|
1.
|
What are the three classifications that, generally, are subject to strict scrutiny?
|
|
Classifications based upon Race, Alienage, and those that unduly burden, discriminate or penalize the exercise of a fundamental right.
|
|
|
|
2.
|
What are the requirements for a statute to survive strict scrutiny?
|
|
It must be: 1. Necessary; 2. To a Compelling Government Interest
|
|
|
|
3.
|
What are the requirements for a statute to survive intermediate scrutiny?
|
|
the statute must be: 1. substantially related;2. to an important government interest
|
|
|
|
4.
|
What are the requirements for a statute to survive rational basis scrutiny?
|
|
the statute must be: 1. rationally related;2. to a legitimate government interest
|
|
|
|
5.
|
What are the three ways that a statute can be shown to be discriminatory?
|
|
1. facial discrimination, 2. disparate enforcement; 3. impermissible motive or intent.
|
|
|
|
6.
|
What are the elements of a suspect class?
|
|
1. unalterable characteristics2. Historically subjected to unequal treatment3. Politically powerless
|
|
|
|
7.
|
What classifications have been held to be "suspect" calling for strict judicial scrutiny under the Equal Protection Clause?
|
|
Race, Alienage, and any classifications that unduly burden, discriminate against, or penalize the exercise of a fundamental right are strictly scrutinized.
|
|
|
|
8.
|
In Loving v. Virginia what did the court determine about racial classifications that treat races equally?
|
|
The court reasoned that any classification based upon race, even if it treats the races equally, should be subject to strict scrutiny.
|
|
|
|
9.
|
Is poverty a suspect class?
|
|
No, wealth is not considered a suspect class unless statutes specifically affect the individual's ability to exercise a fundamental right.
|
|
|
|
10.
|
What are THE two compelling interests that a government may allow racial classification to survive strict scrutiny?
|
|
1. remedying past discrimination and2. enhancing diversity
|
|
|
|
11.
|
are affirmative action programs subject to strict scrutiny?
|
|
Yes, however, they may survive strict scrutiny if they are narrowly tailored to achieve the ends they seek, do not involve a race quota, and there is an adequate showing of specific past discrimination by the entity doing the affirmative action.
|
|
|
|
12.
|
Under what circumstances will a zoning ordinance be considered an improper racial classification?
|
|
Only when it can be proven that the purpose and effect of the ordinance is to exclude members of a racial minority from a residential area. see Arlington Heights v. Metropolitan Housing Development (1977)
|
|
|
|
13.
|
What rule was created by Richmond v. J.A. Croson (1989)?
|
|
an action that creates a race-based classification, even when attempting to remedy past discrimination, must survive strict scrutiny.
|
|
|
|
14.
|
What is "incorporation"?
|
|
the theory by which the enumerated rights of the first 8 Amendments are imposed upon the state by the 14th amendment.
|
|
|
|
15.
|
Through what provision in the Constitution does a right become "incorporated" and thus applicable against the states
|
|
14th Amendment due process clause
|
|
|
|
16.
|
It the Bill of Rights as a whole "incorporated" into the Due Process Clause of the Fourteenth Amendment ?
|
|
No, only the provisions in the Bill of Rights the Supreme Court has deemed "essential to the American scheme of justice"
|
|
|
|
17.
|
Which BIll of Rights provisions have been "incorporated"?
|
|
All of the first eight amendments except:1. the 2nd Amendment right to bear arms;2. the 3rd Amendment right not to have soldiers quartered in one's home; 3. The Fifth Amendment guarantee of a grand jury indictment. 4. the Seventh Amendment guarantee of a jury trial in civil cases5. the eighth amendment ban on excessive fines
|
|
|
|
18.
|
Is there a constitutional provision that explicitly limits private acts by individuals?
|
|
Yes, the 13th Amendment banning slavery
|
|
|
|
19.
|
What does the 14th Amendment provide?
|
|
Due Process and Equal Protection against deprivation of life, liberty, property
|
|
|
|
20.
|
Does the 14th Amendment cover purely private acts of discrimination?
|
|
No.
|
|
|
|
21.
|
What does the 15th Amendment guarantee?
|
|
Right to Vote
|
|
|
|
22.
|
May Congress use its enforcement powers under sec. 5 of the Fourteenth Amendment to modify the scope of that amendment?
|
|
No, scope and modification is determined by the Judiciary's interpretation of the document.
|
|
|
|
23.
|
What limit, if any, is there on Congress' ability to use its enforcement powers under sec. 5 of the Fourteenth Amendment to prevent a state from violating that Amendment?
|
|
There must be a "congruence and proportionality" between the injury to be prevented and the means chosen by the state. i.e. balancing test with demonstrated history of discrimination as justification
|
|
|
|
24.
|
When does state action become an issue?
|
|
When a plaintiff alleges that his constitutional rights have been violated by a private person or entity.
|
|
|
|
25.
|
When does state involvement in private discrimination rise tot eh level of "state action" for constitutional purposes?
|
|
when the state has given the private entity a "mantle of authority" in performing the discrimination or significantly enabled or encouraged the discrimination.
|
|
|
|
26.
|
There are two general types of due process problems. What are they?
|
|
Procedural and Substantive
|
|
|
|
27.
|
How can you tell the difference between a law that raises a due process issue and one that raises an equal protection issue?
|
|
If there is a classification involved then it is most likely an equal protection problem. If theres no classification, but the effect of the state's activity amounts to a deprivation of a liberty or property interest or right, it's a substantive due process problem.
|
|
|
|
28.
|
Procedural due process is required when one is deprived of live, liberty, or property. Is "property" confined to land or chattels?
|
|
No, property may extend to interest in property already acquired, as well as other intangibles.
|
|
|
|
29.
|
Steps in analyzing Procedural Due Process claims?
|
|
1. Has a government action impaired a liberty or property interest? If not, procedural process is not an issue.2. What procedural requirements must be satisfied? (i.e. notice and hearing)
|
|
|
|
30.
|
Define "liberty" as it relates to the Fifth and Fourteenth Amendments.
|
|
the enumerated fundamental rights included in the first 8 amendments of the constitution as well as the unenumerated rights the supreme court has determined to be fundamental through the general reading of the constitution. Encompass three categories: physical freedom, fundamental constitutional rights, and "other" forms of freedom of choice or action.
|
|
|
|
31.
|
What factors determine the procedural safeguards necessary in depriving someone of a liberty or property interest?
|
|
the balancing test of how important the liberty or property interest is and the cost of depriving it versus the importance of the government interest served.
|
|
|
|
32.
|
What's the most common application of procedural due process?
|
|
to individuals accused of a crime.
|
|
|
|
33.
|
Steps to analyze substantive due process?
|
|
1. When legislation impairs a right, ask: Is the right a "fundamental personal right"?2. If yes, then there is a substantive due process issue and the legislation must survive "strict scrutiny" 3. if No, the right is not a fundamental personal right, then there may be a substantive due process issue but the legislation only need to withstand the "rational basis" test.
|
|
|
|
34.
|
Name the rights that are fundamental for substantive due process purposes.
|
|
All right in the first 8 amendments as well as the right to privacy, sexual orientation, contraception, family, marriage, custody, control children, procreation, a protected liberty interest for competent adults to refuse unwanted medical care.
|
|
|
|
35.
|
How are the tests employed in equal protection problems similar to the tests used in substantive due process problems?
|
|
the strict scrutiny and rational basis tests are identical.
|
|
|
|
36.
|
What is the source of the right of privacy?
|
|
It is "penumbral" to the reading of the constitution as a whole...First Amendment (association)Third Amendment (home)Fourth amendment (person and property)Fifth Amendment (self incrimination)Ninth Amendment (non-denial of unenumerated)
|
|
|
|
37.
|
What types of activities are subject to the right of privacy?
|
|
Marriage, Sexual Orientation, Contraception, Abortion, Procreation,Family
|
|
|
|
38.
|
What type of state regulation is permissible on abortions during pregnancy?
|
|
state's may now regulate to promote important health objectives, as long as there is no undue burden on the right to abort. cannot ban previability abortionscan forbid post-viability abortionsinformed consent rules parental consent.
|
|
|
|
39.
|
How important is the division of pregancy into trimesters in today's abortion rights jurisprudence?
|
|
not important at all. The determining factor is viability on the basis of the pregnant woman's doctor which cannot be decided arbitrarily based upon where she is at in the gestation cycle.
|
|
|
|
40.
|
At what point may a state legally prohibit an abortion?
|
|
at the point of viability as determined by the pregnant woman's doctor.
|
|
|
|
41.
|
As a general matter, what is the equal protection guarantee?
|
|
It guarantees that people in the United States will be unjustly discriminated against on the basis of their being a member of some identified class of citizen.
|
|
|
|
42.
|
The Equal Protection Clause applicable to the states is found in the Fourteenth Amendment. Where is the Equal Protection Clause applicable to the federal government found?
|
|
There isn't one. The Equal Protection Clause addresses state action only. However, the Fifth Amendment Due Process Clause is used for most instances of discrimination on the part of the national government.
|
|
|
|
43.
|
How to analyze equal protection issues?
|
|
1. is the action involved a state action?2. If not, is the action involved a federal action? If so, and the area is uniquely federally regulated, it is subject to rational basis. Otherwise, federal actions are treated like state actions for equal protection purposes. 3. If a state action, does the government action create a classification?4. Is the discrimination intentional?5. What's the basis of the classification?
|
|
|
|
44.
|
What are the three levels of scrutiny courts use in analyzing equal protection problems?
|
|
Strict Scrutiny, Intermediate Scrutiny, and Rational Basis
|
|
|
|
45.
|
Is there a constitutional requirement that states outlaw discrimination?
|
|
No, states needn't outlaw discrimination because the Supremacy Clause already does so and they are only forbidden from authorizing of encouraging it.
|
|
|
|
46.
|
When a state discriminates against a non-resident, there may be an equal protection claim, as well as an interstate privileges and immunities claim (Article IV). What are the two principal differences between the two claims?
|
|
Equal protection protects aliens and corporations, as well as citizens and residents of other states. The interstate Privileges & Immunities Clause doesn't protect aliens or corporations.
|
|
|
|
47.
|
What are the three ways in which a statute can be shown to be discriminatory?
|
|
Facially Discriminatory, Discriminatory in Application, impermissible motive or intent.
|
|
|
|
48.
|
What is the strict scrutiny test?
|
|
Necessary to a compelling end
|
|
|
|
49.
|
What are the elements of a suspect class?
|
|
1. Unalterable Characteristics2. Historically subjected to unequal treatment3. Politically powerless.
|
|
|
|
50.
|
What classifications have been held to be "suspect" calling for strict judicial scrutiny under the Equal Protection Clause?
|
|
Race, Alienage, and classifications that unduly burden, discriminate against, or penalize the exercise of a fundamental right.
|
|
|
|
51.
|
Is poverty a suspect class?
|
|
No
|
|
|
|
52.
|
When the government creates a classification based on race, what are the two compelling interests that may allow the classification to survive strict scrutiny?
|
|
Remedying past discrimination and enhancing diversity
|
|
|
|
53.
|
Are affirmative action programs subject to strict scrutiny?
|
|
Yes
|
|
|
|
54.
|
Under what circumstances will a zoning ordinance be considered an improper racial classification?
|
|
Only when it can be proven that the purpose and effect of the ordinance is to exclude members of a racial minority from a residential area.
|
|
|
|
55.
|
A federal court finds, presumptively, that a school district has practiced racial segregation. How can the school district rebut the presumption?
|
|
by showing evidence that the school is racially integrated and provides equal opportunities of education to all students in attendance. 1. disprove segregative intent;2. show past segregation didn't contribute to current conditions; and, 3. show natural geographic barriers that divide school systems
|
|
|
|
56.
|
Is de facto school segregation unconstitutional?
|
|
NO
|
|
|
|
57.
|
Under what circumstances may a federal court lift a school desegregation decree?
|
|
When it has been shown that the school has fully recovered from segregative policies. 1. it has complied with the decree in good faith; and2. the vestiges of past discrimination have been eliminated to the extend practicable.
|
|
|
|
58.
|
What race-conscious measures does Justice Kennedy's concurring opinion in the Parents Involved cases permit for public school districts that seek to avoid schools segregated by race?
|
|
According to Kennedy, a school district may use the following race-conscious methods:1. strategic site selection2. drawing attendance zones with awareness of demographics3. Allocating resources for special programs4. recruiting students and faculty in a targeted fashion5. tracking enrollments
|
|
|
|
59.
|
Analyzing Alienage- (legal alienage)
|
|
1. Fed = Rational Basis2. State + "heart of representative gov" = rational basisState + non-HORG = Strict Scrutiny
|
|
|
|
60.
|
State statutes involving legal aliens are subject to strict scrutiny (except for "right to govern" situations). What about illegal aliens?
|
|
Discrimination against illegal aliens is not subject to strict scrutiny. However, where there's no congressional policy favoring a state rule discriminating against illegal aliens, the state rule must meet "intermediate scrutiny".
|
|
|
|
61.
|
For the purposes of equal protection, what are fundamental rights?
|
|
1. Voting2. Access to courts3. Right to travel4. right to be a political candidate (possibly)
|
|
|
|
62.
|
What standard must a statute meet to withstand intermediate scrutiny?
|
|
Substantially related to an important government interest.
|
|
|
|
63.
|
In the context of classifications based on gender, what governmental interests are considered "important"?
|
|
1. Eliminating past discrimination2. preventing illegitimate teen pregnancies
|
|
|
|
64.
|
Could a state statute discriminating against men violate equal protection?
|
|
Yes, they must survive the same test as statutes discriminating against women.
|
|
|
|
65.
|
What is the rational relation test?
|
|
rationally related to a legitimate end.
|
|
|
