Equal Protection – What is it?
Grade Level: Middle
Overview:
In this lesson, students will analyze the Fourteenth Amendment’s Equal Protection clause. They will distinguish between identical treatment and equal treatment under the law, and discuss situations in which discrimination is acceptable – not letting a 6 year-old obtain a driver’s license, for example. The instructor can then introduce the three bases used by our courts for determining whether discrimination is in violation of the Fourteenth Amendment or not: the “strict scrutiny” test, the “intermediate scrutiny” test, and the rational basis test. Students will then practice applying these tests in an exercise, and experience first-hand the difficulty in deciding which test applies.
Time Needed: 1 class period
Objectives
During your session, students will:
- Analyze the historical meaning of the equal protection clause of the Fourteenth Amendment and how it is used today.
- Analyze the legal meaning of “equal protection of the law” by examining case studies.
Materials Needed:
Equal Protection – What Does It Mean? Handout
Procedure
Introduction
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.)
Looking at the Amendment
Pass out the handout 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.)
Explain:
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.
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.
Applying the Amendment
Ask:
- 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.)
- 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.
Situations
- Ask students to discuss the first situation on the handout. There may 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. 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 their decision-making. 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.
- 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.
- Explain that each test requires the court to ask and answer a different question.
- Strict Scrutiny: Is the law narrowly tailored to be the least restrictive means of accomplishing a “compelling” government interest?
- Intermediate Scrutiny: Is the law substantially related to an “important” government interest?
- Rational Basis: Is the law reasonably related to a “legitimate” government interest?
- Explain that while judges themselves often disagree on which test to use in any given case, most agree that the following criteria are determinative:
- Strict Scrutiny — Used in cases involving racial minorities or “fundamental interests” that are spelled out in the Constitution.
- Intermediate Scrutiny — Used in cases involving gender discrimination.
- Rational Basis — Used in cases involving any classifications that do not warrant strict or intermediate scrutiny.
- 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.
Debrief — 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?
National Curriculum Standards for Social Studies, National Council for the Social Studies