Con Law on the Bar Exam: How to Tackle Equal Protection

07 Feb, 2023

Analyzing equal protection questions can be tricky. But here's the good news: whether you encounter them on the MBE or in an essay, you can tackle any EP question by applying this straightforward, step-by-step analysis.

Preliminary Analysis

Before we get to the substantive EP analysis, you need to work through two quick steps:

1. Is there government action?

As we know, generally speaking when it comes to equal protection the Constitution only applies to government action, whether on the federal, state, or local level. It does not apply to private conduct. So, before you jump into levels of scrutiny, first make sure the government is involved in the discrimination at hand.

2. Does incorporation apply?

As we know, any equal protection issue implicates the 14th Amendment. However, you must remember the following:

The 14th Amendment itself applies directly only to state and local governments.
When it comes to federal action concerning equal protection, the 14th Amendment only applies by incorporation through the 5th Amendment Due Process clause.

Make sure you cover this on essays and be careful about getting tripped up on MBE answer choices that exploit this wrinkle.

Bottom line: be clear as to whether the 14th Amendment applies directly (state/local governments) or is incorporated through the 5th Amendment (federal government).

Equal Protection Analysis

With the preliminary analysis out of the way, you can start your substantive EP analysis which consists of three questions:

1. Is there a discriminatory classification?

Make sure there is some classification that is discriminating against someone or a group of people. That’s the easy part, but the harder part is proving that classification.

There are three ways to prove a discriminatory classification:

The law discriminates on its face. By its terms, the law treats classes of people differently
The law is neutral on its face but is applied in a discriminatory manner (e.g., only women are arrested under a facially neutral law).
There is a discriminatory motive or purpose behind the law, in which case P must show that there's a disparate impact and discriminatory purpose.

2. What level of scrutiny applies?
There are several levels of scrutiny the court can apply depending on the class of people affected: strict scrutiny, intermediate scrutiny, or rational basis. It's important for you to understand how and when to apply each. (See Con Law cards 34-38)

3. Does the classification satisfy the appropriate level of scrutiny?
Once you've determined the correct level of scrutiny, it's time to apply the law to the facts of the question. For MBE questions, this part should be easy if you’ve followed all of the steps. For essay questions, this will form the last part of your analysis and your conclusion.