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305 Cards in this Set

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civil rights and civil liberties:

Framer’s didn’t think it was necessary to provide for the protection of individual rights and that the State’s would provide for the protection of its own citizens.
application of the bill of rights to the states
civil rights and civil liberties:

not a lot of protection offered before the Civil War...mainly protected slave owners.
application of the bill of rights to states:

article 4 section 2 clause 3
civil rights and civil liberties:

wharf owner sued the City for taking his property without just compensation in violation of the 5th amendment. Claimed city had diverted streams and ruined his wharf and did not pay him for it. Issue before the court is whether the taking clause applies to the city...understanding was that the 5th amendment was to apply to the Federal government, although the language does not specifically state that it is only for the Feds. a. Marshall rejects this argument and says that the Constitution is not designed to deal with restrictions on State government – this would take control over all the states. The Constitution has nothing to say about state establishment of speech or any other provision of the Bill of Rights. Idea was to give the States as much power as possible. Left to the State constitution to help in protecting against State violation of rights.
rejection of he application of bill of rights to the states:

John Barron v. the Mayor of Balitomore
civil rights and civil liberties:

“No state shall make a law that abridges the privileges or immunities of the citizens of the US.” Explicit restriction on the power of states...seems to be a good way to apply the whole Bill of Rights to the States.
a false start in applying the bill of rights to the states: Slaughter House Cases -

The Butcher's benevolent Association of New Orleans v. The Crescent City Live Stock Landing and Slaughter House Company
civil rights and civil liberties:

i. SC thinks that the legislature had the right and duty to determine where slaughtering should be conducted.
1. SC says that the 14th amendment argument that equal protection should only apply to former slaves. This claim does not apply because not concerned about butchers being denied equal protection under the laws.
2. SC says due process argument doesn’t apply either because due process means fair notice and procedures and have a cramped meaning, ultimately saying it does not apply.
3. SC rejects the use of Privileges or Immunities clause even though there is a lot of evidence that it seems to want to protect the same things as the Bill of Rights.
a. SC could have written a narrow opinion and said that the right to work is not a protected fundamental right and does not fall under the privileges or immunities clause. Also could have said that the law does not violate this right because being forced to practice in one place really isn’t a violation (not an abridgment of the condition just an exercise of the privilege in a particular place.
b. Instead court writes a broad opinion and almost reads the clause out of the Constitution. SC ignores the intent of the 14th amendment and says in slaughterhouse the P or I clause was not meant to protect citizens of a State from their own State, only designed to give protection to US citizens against a state.
i. Congress intended to protect people from state interference just like they had already protected people from federal interference. So even before the 14th amendment the states were obliged to protect it.
false start in applying the bill of rights to the states: slaughter house cases -

Butcher Association v. Slaughter House Company
civil rights and civil liberties:

ii. Dissent à Effect of the decision is to read the P or I clause out of the 14th amendment. Said that there was strong evidence that Congress intended the clause to protect all citizens from State governments, but the SC has ignored this intent in the slaughterhouse cases, even though they are pointing out the importance of the framer’s intent in the other arguments.
false start in applying the bill of rights to the states: Slaughter House Cases -

Butchers Association v. Slaughter House Company
civil rights and civil liberties:

CA enacted a law limiting the welfare benefits available to new residents. A family that has resided in CA for less than 12 months may receive only the amount payable by the State in which the family previously resided.
i. SC used the P or I clause and strikes down the law. Here you have two in-staters that are being treated differently.
For the next 126 years this clause remained dead with no litigation or any recognition of any importance of the P and I clause by the SC:

Saenz v. Roe
civil rights and civil liberties:

NJ law provided that a jury may be instructed that it may draw an unfavorable inference from a criminal defendant’s failure to testify.
a. The right against self-incrimination is not so important that it is protected against State deprivation through the due process clause. This opened the door to apply the protection of the Bill of Rights to the State through due process. Provisions of the Bill of Rights may apply to State under the Due Process Clause of the 14th amendment if the provisions are necessary for due process of law.
the incorporation of the biill or rights into the due process clause of hte 14th amendment:

Twining v. NJ
civil rights and civil liberties:

state may not deny counsel in capital cases. Due Process clause includes the protections of the 1st and 6th amendment in these cases.
the incorporation of the bill of rights into the due process clause of hte 14th amendment:

powell v. Alabama
civil rights and civil liberties:

state may not deny counsel in capital cases. Due Process clause includes the protections of the 1st and 6th amendment in these cases.
incorporation of the bill of rights into the due process clause of the 14th amendment:

Debate over incorporation - Selective Incorporation
civil rights and civil liberties:

the whole bill of rights should be incorporated – judges shouldn’t pick and choose what is important in the Bill of Rights, this gives too much discretion. Problem here is that the judges will always have to choose.
the incorporation of hte bill of rights into the due process clause of the 14th amendment:

Debate over Incorporation: Total Incorporation
civil rights and civil liberties:

Pretty much all of the protection in the Bill of Rights is now also applied to State governments. This is a recent phenomenon and the reality is that all this protection of individual liberties is new and why so many of the cases are so recent.
a. Except for 5 things:
i. 2nd amendment right to bear arms
ii. 3rd amendment right of quartering soldiers in your home
iii. 5th amendment right to a grand jury indictment
iv. 7th amendment right to a jury trial in civil cases
1. SC has allowed states to use 6 person juries instead of 12 person juries.
v. 8th amendment right against excessive fines.
the incorporation of the bill of rights into the due process clause of the 14th amendment:

The current law as to what's incorporated
civil rights and civil liberties:

While the DPC prohibits testimony that is compelled by fear of hurt or torture, it does not prohibit a State from allowing prosecutors or judges to comment on a defendant’s failure to testify.
incorporation of hte bill of rights into the due process clause of the 14th amendment:

Adamson v. CA
civil rights and civil liberties:

A man charged with a simple battery, punishable by up to two years in prison, was denied the right to a jury trial and claimed he was therefore denied due process of law. Court held that the right to a jury trial is applicable to the State.
incorporation of the bill of rights into the due process clause of the 14th amendment:

Duncan v. STate of Louisiana
civil rights and civil liberties:

a. Selective provisions are incorporated into the DPC if they are fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, basic in our system or jurisprudence, and fundamental rights, essential to a fair trial.
incorporation of the bill of rights into the due process clause of the 14th amendment:

The Content of Incorporated Rights
civil rights and civil liberties:

Owners of theaters and hotels were prosecuted for discriminating against African Americans. Under the 14th amendment, Congress does not have the power to pass laws prohibiting discrimination by private citizens. The 14th amendment prohibits only State Action.
a. DISSENT à (Harlan) Majorities opinion is too narrow, and sacrifices the spirit of the 14th amendment by only looking at the words. Ignores the full effect the Amendment was intended to have. [US v. Stanley]
application of the bill of rights and the constitution to private conduct:

The requirement for State Action - the civil rights cases
civil rights and civil liberties:

if private entity performs task that was traditionally and exclusively been performed by the government then the Constitution applies. [Court applied this inconsistently]
application of the bill of righs and the constitution to private conduct:

The exception to the state action doctrine: The public functions exception
civil rights and civil liberties:

A Jehovah’s Witness was arrested for trespass after attempting to distribute religious literature in a privately-owned town. Neither a State nor a municipality may bar the distribution of religious or political literature on its sidewalks. The fact that a private corporation runs the town is irrelevant. It is not the same, as the right of a homeowner to regulate his guests. The more the owner opens up his property to the public, the more the Constitution is applicable. The fact that the property was privately-owned does not justify restricting fundamental liberties.
application of the bill of rights and the constitution to private conduct:

The Exceptions to the state action doctrine - Public Function Exception

Marsh v. State of Alabama
civil liberties and civil rights:

A customer of an electric company claimed the company performed a public function and therefore could not shut off her electricity without adequate notice and a hearing pursuant to the DPC of the 14th amendment. Court holds that company is not a state actor because merely because it was heavily regulated, privately-owned utility.
i. Extensive government regulation does not make conduct state action. Must look at whether there is a sufficiently close nexus between the State and the challenged action so that the action of the private actor may be fairly treated as that of the State itself.
Exceptions to the state action Doctrien: the Public function exception

Jackson v. metropolitan Edison
civil rights and civil liberties:

Terry v. Adams – A private political party that excludes members based on race, and that controls the ultimate outcome of elections, was held to be engaging in state action for purposes of the 15th amendment. It is immaterial that the State does not control the Jaybird primary (holding an election is a public function). A private political party that controls the outcome of elections engages in state action thereby making it subject to the 15th amendment.
exceptions to the state action doctrine:

Elections
civil rights and civil liberties:

i. Evans v. Newton – A will provision leaving land for a park for whites only was challenged under the EPC of the 14th amendment. For years the City maintained the park and granted it a tax exemption. Where the tradition of municipal control becomes firmly established, substituting private trustees does not transfer the park form the public to the private sector. Operating a park constitutes a public function; thus the owner is subject to the 14th amendment.
exceptions to the state action doctrine: Pubilc function exception

private property used for public purpose case law
civil rights and civil liberties:

ii. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. – After a shopping center owner barred union members from picketing on its property, the union claimed the shopping center served a public function and that its first amendment rights prevailed. Shopping centers serve a public function and, therefore, the 1st amendment applies. Overruled by Hudgens!!!
exceptions to the state action doctrien: public function exception

private property used for pubilc purpose
civil rights and civil liberties:

iii. Lloyd Corp. v. Tanner – Anti-war demonstrators told to leave a shopping center sued the shopping center owners for violating their 1st amendment rights. There are no first amendment rights in a private shopping center if the speech at issue is not related to the activities at the shopping center.
exceptions to the state action doctrine: pubilc function exception

private property used for pubilce purpose
civil rights and civil liberties:

iv. Hudgens v. National Labor Relation Board – Labor union members picketing in a privately owned mall claimed their First amendment rights to free speech were violated when they were threatened with criminal trespass prosecution. The First Amendment does not apply to people entering privately-owned shopping centers.
exceptions to the state action doctrine: pubilc function exception

private property used for public purpose
civil rights and civil liberties:

If the government facilitates, encourages, or authorizes unconstitutional conduct then it is considered State action and the Constitution does apply. The government has to seize its encouragement of the organization that it is encouraging to violate the Constitution and force it to comply with the Constitution.
exceptions to the state action doctrine:

the entanglement exception
civil rights and civil liberties:

i. Shelley v. Kramer – A black person bought property in violation of a restrictive covenant providing that only whites could own or occupy the property. White neighbors sued to enforce the covenant. The restrictive covenant here would clearly be unconstitutional if imposed by statute. Judicial enforcement of a private agreement constitutes state action for purposes of the 14th amendment.
exceptions to the state action doctrine:

the entanglement exception: judicial and law enforcement actions
civil rights and civil liberties:

1. Lugar v. Edmonson Oil Co, Inc. – Debtor sued a creditor for violating his due process rights when the creditor obtained an ex parte writ of attachment and has a sheriff seize the debtor’s property.
a. To fairly attribute conduct involving the deprivation of a right to the State, a two part approach is applied Lugar Test pg 423:
b. “The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the state is responsible” (deprivation must be caused by the exercise of a right or privilege created by the state) AND
c. “[T]he party charged with the deprivation must be a person who may fairly be said to be a state actor.” (the responsible party must be a state actor.
i. The extent to which the actor relies on governmental assistance and benefits; and
ii. Whether the actor is performing a traditional government function; and
iii. Whether the injury is aggravated uniquely by governmental authority.
d. Here the procedural scheme by which D obtained the writ of attachment is the product of the state action. There was enough state assistance by the government for there to be sufficient entanglement. (make sure that there is direct involvement of a state official)
exceptions to the state action doctrine:

the entanglement exception: judicial and law enforcement action: prejudgment attachment
civil rights and civil liberties:

1. Edmonson v. Leesville Concrete Company, Inc. – An injured construction worker suing for negligence claimed that allowing the D to exclude jurors based on their race violated his equal protection rights under the 14th amendment. Here it was two private parties that were kicking the people off the jury.
a. Court applies Lugar Test and finds that by enforcing a discriminatory peremptory challenge the court significantly involves itself with invidious discrimination. This is state action.
exceptions to the state action doctrine: the entanglement exceptoin:

judicial and law enforcement action; peremptory challenges
civil rights and civil liberties:

1. Burton v. Wilmington Parking Authority – Eagle Coffee Shoppe refused to serve P solely because he was black. The building in which Eagle is located is a parking garage owned and operated by the Wilmington Parking Authority, D, and agency of the State of Delaware. Here to finance its debt service, the D entered into a long-term lease with various tenants, including Eagle. The building had signs indicating the public character of the building and flew state and national flags.
b. SC held that by its inaction, the State made itself a party to Eagle’s discrimination. The State’s interdependence with Eagle makes it a joint participant in the challenged activity, which cannot be considered to be purely private.
i. When a State becomes entangled in a private party’s action so that the State and the private party have a symbiotic relationship, the private party must comply with the 14th amendment. When a state fails to prevent something then it is state action.
exceptions to the state action doctrine:

the entanglement exception: judicial law enforcement action:

government regulation
civil rights and civil liberties:

2. Moose lodge No. 107 v. Irvis – when a black man was denied service by a private club, he sued to revoke its state-issued liquor license.
a. Court limits Burton saying that state licensing is not enough to constitute state action. Also draw a public function argument – saying that this is a private social club that already had limited membership. In this case, there is not enough state involvement to constitute state action.
b. Board’s regulatory scheme does not implicate the State in D’s discriminatory guest policies to make D’s actions equal to state action.
c. Dissent à There are only a certain amount of liquor licenses, this restricts the ability of blacks to obtain liquor. Penn is putting the weight of its liquor license, a highly valued asset, behind racial discrimination.
entanglement exceptions: judcial and law enforcement action:

government regulation case law
civil rights and civil liberties:

3. American Manufacturers Mutual Insurance Company v. Sullivan – A disabled worker claimed an insurer was a state actor and deprived him of his property in violation of the 14th amendment.
a. Court applies Lugar test and finds that the mere fact that a business is subject to state regulation does not make it a state action. For state action to exist there must be a close nexus between the State and the challenged action.
i. Close nexus exists if the State has coerced or significantly encouraged the action. Mere approval or acquiescence by the State is not enough. Court has dramatically backed off from Burton here, a private organization does not fall in its scope even when extensively regulated. There is no state action despite extensive government regulation.
ii. More recent cases à take a contrary position from Burton and say that State regulation is not enough to constitute State action.
entanglement exceptions: judicial and law enforcement action:

government regulation case law
civil rights and civil liberties:

enough encouragement of unconstitutional behavior to convert the actions of a private entity into a state action.
entanglement exceptions: judicial and law enforcement action:

government subsidies
civil rights and civil liberties:


Gilmore v. Montgomery – a city cannot give racially segregated private schools exclusive use of the public recreational facilities.
entanglement exceptions: judicial and law enforcement action:

government subsidies case law
civil rights and civil liberties:

Rendell Baker v. Kohn – Private school employees sued the private school for violating their constitutional rights, alleging that the private school was a state actor because it was publicly funded and performed a public function.
d. State did not have anything to do with the discharge of the employee....so no state action here.
e. Public function argument – court said that the function has not been a traditional prerogative of the state.
entanglement and exceptions: judicial and law enforcement action:

government subsidies case law
civil liberties and civil rights:

Rendell Baker v. Kohn – Private school employees sued the private school for violating their constitutional rights, alleging that the private school was a state actor because it was publicly funded and performed a public function.
d. State did not have anything to do with the discharge of the employee....so no state action here.
e. Public function argument – court said that the function has not been a traditional prerogative of the state.
entanglement exception: government regulations:
government subsidies
civil rights and civil liberties:

5. Trend here mirrors what happened with Burton à Norwood opens the door for state action, and then is significantly narrowned by subsequent cases...stating that the government has to be actually involved in creating the wrong.
entanglement exception: government regulations; government subsidies
civil rights and civil liberties:

Reitman v. Mulkey – prospective renters were denied an apartment based on their race. They challenged a state constitutional provision that barred all laws prohibiting racial discrimination in housing.
a. Only applies the first prong of Lugar, because it is allowed under state law, it is therefore state action. Court interprets race cases more broadly.
b. Dissent à says that it is neutral on its face and is about private decision making. There is no affirmative call to discrimination.
entanglement exception: government regulations:

Initiative encouraging violation of rights
civil rights and civil liberties:

b. If the evil is racism then they are likely to find state action...if another evil will not be likely to find state action.
entanglement exception; government regulations
civil rights and civil liberties:

a. Brentwood v. Tennessee Secondary Athletic Association – the members of the association are public schools, the percentage of officers on the board were all public school members. The association is funded by dues and ticket sales from different athletic events...most funding comes form public schools. The association is given the power to regulate by the board of education.
i. The mere fact that the board of education gives the authority to this association the power to regulate is probably not enough. Funding is still probably not enough. However, the court does find state action here. Uses a different standard of pervasive entwinement between this board and the government that is enough to constitute state action. Court doesn’t say exactly what entwinement is ...just kind of puts it out there.
ii. Dissent à Athletics not usually regulated specifically by state entities. Argue that the association was not a public entity.
b. After narrowing the entanglement doctrine before this case, the court is now headed in the direction of broadening it. Have to wait and see how it plays out.
the entwinmenet exception
Economic Liberties:

constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession and to acquire, possess, and convey property.
economic substantive due process
economic liberties:

one in the 5th amendment which says that no one should be deprived of life, liberty or property without due process of law (applies to Fed. Government, while the 14th amendment says the same but is directed at the states.
economic substantive due proces: Early History.

Two due process clauses
economic liberties:

government must follow certain procedures before it deprives you of your life, liberty or property.
i. This means that the government is free to violate your liberties but they must have a process for it à notice, opportunity to be heard.
economic substantive due process: early history.

Two due process clauses - Procedural Due Process
economic liberties:

here the focus is the adequacy of the governments’ reason to take away your life, liberty or property.
i. This means that government cannot take away your liberties without a sufficient reason, the inquiry focuses on the governments’ substantive justification for taking away these liberties. You have rights beyond just notice and the opportunity to be heard...cannot be taken away without really good reason.
economic substantive due process: Early history

two due process clauses - substantive due process
economic liberties:

SDP used to protect economic rights such as liberty of K. The right to K was a liberty and the state doesn’t have the right to intrude on it, unless a substantive good reason exists.
a. In this era the SC struck down a lot of progressive state legislation (help workers, unions), as a violation of the commerce clause and federalism if federal, and struck down state legislation as violating the due process clause of the 14th amendment as violating the freedom of K.
economic substnative due process:

Lochner Era
economic liberties:

i. SC decisions were historically important à Court regularly striking down state laws. Up until this time court would generally uphold them. Stood as a road block for all progressive state legislation.
ii. SC failure to protect economic liberties in the past and there overreaction in the Lochner era has now lead to less protection in the present.
iii. All modern Con Law is a reaction to the Lochner Era. Still trying to come up with a system of reviewing economic rights without overly infringing.
iv. Forces us to think about what rights the constitution does protect. Leads to a value question about how the court should interpret the Constitution.
economic substantive due process: Lochner Era

4 critical reasons for why this is important
economic substantive due process:

i. The word “liberty” is interpreted as protecting certain rights especially the right to freedom of K.
ii. A state may only infringe upon liberty to achieve a valid police purpose à anything to protect – health, safety, or morals. See the SC’s role as making sure that the state has a good reason to interfere with the liberty at issue.
iii. Court is really applying strict scrutiny to anything that interferes with the liberty. Must be absolutely essential and the least restrictive means in its effort to protect the states health, safety, or morals. (Least restrictive means achieving the police purpose).
iv. CAVEAT à Note that these themes were followed in the Lochner Era and do not reflect the modern theory of SDP.
economic substantive due process:

three key themes that run through the SC's early SDP
economic substnative due process:

rooted in Lochner era – replicated in the debate over privacy and abortion in the 20th century. When there were early decisions that gave protection to private family decisions, right to abortion/contraception.
economic substantive due process:

the right of privacy
economic substantive due process:

State of Louisiana banned all foreign corporations from doing business in the state unless it had a place of business and an agent in the state.
a. This case illustrates the importance of the first theme – liberty to contract. SC says that the way Louisiana construed the law was unconstitutional in that it deprived both the state residents and the company of its liberty (freedom of contracting) without the due process of law.
Substantive due process of the lochner era;

Allgeyer v. Louisiana
economic substantive due process:

NY passed a law limiting the number of hours an employee of a bakery may work to no more than 60 hours per week or 10 hours per day. P was convicted of violating this statute for allowing his employees to exceed the maximum hours limit. State adopted the laws because there was a surplus of workers and the conditions of the bakery were such that allowing unlimited workers was hazardous to their health.
a. Court says that this is not a valid and reasonable exercise of state police powers because it infringes upon the right to contract enjoyed by both the bakery owner and employees. Conflict is between the freedom to contract (employees) and the states ability to enact regulations over the public’s health, safety and morals.
substantive due process of the lochner era.

Lochner v. people of the State of NY
economic substnative due process:

i. “Liberty” à people should be allowed to enter into contracts that they want to and the law interferes with this by preventing people from working the hours they want to. The right to K includes a right to enter into whatever occupation you want free from government restraint. Court doesn’t use Contracts Clause because that only prevents a state from interfering with an existing contract.
substantive due process of hte lochner era:

Lochner v. Poeople of NY
economic substantive due process:

ii. Police Power à Court distinguishes Holden (restricted hours of mine workers) by finding that mining is more dangerous then baking. The baker’s health here would not effect the production of bread.
1. SC concerned that if they uphold the regulation here then they will have to uphold every regulation that exist in relation to work in every other business. Slippery slope argument.
2. The police purpose must be related to the public’s health, safety, or morals. There had to be an actual need for the law. SC looks at the facts and makes judgments itself as to whether there are really health or safety issue present that point to the need for regulation.
3. Baker’s can control their hours through contract. Court doesn’t accept the State’s argument that equalizing bargaining power is a compelling purpose or interest.
substantive due process of hte lochner era:

lochner v. people of the state of NY
economic substantive due process

iii. Necessary to Achieve the Purpose à Have to show that that the law is necessary or indispensable to achieving the state’s goal. Here court doubts that the law is really about protecting health. Think the state is desired by the motive to redistribute wealth and is not concerned about the baker’s but to redistribute wealth. (Don’t want the state to act like Robin Hood)
iv. DISSENT à Court should not be second guessing the purpose of the law, and are making judgments as to whether it is a good or bad law, when the role of the judiciary is not to do this. Criticizing the political ideology that is going on behind the SC’s thinking, and the court should be neutral in what economic theory they believe in. SC should not sit and strike down democratically passed legislation.
substantive due process of the lochner era:

Lochner v. the People of NY
economic substantive due process:
a. Coppage v. State of Kansas – Employer convicted of violating state law that prohibited conditioning employment on not joining a union. SC held law was unconstitutional and precludes an employer and employee from entering into a K for employment terminable by will by which the employer agrees to hire the employee and the employee agrees not to join a union. Court uses the word liberty to protect the freedom to K.
substantive due process of the lochner era:

Laws Protecting Unionizing
economic substantive due process:

a. Muller v. State of Oregon – employer convicted of violating state law that restricted the number of hours women could work in certain types of jobs. Here the court accepts that women’s health is a valid police purpose. Here it was said that women were not capable of protecting themselves on their own. So the SC needed to step in and help in their protection. (began the presentation of sociological evidence – to prove the state’s purpose in upholding the regulation)
substantive due process of the lochner era:

Maximum House Laws
economic substnative due process:

i. “Liberty” à people should be allowed to enter into contracts that they want to and the law interferes with this by preventing people from working the hours they want to. The right to K includes a right to enter into whatever occupation you want free from government restraint. Court doesn’t use Contracts Clause because that only prevents a state from interfering with an existing contract.
substantive due process of hte lochner era:

Lochner v. Poeople of NY
economic substantive due process:

ii. Police Power à Court distinguishes Holden (restricted hours of mine workers) by finding that mining is more dangerous then baking. The baker’s health here would not effect the production of bread.
1. SC concerned that if they uphold the regulation here then they will have to uphold every regulation that exist in relation to work in every other business. Slippery slope argument.
2. The police purpose must be related to the public’s health, safety, or morals. There had to be an actual need for the law. SC looks at the facts and makes judgments itself as to whether there are really health or safety issue present that point to the need for regulation.
3. Baker’s can control their hours through contract. Court doesn’t accept the State’s argument that equalizing bargaining power is a compelling purpose or interest.
substantive due process of hte lochner era:

lochner v. people of the state of NY
economic substantive due process

iii. Necessary to Achieve the Purpose à Have to show that that the law is necessary or indispensable to achieving the state’s goal. Here court doubts that the law is really about protecting health. Think the state is desired by the motive to redistribute wealth and is not concerned about the baker’s but to redistribute wealth. (Don’t want the state to act like Robin Hood)
iv. DISSENT à Court should not be second guessing the purpose of the law, and are making judgments as to whether it is a good or bad law, when the role of the judiciary is not to do this. Criticizing the political ideology that is going on behind the SC’s thinking, and the court should be neutral in what economic theory they believe in. SC should not sit and strike down democratically passed legislation.
substantive due process of the lochner era:

Lochner v. the People of NY
economic substantive due process:
a. Coppage v. State of Kansas – Employer convicted of violating state law that prohibited conditioning employment on not joining a union. SC held law was unconstitutional and precludes an employer and employee from entering into a K for employment terminable by will by which the employer agrees to hire the employee and the employee agrees not to join a union. Court uses the word liberty to protect the freedom to K.
substantive due process of the lochner era:

Laws Protecting Unionizing
economic substantive due process:

a. Muller v. State of Oregon – employer convicted of violating state law that restricted the number of hours women could work in certain types of jobs. Here the court accepts that women’s health is a valid police purpose. Here it was said that women were not capable of protecting themselves on their own. So the SC needed to step in and help in their protection. (began the presentation of sociological evidence – to prove the state’s purpose in upholding the regulation)
substantive due process of the lochner era:

Maximum House Laws
economic substnative due process:

i. “Liberty” à people should be allowed to enter into contracts that they want to and the law interferes with this by preventing people from working the hours they want to. The right to K includes a right to enter into whatever occupation you want free from government restraint. Court doesn’t use Contracts Clause because that only prevents a state from interfering with an existing contract.
substantive due process of hte lochner era:

Lochner v. Poeople of NY
economic substantive due process:

ii. Police Power à Court distinguishes Holden (restricted hours of mine workers) by finding that mining is more dangerous then baking. The baker’s health here would not effect the production of bread.
1. SC concerned that if they uphold the regulation here then they will have to uphold every regulation that exist in relation to work in every other business. Slippery slope argument.
2. The police purpose must be related to the public’s health, safety, or morals. There had to be an actual need for the law. SC looks at the facts and makes judgments itself as to whether there are really health or safety issue present that point to the need for regulation.
3. Baker’s can control their hours through contract. Court doesn’t accept the State’s argument that equalizing bargaining power is a compelling purpose or interest.
substantive due process of hte lochner era:

lochner v. people of the state of NY
economic substantive due process

iii. Necessary to Achieve the Purpose à Have to show that that the law is necessary or indispensable to achieving the state’s goal. Here court doubts that the law is really about protecting health. Think the state is desired by the motive to redistribute wealth and is not concerned about the baker’s but to redistribute wealth. (Don’t want the state to act like Robin Hood)
iv. DISSENT à Court should not be second guessing the purpose of the law, and are making judgments as to whether it is a good or bad law, when the role of the judiciary is not to do this. Criticizing the political ideology that is going on behind the SC’s thinking, and the court should be neutral in what economic theory they believe in. SC should not sit and strike down democratically passed legislation.
substantive due process of the lochner era:

Lochner v. the People of NY
economic substantive due process:
a. Coppage v. State of Kansas – Employer convicted of violating state law that prohibited conditioning employment on not joining a union. SC held law was unconstitutional and precludes an employer and employee from entering into a K for employment terminable by will by which the employer agrees to hire the employee and the employee agrees not to join a union. Court uses the word liberty to protect the freedom to K.
substantive due process of the lochner era:

Laws Protecting Unionizing
economic substantive due process:

a. Muller v. State of Oregon – employer convicted of violating state law that restricted the number of hours women could work in certain types of jobs. Here the court accepts that women’s health is a valid police purpose. Here it was said that women were not capable of protecting themselves on their own. So the SC needed to step in and help in their protection. (began the presentation of sociological evidence – to prove the state’s purpose in upholding the regulation)
substantive due process of the lochner era:

Maximum House Laws
economic substantive due process:

a. Adkins v. Children’s Hospital of the District of Columbia – employee sued employer for not paying her in accordance with the state’s minimum wage law. Federal government governs the District of Columbia so this analysis falls under the 5th amendment because the 14th amendment only applies to the States. HOLDING Case overruled in West Coast Hotel v. Parrish
substantive due process during the lochner era:

Minimum Wage Laws
economic substantive due process:

a. Weaver v. Palmer Bros. Co. – Palmer brothers’ manufactures comfortable filled with materials known as shoddy. The law in question prohibits the selling of comfortables made with shoddy materials. Court finds that this law prohibiting the use of shoddy is not a valid exercise of the state’s power to pass laws to protect the health of the public. There being little or no danger, the law is unreasonable and arbitrary.
i. Least restrictive means à here there was another way to restrict the production and would be lessof an invasion then the present law.
ii. DISSENTà Ought to presume that the law is valid and then test it from there. If the legislature regarded the danger of shoddy as great and inspection and tagging as inadequate remedies, we ought to have upheld the law as aimed at preventing the spread of disease.
substantive due process of the lochner era:

Consumer Protection Legislation
economic substantive due process:

a. Con’s
i. Decisions reflect excessive judicial activism. The SC is systematically striking down laws with no specific constitutional right to do so. Court is reading a lot of liberty into the liberty portion of the freedom to K that is not clearly delineated in the Constitution.
ii. Problem with consistency – upheld max. hours in Muller, Bunting v. Oregon, but strike down in Lochner.
iii. Reflect some poor value judgments. Perhaps the court should not have elevated the freedom to contract as much as they did. Maybe there are public health and safety issues that should be regarded as important.
b. Pro’s
i. Recognizes the freedom to K.
ii. Need limits on government regulation...what the Era is all about. Although most agree that the government went too far in protecting legislation this might have been needed.
substantive due process of the lochner era, Pros and Cons
economic substantice due process:

a. Economic factors of the depression
b. Political pressure on the SC – FDR’s court packing plan – should be able to add members for every member over the age of 70. Would have added 6 new members.
c. Intellectual pressure to change – revolutionizes law. Before these decisions law had been deemed logical, while politics was arbitrary. Legal realists à if all law is politics then lets leave it to the legislature and not to the courts. Courts should not be second guessing policy, but just making sure that it is being applied along with our fundamental rights.
economic substantive due process since 1937 (modern) - pressure for change
economic substantive due process (modern):

All of these pressures helped to insure the downfall of the Lochner Era. Happened in the same week that they began to uphold things under the Commerce Clause, and began to sustain legislation in favor of state regulation. This shift in thinking was even more dramatic then its change in the Commerce Clause. Not much protection for economic liberties after 1937 (not one violation found since).
end of lochnerism
economic substantive due process (modern):

(right before the change occurred) – Grocer convicted of selling milk at prices lower than price set by state regulatory agency challenged the constitutionality of the price control. SC says here that normally K’s are a private concern but the freedom of K isn’t absolute and will allow the regulation of K’s if it is done for public interest, here the safety of the milk supply.
i. Case suggests a departure from Lochner, freedom of K not as important, and are not applying strict scrutiny in the most controlling way.
end of lochnerism:

nebbia v. People of hte state of NY
economic substantive due process (modern):

[Key case the delivers the death blow to the Lochner case] – Employee sued employer to recover difference between her actual wages and the minimum wage state law required that she be paid. This is a valid exercise of the state’s police powers because regulation that is reasonable in relation to its subject and is adopted in the interests of the community satisfies the due process clause of the 14th amendment.
i. The court is now paying more deference to the legislature, and that if there is a problem with the legislation then it should be directed towards the congressmen. The economic regulation will be sustained unless it is arbitrary and unreasonable.
ii. Case departs from Lochner in two key ways:
1. Constitution does not speak of freedom of K à speaks of liberty and the deprivation of liberty.
2. Equalizing bargaining power is a legitimate role for government and explicitly overrules Adkins that bargaining power is a legitimate state interest.
end of lochnerism

west Coast hotel v. parrish
economic substantive due process (modern):

Company indicted for violating federal law prohibiting the shipping of adulterated milk products across interstate lines challenged the constitutionality of the law. (Challenged under 5th amendment because state law violated a federal law) Court presumes that the legislature acted rationally unless there is good evidence to show otherwise. To regulate the economy the SC has to only find that the law is rationally related to a legitimate government purpose, don’t have to find that the law is necessary or indispensable to achieving the goal. Has to be a rational approach to the law, rational way for dealing with the particular problem.
end of lochnerism

us v. carolene products
economic substantive due process:

i. This is not a hard standard to meet, rarely will anyone say that a body of law is entirely irrational. This is a huge departure from the strict scrutiny applied in the Lochner era cases.
ii. FOOTNOTE 4 à Court articulates a dual standard of review:
1. Business commerce à will be sustained unless they violate a specific constitutional provision (rational basis test).
2. Non-economic rights (1st amendment, discrimination)à Court will not give as much deference to the legislature and may use a more searching judicial inquiry (intermediate or strict scrutiny)
a. Heightened standard of review for cases involving discrimination against minorities, or regulations that infringe upon fundamental rights. State has the burden here to demonstrate the law is necessary to serve a compelling state interest.
end of lochnerism

us v. carolene products
economic substantive due process (modern):

State just has to show that the economic regulation was a rational way of dealing with the problem. State’s may choose any reasonable means to achieving the end goal.
economic substantive due process since 1937
economic substantive due process (modern):

Optician brought suit to have law prohibiting him from dispensing lenses or fitting lenses in frames without a prescription from a licensed ophthalmologist or optometrist and to enjoin state officials from enforcing the law. SC said that economic legislation will be upheld so long as there is any conceivable justification for it.
i. Says that the law may exact a needless and wasteful requirement, but it is for the legislature, not the courts, to balance the advantages and disadvantages of such legislation. Here court says this seems like a reasonable requirement so they sustain it. Again demonstrates the deference to the legislature that did not exist in the Lochner era.
economic substantive due process since 1937:

Williamson v. Lee Optical
economic substantive due process (modern):

SC upheld law that made it unlawful for a person to engage in the business of debt adjusting, except incident to the practice of law. Effect of the law was to put debt adjusters, who were not lawyers, out of business.
economic substantive due process sine 1937:

ferguson v. skrupa
economic substantive due process (modern)

seeking to strike down excessive damages awards and the SC injecting their views on the economics of damages à occurring in this narrow context. The level of scrutiny is much higher here...not the level of deference to things that happened in the states that occurered in the later economic cases.
modern question of where this extraordinary defence is desirable:

Punitive damages cases is revival of the lochner era
economic substantive due process:

Consumer who purchased automobile from retailer brought suit for damages upon finding that the vehicle had been repainted prior to the sale without consumer’s knowledge. P wanted punitive damages for the policy that BMW instituted...which was enough to cover all the cars it had been done to.
modern question of where this extraordinary defence is desirable:

BMW v. Gore
economic substantive due process:

1. Issue for SC was whether a state can constitutionally impose any amount of economic sanctions in the form of punitive damages? 2. A punitive damages award that can fairly be characterized as grossly excessive in relation to a state’s legitimate interests in punishing unlawful conduct and deterring repetition of such conduct is arbitrary and violates the due process clause of the 14th amendment.
modern question of where this extraordinary deference is desirable:

BMW v. Gore
economic substantive due process:

a. 3 Factors in determining whether award is grossly excessive:
i. Reprehensibility
ii. Ratio to actual harm is more than 500 to 1
iii. Compared to possible criminal/civil penalties for the conduct.
modern question of where this extraordinary deference is desirable:

BMW v. Gore
economic substantive due process:

State farm advised the insured that they ought to contest liability and that they would not have to pay beyond the liability limit. Sate farm says opps we made a mistake and they wrote a letter advising Campbell to sell his home in order to pay for the liability.
1. Court said that punitive damages should only be awarded if the conduct was so awful that it needs to deter such action in the future. ADD STUFF HERE!!!
modern question of where this extraordinary deference is desirable:

state farm v. campbell
economic liberties:

Article 1, section 10 – “No state shall...pass any...law impairing the obligation of Contracts.”
1. This applies only to a state or local law that applies to an EXISTING contract. Does not apply to prospective contracts.
the contracts clause:

the modern use of the contracts clause
economic liberties:

5th amendment – “nor shall private property be taken for public use without just compensation.”
the takings clause
economic liberties:

when government confiscates or physically occupies property. (grabbing property to create a freeway)
takings clause:

Possessory Takings
economic liberties:

Landlord challenged law requiring him to allow a cable company to install cable facilities on his property without just compensation. Before the law the landlords would get 5% of the gross amount of what the cable companies earned from there occupants. After the law they got $1 as nominal compensation.
i. Here not much property is being taken...but his property is still being taken without compensation. Court found that this was a taking of permanent physical occupation taking without regard to the public interest it may serve.
1. Per se rule that when there is a permanent physical occupation there is a taking.
2. When physical intrusion reaches the point of permanency, however, a taking has occurred, regardless of the reason for the intrusion.
takings clause: Possessory Takings:

Loretto Case
economic liberties:

A government regulation which leaves no reasonable economically viable use of the property is a taking, if the property still has some economic use or value then it probably won’t be seen as a taking. (regulation that denies all economic beneficial us of land, value, is taking)
takings clause:

Regulatory Takings Definition
economic liberties:

b. Regulatory takings are much harder to prove and are subject to a much more flexible test. All kinds of government regulations that do not physically intrude or confiscate property directly. (government says you can’t build anything on your land for the next 10 years)
takings clause:

regulatory takings definition
economic liberties:

1. Economic impact on the complainant (“too far”)
2. Extent to which the regulation has interfered with investment backed expectations. (Coal case - probably expected a huge return)
3. Character of the governmental action (physical invasion of property is more likely to be seen as a taking then is a general regulation adopted for the public benefit.)
takings clause: Regulatory takings

connoly test/modern test is penn central
economic liberties:

Landowner sued Coal Company for violating state law prohibiting mining under homes. Not physically confiscating the land...but a regulation that affects their ability to use the property.
i. General problem is that all government regulations affect the price of property in some way.
ii. Court says that if the regulation goes to far then it will be a taking. Need to look to the extent of reduction in value...when it reaches a certain point we are more likely to find a taking.
1. Here looks like most of the value of the coal has been taken away by the Penn law. Government is going to have to pay for this loss value of all the coal that could have been mined.
i. Key concept is who should bear the loss of the regulation...if the public as a whole is going to benefit from the cost of the taking then why should the coal mine bear the loss all by themselves...and why shouldn’t the public have to pay.
ii. Dissent à (Brandeis) Co. still owns the property and the effect of the regulation is only to ban one use of the property. Because this wasn’t a complete taking and there are still some possible productive uses...this is not a taking.
takings clause: regulatory takings definition.

Pennsylvania Coal
economic liberties:

State entomologist ordered all red cedar trees within certain vicinity of apple orchards destroyed in order to sop spread of disease that was killing the orchards. Said that once the trees were cut down they could still be used...because once it was dead it could no longer communicate the disease to other trees.
i. Here the state is forcing you to devastate a piece of your property. The court says that the state was justified in this action because there was a greater value to the public in protecting the apple orchards. Court says its okay for the state to make this choice, to prefer the apples over the cedar. Found no taking here.
ii. Reason that in extreme exigent circumstances, the state may chose to destroy one property without paying just compensation in order to save another, so long as the taking is necessary to protect the health, safety, moral or general welfare of the public. When the choice is unavoidable, the exercise of the state’s power does not constitute a taking.
takings clause: regulatory takings.

Miller Case
economic liberties:

Owner of Grand Central Station in NYC claimed a law declaring the station a landmark and thus precluding any building on top of it constituted a regulatory taking.
i. The court knows that there is value and that there is a reason for zoning laws. Not inclined to find a taking just because it interferes somewhat with the value of the building.
ii. The court applies 3 criteria (above- see connnely factors = modern test) and finds that this is not a taking because it does not deprive the station of continuing to make a profit. Their core investment expectation was the use of the terminal.
iii. Dissent à Everyone gets to enjoy Penn Central as it is and that is what everyone is benefiting from that...why should Penn Central have to foot the cost for this benefit to the public (public should have to pay for getting to enjoy the beauty of the building).
takings clause; regulatory takings.

Penn Central Case
economic liberties:

ii. The court applies 3 criteria (above- see connnely factors = modern test) and finds that this is not a taking because it does not deprive the station of continuing to make a profit. Their core investment expectation was the use of the terminal.
takings clause; regulatory takings

Penn Central Test
economic liberties:

State law preventing building on beachfront property precluded landowner from building the homes he had planned on his property. At the time he bought the property there were no restrictions.
i. Court holds that if the regulation wipes out the reasonable economic viable uses of your property then there is a taking. Government regulation that deprives a property owner of all economically beneficial use constitutes a taking for which just compensation must be paid.
takings clause: regulatory takings

Lucas Case
economic liberties:

ii. The fuzzy cases are where it does not deprive you off all value. But here it is an all or nothing test.
iii. How can the state avoid paying compensation, suggested in this case? Argument is that the State can avoid paying compensation only if it can prove that the intended use of the land was not really part of Luca’s title to begin with.
1. Look to existing State law at the time the property is purchased to see if there was some law that would have prevented the person from developing in the way they originally intended anyway...then there will be no taking where just compensation is due.
· Ex. Wanting to build a 50 ft skyscraper: No taking because at time the land was purchased, it couldn’t be used to build a skyscraper.
takings clause: regulatory takings.

Lucas Case
economic liberties:

as general matter zoning laws do not effect a taking of property because most zoning regulations do not deprive a person from all value of the land. Doesn’t meet the categorical standard of depriving of all economical value. There will be a taking, however, if the zoning does not substantially advance a legitimate state interest (needs to be some minimal link between the states interest and the zoning law) or it deprives the owner an economically viable use of the land.
takings clause:

zoning laws
economic liberties:

1. Here the government allows you to proceed but subject to certain conditions. In two recent cases a general rule has emerged:
a. A condition is a taking if the burden imposed is not roughly proportionate to the government’s justification. Functions as a germanous requirement. (Not taking if à Smaller mansion to prevent beach erosion). Would be a taking if à say that you can build there if everyone gets a free night in your casino...not roughly proportionate to the government’s justification.
takings clause: zoning laws.

when do conditions on development affect a regulatory taking
economic liberties:

Concerned about visual access to the beach...so why place a condition on the property that people be able to walk across it. Condition unrelated to the claim justified by the government. There is a taking if the condition utterly fails to further the end advanced as the justification. Unless the permit condition serves the same governmental purposes as the development ban, the building restriction is not a valid regulation of land used but an out and out plan of extortion. Court said the easement was unnecessary for visual access.
takings clause: zoning laws

Nollan Case
economic liberties:

City conditioned building permit for expansion of store on owner’s granting city land for use as a flood plain and building of a public walkway.
i. This differs from a zoning regulation because it only applies to a single parcel of property. Here Dolan is required to deed over a portion of her property over to the city. This is different then mere regulations that leaves property in the property owners hands.
takings clause: zoning laws.

Dolan Case
economic liberties:

ii. Court says there is a test to be applied in situations like this:
1. Essential nexus between state interest and the condition on the permit. Then if this exists then...
2. Condition roughly proportionate to meet the state’s interest.
a. A permit condition is a regulatory taking if the burden on the property owner is greater then the government’s need.
iii. Here a nexus is found between the state interest, harm from flooding, and the requirement that she hand over the property. The court leaves undecided the second part of the question...seems that it would be met given the limited amount of the taking and the purpose that it was going to be used for.
takings clause: zoning laws.

Dolan Case
economic liberties:

Lake Tahoe has become a polluted mess...probably has to do with excessive development around the lake. So a regulation prohibited all development for a period of 32 months. The P’s in this case had purchased property before this moratorium took place, so they can’t do anything with the land until this is lifted.
i. Court says that just because you have been delayed in the development of property doesn’t mean there has been a taking. One argument is that the property will gain back its value once the moratorium is lifted; another argument is that if they were to declare a moratorium a taking then all delay in development would also amount to a taking. Don’t want government to have to pay every time they have to consider and approve plans for development or a change to a current residence/business.
ii. If the regulation is going to be forever then there is a taking (Lucas), but if there is a time limit then the Penn Central test will apply and it would most likely not be found to be a taking.
takings clause: zoning laws.

tahoe sierra preservation council case
economic liberties:

5th amendment prohibits the taking of private property without just compensation.
takings clause: what is property
economic liberties:

1. To determine whether or not a particular item is private property the SC will often look to state law to determine whether or not an item taken is private property.
takings clause: what is property
economic liberties:

State law required attorneys to place money paid to them on behalf of their clients in interest-bearing accounts and then to turn interest over to nonprofit groups that provide legal services. i. Majority- Doesn’t matter that the state created the opportunity, but the traditional rule is that interest follows principle. So as a definitional matter all of the interest belongs to the client, so it is the client’s interest and therefore his/her private property. Narrow case on whether or not it is private property. Concludes that it is, but doesn’t determine whether or not it is a taking when the interest is taken and given to legal charities or what just compensation would be given if it is a taking.
takings clause: what is property
economic liberties:

PUBLIC USE INTERPRETED BROADLY. Limitation on the right of government to take property. If the taking is deemed to be for private use, then the government has to give the property back. Concern underlying this limitation is that the government is not in the business of redistributing wealth, if for private use then the government is redistributing wealth rather than for some public benefit. Public use has been defined quite broadly so it is the only most obscene situations have been determined not for public use.
takings clause: is it for public use
economic liberties:

1. Hawaii Housing Authority v. Midkiff - State agency initiated program that took property from concentrated landowners without compensation and resold it to others in order to dilute number of landowners.
a. Court says this was for public use because that when the legislature acts we should assume that there is a justified reason. The taking of this land must have a rationale relationship to any conceivable public purpose.
b. Government just has to act with a reasonable belief that the taking will benefit the public. = test here
i. This was met here because it confers a benefit on a broad section of the public, and that everyone who is a tenant can benefit. Doesn’t help just one person, but is helping thousand of people à thousands of tenants are receiving the benefits of this action.
takings clause: is it for public use
economic liberties:

Takings clause does not prohibit takings but requires just compensation. It should be measured by the loss to the owner, not by the gain to the taker. Measured by the market value at the time of the taking, government does not have to pay the excess in value as a result of the announcement of the taking. (escalating value of the property after the government takes it does not need to be paid)
takings clause: what is the requirement for just compensation
economic liberties:

2. Brown v. Legal Foundation of Washington – P’s were not entitled to compensation because the net loss was zero here. Pick up on everything left off in Phillips. Even though it is private property and the interest should follow the property, and although a taking occurs, there is no just compensation because there is no net loss and they could not have earned anything anyway.
a. Another issue is the difficulty in figuring out the tiny amounts of interest that should be allocated to which account...this itself would cost the government more...and would defeat the hold purpose of the program. Here this is closer to a possessory taking because it is like taking a small piece of property. Rendered moot by the fact that no just compensation is awarded.
a. Dissent à if the private clients money and the interest follows the property then it is a taking. Here depart from prior analysis in finding a taking but then saying that no just compensation should be awarded
takings clause: what is the requirement for just compensation
equal protection:

No provision in the Federal law that required equal protection, Bowling v. Sharp, said that the 5th amendment due process clause contains an implicit equal protection component. So this created both equal protection for th States and the Federal government.
constitutional provisions concerning equal protection
equal protection:

· The classification is on the face of the law; or
· If the law is facially neutral, there is both a discriminatory intent for the law and a discriminatory impact to the law
a framework for equal protection analysis:

two ways to determine classification
equal protection:

law must be rationally related to achieving a legitimate government purpose. All laws must meet this level of scrutiny.
framework for equal protection analysis: appropriate level of scrutiny.

rational basis
equal protection:

law must be substantially related to achieving an important government purpose. Used mainly in gender discriminating and discrimination against non-marital children. Requires the government to show that the classification is substantially related to an important government interest.
framework for equal protection classification: appropriate level of scrutiny.

intermediate scrutiny
equal protection:

law must be necessary to achieve a compelling government purpose. Used for race and national origin discrimination, and also usually for discrimination against aliens. Burden of proving that the classification was necessary to achieve a compelling state interest. Government action rarely survives strict scrutiny.
framework for equal protection analysis: Appropriate level of scrutiny.

Strict Scrutiny
equal protection

a. Need to look for over and under – inclusiveness. How close or “tight” is the fit between the means chosen and the end goal?
framework for equal protection analysis

does the government action meet the level of scrutiny
equal protection:

1. The Supreme Court has held that when the government has classified citizens with respect to some fundamental right, the Equal Protection Clause may be invoked to invalidate the line drawn.
the protection of fundamental rights under equal protection
equal protection

LAW MUST BE RATIONALLY RELATED TO ACHIEVING A LEGITIMATE GOVERNMENT PURPOSE.
rational basis test
equal protection:
All laws are subject to this. Unless some heightened level of review applies you should always default to this rule. Burden is on the moving/challenging party to prove that it is not rationally related.
rational basis test introduction
equal protection:

Anything that government may permissibly seek to achieve is regarded as a legitimate purpose.
rational basis test:

Does the law have a legitimate Purpose
equal protection:

(rational basis w/ bite) – an equal protection challenge was brought against a popularly ratified amendment to Colorado’s constitution, which made it unlawful for government entities and political subdivisions to explicitly ban discrimination on the basis of sexual orientation. SC found that the purpose behind the amendment was to discriminate against gays and is based on animosity and dislike, and this is not a legitimate purpose.
i. Court seems to be applying a more rigorous form of the rational basis test to invalidate legislation. Government is still not obligated to invoke laws putting sexual orientation in a category with other protected entities, but seems to be paving the way a bit.
rational basis: does the law have a legitimate purpose.

Romer v. Evans
equal protection:

Under rational basis...the actual purpose of the law doesn’t matter. The government will uphold the law if it is used for any conceivable purpose. Burden is on the challenger to prove that all the conceivable purposes behind the law are not legitimate.
rational basis: does it have a legitimate purpose.

must it be the actual purpose or is a conceivable purpose enough?
equal protection:

a. US Railroad Retirement Board v. Fritz – A retired railroad worker filed suit challenging RR Act of 1974, legislation which made the P’s ineligible for certain retirement benefits granted to other workers on the ground that the statute made a distinction disallowed by equal protection. Court held that the rational basis test requires only that there be plausible reasons for the challenged legislation, regardless of the actual reasons behind the law. The rule is particularly applicable in cases such as this, where Congress must draw lines somewhere.
rational basis: does the law have a legitimate purpose.

must it be the actual purpose or is a conceivable purpose enough case law
equal protection:

A law is under-inclusive if not all people who are similarly situated are treated the same under the law or doesn’t apply to all people it should to combat a particular problem.
rational basis test: requirements for a reasonable relationship:

tolerance for underinclusiveness under rational basis review
equal protection:

a. Railway Express agency, Inc. v. NY – a national delivery co. sought to challenge a NYC traffic regulation which prohibited advertisements on the side of vehicles, claiming that the regulation was in violation of equal protection because it did not apply to delivery vehicles which advertised the service itself. The regulation is under-inclusive because it does not regulate as far as it should if the government is really concerned with dealing with the problem.
i. Here the court does not strike the law down because where the government chooses to regulate a particular activity the regulation will not be held invalid simply because it is not applicable to every form of that activity. The more under inclusive a law is the more rational it seems to the court. iii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is underinclusive.
rational basis test: requirement for reasonable relationship:

toleraance for underinsluvieness under rational basis review Case Law
equal protection:

Over-inclusion regulates some people not similarly situated or regulates more than necessary to solve a problem.
rational basis test: requirement for reasonable relationship:

Tolerance for overinlusivness under rational basis review
equal protection;

a. NYC Transit Authority v. Beazer – A group of former and current employees of the NC Transit Authority filed suit challenging the transit authority’s rule disallowing any employees from partaking in methadone treatment. Adopts a blanket rule that none of them can get jobs. An exclusionary scheme which is not directed against any individual or category of person, but rather represents a policy choice made by government, is not unconstitutional so long as it does not circumscribe a class of persons characterized by some unpopular trait or affiliation.
i. Under rational basis review, it is those who challenge the exclusion who bear the burden of proving that drawing he distinction elsewhere would be effective an efficient. Here the authority did not violate equal protection by enacting a blanket exclusion from employment against persons undertaking methadone treatment.
ii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is overinclusive.
rational basis test: requirement for reasonable relationship:

tolerance for overinclusiveness under rational basis review Case Law
equal protection:

a. NYC Transit Authority v. Beazer – A group of former and current employees of the NC Transit Authority filed suit challenging the transit authority’s rule disallowing any employees from partaking in methadone treatment. Adopts a blanket rule that none of them can get jobs. An exclusionary scheme which is not directed against any individual or category of person, but rather represents a policy choice made by government, is not unconstitutional so long as it does not circumscribe a class of persons characterized by some unpopular trait or affiliation.
i. Under rational basis review, it is those who challenge the exclusion who bear the burden of proving that drawing he distinction elsewhere would be effective an efficient. Here the authority did not violate equal protection by enacting a blanket exclusion from employment against persons undertaking methadone treatment.
ii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is overinclusive.
rational basis test: requirement for reasonable relationship:

Cases where laws are deemed Arbitrary and Unreasonable
equal protection:

b. City of Cleburne, Texas v. Cleburne Living Center, Inc. (rational basis w/ bite) – Acting pursuant to municipal zoning ordinance requiring permits for such homes, a Texas city denied a special use permit for the operation of a group home for the mentally retarded. Court holds here that the City’s refusal to grant the P a special use permit is wrong. There was no rational basis for believing that the P’s proposed home would threaten the city’s legitimate interests.
i. Classifications based on mental retardation are neither suspect nor quasi suspect and their validity should be determined pursuant to rational basis review.
1. Factors to determine if Strict Scrutiny applies: (1) immutable characteristic – genetic (2) protected through the political process (3) history of discrimination
ii. Here the court seems to be using the rational basis with a bite. Looks like the court is scrutinizing the law a lot more carefully. (The SC has reaffirmed that RB is the correct std of review when it’s a classification based on a mental disability.
rational basis test: requirement for reasonable relationship.

cases where laws are deemed arbitrary and unreasonable
equal protection:

Slavery was actually protected by the Constitution.
classification based on race and national origin:

Race discrimination and slavery before hte 13th and 14th amendment
equal protection:

(overturned!!!) – After being taken by him owner to Illinois, a free-state under the Missouri Compromise, a slave sought to prevent his extradition to Missouri, a slave state, by the administrator of the slave owner’s estate.
a. Court found that the word “citizen” as used by the Constitution, does not include slaves. In fact, at the time the Constitution was drafted, slaves were considered a subordinate and inferior class of beings.
b. The effect of the Missouri Compromise is to affect a taking without just compensation, so because the MC has this effect it is unconstitutional. [Strong framer’s intent to the opinion...this case demonstrates that originalism doesn’t necessarily lead to judicial restraint...went far to determine a case of jurisdiction]
classification based on race and national origin: Race discrimination and slavery before the 13th and 14th amendment:

Dred Scott case
equal protection:

1. The 14th amendment overrules the Dred Scott decision. So now if you are a black person you are considered a citizen and can sue in diversity. The 14th amendment also contains the Equal Protection clause which is to maintain legal equality between the races.
classifications based on race and national origin:

Strict Scrutiny for discrimination based on race and national origin.
equal protection:

2. The burden is on the government to show that the classification is necessary to serve a compelling state interest.
classification based on race and national origin:

strict scrutiny for discrimination based on race and national origin
equal protection:

a. The history of the 14th amendment shows that its purpose was to protect blacks and newly emancipated slaves.
b. The fear of racial prejudice and racial stereotypes.
c. Immutable characteristic – unfair to discriminate against someone on a characteristic they can’t change.
d. History of Racism – want to be careful about allowing racial classification Is Strict Scrutiny enough?
e. Why not say that government should always be colorblind and that race can never be used. Because there are cases where we want to take race into account – also want to remedy past discrimination.
classification based on race and national origin: Strict Scrutiny for discrimination based on race and national origin.

Why a rigourous standard is used
equal protection:
i. Strauder – limited jury service to white male persons who are 21 and citizens of the State. Court declared the law unconstitutional because it expressly singled out and disadvantaged blacks.
classification based on race and national origin: proving the existence of a race or national origin classification: Facially discriminatory laws.


Racial Classificaion burdening minorities - singling them out for discrimination
equal protection:

ii. Korematsu v. US – facially discriminatory law, strict scrutiny applied and found to pass it...the only case where this happened. The first time a danger in society was based on a group’s characteristics rather than individual conduct. Majority said that that this law was necessary, because it is too hard to go and investigate each person to determine their loyalty, so determines this law is necessary to serve the state interest.
classification based on race and national origin: proving the existence of a race or national origin:

Racial classificaiton burdening minorities - singling them out for discrimination
equal protection:

laws that use race but apply equally to both blacks and whites (anti-miscegenation – preventing interracial marriage, criminalized for both races).
classification based on race and national origin: proving the existence of a race or a national origin.

Racial classification burdening both whites and minorities
equal protection:

An interracial couple appealed their convictions for breaking Virginia’s miscegenation (interracial marriage) statute. Virginia told them to get out of town and not to come back for 25 years. Legislation which restricts the freedom to marry solely on the basis of racial classification violates the Equal Protection Clause of the 14th amendment. The State of Virginia has no legitimate interest in enforcing its ban on interracial marriages. Crt says primary purpose was to preserve white supremecy/ hostility towards blacks.
classification based on race and national origin: proving the existence of a race or national origin.

racial classification burdening both whites and minorities: Loving Case
equal protection:

City closed swimming pools so that whites and blacks could not swim together. Court upheld the law and said that discriminatory motive is not enough to invalidate a law.
1. How do you reconcile this with Loving? Loving involved marriage, while this case involves swimming, the distinction has constitutional significance, because marriage is a fundamental right, while swimming is not a fundamental right.
classification based on race and national origin: proving the existence of a race or national origin:

racial classification burdening both whites and minorities: Palmer CAse
equal protection:

husband sought custody of child, because ex-wife married a black man. TC gave the husband custody and said that the child would be better off with dad because of the racism the child might have felt. SC overturned and said that the discrimination of others cannot be the basis for such a decision. Court applies strict scrutiny when using race for this decision.
racial classification burdening both whites and minorities: Palmer v. Sidoti Case
equal protection:

(overruled!!!) – A man asserted an EPC against his conviction for violating a Louisiana statute which required railway companies to maintain separate accommodations for whites and blacks. Plessy’s argument is that you are stamping blacks with inferiority...they are not good enough to ride in the same area as whites. Court upholds Plessy’s conviction for sitting in the white area, because the Constitution only mandates equality and as long as they are equal this is all that the Constitution commands.
classification based on race and national origin: proving the existence of a race or national origin.

laws requiring seperation of races, Plessy v. Ferguson
equal protection:

SC held that it was unconstitutional for Missouri to refuse to admit blacks to its law school, but instead to pay for blacks to attend out of state law schools.
classification based on race and national origin: proving the existence of a race or national origin:

laws requiring seperation of the races: Gaines Case
equal protection:

SC for the first time ordered that a white university admit a black student. The University of Texas Law School had denied Sweatt admission on the ground that he could attend the recently created Prairie View Law School – which was very poor.
classification based on race and national origin: proving the existence of a race or national origin:

laws requireing seperation of the races: Sweatt Case
equal protection:

A law is under-inclusive if not all people who are similarly situated are treated the same under the law or doesn’t apply to all people it should to combat a particular problem.
rational basis test: requirements for a reasonable relationship:

tolerance for underinclusiveness under rational basis review
equal protection:

a. Railway Express agency, Inc. v. NY – a national delivery co. sought to challenge a NYC traffic regulation which prohibited advertisements on the side of vehicles, claiming that the regulation was in violation of equal protection because it did not apply to delivery vehicles which advertised the service itself. The regulation is under-inclusive because it does not regulate as far as it should if the government is really concerned with dealing with the problem.
i. Here the court does not strike the law down because where the government chooses to regulate a particular activity the regulation will not be held invalid simply because it is not applicable to every form of that activity. The more under inclusive a law is the more rational it seems to the court. iii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is underinclusive.
rational basis test: requirement for reasonable relationship:

toleraance for underinsluvieness under rational basis review Case Law
equal protection:

Over-inclusion regulates some people not similarly situated or regulates more than necessary to solve a problem.
rational basis test: requirement for reasonable relationship:

Tolerance for overinlusivness under rational basis review
equal protection;

a. NYC Transit Authority v. Beazer – A group of former and current employees of the NC Transit Authority filed suit challenging the transit authority’s rule disallowing any employees from partaking in methadone treatment. Adopts a blanket rule that none of them can get jobs. An exclusionary scheme which is not directed against any individual or category of person, but rather represents a policy choice made by government, is not unconstitutional so long as it does not circumscribe a class of persons characterized by some unpopular trait or affiliation.
i. Under rational basis review, it is those who challenge the exclusion who bear the burden of proving that drawing he distinction elsewhere would be effective an efficient. Here the authority did not violate equal protection by enacting a blanket exclusion from employment against persons undertaking methadone treatment.
ii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is overinclusive.
rational basis test: requirement for reasonable relationship:

tolerance for overinclusiveness under rational basis review Case Law
equal protection:

a. NYC Transit Authority v. Beazer – A group of former and current employees of the NC Transit Authority filed suit challenging the transit authority’s rule disallowing any employees from partaking in methadone treatment. Adopts a blanket rule that none of them can get jobs. An exclusionary scheme which is not directed against any individual or category of person, but rather represents a policy choice made by government, is not unconstitutional so long as it does not circumscribe a class of persons characterized by some unpopular trait or affiliation.
i. Under rational basis review, it is those who challenge the exclusion who bear the burden of proving that drawing he distinction elsewhere would be effective an efficient. Here the authority did not violate equal protection by enacting a blanket exclusion from employment against persons undertaking methadone treatment.
ii. Regulation will not fail equal protection scrutiny (rational basis) merely because it is overinclusive.
rational basis test: requirement for reasonable relationship:

Cases where laws are deemed Arbitrary and Unreasonable
equal protection:

b. City of Cleburne, Texas v. Cleburne Living Center, Inc. (rational basis w/ bite) – Acting pursuant to municipal zoning ordinance requiring permits for such homes, a Texas city denied a special use permit for the operation of a group home for the mentally retarded. Court holds here that the City’s refusal to grant the P a special use permit is wrong. There was no rational basis for believing that the P’s proposed home would threaten the city’s legitimate interests.
i. Classifications based on mental retardation are neither suspect nor quasi suspect and their validity should be determined pursuant to rational basis review.
1. Factors to determine if Strict Scrutiny applies: (1) immutable characteristic – genetic (2) protected through the political process (3) history of discrimination
ii. Here the court seems to be using the rational basis with a bite. Looks like the court is scrutinizing the law a lot more carefully. (The SC has reaffirmed that RB is the correct std of review when it’s a classification based on a mental disability.
rational basis test: requirement for reasonable relationship.

cases where laws are deemed arbitrary and unreasonable
equal protection:

Slavery was actually protected by the Constitution.
classification based on race and national origin:

Race discrimination and slavery before hte 13th and 14th amendment
equal protection:

(overturned!!!) – After being taken by him owner to Illinois, a free-state under the Missouri Compromise, a slave sought to prevent his extradition to Missouri, a slave state, by the administrator of the slave owner’s estate.
a. Court found that the word “citizen” as used by the Constitution, does not include slaves. In fact, at the time the Constitution was drafted, slaves were considered a subordinate and inferior class of beings.
b. The effect of the Missouri Compromise is to affect a taking without just compensation, so because the MC has this effect it is unconstitutional. [Strong framer’s intent to the opinion...this case demonstrates that originalism doesn’t necessarily lead to judicial restraint...went far to determine a case of jurisdiction]
classification based on race and national origin: Race discrimination and slavery before the 13th and 14th amendment:

Dred Scott case
equal protection:

1. The 14th amendment overrules the Dred Scott decision. So now if you are a black person you are considered a citizen and can sue in diversity. The 14th amendment also contains the Equal Protection clause which is to maintain legal equality between the races.
classifications based on race and national origin:

Strict Scrutiny for discrimination based on race and national origin.
equal protection:

2. The burden is on the government to show that the classification is necessary to serve a compelling state interest.
classification based on race and national origin:

strict scrutiny for discrimination based on race and national origin
equal protection:

a. The history of the 14th amendment shows that its purpose was to protect blacks and newly emancipated slaves.
b. The fear of racial prejudice and racial stereotypes.
c. Immutable characteristic – unfair to discriminate against someone on a characteristic they can’t change.
d. History of Racism – want to be careful about allowing racial classification Is Strict Scrutiny enough?
e. Why not say that government should always be colorblind and that race can never be used. Because there are cases where we want to take race into account – also want to remedy past discrimination.
strict scrutiny for discrimination based on race and national origin ::

Reasons for use of rigourous standard
equal protection;

i. Strauder – limited jury service to white male persons who are 21 and citizens of the State. Court declared the law unconstitutional because it expressly singled out and disadvantaged blacks.
proving the existence of a race or national origin classificaiton: facially Discriminatory Laws

Racial Classifications burdening minorities
equal protection:

ii. Korematsu v. US – facially discriminatory law, strict scrutiny applied and found to pass it...the only case where this happened. The first time a danger in society was based on a group’s characteristics rather than individual conduct. Majority said that that this law was necessary, because it is too hard to go and investigate each person to determine their loyalty, so determines this law is necessary to serve the state interest.
proving the existence of a rac or national origin classification: Facially Discriminatory Laws:

Racial Classification burdening minorities
equal protection;

laws that use race but apply equally to both blacks and whites (anti-miscegenation – preventing interracial marriage, criminalized for both races).
facially discriminatory:

racial classifications burdening both whites and minorities
equal protection;

An interracial couple appealed their convictions for breaking Virginia’s miscegenation (interracial marriage) statute. Virginia told them to get out of town and not to come back for 25 years. Legislation which restricts the freedom to marry solely on the basis of racial classification violates the Equal Protection Clause of the 14th amendment. The State of Virginia has no legitimate interest in enforcing its ban on interracial marriages. Crt says primary purpose was to preserve white supremecy/ hostility towards blacks.
facially discriminatory:

racial classification burdening both whites and minorities: Loving Case
equal protetion:

City closed swimming pools so that whites and blacks could not swim together. Court upheld the law and said that discriminatory motive is not enough to invalidate a law.
1. How do you reconcile this with Loving? Loving involved marriage, while this case involves swimming, the distinction has constitutional significance, because marriage is a fundamental right, while swimming is not a fundamental right.
facially discriminatory:

Racial classifications burdening both whites and minorities: Palmer Case
equal protection;

husband sought custody of child, because ex-wife married a black man. TC gave the husband custody and said that the child would be better off with dad because of the racism the child might have felt. SC overturned and said that the discrimination of others cannot be the basis for such a decision. Court applies strict scrutiny when using race for this decision.
racial discriminatory laws:

racial classifications burdening both whites and minorities: Palmer v. Sidoti
equal protection:

(overruled!!!) – A man asserted an EPC against his conviction for violating a Louisiana statute which required railway companies to maintain separate accommodations for whites and blacks. Plessy’s argument is that you are stamping blacks with inferiority...they are not good enough to ride in the same area as whites. Court upholds Plessy’s conviction for sitting in the white area, because the Constitution only mandates equality and as long as they are equal this is all that the Constitution commands.
facially discriminatory laws:

laws requiring seperation of the races: Plessy v. Ferguson
equal protection:

ii. Gaines v. Canada – SC held that it was unconstitutional for Missouri to refuse to admit blacks to its law school, but instead to pay for blacks to attend out of state law schools.
iii. Sweatt v. Painter – SC for the first time ordered that a white university admit a black student. The University of Texas Law School had denied Sweatt admission on the ground that he could attend the recently created Prairie View Law School – which was very poor.
facially discriminatory laws:

laws requiing seperation of the races case law
equal protection;

SC held that once blacks were admitted to a previously all-white school, the university could not force them to sit in segregated areas of classrooms, libraries, and cafeterias. Court ruled that such segregation hindered the student’s ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.
facially discriminatory laws:

laws requiring seperation of the races: McLaurin
equal protection:

Black school children in four states challenged the denial of their admission to public schools reserved solely for whites. The cases came to the SC on separate appeals, but were consolidated by the Court, as they all presented the same issue – the legality of racial segregation in public schools.
a. States may not segregate public schools on the basis of race. Today public education is perhaps the most important function of state and local governments. One cannot be expected to succeed in today’s society if denied the opportunity of an education. We believe that segregation solely on the basis of race deprives minority children of the right to an equal education, with regard to the condition of the facilities provided to them.
b. Segregation has a harmful impact on school-aged children. It gives children a feeling of inferiority, which in turn, affects their motivation to learn.
c. Court concludes that the doctrine of separate but equal is wholly inapplicable in the area of public education. Separate schools are inherently unequal. Thus the holding of Plessy v. Ferguson [the 14th does not withhold from states the power to permit or require the separation of races] is overruled.
i. Two Problems: (1) Reliance on scientific data (footnote 11), wasn’t right because the data was flawed – does this undercut the opinion? (2) Just the overall idea of relying on scientific data for opinions.
facially discriminatory laws: Laws requiring seperation of the races

Initial Attack on Seperate But Equal: Brown v. Board of Education
equal protection:

SC declared segregation of busses unconstitutional. This technically overrules Plessy. This started the trend finding segregation in many areas unconstitutional.
facially discriminatory laws:

the invaldiation of segragation in other contexts: Gale v. Browder
equal protection:
most laws now are facially neutral but do have a discriminatory impact. Question is whether rational basis should be applied because race is not mentioned. RULE: If a law is facially neutral with respect to race the plaintiff must prove both discriminatory purpose and discriminatory impact. Arguments for impact only à very hard to prove discriminatory purpose – latent racism is the real discriminatory purpose and the impact that comes from that ought to be enough. Arguments for purpose à law only requires equality of protection not equality of results/outcome.
classifications based on race and origin:

Facially Neutral Laws with a Discriminatory impact or with Discriminatory Administratoin
equal protection:
i. Washington v. Davis – Two black police officers and two black applicants to the District of Colombia’s police department sought to challenge the department’s application process as discriminatory on the basis of race on several grounds, including that certain written tests had a discriminatory impact on blacks.
1. Here even though there is a discriminatory impact there is no proof that the law or act has a discriminatory purpose. Therefore this would be evaluated under rational basis review.
classification based on race and origin: facially neutral laws with a discriminatory impact or with discimrinatory administration:

The requirement for proof of a discriminatory purpose case law
equal protection:

ii. McCleskey v. Kemp – A black man convicted of murder appealed his death sentence on equal protection grounds, claiming that the state administered the death penalty in a discriminatory manner against blacks.
1. Purposeful discrimination means something more than knowledge or awareness of a particular outcome. P has to show that the legislature adopted the death penalty to further some discriminatory purpose. Impact is there but not purpose.
classifications based on race and origin:

the requirement for proof of a discriminatory purpose
equal protection:

iii. City of Mobile v. Bolden – A group of black citizens of Mobile, Alabama filed suit in federal district court claiming that the city’s commission form of government was maintained in violation of the 15th amendment’s prohibition against race-based interference with the right to vote.
1. Even though there was a discriminatory impact, the discriminatory effect was not enough and there was no intent proven to keep black’s off of the city council.
a. Note: Many statutes (Title 2 Civil Rights Act) say that discriminatory effect is sufficient. Statutes often make it clear that discriminatory effect is enough to prove a statutory right to protection.
classifications based on race and origin: facially neutral laws with a with a discriminatory impact:

the rquiremenet for proof of a discriminatory purpose case law
equal protection:

i. Palmer v. Thompson – A group of black citizens filed suit against the city of Jackson, Mississippi challenging the city councils decision to close public pools rather than operate them on a segregated basis as a violation of EP. SC denied relief because it does not violate EP merely because it was motivated by a discriminatory purpose.
1. Questions to Consider = (1) SC might have been ignorant of the discriminatory impact that the closure actually had...was impact in the since that whites had alternative to community pools while blacks did not. (2) If the purpose is to prevent the government from acting with a discriminatory purpose...then why isn’t the cities purpose sufficient?
classiication based on race and origin: facially neutral laws with a discriminatory impace.

Strong evidence of discriminatory purpose but no evidecen of discrimiantory impact.
equal protection:

Intend the consequences that are the foreseeable results of your actions.
facially neutral:

How is a discriminatory purpose proven? Tort Law
equal protection:

positive desire to bring about consequences. Court adopts this definition.
facially neutral:

how is a discriminatory purpose proven? criminal law
equal protection:

1. Personnel Administrator of MA v. Feeney Village of Arlington Heights v. Metropolitan Housing Development Corp. – A female state employee who was passed for promotion by several less qualified male applicants who had served in the armed forces, filed an equal protection suit challenging the state personnel office’s stated preference for veterans. Awareness of discriminatory impact of certain legislation does not suggest that such legislation was enacted for a discriminatory purpose.
facially neutral: how is a discriminatory purpose proven?

Criminal Law Case law
equal protection:

1. Village of Arlington Heights v. Metropolitan Housing Development Corp. – a real estate developer filed suit in federal court alleging that the decision of the D municipality to deny a rezoning request of low and moderate income housing was racially discriminatory and in violation of the 14th amendment.
a. SC describes way that discriminatory purpose might be proven:
i. Direct or circumstantial evidence of intent (rare)
ii. Clear pattern of action that takes place on grounds that can’t be explained on other grounds then race.
iii. Historical background of the decision
iv. Legislative administrative history
b. Here the court said that there was nothing about the sequence of events which raised suspicion. The village has been, and remains, committed to single family homes as the dominant residential use of land.
facially neutral: How is a discriminatory purpose proven?

What kind of evidence is sufficient for discriminatory purpose case law.
equal protetion:

1. P must first make a prima facie showing of discriminatory purpose.
2. The burden then shifts to the D to show that no discriminatory motive existed.
a. If the court concludes that both discriminatory purpose and effect have been shown then strict scrutiny will be applied and the law will most likely be struck down.
b. If the court finds discriminatory purpose has failed to be proven the only rational basis review is applied.
facially neutral:

Effect of showing discriminatory purpose
equal protection:

a. Brown v. Board of Education (revisited) – Court said remedies should proceed quickly and without delay. Federal District Courts are to employee their full equitable power to ensure and oversee the full implementation of the constitutional principles announced therein.
Remedies:

problem with remedies
equal protection:

a. This decision resulted in a massive resistance to desegregation. The Southern states claimed that States rights allowed them to resist on this encroachment. Came to ahead in Arkansas where President Eisenhower had to bring in Federal troops to help in desegregating a school. Cooper reaffirmed Marbury in showing that the Federal government rules and the States cannot beat desegregation by hiding behind states rights.
remedies:

massive resistence
equal protection:

a. Swann v. Charlotte-Mecklenburg Board of Education – Court upheld certain methods of desegregation – okay to use proportionate percentages as starting point to desegregation, extra scrutiny of race schools, gerrymandered attendance zones or districts, busing (if not to burdensome).
i. Despite these powers the schools still remain vastly desegregated (whites live in suburbia and blacks live in urban centers).
remedies:

judicial power to impose remeedies in school desegragation cases
equal protection:

b. Milliken v. Bradley – A federal district court in Michigan ordered a multidistrict, area-wide remedy to address the racial segregation in only one of the 53 school districts in the metropolitan Detroit area. So while Detroit was heavily segregated there wasn’t evidence of intentional segregation in the metropolitan area, so the other districts couldn’t be involved in the remedy. The effect of this case is to make it impossible to desegregate urban city areas. Without an inter-district remedy you really can’t achieve desegregation.
remedies:

judicial power to impose remedies in school desegregation cases
equal protection:

a. Board of Education of Okalahoma City Pubic Schools v. Dowell – Desegregation order should be lifted after local authorities have made a sufficient showing of constitutional compliance with the court order. Unless you can prove deliberate state action to segregate then the past orders will be lifted.
remedies:

when should federal desegregation remedies end
equal protection:

b. Freeman v. Pitts – SC held that a federal court desegregation order should end when it is complied with, even if other desegregation orders for the same school system remain in place.
c. Missouri v. Jenkins – SC ordered an end to school desegregation order for the Kansas City schools.
remedies:

when should federal desegregation remedies end
equal protection:

a white man denied admission to medical school at the University of CA Davis challenged the school’s policy of maintaining separate application processes for whites and minority students. Court says that Davis’s reasons are not legitimate and not of them pass strict scrutiny. The strict quota (is unconstitutional) is struck down and race can only be used as a plus and not as a hard break line or quota.
i. University of Davis argues that strict scrutiny should not be applied here because whites are not a suspect class, and if they choose to disadvantage themselves then that is okay...because they are the majority in this country. Davis says the interests for this system are counter societal discrimination, legitimate interest in ensuring a certain percentage of students of certain ethnic and racial origins, need to serve disadvantage communities.
ii. Powell says that strict scrutiny applies to all racial classifications so it needs to be applied in this instance. Says that it is hard to tell the difference between a benign classification and an invidious one – could argue that this is designed to help minorities but on the other hand you can say it is stereotyping minorities (can’t compete on a level playing filed).
racial classificaiton benefiting minorities: the initial rulings on affirmative action:

Regents of Univesity of CA v. Bakke
equal protection:

a. Fullilove – Court approved a program where 10% of public work funds be set aside for minority owned businesses. Court said this was a remedy for past discrimination. Congress had adopted this program, and because they are given the power to enforce under the 14th amendment, the court seemed more deferential.
b. US v. Paradise – SC upheld a federal court order, which was designed to remedy proven intentional discrimination by the Alabama Department of Public Safety, and mandated that a qualified black had to be hired or promoted every time a white was hired or promoted.
c. Wygant – SC invalidated a city’s attempt to achieve faculty diversity in its schools by laying off white teachers with more seniority than black teachers who were retained.
racial classification benefiting minorities:

Later decisions seemed to depend on the context of affirmative action
equal protection:

After losing its bid on a public project due to its inability to procure satisfactory bids from minority subcontractors, a construction company filed suit against the city of Richmond, Virginia to challenge that city’s ordinance requiring that 30% of subcontractors on public projects be owned by minorities.
i. A city may use its spending powers to remedy private discrimination if it identifies that discrimination with the particularity required by the 14th amendment. If local governments wish to remedy discrimination with the use of affirmative action plans they must prove that such plans are necessary and that they are addressing actual past discrimination.
ii. Arguments for strict scrutiny à hard to tell the difference between benign and invidious stereotypes. Problem with whether the law is narrowly tailored. Courts have problems with quotas. Very hard to prove that race was a deciding factor in one way or another.
iii. Court firmly adopts strict scrutiny after this case.
racial classification benefiting minorities: Affirmative ACtion:

the emergence of strict scrutiny
equal protection:

b. Metro Broadcasting – SC held that congressionally approved affirmative action programs only need to meet intermediate scrutiny. Upheld FCC policies that gave a preference to minority owned business in broadcast licensing.
racial classification benefiting minorities(affirmative action). The emergence of strict scrutiny
equal protection:

c. Adarand Constructors, Inc. V. Pena – A highway construction company filed suit against the federal government challenging the Dept. of Transportation’s policy favoring minority subcontractors as a violation of equal protection under the Due Process Clause of the 5th amendment.
i. Court says that all racial classifications, imposed by whatever federal, state or local government, must be analyzed by a reviewing court under strict scrutiny.
1. This overturns Metro Broadcasting, both federal and state racial classifications must be narrowly tailored to serve a compelling governmental interest, which may include the need to obviate the effects of prior discrimination.
racial classification benefiting minorities:

the emergence of strict scrutiny as the test
equal protection:

d. Grutter v. Bollinger – Petitioner is a white Michigan resident who applied to the Law School in 1996 with a 3.8 grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. Here race was said to be considered as a soft variable along with other variables. Court here approves races as a “plus” as long as it isn’t a quota, and individuals are looked at individually. (Court also looks at a time limit for programs, race shouldn’t be used in upcoming years)
i. Court still accepts that diversity is a compelling state interest, but the crucial issue is the narrow tailoring...because the system has to be narrowly tailored to the compelling state interest.
racial classification benefiting minorities:

the emergence of strict scrutiny as a test
equal protection:

e. Gratz v. Bollinger – Need to decide whether the University of Michigan’s use of racial preferences in undergraduate admissions violates the EPC of the 14th amendment. The policy being challenged was the practice of giving minorities 20 points added to their score, regardless to whether the minority fell into a category that would contribute to the diversity of the school. Court held that this system was not narrowly tailored because it made race the decisive factor in the process.
i. Criticism here seems to be the mechanical way they admit everyone, giving too many fee points away to everyone. Court concludes that even though diversity remains a compelling state interest, the system here isn’t narrowly tailored and the means to the end doesn’t work.
racial classificaiton benefiting minorities:

the emergence of strict scrutiny as a test
equal protection:

a. Complex issue because state legislators are given a lot of discretion in drawing district lines. If you can group or disperse people along political lines (republican/democrat), why can’t you do it along racial lines?
benefiting minorities:

drawing election districts to increase minority representation
equal protection:

i. Grouping à drawing wide lines to group whites together
ii. Dispersion à small chunk of each of the blacks which is not enough to overcome the white vote.
1. The use of race in drawing electoral districts must meet strict scrutiny. Racial classifications that help minorities in jobs or schools, disadvantage whites who lose jobs or seats in a school because of affirmative action, in drawing of racial lines the whites don’t lose the vote.
2. Two ways to determine whether race was used in drawing district lines:
a. Does the district itself have a bizarre shape?
i. Raises the presumption that race was used in dividing the district.
b. If it can be shown that race was the predominant factor in drawing the district lines.
i. Eaisly case – SC reversed the finding that race was used in drawing the district lines, burden was not met in proving that race was a predominant factor in the drawing, felt that the political decision was the primary factor in the way the district was drawn.
benefiting minorities:

drawing election districts to increase minority representatoin
Equal Protection - Gender Classification:

the law has to be substantially related to an important state interest.
Emergence of intermediate scrutiny
equal protection: gender classification

SC invalidated a gender classification but the Court profess to apply only rational basis review. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the EPC.
emergence of intermediate scrutiny: Reed Case
equal protection: gender classification

A female lieutenant in the US Air Force filed suit against the Armed Forces claiming that the statute creating the presumption that the wives of servicemen were dependent for the purpose of obtaining increased living allowances but requiring servicewomen to prove their husbands were dependent for such purposes was a violation of equal protection under the 5th amendment. SC said that gender-based classifications are inherently suspect and must be subjected to strict scrutiny.
i. Sex is an immutable characteristic, the imposition of burdens on members of a particular sex goes against our notion of individual responsibility.
emergence of intermediate scrutiny: Frontiero Case
equal protection: gender classification

c. Stanton v. Stanton – Court declared unconstitutional a Utah law that required that parents support their female children until age 18, but men until 21. Court said that the statute was based on old notions about social roles. The court decided without holding as to the level of scrutiny.
emergence of intermediate scrutiny; CAse law
equal protection: gender classification
d. Craig v. Boren – A male between the ages of 18 and 21 and licensed vendor of 3.2% beer filed an action in federal district court challenging the constitutionality of Oklahoma statutes prohibiting the sale of non-intoxication 3.2% beer to males under the age of 21 and to females under the age of 18. The justification for the statute was based on statistical data that men are far more likely to get drunk, arrested, drink and drive, than women of the same age.
i. Court settles on a test of intermediate scrutiny. SC said that the statistics were not strong enough to support such a classification. Also didn’t have proof that the 3.2 beer was causing the problem. Not a close enough fit between the beer and the problems caused.
emmergence of intermediate scrutiny: case law
equal protection; gender classification:

e. US v. Virginia – A female applicant seeking admission to the all-male Virginia Military Institute, a public university, filed a claim against the state of Virginia challenging the school’s policy against admitting women. The state of Virginia proposed a parallel program for women at Mary Baldwin college.
i. SC held that the state’s must proffer an exceedingly persuasive justification (language appears more stringent than intermediate scrutiny) for gender classifications which categorically exclude women form educational opportunities.
ii. When you are offering a benign reason for the classification – it must be the actual state purpose behind the classification.
intermediate scrutiny.

U.S. v. Virginia
equal protection; gender classification:

a. Maybe strict scrutiny because women are underrepresented in the political process even though they are more then 50% of the population. Maybe Intermediate because there are biological differences that do exist, and strict scrutiny might make it difficult to establish an all women’s hockey team, also much harder to sustain affirmative action for women under strict scrutiny.
should intermediate scrutiny be used
equal protection: gender classification.

gender classification on the face of the law

Facially neutral law
two ways to prove the existence of gender classification
equal protection: gender classificatoin.

need proof of discriminatory impact and discriminatory purpose behind it.
proving the existence of a gender classification:

Facially neutral law
equal protection: gender classification:
i. Geduldig v. Aiello [by not recognizing gender differences are we then discriminating against genders?] A group of women filed a claim against the state of CA challenging its disability insurance system on the ground that the denial of benefits for pregnancy related disability worked a discrimination against women in violation of equal protection.
1. Discrimination on the basis of pregnancy is not in itself a violation of EP. The classification in this case is challenged on the basis of the under inclusiveness of the set of risks covered by the disability program. Court held that a State may regulate one step at a time. The program classifies citizens into two groups: pregnant women and non-pregnant persons. The first of these groups is composed entirely of women, the second is combination of both sexes. Thus, the benefits provided accrue to both sexes.
2. DISSENT à If effect, one set of rules is applicable to women and another to men, and this constitutes sex discrimination.
c. This case is no longer good law as a statutory matter. Congress passed the Pregnancy Discrimination Act which overrules this holding, but is still good law under case law.
proving the existence of a gneder classification

facially neutral law case law
equal protection: gender classification:

1. Statutes that benefit women that reinforce stereotypes about women’s role in society will not be permitted.
gender classification benefiting women
equal protection: gender classifiation:

a. Frontiero – law reinforced gender stereotypes – women are more likely to be dependent on husband then vice versa. If reinforcing stereotype then the court will strike it down.
b. Orr v. Orr – a man in a divorce proceeding sought to challenge an Alabama statute which provided that husbands, but not wives, could be required to pay alimony. Court said that a state may not enact a statute requiring only men to pay alimony upon divorce.
i. State argued that this statute purpose was to help compensate women for past discrimination during marriage, which has left them unprepared to fend for themselves after marriage. Court said that using sex as a proxy for need does not substantially further this objective.
gender classification benefiting women case law
equal protection: gender classification.

c. Mississippi University for Women v. Hogan – A male applicant was denied admission to an all-female state-sponsored nursing school, he sought to challenge the school’s exclusion of men. Court does not think this policy seeks to remedy past discrimination, but perpetuate the stereotyped view of nursing as a women’s job.
i. Under intermediate scrutiny the court says this it will not accept the states claimed purpose for the classification unless it is the actual purpose for the classification. Here there is no important governmental interest in keeping the doors of the school closed to men.
d. What about single sex classrooms? Would these classifications perpetuate stereotypes. Some cases the court has said that if something appears to rest on a role stereotype it still might be upheld.
gender classificaiton benefiting women case law
equal protection: gender classification.

2. Statutes designed to remedy past discrimination will be permitted (generally upheld)
gender classification benefiting women
equal protection: gender classification.

a. Michael M. v. Superior Court of Sonoma County – a 17 year old male sought to challenge his conviction for the statutory rape of a 16 year old female on the ground that the statute under which he was convicted violated EP because it was only applicable to men.
i. Court said that were going to look to the actual purpose of the law, which the state argued was the prevention of teenage pregnancy. Court accepts this argument and says that there is significant merit to the state’s assertion that a gender-neutral statute would not serve as adequately because females may be less likely to report violations if they are subject to prosecution.
1. Pregnancy carries a much larger burden on women, and therefore there is less of a risk for men engaged in such activity.
gender classiciation benefiting women. Statutes designed to remedy past discrimination will be permitted
equal protection; gender classification:

b. Rostken v. Goldberg – An EP challenge was brought against the Military Selective Service Act which requires only men between the ages of 18 and 26 to register for possible eventual conscription into the Armed Services. Court says that Congress does not violate EP by authorizing the president to require only males to register for selective service. c. Schlesinger v. Ballard – Court upheld a Navy regulation that required the discharge of male officers who had gone 9 years without a promotion, but allowed women to remain 13 years without a promotion. Court decided that this was constitutional because men had more opportunities for promotion than women.
d. Califano v. Webster – An EP claim was brought against the federal government to challenge provisions of the Social Security Act that allowed women to exclude three more lower earning years in the computation of the retirement benefits.
i. Reduction of the disparity in economic condition between men and women caused by the long history of discrimination is a governmental interest sufficiently important to justify a gender based classification. Insurance benefits are based on past earnings, which occurred in an environment hostile to women in the workplace. Thus the statute directly remedies prior discrimination.
gender classification benefiting women:

Statutes designed to remedy past discrimination will be permitted
equal protection: gender classification

a. Nguyen v. Immigration and Naturalization Service – differential treatment of children based on whether your mother or your father is a citizen. When your dad is a citizen there are more hurdles to cross then if your mom is a citizen.
i. The state interests here are the formation of relationships à need a biological parent/child relationship. It is harder to prove a father/child relationship then there is with a mother/child relationship. A birth itself establishes a link that cannot be determined for a man.
ii. Not based on any stereotypes it is based on real biological differences between men and women at a birth. Court here is referring more to rational basis review then the required intermediate scrutiny.
gender clssification benefiting women:

gender classification that benefit women due to biological differences and benefit women will genderally be permitted
equal protection; alienage classification:
Discrimination against non-citizens are generally prohibited under the EPC. The reason for this is because the text of the clause says that we need to, “no person should be denied protection.” Due process and EP apply to all persons and this is why alienage classifications are subject to strict scrutiny.
alienage classification
equal protection Alienage Classifications:
1. Graham v. Richardson – a resident alien living in Arizona sought to challenge a state law which prohibited resident aliens who had lived in the state less than 15 years from receiving welfare benefits. A state’s desire to preserve limited welfare benefits for its own citizens is inadequate to justify the exclusion of resident aliens from receiving a portion of those benefits.
a. Classifications based on alienage are inherently suspect and subject to strict scrutiny, for aliens are a prime example of a discrete and insular minority for which heightened scrutiny is appropriate. (footnote 4)
b. Political process does not protect them on their own so the legislation has to set in to help. Aliens are contributing to the tax base and should be able to claim some of the benefits.
2. In re Griffiths – don’t have to be a US citizen to be admitted to a Bar (practicing law) in any state.
strict scrutiny as the general rule
equal protection; alienage classification

not allowing people to vote who are not citizens, excluding citizens of other nations from running for Governor)
three exceptions to this general rule:

rationale basis for self-government or participation in the democratic process
equal protection: alienage classification

a. Foley v. Connelie – A resident alien sought to challenge the denial of his admission to a state police force on the ground that the exclusion of aliens violated the EPC. A state may, consistent with the Constitution, confine participation in its police force to citizens of the US.
i. States may reserve for US citizens important non-elective governmental positions in which officers participate directly in the formulation, execution or review of broad public policy. Since citizenship clearly bears a rational relationship to the special demand of the particular position, the classification is valid under the Constitution.
three exceptions to this general rule:

Rational basis for self government or particpation in the democratic process case law.
equal protection alienage classification

b. Ambach v. Norwick – Two resident alien women filed suit against the state of NY seeking to invalidate a statute which restricted public school teacher certification to citizens of the US. Court says that public school teachers come well within the governmental function exception to the rule requiring strict scrutiny for classifications based on alienage.
i. This restriction enacted by the state of NY is carefully framed to serve its purpose, as it bars only those persons who have demonstrated their unwillingness to obtain US citizenship
three exceptions to this general rule:

rational basis for self-government or participation in the democratic process
equal protection: alienage classificatoin:

If there is a Federal law approved by the Congress and the President then rational basis review is used. Because the provisions in the Constitution (Article 1), gives Congress the power to control immigration, congressionally enacted laws are subject only to rational basis scrutiny. Does not apply to administrative agencies that are not approved b y congress and president already.
three exceptoins to this general rule:

congressionally approved discrimination
equal protection; alienage classification:

Rational/intuitive argument as to discrimination against undocumented aliens is that they are here illegally so why should they receive protection. Although EP does apply to all persons. Rational basis scrutiny with a bite at least as to the education of undocumented alien children.
three exceptions to this general rule:

undocumented aliens and equal protection
equal protectoin; discrimination against non marital children:

Discrimination against kids born out of wedlock must meet intermediate scrutiny because it is fundamentally unfair to punish kids just because parents weren’t married. Strict scrutiny is NOT appropriate because illegitimacy is not physically apparent and not readily observable. Two main principles à
i. Laws that provide a benefit to all marital children but deny the same benefit to non-marital children are always invalidated as unconstitutional.
1. Denying welfare benefits to children born out of wedlock is unconstitutional. Denial of wrongful death suit is unconstitutional.
ii. Laws that provide a benefit to some non-marital children but not others then we apply intermediate scrutiny. The law isn’t necessarily always invalidated. These laws are merely establishing differences between non-marital children.
1. Clark v. Jeter – SC declared unconstitutional a state law that required a non-marital child to establish paternity within six years of birth in order to seek support from his or her father. Court expressly stated that intermediate scrutiny is used for discriminatory classifications based on illegitimacy.
discriminatino against non marital children
equal protection: other types of discrimination (rationale basis review):

1. MA Board of Retirement v. Murgia – a police officer forced into retirement sought to challenge a state law requiring uniformed state police officers to retire at the age of 50 on the grounds that it violated EP.
a. Classifications based on age need only be rationally related to a legitimate state purpose. Those over the age of 50 are not a suspect class, nor is employment as a police officer a fundamental right. Under the rational-basis analysis, it is clear that the law is constitutional. By requiring retirement at age 50, the legislature is seeking to ensure that those charged with protecting the public are physically prepared to perform their job.
Age Classifications
equal protection: other types of discrimination (rationale Basis Review)

apply rational basis review to legislation that discriminates on the basis of money. SC expressly held that poverty is not a suspect class, and is not something that that is not changeable. Problem here is that if you elevate the standard of review then how do you draw the line?
wealth discrimination
other types of discrimination (rationale basis review)

(Romer v. Evans p. 18) rational basis with a bite. Arguments for why it should be closer to strict scrutiny à immutable characteristic v. conduct choice.
discrimination based on sexual orientation
Fundamental Rights;

1. Fundamental Rights cannot be infringed on by the government unless strict scrutiny is met. Freedom of speech and religion are fundamental rights, the right to privacy is also a FR.
concept of fundamental rights
fundamental rights:

1. Debate for determining whether a right is fundamental turns on whether you strictly adhere to what is written in the Constitution or expanding what is written to include more. The Ninth amendment is used to provide a textual justification for the court to protect non-textual rights (enumerated).
2. Some have suggested to look to the history of the Constitution to determine if something should be protected.
9th amendment
fundamental rights:

a. If the law denies the right to everyone then the due process approach is appropriate (no sex period).
b. If the law denies the right only to some (gays cannot engage in sex) then the EP is appropriate.
c. Sometimes both will be used.
d. EP: Whether classification of groups is necessary to serve a compelling state interest
e. DP: whether law necessary to meet compelling state interest
difference between due process and equal protection
fundamental rights:

i. Is there a Fundamental Right?
1. If YES, then you apply strict scrutiny
2. If NO, then you apply the rational basis test.
ii. Is the Constitutional Right Infringed?
1. Sometimes it is easy to say the right has been infringed. (no one can be married//taxing married people at a higher level). Look to abortion cases.
iii. Is there a Sufficient Justification for the Government’s Infringement of a Right?
1. If you are applying strict scrutiny then justification has to be compelling, but if you are applying rational basis then the reason just has to be legitimate.
iv. Is the Means Sufficiently Related to the Purpose?
1. If you are applying strict scrutiny then the means have to be the least restrictive in achieving the compelling state interest. If you are applying rational basis then the means only need be reasonable.
Framework for analyzing fundamental rights
fundamental rights:

à Constitutionally protected FR. The state cannot interfere with this right unless strict scrutiny is met.
constitutional protetion for family autonomy: Right to Marry
Fundamental Rights:

1. Loving v. Virginia – Virginia law that made it illegal for people of different races to marry. SC held the law unconstitutional. Court argued that marriage is a fundamental right and any law that dictates who you can and cannot marry based on racial lines in prohibited.
constitutional protection for family autonomy:

right to marry case law
fundamental right:

2. Zablocki v. Redhail – A Wisconsin man challenged a state statute disallowing persons who are in arrears on child support payments the opportunity to obtain a marriage license and enter into a valid marriage. Court following Loving and says the right to marry is fundamental but also sees the states interest in what they are trying to do. Also finds the fit between the means and the end isn’t tight enough, law is not “necessary” to achieve the state’s interest.
· less restrictive alternatives available: garnishing wages, take possession, etc.
a. Footnote 4 Carolene products à duel standard of review: if economic regulation then rational basis would be used, but his is found to be a fundamental right and therefore strict scrutiny is used and the law is struck down.
b. Debate about Lochnerism – once you move away from history, text and decisions where do you stop?
constitutional protection for family autonomy:

The right to mary case law
fundamental right: constitutional protection for family autonomy:

This is a FR and the state needs a compelling interest before custody can be terminated.
the right to custody of one's children
fundamental right: cosntitional protection for family autonomy:

1. Stanley v. Illinois – Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Court struck this down and said familial relationships should be protected and that you can’t deny custody to a parent before unfitness was proved.
the rigth to custody of one's children case law
fundamental right: constitutional protection for family autonomy:

2. Michael H. v. Gerald D. – A man who used a blood test to establish that he was the natural father of a certain child challenged a state court’s denial of his request for parental and visitation rights, which denial was based on a CA presumption that a child born to a married woman living with her husband is the child of that marriage.
a. The reason for the CA law is to protect marriage and prevent others from stepping forward claiming to have produced a child with one of the spouses in the marriage.
the right to custody of ones children case law
fundamental right: constitional protection for family autonomy:

– Broader then the right to mere custody.
the right to keep the family together
fundamental right: constitutional protection for family autonomy:

1. Moore v. City of East Cleveland, Ohio – A grandmother filed an appeal after she was sentenced to 5 days in jail for allowing two of her grandsons to live with her in her home, which living arrangement violated a city ordinance (statute limiting dwelling of family; unrelated persons). SC held that the law should be struck down because the ordinance, seeks to regulate the family itself, predetermining which family members may live together and which may not. One of the liberties enumerated in the Constitution is the right to maintain a family unit and can be defined broadly (including aunts/uncles).
· Fundamental rights are deeply rooted in nations history and tradition
the right to keep the family together
fundamental right: right to family autonomy:

Protects the right of parents to control the upbringing of their children – government has to show a compelling state interest for determining otherwise. Not an absolute right, strict scrutiny will be applied, law is rarely upheld.
the right of parents to control the upbringing of their children
fundamental right: right to family autonomy:

1. Meyer v. Nebraska – A school teacher was prosecuted for teaching reading to a young student in German, in contravention of a state law which prohibited teaching certain subjects in a language other than English. Court found no real legitimate interest for enforcing the law. Not reasonably related to any legitimate governmental purpose.
the right of parents to control the upbringing of their chidlren case law
fundmental right: right to family autonomy:

2. Pierce v. Society of Sisters – Court found that law unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.
3. Jacobsen v. MA – state can regulate that children be immunized not withstanding parental objections.
4. Prince v. MA – Court upheld the application of child labor laws to a nine year old girl who was soliciting for the Jehovah’s Witnesses religion at the direction of her parents. Acting to guard the general interest in youth’s well being, the state as parans patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.
the right of parents to control the upbringing of their children
fundamental right: right to family autonomy:

5. Troxel v. Granville – Two children’s paternal grandparents filed suit seeking visitation rights when the children’s mother told the grandparents’ that she was going to limit their access to the children. WA law that says any person can petition for visitation rights. Court holds the statute unconstitutionally infringes on the fundamental parental right. This law does not invalidate the grandparents rights statutes, its just casts some doubt on them.
the right of parents to control the upbringing of their children
fundamental right: reproductive autonomy:

Constitutionally protected and State laws that keep people from procreating will be sustained only if necessary to serve a compelling state interest.
the right to procreate
fundamental right: reproductive autonomy:

1. Buck v. Bell – SC upheld a law that provided for the sterilization of people who were mentally retarded. Never overruled and cited in Roe v. Wade. Question is whether it is good law with regards to the next case.
right to procreate case law
fundamental right: reproductive autonomy:

2. Skinner v. Oklahoma – Objections arose when the State of Oklahoma attempted to use its Habitual Criminal Sterilization Act to authorize the sterilization of individuals who had thrice been convicted of theft-related felonies (3 crimes of moral turpitude - here D stole chickens, etc…). When a state attempts to use sterilization law, strict scrutiny is essential lest invidious discriminations are made in violation of the constitutional guaranty of just and equal laws.
a. If the law was applying to all crime then it would fall under due process and the state cannot infringe on the FR or procreation regardless of who is subject to sterilization.
i. Court is hinting that even if the law didn’t classify people we would still say that the law is unconstitutional unless strict scrutiny is met.
right to procreate case law
fundamental right; reproductive autonomy:

1. Griswold v. Connecticut – (grounded the concept of the right to privacy) A birth control counselor was convicted of a misdemeanor for providing advice about contraception to married couples in violation of a Connecticut statute. SC struck down the law with several different opinions.
a. The majority opinion written by Douglas says the law violates the right to privacy. Things to think about:
i. What is the content of the privacy right à intimate relationship between husband and wife, concerned about government invading the marital bedroom – defines privacy in the context of marriage, intimacy, freedom in the home, individual control over information in the home, does not define reproductive autonomy here.
ii. Where is the privacy right found in the constitution à Protections under the Constitution have a penumbra (radiation around them) that expand the core rights in the Bill of Rights, illustrations of the right to privacy. Even though privacy wasn’t expressly mentioned it was intended.
right to purchase an use contraceptives
fundamental right: reproductive autonomy:

2. Eisenstadt v. Baird – A lecturer at Boston University was arrested and charged with a violation of a MA criminal statute for exhibiting contraceptives during a lecture and giving certain contraceptives to one attendee following the completion of the lecture. The statute prohibited the distribution of contraceptives to people who were not married. Court said that if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to carry or conceive a child.
a. The state cannot with the EPC, outlaw distribution to unmarried but not to married persons. (See the right to reproductive autonomy come out in this case).
right to purchase and use contraceptives
fundamental right: reproductive autonomy:

3. Carey v. Population Services International – Court struck down a law that made it a crime to sell or distribute contraceptives to minors under the age of 16; for anyone other than a licensed pharmacist to distribute contraceptives to persons over age 15; and for anyone to advertise or display contraceptives.
right to purchase and use contraceptives
fundamental right: reproductive autonomy:

a. Roe v. Wade – Two state interests at stake in regulating abortion: (1) state interest in preserving life – protecting the fetus (2) state interest in safety of the procedure – protecting women. These interests must be balanced against the women’s right to privacy, procreative autonomy, body autonomy, etc. Privacy is not absolute but this case makes it clear that strict scrutiny is the test to determine whether the right to an abortion should be upheld.
i. Court makes it clear that a fetus is not a person under the 14th amendment...don’t want to decide when life begins as a legal, moral or religious matter because there is no easy answer to that question.
right to abortion
fundamental right; reproductive autonomy:
1. First trimester = Other than requiring that it be done by a doctor, the states interest is small in this stage of the pregnancy. Statistics show that at this stage of pregnancy abortion is safer than a pregnancy, regulating abortion wouldn’t serve the states interest...no viability so the state has little interest in protecting the life
2. Second trimester = State can regulate here in ways reasonably related to achieving the interest for maternal health (licensing, clinics clean and well run, medical personnel performing operation, etc.) State can’t prohibit abortion but can regulate it in ways to achieve and insure health of the mother. Fetus still not viable until 26-28 weeks.
3. Third Trimester = Compelling state interest in the potential life and maternal health. Can ban abortion with the exception for when the life or health of the mother is at stake. Health is defined in different ways by different states (mental health, serious health disability).
trimester framework in Roe v. Wade
fundamental right: reproductive autonomy:

1. Life begins at conception and laws permitting abortion are unconstitutional because they deny the fetus equal protection à 2. Abortion decisions should be left to the states as part of the political process à Consistent with originalism, and the courts shouldn’t protect unenumerated rights. 3. Restrictive abortion laws deny women equal protection because men and women are not equal with respect to the effect of child bearing à restrictive abortion laws also discriminate against the poor who cannot afford to travel where abortions are safe and legal.
4. Right of privacy includes the right to abortion and the state has no compelling interest in regulating abortion until viability à Closest to what the court actually did. 5. Question of when life begins is left to each individual person and each individual women in particular, forcing women to carry pregnancy to term is forcing them into being incubators. à women because it is her body, could remove fetus from her body at any time during the pregnancy, and state acquires interest only after the fetus has been removed from her body.
alternatives to roe v. wade
fundamental right: reproductive autonomy:

b. Webster v. Reproductive Health Services – A Missouri law declared the State’s view that life begins at conception, prohibited the use of government funds or facilities from performing or encouraging or counseling a women to have an abortion. Conflict in opinions, doubt surrounding how the court would come out on the debate.
right to abortion case law
fundamental right: reproductive autonomy:

c. Planned Parenthood v. Casey (Use this on bar and exams!!!) – State cannot prohibit abortion pre-viability, but a state may prohibit abortion after viability except when the abortion is needed for the life of the mother.
i. Test: The state can regulate and place restrictions on abortion so long as those regulations do not impose an undue burden on the woman’s ability to make the abortion decision; when an undue burden results, the regulations are unconstitutional. [Does the regulation place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability]
· Undue burden: regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
· Affirms Roe: State can ban abortion before viability but may prohibit entirely after viability unless abort nec. to life/health of mother.
ii. This replaces Roe with an undue burden standard and upholds these subtle regulations that make you think more and may slant the perspective of one who is seeking an abortion.
right to abortion case law
fundamental right: reproductive autonomy;

a. Sternberg v. Carhart – An abortion provider filed suit against the State of Nebraska seeking to have a law, which prohibited partial birth abortions, declared unconstitutional.
i. Use the test from Casey of undue burden. This is prohibiting a certain method of abortion. Court finds that this restriction does place an undue burden on the larger abortion right. The ct struck the law down. The law also contained no exception for the health of the mother – a state may promote, but not endanger a women’s health when it regulates the method of abortion. (cross rereference my class notes – this one is a little confusing)
· Casey says after viability, state can ban abortions entirely as long as theres an exception for maternal health or life. Here, statute has no exception and therefore undue burden (could be the safest method).
right to abortion:

government regulations for abortions
fundamental right: reproductive autonomy:

i. Casey upholds waiting periods for abortion. Upheld because of a need of a period of thoughtful reflection of an important decision. How can you argue whether these are or are not creating an undue burden? Main purpose is really one more hurdle for women to overcome in trying to get an abortion. Probably already thought about the idea long before they show up at the clinic.
right to abortion:

government regulations for abortions: waiting periods for abortion
fundamental right; reproductive autonomy:

a. Maher v. Roe – A Connecticut regulation which allowed the State to fund childbirths but not abortions was challenged in federal court. Court upheld that law and the state does not have to pay for abortions.
i. This leaves women in the same situation as if there was no Medicaid policy or no governmental hospitals. Coercion...pick up the cost for women who are having a child but not for those who wish to end their pregnancy.
right to abortion:

Government regulation for abortions: Government restrictions on funds and facilities for abortions
fundamental right: reproductive autonomy;

c. Gideon v. Wainwright – government does have the obligation to supply certain services – does impose affirmative obligations on the government (defense, filing fee)
i. How do you reconcile this with Maher? Government not ready to support abortion like this, going to put people in jail (pay), why not pay for abortion.
right to abortion:

government regulations for abortions:

government restrictions on funds and facilities for abortions
fundamental rights: rights to abortion:

Spousal consent and notification are unconstitutional.
spousal consent and notice requirements
fundamental rights: right to abortion:

a. Planned Parenthood v. Danforth – SC struck down spousal veto law. If a State can’t prohibit an abortion then how can the husband make that decision? Women has the ultimate decision because she has the burden of carrying the child to term.
b. Planned Parenthood v. Casey – struck down spousal consent, operates as an undue burden because spousal notification may operate as a spousal veto.
Spousal Consent and Notice Requirements
fundamental right: right to abortion:

Under current law the State may require parent notice and consent so long as there is an alternative called a judicial bypass which allows the teen to get judicial approval over the consent of her parents.
parental notice and consent for unmarried minors
fundamental right: right to abortion:
a. Belloti v. Baird – SC said that the rights of minors with the respect to abortions are different then that of adult women (are more limited).
i. Want to foster communication between the teen and her parents. State can’t require parental consent alone, there must be a bypass procedure and at the procedure the minor should still be able to get the procedure if she can show that she is:
1. Mature enough/thoughtful enough to make decision OR
2. Abortion is in the best interest, regardless of her level of maturity, judge should still allow the abortion.
ii. The judicial bypass procedure has to work and act quickly. Still leaves a lot of discretion up to the judge.
parental notice and consent for unmarried minors case law
fundamental right: constitutional protection for medical care decisions:

A constitutional right to refuse medical treatment exists. That right, however, is not absolute. There is also a constitutional right to accept lifesaving medical treatment.
right to refuse treatement
fundamental right: constitutional protection for medical care decisions:

1. Cruzan v. Director, Missouri Department of Health – Women was in a car accident and was in vegetative coma. Parents of the women sought the courts permission to have their daughter’s life terminated when the hospital in which their daughter was staying refused to discontinue life saving treatment w/o a court order. Court holds that when a guardian seeks to discontinue lifesaving medical treatment of an incompetent person, the State can require that the guardian show by clear and convincing evidence that the person would have wanted such a termination of her life.
a. Three Facets to the SC reasons:
i. Competent adults have the constitutional right to refuse medical treatment.
ii. State can require that the clear and convincing evidence be presented that the person would have wanted such termination of their life.
iii. State can prevent a family member from terminating the care of another especially in absence of clear and convincing evidence.
right to refuse treatement case law
fundamental right: constitutional protection for medical care decisions:

There is no constitutionally protected right to participate in physician-assisted suicide; nor does the Constitution prohibit states from making it a crime to assist another person in committing suicide.
right to physician assisted suicide
fundamental right: constitutional protection for medical care decisions:

1. Washington v. Glucksberg – A group of doctors challenged the constitutionality of a Washington ban on physician assisted suicide. District court rule for patients, quoting language in Casey. SC holds here that there is no fundamental right to commit suicide.
a. Court looks to the history to decide if fundamental right is at stake, no history to protect the right à rational basis test used.
right to physician assisted suicide case law
fundamental right: constitutional protection for medical care decisions:

2. Vacco v. Quill – Case brought up the issue that because people who are receiving treatment can effectively exercise the right to die, people on life support can’t exercise this right – and need the assistance of a doctor to do so. This is an EP claim because the argument is that it is unconstitutional for some people to be able to end their lives while others can’t. SC rejects this argument and says that rational basis review is satisfied because a legitimate purpose for the rule exists (no suspect classification exists).
right to physician assisted suicide case law
fundamental right: constitutional protection for sexual orientation and sexual actvity:

i. Bowers v. Hardwick (Overruled!!!) - A homosexual male who had been charged with but not prosecuted for criminal sodomy filed suit challenging the constitutionality of Georgia’s anti-sodomy statute. SC upholds the law. Because the text, history and decision say nothing about homosexuality, the Constitution does not protect homosexual activity. Apply rational basis review, and the court can find a rational basis in promoting morality.
Constitutional protection for sexual orientation and sexual activity case law.

bowers v. hardwick
fundamental right: constitutional protection for sexual orientation and sexual activity:

Court in Bowers made a mistake by ignoring the issue of privacy and framing it in the terms of sodomy. Recast some of the historical data relied on in Bowers – laws were meant to prevent non-procreation sex not concerned with homosexual activity specifically – Bowers focused narrowly on homosexual when the laws were directed at all sodomy.
1. EP argument works to overturn the law here in Texas (which applied only to homosexuals), but doesn’t work to overturn Bowers because it applied to all people.
2. Another reason they give for finding that Bowers is wrong because in most recent years the laws have been repealed, and there is a lot more acceptance of homosexuals. Can’t ignore more recent history of decreased discrimination against homosexuals.
3. Reasoning behind Bowers was wrong and they overrule it, but still unclear what rights this case really establishes. Why does the majority not use equal protection here? Then Texas could just readopt the law and have it neutral towards the classification of people it effects (applies to everyone). Then you no longer have an equal protection claim. That’s why they use due process... (here the court says morality is not a sufficient state interest to justify the law)
lawrence v. texas
fundamental right: constitutional protection for control over information:

ii. Whalen v. Roe - A lawsuit challenged the right of the NY Department of Health to record and store in a central computer certain information related to the issuance of medical prescriptions by NY physicians. (Don’t want dishonest pharmacists refilling expired prescriptions, drug users from obtaining simultaneous prescriptions, etc.)
1. SC holds that the law is constitutional because there was no real threat to privacy rights being invaded. Health care by its nature involves a lot of privacy issues. The disclosure of private medical information to medical personnel, insurance companies, and public health agencies does not per se amount to an impermissible and unconstitutional invasion of privacy. There is a right of privacy that does protect people’s medical information but it is not infringed here
constitional protection for control over information:

Whalen v. Roe
fundamental right: constitutional protetion for travel:

The Constitutionallly-protected right to travel embraces the citizen’s right to be treated equally in her new State of residence. This refers only to interstate travel and does not refer to foreign travel. Laws that interfere with this right must survive strict scrutiny.
constitutional protection for travel general rule
fundamental rights: Constitutional protection to travel:

iii. Saenz v. Roe - (also in P or I) A lawsuit challenged a CA law which limited the welfare benefits of new CA residents to that amount which they would have received in the state they most recently moved from. Don’t want poor people flocking to CA to receive increased welfare benefits. SC says that the CA law is in effect a penalty on the right to travel- and that once you travel you are penalized in the place you end up. This means that strict scrutiny is applied.
Constitutional protection for travel: Saenz v. Roe
fundamental right; Constitutional protection for travel:

1. Court says there are three constitutionally protected facets of the right to travel:
a. Right of people to freely enter and leave states. SC in discussing this discusses the Edwards v. CA – unified country ought to be able to travel from one part to another.
b. Right of and out-of-stater to be treated the same as an in-stater with respects to the privileges and immunities of citizenship. (Article 4 of the Constitution – prevents discrimination against out-of-staters – right to an occupation, fundamental rights, etc.)
c. New residents of the state should be treated the same as long-term or older residents.
constitional protection for tavel: Saenz v. roe Test
fundamental right: constitutional protection for travel:

SC has repeatedly held that there is no right to foreign travel. Federal government can place restrictions on travel and will only apply rational basis review in deciding whether to uphold.
restrictions on foreign travel
fundamental rights:

1. Tremendous expansion of voting rights throughout history of America. Originally only white males with property could vote and could only vote for the legislature (no presidential vote).
2. Voting is the right that helps to preserve all other rights. Then why is it okay for a city council to appoint a mayor? Or the governor is appointed by the legislature...this would be fine.
right to vote as a fundamental right
fundamental right:

1. We are really talking about the equality in who is given the right to vote. So this is a fundamental right protected under the equal protection principle...not protected under the due process clause. Nobody gets to vote or everyone gets to vote.
right to vote:

what is meant by the right to vote
fundamental right:

- Laws that deny or limit the right to vote must meet strict scrutiny.
right to vote: restrictiosn on the ability to vote
fundamental right:

There are a few cases where the court has upheld a law without using this strict scrutiny. Poll taxes were the first cases where this happened.
right to vote: restrictions on the ability to vote:

Poll Taxes
fundamental right:

Virginia poll tax which required residents to pay $1.50 in order to vote in state elections. This is classifying people based on wealth (not a suspect classification).
i. Court holds that the Equal Protection Clause prevents the States from fixing voter qualifications which invidiously discriminate. A state violates the Equal Protection Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard – voter qualifications have no relation to wealth or the payment of any tax. Used only rational basis review to strike the law down.
right to vote: restrictsion on the ability to vote;

Poll Taxes Case Law
fundamental right:

Another restriction on the right to vote was property ownership. These across the board are not allowed, and you cannot require property ownership for the right to vote.
right to vote: restrictions on the ability to vote:

Property Ownership Requirements
fundamental right:

a. Kramer v. Union Free School District - A citizen challenged a NY law which precluded certain persons from voting in school district elections.(could vote in school district elections only if he or she either owned or leased taxable real property within the district, or was a parent of a child enrolled in local public schools). Court uses strict scrutiny...and says there is not a tight enough fit, way to over and under inclusive. Here the exclusion is not necessary to serve the States compelling interest.
right to vote: restrictison on tha ability to vote:

Property Ownership Requirements Case Law
fundamental right:

e. Ball v. James– SC upheld a property ownership requirement for voting in a water district election. The owners of land are most affected by the policies of the water district. The district would never have been created but for the right of the property owners to control the election (plays a big role in the decision). The districts power was only in regard to water issues. Here the SC applies rational basis scrutiny, powers are narrow, district wouldn’t exist unless the property owners existed, sustained a property ownership requirement for voting in the water district election.
right to vote; restrictsion on the ability to vote:

property ownership requirements case law
fundamental right:

SC has found that these tests do not violate the Constitution and are okay in ensuring that people have the ability to exercise the right intelligently. These requirements have been abolished by statutes so no literacy requirements presently exist.
right to vote: restrictsion on the ability to vote:

Literacy Tests
fundamental right:

The right to vote can be restricted for felons and ex-felons. States can forever disenfranchise convicted felons even after the sentence and role have been completed. They can do this without any penalty in the House of Representatives – that would apply in another case. There is a specific part of the 14th amdnement that says that the sate can deny the right to vote for those who have took part in a crime.
right to vote: restrictions on the ability to vote:

Prisonsers and Convited Criminals right to vote
fundamental right:

a. There is a significant discriminatory effect upon African Americans, because it is much higher then among other racial groups. So can these laws be attacked under EPC...yes, but only if you can show discriminatory purpose and effect. (Hunter v. Underwood – SC went back to the purpose of the Alabama law and said that the law was directed at black people, and a way to disenfranchise all black people, discriminatory purpose and effect, trying to get black people of the voting polls).
right to vote:

prisoners and convicted criminals right to vote
fundamental right:

When the SC was first confronted with the problem they said it was not justciable under the Republican form of government. The basic principle that emerges in regards to dilution of the right to vote is à the one person one vote principle that is announced in the following case:
right to vote

Dilution of the right to vote
fundamental right:

A constitutional challenge was levied against Alabama’s legislative districting scheme on the ground that it violated equal protection by not apportioning its districts according to population and thereby resulted in less-populated districts having more representation in the state legislature than more populous districts. · Applies SS b/c reduces the power to vote; there aren’t equal votes
a. Does a state legislative apportionment scheme under which unevenly-populated districts each elect the same number of representative to the state legislature violate equal protection?
i. Yes, constitution protects the right of all qualified citizens to vote in state and federal elections. This right is fundamental, meaning any alleged infringement must be carefully scrutinized. This means that the districts have to be substantially equal and the seats in both houses of the legislature have to be apportioned on a population basis...represent the people not the land. The number of people in each district has to be equal. Must be based on population and not geography.
ii. State argues that they are following the federal model in apportioning their Senators. Court says this is not the model they should follow, and the state is a separate entity. The counties of Alabama were never sovereign entities on there own that agreed to come together...unlike the original 13 states...so the federal model analogy doesn’t work.
right to vote:

dilution of the right to vote case law
fundamental right:

a. Wesberry v. Sanders - one person one vote to house elections – applied to Fed. Elections. The decision is not rooted in the EPC but instead it is rooted in Article 1, section 2 – that the house be chosen by the people of the states. Does this apply even at the local level? Yes, (832) have to have one person one vote, can’t have disapportioned districts. All of this raises the fundamental question of how much deviation should be allowed between districts? Any deviation should be small and justified by good reason. Should be as equal as you can. Allow a little more deviation in state and local elections, then they do in Federal elections.
right to vote:

dilution of the right to vote case law
fundamental right:

Debate over whether the case should have been taken by the SC in the first place, was it based on partisan politics, did the SC undermine itself in making this decision?
counting vote or uncounting votes in an election
fundamental right:

1. Bush v. Gore (did not spend much time in class although it's f*#king long)– SC holding is that the recount should stop and that Bush had set forth a valid EP claim and that there was no system for doing a recount and that any system to resolve the problem would take the count passed the deadline. [Count violates EP clause – because the methods are arbitrary]
right to vote:

counting votes or uncounting votes in an election case law
fundamental right:

1. Boddie v. Connecticut - An indigent citizen challenged a Connecticut law which made the payment of a court fee a prerequisite to accessing the judicial system for the purpose of obtaining a divorce. The due process clause prohibits the States from denying individuals seeking dissolution of their marriages access to the courts based solely on the person’s inability to pay court fees. This right is the exclusive precondition to the adjustment of a fundamental human relationship (marriage). Requirement to resort to the judicial process is entirely state created.
a. Narrow interpretation – because state has monopoly over providing a divorce, and because the fundamental right to marry is tied to the right to divorce the state has to make it available to everyone.
b. Broad interpretation – there is a broader right at stake and this ought not depend on wealth, the SC applies strict scrutiny and strikes down the filing fee.
c. Some form of fundamental right involved so applies Strict Scrutiny.
access to courts:

Filing Fees case law
fundamental right:

2. US v. Kras - An indigent person challenged a federal law which required him to pay a filing fee in order to file for bankruptcy. Government does not have to allow someone to file for bankruptcy because there is no fundamental right to discharge your debt or file for bankruptcy.ii. When a fundamental right is being burdened...government has to pay...when not a fundamental right...government not under obligation to pay.
access to courts:

filing fees case law
fundamental right:

3. MLB v. SLJ - A mother whose parental rights were terminated challenged a Mississippi requirement that she pay for trial transcripts before her appeal would be permitted to proceed past the initial stages. States may not deny appellate review of a decision finding a biological parent to be unfit simply because of the parent’s inability to pay for the appeal.a. Choices regarding marriage, family life, and raising children are associational rights of basic importance in our society, and are therefore protected by the 14th amendment against unwarranted state usurpation.
access to courts:

filing fees case law
fundamental right:

1. Bounds v. Smith - law libraries or alternative sources of legal knowledge are necessary and the only way to secure prisoner’s access to the courts.
access to courts:

prisoners right to access to courts case law
fundamental right:

2. Lewis v. Casey - A group of Arizona prisoners filed a class action lawsuit seeking remediation for their perceived inability to access the court system. Court here imposes a standing rule here for prisoners’ seeking access to law libraries – have to show that the shortcomings of the library are preventing one from pursuing a legal claim.
a. Holding in Bounds is also limited, by saying that strict scrutiny will no longer be used, and will now be evaluated under rational basis review. Very little is left of the Bounds decision after Lewis. The right of access is dramatically scrutinized and is not as strong as it was in the Bounds case
access to courts:

prisoners right of access to courts case law
fundamental right:
A class of lower-income persons challenged Texas’ system for financing public education. Most school resources are based on the amount of property taxes of surrounding areas. The result is that in poor areas the property is worth less, so the tax revenue is less in those areas, so there is less money going to the schools. The right to acquire a public education is not a constitutionally guaranteed fundamental right; therefore, laws affecting that right are subject only to rational basis scrutiny. Not enough found by the court in the Constitution to find that there is a fundamental right to education.
constitutional protection for a right to education.

San Antonio Independant School District Case
fundamental right:

- Procedures the gov’t is required to follow before taking away life, liberty, etc…· Ex. Termination of custody of children. Procedure - provide notice, opp to heard. Substantive - provide compelling reasons for taking child away
prcdural due process
fundamental right:

i. First Questions à Has there been a “Deprivation”?
procedural due process
fundamental right:

a. Daniels v. Williams - A state prisoner who slipped and fell on a pillow filed an equal protection-based lawsuit against the correctional officer who had negligently left the pillow on the ground. Ordinary negligence is not enough for a Due Process claim, and there has to be intentional or reckless disregard on the part of the government in order to find this. (Reckless disregard in a negligence situation)
procedural due process: 1st question "has there been a deprivation":

Is negligence sufficient to constitute deprivation case law
fundamental right:

b. County of Sacramento v. Lewis - A lawsuit alleging a violation of due process was filed when a teenager was killed as a result of a high-speed chase with the police. Allegation is that there was a reckless indifference to life. i. Was this sufficient for a due process claim? No, in emergency situations involving law enforcement officials, negligence and recklessness will not create a constitutional deprivation; only conduct that “shocks the conscience” can create a due process deprivation, and to reach that level, there must be evidence of intent to harm. (Deliberate or intentional (highest level of culpability) for emergency situation)
procedural due process: first question "has there been a deprivation".

is negligence sufficient to cosntitute deprivation case law
fundamental right:

a. DeShaney v. Winnebago County Department of Social Services - An abused child and his mother filed suit against Winnebago County after it was discovered that a father who had been repeatedly beating his child was permitted by the county Department of Social Services to retain custody of the child despite warnings from hospitals and others that abuse was taking place. Court concludes that a State’s failure to protect an individual against private violence does not constitute a due process violation.i. Does the Due Process Clause require the State to protect the life, liberty, and property of its citizens against invasions by private actors?
1. No, The Due Process Clause protects against deprivations of life, liberty, and property by arbitrary government action; nowhere does the language of the Clause require the State to protect these rights against invasions by private actors. The Clause is a limitation on the State’s power to act, not a guarantee of certain minimal levels of safety and security
procedural due process: first question "has there been a deprivation"

when is government failure to protect a person from privatly inflicted harms a deprivation case law
fundamental right:

Rights were defined by common law à only had interest if recognized under the common law. This was problematic, because under this view you had no property interest in a government job, or welfare, or driver’s license...these were all privileges. Government could be completely arbitrary in denying you a job or welfare...and you could have no claim against them. This drew sharp criticism because it offered inadequate protection for your rights and liberties. People rely on these benefits and when government takes these away arbitrarily it seems profoundly unfair and has a tremendous impact on people’s lives. A famous article called the “New Property” argued for the demise of the rights/privileges distinction and the right for new property, certain government privileges should be considered rights. Article insured the demise of the right/privileges distinction.
procedural due process: Second Question "is it a deprivation of life, liberty, or property".
fundamental right:

a. Goldberg v. Kelly - A group of citizens facing the potential loss of financial aid without notice or a hearing filed suit seeking to have those procedures be provided. Here have to have notice, and show up for a hearing where you can have an opportunity to be heard in a meaningful time and manner, before your benefits are cut off. Third question à are you entitled to some sort of procedure?
i. Does a State deny a person procedural due process when it terminates public assistance payments without giving the recipient the opportunity for an evidentiary hearing?
1. Yes, the extent to which procedural due process must be afforded in a particular situation is influenced by the extent of the loss suffered, and depends on whether the aggrieved party’s interest in avoiding that loss outweighs the governmental interest in summary adjudication (has to have a vital interest in the property).
procedural due process: second question "is it a deprivation of life, liberty, or property".

the "Rights Privileges" distiniction and its demise
fundamental right:

a. Board of Regents v. Roth - A government employee who had signed a one-year employment contract filed suit when his employer chose not to rehire him following the completion of the one year. It gave no reason for its decision and did not provide Roth with the opportunity to challenge the decision.
i. A person is not deprived of liberty or property in violation of the 14th amendment when he is not hired or rehired for a government job but remains free to seek other employment. For a property interest to exist there has to be more then a want or need for it, have to have an entitlement to it. Government has to give the person a reasonable expectation of continued receipt of the benefit
procedural due process: second question "is it a deprivation of life, liberty, or property".

What is a deprivation of property case law
fundamental right:

a. One way is to say that if the liberty is important to the individual then it is liberty. The second way is in reference to expectations under state law, if don’t exist there then there is no liberty interest.
procedural due process; second question "is it a deprivation of life, liberty, or property:

what is a deprivation of liberty
fundamental right:

a. Goss v. Lopez - A group of high school students filed suit against their respective administrators for suspending them without the opportunity for a hearing on the issue. Having chosen to extend the right to an education to certain persons, a State cannot withdraw that right from a single person on grounds of misconduct absent fundamentally fair procedures to determine whether misconduct occurred. (Student has right to have his side heard, after being given notice of expulsion/suspension).
procedural due process: second question "is it a deprivation of life, liberty, or property:

reputation as a liberty interest
fundamental right:

b. Paul v. Davis - A suspected shoplifter filed suit when his ace appeared on a law enforcement flier bearing the words “Active Shoplifters” and the mug shots of various persons known or believed shoplifters. Says he is being deprived of a liberty interest because he is being coined a shop lifter without due process to argue against it. No liberty interest in your reputation alone. If all the state does is slander you, it does not give you a Constitutional claim unless there is something more tangible along with it (lost a job).
procedural due process: second question "is it a deprivation of life, liberty, or property":

reputation as a liberty interest
fundamental right:

Over the years the SC has applied a number of different approaches for determining whether a prisoner’s liberty interests have been compromised.
procedural due process: second question "is it a deprivation of life, liberty, or property:

liberty interest for prisoners
fundamental right:

a. In the early cases the SC used the importance of the interest approach (Goldberg) à Morrissey v. Brewer – revoking parole is a deprivation of liberty that requires the provisions of due process.
b. In later cases the SC switches to the entitlement approach (Roth), where liberty was defined as expectations created by state law à Meachum v. Fano – prisoner shifted from minimum to maximum security; was no liberty interest at stake because the state had done nothing to suggest that he would be kept in minimum security.
procedural due process: second question "is it a deprivation of life, liberty, or property":

liberty interest for prisoners
fundamental right:

c. The Greeholtz case elaborates the Meachum case, and to determine whether a regulation infringes on a liberty interest, you have to look at the way the terms are written – mandatory v. flexible language. If the language is mandatory then they have to give you a reason why they are depriving you of that liberty. In Greenholtz (narrows Morrissey it dealt with parole; court said that just because there is a parole system doesn’t mean that the prisoner’s have an expectation in receiving it, question is whether there is language that transformed a mere hope into an expectation. Here the state didn’t establish specific rules for parole, and didn’t make any guarantees to prisoner’s that they would get parole. No legitimate entitlement to prisoners’ that they would get parole.
procedural due process: second question is it a deprivation of life, liberty or property:

liberty interest for prisoners
fundamental right:

d. Court has now shifted back to the Morrissey approach dealing with the importance of the interest. Court moves back to the importance of the interest to the individual at least in the prisoners’ context. Another reason is Federalism...don’t want so much federal intervention in the States regulation.
procedural due process: second question is it a deprivation of life, liberty, or property:

liberty interest for prisoners
fundamental rights:

a. Sandin v. Conner - prisoner sent to solitary confinement wanted due process in determining whether this punishment was fair. Claims that he has a liberty interest in remaining with the regular prisoner population.
i. Here the court asks whether there is a significant deprivation of freedom that is atypical of the usual conditions of confinement. Have they done something really unusual as to what he is normally used to. Here the disruption to the prisoner’s life was not atypical of what normally occurs in prison. The court is shifting back to the importance of the interest approach. Need to look at it whether the prisoner is having to face something very atypical of his normal daily routine.
procedural due process: second question is it a deprivation of life, liberty, or property

Sandin v. conner
fundamental right:

- As a general matter Civil Procedure – at a minimum notice and an opportunity to be heard in a reasonable time, place and manner are required (Mullane). These can very greatly depending on the case.
procedural due process: second question is it a deprivation of life, liberty or property:

what procedurs are required
fundamental right:

a. What kind of notice is required? Email, publication, person service.
b. Court has left it up to the government entity to define due process, the more severe the deprivation the more like the court hearing/formal it seems to be.
procedural due process: second question is it a deprivation of life, liberty or property:

what procedures are required
fundamental right:

c. In Arnett v. Kennedy – SC held that a government could fire a public employee for misconduct without a full hearing prior to termination. Said that it was sufficient that there was the opportunity for a pre-termination review within the department followed by a post-termination hearing.
d. Mathews v. Eldridge - A state disability benefit recipient filed suit when the state decided to stop providing him with the benefits he had been receiving. In determining the nature (formality, timing, etc.) of procedures required for a particular case courts take into account the test below:
ii. Court concludes that there is no need for an evidentiary hearing before termination (different outcome then Goldberg). The one thing to be noted is the tremendous discretion that judges have under this test. Goldberg holds that there needs to be a hearing prior to termination, while this case holds that all due process can be given after termination of the benefits.
procedural due process: second question:

what procedures are required
fundamental right:

1. The private interest that will be affected by the official action (importance of the interest at issue);
a. First factor à Court finds that the disability payments are important to the person here, but not as important as welfare as in the Goldberg case.
2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
a. Second factor à Says current system is good, don’t need full evidentiary hearing in this context...because you are dealing with medical documentation. The factors that go into this are simple and easier to determine then the factors for welfare. There is also very little room for mistake...because the decisions are based on medical evidence.
3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
a. Third factor à Huge burden financially...trying to conserve interest, and if hearing required it would serve as a drain on the system generally.
fundamental rights, second question:

court lays out three part test to determine what procedures is due:
fundamental rights:

SC is all over the map in terms of the procedures that must be used for termination of parental custody. Need notice and a hearing. Also a clear and convincing evidence requirement...which meshes with the states burden of proof. A state does not have to provide counsel to an indigent parent, prior to terminating parental rights. Contrast this with Gideon, or receiving counsel for a DUI and facing a one-day jail sentence, with no counsel for getting your kids taken away forever. Have to provide you with a copy of the record for an appeal. No clear answer as to what process is due in any particular situation.
procedural due process:

Family Rights