Equal Protection Clause

1. EP governs: statutes, rules, unwritten policy, specific administrative decision or enforcement

2. For State: 14A EP

3. For FG: The constitutional basis is that SC, through reverse incorporation, found an implicit EP component in 5A (Bolling v. Sharpe)

Basic equality- RBR

1. RBR is the minimal level of scrutiny that all government actions challenged under EP must meet. A law meets RBR if it is rationally related to a legitimate government purpose. For fear of re-Lochnerizing, SC is very deferential in applying RBR. A law is upheld if it’s possible to conceive any legitimate purpose of the law.

2. Rationale for RBR: Basic equality: same treatment for similarly situated people in light of the totality of legitimate government goals

   1. Over/ under inclusive analysis: The law is neither overinclusive OI nor underinclusive UI in light of the totality legitimate government goals. Under the rational basis test the court will usually tolerate laws that are OI or UI.

      1. Over-inclusive: includes people who should not be burdened

      2. Under-inclusive: leaves out people who in fact do threaten the state’s goal

   2. Cost-benefit analysis

      1. Goals of reducing administrative costs/ substantive costs

      2. Multiple governmental goals

3. Cases where SC rejected EP- RBR challenges and uphold the laws

1. Railway Express: no vehicle advertisement except the owner

2. Minnesota v. Clover Leaf: bars plastic, not paper, non-returnable containers

3. Fitzgerald: Higher tax on slot machines on racetracks than riverboats

4. Williamson: opticians may not prepare lenses without prescription

5. Armour: rebate for future lump sum assessment not already paid

4. Cases where SC rejected the laws under RBR

   1. Cleburne

   2. Moreno

   3. Romer

5. Legitimate goals:

   1. Needs

   2. Health/safety/ public morals (Railway express agency)

   3. environmental goals

   4. Entitlement/desert

6. Illegitimate goals:

   1. Bare desire to harm a particular group (Moreno)

   2. Fear of a particular group

Race - SS

1. Possible rationale for racial suspect classification

   1. Anti-subordination theory: laws that discriminate along racial lines tend to exacerbate racial subordination in history.

   2. Immutability

   3. Prejudice

   4. Stigma theory: stigmatize people as being inferior

   5. Race is unlikely to be relevant

   6. Political process theory: correct past mistakes through the political process

2. Level of scrutiny for suspect class:

   1. Formalistic: SS for all racial classifications that Korematsu adopted – current approach

   2. Fact-specific approach: Brown, Strauder, Plessy

3. Racial classification based on common physical characteristics, culture, ancestry, or social recognition

   1. African American (many cases)

   2. Chinese ethnicity (Yick Wo)

   3. Japanese ethnicity (Korematsu)

   4. Hispanic ethnicity

   5. Ancestry classification in Rice

4. Several kinds of law

   1. RBR

      1. Laws that are facially neutral and merely have racial disparate impact only get RBR (Davis)

      2. Simple enactment of anti-discrimination measures gets RBR. Repealing such measures also gets RBR.

         1. no race discrimination going forward in hiring – RBR

         2. give preference to anyone who can show that he was discriminated before. – RBR

         3. BUT: give preference to black applicants until the percentage is 30%. – SS

   2. SS

      1. Facially neutral law motivated by subjective racially discriminatory purpose in the Feeney sense (specific intent, not merely knowledge) gets SS.

         1. Discriminatory purpose can be shown through direct or circumstantial evidence, including disparate impact.

         2. But for causation: if the decision maker didn’t have the discriminatory purpose in the Feeney sense, the decision being challenged would be different.

         3. Substantial factor: in mixed motivation cases, if same result would have occurred then that is not but for and not a strict scrutiny case...

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