American Constitutionalism in Historical Perspective (packet)

Implied Discrimination P.803 Personnel Administrator of Mass. v. Feeny: Upheld Mass law granting “absolute lifetime” preference to veterans for state civil service positions, even though the pref operates overwhelmingly to the advantage of males. So falls w/in Gomillion, Yick Wo, Washington, Arlington Hts

1. 
   Need disproportionate impact on women/minorities
   
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      Women claimed that perpetuated feminization of lower levels of civil service positions---allowed past exclusion from military to affect job status
      
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      But ct found gender neutral statute: just classifies veterans and non-veterans
      
2. 
   Any non-invidious justification to defend disprop impact: non-sexist rationale of giving veterans benefits
   
3. 
   Stevens/White p.806 denies disprop impact, disadvantages equal amt of men who are nonveterans. Reminds Richards of Palmer case where its ok to hurt whites and blacks
   
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   Brennan/Marshall dissent: this is a preference of men over women w/out looking at job qualifications. Foreseeability of disproportionate impact. Trying to impute discrim purpose: instit sexism means that need to place higher level of burden on govt similar to instit racism arg.
   

5. 
   New Suspect Classifications: Alienage, Illegitimacy, Mental Retardation, Sexual Preference, Poverty (pp. 810-837)
   
   1. 
      Alienage: resident aliens legally in the US but not yet citizens. Court has held that states can distinguish rights and benefits given to them and accorded to citizens. Alt reading of these cases is as matter of preemption. If fed govt h/n denied benefits to aliens and is silent, state c/n pass discriminatory laws under commerce clause. But if fed govt had denied benefits would’ve been approved. If wasn’t w/in equal protection no congressional override but if preemption case, congress could override judicial decision.
      
      1. 
         Graham v. Richardson: states c/n deny welfare benefits to aliens b/c are discrete & insular minority so heightened scrutiny is approp. Aliens pay taxes into system, should get benefits (moral reciprocity)
         
      2. 
         In re Griffiths: applied heightened scrutiny prescribed by Graham to invalidate Connecticut’s exclusion of resident aliens from law practice.
         
      3. 
         Sugarman v. Dougall: strikes down NY law providing that only American citizens may hold permanent positions in the competitive classified civil service. (1) History of prejudice: nativist prejudice that has a racial dimension, (2) Irrelevant to legitimate state purpose: needs to be contextualized properly to ensure not being used for discriminatory purposes, (3) Powerless minority: not able to vote.
         
         1. 
            Not always salient, immutable or have history of irrat prejudice (US one of most hospitable countries to immigration)
            
         2.