Note: This is an educational course, not legal advice.
After race and sex, which other classifications get closer review? The answers come from the factors in the framework (history of discrimination, an unchangeable trait, political powerlessness) and from rational basis cases.
| Classification | Tier | Leading case and notes |
|---|---|---|
| State laws about lawfully present noncitizens (alienage) | strict, usually | Graham v. Richardson (1971): exception: states may limit "political functions" such as police officers and public school teachers to citizens; federal immigration rules get deference |
| Birth outside marriage (legitimacy) | intermediate | the Court's legitimacy cases: children should not be penalized for their parents' status |
| Age | rational basis | Massachusetts Board of Retirement v. Murgia (1976): mandatory retirement for state police at 50 upheld |
| Wealth | rational basis | San Antonio Independent School District v. Rodriguez (1973): school funding through local property taxes upheld |
| Disability | rational basis | City of Cleburne v. Cleburne Living Center (1985): though the denial in Cleburne failed even that test |
| Children not lawfully present, denied schooling | special case | Plyler v. Doe (1982): struck down: the law did not further a substantial state goal |
Why it works
The Court has been reluctant to add new suspect classes. In Murgia it said older people have not faced a history of purposeful unequal treatment like that based on race, and everyone who lives long enough becomes old. In Rodriguez it said the poor are not a definite class and wealth-based lines are common in economic life. In Cleburne it said people with intellectual disabilities have real differences that legislatures address with many laws, often protective ones, and closer review could discourage that legislation. Plyler v. Doe is hard to classify: the majority, noting that children do not choose their status and that denying education imposes a lifetime hardship, asked whether the law furthered a "substantial" state goal. Four justices dissented, saying it was a policy question for the legislature. Courts and scholars still debate what tier Plyler applied.
Key idea
Beyond race and sex: state alienage laws usually get strict scrutiny (with a political-function exception); legitimacy gets intermediate; age, wealth and disability get rational basis. The Court has declined to add new suspect classes since the 1970s.
Worked example: Political function
A state requires its police officers to be U.S. citizens. Strict scrutiny?
- State alienage classifications usually get strict scrutiny (Graham).
- But the Court has allowed states to limit jobs that carry out basic governmental functions, like police officers, to citizens, reviewed only for rationality.
Answer: No; the political-function exception applies, and the rule is upheld.
Worked example: Age
A state requires judges to retire at 70. A 70-year-old judge sues under equal protection. Tier and likely result?
- Age is not a suspect class (Murgia).
- Rational basis: the state might rationally worry about declining abilities in some people, even if not in this judge.
- The Court upheld Missouri's judicial retirement age in Gregory v. Ashcroft (1991), on other grounds as well.
Answer: Rational basis; upheld.
Common mistake
Thinking every disadvantaged group gets heightened scrutiny. The Court has declined to add new suspect classes since the 1970s: age, wealth and disability get rational basis. Heightened review comes from the established list (race, national origin, state alienage, sex, legitimacy) or from a burden on a fundamental right.