Individual rights - Classifications subject to heightened sc...

Learning Outcomes

This article details the application of heightened scrutiny (strict and intermediate scrutiny) under the Equal Protection Clause, including:

• How to recognize when a fact pattern triggers strict scrutiny based on suspect classifications (race, national origin, and most state/local alienage classifications) or burdens on fundamental rights.
• How to recognize when intermediate scrutiny is triggered by quasi-suspect classifications (gender and legitimacy) and how courts articulate the “exceedingly persuasive justification” requirement.
• How to distinguish heightened scrutiny from ordinary and “rational basis with bite” review in multiple-choice fact patterns, and to predict which party bears the burden of proof.
• How to analyze facial versus facially neutral laws, including the evidentiary showing of discriminatory intent required before heightened scrutiny applies to a law with disparate impact.
• How to evaluate exam hypotheticals involving alienage, gender, and legitimacy classifications, with particular attention to the government function exception, affirmative action, and laws affecting undocumented persons.
• How to structure a step-by-step equal protection analysis on the MBE: identifying the government actor, the classification or right involved, choosing the correct level of scrutiny, and assessing whether the government’s interest and tailoring are sufficient under that standard.

MBE Syllabus

For the MBE, you are required to understand how the Equal Protection Clause applies different levels of scrutiny to governmental classifications, with a focus on the following syllabus points:

• Identify classifications subject to heightened scrutiny (strict or intermediate).
• Distinguish heightened scrutiny from rational basis review.
• Understand the requirements for strict scrutiny (necessary to achieve a compelling government interest) and when it applies (suspect classifications like race, national origin, and most state/local alienage classifications; fundamental rights).
• Understand the requirements for intermediate scrutiny (substantially related to an important government interest) and when it applies (quasi-suspect classifications like gender and legitimacy).
• Analyze how discriminatory intent (not just disparate impact) must be proven for strict or intermediate scrutiny to apply to facially neutral laws.
• Recognize exceptions where scrutiny levels differ (for example, federal vs. state alienage classifications, and the “government function” exception).
• Apply these tests to typical MBE settings (employment, benefits, education, voting, and criminal justice), including affirmative action and laws affecting undocumented persons.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.​

1. A state law prohibits individuals who were born outside the United States from serving as police officers. A lawful permanent resident, born in another country, challenges the law. Which standard of review will the court most likely apply?
   1. Rational basis
   2. Intermediate scrutiny
   3. Strict scrutiny
   4. Undue burden
2. A city enacts an ordinance requiring that all applicants for city firefighter positions be able to lift 150 pounds. Statistical evidence shows that significantly fewer female applicants than male applicants pass this test. A female applicant who failed the test challenges the ordinance on equal protection grounds. Assuming the city can show the requirement serves a legitimate objective, what else must the plaintiff demonstrate to trigger heightened scrutiny?
   1. That the requirement is not necessary to achieve the objective.
   2. That the requirement has a disparate impact on women.
   3. That the city adopted the requirement with a discriminatory purpose against women.
   4. That the requirement burdens a fundamental right.
3. Which of the following classifications is most likely to be reviewed under intermediate scrutiny?
   1. A state law distinguishing between residents and non-residents for university tuition.
   2. A federal law giving preference in hiring to veterans.
   3. A state law providing different inheritance rights for marital versus nonmarital children.
   4. A city ordinance regulating the location of bookstores.

Introduction

The Equal Protection Clause of the Fourteenth Amendment, applicable to the states, and the equal protection component of the Fifth Amendment's Due Process Clause, applicable to the federal government, prohibit governmental bodies from denying persons equal protection of the laws. Whenever the government treats one group of people differently from others, the classification has to satisfy a standard of review.

Key Term: Equal Protection Clause
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The constitutional guarantee that similarly situated persons will be treated alike by government, found in the Fourteenth Amendment (states) and implied through the Fifth Amendment (federal government).

Most classifications are evaluated under rational basis review, which is highly deferential.

Key Term: Rational Basis Review
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The default standard of review; a law will be upheld if it is rationally related to a legitimate government interest. The challenger bears the burden of proof, and the government need only show any conceivable legitimate purpose.

Some classifications, however, are considered especially sensitive because they have historically been the basis for prejudice or because they involve fundamental interests. These trigger heightened scrutiny, which comes in two forms: strict scrutiny and intermediate scrutiny. Under heightened scrutiny, the burden shifts to the government to justify its classification.

Key Term: Strict Scrutiny
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The most demanding standard of judicial review, requiring the government to prove a law is necessary (or narrowly tailored) to achieve a compelling government interest, using the least restrictive or a very closely fitted means.

Key Term: Intermediate Scrutiny
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A standard of judicial review requiring the government to prove a law is substantially related to an important government interest. In gender cases, the government must provide an “exceedingly persuasive justification.”

Key Term: Fundamental Right
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A right that is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty (for example, voting, interstate travel, certain privacy rights). Laws burdening fundamental rights trigger strict scrutiny.

The basic exam sequence is:

• Identify the government actor (state/local vs. federal).
• Identify the classification (race, alienage, gender, legitimacy, age, disability, sexual orientation, etc.).
• Ask whether the law is facial (explicitly classifies) or facially neutral with a discriminatory impact.
• Determine whether strict, intermediate, or rational basis review applies.
• Apply the correct test to predict whether the law is likely constitutional.

Key Term: Discriminatory Intent
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A purpose to disadvantage a particular group; for equal protection, heightened scrutiny applies to a facially neutral law only if it was enacted or applied because of, not merely in spite of, its adverse effect on a protected group.

Key Term: Disparate Impact
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A disproportionate adverse effect of a law or policy on a particular group, without regard to whether there was a purpose to discriminate.

Two further distinctions are important:

• Who is being classified? Some groups are suspect or quasi-suspect.
• What right is being burdened? Even a neutral law triggers strict scrutiny if it substantially burdens a fundamental right.

This article concentrates on classifications that themselves trigger heightened scrutiny. Fundamental rights are treated in greater depth in separate materials, but you must remember on the MBE that a law can be subject to strict scrutiny either because of who it targets (suspect class) or what it burdens (fundamental right).

Overview of Levels of Scrutiny and Burdens

Across equal protection and substantive due process, the Court uses three basic tests:

• Strict scrutiny:​

  • Government must show the law is necessary or narrowly tailored to achieve a compelling interest.
  • Government bears the burden.
  • Laws are usually struck down.

• Intermediate scrutiny:​

  • Government must show the law is substantially related to an important interest.
  • Government generally bears the burden.
  • Laws sometimes survive, sometimes fail.

• Rational basis:​

  • Challenger must show the law is not rationally related to a legitimate interest.
  • Laws are usually upheld unless they are arbitrary or rest only on bare animus.

Occasionally, the Court uses what is effectively “rational basis with bite” for certain disfavored but non-suspect classifications (such as disability or sexual orientation), invalidating them even though the formal test remains rational basis.

Key Term: Rational Basis with Bite
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A more searching form of rational basis review used when a law appears to be based on hostility toward a politically unpopular group; the Court purports to apply rational basis but scrutinizes the government’s justifications more closely.

With that framework in mind, the rest of this article focuses on when strict and intermediate scrutiny apply and how they operate in typical MBE scenarios.

Strict Scrutiny

Strict scrutiny is the most rigorous form of judicial review. Under this standard, the government must prove that the challenged law is necessary to achieve a compelling government interest.

Core elements:

• Compelling interest: Extremely important objectives (for example, national security, remedying identified past discrimination, protecting the right to vote).
• Narrow tailoring: The law must be closely fitted to the interest and should not be seriously overinclusive or underinclusive.
• Less restrictive alternatives: If a less restrictive means could achieve the interest, the law typically fails.

If strict scrutiny applies, the government almost always loses.

Key Term: Suspect Classification
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A classification (such as race, national origin, or, for most state/local laws, alienage) that is inherently suspect and therefore triggers strict scrutiny under equal protection analysis.

Strict scrutiny is triggered in two main ways:

• The law uses a suspect classification (race, national origin, and usually state/local alienage).
• The law burdens a fundamental right (such as interstate travel, voting, or certain privacy rights).

Fundamental-rights analysis is covered elsewhere; here the focus is on classifications.

Suspect Classifications

Certain classifications are deemed “suspect” because they are based on traits that have historically been subject to prejudice and discrimination, are generally immutable, and ordinarily have little relation to an individual’s ability to contribute to society.

The core suspect classifications for equal protection purposes are:

• Race
• Ethnicity / national origin
• Alienage (state/local, subject to an exception)
• Sometimes closely related ancestry classifications

Race and National Origin

Laws that classify individuals based on race or national origin receive strict scrutiny, whether they harm or benefit a racial or ethnic minority. The Court does not soften the standard for “benign” racial classifications.

Examples (all trigger strict scrutiny):

• Segregating schools or public facilities by race.
• Race-based voting districts (racial gerrymandering).
• Race-conscious affirmative action in public employment, contracting, or higher education.
• Criminal penalties that differ by race.

On the MBE, once race or national origin appears explicitly in the text of the law, your standard of review is strict scrutiny, regardless of the motive.

Proving Racial Discrimination

The standard of review depends heavily on how the discrimination appears.

Key Term: Facial Classification
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A law that explicitly draws distinctions based on a protected trait on its face (for example, “only white applicants may…”).

Key Term: Facially Neutral Law
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A law that does not mention a protected classification on its face but may have a disproportionate impact in practice.

Three common patterns:

1. Facial Classification

   If the law explicitly classifies by race or national origin (for example, “no Asians may own property,” “only white students may enroll”), strict scrutiny applies automatically. The challenger does not need separate proof of discriminatory intent — the classification itself evidences intent.

2. Facially Neutral Law with Discriminatory Application

   A facially neutral law is enforced in a racially discriminatory way (for example, a vagrancy ordinance used only to arrest members of a particular race). If the challenger shows intentional discriminatory enforcement, strict scrutiny applies.

   Evidence might include:

   • Policy or custom of targeting only one race.
   • Statements by officials directing selective enforcement.
   • Pattern so extreme that discriminatory purpose is the only plausible explanation.

3. Facially Neutral Law with Disparate Impact

   A neutral law with disproportionate adverse impact on a racial group (for example, a written test that results in significantly fewer Black applicants being hired) triggers strict scrutiny only if the challenger proves discriminatory purpose, not merely disparate impact.

   Courts look to factors such as (from Arlington Heights):

   • Disproportionate impact on a racial group.
   • Historical background of the decision.
   • Departures from normal procedures or substantive criteria.
   • Statements by decision-makers.
   • Sequence of events leading up to the decision.

   Without proof of discriminatory intent, the law is reviewed under rational basis, even if the statistics are striking. This is a common trap on the MBE — do not jump to strict scrutiny based solely on data.

Affirmative Action

Racial classifications designed to benefit minorities (affirmative action) also receive strict scrutiny.

Key Term: Affirmative Action
​
Government use of race-conscious measures intended to benefit historically disadvantaged racial or ethnic groups; such programs are subject to strict scrutiny.

Key points for exams:

• Compelling interests that the Court has recognized:

  • Remedying the government’s own identified past discrimination (for example, a police department with a proven history of excluding minorities).
  • Historically, diversity in higher education was treated as a possible compelling interest, but recent decisions have sharply limited race-conscious admissions.

• Insufficient interests:

  • General societal discrimination, without specific findings about the particular governmental unit, is not enough.
  • A desire for racial balancing for its own sake is not compelling.

• Narrow tailoring requirements:

  • No rigid quotas based on race.
  • No automatic point bonuses solely for race.
  • Race can, at most, be one factor among many in a truly comprehensive and individualized evaluation.
  • Programs should be time-limited and periodically reviewed to see if race-neutral alternatives can achieve the same goals.

Recent Supreme Court decisions (Students for Fair Admissions cases) have held that race-conscious admissions programs like those used by Harvard and UNC violate equal protection and have greatly limited universities’ ability to use race in admissions. For MBE purposes, it is safest to assume that explicit racial preferences in admissions will be struck down under strict scrutiny unless the facts clearly track older case law and emphasize individualized, temporary, and carefully justified use of race.

Outside higher education — in public contracting and employment — strict scrutiny is especially demanding. The government must:

• Show strong evidence of its own past discrimination in that sector.
• Tailor the remedy closely to that evidence (for example, limiting set-asides or preferences to the particular trade and geographic area where discrimination occurred).

If an affirmative action program simply prefers minority contractors based on national statistics of inequality, without tying it to proven local discrimination, it will likely fail strict scrutiny.

Alienage Classifications

Alienage classifications treat noncitizens differently from citizens. The level of scrutiny depends on who is acting (state vs. federal) and what the job or benefit is.

Key Term: Alienage Classification
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A classification based on U.S. citizenship status, often distinguishing citizens from lawfully admitted noncitizens.

State and Local Alienage Classifications

As a general rule, state and local laws discriminating against lawfully present aliens are suspect and receive strict scrutiny. Typical examples that are usually struck down:

• Citizenship requirements for professional licenses (for example, bar admission, engineering licenses).
• Denial of welfare benefits to lawful permanent residents while granting them to citizens.
• Restrictions on owning property imposed only on legal aliens.

However, there is a critical exception.

Key Term: Government Function Exception
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An exception under which state and local alienage classifications are reviewed under rational basis, not strict scrutiny, when the position or function is intimately related to democratic self-governance (for example, police officer, high-level policymaker, certain public school teachers).

Under this exception, states may reserve certain roles for citizens only, such as:

• Voting in state and local elections.
• Holding elective office.
• Serving on juries.
• Serving as police officers, probation officers, or certain primary and secondary public school teachers that perform core civic functions.

These classifications are upheld if they satisfy rational basis review because the positions are considered part of the political community’s core functions. The exam issue is often whether a specific job falls within this exception:

• Jobs that usually do qualify: police officers, probation officers, public school teachers (especially in primary and secondary schools), high-level policymakers, elected officials.
• Jobs that usually do not qualify: notaries, civil engineers, state university faculty in most subjects, private lawyers.

On the MBE, if the job involves direct participation in the process of democratic self-governance or broad discretionary authority over the public, rational basis applies; otherwise, assume strict scrutiny.

Federal Alienage Classifications

Alienage classifications by the federal government are generally reviewed under rational basis because Congress has plenary power over immigration and naturalization.

Examples generally upheld under rational basis:

• Federal laws limiting eligibility of noncitizens for certain welfare programs.
• Federal rules differentiating between citizen and noncitizen eligibility for certain jobs related to national security or foreign policy.

The exam pattern: if Congress or a federal agency makes a citizenship-based distinction, your default is rational basis, not strict scrutiny.

Undocumented Aliens

Undocumented (unauthorized) aliens are not a suspect class, so laws affecting them usually get rational basis review. But one area is treated more sensitively: public education.

• States may not deny undocumented children a basic public primary and secondary education.
• In Plyler v. Doe, the Court applied a standard stricter than ordinary rational basis (though not labeled strict scrutiny) and invalidated a law denying these children free public schooling.

On the MBE, treat such laws as highly suspect — you should expect the Court to require more than a minimal justification. Still, doctrinally this is not called strict scrutiny.

Worked Example 1.1

A state enacts a law requiring all applicants for state civil service jobs to be United States citizens. A lawful permanent resident alien, otherwise qualified, is denied a job as a state university librarian solely based on this law and challenges it under the Equal Protection Clause. Will the law likely be upheld?

Answer:
​
No. State laws classifying based on alienage are generally subject to strict scrutiny. The “government function” exception applies only to positions intimately related to democratic self-governance. A librarian at a state university does not fall within this narrow exception. The state would need to show the citizenship requirement is necessary to achieve a compelling interest, which is unlikely for this type of position.

Worked Example 1.2

A state statute requires that all public school teachers be U.S. citizens. A lawful permanent resident with a teaching degree is denied a job and sues under the Equal Protection Clause. What standard of review applies?

Answer:
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Rational basis. Although state alienage classifications ordinarily receive strict scrutiny, the “government function” exception applies to positions intimately related to democratic self-governance. Public school teachers, particularly in primary and secondary schools, have been treated as falling within this exception because they help inculcate civic values. A simple rational relationship to a legitimate state interest (for example, promoting civic) is sufficient.

Worked Example 1.3

A federal statute bars noncitizens from receiving a particular federal welfare benefit. A lawfully admitted permanent resident challenges the statute. What is the correct standard of review?

Answer:
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Rational basis. Because Congress has broad power over immigration and naturalization, federal alienage classifications generally receive only rational basis review. The statute will be upheld if it is rationally related to a legitimate governmental interest, such as conserving federal resources or encouraging naturalization.

Race, Voting, and School Segregation

Race-based classifications in voting and education also trigger strict scrutiny:

• School segregation: Intentional segregation (for example, assigning students to schools by race) is unconstitutional; courts may order race-conscious remedies (such as busing) to dismantle de jure segregation, but may not impose racial balance solely to counteract residential patterns absent proof of intentional discrimination by the district.

• Racial gerrymandering: Drawing district lines predominantly on the basis of race is subject to strict scrutiny; compliance with the Voting Rights Act can be a compelling interest, but districts must be narrowly tailored.

On the MBE, if race appears in the design of districts or assignment of students, strict scrutiny applies.

Worked Example 1.4

A state legislature creates a majority-minority voting district where boundaries were drawn almost entirely by reference to racial data, with the stated goal of increasing Black representation in the legislature. No findings of past discrimination by the state are made. A white voter challenges the plan. What standard applies?

Answer:
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Strict scrutiny. Race has been the predominant factor in drawing district lines, triggering strict scrutiny. The state would have to show that the plan is necessary to achieve a compelling interest (such as remedying identified past discrimination or complying with federal law) and that the boundaries are narrowly tailored. Without such findings, the plan is likely unconstitutional.

Intermediate Scrutiny

Intermediate scrutiny is a middle ground between strict scrutiny and rational basis review. It is more demanding than rational basis but less exacting than strict scrutiny.

Under intermediate scrutiny, the government must prove that the challenged classification is:

• Substantially related to
• An important government interest.

In gender cases, the Court has emphasized that the government must present an “exceedingly persuasive justification,” and may not rely on stereotypes or generalized assumptions about the roles or capabilities of men and women.

Key Term: Quasi-Suspect Classification
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A classification based on gender or legitimacy (nonmarital children), which triggers intermediate scrutiny under equal protection analysis.

Intermediate scrutiny applies primarily to two types of classifications:

• Gender (sex)
• Legitimacy (marital vs. nonmarital children)

Gender Classifications

Gender classifications treat men and women differently. For intermediate scrutiny to apply, the challenger must first show the law is sex-based on its face or that a facially neutral law was adopted or applied with a purpose to discriminate on the basis of sex.

Key Term: Gender Classification
​
A law or policy that treats people differently based on sex (male vs. female), including some rules based on biological differences such as pregnancy.

Key points:

• The government must show an important objective (for example, remedying past discrimination, promoting equal opportunity).
• The means must be substantially related to achieving that objective.
• The justification must be genuine, not invented only for litigation.
• The law cannot rest on archaic stereotypes about men’s and women’s roles (for example, assumptions that women are inherently dependent or that caregiving is “naturally” women’s work).

Invalid Gender Classifications

Examples typically struck down:

• Different drinking ages for men and women (for example, men 21, women 18).
• Alimony rules granting benefits only to wives but not similarly situated husbands.
• State universities or nursing schools excluding one sex.
• Rules allowing only mothers (but not similarly situated fathers) to block adoption.
• Citizenship rules that make it harder for citizen fathers than for citizen mothers to transmit citizenship to nonmarital children abroad without a strong justification.

These rest on outdated assumptions about economic dependence or parenting roles rather than on genuine differences or remedial goals.

Valid Gender Classifications

Some gender classifications have been upheld when based on real biological differences or when they remedy past discrimination, such as:

• Laws giving additional benefits to women to offset identifiable workplace discrimination (for example, favorable Social Security calculation to compensate for lower historical earnings).
• Navy rules allowing female officers longer time before mandatory discharge due to historically limited assignment opportunities.
• Male-only draft registration, when women are excluded from combat roles by separate policy.
• Statutory rape laws punishing males who have sex with underage females, justified by the state’s interest in preventing teen pregnancy where only females can become pregnant.

The key is that the classification must be linked closely to an important objective and must not perpetuate harmful stereotypes.

Intent and Facially Neutral Gender Laws

As with race, a facially neutral law with disparate impact on one sex triggers intermediate scrutiny only if there is proof of discriminatory purpose. A height or strength requirement that screens out many more women than men but was adopted solely for genuine safety reasons — without evidence of intent to disadvantage women — will generally be reviewed under rational basis and upheld if the safety justification is reasonable.

Worked Example 1.5

A state law automatically grants widows, but not widowers, a property tax exemption upon the death of a spouse. A widower challenges the law as a violation of equal protection. Will the law likely be upheld?

Answer:
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No. The law classifies based on gender and is therefore subject to intermediate scrutiny. The state must show the classification is substantially related to an important government interest. Even if the state’s interest is assisting surviving spouses financially, granting the benefit only to women based on stereotypes about economic dependence is not substantially related to that interest. The state could achieve its objective through gender-neutral means (for example, granting the exemption based on financial need or to all surviving spouses).

Legitimacy (Nonmarital Children)

Legitimacy classifications treat children differently based on whether their parents were married at the time of the child’s birth. Such classifications are quasi-suspect and receive intermediate scrutiny.

Key Term: Legitimacy Classification
​
A classification that distinguishes between children born to married parents and those born outside marriage (nonmarital children).

Key limits:

• The state may not punish children for the marital status or choices of their parents.
• The law must be substantially related to an important interest, such as promoting family stability or ensuring accurate inheritance claims.

Examples:

• A statute granting no intestate inheritance rights to nonmarital children from their fathers is unconstitutional. It punishes children for their parents’ conduct and is not adequately tailored to preventing fraudulent claims.
• A requirement that paternity be established during the father’s lifetime as a condition of inheriting may be valid if it is closely tied to the important interest in preventing fraud and ensuring orderly estate administration.
• Very short statutes of limitations for paternity suits by nonmarital children (for example, six years from birth) are often invalid when marital children can seek support for much longer; the distinction is not substantially related to the state’s interest in avoiding stale claims.

Worked Example 1.6

A state intestacy statute provides that marital children may inherit from both parents, but nonmarital children may inherit only from their mothers. The state justifies the law as promoting family relationships and ensuring efficient disposition of property at death. A nonmarital child sues, claiming the statute violates equal protection. What standard of review applies?

Answer:
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Intermediate scrutiny. Legitimacy classifications are quasi-suspect, so the statute must be substantially related to an important governmental interest. Although orderly estate administration is important, completely barring nonmarital children from inheriting from their fathers is generally not substantially related to that goal and is likely unconstitutional because it penalizes the children.

Worked Example 1.7

A state statute provides that nonmarital children must file any paternity and support action by their sixth birthday, while marital children can seek support until age eighteen. The state argues this prevents stale claims. A nonmarital child sues. Likely result?

Answer:
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The statute is invalid under intermediate scrutiny. While preventing stale or fraudulent claims is an important interest, cutting off all actions by age six is not substantially related to that interest when marital children can obtain support much longer. The law imposes a significantly harsher burden on nonmarital children without adequate justification and effectively punishes them for their parents’ status.

Discriminatory Intent and Facially Neutral Laws

Many MBE questions turn on whether heightened scrutiny is triggered for a facially neutral law.

• Step 1: Facial classification?
  Does the law classify explicitly (on its face) by race, national origin, alienage, gender, or legitimacy?

  • If yes, heightened scrutiny applies automatically (strict for suspect, intermediate for quasi-suspect).

• Step 2: Disparate impact only or intent?
  If the law is facially neutral but has disparate impact on a protected group, ask whether there is evidence of discriminatory intent.

  • Without proof of intent, only rational basis review applies.

Evidence of intent can include (Arlington Heights factors):

• Statistical disparities so stark that they strongly imply purposeful discrimination.
• Historical background showing a pattern of discrimination.
• Departures from normal procedures (for example, unusual haste, irregular processes).
• Departures from normal substantive criteria.
• Statements or legislative history revealing bias or discriminatory motivation.

On the MBE, mere disparities — by themselves — are insufficient to trigger strict or intermediate scrutiny under the Equal Protection Clause. You must see something in the facts pointing to purpose, not just effect.

Note: In contrast, certain federal statutes (such as Title VII employment discrimination) can be violated by disparate impact alone, but those are statutory, not equal protection, questions.

Worked Example 1.8

A city requires all police officers to pass a physical agility test. In practice, 70% of male applicants pass, but only 25% of female applicants do. The city adopted the test after an outside consultant recommended it as the best predictor of on-the-job performance. A female applicant who failed sues, arguing the test discriminates on the basis of sex. What must she show to trigger intermediate scrutiny under equal protection?

Answer:
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She must show that the city adopted the requirement because of, not merely in spite of, its adverse impact on women — that is, she must prove discriminatory intent. Evidence might include statements revealing bias, deliberate selection of this test after rejecting equally effective tests with less disparate impact, or unusual deviations from standard hiring processes. A disparate impact alone does not trigger heightened scrutiny under equal protection. Without proof of purpose, the test is reviewed under rational basis.

Rational Basis with Bite

Sometimes the Court purports to apply rational basis review but invalidates laws where the real motive appears to be hostility toward a politically unpopular group. This has happened in cases involving:

• Persons with intellectual disabilities denied the right to live in group homes in ordinary neighborhoods.
• Laws singling out gay and lesbian individuals and denying them any chance to seek legal protections.

In these cases, the Court says the government lacks a legitimate interest in acting solely on the basis of animus or fear. While this is not formally “heightened scrutiny,” on the MBE you should recognize that:

• Classifications based on age, wealth, disability, or sexual orientation are not suspect or quasi-suspect for federal equal protection purposes.
• The standard remains rational basis, but if the facts show mere animus (for example, “we just don’t like this group”), the law may still be struck down.

Exam Strategy: Choosing the Correct Level of Scrutiny

A systematic approach is essential on the MBE:

1. Identify the actor.

   • State or local government → Fourteenth Amendment Equal Protection Clause.
   • Federal government → Equal protection component of the Fifth Amendment Due Process Clause.

2. Identify the classification or right.

   • Race/ethnicity/national origin → suspect → strict scrutiny.
   • State/local alienage (for non-citizens legally present) → suspect → strict scrutiny, unless the government function exception applies.
   • Federal alienage classifications → rational basis.
   • Gender or legitimacy → quasi-suspect → intermediate scrutiny.
   • Undocumented aliens, age, wealth, disability, sexual orientation → rational basis (sometimes with bite).
   • No classification, but a fundamental right (voting, interstate travel, certain privacy rights) burdened → strict scrutiny under equal protection or due process.

3. Ask: Is the classification facial or facially neutral with impact?

   • Facial → heightened scrutiny automatically for suspect/quasi-suspect classes.
   • Neutral with disparate impact → heightened scrutiny only if discriminatory intent is proven; otherwise rational basis.

4. Apply the correct test.

   • Strict scrutiny: Is the law narrowly tailored to a compelling interest?
   • Intermediate scrutiny: Is the law substantially related to an important interest (with an “exceedingly persuasive justification” in gender cases)?
   • Rational basis: Can any legitimate purpose be imagined that the law rationally advances?

5. Watch for exceptions and nuances.

   • Government function exception for state/local alienage jobs.
   • Federal plenary power over immigration.
   • Remedial affirmative action backed by strong evidence of past discrimination.
   • Rational basis with bite when animus is evident.

Worked Example 1.9

A state enacts a statute providing that only men may be appointed as prison guards in maximum-security male prisons, citing concerns about inmate privacy and safety. A qualified woman is denied a position and sues under equal protection. What standard applies and what result is most likely?

Answer:
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Intermediate scrutiny applies because this is a gender classification. The state must show that excluding women is substantially related to important interests such as security and privacy, supported by evidence, and that there are no less discriminatory alternatives (for example, specific assignment policies). Modern cases are skeptical of broad exclusions based solely on gender; narrowly tailored measures (such as assignment restrictions in certain situations) are more likely to be upheld than an absolute ban. On an exam, broad categorical exclusions of women are typically struck down as based on stereotypes rather than individualized assessment.

Worked Example 1.10

A state imposes a 1-year residency requirement before new residents can receive otherwise available non-emergency state-funded medical care. A woman who moved to the state 3 months ago challenges the law after being denied coverage for non-emergency surgery. The state argues it is conserving resources. What is the correct analysis?

Answer:
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The law burdens the fundamental right to interstate travel by penalizing new residents compared to longer-term residents, so strict scrutiny applies. Simply conserving resources is not a compelling interest when the law deters people from moving into the state or penalizes them for having recently exercised the right to travel. The statute is likely unconstitutional.

Although this question is framed as a fundamental-right case rather than a classification case, the same strict scrutiny framework applies: a classification based on recent arrival that penalizes interstate migrants is essentially treated as suspect.

Key Point Checklist

This article has covered the following key knowledge points:​

• Heightened scrutiny (strict and intermediate) applies to certain governmental classifications under the Equal Protection Clause (Fourteenth Amendment for states, Fifth Amendment Due Process for the federal government).
• Strict scrutiny requires the law to be narrowly tailored (effectively necessary) to achieve a compelling government interest, and the government bears the burden of proof.
• Strict scrutiny applies to suspect classifications (race, national origin, and most state/local alienage classifications) and to laws burdening fundamental rights.
• State and local alienage classifications usually trigger strict scrutiny, but the government function exception lowers the standard to rational basis for positions intimately involved in democratic self-governance.
• Federal alienage classifications generally receive only rational basis review due to Congress’s plenary power over immigration and naturalization.
• Undocumented aliens are not a suspect class, but states may not deny them access to basic public primary and secondary education without satisfying a heightened standard.
• Intermediate scrutiny requires the government to show that the classification is substantially related to an important government interest, often with an “exceedingly persuasive justification.”
• Intermediate scrutiny applies to quasi-suspect classifications (gender and legitimacy/nonmarital children); laws based on gender stereotypes or punishing nonmarital children for their parents’ conduct are generally invalid.
• For facially neutral laws, discriminatory intent — not just disparate impact — must be shown before strict or intermediate scrutiny will apply.
• Rational basis with bite is sometimes used when non-suspect classifications appear to rest on mere animus, allowing the Court to invalidate them even while purporting to use rational basis.
• On MBE questions, always identify the actor (state vs. federal), the classification used, and whether the law is facial or facially neutral, then select and apply the proper level of scrutiny.

Key Terms and Concepts

• Equal Protection Clause
• Rational Basis Review
• Strict Scrutiny
• Intermediate Scrutiny
• Fundamental Right
• Suspect Classification
• Quasi-Suspect Classification
• Alienage Classification
• Government Function Exception
• Gender Classification
• Legitimacy Classification
• Discriminatory Intent
• Disparate Impact
• Facial Classification
• Facially Neutral Law
• Affirmative Action
• Rational Basis with Bite