Equal Protection

Amendment XIV.

Section 1.  All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . .

Amendment V.

No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .

Current Issues

Facially Neutral, Disparate Impact.  On June 9, 2008, the Second Circuit upheld a lower court opinion and denied en banc review in Ricci v. DeStefano.  The lower court ruled--and the Second Circuit affirmed--that the New Haven Civil Service Board did not violate the Equal Protection Clause in refusing to certify the results of a facially neutral promotional test for the positions of lieutenant and captain in the New Haven Fire Department.  The CSB refused to certify the results because the test failed to achieve a desired level of diversity.  The Second Circuit's summary affirmance and its sharp split in denying en banc review provide a strong platform for a cert. petition.  Click here for an edited version of the decisions.

"Class-of-One" Equal Protection Theory.  The U.S. Supreme Court ruled 6-3 on June 9, 2008, in Engquist v. Oregon Dept. of Agriculture that the "class-of-one" theory of equal protection does not apply in public employment, where the government acts not as a regulator but as a "proprietor," managing its own internal operations.

Voting Rights and Voter I.D.  The U.S. Supreme Court ruled in a fractured opinion on April 28, 2008, that Indiana's voter I.D. law did not run afoul of the Equal Protection clause.  The Court in Crawford v. Marion County Election Board upheld the law--which requires voters to present a government-issued photo identification prior to voting--against a facial challenge.  An edited version of the opinion is here.  (Link to the Carter-Baker Commission on Federal Election Reform, including the final Commission report, upon which the Court relies for many of its conclusions, here.)  The Court's ruling leaves open whether an as-applied challenge to voter I.D. laws might achieve greater success.  For an analysis of litigation in a post-Crawford world, check out this American Constitution Society issue brief.