Equal Protection

Jody BlankeDistinguished Professor of Computer Information Systems and LawMercer University

Fourteenth Amendment

“No state shall … deny to any person within its jurisdiction the equal protection of the law.”

Equal Protection

Can a state ever pass a law that treats black people differently than white people?

Rational Basis Test Strict Scrutiny Test

Intermediate Scrutiny

Equal Protection

Rational Basis Test applies if no suspect class or

fundamental liberty interest is involved i.e., a good reason State v. Ri-Mel (1987)

Minnesota required all for-profit health clubs to post a bond – no such requirement for not-for-profit health clubs

Equal Protection Strict Scrutiny Test

applies if a suspect class or fundamental liberty interest is involved, e.g., race or religion

there must be a “compelling state interest” i.e., a very, very, very good reason Affirmative action

Grutter v. Bollinger (2003) – U. Mich. Law School Gratz v. Bollinger (2003) - undergraduate

Equal Protection Intermediate Level Scrutiny

applies to protected class, i.e., not quite a suspect class, e.g., gender or age

classification must be “reasonably related” to legitimate government purpose

i.e., a very, very good reason Craig v. Boren (1976)

Oklahoma law prohibited the sale of 3.2% beer to males under 21 and females under 18

.18% of females and 2% of 18-20-year olds were arrested for DUI

Fisher v. Univ. of Texas (2013)

7-1 majority remanded the case for further review under a more demanding standard that will require colleges and universities to demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.

Fisher v. Univ. of Texas (2013)

Justice Kennedy’s majority opinion: “Strict scrutiny does not permit a court

to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”

Fisher v. Univ. of Texas (2013)

Justice Thomas’s concurring opinion: “Grutter was a radical departure from our strict-scrutiny

precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination.”

“Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination.”

“I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.”

Fisher v. Univ. of Texas (2013)

Justice Ginsburg’s dissenting opinion: “The Court rightly declines to cast off the equal

protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to ‘assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.’ As I see it, the Court of Appeals has already completed that inquiry. . . . For the reasons stated, I would affirm the judgment of the Court of Appeals.”

Fisher v. Univ. of Texas (remand)

The Fifth Circuit again found in favor of the Univ. of Texas

The Supreme Court will hear arguments on Dec. 9, 2015