So far, we have studied certain interests which may not be deprived without due process of law. Equal protection concerns something else. This independent constitutional guarantee governs all federal, state, and local laws that classify individuals and impact on individual rights. It derives from a clause found in the 14th Amendment of the U.S. Constitution, which reads, "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is specifically applicable only to the states, but the federal government is held to similar standards under the due process clause of the Fifth Amendment. Equal protec- tion requires that no person be singled out from similarly situated people, or have different benefits bestowed or burdens imposed, unless a constitutionally permis- sible reason for doing so exists. Thus, in the equal protection clause of the 14th Amendment, student-athletes and coaches find the means to challenge rules and regulations of a discriminatory nature. When considering equal protection claims, courts use three standards of review. The highest standard of review is that of strict scrutiny. Application of strict scru- tiny by the court means that the challenged rule will be invalidated, unless the defendant can demonstrate that the rule is supported by a compelling state interest and that the rule is narrowly tailored to advance that interest. When a rule abridges a fundamental right or makes a distinction based on suspect criteria, the defendant bears the burden of proof. This standard tests only whether a classification is prop- erly drawn, not whether an individual is properly placed within that classification. In the equal protection context, this type of review is triggered by the use of either a suspect classification, or the unequal deprivation of fundamental rights. The Supreme Court has identified three suspect classifications: alienage, race, and national origin. Any time a rule discriminates directly or indirectly on the basis of these classifications, courts will apply strict scrutiny. Thus, in such cases, the relevant state actor will bear the burden of defending its rule and will have to show that the rule is the least restrictive means of achieving a compelling state objective. On the other hand, as we have seen in the due process context that courts usually find partic- ipation in athletics to constitute an expectation and not a constitutionally based right. In general, some interests have been specifically found to be nonfundamental; these include subsistence and welfare payments, housing, government employment, and education. The fact that education has been deemed a nonfundamental interest is particularly important in cases involving high school or college athletic associations. This designation makes it difficult for the student-athlete plaintiff to estab- lish athletic participation as a fundamental interest. Therefore, claims alleging the unequal deprivation of such opportunities are far less likely to provoke strict scrutiny than claims based on suspect classifications.

THE ATHLETE AND CONSTITUTIONAL LAW 227 The second standard of review under the equal protection guarantee is the rational basis test. This standard is used when no suspect classifi cations or funda- mental rights are at issue. Rational basis review requires only that the rule have some rational relationship to a legitimate organizational or governmental purpose; the plaintiff bears the burden of proving otherwise. Rules reviewed under this standard are difficult for a plaintiff to challenge successfully because the defendant is generally able to present some rational relationship between the restriction and a legitimate governmental objective. Consequently, when courts decide to use this standard, the defendants nearly always prevail. The third standard of review or category of classes imposes an intermediate scrutiny test, which falls between the strict scrutiny and rational basis tests. It requires that rules classifying certain groups demonstrate an "important" but not necessarily a "compelling" interest and that the rules in question be "substantially related" to that interest. Two quasisuspect classifi cations have been established: gender and legitimacy. Therefore, use of either gender- or legitimacy-based classi- fications will trigger this intermediate standard of review. Although the difference between a compelling interest and an important interest frequently seems unclear in court decisions, it is at least clear that the state actor bears the burden of dem- onstrating that its important interest is advanced by the rule in question. In prac- tical terms mostbut not alllaws using equal suspect classifications are struck down. As equal protection jurisprudence continues to evolve, the issue of what other classifications may qualify as quasisuspect will take on great importance.

Question:

Which one of the three tests do you think is the most appropriate to determine whether an organized pre-game prayer by a public high school basketball team in its locker room would be successfully challenged? How did you reach that conclusion? (b) Would you change your mind if the pre-game prayer was made over the loudspeaker before the game? Why or why not? Part Two: How would a rule that demands all football coaches in a particular state must have played organized team football be challenged?