Constitutional Law Class Notes 3/9/04


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.


New York City Transit Authority v. Beazer


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 Oklahoma.  The court decided that this is more or less a political question.  As long as there is a plausible health and safety question, the discrimination can go on.


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 Roosevelt era, the Court was using the Equal Protection Clause to protect big business and to micromanage American economic policy.  As part of the revolution of the New Deal, the Court said it would bend over backwards to uphold laws that further policy.


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?


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