Black-letter propositions
- 01
Race, national origin, and many alienage classifications receive strict scrutiny; sex and nonmarital-birth classifications receive intermediate scrutiny.
- 02
Facial neutrality plus disparate impact is insufficient without discriminatory purpose.
- 03
Race-conscious government action is subject to strict scrutiny whether described as benign or burdensome.
- 04
Sex classifications require an exceedingly persuasive justification and substantial relation to an important objective, without overbroad stereotypes.
- 05
Age, disability, wealth, and most other classifications receive rational-basis review, sometimes with meaningful examination of animus.
Use this attack sequence under time
Frame the issue
Identify the exact classification.
Resolve the next checkpoint
Determine whether facial, administered, or purpose-based.
Resolve the next checkpoint
Choose scrutiny and allocate burden.
Resolve the next checkpoint
Evaluate actual objective and fit.
Finish the conclusion
If a fundamental right is involved, analyze that route too.
Common wrong turns
- Disproportionate effect is evidence but not itself purpose.
- A remedial label does not lower strict scrutiny for racial classifications.
- Rational-basis review is deferential but does not permit bare animus.
Worked example
A neutral hiring test excludes a higher percentage of one racial group, but evidence shows no discriminatory design or administration.
Disparate impact alone does not establish an equal-protection violation. A plaintiff must prove discriminatory purpose, though other statutory claims may use different standards.
Practice this topic
The three tiers
Cornell says equal protection means a government must apply its laws fairly and cannot treat people differently without a valid reason, and that the Fourteenth Amendment's clause applies to states while the Fifth Amendment's Due Process Clause has been read to require equal protection from the federal government in Bolling v. Sharpe. Courts apply strict scrutiny, intermediate scrutiny or rational basis review depending on the classification and the rights affected, and may combine elements of two tests.
Strict scrutiny applies to fundamental rights and suspect classifications such as race, religion, national origin and alienage, and puts the burden on the government to show a compelling interest, narrow tailoring and the least restrictive means. Intermediate scrutiny requires an important interest and substantially related means and is used for gender classifications. Rational basis requires a legitimate interest and a rational connection.
Applying them
Not every legal distinction is unconstitutional. Courts allow differences that meet constitutional standards, so the first step is to name the classification and then choose the tier.
Cornell says the level depends on the nature of the classification and rights affected, and that courts rely on precedent to choose the standard.
Cornell also says courts may combine elements of two of the three tests to create an ad hoc test. That means a fact pattern can call for more than a label. State the tier, then apply its actual requirements: the interest the government asserts, the fit between that interest and the classification, and who bears the burden.
Frequently asked questions
What is the controlling rule for classifications, discriminatory purpose, and tiers of scrutiny?+
Equal protection requires identification of the classification and purpose before applying strict, intermediate, or rational-basis review.
How should I analyze classifications, discriminatory purpose, and tiers of scrutiny on the bar exam?+
Identify the exact classification. Determine whether facial, administered, or purpose-based. Choose scrutiny and allocate burden. Evaluate actual objective and fit.
What are the levels of scrutiny in equal protection cases?+
Strict scrutiny, intermediate scrutiny and rational basis review, depending on the classification and the rights affected.
Which classifications trigger strict scrutiny?+
Suspect classifications such as race, religion, national origin and alienage, and laws burdening fundamental rights, according to Cornell.
What does intermediate scrutiny require?+
An important government interest and means substantially related to it, used for gender classifications in equal protection cases.
Does the Fifth Amendment require equal protection?+
Its Due Process Clause has been interpreted to require equal protection from the federal government, per Bolling v. Sharpe as Cornell describes it.
Who bears the burden under strict scrutiny?+
The government, which must show the action is narrowly tailored to a compelling interest and uses the least restrictive means.
Primary sources
Cornell LII Wex: equal protection↗Cornell LII Wex: strict scrutiny↗Cornell LII Wex: intermediate scrutiny↗Cornell LII Wex: rational basis test↗Cornell LII: U.S. Constitution, Fourteenth Amendment↗Governing text for classifications, discriminatory purpose, and tiers of scrutiny
Constitution of the United States, full text (National Archives) ↗