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Zach's Spring 2006 Class Notes

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Zach's Spring 2006 Class Notes Powered By Docstoc
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CONSTITUTIONAL LAW: INDIVIDUAL RIGHTS I. INTRODUCTION A. The Constitution itself provides no protection of individual rights except 1. Art. I § 10: contract clause, see below 2. Art. IV: privileges and immunities clause, see below a. ―no State may deny privileges and immunities of state citizenship to out-of-state citizens‖ b. of state cit. => includes all fundamental rights (1) i.e. important rights (2) compare to 14th protection below B. The Bill of Rights provides protection of individual rights: 10 amendments ratified in 1791 1. Applies to Federal gov‘t 2. Includes freedom: a. Freedom of speech b. Right to bear arms c. No quartering of soldiers d. No unreasonable search and seizure e. 5th Amendment: due process (1) Congress and Fed gov‘t can‘t deny due process (a) includes ―no takings‖ provision, see below (b) compare to 14th protection below (2) Includes an equal protection component f. Right to grand jury g. No self-incrimination h. Right to counsel i. Right to trial by jury j. No cruel and unusual punishment C. 14th amendment: 1. Applies to all forms of gov‘t a. To protect rights of newly freed slaves 2. No state may deny due process, equal protection and priv./ imm. of Fed. citizenship a. Fed/state citizenship different (Slaughter House cases) b. Of fed. cit. => unimportant rights (1) Sail navigable waters, when held by a fed. marshal, travel in interstate commerce, go to DC to petition (2) Compare to Art. IV protection above 3. Due Process: 5th Amend applies to Cong, 14 th applies to states. a. No state may deny due process b. Concerns: (1) Jurisdictional: no state court can assert authority unless it has jurisdiction (2) [Selective] incorporation: (a) makes applicable the most important of the first 10 amendments (b) not: bear arms, quartering soldiers, indictment by grand jury, right to jury in civil trials DP protects the following Interests: (3) PDP (4) Sub DP (5) EP II. SUBSTANTIVE DUE PROCESS & THE RATIONAL BASIS TEST A. Economic legislation a. RB Test: Laws relating to substantive rights must rationally relate to legitimate governmental ends. (If they do, that is the end of the inquiry). 2 Parts to Test: (1) Purpose: (a) Must have a legitimate end/ purpose (any conceivable purpose will do) (b) Doesn‘t have to be stated in law, court has to look for one

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b.

c.

d. e.

(2) Relationship: (a) must rationally advance the end (b) don’t have to consider less restrictive means i) Presumption of validity ii) Except FN 4 below  To defeat rational basis, must show that no possibility of any connection to legit ends (that the means chosen are not a reasonable way to accomplish the objective). Carolene Products: Congress passed Milk Filled Act banning the interstate shipment of milk-substitute products; Milnut challenged it as prohibiting their substantive interest (to sell their product) without a legitimate basis (1) Holding: SC upheld as protecting a legitimate heath/ fraud concern under rational basis (2) Footnote 4 Points out instances where RB may not be the test: Court won‘t apply presumptive validity of laws (RB test) to laws that: (a) Violate a specific clause of Constitution (b) Upset the political process: i) Limit free speech ii) Restrict minority interests (racial, religious) b/c harder time using political process instead, the test is compelling state interest, see below Williamson v. Lee Optical: OK law regulating optometry business. Protected mom/pop optometrists; law upheld (even though needless, wasteful) under rational basis b/c: (1) Are there Legit Govt. Ends: Health => if you need prescription, you‘ll get regular eye-exam (2) Does this law rationally relate to legit govt ends? YES. Might advance end (conceivable) so rationally relates (3) The Court will no longer use the DP clause to strike down state laws regulatory of business or industrial conditions because they may be unwise, improvident or out of harmony with a particular school of thought. Must resort to the polls. Daniel v. Family Sec. Life Ins.: Claim that NC legislature was paid off in order to get leg passed. Court rejected because they disregarded the true motive of the legislature. Any conceivable purpose for passing leg was sufficient. Rational Basis is only a little protection for individual DP: (1) State constitution DP may provide higher protection though (2) Today: it‘s rare that anyone challenging under rational basis wins, but SC decides a case every year anyway. Laws almost always upheld.

III. NON-SUSPECT CLASSIFICATIONS (EQUAL PROTECTION/RATIONAL BASIS) A. EP RB Test: (1) classifications must rationally relate (2) to a legitimate government end. B. DP v. EP 1. DP: concerned about the wisdom of the overall legislation 2. EP: concerned about classifying/discriminating against people for one reason or other. C. Social and Economic Regulatory Legislation 1. Regulations (almost) always pass RB a. Examples of regulations were upheld under RB: (1) Railway Express Agency v. NY: NY law prohibited advertising on vehicles, with an exception for vehicles engaged in the usual business/ regular work of the owner (as long as main reason wasn‘t advertising)... REA brought suit saying unequal treatment of the 2 classifications and that the distinction wasn‘t justified by the aim of safety via less distractions (ads) (a) Holding: SC upheld regulation, presuming that leg. could have concluded that owners of business advertising did not present same safety hazards as those advertising for others... not the kind of discrimination protected by EP. (b) Analysis (court approached as DP issue) i) Do classifications rationally relate to safety? ct said yes b/c ads for self usually less distracting than when paid so does rationally relate to safety (2) Williamson v. Lee Optical of OK: EP claim not valid to portion of law that exempted sellers of ready-to-wear glasses from regulations on opticians (classification of prescription and cheap reading

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glasses ok) IMPORTANT: see above under DP- was a better argument in this case. (3) ON TEST: choose whether EP RB or DP RB, don‘t use both. (4) FCC v. Beach Comm: cable regulation had a definition of cable it regulated that essentially excluded one group from regulation (if buildings commonly owned, and signals didn‘t have to cross street- but SMATV, same situation but not commonly owned was included in regulation). Ct of Apps held it unconstitutional, but SC reversed; (a) Used rational basis, which means strong presumption of validity...legit end was fairness i) Did classification rationally relate to rate fairness? ii) Court found two possible (―conceivable‖) basis for distinction (smallness, influence, even though neither one legit), so statute was constitutional. (b) Doesn‘t matter if there are easy, better alternatives as long as it‘s rational. (c) Here, Congress offers no reasons fo rthe law, but court intuits several reasons that Congress might have passed it, which is enough for RB test. (d) Holding: In areas of social and economic policy, a statutory classification that is neither suspect nor infringes fundamental constitutional rights must be upheld against EP challenge is there is any reasonably conceivable state of facts that could provide a RB for the classification.  EP is NOT a license for courts to judge the wisdom, fairness, or logic of leg choices (that is DP). (5) Heller v. Doe: KY mentally retarded people challenged statute (1. lower burden of proof for invol. civil commitment for mentally retarded than mentally ill, 2. participation in proceedings by rel. of mentally ret. but not mentally ill) and lost; (a) SC upheld b/c state satisfied rational basis test by offering the following justifications: easier to diagnose whether or not retards are dangerous, retard is a stable/ permanent condition, retard treatment is less invasive, retard always sets in while retards are under care of rel., while craziness may be older (also, need for privacy) (b) In this case, there is actually a rational, rational basis (unlike Beach) (6) Nordlinger v. Hahn: CA Prop 13 (stating that property tax would be based on whoever the tax base was in 1975-76 until the person moved, triggering a new assessment) upheld; classification- new home buyers to pay higher taxes than long-time owners- rationally related to end of stability of communities (7) Vance v. Bradley: rational to make retirement age at job under agency A, X and age Y at same job under agency B. Maybe concern is stress of the job. Not necessarily true, but meets RB test. (8) Mass. v. Mergia: Mass had a retirement age of 50 for police officers because it was concerned with fitness. Mergia was an ox at age 50 but forced to retire. (a) Issue: Does this mandatory retirement age rationally relate to legit govt interest? YES. (b) EP tests the law in its overall application, not as it is applied to particular individual. (c) Passes EP Rational Basis test even though the law is wasteful and unwise. RB test does not allow the court to look at reasonable adequate alternatives such as a more stringent physical examination. Can only worry about whether the law rationally relates to the legit govt. interest. (9) US RR Retirement Board v. Fritz: line was drawn based on how recent rather than how long an employee‘s railroad service had been was constitutional. < 10 no double pension, 10-19 only if you currently worked for RR, you got double, > 20, double pension—classifies; survived EP b/c rational relation in rewarding currently working. (10)Swiker v. Wilson: Congress wanted confined people in state hospitals get $200 as disposable income, but Congress didn‘t want prisoners to get it... so classified it by whether or not institution got Federal Medicaid system...problem is, not all states use Fed. Medicaid system; SC still passed law under rational basis even though it didn‘t accomplish Congress‘ goal (said well maybe Congress wanted states to have Medicaid first- even though they definitely didn‘t (it was conceivable)). b. Court has only struck down one purely economic (or distribution of gov‘t benefits) case in modern era.

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(1) Morey v. Doud: Struck statute that imposed requirements on all issuers of money orders except AMEX. (a) Court reviews as a Closed classification b/c AMEX was only company named so subject to stricter review than rational basis. (b) RULE: Closed Classifications are viewed more strictly in applying the RB test than others. (2) SC later overruled Morey v. Doud in Duke: overruled Morey when upheld statute as rational that prohibited food carts in French Quarter of New Orleans. Legit purpose was to preserve charm of French Quarter. IV. THE CONTRACT CLAUSE A. Art.1 § 10: ―no State shall pass any law impairing the obligations of contract‖ 1. The state can‘t retroactively impair: a. State contracts, OR b. Contracts between Private Parties c. Exception: states can reserve the right to change corporate charters in the future. Dartmouth College 2. K Clause ONLY applies to STATE LAWS that retroactively impact preexisting K rights. K clause is not applicable if the law applies prospectivly. a. impairment clause doesn‘t touch federal laws b. if a fed. Law impair contractual relations, gets the DP rational basis/due process test.  REMEMBER: Watch out for question having federal law impairing Ks, which would not be a problem under the K Clause. It is only an issue if a state law impairs preexisting K rights. B. Modern Test for K Clause: 1. 2-part test: a. A state law must have operated as a substantial impairment of a preexisting contractual relationship. (1) Some impact is NOT enough, but doesn‘t have to be complete destruction of contractual rights. (2) Consider rx expectations of the parties (if within those expectations, law is less of an impairment). (3) Look at whether or not the industry is heavily regulated (if it is, it‘s harder to show substantial impairment) b. Use the Public Purpose Balancing Test (1) Is there a significant, legitimate public purpose? If yes... (2) Are adjustments reasonable given the purpose? 2. HYPO: An unwed mother enters in a contract to sell her child to adoptive parents when her child is born for $40,000 in expenses—ok K. The state then passes a law before she enters into that contract saying contract for transfer of child in adoption is invalid. All are canceled and must got through normal adoption procedure. Raises K clause issue because the K clause only applies to laws that retroactively impact preexisting contract rights. 3. PUBLIC K: US Trust Co. of NY v. NJ: NY and NJ Port Authority‘s income from bridge/ tunnel tolls were pledged to the retirement of issued bonds. In 1960 A took over a privately owned commuter train. Bond holders thought train might bankrupt A and cause retirement of bonds, so states passed a 1962 Statutory Covenant prohibiting this/ reserving tolls for bonds. In 1974, both states repealed it. Holders sued; did the state retroactively impaired its contract? a. Yes: this violated the Contract clause by impairing its contractual obligations where there were other, more moderate alternatives available. (1) Application of public purpose balancing test (2) Public purpose = providing public transit systems was valid, but unrelated to the K rights, therefore, was outweighed by impairment of K. I.e. public purpose didn‘t justify the impairment b. This was public K, which means Court will apply the public purpose/ balancing test more strictly than when analyzing private Ks. 4. PRIVATE K: Allied Structural Steel v. Spannaus: A had an office in MN and had a legit pre-existing pension plan (vesting between 15-30 years). A closed office because MN had a law that required A to pay

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out even unvested plans if it closed office (under statute vested in 10 years); a. Issue: was there a substantial retroactive impairment? yes, interfered with perfectly legit contract between employer and employee (1) Public purpose balancing test outcome? public purpose = protecting employees (not a great interest b/c only applied to companies with pension plan, punished only if closed during the one year period) (2) Substantial contract impairment > public purpose so contract wins over the law. b. This was a private K C. Recent Trend 1. Still use 2-part test: a. But it is closer to rational basis in terms of how easy it is to pass b. Any type of justification will pass 2. Energy Reserves v. Kansas Power: KS entered into K‘s with ER to purchase nat. gas that contained clause that said price would rise to any price fixed by any gov‘t authority (i.e. the escalation clause). Congress passed Nat Gas Policy Act- one section (102) said one price from newly discovered gas, while another (109) said diff. (lower) price for old gas reserves (but provided that states could pass regulations for less/ not more). KS passed statue using latter price; a. SC said that was fine b/c, unless State was a party ―courts properly defer to leg. judgement as to the nec. and reasonableness of a part. measure.‖ b. This case considers reasonable expectations of the parties under the substantial impairment prong. 3. Exxon v. Eagerton: AL‘s Act increased severance tax on oil/ gas and prohibited passing increase to purchasers. But, some were in K‘s established before enactment; SC said didn‘t violate contract clause b/c applied to all. K Clause not very significant in its application. V. THE ―NO TAKING‖ OR JUST COMPENSATION A. 5th Amendment: ―No taking of private property for public purpose without just compensation‖ 1. Requirements a. A compensable taking (1) Must be for ‗public use‘ even if ‗private‘: if gov‘t is willing to pay for it, then it‘s public use (Berman v. Parker). Must be a rational basis for the public use or benefit.  Example: public use for gov‘t to take property from a tatoo parlor and give it to life ins. co. See Penn Central. (2) Any direct appropriation is a taking (a) If it is a taking, must do compensation analysis (b) If it is a regulation, must do a rational basis analysis b. Must be a rational basis for the public use c. Just compensation: if it is a taking, the gov‘t must pay the market value to the seller, not the market value to the buyer, which may be dramatically different. B. Compensable takings requiring ―Just Compensation‖: Compensable takings are as follows: a. Physical Invasion, OR b. No economically viable use of the land left 2. Physical Invasions = per se taking a. Physical Invasions: Either the gov‘t itself or the gov‘t allowing others on it. (1) US v. Cosby: during WWII, planes flying over farms made chickens lay eggs with thinner shells; this was a compensable taking b/c it was a physical invasion. Noise effects the value of the chicken farm. (2) Kaiser Aetna v. US: Govn‘t said that a privately owned landlocked lagoon had to changed for public use. Court held that it was a physical invasion because it required that he allow other people to come on his property. b. Even if de minimus effect on value (1) Loretto v. Teleprompter: apartment owners had to allow cable to run on the roof of units; was a compensable taking even though didn‘t affect value b/c it was a physical invasion.

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3. Taking of all Economically Viable Use = Taking a. If no value left for purpose it was bought (1) Lucas v. SC Coastal Council: L bought land to build 2 houses, then SC passed Beachfront Management Act which prohibited building houses, so land was now valueless; was a compensable taking b/c no value left for reason it was bought (2) PA v. Mann: Coal Case 1: law said you couldn‘t take coal out from under houses; was a compensable taking (3) HYPO: Person buys prop in business area where worth 2K per acre. The city changed zoning and residential area where prop worth 500$ per acre. Taken 75% of value. (a) Does that constitute a taking? No. Not a taking if not taken away all economically viable use of land. b. Unless Nuisance 4. Other zoning laws and regulations are usually are not compensable takings b/c zoning gives value and takes value away. a. Coal Case 2: Eastern Enterprises v. Atfeld: 1946 E owned coal mines (no laws on providing medical liability). 1965 E got out of mining but still owned subsidiary that mined. 1978 law said mining companies had to provide full medical benefits. 1992 law changed said if company at all involved in mining, is liable for full medical benefits of past employees (kids, widows); would cost E $50-100 mill. 4 members of court said taking, 1 said regulation so rational basis/ due process issue and it‘s irrational = 5 so law invalid.  RULE: Regulation was too extreme and thus was a compensable taking. b. Examples of Non-Compensable Takings: (1) If it creates a Nuisance, it‘s NOT Compensable (taking, but not compensable) (a) Miller: Red Cedars added value to property but they had red cedar rust and harmed neighboring apple trees. Miller had to cut down re cedars at his own expense. Court found that when property harms other than property owner, property owner can be required to eliminate the nuisance, even if it takes away all economically viable use of their property. No compensation. (b) Godblatt: Gravel is taken from quarry over many years and kids play in quarry and drown. City ordinance closed the quarry leaving no economically viable use. Court found that this was not a taking because it was a regulation that was abating a nuisance. (2) HYPO: You buy it to build residential, then it‘s zoned industrial so lose some econ value, but not all econ. viable use = it‘s not compensable. (3) Penn Central Trans. Co. v. NYC: Penn central buys Grnad Central to use airspace above for a hotel. Changes to building had to be approved by historic committee which refused to allow hotel. Not a compensable taking because it was a taking of airspace and the denial did not prohibit the principle use of the station. Also, the use of the building as a railroad station was their rx basedco investment expectation when the building was purchased. C. Exaction Cases: (imposing limits on exactions) 1. Exaction: condition imposed on the change of use of prop. a. i.e. the gov‘t will allow owner to change the use if certain condition(s) met b. 2-part test: (1) Is there an essential nexus between the exaction imposed by the govt and the purpose for the exaction? (Nolan Case) (a) conditions must rationally advance a gov‘t interest (b) as long as gov‘t does not give a bad reason, it‘s ok (2) Rough proportionality test: exactions (conditions imposed) must bear some rough proportionality to the harm caused by the change of use (e.g., there must be some rough relationship between what you are exacting and what the change of the prop is) (Dolen Case). 2. Nolan: owner of house on beach wanted to tear it down and build new one... CA coastal commission said ok IF owner allowed public beachfront access (would actually join public beaches, but said it would ―provide

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visual access‖); when gov‘t conditions change of use, there must be an essential nexus (conditions must rationally advance gov‘t interest)...in this case it didn‘t advance visual access, so it was a compensatory taking. 3. Dolen Case: hardware store wants to double size of parking lot... city says ok if: 1. give us some property you own that‘s a flood plane and 2. give us a 15 ft strip for bike path; 2 requirements1. Is there in essential nexus? city said parking lot would increase run-off/ flooding, so they needed flood plane => sort of connects, city said more people going to store would mean more traffics and bikes would off-set this => sort of connects. 2. Rough proportionality test: conditions bore rough proportionality to the harm caused but in the end, she didn‘t have to give the property to the city b/c giving over title is going too far, but did the bike path. VI. FUNDAMENTAL RIGHTS & THE CSI TEST A. THE ―RIGHT‖ TO PRIVACY/ PERSONAL AUTONOMY 1. The right to privacy is considered ―fundamental‖ (only 3 fundamental rights, which all get CSI level of review). a. The Supreme Court accords special constitutional protection for interests relating to personal autonomy and family relationships (1) Other fundamental rights are enumerated in Bill of Rights (2) But privacy comes from penumbra relationship (aura emanating from the Bill of Rights): (a) Right to free speech (connection => right not speak is also the right to be silent => privacy of thoughts/ also freedom of religion) (b) No unreasonable searches/ seizures (connection => zone of privacy (Katz)) (c) No quartering of soldiers (connection => privacy in home) (d) No self-incrimination (connection => privacy as to acts you‘ve performed) (e) Ninth amendment catch-all (connection => one of the unidentified rights could be privacy)don‘t use b/c there is no set level of protection (and SC doesn‘t use) b. Use CSI Test: laws affecting this are held to a higher standard than regular 14th rational basis protection (1) i.e. are subject to strict scrutiny (2) Compelling State Interest Test: the law regulating a fundamental right must be: (a) narrowly tailored to accomplish i) i.e. necessary ii) Consider any rx adequate alternatives (b) a compelling state interest 2. Right to Privacy does include: a. Procreation/ Use of contraception: for married and single people, but not to minors. (1) Griswold v. CT: Statute says can‘t give out/ use contraceptives, even married people... docs convicted of violating state statute by providing birth control... reversed; SC invalidated statute b/c in zone of privacy/ penumbral rights of privacy and repose... SC finds the fundamental right of privacy based on: (a) society values marital privacy (b) past precedent that seem to protect certain interests from gov‘t interest (c) relationship to other US Constitutional provisions, see above (2) Eisenstadt v. Baird: right to privacy (procreation/ use of contraception) extended right to single people b/c there is no rational basis to distinguish btwn single/ married people (3) Kerry v. Population Services Int‘l: right to privacy (procreation/use of contraception) is NOT extended to minor. b. Family Choices (certain types): (1) Child-rearing (a) Strict Scrutiny Test: i) Moore v. East Cleveland: city ordinance restricted occupants of residence to ―family‖... narrow definition of family (same line of family) did not include grandmother/ son/ son‘s son/ other grandson; ct invalidated statute under DP, even though others with broader family definitions had been upheld

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a) got strict scrutiny/ compelling state interest b/c child-rearing protected within fundamental right to privacy b) ―when a city undertakes such intrusive regulation of the family the usual judicial deference to the legislature is inappropriate.‖ c) state interest: integrity/ quality of neighborhood failed under CSI b/c this was a family/ child rearing problem so standard of review elevated (b) If ―related‖ is the requirement standard would i) get rational basis test ii) Michael H.: CA statute where irrebuttable presumption that husband is father (despite scientific evid.) got rational basis review and was valid. Indicates that scope of Moore case for family rights not as great as think. (2) Marriage (a) Reasonable regulations on the right to marry get the RB Test, BUT i) If don‘t significantly interfere ii) Including: a) law banning marriage to 1st cousin b) marriage license laws c) one of each sex requirement (b) Unreasonable regulations that place significant restrictions on traditional marriages get CSI test: i) If significant and unreasonable ii) Zablocki v. Redhail: WI statute prohibited someone from getting married if they owed child support; Court struck statute referring to the right to marry as both fundamental in itself and fundamental as part of the ―right‖ of privacy. Violated equal protection and was not justified b/c prohibition did not get the money and there were other/ better means available. a) Interest is compelling people to meet obligations b) But this is not the best way to do this (ex: garnishment, jail, etc. would be better)— Failed relationship part of the test. (c) Hypo from old Test: i) Facts: Law allowing gay marriages if not married to first cousin. Two men want to marry. ii) Level of Review: RB, but purpose of the law was to prevent the passing on of inherited common traits leading to mental retardation. With regard to gay marriages, not a legit concern. c. Right to Abortion: (1) Fundamental right gets undue burden test – cannot place undue burden on abortion decision. (Casey) (a) Roe v. Wade: ―the Constitution protects a woman‘s right to terminate her pregnancy in its early stages‖ i.e. procreation decisions (from 14th due process => liberty incl right to privacy => incl. procreation, and is fundamental). The right of personal privacy includes the abortion decision, but it is not unqualified and must be considered against important state interests in regulation. SC used compelling state interest test (abandoned in Casey) i) at some point the state interests as to protection of health, medical standards, and prenatal life become dominant- point is viability ii) Trimester system (abandoned in Casey) a) 1st trimester mom > baby so ok (baby‘s life not compelling state interest) b) 2nd trimester mom = baby so some state regulation ok (medical risks may = compelling state interest) c) 3rd trimester mom < baby (viability) so state can regulate/ prohibit (baby‘s life is a compelling state interest (but state can never prefer life of baby over life/ health of female)) (b) Planned Parenthood of SE Penn. v. Casey: the right of a woman to terminate doesn‘t prohibit state from taking steps to ensure that this choice is thoughtful and informed at any stage. Casey upheld Roe v. Wade fundamentally, but modified it by cutting it back: i) Rejected trimester distinction b/c too rigid; replaced with point of viability a) Pre-viability, no regulation by state allowed

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b) Post viability, state can regulate ii) RULE: Laws regulating abortion CANNOT place an ―undue burden‖ on the abortion decision. iii) Instead of compelling state interest test, use undue burden test a) A valid law won‘t be struck just b/c incidental effect is expense, difficulty, but it can‘t be a substantial obstacle to getting an abortion before viability b) State can express respect for unborn life if:  Regulation doesn‘t effect a woman‘s right to choose or  Regulation promotes woman‘s heath iii) Held: 24 hour waiting period not an undue burden (c) Other categories of abortion decisions i) Informed Consent: women must give informed consent/ must be provided with certain info to the inherent risks in the operation 24 hrs prior to abortion (overruled past precedent). ii) Report Keeping: All reporting requirements of abortion facilities are upheld.  Exception: cannot require to give so much detail that can tell who had abortion. That would fail undue burden. Also right to privacy. iii) 24 hour waiting period: undue burden. iv) Spousal Consent: Court struck provision that said that married women must indicate husband‘s consent b/c violates right to privacy. v) Parental Consent: for minors, consent of parents may be required provided that there is a judicial bypass provision a) Bypass requirements (must have 2 elements or not constitutional): i Judge must have discretion to decide whether the minor is sufficiently mature to make her own decision ii If not found to be mature, the judge must have discretion to decide what is in the best interest of the minor. vi) Medical Regulation of Abortion Procedures: a) Court has not upheld any attempt to regulate abortion procedures. Requirement is that there must be a decision between the female and the doctor. i Exception: Court allows regulation of late 2nd and 3rd term abortions that otherwise illegal. When life of the fetus is at risk. Court will allow test to make sure that a viable fetus is not being aborted. ii Exception: Court will allow test to determine the point of viability. iii Exception: 2nd Dr requirement for abortions after the point of viability is constitutional, provided there is an Emergency Exception when life of the mother is at risk. b) Steenberg v. Carhart: state law banned funding for partial birth abortions. Court struck down b/c defined too broadly so that it could ban abortions before the point of viability along with post viability. State can only define medical procedure post-viability, not prior.  RULE: Ban on med procedures prior to the point of viability is NOT constitutional. After the pt of viability, state can ban abortions, but must define the procedure clearly as to not be too broad. (2) Abortion Funding Decisions: get RB test; not Undue Burden Test (a) Due process means right to that freedom, not entitlement to funds to exercise that freedom i) Get rational basis test ii) Look for gov‘t obstacles placed in path of women‘s ‗right‘ (b) Harris v. McRae : The Supreme Court held that the Hyde Amendment of Title XIX of Social Security Act: i) Didn‘t require a participating state to pay for abortions where the state was prohibited to use any federal funds to reimburse the cost of abortions under the Medicaid program (except under certain circumstances)- even though delivery was covered ii) Passed RB: a) was rationally related to a legitimate state interest (protecting life of the fetus)

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b) protecting potential life = legitimate interest (but still fails compelling interest test) iii) Was valid, doesn‘t violate any Constitutional provisions a) SC looked at Maher v. Roe: constitutional freedom from Wade didn‘t include an entitlement to Medicaid payments for abortions that weren‘t medically necessary... Wade didn‘t prevent state from favoring life over murder through implementation of public funds b/c that doesn‘t impose gov‘t restrictions on access to abortions... like Maher, the Hyde amendments place no gov‘t obstacle in the path of a woman‘s right to choose- it‘s merely unequal subsidization that encourages an alternative that is deemed more important to public interest b) financial restraints restricting her right to choose abortion are not the product of gov‘t obstacle => her own indigency is the burden (c) Russ v. Sullivan: CA law says that Planned Parenthood [who got federal funding] can‘t give information to patients about abortion as an alternative to other kinds of planned parenthood decisions. Considered a funding decision and passed RB test b/c govn‘t can‘t prefer full term pregnancy over abortions. The free speech and right to choice challenges were rejected and the rational basis test was upheld. The legitimate state interest was upholding protecting life over abortions. (d) Case: All state hospitals are partially funded by the state. Thus preventing state hospitals from doing abortions were funding decisions and were rationally related. d. Adult Decisions to Refuse Med Treatment: (1) Cruzan v. Director of Missouri Dept. of Health: Cruzan was in an auto accident and was vegetable. Parents wanted to remove food and water to allow her to die. (a) Adults could refuse food, med. treatment if it is voluntarily taken by a person, who is i) Competent and aware of the decision at the time they are making it or ii) If there was clear and convincing evidence to show person consented before they became incapacitated, it could be allowed. (This is what later happened in the case.) a) Nothing in case recognizes or suggests that there is a right to die, only assumes that there is right to refuse food or drink. b) This holding only related to validity of the state having a C&CE standard. (b) See also below for right to die (2) Clear/ convincing standard for guardians refusing for minors 3. Right to Privacy may/ may not include: a. Right to confidentiality/ privacy (1) Whalen v. Roe: Docs had to turn over to Bureau drugs they prescribe. Issue: did patients have a right to privacy? SC never decided if right included keeping info confidential b/c info would never be revealed in this case so if it was included in the right, it wouldn‘t have been violated, but if info was used in a way that harmed them, then it may be protected. 4. Right to Privacy DOES NOT include: a. Right to engage in Homosexual Sodomy: RB Test (1) Bowers v. Hardwick: challenge to GA law prohibiting sodomy...there is no fundamental right of homosexual sodomy b/c court looked at societal views and acceptance. Gets RB test (can do in the house, but not outside). NOTE: no attempt to show that the law irrational in this case, but probably wouldn’t pass RB. HOWEVER . . . (2) Romer v. Evans: CO prevented homosexuals from being protected from unfair discrimination. Court struck down the law on RB grounds. b. Right to die: RB Test (1) No fundamental right to physician assisted Suicide: (a) WA v. Glucksberg: WA laws included 1.felony to help/ aid suicide, 2.Natural Death Act; withholding/ withdrawal of life-sustaining treatment is not suicide BUT express exclusion of physician assisted suicide (added after WA voters struck down initiative that would have legalized it); SC upheld law deciding:

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i) Whether the ―liberty‖ specially protected by the Due Process Clause includes a right to commit suicide? no, b/c historically not protected right and is still being rejected by states ii) Since not fundamental right, is WA law constitutional? yes, a) Use rational basis test b) Law is rationally related to the following gov‘t interests: preserving human life, protecting integrity/ ethics of medical prof., protecting vulnerable groups, preventing possible voluntary and involuntary euthanasia (b) HOWEVER, states can make assisted suicide ok (i.e., Oregon) (2) No fundamental right to die: (a) Not fundamental itself or a part of privacy, see right to refuse medical treatment above (b) Does not exist when it was made on another's behalf (Cruzan): no substituted consent. (c) Backo v. Quill: Whether a doctor may prescribe high level of painkillers to kill terminally ill patients is a fundamental right? Court of Appeals said that there was no fundamental right involved. Distinguished from physicians giving painkillers to ease pain when dying. VII. Equal Protection Clause A. Overview 1. 14th amendment EPC says: a. No state shall ―deny to person within its jurisdiction the equal protection of the laws‖ b. also, in 5th amendment due process, there is an equal protection clause 2. EP v. DP: a. Due Process (DP) (1) Concern for overall substantive interest (2) Can the gov‘t restrict? (3) Level of review depends on type of legislation (a) RB (permissive scrutiny) (b) Fundamental rights => CSI (strict scrutiny) b. Equal Protection (EP) (1) Concern for classification (2) Similar situations should get similar treatment (3) Level of review depends on type of legislation (a) Ordinary social and economic legislation => rational basis (b) Suspect classifications get higher review i) Gender => mid level ii) Race => CSI (c) Fundamental rights => CSI, see above B. SUSPECT AND QUASI-SUSPECT CLASSIFICATIONS 1. Race-based Classifications (and Ethnic Origin) = Suspect a. Historical cases (1) 1880: Stratter v. WV: WV passed law that said had to be white, male, citizen, 21+ to serve on jury; gender classification passed, but race classification‘s review was raised b/c inherently unreliable/ inaccurate, there are better ways, 14th‘s commitment to prevent use of race-based classifications. (2) 1895: Plessy v. Ferguson: LA statute that allowed for separate seating on coaches for blacks and whites was upheld as constitutional; (a) Court used RB and found the separation reasonable. (b) ―Separate but equal‖ doctrine => equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. (3) Loving v. VA: VA statute made it illegal to marry someone of another race...L‘s married in DC, then moved back to VA...found guilty, sent out of state... they wanted to move back, so brought suit (a) Issue: whether preventing marriages between persons solely on the basis of racial classifications violates the EP and DP clauses of 14th amend? (b) Yes => ―the EP clause demands the racial classifications be subjected to the ‗most rigid scrutiny‘ and, if they are ever to be upheld, they must be shown to be necessary to the

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accomplishment of some permissible state objective, independent of the racial discrimination, which it was the object of the 14th amend. to eliminate.‖ (c) CSI Test: Must be narrowly tailored to accomplish CSI.  When determining whether narrowly tailored look for rx adequate alternatives, or least drastic alternative. (4) Palmore v. Sidoti: FL court took custody away from mom b/c she married a black man; SC reversed b/c it didn‘t survive the strictest scrutiny (must be justified by a compelling gov‘t interest and must be necessary to the accomplishment of its legitimate purpose). (5) HYPO that fails CSI: Forbidden to move to neighborhood where you were a racial minority or would create a clear and present danger of racial violence. This is a race based classification. Does not pass CSI test – because a rx adequate alternative is greater police protection for minorities. (6) HYPO that Passes CSI: Prison situation where there is racial violence. Prison officials have tried all possible ways to prevent violence but cannot. After people start to dies, the warden temporarily divides the prison race. This satisfies the CSI test because there is no rx adequate alternative. (7) Races protected by the EP clause (a) African-Americans (Slaughterhouse) (b) Chinese (Hopkins) (c) Japanese (Korimatsu) (d) Hispanics (Hernandez) b. Court found race based classifications in the following cases: (1) Korematsu v. US: evacuation upheld, even though US citizen and no question of loyalty: ―All restrictions which curtain the civil rights of a single racial group are immediately suspect...not ... all ...are unconstitutional... [but are] subject... to the most rigid scrutiny. RULE: Pressing public necessity may sometimes justify the existence of such restrictions. (2) Yick Wo v. Hopkins: (statute fair on face but administered in a way that results in racial discrimination). San Fran had permit scheme for laudromats that appeared to be racially neutral but really a race based operation that discriminated against Chinese. Court found to be per se invalid b/c based on racial antagonism.. (3) Guinn v. US: (statute does not on its face make a racial classification in fact was designed to discriminate against a racial group). OK law required literacy test before voting unless direct decendent voted previously. The law was facially neutral but the Court found that it was a race based classification because it didn‘t allow blacks to vote. Court used per se approach. (4) Jefferson v. Hackney Law caused elderly and blind to receive more welfare than those with children (mainly Hispanic). RB Test. Found that just because there is a disproportionate distribution didn‘t mean there was a race-based classification. c. Public School Segregation Cases Two key principles to schol cases:  1) Constitutional Violation: fed courts limited to correcting const violations (cannot pass leg or create policy)  De Jure Segregation (intentionally state created segregation: no authority to remedy de facto segregation)  2) Remedy is limited to the wrong (1) The EP clause of the 14th amendment prohibits the states from maintaining racially segregated public schools (a) Brown v. Board of Educ.: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‗tangible‘ factors may be equal, deprive the children of the minority group of equal educational opportunities? i) Yes, ‗separate but equal‘ b/c separate educational facilities are inherently unequal. (didn‘t decide Plessy was wrong) ii) Evidence was based on social science on segregation in schools, but afterwards, declared all race-based segregation unconst. without reasons

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iii) After Brown, Court used Brown to strike down ALL race based classifications in public schools. (b) Bolling v. Sharpe: the 14th doesn‘t apply to District Colombia (gov‘t), and the 5th (applies to gov‘t) only has DP clause. Can there be school segregation in the District? i) No, fails due process b/c fails rational basis test: ―segregation in public education is not reasonably related to any proper gov‘t objective, and thus it imposes a burden that constitutes an arbitrary deprivation of their liberty in violation of DP clause.‖ ii) Classification as applied to gov‘t, question is does it violate equal protection component (2) Remedying the constitutional violations (a) The district courts have the power to remedy constitutional violations/ authority to desegregate (i.e. order schools desegregate and oversee it) i) Requirements allowing remedy a) must be intentional acts by board to make/ maintain segregation (intentional harm) b) existence of currently segregated schools (harm continues) ii) Brown II Remedy for 100 yrs of state enforced violation. Problem with integration was communities were segregated around the schools a) So now: local school boards had to work out remedies (under supervision of fed. dist. ct judges) and integrate with all deliberate speed b) But, in 1955-1963, there was no increase in school integration iii) Swann v. Charlotte: challenged the use of bussing to desegregate...SC said district court can use all equitable remedies to achieve integration a) What remedies to segregation are appropriate? RULE: Remedies must be reasonable, feasible, and workable b) More specifically, how can race be used to remedy unconst violations based on race? 1. Race-based Quotas: ok to be used as a starting point but there has to be a sense of flexibility (not mathematical quotas) 2. Single-race schools: still might be some even when attempt to desegregate. Does NOT mean unconst. Majority to minority transfer (whereby majority students to transfer to minority schools) is ok. 3. Use of race in altering attendance zones: OK remedy i. Can court ignore pre-existing district lines that were not drawn in order to segregate but just for convenience in order to desegregate? ii. Yes, it can only remedy constitutional violations de jure (so only if lines intentionally drawn to segregate) 4. Mandatory busing: ok remedy as long as reasonable, feasible, workable (b) Dejure v. De Facto Segregation i) De jure segregation is the result of an intentional act: court has authority to remedy a) Keyes v. Denver: Denver had unitary system (mixed by law), but in the operation of system, board created segregated schools (like drawing district lines to segregate school, building small schools to keep schools segregated, by allocation of resources). SC said it was de jure b/c intentional acts even though neutral law, so dc had authority to desegregate. b) Under Columbus v. Penick (1979) and Dayton v. Brinkman (1979): Prior to 1954 there was de jure segregation. Post 1954, there was race neutrality but the schools were still segregated. Courts have affirmative duty to remedy, even if wrongs are pre 1954 (year Brown was decided). Operating the school on a race neutral basis post 1954 is not enough to remedy the segregation.  ii) De facto segregation is unintentional (no intention by the state to segregate, but social and economic factors, etc.) and occurs b/c of historical, economic or sociological factors: federal district court has no power to remedy (c) District Court‘s authority to Remedy is Qualified: i) Limited in time: at some point in future, school board should have achieved full compliance with Brown and at that point, the district court will lose power to remedy b/c a) Once you remedy, board no longer constitutionally bound and court no longer has authority (but school boards can if they want) b) 2 requirements:

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1. Good faith compliance 2. Substantial success (remove past vestiges to degree practicable)- then district court loses ability to remedy segregation (out of judicial power, into legislative if they want to) a) Pasadena v. Spangler: P had a unitary system, but like Denver, board had intentionally taken steps to segregate schools. Court says school has to stop segregating (no majority of minorities)... they did...then, 5/32 schools have a majority of minority students again...court re-remedied. SC said court didn‘t have the power to remedy anymore (the second time was de facto). b) Board v. Dowell: 23 years after Brown, court rules that the system is ―unitary‖, then 7 yrs later, they want a new system in which ½ of schools are 90-100% segregated. Still under Dist Court‘s authority b/c just a finding that they are unitary is not enoughhave to show that the constitutional violation was remedied the first time. A good faith effort to eliminate the last vestiges of discrimination to a degree practicable, after that the court loses its power to remedy. Any desegregation going on afterwards, the courts lose authority for any further desegregation remedy. ii) Constitutional limit: the remedy is limited to the constitutional violation a) Milliken v. Bradley (I): schools in inner city Detroit were all black/white despite de jure system. Because of the number of blacks, there was no way to make school‘s not predominantly black (because if just deseg. city, all whites will flee to suburbs), so judge ordered mixing with suburbs to desegregate. SC reversed- the remedy was not within the district court‘s power b/c authority is limited to City district b/c violation was only within that system (no showing that the suburban dist lines were drawn for the purpose of creating a seg school system).  Milliken (II): instead of the bussing, the new plan had remedial/ compensatory education programs funded partially by State of Michigan. This did not exceed the scope of the const. remedy b/c it said state had made funding decisions that contributed to the segregation, so ok b) Spallone v. US: Yonkers built low-income housing in minority communities (aggravated segregation); district court found it was intentionally to segregate, so ordered next lowincome housing to be built in majority community... counsel refused, court held counsel in contempt, but they still refused, so court fined city and indiv. millions of $. SC found that dc did not have that authority in that particular case, but may in other cases... it was ok to fine the city, but not the individuals (couldn‘t do that until it was proven that fines on city were not successful) c) Missouri v. Jenkins: Dist Court found Kansas city schools were segregated due to gov‘t act; remedy was $450 mill to be spent on improving so that suburbs would want to come to city schools which would remedy the situation. Problem: KC didn‘t have the money, and b/c of limits on property taxes, they couldn‘t raise it either. Therefore, Court orders KC to raise property taxes regardless of state constitutional limits. SC said court has authority to do this but should let state of Missouri decide how to raise the additional 450M. Only if Missouri does not want to raise the additional 450M should the court come in. d) Jenkins II: validity of ordering $450 million to be spent struck down by SC; DC didn‘t have authority b/c only authority to remedy constitutional violation, not to create elite system of education in KC. (d) Desegregation of Universities: i) US v. Fordice: Miss. had 8 state universities (5 white, 3 black)...state adopted race-neutral acceptance and by 1992, they were mixed but still predominantly either black or white, but court held not enough b/c constitutional duty to dismantle de jure system... student choice did not mean the state wasn‘t pushing a dual system a) State had to take a more activist role in desegregation: freedom of choice present in higher institutions was not a good enough remedy b) Court ordered Miss to undertake steps to remedy the unintegrated school system. (1) BOTTOM LINE: there is more segregation in schools today, then there was at time of Brown, but it‘s de facto, so courts can‘t do anything about it.

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2. Gender Classifications = Quasi-Suspect (still EP classifications issue) a. Level of review (1) Standard of Review: Mid-Level Test (a) Mid-Level Test: classifications based upon gender must substantially relate to important governmental interests (RB, but higher than earlier mentioned RB test although given same name)  Requires look at rx adequate alternatives. i) If it is to promote women‘s rights, the test is applied close to strict scrutiny ii) If it is to protect women, the test is applied close to rational basis (it‘s a balancing test) a) Michael M: CA law made stat. rape a crime only if woman was under 18, not men... male brought suit. SC upheld the classification based on gender b/c it was based on legit. diff. btwn male/ female:  only females can get pregnancy, that justified diff. treatment and  that you need a witness to prove crime, so since it‘s only a crime for males, the women could be witnesses  Court grants deference to the legislature.  Note: inst this case enforcing outdated stereotypes that the males are the aggressors? a) Rostker v. Goldberg: males have to register for draft, but females don‘t; upheld under mid-level review b/c it was Const. to exclude women from combat, and that‘s the point of the draft (to get combat troops) (b) Craig v. Boren: OK statute prohibited the sale of 3.2% (non-intoxicating) alcohol to males under 21 and females under 18... state said it was for traffic safety. SC held violated EP clause (this was the first time court admitted the test was in between rational basis and compelling state interest (but didn‘t want to call it mid-level yet): i) Application of the New Mid-Level Test: ii) The classification must substantially relate to important gov‘t interests a) Are there important gov‘t interests? b) Do they substantially relate (i.e. advance the gov‘t interests)?  Must consider any reasonable adequate alternatives  A better/ more accurate classification than gender  Narrowly tailored, least restrictive alternative  Must do this in any test above rational basis iii) In this case: a) The important governmental interest here is to protect society from the abuses of alcohol. b) ―the relationship btwn gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that he gender-based difference be substantially related to achievement of the statutory objective.‖ c) The court also said its unfair to treat one gender unfairly because all males do not drive under the influence. d) In this case, indiv. enforcement is a reasonable alternative—there are rx adequate alternatives. (b) Historical cases: Reed v Reed; Frontiero v Richardson (c) ***ADDS MODERN LANG TO CRAIG V. BOREN TEST: US v. VA: VMI (public institution) only admitted men. Issue: did this violate EP? YES. i) Mid-Level test, a) Serve an important gov‘t objectives b) Discriminatory means employed are substantially related to the achievement of objectives ii) But reframed the Craig v. Boren Mid Level Test: a) NEW TEST LANG: CLASSIFICATIONS BASED ON GENDER MUST BE SUPPORTED BY ―EXCEEDINGLY PERSUASIVE JUSTIFICATION‖ (Ginsburg was tring to elevate the mid level test) b) Court not certain whether this is new test, probably closer to CSI.

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iii) NOTE: new lang used more commonly now than phrase in Craig v. Boren a) Miller v. Albright: citizenship provision for persons born outside US (auto-citizenship)... one provision preferred women over men: kids born out of wedlock outside US w/ citizen mom and non-citizen father got auto- citizenship, but if mom was non-cit. and dad was cit. Clear classification on gender and legitimate/ illegitimate kids. Upheld (2) Even if discrimination is based on True Generalizations about the classes, the Statute must Pass Mid-Level Test—LA v. Manhart. (a) LA v. Manhart: in LA, women had to pay higher contributions to pension plan b/c women live longer. Title VII prohibited the LA Dept. of Water from requiring its female employees to make larger contributions to its pension fund than male employees, even though women do, in fact, on average live longer than men i) SC: Can‘t make individualized determinations in annuities (not a reasonable option) ii) RULE: ―Even a true generalization about the class is an insufficient reason for disqualifying an individual to women the generalization does not apply.‖ iii) NOTE FOR TEST: If a classification based upon gender were ever going to pass the Mid Level Test, it would be facts like these in Manhart where there are substantial reasons for gender based classifications. (b) Nguyen v INS: The court held the following rule to uphold intermediate scrutiny test even though there are blood tests and other scientific evidence could prevent a ruling of fraud: If citizen male and non-citizen female have a child together abroad that child is a citizen of the US only if the child takes up residence in the US prior to age 21. But if citizen female and noncitizen male have a child together abroad, that child is a citizen of the US automatically. b. Discrimination against Pregnancy v. Other Disabilities unique to one gender: (1) This does not constitute gender discrimination b/c it is based on a medical condition (a) Use RB Test, not Mid-Level Test. (i.e., the regulatons always pass) (2) NOTE FOR EXAM: Geduldig v. Aiello: CA disability insurance didn‘t cover disabilities resulting from normal pregnancy...ok based on state‘s interest in keeping program self-supporting, providing adequate coverage, keeping rates from becoming unduly burdensome... ―there is no risk from which men are protected and women are not‖ and vice versa. (a) Passes RB, but wouldn‘t have passed mid-level. RB is the correct test b/c the classification is based on a medical condition. (b) NOTE: Congress now changed. Const. the issue is the same, but now pregnancy should be treated as any other med condition. (3) Nashville Gas Company case: 3. Disproportionate Impact: separate from other racial classifications. a. Disproportionate impact on a race/gender does not change level of review of a race/gender neutral law (from RB) UNLESS (1) Discriminatory (disproportionate) impact is intentional by design or administration and not just unintentional result—then can apply per se invalidation test.  REPHRASED: A neutral state law producing racially disproportionate effects will be invalidated only if it is shown that racial/gender discriminatory intent or purpose was a substantial factor behind enacting the law (a) This is hostile discrimination (racial antagonism), which is per se invalid: i) Ex.: 6th amend. requires a fair cross section of society in jury pool a) Batson v. KY: can‘t consider race in using peremptory challenges, AND JEB v. AL: can‘t use gender in using peremptory challenges b/c that would be intentional disprop impact. ii) Same deal in non/ quasi-suspect classes (2) To Find Per Se Racial Antagonism, Court looks for Racial Intent behind the regulation: (a) How to prove racial or gender antagonism that is per se invalid: (Village of Arlington Heights Test—although no racial antagonism found in that case) i) Disproportionate impact is one way of showing racial antagonism, but usually not enough by itself—below factors also.

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ii) Factors to prove racial or gender antagonism: 1) Disproportionate Impact (raises the issue) 2) Disproportionate Impact plus Lack of Legitimate Reasons for Law 3) Clear Pattern (that activity and other activity in the community) (i.e., Yick Wo) 4) Historical Background 5) Substantive Departure from Normal Rules 6) Procedural Departure from Safegaurds (e.g., normally city council meetings open, in one closed down) 7) Direct Evidence of Legislative Motive  Not an exclusive list  Very hard to prove racial or gender antagonism that is per se invalid.  Ex.: Yick Wo v. Hopkins: classification between brick and wood laundry, 90% wooden owners were Chinese andhad to get permit. No Chinese were given permit and whites were. Indicates racial discrimination. Disproportionate impact plus the absence of legitimate motive gets per se invalid. Law struck down. Shows that disporportionate not enough, but need something else. Examples of Per Se Invalidation: (b) Columbus School (see above for facts): de jure segregation has the intent factor (c) Hunter v. Underwood: AL Constitution denied voting rights to anyone convicted of crimes of moral turpitude; i) Test: a neutral (on its face) state law producing disproportionate impact will be validated, unless you can show racial discrimination. intent was basic motivation. ii) RULE: Improper racially-motivated purpose so per se invalid test, iii) Declared unconst. not only b/c 10 X‘s as many blacks were disenfranchised, but b/c it had been adopted for the purpose of preventing blacks from voting. b. If not Intentional Racism, just get RB in Disproportionate Impact Cases. (1) Washington v. Davis: Test 21 was given to everyone in DC applying for gov‘t jobs, including police officers. Rejected applicants complained it excluded a disproportionately high number of blacks, violated (equal protection of ) Dp of 5th. SC refused to apply stricter Title VII test, (a) Applied RB (b) Disproportionate racial impact alone does not affect heighten the level of review. (c) If can show law was passed out of gender or racial antagonism, then can use the per se invalidation test.  In this case, if the whites who were rejected had decried discrimination, there wouldn‘t be an EP violation, so there isn‘t one just b/c more blacks did (2) Jefferson v. Hackney: Illustration of Per Se analysis Approach: state welfare statute had categories for elderly, blind, and those with dependent children and determined min. need. Elderly got 100% of needs, blind 95%, depend. kids 75%. Those on welfare who had dependent children were disproportionately minorities. Legislature stated that it wanted to make racial minorities work; welfare not fundamental right, no suspect classification, and court didn‘t find sufficient evidence for discriminatory intent, so it go rational basis (a) Level of Review: RB b/c no fundamental rights involved and no suspect classifications.  Under RB only has to be conceivable that lawmakers thought that children or blind could get what they needed. (b) But disproportionate impact, still rational basis (c) To get per se test, must prove hostile race based discrimination i) Failed to prove intent for racially disprop. impact ii) Lots of laws have this problem without intent (3) RACE: Village of Arlington Heights v. Metro Housing: Request for rezoning a single-family home neighborhood to allow multi-family homes that would be racially integrated was denied b/c 1. residents in area relied on single-family zoning since it always had been, 2. city had consistently only zoned ―buffer‖ areas for multi-family units; SC upheld, (a) Zoning gets rational basis level of review...passed (b) In this case, there was no proof that there was discriminatory purpose as a motivating factor; the

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impact alone was not enough. (4) RACE: Mobile v. Bolden: city of Mobile had 3 commissioners serving one of three areas, but they were elected at large. No black had ever been elected city commissioner b/c of at-large voting; argued 15th amend: said can‘t use race to discrimination in voting (same standard as 14th amend; have to prove race was intentionally used to discrimination.); (a) Issue: Whether or not at large voting was for the purpose of race based classification in violation of the 15th Amend? (b) Court: Law has disproportionate racial impact, but no evidence that at large voting was based upon racial antagonism b/c adopted before blacks could vote, so it couldn‘t have been designed to intentionally discrimination. (c) Standard for 15th Amend: must show race as a classifier, or racial antagonism (same as 14th). (d) ***2 yrs later, same situation in Rodgers, same at-large voting was struck down  Standard for Violation of the Voting Rights Act (VRA) (and various civil rights legislation—different thant the Const standard above): Disproportionate impact alone is enough to show violation of VRA.  VRA disprop standard reverses Mobile above. (5) GENDER ISSUE: Personnel Administrator of MA v. Feeney: MA law ranked all veterans who passed civil service exam on top of everyone else. Just b/c most veterans were men (98%), didn‘t make it unconstitutional. Veterans was gender neutral classification. Constitution guarantees equal laws, not equal results (―impact provides an important starting point but purposeful discrimination is the condition that offends the Constitution); SC upheld- didn‘t find intent to discriminate. (a) RULE: (like Washington above, but for gender) Disproportionate gender impact by itself is not enough to change the level of review from RB. (6) Whats the rule for Jury Pool cases? 4. Remedies for Race-Based Discrimination a. AFFIRMATIVE ACTION CASES (1) Affirmative Action: is benign use of race or gender to confer benefits. i) Discrimination against the majority so it‘s theoretically easy to correct through the use of political processes. ii) Different than hostile discrimination, which, b/c hostile is against a minority, won‘t be corrected through the political process. (2) Standard of review for all racial classifications (benign and hostile): CSI Affirmative Action Standard (from Bakke Case): [See Barbri outline also- Gratz v Bolinger] (3) Court looks at Four Factors in Affirmative Action cases under CSI: Special test b/court will be more likely to uphold rather than hostile race based classification. (a) Purpose for benign race based classification—the compelling states interest (most important aspect of the test b/c it shapes the rest of the test). i) The narrower the purpose, the more likely the court is to uphold it ii) If purpose too broad, that, in itself, will make the race based AA program invalid.  Unacceptable: making up for societal/ historical discrimination is NEVER acceptable b/c the use of race is too inaccurate  Acceptable: to remedy specific race-based discrimination. as to a particular individual  Court has also upheld use of AA to correct injustice in certain specific areas (e.g., Weber Case).  Ex: if A is denied a job b/c of their race, than the Court can make anyone give A a job iii) But for now, narrow tailoring of remedy from past discrimination by moderate use of race in a limited area may still pass (look for narrow purpose) i) NOTE: the Court has never decided if diversity alone will be an acceptable purpose (b) If you have a valid purpose, then balance the others . . . i) Degree of Advantage to racial minorities vs. the more limited the advantage, the more likely the court will uphold.

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(c) Degree of Disadvantage to majority: (see Wygant, Bakke). Wygant: AA program called for hiring of certain number of racial minorities to make up for past discrimination. Problem: law provided super-seniority for those hires. At some point in time some minority person with less experience than majority person will be kept and majority will be fired. Provision said that if there was a downturn, the same ratio of majority and minority persons had to be maintained. That would mean both a majority and minority person would have to be fired. Court: Invalidated this affirmative action even though there had been racebased discrimination in hiring in the past b/c places too great a burden on majority persons.  Therefore, if place too much a burden on a particular person, program will be struck down as too great a disadvantage. 1) Dourt distinguished btwn hiring/ firing, saying that firing to achieve racial burden is unjust, 2) If the burden created by AA is too high of a burden on the individual, it will fail CSI (d) Overall flexibility of the Program. The more flexiable the AA program, the more likely the court will uphold. Cases: (4) Regents of UC v. Bakke: UC Davis Med. School kept 16/ 100 seats only for minorities (based only on race), anyone could get the other 84. To get a minority seat, didn‘t have to meet standards everyone else did. Bakke met standards, was definitely higher than the minorities, but denied. SC admissions unlawful and to let Bakke in but it is not unlawful to consider race at all. (a) EP protects all i) All classifications based solely on race are suspect (b) Test: must be substantial state interest to justify and it must be the only means (not controlling b/c not majority), and this failed i) IMPORTANT: Court rejected race based quotas: racial quotas for the purposes of achieving diversity are not allowed ii) Any compelling reason they had (diversity) could have been achieved other ways. Can consider race. RX adequate alternatives iii) Eventually, majority of court agrees on CSI test promulgated by Powell. Example of AA program that the Court has Upheld: (5) Fullilove: Fed gov‘t had 10% set aside for minority contractors b/c minorities had been discriminated against/ this was to remedy. However, the statute provided waiver of the program if no minorities capable to do work. (a) Upheld under CSI b/c limited, to remedy a past wrong, flexibility (waiver) (b) This case showed that benign more likely to be upheld even under CSI test, but... Example of other side of Fullilove with similar, but distinguishable facts: (6) Richmond v. Croson : city had 30% set-aside for minority contractors, citing the same reasons as Fullilove; SC invalidated it...distinguished from Fullilove: (a) 30% too high, no showing that 30% was correlative to discrimination (b) No waiver, so not flexible (c) Passed by city counsel, not Congress, and there are different racial/ gender make-up in the legislative bodies i) In city counsel, most were minority favoring minorities so political processes wouldn‘t selfcorrect, so there is a need for close judicial review ii) But in Cong. there are mostly white males, so if white males are unhappy easier to influence/ more political power a) So SC said no need to closely review b/c political processes will control; Thus . . . b) Metro Broadcasting: (Overturned by Adarand) FCC, in considering giving broadcast licenses, FCC looks at multiple factors, including race/ gender (+1, was not significant value)... in addition, while under investigation, could not sell license (distress sale) but could sell to minorities; Court used Mid-Level test for Congressional race-based benign classifications: must substantially relate to important gov‘t interests

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 

Different than CSI b/c making up for societal discrimination achieving racial diversity are not satisfactory, but both are under mid- level This mid-level review for Congressional statutes was reversed in Adarand

Below Case Reverses Metro Bdcst. and changes Test for Congressionally Mandated Race-Based AA preferences to CSI Test: (7) Adarand Constructors v. Pena: Fed gov‘t had practice of giving general contractors on gov‘t projects a financial incentive to hire subcontractors controlled by ―socially and economically disadvantaged individuals‖...despite framing, race was the main factor, was a race-based classifier... while all minorities were presumed disadvantaged, there was a race-based presumption that whites had to overcome. Ct of appeals rejected claim based on intermediate scrutiny. (a) RULE: Supreme Court said that ALL RACIAL CLASSIFICATIONS GET STRICT SCRUTINY no matter who they apply to and no matter if they fall under 14th or 5th equal protection (8) NOTE on schools: (a) Once schools have remedied the past constitutional violation, see above, they are left with the same AA circumstances as everyone else (b) Since lower courts are not sympathetic to benign race-based discrimination, schools/ institutions now look at societal, economic disadvantage factors (which has mostly the same effect). b. GENDER-BASED AFFIRMATIVE ACTION CLASSIFICATIONS (1) Now, standard of review is as follows: (a) MID-LEVEL TEST FOR GENDER: (Califano v. Webster) i) CLASSIFICATIONS BASED ON GENDER MUST SUBSTANTIALLY RELATE TO IMPORTANT GOVERNMENTAL ENDS. 1) Purpose Part: Making up for past discrimination can satisfy purpose behind law (only in Mid-Level Test, not in race CSI test). 2) Relationship Part: look at reasonable adequate alternatives ii) Orr v. Orr: AL statute imposed alimony obligations on men, but not on women.); a) SC struck law down b/c it failed relationship part of test b/c were other alternatives. i Rx adequate alternative existed b) Even if you accept the purpose (making up for past discrim), it doesn‘t pass b/c no substantial relationship b/c gender classification wasn‘t needed/ there were other reasonable alternatives (case-by-case determination to see if there are needy males and/or needy females) iii) Miss. Univ. for Women v. Hogan: H applied to school but was rejected b/c he was a man. There was an automatic preference for women. He could have audited the courses though, just not take them for credit. Issue: whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the EP clause of the 14th amend.? YES, so it is unconstitutional: a) It didn‘t matter that it discrim. against men instead of women: still had to show exceedingly persuasive justification for the classification and MU failed Unlike Gender, in racial affirmative action, under CSI, past discrimination never justifies benign b/c not accurate.  Gender is not as protected in hostile, but more is protected in benign discrimination classification. (2) Califano v. Webster: retirement benefits under social security permitted a female wage earner to include more of their peak earning years than males could, which resulted in higher monthly benefits for women; (a) SC upheld the classification related to the reduction of the disparity caused by the history of discrim. against women (= important gov‘t interest) (3) Schleisinger v. Ballard: in military, officers have to get promoted within a certain number of years, or fired. Women had more time than men;

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(a) Level of Review: Mid-Level, balancing test (Craig v. Boren modified) (b) Court: Upheld gender classification b/c way to gain promotion is to show heroism is in combat, but women are excluded from combat, so need extra time (compensates for exclusion from combat). (4) Johnson: city gave dispatcher jobs to females over males when both male and female candidates were equally qualified in order to achieve diversity (no other women in transportation dept.). Man sued and lost. (a) SC Analysis: Diversity passed mid-level test. Advantage given to women was limited, disadvantage to men was small. Approach was flexible VIII. Classifications Based Upon (Legal) Alienage = Suspect (McG puts this on TEST) A. Three categories of laws classifying based on alienage 1. State Laws defining Aliens and Welfare: CSI Test (Graham v. Richardson). a. Must be necessary to the accomplishment of its legitimate purpose (1) i.e. narrowly tailored (2) has to be least restrictive means avail/ can‘t be reasonable alternatives b. State laws will be struck down if based on alienage for these categories—don‘t pass CSI scrutiny: (1) State laws stating only citizens can have civil service jobs (2) State laws stating only Citizens can be members of state bar (3) State laws stating only Citizens can be civil engineers. 2. Exception: State Laws regarding Political Function Exception: RB Test a. Political Function Exception applies to laws that exclude aliens from state jobs involving the ability to make policy decisions b/c go to heart of representative govt. (1) Jobs involving a high level of discretion so they affect public policy (2) 2 part test to see if classification fits in NARROW exception: (a) Specificity of classification (can‘t be over or under inclusive) (b) Even if specific, it may only be applied to  Persons holding state elected or important non-elected exec., leg, and judicial positions.  Officers who participate directly in the formulation, execution, or review of broad public policy = perform functions that go right to the heart of representative gov‘t b. REVIEW: Requirements/look for: (1) Specificity of job classification  all state employees => CSI  all police officers => RB (3) Must involve a state job (state or political subdivision) (4) Play a role in shaping public policy d. Examples of classifications that fall under Political Function exception: & get RB test. (1) Citizen Teachers (2) Police (3) Probation Officers e. Example of Job NOT qualifying as Political Function: (1) Bernal v. Fainter: TX statute required one to be a US citizen before becoming a notary public; SC invalidated the law (a) Used CSI test b/c didn‘t fit under ―political function‖ exception (b) Failed prong 2 of PF Test b/c function was clerical and failed b/c not a state job either. 3. All Federal Laws: RB a. This is the only time Federal EP laws are treated differently than state laws (1) Mathews v. Diaz: Whether Congress may condition an alien‘s eligibility for participation in a fed. med. ins. program on continuous residence in the US for a five-yr period and admission for permanent residence? YES (a) Held: Just b/c Congress has provided some welfare benefits for citizens does not require it to

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provide like benefits for all aliens (2) The statutory discrimination within the class of aliens is permissible under RB (3) It‘s reasonable for Congress to make an alien‘s eligibility depend on both the character and duration of residence VI. Classifications Based Upon Birth Status (Legitimacy) = Quasi-Suspect (guaranteed to have on TEST) B. Classifications based on legitimacy  Mid-Level review, but applied less strictly than mid-level applied to gender. 1. Mid-Level Test (like Craig v. Boren but different wording): Classification must substantially related to a permissible state interests (Trembel v. Gordon test).  Applied less strictly than mid level applied to gender. a. Invalidated Statutes: (1) Levy v. LA: SC invalidated a state statute permitting legitimate, but not illegitimate. children to sue for wrongful death of mother (2) Court struck down law applying RB test. (3) Held: ***Court eventually strikes down all statutes classifications based on legitimacy*** b. Statutes that were upheld under this Mid-Level, but would not have passed Craig v. Boren Test: (1) Labine v. Vincent: SC upheld statue under which illegitimate children acknowledged but not legitimated by dad could not take by intestate succession from father. Upheld because (a) there was a concern for fraud and (b) in terms of intestate succession laws, fathers of illegitimate children will leave a will if they want those kids to take. (2) Mathews v. Lucus: SC upheld provision of Social Security Act that gave automatic SS benefits to kids who survive the wage earner however illegitimate kids had to prove dependency on the wage earner. SC upheld b/c purpose was to benefit dependant children and the law was substantially advanced. Burden on illegit not that great even though treated differently. It survived mid-level review, but would not have passed a higher level test like Craig v. Boren (even if similarly framed) (3) Trembel v Gordon: Law said that in order for an illegitimate child to take through intestate succession, father had to marry the kid‘s mother? The law was unconstitutional because it was too restrictive in that in requires actual marriage to legitimate the child. (4) Lalli v. Lalli (Most Important Case): in order for illegitimate child to inherit from dad intestate, NY law required that dad legitimated kid by court order (declare paternity in court within 2 yrs, 9 mo. of pregnancy; the 2 yrs wasn‘t addressed, see Clark); SC: statute upheld b/c state interests were substantially related to the important interests....wouldn‘t pass Craig b/c not narrowly tailored to only allow court order. The permissible state interests is the concern for fraud. (a) Shows how different from classifications based upon gender: 1) Gender: look at rx adequate alternatives (the higher the level of review, the more will look at rx adequate alternatives, even though Court may take them into account if using test above RB) 2) Legitimacy: don‘t look at rx adequate alternatives (although Court could) 2. Sometimes it‘s Mid-Level equal to Mid-Level Gender: MG doesn‘t like it (1) ―Substantially related to an important gov‘t interest‖ (2) Clark v. Jeter: PA law = illegitimate child must prove paternity by age 6 to be able to seek support, while legitimate child can do it anytime; Court: Struck down the classification b/c failed intermediate scrutiny and Strongly implied that the illegit child had up to the age of majority to establish paternity (although did not explicitly hold this). C. Parental Rights of Fathers of Illegitimate Children: Gender Based Classification (Craig v. Boren MidLevel Test) 1. These are gender based classifications 2. Level of review is the higher Craig v. Boren Mid-Level Test (exact language) a. Statutes that failed the Mid-Level Test: (1) Stanley v. ILL: Mother and Father lived together for 18 years and had kids but never married. IL presumed that Fathers of illegitimate children were unfit. Mom died and kids were taken away from Father. (a) In this case, dad had always lived with mom, but they weren‘t married: didn‘t matter b/c irrebuttable presumption that unmarried dad is unfit

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(b) Held: Court struck down law on DP grounds (procedural DP b/c no hearing): decided before mid-level was adopted for gender. D. Classification of Custodial Parents v. Parents Who have NOT had any Involvement with the Child: RB Test b/c not a Gender Based Classification. 1. Level of Review: RB 2. Ex. Law stating that Custodial parents can consent to adoptions without consent of parent who doesn‘t have any involvement with the child would pass RB level of review. 3. Does away with gender based Classification IX. The RB Test has Been Used Recently to STRIKE DOWN Laws Based on Non-Suspect Classifications: A. More Focused RB Test: Laws must rationally relate to a legitimate states interest.  Court more likely to look at the purpose for which the law was actually passed (more than in traditional RB test application). B. When to apply new RB Test: 1. When politically powerless groups are being denied equal treatment without chance to use the political process. 2. When a higher level of review may make a difference in upholding the law. C. Approach to using the new (but did not replace the old) RB Test (―A more Searching RB Test‖) 1. First, apply the traditional RB test. Most likely the correct test and look at facts for any conceivable purpose. 2. Second, apply the more focused test if facts have a group that have limited access to the political process. (e.g., mentally retarded, homosexuals, and illegitimate children). Look for facts that parallel the following cases. If the law has singled out a group for treatment then look for more searching standard application. a. These 5 following cases stand for the proposition that: when there is a classification of a politically powerless group (retarded, gay, children of illegal aliens), the Court will apply the RB in a stricter way than deferential RB. (1) Cleburne v. Cleburne Living Center: TX municipal ordinance required homes for retards to get special use permit, while other ‗multiple family‘ dwellings didn‘t; Held: unconst. under RB (not suspect/ quasi-suspect class or fundamental right so no higher level of review) (a) Test applied RB test but more focused b/c the only purpose for the law was animus against retards. Struck down the law as not founded in legit purpose. (b) This is the strictest application of rational basis we‘ve seen so far (compare to case where mental illness/ mental retard classification survived rational basis). (2) Romer v. Evans: Colorado‘s Amendment 2 which prohibited any protection for homosexuals was unconstitutional under rational basis like in Cleborne to strike a law that didn‘t advance much b/c: (a) It created a special disabled class that was denied right to basic political process. RB test strikes down laws based upon discrimination. The Court believed the law was to hurt gays, not to advance any legitimate gov‘tal interest. (b) Effect on Bowers: tells that court would have probably struck the law down if RB would have been asserted as an argument. (3) Metropolitan Life Ins. v. Ward: AL had a law that favored domestic insurance companies regarding taxes (their tax rate was only 1%, but foreign co‘s was 3-4%). M alleged that it violated EP; unique case where statute failed EP RB test (a) Test for EP: RB: as long as purpose is legit and burden rationally relates to that purpose, it’s ok  Different from commerce clause where purpose, if legit, must outweigh the burden  Promotion of domestic business: not a legit purpose b/c if accepted, it would ineffectuate the EP clause  This case fits into the more searching rationale basis standard. The problem is that two lines of rationale basis (EP  DP, more searching RB). There is a group with extreme deferential review and there are more searching rationale basis and the Court will focus more on the actual purpose for which the law was passed. (b) Held: Court struck down law and found no RB in disparity of treatment. (4) Laurence v. Texas: (overruling Bowers v. Hardwick). Sodomy was a crime punishable by 20 years in prison. The Court said that he did not have standing to raise issues as regard to heterosexual

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couples. The Court held that a TX law making a different form of sodomy a crime punishable by $300. The Court uses right to privacy language but actually applies a ‗more searching rationale basis test.‘ (5) Phyler v. Doe: IMPORTANT: TX law said illegal alien children couldn‘t attend public school... law struck... got RB level of review: (a) RB test b/c  Classifications based on illegal alienage are not suspect  Education is not fundamental right, see San Antonio above. On TEST: Say that it could be a compelling state interest level of review but the Court has not decided it yet.  If you get a minimum level of education it is not a fundamental right.  Different RB Test applied: Law must rationally relate to substantial state interest. 1) McG likes to treat it as a verion of the More Focused RB Test, BUT 2) Some treat it as an application of the Mid-Level Test (like that in classifications based upon illegitimacy). (a) Held: Struck down TX law. (2) Dep’t of Agr v. Murray: Congress attempted to modify federal food program to preclude hippies from qualifying for welfare. The Court struck the law down on rational basis grounds. Justice Douglas refers to the freedom of decision. Fits pattern of more searching rationale basis test. 3. RB Test Review (overall): a. For the Most Part: Old deferential level of review (traditional RB test is applied) b. When get more focused RB Test? 1) When have a politically powerless group that is being denied equal treatment without being able to use political process to correct that mistreatment, AND 2) When higher level of review might make a difference. c. Suggested approach to RB Test: 1) Apply the traditional RB test (Carolene Products, Williams v. Lee Optical) ―rationally related to legit govt interest.‖ Then use the facts looking for conceivable purposes. 2) Only if in the facts you have a group that seems to be like retarded, gays, etc (politically weak that have suffered a discrimination) apply the More Focused RB Test.  Look at the specific purpose as well. X. CLASSIFICATIONS BASED ON WEALTH A. Non-Suspect: get RB review B. Criminal Cases: Part PDP, part EP. 1. Griffin: right to free transcript found in combination of procedural DP & EP 2. Douglas v. CA: state had a duty to furnish counsel to an indigent taking his first appeal as of right C. Civil Cases: 1. Boddie v. CT: requiring welfare recipient to pay fee to get a divorce violated DP b/c: 1. that was the only way to get a divorce, 2. marriage relationships get special treatment. Held: had to be a waiver of divorce fee for indigents. a. Little v. Streater: indigent fathers have right to blood test in civil case. 2. US v. Kras: requiring fees ($50) to declare bankruptcy proceedings did not deny DP b/c: 1. not the only way to adjust legal relationship with creditors, 2. bankruptcy isn‘t as protected as marriage. Held: Don‘t have to waive the fee, not an impermissible wealth based classification. a. Ortwein v. Schwab: O‘s welfare old-age assistance was reduced...he appealed to the agency and was denied...statute allowed for judicial review, but O didn‘t want to pay $28 filing fee... state denied appeal; Court: upheld following Kras b/c: 1. not as important as marriage, 2. O got a hearing, 3. there is no suspect classification of poor, the fee pays court costs. Bottom Line: not a wealth based classifier, or, if it was, it was justified. 3. Lassiter v. Dept. of Social Security: DP requires appointment of counsel for indigent parents in a proceeding brought by the state to terminate parental status in some circumstances a. Qualified right: you get it if there‘s complicated factual/ legal disputes 4. Dandridge v. Williams The state provided $250 in welfare money, per child, up until four children. After that, you don‘t get any more money no matter how many kids you have.

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a. What kind of issue does this raise? This raises an EP issue. b. What level of review? RB level of review b/c it does not involve a fundamental right or suspect classification.. 5. Harris v. McRae: Court found that funding decisions distinguishing between funding of abortions and funding of full term pregnancies get a RB review. Govn‘t had a legitimate interest in promoting full term pregnancies over abortion and the funding furthers this end. 6. Lyng v. Castillo: The gov‘t for the purposes of food stamps treated families less generously than nonfamilies living together. a. EP, RB level of review b/c (1) No fundamental rights (2) And no suspect classification: b. Is there any legitimate reason for treating families less favorably than unrelated person? (1) Families might be more apt to share their food together, than individuals living together.  That interest is conceivable and the law is rationally related to that interest. (2) San Antonio Schools v. Rodriguez: There was a challenge to using local property taxes to funding local schools. Because different communities have different property values, it leads to different qualities of education. Edgewood per capita income was $356 and Alamo Hts. per capita income was $564. The difference in property taxes was even more extreme. It was argued that . . . (a) This was a wealth-based classification, and therefore suspect getting CSI. Court reject this, i) Education is a fundamental right because it directly relates to free speech. The court reject this, ii) HOWEVER, the Court held that wealth is NOT a classifier. The court also held that education is NOT a fundamental right, at least not above a minimal level.  If had no education at all might be a fundamental right. (b) Court: RB and upholds law. (c) McG thinks Court missed: equal funding for all public schools is denied in this case. But state constitutions can remedy. XI. THE FUNDAMENTAL RIGHT TO TRAVEL A. Level of Review: CSI b/c it‘s a fundamental right. 1. Any classification which serves to penalize the right to travel (durational residency) and impacts the necessities of life, unless shown to be necessary to promote a compelling gov‘t interest, is unconstitutional and will get strict scrutiny. a. Look for statutes: (1) That actually deter travel (2) Where impeding travel is primary objective (3) That use any classification which serves to penalize the exercise of travel 2. You only get CSI in Right to Travel Cases if: a. Durational residency requirement b. Impact on a Fundamental Right B. Apply RB test if: 1. Above requirements are not met, statute 2. Bona fide residency used as a classifier C. Durational Residency as a Classifier: CSI 1. Court struck down Durational Residency Requirements (of 1 year) when it affected one of the below: a. Welfare b. Voting c. Medical Care (Maricopa Case) 2. BUT DID NOT strike down Durational Residency Requirements when it affected: a. Divorce b. University Education c. Residency alone – OK to say that you must live in a state for more than 1 year before you can vote. It must be a durational residency, ie, 1 year or more.

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3. Shapiro v. Thompson: statutes that imposed durational requirements on welfare assistance were struck b/c violate EP/ right to travel. 2 states and DC denied welfare assistance to those who hadn‘t lived in their state for at least one year. The court noted that this made it more difficult a. Failed CSI test (1) Deterring fraud was a CSI but not narrowly tailored b/c there were other alternatives (like bona fide residency requirements, prosecute them in crim. courts for fraud) (2) Also, the underlying purpose, discouraging the influx of poor families in need of assistance is constitutionally impermissible, and administrative purposes are not compelling. 4. Memorial Hospital v. Maricopa County: AZ statute requiring a year‘s residence in a county as a condition to receiving nonemergency hospitalization or medical care at the count‘s expense was unconstitutional under Shapiro and Dunn (CSI b/c involved fundamental right to travel) a. CSI was to prevent fraud, but this was not the most narrowly tailored option...notice, there was no bad motive like Shapiro b. But Court noted that not all waiting periods would be penalties, so could pass. 5. Zobel v. Williams: 1978 Alaska statute paid one unit dividend for each year one had lived in state since 1959 (so if you‘d lived there 10 yrs, you‘d get 10x, but if only 1 yr, then 1x). a. Struck under RB (not a waiting period case, or a bona fide residency requirement case so rational basis applies and there was no rational basis for paying based on residency). b. Court struck b/c can‘t give benefit based on residency. 6. Georgia: If you abandoned a child is was a misdemeanor. If you moved to another state is was a felony. The Court said that the fundamental right to travel includes durational necessity and the necessities of life. The Court said that the right to travel is not here. 7. Arlington Heights: Housing or place to live is not a durational residency and necessities of life = right to travel. XII.THE FUNDAMENTAL RIGHT TO VOTE (little to do with voting) A. Standard of Review: CSI for EP issues relating the fundamental right to vote. B. Includes 4 areas:  District Re-Apportionment Issues  The use of Race in Voting/ Affirmative Action Voting  Right to Cast Ballots  Access to Ballot 1. District Re-apportionment Issues: a. Under Art I, sect 2 every 10 yrs there be a census and re-allocation members of house of representatives among the states according to population shifts. b. Baker v. Carr: With rural districts being sparsely populated in comparison to urban districts violates the right to vote. Thus, one person, one vote. All of the HofR districts have to be equal in size in terms of population. c. Reynolds v. Sims: State assembly based upon population and 40 person state Senate divided along county lines. Southern CA is the largest political region in assembly and Senate was weighted by North. In Alabama the same legislative situation was prevalent and the court said that all legislative districts had to be apportioned based upon population. Representative districts for Congress must be one person one vote and at the State level, the Houses must be divided based upon population as well. Court Standard: EP requires one person/ one vote: d. Federal re-apportionment (1) Standard for Federal Districts: ―as accurate as nearly as practicable‖ to one person = one vote to pass EP  Struck down variations as little as 1%. A high degree of accuracy is required for HofR districts. e. State re-apportionment

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f.

(1) Standard for State Districts: ―substantial equality‖ to one person = one vote to pass EP  Upheld variations as much as 16%. Only substantial equality between size of districts. State legislative bodies can consider things when drawing district lines than with regard to the HofR. Gerrymandering Concern: Concern for the shape of the districts (or the way they are drawn). (1) By and large SC is only concerned about one person, one vote, (2) But it is possible that gerrymandering could violate EP—(see Davis below) (a) the mere fact that apportionment makes it harder for a group to elect who they want doesn‘t violate EP i) Davis v. Vandameer (951): Gerrymandering was used to an egregious degree and allowed. challenge to gerrymandering... every 10 years, the party in power in Congress re-draw the lines in such a way as to maximize their party‘s power... in IN, where there was a large minority pop. in downtown Indy, so the leg. drew the lines to mix them with the white suburban populations- which diluted the strength of democrat voting/ maximized republican voting...upheld. ii) Case on S Ct‘s docket: Texas redrew the districts 3 years after the decade elections. The Cons‘t requires there be a re-allocation every ten years, and the issue before the Court is whether redrawing the lines after the decade drawing of lines is Constitutional. 1) RULE: Gerrymandering violates the EPC if there is an effective denial of majority of voters of a fair chance to affect the political process.

1) Supermajority Vote a. The affirmative vote must be something like 2/3 b. Gordon v. Lance challenged supermajority as violative of the EPC. No votes counted less than yes votes. The Court struck it down. 2. The use of Race in Voting/ Affirmative Action Voting: a. Modernly: race-based voting gerrymandering has been to maximize minority voting. (1) If race is found to be the purpose, districting must pass strict scrutiny like other racial classifiers (from Shaw) (a) Race can‘t be used to draw lines UNLESS it is to remedy past discrimination (intentional and maintained) (2) Voting Rights Act (a) Sect. 5 requires AG approval of districts. (b) Shaw v. Reno: NC adopted districting policy that used race to make ―pocket‖ districts. Held: Struck down law as being race based. Must draw contiguous districts. (c) Miller v. Johnson: Racial Gerrymandering  GA had 10 districts, but with the 1990 census, got an extra seat, so now 11. When there were 10, one was majority black, when went to 11, made 2 maj. black. AG said we want 3, which was an ACLU‘s ―max black plan‖. It was easy to add one more, but to get the 3rd, you had to take the black population areas throughout mid-section and made them contiguous (Shaw). i) B/c race was the purpose, to pass, had to be narrowly tailored to CSI a) There was CSI- to remedy past discrimination but it was not the reason in the legislation b) Real reason was to satisfy political demands of AG ii) Court: This use of race to determine the shape of the district violates the EP. Use of race in hostile or benign way violates EP clause. Some use of race is allowed (race as a benchmark for democrat v. republican people), however. 3. Right to Cast Ballots: a. State violates EP whenever it makes the affluence of the voter or payment of any fee an electoral standard b. Durational residency as a requirement fails under CSI (1) Dunn v. Blumstein: 1 yr durational residence requirements struck under CSI test. Failed EP under right to vote and right to travel. While valid interest, the 1 yr was too long to be related. (2) Maricopa: In Shapiro the reason for the rule may have been to discourage people from traveling. Free non-emergency medical care limited (3) Martin v. Lewis. A durational requirement to receive an accurate voting list is ok. No longer time is allowed.

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(4) Richardson v. Ramirez: OK to deny felons the right to vote. (5) Bush v. Gore: S Ct calls off Florida election and Bush gets presidency. S Ct did not steal the election. Basic holding of the Fl S Ct was that each county had its own standard of counting the undervote (not removing the chads), people would look at the chad and decide what the voter intent was. Gore challenged the four democratic counties (cheating) b/c the re-counts of the democratic counties would obviously get him more democratic votes. Fl S Ct said that the entire state must be re-counted but each county was permitted to decide what standard to apply to deciphering voter intent. c. Race can‘t be used as a basis for denying right to vote. 4. Access to Ballot: a. Standard of Review: Reasonable Basis Test (Mid-Level Test) b. Reasonable Basis Test: The law must be reasonably related to leg. state objectives (1) Same Mid-Level test as classifications based on legitimacy: Closer to balancing test than strict scrutiny, but still higher than RB c. The gov‘t has a legit interest in limiting names on ballot to legit. candidates (1) But getting on ballot is part of fundamental right to vote (2) So, the laws must be closely scrutinized d. Permissible Limitations on Access to the Ballot: (1) May limit names to those who are legitimate candidates. (2) Court found that winner takes all system is illegitimate. (3) 3rd parties have to have petitions signed by certain amount of voters. To keep name on ballot, one candidate for any office must get a certain number of votes. (4) Court does require that fees be waived for indigent candidates. (b/c getting on ballot is part of fundamental right to vote). XIII. PROCEDURAL DUE PROCESS: (i.e., right to notice, right to hearing, etc.) A. 5th Amend: ―There can be no taking of life, liberty or property without procedural due process.‖ 14 th adds ―no state may take . . . .‖ B. Contours of PDP: Don‘t confuse PDP with substantive DP. Distinguish Substantive DP v. PDP: PDP issue arises when the gov‘t gives somebody else the discretionary authority to take your liberty or property interest. In order to make sure that the person is following their authority, PDP is required. Administrative officers/agencies, the Social Security Department. If there is an individualized determination of a persons property interests, there is likely a PDP issue. 1. Ministerial decisions do not implicate PDP issues (DMV makes law ‗three traffic tickets and license is suspended‘, you do not have the right to a hearing). Think: Is there anything to have a hearing on? 2. C. 1st Element is MOST IMPORTANT: No Taking of life, liberty or property without due process 1. No [judge-like]Taking: Applies to judicial-like or adjudicatory-like taking. a. Judge-like decisions: (1) Case-by-case, individualized, discretionary, particularized decisions (a) Fair hearing and fair notice of what the hearing is going to be about. (2) Ex.: Breach of K, debtor, death penalty, administrative agencies including licensed taken/ suspended, state-employer firing employee, school principle, welfare referee. b. Different than EP issue: (1) If Legislative-type decision, like a classifier, then no PDP: That‘s an EP issue. (2) Irrebuttable presumptions are EP issues, see also below. c. Different than Substantive DP issue: (1) Whether or not woman can have abortion is a substantive DP issue- not pdp b/c all the notice/ hearings in the world wouldn‘t make a law prohibiting it valid. 2. Must be an Intentional taking, Does NOT Apply to Negligence: b/c Neg does not implicate DP. a. Parratt v. Taylor: prison official loses inmate‘s hobby kit. Court said that while negligent act could constitute a deprivation of property (liberty or life), in this case DP was satisfied: (1) Since impossible to have hearing before the deprivation (it was already lost) and (2) There was a state tort remedy available so there would be a hearing...overruled in Daniels. b. Daniels v. Williams: prisoner fell on a pillow left on a stairway by prison official. P couldn‘t sue under

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tort law b/c official was immune; SC said lack of due care by a state official does not ―deprive‖ an indiv. of life/ liberty/ property so due process isn‘t implicated/ there is no § 1983 action. c. Davidson v. Cannon: prisoner sent note to authorities that another had threatened him, but officials set aside note. Prisoner was attacked; negligence does not implicate due process. 3. Look at: Would a notice and hearing make a difference? D. 2nd Element: Were protected liberty or property interests taken? (depends on type of interest):  NOTE for Approach: (1) Find out whether prop or liberty interest taken; (2) If a prop or liberty interest taken, right to some level of PDP; but (3) the level is variable as to the importance of the interest.  The Court usually looks to whether a ―privilege‖ or ―a right‖ was taken away.  State laws create property rights. You must have a state right created property interest. 1. LIFE: mainly applies to capital punishment cases 2. LIBERTY: below. a. Created by state law and the Constitution (unlike property b/c liberty is inherently protected by the constitution) b. Liberty Interests: (1) Includes (All fundamental rights… If a state law abridges a fundamental right, the Constitution protects it so go after them . . . .): (a) Free speech (b) Parental rights (c) Institutional confinement (d) Right to refuse medical treatment (e) Right to privacy (f) Right to travel (g) Right to vote (h) Reputation: By itself is not a liberty interest unless closely tied to some other interest. The Court has qualified this by say that reputation plus school/employment. McGoldrick doesn‘t think that reputation by itself is a liberty interest. i) At first SC wanted to recognize, but evolved to not being recognized. ii) Paul v. Davies: Police sent out list of known shoplifters at Christmas... local newspaper reporter was on the list, even though never convicted (just picked up)... he was fired... alleged sending out his name was a liberty interest without PDP => SC said reputation alone is not enough. c. Approach to liberty issues: (1) First, look at state law that protects liberty interest (2) If can‘t find independent source, then pick out a fundamental right (3) Know that other interests are fundamental that are not easy to define. d. HYPOS: (1) HYPO: Transfer from prison to mental institution is the taking of a liberty interest (dramatic change in confinement): get PDP (2) Prisoners Liberty Rights: Under state law, prisoners are not given a liberty interest unless they are treated in a way that is seriously beyond the level expected for a prisoner. (3) e. There are liberty interests which state law gives. I.e., good-time credit for prisoners. f. Prisoner Cases (1) Sandin v. Conner – Liberty interests are created by state law, but the Constitution itself also protects liberty interests. (2) Woolf v. Mc Donald – State created time-off for good behavior. A prisoner is denied good time privileges arbitrarily. The Court said good-time credits was a liberty interest (not a constitutionally inspired liberty interest, but state created) which required hearing, etc.

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(3) Meachum – Transferred to a maximum security prison without a hearing or notice. The Court said that there is no liberty interest. Whether to have minimum or maximum security is up to the discretion of the gov‘t. (4) Vitek – Transferred from a prison to a mental institution and the court said it was a taking of a liberty interest. (5) Court has recently eliminated the prisoner cases from their procedural due process arena. g. Washington v. Harper – Prisoners don‘t have to take medicine. h. Daniels v. Williams – Prisoner trips over stairwell and wants a hearing regarding the pillow being left. Negligent tort injury is not given PDP. i. Davidson v. Cannon – Court said no PDP issue raised when guard doesn‘t forward note to boss that prisoner is going to get hurt. Negligence is not the subject of PDP. There must be discretionary decisions; not negligence. 3. PROPERTY: below. a. Defined by general law, independent of Constitution (1) For Definition of Property Interest Look to State Law or Other Independent Source: (a) State laws: if property interest is created by the laws, then some level of PDP is required. (b) Federal law (c) Common law (d) Contracts (i.e. employment contracts) b. When have a Prop interest in Job? Not when at-will Employee. There can be property interests based upon state law or other independent source (K or Fed. Law): (1) Board of Regents of State Colleges v. Roth: R was hired for one year at U (no tenure). R was not rehired. U complied with rules (notified by Feb. 1), but did not provide a reason or hearing; (a) Holding: Did not infringe on his 14th amend. PDP rights. (b) 3 step analysis: i) First: Indiv./ judicial like decision that is a taking that raises PDP (individualized, case by case)? YES a) Employment decisions by the gov‘t are a typical judicial like decision. ii) Second: Life, liberty or property interest? No, no property interest in this state job. a) No Prop Interest: You don‘t have a property interest unless state law or other independent source gives you a property interest. State law for first year teachers said didn‘t have to re-hire (based on dean‘s decisions): any state law rights had been given (if there had been tenure there would have been prop. interest under state law). His unilateral expectation is not enough. . b) No liberty interest either, but if he had been able to prove he had been fired for exercising free speech (SC dismissed this), he would have been entitled to PDP b/c liberty interests are broader (not limited to indep. sources, can be found in Const.). He could argue that if he was filed for false reasons it could hurt his reputation. Reputation is always a possible liberty interest. A mentally ill person placed in confinement is a takings of a liberty interest. iii) Third: So don‘t have to look to see if any level of PDP was provided. (2) Cleveland Board of Educ. v. Loudermill: OH statute said that civil service employees could keep position during good behavior/ efficient service and could only be dismissed for misfeasance, and if removed must get (1) order of removal giving reasons (2) appeal to state board- subject to state court review. (a) Court held that PDP was implicated b/c there was a constitutionally protected property interest in employment. i) Board argued that property interest was the whole deal = the job + the condition that the hearing would be held after dismissal ii) SC rejected that the whole was the property interest and said:

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a) The job = property interest b) The procedure = constitutional (b) Once the State gives you a property interest in the job, the Court then gets to decide the level of procedural due process. Therefore, once the state creates a property interest in the job, whether or not there is PDP is for the court to decide: i) Thus, employees must have some kind of hearing before discharge. ii) But when a full admin hearing/ judicial review is avail. after termination, the employee does not have a right to a full adversarial evid. hearing before discharge. (3) Fuentes v. Shevin – Court held invalid summary seizure of property under a writ of replevin without prior notice or hearing to the possessor of the property. The debtor is entitled to some type of hearing before the creditor is permitted to take the property. The hearing doesn‘t have to be much, but the creditor does have the right to the hearing before the taking of the property. E. 3rd Element: What level of Due Process is Due? 1. How to determine the Level of PDP Due: Balancing Test. a. Importance of the private interest that will be affected by the official action. b. Importance of the public interest that will be affected by the official action. (1) I.e., Gov‘t v. Private Interest at stake c. AND, the Risk of Error involved if the wrong level is applied (the risk involved if there is not a more formal proceeding).  Level of PDP Infinitely Variable: 1) RULE: Utility Services are a property interest that CANNOT be cut off without PDP. HOWEVER, the due process given is very low; only have the right to talk to a human that has the discretion to keep utilities on. 2) Ex.: Prisoner refused to take anti-psychotic drugs b/c then would be sane and able to be tried. Prison officials wanted to be able to give him drugs. RULE: Have a liberty interest to refuse medical treatment. That means that person had level of PDP. Low level b/c only 2 doctors had to agree—variable to the significance of the interest concerned. 3) Matthew v. Eldridge  Is the person entitled to formal hearing or only a ministerial one? Private v. Public interest and then the risk of error involved if the wrong level is applied.

2. When in time does PDP have to be given? a. General Rule: PDP requires the hearing be pre-deprivation. b. Exception: If Exigent Circumstances, then allow post-deprivation hearing. (1) Parratt v. Taylor: b/c impracticable to have pre-deprivation hearing for a negligent action, the subsequent judicial tort remedy in its place satisfied DP (a) Exigency exception – If having a hearing before deprivation will create harm (ie, parents accused of child abuse), the law will allow the removal of the children from the parents before the hearing. 3. Example of Proper Full PDP Analysis: a. Goss v. Lopez: HS student was suspended for 10 days for minor indiscretions. The principal told the student, ―You spiked the punch.‖ Kid says, ―No.‖ Principal says you‘re out. (1) Taking: A judicial like decision? YES, made by principle. (2) Prop or Liberty Interest involved? YES. (a) Property interest: 10 days of free public school education. (b) Liberty interest: Reputation (3) Without Process Due? NO  Informal Notice & Hearing were very minimal but good enough (if he had been expelled then the level of PDP given would increase b/c the level of the private interest would increase). B. Irrebuttable Presumptions: 2 issues are raised by this doctrine:

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 

PDP and Irrebuttable Presumptions: Fact specific, AND EP and Irrebuttable Presumptions

1. PDP and Irrebuttable Presumptions: Keep in mind, but look to EP analysis first. a. Old approach to treat IP as PDP issue, but still valid if have following particluar facts: (Belll v. Burson and Stanley v. IL) (1) State makes something a issue (2) State presumes the issue, then (3) State has a hearing later on. b. Vlandis v. Kline: Once classified a non-resident, you could never be considered a resident; CT had different fees for non-resident/ resident students. To be a resident: if non-married you had to live in CT for 1 yr before applying, if married you had to live in CT at time of application. The problem was that the state did not allow the presumption of non-residency to change. (a) SC struck requirement b/c irrebuttable presumptions violate DP since there was no hearing provided to determine whether or not to became bona fide state residents. i) Irreb. presumption that you‘re an out of state resident whole time ii) You can have residency requirements and durational requirements but once you make residency the issue, you have to holding a hearing. (b) Bell v. Burson: SC struck GA statute as violating DP that automatically suspended uninsured motorist‘s license if they were in an accident without a hearing on fault. No presumption if you were insured. i) Court: Can‘t deprive the license before the hearing b/c taking away a prop or lib interest. Must have the hearing on fault first, then suspend. ii) KEY temporally: look for when the state makes something the issue, and then later has a hearing on that issue. iii) Irrebuttable presumption was if you had an accident and weren‘t insured = fault: a) There is PDP you have a right to a hearing before presumption of fault. b) Hypo (current CA law): accident + no insurance = license is auto suspended but no fault presumed. Here there is NO PDP right b/c no ―irrebuttable presumption of fault‖ (c) Stanley v. IL: Fathers of illegitimate kids are presumptively unfit. In this case, dad lives with kid‘s whole life, mom dies, kids taken away. i) State made fitness an issue, took kids away, then hearing on issue, so it is required that there be a hearing on issue before taking = PDP. ii) See also case under EP b/c of Gender discrimination. (2) Cleveland Board of Educ. v. LaFleur: Rule: PDP requires a pre-deprivation hearing. (a) The Court said that you must have a hearing before the teacher can be suspend for being pregnant. Even if the state creates a property interest in a job, the Court still gets to decide the PDP that is required to take that job away. Thus, the Court stated that the hearing must be first. - School districts had both notice requirements for pregnant teachers and mandatory times where teachers had to take maternity leave without pay (5 and 6 mo.). Pregnancy gets RB test and law would normally be OK, so court got around it with irrebuttable presumption doctrine. i) Notice was ok (admin. conv. justifies) ii) Mandatory leave at set time was not OK. Raises PDP issue. a) Created an irrebuttable presumption that pregnant women at that stage couldn‘t perform all duties when many could. i Mandatory Leave Rule is too broad: presumes a fact that is not necessarily or universally true => have to have individualized determination. ii B/c this is a deprivation of life/ liberty/ prop. administrative convenience won‘t justify it b) This Case is really EP classification on medical condition i So should have gotten RB

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ii

But under RB, the law would have been sustained and can‘t have such nonsensical laws

2. EP and Irrebuttable Presumptions a. Modern Approach (1) Irrebuttable Presumptions no longer raise PDP issues, just EP issues. (2) All Pass under RB level of review. (3) Use this Modern Approach FIRST; however, keep Bell v. Burson and Stanley v. IL in mind. b. IR‘s are actually EP cases involving classifiers (1) Weinberger v. Salfi: Surviving spouse of deceased spouse isn‘t qualified for SS benefits if the marriage was for less than 9 months before death. Goal: deter sham marriages. Durational requirement upheld. (a) In this case, DP not implicated even though irrebuttable presumption; SC said it‘s just a classifier, so use EP => passes RB. i) The court said that there should be a hearing on the issue at to whether the marriage was a sham marriage. ii) A non-contractual claim to receive funds from the public treasury enjoys no constitutionally protected status iii) Marriage to get the benefits is common. This rule operates to lessen the likelihood of abuse even though holding hearings no problem (b) Not a PDP case, it‘s EP i) This case rejects irrebuttable presumption basically, even though SC has never said irrebuttable presumptions don‘t implicate PDP ii) But since then IP‘s have been treated as EP classifiers. (2) MA v. Merrgia: police officers had to retire at 50 b/c presumed unfit. It‘s just a non-suspect classifier so RB (hearing not required under RB). Prior to 50 they were given a physical exam. We only look at whether the law is, overall, rational. (3) Michale H: CA law presumes husband of a marital relationship is the father of the children. In upholding that presumption, the Court rejected the right of the natural father to have a relationship with the child. The Court found an irrebuttable presumption but used the RB test. Protecting the right or marriage: ―The presumption rationally relates to the gov‘t protecting the right to marry.‖ (4) Vance v. Bradley: Requirement to retire from foreign service at age 60 upheld as a valid age classification b/c it was reasonable for Congress to believe that many employees at age 60 would be unfit to perform required tasks... just EP RB test. Current State of the Law: Is there anything left of the Irr Pres. Doctrine? Most are just classifiers that will get RB. However, if you have a factual pattern that exactly parallels of Stanley and Bell v. Burson you will argue PDP issue. Facts: Law makes a discretionary decision the issue. In bell v. burson: fault, Stanley: fitness. And, they had a hearing afterwards on that issue. In that instance you have PDP issue and the Court says that the hearing must occur before the taking away of the right. II. STATE ACTION: Finding Govt Culpability for Private Acts. A. The 14th amendment says no state may deny DP, EP or Privileges and Immunities. Does not reach private acts (b/c preserves zone of private autonomy and federalism through sovereignty). 1. State Action Doctrine: Constitution only applies to the government (i.e., any governmental acts by the state, including): a. City, state, county, and federal governments. b. Agencies c. Employees acting in official capacity (e.g., public school teachers) 2. 14th Amend. requires State Action to hold one in breach of Const right. a. Includes: (1) Due Process, which incorporates:

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(a) First amendment (b) Criminal procedure requirements (c) Fifth amendment takings (2) Equal protection b. The only individual acts prohibited by the Constitution is slavery (13th amendment): see below B. The 14th Amendment and Private Acts 1. In order for the 14th amendment to reach private acts, you have to show: a. State Action. (1) When a private person is violating DP of the 14 th Amendment. (2) Comes up when the gov‘t is liable for private acts or when a private individual is being held subject to 14th A standards. b. Violation of a constitutional right (e.g., deprived of DP or classified in violation of EP) 2. Comes up when: a. Sue the gov‘t for the acts of a private person claiming gov‘t is responsible for a Const violation. b. Sue private individual and presume private individual is a state actor 3. Issue: whether a particular entity or individual is the government? 4. Approach to to find when private acts are subject to the 14 th , when looking for State Responsibility: (Burton Case) a. RULE: Must sift the facts and weigh the circumstances (find all the ways the state was involved with the private individual) (1) Important Facts Are: (also consider them exceptions to State Action Doctrine) (a) Private Individuals performing gov‘t Functions (Govt Function is limited to situations where private entity doing something that is exclusively within the province of the gov‘t). (b) Gov‘t Enforcement (the state must be compelling the action; e.g., compelling race discrimination) (c) Gov‘t Financial Help/ Licensing or Regulation of an Activity/ Authority (2) Use the facts to establish culpability. The facts establish whether or not the State should be held liable for a private action. 5. Burton – Eagle coffee shop discriminates. But, because the Eagle coffee shop is located in the state owned and operated parking structure, it is argued that they cannot discriminate as a state actor. The Court said, ―only by shifting and weighing the circumstances can you determine when the non-obvious involvement of the state constitutes state action.‖ You are looking for state culpability/blame for the denial of 14 th Amendment rights. It is a practical evaluation. There are certain types of facts that are important and you look for those facts. 6. The Type of Facts Necessary to find Gov‘t Culpability for Private Acts: a. GOVERNMENT FUNCTION: there is State Action when a private entity performs something that is exclusively within the province of the govt. (Exception to State Action Doctrine—from Jackson v. Metro Edison). Cases where State Action was found: (1) White Primary Cases: (a) Facts: State turned running primaries over to political parties and D party did not allow blacks to vote. (b) Court: State liable, private entity has been delegated an important government function. Govt. should not be able to avoid the Const by delegating the task to a private entity. (2) RULE: Private (Company) Towns: State liable b/c function same as public towns. Private prop rights of the company did not justify the State‘s permitting a crp to govern a community of citizens so as to restrict their fundamental liberties.

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(3) (4)

(5)

(6) (7)

(a) Exception: Private shopping centers are not state actors. i) Exception to Exception: CA does regard private shopping centers as state actors. Amtrak: created by the gov‘t and must comply with the Const. Even though statute that created said not part of the gov‘t, the Court sifted the facts and weighed the circs and said it was. Evans v. Newton – Private property given to GA in trust on condition that they operate the property as a public park for white citizens. City of Macon ran parks and it was found in violation of EPC. Then the city turned the property over to City of Macon‘ trustees and the park was ran as a whiteonly park. Court said that because it was a public park they could not run it as white-only. Flagbrothers - NY law allows a persons property to be sold without any hearing or notice if your property is left in storage too long. Is this a violation of the right to a hearing? No, no state action. The private entity (warehouse) could sell in common law. Thus, it was not state approval. No gov‘t action. Shelley – Barrows -

Case where NO State Action was found: IMPORTANT LIMITING CASE. (8) Jackson v. Metro Edison: P sued Metro, privately owned/ operated utility corp., b/c they shut off her power without a hearing, thus violated PDP rights. (a) P Claimed state action b/c it was heavily regulated and performed an historically pubic function; (b) SC said NO STATE ACTION b/c since there long have been private utility companies (c) Govt Function Definition: Govt Function is limited to situations where private entity doing something that is exclusively a public function. b. GOVERNMENT ENFORCEMENT OF PRIVATE DECISIONS: whether state enforcement of a policy with police, prosecutors, courts, etc is state action? (e.g., private individual choosing to exclude a speaker from their premises, and the speaker suing the govt, decrying State Action). (a) State court compelling race discrimination that parties didn‘t want to engage in (never the reverse, where compelling discrimination that parties want to engage in). (b) HYPO: A throws a party for whites only, B (black) shows up and won‘t leave... you call police to remove trespasser. Issue: is there state action? Court has never decided. But argue yes. (c) Court wouldn‘t extend it to Sit-in Demonstrations in the 60's (always reversed convictions). (d) Preemptory challenges: first none in crim court b/c public, then private civil court b/c state laws that authorize peremptory challenges. And Juries function as govt decision making body. c. LIMITED STATE INVOLVEMENT: Categories:  Govt Financial Help (Subsidy) to Private Individual or Entity  Govt Licensing or Regulation of an Activity  Govt Authority or Encouragement of an Unconsitutional Activity (1) GOV‘T FINANCIAL HELP TO PRIVATE INDIVIDUAL OR ENTITY: Doubful that financial assistance by itself justifies applying the Const to private. (a) COA Against State was Upheld: i) Norwood v. Harrison: SC found that there was state action when the govt gave free textbooks to private schools that engaged in racial discrimination. Noted State was obligated to steer clear of old segregation system. a) State can‘t do this if the aid has a significant tendency to facilitate, reinforce, and support private discrimination. b) Maybe Norwood, Gilbert and Gilmore stand for the proposition that ―the acts in and of themselves are state action‖ b/c they discriminate. (b) COA against State was NOT Upheld: i) Blum v. Yaretsky: Medicaid patients claimed that private nursing home‘s decisions which ended up reducing their Medicaid benefits without a hearing violated their PDP; a) SC said just b/c funded by state funds and operating under state regs, does not mean it was state action. b) Rather, the decisions were based on medical decisions made by private parties = no

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state action.  Not performing an act that is within the exclusive province of the govt. ii) Rendell-Baker v. Kohn: Private school (that was 95% funded by state govt.) fired teachers. The teachers claimed it violated PDP and brought suit under 1983; a) Held: Not state action just b/c school was funded mostly by state funds b) It was a private contract, so private action. And such private schools have long existed. (c) Tension among the above cases: i) Norwood = partial aid was sufficient for state action ii) Rendell-Baker and Blum = almost total subsidy not enough. iii) RESOLUTION: Govt gave aid with discriminatory intent in Norwood and Gilmore, unlike the others--—at is why found State Aciton.  In other words, the Court is most likely to find that govt subsidies are State Action when the govt‘s purpose is to undermine the protection of constitutional rights (i.e., discrimination in violation of EPC). (d) Pennsylvania v. Board of City Trusts – Are private trustees state actors under the 14 th Amendment? (e) Evans v. Newton – Senator Bacon gives a piece of property to be operate as a park for white citizens of the city. Lots of state involvement with the state park b/c the park had to operate as a public park for citizens of both colors. Bacon challenges the fact that the purpose of the will could no longer be maintained thus (a white park). The remainder in the will said that if you cannot enforce the will the park reverts back to the Bacons. i) The state can save trusts even when some purposes of the trust cannot be maintained. If the trust can accomplish the principle purpose, the trust can be maintained. The court then had to look at whether the principle purpose (Cypres Doctrine says that the state may keep the park if the principle purpose was not defeated) was for the park to be a racist. The court ruled that it was not state action. (2) GOV‘T LICENSING OR REGULATION OF AN ACTIVITY: majority of cases find that govt licensing or regulation is NOT sufficient to create State Action. (a) RULE: Just b/c a Private Individual/Entity is subject to state regulation, doesn‘t make it state action for 14th amendment purposes (b) Moose Lodge v. Irvis: Is the granting of a liquor license sufficient to find Moose Lodge a state actor? Lodge wouldn‘t serve black man, just b/c black. He sued Lodge and PA liquor board for injunction til Lodge stopped discrimination... won in lower court; SC held for State. The private entity‘s racial refusal didn‘t violate 14th b/c private club in private building (unlike Burton and Civil Rights Cases). Discrimination by a private enterprise doesn‘t violate 14th just b/c the state grants the services.  However, most likely to find State Action in case involving racial discrimination—see Reitman below. (c) Jacksonn v. Metro Edison: Court held that govt reg of a utility was not sufficient to create state Action. The claim that a private utility company has violated an individual PDP. Arguments: First, they were granted a monopoly by the federal gov‘t, thus state action (Court said No). The public function exception is limited to those activities that have traditionally been the function of the gov‘t. Second, the private utility is performing a public function. (d) SF Arts and Athletic v. Olympic Committee – Olympic name wanted for gay Olympics. They argued that the private entity authorized by Congress to have the exclusive power over the use of ‗Olympic‘ is state action. The Court said that the Committee is a private entity, not a state actor. Just because Congress authorized the Committee don‘t mean they approved of discrimination against gays. (weird rationale used by court). (e) Tarkanian v. NCAA – NCAA said fire Jerry Tarkarian or your team will never play in the NCAA again. He was fired w/o a hearing and notice in clear violation of his procedural due process

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rights. He could have sued the UNLV but didn‘t. He instead sued the NCAA which is a private entity which sets the rules for Div. 1 college sports. He sued them claiming that they are private entities that regulate public entities. He argues that b/c the NCAA regulates state entities and thus is a private actor. The Court denied his claim. The Court says that most institutions are private colleges, not public. The court concluded that NCAA was not a state actor. Tarkanian could sue the school but not the NCAA. (f) Brentwood Academy – The State of Tennessee was running the state‘s high school football program. The court said that unlike the NCAA the high school entity was a state actor. Most of the entities being run were public schools, not private schools. Thus, they were state actors. (g) Harrison Mississippi gives books to racially restricted schools. State action. State action because the Court found that the state was intentionally aiding the schools within racist programs. (h) Rendell-Baker v. Kohn – Alternative HS for bad kids. 95 to 99% for the funding of the private HS comes from the gov‘t. Private HS fires some teachers without PDP. They argue that the HS is a state actor. People may have had to impression that they were state actors. The Court held that there was no state action. Since the gov‘t acts went to the funding of the students, there may have been state action there. (i) Blum v. Yaretsky – Federal law provided that private nursing homes had to make sure that any person in the nursing home getting federal funds was eligible for federal funds. The private nursing homes would kick out people who were not eligible for federal funds. They kicked them out in violation of the PDP rights. The issue in the cash is that nursing homes are private and are not state actors. Was the federal gov‘t responsible for he private violation of the PDP rights? The Court said ‗No.‘ Minority View: (j) KEY CASE WHERE GOVT LICENSING AND REG WAS DEEMEMD SUFFICIENT FOR STATE ACTION: Burton v. Wilmington Parking Auth.: 1) Govt leased parking space to private restaurant that denied a person service solely because he was black. 2) Issue: Was the gov‘t responsible for the acts of private entity located within gov‘t owned building? YES, was state action. 3) Government licensing and regulation was deemed suffient for state action Symbiotic relationship sufficient to cause State Action  Burton never overruled, but considered outdated.  The principle is NOT that the simple use of a public facility by a private entity implies state action. (3) GOV‘T AUTHORITY: or Government Encouragement of Const violation.  Court has invalidated laws that overturned anti-discrimination laws: (a) Reitman v. Mulkey: SC found unconstitutional a voter initiative that repealed fair housing laws and prevented the enactment of such future anti-discrimination laws. In CA we had laws that prevented racial discrimination and access to private houses. We repealed the laws. i) Is the grant of freedom of choice a state action? YES, based on two reasons: 1) CA passed law for the purpose of encouraging private racial discrimination, which is an improper form of State Action, AND 2) Didn‘t simply replace Fair Housing laws, made it harder to change the FH laws. 3) Level of Review: CSI b/c race based. 4) Public defender is not a state actor. 1) Easy case, except hard to find a race based classification. 2) How to find that a Law is Race Based:

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Hunter v. Erickson: SC declared unconst an initiative that repealed open housing laws and required voter approval of any such future law. Held: initiative was an explicityly racial classification treating racial housing matters differently from other racial and housing matters. Applied CSI—State Action regarding race based classification. Law struck down b/c it referred to race at all. But Distinguish: ii Crawford Case: CA passed same law as above, without any reference to race. Objective was to limit busing just as the laws in Reitman and Hunter sought to limit open housin laws. Court: RB b/c no reference to race. iii SUMMARY: if you find race based classification get CSI. What is tricky is finding the classification . . . (b) THUS, the question of when laws permitting private discrimination constitute State Action turns on whether the Court views the law as denying EP. C. Congress‘s Power to Reach Private Acts: if there is not enough state action to reach through the 14th amendment, then look: 1. 13th amendment, § 2: only Const amend directed at private acts ―Congress can regulate private acts:‖ Must have BOTH: a. Racial Discrimination, AND b. ―Badges of slavery‖ (1) Badges of Slavery: Disabilities that were imposed upon slaves: (e.g., denial of education, freedom of employment, ability to contract, ownership of property). (a) It is difficult to find a badge of slavery. (2) HYPO: Can cong pass law stating no private employer can engage in racial discrim? (a) CAN‘T under 14th (b) CAN under 13th i) Congress can reach private acts that are badges of slavery. (3) HYPO: Above facts with Gender: Cong cannot pass with either. (4) HYPO: What about denying blacks opera seats? (a) No under both b/c it is not a badge of slavery. (5) HYPO: Congress reaching private acts in violation of DP and EP (a) No, Congress cannot reach them either under the 13 th A or under the 14th A. 2. 14th amendment, § 1: Congress can regulate private acts with regard to Privileges and Immunities. a. Privileges and Immunities Clause: Congress can reach private acts which violate privileges and immunities clause of the 14th Amendment. b. of Federal Citizenship (1) Limited in scope (because state citizenship includes the most important rights) (2) Includes: (a) Sail navigable waters, (b) Rights when held by a fed. marshal (c) Right to go to DC to petition (d) Right to travel interstate i) Historically this was the right to move across state borders a) Privileges and Immunities of Federal Citizenship b) In the 60's: private individuals killed civil rights protesters and the kids could get them even though they were private acts c) I.e. the right to travel was only used to reach private acts if the facts were: if you come across the state line, we‘ll kill you 1. 14th amendment, § 5: a. Congress can ONLY reach state acts or private persons acting under state authority. b. Civil Rights cases said: RULE: Congress does not have the power to pass a fed statute forbidding or punishing wholly private discrimination based on race or color. c. Congress cannot reach private racial discrimination, private gender discrimination . . . WO: Congress can control spending power, and can act those who are state actors.

i

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(1) This is binding authority, but was set in 1880 (2) Question is, is this still good law? 2. NOTE: Congress had been using commerce clause to reach private acts lately. Also, legislation, like Civil Rights Act. 3. Current state of law: Congress limited to state acts. 1) § 1983: no person acting under color of law may deny const rights. 2) What does under color of law mean? Same as State Action.  Can‘t sue state (but can sue cities and counties) 3) Individuals and State Action: Govt officer is acting under color of law, and is a state actor, if he or she is acting in an official capacity—even if the conduct is not authorized by state law. Review of Above Two Sections: 1. Cong CAN‘T pass ―appropriate legislation‖ relating to private acts (limited to State Acts, e.g., § 1983) under § 5 of 14th regarding DP and EP (that is, as long as the Civil Rights Cases are still in force). 2. However, Cong CAN reach private acts under § 2 of 13 (regarding race discrimination and badges of slavery—only issue is ―what are badges of slavery?‖ see above) regarding DP and EP. 3. Cong can reach private acts regarding P and I‘s of the 14th (minor privileges, except the right to travel interstate). However, limited in scope to the P and Is. a. Right to travel interstate: Cong can make it a crime to prevent someone for traveling in interstate commerce—used against racial discrimination in the 1960s. 4. Under the 13th and 14th amendments, Cong CANNOT reach private acts at all, except in the above ways. D. Congress‘s Limited Ability to Redefine Constitutional Provisions: 1. In general: a. Congress is theoretically limited legislating pursuant to enumerated powers in the Const. b. However: (1) Congress can change remedial, but not substantive provisions of 14-15th amendments (MG doesn‘t like this statement) (2) Congress can change if provision is closely related to Constitutional right, but can‘t significantly change the underlying Const. right (MG‘s distinction) 2. 13th amendment, § 2: a. § 1: Congress can regulate slavery and involuntary servitude b. § 2: Can Congress redefine § 1 by passing ―appropriate legislation‖ (1) i.e. legislation that is reasonably connected to § 1? (2) Yes, it did that to include badges of slavery 3. 15th amendment a. § 1: no intentional discrimination on voting b. § 2: Congress had passed legislation saying no discrimination impact on voting. 4. 14th amendment a. §1: DP/ EP b. §5: Can congress go beyond this? YES (1) KEY CASES: (2) Issue: Can Cong make criminal or civilly liable State Acts that the Court would not find in violation of the 14th Amend? (a) Katzenbach v. Morgan: Congress banned literacy tests for voting (which were Constitutional) as to those Puerto Ricans who‘ve finished 6th grade; does Congress have the power to pass this legislation—is it ―appropriate‖ legislation? i) Yes, Congress has power to ban literacy tests b/c if literacy test, then no one in neighborhood can vote. ii) Problem: Cong limited to enumerated powers (protecting DP and EP, etc) and the tests do not violate any enumerated powers.

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iii) Court: Upheld Congress‘ law banning the tests. iv) Congress can‘t say literacy tests violate Const./ EP when we‘ve said they are Const. a) But Congress can say that where literacy tests have caused ―unequal gov‘t services,‖ b/c the purpose of the fed law was to prevent unequal fed services. b) Have the power to fix that EP violation v) Therefore, ok to remedy that indirectly by banning literacy tests (b) OR v. Mitchell: Congress passed law to give 18 yr olds right to vote in Federal and State elections b/c ―old enough to die, old enough to vote‖... where does Congress get power to regulate state elections? i) Issue: can Congress ban a state voting rule that doesn‘t violate any Constitutional clause? NO. a) Court rejected Katzenbach argument that 18's are denied equal gov‘t services (b/c they‘ll become voters so gov‘t won‘t alienate them) b) Court said no enumerated power to give 18 year olds right to vote. ii) Reconcile with Katzenbach: a) Closer connection between literacy and voting, than age and voting b) If race discrimination, Court is more willing to give congress power (c) Bernice v. Flores: SEMINAL CASE on enumerated powers. Cong passed religious freedom and reformation act (RFRA). Court had previously held that must be a CSI to take away free exercise of religion rights. But, in Smith v. OR: Court said test was not CSI (didn‘t say what it was). i) Then, Congress passed RFRA: where Congress affirmatively said test was CSI ii) Held: Court said ―we formerly said test was not CSI,‖ Congress had no right to say it was CSI b/c under the 14 th amend, Cong is limited to correcting EP and DP violations.  This is a statement about enumerated powers (i.e., bound by what it says in the Const.—here § 5 of 14th).. III. FIRST AMENDMENT: FREE SPEECH A. FREE SPEECH: FUNDAMENTAL RIGHT 1. Protected by: a. 1st Amendment: Congress shall make no law abridging free speech b. 14th Amendment: States can‘t either Doctrines that Apply to Any Content Test: ways of attacking laws without regard to the substance of the law in question: (apply to both Content Based and Content Neutral Regulations) B. VAGUENESS: laws that lack ascertainable standards by which a person can guide their conduct are void for vagueness. 1. Primarily a concern for the DP requirement of notice: should have notice as to what the crime is. 2. When applied to general law: even if it‘s vague to others, if it‘s clear to you, you can‘t litigate. 3. Court is tolerant with vague language in laws. Uphold most regulations, unless not sufficiently clear. 4. Not usually an issue 5. NOTE: Vague laws are inherently overbroad, but overbroad laws are not necessarily vague. C. OVERBREADTH: laws that regulate unprotected and protected speech are overbroad. 1. RULE: Even if what you were doing was not protected, you can litigate it as if it was protected by challenging the law on its face as it might be applied to others. (Free Speech is the only area can challenge a llaw as it might be applied to others). a. On exam must say: why you need overbreadth and how it applies. 1) IMPORTANT NOTE: Only time to use on exam is when person being punished by law is engaged in an activity not protected by the 1 st Amendment or arguably not protected. Don‘t use otherwise. 2) This allows person to escape the fact of the case and litigate the theory of the 1st amendment in all its majesty. (a) Ex.: statute says no sex explicit speech (which is protected) i) Apply statute to hard core porn producer; producer walks b/c statute is overbroad (even

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though his speech wasn‘t protected, b/c law reached protected speech, it was overbroad and struck) ii) Apply statute to soft porn producer; don‘t need overbroad b/c first amendment protects soft porn, so producer walks anyway (don‘t litigate overbreadth in this scenario) (b) Coates v. Cincinnati: ordinance said this was a criminal offense for more than 3 people to congregate on sidewalk and act in a way annoying to passersby. SC said statute was unconstitutional on its face, 14 amend. violation: no standard of conduct is specified (―annoying‖ doesn‘t cut it), so struck on vagueness... also struck as overbroad. D. DOCTRINE OF PRIOR RESTRAINT 1. Similar to Vagueness and Overbreadth where you attack the law without regard to the substance of the law. 2. Prior restraints are presumptively invalid b/c they prevent ideas from getting into the marketplace. a. Elements: (1) A restraint that prevents publication (a) NOT subsequent punishment (which are valid b/c hurt speech less than prior restraints). (b) NOT self-censor (threat of punishment after publication) (2) If have a prior restraint (e.g., injunction, license), (a) it‘s presumptively invalid (b) even if subsequent punishment would be constitutional.  Pentagon Papers Case: Elsberg revealed Defense document to the NY Times which violated federal law. The lower court enjoined the NY Times from publishing the info.  Court held that Elsberg could be subsequently punished but the prior restraint was invalid. 3. Near v. MN: SEMINAL PRIOR RESTRAINT CASE: Anti-semitic tabloid publisher was prosecuted for criminal libel (at this time libel is not protected speech) and publication was enjoined against further publication under MN law; reversed by SC as an infringement of freedom of press b/c Prior Restraints are presumptively invalid. a. The punishment after the act (subsequent punishment for defamation) was no problem b. But, you can‘t restrain prior to publication (presumptively invalid) (1) B/c if you‘re punished after, your idea still reaches even if you‘re looked up, but if you‘re punished before, your ideas don‘t get out (so Court won‘t tolerate)... can‘t enjoin the publication 4. Exception to Prior Restraint Ban: a. Prior Restraints allowed ONLY if clear & present danger to society (Not the same as Brandenburg ―incitement test‖) (1) There must be an ―immediate danger‖ that must be addressed by use of a prior restraint. (2) Ex: A troop ship sails in time of war. A newspaper is about to publish the date and time and there is no way to protect the truth. Then, a prior restraint is valid. E. CONTENT-BASED REGULATIONS 1. Strict Tests used for ―content based regulations‖ (equivalent to CSI, never RB)  Reasoning: when the govt is controlling the content of speech, important for the court to step in b/c important for marketplace of ideas. a. Specific Strict Tests: (1) Radical Political Speech: Clear and Present Danger Test (2) Sexually Explicit Speech: Cal v. Miller: All but hard core porn is protected (3) Defamation: Ny Times v. Sullivan (4) Fighting Words: Chaplinsky  If a specific test does not apply then just use CSI.  CSI Test: narrowly tailored to accomplish a compelling state interest b. CLEAR AND PRESENT DANGER TEST (1) Used for Radical Political Speech (a) Incitement Test i) Advocacy of unlawful acts ii) With the specific intent to incite unlawful acts

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iii) Likelihood of success. (b) Brandenburg v. Ohio (gives test): B was a leader of KKK. Convicted under OH Crim. Synd. Act for holding a KKK rally; SC held that statute was unconstitutional a) Used incitement test and law struck down. (c) Bridges v. CA: B was labor leader. Said labor leaders couldn‘t get fair trial in non-union state like CA, B was found in contempt of court even though not a party, outside presence of court. SC that a nonparty, not in presence of court, can‘t be held in contempt unless clear and present danger to administration of justice (has never been upheld) (d) Prior restraints are constitutional if clear and present danger of evil (see Near v. MN) (2) Brief Development of Clear and Present Danger Test: (a) Gitlow v. NY: This is the case that makes 1st applicable to the states via the 14th amend. (b) Dennis v. US: D and other leaders of Commy Party were convicted of violating Smith Act for 1. organizing the CP as a group that teaches/ advocates overthrowing US gov‘t by force and violence and 2. advocating/ teaching the duty to do that; SC upheld conviction/ upheld the constitutionality of the Smith Act under the C/P Danger Test i) Need for proximity had to be balanced against danger of the evil ii) i.e. if danger increased, need for proximity decreased (never re-brought up) a) also, if type of speech made a crime, is there a need for c/p danger test iii) Dennis still stands, but not considered good law. a) while Gitlow, Whitney majority said when speech is the crime, don‘t need test => RULE: in Dennis, said when speech is made the crime, the court is charged with looking for Clear and Present Danger. b) Dennis is limited to Smith Act basically c. DEFAMATION (NY Times v. Sullivan)  Modernly, P has the burden of proving the statement was false. (1) Used For Protecting Speech About PUBLIC FIGURES/ OFFICIALS (a) Test to recover damages for a defamatory statements about public officials (b) NY Times v. Sullivan Test: Public officials must prove actual malice, which is . . . i) Intentional Falsehood OR  Their notoriety allows them to have access to the media so they have the ability to rebut with the truth ii) Reckless Disregard (of whether it was false or not)  Reckless Disregard: ―serious doubts about the truthfulness of the statement‖ and making it anyway (subjective standard—does the person who actually made the comment have serious doubt?) (c) Public Official: anyone i) Holding a significant public office, ii) Running for office iii) And maybe recently left office (d) Public Figure: anyone who holds themselves out to public or utilizes the media in any way (e.g., celebrities)  NOT including Limited Public Figures. (e) NY Times v. Sullivan: S, Montgomery AL commissioner who supervised police, sued NY Times for publishing an ad that falsely stated various acts by the police. AL libel law said if libel per se, all jury has to do is find that D published it. Jury found for S and awarded damages; SC reversed b/c AL statute didn‘t have safeguards for freedom of speech and of the press that are required by 1st and 14th amend... i) Test: with actual malice see above a) Subjective standard/ not reasonable person but did the person actually think that (2) PRIVATE FIGURES/ MATTERS OF PUBLIC CONCERN & LIMITED PUBLIC FIGURES:

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(a) Private Figure/Matter of Public Concern: As low as Negligence, but individual states can have a higher standard. 1) Damages: Only proven damages, NO punitive. (b) Limited Public Figures: persons who have notoriety with regard to a particular matter (e.g., President of MADD). 1) Standard: state controlls, as long as not Strict Liability 2) Damages: no presumed or punitive damages unless actual malice (c) RULE: Public v. Private Figures (Firestone): Difference between is that public figures are those who voluntarily draw themselves into a matter of public concern. Private figures are involuntarily drawn in. Cases: (d) Gertz v. Welch: police officer was convicted of murder of victim. G was lawyer in civil case for victim against police officer. D was publisher for magazine that claimed there were conspiracies against police to further commy party... said G was a commy and framed the officer, even though G had nothing to do with the criminal action and no proof he was a commy... trial court used NYT‘s standard and ruled for D; SC reversed i) Standard for private individuals: a) state may impose any standard they deem appropriate as long as not strict liability, minimum must be negligence a) Damages: no presumed or punitive damages unless actual malice  If standard is negligence, can only get proven damages: including economic loss and loss of self-esteem i) This test is also the test for: limited public figures (only public for one aspect of life) (e) Firestone Case: locally prominent family... highly publicized divorce... Time magazine reported that divorce grounds was adultery... wasn‘t... ex-wife sued; SC said she was private figure and promulgated standard for delineating difference between public and private figures. (3) PRIVATE FIGURES/ MATTERS OF PRIVATE CONCERN (Dunn v. Bradstreet) (a) Standard: Strict Liability for false statements a) Damages: presumed and punitive b. RIGHT TO PRIVACY TORTS (occasions where privacy trumps free spech) Four Separate Causes of Action:  Revealing Private Facts  False Light  Misappropriation  Intrusion on Seclusion (1) Revealing Private Facts: Two Part Problem Here: (1) in Tort; and (2) Const. Issues. Elements of Tort: (a) Acts MUST be private (can‘t be revealed in a significant way) (b) Revealing private information that is highly offensive (―shocks the conscious‖) (c) NOT newsworthy or involving a matter of legitimate interest  If maintain the tort, then go to Constitutional issue Const issues: (d) Standard: CSI standard to justify the restriction for state law to make a crime to reveal the following: 1) Names of Juvenile Delinquent 2) Judges under review 3) Rape victim names

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(e) NOTE: No Supreme Court decision involving this tort and how it is consistent with the 1 st Amend—none successful against the media. (f) Possibility: if the tort is met then tort might satisfy the CSI test under the Const. (g) Though the SC has never decided, MG thinks that truthful info is protected by 1 st amend even if it is offensive. (2) False Light: a false, but non defamatory state made about someone (Time Inc. v. Hill). (a) Standard: must be intentional falsehood or reckless disregard (NY Times) even for private individuals. (b) Time Inc. v. Hill: Hill family victims of home break in. Said Mr. Hill braver than actually was. Not defamatory, but false. TV station had a privilege to report the act as a newsworthy event. (3) Misappropriation: the use of someone‘s likeness for commercial gain. (a) Joe Namath: picture on cover of sports illustrated—OK, but using the cover to sell other magazine. Court found no misappropriation. Good demonstration of the issue. (b) Zacchini Case: news reporter videotaped act of guy who was shot out of cannon, even though Z asked him not to; SC said Misappropriation found b/c reported whole act. (4) Intrusion on Seclusion: (a) Courts have NOT been sympathetic to 1st amend claim of the intruders. (b) Media Defendants may potentially be liable if the court finds 4 th Amendment violations (i.e., following along when police issue search warrant). c. OBSCENITY & PORNOGRAPHY : CA v. Miller Test (1) Level of Protection given to Obscenity (2) Level of Protection given to Sexually Explicit Material: (CA v. Miller) (a) Must appeal to the prurient interest of the average reasonable adult (Roth Case) i) Prurient interest: an unnatural curiosity with regard to sexual matters (b) Patently offensive to the community i) Applying contemporary community standards (e.g., LA, Vegas and NY might have their own standards—in some communities it might be more or less than the norm). ii) As specifically defined (what we consider to be patently offensive must be defined in statutes or by court to address the problem of vagueness in definition of porn). (c) Without serious (literary, artistic, political, or scientific) value (not a closed list) (national standards).  All but hardcore porn is protected by the 1 st Amend.  Exception: fighting words. (3) Cases: (a) Paris Adult Theatre: city filed to have movies shown obscene and theatres enjoined from showing them... trial court dismissed complaint/ ct of apps reversed; SC upheld ct of apps. i) B/c there are legit. state interests in stemming the tide of commercialized obscenity... incl. quality of life, community environment, possibly public safety (reasonable inference) ii) MG says that this case means that consenting adults cannot choose to read view what they want. (b) Jenkins: only hard core porn is not protected by 1st, everything else is. (c) Also, once in home anything (but child porn) is protected. (4) INDECENT SPEECH (Profanity, vulgarity, etc.): (a) Indecent Speech is protected from regulation by the 1 st Amend. (b) Limiting Exception: Fighting Words i) Chaplinsky: fighting words NOT protected by constitution. a) To Find Fighting Words = NOT protected: i Fighting Words (vulgar, profanity directed at another) ii Face to Face confrontation iii Uttered under circumstances that would lead to breach of peace if the other person is able to respond

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iv Statute must be limited to fighting words (if not, is overbroad and cannot be applied even as to fighting words).  Houston v. Hill: law made interference with cop in performing his duty a fighting word. H says fighting words to cop giving him a ticket; law struck b/c overbroad, even if fighting words were used face to face. ii) Cohen v. CA: C wore jacket in LA that said ―F*** the Draft‖... convicted of violating CA statute; SC reversed... not obscene under porn cases and not fighting words, so is constitutionally protected. iii) RAV v. St. Paul, MN: cross burning on lawn of black family... prosecuted under ordinance that made racist fighting words a misdemeanor; SC reversed b/c ordinance didn‘t ban all fighting words, only one category, so it was content based (gets a CSI, which it failed). iv) Michigan Boating Incedent: man swore whilst boat going down. Plead guilty under Mich law. Would have been protected b/c didn‘t meet Chaplinsky. d. Issues Related to the Regulation of Indecency Protected by the 1st Amendment (absent Fighting Words Exception) (1) Broadcast TV and Radio Free Speech Rule: (a) SPECIAL STANDARD with regard to Bdcast TV and Radio: (b) Mid-Level (or Balancing) Test: Any regulation of Bdcast TV and Radio must substantially relate to important govt interests.  Less strict test for TV and Radio justified b/c it is intrusive and pervasive by entering our homes, therefore govt. can regulate free speech to protect children. (b) FCC v. Pacifica: i) Facts: Bdcast George Carlin‘s album. Overheard by man taking son to Drs office. Pacifica sanctioned b/c rule, although CB, substantially related to govt. interest. ii) SAFE HARBOR RULE: indecent material can be channeled into safe harbor hours of 10PM-6AM, otherwise indecent material is easily punished by the FCC.  CANNOT ban indecent material completely. Cable, Internet, Dial-a-Porn get General CB Free Speech Test: CSI (If CN: Mid-Level) (2) Cable TV Free Speech Rule: CSI Test (a) Playboy Case: Congressional rule saying that Playboy channel be completely scrambled or just Bdcast during Safe Harbor. 70% companies limited Playboy between 10PM and 6AM. (b) CABLE CSI TEST: Any regulation of content must be narrowly tailored to accomplish CSI.  Rx Adequate Alternatives must be considered.  Apply CSI b/c none of the specific free speech tests apply. (c) Court: There existed a rx adequate alternative to what happened to TV, which applies only to cable. The alternative is that home owners can ask for complete blocking. (3) General Free Speech Regulations: CSI Test if Content Based Regulation: (a) Sable Communications: i) Facts: Involved the reg of indecent dial-a-porn. ii) Court: if it is obscene or ponographic it is not protected, if not obscene or porno, the content is protected absent a CSI. iii) TEST: the regulation must be narrowly tailored to accomplish a CSI 1) There must be no rx adequate alternatives 2) Here the Court finds 2 rx alternatives: i Require credit card use to access the services. ii Even if suscribe to cable, lock out divice. (4) Internet Regulation: CSI Test (a) Reno v. ACLU: challenged law bans distribution of indecent or patently offensive material to

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persons under 18; was supposed to protect people under 18, but you can‘t control internet so that only kids get protected and doesn‘t harm adults. i) The regulation impacts the viewing and reading habits of adults, so can be protected under 1st if not obscene (this case, didn‘t satisfy Miller). ii) Any regulation that attempts to protect kids, but inherently harms adults free speech interests gets adult standard. iii) Can govt regulate words that do fall short of hard core porn? No, but may get under CSI catch-all. iv) TEST: CSI (as framed above) (b) Denver Telecommunications Consortium v. FCC: i) Facts: involved several regulations of cable, several approaches 1) First regulation: Requirement that cable segregate the sexually explicit materials from leased access channels, on a single channel and block it, with 30 days to block or unblock. a) Court said: CB regulation and thus, CSI test  Impacts the viewing habits of adults, not narrowly tailored b/c not limited to kids  Segregation and blocking requirements shot down 2) Second regulation: permission of the cable operator to not broadcast indecent material on leased access channels (i.e. those channels turned over for others to use, not able to be regulated at all)—but this law said that the city could censor indecent content here a) Court says its OK = Const: CB regulation, but message neutral which should get a strict test, but Congress said that cable had to turn over leased access to them, so why isn‘t it ok for Congress to say that you can turn it all over to them? (1) Uphold because Congress wasn‘t mandating that indecency be barred, allowing the cable operators to do it on their own. (2) Not a precise free speech resolution (hard to get much from it). 3) Third Regulation: Regulation to censor public access channels (PEG)  Court struck it down: wasn‘t common that indecent material was on these broadcasts, only occasionally.  Even if there was a problem with regard to indecent material, was a rx adequate alternative, which is allowing the local authorities to decide what they consider it to be patently offensive in their locality Review 1. Content Based Regulations a. Strict Tests 1) Various Specific 2) General Fallback Test: CSI 2. Content Neutral Regulations: time place and manner regulation. a. Balancing Test (General Fallback Test) 1) Must balance non-speech governmental interest with the harm done to speech. 2) Consider rx adequate alternatives F. CONTENT-NEUTRAL REGULATIONS (time, place, and manner regulations, not content) 1. Mid-Level (Balancing) Test: Regulation must be substantially related to important state interests. (key is using the facts of case to figure out the balance) a. Balance the non-speech governmental interest v. harm to free speech b. Consider rx adequate alternatives. c. Nature of the forum d. Same as Bdcast; but different in that reg of Bdcast is content based somewhat, but Bdcast special b/c pervasive. PICKETING CASES: (a) Boos v. Barry: Illustrates the importance of the different levels of review. i) Facts: One fed law, although court treated as 2 separate laws. One said no picketing within

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50 feet of foreign embassy. Other said no picketing that holds embassy up to ridicule. ii) First reg? Mid-Level Test b/c Content Neutral Reg 1) Non Speech objective: security 2) Passed test b/c adequately balanced interest iii) Second reg? CSI b/c Content Based. 1) Is concern for ridicule a sufficient interest? NO. (b) Frisby v. Schultz: city ordinance banned all focused picketing in residential areas of specific residences. CN ban, i) So test is whether the ordinance is: a) Narrowly tailored? yes, only directed at those who are presumptively unwilling to receive the message (captive audience) b) To serve a significant gov‘t interest? yes, to protect residential privacy > than harm to free speech c) And leaves open ample alternative channels of communication? yes, only picketing banned, lots of other comm. avail. ii) Ordinance upheld a) If no picketing at all, then free speech wins, see Madsen b) If no picketing except for labor, no longer content neutral, then lose CSI test and free speech wins Other Cases: Balancing privacy interest with the harm to free speech. (c) Madsen v. Women‘s Health Center: (Good TEST Example) injunction banned certain activities by anitabortion protestors... i) First was it content neutral? a) test: whether the gov‘t has adopted a regulation of speech without reference to the content of the regulated speech? b) Yes, injunctions target a group (w/ same message), but that doesn‘t make it content based ii) Balancing test: whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant gov‘t interest a) Passed: state interests > burden on speech: 36 ft buffer in front of clinic so there can be access, limited noise restrictions (clinic, residential) b) Failed: burden> gov‘t interest: buffer zone on back side of clinic, ban on images observable, ban on physical approach unless consent, ban on picketing in neighborhood (300 ft buffer zone) 2. In balancing, look at: a. Rx adequate alternative b. Nature of the forum: Adderly (one of the factors in the balancing test is the nature of the place where the free speech occurs. (1) Look at: (a) Was the speech consistent with the forum? (b) Brown: silent protest in public library to protest segregation... arrested for trespass; (silent) speech was protected b/c it was consistent with the forum (2) 3 types of public forums: (a) Traditional public forums: have a high tolerance for free speech. Traditionally places of protests i) Includes: sidewalks, streets, parks ii) Test: if CN = Balancing (if CB = CSI see above) (b) Designated public forums: i) Set aside for public forums (ex: town square) ii) Treated same as traditional public forums (c) Limited public forums: i) Test: CN = Rx Basis test (if CB = CSI see above) ii) Ex.: Post offices

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a) Internat‘l Society for Krishna Consciousness v. Lee: Krishnas gave away material at airport. Banned. SC: applied Rx Basis Test. Ban on the sale of goods is rx related. BUT, ban on giving material away not rx related to the intended use of the airport.  Whether an airport terminal is public forum? Yes, but limited PF (d) When to Apply Limited PF rather than Designated PF? Apply a Limites PF when the nature of the use is normally incompatible with the normal full range of Free Speech. (ex., Post Offices, Govt Offices) c. Reasonable other Channel of communications/ ample alternative channels for communication (1) Linmark Assoc. v. Willingboro: city law banned ―for sale‖ signs on residential property (to stop ―white flight‖ panics); SC said CN (even though only ―for sale‖ banned), but failed test b/c hurt free speech too much (how else do you sell your house effectively) (2) Ladue v. Gilleo: ordinance said no signs but ―for sale‖ signs... SC said CN. Struck down law as violating the balancing test (might be able to regulate size of sign, but NOT restrict totally) BELOW IS IMPORTANT: allows some consideration of content and still balancing. 3. Young v. American Mini Theatres: some consideration of content and still balance. a. Facts: Detroit trying to bring up neighborhood. Reg said could not have adult theatre within 500 ft of residential uses and can‘t have within 100 ft of other regulated buildings. b. SC: ―primarily‖ CN (but it‘s not...) b/c no consideration of message/ viewpoint and the content that is considered at directly relates to nonspeech gov‘t interest (neighborhood) c. TEST: If reg is CB (or some degree of content), but Message or Viewpoint Neutral, some consideration of content is allowed if Content directly relates to the Non-Speech govt interest. (1) In Young & Renton v. Playtime Theatre: (a) There was some consideration of content, but it was limited b/c not pro v. con., just adult v. family theatres (b) The consideration of content directly related to the nonspeech gov‘t interest of the deterioration of neighborhoods (2) But in Consolidated Edison Co. of NY v. Public Service Commission: (a) Law tried to regulate inserts in bills by saying no inserts involving matters of public controversy (b) Got CSI b/c the consideration did not relate to a non-speech gov‘t interest G. DIFFERENT TYPES OF SPEECH 1. Heckler‘s Veto: (when speaker says something aud doesn‘t like) a. RULE: speaker has a right to speak. If aud objects to the message, the police have to take rx steps to protect the speaker 1 st. If can‘t, then speaker can leave. 2. Symbolic Speech a. Definition: words not used, but substitutes (e.g., gestures, burning flags) b. Approach: 1) Recognize Conduct as Symbolic speech (Spense Test) (if not Symbolic speech, gets RB) a) Test to Determine whether Speech at all: Must have . . . (1) Symbolic acts that are closely akin to free speech (2) Having a communicative askect, AND (3) Capable of being understood by others. 2) Identify whether CN or CB a) If CN apply balancing (or O‘Brien Test if want)  Symbolic aspects can affect the balance, but still a balancing test (i.e., library protest compatible with aims of library, Tinker: armbands in protest of Vietnam) b) If CB apply CSI test. c. TX v. Johnson: J was convicted of under TX flag desecration statute (content based) for burning the flag during a political protest; SC reversed conviction b/c statute failed CSI 1) Act was expressive conduct, so protected 2) Statute was aimed at suppression of expression, so not O‘Brien

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d. Eichman: Congress passed Fed. law making burning of flag illegal. Unconstitutional even though Congress tried to make it CN. CB reg failed b/c SC said flag statute is inherently content based so didn‘t get balancing. e. US v. O‘Brien: O was convicted under statute for burning his draft card. O claimed this violated his 1st amend rights; SC said no and upheld statute as constitutional b/c when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important gov‘t interest in regulating the nonspeech element can justify incidental limitations on First Amend. Freedoms (1) Normal 1st Amed test for Symbolic Speech: (a) The regulation is unrelated to the suppression of free speech (if don‘t pass this part, must apply another test) (b) If CN, then law must further a substantial or important non-speech govt interest (purpose part of the test) i) Was there no rx adequate alternative way of advancing the interest other than by hurting free speech? If NO, pass this element (c) The incidental restrictions are no greater than necessary. f. Barnes v. Glen Theatre: IN banned public nudity (not protected by first) included no nude dancing (but some public nudity that is expressive may be protected) (1) Held: Found govt interst outweighed the harm to free speech. Upheld the law. 3. Commercial Speech: use if regulation of free speech issue with regards to ads or commercials. a. Commercial Speech Approach (Central Hudson) (1) Determine if have Commercial Speech (ie. Commercial advertising) (2) The speech must involve lawful activity and NOT be misleading (this part of test unique to comm speech—e.g., can‘t advert for pot and expect protection) (3) Must involve a substantial govt. interest (4) Law must directly advance the substantial govt. interest, AND (5) Law is no more extensive than necessary to accomplish advancing the interest b. Commercial speech subject to regulation when regular speech is NOT regulated c. Generally: in applying the balancing test, most commercial speech regulations are upheld. 4. Government as the Speaker a. If the govt is the referee of free speech generally, then apply regular regs., BUT b. RULE: IF the Govt is the speaker (through funding), speech does NOT have to be neutral. Govt can have a point of view. (1) No requirement that the Govt be balanced with regards to presenting its point of view. (2) Russ v. Sullivan: Regan‘s order prevented PP clinics that received Fed funds from mentioning abortion. Did it violate free speech rights of employees? (a) HELD: No, the gov‘t is speaking and as speaker, it can refuse to mention abortions since funding. (3) NEA v. Finley: amendment said NEA had to take into consideration standards of decency and respect for beliefs/ values of Amer. Public. Govt is funder, which is govt as speaker and can say what it wants. (4) Libraries (a) Should be neutral (no gov‘t is the speaker exception) (b) Pico Case: Board had library remove books due to their content. Board claimed it was acting as a gov‘t speaker; SC rejected this b/c libraries are supposed to be neutral i) Qualified Govt. to make choices (Distinguish Against Buying Books and Removing Books—applies to broader speech than books): can make decision about books that buys for libs, but in removing books, are limits. a) Books removed for ideological perspective run afoul of 1st amend b) Books removed as inconsistent with educational purposes are OK.  Applied to Guliani case this year to broaden scope of Rule. 5. Speech in Public Schools (only where govt can make attendance mandatory = elementary and high schools, not state colleges):

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a. Govt has greater ability to reg speech in public schools than it has elsewhere = has been restricted in elementary and high schools. b. Test: Speech can be regulated in Public Schools so long as their actions are Rx related to pedagogical concerns. (Rx Basis Test—less protection than balancing). c. Cases: (1) Bethel v. Frasier: student nominating friend for student office in front of high school assembly. Suspended for making sexual references. SC: OK, rx related to concerns. (2) Hazelwood: HS newspaper article was edited out b/c too easy to identify victims... SC said ok, even though would be protected anywhere else, but not in school. 6. Free Speech Rights for Prisoners a. Rx Basis Test (similar to public schools): Govt regulation must be Rx Related to correctional concerns. (1) Can‘t limit the right of prisoner to marry = too narrow (2) Upheld mail regs as Rx related to correctional concerns (safety). 7. Free Speech Rights of Gov‘t Employees a. Test: (1) Govt employees have the free speech right to express their point of view about a Mater of Public Concern. (2) But NO right to make comments inconsistent to the general atmosphere of their employment environment. (3) Cases: (a) Connick v. Myers: Assistant DA was fired for circulating a questionnaire around office about boss that was embarrassing to him. SC: Private speech, not protected by 1st amendment. If your speech as a gov‘t employee relates to internal activity of the gov‘t office, you can be fired for statements. But, if your speech is a matter of public interest, it is protected. Here, not protected. (b) McPherson Case: M worked for sheriff‘s office. When M got word that Regan had been shot, M said ―I hope next time they get him‖; M fired for statement. SC: Matter of Public Concern so  protected as free speech. (c) can‘t regulate off-speech activities of gov‘t speech writers b/c no CSI b. Political Patronage: Cannot be hired or fired based on political beliefs for a gov‘t job, unless the job itself refers to political aspects of the employer. Otherwise, violates freedom of association. You cannot be promoted, etc, based on your political beliefs. 8. Election Related Issues/Campaign Reform Issues: The SC‘s rulings (make reform almost impossible b/c so many loopholes) a. Disclosure requirements: have been upheld as being consistent with 1st (1) Exception: while most political parties/ candidates have to disclose, if group is so fringe that disclosure will hurt your membership, fund-raising, etc., you don‘t have to disclose b. Limitations on Individ. or Corporate Contribution to Candidate: Usually limits on how much one entity/ person can give = upheld as being closely enough related to a concern for election corruption. c. Conditioning on spending on receipt of Federal funds: CAN LIMIT. If gov‘t wants to fund an election, they can condition the receipt of funds with spending limits. Things found Unconstitutional by Court: a. States cannot control limits on Candidates own money spent. b. No limit to Amount that can be spent on particular issues. (soft money) c. Govt. cannot impose limitations on Unaffiliated Ads 9. Media given NO extra protection under 1 st amend: Under Gertz, media protected by at least neg standard a. Exception: Court struck down discriminatory taxes placed on media that aren‘t part of a general taxation scheme. b. Confidential Sources: (1) No Const right to keep sources confidential.

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(2) HOWEVER, almost every state has framed statutory exception to the requirement that the press turn over confidential sources. H. FREE SPEECH COROLLARIES: (free speech doesn‘t refer to them, but necessarily encompasses these interests): Three Separate Categories of Corollaries (much overlapping): 1. Freedom to Believe/Not to Speak (express point of view): to believe in your own mind what want to believe, w/o revealing it to others. a. WV v. Barnette: School rules made it mandatory that students say pledge of allegiance. Jehovah‘s Witnesses sought to enjoin the enforcement of regulation against them; (1) SC Held requirement invalid b/c no individ can be compelled to express whether they believe or don‘t believe in certain issues. (2) Wooley v. Maynard: NH license plates had state motto: Live Free or Die. JW‘s, covered it up b/c of moral objections &convicted for obscuring plates; SC affirmed Barnette. 2. Compulsory Speech/ Compulsory Association: Compulsory Speech: a. Miami Herald v. Turnillo: (1) State law required a newspaper to allow a right to reply to comments against them. Had been upheld with regard to TB and radio. (2) SC: Rejected right to reply requirement as applied to newspapers. Newspapers have right to express point of view. (Now no more for TV either). b. PGE v. PUC: Inserts in utility bills case. Law treats envelope as public forum and PGE must allow other voices to use their envelope 4 times a year. SC: Struck down requirement b/c can‘t compel private entities to speak. c. Brothers Case: CA required that minor fruits ban together – nectarines, plumbs and apricots get together for selling, distributing, and marketing their products. Among the things that they did was do radio ads in tandem. One CA plumb grower thought they grew a better plumb. The Court rejected: said they had to be part of this marketing. Here, the marketing scheme was only one part of the total effort so they had to be part of it. d. United Foods: One mushroom grower thinks theirs are the best and doesn‘t want to adv with all others. The Courts said they are right and that they don‘t have to adv with the group. The marketing program was the sole program. e. Pruneyard: Owner of shopping center had to allow use of it for speech and petitioning (even though they didn‘t want the message). (1) SC: Was not compulsory speech. Upheld the requirement against the shopping center. f. Allowing Military Recruiters: Some schools said that allowing military recruiters was similar to them espousing an anti-gay point of view. Ct said it isn‘t and said that military can go onto campus. Compulsory Association: a. Can be compelled to join associations b/c consistent with 1 st amend. Can also be required to pay dues, BUT . . . . g. May have right to a portion of dues back if unrelated to activity. (Ex.: if union spends money unrelated to union activity, have right to give portion of dues back). h. Problem: Defining what is union/bar related. (1) RULE: if arguably related, then can be spent. If clearly not related then can get some dues back. (a) Any expenditures that are germane to the purposes of the org. can be spent (b) But if org. spends any portion of dues on ideological/ political agendas, they must have a scheme to give money to protesters back. (2) Univ. of WI Case: Student activity fee charged. 20% went to various clubs/ orgs on campus. Certain students challenged money b/c it was going to school; SC said as long as money distributed on a Content Neutral basis, OK. (But part that maybe content based was remanded b/c if it was; it

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has to satisfy content based). There is nothing that is inappropriate about an educational institution and the money is going to content neutral causes. (3) Keller: Bar dues go to pro choice lobbying. Although you can be required to be a member, you cannot be required to pay dues to a certain agenda. Any member who rejected the way the money was spent could get back a proportion of their fees. 3. Freedom of Association: Part of fundamental right to privacy. a. Basically... (1) There is freedom to Associate with those of like-minds in order to promote ideas. (a) Peaceful concerted action is protected by freedom of association (but not if violent) (2) Can‘t be taken away, UNLESS government has a CSI. (a) NAACP v. AL: AL required that all associations turn over membership list including contributors; SC said CSI. b. NICE ISSUE: State Laws banning the Association of Private Organizations if they practice racial/gender Discrimination: (1) Two categories of Assoc. Groups: (1) Expressive; and (2) Societal. (a) Regulations of Expressive Associations must be justified by CSI = protected by 1 st (b) Regulations of Societal Associations get RB (2) Problem: How to decide which type of Assoc in particular facts? Look at size, purpose, policies, selectivity, congeniality, etc. (a) Roberts v. US Jaycees: Jaycees didn‘t admit women as ―regular‖ members. State law prevented gender discrim; SC said Jaycees have pro business point of view, which is Expressive, but has nothing to do with banning women, and for those purposes which are societal get RB level of review. (b) Rotary Club: CSI test applied to preventing gender discrimination. (c) Hurley: Group wanted to be in parade. Veteran‘s Council said no; SC said no b/c Parade was an Expressive Association and thus could exclude whomever they want (d) Boy Scouts: II. RELIGION: ―A State Shall Make No Law Respecting An Establishment of Religion or Prohibiting the Free Exercise Thereof.‖

A. PROHIBITION ON THE ESTABLISHMENT OF RELIGION: There MUST be a Separation of Church and State.
1. Everson Case: NJ statute authorized reimbursement to parents for their children‘s public transportation bus fare to/ from school, even if the school was a Catholic parochial school. Challenged as violating the 1st amendment. a. Problem: 1) NJ CANNOT contribute tax raised funds to support a Catholic school b/c that would be a violation of establishment of religion clause. 2) NJ can‘t hamper the free exercise of religion either b. Held: Allow Breach of High Wall separating Church and State: The first doesn‘t prohibit NJ from spending tax money to pay bus fares of kids to Catholic schools as part of a general program that pays fares of kids attending other schools. ELEMENTS: for a statute to NOT violate the Establishment Clause:  The Statute MUST have a Secular, Non-Sectarian Purpose;  Its Primary Effect MUST be one that Neither Advances nor Inhibits Religion; AND  The Statute MUST NOT foster ―an Excessive Gov‘t Entanglement with Religion.‖ Elements Broken Down: 1. Lemon v. Kurtzman: invalidated PA statute reimbursing non-public schools for salaries, textbooks, etc.= no direct grants to schools; SC developed Lemon test. To Survive a 1st Amend attack, Law must pass below three: a. FIRST: The Statute MUST have a Secular, Non-Sectarian Purpose

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(1) Early cases: (a) Were state compelled prayer, reading of Bible, posting of 10 commandments, teaching of evolution in schools. i) Moments of silence in schools... looked at history and determined that purpose was to have prayer in schools... but had it had a neutral purpose for moment of silence, not promoting prayer, it would have passed. ii) Non-denominational prayer before graduation violated this b/c promotion of religion in general (doesn‘t have to be promotion of one religion over the other). Violates the first part of the Lemon Test. (b) Easy cases b/c there is no secular purpose for those. (2) Edwards v. Aguillard: LA‘s Creationism Act required that if a school chose to teach evolution, it also had to teach creationism, but neither was required; SC struck b/c failed first prong of Lemon, even though stated purpose was secular (to protect academic freedom), Court said that it was actually to further religious beliefs (if statute had been to promote science, etc, may have passed) (3) Zorrack v. Claussen: School allowed ―release time‖ where students could have religious instruction off school property; SC that‘s ok (b/c not using public school property). EVEN THOUGH NO SECULAR PURPOSE = MG doesn’t like this and thinks it should have been struck under prong 1. (4) State of Neb v. Chaplain: The state was paying the Chaplain to say a prayer before the meeting congregation. The history of institutional recognition of religion gives us historical precedent that led Ct to uphold law. (5) Pledge of Allegiance: Student‘s father‘s case was dismissed b/c of a lack of standing of father trying to challenge the constitutionality of the pledge of allegiance. (6) This prong is not applied in state religious display cases (MG) (a) Lynch v. Donelly: SC said displays are allowed if there is a balance of secular and religious aspects of Christmas (b) Count of Allegheny v. ACLU: i) Rule: the prohibition against gov‘t endorsement of religion precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred a) Test: ―What viewers may fairly understand to be the purpose of the display‖ b) Held: Simultaneous endorsement of Judaism and Christianity (which would be prohibited), but communicates a secular celebration (which is allowed). There must be balance at each individual site. (7) Lemon Exception: Historical Acceptance, NE could pay chaplain to have prayer in legislature b/c historically there was one. b. SECOND: Its Primary Effect MUST be one that Neither Advances nor Inhibits Religion (i.e., must be secular primary effect). (1) Receiving federal funds to promote abstinence - the principal purpose was to address the problems of illegitimate birth and the principal effect was to address the problem of illegitimate birth. (2) Aid to parents/ parochial school is for a secular purpose (education), but is the primary effect too much religion? (a) Free books, transportation ok (b) Free globe is not ok (all luxuries are bad) (c) Can reimburse private schools for giving standardized multiple choice tests (but not essays) (d) Can reimburse for eyes/ears tests, but not psychological counseling (3) Aid to colleges: (a) Distinction between aid on campus v. Off Campus doesn‘t make sense. So, the test is whether the primary purpose is educational advancement. If so, allowed. (b) If the principal purpose is education it will be OK. If the aid advances religion to too great of a degree in relation to education purposes. (c) Higher education CAN be funded if the institution is open to everyone, IF it is not too pervasively religious. i) The court is far more tolerant to aid to colleges than elementary school and high school. The

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Ct believes that college students have settled moral and religious values. (d) Bus Transportation – Aid given to religious schools for bus transportation. However, free bus transportation for field trips violated the establishment clause. (But there may be a problem with religion on field trips because the field trips could be used to further religion). (e) Books – Free books did not violate the establishment clause. Globes did. i) Buses and books primarily advance the educational aspect and there is little problem that the aid will be used for religious purposes. (f) Roemer v. Board: MD statute allowed some money to go to private colleges, if used for nonsectarian purposes; upheld- passed Lemon... Key is neutrality: if available to all schools, it‘s ok that some goes to private schools. (4) Aid to Lower Schools (a) Colleges v. Elementary Schools and High Schools: Court is more tolerant of aid to colleges. (b) Nature of Aid Factors: i) Parents v. Child: Aid directly to parents is less likely to violate the establishment clause than aid directly to child. ii) Public and Private: Ct prefers money given to both public and private schools than to money given only to one or the other. iii) Likely to be Misused: Remedial aid and health based aid allowed but the state did not allow psychological uses of money for private schools (because the psychological counselor would promote God). a) Exams: It doesn‘t violate the Est Clause for the cost of giving and grading state mandated evaluation tests that are in the form of multiple choice tests. But they cannot be reimbursed for grading essay tests. (c) Zellman v. Simmons Harris: Tuition vouchers granted for up to $2250 for educational subsidy. Aid to religious schools in this form doesn‘t violate the establishment clause: (1) money went to parents who made decision, and (2) most of the money went to public schools anyway. (d) Important whether aid is directed to the parent, child, or school: Court prefers money given to parents. (e) Is the assistance on or off campus? Off campus release program were upheld. (5) Tax Exemption cases: (a) Tax Deduction OK: State can give income tax deductions for amounts spent on tuition, textbooks, AND transport for both private and public schools. (b) Tax Exemption Unconst: Unconst to exempt religious publications from sales tax applicable to all periodicals b/c = subsidy, which = state sponsorship of beliefs. c. THREE: The Statute MUST NOT foster ―an Excessive Gov‘t Entanglement with Religion.‖ (1) If to keep statute from failing parts 1 and 2, too much oversight by gov‘t is required, it will fail under part 3. (2) NOT AN IMPORTANT PART OF THE TEST. (3) Ex Ent Case: no bars within 200 ft, unless church permits. Church plays role in determining zoning. SC: That IS Excessive Entanglement. (4) Deductions to Churches? Yes. This is not excessive entanglement. (5) Most cases involve aid that is commonly misused, thus need govt oversight: Court has recently expressed greater tolerance for the risk of misuse for sectarian purposes. (e.g., if give computers to school for non secular purposes, will risk that they will be used in sectarian (religious) way). (6) Aguilar: Public school teachers sent to teach part of private school curriculum. They were checked by supervisors to make sure that nothing improper was said (like the word ―God‖). SC said this constant supervision violated the entanglement prong. 2. WATCH OUT: Free Speech will trump Establishment Clause (really Public Forum Cases) a. Approach to Widmer type issues: 1) Not Estab clause issue initially = Free speech 2) Neutral rules don‘t violate the Estab Clause, therefore no CSI. b. Widmer v. Vincent: all student groups except religious groups could use university buildings for private meetings; SC said that classrooms were designated public forums. Therefore, normal rules apply. CB =

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CSI, CN = Balancing. CB reg = struck down law under Free Speech CSI test. Neutral use of pub facility does not violate the Estab clause (no laws respecting the establishment of religion), therefore does not put forth a CSI. [would be violation of Estab clause if allowed only religious groups] (1) The State claimed that the compelling state interest is that it would not violate the establishment clause. Neural aid – allowing all religious groups to use the public forums – would not violate the establishment clause. Free speech case. c. Capital Square: Permits to use square (public forum) were issued without regard to message. KKK denied use of square b/c city afraid it would look like promoting religion (violate sep of church and state); SC said they couldn‘t pass the law  free speech issue so failed under CSI. d. U of VA: any publications could get fund money except religious publications. SC said fund was designated pub forum. CB regs of fund get CSI. Since neutral laws don‘t violate estab clause, doesn‘t pass CSI test. B. FREE EXERCISE OF RELIGION: Neither Congress nor State can prohibit the Free Exercise of Religion. 1. Law Intending to Regulate/ Specifically Burdens Religious Belief = CSI (consider rx adequate alternatives). a. If there exists a CSI, but also Rx Adequate Alternatives: Law FAILS b/c Free Exercise Clause requires exception for religious groups. (Wisconsin Case). b. Even though SC said CSI Test, in application of CSI looks more like Balancing Test. (i.e., Interest of military outweighed the harm to the free exercise of religion). CASES: c. Sherbert v. Verner: state unemployment law said to be eligible for unemployment those who work for Co. must be available for work Mon-Sat. 7th day Adventist couldn‘t; SC said failed CSI b/c rx alternative is to make exception for religious groups. d. Wisconsin v. Oder: Amish wouldn‘t send kids to high school but PA law said must go to school until 16. Amish argued that would be contrary to their free exercise of religion. SC said state interest is a CSI, but Free Exercise Clause requires exception for religious groups. This was the approach of the Court up to Smith. e. Church of the Lukumi v. Hialeah: Santeria church wanted to build in city. City enacted ordinance to prohibit animal sacrifices; SC said can‘t do that b/c violates Freedom of Religion since ordinances were directed only at that church and didn‘t survive CSI. 2. Laws of Generally Applicability that burdens religion = does NOT get CSI test a. Not decided which test is to be used, possibly: (1) RB, or (2) Balancing / Intermediate (MG thinks it is this = not much change) b. Smith Case = KEY Modern Case: S was fired from job b/c he ingested peyote, a controlled substance, for religious purposes and then was denied unemployment compensation. The State did not have an exception for peyote use for Native American religion. SC upheld the firing. Laws of general applicability that incidentally affect religious beliefs do not receive a CSI test.  Don‘t use CSI test on laws that are Neutral BUT burden religious exercise

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