Alienage and Equal Protection: A Brief Summary

 Here is the Executive Summary:

The Court treats alienage as a suspect classification and thus applies strict scrutiny to most state and local laws that discriminate on the basis of alienage. For example, in Graham v. Richardson the Court struck down welfare laws that denied benefits if the applicant was a resident alien. P. 902
    

There is, however, an exception to this rule—the political function doctrine-- which allows states to “exclude aliens from positions intimately related to the process of democratic self-government.” See Bernal at 904. Thus, the state may bar aliens from serving as police officers, probation officers, and public school teachers, because these are jobs that involve discretionary power involving a basic governmental function.  But not lawyers or notaries public.  See 2-part test at p. 905.
    

Another exception involves classifications based upon alienage under federal law. These get only rational basis review. The reason for this is set forth in the Diaz case on p. 908 – “the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”  (See Art. 1, § 8 – power to establish a “Uniform Rule of Naturalization”).

Schedule

 No class next Thursday April 6. I will be on my way back from a speaking tour oat B.C. and Suffolk Law on school choice and the First Amendment.

Parents Involved v. Seattle School District (p. 887)

 From Oyez:

Facts of the case

The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal.

A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. A federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed.

Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. Applying these precedents to K-12 education, the Circuit Court found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an "en banc" ruling by a panel of 11 Ninth Circuit judges. The en banc panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point.

Question

1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students?

2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?

3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race in an effort to achieve a desired racial balance?

Conclusion

No, no, and yes. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he present cases are not governed by Grutter." Unlike the cases pertaining to higher education, the District's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). The District's goal of preventing racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that the District's tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that the District's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity.

Con Law II Spring 2023: Assignment March 30 & 31

Thursday March 30: Casebook p. 887-901; [Discuss Harvard and UNC cases]; Casebook p. 901-910 

 

Friday Students Present Their Seminar Papers

Seattle School Decision

Here are a few points for us to discuss in class:

• In Grutter, although the Court upheld racial educational diversity as a compelling state interest, it explicitly stated that the use of racial classifications to achieve " outright racial balancing...is patently unconstitutional." p. 859  Did the student assignment plans in Seattle School amount to racial balancing or were they narrowly tailored to achieve educational diversity?
• See p.889 and its discussion of Grutter--did the pupil assignment plan in Seattle School make a holistic, individualized assessment of each student and employ race only "as part of a broader assessment of diversity, and not simply an effort to achieve racial balance"?
• Is the basic difference between the dissent and the majority one over the standard of review? In other words, is the Majority properly applying strict scrutiny and the Dissent in effect saying that a lower, more deferential, standard of review should be employed to evaluate "good" uses of race? How do we know which uses of race are good and which are not good?
  
• A personal note: I have a friend--a law professor who has argued powerfully in print in support of race-conscious student assignment plans for the public schools (much like the ones in this case); and this professor recently visited for a year at a law school in a large urban area, and planned to rent a very nice house located in a very nice neighborhood near the law school. However, when she discovered that her children would not be assigned to the very good neighborhood school, but rather would be assigned on account of their race and bussed to an inner-city school for the purpose of racial balancing, she refused to rent the house and rented alternative housing and made other school arrangements for her children. When I asked her about this--and suggested cheerfully that she had rejected a wonderful opportunity to live out her own theory of the good life--she got annoyed with me and said: "There is always an exception for your own children." What do you think of this kind of reasoning? If there is always an exception for the children of elite law professors, is there also always an exception for the children of non-elite others, such as the parents in Jefferson County who wished their children to attend a school located one mile from home rather than one located 10 miles from home? See p.888
• Notice both the Majority and the Dissent claim the mantle of Brown in support of their arguments. One side says Brown is best understood as standing for the principle that children should not be assigned to public schools on the basis of their race. The other side says Brown is best understood as permitting racial assignments so long as they are being employed to achieve greater integration. Whom do you think has the better of this argument? Martha Nussbaum says that Chief Justice Roberts failed to understand the difference between using race "to include or exclude." But, of course, when pupils are denied a school assignment on the basis of race, even if the purpose is some notion of good racial balancing, the effect is still to exclude that child on the basis of her race from a school she is otherwise qualified to attend. No?
• Although Chief Justice Roberts normally speaks with a soft voice, here is rhetoric is strong: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (P. 892).
• Now consider Justice Thomas accusing the dissent of "replicating" the arguments made by the "segregationists" defending segregated schools in Brown! He explicitly endorses a "color-blind Constitution." (p. 893)
  

Gender Affirmative Action From Kahn to Califano to Orr to Hogan (Mississippi Nursing School)

 Gender-based affirmative action is reviewed under intermediate scrutiny and the state's goal of compensating for past societal discrimination against women as a class is an important state interest. And gender is substantially related to the interest of compensating women for past economic discrimination.

Kahn: The tax exemption for all widows (but not for widowers) is justified because it is substantially related to the state's goal of reducing "the disparity between the economic capabilities of a man and a woman." (p. 826) The state's use of gender is not based upon stereotypes about gender, but about actual historical differences about the economic situation of women as a class versus that of men as a class.

Califano: Same. The gender-based social security formula was not based upon "archaic and overbroad" stereotypes about women, but rather upon "the disparity in economic condition between men and women caused by a long history of discrimination against women." (p. 829)

Orr: Nope. Alabama's law imposing alimony obligations on divorcing husbands but not wives was based on the stereotype of the male provider and the female in need of support. Its result was "perverse" because it gives "an advantage only to the financially secure wife whose husband is in need." (p. 830)

Hogan: Nope. Single-sex nursing school for women only "tends to perpetuate the stereotyped view of nursing as an exclusively women's job." (p. 833) Thus, no important interest related to gender.

Racial Preferences vs. Other preferences

Some commentators have made a good point concerning racial affirmative action, and I want to follow up on it.

They have noted that in Grutter some white students were admitted with lower grades and test scores than some of the minority students who benefited from the "racial plus" factor. Although the opinion did not make clear how this happened, it is probably because these under-qualified white students received "donor" preferences or "alumni legacy" preferences or some similar type of VIP treatment. So if these kinds of preferences are okay, then why aren't affirmative action preferences also okay?

Let's assume a plaintiff walks into our law office and tells us that her application to attend Michigan Law has been rejected even though less qualified students were admitted under alumni, donor and racial preferences. What is our legal advice about the strength of her constitutional claims against these three types of preferences?

What standard of review applies to alumni preferences (i.e. to admission standards that discriminate in favor of children of alumni)?

What standard of review applies to donor preferences?

What standard of review applies to racial preferences?

What is your advice to your client about which claims stand a reasonable chance of success?

Now the "fairness" point--as opposed to the legal point-- is a little bit different. It might go something like this: "Since alumni and donor preferences tend to reward whites as a class, then what's wrong with racial affirmative action preferences that favor non-whites as a class?"

The problem with this kind of reasoning is it ignores the principle that equal protection is an individual right, not a group right. Our client is an individual citizen of the United States, not a representative of her race. Since she has not been admitted to the law school, by definition she has not benefited from the alumni or donor preferences. She has been harmed by all three preferences, and it makes no sense to say that because it is constitutional to harm her by preferences one & two, then it must also be okay to harm her by preference number three as well. In other words, the fact that our client has been harmed by two legal but unfair preferences, does not make it fair to harm her a third time or justify forbidding her from litigating her right to racial equality (and racial fairness) under the EPC. Or am I wrong?

Now, legacy preferences indeed are not fair to those who should have been offered a place in the class based upon the merits. It may well be that colleges and universities should discontinue legacy preferences and thereby open up more seats in the class for applicants of whatever race who merit admission. This might even be a less restrictive means of obtaining more racial diversity in the admitted class of students.

Grutter: Some Issues to Think About

•  Notice that the Court makes clear "that all racial classifications imposed by government 'must be analyzed...under strict scrutiny.' This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests." (p. 858) 
• Justice Kennedy in dissent says "The Court ...does not apply strict scrutiny."(p. 864) Is he correct?
• What is the difference between a permissible "critical mass" and a forbidden "quota"? What is the difference between the permissible "racial plus" in Grutter and the impermissible racial "20 points" in Gratz? Is the real difference only "cosmetic" in the sense that the policy in Grutter simply conceals the fact that race is the decisive factor in admissions for those who are part of the critical mass?
  
• What about less restrictive means of getting a racially-diverse class? Why shouldn't Michigan Law School decide on minimum qualifications for law students and then use a race-neutral lottery to select a class from this very large pool of minimally-qualified (as opposed to highly-qualified) applicants? Is maintaining its status as an "elite" law school a compelling state interest? How so? Does Michigan want to have it both ways--to use a very high standard of qualifications to select roughly 80% of its law school class (even though almost no minorities are admitted under this standard of merit) and then use race as a "determinative factor" or as an "extremely large" factor in selecting the other 20% of its class?
• The Court says that the Law School's "race-as-a-plus" admissions program does not unduly harm members of any racial group."  (p. 862) What does that mean? If a "critical mass" of the seats in the class are determined by the use of a large racial plus, doesn't this necessarily mean that non-preferred students, who would have been admitted had others not received a large racial plus, are seriously harmed by losing out on an educational and career opportunity? The Court says that since all students are considered on an individualized basis and race is only used as one factor, the program is fair and does not unduly harm non-minority students. Do you buy this? If "but for" the racial plus given to B, A would have been admitted instead of rejected, hasn't A suffered a serious race-based harm? Is this "fair?" How so?
• In Gratz, Justices Breyer and Ginsburg argued that "government decisionmakers may properly distinguish between policies of inclusion and exclusion." (p. 870). Do you agree? If admissions offers are limited, and if A is preferred over B for a scarce seat in the class on the basis of A's race, is it not true that B has been excluded on the basis of her race? In another words, if race is the basis of assigning a place in the class, is it not true that to include A is necessarily to exclude B? Is this not just the cold logic of scarcity and racial preferences?
• If you oppose racial preferences, are you willing to live with a law school student body that has few or no members of racial and ethnic minority groups? If not, what is your solution or plan?
• I remember a few years ago a supporter of racial preferences said "we are going to get racial equality in this country even if it means sacrificing an entire generation of white [and Asian?] children." What do you think he meant? Is this a little like Justice O'Connor saying that there must be a durational limitation of, roughly, 25 years on racial preferences in admissions? (p. 862) Since racial preferences have already been in force for at least 30-40 years [DeFunis was decided in 1974 and Bakke in 1978], we should probably be talking about 2-3 generations, not just 1 generation. Is this a price worth paying? How do you explain to White and Asian children whose dreams are taken for this "sacrifice" that this is a fair and good policy? The recent case involving Harvard's affirmative action admissions process suggest that Asian-American students may bear much of the cost of racial preferences.
• Which minority students are more likely to benefit from affirmative action preferences in law school and medical school--those from poor families or those from more affluent families? Which non-preferred students are more likely to lose opportunities due to being on the wrong side of racial preferences--those from affluent families or those from poor or working class families?
• I recently heard a law professor give a presentation in which she argued that an African-American student from an upper income family (e.g., both parents lawyers or doctors) is more deserving of a large scholarship than is a white student from a humble economic background? Her point was that diversity means more than an offer of admission; it also means recruiting minority students to accept the school's offer of admission, and that may mean giving large racially-exclusive scholarships even to wealthy minority students. Is this just an application of Economics 101 and its teaching about supply and demand--scarcity increases price--and thus minority applicants are "worth" more (precisely because of their race) than non-minority applicants and thus deserve large racially-based scholarships without regard to need? Is this fair? Should it be constitutional?
• William Voegeli says that equal opportunity and meritocracy, not racial preferences, are most consistent with American values: "Working hard and playing by the rules...[advance] the idea that effort, self-discipline, and family cohesion still count in a country that is not perfect but also not beset by 'systemic' racism."  (Voegeli, A Tale of Two Propositions, Claremont Review of Books 2022)
•   Ibram X. Kendi, however, supports what he calls "anti-racist" policies: “'A racist policy yields racial disparities,' he wrote in the New York Times. 'An anti-racist policy reduces or eliminates racial disparities.'"  Id.
• Do you agree with Voegeli or Kendi? Should race--or merit--determine who gets admitted, who gets a scholarship, and who gets a job, an internship, or other scarce opportunities? Should the law guarantee equal results, or equal opportunities?
  

Con Law II Spring 2023: Assignment for Week 7 (March 23 & 24)

March 23: Casebook p. 804-815; Casebook p. 826-835

 video 1: https://use.vg/CvcTZk           

video 2: https://use.vg/Hqns8o

 

March 24: Casebook p. 835-839; 848-872 

video: https://use.vg/EQ6y4Y

 

Did Grutter Overrule U.S. v. Virginia?

In Grutter, the Court held that a state university has a compelling interest "grounded in the First Amendment, of educational autonomy: The freedom of a university to make its own judgments as to education includes the selection of its student body."  Moreover, the Court decided to defer to the university's "educational judgment" about whether racial diversity "is essential to its educational mission."

If this is a correct application of strict scrutiny, then doesn't it follow that VMI should have easily passed intermediate scrutiny when it argued that its educational autonomy and educational judgment required it to select a student body that was the most likely to thrive under "the unique VMI method [i.e. the adversative approach] of character development and leadership training?"

Was the intermediate scrutiny employed by the Court in VMI actually more strict (more "well done") than the so-called strict scrutiny applied in Grutter?

If so, is the Court acting like a court applying the law, or like an unelected national legislature decreeing its own particular version of good curricula on state universities? Should the Court be taken seriously when it uses this kind of subjective jurisprudence that seems to have so little contact with the actual Constitution, or even with the Court's own tests and standards of review?

Arlington Heights (page 810)

 Consider two possible zoning laws:

1. The first zoning law excludes "non-white persons" from the community.

2. The second zoning law allows only single-family residential use and thus excludes apartments and duplexes from the community.

In Arlington Heights, the Pls were arguing that zoning law number 2, like zoning law number 1, constituted an unconstitutional racial classification under the Equal Protection Clause of the 14th Amendment, because the second law had "racially discriminatory effects."

Do you understand this argument?

Bolling v. Sharpe: One Last Thought

 The problem with Bolling is that the Court read an "equal protection component" into the Due Process Clause of the 5th Amendment. It is kind of a reverse incorporation doctrine based upon the Court's view that it would be "unthinkable" not to strike down racial segregation in the public schools of the District of Columbia.

Actually, there is a way the Court might have used the Due Process Clause to strike down laws requiring racially segregated public schools without having to judicially amend the 5th Amendment. Why not use a real rational basis test and hold that racial segregation fails rational basis review because  these laws are arbitrary and lack any legitimate governmental interest. I think the post-New-Deal Court was so afraid of Lochner that it created a rational basis test that was not a test at all. Due Process should be understood--not as creating fundamental rights based upon the Court's policy preferences--but rather as requiring all laws to have a real, rational, logical, non-arbitrary basis in law.

Thus, since laws mandating racial segregation are totally irrational and based upon arbitrary beliefs about racial castes, they fail ordinary due process rationality review. Does anyone believe that laws segregating public education are based upon a legitimate governmental interest?

What are your thoughts? Is this approach to Due Process persuasive? Notice it would not be a special rule about race or equal protection; it would require all laws to have a real rational basis if they are to be enforced against a free people. Is this persuasive?

Let's talk about this when we get back together after Spring Break.

For a critique of the toothless rational basis test, see this short argument presented by the Institute For Justice. 

Washington v. Davis

The D.C. police department requires police recruits to take Test 21 – recruits must receive a grade of at least 40 on the test to be on the force.

The test was attacked as a racial classification under the Equal Protection Clause.

How is this test a racial classification under equal protection? 

When a statute or governmental policy creates a racial classification “on its face,” the equal protection issue is easy to frame.

 Suppose, for example, the D.C. statutes provided that only whites could be police officers.  Or suppose the department established 80% as the passing score for blacks and 70% as the passing score for whites?

The racial classification is clear “on the face” of the statute, and we proceed to apply strict scrutiny.  Since there does not appear to be any compelling reason for this classification, we strike it down.

A second approach is to argue that a law that is neutral on its face is being unevenly applied on the basis of race.  See the Yick Wo case.

In Yick Wo you have a facially neutral health and safety regulation that prohibits the operation of laundries in wooden buildings.  Looks like an easy, minimal scrutiny, economic regulation. Fire Hazard.

But the evidence at trial showed the following: "It was alleged in the petition, that "your petitioner and more than one hundred and fifty of his countrymen have been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of China, and who are conducting eighty odd laundries under similar conditions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The business of your petitioner, and of those of his countrymen similarly situated, is greatly impaired, and in many cases practically ruined by this system of oppression to one kind of men and favoritism to all others...." 

In other words, the laws restrictions were only being enforced against laundries operated by Chinese launderers.

Held:  Denial of equal protection.  The discriminatory application of the law constituted a racial classification.

 Basically, the court inferred racially discriminatory intent from the overwhelming evidence of unequal application (the evidence was so strong in Yick Wo that it's hard to imagine the discrimination was unintentional).

How does Yick Wo cut in our analysis of the D.C. police exam?  Was the exam being unequally applied?  Did both races take the same exam (Exam 21), and did each have to achieve the same passing score?

 Yes.  It is hard to see any argument concerning unequal application.

 If the exam requirement is not discriminatory on its face and is administered evenhandedly, what is the argument that it is discriminatory?

 Basically, the only argument is the disparate impact – unequal results: The record showed that "a far greater proportion of blacks--four times as many--failed the test than did whites."

Are unequal results of an evenhanded merit policy evidence of discriminatory intent?  Should disparate impact trigger strict scrutiny? Or should the test be reviewed under the rational basis test and upheld so long as it is rationally related to a legitimate state interest in requiring that police officers have a reasonable ability "to communicate orally and in writing."

What do you think? Should all laws and policies that fail to produce equal results on the basis of race be struck down under  the compelling interest test? 

Now let's talk about Arlington Heights. 

Califano

To give you an idea of how the Social Security formula discriminated in favor of women, let's assume I decide to base grades in Con Law on your score on 10 pop quizzes. And suppose further I decide that, in order to compensate for past societal discrimination against women in the law, I will allow women--but not men-- to throw out their three lowest scores.

So assume Mr. A and Ms. B have identical records on their quizzes--they each scored 100% on seven quizzes and 0% on three quizzes. What grades do they earn under my grading formula?

Mr. A has an average of 70% and that might curve out at a 4 or 5.

Ms. B has an average of 100% (after throwing out her three zeroes) and earns a grade of 9 for the course.

If I chose to grade on this system at a state university, would it violate the EPC?

Should I adopt this formula for future classes?

How would a social conservative like Pat Robertson, who wishes to encourage women to stay home and care for their young children, feel about the Social Security formula in Califano?

Gender-based Income Tax Rates

Following Kahn (p.826) and Califano (p.829), could Congress enact a gender-based income tax rate under which men are taxed at a higher rate than women (e.g. top marginal rate for women 25% and for men 30%). Suppose Congress did so for the purpose of reducing "the disparity in economic condition between men and women" caused by the long history of societal discrimination against women?

What about a race-based income tax rate (non-whites 25%, whites 30%). Constitutional?

Schedule For Next Week

 As we discussed, we will use two of our 6 pre-made-up-classes next week>

No class on Thursday and Friday March 9 and 10.

Equal Protection Clause and Laws That Classify on the Basis of Biological Sex

 What about a law that forbids transwomen from competing in women's sports. If Lia Thomas had faced such a law, would their be an equal protection claim? How should we analyze it?

Fifth Amendment Due Procerss Clause

The Fifth Amendment provides, in pertinent part, that "No person shall...be deprived of life, liberty, or property, without due process of law."

Gender Classifications: From Reed to VMI

Here are a few notes and questions on these cases:


1. Reed v. Reed--the Court purports to be applying the rational basis test, but did it? Is this a good example of "medium rare" scrutiny in which the Court pays lip service to the rational basis test but in reality applies a heightened form of scrutiny? Suppose, for example, that a state were to legislate a preference for the older of otherwise equally-entitled heirs to be named the administrator of an intestate's estate? Do you think this "arbitrary" age classification violates the EPC? Or is this merely an example of how the rational basis test ought to work? Is either gender or age in any way related to a logical government interest?



2. Notice that in Frontiero a plurality (but not a majority) wished to treat gender as a suspect classification entitled to strict scrutiny. If this had succeeded, would public schools and state universities be allowed to maintain separate but equal athletic programs for men and women? What would happen if a school had, say, only one team in each sport and selected players based upon athletic ability? How many women would make the basketball team? The baseball team? The soccer team? The football team? The tennis team? The track team? Could the state maintain separate men's and women's prisons?


3. Craig v. Boren held that gender is a quasi-suspect classification reviewed under intermediate scrutiny? Thus, when a state legislates a gender classification it must be prepared to defend it by showing that the gender line is substantially related to the advancement of important governmental objectives. In Craig, Oklahoma used gender as a proxy for responsible drinkers/drivers--kind of like sugar and spice and everything nice for young women, and untrustworthy, irresponsible, drunk drivers for young men! How accurate is this proxy as a means of screening out drunk drivers? As Justice Stevens pointed out, it "is not totally irrational." Really?  There was some statistical evidence to support it. It might be good enough for rational basis review, but is gender "substantially related" to drinking and driving? Is it overinclusive? Underinclusive? Both overinclusive and underinclusive? Does it even satisfy a true rational basis test? What do such weak gender statistics tell you about Mr. Craig's individual character?
4. Rostker--the Court says gender is substantially related to draft registration because the purpose of the draft is to prepare for combat and, since women are excluded from combat, it makes perfect since to exclude women from the draft. Hmmm. Makes sense, no? Of course, the validity of the draft exclusion depends upon the validity of the combat exclusion. Is the combat exclusion based upon an obsolete gender stereotype of men protecting women from common enemies? Is there a warrior gender and a "keep-the-home-fires-burning" gender? Who would you rather have protect you from the enemy--Xena or Woody Allen? Is this warrior/non-warrior stereotype overinclusive? Underinclusive? Both? Is Rostker still good law now that the combat exclusion has been rescinded and women are eligible for combat assignments?

5. United States v. Virginia--did the Court apply intermediate scrutiny or "medium well done" scrutiny in this case? Does a state university have a compelling interest in educational autonomy, an interest that includes the right to admit students that best serve the school's educational objectives? Or should federal courts decide issues concerning the school's educational mission and which students best serve the school's educational ideals? Does Justice Ginsburg try to have it both ways in her majority opinion? She says gender cannot be used to exclude "women who have the will and capacity" to participate in VMI's "citizen-soldier" educational program. But she also seems to say that VMI must "adjust aspects of the physical training programs." (p. 794, n.19) If "some women" are equally qualified for VMI's military training, why do these qualified women need the school to "adjust (by which Ginsburg means lower) the school's physical training standards?

6. Here is the "law" coming out of the VMI case:

--The burden of establishing the "exceedingly persuasive" justification for use of gender classifications is "demanding" and "rests entirely on the State." (p.791)

--the State must show "at least that the [gender]classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives'" (id.)

--"the justification must be genuine, not hypothesized or invented post hoc in response to litigation." (id.)

--"And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." (Id. See also p. 793)

This demanding scrutiny (medium well? intermediate scrutiny on steroids?) is why I think the combat exclusion and draft exclusion would be difficult to justify should they be challenged today under U.S. v. Virginia. Try to justify the combat exclusion without resorting to overbroad generalizations about the ability of most women to carry 150 pound backpacks or kill the enemy in close combat. As Justice Ginsburg said, "generalizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." (p. 793)

Combat Exclusion: Is Gender a Good Proxy for Warrior?

In Rostker, the Court concluded that a male only draft registration was justified because, since women are excluded from combat, gender is substantially related to the important interest of having a supply of combat-eligible young men ready to be called up quickly in the event of war.

But doesn't that beg the question? Is the combat exclusion of women unconstitutional under the Equal Protection Component of the Due Process Clause of the Fifth Amendment? Is gender a good proxy for combat fitness in the modern, high tech military?

Now that women are no longer excluded from combat, is Rostker's reasoning still valid? How would a draft case come out today?