CON LAW II – SPRING 2008

THE DON
EQUAL PROTECTION FLOW

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:
 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, not the CLASS CLAIMING THE DISCRIMINATION (unless it would not make sense).

Indicia of Suspectness

The following factors are considered when determining which level of scrutiny to apply:

- Inherent Characteristic – you’re born with it

- “No Real” Differences – totally unofficial, not related to anything real

- No Political Power – no voting power (Carolene: footnote 4, discrete and insular minorities)

- Long History of Discrimination

- Discrete and Insular Minorities

- The Court will look closely at “No Real Differences,” what are the “Real Differences”?

- Once scrutiny level is found, ask, IS THERE ANY REASON TO ALTER LEVEL?

(Affirmative action and heart of representative gov’t.)

Quiz Question: What is the meaningful distinction between Grutter and Gratz:

- Undergrad 20 point was a guarantee; where

5 JUSTICES

- Law school’s holistic no-point system was not

- Thus, upheld law school scheme, struck undergrad

Rational Basis Review (Minimal Scrutiny)

Rational basis review is applied to non-suspect legislation. This usually includes economic and social legislation,
and cases that do NOT involve fundamental rights/Suspect Classifications.

In these cases, 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?