Comparing Levels of Scrutiny

Scrutiny Rational Basis Rational Basis

Plus
Strict Scrutiny
for race, not claimed
to be benign
Strict Scrutiny
for Affirmative
Action
Intermediate
Scrutiny
Intermediate
Scrutiny:
Real Sex
Diffs.
State Interest legitimate
almost anything will
do, even if imagined
by the Court
legitimate but
cannot be driven
by bare desire to
harm group or
animus
compelling
-Risk of imminent
death/violence
-National security
compelling
-Diversity
-Past
discrimination
-National
security
important important-
ish
Fit rationally related;
Court is highly
deferential, will
invent argument for
state
rationally
related but Ct
carefully
scrutinizes fit, in
under/over
inclusive, Ct.
may infer animus
necessary; non-
racial alternatives
exhausted
Fit so close that
little or no
possibility that
illegitimate
racial prejudice
or stereotypes
motivate
substantially
related
substantial
Who bears
the burden of
establishing?
Challenger: Heavy
Presumption of
constitutionality.
Demonstrate
scheme is not
rationally related to
any legit. State
interest
State: either
triggered by some
social groups or
by s prima
facie showing of
animus. Must
establish the
REAL reason
State: Heavy
presumption of
unconstitutionality
State: some
deference to state
regarding the
importance of
state interest and
fit (See Grutter
& Adarand).
State; and the
Court will
pick it out
piece by piece
State,
nominally.
Court defers
to states
conclusions
Purpose Prevent truly
arbitrary exercise of
state power
Protect
disfavored groups
from attempts to
restrict their
rights/liberties by
hostile majorities

Comparing Classifications
Immutable
characteristic
Historically disadvantaged
group
Stigma Discrete/
Insular
Numerical
minority
Stereotypes
Racial Minority X X X X X X
Sex X X X
Alienage ? X X X X
Disability X X X X? X X
Age X
Wealth ? X X X X X
Sexual
Orientation
X X X X



Final Exam Flow Chart
State Action
There is state action if:
1. private actors performing public functions (democratic party excludes Asians from voting in primary)
2. Entanglement (Fashion Valley leases land from city and city provides free parking and Marsh is arrested for trespass when
handing out leaflets)

EPC or SDP/Fundamental Right??

Does the law classify on the basis of a suspect class?

EPC: If classifies on the basis on National Origin, Ethnicity, Alienage, or Race, then subject to Strict Scrutiny
SDP: if restricts a fundamental right (either in Constitution or named by Court)
To determine if something is a fundamental right, must do History & Tradition Analysis

Strict Scrutiny Test:
A law that classifies people on the basis of race fails unless, the government has a compelling state interest (that is a non-racial and
permissible state interest) and the law is necessary to achieve that state interest.
State interest (ends): Does the state have a compelling state interest?
FIT (means): Is the use of race as a classification necessary to achieving that interest and are there no non-racial means available to
achieve that interest?

Affirmative Action: legitimate state interests can be remedying past discrimination or diversity in higher education

If classifies on the basis of gender or legitimacy, then subject to Intermediate Scrutiny.
Intermediate Scrutiny Test
A law that classifies on the basis of gender must have an important state interest and the law must be substantially related to that
state interest.
State Interest
According to VMI, these are NOT valid, important state interests
-no invented or post hoc justifications
-hypothesized effects
-justifications based on stereotyped differences

-State interests pursued just for one sex

Court never says it uses strict scrutiny, but it will strike down laws that
Deny women opportunities that men have
Deny men opportunities or liberties that men have if based on archaic views of men and women roles or gross statistical
generalizations
Court will uphold laws that benefit women if truly remedial & not based on stereotypes

Real Sex Differences
Ct will uphold sex differentiations if
1. Plausibly tied to "real (biological) differences"
Pregnancy, child rearing (get rest from PP)
2. St has institutional reasons to defer to judgment of another branch of govt
Military, immigration
3. Law doesnt advantage or disadvantage men or women and just has a classification in it
**Compromised position
Race is artificial classification is artificial and irrelevant
Most ppl think there are some differences based on sex in ways that are relevant to law making
-Craig v. boren- looks like Ct is ahead of where nation is(ERA never ratified)
Ppl are uncomfortable with idea that men and women are the same
-ct in real sex differences cases comes into line with general population American moderate position
Real Sex differences cases are a big exception to Ct's intermediate scrutiny

Rational Basis is the rule and almost all classifications receive rational basis scrutiny (heightened scrutiny are exceptions)
Rational Basis Test
Laws classification is rationally related to a legitimate state interest.
The asserted state interest doesnt need to the state interest that actually motivated the law. The Court will often imagine
possible state interests: advocates can invent possible rationales.

In some circumstances, the Court says it is applying Rational Basis Scrutiny, but it is more critical in its review.
Rational Basis Plus
Laws classification is rationally related to a legitimate state interest.
but cannot be driven by bare desire to harm group or animus
Must establish the REAL reason behind the law
Ct carefully scrutinizes fit, in under/over inclusive, Ct. may infer animus

If the law is facially neutral, then the must prove that the state purposely discriminated
Facially discriminatory:
No blacks on juries
Whites and Blacks must attend separate schools
Whites may only marry whites
Facially Neutral
Ban on wooden laundries
Changed city boundaries
Test 21: reading comprehension and vocabulary test for police officers
For a facially neutral law to violate the EPC, must have discriminatory results and discriminatory intent
Arlington Heights factors to show Discriminatory Purpose (B/C of not in spite of discriminatory effect)
1. A clear pattern of racially disparate impact that is inexplicable on other grounds
2. Historical background of decision reveals evidence of racial invidiousness
3. Sequence of events leading up to decisions (what events sparked the action)
4. Departures from normal procedure
5. Substantive departures from prior policy-making standards
6. Legislative History contemporary statements by decision makers, minutes and/or reports
If there is are discriminatory results and discriminatory purpose, then use heightened scrutiny (depending on the
classification)

Under-inclusivity: The law does not restrict persons or activities that pose the same or similar risk of harm as those that are restricted.





Over-inclusivity: Some members of the restricted class pose no risk of harm at all.


State Interest
Classification
Classification

State
Interest