1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program American Constitutional Law LAW-210 Equal Protection

2. Unit Objectives At the completion of this unit, students should be able to: 1. Explain the difference between classification and invidious discrimination. 2. Describe the circumstances under which the Equal Protection Clause applies to private conduct. 3. Explain why the federal government is subject to the requirements of the Equal Protection Clause. 4. Define the terms: suspect class, quasi-suspect class, and fundamental rights. 5. Compare and contrast the three tests used by the Supreme Court when evaluating laws and practices for equal protection violations.

3. Unit Objectives (Continued) 6. Describe examples of laws that violate the Equal Protection Clause. 7. Describe examples of laws that do not violate the Equal Protection Clause. 8. Explain how the Equal Protection Clause protects voting rights. 9. Summarize the “one person, one vote” rule. 10. Describe the difficulties stemming from efforts to eliminate equal protection violations.

4. Classification vs. Invidious Discrimination The Equal Protection Clause of the Fourteenth Amendment prohibits laws and practices that invidiously discriminate against one or more groups. The Equal Protection Clause of the Fourteenth Amendment prohibits laws and practices that invidiously discriminate against one or more groups. Invidious discrimination is a type of discrimination or classification based on ill will or prejudice because of characteristics such as race, color, religion, sex, age, legitimacy, handicap, or national origin. Invidious discrimination is a type of discrimination or classification based on ill will or prejudice because of characteristics such as race, color, religion, sex, age, legitimacy, handicap, or national origin. “Statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.” [Ferguson v. Skrupa (1963)] “Statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.” [Ferguson v. Skrupa (1963)]

5. Example: Segregation in Public Facilities In 1896, in the case of Plessy v. Ferguson, 163 U.S. 537, the Supreme Court ruled that a Louisiana law requiring cars for blacks was not unconstitutional and did not violate the Fourteenth Amendment Equal Protection Clause, thereby establishing the “separate but equal doctrine”. In 1896, in the case of Plessy v. Ferguson, 163 U.S. 537, the Supreme Court ruled that a Louisiana law requiring cars for blacks was not unconstitutional and did not violate the Fourteenth Amendment Equal Protection Clause, thereby establishing the “separate but equal doctrine”. In the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), the Court rejected the apartheid system that Plessy sanctioned by striking down the doctrine of “separate but equal.” In the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), the Court rejected the apartheid system that Plessy sanctioned by striking down the doctrine of “separate but equal.”

6. Application of the Equal Protection Clause to State and Federal Government Equal protection of the laws applies to state governments through the Equal Protection Clause of the Fourteenth Amendment. Equal protection of the laws applies to state governments through the Equal Protection Clause of the Fourteenth Amendment. Equal protection of the laws applies to the federal government through the Due Process Clause of the Fifth Amendment. Equal protection of the laws applies to the federal government through the Due Process Clause of the Fifth Amendment. Private conduct is subject to the Equal Protection Clause only when the private conduct has a nexus or connection to the state. Private conduct is subject to the Equal Protection Clause only when the private conduct has a nexus or connection to the state.

7. Actions by Private Parties and State Action Court finds state action in discrimination by private parties where: Court does not find state action in discrimination by private parties where: Private party uses courts to enforce discriminatory practice. Shelley v. Kraemer (1948) Private party uses courts to enforce discriminatory practice. Shelley v. Kraemer (1948) Private party hires a deputy sheriff as security to enforce discriminatory practice. Griffin v. Maryland (1964) Private party hires a deputy sheriff as security to enforce discriminatory practice. Griffin v. Maryland (1964) Private party leases property from state. Burton v. Wilmington Parking Authority (1961) Private party leases property from state. Burton v. Wilmington Parking Authority (1961) Only connection to state is purchase of liquor license. Moose Lodge No. 107 v. Irvis (1972) Only connection to state is purchase of liquor license. Moose Lodge No. 107 v. Irvis (1972)

8. Tests for Equal Protection In reviewing state laws for violations of the Equal Protection Clause the Supreme Court uses one of three tests: the rational basis test, strict scrutiny, and intermediate scrutiny. In reviewing state laws for violations of the Equal Protection Clause the Supreme Court uses one of three tests: the rational basis test, strict scrutiny, and intermediate scrutiny. Strict scrutiny is used when a law targets a suspect class or affects a fundamental (constitutional) right. Strict scrutiny is used when a law targets a suspect class or affects a fundamental (constitutional) right. Intermediate scrutiny is used when a law targets a quasi- suspect class. Intermediate scrutiny is used when a law targets a quasi- suspect class. When a law does not target a suspect or quasi-suspect class nor affect a fundamental right, the Court applies the rational basis test (e.g., economic purpose, age, mental disability, and sexual preference). When a law does not target a suspect or quasi-suspect class nor affect a fundamental right, the Court applies the rational basis test (e.g., economic purpose, age, mental disability, and sexual preference).

9. Suspect Classes and Fundamental Rights Suspect Class (suspect classification) – Making choices (in employment, etc.) based on factors such as race or nationality. These choices, only rarely legitimate, must be strongly justified if challenged. Suspect Class (suspect classification) – Making choices (in employment, etc.) based on factors such as race or nationality. These choices, only rarely legitimate, must be strongly justified if challenged. The Supreme Court sometimes refers to members of a suspect class as members of a “discrete and insular minority”. The Supreme Court sometimes refers to members of a suspect class as members of a “discrete and insular minority”. A Quasi-suspect Class is a classification in the law based on factors such as gender or legitimacy that must be justified (but not as strongly as re: a suspect class) if the law is challenged. A Quasi-suspect Class is a classification in the law based on factors such as gender or legitimacy that must be justified (but not as strongly as re: a suspect class) if the law is challenged. Fundamental Rights are the basic rights, such as the right to vote and right to travel, that are most strongly protected by the Constitution. Fundamental Rights are the basic rights, such as the right to vote and right to travel, that are most strongly protected by the Constitution.

10. Equal Protection: How Challenged Laws Are Reviewed Rational Basis Strict Scrutiny Intermediate Scrutiny Law is constitutional if: Law has a reasonable relationship to legitimate government interest. Law is constitutional if: Law is necessary to achieve a compelling state interest. Law is constitutional if: Law is substantially related to an important government interest. Application: Laws that classify by age or mental retardation. Laws that classify by age or mental retardation. Laws that have an economic purpose. Laws that have an economic purpose. Laws that do not fall into other categories. Laws that do not fall into other categories.Application: Laws that classify by “suspect class” (race, ethnicity, and sometimes alien status) or burden a fundamental right and demonstrate purposeful discrimination. Laws that classify by “suspect class” (race, ethnicity, and sometimes alien status) or burden a fundamental right and demonstrate purposeful discrimination.Application: Laws that classify by quasi-suspect class (gender, legitimacy, or sometimes alien status) Laws that classify by quasi-suspect class (gender, legitimacy, or sometimes alien status)

11. Equal Protection Case Summaries Race, Ethnicity, or National Origin Classifications CaseFactsHolding Yick Wo v. Hopkins, 118 U.S. 356 (1886) An ordinance making it a crime to carry on a laundry within city limits was enforced solely against Chinese, even though it did not mention race. Unconstitutional Korematsu v. United States, 323 U.S. 214 (1944) During World War II, a law prohibited individuals of Japanese ancestry from being in certain military areas. Constitutional (the war was a compelling reason) McCleskey v. Kemp, 481 U.S. 279 (1987) Defendant challenged state death penalty claiming statistical studies showed its imposition was based on race. Constitutional (no showing of purposeful discrimination)

12. United States v. Virginia 518 U.S. 515 (1996) Casenotes Casenotes Casenotes Issue: Discrimination based on gender (quasi- suspect classification - intermediate scrutiny test). Issue: Discrimination based on gender (quasi- suspect classification - intermediate scrutiny test). Held that: Held that: Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. The state’s categorical exclusion of women from educational opportunities denies equal protection to women. The state’s categorical exclusion of women from educational opportunities denies equal protection to women. The creation of a separate program for women does not cure the constitutional violation. The creation of a separate program for women does not cure the constitutional violation.

13. Equal Protection Case Summaries Gender Classification CaseFactsHolding Craig v. Baren, 429 U.S. 190 (1976) A law allowed 18-year-old women to buy beer, but required men to be 21. Unconstitutional Stanton v. Stanton, 421 U.S. 7 (1975) A law set the age of majority for women at age 18 and for men at 21. Unconstitutional Reed v. Reed, 404 U.S. 71 (1971) A law gave preference to a man in deciding who should be the executor of an estate, all other factors being equal. Unconstitutional United States v. Virginia, 518 U.S. 515 (1996) State operated a military institute exclusively for men. Unconstitutional

14. Equal Protection Case Summaries Gender Classification (Continued) CaseFactsHolding Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982 A state-run nursing school admitted only women. Unconstitutional Caban v. Mohammed, 441 U.S. 380 (1979) A law gave unwed mothers the right tot consent to an adoption of the child, but not the unwed fathers. Unconstitutional Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981) A law criminalized statutory rape for a male, but not a female. Constitutional

15. Equal Protection Case Summaries Alienage Classification CaseFactsHolding Graham v. Richardson, 403 U.S. 365 (1971) A law denied welfare benefits to resident aliens. Unconstitutional Takahashi v. Fish & Game Com., 334 U.S. 410 (1948) A state law denied the right to obtain a fishing license necessary to the alien’s business as a commercial fisherman. Unconstitutional In re Griffiths, 413 U.S. 717 (1973) A state law denied a resident alien the right to take the bar examination. Unconstitutional Phyler v. Doe, 457 U.S. 202 (1982) A state law withheld funds from local school districts enrolling undocumented aliens. Unconstitutional

16. Equal Protection Case Summaries Economic and Age Classifications CaseFactsHolding San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) A state funded schools through property taxes even though poorer neighborhoods had less money for education. Constitutional Griffin v. Illinois, 351 U.S. 12 (1956) A state law required convicted indigent defendants to pay for a copy of the transcript needed for an appeal. Unconstitutional (also based on fundamental right to fair trial) Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307 (1976) A state law required police to retire at age 50. Constitutional

17. City of Cleburne v. Cleburne Living Ctr., Inc. 473 U.S. 432 (1985) Casenotes Casenotes Casenotes Issue: Discrimination based on mental disability (rational basis test). Issue: Discrimination based on mental disability (rational basis test). Held that: Held that: Denial of a special use permit to a proposed group home was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Denial of a special use permit to a proposed group home was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The "rational relation" test for legislative action provided sufficient protection for the mentally retarded against invidious discrimination. The "rational relation" test for legislative action provided sufficient protection for the mentally retarded against invidious discrimination.

18. Romer v. Evans 517 U.S. 620 (1996) Casenotes Casenotes Casenotes Issue: Discrimination based on Sexual Preference (rational basis test). Issue: Discrimination based on Sexual Preference (rational basis test). Held that: Held that: An amendment to a state’s constitution precluding all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” violates the Equal Protection Clause. An amendment to a state’s constitution precluding all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” violates the Equal Protection Clause.

19. Equal Protection Case Summaries Mental Disability and Sexual Preference Classifications CaseFactsHolding City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) A group home for the mentally disabled was forced to apply for a special zoning permit. Unconstitutional Romer v. Evans, 517 U.S. 620 (1996) A state constitution prohibited all legislative, executive, or judicial action designed to protect the status of persons based on their sexual preference. Unconstitutional

20. Bush v. Gore 531 U.S. 98 (2000) Casenotes Casenotes Casenotes Held that: Held that: The Equal Protection Clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment." The Equal Protection Clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment." The state’s use of standardless manual recounts violates the Equal Protection Clause. The state’s use of standardless manual recounts violates the Equal Protection Clause.

21. Equal Protection and Voting Rights The Supreme Court has reviewed various laws and practices that present equal protection issues including: The Supreme Court has reviewed various laws and practices that present equal protection issues including: Laws that impose qualifications for voters, Laws that impose qualifications for voters, Laws that restrict a candidate’s access to the ballot, Laws that restrict a candidate’s access to the ballot, Reapportionment or redistricting for elections, and Reapportionment or redistricting for elections, and Vote recount processes. Vote recount processes.

22. One Person, One Vote Apportionment and Redistricting Early voting rights cases attempted to eliminate racially gerrymandered districts that were drawn to dilute or eliminate the voting strength of black persons. Black neighborhoods were broken into strangely shaped districts to insure a white majority in each of the districts, effectively preventing the election of black candidates. Early voting rights cases attempted to eliminate racially gerrymandered districts that were drawn to dilute or eliminate the voting strength of black persons. Black neighborhoods were broken into strangely shaped districts to insure a white majority in each of the districts, effectively preventing the election of black candidates. In Shaw v. Reno, 509 U.S. 630 (1993), the Court applied the principles of Gomillion v. Lightfoot, 364 U.S. 339 (1960), to invalidate a racially based gerrymander designed to foster the election of black candidates. In Shaw v. Reno, 509 U.S. 630 (1993), the Court applied the principles of Gomillion v. Lightfoot, 364 U.S. 339 (1960), to invalidate a racially based gerrymander designed to foster the election of black candidates. The Court held that irrational reapportionment schemes, which were inexplicable on grounds other than race, had to be narrowly tailored to serve a compelling state interest. The Court held that irrational reapportionment schemes, which were inexplicable on grounds other than race, had to be narrowly tailored to serve a compelling state interest. Although it remanded the case for further consideration, the Shaw Court did suggest certain race-based districting that may pass strict scrutiny. Although it remanded the case for further consideration, the Shaw Court did suggest certain race-based districting that may pass strict scrutiny.

23. Brown v. Board of Education 349 U.S. 294 (1955) Casenotes Casenotes Casenotes Issue: Desegregation in public schools. Issue: Desegregation in public schools. Reaffirms the decision in the first Brown v. Board of Education case, and remands all cases to the U.S. District Courts for necessary and proper proceedings, orders and decrees to admit parties to public schools on a racially nondiscriminatory basis with all deliberate speed. Reaffirms the decision in the first Brown v. Board of Education case, and remands all cases to the U.S. District Courts for necessary and proper proceedings, orders and decrees to admit parties to public schools on a racially nondiscriminatory basis with all deliberate speed.

24. Affirmative Action The affirmative action cases examine the legitimacy of using race, ethnicity, or gender as criteria for preferring one candidate for a job or school over another. The affirmative action cases examine the legitimacy of using race, ethnicity, or gender as criteria for preferring one candidate for a job or school over another. Critics of affirmative action argue that it recognizes and utilizes racial, ethnic, and gender lines in a manner that the law has proscribed in other contexts. Critics of affirmative action argue that it recognizes and utilizes racial, ethnic, and gender lines in a manner that the law has proscribed in other contexts. Proponents argue that these lines are justified, and indeed necessary, to redress past societal discrimination against minorities and women. Proponents argue that these lines are justified, and indeed necessary, to redress past societal discrimination against minorities and women.

25. Regents of the Univ. of Cal. v. Bakke 438 U.S. 265 (1978) Casenotes Casenotes Casenotes Issue: Affirmative action plans in public schools. Issue: Affirmative action plans in public schools. Held that: Held that: A state’s college admissions policy of reserving a quota of places for minority applicants is subject to a strict scrutiny standard under which the state is required to demonstrate that the policy is the least intrusive means of achieving the goals of a compelling state interest. A state’s college admissions policy of reserving a quota of places for minority applicants is subject to a strict scrutiny standard under which the state is required to demonstrate that the policy is the least intrusive means of achieving the goals of a compelling state interest. Diversity in college admissions is nevertheless a legitimate state interest and is a factor that can be considered in admissions policy. Diversity in college admissions is nevertheless a legitimate state interest and is a factor that can be considered in admissions policy.

26. Grutter, Barbara v. Bollinger, Lee, et al. 539 U.S. 306 (2003) Grutter, Barbara v. Bollinger, Lee, et al. 539 U.S. 306 (2003) Casenotes Casenotes Casenotes Issue: Affirmative action plans in public schools. Issue: Affirmative action plans in public schools. Held that even though a minority admissions procedure is narrowly drawn so as to be constitutional, it must have an end point (e.g., “sunset provisions”). Held that even though a minority admissions procedure is narrowly drawn so as to be constitutional, it must have an end point (e.g., “sunset provisions”).