Grades 7-9: Equal Protection


What Does It Mean to Have Equal Protection of the Laws?

"All men are created equal," states the Declaration of Independence. As a nation, we have spent more than two centuries trying to live up to the truths set forth in the Declaration. Our challenge seems to be that we talk a lot about equality but don’t always agree on what the word means.

While the Declaration represents the power of our nation’s ideals, it is the Fourteenth Amendment to the U.S. Constitution, added 80 years after the Constitution was adopted, that provides the legal basis for our evolving ideas of equality and fairness.

This activity is designed to help students look at what equality has meant in the past and consider how courts apply the concept of "equal protection of the law."

Objectives

·  To analyze the historical meaning of the equal protection clause of the Fourteenth Amendment and how it is used today.

·  To analyze the legal meaning of "equal protection of the law" by examining case studies.

Procedures: The Historical Background

1. Ask students if all men were equal before the Civil War. What was the main legally recognized inequality? (Slavery) What were some others? (Women could not vote, serve on juries, sometimes even hold property; sometimes even white males could not vote if they did not own a certain amount of property.)

2. Pass out the handout which follows and ask students to look at the words at the top of the page from the Fourteenth Amendment. Ask: Why did the writers of the Fourteenth Amendment include these words? (Prohibited state laws abridging the rights of citizens; tried to guarantee that states could not deprive anyone of "life, liberty, or property" without fair procedures ["due process of law"]; guaranteed that the law would protect people equally.)

3. Explain that in the historical context, Congress was concerned that southern states, once readmitted to the Union, would re-establish a fundamentally unfair legal system -- like that which existed before slavery -- in which the newly freed slaves would have no legal rights and no protections in court.

4. However, the amendment was not designed only for the newly freed slaves, since it refers to "persons." It has been applied to corporations (persons under the law) and actual people who are not citizens, as well as to American citizens.

Procedures: Applying the Amendment

5. Does the Fourteenth Amendment require that everyone be treated identically? (No, explain that many laws "discriminate" by treating some groups of people differently than others. Give some examples of laws that "discriminate" acceptably (preventing 10 year-olds from getting a drivers license). Ask students for other examples (different tax rates for different levels of income, etc.)

6. If "equal" is not the same as "identical," what is it exactly? Let’s look at some rules or laws that involve making distinctions among people.

7. Ask students to discuss the first situation on the handout. Probably there will be many opinions and arguments pro and con; fairness will come up, as will stereotyping by gender. Let the discussion go for a short while, but at some point rein it in. Explain that lots of criteria are in play, and many valid opinions are being expressed. However, when courts consider such matters, they must have standards to guide decision. Explain why courts develop and apply such standards. Then go over with students how a court would (and did) approach this issue. For example, you might explain how precedent helps courts identify the principles they should apply in deciding the cases before them. Explain that if courts did not have to look to past decisions in deciding which principles to apply, people would have no assurance that like cases would be decided in a like manner.

8. Before deciding whether a law that treats different classes of people differently violates the equal protection clause, a court must determine which constitutional test to apply: the "strict scrutiny" test; the intermediate, "substantial relationship" test; or the "rational basis" test. Write those three terms on the board.

9. Explain that each test requires the court to ask and answer a different question.

a. Strict scrutiny: Is the law narrowly tailored to be the least restrictive means of accomplishing a "compelling" government interest?

b. Intermediate scrutiny: Is the law substantially related to an "important" government interest?

c. Rational basis: Is the law reasonably related to a "legitimate" government interest?

10. Explain that while judges themselves often disagree on which test to use in any given case, most agree that the following criteria are determinative:

a. Strict scrutiny -- Used in cases involving racial minorities or "fundamental interests" that are spelled out in the Constitution.

b. Intermediate scrutiny -- Used in cases involving gender discrimination.

c. Rational basis -- Used in cases involving any classifications that do not warrant strict or intermediate scrutiny.

11. Ask the students which test they think should be applied in the case you are discussing and why. Explain the importance of selecting the right test. It is very difficult to uphold a law once it is subjected to "strict scrutiny" and very difficult to strike it down if it is only subject to "rational basis" review.

12. Don't worry if you can't get into more than one of these situations. Perhaps the students can consider them in subsequent classes.

13. End with some discussion questions:

·  What is the status of equality now?

·  What would you want it to be?

·  What debated about equality do you see in the future?


Grades 7-9
What Does It Mean to Have Equal Protection of the Laws?

14th Amendment/Situations Handout

"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." -- 14th Amendment

Situations

  1. After analyzing statistics on driving under the influence of alcohol and accident rates for drivers from ages 18-21, a state allows females to drink alcohol at 18 but makes males wait till 21.
  2. The National Honor Society at a public high school tells an unmarried teenage girl that she was not selected because she is pregnant.
  3. A state university has more sports programs for males than they do for females.
  4. A state law requires that 20% of the contracts to build highways be awarded to minority-owned firms since that reflects the demographics of the state population.
  5. A wealthy suburban community spends twice per student to educate their children than does a poor one.
  6. A state’s ethnic intimidation law provides special punishment for hate crimes that are based on gender, race, ethnic origin, and disability. No protection is provided because of sexual orientation.
  7. State troopers are required to retire at age 50.
  8. An immigrant family cannot apply for welfare benefits until they have lived in a state for two years.
  9. A public school creates separate classes for girls and boys because they believe that the girls will do better in science and math if boys are not present.


Grades 7-9: Equal Protection

Historical Perspective: What Was the Intent of the Framers of the 14th Amendment?

The words "equal protection of the laws" was added to the Constitution in 1868 by Radical Republicans (a group of Senators and Representatives who controlled Congress at the end of the Civil War) who had a vision that someday "the sons of slaves and the sons of slave owners would be able to sit down at the table of brotherhood." The laws they passed, including the Civil Rights Act of 1866, promised freed slaves the right to vote and other rights but there were many forces working against them. They realized that it would take more than an act of Congress to accomplish their goals.

The Republicans proposed the 14th Amendment and then forced the southern states to approve the change to the Constitution as a condition for returning to the Union. Their primary intent was to addressing past harm -- and to offer remedies for the many injustices inflicted on African-Americans that were allowed under the Federal Constitution. When the words of the 14th Amendment were adopted they had limited effectiveness but their words created a constitutional basis for expanding the rights of individuals and minorities throughout our history.

Today there are still debates about what the framers of the 14th amendment intended. Was the amendment designed to address the specific freedoms that southern states were denying freed slaves or was it a bigger vision about a strategy that all citizens can use to free society from discrimination? Regardless of their intent, through the years the words have been understood and used by many groups beyond those of the newly freed slaves.

Grades 7-9
What Does It Mean to Have Equal Protection of the Laws? (for 14th Amendment/Situations Handout)

Case Abstracts

1. The case involving different drinking ages for males and females is Craig v. Boren 429 U.S. 190 (1976). Oklahoma defended the law by arguing that statistics showed males between the ages of 18-21 were more likely than females to drive while drunk. The young man who brought the case claimed that the law discriminated unconstitutionally. The U. S. Supreme Court used a new "intermediate level" of scrutiny called the "substantial relationship" test in deciding this case. A divided Court ruled against the state, on the ground that laws discriminating on the basis of gender must serve "important governmental objectives" and be "substantially related to" achieving these objectives. The Court found that the law violated the equal protection clause because the sex discrimination in the law was not substantially related to the law’s objective -- traffic safety.

2. The case about the pregnant girl and the Honor Society is based on Cazares v. Barber, 959 F2d 753 (CA 9, 1992). A student alleged that she was not selected for the NHS because she was pregnant, unmarried, and not living with the baby’s father. The Ninth Circuit upheld the district court’s order barring the NHS induction ceremony from taking place without the female student.

3. The example on sports programs for males and females is based on a number of cases brought under Title IX, a federal statute enacted in 1972 to deny federal funding to universities that discriminate based on sex in scholastic sports. Under court rulings, the number of men and women athletes must mirror the ratio of men to women in the student body. Universities opposed to this interpretation of the law have unsuccessfully argued that the lack of gender parity in their sports programs simply reflects the "fact" that males tend to be more sports-minded.