Constitutional Law: Protection of Individual Rights: Equal Protection: Levels of Review

  • Levels of Review under Equal Protection

Rational Basis Review

Intermediate Scrutiny

Strict Scrutiny

Burden on challenger (P)

Burden on government

Burden on government

to show that law is not rationally related to a legitimate government purpose.

to show that law is substantially related to an important government purpose

to show that law is necessary to a compelling government purpose.


Mentally retarded people

Public education

Unrelated people living together


Economic/social welfare measures





Children of illegals[1]



Suspect Class



--National Origin

Fundamental Rights





--Private Education

--Family Relations

--Sexual orientation.
Protected 1st A. rights

Deferential to government

Government’s goal must be important. The court will look at actual purpose.

--Means must be narrowly tailored to achieve outcome.

Actual purpose must be vital, critical, compelling

--means must be necessary to achieve outcome

--court must be persuaded that no less restrictive alternative is available[2]

--Government usually loses when it tries to regulate in this sphere

[1] Children of illegal immigrants. Falls under intermediate scrutiny. They have a narrow, limited right to free public education through 12th grade.

[2] No less restrictive means available. The government must show that the there is no other way it can accomplish this purpose.