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I. 1. The Constitution as ratified in 1788 most clearly reflects the framers’ commitment to
I. 7. Under which of the following circumstances is Congress LEAST likely to pass a bill the president has threatened to veto?
I. 9. The Rules Committee is considered among the most powerful in the House of Representatives because it has great power over the
Please open the link to the Google Form in your school email and answer the Daily 3.
BRC 13
Discrimination and
the Constitution
Rosa Parks desegregating buses in Montgomery, Alabama, in 1955
Work in groups of two or three.
List 10 situations where government discriminates, that is, where Group A is barred from doing something that Group B can do, or where Group A must overcome more hurdles than Group B in order to do something.
For example, in Oregon people under 21 cannot purchase or drink alcohol.
One of these things is not like the others.
Work in groups of two or three.
From your initial list of 10 (or from ideas you stole from other groups), choose three.
Work in groups of two or three.
Now list three discriminations that government used to make but no longer does.
Work in groups of two or three.
Read the Equal Protection clause.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
How does this apply to either your three current or three past discriminations?
Does it mean that the government cannot legally discriminate?
STRICT, MEDIUM, AND MINIMUM SCRUTINY
Copy the Scrutiny Table I emailed you
and paste it into your PS Journal.
It’s also on the Courts page.
STRICT, MEDIUM, AND MINIMUM SCRUTINY
PSJ #6—Scrutiny Table
150 words
(added to what is already on the table – 197 total)
| Strict Scrutiny | Medium Scrutiny | Minimum or Rational Basis Scrutiny |
What are the relevant classifications? | | | |
What does the Supreme Court assume about the constitutionality of the discrimination? | | | |
What level of state interest applies? | | | |
What is the required relationship between the state interest and the classification? | | | |
Example | | | |
Sometimes governments classify citizens in various ways, for example, according to race, gender, or marital status.
The courts have ruled that when a law classifies citizens or discriminates between different groups of citizens, in some areas those classifications are assumed to be legitimate while in other cases they are assumed to be unconstitutional.
STRICT SCRUTINY
Suspect Classifications:
1. Race
2. National Origin
3. Religion
STRICT SCRUTINY
Suspect Classifications:
1. Race
2. National Origin
3. Religion
When a state passes laws that discriminate against members of a suspect class, the laws are presumed unconstitutional.
STRICT SCRUTINY
Suspect Classifications:
1. Race
2. National Origin
3. Religion
When a state passes laws that discriminate against members of a suspect class, the laws are presumed unconstitutional.
The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.
STRICT SCRUTINY
Adarand v. Peña (1995)—In this case, a contractor was building a highway. One subcontractor, Adarand Constructors, submitted the low bid for guardrails. But the guardrail contract was awarded instead to another subcontractor, Gonzales Construction.
Why? Because of a federal program that gave a financial incentive to the contractor for employing a minority business, presumed to be economically and socially disadvantaged.
Adarand sued Transportation Secretary Peña, claiming this was discrimination in violation of the equal protection clause of the Fourteenth Amendment as well as the due process clause of the Fifth Amendment.
The Court agreed, ruling that all racial classifications, whether they are intended to help or harm a racial group, “must serve a compelling government interest, and must be narrowly tailored to further that interest.”
MEDIUM or INTERMEDIATE SCRUTINY
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy (For example, do illegitimate children have a right to inherit from their fathers?)
MEDIUM or INTERMEDIATE SCRUTINY
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy (For example, do illegitimate children have a right to inherit from their fathers?)
When a state passes a law that discriminates on the basis of gender, there is no presumption as to the law’s constitutionality.
MEDIUM or INTERMEDIATE SCRUTINY
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy (For example, do illegitimate children have a right to inherit from their fathers?)
When a state passes a law that discriminates on the basis of gender, there is no presumption as to the law’s constitutionality.
The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.
MEDIUM or INTERMEDIATE SCRUTINY
Craig v. Boren (1976)—In this case, Oklahoma had passed a law allowing women over eighteen to purchase beer. But for men, the legal age was twenty-one.
The state, in support of this law, cited statistics showing that young men were nine times as likely as young women to drive drunk and ten times as likely to engage in public drunkenness.
Curtis Craig, over eighteen but under twenty-one, challenged this as a violation of the Fourteenth Amendment’s equal protection clause.
The Court agreed, ruling for the first time that gender discrimination must pass the medium scrutiny test. In this case, the Court acknowledged that traffic safety was an important state interest but that Oklahoma’s gender-based discrimination did not substantially further the state’s goal.
Justice Stevens noted that only 2% of young men were arrested for alcohol-related driving offences, and, although that was considerably higher than the percentage for young women, it did not justify differential treatment of the 98% who were not arrested.
MINIMUM or RATIONAL BASIS SCRUTINY
Minimum scrutiny applies when no suspect or quasi-suspect classification and no fundamental rights are involved. In other words, it applies to all classifications other than those listed previously.
For example, with regard to economic matters, the Court has generally deferred to the legislature if any possible rational basis for the discrimination can be presented.
In one case, the state of Minnesota banned the sale of milk in plastic, nonreturnable containers while allowing the sale of milk in other nonreturnable containers.
The Court allowed this to stand when Minnesota argued that this was rationally related to the legitimate state goals of promoting resource conservation, easing solid waste disposal problems, and conserving energy.
MINIMUM or RATIONAL BASIS SCRUTINY
Minimum scrutiny applies when no suspect or quasi-suspect classification and no fundamental rights are involved. In other words, it applies to all classifications other than those listed previously.
For example, with regard to economic matters, the Court has generally deferred to the legislature if any possible rational basis for the discrimination can be presented.
The classification must serve a legitimate government interest and the law must be rationally related to that interest.
MINIMUM or RATIONAL BASIS SCRUTINY
A Counterexample
Romer v. Evans (1996)—Colorado voters had adopted an amendment to their state constitution barring any judicial, legislative, or executive action designed to protect persons from discrimination based on their sexual orientation, conduct, practices or relationships.
Justice Anthony Kennedy noted that often a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." The Colorado law failed to advance such a legitimate interest and so was overturned.
In other words, the Colorado law was invalid because there was no rational basis for discriminating on the grounds of sexual orientation, conduct, practices or relationships.
Is affirmative action unconstitutional discrimination?
Affirmative Action
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1977)
Allan Bakke, a white man, applied for admission to the University of California Medical School at Davis. He was rejected.
The school reserved sixteen places in each entering class of one hundred for qualified minorities, as part of the university’s affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession.
Bakke’s qualifications (college GPA and test scores) exceeded those of any of the minority students admitted.
Bakke contended that he was excluded from admission solely on the basis of race and that this violated the Fourteenth Amendment’s equal protection clause.
Affirmative Action
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1977)
The Supreme Court ruled that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment.
However, the Court also said that the use of race was permissible as one of several admission criteria in choosing among qualified applicants.
Affirmative Action
GRATZ v. BOLLINGER (2003)
In 1995, high school student Jennifer Gratz, a non-Hispanic white, applied to the University of Michigan with a GPA of 3.8 and ACT score of 25. She was denied admission. Minorities with lower grades and scores were admitted.
The University admitted that it used race as a factor in making admissions decisions because it serves a “compelling interest in achieving diversity among its student body.”
The undergraduate program used a point system in which an applicant could score up to 150 points. Applicants who scored 100 to 150 were admitted.
Points were based on high school GPA, standardized test scores, academic quality of an applicant’s high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership.
There was also a miscellaneous category that gave an applicant 20 points based upon membership in an underrepresented racial or ethnic minority group.
Affirmative Action
GRUTTER v. BOLLINGER (2003)
In 1997, Barbara Grutter, a non-Hispanic white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161 (a score that would usually secure admission to a top law school). She was denied admission. Minorities with lower grades and scores were admitted.
The Law School admitted that it used race as a factor in making admissions decisions because it serves a “compelling interest in achieving diversity among its student body.”
Unlike the point system used in undergraduate admissions, the Law School admissions process involved an individualized review of “each and every applicant,” based upon all of the information contained in the file.
Affirmative Action
GRUTTER v. BOLLINGER (2003)
In 1997, Barbara Grutter, a non-Hispanic white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161 (a score that would usually secure admission to a top law school). She was denied admission. Minorities with lower grades and scores were admitted.
The Law School admitted that it used race as a factor in making admissions decisions because it serves a “compelling interest in achieving diversity among its student body.”
Unlike the point system used in undergraduate admissions, the Law School admissions process involved an individualized review of “each and every applicant,” based upon all of the information contained in the file.
Race is a suspect classification subject to strict scrutiny.
So why did the Supreme Court reject the undergraduate admissions system in Gratz while allowing the law school’s admissions system in Grutter?
Affirmative Action
In Grutter, the Court held that the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.
The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race.
In Gratz, the Court, while rejecting the argument that diversity cannot constitute a compelling state interest, ruled that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single underrepresented minority applicant solely because of race was not narrowly tailored and did not provide sufficient individualized consideration.
Taken together, Grutter, Gratz, and Bakke establish that the U.S. Constitution permits race-conscious admissions policies when they are carefully designed and consider race as part of a flexible and individualized review of all applicants.
Note: It is VERY possible that the Supreme Court will overturn the Bakke and Grutter precedents this spring when they rule on the Harvard and North Carolina affirmative action cases.
Affirmative action is constitutional.
Is it good policy?
With your partner, list two reasons why affirmative action should be continued and two reasons why it should end.