Con Law II Outline – Samahon Spring 2012
PART 1 – Equal Protection
1. Levels of Judicial Scrutiny:
1. 14th Amendment – Equal Protection Clause: no state may “deny to any person within its jurisdiction the equal protection of the laws.”
a. Due Process Clause – applies Bill of Rights to States
2. 5th Amendment – Due Process Clause:
a. Explicitly obligates states to provide equal protection of the laws;
b. Reverse Incorporation: obligates federal government to provide equal protection (Bolling v. Sharpe)
ii. Levels of Judicial Scrutiny:
Level of Scrutiny
Type of Interest
Rationally Related (discretion to state)
Compelling State Interest
Narrowly Tailored, Necessary
iii. Classification and Objectives:
1. Over-inclusion: Statute may include (or exclude) more people or things than necessary to achieve the objective perfectly.
2. Under-inclusion: Statute may excluded fewer people or things than necessary to achieve the objective perfectly.
iv. Categorizing Classifications:
1. Carolene Products FN 4: presumption of constitutionality for federal legislature except 3 classes recognized for heightened scrutiny:
a. Bill of Rights Guarantees: Facial conflict w/ specific constitutional rights
b. Political Participation: Those that inhibit democratic process
c. Discrete and Insular Minorities: Those that classify on the basis of race, religion or other “discrete and insular” minority.
i. = immutable trait couples w/ widespread irrational prejudice about the trait
2. Ely’s Representation Reinforcement: Political Marketplace Failures
a. Judiciary not generally suited, and not elected
b. Only interfere when we worry political system is broken (mistreated minorities, not full participation)
Equal Protection Analysis
1. What is the Classification? Two methods of establishing a classification:
a. Classification Exists on the Face of the Law: the law in its very terms draws a distinction among people based a on a particular characteristic
b. Facially Neutral Law with Discriminatory Impact and Discriminatory Purpose
i. Insufficient to prove a racial or gender classification
ii. Requires proof that there is a discriminatory purpose behind the law
2. What is the Appropriate Level of Scrutiny?
a. Strict Scrutiny – applies to race, national origin, generally to disc. against aliens
i. Upheld if it is proved necessary to achieve a compelling government purpose
ii. Government must show a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative
iii. Government has the burden of proof – must show that it is necessary to achieve a compelling purpose
iv. Virtually always fatal to the challenged law
b. Intermediate Scrutiny: applies to gender (and non-marital children)
i. Upheld if its substantially related to an important government purpose
ii. Means used need not be necessary, but must have a “substantial relationship” to the end being sought
iii. Government has the burden of proof
c. Rational Scrutiny: default level of scrutiny
i. Upheld if law is rationally related to a legitimate government purpose
ii. Government’s objective need only be something that the government legitimately may do
iii. Challenger has the burden of proof
iv. Enormously deferential to the government
d. Criteria for Heightened Scrutiny: Immutable Characteristics; Ability of the group to protect itself in the political process; History of discrimination against a group
e. Arguments for Sliding Scale: Tiers of review end up being decisive and unduly limit the scope of judicial analysis; Would lead to more candid discussion of the competing interests, therefore provide overall better decision making
3. Does the Government Action Meet the Level of Scrutiny?
i. Strict Scrutiny: must be deemed compelling
ii. Intermediate Scrutiny: must be important
iii. Rational Basis: must have a legitimate purpose
b. Over/Under Inclusion
i. Under-inclusive: does not apply to individuals who are similar to those to whom the law applies
ii. Over-inclusive: applies to those who need not be included in order for the government to achieve its purpose.
iii. Consequences: does not mean that it is sure to be invalidated (most laws fall into this)
1. Used to evaluate the fit between government means and ends
2. Strict Scrutiny – close fit is required; the means must be necessary and the least restrictive alternative to achieve the goal.
3. Intermediate – a closer fit than required under rational basis
b. Minimal Scrutiny (607-629) – Default Level of Review
Level of Scrutiny
Type of Interest
Rationally Related (discretion to state)
i. Means: What is Not Rational?
1. *Railway Express Agency v. NY (US 1949): Tolerance for Under-inclusiveness
· Facts: NYC traffic ad rules – can’t advertise someone else’s business on vehicles; government purpose to avoid distraction.
o Rational Basis applies to economic regulation
o Court may hypothesize what government interests could be
o Here à
§ Not a great fit, but that doesn’t matter, just need a rational relation
§ Don’t need to treat all things of the same type the same way
· Notes Cases:
o Williamson v. Lee Optical: Opticians can’t make lenses w/o prescription from doctor.
§ Very deferential to state; loose means is ok
§ An interest is conceivable here
2. [US Railroad Retirement Board v. Fritz] (US 1980): actual vs. conceivable purpose
· Facts: Legislation denying certain RR workers from receiving dual benefits (pensions and SS); those who had worked 10 years and already retired could retain benefits, those who had worked less than 25 years and not yet retired would lose dual benefits.
o No suspect class = rational basis review, presumed valid
o “Where there are plausible reasons for Congress’s action, our inquiry is at an end.”
§ Assumption that Congress intends result of act, since no intent explanation required
§ Hypothesized legal objective = Protecting solvency of RR retirement system
o Over/Under-inclusion doesn’t matter as long as rational relation
· Dissent: reject pot-hoc attorneys coming up with legislative objectives
ii. Ends: What Purposes are Not Legitimate?
1. [US Dep’t of Agriculture v. Moreno] (US 1973): illegitimate purpose
· Facts: Food Stamp Act excludes households containing unrelated individuals;
o Stated purpose (to alleviate hunger etc.) irrelevant to statutory classification
o Legislative history shows that Congress was targeting hippies
o A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest
§ Minimizing Fraud (suggested by Government lawyers):
· Other provisions achieve this
· This provision doesn’t achieve this – only targets ones who can’t afford to move into separate households.
2. *Romer v. Evans (US 1996): illegitimate purpose
· Facts: Colorado state amendment (voter-approved initiative) that repealed all laws protecting gays, lesbians and bisexuals from discrimination and that prohibited all future government action to protect them from discrimination.
o No legitimate purpose in singling out a particular group and precluding it from using the political process
o State said – conserving resources to fight discrimination against other groups
§ Court – breadth of amendment is so far removed from these particular justifications that we find it impossible to credit them.
· Dissent (Scalia): amendment is a permissible moral judgment by voters to preserve traditional sexual mores against effort of political minority
o Not in Constitution – so left to democratic means in states
1. *Brown v. Board (Brown I) (US 1954): End of Separate but Equal
· Facts: Court invalidated laws requiring segregation in public schools
o Court looked at importance of education and resulting stigma, psychological knowledge
§ Education is one of the most important functions of local government.
§ Segregation has a detrimental effect – feelings of inferiority, which affects motivation; therefore tendency to retard the educational and mental development they would receive in an integrated system
o Separate educational facilities are inherently unequal
· Cases post-Brown: (none of these on list of cases to know)
iv. Affirmative Action – (666-693; 693-708)
1. *Regents of UC v. Bakke (US 1978): AA First View
· Facts: Court invalidated special admissions program at UC Davis Medical School which was designed to assure the admission of a specified number of students from certain minority groups (16% of 100 seats).
o UC Davis Argument: should be benign distinction, not invidious discrimination
o Ely – not hurting a discrete and insular minority – he is white, so because of political process, majority is OK with it
§ Court says no, that analysis is only for new classes being added to suspect classes, race and ethnicity are inherently suspect – race is not relevant in most instances
o Preferences might reinforce stereotypes that certain groups are unable to succeed
o No determination that UC Davis had acted with prior discrimination
o Government doesn’t have a compelling interest where no prior discrimination
o Interest Asserted – Court analyzes with over/under inclusion
§ Reduce historical deficit of traditionally disfavored groups in medical schools/profession
· Can’t have preference for diversity, race for races sake – violates EP clause
§ Counter effects of societal discrimination
· Good state interest – but no government finding that it has happened here
§ Increase number of physician who will practice in underserved communities
· Over-inclusion – not all minorities benefitting will go back to serve those comm.
· Under-inclusion – non-minorities will go serve these communities also, w/o ben.
§ Educational benefits from having a diverse student body
· Problematic quota system, race can be one of many factors, but not the sole consideration
2. City of Richmond v. J.A. Croso (US 1989): AA General Principles
· Facts: Virginia Minority Business Enterprises (MBE) program to ensure that 30% of the dollar amount of contracts given to MBEs. (Fact about Richmond – capital of the confederacy)
· Court: Invalidates the plan.
o Interest: No direct evidence of past discrimination on the part of the city
§ Past discrimination in the industry alone cannot justify use of a racial quota system
· 30% figure is not tie to any injury suffered by anyone
§ National statistics are not probative here
§ No consideration of race-neutral tools for barriers to entry
§ 30% tool is not narrowly tailored
3. *Adarand Constructors v. Pena (US 2005): Strict Scrutiny for race-based classifications that benefit minorities
· Facts: challenge to federal government’s practice of giving general contractors on government projects a financial incentive to hire minority businesses as subcontractors
· Court: remanded case to be evaluated under strict scrutiny
o All racial classifications, imposed by whatever federal state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.
o Overrules Metro Broadcasting
o Court clarifies Narrowly Tailored doesn’t mean strict in theory, fatal in fact
· Strict Scrutiny Applied:
o State action? Yes
o Discrimination? Yes, facial discrimination = strict scrutiny
o Compelling State Interest? Remedying past discrimination
o Narrowly Tailored? – means, look at over/under-inclusion