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Constitutional Law II
Wayne State University Law School
Sedler, Robert A.

I.                   Traditional Approach
A.     Generally
                                                            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.
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 children in public schools based solely on their race violates EP clause. Detrimental effect on black children. Separate facilities are inherently unequal; deprives blacks of EP b/c doesn’t offer them same access to education as whites.
                                                            5.      Loving v. Virginia: state law restricting the freedom to marry solely b/c of racial classifications violates the EP clause. No legitimate purpose independent of invidious racial discrimination which justifies this classification.
                                                            6.      Palmore v. Sidoti: denial of child custody to a white mother b/c her new husband was black violated EP. Racial matching is not precisely tailored and cannot survive strict scrutiny!
C.     De Jure (invidious racial) Discrimination vs. De Facto Discrimination: Intentional discrimination may exist even though law in question is racially “neutral” on its face. Law may be deliberately administered in a discriminatory way; or the law, although neutral in its language and applied in accordance with its terms, may have been enacted with a purpose (or motive) to disadvantage a “suspect” class.
                                                            1.      Yick Wo v. Hopkins: a valid law unevenly and discriminatorily administered violates the EP Clause. If a law is racially neutral but intentionally administered in a racially discriminatory manner, it is no longer racially neutral. 
                                                            2.      Washington v. Davis:A law or official govt. practice must have a “discriminatory purpose,” not merely a disproportionate effect on one race, in order to constitute “invidious discrimination.”
                                                            3.      Test for discrimination under Title VII:
a.       Disparate treatment (intentional discrimination)
b.      Disparate impact (employer operates in seemingly neutral way, effect is discrimination against protected class.) Employer’s Δ: business necessity.
                                                            4.      Arlington Heights v. Metropolitan Housing Dev. Corp.: Village refused to rezone land from single-family to multiple-family, so as to permit respondent’s construction of racially integrated housing. Held: no violation of EP. Πs weren’t able to prove a discriminatory purpose. 
                                                            5.      It is not necessary to prove that discriminatory intent was the only factor or even the predominant factor. It is sufficient to show that race was one of the factors influencing the decision. Then the burden shifts to the govt. to show that even without the racial discrimination 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
                                                            1.      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 voters.” Held: racial classification violated EP. Impact fell on the minority. Not a neutral law; express racial discrimination. 

were considered alongside race. Diversity is a compelling interest.
                                                        12.      Two compelling interests that justify the use of race-conscious affirmative action:
a.      Overcoming past consequences of past discrimination for which the govt. is responsible, and
b.      Diversity in education.
                                                        13.      Gratz v. Bollinger: admissions guidelines gave 20 points (100 were needed) to every applicant from underrepresented racial or ethnic minority group. Held: violates EP – use of race in the admissions policy is not narrowly tailored to achieve university’s asserted interest in diversity.
a.       A goal is constitutionally permissible.
b.      A quota isn’t constitutionally permissible.
A.     Defining the Level of Scrutiny
                                                            1.      Important and substantial relationship test for evaluating gender-based classifications.
a.      Strict scrutiny →           Substantial relation →     Rationalbasis
b.      Compelling   →            Important →           Legitimate
c.       Preciselytailored →    Substantial Relation →   Rationallyrelated
                                                            2.      Gender-based classifications must be substantially related to advancing an important govt. interest. (Between precisely tailored & rationally related.)
                                                            3.      Reed v. Reed: law preferred males to females when they were equally qualified. A classification must be important and must rest upon some ground of difference having a fair and substantial relation to the object of the law. Sex discrimination violates EP. 
                                                            4.      Frontiero v. Richardson: Classifications based on sex are inherently suspect and must be subjected to judicial scrutiny. A statutory scheme which draws a sharp line between the sexes, solely for administrative convenience violates EP. Gender based classifications are invalid. 
                                                            5.      Administrative convenience can never justify a gender-based classification.
                                                            6.      Sometimes administrative convenience can justify a legitimacy-based classification.
                                                            7.      Craig v. Boren: Classifications by gender must serve important govt. objectives and be substantially related to achieving those objectives.
                                                            8.      U.S. v. Virginia: Public schools may not exclude women. States must show that a sex-based govt. action serves important govt. objectives and that the discriminatory means are substantially related to the achievement of those objectives. 
B.     Differences – Real and Imagined
                                                            1.      Geduldig v. Aiello: exclusion of disability that accompanies normal pregnancy and childbirth from the insurance system does not exclude anyone b/c of gender – it is b/c of sex. Discrimination on the basis of sex is not discrimination on the basis of gender, and doesn’t bring the important and substantial relation test into play. Discrimination on the basis of physical and biological differences (sex) is more likely to be sustained.
                                                            2.      Dothard v. Rawlinson: Women were excluded from prison guard jobs that were “contact positions” in all-male prisons. Held: upheld. A woman’s relative ability to maintain order in a male prison could be directly reduced by her being a woman.