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36 Cards in this Set

  • Front
  • Back
State Action protected
- The constitution protects citizens from unreasonable interference from the government.

1. What is the government?

2. Can some private conduct be considered "state action"?
What are the 2 State Action Tests?
1. Public Function Theory

2. Nexus/Entanglement Theory
Public Function Theory
A court can find state action in the activities of a private party if that party undertakes functions or assumes powers that the government ordinarily performs or exercises.
Public Function Theory:
Private activities will only constitute state action if?
1. The activities involve a function that traditionally has been performed only by government.

2. The private entity's assumption of the function substantially replaced the government's traditional performance of the function.
Nexus/Entanglement Theory
Examines whether the state's involvement or entanglement with a private actors conduct is sufficient to transform the private conduct into state action, and thus subject to constitutional review.
Are Interscholastic Associations state Actors?
Interscholastic Associations generally are considered state actors. (Rationale; membership is generally public schools funded through tax payer dollars.)
Are National Collegiate Organizations State Actors?
National Collegiate organizations generally are not considered state actors. (Rationale; Intercollegiate athletics was not a function traditionally reserved to the state.)
What is Due Process?
An expected course of legal proceedings which have been established in our system of jurisprudence for the protection and enforcement of private rights.

- Due process guarantees the process not the outcome.

- Admission of guilt negates the need for due process.
Due Process Analysis?
-The starting point is state action.
1. Is their state action?

- What right has been deprived?
2. Life, Liberty or property interests?

- How was their due process right violated?
-Substantive Due Process
-Procedural Due Process
Substantive Due Process
- A rule or regulation must be fair and reasonable in application as well as content.

- Protects against arbitrary (random) and capricious (impulsive/changeable) actions.
What 2 Questions are asked in Substantive Due Process?
1. Does the rule or regulation have a proper purpose?

2. Does the rule or regulation clearly relate to the accomplishment of that purpose?
Procedural Due Process
Examines the decision - making process that is followed in determining whether a rule or regulation has been violated and what sanction should be imposed.

- Fair treatment is the goal of procedural due process.
Procedural Due Process Assesses Enforcement?
- Severity of the violation

- Severity of the punishment

- Procedures used
Balancing Test
Private Interest; That will be affected by the offical action.
Risk of erroneous deprivation; of such interest through the procedures used.
Significance of Goss v. Lopez (1975)
Due Process owed to Students:

1. Statement of specific violations (oral and written notice)

2. Notice of Punishment

3. Opportunity to respond (hearing).
Search and Seizure
The starting point is state action.
- Is their state action?

- Is the conduct a search?

- Is search Reasonable?
Probable cause v. Reasonable suspicion.

- Involves the 4th amendment.
4th Amendment?
The right of the people to be secure in their persons, houses, papers, and effects, against UNREASONABLE SEARCHES AND SEIZURES, shall not be violated, and no warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
New Jersey v. T. L. O. (1985)
Principal searched purse of a HS student b/c she was suspected of smoking in restroom.
- Found Cigarettes and rolling papers.
-Upon finding rolling papers, he continued search and found drugs.
What is the 2 - fold test for reasonableness of a search?
1. Was the search justified at its inception? (was there reasonable suspicion)

2. Was the search reasonable in its scope? (Degree of intrusion on an individuals privacy against governments interest in testing)
Significance of New Jersey v. T.L.O. (1985)
1. The princlipal was acting in loco parentis.

2. The court adopted a lower standard - "Reasonable suspicion"
Reasonable Suspicion
The existence of reasonable circumstances, reports, information, or reasonable direct observation.
Balancing Test for T.L.O.
3 Factors?
1. A legitimate privacy expectation.

2. The charater of the intrusion

3. The nature and immediacy of the governmental concern.
1. Legitimate Privacy Expectation
Does the individual have a legitimate privacy expectation upon which the search intrudes?

Privacy Expectations; are different depending upon environment.(home,school, car, ect.)
2. Character of the Intrusion
In determining the character of the intrusion, the court examines:

1. How the drug test collects samples.

2. The type of information being collected.
3. Nature and Immediacy of the Governmental concern
In other words, is the state's interest in conducting the drug test important enough to justify intruding upon an individuals expectation of privacy?
Vernonia v. Acton (1995)
- Testing based on suspicion of drug use would not be better, but worse.

- Random suspiciousless drug testing is constitutional for student - athletes.
Vernonia v. Acton (1995)
Issue 1
Nature of privacy interest

Decision: Students have a lesser expectation of privacy.

- There is an element of "communal undress" inherent in athletic participation.
Vernonia v. Acton (1995)
Issue 2
Character of the intrusion

Decision: Conditions of test collection are nearly identical to these typically encountered in public restrooms.
Vernonia v. Acton (1995)
Issue 3
Information the test discloses

Decision: Test only looked for drugs, and not other conditions.

- Results were disclosed only to school personnel and were not turned over to law enforcement authorities.

- Invasion of privacy was not significant.
Vernonia v. Acton (1995)
Issue 4.
Governmental interest

Decision: Deterring the drug use of our nation's school children "deemed a compelling governmental interest."
What are the Three Tests used to examine religious practices under the first amendment?
1. The Lemon Test

2. The Coercion Test

3. The Endorsement Test
The Lemon Test
A government practice is unconstitutional if:
- It lacks a secular purpose

- Its primary effect either afvances or inhibits religion.

- It excessively entangles government with religion.
Not pertaining to or connected with religion (as opposed to sacred).

- Worldly rather than spiritual.
The Coercion Test
Under this test, school sponsored religious activity is analyzed to determine the extent to which it has a coercive effect on students.

- Unconstitutional coercion occurs when: The government directs a formal religious exercise in such a way as to oblige the participation of objectors.
The Endorsement Test
The endorsement test seeks to determine if the government endorses religion by means of the challenged action?

- The government endorses religion when it conveys a message that religion is favored; preferred or promoted over other beliefs.
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.