MBE Constitutional Law - Equal Protection

Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)

14th Amendment

More info: Equal Protection

Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause

Is there a classification by the government?

P must prove classification was made with discriminatory intent

What is the classification?

Suspect, quasi, or other

What level of scrutiny applies?

Suspect = strict

Quasi = intermediate

Other = rational basis

Does the government action satisfy the level of scrutiny?

Race;

Alienage (state laws);

Religion; and

National origin

⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.

Gender; and

Legitimacy

⭐️ Intermediate scrutiny

Alienage if:

Federal alienage classification; or

State restriction on alien’s participation in government functions

Age

Wealth

Sexual orientation

Disability

Any other classification not governed by strict or intermediate scrutiny

⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group

Classification is discriminatory on its face: text of the law itself is unconstitutional.

Classification is facially neutral, but discriminatory as applied: classification is discriminatory in its application or administration. Requires proof of both discriminatory intent and discriminatory effect.

Discriminatory purpose/motive: P m​ust show proof of discriminatory purpose.

Intentional segregation imposed by law. Subject to strict scrutiny.

Segregation that results from private action (e.g. choosing housing in certain neighborhoods). No equal protection violation because no government action.

Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.

Must show evidence of past discrimination.

⚠️ Exception: quotas are almost never allowed.

No, will almost always be struck down for failure to pass strict scrutiny unless gov. can prove quota is necessary to remedy pervasive, current discrimination

As of June 29, 2023, race may not be used as a factor in higher education admissions decisions (other than military academies).

Prior to that date, race could be used as a factor among many if state showed action was necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity

Classification is pursuant to Congress’ plenary powers to regulate immigration; or

Classification is related to essential government functions and/or processes. Valid restrictions include:

Voting and jury membership

Working as public school teacher

Working as police officer

Working as probation officer

⭐️ If based on either circumstance, rational basis will apply

No, generally subject to rational basis review

intermediate scrutiny

(ex. denying children the right to attend public schools)

Intermediate scrutiny (substantially related to important government interest)

AND

proof of “exceeedingly persuasive justification”

Yes, if necessary to achieve a compelling governmental interest in remedying past discrimination based on gender

Intermediate scrutiny.

Laws cannot discriminate against children of nonmarried parents without substantial relation to an important government interest

Each person’s vote must be equal to another person’s vote

⚠️ Exception: limited purpose elections

If based on anything other than age, residency, or citizenship, strict scrutiny applies.

Reasonable residency requirements;

Reasonable registration requirements;

Reasonable time and manner regulations; and

Denial of voting rights to felons

Poll taxes;

Limiting school board elections to only parents and property owners

Counting votes using overly vague standards; and

Requiring political party registration for a general election (can be limited for primary elections)

Yes, pursuant to Section 2 of the 14th Amendment

Yes, pursuant to the Elections Clause (Article I, Section IV)

strict scrutiny

⚠️ Note: Only interstate travel; international travel is not a protected right

There must be a substantial connection between the discrimination and a substantial state interest.

More Info: The Privileges and Immunities Clause

Right to interstate travel (very narrowly construed)

**Be careful. Privileges or immunities is almost never the right answer on the MBE.

Charging more for recreational licenses (hunting or fishing); and

Treating non-residents differently to preserve in-state natural resources

Charging higher fee for commercial licenses for non-residents

Commuter taxes applied only to non-residents

Limiting abortions to only local residents

Mandating that employers only hire state-residents

Yes

Yes, as long as there are reasonable, alternative methods of getting on the ballot

Yes