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20. Which of the following best states the burden of persuasion in this case?
A student at the high school has legal custody of his infant son. The school provides care for his son in its infant day-care center but will not allow him to enroll in the childcare classes. He brings suit against the school challenging, on constitutional grounds, his exclusion from the childcare classes.
A local high school has had a very high rate of pregnancy among its students. In order to help students who keep their babies to complete high school, the local high school has established an infant day-care center for children of its students and also offers classes in childcare. Because the childcare classes are always overcrowded, the school limits admission to those classes solely to the high school students who are mothers of babies in the infant day-care center.
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In sex and gender discrimination cases, the plaintiff must show a discriminatory purpose behind the regulation in order to trigger a heightened judicial review, not merely a discriminatory effect. See Geduldig v. Aiello, 417 U.S. 484 (1974) (holding that gender-neutral legislation needed to only satisfy mere rationality review, and the state's legitimate interest was rationally related to the means chosen, despite the disparate effect on women). When a state law does intentionally discriminate on the basis of sex or gender, it must satisfy intermediate scrutiny, which requires the government to prove that the action is substantially related to an important government interest. The government's goal must be important and courts will look at the actual reason the law was enacted. The government bears the burden of proof under intermediate scrutiny.
D is correct. The burden of persuasion belongs to the school in this case, and it must demonstrate that its admissions policy satisfies intermediate scrutiny, meaning that it is substantially related to an important governmental interest. Intermediate scrutiny applies because the school's regulation is based on gender (a quasi-suspect class); it only grants admission to childcare classes to mothers of babies in the infant daycare center at the school.
A is incorrect. This answer choice states the standard for rational basis review, which applies to non-suspect or gender-neutral classifications that merely have a discriminatory effect. Here, there is an intentional classification based on gender and thus intermediate scrutiny applies, as stated above.
B is incorrect. This answer choice states the standard that applies to content-based regulations on commercial speech under the First Amendment, not equal protection as it relates to quasi-suspect classifications. Not only is the burden of persuasion not on the student, but this also indicates a higher level of review than is required.
C is incorrect. This answer choice states the standard for strict scrutiny, which does not apply to quasi-suspect classifications. Even in sex or gender discrimination cases involving intentional unequal treatment, only intermediate scrutiny applies, as explained above.