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Levels of Scrutiny in US Law and Race Discrimination, Study notes of Law

University of Florida (UF)Law

The different levels of scrutiny used in us law to evaluate the constitutionality of laws that discriminate based on certain characteristics, with a focus on race and national origin. It explains the standards for strict scrutiny, intermediate scrutiny, and rational basis test, and provides examples of cases where laws have been deemed arbitrary and unreasonable. The document also discusses the history of race discrimination in the us before and after the 13th and 14th amendments.

Typology: Study notes

2011/2012

Uploaded on 05/04/2012

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Con$Law$Outline$–$Professor$Wright$
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Chapter(7:(Equal(Protection(
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(A)(Introduction(
A. Since$Bolling'v.'Sharpe,"equal$protection$applies$to$fed$through$judicial(
interpretation$of$the$due$process$clause$of$5th$amendment$
B. It$applies$to$the$state/local$government$through(the(14th(amend$
C. Classes(created(by(the(law:(
i. NonDSuspect(Class(–$always$gets$rational"basis"test(
ii. Suspect(Class(–(race,$sex$etc$will$get$either$intermediate$or$strict"scrutiny(
iii. Fundamental(Right(–(whether$fundamental$under$the$D/P$or$E/P$clause$
→infringements$of$a$fundamental$right$gets$strict$scrutiny(
D. Is$the$government’s$classification$justified$by$a$sufficient$purpose?(
"
1)'What'is'the'Classification?'
'
A. Facially(Discriminatory$–$law$in$its$terms$draws$a$distinction$among$people$based$
on$a$particular$characteristic(
i. E.g.$blacks$can’t$serve$on$jury$(facially$racial);$14/yr$can’t$drive$(facial)$
B. Facially(Neutral(with(Discriminatory(Impact(–(law$itself$doesn’t$classify$people,$
but$certain$aspect$causes$it$to$classify$
i. E.g.$5’10$height$requirement$not$facially$discriminatory,$but$most$women$don’t$
meet$this$requirement$
ii. If(facially(neutral,(must(prove(a(discriminatory(impact(AND(purpose(
behind(law$
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2)'What'is'the'Appropriate'Level'of'Scrutiny?'
$
A. Strict(Scrutiny(–(used$for$race/national$origin;$law$is$upheld$if$it$is$proved$
necessary(to(achieve(a(compelling(government(purpose"
i. Government$must$have$significant$reason$for$discriminating,$and$that$it$cannot(
achieve(its(objective(through(less(discriminatory(alternative"
ii. Government$has$burden$of$proof"
B. Intermediate(Scrutiny$–$used$for$gender/nonTmarital$children;$law$is$upheld$if$it$is$
substantially(related(to(an(important(gov’t(purpose"
i. The$means$need(not(be(necessary,$but$must$have$substantial(relationship(to(
the(ends(being(sought"
ii. Government$has$burden$of$proof"
C. Rational(Basis(Test(–(minimum$level$of$scrutiny$that$all$laws$challenged$under$E/P$
must$meet$(default$test)"
i. Gov’ts$objective$need$not(be(compelling/important,$but$just$something$that$
the$gov’t$legitimately(may(do"
ii. Challenger$has$burden$of$proof$(enormously$deferential$to$the$gov’t)"
D. To(determine(level(of(scrutiny$T$courts$generally$evaluated$whether$the$
characteristics$are:"
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Chapter 7: Equal Protection (A) Introduction A. Since Bolling v. Sharpe , equal protection applies to fed through judicial interpretation of the due process clause of 5 th^ amendment B. It applies to the state/local government through the 14th^ amend C. Classes created by the law: i. Non-­‐Suspect Class – always gets rational basis test ii. Suspect Class – race, sex etc will get either intermediate or strict scrutiny iii. Fundamental Right – whether fundamental under the D/P or E/P clause →infringements of a fundamental right gets strict scrutiny D. Is the government’s classification justified by a sufficient purpose? 1) What is the Classification? A. Facially Discriminatory – law in its terms draws a distinction among people based on a particular characteristic i. E.g. blacks can’t serve on jury (facially racial); 14/yr can’t drive (facial) B. Facially Neutral with Discriminatory Impact – law itself doesn’t classify people, but certain aspect causes it to classify i. E.g. 5’10 height requirement not facially discriminatory, but most women don’t meet this requirement ii. If facially neutral, must prove a discriminatory impact AND purpose behind law 2) What is the Appropriate Level of Scrutiny? A. Strict Scrutiny – used for race/national origin; law is upheld if it is proved necessary to achieve a compelling government purpose i. Government must have significant reason for discriminating, and that it cannot achieve its objective through less discriminatory alternative ii. Government has burden of proof B. Intermediate Scrutiny – used for gender/non-­‐marital children; law is upheld if it is substantially related to an important gov’t purpose i. The means need not be necessary, but must have substantial relationship to the ends being sought ii. Government has burden of proof C. Rational Basis Test – minimum level of scrutiny that all laws challenged under E/P must meet (default test) i. Gov’ts objective need not be compelling/important , but just something that the gov’t legitimately may do ii. Challenger has burden of proof (enormously deferential to the gov’t) D. To determine level of scrutiny -­‐ courts generally evaluated whether the characteristics are:

i. Immutable (race, gender etc); ii. Ability to protect oneself through the political process iii. History of discrimination against the group 3) Does the Government Action Meet the Level of Scrutiny? A. The court evaluates the law’s ends : i. Strict scrutiny : ends must be compelling ii. Intermediate : ends must be regarded as important iii. Rational basis : just legitimate governmental purpose B. The court also evaluates the law’s means: i. Strict scrutiny: relatively close fit is required (means must be the least restrictive alternative)(narrow tailoring) ii. Intermediate : closer fit than rational basis (B) The Rational Basis Test (1) Introduction A. The test has had various phrasings, but generally two questions are asked: i. Is there a legitimate gov’t purpose? ii. **Is there a rationally related means to the ends?

  1. Does the Law Have a Legitimate Purpose?** A. Only in rare instances will a court find a purpose not legitimate under R/B Test i. Legitimate purpose is traditionally ‘police purpose’ : protecting safety, public health, or public morals Romer v. Evans (1996)(p. 625; 679, 788) Court found amendment impermissibly discriminated based on sexual orientation ii. Gays are not a suspect class (judicially decided) iii. The only apparent purpose was animus towards a class of persons; even when purported as a ‘moral basis for a law’ ≠ sufficient to meet the R/B Test iv. Dissent: voters should be able to preserve traditional sexual mores B. Must it be the Actual Purpose or is a Conceivable Purpose Enough? i. A law will be upheld so long as the gov’t’s lawyer can identify some conceivable legitimate purpose , regardless of whether that was gov’ts actual motivation US Railroad Retirement Board v. Fritz (p.630; 683) court upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system; argument was that result was arbitrary ii. Non-­‐suspect class→automatic rational basis review iii. Plausible reasons → rational basis was met iv. Brennan’s Dissent – a challenged classification should only be sustained if it is rationally related to the achievement of an actual legitimate gov’t purpose

iii. Relationship among persons in house ≠ related to either purpose; only purpose appears to be the prevention of ‘hippies’ iv. Rehnquist’s Dissent: this test has too much bite and is more appropriate for Congressional review in this way City of Cleburne, Texas v. Cleburne Living Center (p.643; 687) declared unconstitutional an ordinance requiring a special permit for the operation of a home for the mentally disabled; v. Court found justifications either weren’t legitimate purposes or that the ordinance was not a reasonable way of accomplishing the goals a. Justifications included things that everyone was subject to (floods etc) vi. Rational Basis with Teeth is used here; probably easier to get to this test in situations like this ( handicapped ) as opposed to economic a. Could also be seen as normal application→drawing a distinction between home for mentally handicapped is based on irrational prejudices (C) Classifications Based on Race and National Origin (1) Race Discrimination and Slavery Before the 13th^ and 14th^ Amendments Dred Scott v. Sandford (1856)(p.649; 692) declared the Missouri Compromise unconstitutional and broadly held that slaves were property , not citizens A. When the constitution was ratified→slaves were considered property (slaves weren’t considered citizens and couldn’t give diversity jurisdiction) i. Illinois also has duty to protect slave owners ( full faith and credit ) ii. Indians were recongnized as soverign; slaves were never recognized as such B. Even with lack of jurisdiction, declared Missouri Compromise unconstitutional because granting citizenship to slaves is taking property w/o due process C. Overruled with 14 th^ amendment (2) Strict Scrutiny for Discrimination Based on Race and National Origin A. Strict Scrutiny Requires: i. The government must show an extremely important reason for its action; and ii. It must demonstrate that the goal cannot be achieved through any less discriminatory alternative B. Justifications for Strict Scrutiny i. Long history of racial discrimination →makes it more likely that racial classifications will be based on stereotypes and prejudices ii. The group is relatively politically powerless iii. Race is an immutable trait (3) Proving the Existence of a Race or National Origin Classification (a) Race and National Origin Classifications on the Face of the Law A. Facial race and national origin classifications exist when a law, in its very terms , draws a distinction among people based on those characteristics

i. Once facially discriminatory → burden shift to government B. Race-­‐Specific Classifications that Disadvantage Racial Minorities i. Express burden or disadvantage on people because of race/national origin Korematsu v. US (p.654; 698) upheld the constitutionality of the evacuation of the Japanese-­‐ Americans during WWII ii. Even w/ strict scrutiny, court accepted the claim that there was a serious risk to national security from the Jap/Amr and that there was no way of screening to identify the individuals iii. The order was upheld primarily because of grave imminent danger in war iv. Murphy Dissent: danger wasn’t compelling to the necessary point→should be so impending that it doesn’t permit delay v. Pressing public necessity out of grave imminent danger to public →possibly allows law C. Racial Classifications Burdening Both Whites and Minorities i. Main examples include anti-­‐miscegenation laws (prohibit interracial marriage) ii. Even though equal discrimination, court recognized these are primarily based on assumption of inferiority of Blacks and whites Johnson v. California (p.157 supp.) determined unconstitutional a California law that allowed separation in prisons cells based on race for the first 60 days iii. The Turner standard wasn’t appropriate because racial classifications threatened to stigmatize individuals due to their racial group iv. Alternatives – other states don’t require this and function well v. Narrow Tailor – transferees probably don’t need this because already evaluated vi. Thomas Dissent – r/b should be used in a prison system→we give deference to prison system with other thing (speech etc) a. This gives far too much deference → could even limit life with his level Loving v. Virginia (p.659; 699) declared unconstitutional a state’s miscegenation statue that made it a crime for a white person to marry outside the Caucasian race vii. Rejected equal application theory: Mere equal application of law does not = equality (purpose is for racial purity) viii. Marriage is a form of a fundamental right→denied based on race a. Classifications must be shown to be necessary to the accomplishment of some permissible state objective independent of racial discrimination Palmore v. Sidoti (p.661; 697) declared unconstitutional a state court’s denying a mother custody of a child because she had married a person of a different race; state court determined giving child to father would be better because of stigmatization of interracial ix. The constitution shouldn’t be used to control prejudice ; private bias is outside the scope of the law a. However, the law cannot directly or indirectly give private discrimination effect (e.g. through taking the private bias into account) x. Private biases towards child due to interracial (usually upheld on this point for homosexuals) and possibility of injury they might inflict ≠ permissible considerations for removal of an infant child from the custody of natural mother D. Laws Requiring Separation of the Races

ix. Proof of a discriminatory impact is not sufficient by itself to prove an equal protection violation; there must be proof of a discriminatory purpose City of Mobile v. Bolden (p.680; 879) supreme court has extended the requirement for a discriminatory purpose to include the 15th^ amendment and its prohibition of raced-­‐based interference with the right to vote x. Action by a state that is racially neutral on its face violates the 15th^ amendment only if motivated by a discriminatory purpose xi. In order to have demonstrated violation, it must be proved that it was conceived or operated as a purposeful device to further racial discrimination Proof of a Discriminatory Impact xii. Both are most likely required Palmer v. Thompson (p.684; 713) public pools were closed when desegregated; purpose was to stop the intermingling of the races xiii. Court said that no case has held a legislative act may violate equal protection solely because of the motivations of men involved in the legislation xiv. Douglas Dissent: reason for shut down should be only required step (5) Racial Classifications Benefiting Minorities (Affirmative Action) A. Strict Scrutiny Two Step Analysis: i. What is the compelling government end a. Remedying past discrimination is a legitimate state interest if the state officially participated in the discrimination (even passively) b. Past societal discrimination isn’t enough ii. Is this the best way to achieve the goal a. Narrowly tailored statutes and other, perhaps neutral, means to fix B. Emergence of Strict Scrutiny as the Test Richmond v. JA Croson Co (p.708) court invalidated a plan to set aside 30% of public work money for minority owned businesses i. Remedial: this is allowed, however since race is a suspect class→ simple legislative assurances of good intentions aren’t enough ii. The law did remedy past discrimination, but the means ( quota system ) wasn’t narrowly tailored iii. Stevens Concurrence – other ends besides remedying past discrimination should be evaluated and allowed to justiy (majority too narrow) iv. Scalia – only allows affirmative action in cases of real emergency →history of discrimination isn’t a compelling state interest) v. Marshal – we should be using intermediate scrutiny Metro Broadcasting v. FCC (p.713; 734) held that congressionally approved affirmative action programs only need to meet intermediate scrutiny; overruled Regents v. Bahke (p.733) school set aside 16 spots for minority med students; struck down because of quota system ; no determination of strict scrutiny

Adarand Constructors v. Pena (p.716; 732) all racial classifications, imposed by whatever federal, state, or local gov’t actor, must be analyzed by a reviewing court under strict scrutiny vi. Race-­‐based action will be allowed as long as it (1) furthers a compelling interest; (2) satisfies the narrow tailoring test vii. Scalia Concur: making up for past discrimination ≠ compelling interest ever viii. Thomas Concur: constitution requires that the government treat each person as an individual without regard to his/her race → use strict scrutiny ix. Stevens Dissent: we shouldn’t be treating remedial actions in the same way that we treat discriminatory actions (legislative deference) C. The Arguments for and Against Strict Scrutiny i. Those who favor strict scrutiny for AA argue that all racial classifications (invidious or benign) should be subjected to strict scrutiny a. Further racial classifications stigmatize and breed racial hostility D. The use of Race to Benefit Minorities in College and University Admissions Grutter v. Bollinger (p.722; 744) court upheld Michigan’s law school AA program; colleges and universities have a compelling interest in creating diverse student body i. The policy doesn’t define diversity solely in terms of racial and ethnic status ; diversity and contribution are compelling interests ii. Good faith on the part of the university will be presumed; absent showing to the contrary iii. This isn’t a quota system because it’s a good faith effort to come within a range demarcated by the goal itself and permits race as a plus factor iv. Court was satisfied that the school look for and couldn’t find race neutral alt. v. To be narrowly tailored, a race-­‐conscious admissions program must not ‘unduly burden individuals who are not members of the favored racial and ethnic groups vi. Majority instituted a 25 year cap on the AA program vii. Ginsburg Concur: don’t put the 25yr limit viii. Thomas: diversity is just an aesthetic and no more proof of better performance a. The state has not identified any real state interest in diversity; even marginal improvements don’t qualify as a compelling state interest b. Marketing the school as elite institution and using diversity ≠ same→if it wants diversity, it should change the admission standards ix. Kennedy Dissent: this is too similar to a quota Gratz v. Bollinger (p.740; 744) court invalidated an affirmative action program for undergraduate admissions, which added 20 points to the applications for minority students x. This is too similar to a quota system xi. Program wasn’t sufficiently narrowly tailored; nonindividualized program xii. The question is: is there really a difference between a legitimate quota system, and one that just does it secretly? Parents Involved v. Seattle (p.165 supp) diversity ≠ legit end for non-­‐higher education ; xiii. The plan also didn’t have enough diversity (only distinguished whites from blacks); looks too much like a quota