Constitutional Law - Equal Protection Of The Laws

Front 1

Equal Protection Sources

Back 1

States: 14th Amendment

Federal: 5th Amendment Due Process

Requires the government to justify when it discriminates.

Front 2

Rational Basis
(Standard of Review)

Back 2

Plaintiff must show action is rationally related to legitimate government interest.

Two exceptions:
1. intentional disparate impact
2. discriminatory application

Default standard of review.
--includes: age, disability, alienage

Government generally wins, except:
--discrimination in sexual orientation or criminal law

Front 3

Intermediate Scrutiny
(Standard of Review)

Back 3

Government must show substantially related to an important interest (actual reason government did this)

Applies to government discrimination regarding sex and illegitimacy.

Front 4

Strict Scrutiny
(Standard of Review)

Back 4

Government must show necessary to serve compelling state interest.

Necessary: no less restrictive means available

Front 5

Suspect Classifications

Back 5

Strict Scrutiny:
1. race
2. alienage
3. national origin

Intermediate Scrutiny:
1. gender
2. illegitimacy

Front 6

Race
(Suspect Classification)

Back 6

Types--facial discrimination:
1. prohibiting interracial marriage or cohabitation (unconstitutional)

2. de jure segregation - segregation by law (almost always unconstitutional--especially if bad intent)

3. de facto segregation - segregation happens through private choice (no constitutional issue)

4. school segregation -
--hindering desegregation is unconstitutional (included closing all public schools)
--affirmative duty for school boards to eliminate intentional race segregation of schools
--court-ordered bussing to remedy past discrimination is constitutional

Front 7

Overt classifications may pass strict scrutiny

Back 7

a) Looks like good enough reason in unusual circumstances
(Ex: racial fighting so police segregate in trying to end the violence)

b) Affirmative Action
(It still gets strict scrutiny)

Front 8

Affirmative Action - Race

Back 8

Strict Scrutiny

Two compelling interests:
1. Remedying state’s past discrimination
--Narrow tailoring requires that the benefits go as closely as possible to the people actually affected by the state’s discrimination
(Often see in government contracting)

2. Diversity in higher education
--Narrow tailoring means race can be one factor among many with no fixed weight.

Front 9

Alienage
(Suspect Classification)

Back 9

Strict scrutiny if states discriminate on resident alienage.

Exception:
--Public Function Exception: can exclude non-citizens from government jobs that are related to self-government
1. police officers
2. government officials
3. public school teachers

Does not apply to:
--purely ministerial jobs (notary public)

Illegal alienage - rational basis
--But, states have run into trouble:
i. Illegal alien children – intermediate scrutiny
ii. States cannot treat differently if has affect on immigration—area of exclusive federal authority

Front 10

Illegitimacy

Back 10

Intermediate Scrutiny

Almost always fail (unconstitutional)
--> Purpose has usually been to disfavor or stigmatize illegitimate children which is not important interest.

Front 11

Sex Discrimination

Back 11

Laws that treat men and women differently must meet intermediate scrutiny.

Intermediate scrutiny

Examples where such laws were held to be constitutional:
a) Draft
b) Statutory rape – ok to set the age of consent higher for females than males
(Interest: protecting teen pregnancy--interest re: females, not males)

Front 12

Affirmative Action - Sex Discrimination

Back 12

Intermediate Scrutiny

Sex-based will be upheld when making up for past discrimination, even where societal and not done by government