AAS 205 Fall 2002

Eric Mar

 

Levels of Scrutiny Under the

Three-Tiered Approach to Equal Protection Analysis

 

·       Legal Analysis - IRAC

·       Double-edged sword; Conservatism of the legal system

 

Equal Protection Clause of the 14th  Amendment

·      ‘No State shall...deny to any person within its jurisdiction the equal protection of the laws.’

 

·       Context – civil rights movement and 60’s/70’s social changes – interpretations – goal: ensure that no illegal discrimination takes place ; current conservatism of the courts

    1. Pre-Civil War
      1. Dred Scott v. Sanford (1857)
    2. Civil War, 1861-65
      1. Emancipation Proclamation, 1863
      2. 13th Amendment (1865)--abolition
      3. "Black Codes"
    3. Reconstruction, 1866-77
      1. 14th Amendment (1868)--citizenship
      2. 15th Amendment (1870)--voting rights
      3. Civil rights laws
        1. 1866 Civil Rights Act
        2. 1870 Enforcement Act
        3. 1871 Anti-KKK Act
        4. 1875 Civil Rights Act
      4. 1876 presidential election
        1. R. B. Hayes (R) v. S. Tilden (D)
        2. Compromise of 1877
    4. Era of "Jim Crow," 1877-1965
      1. Legal and political abuses
      2. Segregation of the races
        1. 1883 Civil Rights cases
        2. Plessy v. Ferguson (1896)
          1. "separate but equal"
      3. Lynching and race violence
        1. between 1882 and 1946, 4,715 recorded lynchings
        2. Marion, Indiana, 1930
        3. 1921 Tulsa riots
    5. Modern Civil Rights Movements
      1. W.E.B. DuBois, NAACP
        1. Thurgood Marshall and the NAACP Legal Defense Fund
        2. Brown v. Board of Education (1954)
        3. Brown v. Board of Education II (1955)
          1. "all deliberate speed"
      2. Martin Luther King, Jr., SCLC
        1. Rosa Parks and 1955-56 Montgomery Bus Boycott
    6. Sixties
      1. August 1963 March on Washington, D.C.
      2. November 1963 Assassination of John F. Kennedy
      3. 1964 Civil Rights Act
        1. Title I--voter registration discrimination
        2. Title II--public accommodations
        3. Title V--federal lawsuits against segregated schools
        4. Title VI--Powell Amendment and federal grants/contracts
        5. Title VII--Equal Employment Opportunity
      4. 1965 Voting Rights Act
      5. "Long, Hot Summers," 1964-67
        1. Kerner Commission, 1968
      6. April 1968 Assassination of M. L. King, Jr.
      7. 1968 Fair Housing Act
    7. Affirmative Action struggles

1978 Bakke; 80’s Reagan era; 1996 CA – Prop 209; March 2004 – Ward Connerly’s ‘racial privacy initiative’

 

·      Equal Protection; anti-discrimination law analysis

o    government actions

o    grouping people together,

o    categorizing people based on various characteristics;

o    q – is it constitutional?

 

 

RULE –

1938 Carolene Products v. UnitedStates rule -  strict scrutiny will result in invalidation of the challenged classification.

NARROWING THE RULE – creating an exception -

1944 Korematsu v. United States, Court upheld the military exclusion order directed at Japanese-Americans during World War II.

 

1967 CONTRAST - Loving v Virginia a unanimous Supreme Court strikes down Virginia's miscegenation law [barred interracial marriages].

 

EQUAL PROTECTION ANALYSIS

 

1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest - court requires that the policy be narrowly tailored in order to meet a "compelling state interest."):


A. Suspect Classifications:

1.     Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).


B. Classifications Burdening Fundamental Rights


1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental

 

2.       MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):


Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy

 

3.       MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.)


Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage gay people or mentally disabled people, or innocent children of illegal aliens