Constitutional Protections● 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 wasnt equality (equal protection under law) 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. Thats the mission of liberty. Equality insists that government leave me alone unless it also picks on you.” – Power and Rights in US Constitutional Law (2nd Ed.) pg 171.
Two Sides of the Same Coin● Substantive Due Process = Liberty – Fundamental individual rights● Equal Protection = Equality – Treating people the same.
th 14 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? Times when government creates classifications of people. – Thus, the basic question is whether the governments classification is justified by a sufficient purpose.
What is Discrimination?● Dejure Discrimination – Discriminatory on its face. – Can be explicit or implicit. – Can be negative or positive.● Defacto Discrimination – Discriminatory impact
Korematsu v. United States● The internment of – Is this the strict Japanese-Americans scrutiny test? will be subject to “the most rigid scrutiny.”● But relationship between the government interest and action must be, according to the Court, “definite and Japanese-Americans boarding a train in Los Angeles on their way to a nearby close.” Internment camp.
Implicit Discrimination● Laws that are neutral on their face may still constitute de jure discrimination if: – Their enactment is motivated by racial discrimination or – Their enforcement is motived by racial discrimination.
Defacto Discrimination● In Washington v. Davis the test in question is race neutral but has a discriminatory impact on black applicants.● Is it enough to show discriminatory impact?● How does the Court conclude that there is no discriminatory motive here? – Without these facts, might the case have come out differently?
Equal ProtectionWhen can the government discriminate?
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
Understanding the Importance of Brown● Until 1950, Court had not used 14th 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.
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.
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.
Gender Discrimination● Judged under intermediate scrutiny● Prior to 1976, judged under either rational basis or 14th 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 its face or have purposeful effect. – NOTE – affirmative action programs based on gender are judged using intermediate scrutiny.
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.
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 its 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?
All the Rest● 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.
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.