EQUAL PROTECTION

EQUAL PROTECTION

The Fourteenth Amendment Equal Protection Clause applies to states and local governments, and those same principles apply to the federal government through the Fifth Amendment Due Process Clause.

STANDARDS OF REVIEW

1. Strict Scrutiny

2. Intermediate Scrutiny

3. Rational Basis

Strict Scrutiny

Applies when the government substantially burdens a fundamental right or intentionally discriminates against a suspect class

• Requires the government to prove that its action is the least restrictive means to achieve a compelling governmental interest

Intermediate Scrutiny

Applies when the government intentionally discriminates against a quasi-suspect class

• Requires the government to prove that its action is substantially related to an important governmental interest.

Rational Basis Review

Applies when the governmental action does not impact a fundamental right or discriminate against a suspect or quasi-suspect class

• Requires the challenger to prove that the law is not rationally related to a legitimate governmental interest (i.e., is arbitrary or irrational)

Proving Discrimination

To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government.

Facially discriminatory

The language of a law distinguishes between different classes of persons

• Proof of Intent: Discriminatory intent presumed

Discriminatory application

A facially neutral law is applied differently to different classes of persons (e.g., a state hires only male applicants)

• Proof of Intent: Purposeful discrimination (e.g., female applicants are equally qualified)

Discriminatory impact

A law that is neutral on its face and in its application disproportionately impacts a particular class (e.g., six-foot height requirement mostly affects female applicants)

• Proof of Intent: Purposeful discrimination (e.g., the legislative history shows an intent to exclude female applicants)

SUSPECT CLASSIFICATIONS

1. Race, Ethnicity, and National Origin

2. Citizenship Status

Race, Ethnicity, and National Origin

• School integration – Only de jure (intentional) segregation in schools violates the Equal Protection Clause.

• Affirmative action – Programs that favor racial or ethnic minorities are subject to strict scrutiny.

Citizenship Status

A federal classification is likely valid unless it is arbitrary and unreasonable. In contrast, a state classification is generally subject to strict scrutiny and will be struck down—however:

• State laws barring a noncitizen from participating in government functions (e.g., voting, serving on a jury or as a police officer) are subject to rational basis review.

• States cannot deny undocumented citizens primary or secondary education benefits.

QUASI-SUSPECT CLASSIFICATIONS

1. Gender

2. Legitimacy

Gender

There must be discriminatory intent by the government—not just disparate impact—to trigger intermediate scrutiny. The government must then show that (1) an “exceedingly persuasive justification” exists for a gender distinction and (2) separate facilities are substantially equivalent.

• Affirmative action is permissible under intermediate scrutiny as a remedy for past gender-based discrimination.

Legitimacy

Legislation designed to punish nonmarital children will not be upheld.

NONSUSPECT CLASSIFICATIONS

Common nonsuspect classifications include age, poverty, and sexual orientation. The U.S. Supreme Court has ruled that the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. However, it has not determined whether discrimination based on sexual orientation is subject to heightened scrutiny.

FUNDAMENTAL RIGHTS UNIQUE TO EQUAL PROTECTION

All of the fundamental rights associated with the Substantive Due Process Clause overlap with the Equal Protection Clause. However, the following rights are unique to the Equal Protection Clause and do not overlap with the Substantive Due Process Clause:

1. One person, one vote

2. Gerrymandering

One person one vote

– When the government establishes voting districts for the election of representatives, the number of persons in each district must be approximately equal.

Gerrymandering

– Election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines unless the district plan can survive strict scrutiny. However, partisan gerrymandering claims are not justiciable.

Tips

• The right to travel and the right to vote are the most frequently tested fundamental rights in the area of equal protection—and the Due Process Clause will often apply as well.

• The Equal Protection Clause predominates if the question emphasizes denial of a right to a particular group, and it does not apply if the denial of the right is universal.