Scrutiny & Frameworks
A state law bans all economic regulations that “unfairly burden small businesses.” A challenger argues the law is arbitrary. What level of scrutiny applies and what must the government show?
What is Rational Basis — legitimate interest + rationally related means?
What are the three steps of an Equal Protection analysis on an exam?
What is
A state law explicitly classifies based on race. What is the outcome in most cases and why?
What is strict scrutiny applies and the law almost always fails?
Once a state creates elections, what constitutional principle governs how voting is structured?
What is Equal Protection applies to voting?
What are the first two threshold questions in any First Amendment analysis?
What is
A law distinguishes based on gender. What must the government prove under modern doctrine, and what language signals the heightened version of this test?
What is Intermediate Scrutiny — important interest + substantially related means, requiring an “exceedingly persuasive justification”?
A facially neutral law disproportionately harms a racial group. What must the plaintiff prove to move beyond rational basis?
What is discriminatory purpose + discriminatory effect?
A state denies benefits to undocumented immigrants. What level of scrutiny applies and why?
What is Rational Basis because undocumented status is not a suspect class?
A state draws districts with unequal populations. What doctrine is violated and what is the rule?
What is “one person, one vote” — districts must be roughly equal in population?
A law regulates speech based on subject matter. What level of scrutiny applies and what is the likely result?
What is Strict Scrutiny — law likely invalid?
A law classifies based on race. Walk through the full test the court applies.
What is Strict Scrutiny — compelling interest + least restrictive means?
Statistical disparities alone are presented to prove discrimination. Why is this insufficient, and what else is required?
What is statistics alone are insufficient; must show a “smoking gun” to prove purpose?
A state denies public education to children of undocumented immigrants. What level of scrutiny applies and why?
What is Intermediate Scrutiny due to the education exception for children?
A state imposes a 1-year residency requirement for voting. Analyze constitutionality.
What is unconstitutional — durational residency requirements for voting fail strict scrutiny?
A content-neutral regulation limits when protests can occur in a public park. What test applies?
What is Time, Place, Manner — intermediate scrutiny + adequate alternatives?
A plaintiff cannot prove discriminatory purpose. What happens next in the analysis and why?
What is Rational Basis applies because no purposeful discrimination triggers heightened scrutiny?
A city closes all public pools to avoid integration. There is clear discriminatory intent but equal impact on all races. What result?
What is no Equal Protection violation due to lack of discriminatory effect (Palmer v. Thompson logic)?
Congress passes a law discriminating against lawful permanent residents. What level of scrutiny applies and why?
What is Rational Basis because federal government gets deference in immigration?
A state requires voters to own property. What is the result and why?
What is unconstitutional — violates Equal Protection (Kramer)?
The government regulates conduct that has expressive elements (e.g., flag burning). What test applies?
What is O’Brien Test (intermediate scrutiny for expressive conduct)?
A law burdens a fundamental right but does not involve a suspect class. What level of scrutiny applies and why?
What is Strict Scrutiny because fundamental rights independently trigger it?
Give two examples of “smoking gun” evidence courts may accept to prove discriminatory purpose.
What are (1) departures from normal procedures, (2) legislative history/statements, (3) historical background?
A law distinguishes based on pregnancy. Why does this not trigger intermediate scrutiny?
What is pregnancy is not treated as gender discrimination under Equal Protection?
Distinguish between political and racial gerrymandering in terms of justiciability.
Answer: What is
A restriction applies in a government building open for limited uses. What forum is this and what is the rule?
What is Limited/Nonpublic Forum — must be reasonable and viewpoint neutral?