Professional Documents
Culture Documents
I) Fourteenth Amendment
VI) Right to Equal Treatment – “nor deny to any person within its
jurisdiction the equal protection of the laws”
A) Formal versus substantive equality - Plessy v. Ferguson,
163 US 537 (1896)
1) Formal equality – equality of outcome
2) Substantive equality – equality of treatment
B) Steps in equal treatment analysis
1) Identify the inequality – what is the inequality and who is
affected?
2) Identify the state interest – why has the state chosen to
create the inequality?
3) Determine whether the inequality is applied against a
suspect class or with animus
a) Suspect class characteristics – discrete, insular,
immutable , political powerlessness, history of
oppression/prejudice. [NOTE: Gays are not a suspect
class under Romer and Lawrence.]
b) Factors used to identify animus – Arlington Heights
v. Metro. Housing Development Corp., 429 U.S. 252
(1977) (rezoning was not racially motivated) (p. 523)
i) Impact of official action – “Sometimes a clear
pattern, unexplainable on grounds other than race,
emerges even when the governing legislation
appears neutral on its face.”
ii) Historical background of the decision – “The
historical background of the decision is one
evidentiary source, particularly if it reveals a series
of official actions taken for invidious purposes. The
specific sequence of events leading up the
challenged decision also may shed some light on the
decisionmaker's purposes. For example, if the
property involved here always had been zoned R-5
but suddenly was changed to R-3 when the town
learned of MHDC's plans to erect integrated housing,
we would have a far different case. Departures from
the normal procedural sequence also might afford
evidence that improper purposes are playing a role.
Substantive departures too may be relevant,
particularly if the factors usually considered
important by the decisionmaker strongly favor a
decision contrary to the one reached.”
iii) Legislative or administrative history – “The
legislative or administrative history may be highly
relevant, especially where there are contemporary
statements by members of the decisionmaking
body, minutes of its meetings, or reports. In some
extraordinary instances the members might be
called to the stand at trial to testify concerning the
purpose of the official action, although even then
such testimony frequently will be barred by
privilege.”
4) Apply the appropriate level of scrutiny
a) Evidence of animus – City of Cleburne Living Center,
473 US 432 (1985) (zoning decision prohibiting group
home for mentally retarded) (p. 488); U.S. Dept. of
Agriculture v. Moreno, 413 US 528 (1973) (law intended
to prevent hippies from buying food stamps) (p. 492);
Romer v. Evans, 517 US 620 (1996) (law preventing
cities from enacting ordinances to protect gays) (p. 493);
Gomillion v. Lightfoot, 364 US 339 (1960) (voting district
that excluded blacks had no legitimate reason for its
shape) (p. 521).
i) Applies to – deliberate discrimination against
anyone based on a factor that is irrelevant to state
interest, e.g. nonsuspect classes (retarded),
politically unpopular groups, wealth and voting etc.
ii) Standard – per se unconstitutional as an
illegitimate interest.
b) Rational basis – Williamson v. Lee Optical, 348 US 483
(1955) (opticians versus opthamologists) (p. 485);
Railway Express Agency v. New York, 336 US 106 (1949)
(advertising versus non-advertising vehicles) (p. 484);
Minnesota v. Clover Leaf Creamery Co., 449 US 456
(1981) (wood versus pulp milk containers) (p. 485);
Washington v. Davis, 426 US 229 (1976) (facially neutral
test has disproportionate impact) (p. 514); Arlington
Heights v. Metro Housing, 429 U.S. 252 (1977) (rezoning
denial against low income housing alleged based on
race) (p. 523).
i) Applies to – commercial versus non-commercial
distinctions, where a disproportionate impact exists
against a suspect class but there is no intent to
discriminate, etc.
ii) Standard - “Rationally related to a legitimate state
interest.” [NOTE: State may take one step at a time
as long as reasonable. See, e.g.,
c) Intermediate scrutiny - University of California v.
Bakke, 438 US 265 (1978) (reverse discrimination
against white applicants) (p. 553); Reed v. Reed, 404
U.S. 71 (1971) (preference given to male heirs in estate
administration) (p. 598); Frontiero v. Richardson, 411
U.S. 677 (1973) (military conferred extra housing benefit
for married men but not women) (p. 598); Craig v. Boren,
429 U.S. 190 (1976) (lower drinking age for women than
men) (p. 602); United States v. Virginia, 518 U.S. 515
(1996) (p. 611) (VMI case).
i) Applies to – against a quasi-suspect class, e.g.
gender
ii) Standard - “Substantially related to an important
state interest.”
d) Strict scrutiny - Korematsu v. United States, 323 US
214 (1944) (internment camps for Japanese-Americans
during WWII) (p. 501); Adarand Constructors, Inc. v.
Pena, 515 US 200 (1995) (p. 574) (minority preference in
government contracts, shift to strict scrutiny); Grutter v.
Bollinger, 539 US ____ (2003) (handout) (affirmative
action in law schools); Kramer v. Union Free School
District, 395 U.S. 621 (1969) (restriction on voting)
(property ownership requirement to vote for school
board) (p. 744); Harper v. Virginia, 383 U.S. 663 (1966)
($1.50 poll tax was unrelated to voting and constituted
invidious discrimination) (p. 741); Skinner v. Oklahoma,
316 U.S. 535 (1942) (required sterilization for criminals)
(p. 736)
i) Applies to – against a suspect class or with animus,
e.g. facial discrimination against race
ii) Standard – “Necessary to a compelling state
interest” or “Narrowly tailored to advance a
compelling state interest.”