Constitutional Law II Outline

EQUAL PROTECTION
                                                           
I.     Race
A.             Introduction
1.              Court has subjected all classifications to some kind of rationality reqt.
2.              For non-racial classifications, the Court has ordinarily required only that differences in treatment have some minimally rational basis, though some formulations have interpreted reasonableness requirement w/ more bite than others.
3.              Court relied on EP to strike down regulation requiring RRs (but not others) to pay attorneys’ fees to successful Ps in certain cases (Gulf, C. & S. F. Ry. v. Ellis, 1897, 486).
4.              Court in recent decades has employed roughlythree tiers of review(spectrum of standards may be more appropriate):
a)              Strict scrutiny of race discrimination & its analogues
(1)           Requires that regulation serve compellinggovernmental interests & be essentialto those interests
(2)           Must be least restrictive means
b)             Intermediate scrutiny of gender discrimination
(1)           Requires that regulation serve important governmental objectives and be substantially related to achievement of those objectives
c)              Mere rationality review for other classifications (socioeconomic laws, age, disability, sexual orientation)
(1)           Requires only rational relationshipto legitimate ends.
5.              Court has required that for heightened levels of scrutiny a law must be measured by actual govt purposes, but has allowed rationality review to be satisfied by conceivable govt purposes even if hypothesized.
6.              Fourteenth Amendment: No State shall deny to any person within its jx the equal protection of the laws (focus of this section).
7.              HYPO:            
a)              State A:
(1)           To practice law, must pass bar exam
(2)           Must be >16 to obtain driver’s license
(3)           Must earn < 20K/yr to qualify for welfare b)             State B: (1)           No women can become practicing attorneys (2)           Latinos cannot obtain driver’s licenses (3)           Children born outside of a marital relationship do not qualify for welfare c)              Analysis: (1)           No legitimate purpose for State B laws (2)           Perpetuates discrimination (3)           Those affected by State B laws can’t change who they are 8.              U.S. v. Carolene Products, FN 4: “It is unnecessary to consider now . . . whether prejudice against discrete and insular minorities may be special condition, which tends seriously to curtail operation of those political processes ordinarily to be relied upon to protect minorities, & which may call for a correspondingly more searching judicial inquiry.”àSuggests heightened level of scrutiny may be appropriate. B.              Segregation/Discrimination By Race 1.              Racial Classification: Why SS (Strict Scrutiny)? (slide) a)              14th A history demonstrates intent to protect blacks b)             U.S. history of institutional and private racism c)              Immutable characteristic—unfair to punish for it d)             Fear that distinctions reflect stereotypes, not reality e)             Blacks = Discrete & insular minority; political process failure 2.              Why different levels of scrutiny, even though not part of C’l text? Why not just apply strict scrutiny to every classification? [from class] a)              Waste of judicial resources b)             Undermines democratic (legislative) process c)              Extending scrutiny to different classifications besides race is justified b/c no textual commitment solely to preventing racial discrimin. d)             Might gain consistency w/ single basis of scrutiny, at price of judicial resources 3.              Analytical Method (slide) a)              What is the classification? (1)           How does law distinguish among people? (2)           On face? In effect? b)             What is the level of scrutiny applied? (1)           SS – race, national origin (2)           IS – gender, non-marital children (3)           RR – economic, all other classifications (sexual orientation included) c)              Does govt action meet level of scrutiny 4.              Analytical Methodology – Levels of Scrutiny (slide) a)              SS (1)           Ends/Goals: Compelling (2)           Means: Least Restrictive/Narrowly Tailored b)             IS (1)           Ends/Goals: Important (2)           Means: Substantially Related c)              RR (1)           Ends/Goals: Legitimate (2)           Means: Rationally Related 5.              Court sustained 1890 LA law that req’d separate but equal accommodations for white and colored railroad passengers (distinguished between social and political equality) b/c inferiority not implied & consistent w/ established custom (reasonable) (Plessy v. Ferguson, 1896, 488). a)              Harlan dissent: Purpose of separate cars was to exclude blacks from cars of whites; interferes w/ personal freedoms of citizens; C is color-blind; promotes race hate; brand of servitude & degradation. b)             14th Am. not intended to force social integration on terms unsatisfactory to whites c)              Assoc. w/ persons of other races should be voluntary & b/c of personal affinity d)             There is a difference between lack of political equality and segregation e)             Rule: every exercise of police power must be reasonable, and extend only to such laws as are enacted in good faith for promotion of the public good, & not for the annoyance or oppression of a particular class. Reasonableness factors: (1)           Established usages (2)           Customs (3)           Traditions of the people (4)           Promotion of comfort (5)           Preservation of public peace & good order f)               Underlying fallacy of P's argument is that segregation stamps blacks with badge of inferiority g)              Decision subjects racial discrimination to the lower "RR" standard 6.              Black man entitled to be admitted to existing state law school, even though no black law school in-state existed & state willing to pay out-of-state tuition (Missouri ex rel. Gaines v. Canada, 1938, 490). 7.              Court required the admission of blacks to UT Law School even though state had recently established black law school, b/c black law school not equal (inferior) (Sweatt v. Painter, 1950, 490). 8.              Black grad student not req’d to sit in separate sections of state university’s grad program not offered at state’s black school b/c restrictions impaired ability to study, to engage in discussions & exchange views w/ other students, & learn his profession (McLaurin v. OK State Regents, 1950, 490). 9.              Brown v. Bd of Education, (1954), 491 a)              Segregation of children in public schools solely on basis of race deprives them of equal educational opportunities [EP], even though the physical facilities & other tangible factors may be equal b/c generates feeling of inferiority & retards educational & mental development according to social science data (Plessy rejected). b)             Rule: “Separate but equal” public education is denial of EP. c)              Class Notes:    (1)           Why take on the harder question of what equality means? (2)           Judicial resources conserved by taking on that issue earlier (3)           Ct focused on intangible effects of segregation partially b/c of intangible psychological effects segregation had on blacks (4)           Warren: evaluation of history of segregation is inconclusive (a)