Constitutional
Law Class Notes
Read
the VMI case for Thursday. There is a
lot of material to go over! But don’t
panic. We’re not expected to memorize
all the details of the mechanics of equal protection litigation. We can find out more in an upper-level
course. Plus, we can always go back and
consult Chemerinsky if necessary.
Let’s
use the methodologies of over- and under-inclusiveness to evaluate the claims
in this case.
What’s
the equal protection claim against the Transit Authority? What is the discrimination that allegedly violates
the Equal Protection Clause? They say
that it’s not fair to bar methadone users from working for them. The rule doesn’t label people as methadone
users who do or don’t pose a risk. It
treats all methadone users, and all users of narcotics the same.
How
is this rule over-inclusive? It includes
methadone users who pose no safety threat at all. That’s the point. Within the category of methadone users, there
will be some safe employees and some unsafe employees. The considerations motivating the Transit
Authority seems different depending on just what kind of jobs their workers are
going to do.
How
is this rule under-inclusive? The
Transit Authority is trying to prevent unsafe workers from harming the
public. But there might be other kinds
of people other than narcotics users who might not be fit to operate trains and
buses safely.
Methadone
users are recovering drug addicts. If
you’re a stable methadone user, you’re coping with a prior heroin addiction. It is stipulated that after a year of
methadone treatment, you’re at no more risk of relapse than the general
public. However, there will be other
people subject to employment by the Transit Authority who could be considered a
safety risk. For example, how about
alcoholics? The rule doesn’t apply to
them, and there’s no separate rule that does
apply to them.
This
combination of over- and under-inclusiveness shows that there really is discrimination! But is it wrongful? There’s a mismatch between the rule adopted
and the government’s professed safety
concerns. There’s a bad fit between the
ends and the means.
Why
isn’t this discrimination unconstitutional?
The Court says that the rational basis test applies. Why is that?
The
Constitution doesn’t mention strict scrutiny!
The Constitution doesn’t mention the rational basis test! The Constitution doesn’t even mention race or
gender! So where do we get our
categories? Is the Court just doing this
by fiat? What’s the reasoning behind forming
up these categories and lining them up the way they are? The Court makes the distinction between
immutable characteristic versus things that you can change within your
lifetime. These characteristics can be
things you’re born with or things you’ve acquired but can no longer
change. But does a rule that prevents
blind people from getting drivers’ licenses or pilots’ licenses require strict
scrutiny, since blindness is an immutable characteristic.
The
thing about race is that it’s not just an immutable characteristic, but
something that the courts have generally found to be a wrongful basis for discrimination. In the Court’s judgment, on the other hand, discrimination
with respect to disability (for example), is not as frequently motivated by
prejudice as is racial discrimination.
One
of the most difficult things to grapple with when it comes to the Equal
Protection Clause and its case law is just how amorphous the standard is. There are just a few words in the Constitution
that historically have been interpreted as the Court has seen fit. Consider the opposite conclusion in Brown v. Board of Education as opposed
to Plessy v. Ferguson. Both cases were decided on the exact same Equal
Protection Clause! It is quite possible
that the Supreme Court may, in the future, change its understanding of equal
protection in many different ways.
The
“boxes” we have talked about have changed.
Not long ago, the Court thought that gender discrimination only deserved
the rational basis test. Now, the Court
places gender discrimination in at least the “medium scrutiny” box.
Why
does the Transit Authority treat recovering narcotic addicts differently than,
for example, recovering alcoholics? Isn’t
this clearly discrimination? You can distinguish:
using heroin is illegal, while using alcohol isn’t for adults.
The
Court doesn’t see this discrimination as improper prejudice. Therefore, they do not require anything
higher than the rational basis test.
The
Court in this case says that this may be wrong, but we’re not the ones to stop
it. If society thinks it’s wrong to
treat methadone users differently from recovering alcoholics, then new laws
should be passed to change the system.
Consider
the claim of discrimination against opticians in
Why
is the court saying that these are
the kinds of discrimination that we will not use our judicial power to
overrule?
The
Equal Protection Clause only applies when the government is discriminating. Also, in the voting rights cases, the discrimination
is among individuals with respect to voting rights.
The
“Fundamental Rights” or “Fundamental Interests” strand of equal protection
jurisprudence has to do with individual rights.
When
we study substantive due process, we’ll compare it to equal protection. The question there isn’t about equality of
treatment, but rather of an expressly individual right.
We
now know that the rational basis test is going to apply. But how can his rule that is just a misfit survive
even under the lower level or rational basis review? All the Transit Authority has to say is that
there is a slight safety risk in allowing methadone users to work.
If
there is litigation under the rational basis test, the government must defend
what it’s doing under that test. It must
explain some connection, even if it is a loose connection. They can make up the policy after the fact
and get the benefit of the doubt! The Rational
Basis Test requires the court to show extreme
deference to the legislature.
Before
the
From
time to time, lower courts will mess this up.
Not every episode of governmental discrimination violates the Equal
Protection Clause. We don’t care very
much about, for example, different taxes on slot machines on riverboats versus
slot machines at racetracks.
What
if we knew there was an upcoming terrorist attack involving men of a particular
ethnic group on planes? Would it be constitutional
under the Equal Protection Clause for the government to conduct special
surveillance procedures with respect to people of a particular ethnic group? Is this facial discrimination? If this is a policy, that’s facial
discrimination. Does this policy, on its
face, authorize conduct with a discriminatory motive?
The
Court should apply strict scrutiny because this is discrimination based on
race, religion, or national origin. What’s
the next step? We need to look at the government’s
asserted reason for engaging in this discrimination to see if it’s a compelling
reason. There is certainly some degree
of over-inclusion or under-inclusion.
Padilla was not of the same ethnic background as al Qaeda. That’s under-inclusive. So picking out Arab-Americans at the airport
will be over-inclusive. But is this too over- or under-inclusive given the
necessity that the government asserts?