Constitutional Law II Outline

Constitutional Law II—Final Exam OUTLINE—Prof. Peters
 
 
I. EQUAL PROTECTION
 
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)
Race
Gender
Age
Ethnicity
Illegitimacy
Wealth
 
 
Mental Status
 
 
Sexual Orientation
 
 
Socio-Economic
 
 
Alienage
 
TO MAKE A PRIMA FACIE EP ARGUMENT, A P MUST SHOW DISPARATE IMPACT AND INTENT.
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).
 
LEVELS OF SCRUTINY
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.
SUSPECTNESS OF CLASS DISADVANTAGED
ENDS
MEANS
BURDEN OF PROOF
Non-Suspect
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.
SUSPECTNESS OF CLASS DISADVANT.
ENDS
MEANS
BURDEN OF PROOF
Quasi-Suspect
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.
SUSPECTNESS OF CLASS DISADVANT.
ENDS
MEANS
BURDEN OF PROOF
Suspect
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.
 
LAWS THAT DISCRIMINATE ON THE BASIS OF RACE OR ETHNICITY
 
Any racial classification will receive strict scrutiny from a reviewing court. 
 
SEPARATE BUT EQUAL
 
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