Constitutional Law II Outline – Ancheta (Chemerinsky book)
Equal Protection
I. Introduction
a. Equal Protection Clause: “No state shall…deny to any person within its jurisdiction the equal protection of the laws”
i. Bolling v. Sharpe applies the Equal Protection Clause to the federal government via the Due Process Clause (“discrimination may be so unjustifiable as to be violative of due process”)
b. Framework
i. What is the classification?
1. Classifications on the face of the law
2. Facially-neutral laws with a discriminatory impact to the law or discriminatory effects from its administration
ii. What is the appropriate level of scrutiny (Standard of Review)?
1. Strict: race, national origin, sometimes alienage
2. Intermediate: gender, non-marital children
3. Rational Basis Test: minimum level for all other classes
iii. Does the government action meet the level of scrutiny? Ends/Means analysis
c. Protection of Fundamental Rights under Equal Protection
i. Typically used for discrimination based on classifications, such as race, gender, alienage, legitimacy, age, disability, wealth, sexual orientation
ii. BUT, also used if the government discriminates among people as to the exercise of a fundamental right (see Con Law I), such as right to procreate, voting, access to judicial process, interstate travel
II. Rational Basis Test: minimal level of scrutiny that all government actions challenged under equal protection must meet
a. Requirements
i. Legitimate Purpose
1. What is legitimate?
a. The Court is typically extremely deferential to the government
b. Romer v. Evans: no legitimate purpose for Colorado Amendment that repealed all laws protecting gays, lesbians, and bisexuals from discrimination and prohibited all future government action to protect these individuals from discrimination
2. Actual purpose or any conceivable purpose?
a. Any conceivable interest, even if not the government’s actual purpose, can suffice
b. U.S. Railroad Retirement Board v. Fritz: upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system; “irrelevant whether this reasoning in fact underlies the legislative decision because this Court never has insisted that a legislative body articulate its reasons for enacting a statute
c. Federal Communications Commission v. Beach Communications: reaffirmed that any conceivable legislative purpose is sufficient and stated that “those attacking the rationality of the legislative classification have the burden to [negate] every conceivable basis which might support it”
d. Critics argue that the rational basis of review is only meaningful if the Court limits itself to looking at the actual purpose for a law
ii. Reasonable Relationship
1. Deference to the government – laws will be upheld unless the government’s action is “clearly wrong, a display of arbitrary power, not an exercise of judgment”
2. Tolerance of under- and over- inclusive laws
a. Underinclusive laws
i. Laws that don’t regulate all who are similarly situated; raise concern that the government has enacted a law that targets a particular politically powerless group or that exempts those with more political clout
ii. Railway Express Agency, Inc. v. New York: upheld an ordinance that banned all advertising on the sides of trucks unless the ad was for the business of the truck’s owner
b. Overinclusive laws
i. Laws that cover more people than it needs to in order to accomplish its purpose; unfair to those who are unnecessarily regulated and they risk “burden[ing] a politically powerless group which would have been spared if it had enough clout to compel normal attention to the relevant costs and benefits
ii. New York City Transit Authority v. Beazer: upheld law prohibiting those in methadone maintenance programs from working for the NYCTA, but the vast majority of those in programs posed no safety risk
c. “…perfection is by no means required” (Vance v. Bradley)
III. Classifications
a. Race and National Origin Classifications
i. Strict scrutiny standard; justified by the long history of racial discrimination, which make it very likely that racial classifications will be based on prejudices rather than legitimate public concerns, the relative political powerlessness of the groups, and that race is an immutable trait
ii. Classifications on the Face of the Law:
1. Classifications disadvantaging racial minorities
a. Korematsu v. United States: upheld the constitutionality of the evacuation of Japanese-Americans, accepting the government’s claim that they posed a serious risk to national security and that there was no way of screening to identify such individuals; enormously over- and under- inclusive; perhaps best understood as an example of the Court’s deference to the military, especially in wartime
2. Classifications disadvantaging both whites and minorities
a. Loving v. Virginia: declared VA’s miscegenation statute that made is a crime for a white person to marry outside the Caucasian race; statute relied solely on distinctions drawn according to race and the equal application of it does not remove it from the 14th amendment’s proscription
3. Segregation and Desegregation
a. Plessy v. Ferguson: upheld laws that mandated blacks and whites use “separate but equal” facilities, stating that the intention of the 14th amendment was to enforce the equality but not to abolish distinctions based on color and, thus, such laws are not unreasonable
b. Brown v. Board of Education: eliminated the doctrine of “separate but equal” in the field of education, stating that is generates a feeling of inferiority in black children which interferes with their learning; eventually “separate but equal” was invalidated in other contexts
c. Problem of remedies…Brown mandated the desegregation of schools including the reassignment of pupils and teachers, which was met by a massive resistance and was especially difficult because of residential sorting
4. Classifications benefiting racial minorities – Affirmative Action
a. Historically struggled with the standard of review
i. UC Regents v. Bakke: concluded that affirmative action violated Title VI of the 1964 Civil Rights Act, but they didn’t even discuss the level of scrutiny
ii. Fullilove v. Klutznick: majority opinion didn’t concern the appropriate level, but upheld a federal law which required 10% of public works monies to be set aside for minority-owned businesses
iii. United States v. Paradise: upheld mandate that a qualified black be hired every time a white was hired or promoted and the plurality decision found that “the relief ordered survives even strict scrutiny analysis”
iv.
iii. Justifications to meet strict scrutiny
1. History of race discrimination with regard to voting is not compelling
2. A political goal, such as protecting a safe seat for an incumbent or creating a district which has a majority of one political party, is compelling
3. Easley v. Cromartie: predominance of political party considerations does not trigger strict scrutiny
iii. Facially Neutral Laws with a Discriminatory Impact
1. Proof of a Discriminatory Purpose (v. effect)
a. Washington v. Davis: held that proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial classification (in this case, black applicants for the D.C. police force failed exam more than whites), justified because the purpose of the 14th amendment is “the prevention of official conduct discriminating on the basis of race” and mere impact “would raise serious questions about…a whole range of…statutes that may be more burdensome to the poor and to the average black than to more affluent white”
b. McCleskey v. Kemp: held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation, arguing that defendant “must prove that the decisionmakers in his case acted with discriminatory purpose”
c. However, some civil rights statutes, i.e. Title VII of the 1964 Civil Rights Act, allow proof of discriminatory impact to establish a violation of the law; the Court maintains that under the Constitution, proof of discriminatory impact is insufficient, by itself, to establish a denial of equal protection
d. Issue over the ultimate purpose of the 14th amendment…is it only about equal treatment by the government or should it also be concerned with equal rights?
2. Difficulty in proving a discriminatory purpose
a. Personnel Administrator of Massachusetts v. Feeney: Court provided a narrow definition of intent (this case involved a challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing); “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker…selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
b. Village of Arlington Heights v. Metropolitan Housing Development Corp.: ruled that the plaintiff must prove that a discriminatory purpose has been a motivating factor in the decision, which can be proved by such evidence as
i. Being so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes
ii. The history surrounding the government’s actions
iii. The legislative or administrative history of the law,
and then the burden shifts to the government to prove that it would have taken the same action without the discriminatory motivation
