2. What is Equal Protection? 1. Derived from Declaration of Independence “We hold these truths … all men are created equal” “We hold these truths … all men are created equal” 2. Meaning: state and local government cannot draw unreasonable distinctions between different groups of people – 5 th amendment : Due Process Clause – 14 th Amendment: “Equal Protection Clause” 3. Fundamental Freedoms – Explicitly guaranteed in the Constitution – Close Scrutiny/state laws in violation are unconstitutional

3. Substantive vs. Procedural Due Process Substantive due process addresses whether there are certain areas where government action or regulation is inherently “undue,” a quality of action that government simply cannot undertake. Substantive due process addresses whether there are certain areas where government action or regulation is inherently “undue,” a quality of action that government simply cannot undertake. Procedural due process is understood to mean that when a state or local government seeks to take some sort of action against an individual that adversely affects that individual (their life, liberty, or property), the state must follow certain procedures to protect the individual’s rights. Procedural due process is understood to mean that when a state or local government seeks to take some sort of action against an individual that adversely affects that individual (their life, liberty, or property), the state must follow certain procedures to protect the individual’s rights.

4. Who Needs Protection? Strict scrutiny : Reverses the normal presumption of constitutionality. The law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest. Strict scrutiny : Reverses the normal presumption of constitutionality. The law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest. – law categorizes on the basis of race, religion or national origin Intermediate scrutiny : the law is unconstitutional unless it is "substantially related" to an "important" government interest and that the classification is at least substantially related to serving that interest. Note that in past decisions "sex" generally has meant gender. Intermediate scrutiny : the law is unconstitutional unless it is "substantially related" to an "important" government interest and that the classification is at least substantially related to serving that interest. Note that in past decisions "sex" generally has meant gender. – law categorizes on the basis of sex Rational-basis test : the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest. Rational-basis test : the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest. – law categorizes on some other basis: age, Income, hardship, etc

5. Race as a Suspect Classification Plessy v. Ferguson (1896) - supported state actions that segregated the races. Plessy v. Ferguson (1896) - supported state actions that segregated the races. Brown v. Board of Education (1954) - established race as a suspect classification, struck down all laws based on race Brown v. Board of Education (1954) - established race as a suspect classification, struck down all laws based on race

6. Affirmative Action Policies that encourage institutions to take positive steps to correct the effects of past discrimination Regents of Univ. of California v. Bakke (1978) – race can be considered but can’t use quotas –g–g–g–government can make laws that eliminate prior inequities However, must be a compelling interest to relieve a specific case of discrimination Grutter v. Bollinger and Gratz v. Bollinger (2003) – r– r– r– recognized use by law school of “plus factor” but cannot give extra points to undergrad applicants

7. Is Gender Suspect? Laws discriminated against women on the pretext of protection Laws discriminated against women on the pretext of protection – The women’s movement has objected to these laws as paternalistic Reed v. Reed (1971) – banned classification that didn’t meet “important government objectives” Reed v. Reed (1971) – banned classification that didn’t meet “important government objectives” Courts retain part of the protective movement (military draft) Courts retain part of the protective movement (military draft) Cases have expanded comparable worth, pregnancy rights Cases have expanded comparable worth, pregnancy rights Equal Rights Amendment (1972) - Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Equal Rights Amendment (1972) - Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Title IX (Educational Amendments Act of 1972) - prohibiting sex discrimination in educational institutions Title IX (Educational Amendments Act of 1972) - prohibiting sex discrimination in educational institutions Lilly Ledbetter Act (2009)- 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. Lilly Ledbetter Act (2009)- 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action.

9. Gay Rights Defense of Marriage Act (1996) Defense of Marriage Act (1996) – Recognizes marriage as between one man and one woman Romar v. Evans (1996) Romar v. Evans (1996) – Invalidated CO law seeking to eliminate laws protecting homosexuals from discrimination McVeigh v. Cohen (1998) McVeigh v. Cohen (1998) – Navy violated privacy regarding AOL profile Lawrence v. Texas (2003) Lawrence v. Texas (2003) – Invalidated state sodomy laws Recent policy changes: Don’t Ask Don’t Tell and California Proposition 8 Recent policy changes: Don’t Ask Don’t Tell and California Proposition 8

10. Age and Disability Discrimination Age Discrimination in Employment Act Age Discrimination in Employment Act – Passed in 1967 – Prohibits age discrimination unless a bona fide qualification Americans with Disabilities Act (ADA) Americans with Disabilities Act (ADA) – Passed in 1990; requires “reasonable accommodations” be made unless they create “undue hardship” Individuals with Disabilities in Education Act (IDEA) Individuals with Disabilities in Education Act (IDEA) – Guarantee of free and appropriate public education (FAPE) in least restrictive environment (LRE) – Due Process guarantees for parents and students