4.5.11 Complex Litigation

2 Handouts
-Constitution
-"cheat sheet" on EP Clause

No book for class.
Different subject will be covered each week. Be sure to ask questions and clarifications AS WE GO ALONG.

Constitution- Controls how government treats us.

Amendments-
13th- Eliminated slavery
14th- 1. Due process clause 2. Privileges and Immunity Clause 3. Equal Protection clause
(only one of the three that apply to ALL persons
15th- Allowed freed slaves to vote (women did not get right to vote until 19th Amend. 50 years later)

The Equal Protection Clause- does not say that it must treat everyone equally.
"...does not require absolute equality."

Equal Protection Clause:

EX "All commercial pilots must have 20/20 vision." Does that law impact everyone equally?
Facially neutral? Yes. Disparate impact? Yes. Eldery. Does NOT violate EPC

Even if it is discriminatory it may still survive EPC test.
If government can give a compelling reason for discrimination the law stands.

Laws which descriminate on the basis of race and are upheld are rare.
EX Attica riots. After which races were segregated for SAFETY. Upheld.

Arbitrary, capricious or unreasonable discrimination or facially neutral with merely a disparate impact? Is discrimination among similarly situated citizens?

I. Strict scrutiny for "Compelling" government interest ("microscope")
II. Medium scrutiny for "important" government interest
III. Reasonable relationship to "legitimate" government interest ("sniff")

I. Suspect class (race, religion, national origin)
-or-
Fundamental right (1st Amend. rights, 4-8th Amend. criminal procedure rights, privacy, voting, interstate travel, education (minority view.))

II. Age, legitimacy, gender, sexual preference. (Many states have elevated gender and sexual preference to suspect class level.)

III. Everybody else.

Answering EPC essay questions:
1. Why was the person denied?
2.State the law
3. Similarly situated? -If not similarly situated then EPC does not apply.
4. Is it facially neutral? or discriminatory?
5. Is there a disparate impact?
6. Discuss- Apply appropriate level of scrutiny. Does the government have a Compelling/Important/or Legitimate interest?

Case List
San Antonio v. Rodriguez (1973)

Washington v. Davis (1976)

Village of Arlington Heights v. Metropolitan Dev. Corp. (1977)

Personnel Admin of Mass v. Feeney (1979)

Craig v. Boren (1976)

Brown v. Bd. of Education (1954) -"Segregation may effect their hearts and minds in a way unlikely to ever be undone." "Separate educational facilities are inherently unequal."

Plessy v. Ferguson (1896) - Railroad segregation, "separate but equal".

Dred Scott v. Sanford (1857) -Slave taken from slave state to free state, does "property" change its nature?

Korematsu v. U.S. (1944) -Internment camps for American citizens of Japanese descent upheld.

Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) -Bussing to desegregate. Lead to "white flight" to suburbs.

Milliken v. Bradley (1974) -Gov't cannot segregate, but may self-segregate. "De facto" v. "de jure (govt)" segregation. Supreme court has a duty to "remove root and branch" of discrimination.

Regents of University of California v. Bakke (1978) -reverse discrimination, med school. 1. Quota systems? NO 2. Race can never be considered at all? YES Judges split down the middle. Justice Lewis Powell deciding vote. Use EPC to correct violation of EPC? "Benign discrimination". "Traditional indicia of suspectness", not denied benefit, only the number of people is effected.

Bradwell v. Illinois (1873)

Reed v. Reed (1971) - Idaho, men over women for administration of probate estates. Did not stand.

Women
"Romantic Paternalism". Not discrimination- protection!