Knechtle – Con Law II 01-12-06 – as of today, his first semester grades are NOT posted…Five weeks, three days, and counting… Chapter 7 – Equal Protection A. Introduction 1. Constitutional Provisions Concerning Equal Protection 2. A Framework for EP Analysis Question 1: WHAT IS THE CLASSIFICATION? a. Two Basic Ways of proving the existence of a classification – Facially Discriminatory; OR Facially Neutral and Discriminatory Effect b. The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. c. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law. Question 2: WHAT IS THE APPROPRIATE LEVEL OF SCRUTINY? a. Strict Scrutiny - Discrimination based on race or national origin is subjected to strict scrutiny. b. Intermediate Scrutiny – gender discrimination and non-marital children discrimination. The state must show an important objective that has a substantial relationship to the means being sought. c. Rational Basis – minimum test of scrutiny – law will be upheld if it is rationally related to a legitimate state purpose. (The challenger has the burden of proof under the rational basis review.) Question 3: DOES THE GOV. ACTION MEET THE LEVEL OF SCRUTINY? a. the Court evaluates both the law’s ends and its means. b. Overinclusive c. Underinclusive B. The Rationale Basis Test – minimum level of scrutiny that all government actions challenged under EP must meet. a. Romer v. Evans – The Court found that a voter initiative in Colorado that repealed laws prohibiting discrimination based on sexual orientation and that precluded the adoption of new protections failed the rational basis test. b. Tolerance for Underinclusiveness under Rational Basis Review 1. United States Railroad Retirement Board v. Fritz – the SCT upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the social security system and the Railroad retirement system. The result of the law was that a person who had worked 10 years for the rr and was already retired could get dual benefits, but a person who had worked for 24 years and was still employed could not collect dual benefits.
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2. Railway Express Agency Inc v. NY – SCT upheld a law that prohibited the operation of an “advertising vehicle” but created an exception for “business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used mainly for advertising. SCT held that the law had the legitimate purpose of enhancing traffic safety because the city might perceive that the prohibited advertisements could be more distracting. 3. Tolerance for Overinclusiveness under RBR- NYC Transit Authority v. Beazer – SCT upheld a city’s regulation that prevented those in methadone maintencance programs from holding positions with the Transit Authority. The law was upheld even though it was overinclusive in excluding from employment the vast majority of methadone users who posed no safety risk, and it was underinclusive in that it allowed employment of others who would be a safety threat. 4. Cases Where Laws are Deemed Arbitrary and Unreasonable - US Dept of Agriculture v. Moreno – Court declared unconstitutional a federal law that excluded from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. The Cour explained that the express congressional purpose of discriminating against hippies could not constitute a legit purpose. 5. City of Celburne, TX v. Celburne Living Center – the SCT declared unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. Court held that rational basis review was the appropriate standard for evaluating government actions discriminating against the mentally disabled. C. Classifications Based on Race and National Origin 1. Race Discrimination and Slavery Before the 13 th and 14th Amendments i. Dred Scott v. Sandford – SCT declared the MO compromise unconstitutional and broadly held that slaves were property, not citizens. 2. The Post- Civil War Amendments 1. 13th – prohibited slavery (1865) 2. 14th – Expressly overruled Dred Scott (1868) 3. Race Specific Classifications that Disadvantage Racial Minorities 1. Two ways to demonstrate the existence of a race or national origina classification: a. One is where the classification exists on the face of the law; that is, the text of the law draws a distinction among people based on race or national origin. b. The other is that if a law is facially neutral, a race or national origin classification might be proved by demonstrating discriminatory administration or discriminatory impact; this requires proof of discriminatory purpose.
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2. Korematsu v. United States – SCT upheld the constitutionality of the evacuation of Japanese-Americans. The Court accepted the government’s claim that there was a serious risk to national security from JapAms who were disloyal to the US and there was no way of screening to ID such individuals. 3. Racial Classifications Burdening Both Whites and MinoritiesLoving v. Virginia – SCT declared unconstitutional a state’s statute that made it a crime for a white person to marry outside the Caucasian race. 4. Palmore v. Sidoti – SCT deemed unconstitutional a state court’s denying a mother custody of a child because she had married a person of a different race. 5. Laws Requiring Separation of the Races / Separate But Equal – Plessy v. Ferguson – SCT upheld laws that mandated that blacks and whites use separate but equal facilities. Lousiana prosecuted Plessy, who was 7/8ths Caucasian, for refusing to leave the railroad car assigned to whites. 6. The Initial Attach on “Separate But Equal”- Brown v. Board of Ed – overturned Plessy – separate is not equal – the psychological argument made by the Court is that the with the division the white race is still superior. Court looks at effect of segregation, even though law is not facially discriminatory. 4. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration a. Washington v. Davis – Applicants for the police force in Washington, DC were required to take a test and stats showed that blacks failed the exam much more often than whites. SCT held tht proof of a discriminatory impact is insufficient by itself to show the existence of a racial classification. RULE OF LAW – laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. b. McClesky v. Kemp – SCT held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an EP violation. Even if P shows discriminatory impact – for SCT to reverse conviction – P must show that the state had a discriminatory intent in YOUR specific case. c. City of Mobile v. Bolden – SCT held that at-large elections and multimember districts are allowed, even if there is proof of a discriminatory impact, unless there is proof of a discriminatory purpose. Court find no EPV even though no black had ever been elected to the city commission. Opinion reiterated the basic principle that proof of a discriminatory impact is insufficient to establish an EPV.
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d. Is Proof of a Discriminatory Effect also required? Palmer v. Thompson – EP was not violated when a city closed down its previously segregated swimming pool rather than allow it to be integrated. Palmer suggests that discriminatory purpose alone is insufficient to prove that a facially neutral law constitutes a race or national origin class. RULE OF LAW - This case combined with Washington v. Davis and its progeny, it appears that a facially neutral law will be regarded as creating a race or national origin classification only if there is proof of BOTH a discriminatory impact to the law AND a discriminatory purpose behind it. e. Personnel Administrator of Mass v. Feeney- involved a challenge to a state law that gave preference in hiring for state jobs to veterans – at the time of litigation stats showed that 98% of veterans were male thus creating a substantial discriminatory effect against women in hiring for state jobs. Nonetheless, SCT held there was no a gender classification issue because the law creating a preference for veterans was facially gender neutral and there was not proof that the state’s purpose in adopting the law was to disadvantage women. f. Village of Arlington Heights v. Metro Housing Development Corp – proving discriminatory purpose – i. The impact of a law maybe so clearly discriminatory as to allow no other explanation than it was adopted for impermissible purpose ii. Show a statistical pattern that can be explained only by a discriminatpory purpose iii. Historical analysis surrounding the governments action. iv. Legislative or administrative history of a law. Arlington involved a challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing. (in summation – clear pattern/historical background/legislative and admin history/impact so clearly discriminatory allows for no other explanation) g. Pre-Emptory Challenges – Lins – go back to 690-691 – this is precisely the topic he would choose to do an essay on…he went over the process for preemptory challenges. h. Brown v. Board of Education – second hearing – many schools refused to comply with the SCT ruling ordering desegregation. i. Judicial Power to Impose Rememdies in School Desegration Cases – Schwann v. Charlotte Mecklenburg
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Board of Education – addressing the power of federal courts to issue remedies in school desegregation – racial quotas okay, burden on schools to show non-discrimination in one-race schools, bussing is permissible means of desegregation, gerrymandering of districts is NOT permissible. j. Milliken v. Bradley – SCT imposed a substantial limit on the courts’ remedial powers in desegregation caswes. SCT ruled that federal court’s multidistrict remedy (de jure) segregation is impermissible – because the boundaries of separate and autonomous school districts cannot be forced to desegregate when there is no showing that they are not desegregated. k. When Should Federal Desegregation Remedies End? Board of Ed of Oklahoma City v. Dowell – A desegration order can only be removed once the school shows that it has constitutionally complied with the order. l. Freeman v. Pitts – SCT held that a federal court desegregation order should end when it is complied with, even if other desegregation orders for the same school system remain in place. 5. Racial Classifications Benefiting Minorities – 1. Richmond v. JA Croson Co. – SCT expressly held that strict scrutiny should be used in evaluating state and local affirmative action programs. The Court invalidated a state plan to set aside 30% of public works monies for minority-owned businesses. 2. Adarand Constructors, Inc. v. Pena – SCT stated that racial classifications should be reviewed under strict scrutiny. 6. The Arguments For and Against Strict Scrutiny – Grutter v. Bollinger – The Use of Race to Benefit Minorities in College and University Admissions – --Arguments For Strict Scrutiny to Affirmative Action – pages 720-721 --Arguments Against Strict Scrutiny for AA – pages 720-721 1. Grutter v. Bollinger – Diversity is a compelling state interest that can be used in admissions process if not a quota system and only a small factor in the overall consideration. 2. Gratz v. Bollinger – use of a grid or graph/assigning points is not permissible for giving minorities an “extra boost” in the admissions process. 7. Drawing Election Districts to Increase Minority Representation – the use of race by the government to draw election districts so as to increase the likelihood that minority groups will be able to choose a representative. a. Shaw v. Reno – the use of race in drawing election districts is permissible only if the government can show that it is necessary to achieve a compelling purpose. The dissent made a strong argument that affirmative action in voting is different than affirmative action in areas such as
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employment or education. In the later areas, racial classifications benfiting minorities arguably disadvantage a white individual who is not hired or admitted because of the affirmative action program. In voting, every person still gets to vote and every vote is counted equally. b. Easley v. Cromartie – SCT will review districting schemes where race is the predominant factor in guiding the boundaries. D. Gender Classification – a. The Level of Scrutiny –intermediate level applied i.Bradwell v. Illinois – state law prohibited women from being licensed to practice law. ii. Muller v Oregon – minimum wage law for women upheld. – due to stereotypes of women. iii. Reed v. Reed – First time SCT invalidated a gender law that put women at the bottom of the list to be administrators of estates. iv. Frontiero v. Richardson – SCT invalidated a law that provided servicemen’s wives are automatically eligible for benefits as dependents while servicewomen must demonstrate that their husbands are dependent on them before they are eligible for the benefits. v. Craig v. Boren – OK statute that permitted 18 year old girls to buy alcohol but prevented boys till 21 was unconstitutional. Intermediate scrutiny applied – statistics did not support the purported purpose of the law which was to promote safety. Renquist dissent – rational basis should be applied, intermediate is too high a level of scrutiny. vi. Differences approach – emphasizes the differences between men and women and argues that the two sexes should be treated in terms of the law vii. Same approach – advocates for the same treatment for both sexes. viii. United States v. Virginia – SCT struck down a policy of the Virginia Military Institute, a state-sponsored university, that excluded women from attending. b. Proving the existence of a gender classification - When is it discrimination? 1. Geduldig v. Aiello – SCT held that it was not a denial of EP for a state’s disability insurance system to exclude pregnancy-related disabilities, but include disabilities affecting only men. Court said this was not a gender issue and applied merely rational basis review. 2. Orr v. Orr – Alabama law required only husbands to pay alimony upon divorce. SCT held this was a violation of EPC – SCT has frequently struck down laws that it perceives are based on the stereotypes of women being economically dependent on their husbands. 3. Mississippi University for Women v. Hogan – Hogan sough to strike down a state statute that excluded males from enrolling in a statesupported nursing school. SCT held that a statute that discriminates
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against men must meet the same “heightened scrutiny” EP analysis as statutes which discriminate against women. 4. Michael M. v. Superior Court of Sonoma County – the SCT upheld CA’s statutory rape law that defined statutory rape as an act of sexual intercourse where the female is under the age of 18. Boy is prosecuted, but the girl is not, because the statute makes men alone criminally liable for the act of sexual intercourse. 5. Rostker v. Goldberg – upheld a male-only draft registration act that requires every male ages 18-26 to register. The Court said that the exclusion of women from combat justifies Congress’s decision to have only men register for possible conscription. c. Gender Classifications Benefiting Women as a Remedy 1. Califano v. Webster – SCT upheld a provision of the Social Security Act that calculated benefits for women in a more advantageous way than was used for me. The Court said this was an attempt to address society’s longstanding disparate treatment of women. d. Classifications Benefiting Women because of Biological Differences between Men and Women 1. Nguyen v. INS – Court allowed a difference in INS rules favoring moths over fathers because of the greater certainty as to the identity of the mother as compared to the father and the greater opportunity that mothers have in establishing a relationship with their children. This case involves how children can become citizens when they are born outside the U.S. to unmarried parents and one of their parents is a US citizen and one is not. 1. The Court said that the difference in the rule serves the government’s interest in being sure that there is a biological relationship bt the parent and child. And 2 nd , to develop a relationship/ties/connection between the child and citizen parent. E. Alienage Classifications – refer to discrimination against noncitizens. This type of discrimination should be distinguished from national origin classifications, which discriminate against individuals because of the country that person, or his or her ancestors, came from. a. Strict Scrutiny As the general rule 1. Graham v. Richardson – SCT declared unconstitutional a state law denying welfare benefits to aliens. The Court found both that it violated EPC and that it was preempted by federal control over the field of immigration law. 2. Foley v. Connelie – SCT carves out an exception to strict scrutiny – stating that the State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. SCT used the rational basis test to uphold a state law that required citizenship in order for a person to be a police office. 3. Ambach v. Norwick – upholding a state law that required citizenship for a person to be an elementary or secondary school teacher.
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4. Matthew v. Diaz – SCT unanimously upheld a federal statute that denied Medicaid benefits to aliens unless they had been admitted for permanent residence and have resided for at least five years in the united states. 5. Hamptom v. Wong – SCT articulated a distinction bt decisions by Congress or the president and those by a federal admin agency – rational basis review is used only for the former. 6. Plyer v. Doe – Challenge to a TX law which prohibited the use of state funds to educate the children of undocumented aliens. Court held that absent a showing that such a policy furthers a substantial state instrest, a state may not deny public education to the children of undocumented aliens. Court applies rational basis test. F. Discrimination Against Non-Marital Children – intermediate scrutiny – lins – look at 805 and 806 – need to go thru note cases a. Laws Denying Benefits to all Non-Martial Children b. Laws that Provide a benefit to some non-marital children G. Other Types of Discrimination – only rational basis review a. Age Classifications –Massachusetts Board of Retirement v. Murgia - SCT upheld a state law that required police officers to retire at age 50. b. Discrimination Based on Disability – Heller v. Doe –SCT upheld a state law that allowed mentally retarded individuals to b e civilly committed if there was clear and convincing evidence justifying institutionalization. c. Wealth Discrimination – Griffin v. IL – SCT held that it violated EPC to deny free trial transcripts to indigent criminal defendants who were appealing their conviction. 1. San Antonio Independent School District v. Rodriguez –SCT held that poverty is not a suspect class and that discrimination against the poor should only receive rational basis review. d. Sexual Orientation – Romer v. Evans- SCT used the rational basis test to invalidate a state law that encouraged the discrimination based on sexual origention 1. Lawrence v. TX – Court relied on due process, not EPC, to strike down a state law prohibiting private consensual homosexual activity. Court did not specify the level of scrutiny it applied.
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