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EQUAL PROTECTION ANALYSIS - Constitutional Guarantees: V amendment (EP has been incorporated into the DP language by the Supreme Court) and the XIV amendment applies to the states. - a π’s complaint in an EP case is how the government has “drawn a line” distinguishing between two groups without a rational basis. The two groups, added together, should add up to 100% (i.e. white/non-white instead of white/black) - the π says, “I, a _____, am being treated differently than X, a _____, without any rational basis. - the big picture in an EP case is WHY the government has drawn the line where they did. - the EP clause does NOT demand equality, but rather demands a reasonable basis for inequality - the π may also depend on STATUTORY language as a cause of action. This is different than the “constitutional π”. In a case where the π depends on statutory language, the Δ will likely argue that the statute itself is unconstitutional. STEPS FOR ANALYZING AN EP CLAIM FIRST: Is the act DISCRIMINATORY? - Discriminatory effect is not enough, there must also be INTENT.
There are 3 ways to show INTENT: (1) FACIAL – (in writing, e.g. a law or ordinance?) If the challenged act is facial, the classificatory basis is identified in the law, act, statute, etc.
If the challenged act is not facial, the π must assert what the classificatory basis is.
(2) DISCRIMINATORY APPLICATION -
(3) DISCRIMINATORY MOTIVE
- if the challenged act is facial, the classificatory basis is identified in the law, act, statute, etc. - if the challenged act is not facial (as applied), the π still must assert what the classificatory basis is. SECOND:
” what are the “Real Differences”? . not the CLASS CLAIMING THE DISCRIMINATION (unless it would not make sense).Law school’s holistic no-point system was not . IS THERE ANY REASON TO ALTER LEVEL? (Affirmative action and heart of representative gov’t.Undergrad 20 point was a guarantee.) Quiz Question: What is the meaningful distinction between Grutter and Gratz: .Long History of Discrimination . Indicia of Suspectness The following factors are considered when determining which level of scrutiny to apply: .No Political Power – no voting power (Carolene: footnote 4.CON LAW II – SPRING 2008 THE DON EQUAL PROTECTION FLOW If Facial… If the π is challenging a law “on its face” the next step is to determine the level of scrutiny that will be applied to the CLASSIFICATORY BASIS.“No Real” Differences – totally unofficial.Inherent Characteristic – you’re born with it . This usually includes economic and social legislation. ask.Thus. . struck undergrad 5 Rational Basis Review (Minimal Scrutiny) Rational basis review is applied to non-suspect legislation. discrete and insular minorities) .The Court will look closely at “No Real Differences. and cases that do NOT involve fundamental rights/Suspect Classifications. upheld law school scheme. not related to anything real . where .Once scrutiny level is found.Discrete and Insular Minorities .
CON LAW II – SPRING 2008 THE DON EQUAL PROTECTION FLOW In these cases. .. v.“Party who seeks to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action. and Fundamental rights Purpose and Means Analysis After deciding on the level of scrutiny. Virginia) Ginsburg adds “exceedingly persuasive justification” The court asks: is the Purpose of the legislation (or act) Important? Are the Means by which the state chooses to accomplish the stated purpose Substantially Related to the stated purpose? Quiz Question: (U. or is it only appropriate in this “boys only” type situation .She says that VA has to prove that there is no overlap. consumer items. and most men can’t meet the requirement.S. that no women can satisfy the requirement: argument is that some women can satisfy. the Court will then analyze the purpose and means of the legislation or challenged act based on the scrutiny level The Court gathers the Purpose of legislation (in a facial attack) by looking at the following: .” Strict Scrutiny has been applied to cases involving Race Alienage National origin. etc… Intermediate Scrutiny Applies to “quasi-suspect” classifications – you must apply the indicial to come to this level Gender – (U. the Court asks: Is the Purpose of the legislation (or act) Legitimate? Are the Means by which the state chooses to accomplish the stated purpose Rational? Based on this type of analysis.examples of minimal scrutiny are advertising.Is this I.S. v.The court will give great deference to the legislature and legislative decision making . the gov’t act will be upheld . the π has a difficult time proving an EP case .The court will forgive under-inclusive and over-inclusive statutes . eyeglasses.the court has said if there is “any reasonable conceivable state of facts” that could provide a rational basis for the classification.S. Virginia) How is Ginsburg’s “intermediate scrutiny” more like strict scrutiny? .“exceedingly persuasive justification” . Religion.
When there is strict scrutiny. 727) The “Heart of Representative Gov’t” exception to strict scrutiny Legislatures may pass laws that limit certain governmental position based on Alienage. the courts look at how effectively the means accomplish the purpose. “preserving the races) When analyzing the means. unless it is blatantly unconstitutional (e. the court in action seems to apply a lower level when analyzing statutes that act to rectify past discrimination. forgiving over-inclusive statutes (Kahn v. the burden can be seen as shifting to the Δs (although in theory it doesn’t) to show they are using necessary means to accomplish compelling purposes . Courts will rarely question the purposes of legislators . and those laws will be subject to minimal scrutiny if: . it is π’s burden to discount every rational means given by the state . .When examining a law or statute that allegedly violates EP. the government’s purpose in facial attacks is not questioned. you must be sure that the statistics are relevant and substantially related to the state’s stated purpose .In General.g. Shevin p. Although Courts say statutes involving sex and race should be subject to higher levels of scrutiny.If the π wins an EP challenge.In minimal scrutiny.When a π is arguing against minimal scrutiny.When examining statistical data. the state is given a change to “redraw” the line of distinction Reverse Discrimination (Affirmative Action) exception to stricter scrutiny The courts have held that rectifying past discrimination is an important purpose. The level of scrutiny will determine how closely the means are scrutinized.CON LAW II – SPRING 2008 THE DON EQUAL PROTECTION FLOW (1) The statute itself (2) The legislative history (3) Contemporaneous “facts” (4) The defense at the time of the act (5) The defense at the time of defense . the existence of exceptions is evidence that the law or statute is not substantially necessary to achieve the purpose It is important to have the purpose of a law or statute nailed down in order to determine if the law is the right “fit” for the purpose .
execution.police officers. Legislative. Defending against a Non-Facial claim: . elected politicians) Cases – Ambach & Sugarman If Non-Facial: (1) DISCRIMINATORY APPLICATION.CON LAW II – SPRING 2008 THE DON EQUAL PROTECTION FLOW First… (1) The persons hold elected offices or (2) Important non-elected positions that are: (a) Executive. (b) Officers who participate directly in the formulation. or Judicial positions. (2) DISCRIMINATORY MOTIVE / DESIGN… Non-facial acts that may violate the EPC are more difficult to prove because the π must show INTENT on the part of the state actor to discriminate based on the π’s asserted basis INTENT in a constitutional case is more than awareness by the Δ of consequences of foreseeability of a discriminate impact: π must show that Δ did the challenged act BECAUSE OF ITS INTENT OR OBJECTIVE OR PURPOSE OR GOAL TO “at least in part” discriminate on the basis of X…In spite of the adverse effects against an identifiable group This proof of intent is accomplished by π convincing the finder of fact with a preponderance of the evidence – DISPARATE IMPACT of the challenged act IS the critical starting point (for 2 reasons: standing and power of coming out of the starting gate) Much of what goes into a Non-facial EP claim is the use of statistics to show discriminatory IMPACT (1st Arlington Heights factor). or review of broad public policy formation that go to the heart of representative government Second… The statute is not too over or under-inclusive as to undercut the government’s claim that the classification serves legitimate political ends The court has held that teachers qualify for this exception – (other . There may arise a “battle of statistics” for either side.
For example. the state said that Asians were denied permits b/c the laundries were not safe. he had no insurance. An investigation revealed that the white laundries were unsafe. or some other reason. . and that they discriminated against the π for a different. shooting down the state’s argument. in Yick-wo.CON LAW II – SPRING 2008 THE DON EQUAL PROTECTION FLOW The defense in a non-facial EP claim should first assert that the “dividing line” stated by the π is wrong. π asserts he was discriminated against because of his disease. legitimate reason Example: an aids patient is denied treatment at an ER. The π must rebut the state’s argument with their own evidence. The hospital may assert he was denied treatment because it wasn’t an emergency.
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