 Approach to EP:

o
o
o
o
1. Is a state actor involved? (required)
Test 1: If Entanglement exists (. When a private actor is also a state actor) then a
“significant nexus” must exist.
 Test: State uses coercive power or significantly encourages some act
 Burton: Privately owned coffee shop is state owned parking garage = “mutually
dependent relationship” = a “symbolic relationship” bcuz the state has insinuated
itself into a position of interdependence w/ the coffee shop that it must be
recognized as a joint participant in the challenged activity. (Burton case)
Test 2: If public function (priv actor performs a state function) then is a state actor.
 If it walks y quacks like a duck, then it is a duck!
 Traditionally & exclusively reserved to the states.
 Exp case: ladies electric got shut off:
 Privately owned utility company licensed y regulated by the state.
 Court: approval of shut off is not enough & There is NO state action bcuz
their function is not “traditionally exclusively” the prerogative of the state.
 Moose lodge has state liquor license & refuses 2 serve black customers. Court
said no EP viol. Bcuz no state action even tho to get a license u must agree to
not violating the constit. = no state actions. (Moose lodge case)
 State regulation/license does not foster/encourage discrimination
 Monopolistic nature of licensing is not enough.
 So, a correlation b/w having a license y not allowing black customers
does not establish causation meaning that the state didn’t cause moose
lodge to not serve black customers.
 May use gov licensing or gov funding to attempt to impute state action
but it doesn’t work bcuz u need some causation present.
Test 3: Entwinement:
 Brentwood academy v. TN school athletic assoc. (TSAA):
TSAA is a
voluntarily priv. org. pero state involvement = 85% of members r public High
schools.
 Court says that the state & TSAA are “entwined” meaning that there is a
symbolic relationship but not actual entanglement.
 Court said “there would be no recognizable association w/out public schools.
Examples:
 target employee voice’s opinion on the president and is fired? NOT state actor
 city of Toledo employee voice’s opinion on the president y is fired? 1 st amend
viol? Yes, state actor
 state charter school employee voice’s opinion on president y es fired? 1st amend
viol? Quizas lol because it depends if school is state-funded o not.
2. Facially or “In effect” discrimination?

*Gov. action MUST produce an unequal effect either “in effect” or “facially”:
o 1. In Effect AND purpose:
 Elements:
 1. Gov action is facially neutral
 2. Action caused unequal distribution of burdens & benefits AND
 3. It was ON PURPOSE (bcuz of, not merely in spite of)
o MUST prove “Motivating Factor”/ Discriminatory Intent:





o

a. Discriminatory impact relevant, but not enough
b. Historical background
c. Departures from normal procedures
d. Legislative history
e. Decision-maker testimony
2. Facially:
 Exp: if the classification appears on the face of a statute (i.e., in the express
words of the statute), it is subject to equal protection scrutiny.
 Explicit!
3. What is the classification?
*Distribution of burdens and benefits to a “category” MUST be unequal*
o A. Suspect Classifications: (strict)
 1. Race
 2. National Origin
 3. Religion (either under EP or Establishment Clause analysis)
 4. Alienage (**unless the classification falls within a recognized "political
community" (excluding aliens from important political functions) exception, in
which case only rational basis scrutiny will be applied.**).
 MUST be a state action. Otherwise, it’s reviw under rational bcuz fed
gov. allowed to classify.
 5. Anti-sodomy
 The suspect classification doctrine has its constitutional basis in the Fifth
Amendment and the EQUAL PROTECTION CLAUSE of the Fourteenth
Amendment, and it applies to actions taken by federal and state
governments. When a suspect classification is at issue, the government
has the burden of proving that the challenged policy is constitutional.
o B. Classifications “SUBSTANTIALLY INTERFERING” w/ Fundamental Rights
(strict):
 “Fundamental” =

If the right is "explicitly or implicitly guaranteed by the Constitution.
 “Substantially interfering” =
 totality of the circumstances must be examined from a common sense
point of view and there must be a determination whether the
government's action substantially interferes with the claimant's exercise
of the right. Obviously, a ban on the exercise of the right backed by
threat of legal sanctions is an infringement.' 28 But a lesser interference
also qualifies as an infringement if it substantially deters the exercise of
the right or makes the exercise of the right materially more difficult.'
 Types:
 0. Freedom of Speech (1st amend)!!
 1. Denial or Dilution of the Vote
 2. Interstate Migration
 3. Access to the Courts
 4. Other Rights Recognized as Fundamental or constitutional
o C. Quasi-Suspect (intermediate) “aka 50% suspect & 50% fundamental rt”.
 1. Gender
 2. Illegitimacy
o D. Other: (rational)
 1. economics
 2. poverty
 3. age
 Why? Not immutable, no history of discrimination
 4. Disability
 Why? Constant winners in political process


5. sexual orientation
gender ONLY WHEN based on real differences
4. What is the level of scrutiny?
*Must pass this test to be constitutional*
STRICT
 Test:
o Necessary (“narrowly tailored”) to achieve compelling
government purpose
 Used when?
o Fundamental rt/suspect class @ issue: banning/” substantially” interfering w/.
 Applies:
o A. Suspect Classifications:
o B. Classifications SUBSTANTIALLY INTERFERING w/ Fundamental Rights
 Reasoning:
o A. intent of framers
o B. immutable characteristic
o C. history of discrimination
o D. political disenfranchisement
2. INTERMEDIATE:
 Test:
o Substantially related to an important & actual government interest
 “Substantially related” = must be
 1. substantially effective and necessary
 2. Narrowly tailored:
o Must be the least restrictive means.
 “important” = exceedingly persuasive
 “actual” = interest must have been gov’s actual purpose for X action not just an
effect of.
 Used when?
o fundamental rt/suspect class @ issue. (Limiting but not banning or “substantially”
interfering))
 Applies:
o Quasi-Suspect Classifications
3. RATIONAL:
 Test:
o Categorization must be rationally related to a legitimate government
purpose
 purpose must be legitimate (court assumes purpose is legitimate)
 Court need not know actual purpose
 i. any set of facts might reasonably be conceived to justify it; need a
purpose, not the purpos
 Used when?
o (no fundamental rts or suspect class @ issue)
 Applies:
o all classifications other than those listed above,
o POSSIBLY higher scrutiny for cases that disadvantage:
 mentally retarded people, homosexuals, or innocent children of
illegal aliens.
______________________________________________________________________________
Definitions:
What is a compelling governmental interest?
a. Remedying the actor’s own past discrimination (busing
cases, re-districting cases)
b. Unclear how closely history of discrimination must be
tied to the government actor (remedying societal past
discrimination not a compelling interest)
c. In education, fostering diversity is a compelling interest
iii. What means are necessary?
a. Favoring “socially and economically disadvantaged”
individuals
b. In higher education, race as one factor of many factors
that foster diversity (race may not be decisive factor)
c. Quota systems are not “necessary”/ narrowly tailored
What is “Substantially Related”?
a.. court must at least consider a gender-neutral policy
What is “Important”?
a.. Exceedingly persuasive


Random:
Justices agree that the interest in remedying the effects of past discrimination is sufficiently compelling to support a
benign racial classification. The Court has also suggested that achieving an ethnically diverse student body is sufficient to
support a racially specific special admission program at a graduate school. On the other hand, remedying past societal
discrimination and providing minority role models are not sufficiently important.
The Fifth Amendment due process clause prohibits the federal government from discrimination if the discrimination is so
unjustifiable that it violates due process of law.
o1. Is the regulation
content-based?
No = can be
either:
Yes = strict
Exp law: “no
political signs
on lawn.”
Test: If you
have to know
what was said
then it is
contentbased!
1. Viewpoint
based
restrictions OR
ROL: strict scrutiny
unless speech falls into
unprotected or underprotected category.
Purppose
must NOT be
to supress
exprressionw.
= if it is it is
viol of 1st.
oCan be
evaluated by
any level of
scrutinty.
Exp law: “no
pro-trump
signs on
lawns.”
2. Content
Neutral
ROL: no
specific
scrutiny bcuz
its just
outright
unconsit.
usually
unrelated to
the purpose
oUNLESS it is has an
incidental impact on
expression.
1. must
further an
important or
substantial gov
interest
(intermediate
scrutinty) AND
oTest:
“O’Brien test”:
2. Interest
must be
unrelated to
the
suppression of
free
expression
AND
usually
unrelated to
the purpose
3. The incidental
restriction on
alleged 1st amend.
Freedoms must
be no greater than
is essential to the
furtherance of
that interest.
exp: argue on both sides. gov:
prevents fires. Person: we
can't achieve are protesting
goals w/out burning
something