Phase Ii Of E&e Part Ii

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Example 1-S
Voting Rights Act that regulated electoral laws of states and local communities having demonstrated history of racial discrimination in voting and requires federal preclearance and approval of all their election related laws. The act bars implementation of a local voting rights law because it has a discriminatory effect. Allowed under Fifteenth Amendment’s enforcement provision?

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Yes. Under City of Rome standard, Fifteenth Amendment Section 2 power of Congress allows it to prohibit practices that do not themselves violate section 1 of the Amendment, as long as the prohibition is reasonably directed toward enforcement of the Amendment’s underlying principles.
Here, the act curtails the purposeful discrimination/intent element

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Example 2-D
Alice is 16 years old and was recently married. Shortly after her marriage, the state terminated her $550 welfare grant under a law that allows those who are under 21 to receive welfare benefits only if they are unmarried. Doe this law violate Alice’s right under the Fourteenth Amendment (substantive) Due Process Clause?

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Step 1 &2:
Marrying is a fundamental liberty
Step 3: Unduly burden the fundamental liberty?
While state has not specifically interfered with her right to get married, it has indirectly punished her for deciding to marry by terminating her subsistence benefits.
The court held that termination for SS benefits to a child who marries does not imping on the liberty interest; the benefits were relatively low and were not intended to meet subsistence need.
Step 4: Does the law substantially further a compelling government interest?
State will argue encouragement of preventing families from being on welfare. A will argue saving money is not a compelling state interest.
Step 5: Is the law narrowly tailored?
There are less restrictive means (compelling children to go to work or school whether or not they are married)
Law will probably be struck down

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Example 2-M
Robert is suffering from a rare form of cancer. Indicted under state law for taking medication not approved by FDA. Can he raise violation of Fourteenth Amendment due process right to privacy and personal autonomy?

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Robert will probably lose, since the state’s interest in public health will probably be found to outweigh an individual’s liberty interest in choosing his or her own medical treatment.

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Example 2-N
As a result of an automobile accident, James lost use of legs and must breathe with a respirator. He is 36 years old, married, with two children. James has tried to remove his respirator, but each time the nurse promptly reconnected it, citing a state law that requires that all reasonable steps be taken to keep a patient lives. James brought suit, asking state law be declared unconstitutional and that he be allowed to disconnect his respirator and die.

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Unlike Cruzan, there is no doubt here concerning the patients’ wishes.
Assuming the court recognizes a fundamental liberty to refuse lifesaving medical treatment, Cruzan suggested that this interest must be balanced against the interest of the state.

State’s interest: likely to assert preserving life, preventing suicide, and protecting innocent third parties. James is not comatose or suffering extremely severe pain, and he has a wife and two small children. Thus, the state's interest to protect against suicide and harm of third parties likely outweighs James' interest to refuse life saving treatment.

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Example 6-FF
The prosecution in a paternity case used all of its preemptory challenges to excuse from the jury ten men who had previously been defendants in paternity actions.
Does the prosecutor’s action violate the EPC?

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Court held such use of a gender proxy for bias was unconstitutional; instead of employing stereotypical and pejorative notions about a particular gender, the state was required to look beyond the surface to discover possible bias based on gender neutral factors.

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Example 6-GG
State law provides that a father need not pay support on behalf of an illegitimate child unless paternity is established in an action profiled prior to the child’s fifth birthday. IF paternity is so established, the father’s support obligation shall not exceed 50 percent of the amount that would be owned to a legitimate child.
Is that the statute constitutional?

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Unconstitutional.
Class: Discrimination on the basis of legitimacy Mid level scrutiny
Difficult to imagine any reasonable for the 50% limitation other than to punish the mother for having baby out of wedlock.
Five year limitations for filing paternity actions are also problematic.
To meet the substantially related test, the state must allow a reasonable time for those interest in the wellbeing of such children to sue on their behalf. Five year limitation is likely unconstitutional.

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Example 7-B
The state has passed a law providing that, from now on, the state attorney general shall be appointed by the governor rather than elected by the people. May state citizens successfully challenge the statute on the ground that it violates the Fourteenth Amendment Due Process Clause of impairing their fundamental liberty interest in voting?

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The suit should be dismissed. There is no such fundamental liberty under the Due process Clause. Fourteenth Amendment protects only the right to vote an equal basis with other citizens. This right is not violated when all citizens are deprived of the right to choose the attorney general.

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Example 7-D
State enacted voter ID law providing that anyone wishing to vote in person on election day must present a photo ID. Those unable to present such ID may case a provisional ballot at the polls, but must within ten days then go to the local court clerk’s office and present a valid photo ID or sign an affidavit that they are indigent and unable to obtain a photo ID because they cannot afford to pay for the necessary supporting documents.

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Must use the sliding scale balancing approach, under which a court must first assess the extent of the burden that the measure imposes on an individual’s fundamental right to vote.
With the burdens imposed by this law would not appear to be great for most people, it may have the practical effect of preventing some form voting, such as those who for some reasons of time, distance, expense, age or disability cannot make a post voting trip to the local courthouse or those in on indigents who cannot assemble the necessary documents
The court must also look at protecting integrity and reliability of electoral process and safeguarding voter confidence so people will participate in the democratic process.

On balance, case is arguable a close one.

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Example 7-M
In example 7-L, if blacks are concentrated in the southern end of town, district C, the majority black district is probably not bizarre or irregular in shape. What is the likelihood of proving the existence of race based districting?

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P’s would have to prove, through evidence other than district’s shape, that race as the predominant factor in creating district C. Council might also have been motivated by a desire to keep districts compact or preserve community of interest.

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Suppose that in Example 7-M a court found that race was the predominant factor in creating district C. How might the council defend the constitutionality of this majority-minority district?

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Might be able to show that the plan was necessary to eradicate the effects of past discrimination.
Tis will constitute a compelling interest if there is proof that it was the actual goal behind the plan and that at the time the council adapted the plan it had a strong basis in evidence to support a finding of past discrimination.

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CA law provides that during their first year in the state, new residents who apply for welfare may receive a monthly grant no higher than what they would have been eligible for in the state form which they moved.
Purpose: reduce state’s welfare budge.
As a result, P receive $200 less per month. Does this durational residency violate EPC or P&I Clause?

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Even though it imposes a one year waiting period, CA law might not be subject to strict scrutiny. IN contrast to Shpairo v. Thompson, CA does not withhold all welfare benefits from newcomers.

Under strict scrutiny, the state’s interest in reducing welfare costs is important but probably not compelling. Even if it were, the state’s discrimination against newcomers is not necessary to achieving its goal. (Saenz v. Roe)

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Example 7-Q
Under state Z law, those who were resident of state Z when they graduate from high school are entitled to free tuition at the state university. Ted is 25 years old and has been a resident of state Z for the last six years. He was admitted to the state university but was advised that he must pay tuition of $10,000 per year b/c when he graduated from high school he was a resident of state X. Ted has challenged state Z’s tuition policy under PEC and P&I clause.
Will policy be struck down?

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State tuoin policy involved a fixed point residency require b/c to receive the benefit of free tuition, one must have been a state reisdnt at a fixed point in one’s life. This is not a fised date residen requirement.

Court has suggest durational resident requirements for reduced tuition do not impinge on EP right to travel.
Under P&I clause, strict scrutiny should be called for. While the law involves a fixed point rather than a durational residency requirement, state is still denying a realty newcomer the right to be treated like native born or longer term resident of the state.

However, Court adopts portability argument. Take the benefit and run. But this should not constitute a denial of PERMANENTLY DENYING such a benefit to a person like Ted who has resided in the state for six years.

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Example 7-S
State A’s medical school, which is one of the best in the national, provides free tuition to all bona fide residents of the state.
Students who attend the school, but do not maintain a permant resident, are charged full tuition. As a result, Sonya has now been chargedo out of state tuition fo $25,000. Has A violated Sonya’s constitutional right to travel?

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No. Sate A has merely imposed a bona fide residency requirement.

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Example 8-S Jones, an effort to freighted his new African America neighbors, ignited a large wooden cross on their front lawn. He hoped to frighten them into leaving the neighborhood. Upon which apprehended he was charged under a state law that provides: "It shall be unlawful for any person or person, with the intent of intimidating any person or group of persons, to burn or cause to burned, a cross on the property of another, a highway or other public place. Does the first Amendment provide a defense to this charge?

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No. The burning of the cross was intended to convey a message of intimidation and fear. As such, it constitutes a true threat and falls into an unprotected category of speech.
This statue does not proscribe only the cross burning that convey a particular message message beyond intimidation. Focus on cross burning can be seen as partial proscription of the category based not very reason the entire class of speech is describable: intimidating nature of cross burning.

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The state X constitution provides for the popular election of all judges, including justices of the state supreme court. Candidates running for judicial officer are prohibited form announcing their views on disputes legal or political issues. Does the restriction violate the First Amendment?

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Because this content based restriction does nto fall into any specific doctrianl category, the meausre of its constitutionality depends on whether the restriction can be properly characterized as narrowly tailored to advance a compelling government interests.
State X might assert judicial office differs from other elective offices. Court rejects this argument in White. This interest was not found compelling.

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Unity City has adopted a Sunday closing law that porhbits the operation of any non essential business son Sundays. Must retial operations are included within the prohibition. Does theirs law violate the Astonishment Clause on the grounds that it grants a preferred status to a particular religion or group of religions?

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Arguably it does. Historically, Sunday closing laws were passed for Sunday worship. On the other hand, a court could construe the Sunday closing law a s promoting the secular purpose of rest and recuperation. No religion is granted a preferred statues and neither separation nor prefertionalist theories would be violated by the practice.

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Ex 9-E School board adopts a "moment of silent mediation or prary" and the atheist student challenges it.

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Student has a reasonably good argument under separation theory and the Lemon test. Under non-preferential theory, however, her argument is unavailable Neutral manner without preferring nay particular religion.

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Ex. 9-J
Several taxpayers have filed suit in federal court challenging Establishment clause grounds the display of a nativity scene and menorah in the rotunda of City Hall. City permits such displays as long as the cost of constructing, maintaining and dismantling them are not borne by the city. HOw will the court rule?

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Dispate coudl violate first and second elemtns of the Lemon test.
Under teh endorsement modle, city appears to be enrosing two relgions. Coercion model would not necessarily lead to the same conclusion. Passerby in City Hall are not required to acknowledged the display in any manner. Non preferential, as long as teh city's policy is neutrla with the respect to religions symbols, there is no violation of Establishment clause.

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Example 9-R
State of Washington wards Promise Schoalrships to students who qualify for them by virtue of their high school grades, family income, and attendance at accredited college. Scholarships oar for both sectarian andnonsectarian schools. Student awarded decided to change his major to Pastoral Minstrelsy. State takes away scholarship.

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Must a government entity that provides tuition assistance for nonsectarian students at private college provide funding for sectarian studies at those same institution? State's lack of neutrality reflected nothing more than a legitimate desire to promote the anti establishment value of avoiding taxpayer support for religious institutions and practices.

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Jails R Us (JR) is a private corporation that owns and operates jails on behalf of a municipal governments that wish to privatize their jail operations. The JRU facility accepts prisoners from these municipalities on a contractual basis for a set per diem fee. When an inmate is house in a JRU facilitate, he or she is subject to all JRU regulations and to the JRU disciplinary system. Geofrrey, a convicted shoplifter who was transferred to JRU by the City of Metrolex, claims that JRU's disciplinary procedure violate the Fourteenth Amendment. Do the activities of JRU qualify as a state action under the public function doctrine?

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By entering into a K w/ JRU to house Geofrry, Metrolex delegated its governmental authority to JRU and as a consequence the coproration operates as an agency for the municipality, i.e. the state. Moreover, since the punishment for crimes has been traditionally and excsuvely reserved to the states, the housing of prisoners on behalf of a muicpality is a public function within the meaning of the public function doctrine. Indeed, operating a parson is asking to conducting primary elections or governing a company owned town in the sens that all three represent quintessential government operations.

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Example I-G Private school. Student argues that the school violated her First and Fourteenth Amendment rights when itpunished her for wearing an armband. Is the relationship between such a private school and the state sufficient to establish state action under teh theory applied in Burton v. Wilmington Parking Authority? Is the relationship between the state and t private school mutually beneficial to the extent tha thte activity of the private school can be imputed to the state?

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One can certainly argue that the state and the private school mutually benefit form one another. State's mandatory educated law creates a potential market for the private schools. On the other hand, the relationship is not nearly as interdependent as the mutually beneficial economic relationp at issue in Burton. In that case., a private restaurant operated as an indispensable part of teh State's plan to operate its project as a self-sustaining unit. Absent such an interdependent relationship, a court is unliely to find sate aciton. As a consequence, teh more abstract mutal benefit enojoyed by the staten adn th private school will not be adequate to treat teh actiivtes of the school as a state action. Moreover, sicne the state did not require the school to regualt the warning of armbands, state action could nto be found on this ground either.

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A stattue of state Q reuiqres cable televison operators within the state to ban indecent programming on commercial cable channels. CTO owns a cable fanchise within state Q, and pruseuant to the above statue, CTO has attempted to regulate the indecent content on its access channels. Several commercial programmers affected by CTO's actions have filed suit agians the company, claiming a violation oftheir First and FOurteent Amendment rights Do the actions of CTO constitute state action?

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Yes. The state here has nto only encouraged but require dth particular action being challenged. The state has not taken a neturla stand, but has affirmatively commanded cable operators to ban indecent programming. Thus, if the ban violates the First Amendment, the private action enforcing the ban is attributable to the state.

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Brooks' goods were stored in Flagg's warehouse. After Brooks refused to pay the storage costs, Flagg informed her tha ther property would be sold pursuant ot a state law that permitted the private sale of goods under such circumstances. Would the sale of goods constitute a state action?

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Two part test:
Part 1: Yes. Right created by the state
Part 2: No, he did not acted toether with or obtain sigifnactn info from state officials.

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NCAA committe conducted an investigation on the men's table tennis prgram at a state university. NCAA imposed sanctions on the unversity. The unversity decided to remove the player who violated NCAA urles. Player filed suit. Does the committee's hearing procedure violate Due Proces Clause of Fourteenth Amendment, thus constitute state aciton?

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First, consider whether the claim caused by an exercise of a right or privilege create by the state Here the rules were created by teh NCAA. But the university delegated authority over to the university.
Second, NCAA acted together with state officials. Joint activity would seem to constitute state action, but on similar facts Court found there was no state action. State university had not delegated its authority to NCAA since hte university remained free to withdraw from NCAA at any time.

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Whi riminal D charged in state court with assualt African AMerican attempted to exercise his alloted peremptory challenges to exclude American Americans from jry. Prosection object on raicla discrimination. Do the preemptory challenged constitute state action

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First: exercise of a right created by the state? Yes preemptory rules are created by the state.
Second: state actor? Yes, criminal defendant's actions constituted joint activity with the state (could not have been accomplished without assistance of the state judge).