What is the Equal Protection Clause?
Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)
More info: Equal Protection
Does the Equal Protection Clause apply to the federal government?
Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause
How do you distinguish due process from equal protection issues?
Ask: does the statute contain a classification along suspect lines? If yes, it is an equal protection issue. If not, due process issue.
What are 4 steps to analyzing equal protection questions?
-
Is there a classification by the government?
- P must prove classification was made with discriminatory intent
-
What is the classification?
- Suspect, quasi, or other
- What level of scrutiny applies?
- Suspect = strict
- Quasi = intermediate
- Other = rational basis
- Does the government action satisfy the level of scrutiny?
What are the suspect classifications?
- Race;
- Alienage (state laws);
- Religion; and
- National origin
⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.
What are quasi-suspect classifications?
- Gender; and
- Legitimacy
⭐️ Intermediate scrutiny
What are non-suspect classifications?
-
Alienage if:
- Federal alienage classification; or
- State restriction on alien’s participation in government functions
- Age
- Wealth
- Sexual orientation
- Disability
- Any other classification not governed by strict or intermediate scrutiny
⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group
What are 3 ways that P can show a classification is discriminatory?
- Classification is discriminatory on its face: text of the law itself is unconstitutional.
- Classification is facially neutral, but discriminatory as applied: classification is discriminatory in its application or administration. Requires proof of both discriminatory intent and discriminatory effect.
- Discriminatory purpose/motive: P must show proof of discriminatory purpose.
Define
de jure segregation
Intentional segregation imposed by law. Subject to strict scrutiny.
Define
de facto segregation
Segregation that results from private action (e.g. choosing housing in certain neighborhoods). No equal protection violation because no government action.
For affirmative action to survive strict scrutiny, what must the government prove?
Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.
Must show evidence of past discrimination.
⚠️ Exception: quotas are almost never allowed.
Are racial quotas constitutional?
No, will almost always be struck down for failure to pass strict scrutiny unless gov. can prove quota is necessary to remedy pervasive, current discrimination
Is affirmative action in higher education admissions constitutional?
Note: This is changed as of June 29, 2023. MBE will likely not be updated, so still be able to answer the former rule.
Race may be used as a factor among many if state shows action is necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity
⭐️ Numbers-based quotas will almost always be struck down
2023 NOTE: SCOTUS ruled race cannot be used as a factor in admissions in Students for Fair Admissions (June 29, 2023). The MBE will likely not be updated - please know the former rule as well.
Alienage classifications trigger strict scrutiny unless:
- Classification is pursuant to Congress’ plenary powers to regulate immigration; or
- Classification is related to essential government functions and/or processes. Valid restrictions include:
- Voting and jury membership
- Working as public school teacher
- Working as police officer
- Working as probation officer
⭐️ If based on either circumstance, rational basis will apply
Are undocumented aliens a suspect class?
No, generally subject to rational basis review
Discrimination against the children of undocumented aliens triggers what level of scrutiny?
intermediate scrutiny
(ex. denying children the right to attend public schools)
Gender classifications trigger what level of scrutiny?
Intermediate scrutiny (substantially related to important government interest)
AND
proof of “exceeedingly persuasive justification”
Is affirmative action based on gender constitutional?
Yes, if necessary to achieve a compelling governmental interest in remedying past discrimination based on gender
Classifications based on legitimacy trigger what level of scrutiny?
Intermediate scrutiny.
Laws cannot discriminate against children of nonmarried parents without substantial relation to an important government interest
What is the “one person, one vote” requirement?
Each person’s vote must be equal to another person’s vote
⚠️ Exception: limited purpose elections
Voting legislation is subject to what level of scrutiny?
If based on anything other than age, residency, or citizenship, strict scrutiny applies.
List 4 examples of voting regulations that have been upheld
- Reasonable residency requirements;
- Reasonable registration requirements;
- Reasonable time and manner regulations; and
- Denial of voting rights to felons
What are four examples of unconstitutional voting restrictions?
- Poll taxes;
- Limiting school board elections to only parents and property owners
- Counting votes using overly vague standards; and
- Requiring political party registration for a general election (can be limited for primary elections)
Can states limit felon voting rights?
Yes, pursuant to Section 2 of the 14th Amendment
Does Congress have the power to override state laws concerning federal elections?
Yes, pursuant to the Elections Clause (Article I, Section IV)
Restrictions on travel trigger what level of scrutiny?
strict scrutiny
⚠️ Note: Only interstate travel; international travel is not a protected right
What is the test applied to non-resident discrimination?
There must be a substantial connection between the discrimination and a substantial state interest.
More Info: The Privileges and Immunities Clause
What does the Privileges or Immunities Clause under the 14th Amendment protect?
Right to interstate travel (very narrowly construed)
**Be careful. Privileges or immunities is almost never the right answer on the MBE.
List two examples of constitutional non-resident discrimination
- Charging more for recreational licenses (hunting or fishing); and
- Treating non-residents differently to preserve in-state natural resources
List four examples of unconstitutional non-resident discrimination.
- Charging higher fee for commercial licenses for non-residents
- Commuter taxes applied only to non-residents
- Limiting abortions to only local residents
- Mandating that employers only hire state-residents
Can states exclude non-citizens from jobs related to state governance (e.g. police officers, government officials, public school teachers)?
Yes
Can a state ban all write-in candidates for the primary and general election?
Yes, as long as there are reasonable, alternative methods of getting on the ballot
Can a state refuse to put a candidate on ballot unless a minimum amount of voter support is shown? (e.g. via signatures, etc)
Yes
