Consider: Is “diversity” in the workplace or in educational settings a “compelling state interest”? If so, how is diversity defined, and how is it achieved? The Last Word: Multiple Choice test tomorrow; Essay exam Wed. Take home quiz due tomorrow

AP Government and Politics

 The equal protection clause: “nor deny to any person the equal protection of the laws”  How do you interpret this phrase?  Fundamental Rights – (Strict scrutiny) 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  If a law or government action draws a distinction based on race, religion or national origin, will be given a very close look  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. Testing Equal Protection

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

TABLE 5.1: What are the standards of review fashioned by the Court under the Equal Protection Clause? 5.4

Statutory Remedies for Sex Discrimination  Equal Pay Act of 1963 Requires equal pay for equal work  Title VII of Civil Rights Act of 1964 Prohibits gender discrimination by employers  Title IX of the Education Amendments of 1972 Bars educational institutions that receive federal funds from discriminating against female students 5.4

US vs. VMI (1995)  Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Equal Protection clause?  No.  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.

Gay Rights and Equal Protection  The Court has ruled on a few “gay rights” cases recently.  It is mostly agreed that the intermediate scrutiny used to examine laws discriminating against women is the appropriate test used for laws against gays.  However, the Supreme Court, in Lawrence and Windsor, did not indicate which level of scrutiny it applied.  We may get another opinion on that in Obergefell vs. Hodges

Lawrence vs. Texas (2002)  Does the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate Equal Protection?  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.  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

US vs Windsor  Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws, of their 5 th Amendment rights to equal protection under federal law?  Yes  The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law.  The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.

Obergefell vs. Hodges  A test of the Ohio ban on same-sex marriage  Questions: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?  And, does it require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?  Argument set for April 28 th, 2015

Affirmative Action  What is affirmative action?  Is it an example of equal protection, or the opposite of it?  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  There have been several cases in the recent past which have outlined, revised, and attempted to sort out whether race-based policies, like college admissions, are constitutional.

Affirmative Action and College Admissions  There have been several significant cases in the recent past which have tested programs that aim to provide “help” to underrepresented minorities to attend college.

Regents of California vs. Bakke  Did the University of California violate the Equal Protection clause 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 Justice Powell agreed, casting the deciding vote ordering the medical school to admit Bakke.  "... Race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats."  The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible.

Grutter vs. Bollinger (2002)  Does Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause?  No.  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.  Because the Law School conducts a highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race  Thus, 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 non- minority applicants.“

Gratz vs. Bollinger (2002; post Grutter  Does the U of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause?  Yes.  In a 6-3 opinion, the Court held that U of Michigan's use of racial preferences in undergraduate admissions violates the Equal Protection Clause.  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.

Fisher vs. UT (2013)  Texas enacted a law requiring UT to admit all HS seniors who ranked in the top 10% of their high school classes. After finding differences between the racial and ethnic makeup of the university's undergraduate population and the state's population, Texas decided to modify its race-neutral admissions policy.  The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.  Abigail N. Fisher, a white female, applied for undergraduate admission. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher's application. Question:  Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?

The result: Fisher vs UT Question:  Does the Equal Protection Clause permit the consideration of race in undergraduate admissions decisions?  Yes  The Supreme Court held that such cases are reviewable under the 14 th Amendment, AND that they must be reviewed under a standard of strict scrutiny  Case was remanded to the Circuit Court for reconsideration; as a result, Bakke and Grutter were not changed…

The latest: Schuette vs. Coalition to Defend Affirmative Action  Michigan voters enact ban on affirmative action in education and employment.  Question: Does the ban on affirmative action violate equal protection?  Answer: No  Supreme Court upholds the ban, which enables states to choose whether they want to allow affirmative action programs

Activity  Which candidates did you choose? Did the other groups choose the same candidates as you or different ones?   What factors did you consider in making your selections? How did you determine which factors should weigh more heavily?   Was the selection process a difficult or easy one? Explain.   Which factors should admissions officers at colleges and universities consider in making their decisions? Should race play a role in their decisions? Why or why not?   Now assume that you have been told that approximately one-third of the available spaces should go to "under-represented minorities" (African Americans and Hispanics). Put a star next to the candidates that you would choose.   What does it mean to "set aside" a set number of places for members of certain minority groups? What does it mean to give "preferential treatment" to members of certain minority groups? Do you think that colleges or universities should engage in either of these practices? Explain your answers.   Do you have any suggestions that might help colleges and universities form a diverse student body while ensuring that the process is fair to everyone?