Equal Protection Clause - Constitutional Law

EP governs: statutes, rules, unwritten policy, specific administrative decision or enforcement

For State: 14A EP

For FG: The constitutional basis is that SC, through reverse incorporation, found an implicit EP component in 5A (Bolling v. Sharpe)

RBR is the minimal level of scrutiny that all government actions challenged under EP must meet. A law meets RBR if it is rationally related to a legitimate government purpose. For fear of re-Lochnerizing, SC is very deferential in applying RBR. A law is upheld if it’s possible to conceive any legitimate purpose of the law.

Rationale for RBR: Basic equality: same treatment for similarly situated people in light of the totality of legitimate government goals

1. Over/ under inclusive analysis: The law is neither overinclusive OI nor underinclusive UI in light of the totality legitimate government goals. Under the rational basis test the court will usually tolerate laws that are OI or UI.

   1. Over-inclusive: includes people who should not be burdened

   2. Under-inclusive: leaves out people who in fact do threaten the state’s goal

2. Cost-benefit analysis

   1. Goals of reducing administrative costs/ substantive costs

   2. Multiple governmental goals

Cases where SC rejected EP- RBR challenges and uphold the laws

Railway Express: no vehicle advertisement except the owner

Minnesota v. Clover Leaf: bars plastic, not paper, non-returnable containers

Fitzgerald: Higher tax on slot machines on racetracks than riverboats

Williamson: opticians may not prepare lenses without prescription

Armour: rebate for future lump sum assessment not already paid

Cases where SC rejected the laws under RBR

1. Cleburne

2. Moreno

3. Romer

Legitimate goals:

1. Needs

2. Health/safety/ public morals (Railway express agency)

3. environmental goals

4. Entitlement/desert

Illegitimate goals:

1. Bare desire to harm a particular group (Moreno)

2. Fear of a particular group

Possible rationale for racial suspect classification

1. Anti-subordination theory: laws that discriminate along racial lines tend to exacerbate racial subordination in history.

2. Immutability

3. Prejudice

4. Stigma theory: stigmatize people as being inferior

5. Race is unlikely to be relevant

6. Political process theory: correct past mistakes through the political process

Level of scrutiny for suspect class:

1. Formalistic: SS for all racial classifications that Korematsu adopted – current approach

2. Fact-specific approach: Brown, Strauder, Plessy

Racial classification based on common physical characteristics, culture, ancestry, or social recognition

1. African American (many cases)

2. Chinese ethnicity (Yick Wo)

3. Japanese ethnicity (Korematsu)

4. Hispanic ethnicity

5. Ancestry classification in Rice

Several kinds of law

1. RBR

   1. Laws that are facially neutral and merely have racial disparate impact only get RBR (Davis)

   2. Simple enactment of anti-discrimination measures gets RBR. Repealing such measures also gets RBR.

      1. no race discrimination going forward in hiring – RBR

      2. give preference to anyone who can show that he was discriminated before. – RBR

      3. BUT: give preference to black applicants until the percentage is 30%. – SS

2. SS

   1. Facially neutral law motivated by subjective racially discriminatory purpose in the Feeney sense (specific intent, not merely knowledge) gets SS.

      1. Discriminatory purpose can be shown through direct or circumstantial evidence, including disparate impact.

      2. But for causation: if the decision maker didn’t have the discriminatory purpose in the Feeney sense, the decision being challenged would be different.

      3. Substantial factor: in mixed motivation cases, if same result would have occurred then that is not but for and not a strict scrutiny case

   2. Laws that facially discriminate along racial lines (at least burdening racial minorities) get SS (Korematsu)

   3. Laws that require racial sorting in its application. Loving* SS

   4. Administrative/ enforcement decision motivated by race gets SS. (Batson)

   5. Measures that restructure so as to make laws relating to race especially difficult to enact, get SS (not for court, see Crawford)

   6. All racial classifications, federal or state, benign or invidious, get SS. (Croson and Adarand)

   7. If race is a predominant factor motivating the drawing of district lines, court will use SS (Miller)

SS application

1. Compelling interest

   1. Military necessity (Korematsu)

   2. Remedying past public or private discrimination within the jurisdiction of legislative body (Croson, Adarand)

   3. Preventing future discrimination is also a compelling interest

   4. diversity in critical mass sense in higher education (Grutter)

      1. Balancing race ratio to mirror the population, not a compelling interest.

      2. We don’t know whether diversity in other contexts is compelling interest. (parents involved)

2. Narrowly tailored:

   1. race neutral means

   2. remedy limited to those suffering effects of past discrimination

   3. time limitation

   4. Grutter: race as qualitative plus factor + rough minimum percentage

      1. BUT: Gratz: point system, precise quota or percentage is not narrowly tailored

As a remedial measure courts can:

1. Aim at integration at each school

2. Use numerical percentages as guide

3. Use race based student assignment as means (Swann)

Intermediate scrutiny for gender classification: a law must be substantially related to an actual important government interest.

Gender is a suspect group because gender is immutable; generally irrelevant; history of gender subordination

Laws based on archaic and overbroad stereotype about gender roles will be struck down (Craig)

1. Craig: false...