Equal Protection

Question 1

When is equal protection invoked?

Answer 1

When a law treats one person or class differently from others

Question 2

What does equal protection require from the government?

Answer 2

Government must justify its action when it discriminates

Question 3

What is the constitutional Basis of Equal Protection for state action ?

Answer 3

• Equal Protection clause of 14th Amend.

Question 4

What is the constitutional basis for equal protection for Federal Action?

Answer 4

No federal equal protection clause

• BUT the 5th amendment due process clause includes the rights guaranteed by the equal protection clause

Question 5

What are the Standards of Review ?

Answer 5

1. Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
2. Intermediate Scrutiny - Law must be substantially related to an important government interest
3. Rational Basis - Law must be rationally related to a legitimate gov’t int.

Question 6

What are the steps in analyzing an equal protection question?

Answer 6

1. Identify the status of the actor discriminating (gov’t or priv.)
2. If gov’t, identify the type of discrimination. If private, EP doesn’t apply
3. Identify and apply the level of scrutiny attached to that discrimation

Question 7

What must be present to trigger strict or intermediate scrutiny?

Answer 7

There must be discriminatory intent on the part of the government

• Disparate effect alone w/out intent is not enough
• Discriminatory intent can be shown facially, as applied, or when there is discriminatory motive

Question 8

Facial Discrimination

Answer 8

Law that, by its lang., creates distinction b/w classes of persons is discriminatory on its face

Question 9

Discriminatory application

Answer 9

Law appears neutral on its face but is applied in a discrim. fashion

Question 10

Discriminatory Motive

Answer 10

Law is neutral on its face and in its application

• BUT still results in disparate impact
• Still need prood of discrim. intent

Question 11

Equal Protection - What is the level of Scrutiny for Race, Ethnicity & National Origin Classification

Answer 11

Strict Scrutiny - law must be the least restrictive means to achieve a compelling gov’t interst

Question 12

Define de jure segragation

Answer 12

Segregation imposed by law

• Will almost always be unconst.

Question 13

Define De facto segregation

Answer 13

Not legally required but happens by private choice

• no const. issue b/c there is no state action

Question 14

School Integration

Answer 14

Discrim. must be intentional so only de jure segregation in schools violates EP clause

• School board must take steps to elim. int. racial seg. or schools
• Court can order dist. to implement measures (busing) to remedy the discrim.
  
  • Temp. - Must be terminated once the past discrim. has been eliminated

Question 15

Equal Protection - Racial Classification Benefitting Minorities

Level of Scrutiny

Answer 15

Strict Scrutiny

• gov’t must prove means chosen are nec. to achieve a compelling gov’t int.
• Compelling Gov’t Int. - e.g. to remedy clearly proven past discrimination, diversified student body

Question 16

What are the 2 compelling interests the government has in Affirmative Action ?

Answer 16

1. Past Discrimination by the Government AND
   
   • The benefits should go as closely as possible to the ppl discriminated
2. Diversity in Public Universities and Colleges
   
   • Race can be one factor among many with no fixed weight
   • Use of racial quoatas or race as a determinative criterion is unconst.

Question 17

Equal Protection - Racial Classification Benefitting Minorities

Numerical Set Asides

Answer 17

Numerical set asides require clear Proof of past discrimination

Question 18

Equal Protection - Racial Classification Benefitting Minorities

Public School Systems

Answer 18

Sch. dist. can’t assign students to schols on the basis of race unless it is necessary to accomplish a compelling interest (e.g. remedy past discrim.)

• Only intentional segregation is unconst.
• School can use facially neutral criteria that may have the same effect
  
  • Strategic site selection for new schools or
  • redrawing of attendance zones

Question 19

Equal Protection - Discriminatory Use of Preemptory Challenge Based on Race

Answer 19

In both civil & Crim. cases

• violates EP & is unconst

Question 20

Equal Protection - Racial Gerrymandering

Answer 20

Race can’t be predominant factor in drawing boundaries of voting district unless district plan meets strict scrutiny

Question 21

Equal Protection - Alienage Classifications

Level of Scrutiny

Answer 21

Status as a lawful resident of the United States

• Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest
  
  • BUT some situations, discrimination against non-citizens is reviewed under Rational basis

Question 22

Equal Protection - Alienage Classifications

Which situations are reviewed under Rational Basis

Answer 22

1. Federal Discrimination Against Aliens
2. Self Gov’t & Democratice Process
3. Undocumented Aliens

Question 23

What level of scrutiny will a state’s discrimination based upon alienage receive?

Answer 23

Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest

• Generally struck down if law discrim. against aliens
• Exception - State law that restricts or prohibits an alien’s participation in gov’t functions
  
  • Can exclude non-citizens from jobs related to state governance (cops, officials, pub. sch. teacher)
  • Only need rational relationship to legit. int.

Question 24

What test is applied when states discriminate against illegal aliens ?

Answer 24

Not a suspect class

• Not protected
• Discrim. against them will recieve rational basis review
• BUT can’t deny prim. or sec. edu benefits to undoc. aliens

Question 25

Equal Protection - Alienage Classifications Federal Discrimination Against Aliens

Answer 25

Rational Basis Review * When cong. passes statute discrim. against aliens * Congress has plenary power over aliens, classification likely valid unless arbitrary and unreas.

Question 26

Equal Protection - Alienage Classifications Undocumented Aliens

Answer 26

Rational Basis Review * They’re not considered a suspect class so state laws that discriminate against them are reviewed under RB * Exception * Denial of Free Pub. Edu. to Undocumented Alien Children = Intermediate Scrutiny (due to powerless nature of the class & importance of edu.)

Question 27

Equal Protection - What are the Quasi-Suspect Classifications ?

Answer 27

1. Gender 2. Legitimacy

Question 28

Equal Protection - Gender Classification Level of Scrutiny

Answer 28

* Intermediate Scrutiny - Law must be substantially related to an important government interest AND * Exceedingly Persuasive Justification exists for the distinction

Question 29

Equal Protection - Gender Classification Proving Existence of Gender Classification

Answer 29

* Facially Discriminates - Terms of law draws distinction among ppl based on gender OR * Facially Neutral - Must have discrim. impact & discriminatory intent

Question 30

Equal Protection - Gender Classification Discriminatory Use of Preemptory Challenges based on Gender

Answer 30

Both Civil & Crim cases * challenges on basis of gender violates EP & is unconst.

Question 31

Equal Protection - Gender Classification Classifications Benefiting Women (Gender based affirmative action)

Answer 31

Intermediate Scrutiny * Role Stereotypes = Unconstitutional - Gender Classification that benefit women on basis of role stereotypes aren’t allowed * Remedy Past Discrimination = Valid

Question 32

Equal Protection - Legitimacy Classifications

Answer 32

Discrim. against children conceived out of wedlock * Level of Scrutiny - Intermediate - Law must be subst. related to important gov’t interest

Question 33

Equal Protection - Religion Classifications

Answer 33

No cases but it is assumed that discrim. based on religion would be viewed under strict scrutiny

Question 34

Equal Protection - Rational Basis Review

Answer 34

Used for all other types of discrimination- Law must be rationally related to a legitimate gov’t int. * Age Discrimination * Disability Discrimination * Wealth Discrimination * Economic Regulations * Sexual Orientation * Alienage Classifications Re: Self Gov’t & Democratic Process * Congressional Discrimination Against Aliens * Convicts - SCOTUS has not held that convicts are a suspect class

Question 35

Equal Protection - Laws Discriminating against Sexual Orientation

Answer 35

Rational Basis Review - Ct. unwilling to treat gays as suspect or even semi-suspect class BUT Federal Gov’t Can’t discriminate Against Same Sex Couples Legally Married Under State Law * 2013 - SCOTUS struck down Defense of Marriage Act (DOMA) * Holding - When a same sex couple has been legally married under state law, fed. gov’t can’t discriminate against the same sex couples * Ct. didn’t address whether state would violate EP Clause by banning same sex marriage

Question 36

Fundamental Rights Unique to Equal Protection

Answer 36

Fund. rights guar. by substantive due process are protected by equal protection principles as well * Impingement of the right to vote, to travel, or to marry may trigger an inquiry under either DP or EP BUT * Certain rights are particular to equal protection 1. One Person, One Vote 2. Gerrymandering

Question 37

The right to vote in state elections comes from where ?

Answer 37

EP clause of the 14th amendment

Question 38

One Person One Vote Define

Answer 38

One person's vote must be essentially equal to any other person's vote * When gov't est. voting districts for the election of reps. the number of persons in each district must be approx. equal

Question 39

What is the test applied to laws departing from one person one vote ?

Answer 39

Strict Scrutiny - Law must be the least restrictive means to achieve a compelling government interest

Question 40

Gerrymandering

Answer 40

When a state draws election districts for the purp. of scattering a racial or ethnic minority among several districts in order to prevent the minority form exercising its voting strength * State action violates EP clause