1. The Equal Protection Clause is part of the 14th Amendment.
2. It provides that "[n]o state shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws."

1. The Clause, was enacted shortly after the Civil War, and its primary goal was to attain free and equal treatment for ex-slaves.
2. But it has always been interpreted as imposing a general restraint on the governmental use of classifications
3. Not just classifications based on race but also those based on sex, alienage, illegitimacy, wealth, or any other characteristic.
4. State and federal:
1. The direct text of the Clause, of course, applies only to state governments.
2. But the federal government is also bound by the same rules of equal protection by the indirect means of the Fifth Amendment’s Due Process Clause.
5. Government action only:
1. The Equal Protection Clause, applies only to government action, not to action by private citizens.
2. This is commonly referred to as the requirement of "state action.
6. Making of classes:
1. The Equal Protection Clause is only implicated where the government makes a classification.
2. It’s not implicated where the government merely decides which of two classes a particular person falls into.
7. "As applied" vs. "facial":
1. A classification clearly written into the statute or regulation is potentially a violation by the statute or regulation "on its face."
2. If it is claimed that the statute does not make a classification on its face, but is being administered in a purposefully discriminatory way, then he is claiming that the statute or regulation is a violation of equal protection "as applied."

The Equal Protection Clause also guarantees that people who are not similarly situated will not be treated similarly.

1. The classification must satisfy two easy tests:
1. The government must be pursuing a legitimate governmental objective; and
2. There must be a rational relation between the classification and that objective.
1. Whether there is a rational relation depends upon
1. The relation will always be rational so long as
2. It is not based on a "suspect classification";
3. It does not involve a "quasi-suspect" category that the Court has implicitly recognized (principally gender and illegitimacy); and
4. It doesn't impair a "fundamental right.
2. Almost every economic regulation will be reviewed under this easy-to-satisfy standard.

1. The Court will give "strict scrutiny" to any statute which is based on a "suspect classification" or which impairs a "fundamental right."
2. A classification based on race is a classic example of a "suspect class";
3. The right to vote is an example of a fundamental right.
4. Standard: Where strict scrutiny is invoked, the classification will be upheld only if it is necessary to promote a compelling governmental interest.
1. The objective must be an extremely important one
2. The "fit" between the means and the end must be extremely tight.

1. More probing than "mere rationality" but less demanding than "strict scrutiny".
2. Mainly used for cases involving classifications based on gender and illegitimacy.
3. Standard:
1. The means chosen by the legislature (i.e., the classification) must be substantially related to an important governmental objective.
2. So the legislative objective must be "important" (but not necessarily "compelling," as for strict scrutiny),
3. Means and end must be "substantially related" (easier to satisfy than the almost perfect "necessary" fit between means and end in strict scrutiny situations).

1. Mere rationality:
1. Here, as noted, courts use the "mere rationality" standard.
2. As long as there is some rational relation between the classification drawn by the legislature and some legitimate legislative objective, the classification scheme will not violate the Equal Protection Clause.

Need not be actual objective:

The "legitimate government objective" part of the test is satisfied even if the statute’s defenders come up with merely a "hypothetical" objective that the legislature "might have" been pursuing.

The government does not have to show that the objective it’s pointing to was the one that actually motivated the legislature.

No empirical link:

There does not have to in fact be even a "rational relation" between the means chosen and the end.

All that’s required is that the legislature "could have rationally believed" that there was a link between the means and the end.

Loose fit: Finally, a very loose fit between means and end is enough.

3. Non-suspect classes: Here is a partial list of classifications that have been held not to involve a suspect or quasi-suspect class:
1. Age:
1. Example:
1. Suppose Texas requires all Texas Rangers over 50 to retire, in order preserve a physically fit force.
2. Because age is not a suspect or quasi-suspect classification, the "mere rationality" test will be used.
3. Because there is some slight overall relation between age and fitness, this requirement is satisfied, so the retirement rule does not violate equal protection. [Massachusetts Board of Retirement v. Murgia]
2. Wealth:
1. Suppose that Texas provides that no low-income housing project may be built in any community unless a majority of the voters approve it in a popular referendum.
2. A resident who would like to live in the low-income housing that would be built if allowed challenges the statute on equal protection grounds.
3. Even if P shows that the statute was motivated by a desire to discriminate against the poor, P’s constitutional challenge will probably fail.
1. Wealth is not a suspect or quasi-suspect class
2. The court will use "mere rationality" review, and will uphold the statute if it finds that the legislature could reasonably have believed that its statute might help achieve some legitimate state objective, perhaps letting communities avoid the greater governmental cost that arguably accompanies concentrations of low-income residents.
3. Mental condition:
1. A city makes it harder for group homes for the mentally retarded to achieve zoning permission than for other group living arrangements to do so.
2. This classification, based upon mental status, will not be treated as suspect or quasi-suspect, and will thus be subject only to "mere rationality" review.
3. However, such a zoning procedure was found to violate even "mere rationality," in City of Cleburne v. Cleburne Living Center.
4. Sexual orientation:
1. Thus states face only mere-rationality review if they treat homosexuals differently from heterosexuals.
2. Mere rationality "with bite": But the Court now seems to review anti-gay legislation a bit more skeptically than most legislation not involving a semi-suspect or suspect class, even though gays still don’t have suspect or semi-suspect status.
3. Example:
4. Texas amends its constitution to prohibit any state or local law that protects homosexuals against discrimination on the basis of their sexual orientation or conduct.
5. Held, based upon Romer v. Evans this amendment probably violates gays’ equal protection rights — it’s not even minimally rational, and is motivated solely by animus towards gays.

1. We apply strict scrutiny for any classification that involves a "suspect class."
2. There are only three suspect classes generally recognized by the Supreme Court:
1. race;
2. national origin; and
3. alienage.
3. Purposeful:
1. Strict scrutiny will only be applied where the differential treatment of the class is intentional on the part of the government.
2. If the government enacts a statute or regulation that merely has the unintended incidental effect of burdening, say, African Americans worse than whites, the court will not use strict scrutiny. [Washington v. Davis]
3. This is probably the most frequently-tested aspect of suspect classifications.
4. Example:
5. Facts:
1. Suppose Nacogdoches gives a standardized test to all applicants for the local police force.
2. It turns out that many fewer African Americans pass than whites, even though the applicant pools otherwise seem identical.
3. Held: This differential will not trigger strict scrutiny, unless it can be shown that the government intended to treat African Americans differently than whites.

Circumstantial evidence:

An intent to classify based on a suspect class can be proven by circumstantial, not just direct, evidence.

Example:

The Nacogdoches police force picks new officers based on a personal interview conducted by the police chief

Over five years it turns out that only 1% of African American applicants receive jobs but 25% of whites do

There is no apparent objective difference in the black versus white applicant pools

This statistical disparity could furnish circumstantial evidence of purposeful discrimination, which would then allow a court to apply strict scrutiny to the selection procedures.

4. Invidious:
1. In addition to the requirement that the discrimination be "purposeful," it must also be "invidious," i.e., based on prejudice or tending to denigrate the disfavored class.
2. This requirement is what has caused race, national origin, and (for some purposes) alienage to be the only suspect classes — these involve the only minorities against whom popular prejudice is sufficiently deep.
3. Rationale:
4. Ordinarily, groups will protect themselves through use of the political process, but:
1. These particular groups don’t usually have very much political power, because the past discrimination against them has included keeping them out of the voting system; and
2. Even if the minority votes in proportion to its numbers, the majority is very likely to vote as a block against it, because of the minority’s extreme unpopularity.
3. "Discrete and insular" minority:
4. Discrete and insular minorities are ones that are so disfavored and out of the political mainstream that the courts must make extra efforts to protect them, because the political system won’t.
5. Traits showing suspectness:
1. Immutability: If the class is based on an immutable or unchangeable trait, this makes a finding of suspectness more likely.
1. Race and national origin qualify; wealth does not.
2. The idea seems to be that if you can’t change the trait, it’s especially unfair to have it be the basis of discrimination.
2. Stereotypes: If the class or trait is one as to which there’s a prevalence of false and disparaging stereotypes, this makes a finding of suspectness more likely.
3. Political powerlessness: If the class is politically powerless, or has been subjected to widespread discrimination (especially official discrimination) historically, this makes it more likely to be suspect.
6. "Separate but equal" as invidious:
1. Even if a classification involves a group that has frequently been discriminated against, the classification’s defenders may argue that their particular use of the classification is not "invidious" because it’s not intended to disadvantage the class.
1. Affirmative action is one example where this argument might be raised.
2. Another context in which the requirement that the discrimination be "invidious" arises is the "separate but equal" situation; in this context, the defenders of the classification claim that although both classes are treated differently, the unpopular class is being treated no "worse."
2. In general, the Court now seems to hold that discrimination based on race or national origin is "per se" invidious; for instance, the argument that the races are being treated "separately but equally" will almost never serve as a successful defense to an Equal Protection problem.
3. Example:
1. Facts:
1. Suppose Texas forbids interracial marriage.
2. It claims that blacks aren’t disfavored, because whites are blocked from marrying blacks just as much as blacks are blocked from marrying whites.
2. Held,: Following Loving v. Virginia, the statute’s legislative history will probably show that it was enacted to protect the "racial purity" of whites (not a compelling state interest), so the classification is invidious and violates Equal Protection.
5. Strict equals fatal: Once the court does decide that a suspect classification is involved, and that strict scrutiny must be used, that scrutiny is almost always fatal to the classification scheme. For instance, no purposeful racial or ethnic classification has survived strict scrutiny since 1944.
1. "Necessary" prong: Sometimes, this is because the state cannot show that it is pursuing a "compelling" objective. But more often, it’s because the means chosen is not shown to be "necessary" to achieve that compelling objective. A means is only "necessary" for achieving the particular objective if there are no less discriminatory alternatives that will accomplish the goal as well, or almost as well.
2. Example: Suppose Pearl Harbor occurred today, and the U.S. government once again put any citizen of Japanese ancestry into an internment camp. Presumably this would not be a "necessary" means of dealing with the danger of treason and sabotage, because less discriminatory alternatives like frequent document inspections and/or loyalty oaths would be almost as effective as virtual imprisonment.
6. Some examples: Here are two contexts in which claims have been made (and in most instances accepted) that a suspect class has been intentionally discriminated against in violation of Equal Protection:
1. Child custody and adoption:
1. Some notion of "racial compatibility" or "racial purity" may motivate state officials to differentiate based on race in child custody and adoption proceedings.
2. In general, the practical rule is that the state may not impose flat rules that handle child custody and adoption differently based solely on the race of the child and parents.
3. Example:
1. Facts
1. Mother and Father are divorced, and Mother is given custody of Child.
2. All are white.
3. Mother then marries Husband, who is African American.
4. The family court transfers custody to Father, on the grounds that Child will be socially stigmatized if she grows up in an interracial family.
2. Held, this custody decision can’t survive strict scrutiny — government may not bow to private racial prejudices. [Palmore v. Sidoti]
2. Political process: Actions taken by government that are intended to disadvantage racial or ethnic minorities in the political process often run afoul of Equal Protection.
1. Example:
1. A state requires that in every election, each candidate’s race must appear on the ballot.
2. Held, this violates Equal Protection because it was motivated by a desire to keep African Americans out of office. [Anderson v. Martin]
3. Segregation: The clearest example of a classification involving a suspect class and thus requiring strict scrutiny is segregation.
1. General rule:
1. Official, intentional segregation based on race or national origin is a violation of the Equal Protection Clause.
2. As the result of Brown v. Board of Education, even if the government were to maintain truly "separate but equal" facilities (in the sense that, say, a school for blacks had as nice a building, as qualified teachers, etc., as a school for whites), the intentional maintenance of separate facilities per se violates the Equal Protection Clause.
2. Education and housing: The two areas where official segregation is most often found are education and housing.
1. Education: Thus if a school board establishes attendance zones for the purpose of making one school heavily African American and/or Hispanic, and another school heavily white, this would violate Equal Protection.
2. Housing: Similarly, government may not intentionally segregate in housing.
1. For example, it’s a violation of Equal Protection for a city to do its zoning in such a way that all government-subsidized housing is built in the heavily black part of town, if the intent of this zoning practice is to maintain racial segregation.
3. Must be de jure:
1. But it’s critical to remember that there is a violation of equal protection only where the segregation is the result of intentional government action.
2. In other words, the segregation must be "de jure," not merely "de facto."
3. Example:
1. School district lines are drawn by officials who have no desire to separate students based on race.
2. Over time, due to housing choices made by private individuals, one district becomes fully African American, and the other all-white.
3. Even though the schools are no longer racially balanced, there has been no equal protection violation, because there was no act of intentional separation on the part of the government. Board of Educ. v. Dowell.
4. Wide remedies: If a court finds that there has been intentional segregation, it has a wide range of remedies to choose from.
1. For instance, it can bus students to a non-neighborhood school, or order the redrawing of district boundaries.
2. But whatever remedy the court chooses, the remedy must stop once the effects of the original intentional discrimination have been eradicated. (Then, if because of housing patterns or other non-government action, the schools become resegregated, the court may not reinstitute its remedies.)
7. RACE-CONSCIOUS AFFIRMATIVE ACTION
1. Public entity: there can only be a violation of equal protection if there’s state action, that is, action by the federal government or by a state or municipality.
2. Strict scrutiny: It is now the case that any affirmative action program that classifies on the basis of race will be strictly scrutinized. [Richmond v. J.A. Croson Co.]
1. So a race-conscious affirmative action plan, whether it’s in the area of employment, college admissions, voting rights or anywhere else, must be adopted
1. For the purpose of furthering some "compelling" governmental interest, and
2. The racial classification must be "necessary" to achieve that compelling governmental interest.
3. Past discrimination:
1. Since a race-conscious affirmative action plan will have to be in pursuit of a "compelling" governmental interest, probably the only interest that could ever qualify is the government’s interest in redressing past discrimination.
2. So if the government is merely trying to get a balanced work force, to get racial diversity in a university, to make African Americans more economically successful, or any other objective that is not closely tied to undoing clear past discrimination, the government interest is not compelling, and the measure flunks the strict scrutiny test."
4. Clear evidence: Even if the government’s trying to redress past discrimination, there’s got to be clear evidence that this discrimination in fact occurred.
5. Societal discrimination:
1. Redressing past discrimination "by society as a whole" will not suffice.
2. There must be past discrimination closely related to the problem, typically discrimination by government.
6. Quotas:
1. One device that is especially vulnerable to Equal Protection attack is the racially-based quota.
2. A racially-based quota is an inflexible number of admissions slots, dollar amounts, or other "goodies" set aside for minorities.
3. For instance, it’s a quota if the state says that 1/2 of all new hires in the police department must be African American, or if it says that 20% of all seats in the public university’s law school class will be set aside for African Americans and Hispanics.
4. Probably virtually all racially-based quotas will be struck down even where the government is trying to eradicate the effects of past discrimination — the Court will probably say that a quota is not "necessary" to remedy discrimination, because more flexible "goals" can do the job.
7. Possibly greater deference: The Court might give slightly greater deference to a congressional finding that official discrimination had existed in a particular domain, or that a particular race-conscious remedy was required, than it would to a comparable finding by a state or local government. (We don’t know yet whether this greater deference would occur.)
8. Some contexts:
1. Preferential admissions:
1. Any scheme which gives a preference to one racial group for admission to a public university has to be strictly scrutinized.
2. Certainly a scheme that reserves a fixed number of slots in a school for minorities would be a quota, and would almost certainly be unconstitutional. [Regents of Univ. of Cal. v. Bakke].
3. Even if there is no quota, however, and race is simply considered as one factor among many, the scheme might well be ruled unconstitutional.
4. Socioeconomically deprived: But a school could give special preference for "socioeconomically deprived" applicants, even if it turned out that a disproportionate number of these applicants were African American, so long as the intent was not to prefer blacks.
5. Recruitment: Also, a school can probably aggressively recruit in black neighborhoods, as long as it does not systematically prefer African American applicants over white applicants.
2. Minority set-asides: Minority set-asides, by which some percentage of publicly-funded contracts are reserved for minority-owned businesses, will be subjected to scrutiny and generally struck down.
3. Employment: Anytime a public employer gives an intentional preference to one racial group, strict scrutiny will probably be called for.
1. Layoffs: If the employer intentionally prefers blacks over whites when it administers layoffs, that preference will almost certainly be unconstitutional. [Wygant v. Jackson Bd. of Ed.]
2. Hiring: A racial preference in hiring is almost as hard to justify
3. Might pass muster if that particular public employer had clearly discriminated against African Americans in the past, and there seemed to be no way short of a racial preference in hiring to redress that past discrimination.
4. Promotions:
1. A race-based scheme of awarding promotions to cure past discrimination (so that African Americans eventually get promoted to the levels that they would have been at had there not been any discrimination in the first place) is the easiest to justify, since it damages the expectations of whites the least.
2. But even this will have to satisfy strict scrutiny.
4. Drawing of election districts:
1. The plaintiff must show either:
1. That the lines were drawn with the purpose and effect of disadvantaging the group of which P is a part; or
2. That race was the "predominant factor" in how the district lines were drawn.
2. Loss at election not sufficient: The mere fact that the plaintiff group (e.g., whites) does not get the same percentage of seats as it has of the total group can never by itself satisfy the "discriminatory effect" part of test (1) above.
1. The Ps must show that they lack political power, and have been fenced out of the political process, over many elections.
2. Example:
1. Suppose a group of white voters claims that district lines have been drawn to increase the chance that an African American will be elected in a particular district.
2. Even if the Ps can show this, and show that a black was in fact elected, without more the Ps will lose — only if the Ps can show that they have been consistently denied fair participation in the electoral process, over the course of multiple elections (something white voters can rarely show) can the Ps win.
3. Race as predominant factor:
1. But if the court concludes that race was the predominate factor in how the electoral district lines were drawn, the court will strictly scrutinize the lines, and probably strike them down.
2. Legislatures may "take account" of race in drawing district lines (just as they take account of ethnic groups, precinct lines, and many other factors), but they may not make race the predominant factor, unless they can show that using race in this way is necessary to achieve a compelling governmental interest (e.g., eradication of prior official voting-rights discrimination).
3. The desire to create the maximum number of "majority black" districts will not by itself be a "compelling" interest. [Miller v. Johnson]

1. In General
1. Standard: Where we apply the middle-level standard, the government objective must be "important," and the means must be "substantially related" to that objective.
2. No hypothetical objective:
1. In the case of the easy "mere rationality" review, the Court will consider virtually any objective that might have conceivably motivated the legislature, regardless of whether there’s any evidence that that objective was in fact in the legislature’s mind.
2. But with "intermediate-level" review, the Court will not hypothesize objectives; it will consider only those objectives that are shown to have actually motivated the legislature.
3. What classes: There are two main types of classifications that get middle-level review:
1. gender; and
2. illegitimacy.
4. Alienage has aspects of both strict scrutiny and mere rationality, so it’s kind of a hybrid.
2. Gender: Craig v. Boren, if government intentionally classifies on the basis of sex, it’s got to show that it’s pursuing an important objective, and that the sex-based classification scheme is substantially related to that objective.
1. Example:
1. Suppose Nacogdoches sets the mandatory retirement age for male public school teachers at 65, and for female teachers at 62.
2. Because this classification is based upon gender, it must satisfy middle-level review: City must show that its sex-based classification is substantially related to the achievement of an important governmental objective.
3. Held: it is unlikely that City can make this showing.
2. Benign as well as invidious: The same standard of review is used whether the sex-based classification is "invidious" (intended to harm women) or "benign" (intended to help women, or even intended to redress past discrimination against them).
3. Male or female plaintiff: This means that where government classifies based on sex, the scheme can be attacked either by a male or by a female, and either gender will get the benefit of mid-level review.
1. Example:
2. Suppose Texas forbids the sale of low-alcohol beer to males under the age of 30, and to females under the age of 21.
3. Held, this statute probably violates the equal protection rights of males aged 21 to thirty, because it is not substantially related to the achievement of important governmental objectives. [Craig v. Boren]
4. Purpose:
1. Sex-based classifications will only be subjected to middle-level review if the legislature has intentionally discriminated against one sex in favor of the other.
2. If, as the result of some governmental act, one sex happens to suffer an unintended burden greater than the other sex suffers, that’s not enough for mid-level review.
1. Example:
1. Massachusetts gives an absolute preference to veterans for civil service jobs. It happens that 98% of veterans are male.
2. Held,
1. This preference does not have to satisfy mid-level review because the unfavorable impact on women was not intended by the legislature.
2. Therefore, the preference does not violate equal protection, since it satisfies the easier "mere rationality" standard. [Personnel Admin. of Mass. v. Feeney]
5. Stereotypes:
1. If the legislature has made a sex-based classification that seems to reinforce stereotypes about the "proper place" of women, it probably cannot survive middle-level review.
2. Example:
1. Virginia maintains Virginia Military Academy as an all-male college, because of the state’s view that only men can handle the school’s harsh, militaristic method of producing "citizen soldiers."
2. Held, this sex-based scheme does not satisfy mid-level review, because it stems from traditional ways of thinking about gender roles; there are clearly some women who are qualified for and would benefit from the VMI approach, and these women may not be deprived of the opportunity to attend VMI. [U.S. v. Virginia])
6. "Exceedingly persuasive justification":
1. Although the Supreme Court still gives gender-based classifications only mid-level, not strict, scrutiny, the Court now applies that scrutiny in a very tough way.
2. The Court now says that it will require an "exceedingly persuasive justification" for any gender-based classification, and will review it with "skeptical scrutiny." [U.S. v. Virginia, supra.]
3. Illegitimacy: Classifications disadvantaging illegitimate children are "semi-suspect" and therefore get middle-level review.
1. Claims can’t be flatly barred:
1. State can’t simply bar unacknowledged illegitimate children from bringing wrongful death actions, from having any chance to inherit, etc.
2. Such children must be given at least some reasonable opportunity to obtain a judicial declaration of paternity (e.g., in a suit brought by their mother).
3. Once they obtain such a declaration, they must be treated equivalently to children born legitimate.
4. Example:
1. Suppose Texas passes a statute of limitations saying that no action for child support may be brought on behalf of an out-of-wedlock child unless the action is brought before the child turns 6.
2. Held
1. The statute probably violates the child’s equal protection rights.
2. Since the classification is based on out-of-wedlock status, it will be upheld only if it is substantially related to an important governmental objective.
3. Texas certainly has an interest in avoiding the litigation of stale or fraudulent claims.
4. But the 6-year statute of limitations is not "substantially related" to the achievement of that interest. [Clark v. Jeter]
4. Alienage:
1. Alienage might be thought of as a "semi-suspect" category.
2. In fact, though, alienage classifications, depending on the circumstances, will be subjected either to strict scrutiny or to mere rationality review (so there’s only middle-level review as a kind of "average").
3. Distinguished from national origin:
1. if a person is discriminated against because he is not yet a United States citizen, that’s "alienage" discrimination.
2. If, on the other hand, he’s discriminated against because he is a naturalized citizen who originally came from Mexico (or whose ancestors came from Mexico), that’s discrimination based on "national origin."
3. Remember that national origin always triggers strict scrutiny, whereas alienage does not necessarily do so.
4. General rule: Subject to one large exception covered below, discrimination against aliens is subject to strict scrutiny.
1. Example 1: A state cannot deny welfare benefits to aliens, because such a classification based on alienage cannot be shown to be necessary to the achievement of a compelling state interest. [Graham v. Richardson]
2. Example 2: A state cannot prevent resident aliens from practicing law, because such a classification cannot survive strict scrutiny. [In re Griffiths]
5. "Representative government" exception:
1. Strict scrutiny does not apply where the discrimination against aliens relates to a "function at the heart of representative government."
2. Basically, this means that if the alien is applying for a government job, and the performance of this job is closely tied in with politics, justice or public policy, we use only "mere rationality" review.
3. So government may discriminate against aliens with respect to posts like state trooper, public school teacher, or probation officer. See, e.g., [Ambach v. Norwick].
1. Low-level government jobs: But don’t make the mistake of thinking that because what’s involved is a government job, strict scrutiny automatically fails to apply.
1. If the job is not closely tied in with politics, justice or public policy — something that is true of most low-level jobs — then strict scrutiny applies.
2. Example: Strict scrutiny would almost certainly be applied to a city ordinance that said that no resident alien may work for the city government as a sanitation worker.
6. Education of illegal aliens: If a state denies free public education to illegal aliens, this will be subjected to intermediate-level review, and probably struck down. [Plyler v. Doe]
1. But this comes from a combination of the fact that the plaintiffs were aliens and also that they were children.
2. If a state discriminates against adult illegal aliens, we don’t know whether something higher than middle-level review will be applied.)
5. Other unpopular groups: Discrimination against other unpopular groups might conceivably be subjected to middle-level review.
1. For instance, discrimination against the elderly or the disabled might possibly trigger mid-level review, but the Court has not addressed this question.
2. Homosexuals:
1. Similarly, gays may eventually get the benefit of what is effectively mid-level review.
2. Romer v. Evans, which struck down an anti-gay Colorado enactment, purports to apply mere-rationality review but seems more like mid-level review.
6. Congressional affirmative action plans: Finally, remember that there’s one other area where the Court uses mid-level review: affirmative action programs established by Congress.

1. In due process, the fundamental rights are ones related to privacy.
2. Here, the fundamental rights are related to a variety of other interests protected by the Constitution, but generally having nothing to do with privacy.
3. List: The short list of rights that are "fundamental" for equal protection strict scrutiny purposes is as follows:
1. the right to vote;
2. maybe the right to be a political candidate;
3. the right to have access to the courts for certain kinds of proceedings; and
4. the right to migrate interstate.

1. The right to vote in state and local elections is "fundamental," so any classification that burdens that right to vote will be strictly scrutinized.
1. Example 1: A poll tax will be strictly scrutinized and almost certainly invalidated. [Harper v. Virginia Bd. of Elect.]
2. Example 2: A requirement that the voter own property or otherwise have some "special interest" in order to vote will normally burden the fundamental right to vote and thus be struck down. [Kramer v. Union Free School Dist.] (The one exception is special-purpose districts like water districts, which may restrict the vote to landowners. [Ball v. James])
3. Example 3: The requirement that a voter have resided within the state for more than a certain time prior to election day burdens the right to vote and will be strictly scrutinized. [Dunn v. Blumstein].
2. Limiting of voter’s choices:
1. If the state regulation of voting merely has the effect of "burdening" the right to vote, instead of preventing the voter from voting at all, the Court does not strictly scrutinize the regulation.
2. Instead, the Court balances the degree of the burden against the magnitude of the state’s interest.
3. This is true, for instance, of regulations that limit the voter’s choices.
4. Example: A state may completely ban all write-in votes, as long as it gives candidates reasonable access to the ballot. [Burdick v. Takushi]
3. Ballot access: The right to be a political candidate, and to have your name on the ballot, seems to be "quasi-fundamental."
1. Two invalid restrictions: The two kinds of ballot restrictions that the Supreme Court does seem to give strict or almost strict scrutiny to are:
1. Unfair to new parties:
1. Restrictions that are unfair to new, not-yet-established political parties.
2. Example: A rule saying that a minor party can get its candidate on the ballot only if it presents signatures from 15% of the voters, holds a formal primary, and has an elaborate party structure, violates Equal Protection. [Williams v. Rhodes].
2. Based on wealth: Ballot access limits that are based on wealth. (Example: A $700 candidate filing fee, which the state refuses to waive for an indigent candidate, violates Equal Protection. [Lubin v. Panish])
2. Candidate eligibility rules:
3. But reasonable rules concerning the eligibility of the individual candidate, that don’t fall into either of these two categories — unfair to new parties, or based on wealth — seem to be generally upheld by the Court.
4. Thus a state may set a minimum age, or may require that the candidate have resided for a certain period of time in the state or district where he is seeking office.
4. Court access: Access to the courts is sometimes a "fundamental right," so that if the right is burdened by a state-imposed classification, that classification will sometimes be closely scrutinized.
1. Basically, what it comes down to is that if the state imposes a fee that the rich can pay but the poor cannot, and the access relates to a criminal case, strict scrutiny will be used.
2. Example: The state cannot charge an indigent for his trial transcript in a criminal case. [Griffin v. Illinois] Similarly, the state must provide him with free counsel on appeal.
3. Civil litigation: When civil litigation is involved, access to the courts is usually not fundamental.
1. Only for various family-law proceedings
2. E.g., divorce, paternity suits, termination of parental rights) is the state barred from charging fees. [Boddie v. Connecticut]
5. Right to travel: The so-called "right to travel" is generally a "fundamental" right.
1. This term "right to travel" is misleading — it’s really the right to change one’s state of residence or employment.
2. So any time the state imposes a classification that burdens one’s right to change her state of residence or employment, that classification will be strictly scrutinized.
3. Duration of residence: This mainly means that if the state imposes a substantial waiting period on newly-arrived residents, before they can receive some vital governmental benefit, this will be strictly scrutinized.
4. Example:
1. Pennsylvania denies welfare benefits to any resident who has not resided in the state for at least a year.
2. Held, this one-year waiting period impairs the "fundamental right of interstate movement" so it must be strictly scrutinized, and in fact invalidated. [Shapiro v. Thompson].
5. Vital government benefit:
1. But the key phrase here is "vital government benefit" — if the benefit is not vital, then the state may impose a substantial waiting period.
2. Example: A one-year waiting period before a student can qualify for low in-state tuition at the public university probably does not burden a fundamental right, and thus does not need to be strictly scrutinized.
6. Necessities: The right to "necessities" is not fundamental.
1. If the state distributes necessities in a way that treats different people differently (or if it distributes the money to be used to buy these things differentially), there will be no strict scrutiny because there is no fundamental right.
2. Education
1. For instance, one does not have a fundamental right to a public school education.
2. Therefore, the state may allow or even foster inequalities in the distribution of that public school education, without violating any fundamental right, and thus without having to pass strict scrutiny. [San Antonio School Dist. v. Rodriguez]
3. Example:
1. Texas’ system of financing public education is charged with violating equal protection, because districts with a high property tax base per pupil consistently spend more on education than those with a low base are able to do.
2. Held
1. Education is not a fundamental right.
2. Therefore, Texas’ scheme merely has to undergo "rational relation" review.
3. Because the use of property taxes to finance education is a rational way of achieving the legitimate state goal of giving each local school district a large measure of control over the education its residents get, this "mere rationality" standard is satisfied. San Antonio School Dist. v. Rodriguez, supra.

Complete deprivation: Actually, it’s still possible that a complete deprivation of public education might be held to be a violation of a "fundamental" right. If a state simply refused to give any public education at all to some groups of residents, this might be such a large deprivation that it would amount to a violation of a fundamental right, and thus be subject to strict scrutiny.

3. Food, shelter: There is no fundamental right to the material "necessities of life."
1. Thus food, shelter, and medical care are not "fundamental" for equal protection purposes.
2. Therefore, the state may distribute these things unevenly.
3. Similarly, the state may give some people but not others money for these things without having to survive strict scrutiny.
4. Example: The state can give a smaller per capita welfare payment to big families than small families, without having the scheme subjected to strict scrutiny. Dandridge v. Williams