to retire at age 70 does not violate EPC

Question 44

Wealth Not Suspect

Answer 44

- Ct has never held that wealth alone is a “suspect classification.” - However, lack of wealth, or inability to pay a governmentally required fee, cannot be sole basis upon which a person is deprived of a fundamental constitutional right.

Question 45

Education

Answer 45

- Education is not a fundamental right. - Ct has not found that children are denied equal protection when gov provides greater educational opportunities for children who can afford to pay for access to best state-operated schools. - In fact, Ct has upheld use of a property tax to fund local schools even though tax system resulted in children in districts w/ a high tax base getting a significantly better education than children in tax districts that could not afford significant taxes for education. - Ct has also upheld a statute that authorizes some school districts in state to charge user fees for bus transportation to local public schools.