Constitutional Law and Student Civil Liberties

LESSON 20: MORE EQUAL PROTECTION ISSUES

The previous lesson focused on the Equal Protection clause as applied to issues involving race in an educational setting. In this section, we will expand our understanding and application of the Equal Protection clause and apply it to issues that involve discrimination based on race outside of an educational setting, gender, age, political affiliation and other classifications.

Consider a restaurant has a sign that says, “We reserve the right to refuse service to anyone.” What if they exercised that “right” by only serving men? Or refused to serve Asians? Would that be allowed? Is a restaurant a public place? Restaurants are not owned or run by the government, they are almost always privately owned, but they are open to the public. Should they be required to serve everyone?

What about a country club where one must be a member? Can the club control its own membership? What does it depend on? For example, a group of women in a neighborhood get together at each other’s homes for a book club focusing on feminist literature. Should they be required by law to let a man into their club? What about a much larger club or association? Do they have the right to be exclusive in their membership?

Consider each of the following situations. Is there different treatment for one class of people? Is the treatment fair? If there is discrimination, do you think it violates the Fourteenth Amendment?

1. An all male college offers the best computer programing training in the world. The college does not admit women.
2. Students who are residents in New Mexico pay lower tuition at the University of New Mexico than out-of-state students.
3. Juveniles and adults have separate court systems.

When considering these situations, what criteria did you come up with to determine whether or not different treatment was fair?

Through a series of cases, the Supreme Court has developed tests to apply to new facts (cases) to determine whether or not a law that treats a group of people differently from others violates the equal protection clause of the Fourteenth Amendment.

First, they ask a series of questions to determine which test should be applied.

1. Is there discrimination? Is a law or government action treating one group of people differently than other groups?

2. Determine the classification of the group. For example, is it based on age, race, gender, national origin?

3. Apply the appropriate test or “level of scrutiny” for that classification.

Tests or “Levels of Scrutiny”

If the classification is based

on

- race,

- national origin,

- alienage,

- or voting

Apply strict scrutiny

apply strict scrutiny If the law is based on

- gender

- illegitimacy

- or undocumented

alien children

Apply intermediate scrutiny

If the law is based on

- age

- handicap

- wealth

- political affiliation

- all other

Apply rational basis test

Strict scrutiny says a law must be necessary to achieve a compelling government purpose.

Intermediate scrutiny says the law must be substantially related to an important government purpose.

Rational basis test says the law must be rationally related to a legitimate government interest.

CASES AND APPLICATION

Here are some examples of discrimination cases that have been decided through the courts.

Case 1: In 1886, a time when people of Chinese ancestry were facing discrimination in San Francisco, the city required laundry business to be in brick or stone buildings unless the owner of the laundry obtains a waiver from the board of supervisors. The board has denied requests for waivers from over 200 laundry owners of Chinese ancestry and all but one request for waiver from non-Chinese owners had been granted.

Analysis:

1. Does the law discriminate or treat one group of people differently from another group?

No, not on its face. The law was probably passed to reduce the amount of fires caused by laundry equipment. However, the way the waivers are granted does appear to be discriminatory against people of Chinese ancestry. Therefore the law is discriminatory in

its practice.

2. What is the classification?

Race. The board is treating people of Chinese ancestry different from others.

3. What level of scrutiny does race get?

Strict. Strict scrutiny requires we show that the purpose that the law serves is necessary to serve a compelling government interest. If you are the attorney for the city, you would argue that the prevention of fires in laundry facilities is a very compelling interest. You would offer evidence of the number of firs caused each year by laundries, the dangerousness of the equipment and how the fires do not spread as fast in a stone or brick building.

Second, show that the law is necessary to achieve that interest. How does the system of granting waivers for this law work? Does it consider whether a laundry business is close to other buildings (in which case the fire would spread to other businesses) or do they just look at ancestry? If there is no criteria (as appears here) than the law is not necessary to achieve that interest.

Case 2: An Oklahoma law made the drinking age 21 for males and 18 for females in 1976. Arrests for driving under the influence and drunkenness for males age 18-20 substantially exceeded the arrests for females of the same age. Youth aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males exceeding females in this area. Also, a random roadside survey indicated that young males were more inclined to drive and drink beer than their female counterparts.

Case 3: A state makes the driving age 16.

Case 4: A law requires the race of candidates to be listed on the voting ballot next to the candidate’s name.