LAW
Con Law 2 Sal F16.docx

B decided not to use strict scrutiny because the

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b. Decided not to use strict scrutiny because the Court concluded it wasn’t a product of intentional discrimination. c. Rule: Did the statute at issue intend to make a racial or ethnic distinction? (Intent is determinative, not impact) i. Yes Strict Scrutiny 1. Is it Necessary and Narrowly tailored? (Fit) 2. To serve a compelling public interest? (Acuity) ii. No Minimum Rationality 1. Is there a rational relation to a (Fit) 2. Legitimate public interest? (Acuity) d. If the plaintiff produces evidence of a discriminatory purpose, the burden shifts to the government to prove that it would have taken the same action without the discriminatory motivation. e. Once minimum rationality is applied, it’s easy for the statute to pass. f. Circumstantial Evidence That Can Prove Discrimination: i. Impact of the official action ii. Historical background of decision iii. Specific sequence of events leading to the decision iv. Departures from normal procedures v. Substantive departures vi. Legislative and administrative history of the action vi. “Racial Classifications Benefiting Minorities”: Affirmative Actions Cases 1. Regents of UC Davis v. Bakke , 1978 16
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a. Facts: Huge affirmative action case. UC Davis’ med school used to separate the admissions programs. A minority or low income student could choose to have their application submitted under the “special admissions program.” This program had lower standards than the regular admissions programs. White student was twice rejected and brought suit. b. Issue: Did the affirmative action program constitute discrimination based on race as outlawed by EP? c. Holding : Yes. i. They are allowed to consider race, but not under the construction of this system. ii. When can you use race? 1. “Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities…” 2. Justice Powell alone: to increase the educational benefits of a diverse student body 3. Still a much debated issue of interpretation. iii. ALL racial classifications are subject to strict scrutiny. Regardless of whether they help or harm minorities. iv. The construction of this scheme is what caused it to fail. Traditionally accepted schemes use race as a “plus,” rather than a deciding factor. 2. Adarand Constructors Inc., v. Pena a. Facts : Adarand Constructors had submitted the low bid on a subcontract for a federal highway project. Mountain Gravel, the prime contractor, would receive additional federal funds for awarding subcontracts to businesses owned by “socially and economically disadvantaged individuals.” Mountain Gravel awarded the contract to a higher bidder on this basis. The government’s policy included a presumption that minority-owned businesses were socially and economically disadvantaged.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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