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Equal Education Opportunity for Women: How Should It Be Defined?

Handout: Legal Factors Related to Equal Protection Cases

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Levels of Scrutiny

1. Strict scrutiny

When it is determined that the basis for student classification and differential treatment is race or ethnicity, courts employ the strict scrutiny test. This test requires that the public institution justify its policy of differential treatment by showing that it is necessary to accomplish a compelling state purpose and is the least restrictive means that is as narrowly tailored to that purpose as possible. This is very difficult for the public institution (e.g., public school) to do.

2. Substantial relation (intermediate level of scrutiny)

When it is determined that a public school is classifying on the basis of gender, courts employ this intermediate-level test. Although not as demanding as strict scrutiny, it still places the burden for justifying the policy of differential treatment on the government. Gender-based classifications will be upheld only if the government can demonstrate that they are substantially related to the achievement of an important government purpose. While this is still a difficult barrier for the public school to surmount, it is easier to meet than the strict scrutiny standard is. The test was applied in an education setting in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). There the Supreme Court held that gender distinctions should be measured by intermediate judicial scrutiny, which requires an important governmental objective and asks whether gender distinctions are substantially related to the objective.

Legal Principles Applied to Equal Protection

  1. The general concept behind the Equal Protection Clause is that government should not invidiously (i.e., with bad intent) discriminate among classes of persons within its jurisdiction. All should be equal before the law.

  2. Certain factors, such as race, are inherently suspect, face strict scrutiny in the courts, and are almost always deemed unconstitutional in discrimination cases. However, schools may discriminate when a rational basis for discrimination is established, such as, for example, age.

  3. Courts may consider intangible social and psychological effects of discrimination as evidence in deciding whether equal protection principles have been violated.

>>Equal Education Opportunity for Women: How Should It Be Defined
>>Handout: Terms
>>Handout: A Case of Alleged Sex Discrimination
>>Handout: Background
>>Handout: The Fourteenth Amendment
>>Handout: Legal Factors Related to Equal Protection Cases
>>Handout: The Decision


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