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Con Law IR outline Aimee

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									Constitutional Law Outline 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 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. th – Privileges & Immunities of federal citizenship 2. 14 a. Protects equality rights 3. nor deny to any person within its jx the equal protection of the law‖ th - applies DPC only to federal gov/Congress. (But other then that it is the same b. 5 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) History: Economic Regulatory Legislation: 2 versions of the reasonable basis test (Strict Scrutiny and Normal)



Constitutional Law Outline 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 3

Constitutional Law Outline 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 ROADMAP ON A TEST: If there are no justifications for a higher level of review – analyze the RB test. 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. State the law DPC  ―the law must rationally relate to leg Gov ends, EPC ―the classification must rationally relate to a leg gov end‖. Then discuss both (1) the legitimate end & (2) whether it rationally relates to it. CONCLUDE!!! Make a decision ―this WOULD rationally relate, or wont rationally relate‖ 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) 5

(1) (2) (3) (4) (5) III.


Constitutional Law Outline 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 Δ and his punitive damages award. 3. Difference between this remedy and the civil penalties authorized or imposed in comparable cases. 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. 6

Constitutional Law Outline 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 7






Constitutional Law Outline 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) 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 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; 1019 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. 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. 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. 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 8


Constitutional Law Outline 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. 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 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 preexisting K rights, apply the PPB – the 3 prong approach from Energy Reserves. i. 3 Elements for Balancing Test: 9


Constitutional Law Outline 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. 10





Constitutional Law Outline 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. 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. 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. 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. 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)


Constitutional Law Outline I. 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? 5th 12

iii. iv. v. vi.

Constitutional Law Outline 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. 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. Temporary Takings = upon a compensable taking, the government changes its mind and backs out, but they must pay for the period of the taking. Inverse Condemnation = gov. doesn‘t think they are doing wrong but turns out that they are 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. 13

Constitutional Law Outline 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 14

Constitutional Law Outline 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): 15


Constitutional Law Outline a. 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 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) 1st


Constitutional Law Outline b. 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 endencourage 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. 2nd 17

Constitutional Law Outline 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 18

Constitutional Law Outline 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 lawnot 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. 19

Constitutional Law Outline 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 20

Constitutional Law Outline 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 21

Constitutional Law Outline 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 22

Constitutional Law Outline 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 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 practicablethen 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 24

Constitutional Law Outline 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 practicablei. 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, 25

Constitutional Law Outline 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. 26

Constitutional Law Outline 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 27

Constitutional Law Outline 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 28

Constitutional Law Outline 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/gender don’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. 29

Constitutional Law Outline 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. 30

Constitutional Law Outline 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... 31

Constitutional Law Outline 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 32

Constitutional Law Outline a. Persons holding state elected or important nonelected 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. 33

Constitutional Law Outline 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 34

Constitutional Law Outline 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 MidLevel 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 testIn 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 35

Constitutional Law Outline 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 absolute uncon.) 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 36

Constitutional Law Outline 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 37





Constitutional Law Outline 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. 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 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 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. 38

Constitutional Law Outline 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) 39

Constitutional Law Outline 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. 40

Constitutional Law Outline 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 41

Constitutional Law Outline 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 42

Constitutional Law Outline 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 reorganized 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 43

Constitutional Law Outline 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: 44

Constitutional Law Outline 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 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. rd, the Court considered what justifications are sufficient to meet strict iii. 3 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 46

Constitutional Law Outline 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 regulate commerce and from that power is the implied limitation on states to regulate commerce (individual states are limited to regulating interstate commerce and that limits protects interstate commerce including the right to travel interstate-related to Commerce Clause) d. Any classification that serves to penalize the exercise of the right to travel, unless shown to be necessary to promote a compelling state interest, is unconstitutional 2. The Fundamental Right to Travel gets the CSI test if it involves… i. Durational residency requirement AND ii. Impact on 1. Necessity of life or a. i.e. welfare, medical care (non emergency, i.e asthma attack) 2. Some other fundamental right a. i.e. voting b. ―If you have the above elements, a penalty exists on the fundamental right to travel; thus CSI is applied.‖ c. Apply Rational basis test if: (you have one or the other ONLY) i. Limiting welfare to bona fide residency (no durational) ii. Or you have only durational (no necessity of life) d. Ct struck down durational residency req‘s (of 1 year) when it affected: i. Welfare (i.e Shapiro) ii. Voting (i.e. Dunn) iii. Medical Care (i.e. Maricopa) e. Court did not strike down durational req‘t when it affected: i. Divorce (i.e. Sosna) ii. University education iii. Residency alone 3. Shapiro v. Thompson a. Law: to get welfare in state, one had to be a resident for at least one year b. Normally this kind of law that treats out of state differently than in-state people would be a violation of Const Commerce Clause, but Congress has the ability to approve those kinds of burdens on interstate commerce. i. Rule – if approved by Congress, can‘t be struck down using Commerce Clause, but EP grounds may still be attempted. c. The Durational residency req‘t for welfare makes it hard for indigent to move from state to state. Affect FR to travel interstate and must be justified by CSI. 47

4. 5.



Constitutional Law Outline i. State Interests: Concerns: 1. Fraud: make sure they are legit citizens before providing welfare 2. BUT Underlying purpose discouraging the influx of poor families in need  unconst, and administrative purposes are not compelling ii. Narrowly tailored: 1. A one year durational is over broad and fails this part of test b/c there is alternative a. Alternatives are genuine residency requirement and prosecuting for fraud iii. Held: Fund Right to travel CSI. Dura‘ residency + welfare is a fund right Dunn v. Blumstein a. One year residency req‘t to vote was in violation of FR to Vote and FR to Travel Sosna v. Iowa a. Durational residency req‘t before one could get a divorce b. Not involve the FR to Travel b/c different states have interests in the marriage, so the state from where you moved and where you now are both have interests. However, your original state has the dominant interest until you have established enough of a new connection w/ state you are now living in (so one year req‘t is OK) The next 3 cases are a hybrid of the CSI test and the ‗more focused‘ RB test. In each case 3 justices apply the CSI test and 3 apply the more focused RB test to strike the laws down, 6 to 3, but there is no agreement as to the proper level of review. (These are not binding precedent b/c they are pluralities, not majority opinions) a. Zobel v. Williams (1982): SC declared unconstitutional an Alaska law that distributed oil revenues to those in the state according to a formula that was calculated based on the duration of a person’s residence in the state. 3 members of the SC felt that the fundamental right to travel was involved while 3 others, not willing to go that far (probably correctly so) just felt the law was irrational, while 3 other applied RB and found it rational. b. Attorney General of NY v. Soto-Lopez (1986): NY law gave benefits to veterans, but only if they were residents of NY at the time they joined the military. 3 justices said fundamental right to travel was violated, 3 others said it was irrational to exclude all veterans except those who were residents of NY at the time of joining and 3 found it to pass the RB test. (majority strike down) c. Williams v. Vermont (1985): Use Tax is a substitute for sales tax; a way to disallow people from avoiding sales taxes. Vermont gave you credit for the sales tax paid elsewhere only if you resided in Vt at the time of purchase and you paid tax on the purchase in another state. Thus, if you lived in NY when you bought your car and later moved to Vt, Vt wouldn‘t give you a credit for the tax already paid and you had to pay the additional use tax, in effect a double tax on the same property. Same events as last 2 cases, but here it is a stretch to say fundamental right to travel is involved but 3 justices made that argument. Unconstitutional. d. Thus, if you have something of a durational residency that doesn’t involve a necessity of life, some on the Court will still apply CSI test and others might apply the more focused rational basis test, instead of just the RB test. Saenz v. Roe (1999) Parallels Shapiro). & The Privileges and Immunities Clause a. CA law: if you move into the state and go on welfare, for the 1st year you will get the same amount that your former state paid you and not CA‘s higher amount. 48

Constitutional Law Outline b. Rather than using the Shapiro process, ct said this durational residency violates the privileges & immunities clause of the 14th Am. i. Art 4: no state may deny P&I of state citizenship when dealing w/ interests important to interstate harmony (protects important interests). 1. Ownership of prop, getting sued, occupation treat people the same 2. Hunting licenses and education  may treat differently th Amend (protects lesser interests): ―No state shall make or enforce any law ii. 14 which shall abridge the P&I of citizens; nor shall any state deprive any person of life, liberty, or property, w/out DP; nor deny to any person w/in its jx the equal protection of the laws.‖ 1. This was only the 2nd time the P&I clause was used. The P&I clause protects four lesser rights: a. The right to petition the central government for grievances; b. The right to protection while in the custody of a U.S. Marshall; c. The right to sail the navigable waters; and d. The right to travel interstate. c. The SC could have easily just said that the law imposes a durational residency that impacts a necessity of life, but instead chose to use the P&I clause protecting travel interstate (as opposed to the EP‘s clause‘s right to travel interstate…see the distinction: FR to Travel has nothing to do w/travel, but this lesser interest in travel actually deals w/ traveling) 8. Village of Arlington Heights – (level of review is RB unless discrim intent shown). a. It was also argued that restrictive zoning makes you harder to move state to state…thus necessity of life is w/ regards to housing. b. Ct reject this argument b/c no durational residency so no FR to travelapply RB. Durational Residency that impact fundamental rights or (necessity of life) will get strict scrutiny (i.e. compelling state interest ―CSI‖)  Durational Residency conflicting with Fundamental Right = Violation of Fundamental Right to Travel  Fundamental Rights Bonified Residency Requirement (does not equal) durational residential requirement Law that impact right to travel -> you use 14th Amend Equal Protection  Privileges and Immunities Issue Principal approach: Shapiro v. Thompson & Memorial hospital is an EP Fund right approach. Durational residency requirements that impact necessity’s of life or Fundamental Rights hurt the fund right to travel. When the Fundamental Right to Travel is penalized in that instance you need a CSI level of review. Then say, this can also be viewed alternatively as a violation of the P&I of the 14 th amendment to the extent that the P&I protect the right to travel interstate. (Saenz v. Roe) Finally, take into consideration (Zoebel, Attny Gen and William) - any time there is an issue of length of residency that doesn’t involve an issue of the necessity of life, some members of the Ct will apply the CSI test, while others might apply the more focused RB test. STATE ACTION REQUIREMENT– Finding Government Culpability for Private Acts 49

Constitutional Law Outline SPOT IT ON A TEST: Use the facts to determine, (1) Gov responsibility/blame for the private con violation (2) Sift the facts and weigh the circumstances to gauge gov responsibly. Look at the cases and the precedent to determine what kinds of facts ct has held important. (Suit may be filed against the state or the private party) 1. In order to have a Constitutional violation, you need two aspects of the 14th amendment: a. State action b. A Const violation 2. §5 of 14th Amend says ―no state may deny due process, EP, or P&I of federal citizenship‖ 3. 14th does not reach private acts b/c it preserves zones of private autonomy and federalism through sovereignty a. i.e. Pepperdine can violate EP or DP rights 4. Usually has nothing to do w/State action, b/c upon state action, there is no state action issue a. Only have the issue when the problem is finding a private person responsible when: i. Trying to make state responsible for private acts OR ii. Trying to make private person subject to 14th amend b. So if facts say ―a private entity…‖ then write about this issue 5. ―State‖ = any governmental act; a. Any time you see any of these, just say that there is a state action and move on; don‘t analyse. The facts will say: ―the state… did…‖ so don‘t discuss this issue. i. A city, state, a county, and federal governments ii. Gov agencies: I.e. Caltrans iii. Employees acting in official capacity (scope of employment) 1. Even if done illegally in their working capacity a. i.e. cop pulls guy over and beats him i. but if cop goes home and beats someone upnot official capacity 6. Co-Venture Agreement b/w Private person and Government a. This Is State Action Issue to Talk About…just an easy one b. I.e. Beverly hills cop – off duty cop from Detroit in Bev Hills outside of wherehouses thinking that there is illegal activity. They want to get into the wherehouse to find out. Murphy goes into it w/out the other Bev Cops b/c he was a private actor in Bev Hills and 4th amend exclusions won‘t work b/c absense of state action – Murphy from Detroit and off duty so private entity. i. This is bad b/c once you have a private entity working w/ state actor creates a co-venture which makes the private entity a state actor…co venture upon agreement. 7. The only individual act prohibited by Const is Slavery via the 13th Amend. 8. Process: a. There is claim that a private person violated Const rights (in the fact pattern to spot the issue). Look for gov responsibility/culpability for private action i. Do this by shifting the facts and weighing the circumstanceslook at precedent which gives categories of facts: 1. Gov’t function Doctrine: When the gov turns over pub function responsibilities to priv entities, the priv entity is subject to 14th am. 2. Governmental enforcement a. Where the state is compelling the action: race discrimination 50

Constitutional Law Outline 3. Governmental regulation, financing and endorsement a. Financial contributions to private acts or endorsements of private acts ii. After this, say “from the whole of it, there is/is not state action” 9. Government Function Doctrine a. State Action found: i. White Primary Cases – If TX excluded blacks from votingclear violation of 14th & 15th amend. So TX turned over to the political parties the running of the primaries. Democratic party in the south under TX law could run their own primary election and decide who could votethey only allowed white voters. Dem party is a private entity Const would not preclude dem party from limiting membership to whites or only allowing whites to run for office. 1. Ct said TX turned over to democrats the running of electoral system, a public function, so dem party in running the electoral system is a state actor a. Gov should not be allowed to avoid the Const by delegating the task to a private entity ii. Marsh v Alabama – a company town that looked like a regular municipality, but owned by the company. Privately owned town w/street minister preaching is asked to leave, but refuses, so sued for trespassing. Minister claims violation of 1st amend. 1. Ct said the town looks like a public municipalitythe look, shape, and the powers of it given by the state, so the town is running a public function by running a co town. 2. State is liable b/c function is the same as public towns iii. Salt Lake City – Private entity owns the public streets, but when city gave it to them, they kept an easement for public to walk on sidewalk. The church had the full right to control the messages on the sidewalk since city had no intention to maintain a public forum w/ this easementso groups that didn‘t have the view of that of the church were asked to leave. 1. They argued that they could have free speech b/c the private street was actually a public streetlooks like it, acts like it, gov sold it and controls through easement. The Cts have ruled that it is a state action. iv. Evans v. Newton – a park/land given by Senator to the city on the condition that the park be operated as a park for white citizens only. Initially the city had a board that operated it  state action. So they turned it over to private trustees to maintain and run it. 1. The Ct found state action still b/c they said the park was performing a public function; the facts indicated that still maintained it; it looked like a public park; people thought it was a public park b/c it was run as a public park for many years. v. Jackson v. Metropolitan Edison (limiting the public function exception) – a private utility co that cuts off people‘s utility services w/out any P DP. P argued that utility is state actor b/c of regulations and historically the state provided utilities. But modernly they are provided by private entities. 1. State action b/c “traditionally exclusively reserved to the state.” 51

Constitutional Law Outline a. Only if parallel to this case, otherwise you need more factors than this 2. Private people now run prisons and schools (definitely used to be exclusively state fx) now they are not necessarily public fx‘s b. No State Action: i. Shopping Centers – Private shopping centers are like company townsthe size, the look, the place in our society that towns once had; ―down town.‖ Now you go to the mall, not downtown. They function as downtowns. There was a labor protest where the employees wanted to picket at mall. 1. Ct said the mall is performing a public function equal to the old town so a state actor. The employees thus had the free speech right. 2. But later the Ct rev‘d and said private shopping centers are not state actors a. Except CA makes private shopping centers state actors under CA’s Const, but not protected under Fed Const. ii. HYPO – Congress turns over to the Olympic committee the right to use the term ―Olympic.‖ But there are Special Olympics. Gays wanted gay Olympics and the US Olympic com. refused to allow it. Argument of denial of EP rights when other groups are allowed to use it. 1. The US Olympic comm. has US in its name, sponsors int‘l games for US athletes, and Congress has given total authority to it in regard for the use of the name Olympics, but Ct said that is not state action. iii. NCAA – Jerry Tarkanian always violated the rules. NCAA finally said to UNLV to fire him or the college wouldn’t participate in Div 1A sports. So UNLV fired him and he sued the NCAA claiming they were a state actor for lack of P DP rights (not the UNLV which is a clear state actor). 1. NCAA runs collegiate sports, including those of public schools in the country. Does the fact that public schools turned over their ability to run sports to NCAA make the NCAA a state actor. Held: NCAA=private, no a state action referring to Olympic case iv. Rendell-Baker v. Kohn (see 10, c, ii) 10. Governmental Enforcement Look for private entities who did not want to engage in racial discrimination and the state compelled them too Shelly. In the other cases the private parties wanted to engage in racial discrimination and the state court enforced it. (hypo’s) a. State action found: i. Shelly v. Kramer – private people agreed w/ neighbors not to sell to minorities (covenants that ran w/land). So there is a suit to enjoin a neighbor from violating the covenant b/c he has sold to a racial minority. 1. Issue – does the state injunction or state damages make the gov responsible for private act discrimination? Gov enforcement of private racial discrimination is State action, state action here. a. Key: gov forced private discrimination on one that chose not to discriminate. Only this fact pattern Shelly serves as precedent. b. The reverse isn‘t gov enforcement: Where gov-compelling parties to discriminate when they already want to. 52

Constitutional Law Outline ii. Hypo – A throws a party for whites only, but a black person comes and won‘t leave. The cops come to take him away. 1. According to Shelly, a private homeowner does not have a right to determine who can come onto his property. The Ct does not say it is a state action, but argue still that it is. iii. Hypo – private business w/ sign that says they reserve the right to refuse service to anyone. The Store did not want to serve blacks. If blacks did not leave, they would be charged w/ criminal trespass. 1. Shelly and (neutral) Abney are not extended to this case. 2. Some might hold it is not state action, and applies Abney. iv. Civil cases and private counsel violate EPC w/racial preemptory challenges 1. public defenders are not state actors in performing their duty. (But they are a state actor in preemptory challenges) v. Hypo – A private trustee sets up a private college for white male orphans w/ the city as the trustee. Obvious state action. Then the city appointed private trustees to run it, but ct said this appointment still made it state action. 1. States are generally responsible for trusts and state action will be found if their involvement is very close as was the case here. General oversight of a trust will not be enough to find state action. b. No state action: i. Evans v. Abney – (2nd trial of Evans) Once the SC found state action in Evans v. Newton, the remainder men asked for the park back because the terms of the trust could not be met (white only park) and GA law allowed the park to revert back if the principal purpose could not be met. Every state also has provision to save the trust when the provisions cannot be met 1. If you can‘t meet the terms of the trust, the property goes to the remainder of the Will 2. Cy Pres Doctrine – all states have this doctrine a. the ct can look at a trust and try to save it even if it cannot be fully performed i. so if principal parts of trust can be performed, the trust can be saved ii. Must ask, what was the principal purpose of the person who established the trust 3. Here, argued that Ct was helping Bacon be a racist (Shelly). 4. S Ct said if Senator‘s purpose was to be a racist, the trust could not be saved which was the case here, so the S Ct said the park goes to the remainder of the will. 5. Rule: So if the state is applying a neutral principal to state law, this is not state action even though it advances racial discrimination. “The enforcement of a neutral law by the state is not a state action.” 11. Governmental Regulation, Financing, and Endorsement a. There is an obvious tension between Norwood and Gilmore, on the one hand, and Rendell-Baker and Blum, on the other. The cases, however, are most easily 53

Constitutional Law Outline distinguished on the ground that the Court is more likely to find that government subsidies are state action when the government’s purpose is to undermine the protection of constitutional rights. Absent such a government motivation, it is very difficult to find that government funding is sufficient for a finding of state action. b. State Action found: i. Burton Case – a state actor (parking authority) that leases out a private coffee shop that refuses to serve people b/c of their race. State parking authority is sued. It was asserted that though the parking authority was free from racial discrimination, they are still responsible for the coffee shop. 1. Is the key case where government licensing and regulation was deemed sufficient for state action. The SC found that the government was so entangled with the restaurant that there was a ―symbiotic relationship‖ sufficient to create state action. a. E.g, the government had responsibility for upkeep and maintenance of the building and done with public funds. b. The restaurant‘s customers used the parking facility. c. Government benefited from revenues from the restaurant 2. The court thus concluded that the parking ―Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property, and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity.‖ ii. Norwood and Gilmore cases: 1. Norwood v. Harrison (‗73) – SC found state action in a program that gave free textbooks to private schools that segregated. A ―State‘s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving aid to institutions that have racial or other discrimination.‖ 2. Gilmore v. City of Montgomery (1974) – SC held that a city could not give racially segregated private schools exclusive use of public recreational facilities. The SC found state action because the ―city‘s actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs.‖ 3. Norwood and Gilmore are two good examples of the SC finding state action when there is only minimal involvement. a. 1 view: These 2 cases represent a possible view that a low level of state involvement can equal state action if the involvement deals w/ race discrimination i. It is safe to say that if the school discriminated against short people, because height is not a suspect classification a de minimis form of state involvement will not be enough to find state action. b. 2nd view: it doesn‘t matter what the private entity did and if the state is responsible for it; just focus on the fact that the state 54

Constitutional Law Outline gave away things (books) and the Constitutional violation. (prove the state did this out of racial hostility)per se invalid. iii. Reitman v. Mulkey – Ca has fair housing laws. Before the passing of these laws, private landlords could do as they chose, i.e. discrim based on race, etcthey had the freedom to discim or choose in any way b/c they are private entities. But under the fair housing laws, they can‘t discrim based on race. (other laws prevent it against gender, handicaps, and ―unrx discrimination‖). CL private discrim was ok, but under new law it wasn‘t. 1. Now, the new law is repealed, and LL can racially discriminate 2. Issue: is the repeal/law a state action that makes the state responsible for private discrimination? a. One view: USSC said yes b/c the law was passed for the purpose of encouraging private racial discrim. State encouragement/approval of racial discrimination can be one factor of proof of state action (by itself not likely to be enough) b. Better View: since the repeal requires 2/3 votes to pass another fair housing law, then that is a race-based classification, which req’s CSI (where there is no compelling reason for this to require 2/3 votes and other just requires a majority). In this view, no state action issue, rather an EP issue. c. No State Action: i. Blum v. Yaretzky (favorite issue) - Federal law obliged private nursing homes to make sure that their residents who were receiving federal reimbursement were in fact eligible for reimbursement. The end result of this federal regulation was that some of the homes were kicking out people w/out notice or hearing. 1. SC found no state action because it was the nursing homes who decided to kick people out. The government did not require it; it only asked that the nursing homes check patient eligibility. ii. Rendell-Baker v. Kohn (1982) – The SC held that there was no state action when a private school, receiving 90% of its funds from the state, fired a teacher because of her speech activities w/out PDP. 1. The Court made it clear that government funding by itself is insufficient to find state action. There has to be a juxtaposition of the violation and the state action. The Court explained that the school was not different from other private businesses whose business depends on contracts with the government and that the ―acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.‖ The Court said that because the school‘s actions were not ―compelled or even influenced by any state regulation,‖ the Constitution did not apply. 2. Although the connection b/w state and private entity is great, here there is no state action 55

Constitutional Law Outline 3. There is a more remote connection to state action when dealing w/ teachers, as opposed to dealing w/ students iii. Moose Lodge– Lodge (private) was engaged in racial discrimination. But, the state gave the Lodge a liquor license. 1. Although the state could have prevented this discrimination by not giving the license until the lodge was free of discrimination, the Ct said just having a gov license doesn’t make the gov responsible for private act of racial discrimination. Also that they could have prevented does not make them responsible. Thus no state action. CONGRESSIONAL POWERS Only Two Enumerated Powers Issues: Look for Fed law involving Congress trying to reach/punish private acts 1. 1st Issue: Can the fed gov use its power under 13th and 14th to reach private acts a. §1 of 14th: no state shall deny EP, DP, and P&I of federal citizenship i. §5 of 14th: § 5 gives Congress the enumerated powers to pass appropriate legislation to carry into effect the foregoing: can congressional leg under congresses power reach private acts or is fed leg limited only to state acts? ii. You only have the issue when you have a federal law, so when you see it, be aware of an enumerated power issue as well. 1. Don’t discuss if: “there are no enumerated power issues” or under “clear Commerce power” or “clear spending power” iv. Rule – C doesn‘t have the power under 14th DP/EP to reach private acts; the enumerated power is the power to reach state acts in violation of DP/EP 1. Congress can‘t reach private acts in violation of 14th EP and DPC 2. If involves race discrimination and badge of slavery, then Congress can reach those private actsConst as to 13th amend 3. If involves P&I (4 interests), Congress can reach those private acts a. not under § 5 of 14, but b/c it has an inherent power 2. 2nd Issue: Can C modify the substantive provisions of the amends. i. Rule – Cong doesn‘t have the power to modify significantly the provisions of 13, 14, 15th amends 1. Any time you have a fed law that changes the sub provisions of the amends, you have an enumerated power issue b/c Congress can’t make significant changes in the amends a. C cannot modify to give less protection, but can give more, but not more than the 1st or 14th…C can‘t go beyond substantive provisions to any major degree; only slightly, (from slavery to badges of slavery or adjusting the remedy) b. States are not limited to enumerated powers…they have general power to give whatever rights subject to limitations of Const and Bill of Rights 3. Issue One: Congress can‘t reach DP and EP through 14th a. Reaching Private Acts through the 14th DP and EP (not an enumerated power) i. US v. Morrison – Congress passed the violence against women act, which made it a crime to commit a violent act against one b/c of her gender. 56

Constitutional Law Outline Does congress have the enumerated power under §5 to punish private individuals: no, congress can only reach state acts, can‘t reach private acts not within Congress‘ enumerated powerslaw is unconstitutional. b. Reaching Private Acts through the 13th Amendment (an enumerated power) i. 13th amend §1: no person may be held in involuntary servitude 1. 13th §2: C can pass appropriate legislation to carry into affect §1. ii. Congress has power to make slavery a civil or crim liability to prevent badges of slavery iii. In order for Congress to have the enumerated power, 2 requirements exist: badge of slavery and race discrimination 1. Badge of slavery a. any disability commonly imposed on slaves i. Such as limitations on denying the right to: 1. Owning property 2. Contracting 3. Education 4. Freedom of employment b. Remember: discrimination of inns and other places open to the public are not badges of slavery. 2. And the badge of slavery must be imposed on race discrimination iv. Hypo – can Congress pass a law stating: no private employer can engage in racial/gender discrimination 1. Under 14th: No 2. Under 13th: yes v. Hypo – if you have an employment and affirmative action plan, and a white person sues claiming a violation of federal law. 1. Involves employment and race (white), so you can regulate c. Reaching Private Acts through the Privileges and Immunities clause of the 14th (an enumerated power) i. Includes: 1. Sail the navigable waters 2. Rights when held by a Federal Marshall 3. Right to go to DC and petition 4. Right to Travel Interstate ii. This is an implied authority of Congress, b/c any sovereignty has the implied ability to protect the essential attributes of federal citizenship…not dependant on 14th amend §5. iii. Hypo – law that says: ―no group of persons can go in disguise upon the public highways to prevent people from traveling interstate,‖ constitutional. iv. Hypo – law that says: ―no individual can fire an employee w/out notice and hearing.‖ This would be unconstitutional because it calls for a private individual to give PDP rights not w/in Congress‘ enumerated powers 4. Issue Two: a. C cannot lower the Constitutional standard, (it must protect the substantive provisions of the 13, 14,15) but it may expand it to a certain extent (they can change the remedies that are available) if C is regulating state laws (not private) C is limited by the substantive provisions of the constitution 57

Constitutional Law Outline b. 13th i. § 1: Slavery added pursuant to this power (congress can reach it) ii. § 2: Congress can go beyond protecting from slavery and reach in to protecting from badges of slavery pursuant to §2. If one is denied employment b/c of race, this does not violate the 13th amend, but violates the federal laws that have been passed by Congress. Congress’ ability to regulate race discrimination is pursuant to the 13th amend §2. 1. Increase in law (13th amend) from slavery to badges of slavery th and 14th 15 i. 15th - Race cannot be used as a basis for determining who can vote; 14th may not use intentional use of race 1. Voting Right Act – says that discriminatory impact alone is enough a. Constitutional violation occurs upon unintentional discrimination, (don‘t need the intent) the federal law says that disc affect is enough i. The Voting Rights Act is constitutional b/c Congress can expand substantive provisions according to their enumerated rights Katzenbach v. Morgan – C passed a law banning literacy test to vote. But cts had previously held that literacy tests were constitutional, b/c it does not violate EP. i. Issue: Congress just passed a law that doesn’t pertain to EP rights. 1. Since Congress is limited to enumerated powers and enumerated power is preventing violation of EP clause, and the ct said that it does not violate EP, how could Congress ban literacy tests. ii. Held: Upheld law; if you don’t vote, you don’t get the same level of governmental services b/c nobody cares about you. Thus, Congress can give you the right to vote to prevent this constitutional violation of getting unequal services. Oregon v. Mitchell – Co passed law that gave 18 yr olds the right to vote in federal & state elections. (Old enough to die, old enough to vote). i. Issue: Can C ban a state voting rule that doesn‘t violate a Constitutional clause (does C have the enumerated power to regulate state elections? ii. Ct said: C doesn‘t have enumerated power to give 18 yr olds right to vote. 1. Rejected argument that 18 year olds are denied equal governmental services b/c they will eventually be voters There is a closer connection b/w literacy and voting than age and voting If race discrimination, the ct is more willing to give C power Bernice v. Flores – C passed religious freedom and reformation act. The ct had previously held that it must be a CSI to take away free exercise of religion rights. But in Smith, the ct said the test was not CSI. Then C passed the a law which provided that if any state takes away the free exercise of religion it has to be justified by CSI (opposite of what Ct said before). i. Issue: does C have the enumerated power to give a higher level of protection than in the constitution? No ii. Held: Congress has no such right b/c under 14th, C is limited to the constitutionally Enumerated powers 58




f. g. h.

Constitutional Law Outline i. If the ct were to reverse Roe v. Wade, Congress could not pass legislation giving freedom of choice: as long as DP guarantees it, Congress can regulate i. The current state of the law now is Casey (fund right to choice), could C pass legislation protecting the fund right to choice? Yes, could the states do it? Yes. States can pass leg, that is not contrary to the const, but C can‘t give more then the constitution. Issue 1: Congress cannot in the 14th reach private acts (DP and EP unrelated to race) (if its P&I or race its OK). But states can! Issue 2: Congress cannot lower our Con rights, and they don‘t have the enumerated power to increase our con rights. (i.e. changing the level of review of gender, etc…) (look for C reaching State or Gov Acts!) ** If Congress is increasing the sub level of protection given by the cons the Gen rule: C cannot increase the Sub level of protection. 2 exceptions to this: if it is a remedial change or as in Katzenbach, if it is a way of preventing some other gov violation then C can do it. VII. PROCEDURAL DUE PROCESS Approach: 1. Was there a judicial like taking? (If yes, you have a right to P DP) 2. Was a property or liberty interest taken? 3. What level of process is required? Level is variable to the importance of the interest 1. 5TH ―there can be no taking of life, liberty, or property w/out PDP a. 14th adds: ―no state may take…‖ 2. Substantive vs. Procedural a. Substantive DP or EP issue– when legislature takes your life, liberty, or process i. Substantive DP 1. Normal interestsRB 2. Fund RightsCSI a. FR: i. privacy ii. vote iii. travel 3. I.e. Whether or not a woman can have an abortion is a sub dp issue and not a PDP b/c all the notice/hearings in the world wouldn‘t make a law prohibiting it valid ii. EP 1. if legislative type decision, like a classifier, it is an EP issue a. FR or Suspect CSI b. gender/legitimacy/affirm action  Mid Level 2. Irrebuttable Presumptions are EP issues (see below) b. Proc DP– concern for judicial/administrative-like takings that have proc DP issues i. Administrative bodies difficult b/c they perform legis and jud processes 1. So when admin acts like legisSubstantive 2. when it acts like judprocedural ii. Legislative classifications usually don‘t create a P DP issue b/c legislative process normally brings the notion of fairness (ministerial decisions) 59

Constitutional Law Outline 1. State law says 3 tickets a year suspends license- ministerial, no PDP (1) Look for a Gov taking of life, liberty and property interests. (*look for right kinds of gov action that present PDP) If you have a legislative classifications or administrative agency – no DPC, possibly sub. (2) Determine if there is a liberty or property interest. (*State law or other independent source controls it, find something independent of the constitution that creates the property interests otherwise there is no property interest.) (3) KEY: level of process is infinitely variable. (right to notice or some type of hearing-informal or elaborate). To determine whether an appropriate level of process has been given- Premised on 3 factors: look in notes. PCD usually requires the hearing occur before the deprivation. (i.e. hearing before being fired). One exception: exigency 3. RULE: PDP requires a fair notice and fair hearing when life, liberty and property are taken. Concerned with the following 3 things. a. Judicial like taking b. Life, Liberty, or Property Interest c. Level of Process (how much due process do you get?) 4. Example of Analysis: a. Goss v. Lopez - A student was suspended from school for 10 days for violation of school policy. The VP says to him: you spiked the punch didn‘t you. He says no I didn‘t; VP says yes you did and you are out of here. i. Taking: A judicial Like taking? 1. yes b/c made by principle;(1) is there a judicial like taking? (Case by case individual determinations involving a high level of discretion) yes-anyone can make decisions like a judge. ii. Property or Liberty interest involved 1. Property: a. 10 days of free public school education; once the gov decides to give you something, that becomes a property interest and when they take it away, they take a property interest away i. Gov says you have a right to welfarea property interest that requires PDP when it is taken away 2. Liberty a. Reputation – the charge against him that he is the type of guy that spiked the punch. i. The stigma that attaches from this type of allegation or the reputation may be viewed as a liberty interest ii. Level of Ct has recently held that reputation is not a liberty interest iii. Level of Process: 1. Did the student get any level of process (needs notice and hearing) a. There was an informal notice and hearing which was minimal but good enough (if he had been expelled, the level of process would increase b/c the level of private interest would increase b. Notice: you spiked the punch c. Hearing: didn‘t you?…No I didn‘t d. Result: you are out of here 2. Held: the level of process was sufficient for level of interest at stake 60

Constitutional Law Outline 5. Judicial Like Takings: a. Consider 3 sub issues: i. ―No judge-like taking‖ applies to judicial like or administrative like takings 1. judge like decisions get P DP, not ministerial or legislative decisions (adjectives): a. Case by case, Individualized, Discretionary, Particularized 2. Examples a. Breach of K, Debtor Death penalty, Administrative Agencies (License taken/suspended), State employer firing employee b. School principle, Welfare Referee ii. Must be an Intentional Taking; doesn‘t apply to Negligence 1. b/c Negligence doesn’t implicate DP, limited to state remedy a. it is impracticable to have a pre-deprivation hearing for a N action; the subsequent tort remedy satisfies DP 2. Parratt – prison official loses inmate‘s hobby kit. Ct said P DP is not raised by N, so doesn‘t matter if there is a hearing before or after a. Since it is impossible to have a hearing before the deprivation (it was already lost) 3. Daniels v. Williams – prisoner fell on pillow left on a stairway left by a prison official. a. Ct said lack of due care by state official does not deprive an individual of life, liberty, or property so DP is not implicated 4. Board of Reagents v. Roth: 1st year teacher fired for no reason. Is there a judicial like taking? Yes, dean makes case by case indiv discr.. Liberty or Property? He had no contract with the school, so no property interest in the job. End of analysis – no level of DP required. 5. Davidson v. Cannon – prisoner sent note to authorities that another had threatened him, but officials set the note aside and the prisoner was attacked a. Negligence does not implicate DP b. BUT Reckless Disregard might (ct left that open) iii. Look at if a notice and hearing would make a difference 1. If there is nothing to have a hearing on, then there is no P DP issue, you are more likely to have a substantive DP or EP issue a. If a hearing would make a difference, not determinative if there is a P DP issue 2. Ministerial Decisions – when responsibilities are turned over to administrators, then have no need for PDP a. Hypo – if you get three tickets in a yearsuspended license. There is an administrator making a decision on you upon this third ticket, so there is no need for a hearing to count tickets. 3. Hypo (old exam) – law: cop who filed bankruptcy is fired. Concern of corruption of cops with such debt would be prone to bribery. a. P DP – it‘s a judicial like taking i. Since there was no notice and possibly a property interest at stake, p dp is at issue. ii. What could the hearing be on? 61

Constitutional Law Outline 1. Cop? Yes; Bankruptcy? Yes; Hearing adjourned! iii. If the law was based on corruption and firing, then a hearing would be required b/c corruption would have to be determined by an individualized decision b. EP i. It classifies and RB b/c no fundamental right nor suspect classification ii. Does this rationally relate to legit gov concern for corruption? Yes, even if it is not a smart or fair law. iv. When Hearings Take Place 1. Normally before the deprivation 2. Hypo – any employee injured on the job had a right to medical benefits. But the insurer is only obligated to pay if rx and necessary. Thus there is no automatic P DP issue; only have a right (property) when it is determined to be rx and necessary. 3. Levin – right of creditor to have hearing before property interest in some purchase item is taken away 4. Exception – Exigent Circumstances: Deprivation before hearing if: a. Sexual Abuse of Minors: child will be removed from the home first and the hearing will take place afterwards b. Upon PC, an arrest w/out warrant and hearing afterwards: need forquick decisions in criminal situations 6. Were protected liberty or property interests taken? a. Assuming it is a type of taking that may raise P DP issues, you only have P DP rights if life, liberty, or property interests are taken. b. Life: Mainly applies to capital punishment cases c. Property: Defined by general law independent of constitution i. Must find some state, federal law, or other independent source, such as contracts, that say this is a property interest; without this there is no property interest. LOOK BEYOND THE CONSTITUTION ii. Property interests given by laws include: 1. Entitlements (Once the gov gives entitlement, they have no right to take it away without PDP) 2. Public schooling 3. Welfare 4. Government employment 5. Laws that give discretion to employer to be fired at will, then there is no property interest in that job 6. If it says you can only be fired for cause it’s a property interest a. Bishop v. Wood – boss fires cop, law said he could be dismissed at the boss’s discretion. At will contracts create no property interest so no violation of P DP. b. Cleveland v. Board of Education – One part of the State law stated a teacher could only be fired “for cause.” The other part said being fired is ok as long as there was a summary hearing and a full hearing can be held afterwards. Thus, the state had created a property interest in that job. The issue 62

Constitutional Law Outline was if a state law created a property interest, could it then define the level of process that one got? i. Is there a prop interest? 1. for cause firing w/ full dress hearing or a. ―sword and a shield‖ 2. is it for cause firing w/ a right to a summary hearing? a. ―the bitter w/ the sweet‖ ii. Ct holds: SC said that once the state creates a property interest in something the level of process that the right will receive will be determined by the Mathews factors. The level of process is a Const issue, which requires due process first (a full hearing before firing is req‘d.) iii. Law: Any person convicted of a crime involving a gun is removed from pub housing. NO PDP b/c EP  RB. 1. But if the law said the housing rep can kick you out if he wants that is a P.DP d. Liberty i. Created by state, federal law or other independent sources or may be inherently protected by the Constitution (unlike property) ii. Liberty interests include: 1. Free speech 2. Parental rights 3. Free from institutional confinement due to: constitution protects this a. Mental illness, b. Sexual dangerous predator, or c. for criminal acts; d. Juveniles are also entitled to (adult level) high level of P DP 4. Right to refuse medical treatment 5. Right to privacy 6. Right to travel 7. Right to vote 8. Reputation: by itself is not a liberty interest unless closely tied to some other liberty interest a. At first Supreme Ct recognized it alone as a liberty interest, but not anymore iii. Prisoners 1. Hypo – ―good time” that prisoner earned was taken away for bad conduct. Prisoner claimed that GT is a liberty interest that can‘t be taken away w/out a hearing to show that he engaged in bad conduct. a. Ct said prisoner is correct…it is a liberty interest created by an independent sourcethe law, not the Constitution, and the taking of it requires P DP. 2. Hypo – a person was transferred from prison to mental institute. He asserted that this transfer was the taking of a liberty interest that req‘d a hearing. State law allowed it, but he argued that it was protected by the Constitution. 63

Constitutional Law Outline a. Ct said it was a liberty interest b/c when you change the very nature of the confinement, it requires a hearing. 3. Hypo (no liberty interest) – prisoner accused of misconduct and transferred from med to max security prison w/out any hearing. a. Held: No liberty interest in being in a med prison over a max prison; as such, no level of process is needed when transferred. Unless state or fed law says differently, at the discretion of PO. 4. Connor– Prisons didn‘t write down the rights of the ‗inmates b/c they knew w/out it, prisoners can‘t complain about P DP violations. a. Ct said we are encouraging prison officials to do things that don‘t make sense, so we will not easily find liberty interests of prisoners. They are confined in prison, so their liberty interests are already taken away. b. If the penalty imposes atypical and significant hardships from what one should expect from being in prison, then the violations of prison rules and regulations requires a notice and a hearing…P DP. c. Even if state law creates procedural due process for prisoners, taking it away will not violate their procedural due process rights unless in taking away the rights the state created an atypical harsh quality of life that is different than just being in prison. i. I.e., there needs to be a significant deprivation of a known right. 1. There is a significant deprivation to a prisoners procedural due process rights when the taking is intentional and not merely negligent. 5. SDP in prisoner cases: they don‘t have the same protection of liberty interests as other people a. Test = is it rx related to correctional concerns/prison rules i. I.e. – if prisoner is denied the right to marry or get mail, the test is still this, even if normally it would get a higher level of review: Gov would win this case. iv. Reputation 1. Paul v. Davies – PO sent out a list of known shoplifters at X-mas and a news reporter was on it even though he was never convicted. He was fired and he alleged, sending out his name was a liberty interest. a. Ct said that reputation alone is not enough; it must be combined with some other liberty interest i. I.e. Reputation + loss of job: Although he lost his job here, it was not req‘d to lose a job if one was on the list. 2. Hypo – in a bar, a list of names of those who abuse alcohol was posted and those on it could not buy drinks. a. The court said he is entitled to a hearing before his name could be posted b/c reputation b. The other interest is the substantive right to buy alcohol e. What Level of Process is required (Was enough PDP given?) Only get to this issue after passing the first two requirements 64



h. i.

Constitutional Law Outline i. Level of Process is infinitely variable ii. Basic 3 Factor Approach for required Level of Process Mathew v. Eldrige 1. Balance importance of private interest w/public interest at stake (need for summary procedure) and consider need for accuracy a. Importance of the private interest at stake i. 10 day suspension v. expulsion b. Need for Accuracy/Danger of Erroneous Deprivation i. Accuracy of method used for avoiding mistake and whether or not a higher level of process ill avoid the mistake ii. High level of accuracy req‘d for death penalty c. Competing Pub Interest at not having a higher level of DP i. In order to make day to day school rule, you need to make quick decision; big process will just hinder the public interest Washington v. Harper - prisoner is given anti psychotic drugs to keep him sane to assist with his defense. The prisoners want to be sane, but they don‘t want to be given the death penalty. So they want to refuse the drugs, but the gov want to give it to them so they can be sane so they can be get the death penalty. i. Ct said the procedure here was enough: The procedural hearing is the determination of the prison employed psychiatrist to make the determination after reading the record who has the professional skills if he should get the drugs. Since the prisoner has a liberty interest to refuse treatment, he is entitled to P DP, even if it is a low level. ii. You can have both PDP and SDP 1. Substantive DP: does a person have a right to refuse drugs being given to them against their will? a. ct said yes there a right to refuse medical treatment (but not physician assisted help in dying) b. ct said it may have to give way to other governmental interest i. the gov int in running the prisons forces the outweighing of the right to refuse the medical treatment Hypo - public utility was turned off w/out PDPargued taking of property right to receive electricity. i. Ct agreed but gave the level of procedure as the right to talk to one other than the computer who had the discretion to make the decision to keep the power on or off. Delinquency in Juvenile Cts – usually civil case, but ct says high level of PDP like adults in 6th amend, except they don’t get a jury and public trial Board of Regents v. Roth – Teacher has K to teach for one year. Must be informed by Feb if to be retained for the next yr or not. He is not retained for the next year i. Analysis: 1. Individual judicial like decision that is a taking? Yes: Dean‘s decision. 2. Life, Liberty or Property Interest? a. Liberty – No: Argued that Stigma for not being retained and free speech rights. Ct doesn‘t treat reputation as a stigma anymore i. But if free speech was the reason for being fired, then it might be a liberty interest 65

Constitutional Law Outline b. Property – no: Argument was the right to the state job. The state law said that first year teachers didn‘t have to be rehiredno property interest; the law only req‘d notice by Feb if you were to be retained, w/out giving any reasons that you will not be retained (at will employment)no property interest; the only right was to be notified. i. CL Tenure Rights: As opposed to Tenured professors at public universities, by law, they have a right to hold position absent any serious misconductproperty interest

7. IRREBUTTABLE PRESUMPTIONS – classifications that would normally get RB ON A TEST: Normally, treat IP as an EP issue Weinberger; determine the level of review (RB) and apply the test. Unless, the facts are parallel to Bell or Stanley (1) gov makes something an issue (2) result is made without a hearing (3) hearing comes later  then apply a P DP analysis. a. Two issues are raised by this doctrine: i. Procedural DP ii. EP b. First give it a RB level of review, it‘s just a law that classifies, but there are a few cases in which a court takes IP and treats it as a PDP issue. c. PDP i. PDP and Irrebuttable Presumptions: 1. The state makes something an issue, then 2. The state presumes the outcome of the issue, then 3. The state has a hearing later on ii. Bell v. Burson – a statute automatically suspended a license if one was in accident w/out insurance, where the hearing would be held later to determine fault (so there is a presumption followed by a hearing). 1. PDP flaw: hearing is after the deprivation a. The gov made fault the issue and presumed the issue 2. You must have the hearing on fault 1st, and then suspend 3. Compare w/CA Law – accident plus no insurance  license automatically suspended, but no fault is presumed. Thus there is no PDP right b/c there is no irrebuttable presumption of fault. a. Since the law just classifies, it is an EP issue w/ RB level of review: Law encourages buying insurance b. HYPO – a man‘s uninsured car is parked in front of his house, and someone else hit it, so his license was suspended. i. Thus it doesn‘t matter who is at fault; all that matters is that he didn‘t have insurance. iii. Stanley v. Ill – Law: fathers of illegitimate kids are presumed unfit. Father had a long-term relationship w/mom, but not married. Mom died and kids were removed and then a hearing was given. 1. State made unfitness the issue, took kids away, then a hearing after the fact. Thus, hearing is required before the taking (PDP). 66

Constitutional Law Outline iv. Glandice v. Klien – Law: to qualify for lower in-state tuition in public univ, must be resident of state. And whatever your residency was upon first applying to school, that remains during the whole time of schooling: can‘t start as non-resident and then move in and become a resident. 1. State (1) made residency the issue, (2) presumed residency fixed at time of first applying 2. A durational residency requirement for lower tuition is OK, but can’t irrebuttably presume that one will remain as a certain resident. Need a hearing on intent to remain in new state. d. EP: EP and Irrebuttable Presumption i. Modern Approach: 1. IP no longer raise PDP issues, just EP issues 2. All pass under the RB level of review 3. Use this modern approach first, and keep Bell and Stanley in mind (P DP). ii. Cleveland v. Board – if pregnant for 4/5 months you had to quit if public school teacher 1. Ct held: Mandatory leave was not OK b/c PDP issue & req‘d a hearing a. it created an irrebuttable presumption that pregnant women at that stage couldn‘t perform all duties when many could i. Mandatory leave rule is too broad: it presumes a fact that is not necessarily or universally true. You must have individualized determinations. ii. Since this is a deprivation of life, liberty, property, an administrative convenience won‘t justify it. b. This case is really an EP classification on medical condition, so it should have gotten a RB level of review. But under RB, the law would have been sustained… you can‘t have nonsensical laws. iii. Weinburger (controlling case) - widows/stepchildren of deceased aren’t qualified for SS benefits if wed less than 9 months before death. Durational req upheld. Concern: you don‘t want people to marry fraudulently just for the benefits. Claim was that it was a loving marriage so a hearing was needed. Ct applied RB test and it passes. 1. In this case DP not implicated even though irrebuttable presumption; SC said IP is just a classifier, so use EP  RB. iv. A non-contractual claim to receive funds from the public treasury enjoys no constitutionally protected status. 1. Not a PDP case but an EP case a. Rejects Irr Presumption even though SC never said Irr Presumptions don‘t implicate PDP. b. But since then Irr Presumptions have been treated as EP classifiers. i. Under EP clause, gov can irrebuttably presume all the time 1. Mass. v. Mergio – gov presumed if you turned 50  unfit to be cop. 67

Constitutional Law Outline a. Under RB test you don‘t consider rx adequate alternatives, such as a hearing before the deprivation (P DP). FIRST AMENDMENT: FREE SPEECH 1. 1ST amend: Congress can make no law abridging freedom of speech (this applies to states via 14th amend) 2. Approach: a. First decide if content based regulation or content neutral or when the government is the speaker or if symbolic speech or if commercial speech or if religious speech i. Factors in considering content based vs content neutral: 1. Look for a law that principally has a concern for content or neutrality 2. Preference for Message or view point? a. If yes content b. If no neutral 3. Consider if there is a non speech gov interest a. I.e liter, congestion, noise a. If law directly relates to non speech interest, then better chance of neutrality b. Content Based Regulation: i. Content based = when the gov places its authority on one side of an argument ii. Start with one of the specific tests, if they apply 1. Regulation of radical political speech / Clear and Present Danger a. radical pol speech = advocating unlawful or illegal acts to achieve political gain, can‘t be regulated unless C&PD 2. Regulation of Defamation a. apply NY Times v. Sullivan and its progeny 3. Tort Right of Privacy a. not the fundamental right of privacy; here it is the right to be left alone and keep info private 4. Obscenity / Porn a. Apply Ca v. Miller 5. Fighting Words a. regulation of profanity b. Chiplinski v. New Hampshire iii. If a specific test doesn‘t work or fit, then apply the CSI test for the content based regulation iv. Content Neutral Regulations = reg of time, place and manner of speech 1. 1st ask which Forum/Place the facts deal with: imp part of balancing is nature of place and what society traditionally accepted a. Traditional Public Forums: Intermediate test “substantially related to imp gov ends” or “narrowly tailored to accomplish sig gov ends;” i. Streets and sidewalks and public parks ii. Public Forums have always been open as places of FS. 68

Constitutional Law Outline b. Designated Public Forum: Intermediate Test “substantially related to imp gov ends” or “narrowly tailored to accomplish sig gov ends;” i. Not traditional, but through custom, practice and habit in a given community, they have taken on the role of a traditional public forum ii. Univ of MI allowed student groups to use classrooms when classes were not in session. Ct said empty classes were designated public forums. Univ didn‘t have to dedicate the rooms, but once they do, it is des public. iii. i.e. town squares c. Limited public forum: Rx basis Test i. i.e. airports 2. When the Government is the Speaker a. If fed gov provides funds and you accept the funds, you become gov as speaker and gov can regulate as it wants to (normal rules don‘t apply) b/c government has FS too. c. Symbolic Speech i. Apply the O‘brien Test d. Religious Speech i. Apply Lemon Test e. Commercial Speech i. Apply Central Hudson Case test f. In addition to these tests, the court may strike down the law due to concerns for: i. Void for Vagueness and Overbreadth ii. Concern for Prior Restraints g. Regulation of Content based threatens free speech more than regulations on content neutral speech i. Example: if X is passing out flyers on PCH protesting CCC policies, and he is sent to jail for criticism of the government, it would be regulation of content b/c the gov is placing authority on one side of the argument. ii. But if the protestors were removed b/c they were a traffic hazard, then content neutral b/c they didn‘t care about the argument itself, just cared that they were protesting in the wrong place. 3. Minimum Access vs Equal Access a. If a law is content neutral, use the balancing / intermediate test = ―minimum access‖ i. Some right to use public forum b. Content based regulation = ―equal access‖  CSI test 4. CONTENT BASED: Regulation on a type of speech (political, religious), attempt to regulate message or point of view, distinctions based upon nature of group/speaker a. Specific Tests i. Clear and Present Danger Test 1. Only use for rad political speech: advocacy of violence/law violation 2. Brandenberg v. Ohio – leader of KKK gives a speech in which he threatens vengeance on blacks & jews. The leader is convicted under Ohio statute for holding a KKK rally. USSC held that the statute was unconstitutional by using the Modern Clear & Present Danger Test. 69





Constitutional Law Outline Rule (VERY STRICT TEST) a. Rad Pol Speech is protected, unless u have the 3 elements: i. Words of Advocacy of Unlawful Acts and 1. Only the advocacy of action is unlawful, not enough to teach ideas (i.e. doctrine of violence) ii. Advocacy Directed towards producing imminent lawless acts and the Specific intent to accomplish unlawful acts iii. Likelihood of success of achieving the violence b. EXAM: ―there is a violation if X says words with such power and force, with the specific intent of accomplishing it, and the likelihood of doing so.‖ Hypo – a black panther said to a group that Pres Johnson sent black and latinos to Vietnam to die…he has killed them, lets now kill the Pres. He was arrested for threat against the life of the President. a. Is that protected? b. Ct said yes, protected, b/c i. May have used words of advocacy 1. lets kill the Pres ii. But did he do it w/ specific intent? 1. No, just rhetoric, that‘s the way they talk iii. No proof that audience would take steps to accomplish c. Shows the high level of protection for political radical speech Ramifications a. If you are involved in group w/ lawful and unlawful aims (words), you are responsible only if: i. you are aware of the unlawful aims (words) and ii. you have the specific intent of accomplishing them. iii. ie. – Member of communist party with lawful and unlawful aims, and the Ct has said you can be prosecuted for being in Commy party only if you are aware of unlawful words and have the specific intent of accomplishing them. b. Participation in some civil protest and a certain member of protest is engaged in violent protest, you are not responsible for violence unless i. you knew of the violence ii. and had specific intent to accomplish them c. Gov can’t ask if you are in a member of a group w/out asking about its unlawful aims i. i.e. are you in Comm party; are you part of their unlawful aims 1. Cannot ask only if you are in Communist party w/ out asking about unlawful aims Two Instances when the Clear and Present Phrase (not test) is used: a. Rule: a person can‘t be punished for a stmt about judicial system if he made the stmt outside the court and he was not a party to the action unless the stmt present a clear and present danger to the fair administration of justice. 70

Constitutional Law Outline i. In no case has this clear and present danger been found b/c judges are above or should be above such intimidation ii. Bridges– a national labor leader, was visiting CA during a trial w/ the union; he was not a party. He was asked about the chances of the labor leaders getting a fair trial and he thought there was no chance that the right wing judges could do that and he was held in contempt of court for a statement made about an ongoing trial…not made in courtroom, but outside of court. b. Phrase used w/ Prior Restraints (see below) ii. Defamation Torts– П has burden of proving falsity 1. Pub Fig and Matter of Public Concern: a. Ny Times v. Sullivan – the group of civil rights demonstrators place ad in paper soliciting contribution for their group, which had factual inaccuracies. Sullivan was one of three police commissioners that sued and got judgment against the paper (the others won too). i. Underlying themes: common sense point: if gen political criticism is easily converted to def, it destroys pol speech ii. Ct overturned and said that def of public officials is actionable only upon actual malice iii. Con malice = intentional falsehood or Reckless disregard. iv. Truthful discussions of political matters must be protected and must still protect some false/unworthy b/c need it as a buffer zone to protect worthy speech. b. Constitutional Malice = Reckless Disregard or Intentional Falsehood i. Reckless Disregard = Δ had serious doubts, but said it anyways 1. Subjective standard: don‘t care about TARP, but whether the person who said it had serious doubts ii. Intentional Falsehood c. Three Types of People: Public Officials/Figures i. Public Officials 1. Elected public officials; any gov employee w/high level of responsibility for public affairs; ok even if recently left office 2. Standard - Actual Malice, get punitive & presumed ii. Two Types Public Figures: They voluntarily draw themselves into a matter of public concern…not just drawn into it 1. General a. People we instantly recognize; they can use their access to the media, they assume the risk, and they invite critical comment b. Standard – Actual Malice 71

Constitutional Law Outline 2. Limited a. Public Figures only as to those things that make them public b. a person who has notoriety w/a particular matter c. The state controls standard as long as its not Strict Liability d. i.e. saying the head of MADD was arrested for drunk driving would make her a public figure, but if you said she was arrested for larceny, she would be a private figure 2. Private Figures Involved in Matters of Public Concern a. They are drawn into the public; involuntary b. The state can set the standard, but must be at least N c. If standard fir liability is N, limited to you are limited to actual damages only; can‘t get punitive and presumed i. Can get economic loss, but can get more if you prove… loss of reputation, loss of self-esteem, dignitary damages. d. Examples i. Monica Lewinsky – priv figure having sex w/ Pres ii. Kato Kalin – priv figure drawn into media iii. I.e. person on vacation is hostage in Iran and LA paper says he is a drug dealer, but it is false. iv. I.e. – northern California, a Manson girl tried to assassinate pres Ford; an individual in crowd sees gun and knocks it away. Paper reports life was saved by gay man. Family didn‘t know that. v. Senator ridiculed people who got grants, he ridiculed a scientist, scientist sued and press covered it like crazy. Not enough to be a pub fig just b/c media is interested. vi. Firestone - Mrs F in high profile divorce w/lots of sex, F name is instantly recognizable, Mrs F held press conferences often. Time mag reports that divorce was granted b/c of Mrs F‘s adultery. Incorrect info. 1. Held: Priv Fig, MPC. She did not invite pub attn. vii. Gertz – a PO was convicted of murder. Gertz was the victim‘s lawyer in the civil case against the cop. D, a publisher for magazine, claimed that there were conspiracies against the police to further the communist party. In the paper, they said Gertz was a communist who framed the cop, even though he had nothing to do w/ the criminal action and no proof of communism. 1. Held: he‘s a Priv Fig in a MPC. B/c he did not assert himself into pub attention. e. Private Figures Involved in Private Matters i. Strict Liability 72

Constitutional Law Outline ii. No limitations on damages; you can have presumed don‘t have to prove anything) & punitive (not necessary usually) iii. Dun & Bradstreet - The only case where the SC has considered the category of private figures and speech that is not of public concern. 1. The Court said that the credit report (false credit report was the speech at issue here) did not involve a matter of public concern because it was circulated only to five subscribers, it was required to be kept confidential, and was thus of interest to its specific business audience only f. No limits to damages once actual malice proven 3. Rights To Privacy Tort – look at degree to which this restricts free speech a. Four Causes of Action: i. Revealing Private Facts ii. Appropriation iii. False Light iv. Intrusion on Seclusion b. Revealing Private Facts c. Reveal it in a way that the it shocks the conscience d. To analyze this area two issues need be addressed: (1) Tort Issue and (2) Constitutional Issue. i. Elements of Tort: 1. Acts MUST be private (can‘t be revealed by participant(in any significant way) 2. Revealing private information that is highly offensive (shocks the conscious) 3. NOT newsworthy or involving a MPC a. Presidents‘ report said that he got up once a night to urinate, but w/out urgencynot newsworthy ii. If these Tort elements are met, the Constitutional issue must also be resolved before there can be a violation. Constitutional issue: CSI applied 1. The revealing of truthful facts is protected if a. The information is lawfully obtained i. usually the newspaper lawfully obtaining it ii. Cross Over Issues iii. If not lawfully obtainedintrusion on seclusion iv. If not truthful factsdefamation &/or false light v. Hypo – one had illegally seized a cell phone conversation and transferred it to the newspaper. 73

Constitutional Law Outline vi. can‘t punish the newspaper b/c they didn‘t seize it, the person that did the seizing gets punished 2. Unless some interest of highest order justifies punishment a. Scenarios that don‘t satisfy the CSI test i. Names of juvenile delinquents ii. Names of judges under review iii. Names of rape victims 4. Misappropriation a. The taking of someone‘s likeness for commercial gain b. Zacchini – news reported the act of a guy who was shot out of cannon, even though Z asked him not to. i. USSC held: Appropriation found b/c they reported the whole act. 5. False Light a. Something false is said about a person, but not defamatory b. It could even be flattering statements c. Standard – intentional falsehood or reckless disregard i. Not clear on standard for priv fig‘s – maybe N d. Bio said baseball player was a star little league player, its not a defamatory statement but its enough for FL e. Time v. Hill - Hill family in the 50s had been terrorized by 3 escaped convictsfiction novela play  a movie. Life mag talked about the play based on the novel. The mag reported the true situation, and made factual errors such as the daughter suffered verbal sexual abuse, Mr. Hill was portrayed as courageous in defending which was not true either. i. USSC rev‘d Hill victory b/c it req‘d proof of intentional falsehood or reckless disregard 1. Private persons caught in MPC; Note that in defamation this type of a person would get a different standard: at least N w/ limitation on damages. Here, intentional falsity or reckless disregard is req‘d b/c harm is so temporary 6. Intrusion on Seclusion a. Intrusion occurs when one invades another‘s privacy in an illegal way in order to get information on that person. b. Ct has not granted any free speech protection on lawsuits on intrusion. SC is unsympathetic towards the media doing this and against their 1st Amendment claims. They allow damages, but no injunction. c. Held: Media outlet could be sued for intrusion when reporters rode along with PO in executing arrests and SW. iii. Obscenity and Pornography: Sexual material is protected unless satisfies the 3 parts of the test, soft coreprotected, leg discussions of sex protected. All but hardcore porn is protected 74

1. 2.




Constitutional Law Outline Sexually Explicit Material is protected by 1st Amend unless it satisfies the Miller v. Ca Test Miller v. Ca Test: held all sexually explicit speech except for Hard core porn is protected. a. 3 Elements when sexually explicit speech is not protected: i. Must appeal to the prurient interest of the average rx adult 1. Prurient interest = unnatural curiosity w/regard to sexual matters 2. Judge harmfulness based on impact on average rx adult, not susceptible members of society kids ii. Patently offensive to the community (two sub elements) 1. Applying Contemporary Community Standards AND a. Allows each community to define it differently (local standard) b. I.e. some communities like NY, Las Vegas, and LA might have their own view as to what offends their community (some cities are more tolerant of obscenity) 2. As Specifically Defined by a statute or judicial interpretation of a statute iii. Must be without serious literary, artistic, political, or scientific value (not limited to this) b. Apply this test so that all but hardcore porn is protected Jenkins v. GA - GA cts found the mainstream movie, ―carnal knowledge‖ obscene and not const proteced…used F word many times, but not sexually explicit. a. S Ct reversed b/c Contemporary Community standard doesn’t mean each state can do what they want. W/out serious value is a national standard, not a local standard. i. This is consistent w/ free speech of NY Times must protect some unworthy to protect all worthy. ii. ―I don‘t know how to define it, but I know it when I see it‖ Paris Adult Theatre – city filed to have movies that show obscenity in theatres enjoined from having permission. Issue: Is sexually explicit speech allowed outside the home? a. SC said outside the home there is NO absolute right to view, see or read sexually explicit material. ―Obscenity possibly endangers public safety‖ and the S Ct spoke of ―the interest of the public in the quality of life and the total community environment and the tone of commerce in city centers. Concern for Children: Regulation that impacts only kids is con, if it impacts adults also it will probably be unconstitutional a. Ny v. G – law: you can‘t sell sexually explicit stuff under 16. i. Ct said it is Const b/c limit is only on kids, its viewed diff then a law that regulated porn for adults also b. Ferber Case 75

Constitutional Law Outline i. Even stuff that doesn‘t satisfy Ca v Miller, you can prosecute if sexual abuse of kids is found within the film c. Osborne v. Ohio i. child porn possession is not allowed even if in your own house ii. Adult porn in house OK, but no child porn anywhere d. Sable Communications – law attempted to regulate phone sex b/c of impact on kids (kids dial them up) by registering ahead, verifying age and a week later they get a registration number i. Ct said this restricts free speech of adults too much ii. Trying to protect kids, but affected 1st am rights of adults, and phone sex doesn‘t satisfy the Ca v. Miller test iii. BUT if they would come up w/ dial up porn that requires credit card  might be constitutional e. Child Decency Act: law said u can‘t send indecent stuff to kids i. 1st Question: Does it just limit kids or does it impact habits of adults? 1. Ct said indecent speech is protected by 1st, since the Internet can‘t determine age via keyboard; the law impacts all adults and violates constitution. ii. So apply the adult Ca v. Miller test. Law struck. f. Ashcroft case – C sought to regulate cyber child porn: computer depictions of kids in sex acts either by use of computer images or altering pictures. i. Ct said virtual child porn protected unless satisfies CA v Miller; also, also since its virtual, kids weren‘t involved in the porn ii. State argued that even if it would create a propensity to commit child porn, ct said that tendency is not enough to ban it. g. 96 law by C bans sexually explicit speech sale via internet i. if limited to sale to kids, then it would be constitutional b/c age can be verified easily by possession of credit card…kids don‘t have credit cards h. law: Can‘t provide commercial porn to kids, likely that the law will impact only kids and not the adults viewing habits. Probably constitutional i. Hypo – federal law requires that libraries that receive fed funds must have filtering devices to prevent kids from accessing porn i. Ct said devices are unconst j. US v. Playboy i. C passed a law requiring that broadcasters segregate sexually explicit materials to a few stations and totally scramble it; if they could not, then it would be limited to 10pm-6am. Playboy challenges this. iv. Fighting Words/Profanity 76

Constitutional Law Outline 1. Chaplinsky: Fighting words are protected by the 1st amend unless they satisfy three elements: a. Have to use the right kinds of wordsFighting Words i. Vulgar or profanity directed at another ii. By their very utterance would inflict injury or would cause a physical reaction; if physically capable we would try to strike back (concern is keeping the peace) b. Must involve a Face to Face Confrontation c. The Law must be limited to Fighting Words i. If its not limited to FW, its overbroad and can‘t be applied even as to FW ii. Houston – FW said in gay area of Houston. Important b/c cop in gay area is giving a ticket and D says leave us gays alone. He uses vile language in attacking the cop; charged w/interference of cop in performance of duty. 1. The law here is interference w/cop‘s Duties 2. The law is not restricted to fighting words…it reaches interference. Example of overbreadth doctrine 2. Hypo – man in boat starts to sink and starts to swear. The sound is carried well by the lake and others are offended and prosecuted for violation of state law against such speech. a. Conviction was reversed b/c it is protected (didn‘t satisfy Chiplinski standards) 3. Hypo – street ministers offends others b/c telling other they are going to hell a. Speech can‘t be prosecuted unless clear and present danger; having one‘s feelings hurt is not a good enough reason 4. Cohen v. Ca – Cohen wore a jacket that said fuck the draft. Convicted for violating CA statute, but S Ct said Not obscene under porn cases and not FWconstitutionally protected 5. Rav v. Minnesota – Use of symbols or words intended to offend on others‘ property is made a crime (hate speech). D was prosecuted under an ordinance that made racist fighting words a misdemeanor. S Ct rev‘d b/c law didn‘t ban all FW, only one category, so it was content based (gets CSI which it failed) a. Law Uncon b/c not limited to face 2 face confrontationMcG opinion b. Hate speech mostly is protected by 1st absent Chaplinksy factors b. CSI Test after Specific Tests don’t fit/fail (alternative argument) i. A stricter test…they could apply any of the specific tests if it applies. But what typically happens is the CSI test as a fall back test 1. Narrowly tailored/necessary to accomplish compelling state interest 2. stricter than content neutral ii. Hypo – law: no political ads on public busses. This is content based  CSI


Constitutional Law Outline iii. Edison v. PSC – law: public utility companies can‘t have inserts in their bills involving controversial issues of public (can‘t advocate atomic energy b/c too controversial). 1. Content based (labels a type of speech and makes it off limit)  CSI; whatever the interest here is, not enough to outweigh FS c. Content Based Regulations of Broadcast media and TV  Intermediate test i. Red Lion - law: right to reply, FCC regulation that gave the right to reply to unfavorable radio comments or TV endorsements to political candidates.) Ct upheld this right as constitutional. Different then Pacifica b/c gov ownership and regulation of the spectrum so broadcast media, TV and radio can be regulated. (1) They own the spectrum over cell phones; etc… the ownership gives gov the right to regulate it. (2) Since its a limited resource, the gov needs to reg it. (3) It enters the home in a pervasive way and gov is justified in protecting kids. Get an intermediate test. So when gov regulates speech on TV it’s a Int test for content based reg. ii. Pacifica – law: no indecent speech Ct has held that use of indecent speech can be regulated on radio, TV. Can allow indecent speech late at night (safe harbor). 5. CONTENT NEUTRAL = Found in context of Regulations of Time, Place, and Manner which advances a non speech gov interest often involving use of public forum. Intermediate Test a. First, establish that regulation is content neutral: i. Regulation is Content Neutral: Applies to all types of speech or music, etc ii. Often involving time, place and manner of speech (NOT THE CONTENT) 1. i.e. not so loud, could you turn it down please iii. Must be in advancement of non-speech gov interest: i.e deterioration of neighborhood, congestion of sidewalks iv. It can be Content Neutral even if there is some Consideration of Content: 1. only if: a. The view point/message is neutral AND i. As long as no regulation of specific message, then some regulation of content allowed 1. no attempt to regulate whether liberal or conservative; against family values or not; opposed to war or for it ii. If regulation of messagecontent basedCSI b. The content directly relates to the non speech gov interest i. Adult vs family theatres is content, but the content directly relates to the non speech concern; Here, adult theatres impact neighborhood differently vs. family theatres c. And the law is principally concerned about a non speech gov interest i. if simply content basedCSI ii. In Rentin and Young, there is a concern about deterioration of neighborhoods iii. Difficulty is that the cts are inconsistent 78

Constitutional Law Outline 1. 1 distinguishing pt: consideration of content is limited to sexually explicit speech in the theatre case; majority of the ct has not said that, but individual dicta has revealed this possibility 2. City of Rentin – stands for proposition that there can be some content consideration, but still get intermediate test of content neutral. Regulation of adult theatre…its w/in 1000ft of residential area. a. Normal rule – content basedCSI; neutralmid level b. Here – some content considerationstill get mid level 3. Young v. Am mini theatre – Detroit law said you can‘t have adult theatre w/in 500ft of residential area and you couldn‘t have more than 3 regulated uses w/in 1000ft of each other (i.e tattoo & massage parlor) Certain types of uses that deteriorate neighborhood by lowering property values and increasing crime. If these uses are spread out, then you don‘t have such a great harm. a. Content neutral: b/c content does not concern a message & it directly relates to a non-speech gov interest (Concern for deterioration of neighborhoodnon-speech gov concern) But law itself distinguishes b/w adult & family theatresreg of content. 4. to distinguish, either limit them to the basic facts, Mcg thinks you should show that the overall regulation is CN in the sense not related to message/point of view and the content directly relates to the non speech gov interest, the intermediate test is ok. b. Next, establish the Place/Forum to know which test to apply i. Public Forums (Traditional & Designated)  Intermediate Balancing Test (pick one: must sub relate to imp gov int or sig adv sub gov int) 1. Traditional Public Forums = Streets and sidewalks and public parks 2. Designated Public Forums = Not traditional, but through custom, practice and habit in a given community, they have taken on the role of a traditional public forum a. Case – University of Missouri allowed student groups to uses class rooms when classes were not in session. Ct said these empty classes were designated public forums. Univ didn‘t have to dedicate the rooms, but once they do so, it is so designated. b. i.e. town squares 3. Approach: Not as strict, the court will do a ―balancing test‖ to fairly consider the interests at stake a. Balance the Harm to speech vs. importance of gov interest b. Other Common framing – narrowly tailored to accomplish significant governmental interest c. Two parts to Narrowly tailored to serve significant gov interests i. Significant gov interest ii. Narrowly Tailored to Accomplish 1. Consider two things: a. Rx adequate alt for gov to advance their non-speech interest w/out restricting speech 79

d. e. f. g.

Constitutional Law Outline i. is it necessary to restrict speech to advance that gov interest b. Are there rx adequate alternative places, times and manner for this speech that are just as effective as the one they barred i. Example – Law: can‘t sell at fair unless you have a booth. Christians couldn‘t sell their books b/c they didn‘t have booth. Ct said content neutral, non speech interest of protecting against congestion. The Christians had another way of reaching their audience other than the fair itself such as the sidewalks, etc, so the law passed. I.e. parades interfere w/ traffic I.e. Picketing on sidewalk, interfering w/ ingress and egress into stores and concern w/ congestion in general Public parks‘ people who want to enjoy recreation Leaflets Fact patterns: i. Sneider –law against passing out leaflets. Content neutral (B/C It bans a TPM gov reg, a non-speech gov interest, littering) Ct balances the competing interests using the intermediate test 1. Narrowly tailored to accomplish sig gov interest / substantially related to important gov interest a. Here, Harm to free speech: think about types of people passing out leaflets, you hurt minorities of labor and religion who won‘t be on the news or in newspapers or magazines, so by banning leaflets, you damage FS of dissident points of view. b. Here Legit gov concerns – liter is a strong legit concern. If we care so much about liter, then driving under the influence, racism, and other societal ills will be legit too c. Balance 2 interest: FS wins b/c there are rx alt‘s: prosecute person who drops the leaflet. ii. Hypo – what if leaflet is dropped out of a plane that leads to thousands of leaflets in the city. FS will not win b/c there is a lot more litter and not the same rx alternative. iii. Edwards v. CA: protest in front of CA ok, that‘s where it should be iv. Bensont – law bans posting of poster on phone poles. 1. Content neutral test is applied a. Time place and manner – ―not on telephone poles‖ non speech gov int = the visual liter of people posting things everywhere 80

Constitutional Law Outline b. Balance – is it narrowly tailored to accomplish the sig gov interest? It‘s the sneider case, except can‘t blame the litter on the person who drops it. Gov aesthetic interest outweighed FS interest. 2. It was argued that this hurts political speech a lot, so they want an exception for it. If this happened, this would be a content-based regulation that would get CSI would not pass the CSI test. ii. Limited Public Forums Rx Basis Test (assumes law is content neutral) 1. Rx Basis: regulations of non public forum (law restricting FS) must be rx 2. Limited Public Forums = areas that are so dedicated to another use, that a full a protection of FS is inconsistent w/the other use a. Examples: airports, post offices, common areas, mailboxes of public school teachers, and government offices, military 3. Airports: a. Krishna‘s selling stuff at LAX. Concern was congestion; moving people quickly from cars to gates & FS is inconsistent. Now, concern is also security, inconsistent w/full protection of FS. i. LPF so intermediate test doesn‘t apply, it‘s a Rx basis test allowed preventing Krishna‘s from selling (FS loses) material but giving away material for free  FS wins. 4. Post office 5. Mail Boxes in Public Schools a. Perry Educ Assoc - involved a public school had open mail boxes for their school teachers. Various people used it for messages such as BSA and GSA. The public school allowed the recognized union to distribute to teachers using the mailboxes, but challenging unions were not allowed. i. Ct said this is not content-based b/c there is no approval of any particular message/point of view. ii. The mailboxes are not traditional public forums; they are intended for teachers and should be restricted for comm. b/w teachers. 6. Government Offices a. Charitable solicitation in gov offices not allowed by Pres Reagan – content neutral b/c not just against liberals or conservatives, but against all partisan groups i. Gov offices are non-public forums, so rx basis iii. The following four scenarios were dealt w/before the court decided to consider limited public forums. But if on test, apply them as limited public forums b/c they are dedicated to another used that full protection of FS is inconsistent w/ that use. 1. Forbes v Arkansas – there is a gov owned television station. Broadcasters have same FS rts as all others and they can choose who they want on. The station sponsored a debate, and they excluded Forbes 81

Constitutional Law Outline b/c he was not a ―legit‖ candidate. He asserted that this was a public forum, and his exclusion was a content based exclusion which would get the CSI. a. Ct said not content based (not liberal or conservative) but neutral b/c wasn‘t legit candidate i. Next, it was non-public forum; limited forumrx basis test. Excluding candidates who are marginal in possibility of winning is rx as a means of covering public issues and having enough time for legit candidates to get their point across. 2. Aderly v. Fl – civil rights protestors go onto the property of a jail b/c some of their friends are jailed, but it was a good-natured protest. But the jail, out of security concerns, asked them to leave, which they did not, so they were arrested. a. This is content neutral. Once that is established, then consider the place, here a jail, which is inappropriate for full FS exercise. Apply Rx Basis. b. An appropriate place for protest is the capital definitely b/c that is where laws are made. In jails, there are special security concerns that don‘t usually exist elsewhere. 3. Brown v. Maryland – protest of racial discrim by public librarian, which consisted of black men entering the library and standing silently. Look at nature of place to determine if it was an appropriate place for protest. Here it was b/c the they stood silently; normally its inappropriate, since the type of protest was silent, it was OK. 4. Protests in military bases: but for the sign that says military bases, it looks like a normal town. But, the concern for security is different b/c the nature of the forum is an important part of balancing process, here it is a military base. iv. Private Placesintermediate 1. Fed law: if you want to be off somebody‘s mailing list, then it must be so. Ct upheld it as content neutral regulation. 2. Linmark Assoc. - city law: no for sale signs on front yard. Involves racial dynamics of the community: a racially diverse community in a transitional mode, where minorities moving in, whites moving out; minorities coming inprices go down so move before it happens - so the law was passed. a. Although, it just bans for sale signs, ct said it was content neutral b/c no attempt to control a point of view (concern was blockbusting) Hurts speech, Fails intermediate test b/c no other rx adequate way of communicating sale of house. 3. City of Ledoux – city said, no signs on property except for sale signs. Here, guy opposed to war, put a sign on house against the war. There is some concern for content based, but ct said, even assuming content neutral b/c purpose is concern for looks in neighborhood, applies the mid level test, the law fails. Gov interest in protecting esthetics of neighborhood is important, but this restriction restricts speech too 82

Constitutional Law Outline much b/c their own property may be the only place where one can really express their points of view. a. Also rx alternative ways of addressing concern: ban signs that are too big, etc… don‘t ban all signs in general. 6. Content Based (strict test) and Content Neutral Cases (intermediate test) a. Picketing Cases – i. Summary 1. No picketing w/ content based law  CSIfails test 2. No residential picketingintermediatefails 3. No focused picketingintermediatepasses ii. Boos v. Bary – likes this case b/c illustrate competing approaches. Wash DC law intended to protect the integrity of foreign embacies. Law: (1) no picketing w/in a hundred feet of a for embassy and (2) no signs that hold the foreign embassy up to public ridicule. Its actually one law. Ct divided it into two parts. 1. 1) No picketing w/in a hundred feet of a for Embassy: a. Content neutral b/c concern for security of embassies a non speech gov interest. Doesn‘t matter what the person‘s point of view is. i. if you say no picketing w/in 300 feet that might be too far, but just a balancing test ii. it does just deal w/ foreign embassies, but this doesn‘t deal w/ content b/c concern is security of foreign embassies iii. Gets intermediate test which is upheld. 2. 2) No signs that hold the for embassy up to public ridicule: a. Gov int of some importance- if pres of China comes in and want some trade negotiations, we don‘t want their feelings hurt. This is content based (CSI) and this concern is outweighed by FS concern. iii. Carrey v. Brown – law: no picketing of a private residence except for (1) when the private res is used as place of business you can have labor picketing; or (2) when the place is used for groups involved in public protest/public advocacy groups meet there, then you can have responsive picketing; or (3) picketing yourself 1. Non speech gov int is privacy of home. But it is advanced using content b/c of the exceptions, so CSI test. Law was struck down. iv. Hypo – law: no picketing in residential areas. 1. Content neutral test. Intermediate test. a. Harm to free speech – substantial b/c bans all residential picketing b. Fails the balancing test. v. Frisby v. Schultz – law: no picketing focused on one particular resident. Concern of people picketing against abortion to people who do abortion. 1. Content nuetralbalancing test (this law is upheld) a. Sig gov end is privacy of home b. Balance free speech harm vs sig gov end w/ the facts i. This doesn‘t hurt FS as much as banning residential picketing in general 83

Constitutional Law Outline 1. Protection of residential privacy is greater than the harm to FS ii. Invasion of privacy of everyone in a neighborhood is diff than just one person iii. Leaves open ample alternative channels of communication b/c only picketing is banned vi. Chicago v Mosely – law: no picketing near a school house except for labor picketing. The non speech gov concern is peace and quiet in school so learning may advance. City argued it was content neutral: time place and manner and advancement of concern for education advancement. 1. Ct looked at it differently: its not neutral b/c distinguishes b/w some speech and labor speech… its content based. 2. CSI test is thus applied a. this historically was found to be an EP situation  fund rt (free speech)  CSI, but cts rejected that EP b/c it doesn‘t advance us much, but the CSI test remained. b. Madsen Case – (nice case b/c reads like his lawschool exam) there is the problem and its regulated in certain ways…1,2,3,4. Injunction and prior restraints don’t apply to content neutral regulations. Just view it as a regulation. Problem is w/ abortion clinic protestors approaching abortion patients. i. Regulation 1 – 36 foot buffer zone w/ drive way and the entrance into the clinic. (not content based just b/c deals simply w/ abortion clinics, but neutral b/c just concern w/ access to clinic; no concern w/ points of view) 1. Ct said it‘s a close call. Int. Test balancing test: concern for access, only the front entrance regulation passes the test. But w/regard to the back & sides entrance it doesn‘t pass. Balancing test is strict ii. 2 – no loud noises before 7:30am – content neutral gov interest for no loud noises before 7:30. Pass the balancing test iii. 3 – no images observable from the abortion clinic – Content Based b/c concern is images which dissuade people from abortionCSI and fails test 1. as long as signs don‘t have physical threats, they will be protected iv. 4 – can’t approach the person w/in 300 ft.  content neutral 1. Hurst FS – 300 is too far, similar to residential picketing, law struck c. Hill v. Colorado – law: can’t approach w/in 8 ft of an individual w/in a 100 ft of a birth control clinic. Can stand next to the clinic and as they walk by pass out the leaflet, but can‘t approach w/sign, leaflet, or orally to influence the decision. i. Content neutral – b/c deals w/ pro and con influence. 1. 300 ft was out before, but here its different b/c its 100. 2. That other one said no approaching at all, here it says no approach w/in 8 ft and you could also here just stand and wait for them to approach you 3. So passes the test. 7. Government as the Speaker a. Rule: fed gov is providing funds and once you accept these funds, you become gov as speaker and gov can regulate as it wants to (normal rules don‘t apply) b/c Gov has free speech rights just like an individual does i. FS doesn‘t require that gov be neutral in point of view 84





Constitutional Law Outline ii. Gov as speaker can say whatever they want and decide whatever opposition views it wants to have Rust v. Sullivan – Reagan issued an exec order: planned parenthood groups that rec‘d fed funds, could not provide any info at all involving abortion: no pamphlets, couldn‘t speak of it. i. Challenged as violation of FR of privacy: Undue burden 1. held regulation of fundingRB; law encourages full term pregnancies ii. And challenged as FS of employees b/c can‘t say anything about abortion 1. it would be FS violation if the law regulated priv individuals. But here, the law regulates people receiving fed fundsso they are subject to the restrictions the gov puts on their speech, b/c the gov is the speaker: can‘t take our money unless you provide our message. National Endowment for the arts v Finly - performance artist was disqualified for getting funds from the endowment fund. Congress adopted a rule that prevented sponsoring indecent speech (some is protected by FS). Law challenged by artist  art was covering herself w/ chocolate… i. USSC: Gov is funding it, so they can choose b/c gov is the speaker Exception: Case – laws restricting fed funding for legal services attorney. One of these laws restricted the kinds of arguments that could be brought against the new welfare reform package: fed funded legal services attorneys could not challenge the const of these programs; they could challenge other aspects of the program. i. Ct said there are gov funding legal servicesgov as speaker; but precedent cases don‘t apply b/c: 1. the role of the attorney, even the fed funded attorney is to rep the client a. the attorney has the duty to say what is needed to rep the client 2. Gov didn‘t ban all welfare cases, but rather the gov regulated only ½ the message: challenge them, just not raise const issues inconsistent w/ duties of a lawyer, which is to raise all issues for your client Public school grounds i. Ct has allowed gov to reg FS on public school grounds in different ways than they regulate FS elsewhere 1. public school = schools that gov req‘s kids to go to a. only public elementary and high schools b. not public state universities 2. Since gov req‘s kids to go to public schools, it has obligation to protect kids a. Gov can regulate FS, if rx related to prevention of breaking of laws or school rules ii. Case - So the principal could sensor a high school newspaper which had articles about pregnant high school students. Principal was afraid that one might be identified in a defamatory way, so he banned it. Another article, had no names, but enough detail for people to figure out who they were. 1. Ct said the concern for privacy rx related to legit ed concerns iii. Case – a rep of a candidate of student body office of high school gave a campaign speech in auditorium that included sexual innuendo material; he was punished for speech that is protected everywhere …doesn‘t even rise to the level of profanity or indecency. 85

Constitutional Law Outline 1. Held: punishment of student was rx related to legit edu concerns f. Combo of Gov Speaker and FS on public school grounds i. Certain books were removed from public school library 1. Ct could have said that gov is buying books, so could add and remove as it seems fit (gov as speaker argument) . a. But ct said that once the gov purchases them, then they can‘t be removed for ideological reasons, but they can be removed for pedagogical reasons: i. Pedagogical: inconsistent w/ school‘s curriculumcan be removed ii. Ideological: inconsistent w/ school‘s political  can‘t be removed g. Gov Speaker w/ Public Libraries i. There was a requirement that public libraries receiving fed funds must have filtering equipment that deletes sexual speech. 1. USSC: upheld the law: gov as speaker & protection of kids. a. fed gov is providing funds and once you accept these funds, you become gov as speaker and gov can regulate it as it wants to (normal rules don‘t apply) 8. Free Speech Limits on Government Employees: i. Statements critical of their employer (related to work)  can be dismissed. ii. If limited to matters of public interest  they have normal speech rights. 1. Assistant was unhappy with her boss (DA), she circulated a critical letter re: boss, and was fired. Ct said she looses, no protection for criticism of in office employer 2. Dispatcher for PO station said she hoped they kill the pres next time they try, court says free speech protected b/c matter of public interest iii. Hatch Act: restricts the right of gov employees to be engaged in Political activities 1. Can‘t be actively involved in leadership to support political candidates 2. Restricts political activity of gov employee for purpose of preventing undue influence iv. Ct struck down congressional law preventing gov employees from being paid for writing speeches for officials. Concern for corruption  but struck. v. Political Patronage: when 1 political party is replaced by another, the wining part threw out people who were not members of the party, and hire people from his own party 1. Held: violates free speech rights to be compelled to be part of a political party to hold a gov job UNLESS the job was a policy oriented job where it is important inherently in the job to be in a political party 9. Symbolic Speech: Test: (1) Spot a symbolic speech issue/expressive conduct (2) decide if the symbolic conduct is intended to be protected as speech (3) If it is supression, decide which test to apply, content based or neutral, (4) If neutral: Intermediate/O‘Brien, If based: CSI a. Two issues i. When do you have symbolic speech; when is the expressive conduct treated as if it was speech ii. If it is symbolic speech, then what test do you apply 86

Constitutional Law Outline b. When is expressive conduct treated as symbolic speech i. Test to determine when express conduct is symbolic speech: 1. Expressive conduct is closely akin (connected) to free speech a. I.e. marching, walking 2. Imbued w/ a communicative aspect 3. Communicates a message that other people can understand a. The key part of test b. Dumping tea in Boston harbor to protest British taxation is a form of symbolic speech that Americans in the 1700‘s could understand, doing the same thing today to protest against taxes might not give rise to symbolic speech because it is likely that people would not understand why you are doing what you are doing or they might even misunderstand your message and think you are a disgruntled Lipton employee ii. Spense v. Washington (best case) – a person put a peace symbol on the flag and flew the flag upside down in protest of V war. Charged w/ desecrating the flag. He argued the flag and piece symbol was symbolic speech, and Ct agreed. 1. Here, flag and piece symbol might lead to confusion: Mercedes symbol? But still communicates upset w/ something, and in Vietnam war context, its easy to figure out what. iii. Hypo: Group of anti-abortion protestors marching down street, violating the no j-walking sign and crossing the red light, saying: ―if baby killers won‘t stop, neither will we.‖ 1. they were j-walking as symbolic speech. 2. any type of expressive conduct can be symbolic speech iv. Examples of symbolic speech: Nude dancing, picketing, carrying flags, black arm bands, gestures when traversing free ways (middle finger or shrugging to bad drivers) 1. city law: Nude dancers required to wear pasty, unrelated to suppresionist speech, so apply O‘Brien, held harm was minimal, v. If conduct is not symbolic speech, apply RB c. If Symbolic Speech, what test to apply i. If content basedCSI 1. i.e. law: can‘t wear cross of Satan, but you can wear a cross of Christ ii. If Content neutral  O’Brien Test (similar to intermediate test) 1. US v. O‘Brien – Fed law banned the destruction of draft card. During V war, many protests existed, including burning draft cards on TV in public places. a. ct said burning of the draft card was symbolic speech = speech plus some conduct. b. Ct announces 4 part test – First ask if there is symbolic speech i. W/in gov power /Old: This part of test in theory should be limited to just fed laws. (on test write ) Regulations that gov is legitimately concerned about. 1. Congress has power to conduct war, and regulation of draft is pursuant to war powers. 2. State laws are not limited to enumerated powers 87

Constitutional Law Outline 3. So this reg is related to war powers 4. NEW Meaning: But first part of test is changed to mean: there is some legitimate non-speech gov interest that government is trying to promote. ii. Is it unrelated to free expression of FS 1. Just a stmt as to why we are applying an intermediate test; that the law is content neutral. iii. Furthers a substantial or important gov‘t purpose 1. (purpose part of intermediate test) iv. It regulates/hurts no more speech than is essential to the purpose 1. (relationship part of intermediate test; narrowly tailored, considering rx alternatives) c. Ultimately, O‘brien is just what we already know, but in a confusing manner. d. Johson v. Texas - TX law: no converting of Am flag in way that offends others, court held content based restriction of FS  strict test, go through the various tests… found none of them satisfied so struck law down. e. Ct held any regulation of desecrating the flag is neural will always get the intermediate test f. McGoldrick‘s Objections to this case: Its not content neutral i. Law already req;s draft card for 18 year olds; already punished you for violations of it. This law was passed after a few people burned the draft card, to prevent an effective message against the Vietnam war. But Ct accepts Congress‘s law that expressly says its neutral. ii. Assuming neutrality, why state it so poorly iii. The intermediate test gives it a high protection to FS, so it is applied poorly here, b/c too much harm to FS while not advancing gov interest enough. 2. Symbolic speech different than regular balance of harm vs gov interest b/c symbol itself could affect the balance; symbolic aspect can affect the balance: it will either create additional governmental interest (fire and congestion) or fewer governmental interest (silence and black arm bands) a. Negative way i. I.e. law: no burning of flag, might justify restricting it b/c of concern for fire b. Positive way i. i.e. silent protest in library: symbolic speech is more consistent than pure speech, and it threatens gov int less than pure speech ii. Hypo: law: can‘t wearing black armbands in schools. 1. ct accepts this as content neutral, held does not disrupt classroom so its ok to wear. a. harm to FS vs gov interest 88

Constitutional Law Outline b. what is more consistent w/ FS i. silent w/ black arm band or chanting in back, ―war is hell…‖ d. Permit Schemes for use of public forums i. Prior restraints are presumptively invalid, remember 1. ie. Licensing scheme, permits, or injunctions are prior restraints ii. If the scheme itself does not allow consideration of content  intermediate test (content neutral – limits time, place, manner, not content) 1. If the permit scheme is a valid content neutral law (limits legitimate TPM concerns) even if the law is misapplied you have to obey the law or appeal. 2. if only allowed to consider liter, noise, congestion, first come first serve, then intermediate balancing mostly upheld permit scheme iii. If the scheme allows any consideration of content or does not limit discretion presumption is invalid prior restraint (content based) 1. i.e. who can hold a parade or, if allowing a parade b/c you like the message, then the permit scheme is presumptively invalid. 2. If the permit scheme allows the administrator to consider content, the permit scheme can be ignored, you don‘t have to even ask for a permit, even if it is properly applied. BUT… 3. If a judicial injunction is issued, even based on a invalid law, the injunction has to be obeyed or appealed. 10. Commercial Speech a. Case w/ ads on cars is example of CS i. Then it wasn‘t protected by FS, but now it is b. CS has two definitions: i. Proposing a commercial transaction ii. Related strictly to economic interests c. Basically it is limited to advertising; dealing w/ buying and selling i. Not speech for profit 1. such as magazines, newspapers, theatres, movies or books a. i.e. New York Times v. Sullivan- not CS, apply normal test b. since ad, it was CS and protected by FS d. Regulation on advertisement is regulation on CS i. Central Hudson Case Test: LOOK FOR COMMERCIAL SPEECH 1. Ad must involve lawful activity and not be misleading a. Normal speech would be protected much more, than here in CS 2. Must involve substantial gov interest a. Inter test 3. Law must directly advance the gov int a. Intermediate test - Narrowly tailored 4. No more speech must be regulated than essential a. Inter test - considering rx alternatives ii. bottom line: strike down most attempt to regulate CS. e. Statements that advocate unlawful acts are protected (absent Brandenburg v. Ohio factors) f. Hypo: Law bans commercial ads for smokeless tobacco products near schools 89

Constitutional Law Outline i. ct said protected by FS b/c hurt it too much g. Hypo: law: can‘t advertise gambling even where it is legal; law had many exceptions such as ads for lottery were ok and ads for Indian gambling was ok. i. ct struck it down b/c didn‘t advance the gov interest 1. it is an evil but so many exceptions exist the law is not needed h. Two Exceptions (Where CS regulation has been upheld) i. Law: Puerto Ricans couldn‘t advertise casino services to locals, only to tourists (b/c they didn‘t want the locals to be poor). 1. ct upheld b/c passed intermediate test – advanced gov interest of protecting locals from evils of gambling ii. FCC law: prevents radio and TV from ads for lottery where lottery is illegal. VA (illegal gambling) was advertising neighboring state‘s legal gambling 1. Ct upheld the law. 11. Vagueness and Overbreadth
APPROACH TO OVER BREADTH CASES: (1) Show that it covers invalid as well as valid free speech, (2) Then show why it may be overbroad… that may show why it is unconstitutional. · 2 things that may allow it to apply are: (a) To escape bad facts AND (b) Because it may be overbroad as to legitimate free speech - say why it's overbroad.

a. Vague and overbroad laws inherently chill speech; i. When dealing w/ Free Speech Issues, a person to whom the law is applied may attack the law as it would be applied to others. 1. Advantage b/c you get to ignore your clients bad facts ii. Non-free Speech Issues: Rule – apply the law as it applies to you; can‘t attack the law on its face as it might be applied to others. 1. i.e. Law: one may not breach the peace. This is vague, but if you are arrested for breaking windows w/ bricks, you may not contest the law for being vague. The Ct will just judge the law as it is applied, w/out care for the outer limits. 2. i.e. Law: no abortions for one after the point of viability. The regulation is constitutional and the ct could say, even though it is overbroad, as to you it is constitutional. b. Vagueness i. Vagueness is a DP concern for the lack of fair notice b/c: 1. law is so vaguely framed that inadequate notice for anyone who wants to abide by it; and 2. leads to discretionary enforcement and particularly hurtful in regard to free speech ii. Standard: when a law does not provide rx ascertainable conduct to guide one’s conduct iii. if you think it is an issue on exam, it is not b/c law tolerates considerable vagueness 1. the law tolerates porn 2. out of army if conduct unbecoming of officer a. shows that law tolerates ambiguity 90

Constitutional Law Outline 3. issue will be overbreadth most likely c. Overbreadth i. Process: 1. Involves two things: a. Show why the law as applied (what they are doing) is not protected by 1st (why you need to escape bad facts) i. That is, it must restrict significantly more speech than the Constitution allows to be controlled b. Then why it is overbroad; why it reaches protected speech (don’t just say it’s overbroad…say why) ii. Coates v. Cincinatti (all time favorite) – law: if 3 or more people are hanging out on public sidewalk and conduct themselves in an annoying manner to passerbies, they may be removed. 1. It is overbroad b/c reaches protected speech and acts that could be prosecuted; 2. what is annoyed…it could be a minister standing on street suggesting that you will go to hell or you are just minding your own business, and suddenly there is a mime. 3. This notion of being annoyed clearly reaches or might reach acts, behavior, speech, protected by 1st: street minister, mime, handing out flyers. b. Here you don‘t even get an application of law and how it applies to them; they just fight it as it applies to everyone 2. What if people on the street were spitting; this is not protected acts by 1st. But b/c of overbreadth, they get to attack law on its face and litigate the law as it might apply to the other people, while escaping your own facts which would be difficult to escape iii. Hypo – city law that banned live performances. This would prevent ligit free speech activity. But the law was challenged by an adult book store b/c they had a live performance where you drop a quarter in a box and a woman would start to dance. 1. Gets to be litigated as it might be applied to all other performances, such as Shakespeare; doesn‘t have to address nude dancing. 2. this law is overbroad b/c it prevents such things as Shakespeare iv. Hypo – law says no advocacy of doctrine of violence. The D engaging in speech that violates the Clear and Present Danger testspeech not protected by 1st amend. The D may argue: even though not protected, the law is overbroad. v. Hypo - If a law bans all political speech, and you have a dem trying to explain xyz and arrested. 1. Overbroad, but doesn‘t advantage you much b/c just say it is protected speech vi. Broderick Case - Regulation of pol activities that gov employees can be involved in. you don‘t want gov supervisors coercing employees, but they also have 1st amend rights. 1. Ct has upheld this regulation to some degree 2. B/c they balance difficult issues, they raise V and O issues 3. So ct says it requires substantial O, not any degree 91

Constitutional Law Outline vii. Case – attempt to reg obscene video games (lustful thoughts; unnatural curiosity about sexual matters) 1. Ct says V and O 2. The cts very language here is unconst V and O 12. Prior Restraints = restraints imposed prior to publication of material a. Hypo – law: if you publish xyz, you are punished = subsequent punishment i. Prior Restraint is a limitation before the act 1. before you can show the movie, you need a permit b. Modernly, most common is an injunction; the ct enjoins the publication c. Rule: PR are presumptively invalid and they can only be justified upon clear and present danger or some compelling state interest (modern cases) d. Near v. Minnesota - publication of defamatory material; defamation in Minn could be punished by civil and criminal liability. An anti simetic group pub a paper called the sat press to mock the jewish saboth by attacking jewish leaders. At the time, the publishers were subject to civil and criminal penalty. i. At the time this case was decided, defamation was not protected by Const and 1st amend. Subsequent punishments were entirely constitutional. But the Ds were enjoined from publishing and so there is no subsequent punishment. ii. Here Ct said injunction is a prior restraint, which is presumptively invalid and so it is struck down. 1. PR is more harmful to free speech than subsequent punishment. 2. Logic: if you publish something and you later go to jail for it, you are in jail, but your idea is still free; PR jails the idea from being free…restrains idea from reaching market place. Subsequent punishment leads to self restraint. iii. the only exception: 1. if gov interest of great importance, a serious imminent danger, that can‘t be protected in any other way (clear and present danger –phrase, not test) a. i.e. – what if during time of war a troop ship is about to sail and a newspaper will print the sailing date of the ship; no other way to protect troops than restraining newspaper, then it is valid e. Hypo – Dan catalogues info in pentagon and finds out the Vietnam war is total fraud. Out of conscience, he submits these papers to the newspapers. Gov heard about pending publication and got a PR against the publication. Dan could go to jail and newspapers could too for publication of gov secrets. i. cts said that after publication people could go to jail; it can‘t be restrained prior to publication f. Nebraska – murder in small town; the judge to protect fair trial, enjoined newspapers from coming to court and publishing info about the trail. i. ct said such a gag order is invalid unless there is no other way to protect fair trial of D. 1. other ways exist: sequestering jury, etc TYPES OF ASSOCIATIONS (1) Expressive Associations: cant be hurt unless there is a CSI 92

Constitutional Law Outline 1. Hurley: law prevented discrimination on sex, gay lesbian group wanted to apply it to a parade held by a Catholic Irish group where they couldn‘t have there own float. Is the association an expressive association? Or are they a societal association? They are primarily an expressive group. Can‘t march in parade. 2. Boy Scout: banned membership based on sexual orientation, is it apart of the Boy Scouts belief to be anti –gay? Held they are an expressive group, needs a CSI and the interest was not great enough to pass the test. The law is good, but it doesn‘t apply to the boy scouts because they are an expressive group. (2) Societal in nature: nothing to do with Free expression, so RB test 1. Jaycees: private male clubs discriminated on gender. Harmed women‘s career‘s, conflict – ct says associations can‘t be reg unless there is CSI, but laws ban sex and race discrim – how? Ct says they were expressive in business, but held societal in their gender, discriminating policy, RB test applied and they required women to join. (3) Intimate Associations: not sure about level, possibly CSI (laws that restrict marital or sexual relationship) (4) Compulsory Association: what happens when the association starts doing things unrelated to its association? a. Keller v. State Bar: the association you are compelled to be a member of, or pay dues in –if its spend in a way that is unrelated to the association, you can get a portion of your dues back. State bar does promotions of pro-choice activities, but has nothing to do with the law, you can get a portion of that $ back. b. Board of Reagents: Students paid $ for membership to their assoc goes to other groups whose beliefs they don‘t believe in, students ask for a portion of their fees back. Ct said, unlike unions and stat bar, pub univ and school have no org that is inconsistent with the educational function. They don‘t get their money back. (5) Compulsory Access to 3rd Party: Made to ascribe to something inconsistent to your own belief a. PGE: PGE was being forced to support a point of view they didn‘t believe in, and requiring them to make their envelope consistent with something else they don‘t believe in is not legal b. Prunier: Law private shopping centers are st actors, so they have to allow their pub areas to be used by those passing out leaflets, getting petitions signed, etc. CA rule, not national. Prunier argue it‘s a taking, ct said no its not a taking w/out comp, Prunier then said it‘s a FS violation of something they don‘t believe in, FREE SPEECH COROLLARIES 1. Freedom to believe: a. Willy v. Maynars: Jehovah witnesses believed license plate slogan was an oath contrary to their religion, and cut it out. Got a ticket for modifying license plate. UUSC: violates their free speech rights to believe, as they want to believe. Freedom of free speech also includes not to be compelled to say what you believe. b. State law required him to be apart o a marketing program, and assoc was engaged in generic ad‘s (i.e. CA raisins) Fruit grower in CA, required to fund this ad b/c he‘s a member of the assoc, claims they violated his freedom to believe, because he doesn‘t believe in the ad. Ct said no – he can‘t get $. c. United food - generic state ad program for mushrooms, П did not want to pay for the ad through his membership dues, ct said it violated his FS b/c can‘t be forced to 93

Constitutional Law Outline advocate something you don‘t believe in. Ct said: re above case, there was a comprehensive marketing program was in the above case, here the program was strictly for the genereic ad‘s, so they went too far. 2. Freedom of Association: First determine if it is an expressive/intimate/social, then you can analyze the scenario under CSI or RB. a. CSI speaking as an association gives like minded persons ability to express their point of view. Can‘t be taken away unless there is some CSI. b. NAACP v. Alabama: Alabama required that all associations in Ala provide to the state sec of state a membership list and a list of all persons contributing money to the assoc. If the state learned you contribute, you can‘t get a state job. Ct held no CSI for the info. c. NAACP v. Claiborne: law regulated picketing against civil rights demonstrations, court said doesn‘t satisfy CSI 3. Limits on Assoc’ Rights: many state laws preclude assoc‘ in gender/race discrimin. RELIGION 1. ―A state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof‖ 2. Two issues: a. Establishment Clause “a high & impregnable wall to separate church & st” i. Promotes notion of separation of church and state ii. Examples that reveal a blurred and indistinct line b/w church and state: 1. Church may provide bussing for kids who want to go to rel school 2. Free bus trip to a field trip that other public school would be providing too is not ok 3. Free books by church to rel school is ok 4. Free gloves is not OK iii. Thus, distinction b/w aid to rel and what is not allowed is a blurred line 1. one nation under God 2. on our money 3. Oath of Pres on bible 4. Swear to tell truth on bible before testimony 5. National holidays such as Christmas 6. Paid chaplains in prisons, state hospitals… iv. Hypo – fed gov set up a fund and if you propose a good plan for illegit kids, you will get funds. Catholic church promoted abstinence, and so they got fed funds. 1. doesn‘t violate v. Lemon Test – to survive a 1st am attack, the law must meet 3 elements 1. Principal purpose must be secular, not sectarian a. Secular = non religious but worldly concerns b. Sectarian = religious concerns i. i.e. no secular purpose in requiring prayer in schools c. do not consider conceivable purposes d. Law requiring teaching of creation and 10 Commandments: struck down, not secular, there is no worldly interest. e. Using Bible as literature: secular purpose, Upheld 94

Constitutional Law Outline f. Law req’d using a paid Chaplin to lead prayer: Upheld, b/c of historical respect for religion. g. Religious displays on public property: allowed as long as there is a balance of other aspects of holiday, religion, etc… h. I.e. Aid to religious elementary and high schools: i. How to consider advancement of purpose: 1. Principal aid to education: a. One state gave a tax deduction for all edu expenses, because of the # of pub schools students most of the benefit went to pub schools, but the parents of the priv schools individually got more benefits. Ct upheld, 2. Aid must be in a form that is not likely to be misused into religious purposes a. Reimbursement for standardized testing ok, for only mult choice. (fear of extra credit for students who express religion) b. Remedial systems: ct allowed remedial reading, writing and arithmetic assistance but no psych counseling (fear of religion) 3. Aid to all schools more likely to be valid then if aid was just given to private schools. 4. Aid provided to kids and parents are more likely to be upheld then aid to the religious schools. a. If aid is to parents, in form of vouchers, then upheld b. School can have a release program to go off for religious training elsewhere - odd case 5. Ct allows gov aid to non religious part of Univ unless school is so pervasively religious that any aid advances religion 2. Principal effect must neither advance nor inhibit religion a. Principal effect must be to advance secular, not sectarian i. Decide whether the principal effect is to advance religion too much. ii. Gov concerned about number of illegitimate births. C held any group can request the fed gov for funds to address the problem of illegitimate births. Catholics asked for the funds to promote the gov int (advancement of illegitimacy) not the advancement of Cath. Held OK. 3. No excessive entanglement a. The program should not get aid that requires a lot of gov oversight to prevent misuse. b. law: Couldn‘t have a bar close to 500 ft of church, unless church approved. i. ct said excessive entanglement b/c they had veto rights 95

Constitutional Law Outline c. If Gov provides aid to religious schools and the aid requires too much checking and oversight to make sure its not misused  Ex. Ent. i. State had provided remedial reading and writing w/teachers going into religious private schools: Ct said its secular in nature not too much entanglement. d. Ct said its ok for state to grant exemptions to church groups from tax: ct said it doesn‘t violate the Est. Clause to give tax exemptions to church groups along with other charity groups to avoid excessive ent. e. Woodmar - FS issue masquerading as a Est. Clause issue, univ said groups can use an empty univ classroom, so it‘s a pub forum, content neutral rules were allowed. Univ said all groups can use it except for religious groups, c said it‘s a FS issue and its content based regulation, must satisfy a CSI and the only CSI test that is possible is that the state HAS to make that distinction otherwise it would violate the est clause. Ct said, it doesn‘t violate the est clause for the state to have a content neutral rule in a public forum, so it doesn‘t violate the est clause to have a religious group be treated the same as other groups. Any time you see a law that says a religious group can . FS issue when you treat religosu speech differently from other speech, this is content based (neutral use is not a violation of the est clause so there is no CSI) (religious group can get the $$$. i. Religious student group banned from pub high school ii. St gave $ to all publications of approved student groups, except for religious groups, ct said that is a content based reg of speech that gets a CSI and the neutral granting of money doesn‘t violate the est. clause. iii. Ct allowed the different treatment of a person studying the bible v. other college students. (gave scholarship to non bible majors) FS issue, and CSI was est. clause. 4. Problems w/ Lemon test a. not always applied & no body likes it i. we ignore what we want to, but periodically we use it b. Free exercise clause: Protects religious liberty/right to engage in rel activity i. Sherbert - Only get employment compensation if you are available for work MS: Jews argued that Sat‘s are holy and violates free exercise of religion. No gov‘s intent, but it hurt free exercise of religion. It must be justified by some CSI look at rx ad alt. Req an exception for religious groups. 1. Yoder - Amish objected to going to school b/c of religion. Requirement of educ was a CSI – and there must be rx alt‘s and the rx alt is providing exceptions for peoples religious belief. a. Est clause issue: Gov treats Amish differently then other groups can they? Yup, ct said if you give some accommodation based on free exercise needs, it won‘t violate the est. clause. 96

Constitutional Law Outline ii. Smith – law: no drug use by gov employees. Native Americans ingested paoti and fired from gov jobs. Argued that part of religious rituals. 1. Held, any regulation of a broad societal problem which also incidentally affects religions  test is not CSI. a. But ct doesn‘t say what the test is. It has cited RB and intermediate. McG thinks it is intermediate b. Law: regulated against killing of animals in general - not CSI c. There could be slight incidental affects on religion, but not intentional regulation on religion 2. But, if law is intentionally directed at a religion  CSI a. Babloo case – city is offended by cult that sacrifices live animals, so passes law against it. CSI test, and law fails. iii. State builds a logging road through Indian burial grounds, USSC said its ok, state can decide where it wants its logging road to go iv. Orthodox Jew Dr. wore yamaka, he was appeared at ct with it on and was charged for being out of uniform. USSC: punishing person for wearing yamaka does not violate the free exercise of religion. v. State law required SS# before you can receive welfare to prevent fraud, Native American said that giving his child a SS# was against his belief. Ct said the gov interest in preventing fraud was outweighed. c. Applicable to states via 14th


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