Constitutional Law Class Notes 3/8/04


Mr. Foley goes to Washington!  On Wednesday!


The Equal Protection Clause


Let’s get the basics first because there are a lot of details and complications.


·        Only intentional discrimination by the government or its agents violates the Equal Protection Clause of the Fourteenth Amendment.

·        The Equal Protection Clause of the Fourteenth Amendment applies to state and local governments.

·        There is no Equal Protection Clause applicable to the federal government, so the Supreme Court invented one.  The Due Process Clause of the Fifth Amendment had an equal protection component added by the Court.

·        The Clause does not apply to private actors, including public corporations.  Under some circumstances, conduct by private entities can be imputed to be government conduct.  We’ll come back to this later, but don’t worry about it for now.

·        With respect to statutory discrimination laws, it may be possible to win even without the presence of intentional discrimination.  A practice that has a discriminatory result may be found to be counter to, for example, Title VII of the Civil Rights Act.  But disparate impact does not, by itself, establish a discriminatory motive.  This is important in constitutional law because you can’t merely allege an equal protection violation by demonstrating disparate impact.  You must show that the government intends to discriminate.

·        Not all forms of intentional discrimination violate the Constitution.  The challenge is to find out just which kinds are unconstitutional.

·        There are two forms of discrimination by the government that, if wrongful, can serve as the basis for showing an equal protection violation: facial discrimination and discriminatory motive.

·        Facial discrimination is when a statute or rule on its face discriminates against a certain group of persons.  The Equal Protection Clause applies to all forms of improper discrimination.  This is different from, for example, the Fifteenth Amendment, which says that states cannot restrict voting rights on the basis of race.

·        Note that there is some facial discrimination that is absolutely not unconstitutional: “No one under the age of 18 can vote.”  Or, “no one who is blind can get an airplane pilot’s license.”  Just because you find discrimination in a government policy doesn’t mean that it’s constitutional.  The key question is whether the discrimination is justified or unjustified.

·        On the other hand, government agents may be motivated by an animus against a certain group.  For example, imagine a government official will not declare anyone who is gay “morally fit” to practice law.  We could call this a discriminatory animus or discriminatory motive that gets you within the equal protection analysis.  Or consider police officers who desire to pull over black drivers for speeding more often than white drivers.  But what if the police officers are unaware of why they’re doing what they’re doing?  What if they have a subconscious bias?  What if, on the other hand, they are applying objective criteria with the result being a discriminatory impact?


Levels of scrutiny


There are three levels of scrutiny that the Court employs to evaluate intentional discrimination (either facial discrimination or discriminatory motive): (1) strict scrutiny, (2) intermediate scrutiny, and (3) low-level scrutiny.


This should remind us of Justice Jackson’s three categories.  These too are artificial boxes.  Some justices want to blur the lines and look at a spectrum of scrutiny instead of discrete boxes.  But for the sake of simplicity to start out, let’s assume that there exist these three well-defined boxes.


What approach will the Court take with respect to a particular kind of discrimination?  How hard are they going to be on the government initially?  Some discriminations are wrong and unjustified, while others are justified and permissible.  But what is our initial presumption?


The choice of the level of scrutiny is a predictor of whether the discrimination will be found to be proper.


For example, racial discrimination falls into the category of strict scrutiny.  Other forms of discrimination don’t get that kind of presumption of hostility.  For example, when the government discriminates between optometrists, opticians, and ophthalmologists, it seems reasonable to think there is a valid reason.  Someone attacking such a rule, though it is discriminatory, will face an initial presumption against them.  Each choice of the level of scrutiny is an indicator of the judicial mindset as to the type of discrimination at hand.


If you’re in the zone of strict scrutiny, the discriminatory law must serve a compelling interest and the law must be necessary.  For example, in California, they have had a long-standing practice of segregating prisoners on the basis of race for the first 60 days until the prison officials determine how dangerous and violent the prisoners are.  This is a practice that would usually demand strict scrutiny.  However, there is a doctrine that says that discrimination in prison will be treated differently and possibly considered with the rational basis test instead of strict scrutiny.  Maybe segregating prisoners could be rationally related to the goal of preventing prison violence.  But on the other hand, it may not be necessary.  Thus, the test chosen may be entirely dispositive as to whether the practice violates the Equal Protection Clause or not.


Notice the totally different definition of necessary here than in the Necessary and Proper Clause.  “Necessary” is much more like “rational” in the Necessary and Proper Clause than here.  In equal protection jurisprudence, necessary really means necessary.


So how does this play out in real life?  The Court doesn’t always follow its own doctrine!  Consider Korematsu v. United States, where the Court claimed that the internment of Japanese-Americans during World War II demanded strict scrutiny.  In practice, the Court seemed to only use the rational basis test.


If the government defends a discriminatory classification in more than one way, you must analyze each interest under the appropriate level of scrutiny.  Is the classification appropriately related to each of the asserted interests?  The government wins if it can defend its classification under any interest.  The government wins if it can assert an interest that meets the relevant test and show that the law is sufficiently related to that interest.  Thus, there is a kind of asymmetry here that works in the government’s favor.  What about aggregation of interests?  That’s a tough question.


Also, the government can be defeated one of two ways: either by showing that the interest isn’t good enough, or the connection between the means and ends isn’t good enough.


Under-inclusiveness versus over-inclusiveness


Let’s say the government wants to stop unsafe driving.  People who are legally blind do not fit the definition of safe drivers.  If the government only banned legally blind people from driving, that would be “woefully” under-inclusive.  If you want to go after unsafe drivers, picking out blind drivers in particular is unfair.  Why not go after drunk drivers?  Why not go after speeding drivers?


As an example of over-inclusiveness, what if the government passed a law saying that no one over the age of 80 can drive?  This might be over-inclusive, because unsafe drivers only form some proposition of older drivers.  Not all older drivers are unsafe!  So targeting all old people and saying they can’t drive just because you are concerned about some of them who are unsafe represents a case of over-inclusiveness.


You can also have laws that are under- and over-inclusive at the same time.

What if the regulated category is “people driving over the speed limit”?  You might get some safe drivers going over the speed limit (e.g. at 66 mph), plus you might miss some unsafe drivers who are going under the speed limit (e.g. swerving wildly between lanes at 45 mph or crawling at 5 mph in the middle of the highway).


In reality, most laws are over-inclusive and under-inclusive to some extent.  The government will always regulate with some degree of imperfection.


How good is the fit between the group actually regulated and the group meant to be regulated?  If the fit is “pretty good”, the law in question is more likely to be upheld.  Foley thinks that Korematsu is an example of a “loose fit”.  Strict scrutiny normally requires an extremely tight fit to pass muster under the Equal Protection Clause.  In that case, the group the government wanted to regulate was “disloyal Americans”.  Instead, the government actually regulated all Japanese-Americans.  But there were many people who were disloyal to the country in World War II, but weren’t Japanese-Americans.  That particular law was somewhat under-inclusive, but hugely over-inclusive.


“No fit” is an extreme where there is no connection at all between the categories.  The purest way to understand the rational basis test is that the case the government would lose would be in this case of “no fit at all”.  If there was a total disconnect between the law the government adopts and the goal in adopting the law, that would be totally irrational and would fail the rational basis test.


Note that virtually all laws will pass the rational basis test because there is almost always some overlap between what the law is doing and what the law is trying to accomplish.  But the Court isn’t always complete pure with respect to this test.


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