I. Traditional Approach
1. EP Clause used to challenge classifications
2. EP doesn’t mean good or bad, it means equal
B. Classification discrimination: classifications on the basis of identifiable group members (race, gender, age).
1. Favored group
a. Not subject to burdens of regulatory law, or
b. Gets benefit of benefit law.
2. Disfavored group
a. Subject to burden of regulation, or
b. Does not get benefit of benefit law.
C. Rational Basis Test: purpose of law must be legitimate and bear a rational basis to the advancement of that purpose. Classification must be reasonably related to the advancement of a legitimate govt. interest.
1. Dept. of Agriculture v. Moreno: Unrelated people living in the same household were not allowed to get food stamps. Held: classification was objectively unreasonable b/c it was illegitimate or for a bad purpose. No rational basis. Exclusion was irrelevant to purposes of the Act, which was to raise levels of nutrition among low-income houses. Favored and disfavored groups were similarly situated; classification objectively unreasonable.
2. Bowling v. Sharpe: South passed law requiring racial segregation in the D.C. public schools. Held: violates DP Clause. Whatever is violative of fed govt. is violative if done by states.
D. General Classifications
1. Objective Reasonableness: premised on assumptions about characteristics of a group
a. Over-inclusiveness: a classification that includes people it shouldn’t
b. Under-inclusiveness: regulatory law that exempts certain people who should be included.
c. Example: Law gave property tax exemption to widows, but not widowers.
i. Favored group: widows
ii. Disfavored group: widowers
2. Three-element test to analyze general classifications:
a. Identify the favored and disfavored groups. (This will appear from the terms of the classification).
b. Are the favored and disfavored group similarly situated with respect to the purpose of the underlying legislation?
c. Must be independent justification for differential treatment for court to uphold law.
II. RACE AND ETHNIC ANCESTRY – STRICT SCRUTINY
A. Background: classifications on the basis of race are subject to strict scrutiny.
1. Strict Scrutiny: Under strict scrutiny
a. The asserted govt. interest must be compelling (sufficient importance and validity), and
b. The particular use of race must be narrowly tailored to advance that interest.
B. Discrimination Against Racial and Ethnic Minorities
1. What constitutes invidious racial discrimination?
a. Govt. can keep racial records (birth certificates, etc.)
b. The state can require all black schoolchildren to undergo testing for sickle cell anemia. Constitutional b/c (1) sickle cell anemia is more prominent in blacks and (2) there is no discrimination.
2. Plessy v. Ferguson: Segregation of races is reasonable if based upon established custom, usage and traditions of people in state. Separate but equal isn’t discriminating against either race.
3. Korematsu v. U.S.: Apprehension by military authorities of the gravest imminent danger to the public safety can justify the curtailment of the civil rights of a single racial group, although it is suspect and subject to strict scrutiny. Court never held that all racial discrimination is unconstitutional. Constitution prohibits invidious discrimination – one that cannot be justified when subject to review under strict scrutiny. When race can be justified under strict scrutiny it is not invidious and therefore not unconstitutional. Ordinarily racial discrimination against the minority cannot be justified b/c it can not be shown to be necessary.
4. Brown v. Board of Education: “separate but equal” doctrine has no application in education and the segregation of childr
nation they would have enacted the law anyway.
6. Castaneda v. Partida: Substantial under-representation of a group constitutes a constitutional violation if it results from purposeful discrimination. Degree of under-representation must be proved by comparing proportion of group in total population to proportion called to serve as grand jurors. Once Δ has shown substantial under-representation of group, he has made out prima facie case of discriminatory purpose, and burden then shifts to State to rebut.
7. How do you show discrimination?
a. Identify selection group
b. Show disparity (statistics, etc.)
8. U.S. v. Armstrong: To establish selective prosecution claim, Δ must show similarly situated Δs of other races could have been prosecuted but weren’t.
9. Three bases of discrimination under the 14th Amendment:
a. Express/intentional: strict scrutiny is applied (Loving, Anderson)
b. Intent to discriminate:
i. Administration of a facially neutral law (Yick Wo, Castaneda)
ii. Enactment: burden cannot be sustained (Wash., Arlington)
c. Perpetuation of past discrimination: you only have to show invidious racial discrimination once. (You must show it, but only need to do so once.) Affirmative duty to remedy past discrimination.
D. Repeals of Remedies/Restructurings of Political Process that Burden Minorities
Hunter v. Erickson: Voters amended city ordinance to prevent “any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the