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.
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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.
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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.
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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/.
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 Wildfires, N.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.
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.
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., EMT, Cal. 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).