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Equal Protection Clause

Universität Osnabrück
Universität Osnabrück
Universität OsnabrückLecturer at Universität Osnabrück

Provided to students at the University of Münster and Unversity of Osnabrück.

Equal Protection Clause

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A m e r i c a n C o n s t i t u t i o n a l L a w
Equal Protection
Blue linksBlue links lead to additional information
Words in Red are vocabulary you should know
L e c t u r e O v e r v i e w
●
Goals
– Provide a basic
understanding of how
U.S. law looks at
discrimination
– Explain the analysis
steps used by courts to
determine whether is
discrimination violates
the Constitution.
●
Structure
– Types of
discrimination
– Determining Level of
Scrutiny
– Applying the Level of
Scrutiny
1 4 t h A m e n d m e n t E q u a l i t y
●
Equal Protection ClauseEqual Protection Clause is
found in the 14th Amendment.
– “No state shall . . . deny to any
person within its jurisdiction the
equal protection of the laws.”
●
NOTE - “any person”
●
NOTE - “no state”
●
We commonly think of Equal
Protection cases as “discrimination”
cases.
●
Also applies to Federal Government
via the 5th Amendment.
– Reverse incorporationReverse incorporation
Students learning in a segregated school
Z u s a t z a r t i k e l X I V & V
●
Keiner der Einzelstaaten darf .
. . irgend jemandem
innerhalb seines
Hoheitsbereiches den
gleichen Schutz durch das
Gesetz versagen.
– Zusatzartikel XIV
●
Niemand darf . . . der
Freiheit oder des Eigentums
ohne vorheriges ordentliches
Gerichtsverfahren nach
Recht und Gesetz beraubt
werden.
– Zusatzartikel V
T h e M e a n i n g o f E q u a l P r o t e c t i o n
●
Does this mean that “no
state” can ever treat
people diferently under
the law?
●
Come up with examples
of instances where the
government classifesclassifes
people by some
characteristic and treats
them diferently based
on that characteristic.
– So do your examples
violate the Equal
Protection Clause?
T h e M o d e r n
E q u a l P r o t e c t i o n C l a u s e
●
The best way to think of
this is not by framing the
question as:
– May the government
discriminate?
●
But rather as:
– Under what
circumstances may the
government discriminate?
●
Governments sometimes
need to classify people
into groups.
●
Issue – When is doing so
permissible?
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Equal Protection Clause

  • 1. A m e r i c a n C o n s t i t u t i o n a l L a w Equal Protection Blue linksBlue links lead to additional information Words in Red are vocabulary you should know
  • 2. L e c t u r e O v e r v i e w ● Goals – Provide a basic understanding of how U.S. law looks at discrimination – Explain the analysis steps used by courts to determine whether is discrimination violates the Constitution. ● Structure – Types of discrimination – Determining Level of Scrutiny – Applying the Level of Scrutiny
  • 3. 1 4 t h A m e n d m e n t E q u a l i t y ● Equal Protection ClauseEqual Protection Clause is found in the 14th Amendment. – “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” ● NOTE - “any person” ● NOTE - “no state” ● We commonly think of Equal Protection cases as “discrimination” cases. ● Also applies to Federal Government via the 5th Amendment. – Reverse incorporationReverse incorporation Students learning in a segregated school
  • 4. Z u s a t z a r t i k e l X I V & V ● Keiner der Einzelstaaten darf . . . irgend jemandem innerhalb seines Hoheitsbereiches den gleichen Schutz durch das Gesetz versagen. – Zusatzartikel XIV ● Niemand darf . . . der Freiheit oder des Eigentums ohne vorheriges ordentliches Gerichtsverfahren nach Recht und Gesetz beraubt werden. – Zusatzartikel V
  • 5. T h e M e a n i n g o f E q u a l P r o t e c t i o n ● Does this mean that “no state” can ever treat people diferently under the law? ● Come up with examples of instances where the government classifesclassifes people by some characteristic and treats them diferently based on that characteristic. – So do your examples violate the Equal Protection Clause?
  • 6. T h e M o d e r n E q u a l P r o t e c t i o n C l a u s e ● The best way to think of this is not by framing the question as: – May the government discriminate? ● But rather as: – Under what circumstances may the government discriminate? ● Governments sometimes need to classify people into groups. ● Issue – When is doing so permissible?
  • 7. K e e p y o u r E y e o n t h e B a l l ● We are only talking about this: ● Not this: ● Remember, statutes can provide additional protections against discrimination
  • 8. S t e p s i n E q u a l P r o t e c t i o n B a l a n c i n g ● Step 1: What is the ClassifcationClassifcation and is it discriminatory? ● Step 2: What is the Appropriate Level of ScrutinyLevel of Scrutiny? – Strict – Intermediate – Rational Basis ● Step 3: Does the Government Classifcation Meet the Level of ScrutinyLevel of Scrutiny? – The Court will look at the ends and means
  • 9. S t e p 1 : I s t h e c l a s s i f c a t i o n d i s c r i m i n a t o r y ? ● Dejure DiscriminationDejure Discrimination – Intentional discrimination. – Can be explicit or implicit. – Can be negative or positive. ● DefactoDefacto DiscriminationDiscrimination – Discriminatory impact, but no intent to discriminate. – If defacto, move to Step 3 and apply the rational basis test. ● If Dejure, then move to step 2.
  • 10. K o r e m a t s u v . U n i t e d S t a t e s ● The internment of Japanese-Americans will be subject to “the most rigid scrutiny.” ● But relationship between the government interest and action must be, according to the Court, “defnite and close.” – This was undoubtedly dejure discrimination Japanese-Americans boarding a train in Los Angeles on their way to a nearby Internment camp.
  • 11. I m p l i c i t D i s c r i m i n a t i o n : E n a c t m e n t ● ImplicitImplicit = appears neutral but motivated by discriminatory intent. ● Gomillion v. Lightfoot (1960) – Blacks outnumbers whites in Tuskegee. – State redrew city lines to exclude most blacks in the city so white would not have be governed by blacks. – Redistricting found to be racially discriminatory.
  • 12. I m p l i c i t D i s c r i m i n a t i o n : E n f o r c e m e n t ● Example: Yick Wo (1886) – City law bans laundries in wooden building unless allowed by permit. – 2/3 of laundries owned by Chinese. – Only 1 of 100s of Chinese applicants received a permit. – All white owners received a permit. ● Implicit = appear neutral but motivated by discriminatory intent. "A Chinese Laundry in San Francisco, California – "The Coming Man Washing, Drying, Sprinkling and Ironing Clothes" From Leslie's Illustrated Newspaper, 14 May 1870. Via the University of Virginia Mark Twain collection.
  • 13. D e f a c t o D i s c r i m i n a t i o n ● Washington v. Davis - black applicants were four times more likely to fail test to become a police ofcer. ● “Disproportionate impactDisproportionate impact is not irrelevant, but it is not the sole touchstone of . . . racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that racial classifcations are to be subjected to the strictest scrutinystrictest scrutiny . . . .” – But it will still be subject to the rational basis test.
  • 14. C l i q r Q u e s t i o n s ● Dejure Discrimination is: a) Anytime government discriminates. b) When government discriminates based on race or ethnicity. c) When the efect government actions is discriminatory. d) When government intentionally discriminates against a group. ● In order to a police ofcer, candidates have to take a written test. A study shows that Africans-Americans score poorly on the exam. This is an example of: – Dejure Discrimination – Defacto Discrimination
  • 15. ● Answering this question will help us determine what level of scrutiny should be applied. S t e p 2 : I s t h e C l a s s i f c a t i o n “ S u s p e c t ” ● “Suspect ClassifcationsSuspect Classifcations” – Strict Scrutiny – Classifcations based upon race, national origin, religion, and alienage when states try to classify. ● “Quasi Suspect ClassifcationsQuasi Suspect Classifcations” – Intermediate Scrutiny – Gender, legitimacy, ● None of the above (default) – Rational Basis
  • 16. S t r i c t S c r u t i n y ● Does the state have a compelling interestcompelling interest? – There is no bright line test – Examples include national security and remedying past discrimination by the state. ● Is the classifcation necessarynecessary to meet this interest? – If there are other means to achieve the state's goal, the state loses. ● Sometimes the Court talks about the classifcation being narrowly tailored? ● the analysis is basically the same, though
  • 17. J u s t i f c a t i o n s f o r S t r i c t S c r u t i n y ● the group singled out sufered from a history of discrimination; ● the trait upon which the classifcation is based generally has no relationship to a person's ability to contribute to society; ● the trait is often singled out to reinforce prejudice against the group or label the group as inferior; ● the group is politically powerless by its numbers in the population, by under-representation in government, or by its inability to infuence the legislative agenda; and ● the trait shared by the group is a distinct trait and one over which its members have no control, an immutable or unalterable characteristic, or a trait that is central to personal identity.
  • 18. W h a t A b o u t “ P o s i t i v e ” D i s c r i m i n a t i o n ? ● Afrmative ActionAfrmative Action programs based on race must also be judged under strict scrutinystrict scrutiny ● This has become the battle ground for race- based classifcations. – These cases normally turn on whether the state can show a compelling interest. ● Pure quota systems are unconstitutional ● Race can be used as one of many factors for treating people diferently provided the government has compelling interest.
  • 19. Positive Discrimination ● afrmative action casesafrmative action cases show, motive is not important in these cases. ● for example, a busing program aimed at integrating public schools was struck down under strict scrutiny because Justices didn’t see desegregation as compelling interest. ● Parents Involved v Seattle School DisParents Involved v Seattle School Dis trict (2007)trict (2007)
  • 20. W h y R a c e B a l a n c i n g W a s R e j e c t e d ● Plurality of 4 Justices – No compelling interest ● "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." ● Ultimate goal must be color blindness. ● Concurring – Diversity is compelling interest – Plan is not necessary to meet this interest. – Less racially charged alternatives exist. ● Dissent (4 Justices) – Diversity is compelling interest – The plan was necessary to meet this interest. – NOTE – together with concurring opinion, 5 Justices believed diversity is compelling interest!
  • 21. I n t e r m e d i a t e S c r u t i n y ● Quasi-Suspect Classifcations – Gender – Legitimacy (children of non-married parents) ● Substantially related to important government interest. – NOTE – afrmative action programs based on gender are judged using intermediate scrutiny.
  • 22. G e n d e r D i s c r i m i n a t i o n ● Judged under intermediate scrutiny ● Prior to 1976, judged under rational basis. ● Passage of ERA would have established strict scrutiny as test. ● 4 Justices voted to make gender a suspect class, one Justice believed it was best to the let the ERA process play out. ● Would have created express gender equality in Constitution = strict scrutiny. – Passed by Congress in 1972 – Only 35 of needed 38 states ratifed by the deadline set by Congress
  • 23. G e n d e r C l a s s i f c a t i o n s B a s e d o n S t e r e o t y p e s ● Orr v. Orr (1979) – Court struck down law that only allowed women to receive alimony because it was based on stereotype that men are always the breadwinner. – See also United States v. Virginia ● Mississippi University for Women v. Hogan (1982) – Court struck down admission policy that only allowed women into nursing school. Based on stereotype that women, not men, should be nurses.
  • 24. T h e D e f a u l t R u l e ● Rational basis test – reasonably related to a legitimate government interest. – This is a very low standard – if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will likely withstand the rational basis review ● If the group is not “suspect” or “quasi-suspect” then classifcation will be judged under rational basis test.
  • 25. T h e L i m i t s t o R a t i o n a l B a s i s ● Laws cannot be motivated by an animosity toward a group of people. – Romer v. Evans (1996) – Amendment to Colorado constitution prohibiting cities from passing anti gay discrimination laws deemed unconstitutional. – Lawrence v. Texas (2003) - Texas law prohibiting homosexual conduct is unconstitutional – United States v. Windsor (2013) - federal law prohibiting the recognition of same sex marriages was unconstitutional. ● Because they were motivated by animosity toward homosexuals and such laws cannot meet legitimate state interest test.
  • 26. T r u m p ’ s T r a v e l B a n ● Issue: Whether President’s order banning entry to citizens from seven countries (many predominately Muslim) amounts to religious discrimination. ● Are Trump’s statements evidence of intent to discriminate on basis of religion? ● “I think Islam hates us…. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States... [a]nd of people that are not Muslim.” – Candidate Trump in a 2016 interview with Anderson Cooper
  • 27. T r u m p v . H a w a i i O p i n i o n s ● Majority – In issues of national security, great deference is given to Executive. ● Should be judged under rational basis test. – Trump’s statement’s not the issue, there is proof that decisions were made on something other than religion = legitimate interest. ● Dissent (Breyer, Kagan) – If motivation shows religious animus, then unconstitutional. ● Under rational basis test – If sole reason is national security, then no problem. ● The system of exemptions and case-by-case reviews provide the answer. ● Only anecdotal evidence available. We need more information. Remand!
  • 28. D i s s e n t ( S o t o m a y o r , G i n s b u r g ) ● The President’s words alone are enough to show religious animus in violation of the Establishment Clause. – Precedent: government actions that foster hatred, disrespect or contempt of religion violate the Establishment Clause. ● Government cannot act with intent to disfavor a particular religion. ● a reasonable observer would conclude the policy was driven by anti-Muslim animus. ● Even under rational basis it fails because of the clear animus the President has toward Muslims. ● There is no proof that this policy serves national interests. ● Agency review does not break link between discriminatory intent and actions taken.
  • 29. K o r e m a t s u R e v i s i t e d ? ● Court Majority: this case is not relevant. – Forcible relocation of U.S. citizens is far diferent than entry suspension for non- citizens. – “Korematsu was gravely wrong the day it as decided, has been overruled in the court of history, and—to be clear —“has no place in law under the Constitution.”
  • 30. W h a t t e s t w i l l b e a p p l i e d ? ( s e e c l i q r ) ● Oklahoma passed a statute prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 but allowed females over the age of 18 to purchase it. – Based on Craig v. Boren ● Oklahoma passed a statute prohibiting the sale of "nonintoxicating" 3.2% beer to “people with Irish sounding names” under the age of 21. ● NYC has policy that all police candidates must be at least 1.8 meters tall. Female candidate sues claiming gender discrimination.
  • 31. W h a t a r e t h e C l a s s i f c a t i o n s ? ● Group home for mentally disabled was denied building permit on the basis that it was a “hospital for the feebly minded". – Based on City of Cleburne v. Cleburne Living Center, Inc. ● School district had policy that if it had to lay of (Entlassung) teachers, it would do so in a manor that protected the racial make-up of the teaching staf. Thus, some black teachers with lower seniority might be protected from layof because of their race. – Based on Wygant v. Jackson Board of Education