1. Constitutional Law II Fall 2006Con Law II1 Equal Protection - Introduction

2. Fall 2006Con Law II2 Equal Protection What does Equal Protection mean? Different Outcomes? Socio-economic class & stratification Ex: (stereotypes) : On average, Whites earn more than Asians, who earn more than Blacks Different Treatment? Different set of rules apply, based on gov’t classification Ex: Persons of Japanese ancestry relocated to “internment camps” during WWII Equality of Treatment vs. Treatment as Equal Intentional Discrimination Unintentional Discrimination

3. Fall 2006Con Law II3 Classifications All laws classify: By behavior:  Driving faster than 65 MPH = ticket  Committing crime = jail By status:  Citizen vs. alien  Parents married vs. unmarried (“bastard”)  Medical condition By trait (personal characteristics):  Biological factors: Skin color, ethnicity, sex  Personality factors: Religion, ideology

4. Fall 2006Con Law II4 Suspect Classifications Race Special constitutional status (slavery, 15 th Am) US History  Legacy of racism  Persistent and systemic lack of political power Not alterable  Per liberal political theory (personal responsibility) Other “Immutable Characteristics” Sex Legitimacy Fixed historical characteristic; e.g., alienage Age? Strict Scrutiny applies whenever law intentionally discriminates on the basis of a suspect criteria Lack of access to political process is an important factor for std. of review

5. Fall 2006Con Law II5 Where Classifications Occur Facial Classifications Examples based on suspect class (race/sex):  Must be white male to vote  Must be white to serve on jury Examples based on non-suspect grounds:  Must be 16 to drive; 18 to vote  Must be 5’10” to serve on police/fire department  Must have AP credit for admission to UC  Powder cocaine = 2 yrs; crack cocaine = 10 yrs What is it about these non- suspect classifica- tions that raise suspicion?

6. Fall 2006Con Law II6 Facially Neutral Classifications Facial classification along non-suspect lines Ordinarily, apply Rational Basis review Problem: “facially neutral” law with uneven outcomes, disadvantaging a suspect class  Ex: Only persons 5’10” or taller hired for LAFD Very few women applicants meet this standard Problem: neutral law applied discriminatorily  Ex: Yick Wo v. Hopkins All laundries in wood buildings need (discretionary) permit Permit granted to all white applicants, but no chinese When do disparate outcomes=disc. treatment?

7. Fall 2006Con Law II7 Standards of Review Rational Basis Legitimate Ends Rational Means Ex: License Requirements for Airline Pilots ENDS (Ultimate Goal): airline safety Mediate Goal: identify safe pilots  Note: safety in pilots can’t be measured directly MEANS: skill testing  Flight test  Medical test  Age test Note: these are all indirect measurements of flying safety

8. Fall 2006Con Law II8 Classifications Classify to promote state’s ENDS Ex: skillful pilots -> avoid air accidents SAFE SKIES OBJECTIVE SAFE PILOTS TARGET Poor health Poor record Too old TRAIT UNSAFE SKIES MISCHIEF Health Flying record Age CLASSI- FICATION Proxies

9. Fall 2006Con Law II9 Closeness of Means-Ends Fit SAFE SKIES ENDS Pilots with Poor Flying Record MEANS SAFE SKIES ENDS Pilots with Good Flying Record MEANS ENDS Pilots who won’t have flying accidents MEANS irrational rational perfect fit

10. Fall 2006Con Law II10 Closeness of Means-Ends Fit SAFE SKIES ENDS Pilots must be under 14 or over 80 yrs old MEANS SAFE SKIES ENDS Pilots must be 21 - 60 years old MEANS SAFE SKIES ENDS Pilots who won’t have flying accidents MEANS irrational rational perfect fit Can’t predict future, so some proxy must be used note: gov’t doesn’t have to impose this requirement, but it is not an irrational one

11. Fall 2006Con Law II11 Closeness of Means-Ends Fit SAFE PILOTS ENDS Mandatory retirement at age 60 MEANS SAFE PILOTS ENDS Mandatory retirement at age 60 MEANS underinclusive lots of pilots under age 60 who are unsafe overinclusive lots of pilots over age 60 who are very safe in most cases, we must tolerate some degree of imprecision

12. Fall 2006Con Law II12 Rational Basis Test Legitimate ENDS Ordinarily a matter for legislative discretion, so long as within police (enumerated) power Rational MEANS Any mechanism that is not arbitrary/irrational  Arbitrary: no better than random  Doesn’t have to be best fit, or even a good fit Extreme Deference Presume legitimacy of ENDS and MEANS, unless challenger proves absence of “constitutional facts” (nigh impossible)

13. Fall 2006Con Law II13 Rational Basis Test Typical Applications Economic regulation  New Orleans v. Dukes: pushcart grandfather law  Williamson v. Lee Optical: opticians vs. Ods  US Ry Retirement Bd. v. Fritz  Railway Express v. New York Social regulation  Village of Belle Terre v. Boraas  USDA v. Moreno

14. Fall 2006Con Law II14 Fundamental Rights under EP Discrimination that burdens/denies the exercise of a fundamental right Example: Only residents with children in public school can vote for Bd of Education  Note: No 1 st Amd right to vote for Board of Ed i.e., State can appoint, rather than hold election  Note: Persons w/o school kids are not suspect class for Equal Protection purposes But the right affected ( voting ) is “fundamental” for Equal Protection purposes Strict Scrutiny applies when state discrim- inates w. r. t. exercise of a fundamental right Since rights can be fundamental for Equal Protection purposes even when not fundamental for Due Process, it is important to specify

15. Fall 2006Con Law II15 Ry Express v. New York (1949) Ends: Traffic safety / Reduce traffic distractions Means (Classification): Delivery vehicles carrying self-advertising Delivery vehicles carrying others’ advertising Relationship (closeness of fit) Eliminating any advertising at all helps Even a random prohibition (an arbitrary one)?  License plates with even numbers – yes; odd – no

16. Fall 2006Con Law II16 Ry Express v. New York (1949) Advertising law not “arbitrary” if: Advertising for hire worse than self-advertising  Defer to legislative findings Law has other goals (regulating advertising)  Defer to legislative judgment Other potential State’s Ends: To regulate advertising While protecting business’ free speech interests Arbitrariness Like beauty, is in the eye of the beholder And may depend upon unarticulated objectives

17. Fall 2006Con Law II17 Ry Express v. New York (1949) Jackson concurrence: Better to invalidate law on EP than DP grounds  Leaves a range of options, not available if DP used Equality principle assures efficacy of political remedies  Burdens borne by many more likely to be cured at ballot box than burdens selectively imposed NYC law biased in favor of politically influential newspapers

18. Fall 2006Con Law II18 Ry Express v. New York (1949)

19. Fall 2006Con Law II19 FCC v. Beach (1993) Facts: Cable Com Policy Act distinguishes between “private cable” and “cable systems” Claim: Irrational to discriminate on basis of ownership Burden under RB test What is required of challenger/state under RB? Does state actually need a rational basis?  Must there be “legislative facts” supporting the distinction drawn by the law?

20. Fall 2006Con Law II20 FCC v. Beach (1993) Burden under RB test Challenger must “negate every conceivable basis which might support” the law  Legislative choices may be based on rational speculation unsupported by empirical evidence  Court can even apply its own reasons (Stevens)  RB review = No review (in most cases) What if legislature makes a mistake? No matter. Mistakes are corrected politically. Std of Review is a shorthand for indicating the proper forum for resolution of these disputes

21. Fall 2006Con Law II21 Heller v. Doe (1993) Facts: KY law establishes different commitment pro- cedures for mentally ill vs. mentally retarded Claim: No rational basis to support the distinction Why isn’t this subject to heightened scrutiny?  Mentally retarded are not a suspect class  EP fundamental right not to be committed Standard of Review Note: Dissent talks language of RB but uses SS  Suspicion that law based on antipathy or stereotype Not asserted

22. Fall 2006Con Law II22 USDA v. Moreno (1973) Ends:  Stimulate the Agricultural Economy  Public welfare of (truly) indigent persons  Discourage “hippie communities” Means (Classification for eligibility): Households where all members related Households where 1 or more unrelated Relationship: Classification does not promote END 1 Classification does promote END 3  Why not legitimate? If pure bias (hostility to a particular group) is a legitimate end, then all forms of discrimination are ipso facto allowed

23. Fall 2006Con Law II23 USDA v. Moreno (1973) Ends:  Stimulate the Agricultural Economy  Public welfare of (truly) indigent persons  Discourage “hippie communities” Nexus: Doesn’t it promote 2 (by discouraging fraud)?  Yes, but denies “essential food assistance”  Yes, but unnecessary because of other laws Do we really care under RB review?  Rehnquist: unfortunate/unintended consequences are not part of RB review  If not RB, What std of review Brennan using?

24. Fall 2006Con Law II24 Mass. Ret. Bd. v. Murgia (1976) Age discrimination (mandatory retirement) End: vigorous/healthy police force MEANS (Classification): under/over 50  Not irrational; but not the best discriminator either  Some under/overinclusiveness; but not too much Indicia of Suspect Classifications History of purposeful unequal treatment Prejudice based on stereotyped characteristics “Discrete and insular” group  Needing “extraordinary protection from majority” Right to work as a fundamental right? - deferred

25. Fall 2006Con Law II25 RR Retirement Bd v. Fritz (1980) Facts: Retirees who worked both RR and non-RR jobs received reg. benefits, Social Security & bonus RR Retirement Act of 1974 created categories:  Workers who retired before 1975 & rec’d benefits  Workers retiring after 1974 with < 10yrs RR service,  Workers retiring after 1974 with 25 yrs RR service (or service in 1974),  Workers who retired before 1975 w/ Social Security 1975 retiree with 24 yrs service would get less than 1974 retiree with 10 yrs or 1975 retire who had qualified for Social Security

26. Fall 2006Con Law II26 RR Retirement Bd v. Fritz (1980) Standard of Review Economic rights are non-fundamental Railroad retirees are not suspect class Legitimate Ends: Saving RR retirement system from bankruptcy whilst protecting workers’ expectations Rational Means: Preferring “career railroaders” not arbitrary  Do categories actually accomplish that?  Was that congress’ actual intent? Record indicates the contrary

27. Fall 2006Con Law II27 RR Retirement Bd v. Fritz (1980) Whose purpose matters under RB test? Actual purpose of legislature? Invented purpose (post-hoc rationalizations offered by attorneys defending the law)?  Rehnquist: “It is constitutionally irrelevant whether this reasoning in fact underlay the legislative decision because this Court has never insisted that a legislative body articulate its reasons [behind a law]” rational  Does this test give any meaning to “rational” basis? If law congress enacts defeats an articulated legislative purpose, shouldn’t it fail the RB test?