What is the Equal Protection Clause?
Amendment 14, Section 1 reads:
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.
The Equal Protection Clause of the 14th Amendment embodies the ethical idea that law should not treat people differently without a satisfactory reason.
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What are the specific protections of the Equal Protection Clause?
The Equal Protection Clause of the 14th Amendment protects citizens from discrimination under the law or through government action based upon their exercise of a fundamental right or based upon race, gender, and ethnicity.
This clause focused on the historical discrimination present from the days of involuntary servitude. It forced upon state governments the Civil Rights Act of 1866.
- Example: The Equal Protection Clause prohibits a state from penalizing criminal conduct of a particular race more severely than the same conduct by another race.
Discussion: Can you think of historical incidences where state laws have been held unconstitutional per the Equal Protection Clause? Hint: Think of voting and education rights.
- Ratified on July 9, 1869, The 14th Amendment to the US Constitution was passed with the original purpose of securing the rights of African Americans (former slaves). It altered the definition of citizenship (established in Dred Scott v Sandford) previously interpreted to exclude African Americans. The Equal Protection language intended to provide equal protection to all individuals under the law. This concept of equal protection was an instrument in combating segregationist laws, such as separate but equal public establishments, established in Plessy v Ferguson.
Practice Question: State A passes a law that all Hispanics in the state must provide proof of citizenship and residence prior to registering children for public school. Does this provision violate any Constitutional protections?
- Requiring this information from parents would likely violate the student’s equal protection rights. The court addressed this issued in the case of Plyler vs. Doe (457 U.S. 202 (1982). The court held that undocumented children and young adults have the right to attend primary and secondary schools under state law. The result of the Plyler ruling is that public schools may not condition enrollment upon the ability to produce documentation of citizenship or lawful status in the US. While the school may ask for this information, it must be made known that providing it to the school is optional; and, the school cannot treat students differently with regard to services or access because of this information.
Academic Research on The Equal Protection Clause
- Calabresi, Steven G. and Salander, Abe, Religion and the Equal Protection Clause (August 14, 2012). Northwestern Public Law Research Paper No. 12-19. Available at SSRN: https://ssrn.com/abstract=2130038 or http://dx.doi.org/10.2139/ssrn.2130038
- Sanders, Steve, Race, Restructurings, and Equal Protection Doctrine Through the Lens of Schuette v. Bamn (2016). Brooklyn Law Review, Vol. 81, 2016; Indiana Legal Studies Research Paper No. 399. Available at SSRN: https://ssrn.com/abstract=3197910
- Ross, Stephen F., Legislative Enforcement of Equal Protection (1988). Minnesota Law Review, Vol. 72, No. 311, 1988; Penn State Law Research Paper, 1988. Available at SSRN: https://ssrn.com/abstract=2736504
- Condon, Jenny-Brooke, Equal Protection Exceptionalism (2017). Rutgers Law Review, Vol. 69, No. 563, 2017. Available at SSRN: https://ssrn.com/abstract=3191464 or http://dx.doi.org/10.2139/ssrn.3191464
- Nourse, Victoria and Maguire, Sarah, The Lost History of Governance and Equal Protection (December 16, 2009). Duke Law Journal, Vol. 58, No. 2, 2009; Univ. of Wisconsin Legal Studies Research Paper No. 1101. Available at SSRN: https://ssrn.com/abstract=1524201