Constitutional Law II Outline Summary by weep00p

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									Equal Protection under the 14th Amendment

The EP clause of the 14th Amend says that “no state shall make or enforce any law which shall…deny to any
person…the equal protection of the laws.” This clause was enacted shortly after the Civil War in order to
ensure that ex-slaves were treated equally as other citizens. However, its broad language has been interpreted
as generally restraining or placing limits on government’s use of classifications in other areas, such as gender,
nationality, etc. While the EP clause does not expressly limit the federal government, the DP clause of the 5th
Amend has been interpreted to place the same restrictions on the federal government as the EP clause places on
the states. One of the difficulties in interpreting the EP clause is that while it places restrictions on government
use of classification, all laws necessarily classify groups of individuals in order to create incentives and
disincentives in society. Therefore, identifying whether a class is to be protected and the level of scrutiny the
courts should apply when judging the necessity of a particular classification is crucial.

History of Equal Protection

Strauder v. West, decided by the SC in 1880, was one of the first SC decisions made about EP under the 14th
Amendment. Strauder, a black man convicted of murder by an all-white jury, appealed his conviction arguing
that a WV statute prohibiting blacks from being on juries violated the EP clause of the 14th Amend. The SC
held that exclusion of blacks from juries for no reason other than race was a violation of the EP clause because
the purpose of the clause was to assure that blacks had the same rights as whites, and that these rights should be
protected by the courts.

In Pace v. Alabama, decided in 1883, the plaintiff argued that an Alabama statute violated EP because it
proscribed a greater punishment for interracial adultery than adultery among members of the same race. The
SC upheld the statute saying it did not discriminate based on race because the punishment for the offenses were
the same for both races engaged in the criminal activity.

In the Civil Rights Cases, decided in 1883, the SC addressed the constitutionality of the Civil Rights Act of
1875. The SC created the state action doctrine that limits EP clause to actions that are sanctioned by the states.
Therefore, prohibiting blacks from staying at private inns was not protected by the EP clause of the 14th Amend.
(Justice Harlan dissented saying that inns were only quasi-public and that theatres and the like that were
licensed under the laws of the state and were therefore subject to EP under the 14th Amend.)

In Plessy v. Ferguson, decided 13 years later, the SC upheld a LA law that required separate but equal
accommodations for blacks and whites on railroads. Therefore, under Plessy the separate but equal doctrine
was considered constitutional. Once again, Justice Harlan dissented saying that any arbitrary separation by
race constituted a badge of servitude that is inconsistent with the Constitution.

In Buchanan v. Warley, decided in 1917, a white seller brought suit for specific performance against a black
purchaser on a contract for real estate. The black purchaser said that a local ordinance forbidding blacks from
purchasing the lot should be upheld while the seller argued that the ordinance was unconstitutional under the
14th Amend. The SC held that an ordinance that interfered with a black’s ability to exercise his property rights
was unconstitutional under the DP clause of the 14th Amend. Distinguishing other types of segregation laws,
the SC said that this ordinance destroyed the right of the black to acquire and dispose of his property and was
therefore a DP violation.

In Shelly v. Kraemer, decided in 1948, a state court’s enforcement of a racially restrictive contract preventing
blacks from purchasing homes from whites constituted an EP violation. While the contract itself was not
unconstitutional, the court’s enforcement of it constituted a state action that violated the 14th Amendment.

The Death of “Separate but Equal”

Brown I, decided in 1954, was a landmark case in which the SC ruled 9-0 that de jure (deliberate) racial
segregation of public schools was “inherently unequal” and was therefore prohibited under the 14th Amend EP
clause. Even if the schools were substantially equal in tangible factors, the SC reasoned that segregation
intangibly affected a child’s motivation to learn. Therefore, the SC held that the separate but equal education
was “inherently unequal” and is unconstitutional in US public education. While Brown limited its scope to
public education, the SC has consistently applied Brown in other areas declaring that all laws mandating
segregation are unconstitutional. Therefore, Brown effectively gutted the ruling of Plessy which stated that
laws requiring separation of the races in public accommodations were constitutional as long as the facilities
were equal. Some people have criticized the logic in Brown saying that it misinterpreted the 14th Amend. b/c
the Civil Rights Act of 1875 did not ban segregated schools and the 14th Amendment was meant to generalize
the requirements of this Act. Moreover, others have said that the Court’s discussion of social science data and
the feelings of inferiority and other psychological harms of segregation were unnecessary and unsound as a
legal analysis. For example, in Korematsu v. US, the SC wrote that the criteria for evaluating the
constitutionality of racial classifications “do not depend upon findings of psychic harm or social science
evidence.” Rather, the SC stated that distinctions among citizens based solely on ancestry “are by their very
nature odious to a free people…founded upon equality.”

In Brown II, the SC addressed how relief should be granted under Brown I. The SC initially permitted a gradual
integration of public schools saying that the localities had to balance between a black’s right to admission at the
earliest possible date with the need for a systematic and orderly removal of the obstacles preventing full
integration. The SC said that the localities should desegregate with “all deliberate speed.” This language has
been criticized b/c it was ambiguous and left room for schools to delay. Under Cooper v. Aaron, the SC held
that threats of violence resulting from state actions against desegregation did not justify failure to integrate.

Impact of Brown v. Board of Education

Because of the ambiguity in Brown II, some portions of the south were able to resist desegregation through the
1960s. Therefore, there were questions about what types of remedies courts could use to enforce desegregation
when local authorities failed to do so voluntarily.

In 1971, in Swann v. Charlotte-Mecklenburg Board of Education, the SC held that district courts could use
busing of students as a remedy to segregation even when the racial imbalance was a result of students’
proximity to the school. The SC also addressed the extent to which racial quotas could be used to correct
segregation, stating that awareness of racial composition was useful information but in shaping a remedy only
limited use of mathematical ratios is allowed. Therefore, each school did not need to reflect the racial
composition of the entire school system.
Similarly, in Keyes v. School District No.1, decided in 1973, the SC held that a finding that school authorities
had intentionally segregated a substantial portion of the district, there was a presumption that the entire school
district was being operated in a segregated way.

The Beginning of Heightened Scrutiny

In US v. Carolene Products, decided in 1938, the SC used a rational basis review to uphold a statute prohibiting
interstate shipment of filled milk. In footnote 4, Justice Stone stated that a more stringent standard of review
might apply to statutes “directed at particular religious or national or racial minorities.” Moreover, he argued
that stricter review may be needed for “discrete and insular minorities” because they tend to be so disfavored
that the political system won’t work requiring the courts to make extra efforts to protect them.

In Korematsu v. US, decided in 1944, a man of Japanese descent appealed his conviction for staying at his home
in violation of a military order sending Japanese Americans to camps. While the SC upheld the conviction
because of the military necessity in a time of war, it stated that race-based classifications were “immediately
suspect” and subject to a higher level of scrutiny. This was the first case that defined this concept of
heightened scrutiny and that only a narrowly tailored government interest can withstand the scrutiny. In this
case, the war created this exception whereas general racial bias would not.

In Loving v. Virginia, decided in 1967, a couple married in DC returned to VA where they were convicted under
a statute banning interracial marriage. Despite equal penalties to both the black and white violators, the SC
overturned the conviction saying that marriage was one of the “basic civil rights of man” and that to deny the
fundamental right was a violation of EP under the 14th Amend. It held that the purpose of the 14th Amendment
was to eliminate all government use of “invidious” racial discrimination. Moreover, it held that racial
classifications are subjected to the most “rigid scrutiny” that are not permissible unless they are necessary to
achieve a compelling government objective. This decision has been criticized because, just like Pace v.
Alabama, a literal interpretation of the language suggests that as long as similarly situated people are treated
similarly, a law is not unconstitutional. While it is possible that this statute might have even failed the rational
basis test because the state’s discriminatory purpose (benefiting the white race) was not a legitimate state
purpose, this was not the SC’s logic.

Disparate Impact vs. Discriminatory Intent

Yick Wo v. Hopkins, decided in 1886, was the first case in which the SC held that a race-neutral law
administered that had a disparate impact on racial minorities was a violation of the EP clause. In Yick Wo, a
city ordinance placed restrictions on operating laundry businesses in wooden buildings without a permit. Every
single Chinese-owned laundromat was denied a permit while only one non-Chinese owned business was denied
a permit. The SC said that the disparate impact was so extreme that it provided clear evidence the race-neutral
law was applied in a discriminatory way.

Nevertheless, the general rule is that laws or official actions that are racially neutral on their face that serve a
legitimate gov’t purpose do not violate EP just because they have a discriminatory impact. In Washington v.
Davis, decided in 1976, a black police officer challenged promotion and recruiting of a DC Police Dept. saying
that a qualification test discriminated against blacks because a higher percentage of blacks failed than whites.
The written test measured vocabulary, reading comprehension, etc. The SC said that disparate impact was not
enough without a showing that there was discriminatory purpose. Therefore, where there is a disproportional
racial impact, the rational basis test is used so the gov’t only has to show the law is 1) neutral on its face, and 2)
is reasonably related to a legitimate state interest. Here the legitimate interest was the need for competent
policemen.

The SC extended the rule from Washington in 1977 in Village of Arlington Heights v. Metropolitan Housing
Corp, saying that there must be an invidious discriminatory purpose to violate EP. A housing development
group (P) planned to use federal money to develop low-income tenants in Arlington Heights (D). P’s request to
rezone the area met with public criticism from residents concerned about having more blacks in Arlington
Heights and various economic impacts. The application was denied and P sued saying the decision represented
racial discrimination. The SC held that there was little evidence that D was motivated by a discriminatory
purpose b/c the area had been zoned for single-family homes for a long time. Therefore, D’s decision was
justifiable.

THE TEST: Under the Arlington Heights framework, there are basically three steps: 1) Was the racism blatant
such that the facts imply the racism?, 2) If not, is there evidence of racial motive?, 3) If there is, would the
legislature have done the same thing anyway?

In McClesky v. Kemp, decided in 1987, a black man convicted of murdering a white man provided statistical
studies showing that a black killing a white was significantly more likely to get the death penalty. He argued
that this disparate impact under a race-neutral death penalty law was a violation of his EP. The SC held that
since sentencing requires consideration of many factors specific to the case, an inference of discrimination in
his case could not be proven by general statistics. The statistics were not enough to show that the law was
applied in a discriminatory way in McKleskey’s case. Therefore, D failed to prove a discriminatory purpose
and therefore lost.

Defendants of Washington and Arlington Heights suggest that the EP clause is meant to ensure equal
opportunities, not equal outcomes. Others argue that because some racism is subconscious, and it is fairly
simple to invent some non-discriminatory purpose (e.g. economic justifications, etc.), Courts should have
leeway to prevent equal outcomes to remedy these situations.



What is Affirmative Action?

Affirmative action is when government programs are created to try to remedy past discrimination against
minority groups by providing special considerations compared with the rest of society. These special
considerations may include access to jobs, promotions or admission to universities. Some argue that this is
merely reverse discrimination that excludes more qualified individuals based on their race. It can breed
resentment in those more qualified individuals who do not receive the benefit. Moreover, it places less
qualified people into situations where they are less capable of performing decreasing overall benefit to society.

Affirmative Action in Business

Under City of Richmond v. Croson, any affirmative action program that classifies on the basis of race will be
strictly scrutinized, regardless of which race is burdened or benefited by the classification. In Croson,
Richmond required prime contractors to set aside 30% of their subcontracts to minority business enterprises.
There was no evidence of racial discrimination by Richmond or on the part of Richmond’s prime contractors.
The court held that a city cannot adopt a set-aside program that favors minority owned contractors where there
was no evidence of discrimination because the 14th Amend. EP clause limits states’ ability to use race as a
criterion for legislation. While Richmond showed that minority business received less than 1% of prime
contracts despite representing about 50% of the general population, the SC said that statistical generalizations
can’t substitute for evidence of discrimination. Moreover, when creating plans narrowly tailored to remedy
past discrimination, the SC said the government cannot use broad statistical requirements simply to minimize
associated administrative burdens of managing these plans.

The rule that all racial classifications must be narrowly tailored to further compelling state interests was
extended to the Federal Government in Adarand Constr. v. Pena. In Pena, the US DOT awarded a bid to a
subcontractor that was certified as a small business controlled by socially and economically disadvantaged
individuals. A different subcontractor, that submitted the lowest bid, sued the federal gov’t. The SC held that
strict scrutiny applies to all race-based actions and that the gov’t can only attempt to redress past discrimination
in ways that are narrowly tailored. People have criticized this decision arguing that Congress is different from
state legislatures because it is less likely to be influenced by local prejudices. However, the fact that Congress
itself was not making the decision (it was a government agency with less congressional oversight) weakens this
argument.

Affirmative Action in Schools

In Grutter v. Bollinger, decided in 2003, the SC upheld the University of Michigan Law School’s affirmative
action admissions policy. In a 5-4 decision, the Court upheld its precedent in Regents of the University of
California v. Bakke, stating that while racial quotas are unconstitutional, educational institutions can legally
use race as one of many factors in their admissions process. A quota, or other mechanical formula was not
considered to be narrowly tailored to the compelling interest of maintaining a diverse educational system. The
main argument of the dissenting opinions was that a true strict scrutiny analysis was not used because a desire
for racial diversity is not a compelling state interest that could justify the use of racial discrimination.

In Gratz v. Bollinger, heard at the same time as Grutter, the SC struck down an undergraduate admissions
policy based on points saying it was too mechanistic and therefore unconstitutional. In this case, an
undergraduate needed 100 points to be guaranteed admission. There was a 20-point bonus for blacks, Hispanics
and native Americans. The SC basically deemed the policy a quota system University of Michigan’s point-
based

In Johnson v. California, decided in 2005, the SC stated that racial classifications receive close scrutiny even
when the classifications are meant to benefit the races equally. Here, a prison used race to determine which
prisoners to pair up in cells. The SC held that the standard of review should be strict scrutiny and that this
classification was immediately suspect, even if it was intended to benefit the races.

Critics of Grutter and Gratz say that while the SC claims to use a strict scrutiny analysis, it actually is not
because the desire for racial diversity is not a compelling state interest. People argue that the SC is substituting
a political agenda for a reasoned strict scrutiny analysis. Others argue that since the EP clause was meant to
protect minorities from being treated worse than the majority, non-invidious racial classifications aimed at
helping minorities should not be subject to strict scrutiny.
Criticism of Affirmative Action: 1) opponents regard affirmative action as racial discrimination sanctioned by
the government, 2) that it is condescending and demeaning by saying that minorities aren’t capable of earning
opportunities on their own merits, 3) cultural differences regarding the importance of education cannot be
remedied by affirmative action, 4) biological differences between races may exist that impact intelligence that
cannot be remedied by affirmative action, 5) affirmative action is overinclusive because it helps members of the
minority group that may not need the help, such as rich black families, 6) it reduces the incentives of both
groups to perform optimally (qualified minorities can slack off and borderline majority candidates will think the
hard work won’t be fruitful), 7) it breeds resentment between the majority that is generally outperforming
without special treatment and the minorities that are not.

Arguments for Affirmative Action: 1) benefits society as a whole by creating a diverse culture, and that
diversity improves the quality of society, 2) the cultural or biological differences are not accurate, and are
downplaying the large impact a long-term, sustained oppression of a minority can have on its future generations
opportunities, 3) they believe that getting rid of affirmative action will make the economic divide between
whites and minorities will grow rather than lessen.



Gender Discrimination

In Reed v. Reed, decided in 1971, the SC first chose to invalidate a gender classification under the EP clause. It
held that an Idaho law preferring male relatives in its rules of survivorship violated EP. While the objective of
reducing the workload of the lower courts was legitimate, the means used to achieve that objective were found
to be arbitrary and unconstitutional under EP clause.

In Frontiero v. Richardson, decided in 1973, a woman in the Air Force sought to claim her husband as a
dependent in order to receive add’l benefits. According to an Air Force rule, men could claim wives as
dependents without any showing, but women had to show their husbands were actually dependent on them for
over ½ their support. The court held that classifications based on sex are included among those that are
inherently suspect and subject to closer scrutiny. Here, the court found that the statute involved arbitrary
discrimination that did not further a significant gov’t interest.

In Craig v. Boren, the SC further clarified the standard of review for gender classifications into what is
currently known as Intermediate Scrutiny. A state statute that prohibited the sale of beer to men under the age
of 21 and to females under 18 was struck down. The Court held that a gender-based classification must have a
substantial relation to achieving an important governmental objective. Here, administrative ease and
convenience were not sufficiently important objectives to warrant a gender classification. The court held that
the statistical evidence offered by the state that men between 18 and 20 had more DUIs, was not sufficient to
withstand the EP challenge. While the dissent argues that this new standard uses vague terms that can be
manipulated, they do not appear to be any less vague than “rationally related” to “legitimate government
purposes” or “necessary” to promote “compelling government interests.” One important difference between
rational basis and intermediate scrutiny, is that the SC looks to the actual purpose of the legislature rather than
simply deciding that a hypothetical purpose may have existed.

Gender Discrimination: Impact vs. Discriminatory Purpose
In applying intermediate scrutiny, one similarity to its application of strict scrutiny involved how it addressed
disparate impact vs. discriminatory purpose. Just like in the race-based cases, in Personnel Administrator v.
Feeney, decided in 1979, the SC held that a gender-neutral law that was not intended to discriminate against
women, was not unconstitutional because the legislative purpose was not invidious. In Personnel, a female
who had been passed up on a number of civil service positions sued the state of MA stating that a law preferring
veterans violated the EP clause because its impact was to benefit primarily men.

TWO-PART TEST: Therefore, Personnel created a two-part test: 1) is the classification really neutral (not
gender-based)?, and 2) If so, does the adverse effect on the group reflect invidious purposeful discrimination.
Since the statute benefiting Veterans was created in spite of its effect on women rather than because of its
effect, it is constitutional.

In US v. Virginia, the US argued that a military college’s policy of only admitting men was unconstitutional
under the EP clause. The SC held that public military schools cannot exclude women, even if they offer
separate women-only programs unless there is an “exceedingly persuasive justification.” Virginia reaffirms the
standard of review for gender classifications requiring they be substantially related to important gov’t
objectives. While the benefits of single sex education as an educational option may be an important objective,
the SC argued that this was not the VMI’s purpose in enacting the exclusion.



Other Classifications

Drug Users: In NYC Transit Authority v. Beazer, a rule prohibited employees of the TA from using narcotics,
and applied it to methadone, a drug used in the treatment of heroin addiction. The SC applied a rational basis
review saying that even though the rule was overinclusive because it prevented methadone users who may have
been qualified to work, the special classification was not suspect. Moreover, the state’s purpose of furthering
safety and efficiency in its public transportation was a legitimate state purpose. Therefore, the SC deferred to
the judgement of the TA.

Mentally Retarded: In City of Cleburne v. Cleburne Living Center, a city ordinance made it harder for group
homes for the mentally retarded to get zoning permission than other group living arrangements. The SC held
that mental retardation is not a suspect class. In explaining why the mentally retarded should not be deemed a
quasi-suspect class, the SC argued that the legislature needs flexibility to address the unique problems of the
mentally retarded. Moreover, despite having been subjected to lengthy historic segregation and discrimination,
the SC reasoned that it would be hard to distinguish them from other classes like the ageing and disabled.
Therefore, the SC applied a rational basis test.

Homosexuality: In Romer v. Evans, decided in 1996, the SC failed to extend heightened scrutiny to
homosexuals applying somewhat questionable logic. Here, CO passed a law that prohibited the enforcement of
any law designed to protect homosexuals from discrimination based on their sexual orientation. The CO SC
found the law impeded the fundamental right of homosexuals to participate in the political process. The US SC
claimed to apply a rational basis test, but really strayed from this approach and applied something stronger.
Under a rational basis review, the SC should have considered whether there was any plausible reason why the
law may be legitimate. Given that the law classified homosexuals specifically to make them unequal under the
law, the SC held that this was not a legitimate gov’t interest. In Scalia’s dissent, he recognized that the SC has
held that laws that criminalize homosexuality are not a crime. Bowers v. Hardick. Moreover, he argues the CO
law merely makes it impossible for homosexuals to obtain preferential treatment under the law. Therefore, if it
is rational to criminalize conduct it should be rational to deny special protections.

Aliens: In Sugarman v. Dougall (1973), an alien sued over a NY statute that excluded aliens from civil service
positions. The SC held that classifications based on alienage are subject to heightened scrutiny. While states
have an interest in limiting gov’t positions to those typically considered part of the political community, the NY
law was not narrowly tailored in its application. The SC did not hold that an alien could not be refused
employment based on non-citizenship, if there was a legitimate state interest that related to the qualifications of
the particular position. Rather, it simply prohibited a flat ban on the employment of aliens that had little
relation to any legitimate state interest. Therefore, this is a fairly narrow decision that prohibits general bans
rather than more narrow bans.

Wealth: p700-05. In the 1950s and 60s, the SC suggested that these classifications were suspect. Recently, the
SC has been more reluctant to apply strict scrutiny. The SC has hinted that this level of scrutiny may be
necessary when a state fails to provide the poor with basic necessities such as food and shelter. However, most
wealth classifications that were invalidated involved fundamental rights, such as voting and the ability to
appeal criminal convictions. In many ways, the poor seem to be a discrete and insular minority. They are
susceptible to abuse by the political process by being underrepresented and classifications could be considered a
badge of inferiority. One difficulty of making poverty a suspect class is that it is inherently relative in a way
that race and alienage are not.



Substantive Due Process

The Due Process Clauses of the 5th Amend. (applied against the federal gov’t) and the DP clause of the 14th
Amend. (applied against the states) place substantive limitations on government action. What is deemed
constitutional under the DP clause depends on whether the nature of the interest is 1) economic or social, or 2)
fundamental person rights.

Economic Regulations

In the first part of the 20th century, the SC reviewed the substance of legislation and used the DP clause to
invalidate economic and social regulations. The basic rationale was that the legislation unreasonably interfered
with liberty, property and freedom of contract. However, these were made by the personal judgments of the
Justices about whether the means used were reasonably related to a legitimate end.

In Lochner v. New York (1905), the SC held that a law limiting the number of hours bakers could work
interfered with their freedom to contract and was therefore a violation of DP under the 14th Amend. The SC
basically felt they had an obligation to protect the free-market system by reading DP as a broad protection of
liberty, including the freedom to K and other fundamental rights. Therefore, in the Lochner era, DP was
broadly interpreted to protect economic interests as well as non-economic interests like education and marriage.

The modern approach has been to defer to legislative judgments with respect to economic and social
regulations. United States v. Carolene Products (holding that the SC will not weigh the wisdom of the
legislation or substitute its own judgment for that of the legislative body). In Carolene, Congress adopted a
statute prohibiting the interstate shipment of skimmed milk that had been combined with certain oils. The effect
of this was that public health and safety measures became effectively immune from a general Due Process
attack.

In West Coast Hotel Co. v. Parrish (1937), the SC upheld a state law establishing a minimum wage for women.
The public interest in the health of women and their protection from employers is a legitimate end. The creation
of the minimum wage is neither arbitrary nor capricious.

In Williamson v. Lee Optical (1955), the SC held that it cannot strike down state laws dealing with economics
just because they are unwise. It argued that the people should protect against legislative abuse by voting. As a
result, the SC has not struck down any economic regulation by state legislation as a violation of substantive due
process since 1937.

Fundamental Rights

Under a theory of substantive DP, the SC has protected a person’s fundamental rights that are implicit in
ordered liberty. While it is sometimes difficult to identify these rights, some include the right to refuse medical
treatment, the right to travel and the right to privacy. If the right at issue is determined to be a fundamental
right, the government cannot infringe on the right unless they do so in a narrowly tailored way that serves a
compelling interest. Therefore, if the government action is over-inclusive or under-inclusive, the rule is
typically not considered to be narrowly tailored. Moreover, even if the action is not under or over-inclusive, to
be narrowly tailored there must not be a less restrictive means of achieving the same end that is equally
effective.

Parental Interests

Meyer and Pierce, are considered to be the first cases where the SC used substantive due process to protect civil
liberties. In Pierce, the SC even allowed the 14th Amend to apply to corporations, rather than just individuals.
Over the next half century, a broadened list of liberties and rights became protected including the right to marry,
the right to privacy, etc.

In Meyer v. Nebraska (1923), a teacher was convicted of teaching German to a student in violation of a statute
prohibiting teaching foreign languages to students prior to 8th grade. The SC held that the liberty protected by
the DP clause of the 14th Amendment includes protection for the right to acquire useful knowledge and the right
for parents to engage a teacher to instruct their children. The liberty protected cannot be interfered with by
legislative action that is arbitrary and lacks a reasonable relation to a state purpose. The American people
have always regarded education and acquisition of knowledge as matters of supreme importance which should
be diligently promoted. Critics of this opinion say the high population of German immigrants created a real
worry of assimilation and that teaching language would impede this assimilation. Moreover, the SC does not
draw any clear lines about how much educational regulation is too much.

In Pierce v. Society of Sisters (1925), private schools filed action challenging the constitutionality of the
Compulsory Education Act that required all normal children from 8-16 to attend public schools. The SC held
that the Act unreasonably interfered with the liberty of parents to direct the upbringing and education of their
children. The Act was considered arbitrary and therefore unconstitutional. Even though the Ps were
corporations, they could claim constitutional protection for their businesses and property.

Critics say that the SC has exalted the power of the parents over the children but that this leaves open the
possibility that some parents will choose to send their children to completely inferior private schools. However,
the state can regulate private schools to some extent. However, if the state power to regulate private schools is
too broad, it might have the practical effect of simply forcing private schools to have the exact same curriculum
as public schools. To what extent should the state have a free hand to determine how to approach diversity and
homogeneity and to what extent are these the rights of the parents?

In Troxel v. Granville (2000), grandparents were requesting the right to visit their grandchildren against the will
of the mother. The SC held that the liberty protected by the DP clause includes the right of parents to establish
a home and bring up children and to control their children’s education.



Right to Privacy

The right to privacy is not mentioned anywhere in the Constitution. However, the 4th and 5th Amendments
protect against invasion of privacy by search and seizure. Moreover, the right of personal choice in matters of
marriage and bearing and raising children have been considered so fundamental to society that they have been
afforded protection. Some consider them to be protected under the 9th Amendment which states that even
though the constitution enumerates some rights, this should “not be construed to deny or disparage others
retained by the people.” Others consider these rights protected by the “penumbra” of the Bill of Rights.

Privacy: Contraception

In Griswold v. Connecticut, decided in 1965, the SC ruled that the Constitution protected a right to privacy.
The case involved a CT law prohibiting the use of “any drug, medicinal article or instrument for the purpose of
preventing contraception.” In striking down the law, the SC held that a fundamental right to privacy is
protected by the constitution that includes the right to use contraception. The majority wrote that while the Bill
of Rights does not explicitly mention privacy, it could be found in the “penumbra” of other constitutional
protections. One of the concurring opinions claimed the holding was justified under the 9th Amendment.
Moreover, another concurring opinion held that privacy was protected under the Due Process clause of the 14th
Amendment, under a theory of substantive due process.

Therefore, the court found that an individual’s interest in using birth control is a fundamental right and that the
state cannot impair that right without satisfying strict scrutiny. Therefore, regardless of the source of the
privacy right, regulation in these areas is only justified if there is a compelling state interest and the legislation
is narrowly tailored.

In Eisenstadt v. Baird, the SC struck down a MA statute, holding that single people have the right to possess
contraceptives on the same basis as married couples. Therefore, the Court extended the privacy right created
under Griswold to any procreative sexual activity. This rejected the common law view that sexual partners had
no legally enforceable rights without a marriage contract.
Privacy: Abortion

In Roe v. Wade, decided in 1973, the SC established that most laws against abortion violate the constitutional
right to privacy. In Roe, an unmarried and pregnant P wanted to prevent enforcement of a TX criminal abortion
statute. P claimed a constitutional right to terminate her pregnancy under 1) the 14th Amendment concept of
liberty, 2) the penumbras of the Bill of Rights, and 3) the 9th Amendment. The TX DA claimed a state interest
in regulating medical procedures to ensure patient safety and in protecting prenatal life. The SC held that the
right to privacy protected under the 14th Amendment DP clause is broad enough to include abortion. The SC
held that the state’s interest in prenatal life cannot be based on the fetus’s right to live because a fetus is not a
person, in the constitutional sense. The SC held that the state’s interest in the health of the mother becomes
compelling at approximately the end of the first trimester. Only after this point can the state regulate the
abortion procedure to preserve maternal health. Moreover, the state’s interest in potential life only becomes
compelling at viability. Therefore, a state interested in protecting fetal life after viability may proscribe
abortion except when necessary to preserve the life or health of the mother. In Rehnquist’s dissent, he argues
that the right of privacy is not involved in this case because abortion is not “private” in the ordinary sense of the
word. He argues that breaking pregnancy into trimesters and outlining when it is permissible to make
restrictions represented the judicial branch legislating rather than interpreting the intent of the drafters of the
14th Amendment.

Opposition to Roe typically comes from those who viewed the Court’s decision as illegitimate because it
strayed too far from the text of the Constitution. Others simply believe that a fetus is a person and should
therefore have the same rights. Support for Roe comes from those who believe the decision was necessary to
maintain women’s personal freedom and privacy.

In Planned Parenthood of Southeastern Pa. v. Casey, decided in 1992, the SC reaffirmed the right to have an
abortion. It held that stare decisis should be adhered to because 1) Roe had not proven unworkable; 2) Roe
caused reliance by people, who organized relationships based in reliance on the availability of abortion, 3) no
new constitutional law development has made Roe outdated, 4) while technological advances have made the
time limits no longer relevant, they do not effect the central holding.

The court overturned the strict trimester formula used in Roe to weigh the woman’s interest in obtaining an
abortion against the State’s interest in the life of the fetus. It lowered the standard for analyzing restrictions of
that right from a strict scrutiny framework to an undue burden test. Under the undue burden test, a statute
would be struck down if it had the “purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.” There were four provisions of a PA statute that were being
challenged as unconstitutional: 1) the informed consent rule that required doctors toe provide women with
information about the health risks and possible complications of an abortion; 2) the spousal notification rule
that required women to give prior notice to their husbands; 3) the parental consent rule requiring minors to
receive consent from a parent or guardian prior to an abortion, and 4) a 24-hour waiting period before obtaining
an abortion. Applying the undue burden test, the court struck down the spousal notification requirement stating
that it gave too much power to husbands over their wives and would make situations of spousal abuse worse. It
upheld the 24-hour waiting period, informed consent, and parental notification requirements, holding that none
of them constituted an undue burden.

In their dissent, Rehnquist and Scalia argue that Roe was wrongly decided and should be overruled. Rehnquist
argues that the Court is rejecting all of the views of Roe including 1) that abortion is a fundamental right subject
to strict scrutiny (it replaced this with an undue burden test), 2) it rejects the trimester framework. He argues
that no portion of Roe need to be left intact. He argues that the pluralities argument on stare decisis is based on
the nation’s psyche and the fact that Roe was so intensely divisive. He argues that under this principle, once the
Court has ruled on a divisive issue, it is prevented from overruling that decision even if it was incorrect. He
argues that the undue burden test is no more workable than the trimester framework.

Critics: While this case purports to reaffirm Roe, in reality it substantially alters the majority of Roe. Moreover,
the opinion seems to say that even if the holding in Roe was incorrect, the Court should not overrule it because
of the intensively divisive nature of the case and the fear that the public would lose confidence in the legitimacy
of the Court. This logic has no place in a strictly constitutional analysis of substantive due process. Scalia was
correct in his dissent when he argued that the idea the Court would decide a case differently in order to show
that it can stand firm against public disapproval is “frightening.” Moreover, Scalia is correct in noting that the
undue burden test is as “doubtful in application as it is unprincipled in origin” and would allow district judges
to apply their own personal preferences about abortion.

In Stenberg v. Carhart, decided in 2000, the SC considered whether a Nebraska law making partial-birth
abortions illegal, unless necessary to save the mother’s life, was unconstitutional. The SC struck down the law
holding that statutes criminalizing partial birth abortions violated the US Constitution. The law prohibited any
form of abortion that “partially evacuates fetal material through the cervix into the birth canal” before killing it.
Common types of abortions included suction-aspiration where a vacuum was inserted in the uterus, D&E where
the cervix was dilated and the fetus is removed without a vacuum, and D&X which, rather than killing it in the
uterus, extracts part of the fetus first before killing it. Carhart preferred the D&X procedure because he
believed it to be safer and involve fewer risks to the woman by reducing the number of instruments used and
reducing the risk that harmful fetal tissue would be left in the uterus. The Court held the law unconstitutional
for two reasons: 1) it lacks any exception for the preservation of the mother’s health, as required by Planned
Parenthood, and 2) the statutes language is too broad. If Nebraska only intended to ban D&X abortions, the
language is too broad which would cause doctors using other methods to fear prosecution.

Critics argue that this case shows the unworkability of the undue burden standard adopted in Casey. Each judge
or Justice can apply this standard in a different way. Each of them decides whether they believe the burden
imposed by the statute is undue. This creates an inherent value judgment, as Scalia noted in his dissent, in an
area the Court does not have sufficient knowledge to make adequate decisions.

Homosexuality

In Bowers v. Hardwick, decided in 1986, the SC upheld a GA sodomy law that criminalized oral and anal sex in
private between consenting adults. This decision was overruled by the SC in Lawrence v. Texas (2003), holding
that such laws are unconstitutional. The issue in Bowers was whether homosexual sodomy was a fundamental
right protected by the DP clause of the 14th Amendment under a right of privacy. The SC held no right to
engage in consensual, same-sex sodomy was “deeply rooted in this Nation’s history and tradition” or “implicit
in the concept of ordered liberty”. Critics of this case argued that it represented the death of substantive due
process. However, it does a better job illustrating the subjective nature of substantive due process.

In Lawrence v. Texas (2003), the SC struck down a TX law prohibiting homosexual sodomy, overruling
Bowers. Lawrence held that intimate consensual sexual conduct is part of the liberty protected by substantive
due process under the 14th Amendment. While an appropriately tailored statute prohibiting homosexual
relations may survive an EP scrutiny (rational basis), the violations of individual liberty interest violate DP.
Scalia dissented arguing that the majorities approach to stare decisis stated that an erroneous decision (Bowers)
should be overruled if its foundation has been eroded by subsequent decisions and there is a “substantial and
continuing” criticism of the decision, and there has been no societal reliance on the decision. Under that
description, he argues that Roe should have been overruled. He argued that under a due process review, only
rights that are “deeply rooted in this Nation’s history and tradition” are fundamental and raise a compelling state
interest. However, the majority ignored that sodomy has been criminalized throughout American history,
regardless of whether the laws specifically targeted a single class of citizens. The SC decision has been
criticized as being results oriented, without an adequate supporting legal doctrine. They argue that Justices are
bound to uphold the Constitution and that this decision represents the creeping of personal beliefs into the
decision rather than sound legal support.

The Right to Die

In Cruzan v. Director, Missouri Dept. of Health (1990), in a 5-4 decision, the SC held that incompetent people
are not able to exercise the right to refuse medical treatment under the DP clause. In Cruzan, P got in a car
accident and was brought to the hospital in an unconscious state. She remained in a coma in an unconscious,
vegetative state. Her parents asked the hospital to terminate the artificial nutrition and hydration procedures and
the hospital refused without court approval. The SC held that a person does have a right to refuse medical
treatment, and that a state can require those that want to cease the medical treatment to provide “clear and
convincing evidence” of that person’s similar intent before permitting the action. The US constitution does
not forbid the creation of this procedural requirement, particularly given the finality of the decision. The DP
clause protects an interest in life as well as the interest in refusing medical treatment. A state has a legitimate
interest in guarding against abuses in these situations and may properly decline to make judgments about the
quality of life a particular individual may enjoy. In Scalia’s concurrence, he argued that the court should have
admitted that this is not a constitutional question. He argues that American law has always accorded the State
the power to preven suicide.

While technically the Court did not decide whether there is a fundamental right to refuse life support, many
people assume that this is the case based on the ruling.

In Washington v. Glucksberg (1997), the SC held that there was no fundamental right to assistance in
committing suicide. P was in a terminal phase of a painful illness and argued that the WA statute denied him
liberty without DP because he was unable to receive assistance in terminating his life. He requested the law be
rewritten to require two qualified physicians to confirm the patient’s diagnosis and competence, and to require
the patient make repeated requests over a specified period of time while imposing criminal penalties for
coercion. The majority refused to acknowledge this fundamental right arguing that almost every state bans
suicide and that punishment for suicide has been deeply rooted in the Nation’s history. Therefore, the right to
commit suicide is not a fundamental right and is distinguishable from the right to refuse medical treatment.
Therefore, the court applied a rational basis test and found that the state has a legitimate interest in preserving
life, protecting the medical profession, and protecting disabled and terminally ill from being devalued in
society, as well as protecting against the possibility of voluntary or involuntary euthanasia.

The Right to Travel
A citizen has a fundamental constitutional right to travel freely from state to state. State durational residence
requirements that would impair this right must be justified by a compelling state interest, at least where they
affect the citizen’s right to receive some vital government benefit or service.

In Crandall v. Nevada (1868), NV enacted a statute that required a $1 tax be charged on all people who left the
state. D, arrested for refusing to pay the tax, argued the statute was void because it violated the Constitution.
The SC held that every citizen has the right to travel. The Court argues that this is necessary to ensure that
every citizen may come to the seat of government, leverage its sea ports, etc. If a state has the right to tax a
citizen, States covering the only practicable routes from the east to the west, or from the north to the south,
would be able to prevent or seriously burden people from flowing freely through the country. This is void as
being repugnant to the Constitution and the concept of a unified government.

In Shapiro v. Thompson (1969), Ps were denied welfare benefits solely because they had not been residents of
CT for a full year prior to their applications. D argued that the waiting period should be permissible because it
1) protects the fiscal integrity of state public assistance programs, 2) a state should be able to deter indigents
who would enter the state just to get higher benefits, and 3) it serves administrative objectives. However, the
court held that discouraging the influx of poor families needing assistance was a constitutionally impermissible
burden on the right to travel. The Court held that states may not withhold welfare benefits from short-term
residents who have contributed through taxes any more than they may restrict state services such as fire and
police protection to long-term residents. Given that the classification affects the fundamental constitutional
right to travel, it is judged using the strict scrutiny standard that determines whether the statute promotes a
compelling state interest. The administrative objectives of CT do not pass this high standard.

The argument is therefore not whether people can be stopped from moving. Rather, the issue is that when states
create classifications that penalize a fundamental right, strict scrutiny is the proper standard of review.

In Saenz v. Roe (1999), the SC reaffirmed Shapiro invalidating a CA law that imposed durational residence
requirements that limited welfare benefits in the first year of residence to what the person would have received
in their state of origin. Apparently permitted by Congress, P challenged the constitutionality of the statute. The
Court held that the right to travel includes 1) the right to enter and leave another state, 2) the right to be
treated as a welcome visitor, and 3) the right to elect to become a permanent resident and be treated like other
citizens of the new state. The SC held that the P&I clause of the 14th Amendment protects the 3rd element of
the right to travel. The citizenship clause expressly equates citizenship with residence and does not allow for
degrees of citizenship based on length of residence.

The Dissent argued that the right to travel does not apply because it is distinct from the right to become a citizen
and the Ps had to stop traveling in order to become citizens of CA. Moreover, the dissent argued the majority
ignored the state’s need to assure that only bona-fide residents receive benefits. Moreover, it argued that states
are allowed to impose residence requirements prior to granting educational benefits, the right to terminate
marriage, and the right to vote in primary elections, and fails to see why welfare benefits should be any
different.
ESSAY: TEXTUALISM VS. DOCTRINALISM

The role of the Supreme Court should be to interpret the Constitution from a textualist perspective first, and
from a doctrinalist perspective second. A textualist understanding should attempt to understand exactly what
the American people meant when they ratified or amended the Constitution. The Constitution constitutes the
supreme law of the land, and therefore a disciplined, textualist approach that requires the most plausible reading
is required. This most plausible reading should be based on careful analysis of the text, the enactment history of
the text, and general structure of the text in the surrounding document.

The Constitution is Supreme

The first major reason that textualism is the most appropriate approach for Constitutional interpretation is that
the Constitution represents the will of the people. It is the supreme law of the land and requires judges and
political officers to swear allegiance to it. It is the supreme law because the people made it so. Moreover, since
people do not decide cases, a textualist interpretation ensures that when the will of the people, as embodied in
the Constitution, is in conflict with a Justice’s opinion, they must yield to the people.

Supermajoritarian

The second major argument in favor of a textualist approach to constitutional interpretation is that the
Constitution represents the supermajoritarian will of the people. Given that it is the supreme law of the land and
its influence far-reaching, it is important that its text reflect careful, thorough deliberation. The
supermajoritarian process for modifications to the Constitution require the careful deliberation of millions of
people. It has checks and balances that ensure the ratifying bodies are separate from the drafting bodies.
Moreover, there is evidence from the general acceptance that the current Amendments are “good” that this
process works to effectively represent the will of the people. These self-imposed modifications represent a
process of triage much better suited to representing the will of the people than the whimsical decisions of 9
overworked Justices. Justices often have little time to think through what they are decreeing in cases, receive
only quick oral arguments prior to voting, and have meager dialogue afterwards to hash out issues. Their
opinions are drafted by inexperienced law clerks that lack expertise and face major time constraints.

Judicial Abuse

Another reason to promote a textualist understanding of the Constitution is that it helps check against judicial
abuse. Justices that are not disciplined to understand the nature of their job is to understand and interpret the
will of the people as reflected in the text of the Constitution are more apt to base decisions on their own
personal belief systems, be they religious or political. These Justices may provide overreaching decisions that
lack judicial humility. Justices may be biased towards gaining more judicial power and against the legitimate
claims of power of the other two branches of government. This is why all branches require pledging to the
Constitution, the single unifying focal point, rather than to prior legal doctrine. Moreover, the Court has
historically been very bad about admitting error. For example, in Planned Parenthood v. Casey, the SC
proclaimed that "a decision to overrule should rest on some special reason over and above the belief that a prior
case was wrongly decided." How can this be correct? Democracy requires thoughtful deliberation that leads to a
sharp crystallization of the issues and honest self-assessment.
Faults

There are faults to a textualist approach. Pure textualism can risk instability if the legislature is too
bureaucratically burdened to keep pace with the American people. Moreover, many of the provisions being
interpreted in the Constitution were adopted a long time ago. Additionally, the Constitution itself is hard to
amend as is made clear by the relatively few Amendments that have been ratified in 200 years. Nevertheless,
these problems are not as egregious as the alternative and they have solutions. If the legislative body is unable
to keep up, reformation of the legislative body can take place in a way proscribed by the people and in
accordance with the Constitution. If the Constitution is too difficult to amend, making textualist interpretations
outdated, the people can amend the constitution and reduce those barriers to ensure the document evolves in a
more timely manner to the emerging trends of modern society.

Therefore,



   1) Pure textualism
         - Definition: understanding what the American People meant and did when we ratified and
             amended the Constitution. We must look to the legislative history to learn what were meant by
             them by the people who enacted them as the supreme law of the land. What counts as textualist
             understanding is what the American people who ratified and amended it understood it to mean.
             Textualism is disciplined, and requires the most plausible reading as fits the text, the enactment
             history, and the general structure.
         - Benefits
                  i. Constitution is a holistic document, one of themes. (e.g. separation of powers, checks
                     and balances)
                 ii. Word patterns emerge – language phrased similarly should be interpreted similarly
                iii. Supreme law – the constitution is supreme law, above and beyond statutes enacted by
                     legislatures.
                iv. Constitution is king – judges and officials must pledge allegiance to it. It is the supreme
                     law because the people made it so. Judges and government officials occupy a lower level
                     than the people. Since the people do not decide cases, this is the check to ensure that, in
                     cases of conflict, the Justices yield to the People’s pronouncements.
                 v. Amendments – textualism allows for evolution through amendments.
                     Disenfranchisement of blacks and women, etc. The whims of 9 people on the Court are
                     less democratic than a self-imposed Amendment ratified by millions of voters. When we
                     do succeed in amending the document, after extensive political conversation and
                     mobilization, aren’t we entitled to insist it be treated with the utmost respect? Shouldn’t
                     the Justices have to heed the reasons of the People whenever the issue came to the Court?
                         1. It works: every amendment has made the Constitution better. This cannot be said
                             of every SC decision.
                vi. Deliberation – democracy requires deliberation. Decisionmaking requires thoughtful
                     discussion and sharp crystallization of the issues. The gap between the drafters
                     (Congress) and the ratifiers ensures a healthy uncertainty and ensures that flawed
                     proposals are shot down.
                         1. Of SC: 1) little time to think through what they are decreeing, 2) quick oral
                            arguments, then they vote. 3) meager dialogue afterwards, 4) law clerks have no
                            expertise and face time constraints draft the opinions, 5) the court has been bad
                            about admitting error. The amount of time devoted to any given case is quite
                            modest.
                                 a. In 1992, the majority in Planned Parenthood v. Casey 184 proclaimed
                                    that "a decision to overrule should rest on some special reason over
                                    and above the belief that a prior case was wrongly decided." – how
                                    can this be right?
                         2. Life Tenure: uncertainty who will leave and win.
                         3. More minds: two heads are better than one, and millions are better than 5 or even
                            9.
          -  Cons
                  i. Pure textualism can risk instability if the legislature cannot keep up. Therefore, even the
                     best textualist understanding must sometimes yield to prior judicial or political
                     deviations.
                 ii. Hard to amend:
                iii. Many provisions at issue were adopted a long time ago.
   2) Evolutionists
         - Definition: don’t look to text, history and structure to identify meaning. They look to precedent,
             even when precedent displaces the text. They start with decisions that may have been written
             well after the constitutional texts were enacted and authored by people with political motives.
         - Judicial abuse: overraching and lack of judicial humility. No checks. Justices may be biased
             towards judicial power and against the legitimate interpretive competence of the other
             branches.Oaths require pledging allegiance to the Constitution, not to legal doctrine.
Rather than rushing to constitutionalize a trimester framework that may not be the most sensible solution
for all time, a sounder - more democratic, less hubristic - approach would have identified the issue of
women's equality and remanded abortion to a political process in which women's voices and votes would
count equally.

   1) Who should be protected by Equal Protection?
        a. Definition: understanding what the American People meant and did when we ratified and
            amended the Constitution. We must look to the legislative history to learn what were meant by
            them by the people who enacted them as the supreme law of the land. What counts as textualist
            understanding is what the American people who ratified and amended it understood it to mean.
            Textualism is disciplined, and requires the most plausible reading as fits the text, the enactment
ESSAY: EQUAL PROTECTION: WHO SHOULD BE PROTECTED?

The Problem

The EP clause of the 14th Amend says that “no state shall make or enforce any law which shall…deny to any
person…the equal protection of the laws.” This clause was enacted shortly after the Civil War in order to
ensure that ex-slaves were treated equally as other (white) citizens. However, its broad language has been
interpreted as generally restraining or placing limits on government’s use of classifications in other areas, such
as gender, nationality, etc. While the EP clause does not expressly limit the federal government, the DP clause
of the 5th Amend has been interpreted to place the same restrictions on the federal government as the EP clause
places on the states. One of the difficulties in interpreting the EP clause is that while it places restrictions on
government use of classification, all laws necessarily classify groups of individuals in order to create incentives
and disincentives in society. Therefore, identifying whether a class is to be protected and the level of scrutiny
the courts should apply when judging the necessity of a particular classification is crucial.

Who should be protected?

Identifying which classifications or groups should be protected under the EP clause, and with what level of
judicial scrutiny, is a difficult question. In addition to providing context to this discussion with some
background on the history of equal protection, I will argue that the EP clause should be used to protect those
groups that have been unconstitutionally deprived of an appropriate level of democratic influence such that a
judicial check is necessary to ensure they are treated equally under the law. The reasons why these groups are
unable to protect themselves appropriately through the political process may differ.

Early Equal Protection Decisions

The most obvious group requiring protection under the EP clause are racial minorities. The 14th Amendment
was enacted in response to the gross inequalities afforded blacks compared to whites prior to and immediately
following the Civil War. Therefore, the supermajoritarian will of the people clearly intended that racial
minorities be protected. However, the question of what level of judicial scrutiny is appropriate still remains.

Early SC decisions began to define what equal protection actually meant. For example, in one of the first cases
dealing with equal protection, Strauder v. West (1880), the SC held that exclusion of blacks from juries for no
reason other than race was a violation of EP because the purpose of the clause was to assure that blacks had the
same rights as whites, and that these rights should be protected by the courts. However, the SC did not always
interpret the clause in a way that favored integration of blacks into the general community. In Pace v. Alabama
(1883), the SC upheld a statute making interracial adultery a greater crime than regular adultery saying it did
not violate equal protection because both races were punished the same. Moreover, in the Civil Rights Cases
(1883), the SC created the state action doctrine limiting the EP clause to actions sanctioned by the state, leaving
the private sector free to discriminate based on race. And in Plessy v. Ferguson (1896), the SC upheld the
separate but equal doctrine, holding that arbitrary separation based on race did not constitute a badge of
servitude.

Therefore, despite the intention of the 14th Amendment EP clause that similarly situated people of all races be
treated equally under the law, blacks continued to be discriminated against (particularly in the South) in ways
that did not reflect the will of the supermajority post-Civil War. Given this backdrop, the SC noted in a
footnote in its US v. Carolene Products opinion, that a more stringent standard of review was necessary to
protect racial minorities. Additionally, it seemed to implicitly recognize that the broad language of the EP
clause did not seem to limit the protections afforded under the amendment to classifications based on race.
Therefore, the SC further noted that “religious or national” minorities may be classes that require stringent
judicial review under equal protection. However, it broadened the scope of the EP clause’s potential application
even further by stating that any “discrete and insular” minority may need heightened review if they tended to
be so disfavored that the political system would not work to protect them. In these cases, the opinion posited,
the courts would have to make extra efforts to protect them.

Emergence of “Strict Scrutiny”

This was the foundation from which the “heightened scrutiny” standard emerged in Korematsu (1944),
requiring that legislative classifications based on race be narrowly tailored to a government interest. This was
expanded in Loving v. Virginia, where the Court declared that it would apply “rigid scrutiny” to racial
classifications, and that they would not be permissible unless they were “necessary” to achieve a “compelling
government objective.” There are still questions about the adequacy of these standards, given that racially
neutral laws are typically upheld even if they have widely disparate impacts on racial minorities, Arlington
Heights and Washington v. Davis. Some argue that because some racism is subconscious, and it is fairly simple
to invent some non-discriminatory purpose (e.g. economic justifications, etc.) for race-neutral legislation that
has discriminatory impact, Courts should have even more leeway to prevent equal outcomes to remedy these
situations. Nevertheless, in general the Court’s recognition of heightened scrutiny has done a better job
providing blacks equal protection than previous doctrines like separate but equal.

Gender Discrimination

In addition to racial minorities, women are another group that has historically been unconstitutionally deprived
of an appropriate level of democratic influence such that a judicial check is necessary to ensure they are treated
equally under the law. The prescient footnote to Carolene Products paved the way for this group to obtain
heightened scrutiny. In the early 1970s, the SC began to acknowledge this need invalidating its first state law
discriminating on the basis of gender in Reed v. Reed (1971) followed closely by Frontiero v. Richardson
(1973). Finally, in Craig v. Boren, the SC clarified the standard of review for gender classifications into what is
currently known as Intermediate Scrutiny. Under this level of scrutiny, the Court held that a gender-based
classification must have a substantial relation to achieving an important governmental objective.

Is Protecting Discrete and Insular Minorities Enough?

The Court was correct in interpreting the EP clause as providing varying levels of judicial scrutiny depending
on what is needed to ensure a particular group is treated equally under the law. It rightly recognizes that the
need to scrutinize these classifications must be balanced against valid state interests that may require these
classifications. However, the Carolene Products claim that discrete and insular minorities are the only groups
that may need this additional level of judicial scrutiny is both under-inclusive.

First, it is under-inclusive because it fails to recognize that politically ineffective majorities can also exist. For
example, as discussed in his Law Review article, Bruce Ackerman provides a hypothetical example of a black
majority that is underrepresented in the political system by a dominating white minority. My initial argument
that any group that has been unconstitutionally deprived of an appropriate level of democratic influence should
receive a higher level of judicial scrutiny would cover this situation as well.

Second, it is under-inclusive because it fails to recognize that in many cases, judges should protect groups that
are the opposite of discrete and insular. Groups that are discrete and insular gain political advantage by being
close together enabling them to form well-organized lobby’s to press their concerns in the political process.
The transaction cost for groups that are diffuse to form comparable lobbying groups are much higher.
Moreover, in a tightly held community, a minorities non-participation in the political lobbying process will be
more apparent and there will be more pressure to participate. On the other hand, in diffuse and anonymous
groups there are larger problems of free-riding. They will not have the pressure to participate that comes from
being in a single community, and their anonymity (the fact that they can hide their classification from others)
means that they have less incentive to push their political agendas. Homosexuals are a perfect example of a
diffuse group whose individuals can, if desired, remain anonymous. As a result, they are less likely to form
influential lobbying groups to ensure they are adequately protected by the political process than discrete and
insular groups like racial minorities. Therefore, Carolene Products declaration that discrete and insular groups,
in particular, require a higher level of judicial scrutiny is not enough.

Conclusion

The EP clause should be used to protect those groups that have been unconstitutionally deprived of an
appropriate level of democratic influence such that a judicial check is necessary to ensure they are treated
equally under the law. While providing protections for discrete and insular groups like racial minorities, and
discrete/diffuse groups like gender is a step in the right direction, it is not enough. The equal protection clause
must also protect diffuse and anonymous groups such as homosexuality with a higher level of judicial scrutiny
as well.
ESSAY: AFFIRMATIVE ACTION

What is Affirmative Action?

Affirmative action is when government programs are created to try to remedy past discrimination or promote
general diversity by providing minority groups special considerations compared with the rest of society. These
special considerations may include access to jobs, promotions or admission to universities.

The Problem?

Some argue that affirmative action is merely reverse discrimination sanctioned by the government that
effectively excludes more qualified individuals based on their race and violates the majorities EP under the law.
Others argue that the country has a compelling interest in remedying past discrimination and promoting a
diverse culture that improves the quality of society. They would further argue that since the EP clause was
meant to protect minorities from being treated worse than the majority, non-invidious racial classifications
aimed at helping minorities, including affirmative action, should not be prohibited.

The issue, then, is finding the appropriate balance between these competing opinions as a guide to determine
when affirmative action is appropriate.

The Correct Balance

Wherever this balance lies, the starting point is to ensure that when affirmative action is used, it is actually
effective in achieving its dual aim of remedying past discrimination and promoting general diversity. Its
application must not be over-inclusive such that it helps members of a minority group that may not need the
help, such as rich black families at the expense of white families that may be more in need. Moreover, it must
not reduce the incentives of the minority to perform optimally by encouraging qualified minorities to slack off,
knowing they are likely to still be afforded opportunities based on their race. Conversely, affirmative action
must not be used in ways where it reduces the incentives of the outperforming majority to perform optimally by
feeling that their hard work will not be as fruitful given the special considerations given to the minority.
Additionally, affirmative action must be applied in a way that is not condescending and demeaning to minorities
by effectively saying they are incapable of earning the opportunities on their own merits. And similarly, it must
not be applied in a way that breeds resentment between the majority that may be outperforming without the
special treatment.

Given these concerns, affirmative action must be strictly scrutinized to ensure that the means used are narrowly
tailored towards achieving the specific goals of remedying past discrimination and promoting diversity. With a
few exceptions, the SC has balanced these concerns admirably.

Affirmative Action in Business

First, the SC has recognized the importance of strict scrutiny in reviewing race-based classifications used for the
purposes of affirmative action. In City of Richmond v. Croson, the SC held that any affirmative action program
that classifies on the basis of race will be strictly scrutinized, regardless of which race is burdened or benefited
by the classification. The court held that a city cannot adopt a set-aside program that favors minority owned
contractors where there was no evidence of discrimination because the 14th Amend. EP clause limits states’
ability to use race as a criterion for legislation. While Richmond showed that minority business received less
than 1% of prime contracts despite representing about 50% of the general population, the SC said that statistical
generalizations can’t substitute for evidence of discrimination. Moreover, when creating plans narrowly
tailored to remedy past discrimination, the SC said the government cannot use broad statistical requirements
simply to minimize associated administrative burdens of managing these plans.

This rule that all racial classifications must be narrowly tailored to further compelling state interests was
extended to the Federal Government in Adarand Constr. v. Pena. In Pena, the US DOT awarded a bid to a
subcontractor that was certified as a small business controlled by socially and economically disadvantaged
individuals. A different subcontractor, that submitted the lowest bid, sued the federal gov’t. The SC held that
strict scrutiny applies to all race-based actions and that the gov’t can only attempt to redress past discrimination
in ways that are narrowly tailored.

While critics may argue that Congress is different from state legislatures because it is less likely to be
influenced by local prejudices, these two decisions represent good policy. In a business context, affirmative
action is not typically about promoting general diversity for the benefit of society. It is about remedying past
discrimination. However, the Court accurately recognizes that providing special considerations to minority-
owned businesses is not narrowly tailored to achieve this goal. Therefore, the Court was correct in holding that
set-aside programs for minorities are unconstitutional when there is no evidence of discrimination. Moreover, it
is not narrowly tailored because just because a business is owned by a member of a minority class does not
mean that the proceeds and benefits of the company are going to benefit the minority group. A company made
up of entirely white employees could simply hire a minority owner as a figurehead to be able to take advantage
of the special opportunities afforded to this special classification. Additionally, this strict scrutiny ensures that
businesses are properly incented to perform optimally and does not breed resentment that underperforming
companies will be afforded better opportunities based on the race of its owners.

Therefore, the SC was right to strike down these statutes because the purpose of affirmative action in a business
setting is primarily to redress past discrimination, and affording minority-owned businesses special advantages
is not narrowly tailored to this goal.

Affirmative Action in Schools

Affirmative action in a school setting has two purposes. First, it is used to remedy past discrimination in which
minority groups were not afforded the same access to education as whites. Second, it is used to promote a
diverse culture in the education system to benefit society as a whole.

In Grutter v. Bollinger, decided in 2003, the SC upheld the University of Michigan Law School’s affirmative
action admissions policy. In a 5-4 decision, the Court upheld its precedent in Regents of the University of
California v. Bakke, stating that while racial quotas are unconstitutional, educational institutions can legally
use race as one of many factors in their admissions process. A quota, or other mechanical formula was not
considered to be narrowly tailored to the compelling interest of maintaining a diverse educational system.

In Gratz v. Bollinger, heard at the same time as Grutter, the SC struck down an undergraduate admissions
policy based on points saying it was too mechanistic and therefore unconstitutional. In this case, an
undergraduate needed 100 points to be guaranteed admission. There was a 20-point bonus for blacks, Hispanics
and native Americans. The SC basically deemed the policy a quota system.

Critics of Grutter and Gratz say that while the SC claims to use a strict scrutiny analysis, it actually is not
because the desire for racial diversity is not a compelling state interest. However, the EP clause is supposed to
be a judicial check that ensures groups that have been unconstitutionally deprived of an appropriate level of
democratic influence are treated equally under the law. Therefore, it is for the Justices to decide, as part of this
judicial check, what is a compelling state interest.

Moreover, the Supreme Court reached a good balance in these decisions. Prohibiting quotas and other
mechanical formulas is good because those systems often suffer from the over-inclusive problem. They tend to
benefit the members of the minority class that are wealthy and educated and are in less need of help. Moreover,
prohibiting quotas reduces the risk of breeding resentment amidst well-performing individuals in the majority
because it is harder to find clear examples of reverse discrimination. Furthermore, by upholding using racial
classification as one of many factors in the admissions process, it provides the schools an avenue for pursuing
the goal of creating a diverse educational experience for its students. It also provides some leeway to redress
specific instances of discrimination where they are warranted.

The Supreme Court Goes Too Far

In Johnson v. California, decided in 2005, the SC stated that racial classifications receive close scrutiny even
when the classifications are meant to benefit the races equally. Here, a prison used race to determine which
prisoners to pair up in cells due to major problems with racially-based, gang-related violence. The SC held that
the standard of review should be strict scrutiny and that this classification was immediately suspect, even if it
was intended to benefit both of the races. Although the SC remanded the case back to the lower courts, it is
likely that their decision will force California to alter its practice of segregating by race.

In situations where the racial-classification benefits both classes, a lower level of judicial scrutiny is warranted.
The state’s purpose in preventing prison violence is certainly compelling. Moreover, the goal of promoting
diversity in a prison setting is significantly less compelling than in the educational system.

Conclusion

When race-based classifications used in affirmative action benefit one race at the expense of another, they
should be strictly scrutinized and narrowly tailored towards the compelling goals of promoting diversity in
society and redressing past discrimination. When race-based classifications benefit both races equally, the SC
should use a lower level of judicial scrutiny.
Smith’s sex discrimination lawsuit - Intermediate scrutiny framework (5 points).

Since Craig v. Boren, statutes that discriminate on the basis of sex have been subject to intermediate scrutiny,
which requires that they be substantially related to the attainment of an important state interest. The prevention
of violent crime against prisoners is clearly an important state interest. So the issue of constitutionality comes
down to whether or not there is a “substantial relation” to this interest.

Here, male guards are some 45 times more likely to commit violent crimes against female inmates than female
personnel are. Superficially, this is similar to Craig, where 18-21 year old men were some 10-15 times more
likely to engage in drunk driving than women of similar age. However, there are three key differences between
the cases (in addition to the greater disproportion in Smith). First, in the case of the PRA, the interest involved -
prevention of violent crime - is much more significant than reducing drunk driving (which by no means always
leads to death or injury). Second, and more important, there do not seem to be gender-neutral ways to address
the problem, as there were in Craig (e.g. - Oklahoma could have forbidden all people under 21 from drinking
3.2% beer). Third, the prison environment is one where sex segregation has long been used to protect privacy
and minimize violence. The rule of hiring only female guards might potentially be justified on the same grounds
as that of segregating female inmates from male ones.

2.     Smith’s sex discrimination lawsuit - Administrative convenience (3 points).

The state’s argument that psychological screening of guards (which studies indicate would reduce the incidence
of male guard violence significantly) should not be required because too costly would be rejected by courts.
Under Reed and Frontiero, “administrative convenience” is not enough to justify sex discrimination.

3.     Smith’s sex discrimination lawsuit - final resolution.

However, even after psychological screening, male guards are about 25 times more likely to assault female
inmates than female ones would be. Thus, the statute is still substantially related to the achievement of an
important state interest, as discussed in #1 above.

4.     Affirmative action for African-American prison guards (7 points).

Affirmative action programs are subject to strict scrutiny under current doctrine. They therefore must be
narrowly tailored to the advancement of a compelling state interest. In Croson and Adarand, the Supreme Court
held that remedying “societal” discrimination was not a compelling state interest. Here, however, the
discrimination in question is that of the state agency (the Virginia prison system) undertaking the affirmative
action program. This could potentially be a compelling state interest. However, since the discrimination ended
some 35 years ago, some proof would have to be presented that the current disproportion between African-
American’s percentage of the state population and their share of prison guard jobs was caused at least in large
part by the earlier discriminatory policies. Reducing violence in prisons could well be a compelling interest, but
there would have to be strong proof that it would really be achieved by hiring more black guards. Finally,
increasing the number of role models for African-American inmates is unlikely to be a compelling state interest.
Superficially, this seems like the “diversity” interest upheld in Grutter, but Grutter is specifically limited to the
higher education setting.
Even if there is a compelling interest here, the program is definitely not narrowly tailored. The 10% target is a
thinly veiled quota, which is forbidden in Croson, among other cases. In addition, the absolute preference for
African-American applicants who score above a minimum score on the PGET is a much more blatant
preference than the 20 point bonus for blacks and Hispanics invalidated in Gratz.

5.     The PGET

       A. Davis issue (3 points).

The Court held in Washington v. Davis that the mere fact that a facially neutral qualification test has a highly
disparate impact on one racial group does not create an equal protection violation. Therefore, the high
proportion of African-American applicants failing the PGET cannot in itself invalidate the use of the test. The
fact that the PGET bears little or no relation to performance as a prison guard does not change the result.
“Little” relationship is still enough to pass the rational basis test that would apply. Moreover, as we discussed in
class, even a test whose actual content is unrelated to job performance might serve a useful role in combating
nepotism and cronyism.

       B. Arlington Heights issue (4 points).

Complicating the issue is the fact that there may be racist motivation behind the use of the PGET. However,
under Arlington Heights, it must be shown that such motivation was a “but for cause” of a facially neutral
statute with a disparate impact. Here, only 5 of 120 state legislators had racist motivations. Even if all five had
voted the other way, the statute would still have passed by 63-57. Moreover, it’s not clear whether even the five
racist legislators would have voted differently in the absence of a racial issue (they admitted only that their
votes were “in part” motivated by race).


6.     Sarah Thomas’ refusal of treatment (4 points).

In Cruzan and Glucksberg, the Court strongly implies, though doesn’t quite hold, that competent adults have a
substantive due process right to refuse medical treatment, even if doing so will lead to their deaths. Thomas
clearly falls into this category. Her being in prison does not change this. Very cleverly, some of you pointed out
that the situation might be complicated by her being pregnant. The Court has not addressed the interaction
between abortion rights and the right to refuse treatment. However, it seems logical (under current doctrine) that
if a woman can abort a fetus (killing it directly), she also has the right to terminate its life through the very
indirect means of refusing medical treatment that would prolong the mother’s own life long enough for the child
to be born.

7.     Alleviation of pain (2 points).

This is the one issue that almost everyone missed. In Glucksberg, 5 Supreme Court justices indicated that the
case for assisted suicide would be greatly strengthened in a situation where the patient was suffering from
extreme pain. Thomas is constantly in pain, and this surely strengthens her argument for refusing medical
treatment. To be sure, the problem might be resolved short of Thomas’ death by means of her getting the
painkillers she is asking for. However, as far as I can remember, none of those people who missed this issue
proposed that as a solution.

8.     Right to travel (3 points).

As the vast majority of you recognized, the state’s refusal to give Thomas painkillers on the ground that she had
not lived in Virginia long enough is similar to the conditioning of welfare benefits on duration of residency in
Shapiro v. Thompson. This is forbidden under the Court’s “right to travel” jurisprudence.

9.     Father notification (4 points).

In Casey, the Court struck down a husband notification requirement as an “undue burden” on the right to
abortion. Here, there is a requirement that any father be notified, even if he and the pregnant woman are not
married. Moreover, unlike the statute in Casey, this law does not contain any exceptions for situations of abuse
or any other risks. It also contains no exemptions for protecting the life or health of the mother.

10.    Viability (1 point).

Because Thomas is in the 7th month of pregnancy, the fetus is likely to be viable. Therefore the state has a
much stronger interest in protecting fetal life. However, due to the sweeping nature of the father notification
statute (see above), it is still likely to be struck down. In particular, the lack of an exception for protecting the
life and health of the mother goes against the Court’s decision in Stenberg v. Carhart, which overruled a ban on
late-term “partial birth” abortions.

								
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