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Equal Protection Law
University of Michigan School of Law
Schlanger, Margo Jane

Equal Protection Schlanger Winter 2017

Note About Animus in Rational Basis Review-Land

Two competing views:

1. If animus is the only purpose served/only thing accomplished by gov action, statute falls. We require that something else be present as authentic objective.

Garrett* (Margo says ripest case (for now) about status of animus in disability
Romer? Windsor?
Cleburne (?)

2. We are more suspicious when animus is present (Julie thinks this)


3. Animus is automatically disqualifying

Government rejects

4. Presence of animus shifts burden to gov to prove they would have done action without animus

Arlington Heights

The outcome of a non-heightened scrutiny case will depend on which of those is deemed the rule – and also on how permissive the Court is in allowing stereotyping and post-hoc rationalizations
Also a new wrinkle: how can animus be problematic when we allow it relating to conduct (“hate the sin, love the sinner”) in constitutional law? (Scalia in the LGBT cases)

Romer and Lawrence grapple with this

One reading is that they offer a general rational basis story, but don’t mean it (that is, these cases are really about heightened scrutiny)

Note about suspect classifications (race or gender) that are NOT animus-based (STILL NOT OKAY)

1. Conveyor Belt (or “pass-through”) discrimination: Palmore v. Sidoti

Rule: State may not give public effect to private discrimination.

A. Would undermine rule against state-actor discrimination completely, for evidentiary reasons (similar to Gomillion)
B. Would put the imprimatur of the state on discrimination
C. Fuck the Heckler’s Veto (can’t say to every bigoted decisionmaker that they can determine equality norms – also encourages RIOTING)
State must solve the collective-action problem

2. Statistical Discrimination: Johnson v. California, Batson, JEB, Reed

Note that rational discrimination might easily pass a test of “narrowly tailored to serve a compelling state interest” – but court still could tell us it’s not okay (Palmore)

Demonstrates that means-ends analysis is not the only thing going on in the race cases
Banning rational discrimination is itself race/gender conscious, though not exclusionary

Rule: No stereotyping, and the costs of individuated decisionmaking are discarded

A. It’s not all that rational (race, etc. Are over-salient – Johnson)
B. Fear of underevaluation of harm to the out-group
C. The cumulative effect is very significant – and can disadvantage everyone in the group, or those people who don’t follow the norms

Note about classifications with a beneficent motive (empowerment, equalization, etc)

We learn from the gender cases that even a left-leaning approach is skeptical about this because of fear that they in fact disadvantage, stigmatize, etc

Result is INTERMEDIATE SCRUTINY: Important reasons should have a pretty tight fit of means to ends and (most important) without allowing stereotyping or weighing administrative costs of individualization (VMI)

What is “Strict Scrutiny”?

Examination of actual motive, not post-hoc rationalization
Burden of justification is on the state
Emphasis on the importance of the governmental objective
Racial/gender favoritism/animus are impermissible motives

Murphy in Korematsu uses underinclusiveness to actually challenge reality of motive

Examination of means-ends rationality
Remedial classifications are allowed, but not subordinating ones (Hogan)
Preclusion of even rational discrimination

Palmore – can’t be a conveyor belt for prejudice
Batson: No use of race/gender as a proxy for something you might reasonably care about (job qualification, favorable inclination in a jury, business acumen), even when information is scarce and substituting other proxies is difficult or impossible

Discounting/disallowance of administrative costs
Strict Scrutiny Now:

Doctrine is in flux, but we know we need:

“Compelling state interest,” which includes:

“Diversity” in higher education
Avoiding participation in a discriminator contractors’ market
Remediation of the state’s own identified discrimination

“Narrow Tailoring,” which seems to include:

Strong basis in evidence for thinking that there’s a problem
Not giving race too much more weight than other “diversity factors”
Not insulating people of one race from competition with people from another

Schlanger’s Note: Strict Scrutiny really works well if the problem is technocratic (“you think this makes sense but it doesn’t) AND/OR if the problem is one of disparate regard. BUT if the problem is instead something like the overall consequences of rational decisionmaking on the imprimatur of the state on race relations, strict scrutiny might be insufficient.

SS in Korematsu: A judicial query as to purpose (“we cannot say there was a violation”)

Examination of purpose and decision that racial stratification is impermissible as a motive (also present in Loving)

SS in Johnson: Means-ends rationality (commitment to narrow use of race; to smoke out purpose)

Lack of deference (just because you say something doesn’t mean we have to buy it without evidence) – Only in Johnson has SS really captured what is going on though******

SS in Palmore: SS means a preclusion of even rational discrimination (no conveyor belt)
SS in Batson: You can’t use race as a proxy even when other info is scarce and doing so may be helpful
SS in Morales: Does asking about race count as racial classification? NO
SS in Anderson v. Martin: Ballots do not designate the race of candidates, and courts say “no” -> encouraging blatant discrimination (different because Anderson is not aiming at equality, aiming at discrimination)

State of Equal Protection Post-1980’s

“We don’t have a choice between colorblindedness and race-consciousness, we only have a choice between different forms of race-consciousness” (Strauss article)
Court starts to think of EP rights as individual, not class-based, and in affirmative action we see a constitutional affront to the disadvantaged folks (white plaintiffs like Bakke, etc)

Problem with racial classification comes from CLASSIFICATION itself, not motive or cumulative effects

Increasing skepticism about classification generally, insistence on same justifications for “benign” classifications as for “malign” ones
Powell -> O’Conner -> Kennedy have basically determined what equal protection means, in that order – very individuated conceptions

All three call their doctrines “strict scrutiny,” but are they?

Primus’s Thoughts

Pre-Davis, many courts believed that state actions creating disparate impact violated equal protection. Post-Adarand, one could well ask whether state actions prohibiting disparate impact violate equal protection
Government action can run afoul of equal protection because it classifies people into racial group

nstitution and statutes requiring voters to satisfy registrars of ability to understand/give interpretation of the Fed/State laws violated the Constitution

Green v. New Kent County (1968 – SOUTH – de jure segregation)

Rule: Small school district, which was not residentially-segregated and which had only two schools, could not employ a freedom-of-choice plan when its effect was to perpetuate longstanding tradition of segregation

Decided as a matter of insufficient remedy
Remedy is greater than the right here, affirmed by Swann (Powell expands the right, but wants to shrink remedy to be coextensive with it)

NOTE: If Scalia’s theory from Adarand – that “the only people are entitled to a remedy are the people actually affected by the wrong” – is true, then Green is gone

Swann v. Charlotte-Mecklenburg (1971 – SOUTH – de jure segregation)

Rule: Upheld limited use of racial goas (bussing in county-wide districts) in remedial orders (“awareness of the racial composition of the whole system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations”)

Held that once a constitutional violation was shown, DC possessed power to order pupil reassignments on basis of race – “racially neutral” means not adequate anymore
Plan here is racially conscious, facially classifies, and here that’s okay

The school district can classify when motive is integrative (we’re beginning to narrow the right, but the remedy is still really strong)

Keyes v. School District #1 (1973 – NORTH – DE FACTO segregation)

Facts: A finding of intentionally segregative school board actions in meaningful portion of school system establishes prima facie case of unlawful segregative design on part of school authorities and shifts to those authorities burden of proving that other segregated schools within the system are not also result of intentionally segregative actions

^Brennan creates this jedi-move: rebuttable presumption that segregation is racially-motivated (allows litigators to fucos efforts on most egregious instances of intentional segregation within the district, and use that instance to create a presumption indicating district as a whole is at fault -> makes them more litigable by P’s)

Concurrence, Powell: De jure/de facto segregation distinction is stupid. Where segregation exists in public schools, prima facie case that public authorities are sufficiently responsible to warrant imposing the burden of demonstrating otherwise.

State neutrality is INCOHERENT – everything about schools is state action
Constitutional right is best efforts of school to take integrative steps

Rehnquest Dissent: This is race-mixing. Doesn’t like “undo” (desegregation) remedies as opposed to “stop” remedies -> you can’t have remedy unless you demonstrate violation of a right