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Constitutional Law II
Wayne State University Law School
Peters, Christopher J.

Constitutional Law II—Final Exam OUTLINE—Prof. Peters
INTRODUCTION: Under EP analysis, the Court reviews legislation to see if a government is intentionally discriminating against a class of people entitled to special constitutional protection. Also remember, if a state violation is claimed goes to EP of 14th AMD, but if federal violation is claimed goes to DP of the 5th AMD. Also keep in mind that under EP analysis, individuals who are similarly situated must be treated substantially the same under the law. Under EP, it is the classification that is the focus of scrutiny.
NOTE: Under EP analysis the Court determines which class of persons has been disadvantaged by a law. The court then decides whether the disadvantaged class is “suspect”, “quasi-suspect”, or “non-suspect”.   If the government intentionally disadvantages a “suspect” class, strict scrutiny applies; if a government intentionally disadvantages a “quasi-suspect” class, intermediate scrutiny applies, and if an government intentionally disadvantages a “non-suspect” class, rational basis review applies.
SUSPECT CLASSES (Strict Scrutiny)
QUASI-SUSPECT CLASSES (Intermediate Scrutiny)
NON-SUSPECT CLASSES (Rational Basis Review)
Mental Status
Sexual Orientation
To demonstrate ‘disparate impact,’ the P must prove that the law disproportionately burdens particular group.
Intent means that the government intended to discriminate against a class ‘because of’ a specific trait such as race or gender. A law may be facially discriminatory (the classification is obvious from the language of the law) or discriminatory as applied (facially neutral but is applied so as to intentionally disadvantage a certain class of persons).
RATIONAL BASIS REVIEW – P has the burden of proof all the way through the case that there is no legitimate reason for the law, or that the means (the classification system) are not rationally related to the goal sought.
Legitimate government interest (within an enumerated power of the Congress or the 10th AMD Police Power of a State)
Rationally Related (may be very under- or over- inclusive).
Stays with Plaintiff
INTERMEDIATE SCRUTINY – If a government is intentionally discriminating against a quasi-suspect class, intermediate scrutiny is used by a court. At intermediate scrutiny, the burden of proof shifts to the gov’t, once the P shows that a quasi-suspect class has been disadvantaged.
Significant or Important Government Interest
Substantially Related (not very over- or under- inclusive)
Shifts to government after P has shown an intentional discrimination against one of the appropriate classes.
STRICT SCRUTINY — If a government is intentionally discriminating against a suspect class, SS is used by a court. At SS, the burden of proof shifts to the government once the plaintiff shows that a suspect class has been disadvantaged.
Compelling government interest (very important government goal)
Narrowly Tailored (very little under- or over- inclusive)
Shifts to the government after P has show an intentional discrimination against an appropriate class.
NOTE – Intent is required to sustain an EP argument.
Examples of cases dealing with the intent requirement.
UNEQUAL APPLICATION – The court has held that intent may be shown by the manner in which a facially neutral law is applied. See YICK WO v. HOPKINS (1886), where the court found that the failure of the city to give laundry exemptions to an Chinese applicants (when they were given to others) was evidence of unacceptable discrimination, although the law was facially neutral.
STATISTICAL EVIDENCE — Alone, this is not enough to prove intent. See WASHINGTON v. DAVIS (1976), where the court upheld the use of a test for Police jobs, even though the test has a racially disproportionate impact in viewing the statistics, and the court concluded that the stats alone didn’t prove intent, and neither could the test or the application.
 FACTORS – The court has named several factors it considers when trying to prove intent. Among them were, statistical impact on a particular group, the legislative history of thw law, departure from normal procedures in passing a law, and any other evidence that would indicate a purely racial or sexual purpose underlying the law. See ARLINGTON HEIGHTS v. METROPOLITAN HOUSING DEVELOPMENT CORP. (1977), where the court acknowledged the above factors and concluded that taken together (i.e. totality of the circumstances), these factors could be dispositive of intent (but taken individually – no).
DEGREE AND FORESEEABILITY OF DISPARATE IMPACT – The court has held that the degree of the disparate impact, along with its foreseeability, are relevant to proving intent; that is, if the disparate impact is unusually severe and was easily foreseen by the legislators who passed the law, a court may consider those factors when determining whether intentional discrimination exists. SEE PERSONNEL ADMINISTRATOR v. FEENEY (1979), where the Court held the above.
Intent in Jury Selection Cases
The rule in Jury Selection cases is that once a litigant shows substantial underrepresentation of a certain racial or gender group, he or she has made a prima facie case of showing discriminatory purpose , and the burden of proof shifts to the prosecution.
DISPROPORTIONATE REPRESENTATION – Of racial or ethnic groups on juries is sufficient to make a prima facie case of discriminatory purpose.
PEREMPTORY CHALLENGES – A defendant in a criminal case may make a prima facie case of discriminatory purpose by showing the use of peremptory challenges to exclude racial or ethnic groups. SEE BATSON v. KY (1986).
Intent in Racial Gerrymandering Cases
The shape and size of voting districts may be relevant to showing intent. For example, an oddly-shaped voting district that contains predominately white voters may indicate intentional discrimination
SHAPE OF VOTING DISTRICTS — A P may prove intent by showing a drastic change in the geographical shape of a voting district. See GOMILLION v. LIGHTFOOT (1960), where a change that removed all but 4 o 5 of the black voters from the voting area, was found to be intent of racial discrimination.
STRANGELY SHAPED VOTING DISTRICTS – The strange shape of a particular district is relevant to proving intentional discrimination. SEE SHAW v. RENO.
RACE AS A PREDOMINANT FACTOR IN DRAWING DISTRICT LINES – There is no threshold requirement of showing a bizarre district shape to make an EP argument. All the P must show is that race was the predominant factor underlying the district lines. 
POLITICS AS THE PREDOMINANT FACTOR IN DRAWING DISTRICT LINES – Even though district lines were deliberately drawn to create a largely Black district, it is permissible because the predominant reason for doing so was political and not racial.
Any racial classification will receive strict scrutiny from a reviewing court. 
From 1896 to 1954, the Court upheld the “separate but equal” doctrine, under which a law separating the races was constitutional if it provided equal facilities or benefits to each race.
“SEPARATE BUT EQUAL” CONSTITUTIONAL – In 1896, the court upheld a state law requiring separate   accommodations for blacks and whites. SEE PLESSY v. FERGUSON (1896), where the Court rejected the argument th

-district busing may be an appropriate remedy where segregation in one school district produces a segregative effect in another. See MILLIKEN v. BRADLEY (1974).
TERMINATION OF FEDERAL COURT SUPERVISION – A desegregation decree should be dissolved if the school board has complied with the decree in good faith and the vestiges of past discrimination have been eliminated to the extent practicable.
SCHOOL BOARD COMPLIANCE WITH DISCRETE REQUIREMENTS OF A COURT DECREE – Federal courts need not retain control over every aspect of school administration where the school board has shown it has complied with some specific requirements of the decree. See FREEMAN v. PITTS (1992).
COURT ORDERED SALARY INCREASES AND FUNDING OF REMEDIAL EDUCATION PROBGRAMS – Federal courts may not fashion interdistrict remedies that exceed the scope of an intradistrict violation. SEE MISSOURI v. JENKINS (1995), where the court reaffirmed its holding in FREEMAN that in considering whether to terminate a desegregation program, the court should ask the following: whether the school district has fully complied with the desegregation decree; whether continued judicial control is necessary or practicable to achieve compliance with the decree; and whether the school district has demonstrated a good faith commitment to complying with the decree.
TERMINATION OF FEDERAL COURT SUPERVISION – A state has not met its burden of proving that the prior segregative system has been dismantled if it perpetuates policies that continue to have segregative effects. See U.S. v. FORDICE (1992).
An affirmative action program is a governmental program which gives a preference to members of specified racial or ethic groups. These programs are most common in areas of education and employment. Race-based affirmative action programs, whether they are imposed by a state or the fed. gov’t, receive strict scrutiny by a reviewing court: the government has the burden of showing that the affirmative action program is narrowly tailored to achieve a compelling governmental interest.
STATE BASED AFFIRMATIVE ACTION PLANS – These programs receive strict scrutiny: the government must show a compelling reason for the program; and that means are narrowly tailored to achieve that goal. Societal discrimination doesn’t count as a violation that would justify a state race-based affirmative action plan. To have a voluntary affirmative action plan, based on race, the gov’t must show that it was at least a passive participant in the past discrimination against a racial group.
RACE BASED EXCLUSIONS – The court has held that exclusion from a program based solely on race is illegal, even if the purpose of the exclusion is to increase the number of racial minority members who participate in the program. SEE REGENTS OF THE UNIVERSITY OF CA v. BAKKE (1978), where the court held that reserving class seats only for minorities is unconstitutional, and the majority opinion made these points: strict scrutiny is the appropriate review in race-based affirmative action cases; societal discrimination doesn’t count as a violation justifying an affirmative action plan; and while attainment of a diverse student body may be a