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Equal protection · complete doctrine guide

Classifications, discriminatory purpose, and tiers of scrutiny

Every equal protection question starts the same way: identify exactly what classification the government has drawn and why, because the classification and the government's purpose together determine which of three tiers of scrutiny applies. Race, national origin, and most classifications based on alienage trigger strict scrutiny, requiring the government to show the classification is necessary to a compelling interest, while classifications based on sex or on the marital status of one's parents at birth trigger a somewhat less demanding intermediate scrutiny. A law that is neutral on its face still counts as a suspect classification only if it was adopted for a discriminatory purpose; a merely disparate impact on a protected group, without proof of that purpose, is not enough on its own. Race-conscious government action draws strict scrutiny regardless of whether the government characterizes it as burdensome to one group or benign toward another.

TESTED STATUSCurrent MBE, MEE where applicable, and NextGen foundational doctrine
01 · COMPLETE FRAMEWORK

Black-letter propositions

  1. 01

    Race, national origin, and many alienage classifications receive strict scrutiny; sex and nonmarital-birth classifications receive intermediate scrutiny.

  2. 02

    Facial neutrality plus disparate impact is insufficient without discriminatory purpose.

  3. 03

    Race-conscious government action is subject to strict scrutiny whether described as benign or burdensome.

  4. 04

    Sex classifications require an exceedingly persuasive justification and substantial relation to an important objective, without overbroad stereotypes.

  5. 05

    Age, disability, wealth, and most other classifications receive rational-basis review, sometimes with meaningful examination of animus.

02 · ORDER OF ANALYSIS

Use this attack sequence under time

1

Frame the issue

Identify the exact classification.

2

Resolve the next checkpoint

Determine whether facial, administered, or purpose-based.

3

Resolve the next checkpoint

Choose scrutiny and allocate burden.

4

Resolve the next checkpoint

Evaluate actual objective and fit.

5

Finish the conclusion

If a fundamental right is involved, analyze that route too.

03 · DISTINCTIONS THAT CREATE POINTS

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.
04 · WORKED APPLICATION

Worked example

A neutral hiring test excludes a higher percentage of one racial group, but evidence shows no discriminatory design or administration.

Model analysis

Disparate impact alone does not establish an equal-protection violation. A plaintiff must prove discriminatory purpose, though other statutory claims may use different standards.

05 · CLOSED-BOOK RETRIEVAL

Practice this topic

06 · FROM THE PRIMARY TEXT

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.

07 · FROM THE PRIMARY TEXT

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.

08 · QUICK ANSWERS

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.

SOURCE DESK

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) ↗