Constitutional Law Outline 1 CONSTITUTIONAL BACKGROUND The abdication of authority of the rational basis test means that the legislature can pass legislation that favors special interests. Articles 2-9 are the body of the Constitution. Under the Article of federation we were trying to preserve our right to exist as a national entity. This is after the war w/Britain. Each of the 13 colonies under the legislative body were equal and each had one vote. That was the articles of federation. The Framers in the federalist papers promised that the new Congress would propose a Bill of Rights. The proposed Bill of Rights consisted of 12 amendments to the Constitution. This requires ratification by ¾ of the states. 10 of the 12 were ratified. In 19th century a court held that the Bill of Rights did not apply to the individual states. That was the law until the Civil War and the passage of the 14th Amd. (ratified in 1868). 14th Amd – “no state shall enforce or enact any laws . . . “ So the 14th was intended to protect our individual rights from the state. The 3 provisions of the 14th are (1) privileges and immunities (2) due process and (3) equal protection. The first stated is privileges and immunities which is normally the lowest on an individuals list of concerns. That was intended to be the most important provision of the Constitution and intended to protect the new citizens of the US. The court killed this provision right off b/c it was the same court that ruled the Dred Scott case allowing for treatment of slaves as chattel. The privileges and immunities clause of Article IV includes all important rights. It meant that no state may deny any important rights. But the Slaughterhouse cases, Louisiana had law that to be butcher you had to be part of guild and that was challenged by private butchers. Court said that the 14th Amd said no state may deny privileges and immunities of federal citizenship and article IV deals with state citizenship. And since Article IV protects all important rights, and 14th Amd has to protect something else, it covers rights not covered by the term important rights. This is how the court made the 14th P&I provision ineffective. Under the 14th you have (1) the right to protection (2) right to petition for grievances (3) the right to sale the navigable waters (4) the right to travel interstate [this is the most important]. The 5th Amd right to due process applies to Congress and the 14th applies to the State. Initially the due process clause protected a narrow range of things compared to its broad reach today. Eventually due process came to protect substantive interests. Focus on this protection of the due process clause. The due process clause of the 14th incorporates the right to free speech guaranteed by the 1st. All the important amendments are applied to the states by the 14th. Constitutional Law Outline 2 I. DPC a. 14th -applies DPC only to states. i. “No state shall make or enforce any law 1. which shall abridge the privileges or immunities of citizens of the US a. if you are born or naturalized in the US you are a citizen of the US. 2. nor shall any state deprive any person of life, liberty, or property without due process of law a. This section is the privileges and immunities of federal citizenship clause i. There are 2 Privileges & Immunities clauses in the constitution 4th and 14th. 1. 4th – Privileges & Immunities of state citizenship a. Requires equality between in state and out of state citizens, doesn’t create any privileges or immunities, it just requires equality of state law. i. E.g. ownership of property, enjoyment of life liberty, etc… b. Doesn’t protect equality rights – but states there should be equality. 2. 14th – Privileges & Immunities of federal citizenship a. Protects equality rights 3. nor deny to any person within its jx the equal protection of the law” b. 5th -applies DPC only to federal gov/Congress. (But other then that it is the same thing as 14th) i. the 5th does not state EPC specifically, but the court said that DPC protects EP component c. What does the DPC do? i. Imposes jurisdictional limits on courts (to establish PJ) ii. Provides the right to a fair hearing (Procedural DP) iii. Protects substantive rights or interests (Substantive DP) 1. “The right of the citizen to be free in the enjoyment of all his facilities; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion of the purposes above mentioned.” iv. No state may deny DP (Doctrine of Incorporation) 1. Bill of Rights incorporated into the DPC and made available to the states. a. E.g. 1st amendment is applicable to the states through the 14th, which has been applicable through the states by incorporation. (2nd, 7th and 8th have not been incorporates to the states) II. History: Economic Regulatory Legislation: 2 versions of the reasonable basis test (Strict Scrutiny and Normal) Constitutional Law Outline 3 a. Strict scrutiny test -unless the state had the most compelling of reasons to justify the restriction, the restriction will not be upheld-basically you need most compelling reason to uphold a restriction (economic) i. TEST: Whether the regulation is a fair, reasonable and appropriate exercise of police power or is it an unreasonable and arbitrary interference with the right of the individual to his personal liberty. ii. Lochner v NY: 1. Facts: Statute said that bakery employees could not work more than 60hrs per week and be paid for it—concern was health and safety and labor relation. There was a limit on the contracts b/w the employers and employees. a. Concern: Health and safety (spread of Tuberculosis) and imbalance of power between labor and management, the law was passed to equalize the powers between management and employees. 2. Holding: The court here used a very strict approach to the reasonable basis test. It impacted the freedom the k between employer and employee, and it did not advance any governmental interest (health, safety, morals, and general welfares of the public), and it felt that the state had alterior motives to address the imbalance of power between the employee and the employee, and that NY was trying to favor labor over business/management. The court said that this is not an acceptable purpose—the court felt that that the government has no business favoring labor over management in any set of facts (laissez faire). Therefore law is unconstitutional under the strict scrutiny test, the government now has to justify this limitation of the substantive interest by a rational basis. This case elevated the right to k. 3. The court here states “there is no reasonable ground for interfering with the liberty of persons or the right of free K... a K like this one does not involve the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” iii. Adkins v Childrens’ Hospital a. Ct strikes down law involving minimum wage for children. b. Cannot infringe on K’s unless health, safety, morals, and general welfare of the public is being hampered. c. All kinds of laws intended to protect labor against management were found unconstitutional b. Normal Version: another line of cases with other types of substantive interest (court asks is it rx) i. Weaver v Palmer 1. Facts: Co. made fabric with shoddy-filling (used clothing), but the law bans the use of shoddy as material b/c it is a health and safety hazard and they want to protect the public from fraud/deception. 2. Holding: Court struck down the state regulation b/c sterilization would eliminate danger and fraud could have been prevented with labels. Here struck down as not being reasonably related to legitimate governmental ends b/c the objective to protect health could be met otherwise. The use of Constitutional Law Outline 4 shoddy in the manufacture of the clothing was purely arbitrary and the statute violated the DPC. c. Leading up to rational basis: i. Great depression in the 30’s: court used whatever they could come up with to promote laissez faire to strike down laws that threatened management and labor ii. Roosevelt was outraged that the court was striking down legislation that he thought was needed to address the depression, so he had the idea to add a new member of supreme court for every member over 70 (court packing plan), hoping that the new justices would outvote the old ones, but one member changed his vote to uphold the laws, “the switch in time saved 9” iii. 1937: 1. Supreme court says “We were wrong for imposing our view on the entire country, and we misused our judicial power, and now we think legislation should be favored”—the court had misused its power in Lochner, however they went overboard, and when it came to cases like Weaver, they even rejected rx basis test a. Reasonable basis test: looks to see if there is a specific concern b. Rational basis: simply looks for a conceivable interest 2. So, we get the rational basis test from both the abuse of power from abuse of power in Lochner, and the rejection of rx basis. 3. Westcoast Hotel v. Parrish: Overturned Adkins, so now law controlling minimum wage for children and women is upheld (move away from freedom of K) Constitutional Law Outline 5 ROADMAP ON A TEST: (1) If there are no justifications for a higher level of review – analyze the RB test. (2) Identify it as a DPC or EPC issue: DPC -overall restriction doesn’t make sense/no gov interest advanced. EPC -overall classifications don’t make sense. Pick one. (3) State the law DPC “the law must rationally relate to leg Gov ends, EPC “the classification must rationally relate to a leg gov end”. (4) Then discuss both (1) the legitimate end & (2) whether it rationally relates to it. (5) CONCLUDE!!! Make a decision “this WOULD rationally relate, or wont rationally relate” III. Substantive Due Process & Rational Basis Test a. Under DPC, laws limiting substantive interest (desire to do things) must rationally relate to legitimate/permissive governmental ends i. 1st, find some legitimate governmental interest (find the legitimate state end) ii. 2nd, ask if the law rationally advances the interest. (Does the law rationally relate to achieving that end? “Rationally” = conceivable that it furthers the state interest) 1. Consider the actual reasons for the law AND 2. Any other conceivable legislative reason for the law b. US v Carolene Products -law: milk substitute was not allowed b/c it was said to be injurious to health and facilitates fraud on public. However, they really passed the law to protect dairy farmers industry. Footnote 4: Ct will use the RB test for most interests, but some interests will use elevated review (minority rights). i. Here the substantive interest is the desire to sell mill nut ii. Analysis: 1. Is there a legitimate governmental interest a. Yes: health and fraud 2. Does this law achieve that end? a. Yes, they have a right to be concerned and the ban on shipment seems to advance that interest, under the RB test, court’s don’t care about alternative laws (labeling or warning) c. Williamson v Lee Optical – i. Facts: the law regulates any person who is not a licensed optometrist or ophthalmologist by preventing them from fitting lenses or replacing other optical appliances, except upon written prescription from a licensed doctor. This law was passed to prevent people from leaving mom and pop stores and going to discount stores to get new glasses there. (law was passed to protect small entrepreneurs from big businesses.) ii. This law was wasteful so it was a DPC issue, (there was an attempt to challenge it as an EPC issue, but the WHOLE law itself was being challenged so stick to DPC), however the court said that since it could conceivably protect against eye disease, there was a legitimate governmental end being satisfied by the law. Thus, the legislative interest was to get people to get regular checkups (this probably was not the purpose for the law, but ct will look for any conceivable justifications) Constitutional Law Outline 6 d. Daniel v. Family Sec. Life Ins.: Claim that NC legislature was paid off in order to get law passed. Court rejected because they disregarded the true motive of the legislature. Any conceivable purpose for passing leg was sufficient. i. “A judiciary must judge by results, not by the varied factors which may have determined legislators’ votes. The court cannot undertake a search for motive in testing constitutionality.” ii. Look for a conceivable purpose OR justification for that conceivable purpose. e. Ferguson v. Skrupa: Court here does not mention the Rational Basis test i. Facts: Kansas law made it illegal for non-lawyers to manage debt adjustment. Kansas banned this to reserve the job for lawyers. ii. Does this law, violating a substantive interest, rationally relate to a legislative government end? Justice Black states that we need to defer to legislative judgment. (Allows the legislature to do whatever it wants to do). They passed the law so there must be a reason. Harlan’s concurrence discusses the rational basis test, but the majority has no hint of the test. f. State Court and Business Regulations: Rational basis test – permissive scrutiny g. Court has ruled that there are DP limits on punitive damages: i. Substantive DP prohibits a state from imposing a grossly excessive punishment on a tort feasor ii. Court identified 3 factors to determine whether the award is gross: 1. Degree of reprehensibility of the nondisclosure 2. Disparity between the harm or the potential harm suffered by and his punitive damages award. 3. Difference between this remedy and the civil penalties authorized or imposed in comparable cases. IV. Equal Protection & The Rational Basis Test a. EPC: no person shall be denied equal protection of the law (include corporations) b. Court prefers to rely on legislative judgment – and will uphold it -unless unwise, or wasteful – then the political process may correct it c. Doctrine of Rx Classification: All laws are classified. Under EPC, classifications within the law must rationally relate to legitimate governmental interests i. How do the traits relate to the mischief? OR how do the classifications relate to the government end? d. Process: i. Is there a classification ii. If yes, Is there a legitimate end? iii. If yes, are there any conceivable justifications for the classifications? e. Railway Express Agency v. NY: i. law: no ads on sides of vehicles for hire; can only have ads on own vehicles. Can advertise yourself, but not other people. Mischief: Distracting ads. ii. Leg gov end for law: prevent distracting ads from causing traffic accidents iii. Does the law banning distracting ads relate to legitimate governmental end of public safety/traffic safety? This law does advance this legitimate end, but decide whether it’s a DP or EP violation. iv. EPC is a better argument here b/c the classifications of the law relate to the governmental concern. (People must be treated equally.) Focus is not on overall law, but on classification. Constitutional Law Outline 7 1. Classifications must rationally relate to legitimate governmental ends 2. Here legit governmental end is still traffic safety, but now focused on whether classifications make sense a. But ads for others tend to be more distracting than ads for self (in terms of probabilities we would say that ads for hire are more distracting) 3. If you can address 90% of problem, do it…the overall law makes sense b/c it addresses a percentage of the problem, so apply EPC f. FCC v Beach -congress has given FCC to set rate regulations for cable industry, and they exempted satellite TV systems where buildings were commonly owned and adjacent to the extent that no streets had to be crossed. Framed as a EPC issue b/c of the exemption of the commonly owned buildings. i. Classifications – all other cable companies versus satellite system ii. Does this classification rationally relate to a legitimate/permissible governmental end? (What justifications?) fairness and rate regulation 1. To help out smaller cable companies (but the people exempted weren’t small operators!) 2. Maybe owners of buildings can negotiate special deals for customers 3. Since these are conceivable purposes, these are enough (it doesn’t have to be real – it just has to be conceivable to pas the RB test) g. Mass v Mergio -law requires that all cops get physical exam every year until the age of 50 when cops have to leave the force b/c of presumption that they are no longer fit to be a cop no matter their ability i. EP: does the classification legitimately relate to the legitimate governmental end? ii. Process: 1. Classification: based upon age therefore it is an ep issue (no fundamental rights, therefore rational basis applies) a. Legitimate governmental end: concern of inability for cops to do their jobs b/c of physical fitness. b. Classification must rationally relate to legitimate gov end: does this rationally advance the end? people get less physically fit as they get older i. Don’t look at the a better ways to fix this problem, like, giving more rigid exams to those over 50 h. Heller v. Doe -KY mentally retarded people challenged statute (1) lower burden of proof for invol. civil commitment for retards than crazies, (2) participation in proceedings by rel. of mentally ret. but not mentally ill). i. EP issue b/c the law classifies mentally ill vs. mentally retarded ii. Classification: people institutionalized b/c of mentally illness were being treated differently than people institutionalized b/c of retarded in terms of institutionalization iii. Does the Classification rationally relate to a Legitimate governmental end: legitimate governmental end is a concern for safety of retarded and ill and those around them iv. Is there some justification for the distinction? Retarded is easier to diagnose and illness is very difficult to determine (there are differences between Constitutional Law Outline 8 retardation and mental illness)→law passes RB, b/c there are different tests to prove if someone is retarded or mentally ill (example of the RB test working well) i. Central State University v. American Ass’ of University Professors -state law allowed public employees to engage in collective bargain, but the state univ prof’s could not do so on class hours (they can’t collectively bargain the number of student contact hours a particular proff has) Since the state decides, its not negotiable. i. Ct said this law classifies proff’s differently then other employees, it can be analyzed under RB test -it passes the RB test b/c the gov has a heavy interest in the education j. US R&R Retirement Board v. Fritz – Congress is concerned about the insolvency for pension plan for RR employees, b/c these employees qualified for 2 pension plans (“double dipping”); congress wants to be fair but also wants to get rid of double dipping. Gov drew a line drawn based on how recent rather than how long an employee’s railroad service had been was constitutional. < 10 no double pension; 10-19 only if you currently worked for RR, you got double, if your not a current employee you loose a portion of your pension; > 20, double pension. i. Classification; This is rational and survived EP b/c rational relation in rewarding people who are currently working. So, the less senior employees may have received more benefits then the senior people (19yrs) if the senior person is no longer an employee. Congress thought that be being currently connected, was a rational reason. k. HYPO – if worked less than 10 did not get double pension, but if more then 20, you got it all, but what if you worked more than 10, but less than 20) i. Raises an EPC issue b/c it classifies between amounts of time people work. ii. Does the classification rationally relate to the leg gov end? Yes, this plan works, still rational here b/c benefits usually allocated based on seniority, but current employment can be a factor also iii. it is rational that congress says current employment is more important than seniority, the classification is something we approve of iv. But, If the law classified by the first letter of your name, it is not rational – would fail the test. l. Schweiker v Wilson -congress would not give supplemental security to people institutionalized in prison b/c of crime, but it said you get money if institutionalized in one that qualifies for Medicaid…problem with this law is that the medicaid reference excludes a lot of people who are in private mental hospitals (people who don’t qualify for Medicaid) so not just criminals are being excluded i. EP: would not have a problem excluding criminals ii. Holding: it classifies, but classifications rationally relate to legitimate governmental concerns ( iii. Court upholds the law – it passes the rational basis test (everything passes it), and this shows that even though the court applies the RB test, it is conceivable that the justification is there -it is a serious advocation of judicial responsibility. RB test not working well here. m. Morey v Doud – Regulation of currency exchanges -requires a person to have a bond to exchange money – unless the money order was issued by AEMX. Struck statute Constitutional Law Outline 9 that imposed requirements on all issuers of money orders except AMEX. One example of striking a law down. i. Court reviews as a Closed classification b/c AMEX was only company named so subject to stricter review than rational basis. ii. RULE: Closed Classifications are viewed more strictly in applying the RB test than others. (Only co’s with assets more than 5 bill are exempted is an open class) iii. SC later overruled Morey v. Doud in Duke: overruled Morey when ct upheld statute as rational that prohibited food carts in French Quarter of New Orleans, but exempted one particular hot dog cart (considered a closed class). As long as the closed class rationally relates to the legitimate purpose (preserve charm of French Quarter) And it did. V. Equal Protection v Due Process a. Hypo: every 2 yrs limo drivers have to take a driver’s test i. EP: classifies b/c talking about limo drivers 1. Test: (1) What’s the classification? And (2) does the classification rationally relate to the legitimate governmental interest/end (does it make sense)? (2nd step same in DP analysis) 2. what about taxi drivers or drivers not for hire? ii. DP: “all drivers in general” 1. Test: (1) Is there a legitimate government end/interest? (2) Does the overall law relate to the legitimate government end/interest (does it make sense)? [ON EXAM: “If it looks mainly like the law is concerned with overall wastefulness it is a DP violation”] 2. This law is interfering with their business, and it is doing it in a wasteful way VI. Contract Clause and the public purpose balancing test a. Whenever the state retroactively impairs preexisting contractual rights, there is a Contract Clause issue and should apply the Public Purpose Balancing Test. b. Article 1, Section 10: No State shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts or grant any Title of Nobility. i. This ensures confidence in our country by others, ensuring other countries’ investment in our country b/c of our respect for debt. ii. Concern for retroactive legislation: Bill of Attainder – a law that punishes certain people, Ex Post Facto – a criminal punished more severely now, then when the act was done (i.e. expansion of SOL for sexual abuse) iii. No State may impair obligations of K: (K clause) 1. Affects the states but not the federal government 2. Limited to retroactive changes in the law: does not prevent the state from effecting prospective K obligations? 3. High level of protection to existing Ks 4. Applies only for pre-existing Ks c. Public Purpose Balancing Test: (any time there is retroactive impairment of preexisstin K rights, apply the PPB – the 3 prong approach from Energy Reserves. i. 3 Elements for Balancing Test: Constitutional Law Outline 10 1. There must be substantial impairment; has the law substantially impaired the obligation of a K? a. Look to the degree/severity of the impairment that the change affects investment based expectations: (a) If high regulation in past, further regulation should have been expected and thus is not substantial impairment. (b) Total destruction of contractual expectations is not necessary for a finding of substantial impairment. (c) Regulation that restricts parties to gains it rx expected from the contract does not necessarily constitute a substantial impairment. 2. If there is SI, it must be justified by some significant and legitimate public purpose; Look to see how important gov interests are and to what degree they hurt K rights. Does the government have a significant and legit reason for impairment? a. any broad and general society interest that can outweigh the harm to pre-existing K rights, as opposed to some limited special interest that indicates abuse of legislative power. b. Emergency situations are good facts to justify PPB, and the fact that its temporary as opposed to long term might mitigate the harshness. 3. Any changes must be based on rx conditions and is appropriate for the public purpose underlying the law: The Law Must Rx Advance the Public Purpose; Must have Rx means to achieve purpose; a. Is there a rx balance between advancing the purpose and without hurting contractual rights? Must be based on rx conditions that advance the purpose b. Rx balance b/w K rights and State interest ii. When government is canceling its own contract, it’s a “stricter review” – yet such a standard of review is basically the same as the standard of review of contracts b/w private parties. iii. Public Purpose Balancing Test theoretically a higher level of review than the rational basis test, but realistically it is the same. d. Home Building & Loan v. Blaisdell – Decided during the great depression, states tried to extend the period of time for people to cure forfeiture on their real property even though the K said if you don’t pay in two months, you are out. i. Rule: The Court will balance pre-existing K rights with an overriding public purpose. (3rd part of test: balancing K interest, satisfied b/c law was fair) ii. The language of the Constitution is not to be taken literally; “no state may retroactively impair K‘s” unless it has a valid purpose for doing so. iii. Although this is a clear impediment on K rights, Congress said no b/c overriding public purpose. 1. The great depression is the kind of emergency that justifies an exception to the K clause, even though the Пs did not lose their house, they accrued interest. e. El Passo v. Simmons (almost opposite of Blaisdell) – Rule: the K clause had no continuing purpose. Constitutional Law Outline 11 i. State sold public lands to get financing for schools. The land was sold under generous terms, K: once land is bought and paid deposit, you could cure any default any rim…once you pay the 1%, unlimited period of time to pay the rest. But, oil was found b/c property values increased. State retroactively impaired the obligations of the K by limiting the time the landholder has to cure the default. ii. Court said: Pub purpose justified the harm in interfering with the K right. iii. Dissenting: Black says court applied the wrong test -RB test. f. US Trust Co v. NJ: State had more money then it needed in bonds, decided to buy a RR with the extra $$$. Bondholders sued b/c of a ‘62 K/covenant. State passed legislation repudiating the ‘62 covenant – bondholders sued. i. Test: 1. Is there substantial impairment? Yes, (you will always find SI) 2. Justification in leg pub purpose? Need for mass transit, valid public interest, 3. Rx advance public purpose: but no connection between need and impinging K – so no valid purpose in just the restriction. g. Allied Steel – Private pension plan that did not vest until people has 25 yrs of service. St passed a law to protect non-vested pension plans that said if any Min. Co’s close, then any pension plan vests at 10 yrs. Allied closed and under st law, pensions for people who did not have pension plans vested. Ct said it’s a sub impairment under the private K that said vesting is done after 25 yrs. Ct viewed it as Sub impairment regulating only narrow group. Found retroactive impairment in violation of the K clause i. These cases show that the K Clause is still strong. After these 2 cases, the K Clause has never been used. h. Energy Reserves v. Kansas Power -1975 Intrastate gas deal: Energy Reserves → Kansas Power, natural gas from wells in Kansas, at $1.50/1000ft3 or there was a Clause allowing price increase subject to gov regulation. 1978 Congress’s Natural Gas Act: $2.08 for newly discovered natural gas; other gases at $1.63; Intrastate deals max=2.07 and allows state regulation as long as below this max. Kansas Statute=gas before 1977 no higher than 1.63 if Intrastate. P sued b/c wants 2.08 price and claims Kansas can’t interfere. D wants 1.63 price. i. Issue: is this an Substantial impairment of pre-existing K rights? ii. Court found that there was an overriding interest in protecting the public from high prices. This was a heavily regulated industry, so it’s expected. i. Exxon – severance tax law was passed where the gas co had to pay the new tax without passing it on to customers. K placed burden of any increase in taxes on the buyer. Tax raised, but law said oil co’s have to pay the increase, can’t pass it through b/c of preexisting K’s. Even though these companies had Ks with customers, who made the customers pay the taxes. i. Is this a substantial impairment of K? Ct said that it is a valid public purpose for the State to decide that energy companies are better able to pay the tax than their customers. (valid public purpose test can be easily satisfied) TAKINGS Constitutional Law Outline 12 I. 5th Amend: Private Property may not be Taken for Public use w/out Just Compensation (applies to both States & Fed) a. What is Just Compensation? fair market value prior to gov taking it. b. What is Public use? If gov wants to pay for it, its considered public. c. What is a Taking? i. A taking is a “matter of degree”→when gov goes too far. 1. “Too far” is a compensable taking; if it is just a regulation that affects substantive interest (value of property), It is analyzed under DP Rational Basis Test; but, if it regulates too much, it is a taking requiring compensation. ii. 3 Approaches to determine a Taking (1st two are best case scenarios): When you see these 2 facts: Physical invasion and taking all economic viable use -it is not a DP issue, it is a Taking issue 1. Governmental Physical Invasion (easiest way to get compensation) a. Dirt, Dust, Smell, and Noise can be a physical occupations i. Noise i.e. sick chicken case, noise from military planes flying over chicken farm during war: interferes w/chicken’s ability to produce thick-shelled eggs→graded lower eggs→affect’s farmer’s income. Ct said that even during war, compensation is required. b. Making the public use your property = physical invasion c. Check for nuisance 2. Government Takes All Economic Viable Use (very good way, but not easiest) a. Doesn’t have to take 100% of economic viable use i. Lucas v. South Carolina Coastal Council: П bought 2 lots. Beachfront Management act prohibits housing on lots. I: Is this a taking? The act prevented construction b/c of probable erosion. Tr. Ct. held for П regardless of the legitimate end, it is a taking. Zoning changes are generally not compensable, unless regulatory zoning leaves no economically viable use, compensation is required. Even though there could still be economic value, such as preventing others from using the land as a beach, there is a significant economic taking b/c it can’t be used as other lots around it which were developed prior to the act. The Court considered this a taking of all economic use. ii. if it abates a nuisance not a taking: If it prevents improper use, which could be prevented by private nuisance litigation, then it is not an economic taking. But it is not clear what “abating a nuisance” is. b. Check for nuisance it can still be a compensable taking if its not one of the two above – just do more analysis 3. Penn Central Balancing Factors a. Factors: i. Economic impact on law 1. How much was taken? Constitutional Law Outline 13 ii. Harm to Investment-based expectations iii. The nature of the gov Use/Taking 1. Considers zoning laws which are typically not compensable (b/c it is the zoning that gave the value and the zoning will remove its value) unless 100% no economic use 2. Regulations on societal ills such as minimum wage and alcohol selling don’t require compensation b. Retroactive changes can swing the balance towards a taking if the first two factors are pretty even c. Penn Central: Penn Central bought Grand Central Station and was going to build a hotel using the space above it. However the gov did not allow b/c it would destroy the architectural grandeur of the station. Penn Central sues for compensation. i. Held: no compensable taking b/c no harm to their investment-based expectation since it was bought to use as a train station, and they got the basic investment. If there is no best-case scenario, go through factors. iii. Compensation of a taking: once a court found it was a taking, the county is not required to purchase it, they can abandon the regulatory scheme. But they have to pay for the period they used it. iv. Temporary Takings = upon a compensable taking, the government changes its mind and backs out, but they must pay for the period of the taking. v. Inverse Condemnation = gov. doesn’t think they are doing wrong but turns out that they are vi. Fact Patterns: 1. Having to cut down trees b/c they were hurting orchards is not a compensable taking 2. Having city remove gravel for safety b/c zoning was changed around a rock quarry is not a compensable taking. Even though they took all economically viable use. Golblat. Reconcile with Lucas b/c this case presented a danger to the public, but Lucas had not proof of danger. 3. Condos being made available for installation of cable systems where owners would have to make space available for a line on the side of their building and 3 cubic feet on the roof. This was a taking that required compensation. Per se rule -Any physical invasion requires compensation, even if it is minimal, but then the compensation will also be minimal. Loretto v. Teleprompter Manhattan 4. Requiring a private marina to be made available to the public as open waters, requires compensation 5. Requiring posting of bond is not a compensable taking, but once the gov. wants interest, it is a compensable taking 6. When the gov. protects trade secrets, the taking of secrets and passing them to others is a compensable taking 7. If gov. prevents one from building on particular land, but there is more land near-by, it is not a taking b/c you can build on the other land. Constitutional Law Outline 14 a. This gets complicated if they claim that they are two separate tracts b/c it would mean that they took all economic viable use of the first tract 8. Temporary moratorium is not a taking, but a permanent one is. A moratorium (limited period of tie when you cant use property) is not a taking of all economically viable use. 9. State law made it hard for people to be dispossessed, city laws imposed rent control – not a physical trespass if a law … they did not emphasize the balancing approach. 10. CA said pursuant to CA constitution, Private shopping centers are State Actors and must protect freedom of speech. (Even though the Con doesn’t say that). Requiring shopping centers to allow people/protestors to pass out pamphlets isn’t a compensable taking. 11. Fed law-imposed cost of medical care for people who were once miners to pay for current miners health care. Ct held law violated 5th am, 4 said it was a compensable taking. (surprising to Mguldrich b/c regulatory takings are not considered compensable) Any time the gov takes property – consider the no taking clause. Check if there are best case scenarios (1) Physical trespass of gov. (noise, pollution, smell included) (2) Leaving of no economically viable use (Lucas: ask if the principal value of the property is gone.) OR (3) Penn Central (a) economic impact: How much was taken (b) Harm to investment based expectations (c) nature/use of taking: zoning or regulation of business are typically not compensable, retroactive liability may make it a compensable taking (not for zoning though). d. Exactions=Conditions gov imposes when a change of use of property is requested by property owner (use this test only for exactions) (Condition for a change of use) i. Laws/exactions must rationally relate to the purpose, otherwise they are compensable takings ii. Two Prong Requirement: 1. Is there an essential nexus b/w the exaction imposed by the gov. and the purpose for the exaction? ALMOST ALWAYS SATISFIED a. Conditions must rationally relate to the legitimate government end → the claimed purpose behind the exaction i. Don’t consider conceivable purposes, just the real purpose offered ii. Land use regulation does not affect a taking if it substantially advances legitimate state interests. b. The government needs to give the right/logical reason for the exaction, even if it really isn’t the main purpose for the exaction 2. Exaction must have a rough proportionality→conditions imposed must be roughly proportionate to the harm caused by the change of use (has to be some connection) a. The harm caused by the change in use (i.e. water run off that could cause flooding) cannot be outweighed by the conditions imposed on the exactions (can’t ask the property owner to build a dam in order to prevent a little run off). iii. Nollan: P has beachfront cottage that they want to re-design. CCC allows it if they give beachfront access, the CCC wanted visual access to the beach. Ct said Constitutional Law Outline 15 that the purpose of the law doesn’t make sense b/c public already had visual access. There was no nexus btwn the exaction and the purpose. 1. Holding: the condition did not advance visual access, so compensatory taking. iv. Dolan v. City of Tigard: Code req’s 15% open space on properties in Bus. Districts and req’s new developers to donate land for a public bike path to reduce traffic. P’s building is in a flood zone and business district. П wants to modify and increase her business, consistent w/zoning regulations. Permit to expand would be granted only if П gave city (1) land for bike lane and (2) Land in FS to make flood plans. 1. Had the city just req’d the dedication→taking; but it conditions the permit on the dedication 2. Application: a. Nexus: the prevention of flooding along the creek and the reduction of traffic congestion qualify as legit public purposes; i. Nexus exists b/w preventing flood and limiting development within the creek. ii. Same may be said for the bike path that reduces traffic by providing alternative means of transportation. b. Rough Proportionality: i. Additional wing impacts flood run off, so it’s fair for the gov to say that you can extend, but your adjoining land cannot be built on. This exaction is fair b/c bears a rough proportionality to a rx concern for flood run off. However, it does not mean that P should be compelled to give the gov fee simple to the property ii. Bike Path: a path offering alternative transportation might address this harm FUNDAMENTAL RIGHTS – DUE PROCESS I. Law impacting fundamental rights get the Compelling State Interest Test a. Rule: DP and EP issues involving fundamental rights get a strict scrutiny. Laws impacting fundamental rights must be necessary to advance compelling state interests. 1. EP only: CSI involved when there is a suspect classification ii. CSI Analysis: Laws or Classification must be narrowly tailored to advance some compelling state interest 1. The legit end: Is there any compelling state interest that will justify the law/classification? 2. Relationship part: is the law/classification narrowly tailored (or necessary) to advance the interest? a. You must consider Rx Adequate Alternative that doesn’t impact the Fund. Rights; if there are RAA, they must be implemented b. Fundamental Implied rights (not enumerated in Const.) include: i. Right to Privacy 1. Privacy comes from the penumbral relationship to Const. (the aura emanating from the BofR): Constitutional Law Outline 16 a. 1st Amend: right to free speech, which includes the right not to speak and be compelled to make an opinion on something→privacy/freedom of thought b. 3rd Amend: right not to quarter soldiers→privacy of home c. 4th Amend: protection from unrx searches and seizures b/c it is an invasion of expectation of privacy d. 5th Amend: protects from self-incrimination→keep private your thoughts that would self incriminate ii. Right to Vote iii. Right to Interstate Travel II. Privacy Rights (C.A.M.P.E.R.) a. Contraception; privacy exists for married and single people, but not minors i. Griswold v. Conn. 1. State made it a crime to give out information concerning birth control. Dr. gave advice to couple about contraceptive use. 2. the constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state. a. Goldberg: 9th Ame The fact that the con enumerates the bill of rights does not mean there are no others. Right to privacy is a fund right so it gets a CSI review (even if not enumerated.) ii. Carey 1. No judgment on whether minors had the right to privacy as to contraceptives but as to abortion (judicial bypass) they hold there is no right. NY law said teens couldn’t buy condoms w/out parental permission. b. Abortion i. Rule: Fundamental rights get undue burden test – cannot place undue burden on abortion decisions prior to viability (Casey). Standard: does the state’s regulation unduly burden the woman’s constitutionally protected liberty? Any regulation after viability will get the RB test. Ban on medical procedures prior to the point of viability is NOT constitutional; after point, state can ban, but must define the procedure clearly as to not be too broad. Funding Decisions get RB 1. Undue Burden = substantial obstacle to getting abortion before viability 2. Not Undue Burdens = Incidental affects, such as increased expenses or difficulties for abortions. ii. Roe v. Wade: The Const protects a woman’s right to terminate her pregnancy in its early stages. Supreme Ct used CSI test which is abandoned now b/c of Casey. At some point the State interests as to protection of health, medical standards, and pre-natal life become dominant→point of viability. Held: right to privacy includes all procreation decisions. It’s a FR and the state can’t restrict it absent State Interest. 1. Trimester system: a. 1st female’s and doctor’s choice to have abortion i. (Baby’s life is not a compelling state interest) Constitutional Law Outline 17 b. 2nd increased medical risk to female so possible that gov. might regulate. (These regulations might pass the CSI test) No CSI in unborn fetus, mom and Dr’ can decide unless regulations c. 3rd fetus is viable = can sustain life outside of mom, so gov has a CSI to protect fetus (baby’s life is a CSI, but state can never prefer baby’s life over mom’s life & health). iii. Planned Parenthood of SE Penn. v. Casey: “We are upholding in its essence “Roe v. Wade”. (1) Drops trimester system, held any restrictions up to viability couldn’t be a UB. (2) Drops CSI (Roe), uses Undue Burden test. 1. Holding: Prior to point of viability, regulations on abortions are unconstitutional if they impose an undue burden on mom’s decision. At point of viability government can regulate. iv. Abortion Funding Decisions get Rational Basis 1. Harris v. McRae: Federal Law funded for indigent persons the medical costs of full term pregnancies. But the fed funds could not be used to fund abortions of indigent persons. a. RB test used: (1) legit endencourage full term birth instead of abortion (2) Rationally relates. This Passed the RB test. 2. Hypo: law said that State hospitals not allowed to perform abortions → this is a funding decision so apply RB → passes test 3. Russ v. Sullivan: CA law – Planned Parenthood (clinic) won’t get federal funds if it gives info about abortion and. Challenged as a violation of free speech and Fund Right of Privacy. Ct said a funding decision, so RB → passes and upheld the law. v. Ways Abortions Comes up on a test: 1. Record Keeping Provisions – Ct typically upholds even if adds to cost of abortion as not being an UB & Constitutional under CSI Test. a. Exception: when requirements are so detailed and available for public use, the possibility of revealing the person who was getting the abortion is an undue burden. If records are confidential and used for State purpose, then it’s OK. 2. Regulations on the Medical Procedures Used: a. Ct has uniformly struck down any attempts to regulate types of procedures i. Regulations on abortions that are allowed (exceptions): 1. Regulations of late 2nd term abortions that might be after point of viability (3rd term). a. I.e. -Not an UB to impose more test/costs during later stages of 2nd trimester abortions to ensure that the fetus is not viable. b. I.e. -Not an UB to require the presence of a 2nd Dr to protect the fetus if it is determined to be viable. This requirement can be waived if the health of the mom is an issue. b. Stenberg v. Carhart: St law banned funding of partial birth abortions (D&X) b/c of (1) dramatic impact on attending Dr’s (2) concern that it is being used to abort 3rd term fetus. Constitutional Law Outline 18 i. Ct Banned the law b/c: (To make it constitutional – they just needed to address the 3 problems below) 1. law is so broad that it may include D&E abortions, (most common method of performing abortions) 2. The law was not limited to the regulation of 3rd term abortions – it restricted 2nd term abortions 3. The law had no exception for mom’s health ii. Rule: Ban on medical procedures prior to the point of viability is NOT constitutional. 1. After viability, state can ban, but must define the procedure clearly as to not be too broad→ Application of RB 3. Informed Consent/Waiver – they are just consent provisions that will pass the UB standard. (Trying to influence a decision isn’t a UB) a. Spousal Consent/Notice Req’mt – Does spouse/father have to give consent or notice to abortion? No, violates Undue Burden test b/c violates right to privacy. (Notice flows from consent, so if consent is unconst→notice unconst. b. Parental Consent/Notice – {Rules for notice same as consent (above) and the two req’s here} Constitutional, provided that it includes a Judicial Bypass Procedure that has 2 elements: i. Judge must have authority to determine that minor is sufficiently mature to make her own decisions; ii. If pregnant woman is not sufficiently mature, then judge must have authority to decide what is in the best interest for the pregnant woman. 4. Miscellaneous Other Rules – check if Undue Burden on mother a. 24 hour waiting period on mom: no UB vi. Undue Burden is essentially the same as the CSI but called different→same level of scrutiny. Yet two instances where different results might occur: 1. Informed Consent a. CSI: more careful in making sure b. UB: the gov can do so; just giving info about procedure which does not significantly impact the abortion decision 2. 24 hour Wait before abortion a. CSI: might strike this down but undue burden won’t. b. UB: not undue burden c. Marriage (Traditional Marriage) i. Most regulations on marriage get RB test ii. Pre Test to Testing: 1. Rx regulations on the right to marry get the RB Test a. Rx regulations = don’t significantly interfere b. I.e. i. Law banning marriage to 1st cousin ii. Marriage license laws iii. One of each sex requirement Constitutional Law Outline 19 2. UnRx regulations that place significant restrictions on traditional marriages get CSI a. Unrx = significant b. Zablocki v. Redhail – law: person couldn’t marry if he has children that are supported by state welfare. i. CSI b/c a significant and unrx restriction are fund rt’s ii. The Statute failed the relationship part of CSI b/c there were rx adequate alternatives such as garnishment/jail. iii. Ct is protecting Traditional Rights to Marry. Although the states purposes are legitimate and substantial interests, the means selected by the state to achieve the end unnecessarily impinges on the right to marry. 1. If so, regulations that encourage Same-Sex marriages will get CSI, while those that restrict them will get RB. (McGoldrick’s Speculation) iii. HYPO – law allowing gay marriages if not married to first cousin. 2 men want to marry. 1. Level of review: RB b/c not dealing w/fundamental right or suspect classification→ but the purpose of the law was to prevent the passing on of inherited common traits that lead to mental retardation, but can still pass since there could be other conceivable purposes. The more focuses test can also be applied (Romer) which will only consider the actual purpose, which would fail here. d. Procreation i. RB e. Education (private) i. Parents’ right to educate child in any language b/c this is the privacy of choice belonging to parents f. Family and Marital Relationships: i. Child Rearing Decisions (some get RB and some get CSI) 1. CSI: a. Moore v. City of East Cleveland, Ohio -law limits occupancy of a dwelling to “one family.” Family is defined. Appellant’s family violated the statute. Appellant = grandmother and her family was her son and two grandsons. (Restricting the people in the house is not a compensable taking…it is a DP issue). City’s CSI is to prevent overcrowding, traffic congestion, & undue financial burdens. i. Holding: But Purpose is not justified by lawnot a sufficient compelling interest: 1. the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car. 2. it forbids an adult brother and sister to share a household, even if both faithfully use public transportation. Constitutional Law Outline 20 ii. Fundamental Right here = right to make child-rearing decisions. b. Troxel v. Granville – Couple had a child together, they separated but father regularly took them over to the grandparents. Father died. Grandparents wanted to keep a connection w/the child. Mother didn’t want that. Law: court may grant visitation whenever visitation may serve the best interest of the child. i. Statute violates the fundamental DP right and right of mother to make the principal choice in making child-rearing decisions. 1. A right to give grandparents some rights could be constitutional, but this statute is too broad & struck down. ii. The Best Interest Standard is not enough to override a mother’s choice→ CSI test is applied and Statute fails. 2. RB: a. Its hard to know what kind of regulations on kids fall under this fundamental right. i. I.e. Right to get vaccination will be under RB, not CSI. ii. Getting a 10 year old a job in a strip joint gets RB, although a child-rearing decision. b. Michael H v. Gerald D – Child of father wanted to be involved, even though mother was involved w/another man. Law: there is an irrebuttable presumption that the husband is the father (despite scientific evidence) → gets rational basis test. i. Limiting the rights of natural father rationally related to a legit government concern of maintaining marriage. ii. Scalia’s reasoning: “Sanctity of marriage is a bigger tradition than father to see child, thus the bigger tradition trumps the smaller tradition→passes RB test g. No /Little Rights To Privacy: i. Whalen v. Roe – legal prescriptions were being diverted into black market. To track them, law required Drs submit all prescriptions on record. Claim was that this violated privacy→right to keep that info private. 1. It held that this law did not threat privacy rights b/c records were only available to the State that was trying to track criminals, and not available to any person who wants to check the records. 2. However, Ct noted that the right to privacy might include the right to keep certain info private, but never elaborated. ii. Bowers v. Hardwick: GA made sodomy a crime, defined as oral sex. П argued CSI, but since there was no attempt to argue the law was irrational, they lost. Ct applied RB b/c no fundamental right for homo’s to have consensual sodomy. GA law upheld. 1. However → Romer v. Evans, CO law, prevented homos from being protected from unfair discrimination: was struck down w/RB. 2. Lawrence v. Texas: TX law criminalizes homo acts. No conceivable justification for interfering w/homo acts. Maj: DP & RB test, struck down Constitutional Law Outline 21 statue. (O’Conner :EP & More searching RB approach should be applied). Ct said Bowers was wrong, but applied same approach! iii. Assisted Suicide → not a fundamental right 1. Cruzan: person was in irreversible comma. Law: representatives of adults had a right to remove food and water from an adult, only if they can prove by clear and convincing evidence that that is what the person in the comma would want. Considered the “right to die case”, but ct held constitutional the right to refuse nutrition and hydration. a. Holding – a person has a right to refuse medical care, but it does not mean they have a right to refuse it for other people, thus State can have a clear and convincing test if it wants to→ Statute upheld 2. Quill – the ct doesn’t support any right to die as part of a fundamental right to privacy. Thus apply RB. It is not a fundamental right protected by the DPC for Drs to prescribe high doses of pain killers to kill a terminally ill person. 3. Washington v. Glucksberg: Physician-assisted suicide not a fundamental right. Statute against aiding or causing suicide through Dr. prescribed medication was found Constitutional via RB a. Satisfied RB test: rationally related to a legitimate gov interest (pres of human life, vulnerable group, integrity of med prof) EQUAL PROTECTION CLAUSE 1. Overview a. 14th amend says: i. no state shall deny to person within its jx the equal protection of the laws ii. also, in fifth amend due process, there is an equal protection clause b. EP vs DP i. DP 1. concern for overall substantive interest 2. level of review depends on type of legislation a. rational basis b. fundamental rights→CSI ii. EP 1. concern for classifications 2. similar situations get similar treatment 3. level of review depends on type of legislation a. ordinary, social, and economic legislation→RB b. suspect classifications → higher review (CSI) i. gender→mid level ii. race/ethnic origin→CSI/strict scruitiny (suspect classification) c. fundamental rights→CSI (strict scrutiny) 2. Suspect and Quasi Suspect Classifications a. Racial/Ethnic Classifications = Suspect Classification Constitutional Law Outline 22 i. Rule: Classification based on race must be necessary to accomplish some compelling state interest/If state offers any non racist motive for what they are doing, court applies CSI test & puts heavy burden on Gov 1. Find a racial classifications 2. Find a compelling state interest (their end) 3. Relationship part: a. Is it necessary (to accomplish compelling state interest) b. Are there rx adequate alternatives? i. Are there ways to address w/out such classifications ii. If facts reveal that alternatives have been tried and failed, then such a classification might be justified as a solution ii. History 1. Stratter v. WV – law: in order to serve on a jury, person had to be a white male citizen over 21. This law classifies on 4 grounds, so it is an EP issue (race, gender, citizenship/alienage, age). a. For 3, Modern RB test was applied: i. w/gender it was only natural that this duty should be left to males; ii. w/alienage it is only natural that it be left to citizens; iii. w/age only natural that classifications should be based for 21 which was age for majority; b. But race, Ct said, there is a special historical commitment of the 14th amend to prevent race-based classifications. 2. Plessy v. Ferguson – law: passenger compartments in trains be segregated by race. Ct holds “separate but equal” is not race-based classification violation of 14th b/c promotes equality by not denying EP. 3. Loving v. Virginia – law: prevented racially mixed marriages, so couple left state to get married and came back, they were convicted. a. Holding: (1) marriage is a fundamental right, so CSI applied. And (2) preventing marriage solely on racial classifications violates EP clause. 14th Am prevents any use of race as a classifier and considers it suspect, receiving strict scrutiny, so use CSI. 4. Palmore v. Sidoti -divorce→white woman married black guy; Should custody be taken away from mother? a. Supreme Court: Race cannot be used for custody b. Tr Cts decision didn’t survive CSI b/c Tr Ct decision was based on “social realities” that would affect the child, which indirectly supports racial classifications. 5. HYPO: law said that no person may move into a residential neighborhood where they are racial minority if to do so presents the clear and present danger of violence. a. Race based classification→ yes so inherently suspect→CSI b. The fact that all races are treated equally is irrelevant c. Here, concern for preventing violence against property and person is a compelling state interest d. There are rx adequate alternatives like police preventing violence, so fails CSI Constitutional Law Outline 23 6. HYPO: gangs in prison, so warden segregates based on race. a. Classification is necessary b/c attempted all other solutions – passes CSI test iii. Where Ct has found Race/Ethnic-based Classifications: 1. Korematsu – Japs were in camps during WWII→ethnic based exclusion. a. J. Black: race based classifications are inherently suspect and can be justified only by pressing public necessity; hostility is never a justification for race based classification; apply CSI b. Here, although suspect, the war effort was a proper justification for the Japanese camps 2. Yick Wo – laundermats had to get permits to operate, but permits were only given to whites, not Chinese. Although the law didn’t say that, the operation scheme was race-based class. a. Indirect class b/c law is fair on its face, but administered in such a way that resulted in discrimination 3. Guin v. US – OK law requires literacy test for voting unless direct precedent voted. (Grandfather clause) this law was passed in 1866, after civil war, so it was facially neutral but race based b/c didn’t allow blacks to vote (intended as a race based classifier). 4. Jefferson v. Hackney – law said elderly and blind to receive more welfare than those with children (mainly Hispanic). a. RB test applied b/c although there was a disproportionate impact, not a race-based classification. iv. Public School Segregation 1. Key Principles: a. Constitutional violation: federal cts limited to correcting const violations (cannot pass legislation or create policy) i. De Jure Segregation – intentional state created segregation; no authority to remedy De facto segregation (segregation resulting from private choices) b. Remedy is limited to the wrong – can’t go beyond con violation 2. EP violations a. Brown v. Board of Educ – Segregation in schools solely on race, is unconstitutional even though the physical facilities and other tangible factors are equal. Plessy was wrong re: edu. i. Hold: Yes, Separate but equal is inherently unequal ii. Thus, all race-based classifications in public schools will be struck down w/Brown. b. Cases that used a Plessy approach at attacking segregation. i. Sweat v. Tayner: law school forced to de-segregate, so the school created a 2nd law school for the blacks. Ct held that is no considered equal, must desegregate. ii. Mclaran v. Okla: Univ of Okla put black and white students together, but in separate roped off sections. Separate tables in cafeteria. Court held separate but not equal. Constitutional Law Outline 24 c. Bolling v. Sharpe – segregation in Washington DC schools. Argument was that 14th was only for states, and not for federal gov; 5th has no express EP clause. i. Ct said EP clause is implied in 5th to the federal gov 3. Remedies for Const violations a. Brown 2 – Ct ordered de-segregation “to occur w/all deliberate speed.” End result was no change in de-segregation. b. Green – Ct orders for “de-segregation now” c. Swan v. Charlotte i. Remedies must be rx, feasible, and workable; no matter what the factual setting is. 1. Bussing is ok to remedy if rx… 2. Race can be used to cure raced based wrong ii. Fed Cts only have the authority to remedy Const violations (distinguish btwn De Facto & De Jure Seg.) 1. De Facto: segregation as a result of private choices= no constitutional violation a. I.e. different racial people move into different neighborhoods for a number of reasons. 2. De Jure: segregation that results from intentional governmental acts = Const violations. Easy to find in south, but harder in areas where gov is neutral. 3. De Jure v. De Facto 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) d. Qualified Authority to Remedy (TIME) i. At some point in future, the school board should have achieved full compliance w/Brown, and at that point the D Ct will lose power to remedy b/c once you remedy the board is no longer Constitutionally bound and the court no longer has authority (but the school boards can if they want). ii. 2 requirements: 1. good faith compliance 2. Substantial success a. Remove past vestiges to degree practicablethhe D Ct loses ability to remedy segregation… now out of judicial power but still legislative iii. Does the federal court have the authority to remedy segregation 25 years after the last segregation? Yes, the duty remains. As long as all past vestiges have not been Constitutional Law Outline 25 eliminated, the duty remains – have affirmative duty to fix de jure segregation, not just be neutral iv. Pasadena v. Spangler – (furtherance of Swan) 1. Rule: “once the school board remedies De jure seg, fed ct loses its authority to continue to regulate the school board” a. Must prove de jure seg (Swan) b. Once school remedies de jure seg, fed ct loses authority to re-regulate it again if seg re occurs due to de facto factors v. Board v. Dowel -23 years after Brown, court rules that the system is “unitary”, then 7 yrs later, they want a new system in which ½ of schools are 90-100% segregated. Still under Dist Court’s authority b/c just a finding that they are unitary is not enough-have to show that the constitutional violation was remedied the first time 1. Rule – with a showing that all past vestiges of the Const violations have been eliminated, the fed cts ability to impose de-segregation remedies would end, even if ending the power would cause a re-seg of school system. Must show: a. Board acted in good faith in working out the remedy b. Substantial success in removing past vestiges to degree practicableii now D Ct loses ability to remedy segregation… now out of judicial power but still legislative ii. once you remedy, the burden switches and it becomes a de facto segregation e. Qualified Authority to Remedy (Constitutional Violations) i. Remedy is limited to the (wrong) constitutional violation ii. Milliken v. Bradley (1974) – Detroit school system had de jure segregation of public schools. The Dis Ct said the white & upper class would flee if remedy is limited to the Detroit school system. So, he joined the Detroit system with the adjoining suburban systems (ignoring district lines) USSC: not constitutional b/c the suburban district were not segregated and not even parties to the lawsuit. Thus, Ct may only regulate Detroit system. iii. Milliken 2 – Instead of bussing, the new plan had remedial/compensatory educational programs funded partially by the state. This did not exceed scope of const remedy b/c state made funding decisions that contributed to segregation. MI state was ordered to give money to Detroit system; MI claims that Detroit at fault, Constitutional Law Outline 26 and not the state itself. Ct found state at fault also b/c of funding strategies; as such state should bear some of the costs in remedy. iv. Spallone v. US – Yonkers built all its low-income public housing in racial minority areas so the complaint was that there was intentional race-based public housing. It was ordered to build the project in a white community. However, city counsel refused, so Fed Ct imposed fines on the city counsel members in their individual capacities (1st fine the city, 2nd the individuals for each day they fail to build public housing in white areas). USSC: fed ct has such authority; all that is required is rx, feasible and workable. One way of enforcement is findings of contempt, but can’t impose them on individual members until the fines on city/gov are found ineffective. SO… Harsh Remedies cannot be used until it is shown that lesser remedies will not work. v. Missouri v. Jenkins – Dist Court found Kansas city schools were segregated due to gov’t act; remedy was $450 mill to be spent on improving so that suburbs would want to come to city schools which would remedy the situation. Problem: KC didn’t have the money, and b/c of limits on property taxes, they couldn’t raise it either. Solution: Ct orders KC to raise property taxes regardless of state limits. USSC: court should have ordered the spending of the money, and then leave it to the state to figure out how to get the money; only if state failed to raise money could the court order a raise in the property taxes. 1. Jenkins 2 – the validity of ordering $450 mill. to be spent was struck down by S.Ct., even if there is De Jure discrimination, courts only have authority to remedy Const violations; not to create elite systems of education. f. Desegregating Universities i. 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 a affirmative obligation, a const duty to remedy b/c student choice did not mean the state wasn’t pushing a dual system. b. Gender Classifications = Quasi Suspect (EP) i. Mid-level test: Classifications based on gender must substantially relate to important governmental interests 1. Consider Rx Adequate alternatives. Constitutional Law Outline 27 ii. If law promotes women’s rights, the test applied close to CSI level; If law protects women, the test applied is close to RB. (Preference for beneficial laws towards women) 1. Close to RB: payment of money for time off during pregnancy 2. Close to CSI: when pregnant, whether or not credit is given in terms of seniority while woman is absent a. Even though Constitutionally, the pregnancy is a medical matter, federal statutes now make them a gender classification. 3. Micheal M – CA law: crime for man to have sex w/female under 18 whom he is not married to. But it not a crime for a woman. A 17 year old had sex w/girl under 18. Gender based classification. The gov. end is to address teenage pregnancy. Relationship: sub relates b/c women have disincentive to have sex b/c of pregnancy and in order to prove the crime, you need a witness, so the girl can be the witness. Ct granted deference to the legislature. Law upheld by mid level test 4. Rostker v. Goldberg – law: males must register for draft, females don’t. Upheld under mid level test b/c it’s Const to exclude women from combat since that’s the point of the draft (get combat troops) 5. JEB v. Ala.: Gender can’t be used as basis for preemptory challenges. iii. Ct’s Struggle To Decide Which Test Applies: 1. Reed v. Reed (1971) – For the first time the SC invalidated a gender classification, but the SC only applied a rational basis review. An Idaho law specified the hierarchy of persons to be appointed as administrators of an estate when a person died intestate. The law created 11 categories and in every category males were preferred over females. Struck down a gender-based classification of the RB test, but it was the first start to elevating the level of review. a. RB: the court just wants automatic classification: Doesn’t matter if there are better alternatives – as long as there is some rational reason it passes the test. This law should not have been struck down b/c there was a rational reason for the law. b. Although the Court purported to be using just the rational basis test and did not express the view that gender was a suspect classification, its reasoning was not characteristic of rational basis review. This perplexity leads to the next case. 2. Frontiero v. Richardson – military gave more benefits to dependants of male members than female members. If male, their dependants automatically got benefits; if female, their dependants got benefits only if she can show she fully supported males. This law discriminates against both genders depending on where you focus. 4 members of Ct referred to the CSI test, 4 referred to the RB test. But here, the law failed the test. Tiebreaker: Stewart said the law is “invidious discrimination” and any level of review that is applied fails. iv. Intermediate Level of Review 1. Craig v. Boren – State of OK said that women could consume 3.2% beer at age of 18, but males had to be over 21. Mid-level test used Constitutional Law Outline 28 a. Classification based on gender must substantially relate to important gov interest. (sub. rel. Look for alternatives, some other way without gender based classifications?) i. Process: 1. Any important gov interests to justify gender classifications (the end) OR, a. It must be supported by exceedingly persuasive justification 2. Has to substantially advance some important gov end (relationship) a. Any rx adequate alternatives? ii. Application: 1. The end: the concern for abuse of alcohol 2. Relationship: are they substantially related to gov end a. State argues that men are more likely to be arrested for alcohol abuse than women b. Ct says not justified b/c numbers are skewed against men; they both might be abusing, but men drive home so they only get caught. Also, not every male will abuse and not every female won’t abuse. c. Rx adequate alternative is individual enforcement 2. US v. VA – Public University only admitted men. Ct said separate is not equal, so couldn’t just create another school for women. Upon a challenge and a loss in ct, a women’s institution is created; which is later not accepted as a remedy b/c women still don’t get what they want b/c institutions are different. a. No exceedingly persuasive reason not to have qualified women in the institution. Even privacy matter for women is not sufficient; will require accomodational changes for women. b. Adds modern language to the mid level test. i. Classification based on gender must substantially relate to important gov interest, OR, it must be supported by exceedingly persuasive justification 3. Miller v. Albright a. If only mom’s a citizen→ child automatic citizen b. If only dad’s a citizen →child become citizen only if child is legitimated or there is an order of paternity (father’s action or court order) and all of this must take place before child is 18. i. Imp gov interest: concern w/fraud and likelihood of ongoing relationship w/mom, persuasive and law upheld c. Nugen: dad’s a citizen, non-citizen mom. Child moves to US w/dad. At 22, child commits crime and is deported. Even though he lived here, he was not a citizen and subject to deportation. v. Even if discrimination is based on true generalizations about the classes the statute must still pass the mid level test. (If a gender class would ever pass Constitutional Law Outline 29 the mid level test, it would be in facts like Manhart where there are substantial reasons for gender based classifications.) 1. City of Los Angeles v. Manhart (1978) – The SC held that Title 7was unconstitutional in L.A. DWP from requiring its female employees to make larger contributions to its pension fund than male employees, even though woman as a class live longer than men and thus on average would receive pension benefits for a longer time. a. S. Ct: can’t make individualized determinations in annuities (not a rx option) b. “Even a true generalization about the class is insufficient reason for disqualifying an individual to whom the generalization does not apply.” c. This case tells us that the Mid-Level Test is closer in scrutiny to the CSI test than the RB test, giving a very high level of protection against gender-based discrimination 2. Geduldig v. Aiello: Pregnancy classifications, level of review for a classification based on pregnancy is RB. Even though only women can get pregnant it is a classification that gets a RB test, as a statutory matter it must be treated like all other classifications. a. Classification based on pregnancies will get a RB unless it can be described as a burden mid level. i. Denial of seniority is considered a burden c. Disproportionate Impact PER SE TEST: Per se approach is used by the court in instances when the level of review would otherwise be RB i. Laws that have a disproportionate impact based on race/genderdon’t change level of review of a race/gender-neutral law (from RB) unless… 1. Discriminatory disproportionate impact is intentional by design or administration and not just an unintentional result. Upon discriminatory intent, the statue is per se invalid. a. Rephrased: a neutral state law producing racially disproportionate effects will be invalidated only if it is shown that racial/gender discriminatory intent/purpose was a substantial factor behind enacting the law. b. Examples of per se invalid: OK grandfather clause and blacks in one school and whites in another, show that it was intended to hurt people b/c of race /gender c. Challenger of law has burden of proof ii. Tests: If there are neutral laws w/Discriminatory impact: 1. If neutral classification (neutral = no gender/race classification) →RB 2. if neutral classification w/discriminatory impact on race/gender→RB 3. If neutral class w/showing of discriminatory intent → per se invalid a. No matter what justification is offered by the state b. Consider the factors below for intent iii. Factors that show facially neutral laws are hostile towards race/gender 1. Discriminatory Impact (raises this issue) (must be so dramatic that the only explanation of it is racism.) a. alone not enough, the law looks neutral but the impact is disp. Constitutional Law Outline 30 i. Yick Wo v. Hopkins (1886) – SF law required wooden laundry mats to be licensed whereas brick ones didn’t. The rational relationship is fire, but the line also had a disproportionate impact on Chinese people in that they owned 80% of wooden laundry mats and 90% of brick laundry mats were owned by non-Chinese. This is a clear disproportionate impact but by itself not enough to hold the classification per se invalid. But, in the case, all Chinese wooden laundries were denied permits whereas all but one non-Chinese wooden laundry mats were granted permits. The SC said there was an absence of legitimate motive for this and with the two factors it was enough to show that the classification was meant to work a race-based classification. Thus, 2 factors present were: (1) disp. impact (2) absence of any legit motive per se invalid b. Example of when disc impact is not evidence of intent i. CA law requires smog tests; regulation of older cars will have a disproportionate racial impact, but nobody thinks this impact is discriminatory intent 2. Historical Patterns: Series of events. See Hunter v Underwood 3. Sequence of events: Justification comes after they explain reasons 4. Departures from Procedural norms: i.e. usually open meetings, but now closed 5. Departures from Substantive norms: apply the law in ways that haven’t been applied before 6. Direct evidence of legislative motive: “let them work, we’re tired of supporting them” could be interpreted as discriminatory intent, but Ct said not enough b/c individual voices w/in legislature doesn’t represent the intent of the entire legislature. i. must be majority of legislature iv. If not intentional racism/gender bias, and neutral class, just use RB in disproportionate impact cases 1. WA v. Davis -A qualifying test administered to applicants for positions as PO’s in the DC PO Dept was questioned for its disproportionate racial impact. More blacks failed than whites and no indication passers were going to be better than cops who failed. a. USSC: Neutral classifications (those that would normally get a RB level of review) which have a disproportionate racial or gender impact nonetheless still get a RB test unless it can be proven that the law was passed for a discriminatory motive in which case it is per se unconstitutional. 2. Jefferson v. Hackney -state welfare statute had categories for elderly, blind, & dependent children. Elderly got 100% of need, blind 95%, depend, kids 75%. In old & blind categories, 40% are racial minorities, but in dependant kid, 80% are minority’s→disp. impact. a. Level of Review: RB b/c no fundamental rights involved and no suspect classifications. Constitutional Law Outline 31 i. Under RB only has to be conceivable that lawmakers thought that children or blind could supplement income. b. Disproportionate impact, but still rational basis i. Other than this disproportionate impact, there aren’t other factors that show racial antagonism, so not enough factors for Per Se Invalid. 3. Personal Administrator of MA v. Feeney: Veterans got benefits for state jobs v. non-veterans. 98% of veterans were male so this had a disproportionate impact on females. a. The SC held that the test for its validity was still RB (and passes) b/c although it disadvantaged women, all signs indicated that the law was passed to help veterans and not to intentionally hurt women b. Discriminatory gender impact alone is not enough to move it from RB to per se invalid c. Even stark statistical evidence is not enough to show per se invalidity when obvious that law was not passed to hurt gender 4. Mobile v. Bolden: city of Mobile had 3 commissioners serving one of 3 areas, they were elected at large. No black had ever been elected city commissioner b/c of at-large voting; argued 15th amend: said can’t use race to discriminate in voting (same standard as 14th amend; have to prove race was intentionally used to discriminate.) a. Issue: Whether or not at large voting was for the purpose of race based classification in violation of the 15th Amend? b. Court: Law has disproportionate racial impact, but no evidence that at large voting was based upon racial antagonism b/c adopted before blacks could vote, so it couldn’t have been designed to intentionally discriminate. c. Standard for 15th Amend: must show race as a classifier, or racial antagonism/discriminatory intent (same as 14th). i. 2 yrs later, same situation in Rodgers, same at-large voting was struck down 1. Standard for Violation of the Voting Rights Act (VRA) (and various civil rights legislation—different than the Const standard above): Disproportionate impact alone is enough to show violation of VRA. a. VRA disprop standard reverses Mobile above. v. Examples of Per Se Invalidity 1. Hunter v. Underwood – law: anyone convicted of crimes of moral turpitude can’t vote; (Direct evidence of legislative intent) a. This affected 10 times more blacks than whites→discriminatory impact. Consider historical evidence when law was passed, it was passed for discriminatory intent. 2 factors→per se invalid. 2. Jury Pool must represent the fair cross section of the community (district where trial is held) based on disp. impact not intent a. No requirement that the jury itself be a fair cross section... Constitutional Law Outline 32 b. Any court rules that have a disproportionate impact will be a violation. c. Standard under the 6th different than that of the 14th. Regardless of how innocent the law might be, if it causes a disproportionate impact it will be a violation. Need not show hostility under the 6th. i. Hypo -Connecticut computer reported that all in Hartford were deceased. Even though, innocent, since majority in Hartford were black, there was a disproportionate impact → violation d. Race or gender cannot be used to exclude a perspective juror during voir dire. d. Classification Based on legal Alienage: Suspect, illegal alienage: non suspect i. Aliens – people born in another country that are not citizens of US but have a right to be here (green card and right to reside here) ii. Three categories of laws classifying based on alienage 1. State Laws involving benefits that regulate broadly about who can hold various positions←any state law that doesn’t involve political function (privately – who can be a lawyer; governmental – excluding all aliens): CSI a. CSI Test – Must be necessary to accomplish its legit purpose i. i.e. narrowly tailored ii. has to be least restrictive means avail/can’t have rx alt’s b. State laws will be struck down if based on alienage for these categories—don’t pass CSI scrutiny: i. State laws stating only citizens can have civil service jobs ii. State laws stating only Citizens can be members of state bar iii. State laws stating only Citizens can be civil engineers. c. Graham v. Richardson – AR law did not give indigent Aliens welfare benefits unless they had been in the State for 15 years. SC struck it down. “Under traditional EP principles, a State retains broad discretion to classify as long as its classification has a rx basis, this is so in the area of economics and social welfare. But the Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny 2. Exception: State Laws regarding Political Function: RB Test a. Political Function Exception applies to laws that exclude aliens from state jobs involving the ability to make policy decisions b/c go to heart of representative govt. (PAGE 885) i. Jobs involving a high level of discretion so they affect public policy and a job of some importance 1. i.e. teacher, cop, probation officer ii. 2 part test to see if classification fits in NARROW exception: 1. Specificity of classification (can’t be over or under inclusive) 2. Even if specific, it may only be applied to Constitutional Law Outline 33 a. Persons holding state elected or important noneleecte exec., leg, and judicial positions. b. Officers who participate directly in the formulation, execution, or review of broad public policy = perform functions that go right to the heart of representative gov’t 3. All Federal Laws: RB a. This is the only time Federal EP laws are treated differently than state laws i. Reasoning – Const gives Congress certain enumerated powers and among those is the power to pass uniform rules of classification. ii. Example – federal law that says security jobs in airports are limited to citizens. iii. Mathews v. Diaz: Whether Congress may condition an alien’s eligibility for participation in a fed. med. ins. program on continuous residence in the US for a five-yr period and admission for permanent residence? YES 1. Held: Just b/c Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens iv. The statutory discrimination within the class of aliens is permissible under RB v. It’s reasonable for Congress to make an alien’s eligibility depend on both the character and duration of residence iii. REVIEW: Requirements/look for: 1. Specificity of job classification a. all state employees (i.e. notary)CSI b. all police officers RB 2. Must involve a state job (state or political subdivision) 3. Play a role in shaping public policy iv. Examples of classifications that fall under Political Function exception: & get RB test. 1. Citizen Teachers 2. Police 3. Probation Officers v. Example of Job NOT qualifying as Political Function: 1. Bernal v. Fainter: TX statute required one to be a US citizen before becoming a notary public; SC invalidated the law a. Used CSI test b/c didn’t fit under “political function” exception b. Failed prong 2 of PF Test b/c function was clerical and failed b/c not a state job either. e. Classifications Based On Legitimacy (Birth Status) – Quasi Suspect i. Classifications based on legitimacy ⇒ Mid-Level review, but applied less strictly than mid-level applied to gender (like Craig v. Boren & different wording): Classification must substantially relate to a permissible or important state interests. Constitutional Law Outline 34 a. Relationship: “must substantially relate (same as gender test) b. End: “important/permissible gov ends” (diff then gender Craig) 2. Invalidated Statutes: a. Levy v. LA: NY law saying illegitimate children could not collect tort damages for the wrongful death of their mother and mothers could not collect for the wrongful death of their illegitimate children. This was to encourage legitimate families and the stability that comes from a marital relationship. i. SC struck down the law saying it was wrong to punish children for the sins of their parents, although at the time they did not use the modified mid level test just introduced. But even using the modified mid level test, the law still would fail. (1) Although encouraging legitimate families and marriage is a permissible government end; (2) the law does not substantially relate to that permissible governmental end. How many people decide to marry, when they otherwise wouldn’t just so their kids might be able to recover wrongful death damages? b. Trimble v. Gordon (1977) – SC deemed unconstitutional IL law that prevented non-marital children from inheriting from fathers who died intestate unless the child was acknowledged by the father marrying the mother. i. SC said the law failed the mid level test. Too narrow circumstances to determine whether illegitimate kids can get these rights. It concluded that although there is a need to establish paternity for unwed fathers, this did not justify the complete denial of benefits to all non-marital children whose fathers died intestate. 3. Statutes that were upheld under this Mid-Level, but would not have passed Craig v. Boren Test: a. Labine v. Vincent: NY law said illegitimate children could not inherit through intestate (w/out a will) secession from their fathers unless the father had formally acknowledged the child during his life. Concern is for fraud & false claims. i. SC said the law passed the legitimacy mid level test because (1) the concern for fraud; and (2) the laws of intestate secession are intended to replicate the deceased wished if they had left a will and if he didn’t leave a will he probably (safe to assume) didn’t want his illegitimate children to get anything b. Mathews v. Lucus: SC upheld provision of Social Security Act that gave automatic SS benefits to legitimate kids who survive the wage earner however illegitimate kids had to prove dependency. SC upheld b/c purpose was to benefit dependant children and the law was substantially advanced. Burden on illegit not that great even though treated differently. It survived mid-level review, but Constitutional Law Outline 35 would not have passed a higher level test like Craig v. Boren (even if similarly framed) c. Lalli v. Lalli and Clark v. Jeter (Most Important Case): 2 identical laws. The law did not impose a flat ban on illegitimate children inheriting from deceased fathers through intestate secession. An illegitimate child could inherit if two requirements were met: (1) There must be a court order prior to death stating that the father recognized the child as his own; and (2) The court order must be w/in 2 years (Lalli) or 6 years (Clark) of the birth. Reason for this law was that you want all of this resolved while the father is still alive. i. Establish paternity during life of father: if dad dies when you are five, and no court order, you can’t inherit. If father still alive, you have until age of majority to establish paternity. SC holds the first requirement (court order) to be constitutional. This law substantially relates to a permissible governmental interest. ii. (assuming dad’s alive) 2nd requirement: Clark SC strikes down the law because of the 2nd requirement. They state that in terms of the period of time the child has, the child must have until the age of 18 to establish legitimacy. 4. Shows how different from classifications based upon gender: a. Gender: look at rx adequate alternatives (the higher the level of review, the more will look at rx adequate alt’s, even though Court may take them into account if using test above RB) b. Legitimacy: (1) Sub relate: don’t look at rx adequate alternatives (although Court could) (2) permissible end ii. Parental Rights of Fathers of Illegitimate Children: Gender Based Classification (Craig v. Boren Mid-Level Test); It’s Mid-Level equal to Mid-Level Gender: MG doesn’t like it 1. Classifications based on gender must substantially relate to an important governmental interest 2. Clark v. Jeter: PA law = illegitimate child must prove paternity by age 6 to be able to seek support, while legitimate child can do it anytime; a. Court Struck down the classification b/c failed intermediate scrutiny and Strongly implied that the illegit child had up to the age of majority to establish paternity (although did not explicitly hold this). 3. These are gender based classifications so… 4. Apply gender/mid level testIn cases involving the rights of fathers of illegitimate children versus the rights of mothers of illegitimate children 5. Stanley v. ILL: Mother and Father lived together for 18 years and had kids but never married. IL presumed that Fathers of illegitimate children were unfit. Mom died and kids were taken away from Father. a. In this case, dad had always lived with mom, but they weren’t married: didn’t matter b/c irrebuttable presumption that unmarried dad is unfit Constitutional Law Outline 36 b. Held: Court struck down law on DP grounds (procedural DP b/c no hearing) and partly on EP grounds b/c not fair to treat fathers of illegitimate kids differently than moms of illegitimate kids: decided before mid-level was adopted for gender. iii. Classification of Custodial Parents v. Parents Who have NOT had any Involvement with the Child: RB Test b/c not a Gender Based Classification. 1. Custodial parents includes those that have financial interests 2. Ex. Law stating that Custodial parents can consent to adoptions without consent of parent who doesn’t have any involvement with the child would pass RB level of review. a. Should have argued fathers of illegit kids v. mothers of illegit kids b/c that is gender based and father would have won w/the stricter test 3. Does away with gender based Classification 3. Affirmative Action; Remedies for Race/Gender Discrimination a. Affirmative Action in General i. Affirmative action is benign use of race or gender to confer benefits 1. AA is discrimination against the majority, so it is theoretically easy to correct through the use of political processes 2. Different than hostile discriminations b/c hostile is against minority and won’t be corrected through political processes ii. Standard of review for all racial classifications (benign & hostile) → CSI iii. Gender based affirmative action → mid level test b. Racial Affirmative Action i. Court looks at 4 factors for race based classifications under CSI 1. Purpose for the benign race based classification – the CSI a. The narrower the purpose, the more likely to be upheld; if too broad that in itself will make the AA program invalid i. Unacceptable: making up for societal/historical discrimination is never acceptable b/c the use of race is too inaccurate. ii. Acceptable: to remedy specific race based discrimination 1. Such as to a particular individual 2. Ct has upheld the use of AA to correct injustice in certain specific areas (school, employment) a. Minority must show gov used race in a way to hurt people, it passes CSI to use race to remedy the wrong. b. I.e. if A is denied job b/c of race, then the court can make anyone give A a job. iii. The court has never decided if diversity alone is an acceptable purpose 2. Degree of advantage to racial minorities: More limited the advantage, more likely it will be upheld (the more absoluteuncon.) 3. Degree of disadvantage to majority (see Wygant and Bakke) a. Wygant – Program would add minority teachers to make up for past discrimination. Concern was in economically bad times, last Constitutional Law Outline 37 teachers hired under this program would be the first to go b/c of seniority. Thus, in economic turndowns, the same ratio would be maintained. So agreement exists that requires for the school to maintain the same ratio. This results firing based on race. Court: Invalidated this affirmative action even though there had been race-based discrimination in hiring in the past b/c places too great a burden on majority persons. i. Therefore, if place too much a burden on a particular person, program will be struck down as too great a disadvantage. 1. Court distinguished btwn hiring/firing, saying that firing to achieve racial burden is unjust, 2. If the burden created by AA is too high of a burden on the individual, it will fail CSI 4. Overall flexibility of program a. The more flexible the more likely to be upheld b. Racial quotas not allowed, ultimate in inflexibility (goals OK) c. Consider waiver options, likely to b e upheld (Fullilove) ii. Bakke -UC Davis Med. School kept 16/100 seats only for minorities (based on race), anyone could get the other 84. To get a minority seat, didn’t have to meet standards everyone else did. Bakke met standards, was definitely higher than the minorities, but denied. SC: admissions based on racial quotas are unlawful → too inaccurate & give an absolute preference based on race) and to let Bakke in but it is not unlawful to consider race at all. 1. Test for benign race based classification is CSI: Absolute preference (race-based quotas) does not pass CSI, but some benign consideration of race might 2. Application: a. Purpose for benign classification/Compelling gov interest that were offered by the state: i. Correct race based wrongs (see school cases) 1. the only proper purpose ii. To make up for past racial injustices: this wont pass CSI test b/c too broad to satisfy the strict level of review (But it would pass the mid level test) iii. Diversity in medical profession (diversity by itself is not a CSI and Powell thought too much impression regarding whether graduates were likely to go back into the minority community) iv. Racial diversity in education: passed CSI b. Relationship/Narrowly Tailored (consider rx adequate alternatives) i. No evidence of race based wrongs in UC system ii. Historical racial injustices never passes this test iii. Changing statistics in medical community is valid purpose, but use of quotas violates b/c too inaccurate and absolute for this purpose Constitutional Law Outline 38 iii. Univ of Mich: (2 cases) Purpose: Diversity in education satisfies CSI. Relationship (problem): is the use of race narrowly tailored to satisfy CSI? 1. Undergrad: being a racial minority gave students a lot of extra points. Being a racial minority basically got them admitted automatically, the goal was OK, but it was not narrowly tailored (too much preference) 2. Law School: Admission system looked at combo of everything, being a minority was just a positive factor in the total admission process. a. Ct said: Relationship: Too much of a race based preference fails CSI, but some limited preference is OK in CSI. iv. Fullilove – Federal gov had 10% set aside for minority contractor’s b/c of past discrimination. Statute provided a waiver of the program if no minorities were capable of doing the work. 1. Application: a. Purpose of law/Compelling state int offered by state i. To make up for past racial discrimination in gov contracting business: A valid purpose b. Relationship /is it narrowly tailored i. Degree of preference: 10% (limited race based preference) ii. Waiver provisions iii. Congress passed the provision 1. There are mostly white males, so if white males are unhappy easier to influence/more political power a. So SC said no need to closely review b/c political processes will control; 2. Law was upheld v. Richmond – City had 30% set aside for minority contractors. 1. Application: a. Purpose offered by state: To make up for past discrimination in gov contacting business b. Narrowly tailored? i. Differs from Fullilove b/c 30%, not 10% → amount of past discrim. does not justify this race based preference (%) ii. No waiver provision here (so an absolute preference) iii. Act passed by City, (not Congress-Fullilove), whose majority is black→there are different racial/gender make-up in the legislative bodies 1. In city counsel, most were minority favoring minorities so political processes wouldn’t self-correct, so there is a need for close judicial review 2. Law was struck down vi. Adarand Constructors v. Pena: Fed gov’t had practice of giving general contractors on gov’t projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals”...despite framing, race was the main factor, was a race-based classifier... while all minorities were presumed disadvantaged, there was a race-based presumption that whites had to overcome. Ct of appeals rejected claim based on intermediate scrutiny. Constitutional Law Outline 39 1. RULE: Supreme Court said that ALL RACIAL CLASSIFICATIONS GET STRICT SCRUTINY (CSI) no matter who they apply to and no matter if they fall under 14th or 5th equal protection c. Gender Affirmative Action i. Generally: 1. Mid Level Test: Gender classifications must substantially relate to an important governmental interest or persuasive justification a. Purpose: i. Making up for past discrimination can satisfy this (only here, not in race/CSI test) b. Relationship: i. Consider rx adequate Alternatives 1. Distinguish b/w Califano and Orr cases 2. When women get hurt, apply mid-level like CSI, but when they are ok, apply a soft mid level test ii. Kahn v. Shevin: FL law gave tax exemption to widows v. widowers. (Favors females over males). Law upheld, based on logic that it’s a tax law iii. Schleisinger v. Ballard: in military, officers have to get promoted within a certain number of years, or fired. Women had more time than men; 1. Level of Review: Mid-Level, balancing test (Craig v. Boren modified) 2. Court: Upheld gender classification b/c they are making up for discrimination the military (way to gain promotion is to show heroism in combat, but women are excluded from combat.) iv. Califano – Soc. Sec. retirement program where women have a more favorable formula than men. Women don’t have to include their first 3 years of lower wage-earning years, but men do. This makes women receiving higher retirement benefits than men. 1. Upheld b/c: Test: mid level test. Gender based class satisfies mid level test and making up for past discrimination is a sufficient interest. a. Reason for law was to make up for societal discrimination i. Women make 69% of what men make, so they are given a more favorable retirement formula ii. THIS WOULD’NT PASS THE CSI, BUT IT PASS’ MID LEVEL (b/c not every woman makes less than men) b. The formula did substantially relate to the purpose v. Orr v. Orr – Law: Only men had to pay alimony. (Relationship part is important in this case! Consider Rx adequate alternatives) 1. End: This is a valid purpose to make up for past discrimination 2. Relationship: Unconstitutional b/c the gender based classification did not substantially relate to the important gov purpose b/c: a. Rx adequate alternatives exist; a gender neutral option exists by having a hearing to decide who is financially better off and who is needy for alimony i. W/alimony you can easily determine it on individualized basis, but in Califano, its impossible to determine on a individualized basis (no alternative exists in Califano) Constitutional Law Outline 40 vi. Hogan – Hogan applied to state nursing school, but rejected b/c he was a man. EP Violation, even though against man. (Purpose part is important) 1. Claimed purpose was making up for historical discrimination a. However, no historic discrimination against women in nursing b. Historically, nursing is a job which women fulfilled vii. Johnson -city gave dispatcher jobs to females over males when both male and female candidates were equally qualified in order to achieve diversity (no other women in transportation dept.). Man sued and lost. 1. SC Analysis: Diversity purpose passed mid-level. Advantage given to women was limited, disadvantage to men was small. Approach was moderate, flexible and case-by-case. 4. Non Suspect Classifications a. Classifications Disadvantaging the Retarded, Homosexual, Elderly and Poor i. The “More Searching/Focused” RB Test Classification must rationally relate to a legitimate state interest 1. Traditional RB test: look for any conceivable state end Gives extreme deferential level of review to the legislation. 2. Searching RB: look at the actual purpose for the law, more likely to look for a closer rational relation: a less deferential level of review ii. When to Apply the Focused RB Test v. Traditional RB Test: 1. Only in facts that involve discrimination against politically powerless groups for no very good reason other than they couldn’t protect themselves, such as: a. Retarded, Homosexual, Elderly, Children of illegal aliens, Out of state vs. in state companies 2. The court feels a greater need to protect these politically powerless groups 3. Without these facts, apply the traditional RB test iii. Cleburne v. Cleburne Living Center: TX municipal ordinance required homes for retards to get special permits, while other ‘multiple family’ dwellings didn’t; Held: unconst. Under RB (not suspect/quasi-suspect class or fundamental right so no higher level of review) 1. Test applied RB test but more focused b/c the only purpose for the law was animus against retards. Struck down the law as not founded in legit purpose. 2. They were discriminating based on unjustified queasiness of retards 3. This is the strictest application of RB we’ve seen so far (compare to case where mental illness/mental retard classification survived RB). iv. Romer v. Evans (1996) – An amendment to the CO constitution prohibited all legislative, executive or judicial action at any level of state or local government designed to protect homosexuals. 1. Classifications based on sexual orientation (neither a suspect classification nor a fundamental right) they get a RB level of review. 2. CO justification was that by elevating things such as homo’s to the same level of other highly protected classifications, it would weaken the abhorrence held against classifications such as race/gender. Constitutional Law Outline 41 3. SC rejects this justification. Ct felt that this was not the real purpose behind the law. Ct felt the real purpose was to pick on homosexuals v. Phyler v. Doe: IMPORTANT: TX law said illegal alien children couldn’t attend public school... law struck... got RB level of review: 1. RB test b/c a. Classifications based on illegal alienage are not suspect b. Education is not fundamental right, see San Antonio below 2. Different RB Test applied: law must rationally relate to substantial state interest. a. McG treats it as a version of the More Searching RB Test, BUT b. Some treat it as an application of the Mid-Level Test (like that in classifications based upon illegitimacy). 3. Held: Struck down TX law, because its there to hurt children vi. Metropolitan Life Ins. v. Ward: AL law favored domestic insurance companies re: tax (their tax rate was only 1%, but foreign co’s was 3-4%). M alleged that it violated EP; unique case where statute failed EP RB test 1. EP RB: as long as purpose is legit and burden rationally relates to that purpose, it’s ok a. Different from commerce clause where purpose, if legit, must outweigh the burden. Promotion of domestic business: not a legit purpose b/c if accepted, it would in effectuate the EP clause 2. Held: Court struck down law and found no RB in disparity of treatment. Mcg says its consistent b/c out of state insurance co’s are more politically powerless then in state co’s so apply SRB vii. RB Test Review (overall): 1. Your first instinct should be to apply traditional RB test 2. When get more focused RB Test? a. When have a politically powerless group that is being denied equal treatment without being able to use political process to correct that mistreatment, (look for a law that is passed to hurt this group) 3. Suggested approach to RB Test: a. Apply the traditional RB test (Carolene Products, Williams v. Lee Optical) “rationally related to legit govt interest.” Then use the facts looking for conceivable purposes. b. Only if in the facts you have a group that seems to be like retarded, gays, etc (politically weak that have suffered a discrimination) apply the More Focused RB Test. i. Look at the specific purpose as well. b. Classifications Based on Wealth (non suspect RB) i. Criminal Cases: Part PDP, part EP. 1. Griffin: right to free transcript found in combination of procedural DP & EP (if the transcript is necessary to file the appeal) 2. Douglas v. CA: Based upon a DP & EP, there is a right to furnish counsel to an indigent on his 1st appeal. The right to council on appeal is a product of EP concerns + notion that procedural due process Constitutional Law Outline 42 requires appointed council to make the 1st appeal meaningful. No other judicial proceeding has a right to council ii. Civil Cases: 1. Rule – a combination of wealth based and DP concerns for fairness of hearing can lead the ct to cancel fees or require additional fees. 2. Boddie v. CT: requiring welfare recipient to pay fee to get a divorce violated DP b/c: (used DP and EP concerns) a. that was the only way to get a divorce, b. marriage relationships get special treatment. c. Held: had to be a waiver of divorce fee for indigents to give them a fair hearing for the important right of divorce. 3. Streater: indigent dads have right to blood test in civil case. 4. Kras: No violation of DP for $50 fees to declare bankruptcy: b/c a. Not the only way to adjust legal relationship with creditors, b. Bankruptcy isn’t as protected as marriage. c. Held: Don’t have to waive the fee, not an impermissible wealth based classification. Bankruptcy is to protect things that you have, so don’t declare it if you don’t have any money. 5. Ortwein v. Schwab: O’s welfare old-age assistance was reduced; he appealed to the agency and was denied. Statute allowed for appeal but O couldn’t pay $28 filing fee... state denied appeal; a. Upheld b/c: i. not as important as marriage, ii. O got a hearing, iii. no suspect classification of poor, the fee pays court costs. b. Bottom Line: not a wealth based classifier, or, if it was, it was justified. 6. Lassiter v. Dept. of Social Security: DP requires appointment of counsel for indigent parents in a proceeding brought by the state to terminate parental status in some circumstances. This is Proc DP. a. Qualified right: you get it if there’s complicated factual/legal disputes 7. Parents subject to termination of their parental roles will get free transcript for their appeal if they are indigent. a. Also a Procedural DP issue that gets a high level of process 8. Dandridge v. Williams The state provided $250 in welfare money, per child, up until 4 children. After that, you don’t get any more $$$ no matter how many kids you have. a. What kind of issue does this raise? This raises an EP issue. b. RB level of review b/c no fundamental right or suspect classification. 9. Harris v. McRae: Court found that funding decisions distinguishing between funding of abortions and funding of full term pregnancies get a RB review. Not a fund right of privacy, so RB 10. Lyng v. Castillo: The gov’t for the purposes of food stamps treated families less generously than non-families living together. a. EP, RB level of review b/c Constitutional Law Outline 43 i. No fundamental rights ii. And no suspect classification: b. Is there any legitimate reason for treating families less favorably than unrelated person? i. Families might be more apt to share their food together, than individuals living together: interest is conceivable and the law is rationally related to that interest. 11. San Antonio Schools v. Rodriguez: There was a challenge to using local property taxes to funding local schools. Because different communities have different property values, it leads to different qualities of education. Edgewood (poorest district, income $356 per/person) and Alamo Hts. (richest district $564 per/person). The difference in property taxes was even more extreme. It was argued that . . . a. This was a wealth-based classification, so its suspect getting CSI. Court reject this, held it did not classify on wealth b. Education is a fundamental right because it directly relates to free speech. The Court rejected this. i. Court held that wealth is NOT a classifier. The court also held that education is NOT a fundamental right, at least not above a minimal level. If they had no education at fundamental right. c. Court: RB and upholds law. What’s the rational relation here? The importance of local control influencing the local schools (makes them more invested) d. McG thinks Court missed: equal funding for all public schools is denied in this case. But state constitutions can remedy. 11. Kids going to school in N. Miss got more $ then kids going to school in S. Miss. Court said disparate treatment is justified by the RB test. Leg end: fed gov gave S. Miss more $ in other ways 12. N. Dakota law attempted to get small school districts to combine into consolidated school districts “reorganization law” (cut back on costs, etc…) the State would fund bus transportation for schools who reorganized, but those that did not, parents would have to pay. Ct held RB test and constitutional. What’s the RB for treating reorgaanize school students then non-reorganized students? Re-organized schools made an effort, the non org schools didn’t. FUNDAMENTAL RIGHT TO VOTE I. Rule: EP issues relating to fundamental right to vote→CSI a. Example – classification based on size of district; every legislative district for the Fed and State Houses must be equal in size in terms of population. b. Four Areas i. Access to ballot/Standard for being on the ballot ii. Right to Cast Ballot/Voter Qualification iii. Reapportionment iv. Use of Race in Voting 1. Standard for being on the ballot /Access to ballot Constitutional Law Outline 44 c. Rx Relationship: Law must rx related to permissible/leg state ends i. Same Mid-Level test as legitimacy: Closer to balancing test than strict scrutiny, but still higher than RB 1. But getting on ballot is part of fundamental right to vote 2. So, the laws must be closely scrutinized a. Permissible Limitations on Access to the Ballot: i. May limit names to those who are legitimate candidates. ii. 3rd parties have to have petitions signed by certain amount of voters. 1. To keep name on ballot, one candidate for any office must get a certain number of votes in the previous year (usually 1%). b. Court requires fees be waived for indigent candidates. (B/c getting on ballot is part of fundamental right to vote). 2. Right to Cast Ballot CSI a. Poll Tax i. The 24th Amendment prohibits poll taxes in elections for federal officers. Additionally, the SC in Harper v. Board of Elections held that poll taxes are unconstitutional as a denial of equal protection for all other elections. The Court concluded that limiting voting to those who paid a poll tax was impermissible discrimination. ii. Whenever a state makes the affluence of the voter or payment of any fee an electoral standard, the standard will fail the CSI test. Voter qualifications have no relation to wealth or paying tax.” b. Durational Residency i. Dunn v. Blumstein – 1 year durational residence req’t struck down under CSI. Failed EP under right to vote and right to travel. While there is a valid interest, the 1-year interest was too long to be related. ii. Marston v. Lewis (1973), the SC allowed a 50-day residency requirement for voting to provide election officials sufficient time to check election rolls, prevent fraud, and administer the election→passes test (Durational residence long enough to make sure there is an accurate voter list is OK) iii. Modernly, we move towards same-day registration. c. Race can’t be used as a basis for denying the right to vote d. State can disqualify felons from voting 3. Reapportionment a. Art I, § 2, cl 3: every 10 yrs there must be a census and reallocation of members of the House of Reps among the states according to population shifts. b. EP requires 1 person 1 vote Baker v. Carr (concerned w/population of district) i. Federal re-apportionment Standards: “as nearly equal as is practicable” to one person = one vote to pass EP 1. Struck down variations in district size that is as little as 1% ii. State re-apportionment Standards: “substantial equality” to one person = one vote to pass EP 1. Upheld variations in district sizes as much as 16% c. I.e. of when states did not reapportion: Constitutional Law Outline 45 i. In Tennessee, at the turn of century, people lived in rural areas. As it become industrialized, people moved. So they did not reapportion based upon individual districts b/c they didn’t want to lose their jobs (in regards to Fed and State Houses, rural areas would not vote for any changes that would shift political power to the urban centers) d. I.e. California: State assembly of the Senate paralleled how to allocate power b/w big and small states (protect small states w/Senate and Big w/the House) i. Assembly controlled by Southern California; Senate controlled by north 1. With one vote the Senate now gets controlled by the south e. Gerrymandering = the concern for the shape of the districts or the way they are drawn in order to emphasize political strength of the political party in power i. The mere fact that apportionment makes it harder for a group to elect who they want doesn’t violate EP. But it is possible that gerrymandering could violate EP (see Davis below) 1. Davis v. Vandaneer – republican state reapportioned an area by moving a large minority population to mix them w/the suburban population, thereby indirectly moving democrats into suburban voting districts to dilute democratic strength and thus decrease the number of democrats elected (every state does the same thing, the party in power draws district lines to maximize its political power) P argued that this gerrymandering violated EP and level of review should be CSI. a. Ct upheld gerrym b/c Const doesn’t forbid the use of the normal political process-if this division is typical, it doesn’t violate EP; b. However if you can show that the gerrym Constitutionally degrades a group of voters a fair chance to affect the political process, EP is violated → the only way to have a violation of EP is if the gerrym is outrageously egregious. 2. Supermajority: it takes more than 51% yes votes to pass legislation 4. The Use of Race in Voting /Affirmative Action Voting a. Historically race was used to draw district lines to take away their right to vote. b. More recently it has been used to advantage minority racial candidates. c. Voting Rights Act of 1964: if state has been found to under represent racial minorities in voting, then any changes in voting must be approved by Attorney General of US i. Essentially in all states of historical south where blacks were undervoted, any significant change in voting, including any changes in the district as a result of reapportionment, must be approved d. Between 1993 and 1996, the SC decided 4 cases on the constitutionality of using race in districting to help racial minorities: Shaw v. Reno, Miller v. Johnson, Shaw v. Hun, and Bush v. Vera. In these cases the Court addressed 3 major issues: i. 1st, in each case the SC ruled that the use of race in drawing election districts → CSI test. ii. 2nd, the Court indicated two ways in which it can be demonstrated that race was used in drawing election districts: 1. If the district has a “bizarre” (not contiguous) shape that, in itself, makes clear that race was the basis for drawing the lines. Constitutional Law Outline 46 2. Alternatively, if the use of race in districting cannot be inferred from the shape of the district, strict scrutiny is justified if it is proven that race was a “predominant” factor in drawing the lines. iii. 3rd, the Court considered what justifications are sufficient to meet strict scrutiny. 1. For example, the Ct held that section 5 of the Voting Rights Act, which requires that the Justice Department approve changes in election systems in states where there has been a history of race discrimination with regard to voting, does not justify the use of race in districting. 2. In later cases, the Court has said that some use of race in districting can be allowed if race is used as a substitute for political background or affiliation. I.e., a district might be redrawn to include a majority of democrats since an overwhelmingly number of blacks are democrats e. Miller v. Johnson – GA had 10 districts, but w/the 1990 census they got an extra seat, so now 11. When there were 10, one was majority black; when 11, there were 2 majority black districts. Attorney General wanted 3 according to ACLU’s max black plan. It was easy to add 1 more, but to get the 3, one had to take the black population areas throughout the midsection and make them contiguous. i. This is affirmative action use of race b/c majority of voters is more likely to yield blacks in Congress which would lead to racial diversity in Congress. 1. Held: unConst b/c race solely can’t be used to determine the shape of district violates EP. Use of race (hostile or benign) violates EP. 2. Some use of race is OK: if it’s used as a synonym for democrat f. Shaw v. Reno – NC adopted districting policy to make “pocket districts.” i. Ct struck it down as being race-based; must draw contiguous districts. 5. Bush v. Gore -(only case in history in support of the Fund Right to vote) a. Ct concluded that Florida’s method of determining voter intent violated EP. i. In the recount of FL you had to appeal the voting of each county and the ct said each county had to determine voter intent (no state determination) ii. 3 election commissioners per county and each county had different standards; the end result → some counties were 3 times more likely to capture the undervote. This was found to violate the FR to vote. b. Undervote –votes that computer could not read, but by hand count a person could get the voter’s intent. Rep lawyers argued EP violation not to count these c. Overvote-when two different people are marked as president d. The determination of under-vote is crucial, but to give them 3 times more weight than other votes violates EP e. Court also determine that failure to equally weigh the overvote violates the EP f. Multiple votes for same person (punched in for X and written in for X also), that cancels out that ballot i. However, if same person is voted, voter intent would be clear, so failure to count that was also EP violation FUNDAMENTAL RIGHT TO TRAVEL 1. Overview Constitutional Law Outline 47 a. The right to travel interstate is a fundamental right (strict scrutiny/compelling state interest). The difficulty is determining the scope of the right. The SC says that durational residency requirements which penalize the fundamental right to travel by impacting necessities of life must survive strict scrutiny. Saenz v. Roe reaches an unusual conclusion as to the almost forgotten privileges and immunities clause to accomplish a similar result. In addition to these cases, a group of cases will be covered involving other aspects of residency which some justices, but not a majority, believe fall w/in the fundamental right to travel. These justices together with a few justices who believe the laws are not rational control the judgment, but there is no majority rationale b. FR b/c relationship to other provision in Constitution, past precedents of supreme ct, and b/c the US values the right to travel interstate. c. Constitution gives Congress the power to regulat