Con Law EP question Forum
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MGH1989
- Posts: 116
- Joined: Sat Jul 25, 2009 4:59 pm
Con Law EP question
If you have a facially neutral law for some gender classification does it work the same way as a racial or national origin classification where there needs to be a discriminatory impact and purpose to apply heightened scrutiny?
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Indifference
- Posts: 544
- Joined: Sat Nov 16, 2013 3:01 am
Re: Con Law EP question
Disclaimer. Taking the exam tomorrow.
That said, my understanding is yes. You still need to show discriminatory purpose and impact. Feeny is the case to look at. That and Washington v Davis. Arlington heights lists some ways to show discriminatory intent/purpose
Disparate impact alone does not trigger heightened scrutiny.
Also remember it's going to be intermediate scrutiny for gender
That said, my understanding is yes. You still need to show discriminatory purpose and impact. Feeny is the case to look at. That and Washington v Davis. Arlington heights lists some ways to show discriminatory intent/purpose
Disparate impact alone does not trigger heightened scrutiny.
Also remember it's going to be intermediate scrutiny for gender
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Flokkness
- Posts: 235
- Joined: Wed Apr 30, 2014 12:26 pm
Re: Con Law EP question
I took the exam this morning. Also I'm pretty categorically awful at ConLaw (too much mush). Grain of salt, etc.
What Indifference said, I think. McClesky v. Kemp pairs with Washington v. Davis for racial disparate impact, and then Feeney for gender-based. Kemp provides that the challenger needs not just intent but intent specific to his case. So basically, the court won't infer intent from impact even when there's a shitton of compelling evidence, and the harm has to be particularized. But that's working in strict scrutiny land. I threw all of that at the gender EP isssue on our exam, anyway.
Our prof introduced an idea called "contextual intent" for disparate impact cases. Basically a theory of constructive intent. Not good law AFAIK.
A curveball Q that I hadn't prepared well for was a gender-based benign class. If you have a prof whose wheelhouse is gender or AA generally, that might be worth reviewing. Chemerinsky has good reading on it and the Virginia Military Institute case (U.S. v. Virginia) is more or less on point. Noting Nyugen, Gedulgig, Michael M, etc...
What Indifference said, I think. McClesky v. Kemp pairs with Washington v. Davis for racial disparate impact, and then Feeney for gender-based. Kemp provides that the challenger needs not just intent but intent specific to his case. So basically, the court won't infer intent from impact even when there's a shitton of compelling evidence, and the harm has to be particularized. But that's working in strict scrutiny land. I threw all of that at the gender EP isssue on our exam, anyway.
Our prof introduced an idea called "contextual intent" for disparate impact cases. Basically a theory of constructive intent. Not good law AFAIK.
A curveball Q that I hadn't prepared well for was a gender-based benign class. If you have a prof whose wheelhouse is gender or AA generally, that might be worth reviewing. Chemerinsky has good reading on it and the Virginia Military Institute case (U.S. v. Virginia) is more or less on point. Noting Nyugen, Gedulgig, Michael M, etc...
