In some cases, however, when the disadvantaged group is a sympathetic one and the individual interest affected is especially strong, the rational basis test is applied differently.  The cases linked to this page are illustrative.  Plyler v Doe (1982) involved a challenge to a Texas law that denied to the children of illegal aliens a public education.  Cleburne v Cleburne Living Center (1985) concerned a challenge to a local zoning decision that denied a permit to construct a home for the mentally retarded.  In both Plyler and Cleburne, the Court compared the weight of the state's asserted interests--which it found to be very weak--against the substantial harm to the plaintiffs, and determined the laws in question to violate the equal protection clause.

Junior high school in Dickinson, North Dakota

The Court had an opportunity to apply this somewhat heightened scrutiny in a 1988 case, Kadrmas v Dickinson Public Schools, but declined to do so by a 5 to 4 vote.  In Kadrmas, the Court concluded that a North Dakota law that charged indigent rural parents a fee to transport their children to public schools did not violate the equal protection clause.  The Court applied the traditional rational basis test.  The four dissenters, noting the important right at stake and the potentially significant barrier the fee posed to indigent parents seeking an education for their children, would have followed Plyler and applied a higher level of scrutiny.

Finally, Romer v Evans (1996) involved a challenge to a Colorado constitutional amendment that deprived gay rights activists to meaningfully lobby for legislation that would extend the protections of civil rights laws to homosexuals.  As in Plyler and Cleburne, the Court struck down the challenged law using what it called a rational basis test.  In an angry dissent, Justice Scalia said the answer to the question of whether a rational basis supported the law was "obviously yes."

The actual application of the rational test in Plyler, Cleburne, and Romer differed from that traditionally used in cases where no suspect classification or fundamental right was involved in at least one important respect: the Court in all three cases weighed the state's asserted interests and compared them to the strong individual interests at stake.  Some commentators have referred to the test used in cases such as these as "rational basis with bite."

1. Why isn't Texas's interest in discouraging illegal immigration sufficient to support its decision to deny taxpayer-funded schooling to the children of illegal aliens?  Why isn't its interest in saving the expense of educating 20,000 children of illegal alines sufficient?
2. Is there a difference between the political costs of supporting or opposing the Texas law and the real costs of the law?
3. Is the fact that the disadvantaged group in Texas was innocent children critical to the outcome?
4.  Do any of the interests advanced by Cleburne seem rationally related to its decision to deny a permit for the home for the mentally retarded?  Should the Court view alleviating an irrational fear of neighbors (who might not understand the difference between mental retardation and mental illness) as a legitimate interest?
5.  What do you see as the advantages and disavantages of the "sliding scale" approach to equal protection cases suggested by Justice Marshall in his opinion?
6.  What do you think about the suggestion of Justice Stevens' that we collapse equal protection analysis to one question: "Is the classification based on a neutral and legitimate evaluation of circumstances by legislators"? 
7.  Why did the parents challenging Dickinson't refusal to supply free bus transportation to the children of indigent parents lose their case?  Was their interest weaker than that of the parents in Plyler, in that there was no absolute denial of an education?  If the fee charged for bus transportation was substantially higher than it was, might the parents' challenge have been successful?
8.  What might be examples of other laws that could be successfully challenged by convincing a court to give bite to its usual rational basis test?