Final Exam (Updated)

Download. Full text after the jump. Please note that Question # 7 should end with "is valid"--discuss the validity of the proposed provision.

Equal Protection Answers

1) I understood that in Parents Involved, the plurality adopted an anti- classification understanding of Equal Protection under Brown. The dissenting adopted an anti-subordination vision of Brown allowing the State to make some racial classification if the purpose is to overcome racial subordination. Justice Kennedy, concurring in the judgment, assumed an intermediate position considering that some race conscious classifications are valid although that was not the case of Parents Involved. Is conscious race classification the narrowest ground? I cannot see how justice Kennedy’s idea of conscious race classification might be accepted by the majority, who were rejecting racial classification.

 

Narrowest grounds is not the narrowest grounds that would have been accepted by the majority—if the majority would accept the concurrence’s analysis, it would have adopted that analysis. Narrowest grounds means narrowest grounds that support the judgment in the case (that is, the outcome--who wins the case). Kennedy's approach is narrower than the plurality--the plurality rejects all racial classifications, while Kennedy rejects this racial classification but allows for other possible future classifications. Think of it from the standpoint of the judge in the next case, having to figure out what the precedent is. Imagine you are the district judge in the next case challenging a racial classification: What is a narrower ground: "This new classification is invalid because all racial classifications are invalid" or "This new classification may be valid, depending on the factors described by Justice Kennedy's concurrence." 

 

We apply Equal Protection to the Federal government through the Fifth Amendment because Due Process has been understood as having a component of equal protection. My question is whether we apply the same analysis to determine the standard of review that we apply under the Equal Protection. I was looking at the language of the Court in Korematsu where the court said that the court will apply “the most rigid scrutiny” but in Bolling the court said that segregation was not “reasonable related to any proper government objective”.

 

The use of what we call "strict scrutiny" was not as well developed or precise at the time of Brown and Bolling. The standard of scrutiny will be the same for challenges to state and federal regulations--the only question is whether the federal government might have more leeway to draw classifications.

Portable v. Non-Portable Benefits

I forgot to mention at the Q&A last night: With substantive questions that are emailed to me and that might be of interest and help to the class, my practice is to post the question (anonymized) and answer here.

Could you please explain the difference between portable and non-portable benefits under Saenz v. Roe? Why are these types of benefits called portable? And why did the Court make this distinction? Are there any other portable benefits other than resident tuition and divorce laws? Thank you. 

Non-portable benefits are those that will be used, at least in the short term, in the state and thus will, at least in the short term, benefit the state. The Saenz majority saw welfare benefits as non-portable because the benefits received in that year while living in California would be used in California and would benefit California. And you can’t really take that with you once the money received is spent to help you live during that year in California. 

Portable benefits are those that stay with you, so that if and when you leave the state, they follow you. Divorce, marriage, education are the obvious ones. The Court did not enumerate others, but you can think about other benefits one receives from the state and try to classify as one or the other.

The distinction explains why what California did in Saenz (providing lower welfare benefits during the first year in the state) was unlawful while allowing states to make college students wait one year before becoming eligible to receive in-state tuition is lawful. If that sounds like a rationalization, that was the dissent's point.

Review Session

Video.

You can reach me via email or via questions on the blog until 10:30 tomorrow evening (Tuesday). If you would like a Zoom meeting, email me.

Good luck.

Review and Exam Information (Updated and Corrected)

The Q&A session will be at 7 p.m. on Monday, November 30 (tomorrow evening). Use the regular Zoom link.

If you have questions outside of the session, you can email me or post them to the blog. If you would like a Zoom meeting, email me and we can set something up.

The exam will consist of thirteen (13) short-answer questions, worth ten (10) points each, for a total of 130 points towards your final grade. You can write up to 250 words on each question.

You will access the exam beginning at 9 a.m. on Wednesday, on the blog; the exam is due by 9 a.m. on Friday, at the Constitutional Law-C TWEN page.

The full exam instructions are after the break. These will be attached to the exam itself. 

Please submit your exam as a Word document rather than as a PDF.

Final class

Video--with transcript, without transcript. 

Q&A review session on 7 p.m. Monday, November 30, usual Zoom number. It is all Q&A, with no prepared stuff from me. We will stay for as long as you all have questions. I am available by Zoom or email outside of those times. You also can post questions to the blog.

The exam runs from 9 a.m. Wednesday, December 2 through 9 a.m. Friday, December 4. You will download the exam from here and return it to the Constitutional Law-C TWEN page, for which you must register. The exam will include detailed instructions; please follow.

Reax Papers for the final 3 panels (## 18, 19, and 20) are due to Connie Giffuni (cgiffuni@fiu.edu) by 9 a.m. Wednesday, December 2.

Thank you for a great semester.

Equal Protection in the election lawsuits

Here is the decision from the Middle District of Pennsylvania that everyone has been talking about. The introduction is pp. 1-11 and the equal protection analysis begins on p.23 (in between is a discussion of standing, which you can ignore for our purpose). Note 1) how the court describes what is necessary under the equal protection--the problem is not classification but treating similarly situated persons differently; 2) the discussion of leveling-up and leveling down for equal protection remedies; and 3) the question of standard of scrutiny in election cases (which we will discuss on Monday).

Note, as well, the difference. between a substantive due process violation and an equal protection violation. SDP argues that government cannot do something or stop me from doing something; EP argues that in doing something that it might otherwise be able to do, government is treating me differently. This is why Holmes described it as a last resort. So in this case: A due process claim is that election officials prevented observers from being close enough to observe. An equal protection claim is that there is no right to observe, but officials let Biden observers closer than Trump observers.

On that note: What is the difference between a claim for a violation of fundamental right and a claim for an equal protection violation touching on a fundamental right?