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					            Constitutional Law II


               Wealth Discrimination



Fall 2006              Con Law II      1
Forms of Wealth Discrimination
     Differential Wealth Transfers
           Progressive & Regressive Taxes
           Benefits programs
     Uniform Transfers w/ Disparate Impact
           Fees charged for exercise of fund. rights
             Poll taxes, abortions, criminal defense, marriage
           Fees charged for exercise of non-fund rights
             Education, other health care




Fall 2006                       Con Law II                        2
Wealth Affecting DP Fund. Rights
     General Rule: No positive DP rights
           Failure to fund exercise of DP FR
     Exceptions - Specific const’l guarantees
           Right to Trial Counsel – Griffin v. Illinois (1963)
             6th Am: “In all criminal prosecutions, the accused
              shall enjoy … Assistance of Counsel for his defense”
           Right to Appel. Counsel – Douglas v. Cal (1963)
           Discretionary Appeals – Ross v. Moffitt (1974)
             Unnecessary to protect constitutional integrity of
              criminal process

Fall 2006                        Con Law II                   3
Wealth Affecting DP Fund. Rights
     Access to Civil Proceedings
           Boddie v. Conn (1971)
             Filing fee in divorce case (constitutes deprivation)
             Would state also have to provide free counsel?
             Combination of wealth discrim and FR to marriage
           US v. Kras (1973)
             Refuses to extend Boddie
             Bankruptcy does not stand in same shoes as divorce
                  Not a fundamental right
                  State doesn’t have monopoly in this area
           Orttwein v. Schwab (1973)
             Same as Kras
Fall 2006                         Con Law II                  4
Dandridge v. Williams                           (1970)
     Facts:
           Differential amount of AFDC (welfare) per child
     Precepts
           No DP right to welfare (positive right)
           Can’t discriminate in welfare grants:
             Along suspect class lines (e.g., race, but not wealth)
             If welfare is an EP fund. right
             If burdens some other DP or EP fund. right
     Claim:
           Burdens the fund. right to procreate
Fall 2006                      Con Law II                     5
San Antonio v. Rodriguez                           (1973)
     Disparate Impact
           Different per pupil school expenditures

            Edgewood ISD                 Alamo Heights
  96% minority                      19% minority
  Avg property value                Avg property value
  $5,960/pupil                      $49,000/pupil
  Local exp.= $26/pupil             Local exp.= $333/pupil
  Total = $356/pupil                Total = $594/pupil

Fall 2006                   Con Law II                   6
San Antonio v. Rodriguez                              (1973)
     Disparate Impact
           Different per pupil school expenditures
           Falls along wealth and race grounds
             Wealth Discrimination
                  Purposeful but not suspect class
             Race Discrimination
                  Suspect class but not purposeful

     Fundamental right
           Intentionally discriminatory in exercise of
            education
           Is this an EP fundamental right?
Fall 2006                         Con Law II              7
San Antonio v. Rodriguez                                (1973)
     Free Education as fundamental right
           Textualist arguments?
             Broad textualism (penumbralism) – essential to
              exercise of all other constitutional rights
           Originalism?
             Not provided historicalliy
           Dynamic (evolving constitution)
             Although a fundamental right in most other
              countries (and states), Court rejects approach
           Non-Interpretivist
             Essential to a system of ordered liberty?
Fall 2006                      Con Law II                      8
Plyler v. Doe                      (1982)
     Standard of Review
           Suspect Class?
             Their status is not a “constitutional irrelevancy”
             Undocumented children are “special members of this
              underclass”
             Not suspect, or even quasi-suspect, but almost
           Fundamental right to an education
             Not fundamental (for EP purposes), but supremely
              important
             Education plays a “fundamental role”
             Nature of the burden imposed (means employed)
                  total denial, not just diminished quality
Fall 2006                          Con Law II                  9
Plyler v. Doe                  (1982)
    Standard of Review
           Introducing “rational basis with bite”
    ENDS
           Conservation of scarce resources ($$)
    MEANS         (classification)
           Undocumented aliens denied public education
    FIT (how well does this classification serve state interest)
           Relegating members of work force to illiteracy
            can hardly be in the state’s economic interest
             Poor fit
Fall 2006                      Con Law II                10
Plyler v. Doe                   (1982)
    Standard of Review
           Introducing “rational basis with bite”
    ENDS                                             Is this a
                                                     permissible
           Deterring Illegal Immigration            state
                                                     objective?
    MEANS          (classification)
           Undocumented aliens denied public education
    FIT (how well does this classification serve state interest)
           Illegal immigration is in pursuit of economic
            opportunity, not education, health care, etc.
             Poor fit.
Fall 2006                       Con Law II               11

				
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