Term
| What is the schmatic for analyzing a Equal Protection Clause question? |
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Definition
(1) Does the law facially create a classification?
--> No? Go to 4
--> Yes? Go to 2
(2) Is the law pertaining to a suspect class or fundamental right?
--> No? Go to 3
--> Yes? S.S.
(3) Is the law pertaining to a quasi-suspect class?
--> No? R.B.R.
--> Yes? I.S.
(4) If not a facial classification, then does the law still discriminate on the basis of a suspect classification or a fundamental right? (i.e., Does the law create a disparate impact? and Is the law motivated by a discriminatory purpose?)
--> No to either or both? No EP violation.
-->Yes to both? RBR |
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Term
| What are the 4 elements of a suspect person or class (factors for higher scrutiny)? |
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Definition
(1) Immutable characteristics (gender, race);
(2) Politically prosecuted (excluded from the political process);
(3) Historically discriminated against;
(4) Characteristic or class is irrelevant to legitimate governmental goals. |
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Term
| What is a "suspect" classification? |
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Definition
| Based on race, national origin or alienage (based on some limited exceptions). Some government action merely "classifies" on the basis or race or national origin, i.e., it draws lines on the basis of a racial criterion but doesn't necessarily appear to treat one race differently from another. For example, the prohibition of racial intermarriage [Loving v. VA - invalid] appearently doesn't discrminate against members of one race; it appears to treat both races equally. |
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Term
| What is the test for Strict Scrutiny? |
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Definition
| Governmental action that intentionally discriminates against a suspect class or infringes on a fundamental right is subject to SS. Under SS, a classification violates EP unless found to be necessary to promote a compelling state interest. |
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Term
| When is a classification "necessary" (in order to promote a CSI)? |
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Definition
| When it is narrowly tailored so that no alternative, less burdensome means is available to accomplish the state interest. The means chosen must fit the compelling goal so closely that there is little or no possibility that the motive of the classification was illegitimate racial prejudice or stereotype. |
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Term
| What does "narrowly tailored" mean? |
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Definition
| Narrowly tailored means that the law affects the smallest number of people necessary to achieve the government's compelling goal. What are the means? Are there less intrusive alternatives available? Is it overinclusive or underinclusive? |
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Term
| What is a fundamental right? |
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Definition
| To be deemed a "fundamental right" and thereby subject to SS, the right must be "explicitly or implicitly guaranteed by the Constitution" (San Antonio Independent School District v. Rodriguez). Pursuant to this doctrine, SC has held that many important interests aren't fundamental and thus discriminations against them are reviewable under RBR. Examples of fundamental rights: marriage, travel, vote, access to courts. NOT education or wealth. |
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Term
| What is the analysis to see if a new fundamental right should be recognized? |
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Definition
| SC usually looks to see if there is a fundamental right by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies RBR. If the court establishes that the right being violated is a fundamental right, it applies SS. |
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Term
| What is a "quasi-suspect" classification? |
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Definition
| A classification based on gender or non-marital children. Such a classification receives intermediate scrutiny. |
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Term
| What is the test for intermediate scrutiny? |
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Definition
| Is the govt action substantially related to an important govt purpose? Burden of proof is on the government. |
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Term
| What is the test for rational basis review? |
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Definition
| Is the government action rationally related to a legitimate governmental purpose? Burden of proof is on the challenger. |
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Term
| If a law does not create a facial classification, when does it still discriminates on the basis of a suspect class? |
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Definition
| If a statute does not create a facial classification, it still discriminates on the basis of a suspect class or fundamental right IF the statute creates a disparate impact and is motivated by a discriminatory purpose. |
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Term
| What is a disparate impact? |
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Definition
| Disparate impact is a policy or practice, while neutral on its face, that adversely impacts against a particular group of people. |
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Term
| What is a discriminatory purpose? |
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Definition
Intentional or deliberate discrimination.
Arlington Heights (means to show purpose)
Personnel Admin v. Feeney (purpose = intend bad consequences) |
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