Con Law Outline - Sinner

Con Law – Individual Rights Outline DUE PROCESS RATIONAL BASIS I. Due Process Clauses a. 5th A. i. Congress cannot deprive people of life, liberty, or property, without due process of law. th b. 14 A. i. Nor shall any State deprive any person of life, liberty, or property, without due process of law. (AKA – Doctrine of Incorporation) II. Rational Basis Test [Fallback Test] a. Laws restricting substantive interest must rationally relate to some legitimate government interest b. Test i. First Step (END) 1. There needs to be some legitimate government interest a. Easily satisfied—speculate if necessary. ii. Second Step (RELATIONSHIP) 1. The law has to rationally advance that interest c. Test Application i. Apply anytime the gov limits your ability to do things w/o DP. ii. The law rationally relates unless there is no conceivable justification for it. Even if it does not actually advance as long as the legislature could think it advances then it is legit. iii. Presumption in favor of the law. BOP on person challenging. d. Examples i. Carolene Products: Congress may prohibit interstate shipment of food substitute product that it deems injurious to the public health as long as it has a RB to do so. Here, the court said it did. ii. Williamson v. Lee Optical: State law prohibited the fitting/selling of eye lenses w/o prescription from optometrists. Ct applied RBT: Legitimate gov ends—regulate eye health and protect local optometrists; Law advanced gov interest—regular dr visits ensures eye health. Law passed! PUNITIVE DAMAGES I. Punitive Damages Factors used by court to limit PD through DP There must be some proportionality between compensatory and punitive 1. Could be limited to single digit 2. Limited to 4 and under 3. Could be indirectly proportional to compensatory damages. Egregiousness of the act that lead to the punitive damages 4. More egregiousness the higher the PD Compare PD with the civil penalties for the action Sinner Page 1 8/12/2008 CONTRACT CLAUSE I. Article I Section 10 a. No state may impair obligations of preexisting contract rights unless a legitimate public interest outweighs the current K interest. b. Application i. This only applies to states and not the Federal Government. If the Federal Government infringes it is just a normal RB DP issue. ii. Law must apply retroactively, not prospectively. II. Public Purpose Balancing Test a. 3 Parts i. There must be a substantial impairment [more than de minimis, but not necessarily a total destruction of contractual rights] to the pre-existing K rights. 1. To determine a. Rx investment based expectations i. Higher the expectations, the higher the clause is invoked b. Degree to which the government regulates the activity i. Harder to show substantial impairment where the industry is heavily regulated. 2. More substantial impairment invokes more of the contract clause ii. Significant and legitimate public purposes that overrides the contractual rights 1. Actual interest and not just conceivable 2. Temporary Impairments might make it less bad 3. Stronger interest required where gov impairs its own K. iii. Change in contract rights must be based on rx conditions, and must advance the public purpose 1. Rx balance between the government interest and contract holders—are K rights fairly treated? 2. Presumption in favor of legislation—v. difficult to establish violation of K clause. b. Example i. Blaisdell: State passed a law that said if you failed to pay your mortgage, you could keep you property and have a longer time to cure the defect than the K required, but you must pay interest or fair rental value. Ct applied PPB and said that this was a proper balancing of competing interests. NO TAKINGS CLAUSE I. 5th Amendment a. Government cannot take private property for public use unless they give just compensation. [14th A. applies to states]. There has to be a diminish in value. b. Property i. Broadly defined. Includes real property, trade secrets, etc. c. Just Compensation i. Rx compensation is the fair market value just prior to the taking ii. Even if the state does not buy, they have to compensate for the period of time starting with the denial of use to the time the court ruled it was a taking. d. Public Use/Purpose i. If it rationally relates to the state‘s legitimate interest/public purpose then it is a public purpose. ii. Gov can take private property and give it to another private entity. Sinner Page 2 8/12/2008 II. Types of Takings [If no taking, then RB] a. 1st Per Se Takings Category – Economically Viable Use. i. Where the regulation allows no economically viable use of the property. ii. Example 1. Lucas: Coastal council prevented L from building homes on his beachfront property. Ct found this to be a taking even though he could still sun bath and kick people off. iii. Nuisance Exception 1. Can be a taking w/o compensation if necessary to abate a nuisance (i.e. an unlawful use of property that interferes w/ the lawful use of another‘s property) nd b. 2 Per Se Takings Category – Physical Invasion i. Where the government occupies or physically invades the property for a period of time or allows another to occupy the property. ii. Types of Physical Invasions 1. Noise 2. Smell 3. Dust iii. Example 1. Sick Chickens: Noise from planes that flew over chicken farm made the chickens produce less quality eggs. The noise affected the value of the eggs laid by chickens. This was a taking b/c the noise invaded P‘s personal property. 2. Cable Lines: City of NY required condo owners to allow cable companies to run wire up their complexes to a box on the roof. The ct held that this was a compensable taking b/c it was a physical taking. The city had to pay for the value of that piece of roof of the apt complex that it is taking. c. Penn Central Balancing i. This is used when there is no per se taking ii. Test (3 Factors) 1. Extent of the Taking a. Effect on value and its use—How much was taken? 2. Nature/Type of Taking a. Zoning is not likely to be a taking (e.g. regulation of societal ills). b. HOWEVER, retro-active zoning is a stronger factor. 3. Harm to Rx Investment Based Expectations a. Look to the reason why the investment was made. iii. Result 1. TakingJust Compensation 2. RegulationRBT iv. Penn Central Example 1. Facts a. Builders wanted to build a hotel above their train station but landmark laws forbade it. 2. Analysis a. Extent: The builders were allowed to build elsewhere and thus the extent of the taking was not that bad. b. Nature: The type of the taking was like a zoning law (so least likely to be a taking) c. Expectations: They still had the railroad station and therefore their Rx based expectations were not affected. 3. Holding a. No taking, so apply RBT. Sinner Page 3 8/12/2008 III. Nolan/Dolan Taking a. Exaction Doctrine i. Conditions imposed by gov for a change of use for an existing property ii. If there is a change of use then the government can exact conditions for the change of use. b. Test i. Nolan – Essential Nexus 1. There had to be an essential nexus between what was taken and the reason for the taking 2. Example a. If the purpose is to create a bike path, then property taken must be able to be used as a bike path. (easily satisfied) b. Nolan: N wanted to remodel beachfront home. Upgrades required approval. In return for approval, gov wanted a lateral public easement (running parallel to the beach) to join all the public beaches. But, gov said they wanted it to provide beach access to the public (which require a perpendicular easement). Ct said that there was no essential nexus b/w the lateral easement and providing beach access. Thus, a compensable taking. Had the gov stated that it wanted it for the purpose of connecting all the beaches, then it would have passed the essential nexus test, and would NOT have been a compensable taking. ii. Dolan – Rough Proportionality 1. There has to be a rough proportionality between the conditions that the government places on the property [exactions] and the potential harm caused by the change in use. a. Does this exaction offset the harm?? 2. Example a. Dolan: Hardware store wants to expand. The city imposes two exactions: (1) give up piece of property to the city b/c it is a flood plain area, and (2) use piece of land for pedestrian bike way. Ct held that the taking of the property for flood control and for a bike path both pass the essential nexus test. However, the ct held that both failed the Rough Proportionality test because: (1) taking of the land for water run off and giving it to the city was unnecessary to prevent add‘l development b/c the city could build on it. All they had to do was restrict her from building on the land. (2) Bike path will not really relieve the problem of traffic b/c people will probably be driving cars, not riding bikes. iii. Test Application 1. If exaction fails the N/▲ Test, then the exaction raises to the level of a taking and will require compensation. 2. If exaction passes, do we need to engage in RB Test???? Sinner Page 4 8/12/2008 FUNDAMENTAL RIGHTS I. Strict Scrutiny a. Certain rights get a higher level of review than the RB test. i. Types 1. Right to Privacy (usually DP Issue) a. Right to Confidentiality/Keep Things Private b. Right to Family Matters and Child Rearing Decisions c. Right to Marry d. Right to Make Contraception Decisions i. Minors get RB e. Right to Make Procreation Decisions (Abortion) i. Minors get RB f. Right to Refuse Medical Care 2. Right to Vote (usually EP Issue) 3. Right to Interstate Travel (usually EP Issue) b. CSI Test i. Laws that limit individual rights must be narrowly tailored to advance compelling state interest ii. Test 1. First Step (END) a. There needs to be some compelling government interest 2. Second Step (RELATIONSHIP) a. The law must be narrowly tailored (e.g. necessary) to accomplish that interest i. ―Narrowly Tailored‖ = The ct will look to see if there are rx adequate or less drastic alternative ways [RADs] to accomplish the interest without hurting the right. iii. BOP heavy in gov. II. Right to Privacy a. Right to Confidentiality/Keep Things Private i. Make your argument and be sure to conclude!!! Ct said that keeping things private might be covered by right to privacy, but they punted on the issue. ii. Whalen v. Roe: NY law required all medical prescriptions be sent to a centralized database, which the gov has access to. П claimed that this invaded their fundamental right to keep their medical condition quite. Ct said that the right to privacy might include right to keep info confidential. b. Right to Family Matters and Child Rearing Decisions i. Generally 1. Laws limiting personal choice in matters of family life, including some aspects of child rearing get CSI. 2. Morre: City law allowed persons to live together only if they were ―related.‖ In defining ―related‖ the law required persons to be w/in the same direct family line. Here, a grandmother lived w/ her son and grandson. This was a violation of the law b/c son and grandson were not in direct family line. Ct applied CSI test the fundamental right to privacy includes certain choices w/ regards to family matters. The law here cut into the actual definition of family. The ct said this served no useful or proper gov purpose. 3. Compare Belle Terre: Law said unrelated persons can‘t live together. This was more of a zoning decision to uphold family values. T/f RBT was applied. Sinner Page 5 8/12/2008 ii. Protecting Family Unit Trumps 1. However, the tradition of protecting the legal family unit trumps the right to childrearing decisions. Thus a law that limits a person‘s right to challenge the paternity of another family‘s children gets a RB because the childrearing is trumped. Michael H. iii. Mother Trumps Grandmother 1. Giving a grandparent custodial rights over a child is not unconstitutional. 2. HOWEVER, giving them absolute control over a mother‘s wishes violates the mother‘s right to child rearing decisions. CSI. Troxel. iv. Child Labor Laws = RBT v. On Exam 1. Discuss how the fundamental right to privacy in regard to child rearing decisions is NOT automatic. c. Right to Marry i. Generally 1. Some laws limiting personal choice in matters of marriage get CSI; BUT many regulations of marriage get a RB level of review ii. Pre-Test Approach 1. Unreasonable restrictions that significantly limit the right to marry get CSI. a. Zablocki: Statute provided that a resident is not allowed to get married if is in default of child support payments. Here, ▲ had an illegitimate child and never paid child support. The child was on welfare, and now ▲ wants to get married. The law said no. Ct applied CSI test and found that it was unconstitutional b/c it failed the relationship prong of the test b/c it tried to enforce a child support interest by limiting the right to marry. The legitimate gov interest was to encourage fathers to pay for their kids, but there are other ways of accomplishing this w/o restricting his right to marry. This also would have failed the relationship prong of the RB test. 2. Rx restrictions that do not significantly limit the right to marry get RBT. a. Marriage license laws b. Laws forbidding marriage to cousins c. Law requires consent to marry if under a certain age 3. No real word on laws requiring person of each sex (homosexuals) —perhaps a violation of the fundamental right to privacy. a. Look for old exam question on this. d. Right to Make Contraception Decisions i. Right to privacy protects the right of all adults (married or single) to use contraception and make procreation choices (see abortion below). Thus all laws trying to regulate will get CSI. ii. Minors, however, get a RB test when it comes to contraceptives and abortion Sinner Page 6 8/12/2008 e. Right to Make Procreation Decisions (Abortion) i. Modern Test 1. Pre-Viability = Undue Burden Test: Before the point of viability the state cannot place any undue burdens on the person receiving an abortion. a. An undue burden exists if the purpose of the law is to place a substantial obstacle in the path of the woman seeking an abortion pre-viability. i. The woman‘s right to chose is dominate. b. Undue Burdens– What is undue burden????? c. Note: Adding to the trouble and expense of an abortion does not necessarily constitute an undue burden. 2. Post-Viability = CSI: After the point of viability, the state has a CSI in protecting life of the fetus and would pass the test. a. Medical Emergency Exception i. There must always be a medical emergency exception to protect the mother‘s life. 3. Viability [Roughly 6 months] a. The point at which the fetus is physically capable of surviving outside of the mother. ii. Record Keeping Requirements 1. For the most part it is Constitutional for States to keep records of abortions, medical procedures, and some fetus records if they rxly relate to the maternal health of the female. 2. EXCEPT when they are made public and the public can figure out who was getting the abortion (i.e. breach of female‘s confidentiality) OR report requiring explanation why female did not give notice/consent to father. iii. Medical Requirements 1. Generally a. Most medical procedure restrictions are struck down. 2. Exceptions a. Laws to protect life if a viable fetus b. Laws requiring a second doctor‘s diagnosis when the fetus is almost viable. c. Law requiring additional testing to confirm that the fetus is not viable iv. Minors 1. Minors get a RB test when it comes to contraceptives and abortion 2. –see notes. I have something that says that maj of ct has struck down laws that restrict minors access to bc, but have done it as plurality opinion—some use MSRB and others use??? to strike the law down. Sinner Page 7 8/12/2008 v. Consent Requirements 1. Spousal/Father Consent or Notice = Undue Burden 2. Parental a. Generally i. States can impose parental consent and notice requirements before minors can get an abortion. b. BUT must include Judicial Bypass Option i. 2 Requirements [Judge must be able to determine both for the parental consent/notice laws to be valid] 1. Maturity Exception: Must give the judge the option of deciding that the minor is sufficiently mature to make her own choice; AND 2. Best Interest Exception: ii. Usually requires medical emergency provisions vi. Waiver/Notice 1. Waivers that inform of risks of danger and that try to persuade are not undue burden (e.g. Informed Consent, 24-Hr Waiting Period) vii. Partial Birth 1. A law banning partial birth abortion procedures might be valid if it specifically addressed the procedure and provided for a medical emergency exception to protect life of female. viii. Funding 1. Generally a. Funding decisions with regard to abortion get a RB test. b. Funding full term pregnancy to further the government‘s interest in preserving the fetus is a valid interest and relation. 2. Application a. Laws preventing federally funded hospitals that are prevented from giving abortion information and state hospitals that receive even partial funds from performing abortions are valid. f. Right to Refuse Medical Care i. Generally 1. Laws limiting personal choice in matters of medical care get CSI. ii. Example 1. State law that if there is clear and convincing evidence that a person does not want to live in irreversible vegetative state then they will not have to stay on life support. Parents wanted to take daughter off life support, but there was no evidence, so she stayed on. Parents challenged the law, and the ct applied the CSI test. g. NOT Recognized as Fundamental Rights i. Right to engage in homosexual sodomy = RBT 1. Case concerning whether consenting adults have a fundamental right to engage in whatever sexual acts they want to was struck it down on RBT. Ct did not decided whether fundamental right. ii. Right to die/physician assisted suicide = RBT 1. If see a law that makes it a crime for doctors to assist n the suicide of others, apply RBT. Sinner Page 8 8/12/2008 EQUAL PROTECTION GENERALLY I. Equal Protection Clause a. Not concerned about whether the overall law is rational [due process], but whether you have been classified unfairly. II. Approach a. First Step i. Apply Traditional RBT when it IS NOT a fundamental right or suspect class. 1. Ordinary Social & Economic Legislation = RB Test ii. Apply CSI Test when it IS a fundamental right or suspect class. 1. Gender-Based Classification = Mid Level of Review 2. Race-Based Classification = CSI Test 3. Fundamental Right = CSI Test b. Second Step i. If facts parallel those in the More Searching RBT section, then apply MSRB too. RATIONAL BASIS I. Rational Basis Test a. Laws restricting substantive interest must rationally relate to some legitimate government interest b. Test i. First Step (END) 1. Legitimate government interest/end? ii. Second Step (RELATIONSHIP) 1. Does the classification rationally advance that legitimate governmental interest/end? a. Only requires a basic general notion that the classification rationally advances the interest. Court can still create stupid random shit to justify laws. b. Compare DP – Does the limitation on substantive interests rationally advance that legitimate gov interest? iii. Classification does not have to be rational to a specific person in the class, but rational to the overall class iv. No requirement of a RAD. v. Being treated satisfactorily for EP does not necessarily mean being treated equal. II. Classifications that get RB a. All classifications that do not receive a higher level of scrutiny b. Examples i. Age (disadvantaging the elderly) ii. Cable regulation [FCC v. Beach Communications] iii. Funding of Medicaid in Institutions [Swagger v. Wilson] iv. Homosexuals v. Mental IQ/Retardation vi. Pension plans [RR Retirement Bd v. Fritz] vii. Pregnancy (viewed as a medical condition, not a gender classification) viii. Types of collective bargaining of professors [Central State] ix. Wealth x. Closed Classifications [New Orleans v. Dukes] 1. Creating a classification that no one can enter if they were not grandfathered in. 2. Ex: Law only allowing vendors if been in FQ for 8 years was valid. Sinner Page 9 8/12/2008 MORE MEANINGFUL/SEARCHING RATIONAL BASIS TEST III. More Searching Rational Basis Test (MSRB) a. Generally i. Same as traditional RB test b. Except i. Focus more on the actual purpose for which the law was passed. Look for a stronger connection between interest and advancement (i.e. a more meaningful purpose). Ct is more likely to focus on the actual purposes for why the law was passed, rather than conceivable reasons. c. 2 Key Fact Patterns to Discuss MSRB i. Law has singled out a disfavored or unpopular group with the purpose to single out for disparate treatment. ii. Higher level of review would produce a different result d. Use it as an alternative discussion in addition to RB test when see parallel fact patterns. IV. Classifications that get MSRB a. Hippies (Reno: hippies didn‘t get food stamps) b. Mentally Retarded People (City of Cleburne: singled out mentally retarded as treated differently from mentally ill). i. Scenario 1. Laws requiring special zoning approval for ‗tards. ii. Outcome 1. Purpose is to prejudice and struck down. c. Homosexuals (Romer v. Evans; Lawrence v. Tx: singled out gays) i. Scenario 1. Gay political groups are classified different from regular political groups 2. OR laws making sodomy a crime ii. Outcome 1. Principal purpose is to hurt the group and struck down. d. Undocumented Children [Plyler v. Doe: kids of illegal aliens] i. Scenario 1. Law denied children of illegal aliens the right to a free public school education. ii. Outcome 1. Purpose to hurt and struck down e. Out of State Companies i. Scenario 1. Out of state insurance companies taxed at a higher rate than in state companies. ii. Outcome 1. No bueno. Sinner Page 10 8/12/2008 FUNDAMENTAL RIGHTS Fundamental Rights CSI test for EP issues relating to fundamental rights. [Just like in DP] I. Right to Vote a. Voter Qualification/Right to Cast Ballot i. Poll Taxes 1. You cannot have a poll tax (i.e. fee for voting) b/c it infringes on the fundamental right to vote. ii. Durational Residency 1. You can have length of time necessary to ensure legitimacy. a. 1 year might be too long i. Ct said this violated both FR to Vote and Travel b. 50 days was upheld because it was the time necessary to determine an accurate voting list. iii. Prisoners 1. Can be disqualified b. Reapportionment i. House of Representatives 1. Each district must be as nearly equal as is practicable 2. Difference of less than ½% was struck down. ii. State Legislative Districts 1. Each district must divided based on geography and need to be substantially equal a. One court upheld a 16.4% difference for in STATE districts i. Allows for some flexibility iii. Super Majorities 1. Definition a. Requiring 2/3 vote of a state 2. Constitutional c. Racial Gerrymandering i. Racial Based 1. Unconstitutional if primary purpose is to draw based upon race. 2. Some use of race is allowed, but not a predominant reliance. d. Shape/Size i. Standard 1. Courts do not care about the shape of districts anymore. They just let the political process do its things 2. Could change. e. Access to the Ballot/Name on the Ballot i. Test 1. On paper it is CSI, but really it is a Rx Basis test for restricting people‘s right to the ballot 2. The laws just have to rx relate to the managing of the electoral process. Sinner Page 11 8/12/2008 f. Rules for counting under and over vote i. Definition 1. Undervote – votes that computer could not read, but by hand count a person could get the voter‘s intent. 2. Overvote – when two different people are marked as president ii. Bush v. Gore: (only case in history in support of the Fund Right to vote) 1. Ct concluded that Fl‘s method of determining voter intent violated EP. 2. In the recount of FL you had to appeal the voting of each county and the ct said each county had to determine voter intent according to their own methods (no standard state determination). Each county had different standards. The end result  some counties were 3 times more likely to capture the undervote. This was found to violate the FR to vote. 3. The determination of under-vote is crucial, but to give them 3 times more weight than other votes violates EP. 4. Court also determined that failure to equally weigh the overvote violates the EP. 5. Multiple votes for same person (punched in for X and written in for X also), that cancels out that ballot. However, if same person is voted, voter intent would be clear, so failure to count that was also EP violation II. Right to Travel [Narrow Right] a. Necessities i. Rule 1. Durational residency that penalizes travel by impacting the necessities of life or other fundamental rights get CSI test. a. Any classification that serves to penalize the exercise of the right to ravel, unless shown to be necessary to promote a CSI, is unconstitutional. ii. Requirements 1. Durational Residency; AND 2. Necessity of Life iii. Without BOTH it is RBT iv. Examples (If elements below exist, then a penalty on FR to travel, and CSI applies) 1. Residency based welfare 2. Residency to receive non-emergency health 3. 1 year residency requirement before person could vote a. Also violated FR to Vote. b. Non-Necessities i. Test 1. RB ii. Examples 1. Divorce 2. University Education 3. Restrictive Zoning w/o Durational Requirement c. Bona Fide Residency Exception i. Definition 1. Residency requirement that does not involve any durational requirement ii. Rule 1. Bona fide residency requirements do not raise any issues and t/f get RBT (typically) iii. Example 1. Need to be a resident to get education Sinner Page 12 8/12/2008 d. Expansive Views i. Some members of the ct will take a more expansive view of the fundamental right to travel and hold that certain aspects of residency (aside from those listed above) get CSI. When these Judges‘ opinion are applied to those Judges that apply MSRB Test (and hold that the law is not rational), then you have a majority holding the law unconstitutional. 1. Way to strike down if no durational residency requirement. ii. Length of Residency 1. CSI was extended to laws which gave a rebate based on length of residency. Majority of ct said this was unconstitutional (some used MSRB; some used CSI) iii. Residency as Fixed Point in Time 1. CSI was extended to laws that gave Veteran‘s benefits based on their residency at the time they entered military service. iv. Residency based on when car is registered 1. MSRB Test was extended to laws that gave sales tax credit to only Vermont residents. a. Confusing opinion, but law was struck down. The Court found no relevant difference between the two classes that would justify the disparate treatment. 2. Split a. One case ruled Out of State classifications were considered Unpopular class and got MSRB Test. Another case said they were not thus RB test. e. Privileges & Immunities i. PI Protects 1. Right to Travel Interstate 2. Sail Seas 3. Petition DC for Grievances 4. Protection While in Federal Marshall Custody ii. Scenario 1. California tried to cut welfare payouts by saying that you received the rate of your old state until you lived in Cal for 1 year. iii. Analysis – For all right to Travel? 1. Do EP – CSI 2. AND PI f. Approach of FR to Travel i. Emphasize the EP material, and then mention Saenz [Privileges and Immunities]. Pretty much just mention that there is an argument that it violates the PI clause of the 14th A as it also protects the right to travel interstate (there is no real test). ii. With the expansive view fact patterns just say that some judges would apply a MSRB test and some would apply a CSI test. III. Right to Education a. Total Deprivation i. Of Americans 1. Possibly a fundamental right, apply RB and then mention the possibility of CSI. ii. Illegal Aliens – RB, maybe MSRB Test b. Providing Minimal education i. Not a fundamental right, so RB c. Bona Fide Residency i. With regard to education gets a RB test d. Funding i. Funding and education gets a RB test Sinner Page 13 8/12/2008 SUSPECT CLASSES I. Race Based Classifications a. Generally i. Inherently suspect and subject to a CSI test. 1. In order to justify a race-based classification, there must be a compelling state end independent of discrimination (END), AND the classification based on race must be narrowly tailored to accomplish that end (RELATIONSHIP). a. Ct will look to see if there are less drastic ways of advancing the legitimate gov interest. If there are less drastic alternatives, then the classification will NOT satisfy the relationship part of the test. b. Separate But Equal is inherently Unequal! c. Preemptory Challenges i. Cannot be based on race. d. Prison i. Discrimination by race in jail gets CSI 1. This will pass the CSI if there is no rx adequate alternative ii. All other rights get RB. e. Segregation i. De Jure Segregation – Per Se Invalid 1. Definition a. Segregation as a result of intentional governmental acts 2. Must Show a. Intentional Act by school board/gov body that created segregation; AND b. Currently segregation/continuing harm 3. Jurisdiction a. Federal Courts only have the Authority to remedy this type of segregation b. States have an affirmative duty to integrate, even in race neutral situations. c. Examples i. Law ii. Funding iii. Attendance Zones iv. Location of schools v. Teacher Assignments vi. School Construction 4. Remedies a. Any type of remedy that is rx, feasible, and workable are Constitutional, even if it does leave some race based schools i. Remedy limited to the constitutional violation. b. Examples i. Remedial Altering of Attendance Zones ii. Gerrymandering iii. Busing iv. Building New Schools v. Racial Quotas/Balances 1. Can be used as a starting point, but must be flexible and must fame the numbers more as a goal. vi. Single Race Schools 1. Might be constitutional—not necessarily evidence of failure and does not by itself establish an EP violation. vii. NOT creating an elite school district viii. NOT operating neutrally for several years. Sinner Page 14 8/12/2008 c. Limitations i. Violation Limitation 1. Courts can only remedy districts that are in violation, and cannot affect areas that are not. 2. Example a. Combining a bad school district with a good one. ii. Taxing For Remedy – Is this right? 1. Can only asses taxes to fund remedy when no other remedies will work [Factually Specific] 2. Can only violate the state law if the state refuses to try to fulfill the order. 5. End of Authority a. Authority ends when districts have made a i. Good faith effort ii. To eliminate the last vestiges of de jure segregation iii. Substantial success b. Gradual Withdrawal Exception i. Courts authority can withdrawal from the districts/schools that have complied and still keep authority over those that have not complied yet. ii. De Facto Segregation –NOT Unconstitutional 1. Definition a. Segregation as a result of private choices based on societal, historical, or economical conditions. 2. RBT 3. Jurisdiction a. Courts can not remedy this type of segregation. b. States can pass laws to regulate this. II. Gender Based Classifications and the Intermediate Test a. Intermediate Test (Mid Level Test) i. 2 Phrasings 1. Classifications based upon gender must substantially relate to important governmental interests; OR 2. There must be exceedingly persuasive justification for gender based classification a. Applies to i. Nurses ii. Military College for only men unconst. ii. Approach 1. State both tests 2. Apply ―substantially relate‖ test a. First Step i. There must be an important/significant/substantial governmental interest 1. More than rational/legitimate/permissible, but less than compelling Sinner Page 15 8/12/2008 b. Second Step i. Classification based upon gender must be narrowly tailored to substantially relate to legitimate government interest 1. Court will consider RADs c. Balancing test between state interest and need to use gender based classifications iii. Gender Laws 1. Protective = Closer to RB (different level of mid test) a. Ex: Payment of $$ for time off during pregnancy. 2. Harmful = Closer to CSI (different level of mid test) a. Ex: Whether or not seniority credit is given while woman absent for maternity leave. iv. Pregnancy 1. Generally = RBT b/c viewed as medical condition 2. Benefits = RBT 3. Burdens Pregnant Women = Intermediate Test v. Statutory Rape 1. Test a. Intermediate Test 2. Analysis a. Rape law made men alone criminally liable for sex w/ minor woman did not violate EP. Ct found that it was a good interest and substantially related thus passed the intermediate test and was good law. vi. Selective Service—Draft Laws 1. Intermediate Test 2. Same result as Statutory Rape laws. b. Preemptory Challenges i. Cannot not base preemptory challenge on gender c. Approach i. State both tests and then apply the intermediate test. 1. Narrowly tailored and no RADs ii. If close state EPJ again and claim that it does not work, or it could be the tiebreaker. No one really knows if it is higher or not. III. Alienage [Legal Aliens & Citizens] [Not Race Based] a. Generally i. CSI for state classifications that regulate alienage, AND 1. All State jobs—except those that fall w/in political function exception? 2. Benefits [Welfare] 3. Private Sector [Attorneys, Civil Engineers] b. Political Function Exception = RBT i. Exception 1. Jobs that go to the heart of the democratic institution or a representative government get a RBT 2. 3 Requirements for state classification to get RBT a. State job; AND b. Important high level government position/function; AND c. Job allows a high level of discretion Sinner Page 16 8/12/2008 3. Example a. Law said Alien cannot be registered Notary. First apply PFE: State Job? NO. Important high level gov position? NO. High level of discretion? NO. Fails PFE, so apply CSI. Fails CSI. ii. Purpose 1. Getting qualified, loyal people is a valid purpose (may not be true, but these purposes are conceivable) iii. Relationship 1. Citizens are better suited iv. Examples 1. Police 2. Probation Officers 3. Firemen 4. Teachers 5. BUT NOT Janitors c. Congressional Exception i. Laws passed by Congress get RB because Congress has the enumerated power to due so ii. Thus if Congress passed law which treated aliens different than citizens, then we would apply RBT. d. Illegal Aliens i. Classification based on illegal alienage are NOT suspect and t/f get RBT. 1. Education is not a fundamental right so gets MSRB when applied here. IV. Legitimacy a. Definition i. Based on the status of one‘s birth—determining who in fact their father is. b. Test i. Intermediate Test that is less strict than Gender Intermediate 1. Substantially related to a permissible governmental end. 2. No RAD requirement c. Inheritance i. Generally 1. Laws requiring illegitimate kids to prove legitimacy or dependency are usually upheld b/c large concern for fraud. ii. Laws struck down 1. Law that required actual marriage to prove legitimacy was struck down as too restrictive. 2. Law that set SOL for paternity proof (e.g. w/in 6 years of birth) failed intermediate test. d. Parental Rights to Mothers v. Fathers of Illegitimate Children i. Different treatments for mothers and fathers of illegitimate children is a gender issue and those rules apply. 1. Use Intermediate Test (Craig v. Boren + Exceedingly …) a. Most laws will fail but there are some exceptions: i. Act quickly for adoption ii. Father unknown. ii. Issues of custodial status gets an RB test. Sinner Page 17 8/12/2008 V. Wealth—I’m confused as to when RB applies and when higher level applies a. Generally i. Wealth classifications by itself get a RB test b. Wealth + Procedural DP Issues – What is the test? i. Fees that are required for certain types of hearings get a higher level of scrutiny ii. Examples 1. Fee for filing or responding to a divorce (struck down) 2. Fee for filing bankruptcy (upheld) 3. Fee to appeal welfare denial (e.g. get more $$ for each kid until you reach 5 kids and that is the max $$ you get) (upheld). c. MISC i. Welfare 1. Welfare benefit classifications get RB Test b/c no discriminatory purpose. ii. Right to Counsel 1. Appeal a. There is an EP/FR to counsel on first appeal, but not subsequent ones b. There is a right to a free trial transcript to perfect the appeal. 2. Parental Rights a. Maybe a right to counsel when determining parental rights iii. Rights to Abortion Regarding Indigent Persons 1. Government funding regarding abortions gets RB Test iv. Family Relations 1. RB for laws that determine who gets food stamps based on related or unrelated people living together. NEUTRAL CLASSES I. Definition a. This is a classification that is not suspect or a fundamental right, and would normally get a RB test, but it has a disproportionate impact that is discriminatory toward race or gender II. Test i. Neutral classes get a RBT even though they affect race/gender ii. UNLESS you can show that it was passed with the purpose of going against race or gender then it is Per Se Invalid and don’t need CSI 1. Only Per Se if no legitimate other argument other than racism or sexism. Even in v. suspicious cases, the ct will assume that the law was passed w/ legitimate motives—only exception is the early race-based segregation cases. iii. If secret hate purpose then Per Se Invalid. If it is race based then CSI. If it is gender based then intermediate. b. 8 Possible Factors to Show Bad Purpose (Per Se Violation) i. Disproportionate Racial/Gender Impact (by itself not enough) ii. Historical Background/Specific Sequence of Events (How did the law come about?) 1. Like blacks voting being denied 2. Were the laws before it race based and now this is neutral on its face, but produces a disproportionate result? iii. Departure from Procedural Norms 1. Ex: Usually taking a bunch of notes and open meetings and now they don‘t iv. Departure from Substantive Norms 1. Normally they allow and now they don‘t. v. Absence of Legitimate Explanations/Reasons vi. Stark difference in statistics vii. Direct evidence of legislative motive. Sinner Page 18 8/12/2008 III. Examples—Balance all the above factors!!! a. Police Test – Washington v. Davis i. Test to make sure cops are qualified and it hurt blacks more (more failed). ii. RBT—Upheld: Even though test did not necessarily lead to better police officers, it is rational and conceivable that it might lead to better police officers. b. Laundry Permit i. Needed a permit to run a laundry service. All white got one and Chinese didn‘t. ii. Normally RB, but stark statistics w/o legitimate explanations (90% to 10%) = per se invalid. c. Literacy Test to Vote i. Law was passed at the time black grandfathers could not vote, so law was passed for purpose of race based exclusion. T/f Per Se Invalid. d. Giving Aid i. Giving aid for survival reasons and minorities were the lowest beneficiaries. ii. RBT—Upheld. Couldn‘t marshal enough facts to prove invalid per se. e. Zoning i. Zoning that impact race ok b/c no proof. f. Veterans i. Benefits for veterans and they were mostly men g. Jury Pools i. Mistakes at all, even innocent ones with jury pools equal violation. h. At large voting for city commissioner i. Only case where SC has found disproportionate impact enough to prove invalid. AFFIRMATIVE ACTION IV. Race Based AA a. Generally i. Race based classifications get the CSI test for Federal, State, and Local. 1. ―Narrowly tailored‖ = Necessary to… b. Historical Discrimination i. Making up for broad historical discrimination can never pass the CSI test (although it can pass the intermediate test). ii. HOWEVER making up for discrimination in a particular sector or field can be a legitimate end. 1. the Remedy must bear close relationship to the wrong. c. School Admissions i. Race can be used as only one factor, and not the absolute factor (so moderate use of race based preference is ok). ii. No racial quotas are allowed—must be goals and objectives d. Firing Based on Race i. Not allowed. e. Approach i. Purpose 1. Making up for broad historical race based discrimination is not valid purpose 2. Making up for past raced based discrimination is the BEST purpose. 3. Specific discrimination or a narrow pattern of discrimination is valid 4. Achieving diversity in an educational environment is a valid purpose, but we don‘t know if valid in employment yet. Sinner Page 19 8/12/2008 ii. Relationship 1. Look to see there are no RADs or drastic ways 2. 3 Other Factors a. Degree of advantage to minorities i. Most important part. Some advantage will be allowed, too much is no good. Key factor in school cases. b. Degree of disadvantage to majorities i. Too much = striking down. Firing decisions of teachers is too much disadvantage, but hiring might pass. c. Overall Flexibility of Law i. Less drastic ways of doing the program. Those that provide goals and waivers are more flexible than those without. 1. ―Waiver Provision‖ would say that if not sufficient # of minorities to do the work, the majority person could be hired. Quotas are unconstitutional. f. McG mentioned that this is one area he thinks will change b/c of Alito V. Gender Based AA a. Generally i. Gender based discrimination whether it be hostile or benign [advancement of] get the Intermediate/EPJ Test. 1. Substantially related to important gov interests, OR exceedingly persuasive justification? 2. ―Narrowly tailored‖ = Substantially related to… b. Historical DiscriminationCreating Classifications Advantaging Females i. Making up for past historical economic discrimination is a legitimate governmental end and passes the intermediate test. ii. HOWEVER it still needs to be narrowly tailored and have no RADs c. Approach i. Purpose 1. Making up for past discrimination and achieving diversity in the workplace are valid purposes ii. Relationship 1. Look for RADS 2. Show Gender AA is most rx way to achieve purpose. a. Moderate flexible case by case use of gender in order to achieve diversity will pass the Intermediate Test b. Is it possible to make case by case individual determinations? If so, then this is better than across the board classification. Sinner Page 20 8/12/2008 PROCEDURAL DUE PROCESS GENERALLY I. Scenario a. Issue arises when government gives someone else the discretion to take your liberty or property interest. b. Usually an individualized case by case determination c. Example i. School Principals II. 3 Part Test a. (1) There must be a Judicial Like Decision creating a PDP issue not a substantive interest i. Substantive Interest 1. Usually involves the passing of legislation that affects everyone. a. Substantive EP Ex: Law says that any person convicted of crime involving gun is removed from public housing. Gets RBT. b. Procedural Ex: Law say if person convicted of crime involving gun then the housing rep has discretion whether or not to kick you out. ii. Discretion 1. You are entitled to a fair hearing and fair notice when someone makes a judicial decision. 2. It needs to be a discretionary, case by case, individualized adjudicatory taking 3. If it is automatic decision, then there is NO PDP because no discretion 4. If it is a ministerial decision there is NO PDP because no discretion 5. Key: Is there something to have a hearing on? iii. Negligence and Torts 1. Not enough to raise PDP because lack of discretion. Intentional implicates DP, and reckless disregard might implicate DP (ct left this open). 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 b/c impossible to have hearing before the deprivation (it was already lost) b. (2) It must be the taking of liberty or property interest i. Liberty 1. Constitutional Rights a. Free Speech b. Privacy c. Other rights normally associated with the Constitution (Vote, Travel, etc.) 2. State Law 3. Federal Law 4. Contract 5. Prison a. Prisoners are not given a LI unless they are treated in a way that is seriously beyond the level expected for a prisoner, i.e. significant hardship b. Valid Liberty Interest i. State taking away granted good time behavior credits ii. Transferring from a prison to a mental ward (dramatic change in confinement) c. Invalid Liberty Interests i. Transferring to a minimum, medium, or maximum security prison ii. Mere writing of regulation and rules down does not create an interest. Sinner Page 21 8/12/2008 6. Medical Interest a. Refusing medical treatment is a valid interest b. However, it only takes determination of medical guy that it is necessary to satisfy PDP. 7. Reputation a. No longer a LI, at any level, even when combined w/ something else. ii. Property 1. Has to be more than mere expectation 2. State law or independent source has to give the right a. State Law b. Federal Law c. Contract with state/gov. 3. Includes various ―entitlements‖ (e.g. food stamps, welfare, gov jobs, notice for debt collection, public schooling, etc.) 4. At Will/For Cause a. If the state says you can only be fired for cause = property interest b. If the state says you can be fired at will = NO interest 5. Repossession a. Debtor is entitled some type of hearing before court can authorize the creditor to repossess the property. c. (3) What level of due process is due i. Once the state creates the interest, the court decides the level of due process due 1. Infinitely variable ii. 3 Part Test to Determine Appropriate Level of Process 1. Importance of the private interest at stake a. Most important factor. High level private interest = High level DP. 2. Risk of erroneous deprivation by not having better proceedings 3. Importance of governmental interest at stake. a. Admin convenience, quick decisions, etc. iii. Prior Termination Hearing 1. Rule: PDP hearing has to be given prior to deprivation of LI or PI. 2. Exigent Circumstances Exception: If having the hearing before hand would create a dangerous or bad situation they can take action and then hold the hearing a. Example i. Taking kids from bad parents before the hearing. ii. Upon probable cause, arrest w/o warrant and hearing after. III. Irrebuttable Presumption Doctrine a. Generally i. These are laws that presume something about a certain class of people ii. Examples 1. Presuming accident caused by alcohol was at fault 2. Presuming unfitness of fathers of illegitimate children 3. Presuming unfitness of police officers after age 50. a. Mass v. Mergia: State law that police officers were presumed unfit after age 50, but prior to they were given exam. This is a EP Issue, which gets RB level of review. It is not a case by case basis, we don‘t care as to the individual, just whether the law overall is rational. Also, rejected alternative for physical fitness exams after age 50. This is irreb presumption that unfit at age 50. Mergia had no right to notice or hearing. He was just fired, not PDP here. Just a EP classification. Sinner Page 22 8/12/2008 b. Rule i. Normally if you see an IP apply a RB Test ii. IPs are EP classifications and get same level of review as they would under EP. c. Exception i. Apply PDP to the following fact Patterns 1. Laws that makes it a discretionary decision (the issue) regarding… a. Fault in an accident: OR b. Fitness of a Parent; AND 2. The result of that issue is presumed/made w/o a hearing; AND 3. They had a hearing on the issue afterwards to determine that issue IV. Analysis a. Facts i. Kid was suspended by the principal for 10 days b. Analysis i. Judicial Like Decision 1. Principal was able to decide who got suspended ii. Interest taken 1. Property Interest in the form of 10 public school days was taken iii. Level of DP Due 1. Low and Informal, though good. STATE ACTION GENERALLY I. Generally a. This issue arises when someone is claiming that a private person is acting on behalf of the state, and they violated the 14th A. b. Finding gov culpability for private acts. II. Requirements to have state action violate the Constitution a. State Action [If you have this state it and move on] i. Any Gov Acts, including… 1. State 2. County 3. City 4. Village 5. Gov Agency (e.g. Cal Trans, DMV) 6. Employee acting in official capacity (e.g. Public School Teachers, Cop) ii. NOT FEDERAL GOVERNMENT—I don‘t understand why 1. If it is then no State action issue b. In violation of the 14th A. Approach a. Sift the facts and weigh the circumstances, w/ special focus on Gov blame and responsibility for the Constitutional violation. b. Look for i. State culpability; OR ii. State Responsibility; OR iii. State Blame… c. for the private violations of 14th A. by a pure practical weighing of important facts Sinner Page 23 8/12/2008 III. IV. 2 Key Fact Patterns Where State May Be Liable for Private Acts a. Lawsuit filed against the gov for something a private person did; OR b. Lawsuit filed against the private individual w/ the assertion that the private individuals connected to the state so the Constitutional rights apply. IMPORTANT PRECEDENT – 3 Categories I. Public Function Doctrine a. Generally i. When the gov turns over public function responsibilities (i.e. things exclusively w/in the province of the gov) to a private entity and that private entity denies someone access. b. Public Function Limitations i. Generally 1. Limited to activities traditionally and exclusively held by the government a. If this fact is present, then conclusively State Action. b. If this fact not present, then use the fact that private entity is performing a public function + other facts to show State Action. 2. More likely to find SA if claim EP violation than PDP violation. ii. Valid PF 1. Prison 2. Voting 3. Towns 4. School for bad kids iii. Invalid PF 1. Schools a. No SA where public entities voluntarily agree to be regulated by private actor. 2. Providing Electricity a. State regulation of a private business, even if extensive and detailed, does not by itself convert private action to state action. b. Here, state has no obligation to furnish such service. c. This was traditionally an activity that was held by private companies c. Examples – State Action Found i. Democratic party running the primaries is related to the electoral process and therefore PF. ii. Privately owned town which has all of the responsibilities of a normal town is PF. iii. Operating a public park or a public street. d. Not Examples – State Action NOT Found i. Private shopping centers 1. Note: CA makes private shopping centers SAs under CA‘s Constitution, but not protected under Federal Constitution. ii. Exclusive Congressional grant of use of a word (e.g. ―Olympics‖) does not automatically make them a SA. Sinner Page 24 8/12/2008 II. Governmental Enforcement of Private Agreements a. Generally i. I: Whether state enforcement of a policy (by police or courts) is SA. 1. The state must be compelling the action, e.g. compelling race discrimination. b. Restrictive Agreements i. Generally 1. Restrictive agreements alone do not violate the 14th A. ii. Racially Restrictive Covenants Exception 1. Gov enforcement of private racial discrimination is State Action. a. When judicial enforcement is necessary to secure the anti-racial purpose of the agreements it becomes a state action. (Shelly v. Kramer) b. Must involve a willing buyer and a willing seller who are acting in violation of a racially restrictive covenant. 2. Limited to those scenarios where the buyer and seller were NOT discriminating, and thus violated the covenant, and then gov comes in and enforces covenant. iii. Neutral Agreements 1. Enforcement of Neutral law/agreements is NOT state action. a. Example i. State enforcement of trespass laws, or trust laws. c. Employment Contracts i. Generally – Do they have to use their state power? 1. If a state employee is under contract with a private entity, then there is a state action. d. Trustee i. Generally 1. If a state entity is the trustee of a trust that calls for provisions that violate and they enforce the trust then it is state action. ii. Failed Provisions 1. If the requests in the will are unable to be met [racist park] and the court ruled that the trust should be terminated instead of carried out [integrated park] then it is not a state action. This would just be enforcement of a neutral state law. e. Preemptory Challenges i. Generally 1. The State or private attorney, in civil or criminal, cannot use race or gender as a basis for preemptory 2. It is SA if they grant these preemptory challenges b/c state runs the courts. ii. Public Defender Exception 1. Public defenders actions and role/duty are NOT state actions because his role is adverse to the government. 2. HOWEVER, public defenders are state actors in preemptory challenges. f. Private Regulation of Public Entities i. Generally 1. It depends on the amount of public entities that the private entity regulates ii. Examples 1. NCAA case said no SA because most of the schools governed were private 2. Another case ruled SA because 85% of the schools governed were public. Sinner Page 25 8/12/2008 III. Government Financing, Regulation, Authorization, and Endorsement of Private Conduct a. Generally i. Funding? Licensing? Regulation? Endorsement? Symbiotic Relationship? Does it give the impression of a public entity? b. Private Activity on Government Property i. Generally 1. The fact that private action occurs on public ground does not make it a SA. 2. HOWEVER, if it is so closely related—“symbiotic relationship”—that they depend on one another and where most people think that they are one then it will be a SA. c. Government Financial Assistance to Private Activities i. Generally 1. Receiving of funds does not mean SA. 2. There needs to be some mutual benefit or interdependence between what the funds were given for and the action. a. The gov‘s purpose in giving the funds must be to discriminate. ii. Examples 1. Books a. Giving books to segregated schools was a SA because books are specific academic necessities and it accomplishes bad purposes. b. Same conclusion where state gave segregated private schools exclusive use of public recreational facilities. i. Unusual cases b/c limited involvement was cause for SA. Instead, say that state gave things away (books) out of racial hostility (must prove), and is t/f per se invalid. 2. Medicare Discharge (McG‘s favorite issue) a. The discharge of patients at private nursing homes who receive federal funds was not a SA because the transfers were not dependent on SA, but rather were up to the nursing home. 3. Firing Teachers at Publicly funded Private School a. No SA b/c schools decision, not the govs. Government only gave money. b. Note: there is more remote connection to state action when dealing w/ teachers as opposed to dealing w/ students. d. Government Licensing or Regulation of Private Activity i. Generally 1. Gov licensing or regulation is not sufficient to create SA. 2. There needs to be a sufficiently close nexus between the state the private entity. ii. Liquor License 1. Generally a. The granting of a liquor license does not make the gov a state actor. 2. Racial Exception a. The lower court‘s enforcement of the charter of an establishment which requires racial discrimination made them a SA. iii. Public Function Limitations—how do these fit in? 1. Generally a. Limited to activities traditionally and exclusively held by the government 2. Valid PF a. Prison b. Voting c. Towns d. School for bad kids Sinner Page 26 8/12/2008 3. Invalid PF a. Schools b. Providing Electricity e. Government Approval of Private Unconstitutional Activity i. One View 1. Repeal or initiative to repeal law protecting against discrimination was considered a state action because the state approved. 2. Probably erroneous today. a. Modern ct is unlikely to find sufficient for state action b/c approval, by itself, is not likely to be enough. ii. Better View 1. Since the repeal requires 2/3 votes to pass another fair housing law, then that is a race-based classification, which req‘s CSI (where there is no compelling reason for this to require 2/3 votes and other just requires a majority). In this view, no state action issue, rather an EP issue. 2. I don‘t really understand why this is better. a. I though super majorities were constitutional. CONGRESSIONAL POWER TO PASS LEGISLATION CONGRESS’ ABILITY TO REACH PRIVATE ACTS I. Generally a. Enumerated Power i. Congress cannot do shit unless they have an enumerated power backing them up. II. Reaching Private Racial Discrimination a. 13 A. i. Rule 1. No person may hold another person in involuntary servitude (i.e. Slavery), and Congress can pass legislation to enforce. ii. Limitation 1. You need to have involuntary servitude and not just racial discrimination 2. Involuntary Servitude a. Can reach slavery and racial discrimination involving badges [conditions] of slavery i. Badges of Slavery 1. Is anything or disability that was imposed on slaves 2. Examples a. Slaves cannot own property b. Slaves could not enter into contracts i. Includes education c. Employment d. But Not Public Accommodations i. Hotels ii. Restaurants. b. 14th A. i. Rule 1. Congress can reach private acts based on PI, and can pass legislation preventing private interference w/ these 4 PIs: a. Sail of the seas b. Protection under a federal marshal c. Going to DC to petition for grievances Sinner Page 27 8/12/2008 d. Right to travel Interstate 2. Cannot reach private acts on DP or EP because they require state action: c. 15th A i. Rule 1. Race cannot be used as a basis for voting. 2. Can reach private acts of intentional/purposeful discrimination AND disproportionate racial impact. III. Changing Substantive Material a. Remedial Provisions i. Congress can change remedial shit like 1. Making things criminal; OR 2. Providing civil litigation b. Substantive Provision i. Generally 1. Any substantive change will be found unconstitutional 2. Example a. Trying to make a higher level of review [CSI] for laws passed when the Constitutional standard is RB. ii. Section 5 of the 14th A 1. If the court has defined the scope of the protections under 14th A, Congress cannot pass legislation to the contrary. 2. Example a. If SC overrules abortion, Congress cannot pass a law giving them the power. Sinner Page 28 8/12/2008 FREE SPEECH GENERALLY I. 1st A. a. Congress can‘t pass a law abridging freedom of speech – Congress passed law b. Made applicable to the state via the 14th A – State passed law RADICAL SPEECH [Content Based Regulation] I. Generally a. Radical speech (e.g. advocating unlawful or illegal acts to achieve political gain) is protected and can only be punished if the speech passes the clear and present danger test. II. Clear and Present Danger Test i. 3 Elements 1. Must be words of advocacy of violence or unlawful acts 2. Must be stated for purpose of accomplishing those illegal acts [specific intent] 3. Must be a likelihood of success w/ regards to those illegal ends. ii. Weak Ass CPDT [Just mention] 1. As the danger increased the need for proximity decreased. Ruled that the U.S. did not have to wait until they were overthrown to stop the danger. May still be applicable, but not really followed. Ramifications a. If you are involved in a group w/lawful and unlawful aims, you are responsible only if: i. You are aware of the unlawful aims; and ii. You have specific intent of accomplishing them. b. Participation in civil protest turned violent, you are not responsible for violence unless: i. You knew of the violence; and ii. You had the specific intent to accomplish them. Other Uses – CPD Phrase used, not Test a. Contempt of Court i. You cannot hold a non-party in contempt for out of the court statements unless there is a CPD to the fair administration of justice. b. Prior Restraint i. Prior restraints are not legal unless there is a CPD of immediate harm. III. IV. Sinner Page 29 8/12/2008 DEFAMATION [Content Based Regulation] I. Generally a. A libelous/slanderous statement is beneath constitutional protection. II. Rules for Possible Scenarios [P has BOP in all scenarios & States can always raise level of proof]] a. Public Official/Figure Plaintiff in a Public Concern [NY Times] i. Level of Proof 1. Must prove NY Times ―actual malice‖ ii. Actual Malice 1. Intentional Falsehood or Reckless Disregard a. Reckless Disregard [Subjective Test] i. Having serious doubt about the truthfulness of a statement, not verifying it, and publishing it anyway. 1. Lower than SL, but higher than Negligence. ii. No requirement of prior investigation b. Compare CL Malice, which means ill will or hatred. iii. Public Official 1. Includes a. Any person elected to public office b. Any candidate running for office c. Only Government employees who play an important role in setting public policy (e.g. Police Commissioner, but NOT Postman iv. Public Figure 1. All Purpose a. People instantly recognized (e.g. Celebrities) 2. Limited Purpose a. Persons that are noted for a particular cause and got their notoriety for that particular issue and the shit you can say about them is limited to that issue. b. Involuntary Lime-Light i. You cannot draw a person into a controversy to make them a Public Official/Figure. They have to voluntarily interject themselves into the limelight ii. Holding a press conference is not enough. v. Public Concern 1. Newsworthy vi. Damages: No limits (actual + presumed + punitive) vii. BOP on П to prove statement was false. Tie to ▲. b. Private Plaintiff in a Public Concern [Newsworthy Concern] [Gertz] i. Level of Proof 1. Negligence a. Failure to investigate might be enough to show negligence ii. Damages 1. Only proven 2. No presumed or punitive unless prove NY Times actual malice. iii. BOP on П to prove statement was false. Tie to ▲. c. Private Plaintiff NOT in a Public Concern [Dunn & Bradstreet] i. Level of Proof 1. Not clear can be Strict Liability or Negligence ii. Damages: No limits (actual + presumed + punitive) iii. BOP 1. Traditionally on ▲ to prove statement was true. Tie to П. 2. Modernly (p/t Free Speech clause) on П to prove statement was false. Tie to ▲. Sinner Page 30 8/12/2008 PRIVACY [Content Based Regulation] I. Revealing Private Facts a. Can publish unless there is some CSI in not publishing b. Protected unless i. CSI—The facts are so embarrassing in their nature that revealing them shocks the conscience of the court 1. Protecting the names of a rape victim or scandalous judge is not a CSI, so no punishment for publishing. The SC has never found publishing here to be CSI. II. Intrusion on Seclusion a. Probably no 1st A protection for illegally gathering this info (e.g. trespass) b. Who is Liable i. Only the person who collected it is liable and not the media that published it. c. Remedy i. Usually damages, but not injunction. Misappropriation a. Tort i. Using someone‘s picture or likeness for money or commercial gain. b. Rule i. Probably no 1st A protection for misappropriate someone‘s likeness. ii. The 1st A. is not violated by making misappropriation a tort. False Light a. Tort i. False and Offensive but not defamatory b. Level of Proof i. Public Official or Public Figure or Private Person in Public Concern, 1. Actual Malice = Intentional falsehood or reckless disregard. ii. Private Plaintiff not in a Public Concern 1. Maybe negligence, possibly reckless disregard, but we don‘t know! III. IV. Sinner Page 31 8/12/2008 OBSCENE/SEXUALLY EXPLICIT [Content Based Regulation] I. Generally a. All but hardcore porn is protected by the 1st A. II. Miller Test [Offensive if] a. 3 Elements (protected unless…) i. Material taken as a whole appeals to the prurient interest of the average rx adult 1. As a whole a. Must be judged on the whole not just certain parts b. Pandering Exception i. If you pander [advertise/emphasize] or exploit dirty parts then the court will judge on those parts. 2. Standard to Judge a. It must be judged using a rx adult and not the most susceptible person of society (i.e. kid) b. Average Rx Pervert i. If it addresses a specific fetish then we use this standard. 3. Prurient Appeal a. Matters that appeal to the lustful and natural aspects of sexual matters. ii. Patently offensive applying (a) contemporary local community standards (b) as specifically defined in legislation or judicial decision 1. Patently Offensive a. State law determines and can vary from state to state b. Must still meet other requirements iii. It be without serious literary, scientific, artistic value 1. This is a national standard b. Application i. Apply so that all but hardcore porn is protected by the 1st A. III. Child Porn a. Laws Aimed Solely at Protecting Kids get i. These laws get the Miller Test if they affect adults too. ii. They get a lesser standard than the Miller Test 1. Like requiring credit cards to access phone sex. iii. Laws seeking to protect children and affect adults too get the Miller Test b. Closet Kiddie Porn Lovers i. Once in the home, anything BUT child porn is protected. c. Internet and Children i. Child Porn Prevention Act of 1996 1. Virtual Child Porn in your home is protected by the Miller Test b/c just cyber images rather than actual child porn. ii. Decency Act 1. Sweeping rules that prohibit shit that can be seen on the Internet is protected by the Miller Test b/c no way of determining age via keyboard. d. Soliciting for Commercial Purposes i. It might be possible to set constitutional restrictions for soliciting people for commercial purposes. Sinner Page 32 8/12/2008 FIGHTING WORDS [Content Based Regulation] I. Indecent or Profane Speech a. Generally i. Being offended is not the measure of offensiveness, and thus indecent speech is usually protected by the 1st A. 1. this means that hateful, racist, inappropriate speech is protected by 1st A. b. Limiting Exception – Chaplinsky i. Fighting words are not protected by the 1st A IF: 1. They are indecent, profane, or fighting words directed at another; AND a. By their very utterance would inflict injury or would cause a physical reaction that would lead to breach of peace if the other person is able to respond. 2. They are used in a face to face confrontation; AND 3. The law is limited to fighting words in a face to face confrontation. a. If not, then law is overbroad. E.g. ―Interfere‖ reaches more than just fighting words. c. Threats i. True Threats 1. Are not protected by the 1st A. ii. Intimidation 1. You must specifically prove the intent to intimidate a. Cross burning + Intent to intimidate is NOT protected by 1st A. CONTENT BASED FALLBACK/CATCHALL = CSI I. Generally a. Test i. The restriction of speech must be narrowly tailored to accomplish a CSI. COMMERCIAL SPEECH II. Generally a. Commercial speech is subject to regulation when regular speech would not be regulated (so protected, but not as much as non-commercial speech). b. Limitation i. Commercial speech is limited to advertising, e.g., commercials for the sale of products and services. T/f a regulation on a commercial is a regulation on commercial speech. 1. It does not include speech for profit, e.g., magazines, newspapers, theaters, movies, or books. c. Intermediate Test – Central Hudson (5 Parts) i. Ad must involve lawful activity; 1. No ads for Prostitution because it is illegal ii. Ad cannot be misleading; iii. Law must involve substantial government interest (as opposed to CSI); 1. Limit gambling by banning advertisements in a no gambling state, or banning ads to residents but not tourists. iv. Law must directly advance that gov interest; 1. Banning the ads of legal drugs advances nothing v. Law hurts no more speech than is essential to advance that gov purpose (most important). 1. Requires a rx fit b/w whatever the law is and whatever the purpose is, i.e., narrowly tailored to advance the purpose. Sinner Page 33 8/12/2008 a. Basically the same as saying no RADs VOID FOR VAGUENESS & OVERBREADTH I. Vagueness a. If client is protected by 1st A, then just mention that and move on. b. Test i. There has to be rx ascertainable standards as to what is made a crime. Otherwise law is void for vagueness. 1. Ct almost never finds a violation for vagueness. II. Overbreadth (KEY) a. Generally i. If the law is substantially overbroad and has the possibility of infringing on 1st A. then you are protected even if you are engaged in shit that does not invoke the 1st A. 1. Unnecessary to argue if your client is engaged in speech protected by 1st A. b. How to Invoke – 2 Requirements i. Identify why activity is not or may not be protected by the 1st A; AND ii. Show that there is a substantial possibility that the law reaches protected speech, and is thus overlybroad. 1. Attack the law as applied to others engaged in protected speech, rather than as to your client who engaged in activity not protected. 2. This means that the law restricts significantly more speech than allowed by the Constitution. DOCTRINE OF PRIOR RESTRAINT I. Generally a. Definition i. Being punished or prevented to speak prior to the speech. b. Generally i. Prior restraints are unconstitutional 1. E.g. Judicial injunction of magazine, paper, or parade 2. But NOT Self restraint or Self censorship [even from fear of punishment] ii. Even though what you were going to say is not protected. iii. Can be punished after said though. c. Rule i. Prior restraints are presumptively invalid absent some imminent harm or CSI 1. Absent CPD + No other way to prevent the danger a. Ex: Publishing of troop movements and no way to protect the troops prior to the restraint. II. Licensing/Permit Schemes a. See Below: Permit Schemes/Licenses for use of Public Forum III. Gag Orders a. If it involved the tainting of the jury you would have to use all other means before you can use the gag order i. More Preemptive Challenges ii. Change of Venue b. AND you have to show that the gag order would be successful. Sinner Page 34 8/12/2008 TIME PLACE & MANNER I. Content Based Restrictions a. CSI Test i. The law must be necessary to advance the compelling state interest ii. Laws that limit individual rights must be narrowly tailored to advance compelling interest b. Balance Test i. They will look to see if there is a less drastic alternative ways [RADs] to accomplish the interest without hurting the right. c. Split Rule Maneuver i. SC in one case split a single law into two parts and upheld one part and overruled the other. d. Anytime you see ―exceptions‖ in the law, it is probably content based. II. Content Neutral a. Intermediate Test – Ward v. Rock i. Content neutral regulations must be narrowly tailored to advance significant nonspeech gov interest. 1. Use facts to balance competing interests in a practical kind of was a. Non-speech gov interest v. harm to free speech. 2. Consider RAD to advance gov interest w/o hurting speech a. Are there less drastic ways? Alternative channels for communication? 3. Consider nature of the forum a. Speech must be consistent w/ the forum b. Traditional public forums = Intermediate Test i. Traditionally always places of free speech and t/f given a lot of weight in balancing test. ii. E.g. Sidewalks, streets, public parks, ―designated‖ public forums 1. Designated public forums = Intermediate Test a. Taken role of public forum thru custom, practice, and habit in a given community b. E.g. University classrooms when class not in session. iii. Library 1. Ruled that a place where speech is limited b/c it is a library. Silent protest, however, was ok. c. Limited public forums = Rx Basis Test i. Regular level of speech is always going to be inconsistent or incompatible w/ the principal function of these places ii. E.g. Airports, post offices, military bases, gov‘t offices, public school teacher mailboxes; jails; library computers iii. State Owned TV Station Opened Up for Political Speech 1. Generally a. State acting like a private entity means they can exclude whoever the fuck they want. 2. Classification? a. Excluding non viable candidates b. Content Neutral 3. Forum? a. Station for candidate debates b. Limited public forum Sinner Page 35 8/12/2008 iv. Homes 1. Banning For Sale Signs to Prevent Block Busting a. Classification? i. Content Neutral b. Narrowly Tailored? i. No Too much 2. Banning Signs on the Homes a. Classification? i. Content Neutral b. Narrowly Tailored? i. No, other ways to stop. b. Regulation of Protest at Abortion Clinics & Importance of Distance [Facts for balancing] i. Access Regulations 1. Classification? a. Content Neutral so gets balancing test. 2. Narrowly Tailored? a. A 36ft Buffer zone around front of the clinic is narrowly tailored b/c the interests of ingress and regress for the front entrance outweigh the harm to free speech. ii. Noise Regulations 1. Classification? a. Content Neutral so gets balancing test. 2. Narrowly Tailored? a. A limit on morning time protests only was is narrowly tailored b/c of concern for noise during operations. iii. Banned Observable Images 1. Classification? a. Banned ―Offensive‖ material, so Content Based – CSI. b. You must be thick-skinned! iv. Banning of Approaching Patrons 1. Classification? a. Content Neutral 2. Narrowly Tailored? a. Distance from Clinic i. 300ft was too much ii. 100ft was okay b. Distance from Patron i. 15ft moving bubble too much ii. 8ft stationery bubble okay 1. Stationery in that if that the protester would not have to move if the patron approached them. c. Can be Content Neutral even if Consideration of Content i. Rule 1. If regulation is CB (or some degree of content), but message or viewpoint is neutral, then some consideration of content is allowed if content directly relates to non-speech gov interest. ii. Intermediate Test (same as Broadcast TV and Radio) 1. Content based regulation of radio and television must be narrowly tailored to advance substantial govt. interests. a. Non-speech = deterioration of neighborhoods, litter, noise, congestion Sinner Page 36 8/12/2008 III. Government Speech a. Generally i. As A Speaker 1. The government does not have to be neutral in its speech and has the same rights as a private entity ii. As A Regulator 1. Must be Neutral b. Funding i. Generally 1. The government can fund any point of view they want ii. Accepting of Funds 1. Normally, if you accept government funds then you have to accept the conditions they set about speech, and they can regulate anyway they want. iii. Lawsuits 1. Government cannot limit the types of arguments/claims that can be made in a lawsuit if they allow claims to be filed, even if they fund the clinic. iv. Internet Filtering for Library Computers 1. Filtering Requirements are against free speech v. Military Recruiters on Campus 1. Congress passed a law that said that if military were not given same rights as other recruiters, then the schools would lose their funding. Ct upheld the law and said that if you accept federal funding you do it according to the conditions that Congress imposes. Permit Schemes/Licenses for use of Public Forum –how differ from prior restraint doctrine?? a. Generally i. Content Based = Presumptively Invalid 1. If the permit scheme is either silent on the matter or allows the administer to consider the content of speech then it gets a high level of scrutiny – CSI ii. Content Neutral = Intermediate Balancing Test 1. The importance of the non-governmental speech interests must be balanced against the impact on free speech, taking into account whether there are rx adequate alterative avenues for the communication 2. Usually results in the ct upholding the licensing/permit scheme. iii. Limited to Non-Speech Concerns = NOT Presumptively Invalid iv. Application of Scheme 1. Valid licensing/permit applied invalidly = you must obey and try to appeal a. Valid = Non-speech concern 2. Invalid licensing/permit but applied validly = you can ignore the permit scheme and move on unless the admin gets an injunction. a. Invalid = Allows for consideration of content. IV. Sinner Page 37 8/12/2008 SYMBOLIC SPEECH I. 5 Step Test/Approach a. Is there speech at all? i. Is the conduct sufficiently expressive to be protected speech at all? 1. 3 Part Test – Spence [Look at overall context and scenario] a. Expressive acts that convey a particularized message that… b. Are capable of being understood by its listeners and… c. Are closely akin/related to speech i. Mindless violence is NOT speech and t/f not protected. ii. If not then RBT If yes, then apply the O‘Brian Test (Essentially same as T/P/M intermediate approach) b. Is there the regulation of the expressive conduct related to the suppression of free speech? i. Content Based or Neutral? 1. If content based, i.e. related to regulation of content speech, then apply test that best fits a. Radical Speech = CPD b. Defamation = NY Times, Brandenburg v. Ohio c. Obscenity = Miller d. Fighting Words = Chaplinsky e. Commercial Speech = Central Hudson f. Note: Any law regulating desecration of flag is inherently content based. 2. If content Neutral, i.e. unrelated, go to step 3. c. Within governmental power? i. The government is advancing a legitimate governmental interest. [Easily satisfied] d. Regulation must be in the advancement of an important or substantial governmental interest [Use Facts - balance test] i. Intermediate Test e. Regulation hurts no more speech than is necessary in the advancement of those interests [Use Facts - balance test] i. Essentially the same as narrowly tailored RAD test. ii. Do practical balancing test. f. Nature of Symbolic Speech can affect balance either positively or negatively. i. Ex: Burning shit might bring up safety reasons II. Examples a. Picketing b. Marching c. Arm Bands d. Burning flags and draft cards i. Laws prohibiting flag burning are inherently content based. e. Waving of flags f. Tent City g. Topless Dancing Not Examples a. Dress code (generally) i. Wearing Ties ii. Wearing skirts b. Uniform shit c. Beards d. Long Hair Sinner Page 38 8/12/2008 III. FREEDOM TO BELIEVE I. Generally a. You are free to believe and cannot be forced to speak as to what you believe. You can keep it confidential. b. Examples i. JWs cannot be compelled to say whether the affirm allegiance to the flag FREEDOM OF ASSOCIATION I. Generally a. Rule i. Free speech includes the right to associate with others of the like mind and laws. Laws prohibiting this must pass a … 1. CSI level of scrutiny 2. unrelated to the suppression of ideas, 3. that cannot be achieved through less restrictive b. Violent Person Protest i. If you are apart of a protest that turns violent you are still protected unless 1. The group had illegal aims 2. You knew of those aims 3. And you helped advance those aims II. Limits on Association Membership Policies a. Generally i. Many state laws ban the association of private organizations if they practice racial/gender discrimination. b. Issue i. How does this reconcile against Freedom of Association? c. 2 Categories i. Expressive Associations 1. Definition a. Come together b/c have one particular point of view. b. A right to associate for the purpose of engaging in those activities protected by 1st A—speech, assembly, petition for the redress of grievances, and exercise of religion. c. Easier to exclude whoever you want. 2. Level needed to regulate a. CSI i. Preventing discrimination not likely to pass the CSI test. ii. Societal Associations 1. Definition a. Come together b/c some common affinity (fraternities), to break down anonymity of large university, paln events, but nothing particularly expressive. b. Choice to enter to maintain certain intimate human relationships. 2. Level needed to regulate a. RB iii. Determining which association 1. Look at size, purpose, policies, selectivity, congeniality, etc. d. Approach to Both i. Determine which part of the association it impacts and apply the according test. Sinner Page 39 8/12/2008 III. Compulsory Associations (AKA Compelled Membership) a. Definition i. In some instances, gov can compel you to be a member of an association, and can require you to pay dues. b. Funding i. You cannot be required to fund activities unrelated to the purpose of the organization. ii. Associations have to refund you this portion\ 1. Ex: If union spends money unrelated to union activity, then have to give back that portion of dues. c. Education i. Nothing is outside the scope of activities related to education thus you cannot get a refund on anything for tuition paid. Compelled Speech a. Generally i. You cannot be compelled to express a third party‘s point of view ii. Relates to Freedom to Believe b. Examples of Violations i. Being required to give someone space in your paper (e.g. right to reply for newspapers, or literature in energy company envelopes). c. Examples of Non-Violations i. Requirement that minor fruits ban together to promote their products. 1. Here, just one part of total sales program. ii. Being neutral in which people got to talk in your private forum 1. People won‘t think that school is anti-gay if they allow military recruiters on campus, or that shopping center has specific view point b/c person is fliering. Speech & Association Rights of Government Employees a. Generally i. As a government employee you cannot 1. Be compelled to join a certain political party a. UNLESS you hold a position that is related to its policy making and is politically oriented 2. Be promoted or demoted on political affiliation b. Critical of Your Employer (Boss or Office) and Speech Relates to Gov Activity of the Office i. You can be fired c. Speech is a Matter of Public Concern i. 1st A. Protection Public Schools [Required education – elementary/high schools] a. Generally i. Government can regulate student speech on schoolhouse property as is reasonably related to legitimate educational concerns. IV. V. VI. Sinner Page 40 8/12/2008 VII. Broadcast Television & Radio a. Generally i. Indecent speech is protected everywhere except on Broadcast Radio and TV 1. For all other media forms, content based gets CSI ii. Intermediate Test 1. Content based regulation of radio and television must be narrowly tailored (i.e. substantially relate) to advance substantial govt. interests. 2. Even though these normally would get a CSI test in any other circumstance iii. Application 1. Only to basic free channels 2. Satellite and Cable and Internet get CSI b. Right to Reply i. There is a right to reply requirement whenever they endorse a specific candidate or someone is subject to attack—is this still true? ii. Even though it violates compelled speech c. Safe Harbor i. Indecent speech has to be channeled into certain safe harbor hours to protect children ii. This means you can‘t completely ban indecent material VIII. Religious Speech a. Widmar v. Vincent Sinner Page 41 8/12/2008 FREEDOM OF RELIGION GENERALLY I. 1st A. a. The Establishment Clause i. Congress can make no law establishing a religion (separation of church and state) b. The Free Exercise Clause i. Guarantees the right of all citizens to the free exercise of religion THE ESTABLISHMENT CLAUSE I. The Lemon Test – 3 Parts a. Principal purpose of any law that advances religion must be secular (worldly), not religious. i. V. easy for court to say that compelled prayer has no secular purpose and t/f violates test. ii. Examples invalid purposes 1. Prayer before a football game a. No historical aspects here. 2. Requiring a moment of silence before school 3. Teaching of creationism iii. Religious Displays on Public Grounds 1. There must be a balance of religious, historical, and traditional beliefs at each site that has religious shit. a. Recent 10 Commandments cases—each held differently b/c of this factor. iv. Examples of good purposes 1. ‗Under God‘ a. Will probably use same logic as ‗use of Chaplins‘ case below. 2. ‗In God we Trust‘ 3. Swearing in on the Bible 4. Use of Chaplains to lead prayer before legislative body starts a. Ct upheld this position by emphasizing the historical aspect of religion being part of our culture and said that it is a sense of history and civil religion rather than aid to a particular religion. Sinner Page 42 8/12/2008 b. Principal or primary effect must be to advance secular (worldly) purpose, not advance or inhibit religion. i. Aid to Private Religious Groups 1. If it addresses a secular problem, the fact that it mimics religion is okay (e.g. Catholics promoting abstinence to prevent illegitimate births) ii. Aid to Religious Schools 1. Test a. Does Aid advance religion to a too great of degree as opposed to the educational purposes? 2. Factors a. Lower Education (Elementary/HS) i. Nature of the Aid 1. Aid directly to the parents is less likely to invoke EC than to the schools ii. What Schools Get the Aid 1. Aid to all schools is less likely to invoke EC than aid strictly to private or public iii. Form of the Aid 1. If it is in a form that is not likely to be misused for religious purposes, then it is better a. Good i. Hearing and eye tests ii. Reimbursement for grading of Scantron tests iii. Books or computers iv. Transpo to school b. Bad i. Psych Tests ii. Reimbursement for grading essays iii. Atlas or globes. iv. Transpo to field trips iv. Amount of the Aid 1. The higher the more problematic it becomes b. Colleges i. More tolerant than lower, however the aid has to be toward secular parts of the school. 1. Like building a school and not a chapel iii. Aid on Campus v. Off Campus 1. As long as the aid … a. Principally advances education or personal health of kid; AND b. Not in a form that could promote religion … 2. Then on school/off school makes no difference iv. Vouchers 1. No violation b/c to parents and most of aid went to public schools. v. Designated Public Forum 1. If it is opened up to the public, then no EC problem, but Free Speech problem. a. If content based = CSI; If content neutral = Intermediate Test Sinner Page 43 8/12/2008 II. c. No excessive government entanglement with religion (least significant factor) i. Generally 1. Any type of aid that requires constant gov oversight to prevent misuse = excessive entanglement. ii. Religious v. Charitable Deductions 1. Trying to separate religious and actual donations would be too excessive, so sweeping deductions are allowed iii. Political Tension 1. Too much aid could lead to too much political tension iv. Oversight 1. Any aid that requires excessive oversight = too much v. Zoning decisions 1. Church being apart of zoning decisions = too much d. Problem: Ct does not like it, but they use it b/c they can‘t agree on anything else. Watch Out a. Free Speech will trump Establishment Clause (really Public Forum Cases) FREE EXERCISE I. Modern Test a. Laws passed for the purpose of restricting religious beliefs have to pass the CSI Test (and v. likely that they can pass) i. E.g. passing law that banned the sacrifice of live animals as part of religious service, but allowed killing animals for food. Ct said that purpose of law was to restrict religion and t/f applied CSI test, which it did not pass. b. Laws of general applicability that incidentally impact religious beliefs do not have to pass CSI i. Not sure on actual test, but probably Intermediate. ii. E.g. Law banned peyote for all people w/o exception for Native American religious ceremonies. This is a law of general applicability and does not get CSI. Sinner Page 44 8/12/2008