Equal Protection 101–An Example

We often discuss concerns about equal treatment here.   In an array of circumstances we’ve discussed whether some categories of people are being treated less well than others and, if they are, if that’s okay.   In the language of US Constitutional law, this is the stuff of equal protection.

Here’s a story about a series of recent equal protection cases that I think offer a good illustration of how equal protection actually works.  In addition, while the laws involved are a little far afield, they do tie back to things we’ve talked about.  All of which is to say, I think it’s worth taking a few moments to think about this.

It seems that a number of states have recently enacted laws that put restrictions on who can qualify for in-state tuition at state universities.  In order to qualify you must satisfy specified residency requirements and you must establish that your parents are (or were?)  in the country legally.   The idea here, I believe, is to minimize the incentives a person might have to come to this country illegally.  The incentive is diminished because that person knows that, even if their child is born here, their child will not be able to get in-state tuition.

There are some students who were born in the US to parents who were not legally in the US.  These students are US citizens.  And even though they meet state residency requirements, they will not qualify for in-state tuition under these laws.

To set up the equal protection challenge, you put two groups side-by-side.   Both groups are US citizens who meet state residency requirements.  The difference is students in one group can prove that their parents are legally in the US and students in the other cannot.   The students in the former group are treated better (given in-state tuition) than those in the latter.  The state must justify this differential treatment.

There’s a key question, too, in how closely a court is going to exam the state’s justification.   And here the state’s hit a problem.   The students in the second group–children of illegal immigrants–didn’t have any control over their parents’ actions.    They are being disadvantaged because of a characteristic that is fixed by the actions of others.

Not so long ago there was a string of cases rejecting differential treatment for children of unmarried parents–what were commonly called illegitimate children.   There, too, the courts said the marital status of the parents was beyond the children’s control and so it was problematic when the parents’ choice became the basis for discrimination against the child.    It’s pretty close to the same problem here–and as a result, I think most courts will look at these new statutes rather closely.

Which brings us back to the state’s justification.   It’s easy to justify the residency requirement–the state wants to reserve the benefits of subsidized tuition for it’s own residents.  But the children in the disadvantaged group meet that requirement.   Perhaps you want to affect the behavior of the parents–or perhaps you just want to punish the parents.  But the illegitimacy cases suggest that you cannot do that by punishing the blameless child.   One lawyer sums it up this way:

Here is a citizen being denied rights and privileges because of who her parent is,” Mr. Shalom said. “We think that’s decidedly un-American.”

In the end, it’s not surprising that the state’s aren’t meeting with any success in defending this new tuition eligibility scheme.   It seems to be a pretty clear violation of some simple rules that are well-established and well-accepted.   Each person is to be judged on their own actions and not the actions of her or his parents.

There is a way in which all of this might connect more directly to our topics here.   In some states, there are two bodies of parentage law–one for children conceived via ART and another for children conceived via intercourse.    Obviously a child has no control over the parents’ choice as to manner of conception.   So do we have an equal protection problem there?  I know that some of you have raised this in the past (and I’ve said a little about it.)   I think it is a fair question to ask–particularly after you think about the tuition rules.

That said, I won’t try to answer it now–I’m at seven hundred words and that’s long enough for one post.   It’s actually a tricky question that requires a long answer.    Maybe that’s my homework for over the weekend.



8 responses to “Equal Protection 101–An Example

  1. OK but there is no justification for treating one U.S. Citizen differently than another over crimes his parents committed.

    If we wanted to handle it fairly we’d say you don’t get U.S. Citizenship if you are born here to an illegal immigrant. You are a citizen of your parents country which is pretty universally accepted anyway for children born abroad.

    But if they are citizens there is no sense in punishing them for a crime they did not commit.

    • They are clearly US Citizens–that’s in the Constitution itself. (It’s the first part of the 14th amendment.) That can be changed by amending the Constitution, of course, but that’s not an easy task. Neither will I, at this moment, agree that it would be “fair” to do that. I’ll just agree it could be done and that if you did it, maybe we’d need to think about this case differently.

  2. I appreciate your digging into this issue by the way.

    My concern is not that children conceived via ART have different privileges as that is too narrow and does not encompass the heart of the issue. My concern is that there is no consistent standard to which people with minor offspring are universally held. Some guys with offspring don’t help take care of them and they are never made to do so by the courts and other guys with offspring are chased down by the government, tested and have their wages attached. If they try to hide the government will order that their relatives have their DNA tested and they don’t have the right to refuse. That is all in the UPA. States have to find the father and the the father is the guy with the positive paternity test unless someone steped forward earlier and started doing the job. There are benefits to being the offspring of the people listed on your birth certificate that just cannot be replicated by anyone else. Starting with the fact that you cannot go back any further than your genetic parent, you originated from them and that is the origin of your existence those people are the reason a person exists they did not buy or borrow that roll from anyone else. The UPA gives lipservice to the need for people’s need for ongoing family medical information and a sense of heritage and family history but then undermines that goal by excluding anyone who winds up with a genetically inaccurate birth record. Like husbands being assumed to be the father even when its clear they are not and like adopted people and like donor offspring.

    • Here’s the key point, I think. Legal parents are held to a consistent standard. But that’s not what you mean by “offspring,” right? Off-spring are genetically related children. What you are saying–which I think is correct–is that not all genetic parent/child relationships are treated uniformly. Some lead to legal parenthood and some do not. What this means is that some genetic parents are held to one standard and others are not (or are held to a different standard.)

      For purposes of examining this disparate treatment, I tend to focus on the various ways one gets to be a legal parent. This is clearly related to examining how all genetic parents are treated (and noting that they are treated differently) but maybe doing it the other way round would give some different insights. I cannot recall off-hand if I’ve really tried it out. But I can and will.

  3. Imagine how insulting it is to be someones genetic sister brother niece or nephew and not be told that you are legally strangers because you were adopted out of the family while you were a minor. Something you had no control over whatsoever now means that you don’t have the legal right to take time off to attend your sister’s funeral. You don’t qualify to help your sibling immigrate to the United States. You don’t qualify for family leave act to take time off to care for you ailing elderly brother. Your mentally handicapped sister does not qualify as a relative dependant for your tax return even though she now lives with you and you pay all of her expenses. Its horribly insulting that the government refuses to knowledge these people and their kin

    • in short they lost their right to reality.

    • These are good points to raise, but they are a subset of simliar points. it wouldn’t be any better (to my mind) if it turned out you couldn’t go to your adopted sister’s funeral–the woman you’d grown up with your whole life. Or if you couldn’t inherit from the person you always thought was your father–because it turned out the genetic connection wasn’t there.

      You can think of these questions a totally different way: In a perfect world, when should a person get to take time off for a funeral or to care for someone who is sick? You could say each person gets to identify five people who will justify time off–and we don’t care who they are. Of course, some won’t have five such connections and others will have more than five so what do we do about that? But at least this means that people can define their own sense of who is important. Imagine if you got to take time off for a qualifying person from whom you happened to be totally estranged but not for a non-qualifying person who meant the world to you?

      Recognition of critical relationships–acknowledgement that they are important–does matter. But it doesn’t seem to me that using genetics is a sure way to get there.

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