1. Consider: Does the 1 st amendment (religion, assembly) give you the right to refuse to hire, serve or otherwise interact with certain people? The Last Word: Multiple Choice test Thursday; Essay exam Fri.

2. Facts of the case  The Civil Rights Act of 1965 was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization.  Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change "neither has the purpose nor will have the effect" of negatively impacting any individual's right to vote based on race or minority status.  Section 5 was originally enacted for five years, but has been continually renewed since that time.  Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement.

3.  The Court held that Section 4 of the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states.  The Court also held that the formula for determining whether changes to a state's voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.  In his concurring opinion, Justice Clarence Thomas argued that Section 5 of the Voting Rights Act is unconstitutional in addition to Section 4. He wrote that the blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident. Without such extraordinary circumstances, Congress cannot constitutionally justify placing the burden of Section 5 on the states in question.  Justice Ruth Bader Ginsburg wrote a dissent in which she argued that Congress' power to enforce the Fourteenth and Fifteenth Amendments encompasses legislative action such as the Voting Rights Act. The legislative history and text of the Amendments as well as previous judicial precedent support Congress' authority to enact legislation that specifically targets potential state abuses.

4. AP Government and Politics

5.  The equal protection clause: “nor shall any state deny to any person…the equal protection of the laws”  Tests used by the Court to determine whether laws which make distinctions between groups are constitutional  Fundamental Rights – (Strict scrutiny) HIGHEST  Any law which restricts a certain group’s ability to exercise their most basic rights, including the right to vote, travel freely, due process or expression, is subject to the HIGHEST SCRUTINY (closest look)  Suspect Classification  If a law or government action draws a distinction based on race, religion or national origin, will be given a very close look  Intermediate Scrutiny – mid level  For laws that classify based on gender.  Rational Basis – the lowest level of scrutiny;  The government must only prove that the law has a rational basis (good reason) and that it accomplishes that goal.  Age, income, etc. Testing Equal Protection

6. Women and Equal Rights  Court has adopted an “Intermediate” level of scrutiny for laws that treat men and women differently.  More than simply “reasonableness”, but do not require very close “scrutiny”.  Must be “reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of legislation so that all persons similarly circumstanced shall be treated alike.”  Which are violations of Equal Protection?  A state sets different ages for men and women to become legal adults  Girls are not permitted to play on boys’ Little League teams  Women are barred from working in certain positions in a prison  Property tax exemption given to widows, but not widowers  All boy or all girls schools, w/voluntary enrollment and equality  Giving men preference over women in the execution of an estate

7. TABLE 5.1: What are the standards of review fashioned by the Court under the Equal Protection Clause? 5.4

8. Statutory Remedies for Sex Discrimination  Equal Pay Act of 1963 Requires equal pay for equal work  Title VII of Civil Rights Act of 1964 Prohibits gender discrimination by employers  Title IX of the Education Amendments of 1972 Bars educational institutions that receive federal funds from discriminating against female students 5.4

9. US vs. VMI (1995)  Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Equal Protection clause?  No.  Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause.  Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets.

10. Gay Rights and Equal Protection  The Court has ruled on a few “gay rights” cases recently.  It is mostly agreed that the intermediate scrutiny used to examine laws discriminating against women is the appropriate test used for laws against gays.  However, the Supreme Court, in both Lawrence and Windsor, did not indicate which level of scrutiny it applied.

11. Lawrence vs. Texas (2002)  Does the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate Equal Protection?  No  But In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.  The Court reasoned that the case turned on whether Lawrence was free to engage in the private conduct in the exercise of liberty under the Due Process Clause

12. Gay marriage  The federal Defense of Marriage Act (DOMA)  Defines marriage as a legal union between one man and one woman  Note: PA has adopted DOMA as its own law regarding marriage; and also an amendment is pending in the state legislature to define marriage in the same way.  It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman.  A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.  This law was overturned in Windsor vs. US

13. Windsor vs. US  Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws, of their 5 th Amendment rights to equal protection under federal law?  Yes  The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law.  The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.

14. Gay marriage cases  Federal DOMA challenge: Windsor vs. US  DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law.  The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.  Obergefell vs. Hodges  Tested whether:  same-sex marriage is a right; and/or…  states that do not recognize same-sex marriages MUST recognize those SS marriages performed within other states where it is legal. (“full faith and credit” clause)  Is same-sex marriage a right protected by the “Due Process” clause, or the “Equal protection” clause?

15. The question(s) in Obergefell  (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?  (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

16. The decision in Obergefell Yes and yes. Justice Kennedy wrote the opinion for a 5-4 majority.  Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it protects the most intimate association between two people, it safeguards children and families by according legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order.  Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the 14 th.  The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law.  Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry.  **Still did not answer the question of “level of scrutiny”…

17. The dissent in Obergefell  What does Roberts say “this dissent is about”? What does he say the “real question” is?  Appeals Court got it right. What did they say?  “constitutionalizing” the right to marry?  Why does Roberts bring up “plural marriage”? Is his comparison accurate?  What are the “consequences to shutting down the political process” on an issue like this?  Is the right of same-sex couples one of the “fundamental rights” protected by the 14 th amendments “due process” clause?

18. The Right to discriminate?

19. Consider: Is “diversity” in the workplace or in college an important governmental objective? If so, how is “diversity” defined, and how is it achieved? The Last Word: Multiple Choice test Thursday; Essay exam Fri

20. Affirmative Action  What is affirmative action?  Is it an example of equal protection, or the opposite of it?  Typically thought of in two ways:  Compensatory actions – helping people “catch up” by providing additional education or training  Preferential treatment – giving preference to minorities in hiring, admissions, etc.  When considering how a group has been affected by a law or program, the Court must ask two basic questions in order to determine if the law or action is constitutional:  Any preference given to a group must serve a “compelling state interest”  Law must be “narrowly tailored” to serve that interest  There have been several cases in the recent past which have outlined, revised, and attempted to sort out whether race-based policies, like college admissions, are constitutional.

21. Affirmative Action and College Admissions  There have been several significant cases in the recent past which have tested programs that aim to provide “help” to underrepresented minorities to attend college. Regents of CA vs. Bakke Grutter vs. Bollinger Gratz vs. Bollinger Fischer vs. U Texas

22. Regents of California vs. Bakke  Did the University of California violate the Equal Protection clause by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? No and yes. There was no single majority opinion.  Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Powell agreed, casting the deciding vote ordering the medical school to admit Bakke.  "... Race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats."  The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible.

23. Grutter vs. Bollinger (2002)  Does Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause?  No.  The Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.  Because the Law School conducts a highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race  Thus, this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race.  Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race- conscious admissions program does not unduly harm non- minority applicants.“

24. Gratz vs. Bollinger (2002; post Grutter  Does the U of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause?  Yes.  In a 6-3 opinion, the Court held that U of Michigan's use of racial preferences in undergraduate admissions violates the Equal Protection Clause.  The Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in Regents of the University of California v. Bakke.

25. Fisher vs. UT (2013)  Texas enacted a law requiring UT to admit all HS seniors who ranked in the top 10% of their high school classes. After finding differences between the racial and ethnic makeup of the university's undergraduate population and the state's population, Texas decided to modify its race-neutral admissions policy.  The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.  Abigail N. Fisher, a white female, applied for undergraduate admission. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher's application. Question:  Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?

26. The result: Fisher vs UT Question:  Does the Equal Protection Clause permit the consideration of race in undergraduate admissions decisions?  Yes  The Supreme Court held that such cases are reviewable under the 14 th Amendment, AND that they must be reviewed under a standard of strict scrutiny  Case was remanded to the Circuit Court for reconsideration; as a result, Bakke and Grutter were not changed…

27. The latest: Schuette vs. Coalition to Defend Affirmative Action  Michigan voters enact ban on affirmative action in education and employment.  Question: Does the ban on affirmative action violate equal protection?  Answer: No  Supreme Court upholds the ban, which enables states to choose whether they want to allow affirmative action programs

28. Activity  Which candidates did you choose? Did the other groups choose the same candidates as you or different ones?   What factors did you consider in making your selections? How did you determine which factors should weigh more heavily?   Was the selection process a difficult or easy one? Explain.   Which factors should admissions officers at colleges and universities consider in making their decisions? Should race play a role in their decisions? Why or why not?   Now assume that you have been told that approximately one-third of the available spaces should go to "under-represented minorities" (African Americans and Hispanics). Put a star next to the candidates that you would choose.   What does it mean to "set aside" a set number of places for members of certain minority groups? What does it mean to give "preferential treatment" to members of certain minority groups? Do you think that colleges or universities should engage in either of these practices? Explain your answers.   Do you have any suggestions that might help colleges and universities form a diverse student body while ensuring that the process is fair to everyone?