William_T._Bianco,_David_T._Canon]_American_Polit

179

Cases Involving

“Suspect Classification”

(race, ethnicity, creed,

or national origin)

Strict Scrutiny Test

discrimination

is legal

Cases Involving Sex

or Gender Equality

Intermediate

Scrutiny Test

Cases Involving Age,

Economic Status,

or Other Criteria

Rational

Basis Test

1. Is unequal treatment
   justified by a “compelling
   state interest”?
   
   
   1. Is the discriminatory policy
      “substantially related” to an
      “important government objective”?
      
      
      1. Is the law rationally related
         to furthering a legitimate
         government interest?
      
      
      
      
   
   
   
   


2. Is unequal treatment
   the “least restrictive” option?
   2. Is the discrimination
   not substantially broader than
   it needs to be to protect the important
   government interest?
   2. Does the policy avoid
   “arbitrary, capricious, or
   deliberate” discrimination?

discrimination

is illegal

discrimination

is illegal

discrimination

is illegal

no

no

no no no

discrimination

is illegal

discrimination

is illegal

discrimination

is illegal

Very few cases meet

this standard.

Some discrimination based

on gender is permitted, but

this test is harder to pass

than the rational basis test

applied to gender cases in

the past. This is the easiest hurdle

for a law or policy to pass.

The Court asked...

1. Is unequal treatment justified
   by a “compelling state interest”?


2. Is unequal treatment the “least
   restrictive” option?

The Court asked...

1. Is the discriminatory policy
   "substantially related" to
   an "important government
   objective"?


2. Is the discrimination not
   substantially broader than it
   needs to be to to protect the
   important government interest?

The Court asked...

1. Is the law rationally related
   to furthering a legitimate
   government interest?


2. Does the policy avoid
   "arbitrary, capricious, or
   deliberate" discrimination?

Case 1:

The University

of Michigan Law

School’s “holistic”

race-conscious

admissions policy

is designed to

promote diversity.

Case 2:

The University of

Michigan’s more

rigid race-conscious

undergraduate

admissions policy

was designed to

promote diversity.

Case 1:

A California state

law says that men—

but not women—

can be guilty of

statutory rape.

Case 2:

The Virginia Military

Institute maintained

a male-only

admissions policy.

Case 1:

States have a

21-year-old drinking

age that applies

equally to men

and women.

Case 2:

An Oklahoma

law allowed 18- to

20-year-old women—

but not men—to buy

3.2% beer.

In Case 1,

discrimination

is OK. In Michael M.

v. Superior Court

(1981), the Court

found that the

state had a strong

interest in prevent-

ing illegitimate

pregnancy and in

punishing only the

participant who, by

nature, suffers few

of the consequences

of his conduct.

In Case 2,

discrimination

is not OK. In United

States v. Virginia

(1996), the Court

struck down the

Virginia Military

Institute’s policy

as a violation of the

equal protection

clause of the Four-

teenth Amendment.

In Case 1,

discrimination

is OK. In Grutter v.

Bollinger (2003),

the Court ruled that

the state’s interest

in racial diversity in

higher education

was compelling,

and that this specific

admissions policy

was narrowly

tailored. This was

affirmed in Fisher

v. Univ. of Texas

(2016).

In Case 2,

discrimination

is not OK. In Gratz

v. Bollinger (2003),

the Court struck

down Michigan’s

undergraduate

admissions

policy for not being

narrowly tailored.

How it works: in practice

Evaluating Discrimination Cases

How it works: in theory

Civil Rights

Strict

Scrutiny Test

Intermediate

Scrutiny Test

Rational

Basis Test

The Court said...

The Court said...

The Court said...

In Case 1,

discrimination

is OK. Various state

supreme courts

have upheld these

laws on the rational

basis that the laws

may prevent drunk

driving among 18-

to 20-year-olds.

In Case 2,

discrimination

is not OK. In Craig

v. Boren (1976), the

Court struck down

this law, rejecting

the rational basis

that Oklahoma had

claimed and instead

applying intermedi-

ate scrutiny.

1. Is it easier for the government to
   discriminate against someone based
   on age or race? Why?
   2. What is the standard used by the
   Court if the state wants to make
   distinctions between people based on
   race? Under what circumstances and in
   what scenarios is discrimination based
   on race legal?

Critical Thinking

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