It's a racially discriminatory guideline (facially) so strict scrutiny applies - under Bakke: does the state have a compelling interest? Bakke: targeted efforts to remedy prior discrimination by the same governmental entity in a way that has a close nexus to the prior discrimination. We don't have discrimination by HUD - we have discrimination by local zoning boards so HUD can't rectify that earlier discrimination by another governmental entity by engaging in discrimination. The guideline is about your membership in a particular group, not if you yourself have been discriminated against.
Yes, because there is a sufficient nexus between the housing-support grant and prior housing discrimination.
No, because the guideline deprives individuals of their fundamental right to housing.
No, because the guideline likely violates equal-protection doctrine.
Yes, because the guideline aims to help -- not harm-- racial minorities.
Yes, because the catch-up policy advances a substantial governmental interest in a narrowly tailored way.
Yes, because the DOT is acting as a "market participant."
No, because responding to prior discrimination is not a substantial governmental interest.
No, because achieving parity in salaries between men and women is not a substantial governmental interest.
A. No scrutiny, because the law favors a racial/ethnic minority. INCORRECT. After the Bakke case, affirmative action policies are treated the same, at least for purposes of determining which level of scrutiny applies, as policies that use a suspect class for less benign reasons.
B. Rational basis, because the law favors a racial/ethnic minority. INCORRECT. See above.
C. Rational basis, because the government has shown that racial/ethnic concerns were not a
motivating factor for the law. INCORRECT. There are three different ways of identifying a racial classification, any of which is sufficient to identify a suspect classification: 1. The suspect classification is evident on the face of the law; 2. The classification is evident based on an objective evaluation of the law (namely, it is written in such a way that it doesn’t make sense but for the existence of a suspect-classification); 3. The law’s effects relating to a suspect classification (i.e., race, gender, etc.) was a motivating factor behind the governmental decision (requiring intent, not just knowledge, of those effects). Here, I have stipulated in the question that racial/ethnic considerations were not the underlying motive or goal of the legislation. But here there is a racial/ethnic distinction that is evident on the face of the law; that is, the law itself draws a distinction based on whether someone is Hispanic. That is enough to identify the law as a racial/ethnic classification.
D. Strict scrutiny, because the law facially discriminates on the basis of race/ethnicity.
CORRECT. See the explanation to answer C.
No scrutiny, because the law favors a racial/ethnic minority.
Rational basis, because the law favors a racial/ethnic minority.
Strict scrutiny, because the law facially discriminates on the basis of race/ethnicity.
Rational basis, because the government has shown that racial/ethnic concerns were not a motivating factor for the law.
A. No scrutiny, because Jones has not sued the government, and Gayer Nails is not a state actor. INCORRECT. It is true that you must have state action in order to have a constitutional claim, but it is not true that you must sue the government in order to make a constitutional argument. Rather, even in the course of private civil litigation (that is, a suit between two parties) the parties are allowed to argue about whether the law that one party seeks to invoke is constitutional. Here, Jones was fired because she violated a Virginia statute that was itself unconstitutional, and therefore the basis of her firing was legally invalid. Whether she wins or loses on that claim goes to the merits of her claim, but there isn’t anything wrong with her making that claim in the course of a private lawsuit. Here, the “state action” that is relevant is the Virginia legislature’s “action” when it created the law in the first place. In other words, there will always be sufficient state action if somebody is challenging the constitutionality of a law, since laws always involve state action (namely, the legislature passing the law).
B. Rational-basis review, because there is no discrimination against a suspect class.
CORRECT. Here, there is nothing to suggest that the state has engaged in sex/gender discrimination or race-based discrimination. The law doesn’t discriminate on those bases; the law, viewed objectively, makes sense as an effort to protect safety, and it doesn’t seem to be drawn in a way that is indirectly aimed at discrimination along race or gender lines; and there is nothing in the question to suggest that the government has engaged in intentional discrimination.
C. Intermediate scrutiny, because the statute is being applied against a woman.
INCORRECT. See explanation to answer B. When asking whether the government has engaged in discrimination against a suspect class, do not focus on the effects of the law; rather, focus on the law itself and/or the purposes behind the passage of the law. That’s all that matters under current doctrine. The court has specifically rejected the idea that someone can bring a suspect classification claim just because they are a member of a suspect class or just because a law has the (unintended) effect of disproportionately burdening a suspect class.
D. Strict scrutiny, because the statute is being applied against a racial minority. INCORRECT. See explanations to answers B and C.
Rational-basis review, because there is no discrimination against a suspect class.
Intermediate scrutiny, because the statute is being applied against a woman.
No scrutiny, because Jones has not sued the government, and Gayer Nails is not a state actor.
Strict scrutiny, because the statute is being applied against a racial minority.
A. No scrutiny. INCORRECT. If I am asking about the Equal Protection Clause, the answer will never be “no scrutiny.” Rational-basis review is the default level of scrutiny for all governmental classifications, and all laws classify in some sense.
B. Rational-basis review. CORRECT. This is the default level of scrutiny, so you should start from the assumption that rational-basis review applies and then consider whether there is any valid basis for increasing the level of scrutiny. There are two reasons to do so: 1. If there’s a suspect classification, or 2. If the law is burdening a fundamental right within the meaning of Equal Protection law (and the only one of these that you need to know for my class is voting). Here, there is no voting issue, so the only thing we have to worry about is whether there’s a suspect classification. The statute itself says nothing at all about race, gender, etc., so there isn’t a facial discrimination problem. Next you want to ask about “gerrymandering,” and here the law probably makes sense (maybe not a lot of sense, but at least some sense) as a way of trying to protect public health and (more importantly) isn’t drawn in a way that suggests discrimination on the basis of a suspect classification; in other words, even if you think the law doesn’t make sense, you still can’t say that the law doesn’t make sense but for a racial or sex/gender purpose. So the *only* plausible ground for elevating the level of scrutiny would be if the law is intended to discriminate based on a suspect classification. Here, the only thing that I have told you in the call to the question is that the legislature was aware of the disproportionate burden that would fall on racial minorities and women. I have not provided *any* evidence showing that the legislature passed the law because of those disproportionate burdens. In other words, I have not given you any evidence (other than mere evidence of knowledge) that the law was intended to discriminate along racial or sex/gender lines. So there is no ground for elevating the level of scrutiny, and therefore rational-basis review applies.
C. Intermediate scrutiny. INCORRECT. See explanation to answer choice B.
D. Strict scrutiny. INCORRECT. See explanation to answer choice B.
A. It would apply rational-basis review, and it would uphold the law because there are conceivable facts on which the legislature could base its decision. CORRECT. Consider this question in two steps. First we need to determine what level of scrutiny to apply, then secondly we need to determine whether the law will survive that level of scrutiny. Here, the law does not discriminate based on any suspect classification. Therefore, rational- basis review applies. Under rational-basis review, we only ask questions about whether the government had a rational basis under any conceivable facts—we do not ask questions of actual motives, subjective intent, motivating factors, etc.
B. It would apply rational-basis review, and it would uphold the law because public health was a motivating factor behind the decision. INCORRECT. It is true that the law would survive rational-basis review because of the public-health justification, but it is irrelevant whether public health was actually a reason why the legislature acted. Under rational- basis review, we don’t care about the real reasons for governmental action—we only care whether the lawyers for the government are capable of coming up with a legitimate basis for the law and conceivable facts to support that law. It’s a really, really undemanding test.
C. It would apply rational-basis review, and it would conclude that the law is unconstitutional because hostility toward a minority was a motivating factor behind the law. INCORRECT. See the explanations to answer choices A and B. It is definitely true that hostility toward gay people is not a legitimate basis for the government to defend the law, but it is *not* true that the court will evaluate the actual reason or reasons behind the governmental decision. If the government lawyers’ only justification for the law was that the government hated gay people, the government would lose; but here the lawyers will argue that health interests are an adequate basis for upholding the law.
D. It would apply intermediate scrutiny because hostility toward a minority was a motivating factor behind the law. INCORRECT. Evidence of subjective motives that show hostility toward a suspect class would be sufficient to increase the level of scrutiny, but here I have told you in the question that this is a jurisdiction where sexual orientation is *not* a suspect classification, so evidence of subject intent to discriminate on the basis of sexual orientation doesn’t matter.***
*** Note: This last statement refers to legal analysis. As lawyers, though, you would probably still want to include (in the summary of the facts, for instance, and perhaps even in the discussion
of rational-basis review) the evidence of subjective motive because it would help shape the way that the judge views the case, even though he/she isn’t supposed to consider it. Remember, as I mentioned earlier in the course, good lawyers don’t just view the law and legal arguments as abstract propositions with “right” and “wrong” answers; they also recognize that real human beings, with real human biases, are actually responsible for making decisions.
It would apply rational-basis review, and it would uphold the law because public health was a motivating factor behind the decision.
It would apply rational-basis review, and it would uphold the law because there are conceivable facts on which the legislature could base its decision.
It would apply intermediate scrutiny because hostility toward a minority was a motivating factor behind the law.
It would apply rational-basis review, and it would conclude that the law is unconstitutional because hostility toward a minority was a motivating factor behind the law.
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