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Constitutional Law II
Villanova University School of Law
Lanctot, Catherine J.



I. Equal Protection Clause (14th Amendment): “No state . . . shall deny to any person the equal protection of the laws.”

A. Framework:

1. Rational Basis (default)

a. Government wants this, highly deferential, government almost always wins

i. BUT cannot single out politically unpopular group

b. Challenger/P has the burden

c. Test:

i. Legitimate state interest

ii. Rationally related (any rational purpose; court not going to sub jdgmt)

2. Intermediate Scrutiny – sex

a. State has the burden

b. Test:

i. Important interest

ii. Substantially related

3. Strict Scrutiny – race, citizenship (w/ political function exception)

a. Challenger wants this, government almost always loses

b. State has the burden

c. Test:

i. Compelling interest (proof; real reason)

ii. Narrowly tailored (not overinclusive/underinclusive)

B. Equal Protection Challenges: Classifications (highest à lowest scrutiny):

1. Factors to Look at to Determine Suspect Class:

a. Discrete and insular minority?

b. Immutable?

c. Visible?

d. Rarely, if ever, relevant to decision making?

e. History of purposeful discrimination?

f. Lack of political power?



i. Strict Scrutiny

1. Compelling interest

2. Narrowly tailored



i. Rational Basis; UNLESS . . .

ii. P shows Exceptions: (Strict Scrutiny)

1. Disparate Impact (Washington)


2. Discriminatory Intent Arlington Heights discrim intent: state shows

· Stats

· Clear Pattern (rare)

· Historical background of discrim

· Departure from normal proced. sequence

· Stmts/legis history for context


3. Discriminatory Application of Neutral Law (Yick Wo)


4. “Because of” disparate impact (Feeney) (not only “in spite of”)

c. Affirmative Action: Facially discriminatory so apply strict scrutiny

i. Strict Scrutiny (Richmond, Adarand (feds))

1. Compelling Interest

· Redressing past discrimination

o Actual discrimination by state/fed, or

o Passive participant; but

o NOT general societal discrimination

· Educational setting – diversity (Grutter, Gratz, Seattle Sch. Dist.)

o Classroom

o Graduates/outcome

o “Critical Mass”

· Social emergency (Scalia)

2. Narrowly tailored

· No quotas (Gratz)

· Not under/over inclusive – “fit” (Gratz)

· Never use race in districting (4) Seattle

Kennedy + 4 “avoiding racial isolation”

· Race-neutral first

· Must be in a general way – Seattle Sch. Dist.


a. Strict scrutiny:

i. Compelling interest

ii. Narrowly tailored

b. BUT political function exception (Sugarman)

4. SEX

a. Intermediate Scrutiny (Craig, Michael M., Rostker, Virginia):

i. important interest

1. “Real physical differences” between men and women (Michael M.)

ii. substantially related

BUT . .

b. Heightened test under Virginia – “exceedingly persuasive justification”?


a. Rational Basis:

i. Legitimate state interest

ii. Rationally related


iii. Cleburne – says RB (w teeth), seems to apply heightened scrutiny


a. TEST:

i. Rational Basis

1. legitimate state interest

2. rationally related

ii. BUT Romer – says RB, but seems to apply heightened scrutiny

C. Equal Protection Challenges: Fundamental Rights:

1. TEST:

a. Is there a fundamental right?

i. Education

1. NOT a fundamental right (Rodriguez)

2. BUT close enough for kids of illegal aliens (Plyer)

ii. Voting

1. IS a fundamental

· Tried race-neutral first

· No quotas (stats must correlate)

· Not over/underinclusive

ii. Education Reg.

Strict Scrutiny: Higher Ed

1. Compelling interest

· Diversity (Grutter, Gratz)

o “plus factor”

o “critical mass”

o graduates/outcome

· Social emergency (Scalia)

2. Narrowly tailored

· no quotas (Gratz)

· not under/over inclusive – “fit” (Gratz)

· race-neutral first

iii. Grade School/Political Process: (Seattle Sch. Dist.)

Strict Scrutiny:

1. Compelling Interest:

· Roberts (4): Never used in school zoning (substantial burden on minorities)


· (Kennedy) + Dissenters: compelling interest in avoiding racial isolation

o Race neutral first

o Race conscious measures ok if:

§ Tried other methods first; and

§ Other neutral reasons

2. Narrowly Tailored:

2. Facially Discriminatory Regulations – Strict Scrutiny:

a. Korematsu v. U.S. (DO NOT CITE – OVERTURNED) Gov’t wins, where Jap-Am sues US Gov’t use of race in sending to internment camp during WWII. Court upholds regulation, applying:

i. Strict Scrutiny:

1. Compelling interest: prevention of espionage/sabotage by Japanese

2. Narrowly tailored – impossible to sort out loyal v disloyal among Japs


ii. DISSENT: does not survive strict scrutiny – no real connection between Japanese-Americans and espionage/sabotage

b. Brown v. Board of Education (Brown I): Segregated school is denial of EP. Separate but equal has no place in schools.