Equal protection And Discrimination

1. Equal protection And Discrimination

2. What is Equal Protection? 1. Derived from Declaration of Independence “We hold these truths … all men are created equal” 2. Meaning: state and local government cannot draw unreasonable distinctions between different groups of people • 5th amendment : Due Process Clause • 14th Amendment: “Equal Protection Clause” 3. Fundamental Freedoms • Explicitly guaranteed in the Constitution • Close Scrutiny/state laws in violation are unconstitutional

3. Who Needs Protection? • Strict scrutiny : Reverses the normal presumption of constitutionality. The law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest. • law categorizes on the basis of race, religion or national origin • Intermediate scrutiny : the law is unconstitutional unless it is "substantially related" to an "important" government interestand that the classification is at least substantially related to serving that interest. Note that in past decisions "sex" generally has meant gender. • law categorizes on the basis of sex • Rational-basis test : the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest. • law categorizes on some other basis: age, Income, hardship, etc

4. Proving Intent to Discriminate • Constitutional vs. Legal Rights • Bill of Rights provides protection and limits • Services a construction of Congress • One must prove that intent to discriminate motivated state action • “equal laws, not equal results”

5. Race as a Suspect Classification • Plessy v. Ferguson (1896) - supported state actions that segregated the races. • Brown v. Board of Education (1954) - established race as a suspect classification, struck down all laws based on race

6. Affirmative Action • Policies that encourage institutions to take positive steps to correct the effects of past discrimination • Regents of Univ. of California v. Bakke (1978) – race can be considered but can’t use quotas • government can make laws that eliminate prior inequities However, must be a compelling interest to relieve a specific case of discrimination • Grutter v. Bollinger and Gratz v. Bollinger (2003) • recognized use by law school of “plus factor” but cannot give extra points to undergrad applicants

7. Is Gender Suspect? • Laws discriminated against women on the pretext of protection • The women’s movement has objected to these laws as paternalistic • Reed v. Reed (1971) – banned classification that didn’t meet “important gov’t objectives” • The federal courts do retain part of the protective movement The Supreme Court has struck down many laws based on sex

8. Gay Rights • Defense of Marriage Act (1996) • Recognizes marriage as between one man and one woman • Romar v. Evans (1996) • Invalidated CO law seeking to eliminate laws protecting homosexuals from discrimination • McVeigh v. Cohen (1998) • Navy violated privacy regarding AOL profile • Lawrence v. Texas (2003) • Invalidated state sodomy laws • Recent policy changes: Don’t Ask Don’t Tell and California Proposition 8

9. Age and Disability Discrimination Age Discrimination in Employment Act Passed in 1967 Prohibits age discrimination unless a bona fide qualification Americans with Disabilities Act (ADA) Passed in 1990; requires “reasonable accommodations” be made unless they create “undue hardship” Individuals with Disabilities in Education Act (IDEA) Guarantee of free and appropriate public education (FAPE) in least restrictive environment (LRE) Due Process guarantees for parents and students