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Welcome back to the Deep Dive. 
Today we are tackling a monster.

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We really are. 
And I mean that in, you know, 

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the best possible way, but also 
in the most terrifying way for 

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anyone staring down a final 
exam. 

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Absolutely. 
We are looking at what is 

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probably the single most 
significant sentence in American

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constitutional law. 
It's the weapon of choice for 

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civil rights. 
It's the battleground for 

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everything from school 
segregation to marriage 

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equality. 
And let's just be honest, it's 

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the section of the exam that 
causes the most anxiety. 

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It is. 
We are talking about the equal 

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protection clause of 14th 
Amendment, and you're right to 

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call it a monster if you're a 
law student. 

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This is it. 
This is the main event. 

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It's the whole game. 
It's the engine of modern 

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constitutional rights. 
But, and this is the really 

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tricky part, the doctrine itself
feels intuitive on one hand, but

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in practice it's incredibly 
rigid. 

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It's formulaic. 
Right, because on a gut level, 

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equal protection just sounds 
simple. 

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Yeah, treat everyone the same. 
Exactly. 

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If the government treats me 
differently than it treats my 

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neighbor, that feels unfair. 
My brain immediately says that's

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an equal protection violation. 
That's the right human instinct.

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That's the student perspective. 
But if you write it feels unfair

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on a bar exam answer, you're 
going to get 0 points right? 

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The Supreme Court doesn't just 
ask is it fair? 

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They've built this massive 
tiered machine to process these 

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claims. 
So our mission today is to take 

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that intuition, that sense of 
fairness, and translate it into 

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the specific point scoring legal
analysis that courts actually 

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use. 
We've got to move from this is 

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wrong to this fail strict 
scrutiny because it's not 

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narrowly tailored to a 
compelling state interest. 

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And we have a pretty formidable 
stack of sources to help us do 

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that. 
We have the foundational cases, 

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of course, the big names. 
We've also got our episode 

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guide, which is our road map. 
But what I'm really interested 

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in are some of these newer 
pieces, like one on affirmative 

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algorithms, that draft this 1868
amendment right into the age of 

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AI. 
And that's so important because 

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it shows this isn't some dead 
historical concept. 

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It's alive and it's evolving, 
but before we get to the cutting

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edge, we have to build the 
foundation. 

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You have to start with the text.
You have to start with the text.

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Let's do it. 14th Amendment. 
No state shall deny to any 

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person within its jurisdiction 
the equal protection of the 

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laws. 
OK, stop right there. 

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The 1st 2 words state no state. 
This is critical for any exam. 

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The 14th Amendment, by its own 
text, applies only to the States

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and their subdivisions, like 
cities or state universities. 

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Which seems like a massive 
loophole. 

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It does. 
Does that mean Congress or the 

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FBI can just discriminate 
however they want? 

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No, but the legal pathway is 
different, and this is a classic

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exam trap. 
In a case called Bowling V 

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Sharp, which was actually the DC
school desegregation case 

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decided the same day as Brown V 
Board, the court did something 

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clever, OK? 
They said that the 5th 

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Amendment's due process clause, 
which does apply to the federal 

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government, has an equal 
protection component sort of 

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baked into it. 
They call this reverse 

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incorporation. 
Reverse incorporation O for the 

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person writing an answer. 
What's the bottom line? 

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The bottom line is the analysis 
is identical. 

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The tiers of scrutiny, the 
tests, everything is the same. 

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But if the fact pattern involves
Congress or a federal agency, 

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you must cite the 5th Amendment.
If you cite the 14th, you're 

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losing points. 
You're losing easy points. 

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It's a technicality, but you 
know, law schools built on 

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technicalities. 
OK, noted. 

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So we've got the text now. 
What does equal protection 

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actually mean? 
You said it's not just treat 

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everyone identically. 
Right. 

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I mean, think about it. 
The government classifieds 

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people all the time. 
All the time. 

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We let 20 year olds drive but 
not drink alcohol. 

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We tax people with high incomes 
at a different rate. 

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We don't give driver's licenses 
to people who are legally blind.

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These are all classifications. 
The equal protection clause 

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simply says that people who are 
similarly situated have to be 

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treated alike. 
So the whole game is about 

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justification. 
The whole game is asking, is the

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government's reason for drawing 
this line good enough? 

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And this is where we get into 
the tiers of scrutiny. 

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This is the mental road map, we 
promise. 

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This is the Holy Grail of the 
subject. 

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The court has developed this 
tiered approach, and the level 

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of justification the government 
has to provide depends entirely 

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on who they are classifying. 
If you can figure out the right 

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tier, you can almost always 
predict the outcome of the case.

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OK, so let's walk through them, 
starting at the top, the highest

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mountain to climb Tier 1 strict 
scrutiny. 

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Strict scrutiny. 
This is the highest bar in 

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constitutional law. 
It gets triggered when the 

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government makes a 
classification based on a 

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suspect classification. 
And what's on that list? 

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The big three are Race, National
Origin and Alienage, though 

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Alienage has some big asterisk 
we need to talk about. 

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It also gets triggered if a law,
any law, burdens of fundamental 

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right like the right to vote, 
the right to travel between 

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states, things like that. 
And if a law gets put into that 

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bucket, what does the government
have to prove? 

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The burden of proof immediately 
shifts to the government and it 

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is a crushing burden. 
They have to prove that the law 

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is narrowly tailored to achieve 
a compelling state interest. 

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Let's break those terms down. 
Compelling sounds like more than

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just a good idea. 
It's way more think national 

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security in wartime, think 
preventing anarchy. 

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It has to be something 
absolutely vital. 

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And narrowly tailored. 
That means there's no other way 

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to achieve the goal. 
It has to be the least 

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restrictive, most precise tool 
available. 

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If there's any other way to do 
it that's less discriminatory, 

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the law fails. 
It's basically impossible to 

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pass. 
There's a famous phrase from a 

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legal scholar, Gerald Gunther, 
he said. 

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Strict scrutiny is strict in 
theory, but fatal in fact. 

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Fatal, in fact. 
If you're the government and the

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court says strict scrutiny, 
you're almost certainly going to

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lose. 
You mentioned wartime, and that 

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brings up the one very tragic 
historical exception. 

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It does Korematsu the United 
States World War 2, the 

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internment of Japanese 
Americans. 

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It's a dark moment, and what's 
so ironic is that this was the 

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very case where the court first 
said race is a suspect 

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classification that requires the
most rigid scrutiny. 

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And then they upheld. 
It and then they upheld it. 

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They accepted the government's 
claim of military necessity as a

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compelling interest. 
It's, I mean, it's universally 

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condemned today. 
The court has basically disowned

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it. 
But it still stands as the rare,

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tragic example of a law 
surviving this test. 

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OK, so that's the top tier. 
Let's jump all the way to the 

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bottom before we hit the middle 
Tier 3 rational basis review. 

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This is the default. 
It's the catch all category. 

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If the classification isn't 
based on race, gender, or one of

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the other special categories, it
lands here. 

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So what are we talking about? 
Age. 

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Age, disability, wealth, 
poverty, sexual orientation, and

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historically anyway, all of 
those are classic rational basis

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classification. 
And how does the test change? 

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It flips completely. 
Now the burden is on the 

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plaintiff, the person 
challenging the law. 

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And what do they have to prove? 
They have to prove that the law 

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is not rationally related to any
legitimate government interest. 

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And legitimate is a pretty low 
bar. 

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It's the floor. 
Health, safety, public morals, 

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saving money, administrative 
convenience, almost anything a 

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legislature could think of is 
considered legitimate. 

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So the government doesn't even 
have to prove the law works. 

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Not at all, and this is the real
kicker. 

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The government doesn't even have
to prove they passed the law for

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that legitimate reason. 
The court will do the work for 

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them. 
What do you mean? 

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In a case called Williamson V 
Optical, the court said it's 

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enough that the legislature 
might have had a rational 

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reason. 
The court will literally 

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hypothesize reasons if they can 
imagine one possible scenario 

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where the law makes sense law 
stands. 

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So if strict scrutiny is fatal, 
in fact, rational basis is. 

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Usually, when in fact for the 
government, it's incredibly 

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deferential. 
The government almost always 

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wins. 
Which leaves us with a middle 

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ground Tier 2 intermediate 
scrutiny. 

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The middle child? 
Exactly. 

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This standard was developed 
largely to deal with 

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classifications based on gender 
and illegitimacy, that is, 

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discriminating against children 
born out of wedlock. 

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OK. 
And what's the test here? 

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It's right in the middle. 
The government has the burden of

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proof and they have to show the 
law is substantially related to 

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an important governmental 
objective. 

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So the interest has to be 
important, not compelling. 

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Right. 
And the connection has to be 

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substantial, not narrowly 
tailored. 

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It's tougher than rational 
basis, for sure, but it gives 

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the government a little more 
breathing room than strict 

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scrutiny. 
OK, so there's the road map. 

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Suspect class equals strict, 
quasi suspect like gender equals

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intermediate and pretty much 
everything else gets rational 

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basis. 
That's the framework. 

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Now I want to do what we 
promised, which is a real deep 

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dive into these categories 
because the sources we have 

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suggest it's not always so 
clean. 

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Let's start back at the top with
race and strict scrutiny. 

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Perfect, because this is the 
core of the 14th Amendment. 

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It was written after the Civil 
War specifically to address 

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racial discrimination against 
newly freed slaves. 

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Early cases like Stratter View, 
West Virginia, which struck down

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a law that banned black men from
serving on juries, made that 

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purpose crystal clear. 
And how has that evolved into 

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the modern doctrine? 
Today the doctrine is really 

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dominated by what's called the 
Anti Classification principle. 

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Color blindness. 
Essentially, yes. 

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The modern court views the equal
protection clause as demanding 

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that the government may be color
blind. 

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It can't classify people by 
race, period. 

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Which brings us directly to the 
biggest battleground on this 

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topic for the last 50 years, 
affirmative action. 

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It really has been for a long, 
long time. 

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Under cases like Gretter V 
Bollinger, the court said that 

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achieving diversity in higher 
education was a compelling 

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interest. 
So universities could consider 

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race. 
They could use it as one plus 

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factor among many in a holistic 
review of an applicant. 

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But, and this was key, it 
couldn't be mechanical. 

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A different case, Grassi V 
Bollinger, struck down a system 

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where the university just gave 
every minority applicant an 

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automatic 20 points. 
So a holistic plus factor was 

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OK, but a quota or a point 
system was not. 

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Exactly. 
But that entire landscape has 

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shifted dramatically. 
With the recent Students for 

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Fair Admissions case against 
Harvard and UNC. 

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Drastically. 
In that case, the court 

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essentially said that the 
educational benefits of 

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diversity, while laudable, are 
too amorphous to justify an 

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explicit racial classification. 
They basically dismantled the 

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greater framework. 
The era of race conscious 

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admissions as we knew it is, for
the most part, over. 

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This connects directly to that 
fascinating paper we have from 

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the Stanford Reg Lab, 
Affirmative algorithms, Because 

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this feels like where the next 
battle. 

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Is it is. 
We're using AI and algorithms to

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make huge decisions, hiring loan
applications, even policing, and

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there's a fundamental tension in
the law here. 

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A tension between. 
Between anti classification, 

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which says you cannot look at 
race, and anti subordination 

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which says you must fix the 
racial disparity, they often 

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point in opposite direction. 
OK, explain that. 

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So let's say a bank uses an 
algorithm for mortgage 

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applications, and because of 
historical data, that algorithm 

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00:11:14,480 --> 00:11:17,640
ends up denying loans to black 
applicants at a much higher 

235
00:11:17,640 --> 00:11:19,480
rate. 
That's a disparity, right? 

236
00:11:19,680 --> 00:11:21,920
Now, a programmer might say, 
let's fix this. 

237
00:11:21,920 --> 00:11:23,400
Let's create an affirmative 
algorithm. 

238
00:11:23,640 --> 00:11:26,760
We'll tell the code to 
explicitly adjust its criteria 

239
00:11:26,960 --> 00:11:29,880
to make sure it approves more 
loans for minority applicants to

240
00:11:29,880 --> 00:11:33,040
fix the imbalance. 
The paper calls this seeking 

241
00:11:33,240 --> 00:11:35,640
statistical parity. 
That sounds fair. 

242
00:11:35,640 --> 00:11:38,600
It sounds like a good thing. 
It sounds fair, but under 

243
00:11:38,600 --> 00:11:40,480
current equal protection 
doctrine, what did that 

244
00:11:40,480 --> 00:11:42,160
programmer just do? 
They use race. 

245
00:11:42,360 --> 00:11:45,240
They used an explicit racial 
classification, they told the 

246
00:11:45,240 --> 00:11:48,120
machine treat applicants 
differently based on race to 

247
00:11:48,120 --> 00:11:51,320
achieve a balanced outcome that 
triggers strict scrutiny. 

248
00:11:51,360 --> 00:11:54,120
And trying to fix societal 
discrimination is probably not 

249
00:11:54,120 --> 00:11:56,800
going to be seen as a compelling
interest by this court. 

250
00:11:57,000 --> 00:12:00,080
Almost certainly not. 
So the very act of trying to 

251
00:12:00,080 --> 00:12:02,440
make the AI fair becomes 
unconstitutional. 

252
00:12:02,760 --> 00:12:05,320
It's what the authors call a 
fatal collision. 

253
00:12:06,200 --> 00:12:09,000
The doctrine is at war with the 
goal of equity. 

254
00:12:09,480 --> 00:12:12,000
That's a complete paradox. 
The law designed to prevent 

255
00:12:12,000 --> 00:12:15,000
discrimination is preventing us 
from fixing discrimination. 

256
00:12:15,000 --> 00:12:17,120
It is, at least when it comes to
these new technologies. 

257
00:12:17,440 --> 00:12:21,080
It's a huge unresolved problem. 
Let's pivot to the other big 

258
00:12:21,080 --> 00:12:25,280
suspect class, the one you said 
had asterisks, alienage or non 

259
00:12:25,280 --> 00:12:27,520
citizens. 
Right, so the general rule is 

260
00:12:27,520 --> 00:12:31,520
that legal aliens, people who 
are in the country lawfully but 

261
00:12:31,520 --> 00:12:33,960
aren't citizens, are a suspect 
class. 

262
00:12:34,360 --> 00:12:37,680
If a state passes a law saying 
non citizens can't get welfare 

263
00:12:37,680 --> 00:12:40,880
benefits that get strict 
scrutiny, the state will almost 

264
00:12:40,880 --> 00:12:43,200
always lose. 
That's a case called Graham V 

265
00:12:43,200 --> 00:12:45,400
Richardson. 
OK, so that's the general rule. 

266
00:12:45,400 --> 00:12:48,280
What are the asterisks? 
Two huge exceptions. 

267
00:12:48,320 --> 00:12:50,000
First is the political function 
exception. 

268
00:12:50,000 --> 00:12:52,320
What's that? 
If the job or the role involves 

269
00:12:52,320 --> 00:12:55,160
the process of democratic self 
governance, a state can 

270
00:12:55,160 --> 00:12:58,560
discriminate against non 
citizens and the standard drops 

271
00:12:58,560 --> 00:13:00,040
all the way down to rational 
basis. 

272
00:13:00,040 --> 00:13:01,720
So what kind of jobs are we 
talking about? 

273
00:13:01,880 --> 00:13:05,320
The court has said police 
officers, probation officers and

274
00:13:05,320 --> 00:13:08,440
even public school teachers. 
Wait, a state can ban a legal 

275
00:13:08,440 --> 00:13:10,480
resident from being a public 
school teacher? 

276
00:13:10,480 --> 00:13:13,000
Yes. 
The court's logic in a case 

277
00:13:13,000 --> 00:13:17,360
called Ambac V Norwick was that 
teachers play a critical role in

278
00:13:17,360 --> 00:13:20,840
shaping the civic values of 
students, and that's part of 

279
00:13:20,840 --> 00:13:23,520
self governance. 
That seems like a stretch. 

280
00:13:23,560 --> 00:13:26,120
It's very debatable and there 
are weird lines. 

281
00:13:26,600 --> 00:13:30,480
The court said states can't ban 
non citizens from being notaries

282
00:13:30,480 --> 00:13:33,520
public. 
A notary is just a clerical job,

283
00:13:33,600 --> 00:13:36,160
it doesn't involve governing. 
OK, so that's the first 

284
00:13:36,160 --> 00:13:37,280
exception. 
What's the second? 

285
00:13:37,280 --> 00:13:40,040
The second is all about who is 
doing the discriminating. 

286
00:13:40,320 --> 00:13:43,880
If it's the federal government, 
not a state, the standard is 

287
00:13:43,880 --> 00:13:45,960
only rational basis. 
Why the difference? 

288
00:13:46,080 --> 00:13:49,000
Because the Constitution gives 
Congress plenary power over 

289
00:13:49,000 --> 00:13:52,360
immigration and naturalization, 
the Court is extremely 

290
00:13:52,360 --> 00:13:54,480
differential to the federal 
government in this area. 

291
00:13:55,000 --> 00:13:57,960
So a federal law restricting 
Medicare for aliens was upheld 

292
00:13:57,960 --> 00:14:00,880
in Matthews VDS. 
So for an exam you have to ask 2

293
00:14:00,880 --> 00:14:04,080
questions. 
Exactly 1 Is this the state or 

294
00:14:04,080 --> 00:14:06,920
the feds? 
And two, if it's the state, does

295
00:14:06,920 --> 00:14:08,760
the political function exception
apply? 

296
00:14:09,200 --> 00:14:11,960
Get either one wrong and you're 
in a wrong tier A. 

297
00:14:11,960 --> 00:14:15,320
Classic trap. 
OK, let's move down the ladder 

298
00:14:15,320 --> 00:14:18,360
to intermediate scrutiny, and 
the big one here is gender. 

299
00:14:18,440 --> 00:14:20,000
Right. 
And this is really the story of 

300
00:14:20,000 --> 00:14:23,080
Ruth Bader Ginsburg's career as 
a lawyer before she was a 

301
00:14:23,080 --> 00:14:25,720
justice. 
Before the 1970s, gender 

302
00:14:25,720 --> 00:14:28,280
discrimination was just reviewed
under rational basis. 

303
00:14:28,360 --> 00:14:29,840
And the courts upheld 
everything. 

304
00:14:29,880 --> 00:14:33,680
Everything laws barring women 
from being bartenders, from 

305
00:14:33,680 --> 00:14:37,240
being lawyers. 
The reasoning was paternalistic 

306
00:14:37,280 --> 00:14:42,360
and based on stereotypes. 
Then, in 1971, came Reed V Reed.

307
00:14:42,440 --> 00:14:44,320
What happened there? 
It was a simple case. 

308
00:14:44,720 --> 00:14:47,320
An Idaho law said that if a man 
and a woman were equally 

309
00:14:47,320 --> 00:14:49,920
entitled to administer a 
deceased persons estate, the 

310
00:14:49,920 --> 00:14:53,080
male must be preferred. 
Just an automatic preference for

311
00:14:53,080 --> 00:14:55,640
men to avoid a hearing. 
And the court struck it down. 

312
00:14:55,720 --> 00:14:58,720
For the first time ever, yes, 
they said it was arbitrary. 

313
00:14:58,720 --> 00:15:01,400
They still called it rational 
basis, but is the beginning of 

314
00:15:01,400 --> 00:15:03,560
the end. 
The standard was officially born

315
00:15:03,560 --> 00:15:05,480
a few years later in Craig V 
Boring. 

316
00:15:05,480 --> 00:15:06,960
That's the famous beer case, 
right? 

317
00:15:07,040 --> 00:15:11,560
It is Oklahoma had a law that 
allowed women to buy 3.2% beer 

318
00:15:11,720 --> 00:15:15,320
at age 18, but men had to wait 
until they were 21. 

319
00:15:15,320 --> 00:15:16,760
And what was their 
justification? 

320
00:15:17,200 --> 00:15:20,440
They had statistics. 
Their data showed that young men

321
00:15:20,440 --> 00:15:24,200
between 18 and 20 were arrested 
for drunk driving way more often

322
00:15:24,200 --> 00:15:26,640
than young women. 
So they had a real world reason.

323
00:15:26,640 --> 00:15:29,560
They did, but the Supreme Court 
said the connection wasn't 

324
00:15:29,560 --> 00:15:32,480
strong enough. 
It wasn't substantially related 

325
00:15:32,480 --> 00:15:35,840
to the goal of Traffic Safety, 
and that's where intermediate 

326
00:15:35,840 --> 00:15:38,000
scrutiny was officially 
established for gender 

327
00:15:38,000 --> 00:15:40,640
classifications. 
But I've seen a different phrase

328
00:15:40,640 --> 00:15:43,520
used in later cases, something 
that sounds even tougher. 

329
00:15:43,760 --> 00:15:46,080
Exceedingly persuasive 
justification. 

330
00:15:46,080 --> 00:15:48,880
You have That comes directly 
from the landmark VMI case 

331
00:15:48,880 --> 00:15:51,400
United States V Virginia. 
The Military Academy. 

332
00:15:51,400 --> 00:15:53,120
Right. 
The Virginia Military Institute 

333
00:15:53,120 --> 00:15:55,520
was an all male public military 
college. 

334
00:15:56,160 --> 00:15:59,200
They argue that their unique 
adversative method, this 

335
00:15:59,200 --> 00:16:01,680
intense, aggressive training 
style, just wouldn't work with 

336
00:16:01,680 --> 00:16:02,960
women. 
And they offered to create a 

337
00:16:02,960 --> 00:16:05,480
separate program for women as a 
compromise. 

338
00:16:05,800 --> 00:16:09,240
They did a separate leadership 
institute that was by all 

339
00:16:09,240 --> 00:16:12,840
accounts not nearly as good, and
the court, in an opinion by 

340
00:16:12,840 --> 00:16:14,600
Justice Ginsburg, was not having
it. 

341
00:16:14,680 --> 00:16:16,520
What did she say? 
She said the government's 

342
00:16:16,520 --> 00:16:20,200
justification must be 
exceedingly persuasive, and you 

343
00:16:20,200 --> 00:16:23,880
can't justify these rules based 
on archaic and overbroad 

344
00:16:23,880 --> 00:16:27,040
generalizations about the 
talents or roles of men and 

345
00:16:27,040 --> 00:16:29,520
women. 
Even if most women wouldn't want

346
00:16:29,520 --> 00:16:33,040
the VMI experience, you can't 
exclude the ones who can and do.

347
00:16:33,440 --> 00:16:36,960
So that phrase, exceedingly 
persuasive it seems to ratchet 

348
00:16:36,960 --> 00:16:39,440
up the standard. 
Many scholars believe it pushed 

349
00:16:39,440 --> 00:16:42,680
intermediate scrutiny for gender
much closer to strict scrutiny. 

350
00:16:42,880 --> 00:16:45,560
It's a very, very hard test for 
the government to pass today. 

351
00:16:45,800 --> 00:16:48,400
So are there any gender 
distinctions that the court 

352
00:16:48,560 --> 00:16:50,160
allows? 
Very few. 

353
00:16:50,600 --> 00:16:54,520
The major area where they have 
is when the law is based on what

354
00:16:54,520 --> 00:16:57,480
the court sees as real 
biological differences between 

355
00:16:57,480 --> 00:16:59,760
the sexist, not stereotypes. 
It's an example of that. 

356
00:16:59,760 --> 00:17:03,000
The case of Naqui and VINS. 
It involved a law that made it 

357
00:17:03,000 --> 00:17:06,200
easier for a child born abroad 
to an unmarried American mother 

358
00:17:06,520 --> 00:17:09,400
to get citizenship than to a 
child born to an unmarried 

359
00:17:09,400 --> 00:17:11,720
American father. 
The court upheld it. 

360
00:17:11,920 --> 00:17:14,240
Their logic was that the 
mother's relationship to the 

361
00:17:14,240 --> 00:17:16,560
child is biologically verifiable
at birth. 

362
00:17:17,040 --> 00:17:19,560
The father's is not necessarily 
so. 

363
00:17:19,560 --> 00:17:22,240
They said the different rules 
were justified by the goal of 

364
00:17:22,240 --> 00:17:25,000
ensuring a real parent child 
relationship exists. 

365
00:17:25,520 --> 00:17:28,600
It's a controversial decision, 
but it shows the line the court 

366
00:17:28,600 --> 00:17:31,800
tries to draw. 
Biological reality, yes. 

367
00:17:32,040 --> 00:17:33,800
Stereotype No. 
OK, that makes sense. 

368
00:17:34,360 --> 00:17:36,800
Let's head down to the basement 
rational basis. 

369
00:17:37,160 --> 00:17:40,480
You said this is the catch all 
for things like age, wealth and 

370
00:17:40,480 --> 00:17:41,640
disability. 
Correct. 

371
00:17:41,760 --> 00:17:44,080
And these are some of the most 
frustrating cases for people who

372
00:17:44,080 --> 00:17:47,560
care about social justice. 
The court has flatly refused to 

373
00:17:47,560 --> 00:17:50,800
make poverty A suspect class. 
So laws that disproportionately 

374
00:17:50,800 --> 00:17:52,960
harm the poor get very little 
scrutiny. 

375
00:17:53,120 --> 00:17:54,920
Very. 
Little and Dandridge V Williams,

376
00:17:55,160 --> 00:17:58,280
they upheld a state's cap on 
welfare benefits no matter how 

377
00:17:58,280 --> 00:17:59,640
many children were in the 
family. 

378
00:18:00,360 --> 00:18:03,920
In San Antonio V Rodriguez, they
upheld a school funding system 

379
00:18:03,920 --> 00:18:07,560
based on local property taxes, 
even though it created massive 

380
00:18:07,560 --> 00:18:09,760
inequalities between rich and 
poor districts. 

381
00:18:10,040 --> 00:18:11,960
And the reasoning was. 
As long as there was some 

382
00:18:11,960 --> 00:18:15,720
rational reason, like giving 
communities local control over 

383
00:18:15,720 --> 00:18:18,080
their schools, the inequality is
constitutional. 

384
00:18:18,240 --> 00:18:21,040
What about age? 
Same story a case called 

385
00:18:21,040 --> 00:18:24,760
Massachusetts Board of 
Retirement V Mergia, a state law

386
00:18:24,760 --> 00:18:27,760
for state police officers to 
retire at age 50. 

387
00:18:28,280 --> 00:18:31,120
The court said that's fine. 
It's rational to assume that 

388
00:18:31,120 --> 00:18:33,800
physical fitness generally 
declines with age. 

389
00:18:34,320 --> 00:18:37,320
Even if a particular 50 year old
officer is in perfect shape. 

390
00:18:37,320 --> 00:18:40,120
Exactly. 
Rational basis tolerates 

391
00:18:40,120 --> 00:18:42,200
imperfection. 
It doesn't have to be a perfect 

392
00:18:42,200 --> 00:18:44,280
fit. 
But then we have the case of 

393
00:18:44,280 --> 00:18:47,160
City of Claiborne. 
This case feels like a glitch in

394
00:18:47,160 --> 00:18:49,400
the system. 
It's about disability, which you

395
00:18:49,400 --> 00:18:51,800
said is rational basis, but the 
government actually lost. 

396
00:18:51,880 --> 00:18:54,120
How did that happen? 
This is one of my absolute 

397
00:18:54,120 --> 00:18:57,000
favorite cases because it shows 
the court has a pulse. 

398
00:18:57,200 --> 00:18:59,400
It shows that the tears aren't 
completely mindless. 

399
00:18:59,400 --> 00:19:02,920
So the city of Cleburne, TX had 
a zoning ordinance. 

400
00:19:03,560 --> 00:19:06,120
It required a special use permit
for a group home for the 

401
00:19:06,120 --> 00:19:09,360
intellectually disabled, but it 
didn't require a permit for 

402
00:19:09,360 --> 00:19:11,960
apartment buildings, frat houses
or nursing homes. 

403
00:19:11,960 --> 00:19:14,440
Which makes no sense at all. 
It's completely irrational. 

404
00:19:14,520 --> 00:19:17,560
The challengers asked the court 
to make disability a suspect or 

405
00:19:17,560 --> 00:19:21,280
quasi suspect class. 
The court explicitly refused. 

406
00:19:21,320 --> 00:19:23,960
They said no. 
The standard is rational basis. 

407
00:19:24,280 --> 00:19:25,760
But then they struck the law 
down. 

408
00:19:26,000 --> 00:19:28,640
They struck it down anyway, and 
this is the key. 

409
00:19:29,000 --> 00:19:31,720
They actually looked at the 
city's stated reasons. 

410
00:19:32,360 --> 00:19:34,840
The city said they were worried 
about the residents being 

411
00:19:34,840 --> 00:19:38,600
harassed by students from a 
nearby school, and they were 

412
00:19:38,600 --> 00:19:40,840
concerned about its location on 
a floodplain. 

413
00:19:41,320 --> 00:19:43,320
And the court dismantled those 
reasons. 

414
00:19:43,320 --> 00:19:46,520
One by one they said, well, the 
school is also next to the 

415
00:19:46,520 --> 00:19:49,440
nursing home so that can't be 
it, and lots of other buildings 

416
00:19:49,440 --> 00:19:51,720
are in the floodplain, so that 
can't be it either. 

417
00:19:52,440 --> 00:19:55,560
They concluded that the only 
real motivation behind the law 

418
00:19:55,800 --> 00:19:59,240
was irrational prejudice and 
fear on the part of the 

419
00:19:59,240 --> 00:20:01,280
neighbors. 
So they applied rational basis, 

420
00:20:01,280 --> 00:20:04,200
but they didn't just invent A 
hypothetical reason like they 

421
00:20:04,200 --> 00:20:07,960
did in the Lee Optical case. 
Precisely this is what scholars 

422
00:20:07,960 --> 00:20:11,920
call rational basis with BITE, 
and it established A crucial 

423
00:20:11,920 --> 00:20:15,120
principle. 
A bare desire to harm or animus 

424
00:20:15,120 --> 00:20:18,320
towards a group is never a 
legitimate government interest. 

425
00:20:18,480 --> 00:20:21,160
This idea of animus is the 
perfect bridge to our next 

426
00:20:21,160 --> 00:20:25,000
topic, sexual orientation, 
because for decades gay rights 

427
00:20:25,000 --> 00:20:27,840
cases just didn't fit neatly 
into the three tiers. 

428
00:20:28,040 --> 00:20:29,960
They didn't. 
And to be clear, the Supreme 

429
00:20:29,960 --> 00:20:33,200
Court has never officially held 
that sexual orientation gets 

430
00:20:33,200 --> 00:20:36,640
strict or intermediate scrutiny.
So technically it's still a 

431
00:20:36,640 --> 00:20:40,520
rational basis. 
Technically yes, but every major

432
00:20:40,520 --> 00:20:44,760
gay rights victory from Roemer 
to Windsor to Oberfell has been 

433
00:20:44,760 --> 00:20:48,600
decided using this rational 
basis with BITE or a blend of 

434
00:20:48,600 --> 00:20:50,560
equal protection and due process
ideas. 

435
00:20:50,600 --> 00:20:53,680
Let's start with Roemer V Evans.
This was 1996. 

436
00:20:54,120 --> 00:20:56,720
The voters of Colorado approved 
an amendment to their state 

437
00:20:56,720 --> 00:21:00,720
constitution, Amendment 2, that 
prevented any city or town from 

438
00:21:00,720 --> 00:21:03,040
passing laws that protected gay 
and lesbian people from 

439
00:21:03,040 --> 00:21:05,840
discrimination. 
So it was a law banning anti 

440
00:21:05,840 --> 00:21:07,400
discrimination laws. 
Exactly. 

441
00:21:07,720 --> 00:21:10,400
And Justice Kennedy, writing for
the court, didn't create a new 

442
00:21:10,400 --> 00:21:12,400
tier. 
He just said look at what this 

443
00:21:12,400 --> 00:21:14,760
law does. 
It identifies a single group and

444
00:21:14,760 --> 00:21:16,440
makes them unequal to everyone 
else. 

445
00:21:16,720 --> 00:21:20,000
He said it was inexplicable by 
anything but animus, a bear 

446
00:21:20,000 --> 00:21:22,440
desire to harm a politically 
unpopular group. 

447
00:21:22,680 --> 00:21:26,280
And since a desire to harm isn't
a legitimate interest, the law 

448
00:21:26,280 --> 00:21:28,280
fails even the lowest possible 
test. 

449
00:21:28,480 --> 00:21:31,320
You've got it. 
That same logic continued in 

450
00:21:31,320 --> 00:21:34,200
United States V Windsor, the 
case that struck down the 

451
00:21:34,200 --> 00:21:36,200
federal Defense of Marriage Act.
DOMA. 

452
00:21:36,400 --> 00:21:37,840
Right. 
The federal government was 

453
00:21:37,840 --> 00:21:41,760
refusing to recognize state 
sanctioned gay marriages for 

454
00:21:41,760 --> 00:21:45,960
federal purposes like taxes. 
And again, the court said this 

455
00:21:45,960 --> 00:21:50,240
law's purpose was to demean the 
couple and humiliate their 

456
00:21:50,240 --> 00:21:52,720
children. 
It was rooted in Animus. 

457
00:21:52,720 --> 00:21:55,720
We have this fascinating article
that argues this entire 

458
00:21:55,720 --> 00:21:57,960
approach. 
This more flexible, animus 

459
00:21:57,960 --> 00:22:00,680
focused review actually goes 
back to Justice Thorgood 

460
00:22:00,680 --> 00:22:02,160
Marshall. 
It's a brilliant connection. 

461
00:22:02,400 --> 00:22:05,400
Marshall always hated the rigid 
3 pier system. 

462
00:22:05,560 --> 00:22:08,880
He thought it was a shell game. 
In his famous dissents in cases 

463
00:22:08,880 --> 00:22:12,120
like Dandridge and Rodriguez, 
the welfare in school funding 

464
00:22:12,120 --> 00:22:15,440
cases, he argued for what he 
called a sliding scale. 

465
00:22:15,440 --> 00:22:16,800
A sliding scale instead of 
three. 

466
00:22:16,800 --> 00:22:18,280
Buckets. 
Exactly, He said. 

467
00:22:18,280 --> 00:22:20,240
The court should look at two 
things on a spectrum. 

468
00:22:20,240 --> 00:22:22,360
One the nature of the 
classification. 

469
00:22:22,880 --> 00:22:25,960
Is it based on a trait someone 
can't control and to the 

470
00:22:25,960 --> 00:22:27,720
importance of the interest being
affected? 

471
00:22:28,120 --> 00:22:30,880
Is it just a business regulation
or is it something fundamental 

472
00:22:30,880 --> 00:22:33,880
to a person's life? 
And if you look at the big gay 

473
00:22:33,880 --> 00:22:38,200
rights cases, they feel a lot 
more like Marshall sliding scale

474
00:22:38,200 --> 00:22:40,200
than a rigid tear. 
They do. 

475
00:22:40,560 --> 00:22:43,800
When you read Justice Kennedy's 
opinion in Obergefell, the 

476
00:22:43,800 --> 00:22:47,040
marriage equality case, he 
doesn't say this is Tier 2 or 

477
00:22:47,040 --> 00:22:49,640
this is Animus. 
He talks about the synergy 

478
00:22:49,640 --> 00:22:53,000
between the liberty interest 
from due process and the 

479
00:22:53,000 --> 00:22:55,040
equality interest from equal 
protection. 

480
00:22:55,360 --> 00:22:58,240
He talks about the fundamental 
importance of marriage and the 

481
00:22:58,240 --> 00:23:00,640
dignity of the couples. 
It's a much more holistic 

482
00:23:00,640 --> 00:23:03,080
analysis. 
It's effectively A sliding scale

483
00:23:03,560 --> 00:23:05,960
because the right to marry is so
fundamental and the 

484
00:23:05,960 --> 00:23:09,320
classification is so invidious. 
The government's justification 

485
00:23:09,320 --> 00:23:11,800
just isn't good enough, 
regardless of what tier you 

486
00:23:11,800 --> 00:23:14,560
formally put it in. 
Which is a great segue to what 

487
00:23:14,560 --> 00:23:17,560
is maybe the hardest part of 
this for an exam. 

488
00:23:17,920 --> 00:23:21,320
What do you do when the 
discrimination isn't obvious? 

489
00:23:21,320 --> 00:23:23,200
When the government isn't dumb 
enough to write? 

490
00:23:23,200 --> 00:23:25,640
We hate this group in the law. 
Right. 

491
00:23:25,640 --> 00:23:28,240
We've been talking mostly about 
facial discrimination, a law 

492
00:23:28,240 --> 00:23:31,480
that on its face draws a line 
based on race or gender. 

493
00:23:31,720 --> 00:23:33,800
No women allowed. 
That's the easy question. 

494
00:23:33,840 --> 00:23:37,080
The hard question is the 
facially neutral law, the law 

495
00:23:37,080 --> 00:23:39,640
that doesn't mention a protected
group at all but has a 

496
00:23:39,640 --> 00:23:41,520
discriminatory effect. 
Exactly. 

497
00:23:41,960 --> 00:23:45,720
Let's say a city requires all 
firefighter applicants to be at 

498
00:23:45,720 --> 00:23:48,440
least 5 foot 10 and weigh 180 
lbs. 

499
00:23:48,640 --> 00:23:52,000
The law doesn't say no women, 
but it's going to screen out a 

500
00:23:52,000 --> 00:23:53,960
huge number of female 
applicants. 

501
00:23:53,960 --> 00:23:56,800
That's called disparate impact. 
And here is the single most 

502
00:23:56,800 --> 00:23:59,320
important and often 
heartbreaking rule for law 

503
00:23:59,320 --> 00:24:03,320
students to learn. 
Disparate impact alone is not an

504
00:24:03,320 --> 00:24:06,320
equal protection violation. 
Hey, say that again, even if the

505
00:24:06,320 --> 00:24:09,920
numbers are overwhelming. 
Even if the stats show 99% of 

506
00:24:09,920 --> 00:24:12,880
the people excluded are from one
racial group, this is the 

507
00:24:12,880 --> 00:24:15,640
holding of a huge case called 
Washington V Davis. 

508
00:24:15,640 --> 00:24:18,360
So what happened in that case? 
It involved a written aptitude 

509
00:24:18,360 --> 00:24:21,640
test for becoming a police 
officer in Washington, DC Black 

510
00:24:21,640 --> 00:24:24,640
applicants failed the test at a 
much, much higher rate than 

511
00:24:24,640 --> 00:24:27,200
white applicants. 
The impact was undeniable. 

512
00:24:27,280 --> 00:24:30,360
But the court upheld it. 
They did, the court said. 

513
00:24:30,360 --> 00:24:33,080
The Constitution's guarantee of 
equal protection is about 

514
00:24:33,080 --> 00:24:36,160
preventing discriminatory 
purpose or intent, not just 

515
00:24:36,160 --> 00:24:37,800
preventing discriminatory 
results. 

516
00:24:37,920 --> 00:24:41,400
So if the government's motive 
was neutral, it's OK. 

517
00:24:41,480 --> 00:24:45,520
If their intent was neutral, we 
just want verbally skilled cops 

518
00:24:45,520 --> 00:24:48,360
and this test measures that, 
then the fact that it has a 

519
00:24:48,360 --> 00:24:51,560
racist outcome is, from a 
constitutional perspective, 

520
00:24:51,920 --> 00:24:54,320
irrelevant. 
So you have to prove not just 

521
00:24:54,320 --> 00:24:56,960
what the law did, but what the 
lawmakers were thinking. 

522
00:24:57,160 --> 00:25:00,680
That seems almost impossible. 
It's incredibly difficult, but 

523
00:25:00,680 --> 00:25:04,080
the court gave us a road map in 
a later case, Village of 

524
00:25:04,080 --> 00:25:07,000
Arlington Heights V Metropolitan
Housing Development Corps. 

525
00:25:07,000 --> 00:25:10,040
OK, what's the road map? 
The court laid out a series of 

526
00:25:10,040 --> 00:25:12,880
factors to look at to find 
circumstantial evidence of 

527
00:25:12,880 --> 00:25:15,600
intent, things like the 
historical background of the 

528
00:25:15,600 --> 00:25:17,320
decision. 
Was the town historically 

529
00:25:17,320 --> 00:25:18,920
segregated? 
Exactly. 

530
00:25:19,200 --> 00:25:21,720
Or were their departures from 
the normal procedure? 

531
00:25:21,920 --> 00:25:24,840
Did the City Council suddenly 
change the zoning rules without 

532
00:25:24,840 --> 00:25:27,960
the usual public hearings right 
after a minority housing project

533
00:25:27,960 --> 00:25:30,040
was proposed? 
You can also look at the 

534
00:25:30,040 --> 00:25:32,800
legislative history statements 
made by lawmakers. 

535
00:25:32,920 --> 00:25:35,480
So you have to be a detective 
piercing together clues. 

536
00:25:35,720 --> 00:25:38,160
You really do. 
And sometimes the sheer 

537
00:25:38,160 --> 00:25:41,280
magnitude of the impact can be a
clue itself. 

538
00:25:41,840 --> 00:25:45,080
Like in a very old case, Yik 
Woah, where a San Francisco 

539
00:25:45,080 --> 00:25:49,120
ordinance about laundries was 
denied to 200 Chinese applicants

540
00:25:49,280 --> 00:25:52,920
but granted to virtually every 
white applicant at some point. 

541
00:25:52,920 --> 00:25:56,080
The numbers are so stark they 
raise an inference of purpose. 

542
00:25:56,080 --> 00:25:58,280
But the bottom line for an exam 
is critical. 

543
00:25:58,280 --> 00:26:00,600
It is. 
If your fact pattern gives you 

544
00:26:00,600 --> 00:26:03,720
statistics showing a disparate 
impact, but gives you no 

545
00:26:03,720 --> 00:26:07,160
evidence of a discriminatory 
purpose, you must apply rational

546
00:26:07,160 --> 00:26:09,760
basis review. 
If you jump to strict scrutiny 

547
00:26:09,760 --> 00:26:12,440
just because of the numbers, you
will lose all the points. 

548
00:26:12,440 --> 00:26:15,160
This brings me right back to the
affirmative algorithms problem 

549
00:26:15,160 --> 00:26:18,200
we talked about earlier. 
We're moving into a world where 

550
00:26:18,200 --> 00:26:21,840
an AI is making decisions based 
on thousands of data points, zip

551
00:26:21,840 --> 00:26:24,640
codes, purchasing history, web 
browsing habits. 

552
00:26:24,880 --> 00:26:26,320
None of those are race on their 
face. 

553
00:26:26,320 --> 00:26:28,920
But they are highly correlated 
with race, they're proxies for 

554
00:26:28,920 --> 00:26:33,000
race, and AI can easily learn to
replicate and amplify existing 

555
00:26:33,000 --> 00:26:36,280
societal biases without ever 
being told be racist. 

556
00:26:36,320 --> 00:26:39,080
So under Washington V Davis, 
that's just impact. 

557
00:26:39,080 --> 00:26:42,640
It's constitutional. 
It is unless you can prove the 

558
00:26:42,640 --> 00:26:45,520
programmer who designed the 
algorithm intended for it to 

559
00:26:45,520 --> 00:26:47,760
discriminate. 
The current equal protection 

560
00:26:47,760 --> 00:26:50,600
doctrine has no answer for AI 
bias. 

561
00:26:51,120 --> 00:26:54,440
It's a facially neutral policy 
with a discriminatory effect 

562
00:26:54,600 --> 00:26:57,640
which gets rational basis. 
But if the programmer tries to 

563
00:26:57,640 --> 00:27:01,080
fix it by telling the AI, hey 
make sure you lend to more 

564
00:27:01,080 --> 00:27:03,640
people in these zip codes to 
balance things out. 

565
00:27:03,720 --> 00:27:07,800
Now they've created an explicit 
classification based on a proxy 

566
00:27:07,800 --> 00:27:10,280
for race, and that will get hit 
with strict scrutiny. 

567
00:27:10,280 --> 00:27:12,880
It's the same trap. 
The doctrine protects passive 

568
00:27:12,880 --> 00:27:15,800
automated discrimination while 
attacking active intentional 

569
00:27:15,800 --> 00:27:17,720
fixes. 
It's the fatal collision the 

570
00:27:17,720 --> 00:27:20,480
authors wrote about. 
The law demands we find a human 

571
00:27:20,480 --> 00:27:23,760
with intentions intent. 
But in the age of big data, the 

572
00:27:23,760 --> 00:27:26,400
most profound discrimination 
might happen without any human 

573
00:27:26,400 --> 00:27:28,160
intent at all. 
It just happens through 

574
00:27:28,160 --> 00:27:30,600
correlation. 
That is a massive, massive 

575
00:27:30,600 --> 00:27:32,280
problem for the future of civil 
rights. 

576
00:27:32,520 --> 00:27:35,880
The 14th Amendment was written 
for 1868, interpreted by the 

577
00:27:35,880 --> 00:27:39,000
courts of the 1970s, and now it 
has to confront black box 

578
00:27:39,000 --> 00:27:41,520
algorithms. 
It absolutely raises the 

579
00:27:41,520 --> 00:27:44,920
question, will the court 
eventually have to evolve? 

580
00:27:45,600 --> 00:27:49,520
Will they have to abandon or 
modify the strict intent 

581
00:27:49,520 --> 00:27:52,960
requirement of Washington V 
Davis to deal with this new 

582
00:27:52,960 --> 00:27:56,400
reality? 
Or will they stick with it even 

583
00:27:56,400 --> 00:27:58,720
if it becomes obsolete? 
OK, so let's synthesize all of 

584
00:27:58,720 --> 00:28:00,720
this for the listener who has an
exam next week. 

585
00:28:00,720 --> 00:28:04,360
We've covered a ton of ground. 
What is the step by step attack 

586
00:28:04,360 --> 00:28:05,920
outline? 
Here is the checklist you need 

587
00:28:05,920 --> 00:28:09,920
to have in your head. 
Step one, is there state action?

588
00:28:10,480 --> 00:28:12,040
Is it the government doing it? 
Right. 

589
00:28:12,160 --> 00:28:14,560
If it's a private company, the 
14th Amendment doesn't apply. 

590
00:28:15,160 --> 00:28:18,080
And remember if it's the feds 
use the 5th amendment but the 

591
00:28:18,080 --> 00:28:19,600
rules are the same. 
OK, step one. 

592
00:28:19,800 --> 00:28:22,160
Step 2. 
What is the classification? 

593
00:28:22,280 --> 00:28:25,680
Is it facial written right there
in the law or is it a neutral 

594
00:28:25,680 --> 00:28:27,320
law that just has a disparate 
impact? 

595
00:28:27,800 --> 00:28:30,160
If it's the latter, you must 
then go on the hunt for 

596
00:28:30,160 --> 00:28:32,760
discriminatory intent using the 
Arlington Heights factors. 

597
00:28:32,760 --> 00:28:35,520
No intent, no case. 
No intent, it's rational basis 

598
00:28:35,520 --> 00:28:37,560
and the government wins. 
Step 3. 

599
00:28:37,920 --> 00:28:39,680
Select the tier. 
Race. 

600
00:28:39,680 --> 00:28:41,400
National Origin. 
Alien Edge. 

601
00:28:41,400 --> 00:28:44,000
Strict scrutiny. 
Gender illegitimacy. 

602
00:28:44,000 --> 00:28:45,920
Intermediate scrutiny. 
And everything else. 

603
00:28:45,920 --> 00:28:49,400
Age, wealth, disability, sexual 
orientation. 

604
00:28:49,400 --> 00:28:51,600
Rational basis. 
OK, then Step 4. 

605
00:28:51,720 --> 00:28:53,360
Apply the actual test. 
Yep. 

606
00:28:54,080 --> 00:28:56,920
For strict it's compelling 
interest plus narrow tailoring, 

607
00:28:57,200 --> 00:29:01,640
the government usually loses. 
For intermediate it's important 

608
00:29:01,640 --> 00:29:04,960
interest plus substantial 
relation the government often 

609
00:29:04,960 --> 00:29:09,280
loses, and for rational it's 
legitimate interest plus 

610
00:29:09,280 --> 00:29:11,960
rational relation the government
usually wins. 

611
00:29:12,600 --> 00:29:15,320
Unless you find the wild card, 
the animus. 

612
00:29:15,320 --> 00:29:17,560
The animus. 
If you can show the government 

613
00:29:17,560 --> 00:29:21,360
is just being cruel, a bare 
desire to harm, then even 

614
00:29:21,360 --> 00:29:24,720
rational basis won't save them. 
That is the lesson of Clayburn 

615
00:29:24,800 --> 00:29:26,880
and Romer. 
So the tears provide the 

616
00:29:26,880 --> 00:29:30,560
structure, but the court's sense
of basic decency, of sniffing 

617
00:29:30,560 --> 00:29:33,560
out hatred, is the safety valve.
That's a great way to put it. 

618
00:29:33,600 --> 00:29:36,840
We have covered so much the 
text, the history, the rigid 

619
00:29:36,840 --> 00:29:39,960
tears, and the really messy 
reality of how this all works 

620
00:29:39,960 --> 00:29:40,920
today. 
It is, like we said at the 

621
00:29:40,920 --> 00:29:44,320
beginning, a monster of a topic.
It is, but it's also the tool 

622
00:29:44,320 --> 00:29:47,200
that defines who we are. 
It's the constitutional promise 

623
00:29:47,200 --> 00:29:49,640
that the government can't just 
pick winners and losers, can't 

624
00:29:49,640 --> 00:29:52,440
just play favorites without a 
very, very good reason. 

625
00:29:52,720 --> 00:29:56,000
And the definition of a very 
good reason keeps changing. 

626
00:29:56,360 --> 00:30:00,120
It does, and that's what keeps 
this area of law so vital. 

627
00:30:00,360 --> 00:30:02,880
I want to leave our listener 
with that final provocation 

628
00:30:02,880 --> 00:30:05,280
about the algorithms because 
it's just so important. 

629
00:30:05,520 --> 00:30:08,720
We are moving into an era where 
discrimination might become 

630
00:30:08,720 --> 00:30:11,880
invisible. 
It could be buried in code, 

631
00:30:12,120 --> 00:30:16,040
completely facially neutral, and
lack any discernible human 

632
00:30:16,040 --> 00:30:18,480
intent. 
If Washington V Davis says 

633
00:30:18,480 --> 00:30:21,920
that's constitutionally OK, does
the equal protection clause 

634
00:30:21,920 --> 00:30:24,800
still have teeth? 
Or does the entire doctrine need

635
00:30:24,800 --> 00:30:26,920
a software update? 
That is the question for the 

636
00:30:26,920 --> 00:30:28,840
next generation of lawyers and 
judges. 

637
00:30:29,240 --> 00:30:31,920
The doctrine is perfectly clear 
on what happens when a 

638
00:30:31,920 --> 00:30:36,400
legislature passes a racist law.
It is completely, utterly 

639
00:30:36,400 --> 00:30:39,480
unclear what happens when a 
neural network creates a racist 

640
00:30:39,480 --> 00:30:41,120
outcome. 
Something to think about the 

641
00:30:41,120 --> 00:30:43,880
next time you apply for a loan 
or even just see a job posting 

642
00:30:43,880 --> 00:30:46,640
in your social media feed. 
Thank you for joining us on this

643
00:30:46,640 --> 00:30:48,560
deep dive into the equal 
protection clause. 

644
00:30:48,760 --> 00:30:51,240
Go ace that exam. 
Good luck everyone, see you next

645
00:30:51,240 --> 00:30:52,520
time. 
All right, let's talk about 

646
00:30:52,520 --> 00:30:54,720
fairness. 
Specifically, what does it mean 

647
00:30:54,880 --> 00:30:58,920
for the law itself to be fair? 
This is the huge, complicated 

648
00:30:58,920 --> 00:31:01,640
question right at the heart of 
the Constitution's equal 

649
00:31:01,640 --> 00:31:04,320
protection clause. 
Now, if you're gearing up for a 

650
00:31:04,320 --> 00:31:07,800
constitutional law exam, you 
absolutely have to nail this 

651
00:31:07,800 --> 00:31:09,800
topic. 
So today we're going to build 

652
00:31:09,800 --> 00:31:12,800
the exact analytical framework 
you'll need to tear apart any 

653
00:31:12,800 --> 00:31:14,920
equal protection problem. 
They throw at you. 

654
00:31:15,520 --> 00:31:19,240
Everything, and I mean 
everything, starts right here 

655
00:31:19,240 --> 00:31:22,440
with these words. 
This is the bedrock. 

656
00:31:22,760 --> 00:31:25,600
But what does equal protection 
really mean on the ground? 

657
00:31:26,040 --> 00:31:28,440
Well, think of it as the 
Constitution's way of saying the

658
00:31:28,440 --> 00:31:31,200
government can't just draw lines
between people for no good 

659
00:31:31,200 --> 00:31:33,200
reason. 
It's a core promise that 

660
00:31:33,200 --> 00:31:36,240
similarly situated people will 
be treated alike by the law. 

661
00:31:36,920 --> 00:31:40,120
So you probably notice the text 
says no state shall. 

662
00:31:40,120 --> 00:31:41,840
Which immediately begs the 
question, right? 

663
00:31:41,960 --> 00:31:43,200
What about the federal 
government? 

664
00:31:43,200 --> 00:31:45,680
Can it discriminate? 
Well, this is where a really 

665
00:31:45,680 --> 00:31:48,680
clever piece of legal footwork 
called reverse incorporation 

666
00:31:48,680 --> 00:31:50,880
comes into play. 
And bowling versus Sharp. 

667
00:31:51,000 --> 00:31:53,080
The Supreme Court basically 
said, look, it would be 

668
00:31:53,080 --> 00:31:56,120
absolutely unthinkable for the 
feds to have more power to 

669
00:31:56,120 --> 00:31:58,840
discriminate than the states. 
So they found a way to read 

670
00:31:58,840 --> 00:32:01,200
those same equal protection 
principles into the 5th 

671
00:32:01,200 --> 00:32:02,480
Amendment's due process. 
This clause. 

672
00:32:02,720 --> 00:32:05,560
Here's the exam take away. 
Whether it's a state law or a 

673
00:32:05,560 --> 00:32:08,120
federal law, the analysis is 
exactly the same. 

674
00:32:08,200 --> 00:32:10,640
Don't get tripped up by OK, 
here's our game plan. 

675
00:32:10,680 --> 00:32:14,000
We are going to walk through 
this step by step exactly how a 

676
00:32:14,000 --> 00:32:16,680
court would, which is how you 
need to structure your exam 

677
00:32:16,680 --> 00:32:18,520
answers. 
We'll start with the big picture

678
00:32:18,520 --> 00:32:22,520
idea, the equality mandate, and 
then hit the absolutely critical

679
00:32:22,520 --> 00:32:25,080
intent requirement. 
From there, we'll dive into the 

680
00:32:25,080 --> 00:32:28,480
three tiers of review, strict, 
intermediate, and the default 

681
00:32:28,560 --> 00:32:30,920
rational basis. 
And we'll finish with a really 

682
00:32:30,920 --> 00:32:34,160
interesting exception when that 
supposedly weak rational basis 

683
00:32:34,160 --> 00:32:35,680
standard actually has some 
teeth. 

684
00:32:36,280 --> 00:32:39,440
OK, First things first. 
Before you can even think about 

685
00:32:39,440 --> 00:32:42,240
which level of scrutiny to 
apply, there is a massive hurdle

686
00:32:42,240 --> 00:32:44,480
that every equal protection 
challenge has to clear. 

687
00:32:44,720 --> 00:32:47,640
This is not negotiable. 
The person challenging the law 

688
00:32:47,760 --> 00:32:51,160
has to prove that the government
intended to discriminate. 

689
00:32:51,760 --> 00:32:54,520
Now listen up, because this is a
classic exam trap. 

690
00:32:54,640 --> 00:32:57,920
You have to know the difference 
between a law's effect and its 

691
00:32:57,920 --> 00:33:00,240
purpose. 
Let's say a city passes a law 

692
00:33:00,240 --> 00:33:03,360
requiring all police officers to
pass a physical test that 

693
00:33:03,360 --> 00:33:06,720
includes a £500 bench press. 
That law looks neutral on its 

694
00:33:06,720 --> 00:33:08,880
face, right? 
But it's effect will be to 

695
00:33:08,880 --> 00:33:12,560
exclude far more women than men.
That's called disparate impact. 

696
00:33:12,720 --> 00:33:15,600
But, and this is the key, that's
not an equal protection 

697
00:33:15,600 --> 00:33:18,000
violation on its own. 
You'd have to prove the City 

698
00:33:18,000 --> 00:33:20,680
Council passed that law because 
they wanted to keep women off 

699
00:33:20,680 --> 00:33:22,840
the force. 
And the big case here, the one 

700
00:33:22,840 --> 00:33:24,920
you need to cite, is Washington 
V Davis. 

701
00:33:25,240 --> 00:33:28,360
It lays down the rule you need 
proof of discriminatory intent. 

702
00:33:28,560 --> 00:33:31,720
The challenger has to show the 
government acted because of, not

703
00:33:31,720 --> 00:33:34,640
just in spite of, the law's 
discriminatory effect. 

704
00:33:34,920 --> 00:33:37,960
If you can't prove that purpose,
your claim dies right there and 

705
00:33:37,960 --> 00:33:40,480
the law gets reviewed under the 
easiest standard to pass, which 

706
00:33:40,480 --> 00:33:44,480
we'll get to in a So let's say 
the challenger can prove intent.

707
00:33:44,680 --> 00:33:48,080
Or maybe the law just says right
on its face, this rule applies 

708
00:33:48,080 --> 00:33:51,080
to people of a certain race. 
Once we've got that, the whole 

709
00:33:51,080 --> 00:33:54,080
analysis shifts. 
Now we ask, how hard should we 

710
00:33:54,080 --> 00:33:56,520
look at this law? 
This brings us to the tiers of 

711
00:33:56,520 --> 00:33:59,080
scrutiny, and we're starting at 
the top of the mountain with the

712
00:33:59,080 --> 00:34:02,880
most demanding, most difficult 
test there is strict scrutiny. 

713
00:34:03,200 --> 00:34:05,480
This table is basically your 
exam checklist. 

714
00:34:05,840 --> 00:34:08,080
Strict scrutiny gets triggered 
when a law makes a 

715
00:34:08,080 --> 00:34:11,120
classification based on what we 
call a suspect class. 

716
00:34:11,360 --> 00:34:15,120
And for your exam, that's race, 
national origin, and sometimes 

717
00:34:15,120 --> 00:34:17,199
alienage. 
Or when a law burdens A 

718
00:34:17,199 --> 00:34:20,400
fundamental right. 
For the law to survive this, the

719
00:34:20,400 --> 00:34:23,480
government has to prove 2 
incredibly difficult things. 

720
00:34:23,880 --> 00:34:27,199
One, its goal must be 
compelling, not just important 

721
00:34:27,199 --> 00:34:30,520
but absolutely vital. 
And two, the law has to be 

722
00:34:30,520 --> 00:34:34,159
narrowly tailored, meaning there
is no other less discriminatory 

723
00:34:34,159 --> 00:34:36,840
way to achieve that goal. 
And look who has the burden of 

724
00:34:36,840 --> 00:34:38,520
proof. 
It flips completely to the 

725
00:34:38,520 --> 00:34:40,679
government. 
Loving V Virginia is the 

726
00:34:40,679 --> 00:34:43,159
textbook example. 
The state had a law that flat 

727
00:34:43,159 --> 00:34:46,080
out banned interracial marriage.
It was a classification based on

728
00:34:46,080 --> 00:34:48,280
race. 
So boom, strict scrutiny. 

729
00:34:48,679 --> 00:34:51,159
The court then asked Virginia, 
OK, what's your compelling 

730
00:34:51,159 --> 00:34:53,280
interest here? 
And the state's justification? 

731
00:34:53,400 --> 00:34:56,360
This idea of racial purity was 
found to be completely 

732
00:34:56,360 --> 00:34:58,080
illegitimate, let alone 
compelling. 

733
00:34:58,400 --> 00:35:00,680
The law couldn't even get past 
the first part of the test. 

734
00:35:00,880 --> 00:35:03,240
This is why you'll often hear 
that strict scrutiny is strict 

735
00:35:03,240 --> 00:35:06,200
in theory, but fatal. 
In fact, almost nothing survives

736
00:35:06,200 --> 00:35:08,000
it. 
OK, So what about 

737
00:35:08,000 --> 00:35:10,280
classifications that are a 
little different? 

738
00:35:10,440 --> 00:35:12,440
Classifications that have a 
history of causing 

739
00:35:12,440 --> 00:35:15,280
discrimination, but maybe not in
the same way as race. 

740
00:35:15,400 --> 00:35:18,680
For these, which the court calls
quasi suspect classifications, 

741
00:35:18,880 --> 00:35:22,200
we step down a level to a middle
ground, intermediate scrutiny. 

742
00:35:22,600 --> 00:35:25,280
It's not a free pass, but it's 
not the death sentence of strict

743
00:35:25,280 --> 00:35:27,400
scrutiny either. 
This level of review is 

744
00:35:27,400 --> 00:35:30,800
triggered by laws that classify 
based on gender or on whether a 

745
00:35:30,800 --> 00:35:32,600
person was born to married 
parents. 

746
00:35:32,960 --> 00:35:35,600
Now look at the language here. 
The government's goal only has 

747
00:35:35,600 --> 00:35:38,560
to be important, not compelling,
and the law must be 

748
00:35:38,560 --> 00:35:40,880
substantially related to 
achieving that goal. 

749
00:35:41,320 --> 00:35:44,640
A huge mistake students make on 
exams is mixing up important and

750
00:35:44,640 --> 00:35:46,520
compelling. 
They are legally distinct 

751
00:35:46,520 --> 00:35:48,240
standards so make sure you use 
the right one. 

752
00:35:48,640 --> 00:35:50,840
The classic case for this is 
Craig V Born. 

753
00:35:51,200 --> 00:35:54,480
Oklahoma had this weird law 
where women could buy beer at 18

754
00:35:54,640 --> 00:35:57,760
but men had to be 21. 
The state said it's important 

755
00:35:57,760 --> 00:36:00,640
interest was Traffic Safety. 
OK, fair enough. 

756
00:36:00,840 --> 00:36:03,800
But when the court looked at the
actual evidence, the statistics 

757
00:36:03,800 --> 00:36:07,160
on drunk driving, the link 
between gender and Duis was 

758
00:36:07,160 --> 00:36:09,640
incredibly weak. 
The fit just wasn't there. 

759
00:36:09,880 --> 00:36:12,760
The law wasn't substantially 
related to the goal of Traffic 

760
00:36:12,760 --> 00:36:14,240
Safety. 
So the court struck it down. 

761
00:36:14,520 --> 00:36:16,680
We've done the highest hurdle 
and the middle ground. 

762
00:36:16,680 --> 00:36:19,720
So what about everything else? 
All the other ways the 

763
00:36:19,720 --> 00:36:23,640
government classifieds people by
age, by wealth, by disability, 

764
00:36:23,640 --> 00:36:26,880
by profession, they all fall 
into the default category. 

765
00:36:27,160 --> 00:36:30,120
And for these, we use the most 
lenient, most deferential 

766
00:36:30,120 --> 00:36:32,560
standard of them all, rational 
basis review. 

767
00:36:33,000 --> 00:36:35,960
With rational basis, the entire 
game flips on its head. 

768
00:36:36,280 --> 00:36:38,840
Now the burden is on the 
challenger to prove the law is 

769
00:36:38,840 --> 00:36:41,320
irrational, which is almost 
impossible to do. 

770
00:36:41,840 --> 00:36:44,440
The government's goal only needs
to be legitimate, and pretty 

771
00:36:44,440 --> 00:36:46,880
much any health, safety, or 
welfare goal counts. 

772
00:36:47,200 --> 00:36:49,520
And the law just has to be 
rationally related to it. 

773
00:36:49,760 --> 00:36:52,880
The fit can be terrible. 
The law can be over inclusive. 

774
00:36:52,960 --> 00:36:54,720
Under inclusive, it doesn't 
matter. 

775
00:36:55,080 --> 00:36:57,360
The court will bend over 
backwards to uphold the law. 

776
00:36:57,920 --> 00:36:59,640
Take the old Railway Express 
case. 

777
00:36:59,960 --> 00:37:02,680
New York City wanted to reduce 
traffic distractions, so it 

778
00:37:02,680 --> 00:37:04,440
banned ads on the sides of 
trucks. 

779
00:37:04,760 --> 00:37:07,360
But it made an exception for 
trucks that were advertising 

780
00:37:07,360 --> 00:37:09,520
their own business. 
The challenger screamed. 

781
00:37:09,520 --> 00:37:11,960
That's irrational. 
A distracting ad is a 

782
00:37:11,960 --> 00:37:14,640
distracting ad. 
But the court just shrugged and 

783
00:37:14,640 --> 00:37:18,080
said close enough. 
And this case gives us a crucial

784
00:37:18,080 --> 00:37:20,760
rule for rational basis. 
The government is allowed to 

785
00:37:20,760 --> 00:37:22,880
tackle a problem one step at a 
time. 

786
00:37:23,200 --> 00:37:24,840
The law doesn't have to be 
perfect. 

787
00:37:25,360 --> 00:37:27,800
OK, but is it really always a 
rubber stamp? 

788
00:37:28,160 --> 00:37:31,240
What if a law isn't based on 
race or gender, but it just 

789
00:37:31,240 --> 00:37:33,960
seems mean? 
What if it seems like it's based

790
00:37:33,960 --> 00:37:35,760
on pure hostility toward a 
group? 

791
00:37:36,320 --> 00:37:38,720
This is where we find a 
fascinating little twist where 

792
00:37:38,720 --> 00:37:40,920
rational basis can actually have
some bite. 

793
00:37:41,800 --> 00:37:45,360
So this leads us to the critical
exception, what some people call

794
00:37:45,360 --> 00:37:49,840
rational basis with bite. 
It forces us to ask, is any old 

795
00:37:49,840 --> 00:37:51,760
reason the government cooks up 
good enough? 

796
00:37:52,040 --> 00:37:56,240
Or are some reasons so bad, so 
illegitimate, that they fail 

797
00:37:56,240 --> 00:37:58,440
even this incredibly low 
standard? 

798
00:37:58,960 --> 00:38:02,000
And the answer is a clear yes, 
there is a line. 

799
00:38:02,600 --> 00:38:05,640
The Supreme Court has been very 
clear that a law motivated by 

800
00:38:05,640 --> 00:38:09,280
pure animus, which is just a 
fancy legal word for a bare 

801
00:38:09,280 --> 00:38:13,040
desire to harm a politically 
unpopular group, can never be a 

802
00:38:13,040 --> 00:38:16,880
legitimate government purpose. 
In other words, being a bully is

803
00:38:16,880 --> 00:38:20,000
not a legitimate state interest.
The case you absolutely have to 

804
00:38:20,000 --> 00:38:23,720
know for this is Roamer V Evans.
Voters in Colorado passed a 

805
00:38:23,720 --> 00:38:26,040
state constitutional amendment 
that did something wild. 

806
00:38:26,280 --> 00:38:29,040
It banned any city or state 
agency from passing laws to 

807
00:38:29,040 --> 00:38:31,080
protect gay and lesbian people 
from discrimination. 

808
00:38:31,520 --> 00:38:33,920
The Supreme Court looked at this
thing and said it was so broad, 

809
00:38:34,040 --> 00:38:37,240
so disconnected from any actual 
legitimate purpose, that the 

810
00:38:37,280 --> 00:38:40,040
only possible explanation for it
was sheer hostility. 

811
00:38:40,440 --> 00:38:43,440
It was designed simply to make a
whole class of people unequal. 

812
00:38:44,000 --> 00:38:46,720
And that, the court said, is the
very definition of animus. 

813
00:38:47,000 --> 00:38:49,440
And a law born of animus 
automatically fails rational 

814
00:38:49,440 --> 00:38:51,680
basis review. 
And that leaves us with a really

815
00:38:51,680 --> 00:38:54,040
interesting final thought. 
We've just walked through this 

816
00:38:54,040 --> 00:38:57,760
very rigid 3 tiered framework. 
But does this whole animus 

817
00:38:57,760 --> 00:38:59,840
doctrine suggest that something 
else is going on? 

818
00:39:00,240 --> 00:39:03,080
Does it show that when a law is 
just fundamentally unfair, when 

819
00:39:03,080 --> 00:39:05,600
it's just plain wrong, the court
will find a way to strike it 

820
00:39:05,600 --> 00:39:07,760
down no matter what tier of 
scrutiny you're supposed to be 

821
00:39:07,760 --> 00:39:09,920
in? 
It suggests that maybe beneath 

822
00:39:09,920 --> 00:39:12,400
all the formal tests, there's 
just a bedrock judicial 

823
00:39:12,400 --> 00:39:14,480
commitment to fairness that 
sometimes shines through. 

824
00:39:14,720 --> 00:39:16,040
It's definitely something to 
chew on.