Name that Scrutiny
What is the legal standard for strict scrutiny?
1. a compelling govt. interest; and
2 the regulation must be narrowly tailored to serve that interest.
In Strauder, the court pays attention to the govts. _____ and justification for their race-based classification. Further, what was the holding of Strauder?
Interest! It is pretty apprent on its face that West Virginia law believed blacks were not qualified to serve on a jury.
The court held in Strauder that the black code law was unconstitutional. This was a historical moment post-civil war!
Equal Protection has a symmetrical approach. Everyone has EP rights! EP allows govt. to treat ppl differently in a benign sense. This would only trigger _______ scrutiny.
Rational-basis scrutiny! The basis in which the govt. puts ppl into different categories looks at the nature of the classification and what categories triggers what. NOT which group is disadvantaged.
Why does the court in Loving reject the argument that criminal penalties treat both whites and non-whites the same?
(Think back to Brown v. Board)
This is a race classification even if both races are treated the same. The rejection of separate but equal should bring us back to Brown v. Board.
The court says just because on its face the races seem to be treated equally, it does not mean we are not going to treat this like a suspect classification.
If we can only show disproportionate impact by itself with no additional evidence, this is NOT going to trigger heightened scrutiny we are just going to use...
(think about the legal standard)
Rational-basis scrutiny!
The government's interest must be the ACTUAL interest that motivated the regulation. It cannot be a plausible or hypothetical interest when it comes to strict scrutiny. True or False?
True! For example, if the government is saying a race classification is to promote equality, it must ACTUALLY be that the government wants to promote equality.
In Plessy v. Ferguson, the court sustained an 1890 law that required _____ but _____ accommodations for white and colored railroad passengers.
Seperate but equal! Plessy, the challenger alleged that he was 7/8 caucasian and 1/8 African blood and he was entitled to every right of the white race.
The Consitution is symmetrical and all of us have the same protection with regard to gender classifications AND _____ classifications.
Race classification!
What is the legal standard used in a race classification case?
1. a compelling govt. interest; and
2. must be narrowly tailored to serve that govt. interest.
In regard to discriminatory purpose... if a court infers discriminatory purpose, then we have a successful EP claim. We need evidence of the government's intent to......
treat people differently based on race! This will then trigger strict scrutiny.
What does it mean to be narrowly tailored in regard to Equal Protection?
In EP, we should focus on the aspect that triggers the scrutiny. The race classification/the use of the classification must be narrowly tailored to serve that govt. interest.
Ask yourself, "Is the race classification narrowly tailored to compelling govt. interest?" <- this is what we are scrutinizing!
In Plessy v. Ferguson, Plessy was considered colored and he was arrested for refusing to leave a seat in a coach for whites. True or False?
True!
We are suspicious of race classifications, so we apply the _______ level of scrutiny!
Highest level of scrutiny! Strict scrutiny!
Discriminatory purpose/intent means the law is enacted or enforced with...
The law is enacted or enforced with the intent to treat people differently based on race.
Under heightened scrutiny, the government has to show they had a good reason for wanting to treat people based on race. (they must show narrow tailoring, etc.) True or False?
True! P must show disproportionate impact + some evidence, then D must refute the evidence. If they cannot, this is enough to trigger heightened scrutiny.
If the govt. CAN show they did not have an intentional purpose for treating people differently based on race, we are back to rational-basis scrutiny!
Should we be suspicious of race classifications?
In Plessy v. Ferguson, Justice Brown stated that the 14th amend. was intended to enforce the absolute equality of the two races before the law, but in the nature of things, Congress could not have been intended to abolish distinctions based on color, or to enforce social, distinguished from political equality, or co-mingling of the 2 races upon terms unsatisfactory. True or False?
True! Plessy court acknowledges that there is a difference between equality under the law, and equality in our society. The court says, "Congress could not have intended that our society treat whites and non-whites the same! This should strike us as different than what the Strauder Court was doing.
Gender classifications are often referred to as ____ ____ classifications. So we are only somewhat suspicious when the govt. uses gender classifications.
Quasi-Suspect classifications! Sometimes it is okay to use gender classifications so we only apply intermediate scrutiny.
(We look at these more closely than we would age or income, but not as close as we would race classifications)
With discriminatory purpose/intent, the purpose or intent does not need to be malicious, it only needs to treat people differently based on race. True or False?
True!
Think about Arlington Heights... P only has to show that discriminatory purpose was a...
Motivating factor! It does not have to show every member of Congress wanted to treat cocaine more harshly because they don't like blacks. If it is one of the reasons, this is enough to satisfy P's prima facie case.
What is the key takeaway of Strauder v. West Virginia?
(think about what it singles out)
It singles out race classifications. The Strauder court is also symmetrical in its application. The court said that it treats whites and non-whites the same under the law.
In Brown v. Board of Ed., this is an example of the court overruling a prior supreme court interpretation of the Constitution. What did the court rule?
The court held that in the field of public education, the doctrine of "seperate but equal" has no place. Seperate educational facilites is inherently unequal. Overulling Plessy!
In Loving v. Virginia, what triggers the level of scrutiny?
(think about the law: "It shall be unlawful for a white person to marry a non-white person."
The law on its face triggers the race classification..
The discriminatory impact is not enough for Equal Protection itself, but it shows we have evidence that it was enacted with discriminatory intent or enforced with discriminatory purpose. True or False?
True!
Ex. Firefighters are required to be shaved when they put their masks on - on the face of this policy, there is no race classification - it is simply talking about being shaved. This MIGHT disqualify black men but without evidence that firefighter is being treated differently by the govt. on purpose, we do not have an EP issue. FF would have to find additional evidence.
What is the legal standard for strict scrutiny?
1. compelling govt. purpose; and
2. that purpose must be narrowly tailored to serve that purpose.