Individual rights - Equal protection

Learning Outcomes

This article examines equal protection doctrine under the Fourteenth and Fifth Amendments for MBE purposes, including:

• when state action exists, when conduct remains purely private, and how entanglement principles operate;
• how to distinguish equal protection from substantive due process in bar-style fact patterns and answer choices;
• how to determine the appropriate level of scrutiny—strict, intermediate, or rational basis—for a challenged law;
• how to classify governmental distinctions as suspect, quasi-suspect, or non-suspect and match each to its test;
• how to recognize when a law burdens a fundamental right and how that alters the review framework;
• how to analyze facial and facially neutral laws for discriminatory purpose versus mere disparate impact using Arlington Heights factors;
• how to evaluate whether race-based or gender-based affirmative action programs satisfy equal protection standards after recent Supreme Court cases;
• how to apply equal protection doctrine to common MBE scenarios involving voting, travel, alienage, education, and economic regulation;
• how to structure a clear, stepwise equal protection analysis on timed multiple-choice and essay questions.

MBE Syllabus

For the MBE, you are required to understand the constitutional constraints preventing the government from establishing arbitrary or invidious classifications, with a focus on the following syllabus points:

• Equal Protection Clause of the Fourteenth Amendment (states) and the equal protection component of the Fifth Amendment Due Process Clause (federal government).
• The state action requirement and when private conduct is attributable to the government.
• The three standards of review: strict scrutiny, intermediate scrutiny, and rational basis.
• Suspect classifications (race, national origin, and most state alienage classifications) and their treatment under strict scrutiny.
• Quasi-suspect classifications (gender and legitimacy) and intermediate scrutiny (including “exceedingly persuasive justification” for gender).
• Non-suspect classifications (age, wealth, disability, sexual orientation, and others) and rational basis review, including “rational basis with bite.”
• Equal protection analysis when fundamental rights (voting, interstate travel, certain privacy rights, access to courts) are burdened.
• Proving intentional discrimination: facial classifications, discriminatory application, and discriminatory motive.
• Distinguishing equal protection arguments from other constitutional provisions (e.g., Privileges and Immunities, Commerce Clause) when multiple provisions might apply.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A state law requires all public school teachers to be United States citizens. Which standard of review will a court apply to evaluate this law under the Equal Protection Clause?
   1. Strict scrutiny
   2. Intermediate scrutiny
   3. Rational basis
   4. Heightened scrutiny
2. Which of the following classifications is most likely to trigger strict scrutiny under the Equal Protection Clause?
   1. A classification based on gender.
   2. A classification based on age.
   3. A classification based on legitimacy.
   4. A classification based on national origin.
3. To successfully challenge a facially neutral law on equal protection grounds based on its discriminatory impact, a plaintiff must primarily prove:
   1. The law substantially burdens a fundamental right.
   2. The law has a disproportionate impact on a protected class.
   3. The law serves no legitimate government purpose.
   4. The law was enacted or is being applied with a discriminatory purpose.
4. A state university adopts an admissions policy that gives a preference to applicants whose parents are alumni. This policy disproportionately benefits white applicants. If challenged under the Equal Protection Clause, the policy will likely be reviewed under:
   1. Strict scrutiny, because it has a disparate impact based on race.
   2. Intermediate scrutiny, because education is an important interest.
   3. Rational basis, because wealth/legacy status is not a suspect classification.
   4. Strict scrutiny, because access to higher education is a fundamental right.

Introduction

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause is aimed at preventing unjustified governmental discrimination among persons or groups.

Although its text applies only to the states, the Supreme Court has held that grossly unreasonable discrimination by the federal government violates the Due Process Clause of the Fifth Amendment, which contains an implicit equal protection component.

Key Term: Equal Protection Clause
The constitutional guarantee that government may not treat similarly situated persons differently without adequate justification. It directly binds states through the Fourteenth Amendment and binds the federal government through the Fifth Amendment’s Due Process Clause.

Equal protection analysis is triggered when a law, policy, or governmental decision treats some people differently from others. The core idea is that similarly situated persons should be treated similarly. However, equal protection does not require identical treatment in all circumstances. Government can draw lines and classify people, but the strength of justification required depends on:

• Who is being classified (race, gender, age, etc.).
• Whether a fundamental right is being burdened.

Key Term: Fundamental Right
A right recognized by the Court as so important that government interference is subject to strict scrutiny. Typical examples include the rights to vote, travel interstate, marry, procreate, use contraception, and certain family and privacy rights.

Equal Protection vs. Substantive Due Process

Many exam questions can be analyzed under either equal protection or substantive due process:

• If a law limits a liberty for everyone (e.g., “no one may purchase contraceptives”), it is usually a substantive due process issue.
• If a law limits that liberty for only some people (e.g., “unmarried persons may not purchase contraceptives”), it is usually an equal protection issue because there is a classification.

On the MBE, the same level of scrutiny will apply in either framework when a fundamental right or suspect classification is involved. The key for equal protection is to:

1. Identify state action.
2. Identify the classification (who is treated differently and on what basis).
3. Determine whether a fundamental right is burdened.
4. Choose and apply the appropriate level of scrutiny.

Key Term: Class of One
An equal protection claim that arises when a single person is allegedly targeted by arbitrary government action without a rational basis. The Court permits such claims in some contexts, but not for at‑will public employment decisions.

STATE ACTION REQUIREMENT

The protections of the Fourteenth Amendment (and the Fifth Amendment’s equal protection component) apply only to governmental action, often referred to as state action. This includes actions by federal, state, and local governments, as well as their officials and agencies acting under color of law. Purely private conduct generally does not trigger equal protection scrutiny.

Key Term: State Action
Governmental conduct sufficient to trigger application of the Equal Protection Clause (and most other constitutional rights), as opposed to purely private conduct.

However, some private conduct is treated as state action in two recurring situations important for the MBE:

• When a private actor performs an exclusive public function.
• When there is significant state involvement in private conduct.

Exclusive Public Function

A private entity is engaged in state action if it performs a function that is traditionally and exclusively done by the state.

• Classic examples:

  • Running a town or city (company town).
  • Administering elections (including primaries).

• Non-examples:

  • Operating a privately owned shopping mall, even if heavily used by the public, is not an exclusive public function.
  • Providing utility services is usually not considered an exclusive public function for equal protection purposes.

[Marsh v. Alabama; Hudgens v. NLRB]

Significant State Involvement (Entanglement)

Private conduct can be treated as state action where:

• The government affirmatively authorizes, encourages, or facilitates private discrimination; or
• The government is significantly intertwined with the private entity’s management or operations.

Examples where courts found state action:

• A restaurant located in a publicly owned parking facility where the government and restaurant had a close financial and operational relationship. [Burton v. Wilmington Parking Authority]
• Judicial enforcement of racially restrictive covenants in deeds—courts themselves become state actors by enforcing private discrimination. [Shelley v. Kraemer]

Examples where courts did not find state action:

• A private club that held a state liquor license but otherwise operated independently. [Moose Lodge v. Irvis]
• Mere government regulation or licensing of a private business with no encouragement of discrimination.

A special application arises in jury selection. Even lawyers for private parties engage in state action when using peremptory challenges in jury selection because they are participating in the judicial process. Thus they cannot exclude jurors on the basis of race or sex under equal protection principles. [Batson v. Kentucky; J.E.B. v. Alabama]

Practical MBE Point

When you see private discrimination (e.g., private school admission, private club membership), ask:

• Is the private actor doing something that is traditionally and exclusively governmental?
• Is the government sufficiently intertwined or actively supporting the discrimination?

If the answer is no, the Equal Protection Clause does not apply, and the claim likely fails at the state action step.

Worked Example 1.1

A privately owned neighborhood association operates a gated community. It owns the roads inside the gates and hires private security to patrol. The association prohibits political canvassing on its property and has security escort canvassers out. A political candidate sues, claiming a violation of equal protection.

Answer:
The claim fails because there is no state action. Running a residential community is not a traditional, exclusive public function. The association is a private actor, and there is no indication that the state is significantly involved in or encouraging the restriction. Equal protection does not apply.

LEVELS OF SCRUTINY

When a law treats different classes of people differently, the court applies one of three tests to determine if the classification violates equal protection.

Strict Scrutiny

Key Term: Strict Scrutiny
The most rigorous standard of review. The government must prove the challenged law is necessary to achieve a compelling government interest and is narrowly tailored (i.e., no less restrictive alternative would work).

Under strict scrutiny:

• The government bears the burden of proof.
• The interest must be compelling (e.g., remedying proven intentional discrimination, national security in extraordinary cases).
• The means must be necessary and narrowly tailored (no overinclusive or underinclusive alternatives that would work as well).

Strict scrutiny applies when:

• A suspect classification is used (race, national origin, and most state alienage classifications), or
• A law burdens a fundamental right (e.g., voting, interstate travel).

Most laws reviewed under strict scrutiny are struck down.

Intermediate Scrutiny

Key Term: Intermediate Scrutiny
A mid-level standard of review. The government must show the challenged law is substantially related to an important government interest.

Under intermediate scrutiny:

• The government likely bears the burden of proof.
• The interest must be important (e.g., traffic safety, preventing discrimination).
• The law must be substantially related to achieving that interest, and the justification must be genuine, not invented for litigation.

Intermediate scrutiny applies to quasi-suspect classifications (gender and legitimacy).

For gender classifications, the Court requires an “exceedingly persuasive justification.” [United States v. Virginia]

Rational Basis

Key Term: Rational Basis
The default and most deferential standard of review. The challenger must prove that the law is not rationally related to any conceivable legitimate government interest.

Under rational basis:

• The law is presumed constitutional.
• The challenger bears the burden of showing no rational relationship to any legitimate governmental objective.
• The government can rely on any conceivable legitimate interest, even one not actually articulated when the law was passed.

Rational basis applies to:

• Economic regulations.
• Non-suspect classifications such as age, disability, and wealth, unless a fundamental right is also burdened.

Rational Basis with Bite

Sometimes the Court purports to apply rational basis but scrutinizes the law more carefully, especially where a law seems motivated by bare animus toward a particular group (e.g., persons with intellectual disabilities, or gay and lesbian persons).

Key Term: Rational Basis with Bite
A more searching version of rational basis review used when a law appears to be based on hostility or animus toward a politically unpopular group. The Court formally applies rational basis but is much more skeptical of the government’s stated interests.

Examples:

• A city’s denial of a permit for a group home for people with intellectual disabilities, where the only apparent reason was neighbors’ hostility. [City of Cleburne v. Cleburne Living Center]
• A state constitutional amendment prohibiting any governmental protection for persons based on sexual orientation. [Romer v. Evans]

DISCRIMINATORY CLASSIFICATIONS

The level of scrutiny applied depends heavily on the classification used and whether a fundamental right is at stake.

Key Term: Suspect Classification
A classification, such as race, national origin, or (for most state laws) alienage, that triggers strict scrutiny under equal protection analysis.

Key Term: Quasi-Suspect Classification
A classification based on gender or legitimacy (non-marital children), which triggers intermediate scrutiny.

Before assigning a level of scrutiny, you must determine whether the government actually intended to classify on that basis.

Proving a Discriminatory Classification

The mere fact that a law has a disparate impact on a group does not automatically trigger heightened scrutiny. Intent to discriminate is usually required.

Key Term: Disparate Impact
A situation in which a facially neutral law disproportionately affects a particular group (e.g., racial minorities or women) in practice.

Key Term: Discriminatory Purpose
The government’s intent to treat a particular group less favorably than others, which must generally be shown (in addition to disparate impact) to trigger heightened scrutiny for a facially neutral law.

A discriminatory classification can be shown in three ways:

• Facial discrimination: The law expressly distinguishes on the basis of race, gender, etc. (e.g., “only white students may attend this school”).
• Discriminatory application: The law is neutral on its face but applied in a discriminatory way.
  • Example: Permit requirements applied more harshly to Chinese-owned laundries than to others. [Yick Wo v. Hopkins]
• Discriminatory motive: A facially neutral law is adopted because of, not merely in spite of, its adverse impact on a protected group. [Washington v. Davis; Arlington Heights]

Evidence of discriminatory motive can include:

• Statistical patterns that are difficult to explain on neutral grounds.
• Statements by lawmakers.
• Departures from normal procedures.
• Historical background of the decision.

If intent cannot be shown, rational basis review applies even if the impact is severe.

Worked Example 1.2

A city gives hiring preferences to applicants who pass a written police exam. The exam is facially neutral but disproportionately screens out minority applicants. There is no evidence that officials adopted the exam because of this impact. A rejected minority applicant sues under equal protection, seeking strict scrutiny.

Answer:
The challenge will be reviewed under rational basis, not strict scrutiny. The exam is facially neutral. Although there is disparate impact on minority applicants, there is no evidence of discriminatory purpose. Without proof of intent, strict scrutiny does not apply. The city’s interest in hiring literate officers is legitimate, so the law likely survives.

Suspect Classifications (Strict Scrutiny)

Race and National Origin

Laws that explicitly classify based on race or national origin are subject to strict scrutiny and are almost always invalid.

Examples:

• Racial segregation in public schools. [Brown v. Board of Education]
• Bans on interracial marriage. [Loving v. Virginia]

Strict scrutiny also applies when race is the predominant factor in drawing voting districts (racial gerrymandering claims). [Shaw v. Reno]

• Facially neutral laws with a racial impact require proof of discriminatory purpose to get strict scrutiny. [Washington v. Davis]

Affirmative Action and “Benign” Racial Classifications

Key Term: Affirmative Action
Government policies that explicitly consider race, national origin, or other protected traits to benefit underrepresented groups or remedy past discrimination.

Key Term: Benign Discrimination
A classification that favors historically disadvantaged groups rather than burdening them. It is still subject to strict scrutiny when based on race or national origin.

Race-based affirmative action programs by federal, state, or local governments are subject to strict scrutiny. They must be:

• Pursuing a compelling interest; and
• Narrowly tailored to that interest.

Historically recognized compelling interests:

• Remedying specific, proven past discrimination by the governmental actor itself.
• In the higher education context, achieving the educational benefits of diversity was recognized as compelling in some older cases. [Grutter v. Bollinger]

Narrow tailoring requirements:

• No rigid quotas or automatic point bonuses for race. [Regents of Univ. of California v. Bakke]
• Race can often be considered only as a “plus factor” in a comprehensive, individualized process.

Recent development: In 2023, the Court held that race-conscious admissions programs at Harvard and UNC violated equal protection, rejecting the previous diversity rationale as implemented. Race may still be considered in limited, individualized ways (such as an applicant’s discussion of their personal experiences), but broad race-based admissions preferences in higher education are now highly vulnerable under strict scrutiny.

For the MBE, focus on these core points:

• Race-based government action (whether burdensome or beneficial) triggers strict scrutiny.
• Remedying identified past discrimination by the same governmental actor is the most secure compelling interest.
• Quotas and mechanical point systems based on race are unconstitutional.

Alienage (Sometimes Strict Scrutiny)

Classifications based on alienage (non-citizen status) are generally suspect and trigger strict scrutiny when made by states.

[Example: State welfare benefits restricted to citizens were invalid. Graham v. Richardson]

However, there are important exceptions:

• Self-governance and democratic process: When the classification relates to positions intimately connected with democratic self-governance, only rational basis review applies. Examples include:

  • Police officers
  • Public school teachers (teaching core subjects)
  • Probation officers
  • Certain high-level policy-making roles
    [Ambach v. Norwick; Cabell v. Chavez-Salido; Foley v. Connelie]

• Federal classifications: When the federal government classifies based on alienage, the Court applies rational basis because of Congress’s broad power over immigration and naturalization. [Mathews v. Diaz]

• Undocumented (unauthorized) aliens: Classifications based solely on unauthorized status are generally subject to rational basis. A notable exception is that states may not deny free public K–12 education to children based on unauthorized status without at least showing a substantial state interest. [Plyler v. Doe]

Quasi-Suspect Classifications (Intermediate Scrutiny)

Gender

Gender classifications are reviewed under intermediate scrutiny, with a requirement that the government provide an “exceedingly persuasive justification.”

• The law must be substantially related to an important governmental interest.
• The justification must be genuine and cannot rest on stereotypes about men’s and women’s “proper roles.” [Craig v. Boren; United States v. Virginia]

Permissible examples (upheld):

• Different treatment reasonably based on biological differences, such as male-only draft registration where only men were eligible for combat roles at the time. [Rostker v. Goldberg]
• Certain rules to remedy past discrimination against women (e.g., Social Security rules favoring women where they had historically been underpaid). [Califano v. Webster]

Impermissible examples (struck down):

• State-supported military institute excluding women based on stereotypes about women’s ability to thrive in an adversative environment. [United States v. Virginia]
• Higher drinking age for men than for women. [Craig v. Boren]
• Providing alimony only to wives, not husbands. [Orr v. Orr]
• Excluding men from admission to a state nursing school. [Mississippi Univ. for Women v. Hogan]

Gender classifications that appear “benign” but actually perpetuate stereotypes (e.g., women as dependents, caregivers) often fail intermediate scrutiny.

Legitimacy (Non-Marital Children)

Classifications distinguishing between marital and non-marital children are also subject to intermediate scrutiny.

• The law must be substantially related to an important state interest. [Clark v. Jeter]

The Court pays close attention to whether the law punishes children for their parents’ status, which is not an acceptable purpose.

Examples:

• Absolute bars on non-marital children inheriting from their fathers are invalid. [Trimble v. Gordon]
• Reasonable evidentiary requirements (e.g., paternity established during father’s lifetime) to ensure orderly estate administration may be upheld. [Lalli v. Lalli]
• Very short statutes of limitations that effectively block child support claims by non-marital children may be unconstitutional. [Clark v. Jeter]

Non-Suspect Classifications (Rational Basis)

All other classifications are reviewed under rational basis, unless they also burden a fundamental right.

Common non-suspect classifications include:

• Age: Mandatory retirement or age limits for public safety positions generally upheld. [Massachusetts Bd. of Retirement v. Murgia; Gregory v. Ashcroft]
• Disability: Classifications involving physical or mental disability get rational basis, though courts are skeptical of laws that seem to reflect mere prejudice. [City of Cleburne]
• Wealth/Poverty: Wealth is not a suspect class, but denying fundamental rights (like marriage, divorce, or access to appeal) solely because of inability to pay can trigger heightened scrutiny. [San Antonio Indep. Sch. Dist. v. Rodriguez; Griffin v. Illinois]
• Convicted criminals: Not a suspect or quasi-suspect class; rational basis applies.
• Sexual orientation: The Court has not formally designated sexual orientation as suspect or quasi-suspect but has struck down anti-gay laws under rational basis with bite. [Romer v. Evans; United States v. Windsor; Obergefell v. Hodges]

Worked Example 1.3

A state statute bars persons convicted of any felony from obtaining a license to operate a taxi. A former felon sues, claiming that “felons” are a suspect class and the law violates equal protection.

Answer:
Felons are not a suspect or quasi-suspect class. The statute will be reviewed under rational basis, and the challenger bears the burden. The state can plausibly claim a legitimate interest in protecting passenger safety and public trust, and a blanket bar on felons as taxi drivers is rationally related to that interest. The law is likely constitutional.

Worked Example 1.4

A state intestacy statute gives marital children full rights to inherit from both parents but allows non-marital children to inherit only from their mothers. The state claims interests in supporting stable family relationships and ensuring efficient estate administration. A non-marital child challenges the statute.

Answer:
This classification is based on legitimacy, a quasi-suspect class, so intermediate scrutiny applies. The state must show the statute is substantially related to an important interest. Completely barring inheritance from the father goes beyond what is needed to prevent fraudulent claims and effectively punishes the child. The statute is likely unconstitutional.

FUNDAMENTAL RIGHTS

If a law creates classifications that significantly burden a fundamental right, strict scrutiny applies, regardless of whether the basic classification (e.g., new vs. old residents) would otherwise be non-suspect.

Common fundamental rights relevant to equal protection:

• Right to vote.
• Right to interstate travel (migration).
• Certain privacy rights (marriage, procreation, contraception, family relations, child rearing).
• Right of access to courts in specific contexts.

Right to Vote

Voting is a fundamental right in most election contexts.

Key Term: One Person, One Vote
The principle that voting districts must be apportioned so that each person’s vote is weighted approximately equally, requiring districts to have substantially equal populations.

Key points:

• Any law that denies or dilutes the right to vote is subject to strict scrutiny, except for:

  • Reasonable residency requirements for voting.
  • Age requirements (18 or older).
  • Citizenship requirements.

• Impermissible laws:

  • Poll taxes in state elections. [Harper v. Virginia Board of Elections]
  • Property ownership requirements to vote in general elections.

• Apportionment rules:

  • State legislative districts must be apportioned based on population to approximately equalize the number of voters (one person, one vote).
  • Congressional districts also must be closely equal in population.

Some election regulations (e.g., ballot access or administrative rules) may be reviewed under a more flexible balancing approach, but outright denial of voting rights or gross malapportionment triggers strict scrutiny.

Right to Travel (Interstate Migration)

The right to move from state to state, establish residence, and be treated equally as a bona fide resident is fundamental.

States may not penalize new residents for having exercised the right to travel, for example by:

• Imposing durational residency requirements (e.g., one year) for basic benefits such as welfare or essential medical care. [Shapiro v. Thompson; Memorial Hospital v. Maricopa County]
• Using durational residence to limit access to the ballot or to equal welfare benefits in ways that penalize migration. [Saenz v. Roe]

Reasonable, short residency requirements for voting (e.g., 30 days) or for in-state tuition may be upheld if they are not punitive.

Worked Example 1.5

A state passes a law requiring residents to live in the state for one year before being eligible to receive state-funded non-emergency medical care for indigent residents. Long-term residents receive such care immediately upon becoming indigent. A new resident who moved three months ago challenges the law.

Answer:
The law burdens the fundamental right to interstate travel by penalizing recent migrants. Strict scrutiny applies. The state’s interest in conserving resources is legitimate but not compelling enough to justify denying basic medical care to new residents for a full year when less restrictive alternatives exist. The law is likely unconstitutional. [Memorial Hospital v. Maricopa County]

Right of Privacy

Many privacy rights are mainly analyzed under substantive due process, but when a law selectively burdens those rights for certain groups, equal protection concepts apply and strict scrutiny may be triggered.

Relevant privacy rights include:

• Marriage (including interracial and same-sex marriage). [Loving v. Virginia; Obergefell v. Hodges]
• Procreation (e.g., bans on sterilization of certain offenders). [Skinner v. Oklahoma]
• Contraception for married and unmarried persons. [Griswold v. Connecticut; Eisenstadt v. Baird]
• Family living arrangements, such as extended family members residing together.
• Child rearing and education, including choice of private or religious schools.

When a classification burdens these rights (e.g., only some groups may marry or live together), strict scrutiny applies.

Right of Access to Courts

Equal protection is implicated when access to the courts is conditioned on a person’s inability to pay and a fundamental interest is at stake, such as:

• Appeals from criminal convictions.
• Appeals involving termination of parental rights.
• Divorce or marriage-related proceedings.

The Court has held that states must waive certain fees for indigent litigants in these contexts. [Griffin v. Illinois; M.L.B. v. S.L.J.]

Worked Example 1.6

A state charges a $500 filing fee to appeal a termination of parental rights order. Indigent parents who cannot pay are denied the right to appeal. The state defends the law as a rational means of conserving judicial resources.

Answer:
The law burdens both the fundamental interest in family integrity and the fundamental right of access to courts in this context. Strict scrutiny applies. Conservation of resources is not a compelling justification for entirely denying appeals to indigent parents where parental rights are at stake. The law is likely unconstitutional.

OTHER DOCTRINAL INTERSECTIONS

Equal protection often overlaps with other constitutional provisions. On the MBE, you may need to choose the best constitutional basis for a challenge.

• Privileges and Immunities of Article IV: Protects out-of-state citizens (not corporations) against discrimination regarding important economic interests (e.g., employment) and civil liberties. It does not protect residents of the state against their own state.
• Commerce Clause: Limits state discrimination against interstate commerce. But if Congress authorizes the discrimination, the Commerce Clause objection may fall away while equal protection objections remain.
• Privileges or Immunities of the Fourteenth Amendment: Very narrow modern scope (e.g., the right to travel between states and be treated as a new resident).

Worked Example 1.7

A small city near a state border enacts an ordinance exempting out-of-state residents from the city’s sales tax to attract shoppers from a neighboring state. City residents must still pay the tax. A group of city residents sues, claiming the ordinance is unconstitutional.

Answer:
The strongest challenge is under the Equal Protection Clause of the Fourteenth Amendment. Residents and non-residents are treated differently, and only residents are disadvantaged. Article IV Privileges and Immunities protects out-of-state citizens, not local residents, so it does not help the plaintiffs. The city need only satisfy rational basis review; however, the exam question may test identification of the correct clause, not outcome.

Summary

The Equal Protection Clause prevents unjustified governmental discrimination. Equal protection analysis on the MBE involves a series of structured steps:

1. Is there state action?

   • If not, equal protection does not apply.

2. What is the classification?

   • Look for who is being treated differently and why (race, gender, alienage, income, etc.).

3. Is a fundamental right involved?

   • Voting, interstate travel, certain privacy rights, and access to courts in specific contexts.

4. What level of scrutiny applies?

   • Strict scrutiny for suspect classifications and fundamental rights.
   • Intermediate scrutiny for gender and legitimacy.
   • Rational basis for all other classifications, unless the Court applies “rational basis with bite.”

5. Is there discriminatory purpose?

   • For facially neutral laws with disparate impact, strict or intermediate scrutiny requires proof of intent to discriminate; otherwise, rational basis applies.

By systematically asking these questions, you can identify the likely level of scrutiny and predict whether the challenged law will be upheld or invalidated.

Key Point Checklist

This article has covered the following key knowledge points:

• Equal Protection applies directly to states via the Fourteenth Amendment and indirectly to the federal government through the Fifth Amendment’s Due Process Clause.
• State action is required; purely private conduct is not subject to equal protection unless it involves an exclusive public function or significant state involvement.
• Substantive due process concerns laws affecting everyone; equal protection concerns laws treating some groups differently.
• Three levels of scrutiny exist:
  • Strict scrutiny: law must be necessary for a compelling interest; government bears the burden; applied to suspect classifications and fundamental rights.
  • Intermediate scrutiny: law must be substantially related to an important interest; applied to gender and legitimacy; requires an “exceedingly persuasive justification” for gender classifications.
  • Rational basis: law must be rationally related to a legitimate interest; challenger bears the burden; default test for non-suspect classifications.
• Suspect classifications include race, national origin, and most state alienage classifications; they trigger strict scrutiny for both burdensome and “benign” racial classifications, including affirmative action.
• Quasi-suspect classifications include gender and legitimacy; they trigger intermediate scrutiny and cannot be justified by stereotypes or punitive aims.
• Non-suspect classifications (age, wealth, disability, sexual orientation, criminal history) are reviewed under rational basis, sometimes with “bite” when laws appear driven by animus.
• Discriminatory purpose, not just disparate impact, is generally required to trigger heightened scrutiny for facially neutral laws.
• Fundamental rights relevant to equal protection (voting, interstate travel, privacy, certain court access) trigger strict scrutiny when selectively burdened.
• The “one person, one vote” principle governs legislative apportionment to protect voting equality.
• Equal protection can overlap with other constitutional provisions; on the MBE, you may need to choose the best clause (e.g., Equal Protection vs. Privileges and Immunities vs. Commerce Clause).
• A structured approach—state action, classification, fundamental rights, level of scrutiny, and discriminatory purpose—helps analyze equal protection problems efficiently.

Key Terms and Concepts

• Equal Protection Clause
• State Action
• Strict Scrutiny
• Intermediate Scrutiny
• Rational Basis
• Rational Basis with Bite
• Suspect Classification
• Quasi-Suspect Classification
• Fundamental Right
• Disparate Impact
• Discriminatory Purpose
• Affirmative Action
• Benign Discrimination
• One Person, One Vote
• Class of One