Constitutional Law II

Equal Protection


  1. Identify the class affected
    • Also identify the class of people treated otherwise
  2. Determine whether the classification is suspect
    • Suspect Classification

      A few factors determine whether a classification is suspect. It is likely if it is:

      1. Historically irrationally marginalized or oppressed
      2. A minority
      3. Immutable traits
      4. Without the political power to remedy its issue
  3. Choose the relevant standard of review
    • Minimal scrutiny if not a suspect classification (default standard of review)
    • Strict scrutiny if a suspect classification (e.g., race)
      • Even if it is discrimination in favor of minority races
        • Only diversity in higher education and proportionate remediation of past, unremedied discrimination caused by that government will satisfy this.
    • Intermediate scrutiny if a semi-suspect classification (e.g., gender)
      • Applies to both men and women
      • The government's interest cannot be based on improper stereotypes or archaic or overly broad generalizations. If it is based on biological differences or childbirth, the government will probably win; if not, it will probably lose.
Discriminatory Effect

A discriminatory effect alone does not violate equal protection, but a discriminatory purpose can, and a discriminatory effect is evidence of a discriminatory purpose.

Diversity is a compelling government interest in higher education.

  • Quotas are prohibited however because they are not narrowly tailored.
Private Discrimination

The U.S. Constitution does not prevent private racial discrimination, so neither state nor the federal governments have a duty to outlaw it.

States can outlaw private discrimination under their police powers however, and the federal government can under the commerce clause.

States can enforce private racially restrictive covenants of the sale of property, but they do not have to.

States can generally repeal anti-discrimination laws, but they may not be able to if it is seen as intending to authorize racial discrimination.

Political Process Doctrine

If a higher level of government repeals a lower government's anti-discrimination law, the political process doctrine declares such repeal unconstitutional because it forces the people discriminated against to go to a higher level of government to get protection.

Saving money is a legitimate state interest, but not a compelling state interest.

State laws discriminating against lawful resident aliens in employment are given "close scrutiny" (meaning strict scrutiny), except the political function exception will give a lower standard of review if the discrimination is "to preserve the basic conception of a political community."

If a law implicates both a non-protected class—such as the poor or non-residents—and a fundamental right—such as voting, access to the judicial system, travel (invoked by welfare), or education—it will be given strict scrutiny.