American Constitutional Law Equal Protection

Constitutional Protections Privileges and Immunity Clause States cannot discriminate against citizens from other states. Representation in the Senate States grated equal representation in Senate.

Privileges and Immunity Clause

States cannot discriminate against citizens from other states.

Representation in the Senate

States grated equal representation in Senate.

Equality and the Bill of Rights Why wasn't equality included in Bill of Rights? Primary focus was: Creating limited government with branches that checked each other. Granting individuals liberty that also checked government power.

Why wasn't equality included in Bill of Rights?

Primary focus was:

Creating limited government with branches that checked each other.

Granting individuals liberty that also checked government power.

What is Equality “equality does not demand that government leave us alone. That's the mission of liberty. Equality insists that government leave me alone unless it also picks on you.” Power and Rights in US Constitutional Law (2 nd Ed.) pg 171.

“equality does not demand that government leave us alone. That's the mission of liberty. Equality insists that government leave me alone unless it also picks on you.”

Power and Rights in US Constitutional Law (2 nd Ed.) pg 171.

Two Sides of the Same Coin Substantive Due Process = Liberty Fundamental individual rights Equal Protection = Equality Treating people the same.

Substantive Due Process = Liberty

Fundamental individual rights

Equal Protection = Equality

Treating people the same.

14 th Amendment Equality “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” NOTE - “any person” NOTE - “no state” What are we really talking about? government created classifications of people.

“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

NOTE - “any person”

NOTE - “no state”

What are we really talking about? government created classifications of people.

What is Discrimination? Dejure Discrimination Explicit Implicit Defacto Discrimination This is really part of the “classification” prong of the analysis (see next slide)

Dejure Discrimination

Explicit

Implicit

Defacto Discrimination

This is really part of the “classification” prong of the analysis (see next slide)

Sufficient Justification What is the Classification? What is the Appropriate Level of Scrutiny? Strict Intermediate Rational Basis Does the Government Classification Meet the Level of Scrutiny? The Court will look at the ends and means

What is the Classification?

What is the Appropriate Level of Scrutiny?

Strict

Intermediate

Rational Basis

Does the Government Classification Meet the Level of Scrutiny?

The Court will look at the ends and means

History of the Clause Ratified in 1868 Together with 13 th and 15 th Amendments as part of post-Civil War reconstruction. Rarely used by Court until 1950s Often misused or derided by Court Plessey v. Ferguson: “separate but equal” Buck v. Bell: “usual last resort of constitutional arguments”.

Ratified in 1868

Together with 13 th and 15 th Amendments as part of post-Civil War reconstruction.

Rarely used by Court until 1950s

Often misused or derided by Court

Plessey v. Ferguson: “separate but equal”

Buck v. Bell: “usual last resort of constitutional arguments”.

Understanding the Importance of Brown Until 1950, Court had rarely used 14 th Amendment Equal Protection Clause to strike down law Separate but equal was the law. In Sweatt v. Painter , Court ordered University of Texas to accept black student noting that newly created “black” law school was actually inferior and thus not equal. In Brown, court said that separate education was inherently inferior, and thus unequal.

Until 1950, Court had rarely used 14 th Amendment Equal Protection Clause to strike down law

Separate but equal was the law.

In Sweatt v. Painter , Court ordered University of Texas to accept black student

noting that newly created “black” law school was actually inferior and thus not equal.

In Brown, court said that separate education was inherently inferior, and thus unequal.

The Impact of Brown I and II Brown II ordered schools to integrate with “all deliberate speed.” Three years later federal troops were needed to integrate Little Rock Central High School Today schools remain largely segregated.

Brown II ordered schools to integrate with “all deliberate speed.”

Three years later federal troops were needed to integrate Little Rock Central High School

Today schools remain largely segregated.

Strict Scrutiny “Suspect Classifications” Classifications based upon race, national origin, religion, and alienage when states try to classify. TEST necessary to serve a compelling government interest. Burden of Proof Court assumes law is invalid, so burden is on the state.

“Suspect Classifications”

Classifications based upon race, national origin, religion, and alienage when states try to classify.

TEST

necessary to serve a compelling government interest.

Burden of Proof

Court assumes law is invalid, so burden is on the state.

What About “Positive” Discrimination? Affirmative Action programs based on race must also be judged under strict scrutiny Pure quota systems are unconstitutional Race can be used as one of many factors provided the government has compelling interest.

Affirmative Action programs based on race must also be judged under strict scrutiny

Pure quota systems are unconstitutional

Race can be used as one of many factors provided the government has compelling interest.

Gender Discrimination Judged under intermediate scrutiny Prior to 1976, judged under either rational basis or 14 th Amendment Privileges Clause. Passage of ERA would have established strict scrutiny as test.

Judged under intermediate scrutiny

Prior to 1976, judged under either rational basis or 14 th Amendment Privileges Clause.

Passage of ERA would have established strict scrutiny as test.

Intermediate Scrutiny Quasi-Suspect Classifications Gender Legitimacy (children of non-married parents) Substantially related to important government interest. discrimination can be on it's face or have purposeful effect. Burden of proof is on the state.

Quasi-Suspect Classifications

Gender

Legitimacy (children of non-married parents)

Substantially related to important government interest.

discrimination can be on it's face or have purposeful effect.

Burden of proof is on the state.

Permissible Gender Discrimination Gender classifications benefiting women based on stereotypes not permitted Gender classifications designed to remedy past discrimination generally permitted Gender classifications benefiting woman can be based on biological differences between men and women.

Gender classifications benefiting women based on stereotypes not permitted

Gender classifications designed to remedy past discrimination generally permitted

Gender classifications benefiting woman can be based on biological differences between men and women.

Same Gender Schools Can the state create single gender schools without violating the Constitution? What is the classification? What level of scrutiny should be applied? Can the state meet it's burden?

Can the state create single gender schools without violating the Constitution?

What is the classification?

What level of scrutiny should be applied?

Can the state meet it's burden?

Justifications for Strict Scrutiny long history of discrimination relative political powerlessness of group clearly the case with non-citizens unfair to discriminate for characteristic that is acquired at birth and cannot be changed also called immutable trait should other groups be listed here? why have intermediate scrutiny?

long history of discrimination

relative political powerlessness of group

clearly the case with non-citizens

unfair to discriminate for characteristic that is acquired at birth and cannot be changed

also called immutable trait

should other groups be listed here?

why have intermediate scrutiny?

Rational Basis Rational basis test – reasonably related to a legitimate government interest. If the group is not “suspect” or “quasi-suspect” then classification will be judged under rational basis test. Burden of proof is on party challenging the law.

Rational basis test – reasonably related to a legitimate government interest.

If the group is not “suspect” or “quasi-suspect” then classification will be judged under rational basis test.

Burden of proof is on party challenging the law.

What is a Rational Basis Don't consider strength of the individual's interest or “right.” Focus is entirely on the rationality of the state's reason for enacting the law. Is reason totally irrelevant to State's goal Are the State's goals themselves invalid.

Don't consider strength of the individual's interest or “right.”

Focus is entirely on the rationality of the state's reason for enacting the law.

Is reason totally irrelevant to State's goal

Are the State's goals themselves invalid.

Rational Basis Examples Requirement that all police officers must be over 1.8 meters tall. City law the prohibits retirement homes (Altenheim). State law that imposes higher tax on out of state insurance companies then those with headquarters in the state.

Requirement that all police officers must be over 1.8 meters tall.

City law the prohibits retirement homes (Altenheim).

State law that imposes higher tax on out of state insurance companies then those with headquarters in the state.