Con Law Outline
Equal Protection
I. BACKGROUND
a. C acquiesced (minimally) to slavery w/ three references
b. Dredd Scott – invalidated MO compromise b/c claim that it was taking away property (problem: not intent of framers that blacks were property/not citizens)
c. Plessy v Ferguson – separate but equal RR b/c C didn’t require integration (problem: purpose was to exclude blacks)
d. McCabe – cannot provide dining cars to whites only b/c rights are individual
e. Sweat v Painter – ad hoc created law school could not be equal to UT
f. Brown – dismissing separate but equal: stigma-low motivation-worse ed-lower life prospects & ed is really impt (there was bad motive)
g. Brown II – slow implementation – with all but deliberate speed; g/f
h. Green – realistic plan to work now; if you had segregation b/f must take affirmative steps to eliminate (more than just no longer classifying by race)
i. Swann – elimination of vestiges of segregation at dc’s discretion
j. Keyes – with gerrymandering in district, burden shifts to gov
k. Courts now say that schools have reached unitary status (see, e.g., Freeman)
II. RATIONAL BASIS REVIEW
a. Test: discrimination must be rationally related to legitimate gov interest
Beazer – eliminating heroin treatment patients from e/ment is rational b/c more likely than normal population to be drowsy & start using again
i. Government almost always wins – under/over inclusiveness don’t matter
ii. Will pass even if legit goal was not intended
iii. Only reason that will fail: We don’t like you (see Romer (invalidating a prohibition on allowing gay protecting laws); see also Morieno (invalidating goal of denying hippies food stamps))
Cleburne – ordinance required mentally retarded home to get permit failed b/c reasons advanced were based on attitudes to groups (i.e., We don’t like you)
b. If Legislature wants to deal w/ a problem that can eliminate some w/o eliminating all (see Railway Express (allowing truck ad’s only if owners promotion)
c. Lee Optical is easiest test – law prohibited opticians from replacing lenses
III. RACIAL CLASSIFICATIONS – STRICT SCRUTINY
a. Test: must serve compelling state interest and be narrowly tailored
b. Justifications
i. Representation Reinforcement – minority/under represented groups cannot protect themselves via traditional political system (also applies if statute is attempting to change the political system itself)
ii. Likely to be product of racism/never a legit purpose
c. Compelling state interest can be remedying specific past discrimination (but see Wygant (remedying societal discrimination is not sufficient justification))
d. Facially Discriminatory
i. Strauder – only white male jury members
ii. Korematsu – executive ordering all Japanese out of homes (passed at time)
e. Disparate Impact
i. Rule: violation exists only when action b/c of effects; will pass
on race failed EP b/c changing structure of political process is improper (see Vote Dilution cases)
iii. WA v Seattle Schools – school board implemented integration via bussing but voters revoked by referendum failed EP b/c took away authority to address racial problem from existing decision-maker [dissent argued that using political process, not changing it]
d. Voting Cases
i. Note: there is no coherent approach to these cases
ii. It is unclear who gets advantage when race is part of decision (e.g. if you were 49% minority and all districts were equally represented, you’d have no representation)
iii. VRA requires minorities to have their % as representation
iv. Shaw – district was drawn in too “bizarre” of shape
v. Miller – although redrawing to give minorities voice (in light of past segregation), race cannot be predominant factor in drawing lines when there are race neutral alternatives (but see Cromarte (race was not considered too much))
General Rule: courts are unwilling to make leap of bad intent from effect
