Equal Protection Analysis

History and Structure of Equal Protection Analysis

In 1868, following the Civil War, the Equal Protection Clause became a part of the Constitution with the ratification of the Fourteenth Amendment, the first section of which states that “No state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” Equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. Equal protection analysis includes three tiers of classification: strict scrutiny, intermediate scrutiny, and rational basis review. Rational basis review is the minimum level of scrutiny for equal protection challenges, while intermediate scrutiny and strict scrutiny are heightened levels of scrutiny. At its heart, this analysis recognizes that because no governmental action is neutral—all acts of government have an impact on the rights of persons (the Constitution distinguishes between persons and citizens)—varying degrees of scrutiny are necessary if these actions are to withstand judicial analysis.

[Page 162]When the government, acting in and through public officials, treats individuals differently due to their race, national origin, religion, or citizenship status, with some exception, courts employ strict scrutiny in their equal protection analyses. Strict scrutiny is also used when governmental actors make distinctions between and among people based on their exercise of fundamental rights, such as those identified in the Constitution. Strict scrutiny has not been applied to higher education cases directly, because the U.S. Supreme Court has not identified education, at any level, for that matter, as a fundamental constitutional right. Under strict scrutiny, governmental actions are upheld as constitutional only if such classifications are narrowly tailored to further compelling governmental interests (for example, when policies such as affirmation action discriminate among racial or ethnic groups). In most cases, the result of strict scrutiny equal protection analysis is the invalidation of the governmental actions or policies.

When the government or its officials treat individuals differently due to their gender or legitimacy, courts apply intermediate scrutiny in their equal protection analysis. Under intermediate scrutiny, courts sustain discriminatory governmental actions only if they are substantially related to the achievement of important governmental interests. With respect to discriminatory gender classifications, the Supreme Court requires governmental entities to demonstrate exceedingly persuasive justification for their actions.

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