Constitutional Law I Outline

CONSTITUTIONAL LAW OUTLINE
HOLMQUIST S16 FINAL
 
EQUAL PROTECTION
 
Underlying notion: similarly situated people should be treated similarly
Two theories behind equal protection:
Colorblindness/formal equality: Race is meaningless and should be ignored. Public and private life shouldn’t be organized along racial lines; integration should be encouraged because racial distinctions are arbitrary. Would forbid the government from considering race
Anti-caste/anti-subordination: Formal equality is not enough given the history etc. of racial discrimination. Must do more than purge facial classifications; country is based on racist systems of oppression and they cannot be eradicated through colorblindness. Colorblind approach lets systemic inequality remain intact.
 
I. ON WHAT BASIS DOES THE STATUTE CLASSIFY?
On its face?
Facial classification: explicit classifications on its face—the law in its very terms draws a distinction among people based on a particular characteristic. 
Examples:
Korematsu: Japanese vs. non-Japanese
Loving v. Virginia: miscegenation law (facial racial classification) does not serve a compelling state interest.
Parents Involved: white vs. nonwhite (Seattle schools) & black vs. nonblack (Jefferson County schools)
By effects?
Facially neutral à but there may be a discriminatory purpose of the law or discriminatory effects from its administration
To prove discriminatory purpose, the law must have been created “because of” the discriminatory impact, and not merely “in spite of” it… See McClesky v. Kemp: GA death penalty law
Disparate impact not enough. See Personnel Administrator of Massachusetts v. Feeney: Mass. law granting preference to jobs for veterans only 1.8 percent of veterans in Mass. were female, and veterans in Mass. constituted over ¼ of the population at the time.
Must have discriminatory purpose, as well as discriminatory effects. See Washington v. Davis
If disparate impact, how do we determine purpose?
Arlington Heights
(1) Overwhelming effects
Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.
Yick Wo v. Hopkins
Sometimes statistical pattern can show discriminatory purpose, though Arlington Court warns that these cases are rare. If pattern is not as stark as in Yick Wo, impact alone is not determinative, and the Court must look to other evidence. 
See McCleskey: statistical pattern not enough
(2) Historical background: never trust a new justification for the same historical effects
(3) Rationale/legislature decision-making/legislative history: statements/notes from legislature; but legislature can hide evidence  
(4) Context/departure from normal procedure: need to know pieces of history, comments on the records to see if this is a sign of racially discriminatory motivation—departure from custom at suspicious moments
*You’re just looking for things that make you suspicious
Washington v. Davis:
Test for “copness” or test for filtering out African Americans
RULE: Standing alone, disparate impact on a racial group does not trigger strict scrutiny  
McCleskey:
Baldus statistics insufficient proof to support inference that any decision-makers in McCleskey’s case acted w/ discriminatory purpose.
RULE: if you can’t point to the actual discriminatory actor then you have not proved discriminatory purpose
RULE: can’t state general trend of discriminatory purpose.
If P produces evidence of a discriminatory purpose:
Then the burden shifts to the government to prove that it would have taken the same action without the discriminatory motivation
If the Court accepts the government’s justification and rejects the claim of a discriminatory purpose, only rational basis review is used. If the Court is convinced that there is a discriminatory purpose, the law is treated as a race or national origin classification and the law will be invalidated.
If there is proof of a discriminatory purpose?
Facially neutral laws receive more than rational basis review ONLY IF there is proof of a discriminatory purpose
If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind that law.
Rationale: The EPC’s purpose is to prevent official conduct discriminating on the basis of race. Allowing discriminatory impact to suffice in proving a racial classification “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” Washington v. Davis.
What if no discriminatory purpose but there is still discriminatory effects?
à Rational basis—because then it will constitute some other classification
If no proof of discriminatory impact, then rational basis review
If no proof of discriminatory purpose, gov’t does not need to offer a racially neutral explanation for discriminatory effects—only need to meet a rational basis test.
 
II. WHAT LEVEL OF SCRUTINY DOES THE CLASSIFICATION RECEIVE?
 
Cases receiving strict scrutiny:
      Loving v. Virginia
      Brown/Plessy
      Korematsu
      Croson
      Grutter/Gratz/Fisher
      Parents Involved
 
Strict Scrutiny
When does it apply?
When law or gov’t policy uses race, ethnicity, or national origin to classify people on its face, or when an explicitly neutral policy has a disparate impact on people of different races and a discriminatory purpose exists behind the law.
Why? Strict scrutiny must be used to “smoke out” harmful race-based discrimination from benign/remedial interests
Even if racial classification is only one of many factors, it still evokes heightened scrutiny. Grutter (admissions process)
Cleburne v. Cleburne Living Center Can also argue for s