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149 Cards in this Set

  • Front
  • Back
Requirements for cases and controversies (justicability doctrines)
1. Standing (most important)
2. Ripeness
3. Mootness
4. Political question
Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication

- Injury
- Causation and redressability
- No 3rd party standing
- No generalized grievances
Injury (Standing)
the plaintiff must allege and prove that he or she has been injured or imminently will be injured:

1) Plaintiffs only may assert injuries that they personally have suffered

2) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm

- Test – Which of the following plaintiffs have the best standing:

1) Choose answer where plaintiff has personally suffered an injury

2) If more than one answer choice, choose plaintiff who has suffered an economic loss
Causation and Redressability (Standing)
The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury

- Prohibition against advisory opinion
No 3rd party standing
- Plaintiffs cannot assert claims of others who are not before the court

- Exceptions

1) Close relationship (adequately represent; doctor/patient)

2) 3rd party is unlikely to be able to assert his or her own rights (Crim def. raise rights of prospective jurors)

3) Associational standing
Associational Standing
- An organization may sue for its members, if:

1) The members would have standing to sue

2) Interests are germane to the organization's purpose

3) Neither the claim nor relief requires participation of the individuals
No generalized grievances (Standing)
Plaintiff must not be suing solely as citizen or as a taxpayer interested in having the government follow the law

- Ex. Congress shall give a regular statement and account of all expenditures. Citizen sued saying that statute that provides for secrecy of CIA spending violates the Statement and Accounts clause. Citizen was suing for a generalized grievance, thus no standing.

- Test – fact pattern will say plaintiff is suing as a “citizen” or as a “taxpayer”

- Exception – taxpayers have standing to challenge government expenditures (of money) as violating the Establishment Clause

- Test - BUT, taxpayers lack standing to challenge federal government grants of property to religious institutions
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation

Two criteria:

1) Hardship that will be suffered w/out pre-enforcement review (sliding scale)

2) Fitness of the issues and the record for judicial review (Court have all it needs to decide? Better off waiting for actual prosecution?)

- “request declaratory judgment” (alarm for ripeness issue)

- Don't want to violate the law before being able to challenge it
If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot.

- Plaintiff must present a live controversy; an ongoing injury


1) Wrong capable of repetition but evading review (short duration injury, capable of rep. in same plaintiff; Roe)

2) Voluntary cessation (Def is free to resume injuring practice at any time)

3) Class action suits (so long as one member has on-going injury)
Political Question Doctrine
Constitutional violations that the federal courts will not adjudicate

- Republican form of government clause (initiative process)

- Challenges to the President's conduct of foreign policy

- Challenges to the impeachment and removal process

- Challenges to partisan gerrymandering
Supreme Court Review
1.Virtually all cases come to the SC by writ of certiorari

2.Generally, the SC may hear cases only after only after there has been a final judgment

3.There must not be an independent and adequate state law ground for decision
Writ of Certiorari
- All cases from the state
- All cases from US courts of appeals


1) Appeals exist for decisions by three-judge federal district courts (skips court of appeals; obligated)

2) SC has original and exclusive jurisdiction for suits between state governments
The Final Judgment rule
- Generally, the SC may hear cases only after there has been a final judgment of the highest state court, of a US court of appeals, or of a 3 judge federal district court

- Generally, no interlocutory review in the SC
State law ground of decision
- For the SC to review a state court decision, there must not be an independent and adequate state law ground of decision.

- If a state court decision rests on two grounds, one state law and one federal law, if the SC’s reversal of the federal law ground will not change the result in the case, the SC cannot hear it

- Ex. Person is beaten up by LA police officers. Victim sues in CA state court. Victim brings two claims: federal law civil rights claim and state law battery claim. Plaintiff wins in state court on both claims and is entitled to equal damages under either claim, but not for both.

1) SC cannot review the state law battery claim

2) Can't review federal claim because even reversal, plaintiff still wins under state law claim
Suits against state governments
- Federal courts and state courts may not hear suits against state governments

- Principle of Sovereign Immunity: 11th Amendment bars (plaintiff/claim don't matter)

- Exceptions:

1) Waiver is permitted (must be explicit)

2) May be sued under §5 of the 14th Amendment (enforcement clause, ie Title VII)

3) Federal government may sue state governments
Suits against state officers
Are allowed:

1) For injunctive relief

2) For monetary damages paid out of own pocket

3) MAY NOT be sued if state treasury will be paying retroactive damages
federal courts may not enjoin pending state court proceedings (jurisdiction doesn't matter)
Congress's Authority to Act
There must be express or implied Congressional power

- Necessary and Proper Clause
- Taxing/spending and the commerce power
- Sec. 5 of the 14th Amendment
- 10th Amendment limit
Congress's General Police Power
No general police power

MILD exceptions:
- Military
- Indian reservations
- Land (federal) and territories
- District of Columbia
The necessary and proper clause
Provides that Congress may choose any means not prohibited by the Constitution, to carry out its authority

- Ex. Article I, §8 – Congress may raise an army and navy. (use national bake sale)
Taxing/Spending Power
- Congress may tax and spend for the general welfare

- Congress may create any tax to raise revenue, and any spending program to expend it that Congress believes will serve the general welfare

- "General welfare” only right when question is about taxing, spending or MILD police power exceptions
Commerce Power
1) Congress may regulate the channels of interstate commerce

- Ex. Highways, waterways, internet

2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce

- Instrumentalities - facilitate interstate commerce (all intercourse)

3) Congress may regulate economic activities that have a substantial effect (aggregate effect) on interstate commerce

- Non-economic activity: a substantial effect CANNOT be based on cumulative impact
The 10th Amendment
Tenth Amendment states that all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people

- Congress cannot compel state regulatory or legislative action

- Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program

- Ex. Condition on federal funds for highways requires a state to have a legal drinking age of 21

- Congress may prohibit harmful commercial activity by state governments

- Ex. Sale of personal information by DMV
Congress’ power under §5 of the Fourteenth Amendment
Congress may NOT create new rights or expand the scope of rights.

Congress may act only to prevent or remedy violations of rights already recognized by the courts

Such laws must be “proportionate” and “congruent” to remedying proven constitutional violations.
Delegation of Powers
1. No limits exists on Congress' ability to delegate legislative power

2. Legislative vetoes and line items vetoes are unconstitutional

3. Congress may not delegate executive power to itself or its officers
Limits on Congress's ability to delegate legislative power
- No limits exists, no matter how broad

- “Excess delegation of legislative power” ALWAYS WRONG
Legislative vetoes and line-item vetoes
Unconstitutional, need both:

1) Bicameralism (passage by both the House and the Senate)

2) Presentment (giving the bill to the President to sign or veto).

President must sign or veto the bill in its entirety.

Legislative veto – Congress attempts to overturn an executive action without bicameralism and/or presentment (resolution of one house)
Congress delegation of executive power to itself or its officers
- Congress MAY NOT delegate executive power to itself or its officers

- Congress cannot delegate power to itself to enforce/implement the law

- Congress can give; Congress cannot take
Agreements between the US and a foreign country

1) negotiated by the President

2) effective when ratified by the Senate

- Treaties prevail over conflicting state laws

- If a treaty conflicts with a federal statute, the one adopted last in time controls

- If a treaty conflicts with the US Constitution, it is invalid

- President/Congress can unilaterally revoke
Executive Agreements
Agreement between the US and a foreign country

- effective when signed by the President and the head of the foreign nation. (no senate approval required)

1) Executive agreements can be used for any purpose

2) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution
President's Use of Troops in Foreign Countries
Political Question

- If not, President still wins (no matter how outrageous)
Appointment power
President appoints ambassadors, federal judges and officers of the US

- Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts

- Inferior officers are those who can be fired by the officers of the US)

- Congress may not give itself or its officers the appointment power
Removal power
- Unless removal is limited by statute, the President may fire any executive branch official

- For Congress to limit removal, it must be an office where independence from the President is desirable (independent prosecutor; NOT cabinet officers)

- Congress cannot prohibit removal, it can limit removal to where good cause is shown
Impeachment and Removal
The President, the Vice-President, federal judges and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors

- Impeachment does not remove a person from office

- Impeachment by the House of Representatives requires majority; conviction in the Senate requires 2/3
President and Civil Suits
President has absolute immunity to civil suits for money damages for any actions while in office

- Does NOT have immunity for actions that occurred prior to taking office
Executive Privilege
The President has executive privilege for presidential papers and conversations

- Such privilege must yield to overriding government interests

- Authority of the President to keep secret conversations or memorandums (Not Absolute)
Power to Pardon
President has the power to pardon those accused or convicted of federal crimes

a) President can pardon only for federal criminal liability, never for state crimes

b) President may pardon only as to criminal liability, never as to civil liability

Limitation: impeachment
limits on state and local power because of existence of national government
The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land

1) Express preemption (federal law is exclusive in a field)

2) Implied preemption

3) States may not tax or regulate federal government activity
Implied preemption
Federal law preempts state law:

1) If federal and state laws are mutually exclusive (can't comply with both)

- WATCH: states may set environmental standards stricter than federal law unless Congress clearly prohibits this

2) If state law impedes the achievement of a federal objective

3) If Congress evidences a clear intent to preempt state law

- Ex. immigration law; Congress has evidenced the clear intent that federal immigration law wholly occupy the field
State taxation or regulation of federal government activity
States may not tax or regulate federal government activity (inter-governmental immunity)

- Unconstitutional to pay a state tax out of the federal treasury

a) Can state tax private individual’s store on federal land? Yes, tax assessed against individual

b) PX on military base? No

- Federal government does not have to comply with state laws if it puts a substantial burden on federal government (i.e. State pollution control law)
Dormant Commerce Clause
Principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce

- “negative implications of the commerce clause”
Privileges and Immunities
Article IV

- No state may deny citizens of other states of the privileges and immunities it accords its own citizens

- Anti-discrimination provision: applies ONLY when state is discriminating against out of staters
Privileges or Immunities
14th Amendment

- No state shall deprive any citizen of the privileges or immunities of US citizenship

- Very narrowly interpreted
ONLY “right to travel” (ie length of time within state to receive welfare benefits)
Dormant Commerce Clause (analysis question)
Does the state law discriminate against out-of-staters?

1) Usually state laws do not discriminate (ex length of trucks coming through state)

2) Sometimes state and local governments try to help their own citizens at the expense of others
(No out of state garbage could be buried in NJ landfills)

- If it does discriminate against out of staters, does the law burden interstate commerce?

- If it does discriminate against out of staters, does the law burden their ability to earn a livelihood?
Analysis if the law does not discriminate against out of staters(Dormant Commerce Clause)
1) The privileges and immunities clause of Article IV does not apply

2) If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits (Ex. Ill. Truck mudguard law. No benefit to curved mudguard)
Analysis if the law discriminates against out-of-staters and the law burdens interstate commerce(Dormant Commerce Clause Analysis)
a) it violates the dormant commerce clause

b) unless it is necessary to achieve an important government purpose and no less discriminatory alternative can achieve this goal

- Ex. Protecting nature – no importing of bait fish from out of state because it might carry parasites which would harm local wildlife

- Exceptions

1) Congressional approval (Once Congress has acted, commerce clause is no longer dormant)

2)The market participant exception
Analysis if the law discriminates against out-of-staters with regard to their ability to earn their livelihood (Dormant Commerce Clause Analysis)
a) violates the privileges and immunities clause of Article IV

b) unless it is necessary to achieve an important government purpose

1) The law must discriminate against out-of-staters

2) The discrimination must be with regard to civil liberties or important economic activities

Ex. Elk hunting is a hobby, not related to earning a livelihood

3) Corporations and aliens cannot use the privileges and immunities clause

4) The discrimination must be necessary to achieve an important government purpose

- Government must demonstrate that no less discriminatory alternative can achieve its objective
The market participant exception
1) A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

- Ex. University of California can charge less in tuition to in-staters and more to out-of-staters

2) Regarded as a government benefit program

- Ex. State-owned cement factory. Charged more to those out-of-state who purchased cement
State taxation of interstate commerce
1) States may not use their tax systems to help in-state businesses (tax credit for buying state produced)

2) A state may only tax activities if there is a substantial nexus to the state

3) State taxation of interstate businesses must be fairly apportioned (only what's connected)
Full Faith and Credit
Courts in one state must give full faith and credit to judgments of courts in another state, so long as

1) The court that rendered the judgment had jurisdiction over the parties and the subject matter

2) The judgment was on the merits

3) The judgment is final
Is there government action?
1) Constitution applies only to the government action at all levels(private conduct need not comply)

2) Congress, by statute, may apply constitutional norms to private conduct

3) Public Function and Entanglement Exceptions
Application of Constitutional Norms to Private Conduct
1) Thirteenth Amendment can be used to prohibit private race discrimination

- Prohibits slavery and involuntary servitude

- Applies directly to private behavior

- Test – discrimination never violates Thirteenth Amendment itself; only slavery violates the Thirteenth Amendment. But discrimination can violate federal statutes adopted by Congress under §2 of the Thirteenth Amendment (broad powers).

2) The commerce power can be used to apply constitutional norms to private conduct (Ollie's BBQ)

3) Congress CANNOT use §5 of the Fourteenth Amendment to regulate private behavior (Morrison)
Situations where private conduct must comply with the Constitution
1) Public Function Exception – Constitution applies if a private entity is performing a task traditionally, exclusively done by the government (Company Towns; Primaries; NOT Utilities)

2) Entanglement Exception – Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity

Either the government has to stop what its doing, or the conduct must comply with the Constitution
Court enforcement of racially restrictive covenants
State Action
State leases premises to a restaurant that racially discriminates
State Action
State provides books to schools that racially discriminate
State Action
State authorizes a private entity to regulate interscholastic sports within a state
State Action
A private school that is over 99% funded by the government fires a teacher because of her speech
No State Action
There is a government subsidy
No State Action
NCAA orders the suspension of a basketball coach at a state university
No state action
A private club with a liquor license from the state racially discriminates
No state action
Application of the Bill of Rights
1) The Bill of Rights applies directly only to the federal government

2) The Bill of Rights is applied to state and local governments through its incorporation into the Due Process Clause of the Fourteenth Amendment
- Protects fundamental rights from state and local governments

- Total incorporationists v. selective incorporationists

1) Second Amendment right to bear arms

2) Third Amendment right to not have a soldier quartered in a person’s home

3) Fifth Amendment right to grand jury indictment in criminal cases

4) Seventh Amendment right to jury trial in civil cases

5) Eighth Amendment right against excessive fines

Test – whenever you have an essay question where the state or local government is alleged to have violated a Bill of Rights provision, always say that “this provision applies to state and local governments through its incorporation of the due process clause of the Fourteenth Amendment”
Rational Basis Test
a law is upheld if it is rationally related to a legitimate government purpose

- Purpose: conceivable legitimate, permissible purpose, even if it isn’t the actual purpose

- Means: rational or reasonable

- Tremendously deferential to the government

- Burden of Proof: Challenger

1) No conceivable legitimate purpose

2) Or the law is not rationally related to it
Intermediate Scrutiny
a law is upheld if it is substantially related to an important government purpose

- More than just legitimate, Gov’s objective must be important.

- Court will look only to government’s actual purpose.

- Means: must be substantially related to achieving that purpose; narrowly tailored: Don’t have to be the best way.

- No least restrictive alternative analysis

- Burden of Proof: Government
Strict Scrutiny
A law will be upheld if it is necessary to achieve a compelling government purpose
Government’s goal must be vital.

Court will look only to government’s actual purpose.

- Means chosen must be necessary to obtain the objective. (least restrictive alternative analysis)

- Burden of Proof: Gov't
A deprivation of liberty (due process)
occurs if there is the loss of a significant freedom provided by the Constitution or a statute (written law)

- Test – violation of a person’s constitutional rights

- Ex. Except in emergency, before an adult can be institutionalized, must be notice and hearing

- Ex. A parent institutionalizes a child, only has to be a screening by neutral fact finder.

- Ex. Harm to reputation by itself is not a loss of liberty. (wrong “wanted” poster)

- Ex. Prisoners rarely have liberty interests.
A deprivation of property (Due Process)
occurs if there is an entitlement and that entitlement is not fulfilled

- Previously, there was no due process violation for taking away a privilege, only a right. SC has eliminated this, and the analysis now focuses on entitlements.

a) Entitlement – reasonable expectation to continued receipt of a benefit

- Ex. Person works for the government, and the government promises the individual that the job will be theirs for the next year. In the middle of the year, the person is fired. Sues for due process. Was the government required to give due process? Yes, the person had a reasonable expectation that they would have the job for the rest of the year

- Ex. Each contract made clear that there was no expectation that it would be renewed. Contract ended. Was the government required to provide due process? No, no due process issue because he didn’t have a reasonable expectation that it would be renewed.

b) On Test – answers distinguishing between rights and privileges are wrong
Government negligence
is not sufficient for a deprivation of due process.

- Generally, there must be intentional government action or at least reckless action for liability to exist.

- However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”
Government’s failure to protect people from privately inflicted harms
Generally, does not deny due process

- Ex: Failure to respond to accusations of child abuse.
Government has no duty to protect child from parents.

- Only if the government literally creates the danger, or if the person is in government custody, does the government have any duty to prevent privately inflicted harm
What procedures are required for Due Process?
- Three Part Balancing Test

1) Importance of the interest to the individual

2) The ability of additional procedures to increase the accuracy of the fact-finding

3) Government’s interests (Usually in saving money; efficiency)
Due Process Requirement before welfare benefits can be terminated
there must be notice and a hearing
Due Process Requirement when SS disability benefits are terminated
there need only be a post-termination hearing
Due Process Requirement when a student is disciplined by a public school
there must be notice of the charges and an opportunity to explain
Due Process Requirement before parental rights can be permanently terminated
there must be notice and a hearing
Due Process Requirement for punitive damage awards
require instructions to the jury and judicial review

- Grossly excessive punitive damages violate due process
Due Process Requirement when an American citizen detained as an enemy combatant
must be accorded due process

- At a minimum – notice of the charges, representation of a lawyer, fair trial
Due Process Requirement for pre-judgment attachment or government seizure of assets
Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be proceeded by notice and a hearing (exigent: would sell if given notice)

- Due process does not require an “innocent owner” defense to government seizure (can take the John's car even if wife owns)
Substantive Due Process (definition)
Whether the government has an adequate reason for taking away a person’s life, liberty or property? (substantive justification for its actions)
Constitutional protection for economic liberties

- Only a rational basis test is used for laws affecting economic rights

- On Test

1) Challenge to minimum wage

2) Right to practice trade or profession

3) Challenge of consumer protection law
Takings Clause
Government may take private property for public use if it provides just compensation:

1) Is there a taking?
2) Is it for public use?
3) Is just compensation paid?
Is there a taking?
1) Possessory taking – government confiscation or physical occupation of property is a taking
Does not matter how small the property

2) Regulatory taking – government regulation is a taking if it leaves no reasonable economically viable use of the property


- Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking

- A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

- Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable (Ex. Moratoriums)
Is it for public use? (Takings)
If it is not for public use, the government must return the property.

However, the SC has broadly defined public use so that virtually ever taking will meet this requirement:

- So long as the government act out of a reasonable belief that the taking will benefit the public
Is just compensation paid?
Measured as the loss to the owner in terms of reasonable market value; gain to taker is irrelevant
Contracts Clause
No state shall impair the obligations of contracts

1) Applies only to state or local interference with existing contracts (no federal)

2) State or local interference with private contracts must meet immediate scrutiny

- Does the legislation substantially impair a party’s rights under an existing contract?

- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? (mishmash of standards)

3) State or local interference with government contracts must meet strict scrutiny

4) The ex post facto clause does not apply in civil cases; only criminal cases

- An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed

- Test – violation of ex post facto clause is a WRONG answer when dealing with contracts clause (because it is a civil liability)

- Retroactive civil liability only need meet a rational basis test

- A bill of attainder is a law that directs the punishment of a specific person or persons without a trial
is a fundamental right protected under substantive due process (strict scrutiny must be met)
Right to marry
Privacy Right (strict scrutiny)
Right to procreate
Privacy Right (strict scrutiny)
- Ex. Involuntary sterilization
Right to custody of one’s children
Privacy Right (strict scrutiny)

- Ex. Parental abuse or neglect

- A state may create an irrebuttable presumption that a married women’s husband is the father of her child
Right to keep the family together
Privacy Right (strict scrutiny)

- In order to be considered a family, the individuals must be related to one another

- Ex. Zoning ordinances cannot prevent extended family from living together
Right to control the upbringing of one’s children
Privacy Right (strict scrutiny)

- Ex. Right to send children to parochial school

- Ex. Court granting grandparent visitation over parents’ objections
Right to purchase and use contraceptives
Privacy Right (strict scrutiny)
Right to abortion
Strict scrutiny is no longer used; Now, undue burden test

1) Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions

a) Examples:

- A requirement for a 24 hour waiting period for abortions is not an undue burden

- A requirement that abortions be performed by licensed physicians is not an undue burden

- The prohibition of “partial birth abortions” is an impermissible undue burden

b) After viability, states may prohibit abortions unless necessary to protect the women’s life or health

2) The government has no duty to subsidize abortions or provide abortions in public hospitals

3) Spousal consent and notification laws are unconstitutional

4) Parental notice and consent laws for unmarried minors

- A state may require parent notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself
Right to engage in private consensual homosexual activity
level of scrutiny not announced in Lawrence
Right to refuse medical treatment
level of scrutiny unknown

1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment

2) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended

3) A state may prevent family members from terminating treatment for another
Right to physician-assisted suicide
Rational basis review
Approach to equal protection questions
1) What is the classification?

2) What level of scrutiny should be applied? (if not his example, rational basis)

3) Does this law meet the level of scrutiny?
Constitutional provisions concerning equal protection
1) The equal protection clause of the Fourteenth Amendment applies only to state and local governments (Does not apply to federal government)

2) Equal protection is applied to the federal government through the due process clause of the Fifth Amendment

3) Scrutiny same regardless of level
Classifications based on race and national origin
Strict scrutiny is used
How is the existence of a racial classification proven?
1) The classification exists on the face of the law

- Law in its very terms draws a distinction among people based on their race

2) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory IMPACT and discriminatory INTENT

- Ex. Discriminatory use of peremptory challenges based on race denies equal protection
How should racial classifications benefiting minorities be treated?
1) Strict scrutiny is applied

2) Numerical set-asides require clear proof of past discrimination

- Hostile to anything that looks like a quota or a set-aside

3) Educational institutions may use race as one factor in admissions decisions to help minorities

a) To enhance diversity to benefit minorities

b) Cannot add points to an admission score solely on the base of race

4) Seniority systems may not be disrupted for affirmative action

- General rule – last hired, first fired
Gender classifications
Intermediate scrutiny is used

- Allowed only if there is an “exceedingly persuasive justification” (added requirement)
How is the existence of a gender classification proven?
1) The classification exists on the face of the law

- Ex. Women could buy beer at age 18, but men could not until age 21

- Ex. Only men could attend military state university

2) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent

- Ex. To be a police officer, applicant must meet height and weight requirements (only RBR unless show INTENT)

- Ex. Discriminatory use of peremptory challenges based on gender denies equal protection
How should gender classifications benefiting women be treated?
1) Gender classifications benefiting women that are based on role stereotypes will not be allowed (ie women always dependent)

- Ex. In case of a divorce, a woman could be awarded alimony, but a man may never be awarded alimony

- Ex. Military benefits automatically awarded to widows, but men must prove they were economically dependent upon their service-member wife

2) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed

- Ex. Remedying wage discrimination
Alienage classifications
laws that discriminate against non-citizens

1) Generally, strict scrutiny is used

- Ex. Only US citizens could hold civil service positions  unconstitutional

- Ex. Only US citizens could be admitted to the bar  unconstitutional

2) Only a rational basis test is used for

- Alienage classifications that concern self-government and the democratic process can be reserved just for citizens

- Ex. Voting, serving on a jury, and being a police officer, teacher or probation officer (not notary public)

3) Congressional discrimination against aliens: Congress has plenary power to regulate immigration

4) It appears that intermediate scrutiny is used for discrimination against undocumented alien children
Legitimacy classifications (discrimination against non-marital children)
1) Intermediate scrutiny is used

2) Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional

- Ex. Only marital children could inherit from their fathers: unconstitutional

- Ex. In order for a non-marital child to inherit from their father, paternity had to be established during father’s lifetime (denied only to some non-marital children): constitutional
Religious discrimination
SC has used strict scrutiny under First Amendment, but not under equal protection; there has never been a case
Age discrimination
Rational basis review is used

- Ex. Mandatory retirement age statutes
Disability discrimination
Rational basis review is used

- Ex. Zoning law preventing home for mentally disabled being located in certain neighborhoods
Wealth discrimination
Rational basis review is used
- Poverty is not a suspect classification
Economic regulations
Rational basis review is used

- Ex. Statute saying that in order for a person to be a pushcart vendor, the person must have already worked there for 8 years
Sexual orientation discrimination
Rational basis review is used
Equal Protection v. Due Process
Equal Protection analyze classification

Due Process analyze individual rights
Fundamental rights protected under equal protection
1) Right to travel

2) Right to vote

3) NO right to education
Right to travel

1) Laws that prevent people from moving into a state must meet strict scrutiny

2) Durational residency requirements must meet strict scrutiny

- 50 days is the maximum allowable durational residency requirement for voting

3) Restrictions on foreign travel need meet only the rational basis test
Right to vote

1) Laws that deny some citizens the right to vote must meet strict scrutiny

- Ex. Poll taxes, property ownership requirements

- Exception: water district election

2) One-person – one-vote must be met for all state and local elections

- All districts must be the same in population

3) At-large elections are constitutional unless there is proof of a discriminatory purpose

4) The use of race in drawing election district lines to benefit minorities must meet strict scrutiny

5) Counting uncounted votes without standards in a presidential election violates equal protection
Content-based v. content-neutral restrictions
1) Content-based restrictions on speech generally must meet strict scrutiny

- Two types of content-based laws:

a) Subject matter restrictions

- Application of the law depends on the topic of the speech

- Ex. Candidates for elected judicial office could not make statements about disputed legal or political issues

b) Viewpoint restrictions

- Application of the law depends on the ideology of the message

- Ex. If a city were to say that pro-war demonstrations were allowed in the city park but anti-war demonstrations were not allowed

2) Content-neutral laws burdening speech generally need only meet intermediate scrutiny

- Ex. Denying all parades or demonstrations in city park
Prior Restraints
Judicial order or an administrative system that stops speech before it occurs

1) Court orders suppressing speech must meet strict scrutiny (preliminary injunctions)

- Procedurally proper court orders must be complied with until they are vacated or overturned

- A person who violates a court order is barred from later challenging it (collateral bar)

- Ex. Gag orders on the press to prevent prejudicial pretrial publicity are not allowed

2) Government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority

3) Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

- City bans book that “corrupt the morals of youth” (vague)
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated

- Ex. Law against live entertainment meant to prevent nude dancing, but also prevented concerts, etc.
Fighting words laws
are unconstitutionally vague and overbroad (not protected by First Amendment)
Words directed at another that are likely to provoke a violent response
Symbolic Speech
Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose
Flag burning
is constitutionally protected speech
Draft card burning
is not protected speech
Burning a cross
is protected speech unless it is done with the intent to threaten
Contribution limits in election campaigns
are constitutional; expenditure limits are unconstitutional
Anonymous speech
is protected

- First Amendment right to speak without having to divulge their identity
Incitement of illegal activity

The government may punish speech if:

1) there is a substantial likelihood of imminent illegal activity AND

2) the speech is directed to causing imminent illegality
Obscenity and sexually-oriented speech
Three Part Test

1) The material must appeal to the prurient interest

- Prurient: that which excites lustful or lascivious thoughts
- Court's definition: shameful or morbid interest in sex
- Local standard

2) The material must be patently offensive under the law prohibiting obscenity

- Definition in law that is used in the obscenity prosecution (local, etc.)

3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value

- Value is determined by a national standard, not local standard
Government use of zoning ordinances to regulate the location of adult bookstores and movie theaters
Erogenous Zoning is Permissible

Important interest in preserving neighborhood
Child pornography
may be completely banned, even if not obscene

- Children must be used in the production

- Not applicable to childish looking adults and computer generated children
Private possession of obscene materials
The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
Businesses convicted of violating obscenity laws
Government may seize the assets of businesses convicted of violating obscenity laws
Profane and indecent speech
Generally protected by the First Amendment


1) Over the broadcast media

- TV and radio

- Ex. Radio station broadcast “seven dirty words”

- Uniquely intrusive to the home and easily accessible to children

- Less latitude over cable TV (paid) v. free TV

2) In schools

- Ex. Speech at school assembly with sexual innuendo
Commercial speech
1) Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment

2) True commercial speech that inherently risks deception can be prohibited

3) Other commercial speech can be regulated if intermediate scrutiny is met

4) Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative

- Ex. Attorneys cannot solicit accident victims or their estates for 30 days after the accident
1) If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice

- Malice – knew the statement was false, or acted with reckless disregard for the truth

2) If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice

- Public figure – thrust themselves into a controversy

3) If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant

- However, the plaintiff may recover presumed or punitive damages only by showing actual malice

- Public concern – public has a legitimate interest

4) If the plaintiff is a “private figure” and the matter is not of “public concern,” the plaintiff can recover presumed or punitive damages without showing actual malice
Privacy (First Amendment right to)
1) The government may not create liability for the truthful reporting of information that was lawfully obtained from the government

2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

3) The government may limit its dissemination of information to protect privacy

- Exception – Press and the public have a First Amendment right to attend criminal trials and most pre-trial proceedings
Public forums
Government properties that the government is constitutionally required to make available for speech (e.g. sidewalks, parks)

1) Regulations must be content-neutral (subject matter and viewpoint neutral), or if not, strict scrutiny must be met

2) Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication

3) Government regulation of public forums need not use the least restrictive alternative

- Ex. Statute that said in order to have a concert in a city park, there had to be use of city sound engineers and city equipment. Concert organizers argued that city could achieve its goal of noise reduction through other means (i.e. maximum decibel level). SC: city does not have to use least restrictive alternative

4) City officials cannot have discretion to set permit fees for public demonstrations
Limited public forums
aka Designated Public forums

Government properties that the government could close to speech, but chooses to open to speech (e.g. school facilities on evenings and weekends)

Rules identical to public forum
Non-public forums
Government properties that the government constitutionally can and does close to speech

- The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral

- Examples

1) Military bases, even those areas usually open to public

2) Areas outside prisons and jails

3) Advertising space on city buses

4) Sidewalks on post office property

5) Airports (Can prohibit solicitation of money, but not distribution of literature)
Right of Access to Private Property
There is no First Amendment right of access to private property for speech purposes

- Ex. Privately owned shopping centers

- Recall you do have a state constitutional right
Laws that prohibit or punish group membership
Freedom of Association
must meet strict scrutiny

- To punish membership in a group, it must be proven that the person

1) Actively affiliated with the group

2) Knowing of its illegal activities

3) With the specific intent of furthering those illegal activities
Laws that require disclosure of group membership
where such disclosure would chill association, must meet strict scrutiny

Ex. NAACP membership in Alabama
Laws that prohibit a group from discriminating
are constitutional unless they interfere with intimate associations or expressive activity

1) Intimate associations

- Ex. No invitation to a small dinner party

2) Expressive activity

- Ex. Klan can exclude blacks; excluding gays from Boy Scouts
Free exercise clause
1)The free exercise clause cannot be used to challenge a neutral law of general applicability

a) Ex. Oregon law against peyote use. Not motivated by a desire to interfere with religion, applied to everyone in the state

b) If not neutral law of general applicability, strict scrutiny applies

2) The government may not deny benefits to individuals who quit their jobs for religious reasons
Establishment Clause
Government may make no law respecting the establishment of religion

- Lemon Test

1) The government cannot discriminate against religious speech or among religions unless strict scrutiny is met

2) Government sponsored religious activity in public schools is unconstitutional

- No school prayer

- But religious student and community groups must have the same access to school facilities as non-religious groups

3) Government may give assistance to parochial schools, so long as it is not used for religious instruction

- Government may provide vouchers which they use in parochial schools
The Lemon Test
Three Part Test (SEX)

1) There must be a secular purpose for the law

- Ex. Ten Commandments must be posted in all classrooms

2) The effect must be neither to advance nor inhibit religion

- Government must not symbolically endorse religion, or a particular religion

3)There must not be excessive entanglement with religion

- Ex. Government generally cannot directly pay teachers salaries in parochial schools because if they did, they would have to monitor what they were teaching, which is an excessive entanglement
True commercial speech that inherently risks deception
Can be prohibited:

a) The government may prevent professionals from advertising or practicing under a trade name

- Ex. Optometrists and opticians could not practice under trade names

- Trade names inherently risk deception because bad doctors could just change their trade name and fool the public

b) The government may prohibit attorney, in-person solicitation of clients for profit

- Ex. Ambulance chasers who go to hospitals (No one there to monitor the encounter)

- Does not apply to pro bono work

- Does not apply to letters – written record

c) The government may not prohibit accountants from in-person solicitation of clients for profit