Con Law IR: McGoldrick SUBSTANTIVE DUE PROCESS: The Due Process Clause of the 5th/14th amendments will protect substantive interests/rights. 5th: Congress may not deny due process rights 14th: No state may deny due process rights This is substantive due process. Substantive interests are ―things you might want to do.‖ Rational Basis Test: Any laws limiting substantive interests must rationally relate to some legitimate/permissible government end. Undertake a review of the facts to figure out if there is a legitimate/permissible government end, and then look to see if the law actually passed advances those ends in a rational manner. Legitimate End: All you are looking for are legitimate or permissible. They need not be compelling, just arguably legitimate. Rational Relationship: Does the law rationally attain the end? The Court looks at it – and even if the facts show that the law doesn‘t really advance the governmental interest, there still may be a rational basis. Fifth and Fourteenth Review: The 5th Amendment is read as though it said ―Congress may not take life, liberty or property without due process of law.‖ Note that the first Ten Amendments applied only to Congress until the 14th Amendment applied it to the several states. CONTRACT CLAUSE: No state shall pass any law . . . impairing the obligation of contracts. Test for Laws which Impair the Rights and Obligations of Contracts: Public Purpose Balancing Test: 1. Substantial impairment: The level of the Court‘s review will depend upon the severity of the impairment (don‘t take it too seriously, that‘s just what they say). Court will look at reasonable investment-based expectations. 2. Significant and legitimate public purpose justifying the impairment: How important is the public purpose and how important is it to abridge preexisting contractual rights to advance that purpose. Apparently, the purpose does not need to be very strong, although more is required when government cancels its own contracts. 3. Must be reasonable conditions appropriate to the public purpose: Ask how fair was the state in treating the contract holders. 5TH AMENDMENT: NO TAKING CLAUSE: No taking of private property for public use without just compensation. Public Use: If the government wants to pay for it, it is for the public use. o If the taking rationally relates to the public interest then the gov‘t can take. Even if the gov‘t is taking from one private party to another. Eminent Domain Just Compensation: The fair market value of the property prior to the government‘s interference. No Taking: Most important question.
Types of Takings: 1. When the government takes something for government use it is usually a taking. 2. Government takes your property for use by others it is usually a taking. 3. Indirect action by the government: Government not taking the property, they are just regulating it, there are two most likely situations where takings may be found: a. Physically invasion: (or allows the physical invasion of your property). This is de facto inverse condemnation. b. Regulatory Taking: Inverse Condemnation 4. If something is not a taking it is simply a due process rationale basis review. There must be a relation to a legitimate governmental end. If the government determines that there is a taking, then the gov‘t must pay for the property. a. Penn Coal v. Mann i. Penn prevented the taking coal from the subsurface if it affected the buildings on top of the land. Justice Holmes said that what requires compensation ―is a matter of degree.‖ He concluded that it was a compensable taking. b. Keystone i. Court reached the opposite conclusion with similar facts as Penn Coal hard to distinguish between the two. c. Euclid Realty i. A change in zoning laws from business to residential. This cut the value of the land by 1/3. The retroactive change in zoning was not a compensable taking. The logic is that it is zoning which gives value to property, thus it is the zoning which takes away value; no gain, no loss. 5. Per Se Category #1: Where the government takes all economically-viable uses for your property: Imprecise. Some residual value may be left. Long settled that zoning does not require compensation. a. Major Exception: You cannot take all economically viable use unless necessary to abate a nuisance or some other similar type of governmental interest. 6. Per Se Category #2: A physical invasion or occupation is a taking. It can be a physical invasion or an invasion of noise or smells (think airports). a. Loretto: If the gov‘t physically occupies your property you have a taking, no matter how small. The taking was very de minimums. Gov‘t put a small box on top of every building and the Court said that this was a compensable taking. b. Hawaii: Gov‘t required other boats to use a private marina and the Court said it was a physical taking. c. Cosby: Planes flew over a chicken ranch and chickens became nervous, cracking eggs. Government said that there was a taking. 7. Modern Approach when the two per se categories don‘t apply: Even without the two clear categories there still might be a taking. 8. Look at the three factors from Penn Central: a. The economic effect on the owner of the property. Thus, even though there is not a complete taking the economic harm could be onerous.
b. The harm to reasonable investment-based expectations. Look at a number of things—look to see if the law is prospective or retroactive (prospective laws hurt investment-based decisions less, obviously). c. The Court will look at the nature of the taking and extent. The nature of a taking—it is a little uncertain. Zoning is not usually a taking. Historically it meant that zoning cases were less likely to be takings; normally it just means to look at the inherent fairness of the taking. 9. Penn Central: a. City of NY is trying to protect landmark buildings. Penn Central had purchased Grand Central Station. Penn Central wanted to build a 55 story hotel above the Station. They were denied the right to build the building. There was a trade as to what property you could develop if you were denied a permit b/c of the regulation. The Court said it rationally related to a leg. Gov‘t purpose, thus no taking. The Court said it was not a complete taking because they didn‘t take all economically viable use. The nature of the taking was also considered. Zoning takings are less likely to be compensable takings than other laws. Reasonable investment based expectations: They were denied the right to buy a hotel but still owned a station. Thus, it didn‘t thwart all expectations. 10. Lucas v. South Carolina a. Lucas bought some beach front property and was going to build some single family homes in South Carolina. South Carolina passed a regulation that disallowed permanent structure. However, there is still economically viable uses: rent it out to campers, hold weddings on it, sunbathe, etc. He could still exclude others. Some value is gone, but the Court thinks that the principal value is not gone. However, the Court finds that most economically viable uses are taken and he deserves taking. Nuisance Exception: If your use of property could be a nuisance to other people then the gov‘t can take all economically viable uses of your property without compensation. 98% of the coal could be taken and the rest could be left behind. i. Palazzolo v. Rhode Island: A person with 18 acres was denied a permit to develop 11 of the 18 acres. He sued to get compensation for the property that they could not develop. The Court said ‗no‘ because there was another piece of land that could be developed and thus, applying Lucas, it was not a compensable taking. Although you may not be able to get per se, apply balancing test. ii. Tahoe-Sierra Preservation Council v. Tahoe: The Council has a 32 month moratorium on building homes in the area in order to regulate new development.. It was argued this was a 32 month taking and property owners should be compensated for 32 months of their property. The Court said that this was not a takings. However, the Court does talk about partial takings. Review - A no taking issue that is difficult is when there is a diminished use. The gov‘t regulates all the time and most are not considered taking, i.e., the gov‘t raising the minimum wage law is the gov‘t affecting profitability but it will never be a taking.
Exaction Cases 1. Only applies when there is a change of use 2. When the law school was expanded it was ‗exacted‘ that there be handicap access. Another exaction was the cement slab so that fire trucks can get all around the building. 3. Nolan o If there is a change of use the planning commission may exact conditions for the change of use. However, (1) there must be an essential nexus between the exactions and the change of purpose (easily satisfied). Also, (2) the exactions must bear some rough proportionality between the exactions and the harm caused by the change of use. o Imposed limits on exactions. Nolans had a little beach shack in Ventura and the Nolans decided to build a nicer place. At the time the California Coastal Commission wouldn‘t let the Nolans change the shack until the Nolans provided a lateral public easement (running parallel to the beach). The Coastal Commission said they wanted this easement so as to not diminish ‗blockage of the view of the beach.‘ Beach access paths are usually permitted. There must be an ‘essential nexus’ between what was taken and the reason for the taken. But, the Coastal Commission said that they wanted ‗visual access.‘ However, it doesn‘t make sense that parallel access to the beach is needed for visual access. Thus, there is a compensable taking. You would think that there is an easy way around this: all that is required is that there be an essential nexus stated in your brief. . . 4. Dolan v. City of Tigard o Hardward store and attempt to expand. They are to build on swamp land. However, the city imposes certain exactions: (1) dedicate a portion of her property to the city because of floodplane area, and (2) dedicate land for pedestrian bikeway. The second was a traffic easement given the likely increased traffic. The essential nexus requirement is met for the floodplane area and traffic area. However, the Court imposed a different requirement in the Nolan case: rough proportionality between the exaction and the harm caused by the change in use. The harm is more runoff and the exaction is the turning over of the property in fee simple to the city for floodplane area. However, turning over some of her property in fee simple to the city is not roughly proportional to the increased floodplane area that is needed. They should have made her put in the floodplane area. The second harm is more traffic and the exaction is a traffic easement. However, the Court thinks that the city is not specific enough regarding the traffic increase. It is not roughly proportional. 5. Yee v. City of Escondido o Yee owns a mobile home park. Yee says that a combination between rent control and another thing is a physical invasion. He should have argued Penn Central balancing.
Fundamental Rights ● Most substantive interests get a rationale basis level of review. However, if the Court has found that your interest is fundamental, it undertakes a strict scrutiny test. The strict scrutiny test is the compelling state interest test. Protection of Personal Liberties a. Liberty has now been interpreted as protection for privacy. Carolene Products – Fn 4 although rationale basis will be the normal test for most things, there will be some classes of things that require strict scrutiny. Minority interests are given a higher level of review. Gender is also elevated. Griswold v. Connecticut - Griswold is the Director of Planned Parenthood, ―PP‖, and was giving information, instruction and medical advice to married persons as to the means of preventing conception. The Court uses the first and fourteenth amendment and fourth and fifth. This case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. The Majority states that the term ‗due process‘ as used in the Fourteenth Amendment includes all of the first eight Amendments, thus the concept of liberty protects those personal rights that are fundamental, and is not confined to the Bill of Rights. The Court is elevating marital privacy, the right to privacy, and treating it as fundamental giving it a higher level of review. Goldberg believes the Ninth Amendment, ―certain rights shall no be construed to deny or disparage others retained by the people,‘ is applicable. The problem with the 9th Amendment is that it doesn‘t indicate what the rights are or if there are rights what level of review they get. The 9th Amendment has never been relied on by a majority of the Court in any case. Harlan believes that the 14th A should not be used to incorporate the Bill of Rights against the states. Black believes that the people should amend the Constitution if they so feel, but that the Justices are acting outside of their bounds and he would affirm the Connecticut law. Stewart also believes the law does not violate the Constitution. The right to privacy is fundamental because of precedent protecting privacy and choice: Mayer v. Nebraska is where Nebraska prevented the teaching of German language to school kids. The Court said that parents can teach what they want. Also, in Pierce, the Court said parents could send children to public schools. In Skinner v. OK, a law required persons who committed three heinous types of felonies be sterilized in order to preclude passing on this gene to children. The Court said the law violated the Equal Protection Clause b/c it was illogical which persons were sterilized and which were not. In Butt Justice Holmes allowed a young girl to be sterilized. Rationale Basis Test 1. Laws that limit substantive interests must be
Compelling State Interest Test The compelling state interest (strict scrutiny – the care with which the court will look at the issue) test is introduced here. 1. Laws that limit fundamental rights must be narrowly tailored (or necessary) to advance compelling state interests. a. Two part analysis: i. (1) Are there compelling state ends? 1. It is almost always a compelling state interests but yet the state must still have a compelling need. ii. (2) Is the law necessary (―narrowly tailor‖) to advance that compelling state interest? 1. There must be a close fit between the law and the purpose. 2. Also, the Court will look to whether there are less drastic alternatives of achieving the same gov‘t alternatives without hindering the fundamental right. Fundamental Rights – (1) Right to Privacy (childrearing, marriage), (2) Right to vote, (3) Right to travel interstate. The Fundamental Right to Privacy - What falls within the fundamental right to privacy? - Marriage, the right to make decisions regarding contraceptive use, Roe v. Wade extends Griswold to the right to make procreation decisions. - The Limit: A majority of the court has never agreed that minors have the right to make their own decisions regarding contraceptive use or abortion. Walen v. Roe – Issue: Does the right to privacy include privacy; to keeping things confidential? The State of NY required that Dr.s send each medical rx they issue to a database in a central place in NY. This gov‘t entity has access to all medical rx issued by Dr.s in NY. Requiring that medical rxs be given to the State of NY violated their right to keep private any medical condition that they had. Holding: There were sufficient controls on the use of the information that it didn‘t invade the right to privacy. Lawrence v. Texas: Can consenting adults have sodomy. This case principally strikes the law down on a rationale basis reasoning.. - It is in the due process clause of the 5th Amendment. Liberty cannot be denied without due process. All substantive interests are protected by the same clause, but most are protected with rationale basis. - The right to privacy is a fundamental right because, even though not mentioned in the constitution, it relates to provisions in the constitutions. The Court says that there is a penumbral relationship between the right to privacy and other rights in the Bill of Rights. Such as the First Amendment freedom to believe, or be silent. The Fourth Amendment protects you from unreasonable search and seizures; this is based on a zone of privacy. The Third Amendment
protects you from having to quarter soldiers in your home; privacy in the home. Fifth Amendment privilege against self-incrimination. Privacy as Autonomy versus privacy as Freedom from intrusion and Disclosure b. It is later believed that Griswold protects decisions regarding childbearing from unjustified intrusions from the state. Family and Martial Relationships c. Moore v. City of East Cleveland i. East Cleveland has a housing ordinance that limits occupancy of a dwelling unit to members of a single family. Family, however, is defined narrowly: it disallows grandmothers from living with grandsons. Only the nuclear family is allowed to live together. The court believes that the sanctity of the family should be protected as it is deeply rooted in our Nation‘s history. Because this restricts marriage and family life it is a law that restricts a fundamental right thus it is given a strict scrutiny, compelling state interest test. ―This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DP Clause of the Fourteenth Amendment.‖ It is given a strict scrutiny analysis. ii. Brennan & Marshall, concurring: He thinks this law was racially pretexted. The city also began witnessing racial unrest, culminating in the Hough Riots on July 18–23, 1966, and the Glenville Shootout on July 23– 25, 1968. 1. If it was a zoning issue it would only have to relate to a legitimate gov‘t interest (rationale basis test). However, b/c this is related to marriage and family life. iii. Stewart and Rehnquist believe that this law does not impede parental involvement nor dictate how children are to be nurtured and reared. iv. White believes that the issue is whether having more than one set of grandchildren live in her home is entitled to such substantive protection under the DP Clause that this ordinance must be held invalid. He believes it is not; and should not be held invalid. He does not think that this zoning ordinance should be judged by the strict standard employed when a fundamental interests (speech, etc) or suspect classification (race, gender) is involved. d. Zablocki v. Redhail i. A Wisconsin statute requiring a person with a minor child not in his/her custody to pay $108/month until the child reaches 18 and that person must obtain court permission to marry. Plaintiff could not pay the amount as he was indignant, and was in arrears $3,700. He brought this suit to get married. ii. Rules: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. The right to marry is part of the fundamental right of privacy implicit in the 14th Amendment DP Clause.
iii. Some believe that this case states that the ‗traditional functions/aspects of marriage‘ are given a fundamental right level of review. All others (ie, gay marriage) would be rationale basis. 1. Legitimate gov‘t interest? a. Yes, encouraging fathers to take care of their kids. 2. What is the second part of the test? a. However, there are a lot of ways to do this besides restricting his right to marry iv. When a statutory classification interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. The majority sees the law as only hurting an individual‘s right to marry without having a net positive effect on the illegitimate children in question. Actually, this law may lead to more illegitimate children and less money being paid to the current child. v. Stewart believes the law does not violate the Equal Protection Clause What about the law that requires you would have to be 16 to marry? That would be rationale basis because A law that requires a marriage license in CA? Rationale basis b/c A law that says first cousins cannot be married = rationale basis. A law that says in order to get married you have to have male and female and refuses to recognize same gender marriages? We don‘t know whether it is rationale basis or compelling state interest. The Court thinks that most regulations of marriage get rationale basis. And most regulations of marriage will pass that review. Those that get a higher level of review – if you have ‗significant, unrx regulations on the right to marry,‘ then there may be fundamental right with a compelling state interest review. e. Michael H. v. Gerald D. i. A law in CA presumes that the husband is the father of any children. The natural father has no rights with regard to his daughter and she has no rights with regard to her father. Victoria, a baby of Carole D., was actually not the daughter of the man living with Carole D., Gerald, but instead the child of Michael H. Gerald was the man living with Carole when she bore Victoria and he intervened based on a Cal. law that says if a wife and husband live together at the time of birth then the child is presumed to be the child of the husband. The court denied Michael‘s challenges to the Constitutionality of the Cal law. Michael was seeking to be named father of Victoria, but if he was named so, would have been given all rights accompanying those rights, including visitation rights. Blood tests showed 98.07% likelihood that Michael was the father.
ii. The court says that liberty in the due process clause extends beyond freedom from physical restraint, but includes fundamental freedoms which have been traditionally protected by our society. The Due Process Clause affords only those protections ―so rooted in the traditions and conscience of our people as to be ranked as fundamental.‖ iii. Only a rationale basis level of review given to the Court when determining whether a law that inhibits childrearing decisions. Rationale basis level of review 1. What is the legitimate gov‘tal interests? a. Keeping the integrity of the family. However, the right of a father and daughter to keep relations together is trumped by the integrity of the family as a whole decision. 2. a. iv. The Court affirmed the appellate court which allowed Gerald‘s motion for summary judgment against Michael and Victoria to stand b/c the law presumes he is the father given he was living with Carole. Troxel v. Granville – The state of WA gave grandparents visitation rights to grandkids. The mother was willing for the maternal grandparents to continue to have a relationship with the kids, but not willing to let the length of visitation period that the grandparents wanted. The grandparents are suing for visitation rights and the Court gave visitation rights that would be given to non-custodial parents. The Court would not state all laws giving grandparents visitation rights are unconstitutional; however, giving the grandparents visitation rights over the parents would not stand constitutional scrutiny. Roe v. Wade – At the point of viability the state has a compelling state interest for protecting life; but even then, if there is a choice between the life of the fetus and female, the life of the female is to be preferred. The first trimester – compelling state interest and it is up to dr and woman to choose; the second trimester the Court left open the possibility that abortion could be limited to save the woman‘s life. Planned Parenthood v. Casey: The essence of Roe v. Wade was upheld. Roe is precedent to be respected but now is the time to state that it is a decision, entitled to stare decisis. Casey abandoned the trimester approach, but now the linchpin is viability. Viability is the point where the fetus could sustain the life outside the woman. The state may not impose an undue burden on the female or her dr to have an abortion before the point of viability. After the point of viability the state may enact laws that are not an undue burden on the woman. Record Keeping Requirements – Requiring the Drs to keep records with regard to aborted fetus and to the female. Tissue samples sometimes are sent in, certain tests done, etc. The Court has upheld as consistent with compelling state interest and undue burden are record keeping requirements. The only ones shot down are those that made public key information with regard to the abortion which made knowing who the female was possible.
Medical Requirements - The Court has struck down most limits on medical procedures. This is up to the Dr to pick the measures that are the safest for the particular abortion procedure. Exception: When the abortion procedure is intended to protect a viable fetus, the Court has allowed medical regulations to protect the life of a viable fetus. The Court has forced a second Dr to be present for late second-term/early-third-term abortion. However, there is a medical emergency exception (protecting the life of the female). Additional Test to Late Second Term Abortions – Additional tests to confirm that a viable fetus is not be aborted is a constitutional requirement. Spousal Consent/Notice Requirements – The Father/Husband of female do not have the right to consent. Also, no right to notice. It is an undue burden in cases where it does comply. Parental Consent/Notice – States can impose parental consent requirements for minors. Also, parents can be required to be given notice before an abortion procedure is performed on a minor. However, a judicial bypass option must be given; instead of the parent consenting, the minor has the right – without notice – to make her own decision. The judicial bypass must contain two (BOTH) elements: (1) must allow the judge the option of deciding that the minor is sufficiently mature to make her own choice (lives independent of her parents, has own job, etc); AND (2) even if the minor is insufficient to make her own decision, it is in the best interests of the minor and abortion can be allowed. The judicial bypass procedure must protect the confidentiality of the minor. If one of the two options is not there, the judicial bypass provision is unconstitutional. 44 states do have a parental consent requirement in place. Medical Emergency Exception: The Court sent a case back where the state law did not provide any medical emergency exception. Thus, a medical emergency is required. Waiver Provision/Persuasive Waiver - Whenever you have a medical operation you have to read a waiver and sign it. These provisions apply to the abortion proceeding as well. However, the waiver also tries to advocate against getting an abortion. Under Roe the case would say that if the waiver went beyond the medical risk involved then there would be. Under Casey the Court says that if the State wants to influence the decision of the woman it is not an undue burden. Wait Periods - In the Casey case the Court found a 24 hour wait period is not an undue burden. Partial Birth Abortion – The Court held that the State of Nebraska may not allow abortion just before or just after viability. The Court said this was DNX procedure (dilation extraction where fluids are sucked out of head). They said that (1) the Nebraska law was written in such an ambiguous way that it could be read as preventing the most common abortion procedure (DNE) and thus cannot be allowed; and (2) it did not provide for a medical emergency exception. This is the one area where many think Alito will say it can be banned. The federal law makes it clear that only the DNX procedure is banned, not the DNE procedure. Rationale Basis for Funding Decisions
- Most regulations in regard to abortion get an undue burden test. Except, funding decisions get a rationale basis review. Harris v. McGray & Mayer v. Roe – Funding decisions with regard to abortion decisions are entitled to a rationale basis review. This means that the gov‘t with a rationale basis for doing so may fund full term pregnancies, and may not fund abortion decisions. Russ v. Salomon – Planned Parenthood clinics that received federal funds could not hand clients information relating to abortion as a choice. This was challenged as being in violation of the free speech of doctors and nurses (rejected) and violated the female‘s right to choice. The Court said under Harris v. McGray, the level of review is rationale basis. Thus, the gov‘t does have a rationale basis for promoting full term pregnancies. State of Missouri – State law saying state hospitals couldn‘t perform abortions. Challenged as a ban on the freedom of choice. A ban on state hospital abortions was a rationale way of advancing the legitimate gov‘t interest in promoting the life of the fetus. Equal Protection Cases Rationale Basis, Equal Protection: Equal Protection v. Due Process: How does equal protection differ from DP? With an equal protection analysis you can attack whether the classification is rationale. REA Express v. NY – Law banning ads on side of vehicles in NYC is banned by the city of NY. REA is a delivery truck company challenging the constitutionality of NY banning the ads. How would you frame this as a rational basis due process issue (although it is an equal protection issue): Rationale Basis What substantive interest that is restricted . . . . What is the legitimate gov‘t end? Traffic safety; a legitimate gov‘t end. Does this ban on vehicles rationally advance that legitimate gov‘t end? Yes, it does. Back to this case: Equal Protection The court upholds this law on rationale basis due process, but then also explains the rationale basis equal protection. The case shows that equal protection is a better argument than due process How to EP and Rationale Basis differ? Well, the law does definitely advance the legitimate governmental end. But then you say that the classifications do not relate to any gov‘t end. Thus, you say that the law, as applied to you as a class, is unfairly applied. Classifications must be rationally applied. The NY law bans ads for others, not ads for companies advertising for themselves. Keep in mind that even if a law will fail a hypothetical (ie, how would the ad for a scantily clad women be any different for AA or Amway? The answer is that the ad itself may not be different dependent upon who it is for, the main difference is what type of ad will – generally speaking – be most distracting). As ads for self tend to be smaller and less distracting than ads for others; the classification is rationale. How does the Article with shapes help explain this case (pg 691) If the purpose of the law is exactly accurate (ie, ‗no distracting ads on vehicles)‘ you are good. However, some laws will be under-inclusive and will reach some distracting ads but not all distracting ads (ie, no distracting
ads for others). Laws that are over-inclusive would be laws such as ‗no ads on vehicles.‘ The law in REA failed to reach distracting ads for self, but reached non-distracting ads for others. It was both under-inclusive and over-inclusive. Williamson v. Lee Optical of OK – An eye exam had to be on file. Thus, the law encourages eye exams. This is a legitimate gov‘t interest. Here, there is an equal protection challenge to the law. The classification treats certain types of glasses different than other types of glasses. If you have prescription glasses you must have a rx; but if you only have readers, then you don‘t have to have a rx on file. If the concern is regular eye health, then why differentiate between rx and non-rx required classes. The Court held that there is no invidious discrimination thus the classification is OK. Here, the Court believes that the rationale basis due process is a better argument. (As opposed to REA Express where EP is the better argument). Mass v. Mergey – Mass law says that a police officer over 50 must retire. First, it is an EP issue: It classifies as to age classifications as to age get rationale basis review. The gov‘t is looking for a higher degree of fitness. Younger people are generally healthier than older people. Thus, age as a classifier rationally relates to the concern for fit police officers. Mergey took the exam and was found to be the most fit person in the state police department. As to him, the law does not rationally advance the concern of fitness. His equal protection claim is invalid: it does not matter that the law is inaccurate to the particular person, what matters is that the law is overall rationale. Vance v. Bradley – Fed law requires state dep‘t employees must retire at 60. However, state dep‘t employees elsewhere do not have to retire at 60. The Court said that it is possible that the federal gov‘t may have been concerned with fitness of employees abroad (and they maybe thought they had to be more fit than their domestic counterparts). If this is the case, then the age classification is OK. Are Alternatives Considered in Rational Basis? In both Mass & Vance it would have made more sense to have a fitness test, but there only has to be a rationale relation to the legitimate gov‘t end. The Court will not consider reasonable alternatives. Fed. Comm’n Comms v. Beach Comm’n – FCC provided local authorities could regulate rates cable companies could charge for basic cable. Congress said that master antenna systems were not subject to rate regulations. As long as the buildings were commonly owned and the signals didn‘t cross public walkways they were not regulated. This was challenged as being irrational by subjecting some cable systems and not others. The Court said that maybe Congress thought these systems were smaller than other systems. Heller v. Doe – State law distinguishes between the mentally retarded and mentally ill for institutionalization. Mentally ill had to be proven beyond a reasonable doubt to be insane, but mentally retarded were only required to be proven beyond a clear and convincing standard of review that they were retarded. Mental illness is much more difficult to classify whereas mental retardation is easier. Classification based on mental ability is OK b/c it is easier to
institutionalize retarded people because it is diagnosed at an earlier age. As an EP analysis, we discuss the difference between the two and how that leads to institutionalizing anyone. Rationale Basis – we focus on the classification question and whether it relates to legitimate gov‘t ends (spend a lot of time analyzing the facts and whether they relate to a legitimate gov‘t end). You are likely to find the legislation is rationale because of the level of review. Article Discussion (pg 691) Legislation is typically under-inclusive. It is typically inaccurate; but that does not make the law unconstitutional. However, some laws are over-inclusive. These laws place regulatory burdens on people who are not part of the problem. Virtually all laws are over-inclusive. But that does not make laws unconstitutional; it just means that they are over-inclusive. Central State v. AAUP – It was challenged that professors could not teach a certain number of hours. The gov‘t said that you could not classify professors. Railroad Retirement Board v. Fritz – Congress was concerned that there was not enough money to pay pensions of retiring RR employees. Congress tried to eliminate double pensions for the same job (ie, civilian company then gov‘t company). If 20+ years for RR you get both; if 10 or less you get none. If you are someone in the middle and you currently work for the RR you get it all. No current connection, you get none. The Court said that maybe current connection is a relevant factor and it is enough to satisfy the rational basis factor. The law was written by union lawyers and thus, favors those with current union memberships. Schweiker v. Wilson – Congress decided to give supplemental security income to those who were institutionalized and were receiving state funds through Medicare. However, Congress wanted to limit the money to those that had not committed a crime. Closed Classification More v. Doud – (reversed by New Orleans v. Dukes) - St of Illinois was regulating currency exchanges. It required that all currency exchanges be done by American Express because it was unlike most other currency exchanges with a lot of money. The law should have said that a currency exchange must have had $500 million in assets. It was a closed classification that was struck down b/c it only allowed ―American express.‖ (closed classification example). New Orleans v. Dukes – Closed classifications are allowed as long as there is a rational basis for it. The city council sought to protect the charm of the French Quarter by barring vendors. The law said that ‗you can‘t have any push carts unless you have been there for 8 years or more.‘ The Court said that 8 years or more – although a closed classification – is actually contributing to the charm of New Orleans. Preserving the vendors that are part of the FQ rationally relates to the reason for the law. Race Based Classifications Schroder v. West Virginia – 13th Amendment shot down slavery after the Civil War. However, that did not properly protect the slaves. Thus, the Southern States passed the 14th Amendment
saying that no state could deny equal protection. The law said that in order to serve in a jury you had to be a white, male, citizen, over 21. 4 different classifications. Gender: OK. Citizenship: OK. Age: OK. (Those three get rational basis). The Court said that the 14th Amendment had a special historical commitment to equal protection. Korematsu v. United States – Japanese Americans had to be excluded from military zones and placed in internment camps during WWII. The Court said classifications based upon race are ―inherently suspect‖. And, classifications based upon race can only be justified by a compelling state interest. Suspect classification receives strict scrutiny. (Classification issues involving fundamental rights also get strict scrutiny). Loving v. Virginia – Virginia law banned interracial marriages. Virginia couple goes to DC, gets married, and comes back. The basic defense is that they are not treating blacks and whites differently, but instead the Court is treating them the same. The Court says that the right to marry is a fundamental right and thus is subject to a higher review. Hypo: Even if you accept the fact that children of mixed-race marriages will be subject to social problems, an example of what the state could do is have race-relations programs taught. Current law: The EPC clause precludes race being used as a classifier. The 14th A says that race cannot be used as a classifier subject to the compelling state interest test. Rule: Suspect classifications must be narrowly tailored to advance a compelling state interest. The law must be narrowly tailor and there must not be any less drastic ways of advancing the gov‘ts interest. And, the Court will consider other ways of advancing the gov‘t interest. Hypo: A person cannot move into an area where they are a racial minority if there is a clear and present danger of racial violence. Even if you accept the fact that preventing racial violence is a compelling gov‘t interest is there a less drastic alternative? Yes – give police protection. Plessy v. Fergerson – Racial groups had to have their own section. Racial mixing in RR cars was banned. The term was ‗separate but equal‘ is not a violation of the EPC. There is not denial of EP. However, this case ignored the reality that the public facilities set aside for blacks were not as good as that set aside for whites. The longest line of cases culminating in this case were racially segregated graduate schools the Court was allowing separate but equal graduate schools. Palmore v. Sidoti – Judge awards custody of child to father b/c mother is living with black man. The judge put race on the record and the court said that there is a better way of making the decision. Babson v. Kentucky – Race was used in preemptory challenges. The Court said you cannot use race in preemptory challenges and if you can show a pattern of race based challenges you have violated the EPC and the 14th A.
Johnson v. California – A challenge to the unwritten practice by wardens, etc, of racially segregating initially for 60 days, but often for years. This is a compelling concern but the Court strikes it down b/c there are other, less drastic alternative ways. Not everyone coming into prison is a member of a gang. Classifications Based on Gender On test state both tests: Intermediate Test: Classifications based upon gender must ―relate to important governmental interests.‖ Craig v. Boren Modern Test: More recently the Court has used ―exceeding persuasive justification.‖ On test, state both tests and then compare the Intermediate Test is it narrowly tailored (is there another way to reach the gov‘t interests without gender classification?)? Department of Water and Power required women to pay more for the same pension benefits as men. There is a challenge that this violates Title VII. Women were charged more because women outlive men by a total of 7-9 years. If the Title VII standard is the same as the Equal Protection standard, the level of review is very close to the compelling state interest test in race based cases. If you have a citizen male and a non-citizen female who have a child together than that child is a citizen of the US only if the child takes up residence in the US before the age of 21. But, a female citizen having a child with a male non-citizen is a citizen. So, the difference is a gender based classification. Test: is there an important governmental interest? The rationale is that it is much easier to know whether a child of a female citizen is much easier to document than the child of a male citizen. The majority said that this difference was so strong that it was OK to make that classification. The Relevance of Discriminatory Impact Washington v. Davis – If you pass Test 21 you can become a police officer, if not, you cannot. This raises an Equal Protection issue because is classifies those you pass the test from those who do not. This would be a rationale basis level of review. Rational Basis Test: What is the legitimate gov‘t end? To make sure people are qualified and to find those that would have the best success as a police officer. This is a legitimate gov‘t end. What if the test shows that there is no relation between those that pass and their aptitude as a police officer? Even those Test 21 doesn‘t necessarily lead to better police officers, it is rational that it might lead to better police officers and that is all that is required. A lot of African American applications did not pass the test and thus it had a disproportionate race based impact. Neutral laws with a disproportionate racial impact will still have a rational basis level of review. What is you could show that the law is passed for the purpose of excluding persons based upon race/gender? Then the law would be invalid. The Test is: Per Se Invalid. For example, if you can show that schools are segregating based upon race the law is per se invalid.
In Washington the line the Court draws a similar line to de jure and de facto. ASK MCG. The Court is bothered with the Title VII cases. The lower court says that disproportionate racial impact should change the level of review. Title VII prevents racial discrimination by employers. However, the Court rejected the notion that the level or review will be heightened. TRW – They excluded all applicants who indicated they had ever been arrested. Arrest records disproportionately affect minorities. The Court stated that this violates Title VII. The employer must get additional information such as why were you arrested, etc. Palmer v. Thompson – the city of Jackson Miss found segregation per se invalid. Except with regard to swimming pools, which were operated with a segregated basis, which they closed down. They found that integrated public swimming pools would not make money and thus they had to close down the swimming pools. The Court said that legislative motive was not relevant and upheld the closing down of the swimming pools. McGoldrick believes that legislative motive is relevant. Race Based Exclusions OK law says that you must take a literacy test to vote if your grandfather could not read and this was during a time when no blacks would have had grandfathers who could read. Hopkins – The SF law classified on brick laundry and wood laundry. This is purportedly to stop fires. This would be a rationale basis level of review unless the percentages are such that the law appears to purposely discriminate against a race, and then it would be a per se invalid analysis. If 90% of the wood laundry mats are owned by Chinese it may still not be per se invalid because of the concern of fires. In Hopkins the city said that wooden laundry mats must have had a permit. Thus, the permit scheme is facially rationally neutral. In the permit scheme the Chinese were actually excluded. Thus, the statistical analysis is so overwhelming that the court believes that the law is an attempt at working a race-based classification. Also, two factors show the attempt at a race-based classification: (1) the statistical analysis, and (2) ASK MCG. Classifications Jefferson v. Hackney - Receiving Welfare: Elderly, Blind, and Those w/Dependent Children Elderly received 100% of need, Blind 95% of need, those with dependent children receiving aid of 60% of need. First off, this would be a rational basis level of review. The fact that they were dealing with ‗survival‘ doesn‘t matter, it is still a rational basis level of review. It is just an economic decision that must be made. Maybe the court believed that those who are blind or with children would be able to supplement their income in other ways. The elderly and blind in Texas receiving welfare were about the % of the population as a whole. However, those with dependent children were disproportionately African-American. If you can prove that those giving aid to dependent children were purposely discriminating against blacks/Hispanics then it would be per se invalid. The Texas legislature said in legislative hearings ―let them work.‖ Thus, this suggested a racial bias. However, the Court said that there wasn‘t sufficient evidence to indicate a race based classification (the ‗only‘ evidence was the statistical evidence that it had a discriminatory impact).
Village of Arlington Heights – The city had restrictive zoning which required big lots and big houses to live in Arlington Heights. This had a disproportionate racial impact. The court said that zoning laws get racial basis. Big lots rationally relates to the sense of the community, thus it rationally relates to the gov‘t purpose. The Court said that you would have to show that big house/big lots is purposely done to discriminate based on race. The factors to consider: (1) is the law passed out of racial hostility, (2) law passed w/o notes in meetings, (3) normally they do allow these projects but they disallowed it here, (4) if the city had previously been zoned to disallow integrated zoning, but was recently changed to allow it, and then the city changed their lot size requirement, it would be evidence of a race based change of law. Personnel Adm. Of Mass v. Feeney – Classification between veterans and non veterans. The rational basis test would be applied first the legitimate gov‘t end would be rewarding veterans for their service. 98% of the veterans were men. Not that there is some disproportionate impact, but there is a huge impact. The level of review would still be rationale basis. Why? The law was not passed for the purpose of discriminating against women, but for the benefit of veterans. There was no evidence that this law was based for gender based hostility. If you actually have a race based classification in the law the court will usually apply a compelling state interest test. Except for de jure classification of public schools the court is going to apply to compelling state interest test. If you have that, the Court will apply a per se invalid approach. Richard v. Ramirez - Any person who commits a crime of moral turpitude may be disenfranchised (can‘t vote). All 50 states have different rules and how you get your right to vote back. Some states have a very difficult process for getting the right to vote again. During the time, 50K blacks had their right to vote taken away. Thus, if they had been able to vote in the election of Bush v. Gore the election would not have been close. Hunter v. Underwood - The Court says that the Alabama law is unconstitutional. The discriminatory purpose of the law was found via the historical background and historical events. White supremacy and racism is the mood of the day. The law discriminates against blacks and poor whites. The Court says that it is per se invalid/unconstitutional. Columbus Board of Education v. Penick – The Columbus school system had been operated on a racially integrated basis. The issue in the case was whether the federal courts could order desegregation remedies. The Court held that the lower court had applied the wrong standard. The court found that schools had been de-segregated prior to 1964. It is not enough that they did not segregate for 30 years, they must continue to keep the schools de-segregated. Castaneda v. Partida – In a heavily Hispanic county, grand juries were selected in such a way as to under-represent Hispanic voters. There was a high % of Hispanics on juries, just not as high as the population as a whole. The Court found that the method of classification worked a racebased exclusion in violation of the 14th Amendment. The jury pool must represent the community at large. If not, it violates the 14th Amendment, not the EPC. Mobile v. Boldwin – The city of Moblie elected city commissioners on an at-large basis (3 districts voted for each city representative). 40% of the voters were black. Because of raced
based voting and because the representative had to be elected at large, no city commissioner had ever been elected. It was argued that at-large voting was to encourage raced-based voting in violation of the 14th Amendment. The Court said that the statistical evidence that no black had ever been elected wasn‘t sufficient to show that the at-large voting was passed to work a raced based classification. Brown v. Bd of Education: By unanimous opinion, this opinion reversed Plessy. Bolling v. Sharp: the argument was that the 14th A and EP Clause does not apply to the federal government. However, congress said that the 5th A applies to the feds, and the due process clause of the 5th A includes the most important provisions elsewhere in the constitution. The 5th has an EP component which is essentially the same as the EP clause of the 14th. So if you have a case in Fed court, you talk about the due process clause in the 5th. If in state court, you talk about the 14th. Brown II: A remedy that said that segregation simply had to stop would not be an adequate remedy. Court ordered a remedy to occur ―with al deliberate speed.‖ However, the southern school district tried to avoid integration and by 1968 there had been no meaningful attempt to comply with Brown. Green v. County Sch. Board: The court said that the remedy in brown didn‘t work, so now that court said ―integrate now!‖ One of the concerns in Brown was that Brown would be limited to public school systems and that Plessy would remain the law for public transportation and other public places. But in every case after Brown, the court struck down all state imposed segregation with one simple reference to Brown. Swan v. Charlotte: the federal court had the ability to use all remedies that are ―reasonable, feasible and workable.‖ However, the court said that race can be used to improve racial balance, but not in a strict kind of way. Bussing – as long as rx, feas, and workable, then bussing could be used to achieve integration. Swan emphasized that the federal courts only have the authority to remedy constitutional violations – segregation that is a result of governmental acts or de jure segregation -- segregation as a result of intentional state acts. The federal courts have no authority to remedy de facto segregation, which is the result of private choice, based on societal, historical, economic decisions. The overwhelming majority of the school systems in the north are segregated based on de facto segregation. Currently today, there is a higher degree of segregation than in 1954. So, in the 50 years since Brown, there is more segregation. Keyes v. Denver – Denver had racially neutral laws (not segregated). But in school operation, the board created segregated schools (i.e. drawing district lines to segregate school, building small
schools to keep schools segregated, allocation of resources). USSC: it was de jure b/c intentional acts even though neutral law, so DC had authority to desegregate. (St must prove it was de facto.) Columbus and Dayton Cases: They began to operate their sch. systems on a racially neutral basis after Brown for a period of 25 years, but the schools remained segregated. The court said that the schools have the affirmative duty to remedy segregation, and operating on the basis of neutrality does not remedy segregation. Milliken: City of Detroit was found to be operating a De Jure segregated school system. The court in Milliken I said that the only remedy possible is to combine the Detroit school system with the suburban school districts. The only remedy that will work is to ignore the district lines and desegregate across district lines. Pasadena v. Spangler – (furtherance of Swan) Rule: ―once the school board remedies De jure seg, fed ct loses its authority to continue to regulate the school board‖ De facto segregation is outside the scope of any governmental remedy. Once school remedies de jure seg, fed ct loses authority to re-regulate it again if seg re occurs due to de facto factors Board v. Dowel: When does the authority of the fed courts end? If the sch bd has made a good faith effort to eliminate the last vestiges of de jure segregation to the degree pracrticable, the fed lose their authority to do anything further. Any later segregation that is a product of de facto segregation is not subject to state remedy. Missouri v. Jenkins: The fed court found that the Kansas City sch. system was segregated base don de jure acts. So, the feds ordered that 450 million dollars be spent to make the public schools like first class, charter, elite private schools, that is going to be so good that it will draw people in from suburban areas into the city. However, Kansas city did not have the resources to spend 450 million and you couldn‘t get enough money out of the property taxes because of a prop 13 like constitutional law. Then the feds ordered the repeal of the const law and an increase in state property taxes. This issue went to the supreme court. The supreme court said that the feds have this authority, but should not use this authority unless no other remedy will work. So, the feds should first order the money spent and let the states work out how to get the money. Eventually, the court confronted the initial idea of the 450 million dollars, and the court said that his remedy was unconstitutional. US v. Fordici: Mississippi had a university system where there was 5 white & 3 black campuses, they failed to take steps to remedy this segregation. After Brown, Miss starts to run a race-neutral admission program and by 1992 they were mixed but still predominantly either black or white. Holding: not enough to have neutral admissions, they had an affirmative obligation, a const duty to remedy b/c student choice did not mean the state wasn‘t pushing a dual system. February 2, 2006 & February 5, 2006 (I forgot to separate these two days) GENDER BASED CLASSIFICATIONS
Cleary Case: Women were prohibited from becoming bartenders. The state interest was that they didn‘t want women to be exposed to the bar environment. But the court ignored the fact that women could have other jobs in bars such as wenches. Read v. Read: Law that classifies people to decide who can be the administrator of a minor‘s estate when the minor dies. Classifies as to relationship, and gender. As far as the relationship, the closer relationship gets to be the administrator: is it sensible that the mother be the administrator as opposed to an aunt who is closer to a child because the aunt always takes care of the child. Not in all cases. But the test is that the classifications rationally relate to a legitimate govt interest. What is the interest? Overall in most cases, the parents have the closer relationship and this nonetheless passes the rational basis test, because it is sufficient overall that parents are closer than uncles. What about the gender portion of the test: the law prefers male over females. The court said that it applied the rational basis test, but it in effect applied the test in a different way that ususal. The court said that the probate court must have a hearing to determine who would be the best administrator. This is not consistent with previous applications of the rational basis test. Frontiero v. Richardson: This case is about military benefits. Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down. What test should be applied: 4 justices apply the CST, and 4 apply the RBT. Justice Stewert breaks the tie and with applying any test says that it is unconstitutional. Craig v. Boren: An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and a licensed vendor challenged the law as discriminatory. Intermediate review is applied 1- important/significant/substatial governmental end (something more than legitimate) 2- the law must must substantially relate, or narrowly tailored. [As opposed to Compelling State Interest: Narrowly tailored to advance; whether there are less drastic ways of doing it.] The intermediate test is a balancing test: weigh the state interest against the need to use gender based classifications The end is to traffic safety, and the biggest offenders are male. See Benno‘s notes.
Nashville Gas Co: the company treated people who had to take leave bc of pregnancy different from those who took leave for other reasons. The court said that this was allowed this because benefits are treated different from burdens. But this McGoldrick says that this is confusing. Michael M. v. Superior Court: Michael M., a 17 and 1/2 year-old male, was found guilty of violating California's "statutory rape" law. The law defined unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus made men alone criminally liable for such conduct. Michael M. challenged the constitutionality of the law. Using the intermediate level of review: This was challenged that there was no substantial relationship between the gender classification that substantially relates to a govt interest. The court said that the state was justified for 2 reasons: 1 – females have a built in disincentive from having underage sex – pregnancy 2 – in proving the crime, there was a need for witnesses, and this way the female would be more likely to testify because she wont be guilty herself of having underage sex. The dissent questioned both of these interests by saying that criminalizing the act for both men and women is more effective. Roster v. Goldberg: After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court. It was conceded that it was ok to exclude women from combat. If this was conceded, and the point of the draft is to get people for combat, then this is like conceding that the law is ok. Based upon this concession, the court concluded that it did pass the intermediate test. Miss. Univ. of women v. Hogan: Joe Hogan, a registered nurse and qualified applicant, was denied admission to the Mississippi University for Women School of Nursing's baccalaureate program on the basis of sex. Created by a state statute in 1884, MUW was the oldest state-supported all-female college in the United States. J.E.B. v. Alabama
Alabama, acting on behalf of T.B. (the mother), sought paternity and child support from J.E.B.(the putative father). A jury found for T.B. In forming the jury, Alabama used its peremptory strikes to eliminate nine of the ten men who were in the jury pool; J.E.B. use a peremptory challenge to strike a tenth man in the pool. The court said that gender cannot be the basis for exercising peremptory challenges. US v. VA: Females were excluded from the state university. A new test was proposed: ―Exceedingly persuasive justification.‖ The court didn‘t feel that there was significant harm done to the state interest by allowing women to go to the university. How do you reconcile the intermediate test with the persuasive just test: courts can use both tests. February 7, 2006 Continuing with gender based classifications: The best approach is to state both tests and then apply the intermediate test. Look for important interests and look for substantial relationship –i.e. alternative ways of advancing state interest. Then if it very close with this test, then use the exceedingly persuasive justification which the court also applies. Manhardt Case: DWP required women to pay more for pension than men. This was challenged in violation to title 7. They did this bc looking at actuarial tables, women as a rule will outline men by 7 to 9 years. The court said that not all women will outlive all men. Nguyen Case: If a citizen female and a non citizen male living abroad then that child is automatically a citizen of the US. If however you have a citizen male and a non citizen female, then that child is a citizen of the US only if that child takes up residence in the US prior to the age of 21. Which one of the two tests does the court apply? It is easier to know that a child of a female citizen is actually the child of that person, and this different treatment satisfied the intermediate test or the exceedingly persuasive justification test. Classification based on pregnancy are basically classifications based on medical reasons – and this gets a rational basis test. NEUTRAL CLASSIFICATIONS AND DISCRIMINATORY PURPOSES: These are a group of cases that the law refers to as neutral, not suspect like race, gender is sometimes called quasi suspect, and so there are no fundamental rights involved and so the level of review is rational basis. But the law has a discriminatory impact based upon race or gender. How do you treat that kind of law. Washington v. Davis: After the applications of two blacks were rejected by the District of Columbia Police Department, the two men filed suit against Mayor Walter E. Washington. The men alleged that the Department's recruiting procedures, including a written personnel test,
discriminated against racial minorities. They claimed that the test was unrelated to job performance and excluded a disproportionate number of black applicants. They claim that that the law/test has a disproportionate racial impact. What level of review applies? The rational basis test applies. Neutral laws with either disproportionate racial or gender impact is the rational basis test. What if you can show that the law was passed for the very purpose/intent of excluding people based on race? What is the test? Then there is not test. The law is per se invalid. Case: You could not vote unless you passed a test, unless your grandparents voted. This is obvious that that law was passed for the very purpose of working a race based exclusion because all whites‘ grandparents voted and no blacks‘ gps voted. Case: There was a classification between brick and wood laundries. The end was to prevent fires. This would pass the rational basis test. What if 90% of the brick laundries are owned by whites and 90percent of the wood are owned by wood? Same test unless you can show that the laws were passed for the purpose of working a race based exclusion. Yick Wo Case: The law required that all wooden laundries have a permit and brick laundries did not. The court says that even though on its face, it is neutral, the statistical analysis is so stark that it looks like it was passed for the purposes of a race based exclusion. Additionally, there is an absence of a legitimate explanation for the law. Jefferson v. Hackney – state welfare statute had categories for elderly, blind, & dependent children. Elderly got 100%, blind 95%, families with depend, kids 60%. What level of review – rational basis. Unless you can prove that the intent of the law was to exclude people based on race, the rational basis test will apply. In old & blind categories, 40% are racial minorities, but in dependant kid, 80% are minority‘sdisp. impact. Also, there was a record where some congress members said ―Let them work.‖ However, the court concluded that although there was some evidence, there was not enough evidence to get the law considered per se invalid. Village of Arlington v. The Metropolitan Housing Development Corp: The Metropolitan Housing Development Corp. (MHDC) contracted with the Village of Arlington Heights ("Arlington") to build racially integrated low- and moderate-income housing. When MHDC applied for the necessary zoning permits, authorizing a switch from a single- to a multiple-family classification, Arlington's planning commission denied the request. Acting on behalf of itself and several minority members, MHDC challenged Arlington's denial as racially discriminatory. What you would have to show is that the big lot law was approved for the purpose of working race based discrimination?
DISENFRANCHISING BASED ON CRIMES OF MORAL TURPITUDE Missed a large portion of notes Bolden Case: City of Alabama elected city commissioners at an at large basis. About 40 percent of the voters in Moveil, AL were black. And because the commissioners were voted in at large, no black was ever elected. So, it was argued that using at large voting was a violation of the 15th Amendment. The court said, no it was not passed for the purpose of racial discrimination. Rogers Case: Same facts, and the end result was that no black person had ever been elected. But in 1982, the court said that the law was passed or maintained for the purpose of working a race based exclusion. AFFIRMATIVE ACTION: Gender based AA classification gets the intermediate approach Gender based AA get compelling state interest. Washington v. David approach - if you have neutral classifications, that would not normally get a higher level of review, then you are left with a rationale basis test. - the fact that the law has a gender or race based disproportion impact, it still gets a rationale basis review most likely one exception – if all of the evidence is sufficient to show discriminatory purpose, then the - law can be found to be per se invalid – very high level of proof - you are looking for evidence that the law was passed with racial or gender discrimination in mind - disproportion impact is one sign you can use to make your case, but usually not enough on its own, plus any legitimate motivation, pattern of behavior, etc Classifications on race and gender – typically tested using compelling state interest, and gender one of the intermediate tests --- and generally not the per se approach - court will assume it was passed with a legitimate motive, and not apply per se approach - exception = school cases, where separate but equal is inherently unequal modernly, separate 15th = abuse of race in voting same standard as under 14th amend. – disproportionate impact (alone) is not enough title 7, voting rights act, section 1983…..not addressed in this class. Affirmative Action Cases: [key differences between gender based and race based] Gender Based Affirmative Action –
Kahn v. Shevin - will get the intermediate test of Craig v. Boren intermediate test - treats widowers better than widows in state taxes - no indication that widowers are more destitute than widows Schlesinger v. Ballard -law treating women military personnel more favorably than men for purposes of promotion gave women officers a longer period of time to get promotions - stems from women not in combat, thus harder to gain promotions – the preference was to make up for that court says that here gender based discrimination was made to make up for gender based discrimination – and allowed it Califano v. Webster KEY case in gender discrimination treats female retirees better than males females allowed to use a more favorable formula court said reason for formula was to make up for past discrimination in the private sector making up for historical economic disparity passes the intermediate test!!! however, there are some limits in the application of that rule Orr v. Orr Alabama statute – in divorce, required men with better financial situation that wives to pay alimony, but not vice versa - apply intermediate test – substantially exceedingly persuasive justification look for important governmental interest could argue to make up for historical economic disparities test requires that the relationship part of the test – substantially related narrowly tailored? must look to reasonably adequate alternative Mississippi University for Women v. Hogan case where state discriminates against males in favor of females for the nursing program court said that they did not believe that‘s why the law was passed – that women were discrimated in the nursing field…thus failed the intermediate test making up for historical discrination, is sufficient but there must not be better alternatives and it must have been the reason for why the law was passed gender based classifactions will therefore be upheld sometimes Johnson v. Transportation Agency Santa Clara they use gender to make decisions when there is a tie.
((missed some notes)) Classifications advantaging Racial Minorities Gutter v. Bollinger Law School affirmative action at the university of Michigan Regents of California v. Bakke still in many ways the key case - here, there was a challenge to UC Davis med school affirmative action - in expanding the size of their entering class, set aside a specific number of spots for minority applicants which were admitted by a completely different process than the rest of the students. - here, a white student, was denied admission, and challenge the process 4 members of the court – think that it should get a midlevel of review and making up for historical discrimination would be sufficient Justice Powell said – the test is compelling state interest - in applying this test, he said that race can be considered as a factor, among other factors, in making decisions about who can be admitted to universities in order to achieve diversity ithe student population but it can only be one factor, and cannot be the absolute factor as in Bakke must be admitted in a single admission process in which race is a factor also, racial quotas are not allowed – but you can have goals or objective thus, violated compelling state interest test Powell – says that making up for historical racial discrimination can never pass the compelling state interest test it can pass the midlevel test (as in gender) pg. 837 – Fullilove v. Klutznick minority contractors - 10% of contracts given to minority contractors - upheld by court principally because : 1) set aside amount was only 10%, moderate use of race based preference 2) there was a waiver provision that in any public works projects, there was not enough minority owned firms, then majority persons could be hired - the program was to make up for minority contractors in the public works field (not for slavery) - related to specific race based practices in this construction industry pg. 838 – Wygant v. Jackson Board of Education remedy issue - the law required that racial minorities be hired for teaching positions to make up for past hiring decisions - the concern was that during good times, minority teachers would be hired, but during bad times they would be the first fired.
-provision to address this concern – that if there are layoffs, the same RATIO of majority/minority must be maintained - thus, a white person with more seniority would be fired before a minority person - court held that hiring decisions are DIFFERENT than firing decisions - if you fire someone based upon the race, you are placing the full burden of your affirmative action program on the shoulders of one person, and that you cannot do pg. 839 – City of Richmond v. JA Croson Company 20% set aside for minority contractors for the city court struck that down, because: 1) 20% is too high because 2) there is no showing that discrimination made 20% minorities lose their jobs 3) there was no waiver provisions –it was an absolute race based provision - in Fullilove – statute was passed by congress, and there is protection against abuse in the political process - here, passed by the city council, made up of a primarily African Americans, and thus the political process was not working as well Pg. 861 – Metro Broadcasting v. FCC - limited race based preference to determine who could get licenses - race was only one limited factor among many. - court logic – that because it was a federal law, passed by congress (majority white males), therefore - political protection – thus given an intermediate level of review - governmental interest was to give diversity in broadcasting pg. 857 Adarand Constructors v. Pena reversed Metro Broadcasting - too much engineering federal laws do not get a lower level of review test = compelling state interest pg. 875 Miller v. Johnson drawing congressional district lines (will discuss more later on)
University of Michigan Cases: Grutter v. Bollinger UM Law School upholds the consideration of race Gratz v. Bollinger strikes down racial consideration at the undergrad level achieving diversity, with a limited use of race, is allowed
law school – used race as one factor in a holistic admission process - debate over whether race was used to a too great of degree undergrad – race was used to a greater degree, essentially the determining factor in admitting students - to the degree that race counted the same weight as being a star athlete or a perfect SAT score Where we are today: some use of race to achieve diversity is allowed too much use of race as a determining factor is not allowed Next class – a more cohesive approach to affirmative action Matthew v. Lucas - Classification based upon legitimacy is upheld. Survivor benefits went to the dependent children; all illegitimate children had to prove dependency but legitimate children received money regardless. Tremel v. Gordon – Illegitimate children could inherit through intestate success only if the father married the mother and thus made the children legitimate. The intermediate test for illegitimately is closer to . . . . Test: The classification must substantially relate to permissible ends. The Court held that requiring marriage is too restrictive as to when illegitimate children could inherit. Requiring actual marriage Lolly v. Lolly – a NY law requires children to get an order of paternity through judicial decree in order to inherit from the father. The Test is: substantially related to permissible governmental ends. The permissible end is concern for fraud from intestate success from deceased fathers. Why a court order of paternity? Proof of paternity had to be within 6 years of birth. The Court said that this is not substantially related to permissible governmental ends. The suggestion is that a child has until the age of 18 to