Constitutional Law
Professor Harpaz
Due Process and Equal Protection Review Question
Grading Sheet

Due Process and Equal Protection Question (Custody Case) (total points - 50)
DC is used to identify an argument Dave Carney would make. JIF is used to indicate an argument Jim and Ida Fisher would make.

 Argument
Maximum Points
Due Process - nature of the right - is it fundamental or nonfundamental?-identify issue
1 point
DC argues Fund’l Rt-rt to live together as a family - precedent - Moore (extended family)
3 points
DC argue History/tradition - extended family-grandparents/grandch, includes uncles & nephews
2 points
DC argues right central to personal identity - decision to raise children/form a family unit
2 points
JIF argues rt is Nonfund’l rt - precedent - Michael H. shows preference for marital family; this is not marital family - formed after death of parents and only uncle and nephews
3 points
JIF argues no history/tradition-extended family tradition is grandparents/grandch, but not uncles & nephews
2 points
JIF argues ct should only rely on precedent and history and tradition, but even if consider whether right is central to personal identity- not a decision made by DC; made by deceased parents
2 points
DC argues Standard of Review-Strict Scrutiny-narrowly tailored means to compelling end; application to facts-no compelling int & not least restrictive means, alternative means are available 3 points
DC argues even under Minimum Scrutiny (rat'l means to legit end) the law is unconst'l-application to facts-no legit int & no rational relationship betw means and ends
2 points
JIF argues - Minimum scrutiny - rational relationship betw custody decision and legit interest in well being of children
2 points
JIF argues even under Strict Scrutiny - application to facts-compelling int & narrowly tailored, least restrictive means
3 points
Equal Protection - classification in judge’s comments, but not in statute (Palmore)
1 point
Nature of classification - physical handicap or quadriplegic vs. nonhandicapped
1 point
Identify Suspect Class criteria - hist. of disc.; immutable; unrelated to ability; label as inferior; pol. powerlessness
2 points
DC applies criteria to trait of physical handicap (quadriplegic)
4 points
JIF applies criteria to trait of physical handicap (quadriplegic)
4 points
Analogy to Cleburne and reasons why Court rejected suspect class status there and whether or not same analysis should be used in this case 2 points
DC argues because classification is quasi-suspect ct should apply Intermediate Scrutiny-substantial relationship between use of classification and important gov’t interest, app to facts-state has no important objective and even if objective is viewed as best interest of children, discrimination based on handicap is not substantially related to that objective because there are less restrictive alternative methods of protecting the children
3 points
DC argues even if Minimum Scrutiny - no legitimate justification, just reinforcing societal prejudice (Palmore) and no rational relationship to well being of children
2 points
JIF argues Minimum Scrutiny - rational relationship to well being of children and even if intermediate scrutiny-app to facts-imp obj in well being of children and use of classification is substantially related to that objective
4 points
Miscellaneous and special level of understanding of const'al issues
2 points