This document provides an overview of equal protection analysis under American constitutional law. It discusses the types of discrimination courts examine, including de jure (intentional) and de facto (disparate impact) discrimination. It explains that courts determine the appropriate level of scrutiny - strict, intermediate, or rational basis - based on the type of classification at issue. The levels of scrutiny differ in the justification required of the government for discriminatory policies. The document outlines the three-step process courts use to analyze equal protection claims.

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