Equal Protection: Affirmative Action, women and Gay Rights

1. Is “diversity” in the workplace or in educational settings a “compelling state interest”? If so, how is diversity defined and achieved? AP Government and Politics Chapter 19: Wilson Homework: Assignment 6: The LAST ONE Equal Protection: Affirmative Action, women and Gay Rights

2. Testing Equal Protection • The equal protection clause: “nor deny to any person the equal protection of the laws” • How do you interpret this phrase? • Fundamental Rights – HIGHEST • Any law which restricts a certain group’s ability to exercise their most basic rights, including the right to vote, travel freely, due process or expression , is subject to the HIGHEST SCRUTINY (closest look) • Suspect Classification – 2nd HIGHEST • If a law or government action draws a distinction based on race, religion or national origin, will be given a very close look as well, but the burden of proof is not quite as high as with Fund. Rights • Intermediate Scrutiny – mid level • For laws that classify based on gender. • Rational Basis – the lowest level of scrutiny; • The government must only prove that the law has a rational basis (good reason) and that it accomplishes that goal. • Age, income, etc.

3. Equal Protection and Affirmative Action • What is affirmative action? • How does it apply to the concept of “equal protection”? • How are equality of opportunity and equality of results different? • Typically thought of in two ways: • Compensatory actions – helping people “catch up” by providing additional education or training • Preferential treatment – giving preference to minorities in hiring, admissions, etc. • When considering how a group has been affected by a law or program, the Court must ask two basic questions in order to determine if the law or action is constitutional • Any preference given to a group must serve a “compelling state interest” • Law must be “narrowly tailored” to serve that interest

4. AP Government and Politics Chapter 19: Wilson Homework: Study for MC Test Chapter 18/19 Quiz due Tuesday Equal Protection: Affirmative Action, women and Gay Rights

5. Regents of California vs. Bakke • Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? No and yes. There was no single majority opinion. • Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. • However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. • The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria.

6. Grutter vs. Bollinger (2002) • Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? • No. • In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. • The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. • Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race- conscious admissions program does not unduly harm nonminority applicants.“

7. Gratz vs. Bollinger (2002; post Grutter • Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? • Yes. • In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the University of Michigan's use of racial preferences in undergraduate admissions violates both the Equal Protection Clause and Title VI. • While rejecting the argument that diversity cannot constitute a compelling state interest, the Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, … • to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in Regents of the University of California v. Bakke,

8. Ricci vs. DeStefano (2008) • 1) Can a municipality reject results from an otherwise valid civil service exam when the results unintentionally prevent the promotion of minority candidates? • Maybe; fact dependent. • The Supreme Court held that by discarding the exams, the City of New Haven violated Title VII of the Civil Rights Act of 1964. • Before an employer can engage in intentional discrimination for the purpose of avoiding a "disparate impact" on a protected trait the employer must have a "strong basis in evidence" that it will be subject to "disparate impact liability" if it fails to take the discriminatory action. • Here, the Court reasoned that New Haven failed to prove it had a "strong basis in evidence" that failing to discard the results of the exam would have subjected it to liability, as the exams were job-related, consistent with business necessity, and there was no evidence that an equally-valid, less-discriminatory alternative was available.

9. Women and Equal Rights • Court has adopted an “Intermediate” level of scrutiny for laws that treat men and women differently. • More than simply “reasonableness”, but do not require very close “scrutiny”. • Must be “reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of legislation so that all persons similarly circumstanced shall be treated alike.” • Which are violations of Equal Protection? • A state sets different ages for men and women to become legal adults • Girls are not permitted to play on boys’ Little League teams • Women are barred from working in certain positions in a prison • Property tax exemption given to widows, but not widowers • All boy or all girls schools, w/voluntary enrollment and equality • Giving men preference over women in the execution of an estate

10. US vs. Virginia (VMI; 1995) • Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection clause? • No. • In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. • Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets.

11. Gay Rights and Equal Protection • We can’t be sure how much scrutiny the Court gives to cases concerning the rights of gays • Likely the Court would apply a test near but perhaps above the “intermediate scrutiny” test applied to women’s rights • Might this also imply a male-bias towards the rights enjoyed by different groups?

12. Lawrence vs. Texas (2002) • Does the criminal conviction of John Lawrence under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? • No, • But In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. • After explaining what it deemed the doubtful and overstated premises of previous precedent, the Court reasoned that the case turned on whether Lawrence was free to engage in the private conduct in the exercise of liberty under the Due Process Clause

13. Boy Scouts vs. Dale (1999) • Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders? • Yes. • In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." • In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders.