David A. Herman


Juvenile Curfews and the Breakdown of the Tiered Approach to Equal Protection

David A. Herman

In constitutional challenges to juvenile curfews, the “tiers of scrutiny” framework usually relied upon to resolve Equal Protection cases has failed to constrain courts’ analyses. Courts have applied all three tiers of scrutiny, have reached opposite results under each tier, and have explicitly modified various tiers. This result arises from a discord between the problem presented by juvenile curfew laws and the tiers of scrutiny framework itself: Curfew laws impact neither a fully fundamental right nor a fully suspect classification, but nevertheless affect a substantial liberty interest and a vulnerable class of people. This Note argues that courts should bypass the abstract discussion of “tiers” and “fundamental rights” and focus directly on what role courts should play, if any, in shielding juveniles from a democratically enacted curfew. The Note proposes an aggressive form of intermediate balancing similar to the Second Circuit’s approach in Ramos v. Town of Vernon.