Constitutional Law MBE Tip of the Day – Equal Protection

Answer to the Constitutional Law MBE Question

Subject:  Constitutional Law

Legal Issue: Will the women prevail in their equal protection lawsuit?

Legal Rule and Analysis: (B) is the correct answer. Here, there is no classification made based on gender.  Women and men can apply equally to the job and if they pass, they have a chance to be offered the job. There also appears to be no discriminatory intent as there are no facts indicating discrimination. Further, the job involves “intense physical activity.” Thus, the rational basis test will apply and the women will not be able to prove that the law is not rationally related to a legitimate government interest.

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:   The answer is (B). (A) and (C) are incorrect because the state law does not make a classification based on gender and thus, the state will not need to meet intermediate scrutiny. (D) is incorrect because showing a discriminatory impact is not enough—even for classifications that undergo higher scrutiny, such as race.

MBE Tip: If you answer an MBE question incorrectly, we recommend you write down why you answer it incorrectly on a legal pad. This way you can constantly review the law you do not know. And you can find “patterns” in areas of law you don’t know as well as other reasons you may be answering a question incorrectly. If you review this legal pad constantly, you will turn areas of law you don’t know into strengths and you will be able to identify other reasons you are answering a question incorrectly.

For example, if you picked (D) above, you did not know the law — that is, that discriminatory impact is not enough.

If you picked (A) or (C) above, you may not be reading the facts closely enough. Upon close reading, it is clear that there is no classification based on gender — there is a mere discriminatory impact (which is not enough!). This fact pattern is relatively short and simple. Yet, many students pick answer choice (C) above because they do not observe that there is actually no classification based on gender.  

If you answered this question incorrectly: Whatever reason you got this wrong, write it down on a legal pad and constantly review this legal pad so you can turn your weaknesses into strengths!

Key Takeaways and MBE tips for the day:

Takeaway for the Law: Discriminatory impact is not enough to show a classification based on gender (or even race!).

MBE Tip:  If you answer an MBE question incorrectly, we recommend you write down why you answer it incorrectly on a legal pad. This way you can constantly review the law you do not know. And you can find “patterns” in areas of law you don’t know as well as other reasons you may be answering a question incorrectly. If you review this legal pad constantly, you will turn areas of law you don’t know into strengths and you will be able to identify other reasons you are answering a question incorrectly.