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Constitutional Law II
St. Johns University School of Law
Weinberg, Phillip

—Equal Protection—
I                      14A – Equal Protection Clause
A)      Equal Protection Clause
                                                 1.      Note: Due Process Clause à it can be argued that denial of equal protection is a violation of due process of law [this argument failed in Dred Scott Case.]                                                  2.      Equal Prot. Cl. applies to Congress – Equal Protection Clause is substantively applied to Congress via 5A Due Process clause.
                                                 3.      Not just Race – even though 14A passed for benefit of freed slaves, its broad language is not limited to race. 14A applies to any form of government discrimination.
                                                 4.      Corporation = “person” for 14A purposes.
B)      Equal Protection Violation = law treats differently those who are similarly situated.
                                                 1.      Invidious Discrimination – 14A prohibits any invidious discrimination, not just race
a.        E.g. R/E taxes
                                                 2.      Similarly situated – All statutes treat people unequally based on conduct (thief and non-thief treated differently). The key is treating differently people who are similarly situated.
C)      Standards of Review
                                                 1.      Rational Basis Test – absent a suspect class or fundamental right, legislature need only show a rational basis for the different treatment
a.        BOP on P – P has the burden of proof to show that there is no rational basis for the law (very difficult burden)
i.                     Court is not a super-legislature to decide the soundness of a law.
                                                 2.      Middle Tier Scrutiny – Gender
a.        BOP on State to show the discrimination is substantially relatedto an important gov’t interest.
                                                 3.      Strict Scrutiny –
i.                     Suspect Classification à Race, national origin or
ii.                   Fundamental Right (voting)
b.        BOP on State – BOP shifts to the state to show discriminating law is narrowly tailored to achieve a compelling gov’t interest
D)      Scrutiny of Means in Economic Regulations è The Rationality Requirement
                                                 1.      Ads on Trucks: Railway Express Agency – RailEx trucks were prohibited by NY law from selling advertisement space on the sides of its trucks (e.g. lucky strike). RailEx could advertise its own services on its trucks. NY argued rational basis of preventing traffic distractions from advertisements on trucks. RailEx argued no rational basis for law b/c the distraction to traffic is the same b/t hirelings and owner-drivers.
a.        Held: rational basis à leased ads are more of problem b/c there can more leased ads. Therefore, hirelings and owner-drivers are not similarly situated.
i.                     Part of the problem à city can deal with only part of the problem and can decide which ads to regulate, so long as it differentiates on a rational basis.
b.        *Judicial Leniency on Economic Regsà doesn’t take much for court to uphold an economic regulation on a rational basis test
i.                     Note: Commercial Speech – today, RailEx would attack the law under 1A Free Speech (commercial speech had no 1A protection in 1950’s).
                                                 2.      Grandfathered Vendors: Duke – New Orleans law prohibited push-cart vendors in French Quarter, but exempted vendors who had operated for previous 8 years. P had only operated for 2 years. P argued he was similarly situated to older vendors.
a.        Held: rational basis à flavor: City: “old vendors add to the flavor of the French Quarter, but we don’t any new or young vendors”
b.        Economic Regulation à rational basis easy to show: it’s very difficult for P to show denial of Eq. Prot (i.e. no rational basis) in an economic law, absent a suspect class.
                                                 3.      Age Requirement: Murgia – Mass. law required State Police to retire at age 50.
a.        Held: Rational basis = physical fitness of officers [note: probably no rational basis if retirement age set at age 25] i.                     Age is not a suspect class even though you can’t change it
                                                                                                                         1.      pattern – there must be a historical pattern of discrimination to be a suspect class [more on this later]  
                                                 4.      Drug Use: NYC Transit Auth. v. Beazer – law prohibited all drug users from working in any position for the MTA. Methadone was on the list of drugs. Beazer only sweeps the floor; does not drive the bus. Also, methadone is used to get people off heroin.
a.        Held: rational basis: NYC: public perception of junkie EE’s, absenteeism, poor work ethic
i.                     Economic Reg à rational basis easy to show
ii.                   Weinberg à this law is irrational
                                                                                                                         1.      methadone used to get off heroin
                                                                                                                         2.      P not driving the city bus while high
                                                 5.      Irrational Basis: Logan – L was handicapped; he filed a complaint against his ER with state agency based on anti-discrimination law. Law required commission to hear complaint within 120 days. Commission waited too long and then dismissed complaint b/c they dragged their feet.
a.        Held: denial of procedural due process through no fault of L.
b.        Separate Opinion: 2 classes

         Narrowly tailored
                                                                                                                         1.      No less Restrictive means to prevent Japanese sabotage in US
a.        Ct à “pressing public necessity” [W: weak argument] ii.                   Compelling Gov’t Interest
                                                                                                                         1.      Sabotage, spying, espionage.
b.        C/A: this law was notnarrowly tailored:
i.                     Individual determinations would have sufficed to make law narrowly tailored (M. Malkin would disagree)
C)      The Unconstitutionality of Racial Segregation
                                                 1.      “Separate but Equal” and its demise
a.        Plessy – Louisiana law mandated separate RR cars for blacks. LA argued no discrimination based on race, claiming each race had equal accommodations. [this was clearly discrim based on race] i.                     Harlan dissent: “Constitution is color blind, we don’t have a caste system in the US”
b.        Brown v. BOE overruled Plessy, but the “separate but equal” doctrine was chipped away in prior cases in the 1940’s and 50’s…. e.g.:
i.                     Sweat – Texas law school only allowed whites. TX proposed to create a separate black law school with equal faculty and facilities.
                                                                                                                         1.      c/a: black law school could not be equal in regard to:
a.        reputation of school
b.        alumni
c.        faculty
                                                                                                                         2.      Held: black school is not equal, even under Plessy.
                                                 2.      Brown v. Board of Education – “Separate but equal” overruled.
a.        Held: Strict scrutiny applies à even assuming black schools are “equal” to white schools, it is inherent that black children are painted with a badge of inferiority.
i.                     “To separate them from others of similar age and qualifications solely b/c of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”