Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 2

14A Brief Review of Early SCOTUS Cases

• 14th A does NOT apply Bill of Rights to the states
  • Slaughterhouse Cases, Cruikshank
• 14th A applies to state action, not private action
  • Civil Rights Cases
• 14th A applies ONLY to those whose rights have been violated on account of race
  • inferred from Cruikshank
• BUT 14th A prohibits governmental racial discrimination in any form
  • Strauder

Segregation Cases

• Cummings: “Separate but equal” satisfies 14th Am when it is reasonable
  • (e.g., when state is merely redistributing scarce resources)
• Giles: Black disenfranchisement—Supreme Court says federal courts are powerless to effect change in southern practices
• Berea College: Supreme Court upholds KY’s mandatory segregation law, as applied to private schools organized as corporations, on ground that states have plenary power to amend corporate charters they have granted
  • Plessy reasoned that social equality is not the same as the political equality protected under 14A
    • Upholds “reasonableness” test

Desegregation Cases

• Korematsu: developed strict scrutiny standard for race-based classifications
• Brown I: Separate but equal is inherently unequal, segregation violates EP clause
  • Based on social science, bad reasoning
  • Wallace: 14A was meant to protect against this type of segregation
    • This case should have overruled Plessy but didn’t explicitly
• Loving v. VA: interracial marriage barred, but equally applied to both races
  • Court: doesn’t matter if law is equally applied, racial classification per se violates EP
• Brown and Loving establish the modern rule: The government may not discriminate on the basis of explicit racial classifications

Modern Equal Protection Clause

• 14A: No state shall deny “equal protection of the laws”
• Bolling v. Sharpe: Fifth Amendment Due Process Clause includes “equal protection”
• Clause is implicated by laws or regulations that improperly classify or draw distinctions (discriminate) by imposing special burdens on OR granting special benefits to some persons but not others
  • Discrimination must be against member of protected class based on personal characteristic (e.g., race, sex, religion, national origin, etc)
• Yick Wo (1886): facially-neutral laws still can be racially discriminatory if they have a racially-discriminatory motive.
  • Here, SCOTUS infers motive from application
• Two strands of EP analysis:
  1. laws that discriminate against persons;
  2. laws that discriminate against exercise of fundamental rights
• Proper ways to “discriminate” (ie- drivers license age) still exist as long as not “invidiously”

Types of invidious discrimination:

1. Facial—classification made on face of law (typically classification or distinction made on basis of protected characteristic)
2. Underlying motivation or purpose (Griffin)
   • often inferred from discriminatory application of law (Yick Wo not granting laundry licenses to Japanese people)
3. NOT Impact or effect (de facto)

Washington v Davis: Black applicants to be cops often failed test. Neutral legal rule or requirement that simply happens to produce a disparate impact on different races does not necessarily violate the EP Clause

1. Discriminatory treatment (intended) vs. discriminatory impact (unintended consequence)
2. Must show discriminatory intent (purpose or motive)
   • Bottom line is that EP requires purposeful discrimination
     • Difference between discriminatory treatment and discriminatory impact
       • “Impact” does not violate EP without showing intent

Modern Equal Protection Analysis

1. What is the classification, member of protected class?
   1. Race, gender, age, sexual orientation, etc.
2. Appropriate level of scrutiny? (purpose → means/end) Typically:
   1. Strict for suspect classifications: race, national origin, religion, alienage, marital v. nonmarital (exceptions for aliens l8r)
      1. Gov. must have compelling reason for classification and no less discriminatory means to achieve that purpose (gov. burden)
         1. If any other less discriminatory way to do it → government fails
   2. Intermediate semi-suspect classifications: sex, non-marital children.
      1. Gov. must have significant or important purpose and means must be substantially related to achieve that purpose (narrowly tailored)
         1. Significant/important interest is slightly more allowing than compelling, very little over-inclusiveness is tolerated
   3. Rational basis: Age, economic status, disability, sexual orientation . every other law, just must be “rationally related to government purpose”
      1. Not what is “actual purpose” of the law, just if any conceivable purpose
3. “Under-inclusive” laws are fine because they are a “step” towards achieving the desired purpose
   • But- can point to if government purpose is actually legitimate