Constitutional Law: Protection of Individual Rights: Equal Protection: Racial Classifications

  • Equal Protection: Racial Classifications- generally, purposeful, intentional discrimination must be shown in order to trigger strict scrutiny. Discriminatory impact alone is not enough.
    • Wash v. Davis – police qualifying test. Black applicants were 4x more likely than white applicants to fail. There was a discriminatory effect, but no purposeful discrimination.
    • Segregation: De Jure – intentional. Racial segregation for it to be unconstitutional, all public areas. But where De facto (no discriminatory purpose) segregation, equal protection is not violated.
    • Bussing: may be used to achieve racial desegregation. Racial quotas may be used to bus children, but if it appears on MBE, look for fact that says, “bussing must be used as a temporary measure.”
    • Benign/compensatory discrimination: (employment, college admissions, voting rights, quota systems, promotion preferences) a.k.a. AFFIRMATIVE ACTION.
      • Rule: Race based affirmative action plans are subject to strict scrutiny.
        • If you are dealing with a state entity using affirmative action = strict scrutiny.
      • Quotas: virtually all race-based set-asides/quotas will be held unconstitutional to remedy past discrimination.
        • They are not necessary to achieve a compelling government interest.
        • Numerical goals are favored.
        • Clear proof of past discrimination in that particular institution.
        • Educational institutions may use race, as 1 factor, among many others, in admissions decisions to help minorities.
          • Colleges may not assign points or set aside slots just for minority applicants.
        • Seniority systems may not be disrupted for affirmative action – usual rule is last hired, first fired.