Notes

License Denied: Some State Occupational Licensing Laws Might be Unconstitutional Under the Equal Protection Clause

by Maya Dana­her1

Many incar­cer­at­ed peo­ple work while in prison, but once released, state licens­ing laws can often pre­vent them from con­tin­u­ing in the same line of work. For exam­ple, Cal­i­for­nia enlists some 4,000 prison inmates to fight fires along­side civil­ian fire­fight­ers.2 Many of those peo­ple, how­ev­er, are pro­hib­it­ed from obtain­ing an Emer­gency Med­ical Tech­ni­cian (EMT) license, a pre­req­ui­site for jobs in fire­fight­ing and oth­er emer­gency response pro­fes­sions, once released.3

There are approx­i­mate­ly 32,000 occu­pa­tion­al licens­ing laws around the Unit­ed States that pro­vide for the con­sid­er­a­tion of crim­i­nal records; more than 10,000 of those laws con­tain auto­mat­ic exclu­sions, such as life­time bans on peo­ple con­vict­ed of felony crimes.4 The licens­es cov­ered include EMT, bar­ber, cos­me­tol­o­gist, hair braider, nail tech­ni­cian, roofer, and truck dri­ver, to name a few.5

State reg­u­la­tions that ban entire swaths of for­mer­ly incar­cer­at­ed peo­ple from receiv­ing EMT licens­es, with­out regard for the seri­ous­ness of their offens­es or the degree to which they have been reha­bil­i­tat­ed, could be uncon­sti­tu­tion­al under the Equal Pro­tec­tion clause of the Four­teenth Amend­ment. This Con­tri­bu­tion ulti­mate­ly argues that state laws that pro­hib­it EMT licen­sure for peo­ple con­vict­ed of felony crimes vio­lates the Equal Pro­tec­tion Clause of the Four­teenth Amend­ment and there­fore should be struck down as uncon­sti­tu­tion­al.

* * * * *

The Constitution’s Equal Pro­tec­tion Clause guar­an­tees that the gov­ern­ment will not dis­crim­i­nate arbi­trar­i­ly against cit­i­zens.6 Most laws sin­gle out groups of peo­ple to receive some gov­ern­ment ben­e­fit or bur­den (for exam­ple, food stamps for low-income cit­i­zens). As long as there is a ratio­nal rela­tion­ship between the law’s cat­e­go­riza­tion and some legit­i­mate gov­ern­men­tal inter­est, the law does not vio­late the Equal Pro­tec­tion Clause.7 Using the exam­ple above, sin­gling out low-income peo­ple for the receipt of food stamps is ratio­nal­ly relat­ed to the government’s inter­est in pro­mot­ing pub­lic health by pro­vid­ing nutri­tious food to peo­ple who oth­er­wise could not afford it; there­fore, such a law would like­ly with­stand ratio­nal basis scruti­ny and be held not to vio­late the Equal Pro­tec­tion Clause.

Courts apply this gov­ern­ment-friend­ly “ratio­nal basis” review to most laws, but occa­sion­al­ly, a court will apply “strict scruti­ny,” a much less def­er­en­tial stan­dard of review, which is often fatal to the chal­lenged gov­ern­ment action.8 Strict scruti­ny is reserved for cas­es involv­ing fun­da­men­tal rights, like free­dom of speech, or for sus­pect clas­si­fi­ca­tions that tar­get groups based on race or nation­al ori­gin.9 The right to work in a pro­fes­sion of one’s choos­ing is not a fun­da­men­tal right, and for­mer­ly con­vict­ed peo­ple are not a sus­pect class, so a review­ing court would not apply strict scruti­ny to state licens­ing laws that exclude for­mer­ly con­vict­ed per­sons from licen­sure. This is true even though laws tar­get­ing for­mer­ly con­vict­ed per­sons have a dis­parate impact on peo­ple of col­or, who tend to make up a dis­pro­por­tion­ate per­cent­age of the prison pop­u­la­tion.12 Laws that have a dis­pro­por­tion­ate impact on a par­tic­u­lar race do not trig­ger strict scruti­ny unless it can be proved that the law was also ani­mat­ed by a dis­crim­i­na­to­ry pur­pose, a hur­dle that is dif­fi­cult to sur­mount.13

The ratio­nal rela­tion­ship stan­dard is gen­er­al­ly very def­er­en­tial toward the gov­ern­ment, but courts have made clear that the test does have teeth.14 Courts tend to be less def­er­en­tial in their appli­ca­tion of ratio­nal basis review when they detect that some improp­er motive or ani­mus is at work. In City of Cle­burne v. Cle­burne Liv­ing Cen­ter, the Court struck down a zon­ing ordi­nance that required a spe­cial use per­mit for group homes for men­tal­ly dis­abled per­sons, but did not require such a per­mit for oth­er group accom­mo­da­tions (e.g. nurs­ing homes or fra­ter­ni­ty hous­es).15 The Court believed the ordi­nance was based “on an irra­tional prej­u­dice against the men­tal­ly retard­ed” and that there was no ratio­nal rea­son to treat the var­i­ous group homes dif­fer­ent­ly.16 Sim­i­lar­ly, in Unit­ed States Depart­ment of Agri­cul­ture v. Moreno, the Court struck down a fed­er­al food stamp law that exclud­ed house­holds com­prised of unre­lat­ed mem­bers from par­tic­i­pat­ing in the pro­gram because the Court believed the law was aimed at pre­vent­ing “hip­pies” from par­tic­i­pat­ing.17 Such a “bare con­gres­sion­al desire to harm a polit­i­cal­ly unpop­u­lar group” could not sus­tain the law under the Equal Pro­tec­tion Clause.18

State laws that ban for­mer­ly incar­cer­at­ed peo­ple from receiv­ing occu­pa­tion­al licens­es may sim­i­lar­ly be moti­vat­ed by hos­til­i­ty toward peo­ple con­vict­ed of crimes, rather than any ratio­nal rela­tion­ship to a legit­i­mate state inter­est. In Bar­let­ta v. Rilling, the fed­er­al dis­trict court in Con­necti­cut inval­i­dat­ed a state law ban­ning peo­ple con­vict­ed of felony crimes from obtain­ing a license to trade in pre­cious met­als.19 The court explained that while some peo­ple con­vict­ed of felonies might com­mit fraud or endan­ger the pub­lic if they were giv­en a license to trade in pre­cious met­als, they posed no greater risk than any oth­er cat­e­go­ry of peo­ple who might obtain a license.20 The whole­sale exclu­sion of peo­ple con­vict­ed of felonies, there­fore, was not ratio­nal­ly relat­ed to the state’s inter­est in fraud-pre­ven­tion or pub­lic safe­ty.21 The court quipped that “left-hand­ed peo­ple, obese peo­ple, peo­ple with tat­toos, peo­ple born on the first day of the month, divorced peo­ple and col­lege dropouts, will include some per­sons prop­er­ly exclud­ed from licen­sure” but the Con­sti­tu­tion requires more than “occa­sion­al coin­ci­dence between mem­ber­ship in the exclud­ed class and the pur­pose of the licens­ing require­ment.”22 The court appeared to be apply­ing a less def­er­en­tial ver­sion of the ratio­nal basis test, sim­i­lar to the Supreme Court’s approach in Moreno and City of Cle­burne. This may be because state bans on issu­ing occu­pa­tion­al licens­es to peo­ple con­vict­ed of felonies appear to lack a ratio­nal rela­tion­ship to any legit­i­mate state inter­est and there­fore appear to be moti­vat­ed by ani­mus rather than unbi­ased pol­i­cy choic­es.

* * * * *

State laws that ban peo­ple con­vict­ed of felonies from receiv­ing EMT licens­es are sim­i­lar­ly irra­tional to the reg­u­la­tion at issue in Bar­let­ta. There is no doubt that states have a legit­i­mate inter­est in pro­mot­ing pub­lic safe­ty and ensur­ing qual­i­ty of ser­vice by set­ting stan­dards for EMT licen­sure.23 A state might argue its ban pro­motes pub­lic safe­ty by keep­ing dan­ger­ous crim­i­nals out of sit­u­a­tions where they would be respon­si­ble for the health and safe­ty of oth­ers. In com­mit­ting crimes, the state would argue, peo­ple with felony con­vic­tions have already shown a propen­si­ty to put them­selves before soci­ety; EMTs, on the oth­er hand, need to be trust­ed to put the well-being of oth­ers first. An EMT license allows peo­ple to apply for jobs where they serve as first-respon­ders and com­mu­ni­ty role mod­els, and states have a legit­i­mate inter­est in main­tain­ing the qual­i­ty and integri­ty of those occu­pa­tions by ensur­ing only the best can­di­dates are eli­gi­ble to apply. But these ratio­nales seem dubi­ous, and even pre­tex­tu­al, giv­en that many incar­cer­at­ed peo­ple are trained and employed as fire­fight­ers while still in prison.24 If peo­ple con­vict­ed of felony crimes real­ly threat­en the qual­i­ty and integri­ty of first-respon­der pro­fes­sions and can­not be trust­ed with the health and safe­ty of oth­ers, why allow them to serve as fire­fight­ers while in prison? States like Cal­i­for­nia under­mine their own argu­ment by admit­ting, through their actions, that peo­ple who have com­mit­ted felonies are per­fect­ly qual­i­fied to serve in first-respon­der roles, even before they have fin­ished pay­ing their debt to soci­ety.

EMT reg­u­la­tions that ban for­mer­ly incar­cer­at­ed peo­ple from being con­sid­ered for licen­sure defeat their own pur­pose of pro­mot­ing pub­lic safe­ty by reduc­ing the num­ber of peo­ple qual­i­fied to assist in emer­gen­cies. To receive an EMT license, appli­cants must gen­er­al­ly under­go exten­sive train­ing and pass both a prac­ti­cal and cog­ni­tive exam.25 This cer­ti­fi­ca­tion pro­ce­dure ensures licensees are equipped to respond to var­i­ous med­ical emer­gen­cies, but it does not guar­an­tee them employ­ment, as a fire­fight­er or oth­er­wise.26 Employ­ers still have the pre­rog­a­tive to con­sid­er each indi­vid­ual appli­cant for their suit­abil­i­ty; so a con­vict­ed arson­ist, for exam­ple, could still be denied employ­ment as a fire­fight­er, even if he were able to obtain an EMT license. The state’s inter­est in pub­lic safe­ty would be pro­mot­ed, not imper­iled, by allow­ing for­mer­ly incar­cer­at­ed peo­ple to obtain EMT licens­es; and its inter­est in main­tain­ing the qual­i­ty of first-respon­der pro­fes­sions would be pre­served by employ­ers’ con­tin­ued indi­vid­ual assess­ment of job appli­cants.

The irra­tional­i­ty of these state licens­ing laws is exac­er­bat­ed by their over­ly broad reach. The bans cov­er vio­lent offend­ers as well as peo­ple con­vict­ed of non-vio­lent crimes, and they fail to take into account the extent of a person’s reha­bil­i­ta­tion.27 The reach of these bans is far too broad to have any­thing more than a coin­ci­den­tal effect on pub­lic safe­ty. As the court in Bar­let­ta explained, “the State must do more than sug­gest that some felons would be unsuit­able for licen­sure.”28 A law that is so broad that is “serves [the state’s] pur­pose only by hap­pen­stance is arbi­trary and fails ratio­nal basis review.”29 For the fore­go­ing rea­sons, these bans can­not with­stand con­sti­tu­tion­al review.

* * * * *

Peo­ple con­vict­ed of crimes must still be treat­ed equal­ly under the law. State reg­u­la­tions that deny these peo­ple the oppor­tu­ni­ty to be con­sid­ered for EMT licen­sure appear to be moti­vat­ed by hos­til­i­ty toward the group rather than any legit­i­mate state inter­est, and should be struck down under the Equal Pro­tec­tion clause.


Rec­om­mend­ed Cita­tion: Maya Dana­her, License Denied: Some State Occu­pa­tion­al Licens­ing Laws Might be Uncon­sti­tu­tion­al Under the Equal Pro­tec­tion Clause, 2018 N.Y.U. Pro­ceed­ings 5, http://proceedings.nyumootcourt.org/2018/02/license-denied-some-state-occupational-licensing-laws-might-be-unconstitutional-under-the-equal-protection-clause/.

Notes:

1. Maya Dana­her is a 3L at New York Uni­ver­si­ty School of Law. This piece was pre­pared in con­junc­tion with the author’s Writ­ing About the Law class. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point of law. Rather, this arti­cle is a dis­til­la­tion of one side of the argu­ment regard­ing the equal pro­tec­tion of for­mer­ly incar­cer­at­ed peo­ple dis­cussed in the course of the class.
2. See Jaime Lowe, The Incar­cer­at­ed Women Who Fight California’s Wild­firesN.Y. Times Mag. (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/magazine/the-incarcerated-women-who-fight-californias-wildfires.html.
3. See, e.g., Cal. Code Regs. tit. 22, § 100214.3 (2018) (pro­hibit­ing EMT licen­sure for peo­ple con­vict­ed of var­i­ous vio­lent and non-vio­lent crimes).
4. See The Con­sid­er­a­tion of Crim­i­nal Records in Occu­pa­tion­al Licens­ing, Coun­cil of St. Gov’ts Just. Ctr. (Dec. 2015), https://csgjusticecenter.org/wp-content/uploads/2015/12/TheConsiderationofCriminalRecordsinOccupationalLicensing.pdf.
5. See Amer­i­can Bar Asso­ci­a­tion (ABA) Crim­i­nal Jus­tice Sec­tion, ABA Nation­al Inven­to­ry of the Col­lat­er­al Con­se­quences of Con­vic­tion, Coun­cil of St. Gov’ts Just. Ctr., https://niccc.csgjusticecenter.org (vis­it­ed Jan. 23, 2018).
6. See U.S. Con­st. amend. XIV, § 1 (“No State shall … deny to any per­son with­in its juris­dic­tion the equal pro­tec­tion of the laws.”).
7. See Williamson v. Lee Opti­cal of Okla., Inc., 348 U.S. 483, 491 (1955).
8. See Ger­ald Gun­ther, The Supreme Court, 1971 Term — Fore­word: In Search of Evolv­ing Doc­trine on a Chang­ing Court: A Mod­el for a New­er Equal Pro­tec­tion, 86 Harv. L. Rev. 1, 8 (1972).
9. See, e.g., Unit­ed States v. Car­o­lene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (intro­duc­ing the idea of dif­fer­ent tiers of judi­cial scruti­ny for dif­fer­ent gov­ern­men­tal actions); City of Cle­burne v. Cle­burne Liv­ing Ctr., 473 U.S. 432, 440 (1985) (explain­ing that clas­si­fi­ca­tions by “race, alien­age, or nation­al ori­gin” are sub­ject to strict scruti­ny).
10. The Court has repeat­ed­ly held that the gov­ern­ment may reg­u­late pro­fes­sion­al licen­sure, and may pro­scribe cer­tain peo­ple from par­tic­i­pat­ing in a trade. See, e.g., Slaugh­ter-House Cases, 83 U.S. (16 Wall.) 36 (1872) (uphold­ing a state-grant­ed monop­oly on ani­mal slaugh­ter­ing); Brad­well v. State, 83 U.S. (16 Wall.) 130 (1873) (explain­ing that states have “the right to con­trol and reg­u­late the grant­i­ng of license[s] to prac­tice law in the courts of a State”); Lam­bert v. Yel­low­ley, 272 U.S. 581, 596 (1926) (“[T]here is no right to prac­tice med­i­cine which is not sub­or­di­nate to the police pow­er”); Williamson v. Lee Opti­cal of Okla., Inc., 348 U.S. 483, 486–87 (1955) (uphold­ing a state law that for­bid opti­cians from fit­ting lens­es with­out a pre­scrip­tion from an oph­thal­mol­o­gist or optometrist).
11. See Park­er v. Lyons, 757 F.3d 701, 707 (7th Cir. 2014) (“felons are not a sus­pect class”); Enig­we v. U.S. Air­ways, 438 F. App’x 80, 83 (3d Cir. 2011) (same); Kaem­mer­ling v. Lap­pin, 553 F.3d 669, 685 (D.C. Cir. 2008) (“pris­on­ers are not a sus­pect class”); Romero v. Pata­ki, 241 F. App’x 764, 766 (2d Cir. 2007) (“Con­vict­ed felons, how­ev­er, are not a sus­pect class”); Aaron v. Fields, No. 94–6143, 1994 U.S. App. LEXIS 27896, at *4 (10th Cir. Oct. 7, 1994) (explain­ing that plain­tiff, an inmate, was not a mem­ber of a sus­pect class); Hilliard v. Fer­gu­son, 30 F.3d 649, 652 (5th Cir. 1994) (“con­vict­ed felons are not a con­sti­tu­tion­al­ly pro­tect­ed sus­pect class”); cf. Cle­burne Liv­ing Ctr., 473 U.S. at 440 (list­ing race, alien­age, and nation­al ori­gin as the cat­e­gories that receive strict scruti­ny)
12. See Ash­ley Nel­lis, The Col­or of Jus­tice: Racial and Eth­nic Dis­par­i­ty in State Pris­ons, The Sen­tenc­ing Project (2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/#II (last vis­it­ed Jan 30, 2018).
13. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (“For this claim to pre­vail, McCleskey would have to prove that the Geor­gia Leg­is­la­ture enact­ed or main­tained the death penal­ty statute because of an antic­i­pat­ed racial­ly dis­crim­i­na­to­ry effect.”).
14. See, e.g., City of Cle­burne, 473 U.S. 432 (strik­ing down a zon­ing law under ratio­nal basis); Unit­ed States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) (strik­ing down a fed­er­al food stamp law under ratio­nal basis).
15. See City of Cle­burne, 473 U.S. at 450.
16. Id.
17. Moreno, 413 U.S. at 534–35.
18. Id. at 534.
19. Bar­let­ta v. Rilling, 973 F. Supp. 2d 132, 140 (D. Conn. 2013).
20. See id. at 138.
21. See id.
22. Id.
23. See, e.g., Nat’l Ass’n for the Advance­ment of Psy­cho­analy­sis v. Cal. Bd. of Psy­chol­o­gy, 228 F.3d 1043, 1051 (9th Cir. 2000) (uphold­ing California’s psy­chol­o­gist licens­ing scheme as “ratio­nal­ly relat­ed to California’s inter­est in pro­tect­ing the … safe­ty of its cit­i­zens”); cf. McCullen v. Coak­ley, 134 S. Ct. 2518, 2535 (2014) (rec­og­niz­ing “the legit­i­ma­cy of the government’s inter­ests in ensur­ing pub­lic safe­ty”) (inter­nal quo­ta­tions omit­ted).
24. See, e.g., Con­ser­va­tion (Fire) Camps, Dep’t of Cor­rec­tions and Reha­bil­i­ta­tion, https://www.cdcr.ca.gov/Conservation_Camps/ (last vis­it­ed Jan 31, 2018) (explain­ing that California’s “con­ser­va­tion camps” can house over 4,600 inmates, who ded­i­cate “approx­i­mate­ly three mil­lion per­son-hours respond­ing to fires and oth­er emer­gen­cies and sev­en mil­lion per­son-hours in com­mu­ni­ty ser­vice projects” every year).
25. See, e.g., EMTCal. Emer­gency Med. Servs. Author­i­ty, https://emsa.ca.gov/emt/ (last vis­it­ed Jan 31, 2018) (explain­ing the EMT train­ing and licens­ing pro­ce­dure).
26. Licen­sure does not equate to employ­ment. Peo­ple with EMT licens­es may be eli­gi­ble to apply for var­i­ous first-respon­der posi­tions, but are not guar­an­teed such employ­ment sim­ply by virtue of their EMT license.
27. See, e.g., Cal. Code Regs. tit. 22, § 100214.3 (2018) (pro­hibit­ing EMT licen­sure for peo­ple con­vict­ed of var­i­ous vio­lent and non-vio­lent crimes).
28. Id..
29. Id.