De Bar - Con Law

Front 1

Constitutional standing requirements?

Back 1

a. An injury has occurred or is imminent
i. Injury must be personal to P
ii. P seeking injunctive relief must show a likelihood of future harm
b. P shows D caused the injury
c. A favorable decision(for P) is likely to remedy the injury

Front 2

Con Law -- When can P sue on behalf of 3d parties?

Back 2

1. If there is a close relationship between P and injured 3rd party (e.g., doctor/patient relationship)
2. If injured 3rd party is unlikely to be able to assert his or her own rights
3. Org may sue on behalf of its members if:
a. Individual members would have standing to sue
b. Interests are germane to the org's purpose, and
c. Neither the claim nor relief requires participation of individual members

Front 3

Con Law -- requirements for an org to sue on behalf of its members?

Back 3

Org may sue on behalf of its members if:
a. Individual members would have standing to sue
b. Interests are germane to the org's purpose, and
c. Neither the claim nor relief requires participation of individual members

Front 4

Con law -- When may a P bring a citizen suit?

Back 4

TPs have power under the establishment clause to sue over govt expenditures (only $$) made pursuant to federal spending statute.

Front 5

Con law -- What do courts look to when maing a ripeness determination?

Back 5

a. Hardship that will be suffered without pre-enforcement review, and
b. Fitness of issues for judicial review

Front 6

Con law -- exceptions to mootness doctrine?

Back 6

a. Wrongs capable of repetition but evading review (wrong is short-lived) (e.g., pregnancy)
b. Voluntary cessation - D voluntarily halts behavior but is free to resume it at any time.
c. Class action suits - If named P's claim becomes moot, so long as one member of class has an ongoing injury, case will proceed.

Front 7

COn law -- What types of cases will court refuse to adjudicate under the political question doctrine?

Back 7

1. The "republican form of government clause"
2. Challenges to the President's conduct of foreign policy
3. Challenges to impeachment and removal process
4. Challenges to partisan gerrymandering (i.e., where party in control redraws electoral districts to maximize seats for that party)

Front 8

con law -- requirements for supreme court review?

Back 8

a. Justicability requirements must be met
b. Original or Appellate Jurisdiction
c. There must be a final judgment (no interlocutory review) by:
i. State's highest court
ii. Federal COA
iii. 3-judge federal district court
d. There are NO adequate and independent state law grounds

Front 9

Con law -- scope of 11th and state SI?

Back 9

1. 11th amendment bars suits against states in fed ct.
2. SI bars suits alleging federal claims against states in state cts or federal agencies

Front 10

con law -- exceptions to state SI?

Back 10

1. Waiver -- State expressly consents to suit.
2. Congressional authorization of suits against the states under Section 5 of the 14th amendment
3. Action brought by the federal government -- Fed govt can sue state govts
4. No SI in bankruptcy proceedings

Front 11

con law -- when are suits against state officers permitted?

Back 11

1. State officers may be sued for injunctive relief
2. State officers may be sued for money damages to be paid out of their own pockets (even where state has agreed to indemnify)
3. State officers may NOT be sued if it is the state treasury that will be paying retroactive damages

Front 12

con law -- the main gist of the abstention doctrine?

Back 12

i. Fed cts may not enjoin pending state ct proceedings

Front 13

con law -- menaing of the necessary and proper clause?

Back 13

1. Any means not prohibited by the Constitution is available to Congress to carry out its authority

Front 14

scope of congress' taxing and spending power?

Back 14

1. Congress may tax and spend for the general welfare

Front 15

con law -- when is congressional regulation under the commerce clause?

Back 15

a. Congress may regulate channels (e.g., highways, waterways, the Internet) of interstate commerce
b. May regulate instrumentalities (e.g., cars, planes, telephones, the Internet) of interstate commerce and persons or things in interstate commerce (e.g., radiowaves, stock, insurance)
c. May regulate activities having a substantial effect on interstate commerce
i. Cumulative impact --> All of a certain type of activity may be evaluated in the aggregate to determine its effect on interstate impact (e.g., wheat case, med marijuana case)
1. NOTE --> for non-economic activity, a substantial effect canNOT be based on cumulative impact (e.g., Violence against women Act case)

Front 16

con law -- what are 10th amendment limits on congressional power vis a vis congress legislating with states in mind?

Back 16

a. Congress cannot compel state regulatory or legislative action
i. BUT may attempt to induce state action by attaching strings to federal grants so long as conditions are expressly stated and relate to the purpose of the spending program.
b. Congress may prohibit harmful commercial activity by state govts (e.g., states selling info from DMV lists)

Front 17

con law -- what is extent of congress' legislative power under section 5 of the 14th?

Back 17

a. Congress cannot create new rights or expand scope of rights
i. May only act to prevent or remedy violations
ii. Enactments must be proportionate and congruent to remedying constitutional violations.

Front 18

con law -- constitutionality of legislative vetoes? line-item vetoes?

Back 18

ii. Legislative vetoes and are ALWAYS unconstitutional
1. There must always be bicameralism (passage by both House and Senate) and presentment (giving bill to President).
iii. Line-item vetoes are unconstitutional
1. President must sign a bill in its entirety.

Front 19

con law -- what is a treaty?

Back 19

Agreements between US and a foreign country negotiated by President and effective when ratified by the Senate.

Front 20

con law -- hierarchy of treaties and other laws?

Back 20

a. Treaties prevail over conflicting state laws.
b. If a treaty conflicts with a federal statute, the one adopted last in time controls
c. If a treaty conflicts with the US Constitution, it is invalid.

Front 21

what is an executive agreement?

Back 21

Agreement between US and foreign country singed by President and head of foreign country
a. NOTE --> no Senate approval necessary

Front 22

con law -- hierarchy of executive agreements and other laws?

Back 22

3. Prevail over conflicting state laws, but NEVER over conflicting federal laws or US Constitution

Front 23

con law -- scope of the executive appointment power?

Back 23

a. Pres appoints ambassadors, fed judges and officers of US; Senate only confirms.
b. Appointment of inferior officers?
i. Congress may vest this power in President, heads of depts, or lower fed cts.
ii. Who are inferior officers? Those who can be fired by officers.
c. Congress cannot give appointment power to itself or its officers.

Front 24

con law -- when may congress limit the president's power to remove any executive branch officer?

Back 24

1. The office is one where independence from the President is desirable, and
2. Removal under the statute is limited to where there is good cause for the removal

Front 25

con law -- impeachment: who? what? when? where? and how?

Back 25

1. Who can be impeached? President, VP, federal judges and officers
2. Impeached for what? Treason, bribery, or for high crimes and misdemeanors
3. The process
a. Impeachment is by House
i. Analogous to an indictment
ii. Requires majority vote
b. Conviction is by Senate
i. Removal occurs only AFTER conviction
ii. Requires 2/3 vote

Front 26

con law -- scope of presidential immunity?

Back 26

1. Absolute immunity to civil suits for money damages for any actions while in office.
a. NOTE --> no immunity for actions prior to taking office

Front 27

con law -- scope of the executive privilege?

Back 27

1. Exists for presidential papers and conversations
a. NOTE --> Not absolute: privilege must yield to other important government interests

Front 28

con law -- scope of president's pardon power?

Back 28

1. Extends to any person accused or convicted of federal crimes
a. Does not extend to persons who have been impeached.
b. Does not extend to persons accused or convicted of state law offenses.
c. Does not extend to persons held liable in a civil case

Front 29

con law -- when does fed law impliedly preempt state law?

Back 29

1. If fed and state laws are mutually exclusive (e.g., impossible to simultaneously comply with both), federal law preempts state law.
a. NOTE --> states may set environmental standards stricter than federal law unless expressly prohibited by Congress
2. If state law impedes the achievement of federal objectives, fed law preempts the state law.
3. If Congress evidences a clear intent to preempt state law, fed law preempts state law (e.g., Immigration law).

Front 30

con law -- when will state regulation of feds not fly?

Back 30

2. States cannot regulate fed govt if regulations place a substantial burden on federal activities (e.g., strict state environmental laws will not apply to feds)

Front 31

con law -- what is the dormant commerce clause?

Back 31

The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.

Front 32

con law -- what is the privileges and immunities clause of article IV?

Back 32

No state may deprive citizens of other states of the privileges and immunities it accords its own citizens.

Front 33

con law -- What is the privileges and immunities clause of the 14th?

Back 33

a. NOTE --> ALWAYS a wrong answer unless question involves the right to travel.
b. It appears it was meant to protect people from their own states
i. SCOTUS interpretation, however, has been so narrow as to effectively read it out of Constitution

Front 34

con law -- when does a state law violate privilege and immunities clause of Article IV?

Back 34

1. Law discriminates against out-of-staters (already established)
2. Discrimination is with regard to civil liberties or important economic activities
a. Usually, law hampers an individual's ability to earn his or her livelihood
3. Challenge is not brought by a corporation or alien (never available to them)
4. Discrimination is NOT necessary to achieve an important government purpose.

Front 35

con law -- what is the market participant exception and when is it implicated?

Back 35

Dormant Commerce Clause implicates --

A state or local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt-owned businesses

Front 36

con law -- dormant commerce clause analysis:

Back 36

1. Does the state or local law discriminate against out of state individuals?
a. If NO --> ii. If the law burdens interstate commerce, it violates the DCC if its burdens exceed its benefits
b. If YES -->
i. If law burdens interstate commerce, it violates DCC unless it is necessary to achieve an important government purpose

Front 37

con law -- requirements for valid state taxation of interstate commerce:

Back 37

i. States may not use their tax systems to help in-state businesses.
ii. States may only tax activities with a substantial nexus to the state.
iii. State taxation of interstate businesses must be fairly apportioned.
1. So long as state taxes that which is connected, it is fairly apportioned

Front 38

Methods of acceptance (4)

Back 38

1. Complete performance
2. Start of performance (unless offer requires "performance")
3. Offeree promises to perform
4. Seller of goods sends the "wrong" goods

Front 39

con law -- when will a private party be deemed a state actor?

Back 39

a. The Public Function Exception -- A private entity is performing a task traditionally exclusively done by the govt.
i. Very narrow exception --> e.g., privately-owned utility is NOT traditional exclusive govt activity
b. The Entanglement Exception -- Applies if govt affirmatively authorizes, encourages, or facilitates unconstitutional activity

Front 40

con law -- what is the rational basis test?

Back 40

Law must be rationally related to a legitimate government purpose.
a. Government purpose need only be permissible, legitimate
i. Actual government purpose need not meet this test so long as there is any conceivable purpose that does meet the test.

Front 41

con law -- what is the intermediate scrutiny test?

Back 41

1. Formulation -- Law must be substantially related to an important government purpose
a. Important government purpose -- ACUTAL purpose must meet.
b. Substantially related? A very good way of achieving purpose/narrowly tailored

Front 42

con law -- what is strict scrutiny?

Back 42

1. Formulation -- Law must be necessary to achieve a compelling government purpose
a. Compelling government purpose? ACTUAL purpose must meet, and must be crucial or vital.
b. Necessary? The best means available; No less restrictive alternative can achieve the goal.

Front 43

con law -- who bears burden in RBT, IS, and SS tests?

Back 43

RBT - challenger
IS and SS - govt.

Front 44

con law -- when is there a deprivation of life, liberty or property under DPC?

Back 44

a. Occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
b. Occurs if there is an entitlement and that entitlement is not fulfilled (i.e., there is NO rights/privileges distinction)
i. An entitlement exists if there is a reasonable expectation to continued receipt of a benefit.
c. an intentional or reckless act of the govt.
d. i. Duty to protect against privately inflicted harms only if (1) person is physically in govt custody or (2) govt has created the danger.

Front 45

con law -- when does govt have a duty to protect against private harm?

Back 45

i. Duty to protect against privately inflicted harms only if (1) person is physically in govt custody or (2) govt has created the danger.

Front 46

con law -- balancing test to determine if there has been a deprivation of procedural due process?

Back 46

a. The importance of the interest to the individual
b. The ability of additional procedures to reduce the risk of erroneous deprivation/increase the accuracy of fact-finding
c. The govt's interests

Front 47

con law -- what protection does constitution give to economic liberties?

Back 47

i. Constitution provides MINIMAL protection
1. RBT applies

Front 48

con law -- analysis for 5th amendment takings claim?

Back 48

a. Is there a taking?
b. Is the taking for public use?
c. Has just compensation been paid?

Front 49

con law -- what is a taking sufficient to trigger 5th?

Back 49

i. A possessory taking - Govt confiscation or physical occupation (no matter how small) is always a taking.
ii. A regulatory taking - Govt regulation is a taking if it leaves no reasonable economically viable use of the property.
1. i.e., no taking if regulation merely decreases property value.
2. Special regulatory taking rules -->
a. Govt conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed.

Front 50

con law -- when is a taking for public use under 5ht?

Back 50

1. A taking is for public use so long as govt acts out of a reasonable belief that the taking will benefit the public.

Front 51

con law -- what constitutes just compensation under 5th (how is it measured)?

Back 51

i. Just compensation is measured in terms of loss to the owner in reasonable market value terms.
1. NOTE --> Gain to the taker is IRRELEVANT!

Front 52

con law -- what triggers K clause of Article I?

Back 52

1. Applies only to state or local interference with existing Ks.
a. NOTE --> K clause NEVER applies to federal interference with Ks.
b. NOTE --> No effect on regulation of future Ks.

Front 53

con law -- determining whether K clause of Art. I has been violated?

Back 53

2. State or local interference with private Ks must meet a modified intermediate scrutiny test:
a. Does the legislation substantially impair a party's rights under an existing K?
b. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest
3. State or local interference with its own govt Ks must meet strict scrutiny

Front 54

con law -- what privacy rights receive constitutional protection?

Back 54

1. Right to marry - Strict scrutiny applies
2. Right to procreate - SS applies
3. Right to custody of one's children - SS applies
a. NOTE --> State may create an irrebuttable presumption that a married woman's husband is the father of her child.
4. Right to keep the family together (includes extended family, but requires that individuals are related to one another)
5. Right of parents to control the upbringing of one's children
a. Violates right of parent for court to order grandparent visitation over the parent's objection
6. Right to purchase and use contraceptives
7. Right to abortion
8. Right to engage in private consensual homosexual activity
9. Right to refuse medical care

Front 55

con law -- specialized test for govt restrictions on abortion

Back 55

i. Prior to viability --> states may not prohibit abortions, but may regulate abortions so long as the regulations do not create an undue burden on the ability to obtain abortions.
ii. After viability --> Govt may prohibit abortion unless necessary to protect a woman's life or health

Front 56

con law -- when is a parental notice/consent for abortion for minors okay?

Back 56

i. Okay, but only so long as state also creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve on basis of (i) in minor's best interest or (ii) minor is mature enough to decide for herself.

Front 57

con law -- scope of 2nd amendment right to bear arms?

Back 57

i. Private individuals have right to bear arms for personal purposes, such as safety
1. Not an absolute right
a. Govt can regulate where guns can be carried
b. Can regulate who can carry guns

Front 58

con law -- scope of constitutional protection of right to vote

Back 58

i. Laws that deny some citizens the right to vote (e.g., a poll tax) must meet strict scrutiny
1. BUT regulations of electoral process to prevent fraud only need be on balance desirable (e.g., reg requiring voters show photo ID are okay b/c aimed at protecting integrity of electoral process)
ii. One person-one vote must be met for all state and local elections
1. Thus, all districts must be about the same as far as population
iii. At large elections (e.g, all voters elect all reps; no districts) are constitutional UNLESS there is proof of discriminatory purpose
iv. Use of race in drawing election districts must meet strict scrutiny
v. Counting uncounted votes without pre-existing standards violates EPC

Front 59

con law -- basic EPC analysis

Back 59

i. Has government drawn a distinction amongst people?
ii. What is the classification?
iii. What level of scrutiny should be applied?
iv. Does this law meet the level of scrutiny?

Front 60

con law -- proving a race/national origin classification where law is facially neutral

Back 60

a. Discriminatory impact, and
b. Discriminatory intent

Front 61

con law -- constitutional treatment of racial classifications benefiting minorities?

Back 61

1. Strict scrutiny applies
2. Numerical set-asides/quotas require clear proof of past discrimination.
3. Educational institutions may use race as one factor among many in admissions decisions to enhance diversity.
a. NOTE --> schools canNOT add points to minority candidates' applications solely on the basis of race
b. Bottom line
i. Educational institutions have a compelling interest in diversity
ii. Cannot set aside spots for minorities
4. Public schools may not use race as a factor in assigning student to schools UNLESS strict scrutiny is met

Front 62

con law -- proving a gender classification where law if facially neutral?

Back 62

a. Discriminatory impact, and
b. Discriminatory intent

Front 63

con law -- constitutional treatment of gender classifications meant to benefit women?

Back 63

1. Gender classifications based on role stereotypes are NOT allowed
2. Gender classifications designed to remedy past discrimination or differences in opportunity are allowed (e.g., difference in IRS formula meant to compensate for historic wage differences)

Front 64

con law -- when will SS not apply to alienage classifications?

Back 64

a. RBT applies to alienage classifications that concern self-government or the democratic process:
i. Voting
ii. Serving on a jury
iii. Being a police officer, teacher, or probation officer
b. RBT applies to allegations of Congressional discrimination against aliens
i. Congress has plenary power to regulate immigration
c. It appears intermediate scrutiny is used for discrimination against undocumented alien children

Front 65

con law -- level of scrutiny to apply to laws discriminating against unmarried children?

Back 65

intermediate scrutiny.

Front 66

con law -- what is a content-based speech restriction?

Back 66

i. Subject matter restriction -- Application of law depends on the topic of the message
ii. Viewpoint restriction -- Application of the law depends on the ideology of the message (e.g., pro-war demonstrations allowed, but not anti-war)

Front 67

con law -- what scrutiny applies to content-based restrictions? content-neutral restrictions?

Back 67

content-based -- SS
content-neutral -- IS

Front 68

con law --what is a prior restraint?

Back 68

A judicial order or administrative license that stops speech before it occurs.

Front 69

con law -- what level of scrutiny are court ordered prior restraints subject to?

Back 69

a. Court orders constituting a prior restraint must meet strict scrutiny
i. NOTE --> gag orders on the press to prevent prejudicial pre-trial publicity are NOT allowed (e.g., highly sensationalized crime; judge orders gag to maintain fair trial; it is unconstitutional).
ii. NOTE --> procedurally proper court orders must be complied with until vacated or overturned.

Front 70

con law -- when can govt require a license or permit for speech?

Back 70

only if
i. There is an important reason for licensing
ii. Clear criteria leaving almost no discretion to the licensing authority, and
iii. Procedural safeguards such as prompt determination of requests for licesnes and judicial review

Front 71

con law -- when is a law unconstitutionally vague under 1st amendment?

Back 71

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed (e.g., tending to corrupt morals of youth)

Front 72

con law -- when is a law unconstitutionally overbroad under 1st amendment?

Back 72

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Front 73

con law -- when is a law regulating fighting words constitutional

Back 73

NEVER. Will always be vague and overbroad

Front 74

con law -- when can govt regulate symbolic speech/communicative conduct?

Back 74

a. Govt has an important interest unrelated to suppresion of the message, and
b. The impact on communication is no greater than necessary to achieve the govt's purpose

Front 75

con law -- when does speech fall under the unprotected category of incitement of illegal activity?

Back 75

a. If there is a substantial likelihood of imminent illegal activity, and
b. If the speech is directed to causing imminent illegality

Front 76

con law -- test for obscene speech under 1st amendment?

Back 76

a. The material must appeal to the prurient interest
i. Prurient interest refers to a shameful or morbid interest in sex;
ii. A local community standard
b. The material must be patently offensive under the law prohibiting obscenity
i. i.e., law must delineate which depictions offend
c. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value

Front 77

con law -- exceptions to 1st amendment's general protection of profane or indecent speech?

Back 77

1. Profane/indecent speech over the broadcast media

2. Profane/indecent speech in schools (e.g., "bong hits for Jesus")

Front 78

con law -- what level of scrutiny applies to govt regulation of commercial speech?

Back 78

intermediate scrutiny

Front 79

con law -- what type of commercial speech can the govt prohibit?

Back 79

1. Ads for illegal activities, and false and deceptive ads are NOT protected
2. True commercial speech that inherently risks deception can be prohibited
a. Govt can prevent professionals from advertising or practicing under a trade name (e.g., TX optometrist law)
b. Govt may prohibit attorney, in-person solicitation of clients for profit

Front 80

con law -- what are the 1st amendment limitations on the ability to recover for defamatory speech?

Back 80

a. P is a public official/running for public office/public figure must demonstrate by clear and convincing evidence
i. Falsity of the statement, and
ii. Actual malice
1. i.e., D knew of falsity or acted with reckless disregard to the truth
b. P is a private figure and matter is of public concern, P must demonstrate
i. Falsity of statement, and
ii. Negligence on the part of the speaker
1. NOTE --> presumed or punitive damages require a showing of actual malice.
c. P is a private figure and matter is NOT one of public concern, P can recover presumed or punitive damages without showing actual malice.

Front 81

con law -- what is a public forum under 1st amendment law?

Back 81

Govt properties that the govt is constitutionally required to make available for speech (e.g., sidewalks and parks)

Front 82

con law -- when is govt regulation of speech in public forums permissible?

Back 82

a. Regulation must be subject-matter and viewpoint neutral
i. Otherwise, SS applies
b. Regulation must be a time, place, or manner regulation (e.g., no loud music in residential neighborhoods at night) that (intermediate scrutiny)
i. Serves an important govt purpose, and
ii. Leaves open adequate alternative places for communication

Front 83

con law -- what is a limited public forum/designated public forum under 1st amendment law?

Back 83

Govt property that the govt could close to speech, but chooses to open to speech (e.g., school facilities opened to community groups)

Front 84

con law -- when is govt regulation of speech in a limited public forum/designated public forum permissible?

Back 84

a. Regulation must be subject-matter and viewpoint neutral
i. Otherwise, SS applies
b. Regulation must be a time, place, or manner regulation (e.g., no loud music in residential neighborhoods at night) that (intermediate scrutiny)
i. Serves an important govt purpose, and
ii. Leaves open adequate alternative places for communication

Front 85

con law -- what is a non-public forum under 1st amendment law?

Back 85

Govt properties that the govt can and does close to speech

Front 86

con law -- when is govt regulation of speech in a non-public forum permissible?

Back 86

a. Regulation must be reasonable and viewpoint neutral

Front 87

con law -- what level of scrutiny are laws that punish or prohibit membership in a group subject to under 1st amendment law? and when is a govt law doing so permissible?

Back 87

SS applies.

a. To punish membership in a group, it must be proven that the person:
i. Actively affiliated with the group
ii. Knew of its illegal activities, and
iii. Had the specific intent of furthering those illegal activities.

Front 88

con law -- what level of scrutiny are laws that require disclosure of group membership subject to under 1st amendment law?

Back 88

where such disclosure would chill association, must meet strict scrutiny

Front 89

con law -- laws that prohibit private groups from discriminating and 1st amendment freedom of association?

Back 89

such laws are constitutional UNLESS
a. Law interferes with intimate association, or
i. Intimate association? e.g., a small dinner party
b. Interferes with expressive activity
i. Expressive activity? e.g., groups with a clearly discriminatory message (KKK, Nazis, boy scouts)

Front 90

con law -- scope of the 1st amendment's free exercise clause?

Back 90

a. CanNOT be used to challenge a neutral law (not motivated by desire to interfere with exercise of religion) of general applicability (e.g., peyote case)
b. Govt canNOT deny benefits to individuals who quit their jobs for religious reasons.

Front 91

con law -- Test for constitutionality of a law challenged under the Establsihment Clause

Back 91

The law is unconstitutional if it fails ANY prong:
a. There must be a secular purpose for the law
b. Primary effect must be neither to advance nor inhibit religion
i. Govt must not symbolically endorse religion or a particular religion
c. There cannot be excessive govt entanglement with religion
i. e.g., govt cannot pay salaries of parochial school teachers

Front 92

con law -- can govt discriminate against religious speech or among different religions?

Back 92

Not unless SS is met.

Front 93

con law -- the establishment clause and public schools

Back 93

a. Govt sponsored religious activity in public schools is unconstitutional

b. Govt can give assitance to parochial schools so long as it is not used for religious instruction.