I. The Theory of the Constitution A) History: States battled over the new document (powerful fed gvt). Anti-feds thought BOR would kill the con, federalists thought the BOR was just redundant. No debate about Madison‟s BOR and almost no legis history. Today this stuff is doing things it never was intended to be doing. The federalist v. anti-federalist distinction was meaningless – but combined w/ the power of judicial review (Marbury v. Madison) we get gvt by the judiciary. Because of the problem of the court running the country we must have ways to limit the courts‟ power to interpret and apply the BOR. Should political majorities be allowed to do whatever they want? Some say this is a sophisticated democracy that limits short-term decisions by the political majority regarding long term (strip juris, amend constitution). Majority stuff does not mean that the majority rules now. Groups throw out the stuff done by one group and this goes on and on. So there is a countermajority structure to let political minorities protest and militate radical political ideas of today cuz they may be the majority ten years from now. So u must have counter-majoritarian views (life-tenure judges protected from this stuff)…But stacking the courts defeats all this. Civic Republicanism aka popular constituitionalism, notion is that the peeps should make the constitution and not the insulated judges, Vermont small town hall meeting democracy, this was the left-wing view of democracy. Now the liberals are fighting against this stuff. B) Theoretical Limits of what the courts can do (ways to limit the courts) The problem is that u have a written document that says congress can and cannot do certain things. And the judicial branch has life-tenure and are sheltered from political control. The Judges give themselves judicial review. Put it altogether and the courts have all the power. One thing u can do about this is to constrain them/tie their hands in interpreting the con. Must limit the way judges use their power cuz if u do not then the judges have ALL the power. Problem is that NONE of these theories really work. 1) Textualism – Scalia supports, find the words in the document and interpret them narrowly, (roe v. wade Scalia just throws out that 1st word of 1st Amendment is “congress”). Basically the notion is that Fed Courts have no authority to do anything except read the literal text and hold themselves to the literal meaning of the words in the con and BOR. Problem text does not tell you enough. If you took this seriously then 1st only limits congress…thus a literal reading of the 1st would limit only congress. Also, nothing in con about the air force, thus a literal reading would say that the air force is uncon. 2) Originalism – take the text and read into it the intent of the framers, u cannot take the text literally but you can adhere to the original intent of the framers. Problem framers did not think the BOR meant anything – whose intent do u look at? Madison‟s, House, Senate, or the States? Snooty British lawyers vs America at large…so u just pick and choose whatever original intent satisfies your position – thus u destroy the notion of original intent. Becomes picking and choosing b/w the framers. 3) Natural Law – Kennedy supports it…(Thomas likes a diff version of it Thomas says that all prop is natural law, and the gvt taking it is just wrong). The notion is that u try to construct some theory of natural law that the Con supposedly represents. Arose from Calder v. Bull: Justice Chase argued for Nat Law basically is the notion that u cannot assume that a gvt would do that to the free peeps. “There are certain vital principles in our free republican gvts, which will determine and overrule an apparent and flagrant abuse of legis power. An act of the legis contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legis authority. A law that punishes a citizen for an innocent action, a law that destroys or impairs the lawful private ks of citizens, a law that makes a person a judge in his own cause, or a law that take property from A and gives it to B. It is against all reason and justice, for a people to entrust a legis w/ such powers and therefore it cannot be presumed that they have done it.” VERSUS Justice Iredell legal positivist, if it is in the document then it is fine if not then it‟s not fine, we rd the text and if the text says it is ok then it is ok. If a law is passed within the general scope the body‟s con power then the court cannot pronounce it as void merely because it is in their judgment contrary to the principles of nat justice. Lawrence v. TX Kennedy wrote sodomy is ok, TX cannot tell u not to, that is not the providence of gvt. VERSUS Scalia where the hell do u get that, sodomy just aint in
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the cons. We have documents, we have text, we can see if it is there and if it is NOT then let the gvt do it. PROBLEM u really CANNOT find any agreement, this lets judges make it up as they go along. Can twist the nat law concept and twist it to your beliefs – could go for the left or for the right – does not get u anywhere. 4) Tradition – (sub due process) forces judges to adhere to some constitutional tradition that you can find in the history of the country and J‟s cannot deviate from what occurred in the past. Interpret cons provisions as they always have. a) E.g. abortion and privacy problems is that abortion was not regulated until end of 19th century. b) Michael H v. Richard D: debate b/w Scalia and Brennan. How abstractly do u read tradition? Have to find the narrowest possibility – or like Brennan says and read tradition broadly? Scalia says this stuff is wrong cuz we have always let the states regulate this, case had woman hubby and next door neighbor – Under CA law the kid is deemed presumptively the child of the hubby but u had neighbor saying I can prove genetically I am the father and I want to see the kid. CA says that ain‟t the law, and the argument is history and tradition. So Scalia says read this in narrowest possible tradition u can (here hubby / wife / 2.3 kids – CA law is fine cuz in line w/ that tradition)….VERSUS Brennan dissent who says this is a diverse country and this is not a new fangled idea, this has been allowed to happen. PROBLEM both of them are right. More picking and choosing it seems. 5) Consensus Con should be read in line w/ some sort of social consensus BUT problem is that the country CANNOT agree on anything. 6) Representation Reinforcement Theory court should enforce minority rights, stop the majority from doing what it wants. See Carolene Products case have a country where no one gets left out….problem though is which groups are the minorities? All the theories suffer from basically the same problems – the system kinda works and yet judges are still able to pick and chose the law. U have a system that seems anti-democratic and if a judge is smart and works hard then they can usually do whatever they want to…Courts have 70% approval rating while politicians get 20% or so. -------------------------------------------------------------------------------------------------------------------------------------------II. Constitutional Interpretation and the Incorporation Function of the 14th A) Incorporation Doctrine 1) Barron v. Baltimore 1833, takings case against the city. ? is whether the city is bound by the BOR? NO!!!! The BOR applies to fed gvt and NOT AT ALL to STATE / LOCAL gvts. This was a 5 th amendment case w/ USSC opinion by Marshall. Marshall hated the states and backhanded them often, but here he said that the takings clause of the 5th and the entire BOR does not apply to state/local gvts. The entire BOT does not apply directly to any state/local gvt. Reasoning original intent point of BOR was to limit the power of the fed gvt….. So this case is still good law ---- remember though that the BOR does NOT apply directly it is applied thru the theory of incorporation due process clause of 14th. BOR applies DIRECTLY only to the feds. Against state or local gvts we must find some other way (can do this thru 14th which applies to states but parenthetically does not apply to feds)…NO EP clause in BOR though (so see reverse incorporation doctrine – Bolling v. Sharpe)!!! B) How do the amendments apply thru the 14th? 2) Dred Scott v. Sanford (1857) – slave was in mizzou, owner took him from mizzou and into Illinois (free state) then into MN (territory) then back to Mizzou (slave state). He claimed that when h was taken into MN then fed law made him a free man under the Mizzou Compromise. Kicked out of court on civ procedure. In 1857 the courts DID not have comprehensive fed ? juris (comprehensive fed ? juris did not occur until 1875). So the only way to get into fed court was under diversity jurisdiction. USSC (justice Taney opinion): Case dismissed for lack of diversity b/c court said Dred was not a citizen of any state and could never be a citizen of any state and thus could never establish diversity of citizenship. Reasoning b/c of the original intent of the Framers, the framers were bigots and not everyone was thought to be a citizen. Whether the man was a freed man or a slave did not matter cuz he still would have no rights/privileges thus blacks could not come to Fed Court at all.
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3) Post Civil War Amendments (13th-15th) – the vital 14th. § 1 of 14th sentence one “all persons born or naturalized in the United States, and subject to the juris thereof, are citizens of the US and of the State wherein they reside.” Sentence two “No State shall make or enforce any law which shall abridge the privileges OR immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Sentence 1 citizenship provision of 14th – citizen of US and state u reside in. Sentence 2 no state shall make or enforce any law that shall (1) abridge the privileges or immunities, 2) deprive due process, 3) deprive of equal protection. 1) was the big category of rights – thought that it was adopting some form of natural rights – rights that any free person would have in a free gvt. At the time the 14th was written the debates make it clear that everyone thought the 400lb gorilla would be the privileges OR immunities clause, they thought this clause would embody some notion of natural law. They did not get specific but thought this part was the behemoth. HOWEVER, a very conservative court hated this stuff. 14th ----- Privileges OR immunities VERSUS Article IV § 2 – “The Citizens of each State shall be entitled to all Privileges AND Immunities of Citizens in the Several States. 3) The Slaughter-House Cases (1873): In LA $ bought u a monopoly on the slaughterhouse there, guy got himself a statute saying he had a monopoly, P in the case owns a slaughterhouse and claims the statute is uncon under both 13th and 14th. This was first time court had 14th litigated meaning. P claimed the statute made him an indentured servant under 13th, violated equal protection, and denied him due process to use his property. a) Regarding 13th amendment Court said there was no 13th claim, u are not a slave and this is not involuntary servitudes so forget about this. b) EP clause Court say u r not black and your claim is not a racial claim and EP applies only to race (freed slaves). c) Due Process claim Court talks in terms of process like a hearing/trial, u are claiming no substantive right, and there is no such thing as substance. Court said there is no substantive component to the due process clause – process means Process – and p was not denied any process. d) So all he is left w/ is art 4‟s Privileges AND Immunities Clause and 14 th‟s privileges OR immunities clause. Court says Art IV only gives you the same rights as a foreigner to the state that the state affords its own citizens. Regarding the 14th privileges OR immunities Court says when Congress adopted the 14th they did NOT intend to give a broad range of rights to everyone – Congress just wanted to protect those P/I that attach to national citizenship – 14th does not attach to states thru P/I. The rights afforded by national citizenship are 1) right to petition the gvt, 2) right to demand protection in foreign country by embassy…..* 3) now – a right to travel has been added (see Saenz v. Roe infra). So Congress had in reality thought P/I clause of 14th was powerful, but here the court gutted it. Court basically said that if you read the 14th the fact is that your claim is NOT covered by privileges or immunities clause cuz it is a very narrow thing. Court says there are privileges and immunities that attach national citizenship and those apply to citizens of the states. You want us to grant something here where your property attaches to state citizenship AND NOT national citizenship and Congress did not protect those kinds of rights!!! Congress understood state and national citizenship, and they specifically excluded all the stuff in state citizenship in sentence two of the 14th. So u lose!!! (this makes no sense). The first sentence of the 14th was added since Congress wanted to make it clear that Dred Scott gets to go to fed court now (so if Dred Scott is born in US then let him into fed court). And there is NO indication that congress thought it was narrowing national privileges or immunities!!! So Congress wanted the States to behave according to the BOR BUT after the Slaughter-house cases the BOR DO NOT APPLY TO THE STATES.
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Dissenters maintained that the “right to pursue a lawful employment in a lawful manner” is a “fundamental” right that belongs “to the citizens of all free governments.” So bottom line from Slaughter-house cases the court held that the rights guaranteed in the 1st – 8th amendments are not “privileges or immunities of citizens of the US” and thus are not applicable to the states via the privileges or immunities clause of the 14th. Guts the 14th by reading it very narrowly, privileges and immunities clause rd very very narrowly (only privileges and immunities of national citizenship) so this makes 14th mean very little. However, the court has gradually held most of the rights guaranteed in the 1 st – 8th amendments are applicable to the states indirectly via the due process clause of the 14th. 4) Saenz v. Roe (1999): the 3rd right afforded by national citizenship…right to travel. CA statute that was a welfare stat that said when u move to CA and u are on welfare, then for the first 12 months u can only get payments at the level that the state paid u when u left that state. So everywhere else except NY is not going to give u enough money to survive. This was clearly meant to keep peeps where they were and to discourage them from moving into CA. USSC held this stat uncon because it did not allow peeps to travel. So it was a disincentive to move to CA, and the USSC gave a laundry list of rights that are implicated by different types of travel w/n the US. Rights to travel i) the right of ingress and egress, the right to whip thru KA on your way to CA, the case that is cited is Edwards v. CA the con provision that gives u this right is the entire cons itself. It is an inferred right from the whole document, the right is a part of the necessary concomitant of union – just an emanation. ii) The right to go to a state and live temporarily and not be disadvantaged, protected by the privileges and immunities clause of art 4 § 2. So if u are a NY resident and move to FL then FL has to give u the same rights that they give others who live there even if u are living there only temporarily. iii) the right to move into a state w/ the right to live there permanently, right to move somewhere permanently and not be discriminated against. From privileges or immunities clause of 14th (USSC says this in Saenz v. Roe). So a state cannot apply different welfare laws to you than they are applying to their own resident. So Saenz involves permanent residents. Put i,ii,and iii together and you have to right to travel anywhere domestically…Court has hinted that there is NO right to travel internationally, no con right to a passport. For national security some cases keep you from going abroad. Near the end of the 19th Century – USSC began to read the protection of property rights into the Due Process Clause (substantive due process) – due process in Natural Law. 1) Twining v. NJ (1908) overruled by Malloy v. Hogan (1964): the first time the court suggested that the due process clause may have some substantive element to it that applied to the BOR. This was the first time the court said this. Kind of sounds like Natural Law, but Natural Law does have some aspects relevant to BOR. The court did not hold for them here though. The case involved a state court prosecution where the jury was instructed that it may draw an unfavorable inference against the d‟s from their failure to testify. So first notion that there may be something substantive in due process. DUE PROCESS MAY HAVE SOME SUBSTANTIVE VALUE (in dicta). 2) Palko v. CN (1937): Cardozo opinion, case was over a CN stat permitting the state to appeal in crim cases…the court “assumed for the purpose of the case” that the stat if enacted by the US would violate the 5th double jeopardy clause BUT rejected the claim that the CN stat violated the due process clause of the 14th. Cardozo said that rights in the BOR are a component of due process ONLY if there are the very essence of a scheme of ordered liberty. Cardozo said that the right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not the VERY ESSENCE OF A SCHEME OF ORDERED LIBERTY. To abolish them is NOT to violate “A PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITION AND CONSCIENCE OF OUR PEOPLE A TO BE RANKED AS FUNDAMENTAL.” Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible w/o them.
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Most appeals focused on 4th, 5th, and 6th – if one could lose the right and still have an okay society then that right was not important and is not protected. Exception 1st started applying to states as early as 1925. Bottom line part of the BOR was part of Due Process ONLY if u could NOT conceive of any form of a just society w/o those rights. The reference point was all free societies. So if u could conceive of something like justice w/o a jury then that does not apply to the states (see France). So we are still searching for a way to incorporate the BOR into the states. Here free speech and free religion were incorporated though!!!!! Due process substantive rights are the substantive rights that are absolutely essential to a scheme of ordered liberty (so if u can conceive of a free country w/o that right then that right is NOT in the due process clause). The is a very metaphysical test for what goes into the due process clause. 3) Adamson v. CA (1947) overruled by Malloy v. Hogan (1964): Majority repeats Cardozo‟s Palko holding (see supra). 5-4 decision, prosecutor here was allowed to comment on the d‟s failure to take the stand. Fed prosecutors cannot do this, but does it apply to state prosecutors. Majority in a 5-4 decision says no, it does not apply to states. So the court decided not to incorporate the privilege of a right against self-incrimination. Court is still taking an abstract notion of core elements of a just society and if rights do not fit in ww/ this then that right is NOT important. a) DISSENT Justice Black Much against the notion of judges using their subjective judgment about con rights. He was also a liberal though in that if he found something in the con then he would enforce it to the utmost. Black thought all Libel law was uncon as he thought this was a regulation of speech, he and Douglas were both anti-mccarthyism (wanting communist speech protected)….Here Black says that once we start incorporating stuff into the 14 th then we should NOT be picking and choosing like in Palko. This is not our job, we should enforce the con as written and the founders in the BOR told us what was important. Thus, he had a theory of TOTAL INCORPORATION where the court should apply the entire BOR to the states. INCORPORATE ALL OF THE BOR NOT JUST SOME – JUSTICES SHOULD NOT HAVE ANY DISCRETION. His total incorporation theory has NEVER commanded a majority of the Court. b) CONCURRING Justice Frankfurter Here he takes an opposite approach from how he usually voted, here he says I do not think you should read into the due process clause the BOR. The due process clause should only protect some egregious things but they have nothing to do w/ the BOR, so it is a subjective judgment of the court if something violates fundamental due process BUT we should not look to the BOR to see if it is there. So he gives a subjective judgment and u get very little if any of the BOR at all. Incorporation notion is wrong – we should be seeing what the concept of due process means independent of the BOR. MODERN Incorporation Doctrine Duncan v. LA (1968) -- Jot for Jot and Anglo-American history and tradition 4) Duncan v. LA: court held that the 6th right to jury trial was applicable to the states via the 14th due process clause. Justice White opinion court says we got it kinda wrong in Palko cuz in Palko we were judging BOR based on a free or metaphysical society, but this dislodges the incorporation doctrine from Anglo-american law. We no longer should look to a free or just society, Instead we should look to ANGLO-AMERICAN TRADITION OF JUSTICE (the ? becomes is that right central to the law). Here the court says juries are NOT critical in this metaphysical justice world, but in the anglo-american system we have jury nullification and they serve this importance central function of anglo-american law. So if it is an anglo-american tradition of justice it is inserted thru the incorporation doctrine. THE QUESTION IS WHETHER A PROCEDURE OR RIGHT IS NECESSARY TO AN ANGLO-AMERICAN REGIME OF ORDERED LIBERTY. 1st --- totally incorporated 2nd --- court has yet to decide whether 2nd has any individualized right at all. 3rd --- quartering, we hope it is incorporated, never been enforced. 4th --- totally incorporated. 5th ---all incorporated EXCEPT grand jury req‟ment (not incorporated and not applicable to states) 6th --- totally incorporated
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7th --- jury in civil trial is NOT incorporated, (states have to give jury in crim trial under 6 th though), probably not ever enforced because of anglo-american tradition of equity and also LA based on civil law, mostly because of tradition of equity law. 8th --- totally incorporated, cruel and unusual 9th --- never really been enforced, have not said, really no cases decided by it anyway. 10th --- applies to states only anyway, does not matter. ****So when u write your first complaint when a client is beat by the local cop then u must say this is an action brought under the 1st and 14th amendments. If u just said this is an action under the 14 th then technically they can kick u out of court. Back in the 1960s Justice Harlan wrote some opinions on how he accepted incorporation, BUT do not apply the BOR w/ the same strength. He wanted to give them more flexibility w/ differences paid to state gvt as opposed to fed gvt. (e.g. obscenity laws Harlan would vote to uphold a state law saying the exact same thing as a fed law he would vote to strike down…See Roth v. US). Harlan argued that even if a specific guarantee of the BOR were incorporated in the due process clause of the 14th, it did not necessarily apply to the states in the same manner as it applied to the fed gvt. THIS HAS NEVER BEEN ACCEPTED BY THE COURT. Instead the court accepts INCORPORATION “JOT-FOR-JOT” the guarantees of the BOR that were “selectively” incorporated in the Due process clause of the 14th should apply to the states in PRECISELY the same manner as they applied to the fed gvt. Applies across the board no matter who you are suing. Fed, state, or local = jot-for-jot. Once incorporated into the 14th it is incorporated jot-for-jot. -------------------------------------------------------------------------------------------------------------------------------- -----------III. Substantive Due Process: Property A) 3 types / categories of substantive due process i) Incorporation doctrine: an aspect of sub due process, court takes substantive rights from BOR and incorporates them thru the incorporation doctrine. Court uses the due process provision to apply substantive provisions of amendments to the states. ii) Economic due process (dead now, but Thomas wants to revive it): Lochner cases (all now overruled), simply the area of law where the court until the 30s was using the due process clause to substantially protect property rights from government regulation. iii) Constitutional Privacy Rights: the notion that privacy comes from the due process clause, Scalia wants this to die, abortion / contraception / parental rights / family rights / right to die / sex cases / intimate association. B) Economic Due Process: Natural law and property rights. Basic Theory if you possess property rights then you give to them the most powerful protection against government access that you can (the castle is the home). Notions of natural law theory and natural rights stuff (came from Justice Chase in Calder v. Bull 1798) “An act of the legislature contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority…a law that destroys or impairs the lawful private contracts of citizens…or a law that takes property from A, and gives it to B; it is against all reason and justice, for a people to entrust a legislature w/ such powers; and therefore, it cannot be presumed that they have done it. You had a perfect storm, at the end of the 19th century you had RR and great trusts and growing capitalism. But you also had neo-classical economics. The court read commerce as merely a transaction (dinner table deals), and there was a VERY conservative court thus aligned w/ the interests of corporate litigators. At the end of the 19th century peeps began bringing lawsuits claiming that the state statutes regulating economic systems were uncon cuz they interfered w/ the corporations ability to use their property. Initially these suits did not succeed. The court reconsidered the Slaughter-house ruling (due process is ONLY process) only 10 years later because of the ABA. These are the 1st cases in which there is a constitutional protection of property rights. Armed w/ laissez-faire economic doctrines of the 18th century economist Adam Smith and the 19th century social Darwinist Herbert Spencer and supported by the leading con law text of the period by Thomas M. Cooley, legal representatives of the regulated industries
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increasingly urged the court to invalidate the new state legislation (who were trying to address the conditions accompanying the concentration of private power in business). 1) Munn v. Illinois (1877): Grainger case – a liberal farmers‟ movement and the RRs developed into monopolies and charged whatever they wanted and the freight costs became too expensive. So in farmer states there were political parties that passed Grainger laws which capped RR rates and capped grain warehouse storage prices. This was a challenge to the cap of grain warehouses. Owners of the grain warehouses sued the states claiming this was a violation of their property rights. i) USSC upheld the capped prices for grain storage. The court said that even if property rights are protected we will not apply due process where there is SUBSTANTIAL PUBLIC NEED – if there is public need then there is no constitutional right. Called “Public Need Theory” court said we will not reject this substantive due process right notion altogether, but whatever property rights under the due process clause DO NOT apply to property subject to public need (here food). **So this was an exception to economic due process (economic due process does not apply to products or commodities subject to public need, about the only thing was food). The critical inquiry was whether the “private property is „affected w/ a public interest,‟ [for when] one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good.” 2) Santa Clara County v. Southern Pacific RR (1886): this is still good law!!! Held w/o argument that corporations are persons under the 14th !!! The text of the 14th does not talk about citizens it talks about persons (this is why illegal immigrants get due process). VERY IMPORTANT because almost everything was done after this case as it opened the door for direct challenges to regulations by corporations. Once the corporations become persons they become subject to economic due process. So corporations now have EP rights and due process rights. And RRs too have Due process rights. 3) Minnesota Rate Case (1890): State was capping rates charged by RRs. This was the first time in which the USSC ruled in favor of an economic due process claim. Court said that state regulation of RR rates was unconstitutional and were subject to judicial oversight. The court explained that the question of reasonableness of a rate of charge for transportation by a RR company is eminently a ? for judicial investigation, requiring due process of law for its determination. 4) Allgeyer v. Louisiana (1897): it was a narrow ruling and then became very broad. The court invalidated a state statute that prohibited any person from issuing insurance on property in the state w/ companies that had not been admitted to do biz in the state. Court UNANIMOUSLY said basically that any governmental regulation of contract is a violation of economic due process…So min wage laws / max hours / labor laws all are a violation of economic due process and the states cannot do it!!! The notion of “liberty of contract.” So from 1897 to 1934 EVERY state regulation of the state economy was struck down except 1) need for food and 2) protection of women!!!! * 5) Lochner v. NY (1905) OVERRULED by Nebbia v. NY: A NY state statute involving regulation of work force in bakeries, it was a max hour law. Justice Harlan‟s dissent says that this was passed cuz baking industry was very dangerous like coal mining, like black lung for coal workers – bakers got white lung caused by flour. They would get pneumonia and die. The ? was whether the stat that regulates contractual relationships violates substantive due process? Court said YES. i) USSC struck down statute as a violation of bakers‟ economic due process right – the right to earn a livelihood – can enter into any k they want and state cannot say no. Court said it was a classic violation of the right to K. The court focused on the rights of the bakers and not the bakeries!!! The only exceptions to this were in the areas of public health and safety. So the court said that gvt can regulate some things (e.g. like the mining cases where the state could regulate the structure of mines and that was fine BUT basically everything else falls w/n the right to k / liberty of k). If bakers do not want to work for 60 hours a week then they should not k for it. They said if we let you regulate bakers then that would mean that you would want to regulate doctors, lawyers,
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etc. Everything else is NOT SUBJECT TO GVT REGULATION EXCEPT 1) public need and 2) IMMEDIATE health and safety. ii) Harlan dissent see supra…Holmes dissent Revered as the great liberal of the court but in reality he was a social Darwinist, he like this laissez-faire stuff BUT constitutionally he hated these doctrine that kept the majority from willing and throwing around its weight. He mentions Herbert Spencer and says that the constitution is not intended to embody, it was made for peeps w/ fundamentally different views. He says in economic cases to let the gvt do whatever it wants to do, let the majority do what it wants. In the 1st amendment area however he takes an exact opposite position (regulate everything economically, but regulate nothing basically in terms of speech for instance). He says economic rights should go to the legislature (modern courts still do this). ***This goes to basic constitutional theory what should the majority be able to tell peeps to do and what should the individual be able to do? This is the issue throughout the court…what can individuals be allowed to do without regard to the fact that the majority thinks this is a bad thing? Lochner / Allgeyer Thoery the court stuck down all grades of state statutes like max hour laws, yellow dog k laws, min wage laws, price regulations, and biz entry laws, etc. REMEMBER all the state statutes are being stuck down. BUT at the same time that the court was using substantive due process to strike down state regulations, simultaneously the court was using a narrow interpretation of the CC to strike down federal economic statutes as well. No one could regulate and w/ the free market system the depression hit. Put Lockner (sub economic due process) + narrow CC = nothing is regulated. -Max hour laws almost all struck down. -Yellow dog k laws laws that prohibited employers from demanding employees refuse to join a union – all struck down. See Coppage v. Kansas and Adair v. US. -Min wage and price regulation all struck down except Munn v. Illinois (grain warehouses). -Biz entry and monopoly laws all struck down. EXCEPTIONS….Economic regulations that survived 1) Munn v. Illinois (1877): Grainger case – a liberal farmers‟ movement and the RRs developed into monopolies and charged whatever they wanted and the freight costs became too expensive. So in farmer states there were political parties that passed Grainger laws which capped RR rates and capped grain warehouse storage prices. This was a challenge to the cap of grain warehouses. Owners of the grain warehouses sued the states claiming this was a violation of their property rights. i) USSC upheld the capped prices for grain storage. The court said that even if property rights are protected we will not apply due process where there is SUBSTANTIAL PUBLIC NEED – if there is public need then there is no constitutional right. Called “Public Need Theory” court said we will not reject this substantive due process right notion altogether, but whatever property rights under the due process clause DO NOT apply to property subject to public need (here food). So this was an exception to economic due process (economic due process does not apply to products or commodities subject to public need, about the only thing was food). The critical inquiry was whether the “private property is „affected w/ a public interest,‟ [for when] one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good.” ***Initially the court took a broad definition of “affected w/ a public interest” but later narrowed the Munn standard and invalidated laws regulating prices of gas, employment agencies, and theater tix. 2) Muller v. Oregon (1908): States attempted to regulate working conditions for women. Court would uphold max working hour laws for women, but if the law said cannot work anybody that much then the court would strike it down. This had the effect of getting females fired. “Widespread belief that woman‟s physical structure and the functions she performs in consequence…justify special legislation.”
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BUT Adkins v. Children’s Hospital (overruled by West Coast Hotel v. Parrish) court struck down minimum wage laws even if those only applied to women. NO MIN WAGE LAWS EVEN IF ONLY FOR WOMEN. ***3) Nebbia v. NY (1934): 5-4 (Roberts changed sides), 3 yrs b4 change in time that saved the nine. This was the precursor to Loughflinn Steel Case. This case KILLED OFF ECONOMIC DUE PROCESS. Case was about price controls for milk. During the 30s the states tried to level the market for milk by putting a ceiling and a floor on the price of milk. Clearly a straight price control statute. The farmers sued claiming this was a violation of their property rights. Goes up to USSC and should have been an easy case, but w/ Roberts side change, the court becomes a 5-4 Holmes court. i) The USSC abandons the notion that property rights are absolute. Concept of due process returns to just process like in the Slaughter-house cases. Due process is not substance, no such thing as substantive due process. ii) Court abandons the notion of property in the public interest. Can regulate property across the board even if it is or is not in the public interest. Prop is not absolutely protected by the constitution, due process means basically process and it has NO substantive component. “Price control is UNCON ONLY if arbitrary or discriminatory or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference w/ individual liberty.” a) H: state is free to adopt whatever economic policy it wants basically – seems to say that Holmes dissent in Lochner is right – economics is out of court‟s sector. b) H: the standard of application of due process to economic regulation is arbitrary / discriminatory / and irrelevant to any policy…the regulation must be totally irrational for court to strike it down. Lochner overruled. ***Court has never went back to the old Lochner rules. 4) West Coast Hotel v. Parrish (1937): 5-4, reaffirms Nebbia (and overruled Adkins), minimum wage law to protect women, the court had already struck this down once, but now the court says this is fine. If the state wants to pass legislation that hurts economic actors then that is fine even if it only helps women. You do not need to come down on any public need or public interest theory anymore, we the court will not step in. Court DOES NOT care why statute is passed. This statute may not have been a generally applicable statute for the general welfare but we do not care. 5) US v. Carolene Products (1938): Court upholds legislation that looks really bad. Condensed milk peeps get themselves a statute banning a type of milk as a health problem as adulterated food. It was NOT a health problem, even the legislative history said this, but still they outlawed filled milk. The filled milk producers claimed this was arbitrary and we can prove it. i) USSC upholds we do not care, they may be wrong but we do not have the authority. Court says under Nebbia standard “arbitrary” means if there is ANY state of facts that the legislature could rely on then it is fine and is NOT arbitrary. Gives deference to congress and if not arbitrary then it is constitutional. 6) Williamson v. Lee Optical of OK (1955): prohibited opticians from selling eyeglasses except from anyone unless an optometrist or ophthalmologist. They bought themselves a statute saying to take this away from opticians. OK in its brief basically refused to say why they passed this statute. Douglas writes for the majority and they unanimously uphold the statute. He actually does OK‟s work for them and says well they could have passed the statute for this reason or for that reason. Still not arbitrary! Clearly the standard is quite lenient. 7) Ferguson v. Skrupa (1963): Statute allowed only lawyers to do debt adjustment. Court upholds the statute saying it is for the legislature to decide the wisdom and utility of legislation. The case gives a standard that is technically an arbitrary standard but in reality the statute is going to be upheld – no statute has been struck down since – economic due process is dead.
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But see takings if u can convince the court that there has been a taking without just compensation u could win, but the standard is really hard and really narrow. -------------------------------------------------------------------------------------------------------------------------------------------IV. Substantive Due Process – Right to Privacy – still good law and growing by the day. **look to who is acting fed or state is state then 14th due process clause applies, if fed then 5th due process clause applies. An aspect of a liberty interest under DP clause. Is it a fundamental right or is it a harmless liberty / low-level liberty interest? A. General Privacy Cases 1) Buck v. Bell (1927): Does mandatory sterilization violate due process? Court upheld a VA statute authorizing the sterilization of inmates of state institutions who were found after a hearing to be afflicted w/ a hereditary form of insanity or imbecility. Justice Holmes opinion “three generations of imbeciles are enough.” No right under the constitution to avoid this. Remember this was during the period of the court when they protected property like hell but did not care about this at all. 2) Skinner v. OK (1942): 5 yrs after the constitutional revolution so the liberals are taking over the court (30s-40s), the liberals then were the ones wanting to take power from the court and hated activist judges interpreting statutes in ways that got in the way of political majorities. A habitual criminal act –under the statute if u committed 3 or more crimes of moral turpitude then u would be sterilized. Guy was a chicken thief (the statute left out criminals who stole $ from employees and stuff). Triple criminals of the white collar variety were left out! The liberals on the court did not want the court to overturn legislation, and they have to deal w. Buck v. Bell. Justice Douglas tries to turn this into an equal protection case fundamental rights equal protection law. i) Douglas says that u have these rich criminals who can do anything, but blue collar criminals are getting snipped and this is a classic ep violation. The case is a 14th EP case, and as such Douglas does not get involved w/ the notion of a right to procreate. But to get to EP analysis you have to address the fundamental right and Douglas did not want to. So Douglas treats this as an EP case but to first get there he says there is a fundamental right to procreate and to say that he has to get to procreation as a fundamental right even if it is not in the constitution at all. He talks equal protection also because he does not want to address due process because of the aversion to its use at the time. a) Creates a category of fundamental rights equal protection category or law. Statute cannot allow one group to exercise a fundamental right but prohibit another from doing so. First must have a fundamental right, Douglas says that the right not to be sterilized is a fundamental right. The court held that the right to have offspring is “fundamental” right even if it is not in the constitution at all. Did not say where this came from or where they got it from. *So w/ Skinner, if u have a fundamental right and if the gvt then tries to give that right to one group of peeps access to that right BUT denies other peeps access to that same fundamental right then that creates an EP problem. Problem is that if u have a fundamental right u will win or lose on that basis and never really get into EP Clause at all. A few case pre-skinner where the court did find some kind of non-economic substantive due process rights… 3 and 4 are linked to parents and kids!!!! ----3) Meyer v. Nebraska (1923): this was back in economic due process days. Case involved an antigerman immigrant statute. Nebraska passed a statute saying it was illegal to teach any foreign language, no language to be taught other than English. USSC strikes down the statute under substantive due process, you have a substantive due process right to teach your kids a foreign language. Court speaks of notions of liberty (sub due process) “here no emergency has arisen which renders knowledge of a child of some language other than English so clearly harmful as to justify [its] infringement of the right long freely enjoyed.” So it was an application of sub due process to economic rights. Part of the broad range of sub due process is the parents‟ right to educate their children – a cons right to learn language (still good law). A broad scale notion that three are things that the gvt cannot tell u not to do it, one aspect of this broad scale is to teach your kid in your native language. ----4) Pierce v. Society of Sisters (1925): (still good law), anti-catholic statute, Oregon passed a statute saying private schools were illegal cuz the public school kids tried to convert catholic kids to protestant.
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USSC strikes down the statute. So under Meyer you have a con right teach a foreign language to your kid, and now under Pierce u have a con right to send your kids to private school. (a broad notion of sub due process). Court held that the statute “unreasonably [interfered] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” BUT remember Meyer and Pierce both are still good law but a lot of the theory behind them was based on economic due process which is long dead. Hard to tell how far these cases will really go nowadays. In modern era, court says these are privacy cases but are still premised on economic due process….so the holdings are good but underlying doctrine is different. Revisited 5) Skinner v. OK court says that this is an ep case, as one category has a right to procreate but another group does not. The problem is what is the fundamental right and where does it come from? This is the court‟s problem and they basically ignore it and more or less just hop right into ep analysis. First to get into this analysis you must find a fundamental right, but here the court does not say that this particular right is fundamental…all that is left is sub due process and this case is a mess because of that. Douglas opinion Douglas says that the right not to be sterilized is a fundamental right.
6) Griswold v. Connecticut (1965): another Douglas opinion. He wrote Skinner and Griswold opinions cuz he liked the notion of privacy but could not figure out where to get it from. The predecessor cases was Poe v. Aldman where a CN statute dealt w/ making it illegal to possess or use contraceptives. So in Poe this statute was challenged but the USSC threw it out for ripeness. So the statute remained on the books and no one was getting prosecuted. So ACLU got together and put up billboards saying come to Yale and get free pills. CN prosecutors eventually came after some Yale doctors so now there was a ripe controversy. i) So in Griswold is there a right NOT to procreate? The ? is whether this is a constitutional right. Many hate this Douglas majority opinion. “the forgoing cases suggest that specific guarantees in the BORs have penumbras, formed by emanations from those guarantees that help give them life and substance.” He says if u look at BOR and in particular 1st, 3rd, 4th, 5th, and 9th and u throw all of them into a pot and cook them for awhile then you get a constitutional right soufflé penumbras and emanations give you an implicit right of privacy. One thing protected by that is at least a right of marital privacy, so this protects married couples. Douglas did not like the notion of sub due process, so instead he crafted “penumbras and emanations.” So the holding is tied to the right to be married, a marital privacy where married peeps have a right to use contraceptives. (today we place the right to marital privacy in the liberty provision of the due process clause). ii) Concurring (Justice Goldberg) says that u can get all this out of the 9th cuz it says the BOR is not exclusive and this is one of the only times EVER where the 9 th comes into play on its own. iii) Concurring (justice Harlan): this comes from his dissent in Poe v. Ullman, if he found a right in the constitution he would got to town on it, here he says that the concept of liberty in due process encompasses certain kinds of freedoms and liberties that are not in the constitution, HOWEVER, he says that the gvt has no business trying to tell u not to have sex BUT then he says adultery / fornication / homosexuality / incest are still illegal and subject to criminal prosecution. He says that the right of privacy is NOT absolute. So he sort of contradicts himself, and then links his notions of due process to marriage. iv) Concurring (justice white): White said what is the point of this statute and CN said that it would mean that no one would cheat on their spouse, and White said this is stupid, he just says at some point the gvt is just too stupid. ***Griswold is the beginning of modern privacy era and u have this decision coming from everywhere, and that is the genesis of the modern constitutional view on privacy. v) Black and Stewart dissent if u do not see it in the constitution then the gvt can do whatever it wants. 6) Eisenstadt v. Baird (1972): 2nd draft of Griswold. Brennan wrote this to give Blackmun a basis for Roe v. Wade. “If the right of privacy means anything it is the right of the individual (married or single) to be free from unwarranted gvt intrusion into matters as fundamentally affected a
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person as the decision whether to bear or beget a child.” The court held that a Mass statute prohibiting the distribution of any drug or device to unmarried peeps for the prevention of conception violated the EP clause cuz it provided dissimilar treatment for married / unmarried persons (court purported to have applied traditional rational basis review). 6 – 1 decision. So court held yes unmarried peeps have a right to get contraceptives as well as married peeps. U have the right to have recreational sex. Fund right for unmarried adults to have access to contraceptives. 7) Roe v. Wade: TX statute was one of the more draconian statutes, made procuring an abortion a crime UNLESS it was to save the life of the patient. All could be thrown in prison for a decade unless doc got on the stand and said she WOULD die NOT COULD die. Lower court relied on Goldberg‟s concurrence in Griswold (9th amendment). Goes up to USSC Blackmun opinion on vagueness grounds (horrible cuz it aint vague). So rescheduled the case and heard again, this time Brennan who wrote the opinion in Eisenstadt sent a 41 pg memo to Blackmun saying u should go w/ Eisenstadt rationale and avoid vagueness. So this becomes what Blackmun uses, if u have the right NOT to procreate in the contraceptives cases then the same applies to abortions! i) the court on re-argument asked for more data on history of abortion regulation (notion that it is relevant to the con right as to what the country has done in the history and regulation of abortion). Court said this stuff did not help, cuz most of the statutes were intended to assist women w/ safe med care and court said this does not tell us much cuz TX is trying to eliminate abortion altogether. TX renounced any intention to discourage recreational sex (Eisenstadt v. Baird said u have the right to have recreational sex), they said they wanted to protect the fetus and the health of pregnant women. USSC says although the cons does not explicitly mention any right of privacy, BUT we feel that the right of privacy is founded in the 14th concept of personal liberty (this is what they feel) but they also say that the 9th could contain the right of privacy…”this right of privacy…is broad enough to encompass a woman‟s decision whether or not to terminate her pregnancy.” So they abandoned the notion of penumbras and emanations. So this is a substantive due process right of privacy cuz court says we think it is in the personal right to liberty of the 14th (but could be in 9th). So there is a con right of privacy based on due process clause in § 1 of 14th. a) ? – is a fetus a person? TX argued that we think a fetus is a person just like a pregnant woman and we have to protect the fetus as the woman has due process rights BUT so does the fetus. So the court basically eliminates fetus from the definition of a person so that the state has no authority to step in on behalf of the fetus. Court said if the fetus were a person then u TX would be right and 14th would protect it, BUT court says that is NOT the way the 14th uses “person.” Court said in the rest of the con “person” means someone who has already been born. Court said it is only living persons having been born and thus it means that in person in the 14th means the same thing as persons elsewhere. -Justice Douglas what the fuck? U said corporations were persons? (see Santa Clara case). -- Later in Casey (Scalia) you read the privacy right into the constitution, but then you have this strict reading confined to the four corners of the constitution regarding the definition of “person.” THREE TRIMESTER SYSTEM Court held that there are 2 state interests here: 1) the state interests in protecting the health of the woman, and 2) the interests of protecting the fetus….but they kick in at different stages of the pregnancy. -1- first three months the court says that neither of the state‟s interests are compelling. The first interest is not compelling cuz the evidence shows that 1st trimester abortions are relatively safe…the second interest is not compelling cuz protecting life of fetus does not apply cuz fetus is not yet viable.
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-2- First state interest kicks in (protect health of the woman). In the early 70s these were not very safe / fairly dangerous, so TX could systematically regulate them here BUT ONLY in ways to protect health of the pregnant woman (strict medical regulations of the procedure). The 2nd state interest is not compelling still cuz fetus is still not viable! So they cannot ban it here but they CAN regulate abortion to protect the woman. -3- Both state interests kick in!!! Can protect woman and potential life of the fetus. At beginning of the the 3rd trimester the fetus becomes viable (defined as the ability to live independently of the mother outside the womb…key is fetal lung development – the ability of the lungs to provide oxygen to the blood). Why is viability the key? the court says there are many different traditions about what a fetus is quickening at CL, judeac tradition of not a human being prior to birth because no soul, catholic / protestant tradition that as soon as fertilization/conception there is ensoulment. The 4th tradition = when does medical community believe a fetus becomes a human being / person viability (ability to live outside the womb) so this turns entirely on medical definitions. A med decision and NOT a legis decision. WEEK 24 is the key…pre-week 24 not a person. Even the dissents ssay that if a woman‟s life is in danger then she can have an abortion post-viability though! A 7-3 / 6-3 decision. Concurring (Stewart) sub due process (personal liberty). Concurring (Douglas) sub due process (freedom to walk, stroll, or loaf). 9th includes many customary / traditional rights that come within the meaning of the term liberty in the 14th. Dissenters (Rehnguist / White) based on Black‟s opinion in Griswold v. CN no such thing as a privacy right, this is not in the text of the cons and u should not be making it up (they would overrule Griswold). Alternative constitutional rationales sub due process, ep clause, 13th amendment, establishment clause - The argument has always been that sub due process is very weak because we do not know where it ends and is not supported by the text. One option is 13th (Thomson argument) if the state prohibits abortion then it is making an involuntarily pregnant woman a slave to the state. Violinist w/ rare blood disease and they hook u up to him for nine months. No one would argue that gvt has power to do that. -EP clause John Hart Ely abortion regulation effects only females, so since it only effects women then that is essentially an equal protection violation. But is it really fetus v. women cuz it seems a fetus has no right at all in absence of a state statute (this is the counterargument). -Justice Stevens likes this establishment clause, gvt cannot endorse or enforce upon everybody the religious opinion of the majority. And Steven‟s says if the gvt is allowed to do these regulations like TX w/ one religious view then that they cannot do. Steven‟s says that Roe v. Wade is not a religious view, it says the state can protect an independent entity when the independent entity comes into being. So think of this stuff if court chucked right of privacy look to ep clause / penumbras / 13th. B) General Abortion Regulation Cases: 4 different types of cases. B(1) – Cases involving the definition of viability (viability is key cuz that is where the state can prohibit abortion) 1) Danforth just gives the definition of viability, the stage of fetal development where life may be sustained outside the womb independently of the mother, and it is not the proper function of the legislature or the courts to define “viability” viability is medical definition / determination. Statute cannot set a specific week (this provision struck down for void for vagueness). 2) Colautti v. Franklin Statute made doctors liable in crim law if they aborted kids that may be viable. Court struck down doctor‟s expertise is what matters and u cannot make this subject to second guessing later on, the doc decides when viability has occurred. Cannot impose vague standards on the doctors. 3) Webster v. Reproductive Health Services statue that says if a doc is treating a patient and has reason to believe that the woman is 20 weeks or more pregnant THEN doc must do a test to set VERY precisely
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the term of the pregnancy (24 weeks is point of viability and this stat says if u think she is more than 20 weeks then u must do a test to determine exactly 24 weeks or more). So ? was did this move viability up to 20 weeks? i) Court said NO it did not move the date of viability up to 20 weeks, u just have to be sure that the kid is not 24 weeks old. So court upheld the statute even though this clearly moved up gvt regulation into the second trimester. ii) also, preamble in the statute stated that “the life of each human being begins at conception” but the court said that the preamble “simply expressed a value judgment in the abstract.” so a state can say that they do not like or do not agree w/ Roe. B(2) – General Regulations Intended to discourage but not prohibit abortion Akron, Thornberg, and Casey had basically the same statute *** majority in the court kept shrinking and everyone assumed O‟Connor would overturn Roe v. Wade. 1) city of akron v. akron center for reproductive health (1983): USSC struck down the statute which said any second-trimester abortion must be performed in a hospital, no abortion could be performed except “w/ the informed written consent of the pregnant woman given freely and w/o coercion (another part of this one was intended to persuade her to withhold her consent it required the physician inform the patient that “the unborn child is a human life from the moment of conception”!!! Also no abortion until 24 hrs after woman signs a consent form (so prohibitive costs too) – all provisions were unconstitutional (o‟connor dissented). Roe reaffirmed. 2) Thornburgh v. American College of American Obstetricians (1986) – 5-4 all provisions unconstitutional. Penn stat req‟ed physicians to provide women w/ info allegedly designed to secure informed consent, req‟ed detailed recordkeeping, required use of the abortion technique that would provide the most protection for the life of the fetus in postviability abortions UNLESS the technique posed “significantly greater” medical risks to the pregnant mother, and required the presence of a second physician for postviability abortions. Roe reaffirmed. 3) Webster v. Reproductive Health Services (1989): All thought Roe was gone. 4 yea, 4 nay, O‟Connor says I can uphold the whole statute w/o overturning Roe! Mizzou statute began w/ a preamble that said “the life of each human being begins at conception.” Court says that simply expressed a value judgment in the abstract. Court says u can think it but u cannot enforce it so it is ok. Then the court also upheld a bar on state employees performing abortions and a ban on the use of public facilities for performing abortions even when patient paid herself. Also upheld a testing provision if a doc had reason to believe woman was carrying a fetus of 20 or more weeks. O‟Connor says this is fine too cuz it is just saying that u have to be absolutely sure that the fetus is not 24 weeks old so under Roe this is fine. The BEAR 4) Planned Parenthood of SE Penn v. Casey (1992): Kennedy added to the court and all thought here were votes 5 and 6 to overrule Roe. The statute had a juvenile rights provision (must get consent of parents), reporting req‟ment that attached to clinics (clinics had to provide a batch of data about the abortions they had performed / what they do / who they do it to / names / age / marital status / have u had abortions b4 etc). lower court said this was public records but the statute changed b4 getting to USSC and the state said we are not looking for names and such. We just want generic data like numbers and stuff (so it was ez to uphold and looked like a safety thing). Also, a medical emergency provision that got u out of the rest of the statute if a woman who was undergoing a pregnancy producing complications then she could get out of all the other req‟ments (early part of case this was narrowly defined “she will die now” but b4 USSC it changed to they would defer to medical expertise of the doctors. 3 parts of statute left – the focal point 1) hubby notification provision: if u were a married woman and wanted an abortion u had to notify your hubby first (some exceptions like history of domestic abuse). 2) Informed consent provision: state produces a packet of materials trying to get the woman to take the pregnancy to term and not go thru w/ abortion, child support, adoption, alternatives. State prepared the packet. 3) 24 hr waiting period, clinic would say sign here and date it, here is the packet, come back in 24 hrs. i) District Court struck down this statute relying on Thronburgh and Akron saying USSC had already struck this stuff down. 3rd Circuit reversed relying on Marks v. US
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which says that if a lower court has a case that seems to be governed by a USSC precedent that the USSC has abandoned or no longer enforces then the lower court is allowed to ignore that seemingly binding USSC precedent (hard to get a judge to do this but worth a try). So the 3rd said it seems that USSC would now overturn Roe. ii) USSC says district court got it right! 3-2-4 vote, Roe is STILL good law. Plurality says that Roe is a sub due process decision but turns into an EP decision. 4 criteria for challenging existing con law doctrines (opinions try to make them all come out the same way, no way to know which of the 4 or 5 is strongest, throw spaghetti): 1) whether the prior decision has become unworkable (just a pragmatic determination, have we been able to enforce it and are we still able to). 2) reliance factor (have peeps come to rely on the old decision, if yes then it remains, if no then what is the downside of chucking it). 3) legal evolution factor (has the law evolved in a way that undermines the principles upon which the prior decision was based, if yes then abandon the old, if no then keep it). 4) factual evolution factor (have the facts that were the basis of prior decision evolved in a way that we now understand we were just wrong. *5) we just blew it 4 as applied to Roe – 1) roe is workable and ez cuz it is written like a statute. 2) society has come to rely on fact that abortion is available so it is woven into society. 3) if anything the privacy right today is much broader and stronger than when Roe was decided. We have more privacy now so legal evolution works for Roe too. 4) Court says only relevant fact is when viability occurs and the obstetricians‟ brief says the same it always did, viability occurs at week 24. Scalia (dissent): saying this is Lockner and Plessy (majority says both those cases were overturned because of #4 (factual evolution) cuz Lockner was predicated on the nature of economics and we finally realized that neo-classical economics = depression. And in Plessy we said the blacks were making up this junk about feelings of inferiority but then we had tons of studies on segregation saying different….and this has not happened in Roe. Also Scalia says we should get out of this area altogether and let the majoirty decide….majority says this should be constitutional and if we keep overturning stuff then the peeps wont believe us AND the court says if we do something really really controversial we should dig our feet in and stand our ground (same thing as in Brown v. Board). Scalia responds by saying this sticking to your guns stuff makes no sense cuz this rationale solidifies any decision you ever make and how and when do u overrule anything? Then plurality contradicts Roe the court says backhandedly that this is sub due process, but then they reintroduce EP into sub due process!!! (now this is a sub due process issue w/ lots of ep stuff (more of a womens‟ right issue today)). So after all the stare decisis stuff saying we uphold Roe they then change roe!!! 1) Plurality says that one problem w/ Roe is the rigid trimester system. Med tech has advanced so no longer do we have these three rigid periods. So court says cuz of advances in med tech and cuz we think that Roe hurts the state‟s interest in the right of the fetus‟s life we abandon Roe‟s trimester system. But they reintroduce the trimester system!!! Now the state has a compelling interest prior to viability to regulate abortion to protect the potential life represented by the fetus. -viability continues to be the key for when the state can ban abortion, so under Casey as in Roe the state CANNOT ban abortions pre week 24. But the state MAY discourage abortion prior to week 24 (and court says under Roe the state could not really do that and this was why the Thornbourgh stat was struck down). -prior to viability if there is a statute exercise the potential life represented by the fetus then it is all subject to undue burden analysis!!! Court says that states prior to viability may regulate abortion w/ the INTENT of discouraging abortion so
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long as they do not impose upon the woman an undue burden of her abortion right. An undue burden = a “substantial” obstacle. So the state can regulate unless and up to an undue burden. An undue burden is a regulation that has imposed a substantial obstacle in the path of a woman seeking an abortion of an unviable fetus. (in older cases O‟connor said cannot impose an absolute obstacle but here she says substantial so it makes it harder for the states to win) - Spousal notification struck down court said this imposed an undue burden cuz evidence of spousal abuse in many cases where women wanted abortions opposed by hubby. Hubby has NO enforceable right to have his wife advise him about her abortion. -Informed consent and 24 hr waiting period these were struck down under Roe but here the court says they are ok. So Roe as modified by Casey says that 24 hr waiting period and informed consent parts are not always bad. 24 hrs is not substantial for most women and that is enough…..But open questions (what about 48 hrs upheld in some juvenile abortion cases, 72 hours, a week?)…(what about an aggressive informed consent provision like graphic color photos? When does it become so egregious that it does impose a substantial obstacle?) *Blackmun – convert this all into EP *Stevens establishment clause argument saying we do not have to get into privacy or EP cuz he says all regulations are violations of the 1st since they always rd religion into the regulations. *Rehnguist – an elaboration of Roe dissent. *Scalia – scathing, justice taney an expression of profound sadness and disillusionment. * An exception Stenberg v. Cahrart (2000): 4-4-1, statute involved a partial-birth abortion in Nebraska, the statute banned all partial birth abortions unless to save life of mother. 3 different mechanisms for performing an abortion 1) vacuum aspiration (basic way in first trimester, u stick in vacuum and evacuate the contents, very safe). 2) Dilation and evacuation (used usually after 2nd trimester begins, post week 15 or so, very safe but complications are more frequent than #1 but still not too bad, this is the basically the 2 nd trimester procedure). 3) dilation and extraction or an intact dilation and extraction (if the fetus presents feet first then a d and x may be required, sometimes they try to turn the baby around, and in some circumstances this is safer than #2, here the fetus is partially delivered / head collapsed / and the whole is removed). i) USSC Nebraska argued we are not effecting dilation and evacuations at all, we are intending to prohibit dilations and extractions. Breyer plurality opinion the court said that we do not see how u get that cuz the statute applies to d and e‟s and d and ex‟s (imp cuz O‟Connor said she might have sided w/ Nebraska if their argument had been true). The court said that Nebraska does not have a right and if d and e‟s and d and ex‟s are prevented then u are not protecting the health of woman either because in the 2nd trimester a d and e is best, and even if u did only prohibit d and ex‟s then that would violate Roe and Casey cuz in some circumstances these are safer for the woman anyway. So the only compelling interest the state could come up w/ here was safety and Breyer says NO. The state claimed its interest was the health of the mother, but the state was not satisfying that interest. ii) O‟Connor (1)– seems to say that a state could ban d and ex‟s but they were not clear enough here. iii) Kennedy dissent (4): there are now two state interests: 1) he said here I acknowledge no interest in the fetus, 2) no interest in the health of the woman. BUT he comes up with #3 a desensitization interest!!! A desensitization argument that certain procedures are so disgusting that it desensitizes society which independently of the fetus is problematic (but how do u measure desensitization??).
B(3) Abortion funding (where gvt is funding abortion as opposed to regulating). These are not cases involving generalized gvt regulation (see Roe, Casey, Sternberg), these are decisions by the gvt not to pay for abortions but
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they do pay for other analogous medical procedures. (The argument here is kind of a Skinner-esque EP argument – a fundamental right not to have a kid but u do not get to have an abortion??? ALWAYS rejected by the court). 1) Maher v. Roe (1977): ? is whether gvt can decide not to fund non-therapeutic abortions (these are abortions not necessary to save life or health of the woman). USSC YES, 6-3 decided not long after Roe. “Undue burden” appears which became the basis of Casey. Court says (and they say the same in Casey) Roe only said NO to unduly burdensome stuff, abortion is protected from undue burdens, HOWEVER court said that denying funding to a poor woman is NOT an undue burden imposed by the gvt even if she wants an abortion. Rationale court says it is not the gvt‟s fault that she is poor. State cannot unduly burden abortion but they can favor childbirth over abortion. 2) Harris v. McRae (1980): 5-4, also involved a non-therapeutic abortion, court upheld an amendment which prohibited the use of fed Medicaid funds “to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest.” So it had an escape clause for rape and death and incest. If doc could only say she would be physically harmed then that was not enough for $, for $ the doc had to say she WOULD DIE. i) Court says this is fine, Maher rule applied, not gvt‟s fault she is poor, the gvt need not remove obstacles not caused by them and poverty is not the gvt‟s fault. As long as gvt is not barring abortion then they can discourage it, so an extension of Maher. 3) Webster v. Reproductive Health Services (1989): Goes another step, Mizzou stat that prohibited any public facility or public employee from doing anything for the purpose of influencing a woman to have an unnecessary abortion. Statute defined public facilities as any pub institution or public equipment or any physical asset owned / leased / or controlled by the state. The problem was that in Mizzou the only place that did this stuff was private but it was on land owned and leased by the gvt so in effect it meant that if u lived in Mizzou and wanted a second trimester abortion then u had to go to Kansas. i) ? was whether this was too broad? – 5-4 upheld the statute. (O‟Connor concurrence says there may be constitutionality problems if this was extended to public power lines / sewers / public water…also if socialized medicine and all hospitals and physicians were publically funded). ii) big debate b/w Blackmun and O‟Connor – she said this has not went too far. Blackmun argued the sewage / power plants stuff. iii) So here the state said if we give u direct or indirect money (like a cheap lease for land) then u become a public facility and u are governed by the law regarding public facilities and thus no abortions. Defined public facility soooooo broadly. 4) Rust v. Sullivan: Fed Family Planning Stat and Fed Health Services Act. 1) May not provide counseling even upon request (so if u get title 10 $ then none of your employees can counsel about abortion or refer them to private facilities even if the woman asks u to!!! So if a woman says what about abortion, then the doctor cannot say anything cuz if he does then that = counseling and the whole facility loses money. 2) if u are a public health dept or planed parenthood then u get public money then all your abortion flyers have to go or u lose the $. 3) U must physically and financially set up separate abortion facilities, u have to set up two planned parenthood parts A and B which must be located in different buildings entirely physically and financially separate and if u go to A then they cannot say u need to go over to B instead cuz if they do then they lose title 10 $. ? was can the feds do this??? i) USSC – Court says yes. Cannot lobby / litigate / counsel on abortion. Court upholds against 1st and sub due process attack. Against sub due process see Maher, Webster, etc. We already said the Feds do not have to fund it, gvt does NOT have any obligation to subsidize something just because it is a constitutional right. BUT SEE Rust may no longer by good law, perhaps limited when gvt spends $ to create a public forum (there they cannot prohibit speakers). 3 cases below!!! i) Rosenberger v. UVA: UVA collected student activities fees but we will not hand out money to groups w/ religious or political purposes. Student group wants to start a religious mag and they sue. State says Rust v. Sullivan, but USSC says NO: Rust does not apply here cuz student activity
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fees are used by UVA to encourage the dissemination of a range of private perspectives at UVA so court says it is like a public park / quintessential public forum. Anyone who wants to speak or hand out stuff in a public park can while in Rust u were hiring someone to speak for the gvt. But here it was for UVA and no one would think that this group would be speaking for UVA. ii) Forbes case: Arkansas public tv, debate for governor or something. 3rd party indep wants to be let into the debate and Ark says NO. He sues on 1st grounds citing Rosenberger and Arkansas says Rust. State wins!!! Court says u must look at the function the gvt is serving as speaker. In Rosenberger it was for a range of different viewpoints, but here the gvt is serving as an editor for a newspaper and in these cases the gvt can choose what is and what is not imp. The key is the function that the gvt is serving, just make sure it is not discrimination and if not the the gvt can make editorial decisions. Court says in the abortion case the doc is working for the gvt and he is basically reading a script. ***iii) Velasquez: Congress wants to shut legal services stuff down, a legal services corp, democrats uphold but republicans want new rules. The rules said that u could represent clients but u could not challenge the constitutionality of any action of the gvt or any stat being used by the gvt and u could not basically do class actions. All u could do was help them fill out their forms cuz u are our lawyers. The lawyers challenge the constitutionality of course. Kennedy opinion, USSC strikes down. This cuts the heart out of RUST!!!! Kennedy says if we had a lawyer appearing b4 us who did this stuff and did not raise these objections then we would disbar him tomorrow. U do not hedge your bets cuz your employer says so, and when congress hires lawyers then they accept the rules of the game (representing your client to the fullest), so this is a functional analysis too when u hire a lawyer u buy a lawyer and not merely a tool. Then Kennedy says in Rust this is just a script and that is fine. But Scalia dissents and says u cannot say that cuz when u hire a doctor u hire a doctor and a doctor is not just a tool or a person reading a script. BUT the gvt still throws out Rust left and right while it is impossible really to make Rust and Velasquez work together. Kennedy seems to say that in Rust the docs and employees were not giving any subjective advice and they were only there to read a script, but Scalia says this makes no sense. No logical way to distinguish lawyer advising a client behind closed doors and doc advising a patient. The Courts have not overruled Rust yet, but the 9th has stopped holding in favor of Rust. Bottom line is that a state can de-fund anything it wants to fund but this is subject to undue burden analysis. B(4) Juvenile Abortion (this has been big lately in fla) predicated on old contraception cases. Remember in Griswold married couples have a right to sex, Eisenstadt (unmarried couples have right). 1) Carey v. Population Services Control: Unmarried juveniles have the same exact constitutional right to obtain contraceptives and use contraceptives as married/unmarried adults. 2) H.L. v. Matheson: draws distinction b/w parental notification and parental consent. Under a consent statute then the parents can consent or withhold consent. Under notification statutes the juvenile is req‟ed to notify but gives the parents no right to withhold consent. W/ Hodgeson case see infra, this prolly does not matter anymore, and most states have abandoned consent statutes altogether. 3) Belotti v. Baird (1979): Mass consent statute, ? was whether the state could require a juvenile get parental consent. Court said (probably this now applies to notification as well) YES it is permissible for states to impose on juveniles the req‟ment of parental consent. BUT ONLY IF states have given a judicial/Belotti Bypass to get around this. Court understood that parents should have some input on medical procedures. A belotti bypass the juvenile is allowed to go to court to avoid notifying or getting consent from parents, and court then has 2 criteria. All juveniles seeking an abortion must have EITHER parental consent OR go to court to bypass the parental consent. 1) Court assesses the maturity of the minor (see if she is mature enough to make decision herself, if yes then she can have abortion,
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if no then u go to #2). 2) would it be in the child‟s best interest to have the kid (what? But if she is not mature enough to make the decision then would this girl really need a kid?) So basically HAVE THE ABORTION. So if either 1 or 2 is yes, then court MUST issue the bypass order. HOWEVER, it is very hard for the juvenile to get into court or even know about this stuff (Rust still is on the books and they cannot get advices, also poor areas / rural areas probably do not have planned parenthood places. The process sux and both sides hate it. Also now a # 3 see infra (if parent impossible to track down). 4) Hodgson v. Minnesota (1990) and Ohio v. Akron Center for Reproductive Health (1990): Most recent Belotti cases. Both dealt w/ parental notification statutes, and MN was very clever as they wrote 4 statutes and wanted to have lots of paper and lots of forms to confuse and make the process more cumbersome. i) There was a two parent notification part and MN said we want parents and kids to talk and we want both parents notified at least 48hrs b4 the abortion (kid goes to place and signs affidavit saying I want abortion and then comes back and signs saying I notified, then comes back two days later and has abortion….but what about a dad that never married a mom and lives far away? Court says Belotti applies to notification as well as consent, so u must have a Belotti bypass even if stat only says u must notify the parents, and when the statute says that u must notify both parents then a 3rd criteria comes in #3 is it impossible to track down the parent. ii) So notification of 2 parents w/o bypass is uncon. 2 parent and/or one parent w/ Belotti bypass is fine, court did not says anything about 1 parent w/o bypass (but this is prolly uncon). States under Casey can discourage abortion so long as there is not an undue burden and the only way to get around notification / consent statutes is a Belotti bypass. So when does all this become an undue burden (argue in alt and see what sticks). Akron case see directly above Ohio made the paperwork very formalistic for the bypass and made it more complicated, but court said this was not an undue burden. Remember in Casey the biological father who had sex w/ the woman now wanting abortion has no input at all, in some statutes u must have notification / consent from stepfather and mom and dad and court has said this stuff is fine no matter how cumbersome it is to get around this mess w/ a Belotti Bypass. At some point this would present an undue burden, a lower court said a waiting period of 72 hrs or more would be too much of an undue burden but the USSC has never revisited Casey. C) Non-Abortion Privacy Cases So thus far we know where sub due process came from (court said 14th, but could be the 9th), a right to procreate linked to marriage and then expanded out to other relationships. Now there are more areas where the court has applied a vague privacy right. C(1) Family Rights Cases 1) Village of Belle Terre v. Boraas (1974): deals w/ zoning. R1 zoning areas for single family detached housing. So Belle Terre prohibited unmarried persons from living together in a single living unit. Here u had a house owned by a student who brought in 10 other students. They claimed that had a con privacy right to live w/ whoever they wanted to. USSC u have no con right to live w/ a bunch of unmarried peeps together under one roof. No infringement of con rights. Starting point 2) Moore v. City of East Cleveland (1977): same zoning regulations, single family detached housing. Came after granny living w/ two of her grandkids who were cousins. Said one of the grandkids has to go cuz they wre not marred. Granny sues and Wins!!! USSC “Our decisions establish that the con protect the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation‟s history and tradition.” The con protects the family cuz of “history and tradition” and is not limited to the nuclear family. -----So key term is history and tradition. Court looks to H and T of the country to see whether the thing being defended is part of the country‟s H and T. If it is then it receives con protections under privacy right. So Moore gives u outside of procreation privacy rights, protected rights that falls w/n the history and tradition of the Nation. So the more traditional your behavior then the more likely the gvt will protect you. So u basically want to get married. HISTORY AND
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TRADIITON IS CONSTITUTIONALLY PROTECTED FROM GVT REGULATION. Once u get married or try to get married then u are usually fine. BUT what history and tradition are u looking for? Is it narrow / broad / modern tradition etc. Also this is supposed to be based on counter-majority opinion BUT history and tradition is majoritarian. 3) Zablocki v. Redhail (1978): Wisconsin statute that if u had a kid that was not in your custody but which u had child support obligations toward then u could not get married again UNTIL u went to court and convinced them that u would be able to satisfy those obligations. Theory was that if u are taking a new wife then that would mean more expenses and we must make sure that u would satisfy all those expenses and your child support. USSC strikes it down. i) Language that the right to marry is the pinnacle. Sanctity of marriage and by state doing this then this is a horrible overstepping of history and tradition. Even though the interest of the state is high, the interest in marriage trumps almost everything. Court says marriage is a protected right and even if gvt interest is strong u cannot prevent a marriage. So characterize real life like quant 19th century / the Waltons. Fundamental right to marry. 4) Turner v. Safley (1987): here the prisoner WINS!!! Because it involved marriage and he could not get married. Have the rights to marry even if incarcerated. The prison regulation permitted inmates to marry only when the superintendent found compelling reasons to grant permission. Unanimously the court struck it down!!! But remember if in jail u do not have any fundamental rights (but marriage is still looming large and he won in Turner). But think of Gey case where in fla prison and guy‟s name was Smith but they admitted him under the name Jones and they call Jones everyday and he does not answer his call and they take away his mail and privileges. Everything in prisons is justified only on a rational basis standard. So in this case could u get what u want prisoner if u just agreed to be called Jones? This is clearly irrational but the gvt still wins. Bottom line Turner involved MARRIAGE and he could not get married prisoner would take fiancé up to the superintendent and he would say NO. 5) Michael H v. Gerald D (1989): extramarital affair and biological father wanted visitation rights. CA has a statute that says if a kid is born into a marriage then it is conclusively determined that the child is the child of the hubby and DNA tests do not matter. So ? is whether the biological father has a sub due process right to visit his daughter when the statute says the daughter is that of the hubby? i) USSC they have a problem – what history and tradition to look at, family unit vs biological father. No majority opinion – merely a plurality opinion by Scalia – CA statute upheld – Scalia says u must take a narrowest possible tradition and that here would be marital units. BUT Brennan says read traditions much more broadly than that and there are many other traditions out there and it seems obvious that if biologically u are the father and lived w/ the child on and off that u would want to see the kid. Plurality says CA is right, BUT court does not say what conception of history and tradition prevails in these cases. CA wins cuz marriage is marriage and marriage wins. 6) Troxel v. Granville: traditions that class, Wash statute regarding grandparents visitation, Stat gave grandparents the right to visit grandkids but DID NOT allow the courts to take into consideration the parent‟s wishes. Court said when u have an absolute conflict b/w grandparents and parents then parents trump grandparents. Court does not say what they would do if the statute does not automatically subordinate the interests of the parents to the grandparents. So we do not know about this, but if automatic trump of parents then it is uncon. A stat that does not require the court‟s to defer at all to the parent‟s wishes is uncon. Court would possibly uphold a stat if the parent‟s wishes were at least taken into account. C(2) Funding Cases: 1) Lyng v. Castillo: dealt w/ state funding. The ? is whether the gvt could reduce funding, here it limited aid to persons living together so that u would get more money if separated and living in separate apartments. Peeps argued that it undermined family interest. COURT this is financing and that is different and gvt wins even if the gvt interferes w/ family relationships. So stat upheld even if it treated all
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persons in the household as a single unit while basically giving family benefits instead of individual benefits.. 2) Bowen v. Gillard: court UPHELD stat where child support payments offset gvt payments for kids, court defers to gvt even when it infringed on the rights of the children. In all gvt aid cases it is treated differently, but if gvt $ is involved then gvt is far more likely to win than if they are regulating some sort of behavior. C(3) Sexual Freedom 1) Roberts v. US Jaycees: involved freedom of association – the term could mean two different things as two types are protected as fundamental rights. 1) an implicit con right under the 1 st the right to associate w/ other peeps to engage in behavior that is protected under one of the explicit provisions of the 1st (right to political speech and thus a right to get together in a group and talk politics / free exercise clause). The key is that u have to tie it in some form or fashion to some other explicit part of the 1 st speech, religion, press, petition, assembly. If u cannot tie that to one then u have no freedom of association. 2) the right to intimate association this is a sub due process right, for purposes of pursuing intimacy (#2 comes from this case). i) MN had a public accommodation stat that prohibits discrimination in public accommodations, here the suit was brought by the Jaycees cuz they did not want women in. So MN sued saying the Jaycees are a public accommodation and by prohibiting women they violated the nondiscrimination provisions of the stat. Jaycees argued we have a right of free association that u cannot touch. ii) Court says nothing here is protected by the 1st, and Jaycees say we are an intimate group. Court responds that u may love each other but not in the right way. Court gives factors to see if u have the right to intimate association: Court says that the definition of intimate association is for creation and sustenance of the family and the key is “relative smallness, a high degree in selectivity, and seclusion from others in critical aspects of the relationship.” So if u have a small, selective, and private association then that is protected by sub due process against gvt regulation. If the group is defined by a particular perspective then the group will have either 1st amendment right or privacy free association rights. 2) Bowers v. Hardwick (1986) (overruled by Lawrence v. TX): GA had a sodomy stat the defined sodomy as mouth or anus, the stat was NOT sex specific and referred to all including married couples. Cop came up to his apt looking for him and saw him in the act and they wanted to lean on him to get him to turn over some other peeps. This was an as applied challenge to his particular behavior, so now this is a homosexual sodomy case. Based on history and tradition the proposition is that sodomy has always been prosecuted in the US. White majority (5-4) he made the argument that the law is always based on morality, and at the end of the day the court says moral regulation is enough for us even in the face of a fundamental right. Moral regulations are fine and it is not uncon for the court to decide using a majority opinion of behavior that something is immoral despite a fundamental right of association. i) Dissent (Blackmun) there is not right to impose a majority moral upon everyone. Stevens this is nonsense, u will not do it like u are supposed to, if u really do this then a pretty big sum of peeps are going to jail. Moral regulation will not fly cuz u will not do it right. 3) Romer v. Evans (used quite a bit in Lawrence v. TX): rank prejudice alone can never be a rational basis for any piece of legislation. The three Colorado cities w/ their referendum and then CO had state-wide referendum that invalidated all the local ordinances and it was struck down on EP analysis. Kennedy opinion. Court said even under a rational basis level of scrutiny this was irrational cuz it was based on nothing more than rank prejudice. 4) Lawrence v. TX (2003): All thought it would be a narrow EP case, goes up to USSC and struck down! 6-3, 5 person majority opinion by kennedy focusing on sub due process privacy and some sort of nonsense concurring opinion by O‟Connor (she does EP analysis saying u cannot have a stat only for homosexuals but she may allow one that said no to all!!! She also suggests “a more searching form of rational basis review” that Scalia seems to enjoy mocking).
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i) Kennedy majority basically overrules all of Bowers. “Absent injury to a person the state cannot regulate the relationship unless someone is harmed the state cannot regulate the relationship in a way that disfavors or criminalizes the relationship. Unless there is an abuse of the institution that the law is to protect the state cannot regulate. Const allow peeps to make choices and any form of sexual relation b/w consenting adults cannot be regulated. Bowers was wrong in its history. The majority cannot use the power of the state to enforce their morality on others, moral regulation is not permitted. He says that White‟s rendition of history was wrong cuz the problem was that in Bowers he looked at history and tradition only at time the 5th and 14th were adopted / but history and tradition is the evolving history and tradition of what is happening today and Kennedy cites to what states are doing today. So kennedy says that in modern times the clear projection of the history is moving away from the older notions, so the only history that is relevant is the most recent history which is generally more liberal. Then he says that concerning moral regulation that morality is NO LONGER a sufficient reason to regulate ANYTHING. You would need some kind of concrete harm (harm to a child, genetic harm, incest laws, adultery laws, etc) if not then morality is not enough. But HE NEVER SAYS THIS IS A FUNDAMENTAL RIGHT. Thus, he bases all this under rational basis analysis and not strict scrutiny for a fundamental right. This means that MORAL REGULATION IS GONE! Scalia dissent destroys O‟Connor and says that this destroys all morality based in legislation. So the dissenters say that this is the end of moral regulation across the board. So cohabitation law are gone / but what about bestiality laws? Thomas (dissent) – this is a dumb law and TX should get rid of it, anyway I just like Justice Stewart cannot find neither in the BOR or any part of the cons a general right of privacy or “the liberty of the person both in its spatial and more transcendent dimensions.” 4) 11th circuit case Prior / Williams v. Alabama: AL stat says it is a crime to commercially distribute any sex toy. Lower struck down as having no rational basis, 11th reverse saying that anything is a rational basis but they said the lower did not say whether sexual self gratification was a Fundamental right, back to lower and again ruled uncon holding that sexual self gratification is a fundamental right. Again appealed to 11 th and in the meantime Lawrence is decided (under rational basis the state cannot regulate sex), but 11th reverses again saying Lawrence is very narrow and is a case dealing w/ homosexual sodomy. They said this goes beyond Lawrence and thus Lawrence does not decide this case. 11th says we still think this is rational basis, but is this a fundamental right when trying to recognize a new fundamental right not recognized by USSC or 11th they say there is a two-step process: 1) p must begin w/ a careful assertion of the fundamental right and u best be very very very specific. 2) most critically we must recognize the language of the Palco case!!! (but USSC abandoned Palco in Duncan where court went to anglo-american notion of tradition). But in 11th u must convince the court that this right is so crucial that neither liberty nor justice would exist w/o it. i) 11th upholds AL stat saying that autonomous sexual stimulation is NOT a fundamental right, they use a very narrow conception of fundamental right and ignore the fact that the USSC abandoned this standard in lieu of anglo-american notion of tradition. ii) dissent in 11th if u think Lawrence does not apply then you are insane, Lawrence says adults and sex then the state must leave it alone. 5) See also – TX SC upheld TX statute on this stuff. Dissent by Smith I do not understand why TX criminalizes the sale of dildos. C(4) Cohabitation 1) Hollenbaugh v. Carnegie Free Library (1970s case): A randy librarian shacked up w/ library custodian and they both got fired because someone saw them associated together in public socially. This was a public library and they told her either dump him or u both fired. She says I love him and the library fired her. ? is state able to do this? i) Ruled in favor of library in circuit court…USSC denied cert. ***Remember there are many of these case w/ female elementary school teachers where she lives w/ a guy unmarried. NC sheriff‟s dispatcher fired cuz she was living w/ a guy not married to. Does Lawrence v. TX
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apply here as well? No moral stuff here too or what? Or what about in elementary school where the kids see what she is doing is this a harm rationale (uphold) VS morality (strike down under Lawrence). C(5) Harmless Liberties 1) Swank case: Cop in small town Illinois, Posner opinion, 17 yr old college student and a member of 3 man police force. He takes the girl on a ride on his bike and the key was there was NO SEX and NO SEXUAL BANTER. Another cop saw him and ratted him out and he was fired. He raised two claims: 1) free speech / free association claim claimed he had a right to talk to anyone he wants to. 2) Sub due process Intimate association claim. Posner opinion in 7th circuit regarding #1 casual chit chat is unrelated to the marketplace and is not protected by 1st at all, so if you are Richard Posner u get all the 1st protection u want but if u talk about normal stuff then no protection, does not fit into the values protected under 1st – must consider whether it is political or commercial speech or casual talk and then consider the size of the audience as wel. #2 Posner says this was not intimate association, instead it is HARMLESS LIBERTIES that are only protected from ARBITRARY INFRINGEMENTS OF THE STATE (totally arbitrary). But what are arbitrary infringements? 2) Pentz Case (1978): 7th circuit, same court as in Swank, here a math teacher was also employed as a school bus driver. He grew a moustache and was suspended from driving the school bus but this had no effect on his teacher gig. 7th ruled in his favor!!! Why regulate this for bus drivers and not for teachers? Court said this lacked any rational relationship, it is so irrational to be arbitrary. 3) Rathert v. Village of Peotone: still in 7th, another cop case in small town, guy had an ear stud and only wore it when off duty. Peeps saw this and complained and he was fired. So he sued claiming the police dept cannot regulate him off-duty for the stud. Police dept wins!!! Court held that this is different than Pentz cuz here it is not arbitrary cuz here they have to worry about morale. He violated a neat and groomed req‟ment and would make them function less effectively and they would lose respect, etc. Not irrational cuz u are reflecting the humiliation of the other officers. SO bottom line U LOSE this stuff. C(6) Non-Sex Cases –Does Lawrence apply? Is all moral regulation invalid now or does it only apply to sexual behavior? Gvt still must have some rational basis for a law. 4) Deweese v. Palm Beach: Palm beach ordinance that said no toplessness, guy jogged w/o a shirt. Goes up to 11th Town argued their interest was to stabilize land values and maintain the history and tradition of the quality of the town. 11th says this statute is arbitrary and irrational under the lowest standard of con scrutiny. State interests are not real – no reasonable relationship b/w jogging w/o a shirt and land values (show us empirical evidence that this is bringing down land values) and we do not see what jogging w/ or w/o a shirt has to do w/ H and T and identity and quality of life in the town. So once away from economic regulations then the rational level of scrutiny has teeth. 5) Jacksonville Stat saying u could not show movies w/ nudity on public thoroughfares Court said that traffic safety interest DOES NOT trump 1st amendment. C(7) Sub due process Right to Die cases (negative right – do not touch me) 1) Cruzan v. Dir. MO Dept of Health (1990): car wreck, vegetative state w/ no cog function. Parents wanted docs to remove feeding and hydration tubes. Under MO stat it required clear and convincing evidence of patient‟s intent and under the stat the parent‟s evidence did not rise to that level (they merely had was a statement she had made to her housemaid). She never specified the precise care she wanted and under the MO stat u needed a living will or something that clearly said what kind of care u wanted. So not enough to satisfy MO law. i) parents go to Fed court and sue for injunction for docs to remove tubes based on fed sub due process privacy right. USSC Rehnguist opinon that says little. Court acknowledges some protection under fed constitution regarding a right to die, but the opinion does not say if this is rational basis standard or a fundamental right. There is some vaguely constitutional interest in
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have a right to refuse medical treatment. Court says that the stat does not so interfere w/ her right to make these decisions that it prevents MO from this clear and convincing standard. So there is some right, but do not know how much. ii) Scalia concurrence no right at all, “I would have preferred that we announce, clearly and promptly, that the Fed Courts have no business in this field.” iii) Brennan dissent The state has no legitimate general interest in someone‟s life, completely abstracted from the interest of the person living that life, that could outweigh the person‟s choice to avoid med treatment. *prolly 3 or 4 votes today for Brennan, 5 or 6 would stick w/ Rehnguist saying the states could probably get away w/ this standard. (affirmative right – give me overdose) 2) Washington v. Glucksberg (1997): assisted suicide case, patient would be dead in 6 months and was in severe pain and wanted overdose to hasten death. i) USSC (Rehnguist majority): Court says a lot on history and tradition, we define the con right by looking at how our culture treats this phenomenon and if u go back to the CL then the CL historically gave patients the right to refuse medical treatment and u have a con right to do this (problem w/ Cruzan was that the patient was not conscious to do this). So under CL and the constitution u have a right if u are conscious, BUT under CL suicide has ALWAYS been a crime and assisting suicide is aiding and abetting. Looking at H and T there is a difference b/w negative and affirmative obligations. And u have no right for affirmative obligations to advance death even if in pain or near the end of life. ii) there are 4 different state interests in these cases: 1) to preserve life in general (court has approved this even in abortion context up to a point of undue burden there though). 2) to protect ethics/integrity of medical profession (goes against Hippocratic Oath to say to docs that u have to help a patient die – this is why docs do not give execution injections), 3) protecting vulnerable groups (do not want docs to quickly play god, Court cited Netherlands data where many poor patients are being killed by docs and docs are quick to kill the poor). 4) Avoiding an eventual path of involuntary euthanasia (Netherlands data again where more than 1,000 cases of euthanasia used on w/o an explicit request. 3) Vacco v. Quill: decided same day as Gluksberg, this was litigated under EP though. P said NY allows me to forego treatment (so a neg right w/ no clear and convincing standard) but I am gonna die in 6 months and u will not give me an affirmative right. He argued this was a violation of EP cuz we both have these sub due process right (so it is a Skinner v. OK case). i) USSC well we said in Gluksberg that u do not have a sub due process right to affirmatively ask doctors to help u die so w/o that then u do not have an EP right cuz the guy w/ the tubes DOES have a sub due process right but u do not have that right. So this makes it clear that Skinner will get u no where. The EP is irrelevant really because u would win or lose based on the sub due process right and if no underlying right then the EP clause will not help u. So no EP claim here. *keep in mind that in these situations u may have a complimentary state law right and in Pruneyard Case the USSC said a state con can give u more rights than the fed constitution and the fed con is a floor but not a ceiling. In fundamental rights context the EP clause will really get u no where but EP clause has big teeth for groups. But w/ fundamental rights u either win or lose on the underlying right. Also preemption under the Supremacy clause so all fed law trumps state law. Congress could pass something under CC that prohibits all right to die and then that fed statute would preempt any state law to the contrary. -------------------------------------------------------------------------------------------------------------------------------------------V. Procedural Due Process ***If gvt does anything to u then u will have a procedural due process claim. The due process clauses of the 5th and 14th are used to ensure that a gvt uses a fair procedure when it singles out an individual for a deprivation of liberty or property. Deals w/ the manner in which a gvt acts. Must have state action, must have intentional deprivation of liberty or property (see Daniels v. Williams and Hudson v. Palmer).
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A) History Pre 1960 there was no procedural due process really cuz court treated gvt benefits like jobs, public schools, etc, under the rights/privileges doctrine. Court said that all these gvt benefit programs were privileges and since they were privileges u had no procedural due process when gvt took them away, even if gvt screwed up u lost. “New Property” from Reich theory that everything was property, everything the gvt does constitutes a prop interest cuz it is imp to the person that gets it. Notion that gvt intrudes into your life to such an extent that everything they do constitutes property. 1) Goldberg v. Kelly (1970): Warren Court, Court adopted the Reich notion of property and plugged it into the due process clause and gave everyone process for anything. This was a welfare case, and Brennan said that anytime the gvt imposes on someone any kind of “grievous loss” then the gvt has to give him process. Here the court says that taking welfare would be a grievous loss and thus u get process if the gvt takes it away and u think they are wrong. So u must have a hearing b4 they can take it away. ****This is still good law gvt cannot take away welfare w/o Due Process BUT the “grievous loss” analysis is no longer used. Welfare benefits are needed for subsistence!!! B) Modern Procedural Due Process/prop interests (set out in Board of Regents v. Roth (1972)): Two-step process 1) Must identify either a property or liberty interest that the gvt has taken away from you. (If u convince the court u have a liberty or property interest then go to #2, if not then u lose) Look for some benefit that is predicated (based or established on) some subjective factual criteria that is subject to being contested. 2) If u do establish a liberty or prop interest then what process is due? How much process do u get (Matthews v. Eldridge)? U may win this stuff and still lose! U may just have the right to write the guy who screwed u a letter. The only time u get to the liberal end of process is regarding welfare cuz if u are on welfare then u are at the end of the rope and u have an interest that is very strong (basically starvation) so we will give u a trial here. **The most Due Process u can get a full trial-type process. 1) Board of Regents v. Roth: Prof fired at state university for making trouble. Guy does not have tenure and is on a one year K. The university said it aint like we fired him we just did not give him another K and he said they fired me cuz I made trouble. So the prof sought a hearing. Court said u get no hearing cuz no due process right because u do not have a property interest and u do not have a prop interest because u just had a one year k. Thus u had no prop right in any other K‟s (like renewal of that k) and in absence of the prop right u get no trial. The reason for this is because the state defines that prop interest, a property claim is defined by state law but in fed context by fed law. So u look to terms of the k, terms of the statute that governs what is taken away from u, or any other aspect of state con / state stat / CL. All state has to do is define state prop in a manner than no prop interest exists. So u can say that all employment is at-will and thus no prop interest. So state defines prop interest “property interests are not created by the US Con. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law – rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” So if state defines the interest as something that no one has a right to then it is totally discretionary and by definition u have NO prop interest and the state can give u no procedural due process no matter how egregiously the state acted!!! “To have a prop interest in a benefit, a person clearly must have more than an abstract need or desire for it….He must, instead have a legitimate claim of entitlement to it.” ***remember this is for public employers (see linkage stuff regarding state action infra). Civil Rights Cases held that 14th and BOR applies only to State Action (fed / state / and local gvt) and if no State Action then u have no con right against a private entity. Consider a private prison where they beat prisoners and you sue under the 8th, the prisoner wins cuz u become State cuz u are integrated in w/ the state and that makes u a state actor. Bottom line try to make private entities have linkage to public state action (state, fed, and local gvt). For prop interests the general rule is that some gvt benefit will be considered prop for procedural due process if the individual is entitled to receive the benefit. An entitlement (as opposed to a mere expectation) exists when, under the law granting the benefit, the recipient is entitled to receive the benefit as long as specified conditions of
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eligibility are met. (look for some subjective factual dispute). In employment look for at will (no prop interest) vs. for cause (prop interest). 2) Logan v. Zimmerman Brush Co (1982): Employment discrimination case, person claimed he was discriminated against cuz of handicap. State stat said there had to be a hearing w/n 120 days b4 equal employment opportunity commission of the state. Logan files the paper and the state loses it, and he calls them after 120 days and State says u lost cuz no hearing. He goes to Fed Court and makes a fed due process claim and his prop interest is this abstract right to a hearing in 120 days. He wins the fed court would grant an injunction ordering the state courts to have this hearing. So u would have a state law claim and a fed claim cuz u have to have a hearing to do this under state rules. Court held that the state-created right to redress of unlawful discrimination amounted to a prop interest under state law. 3) Perry v. Sinderman (1972): Prof fired for making trouble, identical to Roth case except here the p alleged that there was an implicit expectation that if u have a one yr k u would have that k renewed if u did your job. The college said in a faculty guide that despite no actual tenure system it “wishes each faculty member feel that he has permanent tenure so long as his teaching services are satisfactory and as long as he displays a cooperative attitude.” Court he has a prop interest, any source in state law is enough to give u an interest, patterns / expectations are enough. So implicit contract terms give a prop interest. 4) Cleveland Board of Education v. Loudermill (1985) (overruled Arnett v. Kennedy BUT 11th still cites Kennedy and its Bittersweet analysis): for cause firing provision, OH stat said that civil servants who worked there for more than a yr cannot be dismissed except for misfeasance or malfeasance or nonfeasance. So the stat created a prop interest and that interest is in the definitions of when u can be fired. Thus if u are fired u can go to fed court and say I have a state prop interest in my job defined by the statute so u have to give me a hearing on this. Was what I did misfeasance/malfeasance/or nonfeasance and at the hearing u challenge the state‟s findings. *** 11th still cites this cuz the 11th is behind the times. Loudermill overruled Arnett v. Kennedy but Arnett had something called the bittersweet analysis from plurality opinion. Said that the bittersweet analysis applies to situation where u had a state statute that included w/n it specific procedures for challenging the state (e.g. if fired u would go to administrator or whatever). Under Arnett, if u had this type of statute then the court said that the only procedure u get is whatever the state gives in the statute. Theory was that if u take the job then that is sweet and u also take the procedure which is bitter. 11th circuit still cites this. HOWEVER, it was overruled by Loudermill under Loudermill the state defines the sub prop interest but state does NOT define the procedure, the court defines the procedure. Usually the court will say ok state gave u a prop interest and let‟s look at their procedure – well that looks fine – BUT hypothetically the fed court could go beyond that procedure. 5) Goss v. Lopez (1975): 6th grader suspended for being a lil jerk. Sued claiming principal kicked me out but I did not do it, Goss said I have a prop interest in my education. U craft this prop interest by putting together the stat that req‟s kids to go to school and combine that w/ the stat that creates public education interest. Thus kid gets some type of process! Court gives kid the right to go to the formal principal and say Johnny did it, but principal would say no he did not and school still wins. Court may even say u already were able to challenge the principal face to face already and that was enough. So it does not matter much. A full-blown adversary hearing is NOT req‟ed. C) Liberty interests a little tougher cuz no reference point, the court defines liberty interests and NOT the state (exception in parole cases)…if u have a substantive due process right by definition u have a liberty interest!!! Some common notions of liberty interests identified by the court: C(1) Classic kind = bodily integrity interest (if state whacks u w/ a stick), comes from Cardozo (state cannot touch your body) 1) Ingraham v. Wright (1977): paddled student and kid wanted procedural due process. ? was what is your prop interest? Kid says I have a liberty interst and the court agrees u have the ability to keep the state off your body and if the state is touching u then u have a due process right and state must prove it has the right to touch you.
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C(2) Prison Cases 1) Meachum v. Fano: guy goes to min security prison, but is moved to max security after he was a jerk. Does he have a procedural due process claim against the prison to review this transfer? Court NO, he has no liberty interest whatsoever. Once in prison u have NO liberty interest. 2) Vitek v. Jones (1980): a liberty interest DOES exist if they want to move u from general population to the psych wing!!! No liberty interest in going from max to supermax. Part of this rationale is that they can give u drugs (bodily integrity) and also this has a stigmatic effect and the court said that to be free from the stigma of involuntary commitment was a liberty interest. 3) Greenholtz v. Inmates (1979) and Board of Pardons v. Allen (1987): Parole cases ? is when do prisoner‟s have liberty interests in parole. This is weird court says u have a liberty interest here BUT that liberty interest is gauged by what the states‟ parole statutes say so court says it is a liberty interest but they measure it like a prop interest!!! This is the only liberty interest area where court treats it as a prop interest claim. So if statute gives no interest then u have no interest, but if u have some liberty interest stuff in the guidelines then u would get those. Also if statute is discretionary then no due process BUT it detailed / using mandatory language creating an expectancy of release then u have a liberty interest in being paroled. C(3) Civil Commitment / Indefinite Commitment w/o commiting a crime – someone commits a sex offense usually and he serves but then is put back into prison and put into psych ward civilly for indefinite time. 1) Foucha v. Louisiana (1992): COURT state may civilly commit someone to mental institution indefinitely so long as state bears burden of proof that he is mentally incompetent and likely to be dangerous in the future (everyone assumes the level of proof is clear and convincing but the court never says this). (here LA stat was invalidated cuz it placed burden on the person and not the state). 2) KS v. Hendricks: ? what does dangerous mean? Court said it means u CANNOT control yourself in the future. So this adds a 3rd element to Foucha. So now state bear burden to produce clear and convincing evidence that 1) he is mentally incompetent, 2) likely to be dangerous in future, and 3) cannot control yourself in future. 3) KS v. Krane: Court said there must be separate findings on the inability to control oneself!!! State must prove thru specific findings that he cannot control this stuff in the future b4 they can commit him. So this adds to Hendricks. *Court still does not address what obligations the state has to try and fix these problems, cuz the states do not test or rehab him they just leave him in the ward forever. Some are trying to place affirmative obligations on the state to treat or help these peeps out. C(4) Reputation Cases (liberty interest) 1) Wisconsin v. Constantineau (1971): guy goes into liquor store but they refuse to sell to him cuz he has been identified as a problem drinker and under local law no booze for you. His name is on the poster w/o cause cuz the cops made a mistake, sued local PD for proc due process violation. He says up put my name and pic on this poster and u did no hearing to make this a fact. HE WINS court says reputation is a liberty interest subject to proc due process protection. 2) Paul v. Davis (1976): goes into a dept store and someone follows him, guy says your name is on a list identifying u as a shoplifter. This was inaccurate, he sues. This time USSC says reputation is a liberty interest BUT it is conditional!!! i) USSC establishes the “reputation PLUS” standard: u have a liberty interest if the gvt harms your reputation PLUS does some concrete harm to you. The court said that in Constantineau (liquor store) there was concrete harm cuz u could not buy booze. BUT here they are letting u shop and u have not been harmed in any way so he loses! Usually winners involve some sort of financial harm.
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Another example of Reputation PLUS Bishop v. Wood cop in NC fired for insubordination. Tries to get another job at another PD and the firers say he was insubordinate so he was not hired. COURT this is reputation PLUS they trashed u in a false representation or vague representation etc. Plus is that he was being denied a state job. 3) Connecticut Dept. of Public Safety v. Doe: Megan‟s Law case. Sex predator laws where there is some sort of mandate where someone convicted of a sex crime has to report to local PD, state maintains a list of those convicted, list has to be published in some form or fashion and PD goes are to the neighbors and tells that this guy is living there. --Smith v. Doe AK case, challenge of Megan‟s law under ex post facto clause (applies only to something punitive / criminal in nature) while in civil suits this does not apply. He was convicted and pleas out, then while he is in prison AK passes Megan‟s law and the guy said if I had known then I would have went to trial and u increased my punishment. USSC we think these are public safety laws, so ex post facto clause goes away, Megan‟s law is not punitive so peeps can be held accountable even if passed after their conviction. This is nonpunitive. Now back to CN v. Doe USSC they ignore step one concerning whether u have some sort of reputation PLUS liberty interest here for challenging Megan‟s law or some sort of sub due process privacy right for this stuff, instead they just go into step two this stuff does not involve procedural due process cuz he already had a trial and here the state has never shown future dangerousness and they do not have to cuz this is not a part of the CN stat (so they treat it like a liberty interest case, but they rd it like a prop interest in terms of what state actually said in the stat!!!). State already convicted u under a high level of proof in a crim trial and that is all the process u get. D was provided sufficient due process to contest the conviction. *this leaves open the question of whether there is a sub due process here in megan‟s law…they should just call it a property interest but the court refuses to!!! 4) Doe v. Prior (11th circuit): Rules in favor of the criminal!!! Doe convicted of a FED obscenity offense but he got put on AL Megan‟s law list, the AL stat lists predicate offenses but all are STATE crim law allegations, and they do not include general obscenity law. So the guy says the thing they convicted me for is not on the list and is not analogous to anything on the list!!! So he wanted proc due process in the form of a hearing so the court could determine whether his offense under fed law was analogous to the stuff under state law. 11th If u look at the implications to this guys life (cannot work places, cannot live places, cannot hang out w/ peeps) he really has a sub due process privacy right no to trashed automatically, he has a liberty interest which kicks him into proc due process, so he gets a hearing. ***USSC has not addressed this, other circuits rule the other way. So the sub due process claim could get u around this notion that the state defines the interest like in CN v. Doe case. C(5) Family rights cases regarding child abuse hotlines some states (NY) keep your name on the list even if u were acquitted or cleared of the allegation cuz we like to err on the side of kids. ? is whether u have a liberty interest in keeping your name off the list and sub due process in keeping name off the list? Cases go both ways. Cases in favor of accused peeps i) Bohn v. Dakota (1985): 8th circuit, creates a liberty interest in family solidarity. Notion is that the state has imposed on your ability to keep family stuff private when the state stuck its nose into your affairs. This is a separate liberty interest from the reputation interest. ii) Valmont v. Bain (1994): u have a liberty interest cuz this destroys your life (e.g. u cannot work for day care, stigma perhaps, etc). Kinda like a Paul v. Davis reputation plus notion. Case against accused i) Hodge v. Jones (1994) 4th circuit, list was not disseminated to the public, it was available to schools / cops / daycares / etc. State WON!!! Court said there are no implications to your reputation cuz these peeps are professional and they know that peeps are wrongfully accused on here (this makes no sense) and thus
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your name stays on the list. So court basically says there is no way in which a person is affected by being on the list. * USSC keeps denying cert on this issue and there is a big split over it. D. State of Mind Req‟ment for Liberty or Property Interest Procedural Due Process - Every con right carries w/ it a state of mind req‟ment; hence, to litigate a violation of that right u must prove that the state violated the right w/ the correct mind state. EP clause = intentional discrimination…Under 8th (cruel and unusual) = recklessness. W/ procedural due process mental state = bottom line must show that the state intentionally robbed you of your liberty or property interest. 1) Parrat v. Taylor (1981): prison case, went to solitary and while there he received a hobby kit. This got into the mailroom and disappeared, he sued prison for procedural dp cuz they took his prop w/o giving him a hearing first. Court here ducked the issue but noted that this was a random and unauthorized act of a state employee, not an established state procedure. So it was neg and not intentional, but court said that a tort remedy was sufficient “process”…LATER CASES say Parrat is NOT a procedural dp case cuz the best P could show was that the state lost the kit negligently. 2) Hudson v. Palmer (1984): prisoner had his room given a shakedown for contraband and broke some of his stuff or something and officer discovered a ripped pillowcase, COURT said this was just negligence so u do not have a procedural due process claim. 3) Daniels v. Williams (1986): overruled the part of Parrat that had suggested a negligently inflicted loss could amount to a deprivation of due process in the absence of a state tort remedy. Inmate slipped and feel on a pillow negligently left on a stairway. Bottom Line Hudson v. Palmer and Daniels v. Williams stand for the fact that u must show intentional deprivations, if u can only show that the gvt negligently did something then that is NOT enough to establish procedural due process. Step one identify a prop or liberty interest Step two must show an intentional deprivation of liberty or property (often u cannot do this) Step three What process is due? E. What process is Due? 1) Matthews v. Eldridge (1976): Social Security / disability case, father w/ kids is disabled and getting SS disability payments. State says we kick u off disability unless u prove u are disabled. They say to guy that he is not disabled and he is allowed a written appeal, he argued that this was not sufficient to satisfy due process. So he satisfied due process cuz the state took away his money intentionally, but the state argues that he has this written appeal and that is enough. Father argues well the appeal will take around a yr and I would like to be getting $ during that time. ? is what process is due w/ deprivation of his property? Court gives the three part Matthews test. i) USSC THREE FACTOR MATTHEWS TEST: 1) look to the magnitude of the interest in ? from the prospective of P. How important is the particular thing to P? 2) Look to the risk of erroneous deprivation (look to see how much of a risk there is that the state will misapply the standards / rules here). 3) Look to the cost / efficiency interest of the gvt (e.g. how much would it cost to give a hearing or some sort of process). #3 always comes out in favor of the gvt! *Gvt always wins #3 – how u balance these factors is UNKNOWN – try to make two of them way high or way low and see what sticks. If #1 is high and #2 is low then flip a coin. Court has not revisited Matthews!!! Basically though u will lose cuz deck is stacked against you and court will always say for magnitude that u can go on welfare (see Matthews v. Eldridge). ii) As applied here: USSC said 1) he says I am disabled and going to starve, but USSC says hey u are not gonna starve cuz u could always go on welfare (Brennan and Marshall dissent he lost his home and furniture reposed and the whole family slept on one bed at family members home). *welfare gets lots of process though remember*
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Court will ask if u have any other options and the end of the road is welfare SO u can win there BUT if welfare is still an option then u lose and court will say well welfare. 2) Around 60% of these cases were reversed on appeal, so father says I am likely to win on appeal. Court replies we think the process is fine cuz expert testimony is sufficient so we think this is fine even though this reversal rate BUT this rate is not erroneously high. 3) ALWAYS COMES OUT IN FAVOR OF GVT State said if we give this guy process then we have to kick peeps out of the program cuz hey we have to pay for judges and lawyers with these funds. ANOTHER STANDARD TO BE DONE SIMULTANEOUSLY W/ 3 factor Matthews test: If seeking predeprivation relief!!!! ***If p is looking for pre-deprivation relief (e.g. u do not want an appeal or to keep your money b4 relief, u want relief b4 the deprivation occurs). Here u apply Matthews three factor AND Zinermon v. Burch Standard. 1) Zinermon v. Burch: Guy showed up at mental institution and says I am crazy let me in. They commit him voluntarily and treat him. At some point they make him sane enough to realize that he is in a mental institute. Then he sues them for violating his due process rights claiming that he should have been given a hearing to let him prove he was crazy to voluntarily commit himself cuz he was not a treat to self or others. He WINS! He wanted a determination that he was not together enough to make a judgment and it was like an informed consent, so he wanted process to decide the true nature or understanding of his consent. i) Zinermon 3-part test to be done in addition w/ Matthews 3 part test 1) was the deprivation by the state, 2) was there a pre-deprivation available, 3) was the state official‟s conduct authorized and thereby attributable to the state. ii) As applied here USSC said 1) deprivation was predictable cuz it is a mental institution, 2) pre-deprivation was available, you have an involuntary commitment procedure on the books and why not apply that procedure here too, 3) there were forms. Thus u meet them all and u must give them. Another Standard in addition to Matthews NOTICE here u complain that u did not get notice that the state was about to take away your liberty or property. Mullane Standard. 1) Mullane v. Central Hanover Bank: Standard for adequate notice is if it is “reasonably calculated under all the circumstances to apprise interested parties of the pendancy of the action and afford them the opportunity to present their objections.” How the Mullane Standard works Dusenbery v. US: guy went to prison after being seized by fbi in his Ohio trailer, fbi seized drugs / firearms / and drug paraphernalia / and a chevy impala. He served his time and FBI had sold his car under racketeering laws and he say I do not think the car was being used in the crim enterprise engaged in. The deal here is notice, he never got any and was thus unable to prove was not used in furtherance of the crime. FBI said we mailed u a registered letter to prison and beyond that we do not know what happened and prison said we do not know who got that letter sorry. i) ? was did this satisfy the Mullane standard Court said that this looks good to us, u must look from PROSPECTIVE OF FBI AGENT, it was reasonable for the fbi agent to send the letter and know it would get to him. So Mullane means very little really, satisfied by virtually ANY statement by person giving notice. So sloppy does not fail Mullane and a big fat lie prolly would not either, all these cases have a Turner v. Saffley air to them where prisoner u went to jail and that sux and yeah life sux. So Mullane standard as evidenced by Dusenbury says just need notice reasonably calculated to give notice under all the circumstances to apprise interested parities of the pendancy of the action and afford them opportunity to present objections. But this applies from the perspective of the person who is sending the letter or notice, and is not applied to the entire gvt operation. *so when u move to step three of procedural due process – what process is due – u must always do Matthews 3 factors…if pre-deprivation relief is sought then u must do Matthews AND Zinermon…If claim notice is inadequate then do Matthews AND Mullane…..if seeking all three do all three!!!!
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Always talk about Matthews when u get past prop or liberty interest cuz this is general standard for what process is due. If u did not receive adequate notice then u must do Mullane and Matthews. If u searching for pre-deprivation relief (a hearing b4 gvt takes away liberty or prop interest) then u do Matthews and Zinermon (may satisfy Matthews and decide u get process, but u may fail Zinermon and u may get NO pre-deprivation process…u would just get right to appeal after objection was made or a right to object thru Matthews). F) Relevance of Existing State Remedies – just reduces ur chances to get proc due process, court will say u got adequate process… 1) Ingraham v. Wright: kid paddled, what process is due court said look at the full range of available remedies to address the deprivation to assess whether these remedies are adequate or inadequate. If u have a lot of remedies then u do not need more process. Do not just look to the remedies that attach to the peeps u are suing, u must look at all the state gives u the right to do. Given all the state remedies do u get adequate process? Here post-punishment judicial remedies for excessive punishment are sufficient to protect a child‟s liberty interest. 2) Parratt (supra): Court said what remedies did state law guve u regarding adequate process? (internal prison rules, tort law for conversion of your hobby kit). If there is a remedy then u will not get more process and they DO NOT take into account sovereign immunity!!! G) Do immigrants or non-citizens receive due process? The 14th is written for “persons” and not citizens, so if u have someone who is not a citizen and gvt tries to kick them out w/o a hearing then that person gets process. 1) Zadvydas v. Davis: w/ regard to immigration laws u must give peeps hearing and court also said that indefinite detention w/o hearings is unconstitutional. So procedural due process rights apply to noncitizens to the same extent as they do to citizens. (this is why part of Patriot Act is uncon). As soon as u touch US soil then Zadvydas applies. H) Punitive damages (Gey says this is procedural dp, but court likes to call it sub due process) 1) BMW v. Gore (1999): ? is when does the dp clause limit the extent to which judges or juries can award punitive damages to P‟s. Here the court first waded into this area and USSC said that dp does limit punitives. Lower jury gave 2 million in Punitive and $4,000 in compensatory. USSC reversed. i) USSC declared 3 guideposts for assessing legitimacy of punitive damage awards: 1) degree of reprehensibility of d‟s conduct (did they act immorally?), 2) the disparity b/w actual harm suffered by P and the punitive damage award (did they hurt you?), 3) difference b/w punitive damage award and civil penalties authorized in comparable cases or by statute (here what was for a consumer fraud case?). BUT lower courts did not understand these guideposts. 2) State Farm v. Campbell: Campbell was driving a minivan and decided to pass six vans ahead of him on a two lane road. Guy coming the other way swerved and hit another car. Campbell was insured by State Farm and ask them u are going to take care of me right? State farm declined some offers to settle for policy amount and Campbell lost, then Insurance Co said we will not cover u and maybe u should sell your home. So Campbell goes to victim and says I know u hate me but we hate State Farm more and they join and sue State Farm. They get 1 million in compensatory damages and 145 million in punitives. i) USSC ? is does this conform to BMW v. Gore. Court says Gore Guideposts are STILL good law. This violates Gore. Regarding Factor 1) Reprehensibility, court said as a matter of procedural due process or sub due process u CANNOT take into account out of state activity of the d (u must look ONLY at d‟s behavior that is relevant to your case, only your in-state) so the facts of this particular case. Cannot look at conduct in other cases. 2) Regarding disparity / proportionality court says that anything above a single digit ratio (9X) is presumptively uncon, so if they got 1 million in compensatory then they could get 9 million in punitives, BUT u can overcome this presumption if d is really really reprehensible. 3) USSC says we were serious about this, u must figure out how much the state insurance commission would fine State Farm when they did this shit BUT the problem here is that this is capped in most states (say $10,000 so u drag the
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punitives down to something closer to $10,000). Court says u need to find some civil fine and compare it to punitive damages. As such punitive damages are harder and harder to get and d‟s worry about them less and less. Court calls it sub due process, but it looks more like procedural due process. ***Basically 5 votes on bench now doing their own little tort reform. I) Grading / Academic Cases – can u sue Gey? NO 1) U of Michigan v. Horowitz: med school student was dismissed w/n one yr of graduation from program for what seems to be hygiene. ? was whether the faculty of the med school got it right and is this academic in nature? Court faculty MUST have widest range of discretion regarding academic promotion, hygiene is academic. 2) U of Michigan v. Ewing: an academic decision where Court gives great deference to faculty. In absence of bad faith the court will NOT get involved. If school can characterize something as academic in nature then NO procedural due process claim. 3) NYU v. Susan M.: on academic probation for failure to maintain a 2.0, she then dropped further and blamed it on Con Law II and she alleged that her profs were incompetent and she did not have a chance to appeal the dismissal decision. She gave two answers to a ? instead of one and prof gave her no credit. i) Court the general rule is that we do not re-grade exams, litigation by countless students is not what we want. In absence of BAD FAITH OR IRRATIONALITY (whatever that means) the court will not hear it ever. Bottom line court does NOT regrade exams…Univ Faculty make the decision (See Horowitz). If school can characterize something as academic in nature then no procedural due process claim, in absence of BAD FAITH or IRRATIONALITY (whatever that means) the court will NOT get involved. *U could use a prop interest in this stuff and get around it though, u can read stuff in a handbook that gets u into due process and then u have the prop interest to get u around these cases. So if the state defines a prop interest then that may increase procedural due process here (BUT usually the state limits this stuff in the handbook). -------------------------------------------------------------------------------------------------------------------------------------------VI. EQUAL PROTECTION – Still in 14th, but now EP as opposed to Due Process Clause of 14th § 1 of 14th DOES NOT APPLY TO PRIVATE PARTIES, must have state action. CATEGORIES: 1) TOP CATEGORY: Suspect Class (Race): statutes that target this class receive STRICT SCRUTINY – to justify the statute the gvt MUST come up with a COMPELLING INTEREST. (to get SS must show intent, see Washington v. Davis, Keyes). 2) Quasi-suspect class (gender): the action that targets this class receives INTERMEDIATE SCRUTINY – so gvt must come up w/ a SUBSTANTIAL OR IMPORTANT governmental interest to justify. (to get intermediate scrutiny must show intent See Washington v. Davis, Keyes (for RACE) see Feeny for gender). 3) Non – suspect class -- RATIONAL BASIS CATEGORY (default): this level receives RATIONAL BASIS SCRUTINY and the gvt must come up w/ a rational basis (gvt always wins except “rank prejudice” – we hate hippies, we hate gays). 4) Fundamental Rights – STRICT SCRUTINY (see Skinner) must come up w/ compelling interest. (to get SS must show intent see Washington v. Davis, Keyes). NO EP Clause anyhere in US CON prior to passage of 14th, several references to race in Con and all are embarrassing. Art I § 9 – delayed the issue of outlawing slvery. Art I § 2 – apportionment of legislators – so they could block a con amendment to outlaw slavery. Art IV § 2 – fugitive slave clause: give slaves back if they go to free state. Dred Scott case H: African-americans free or slaves would never be citizens. Dicta: cons challenge to Missouri compromise – would have held uncon as a taking of property. Taney opinion (portrait referenced by Scalia).
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A) Civil Rights Laws – 10 year period post Civil War w/ radical republican Congress in favor of extending Civil Rights to freed slaves and forcing it down throats of the South. Civil War Amendments 13-15 1) 13th – codified the Emancipation Proclamation. “Neither slavery nor INVOLUNTARY SERVITUDE, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the US, or any place subject to their jurisdiction.” Court has NEVER done much with it. BUT litigation in the 20s for peonage where u work off your debts (whites were lending money to black sharecroppers and made them slaves again ---- all this was struck down by HOLMES as violation of 13th). ****13th APPLIES TO BOTH STATE ACTION AND PRIVATE ACTION!!!!! A PERSON CANNOT VIOLATE THE 14TH BUT A PERSON CAN VIOLATE THE 13TH!!!! Also, abortion / violinist argument!!!! 2) Civil Rights Act of 1866: Comprehensive Civil Rights Stat that protects political and economic rights. Provided all legal rights to freed slaves (right to k, give evidence in court, acquire prop, sue) Basically all commercial rights. They could have done more with this or written it broader but it was passed under CC clause during NARROW CC period, so had to tailor it narrowly. 3) 14th -- § 1 – two sentences: 1) Citizenship provision (overrules Dred Scot) “All persons born or naturalized in the US and subject to the juris thereof, are citizens of the US and of the State wherein they reside.” Sentence 2) “No State shall make or enforce any law which shall abridge the privileges OR immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” **Congress given authority to implement § 1 in § 5 of 14th. ***Congress thought 800 lb gorilla was privileges or immunities clause BUT in Slaughter-house cases the court destroyed this clause while reading EP and Due process VERY narrowly. 4) 15th – Guarantees voting rights – prohibited race discrimination in voting (this never worked). States got around it by imposing prop req‟ments or poll taxes / literacy tests / or the white primary / pass con law exams. Pre-1940 the primary was considered a private action, 1940s court said this was really public. But then in Lasseter case the court said that literacy tests DID NOT violate the constitution. This was the law until 1965 when the Voting Rights Act changed this. 5) Civil Rights Act of 1870 – Still on books and still used. Rodney King, gives u crim sanctions for conspiracies to violate Civil Rights. Double jeopardy does not apply cuz of dual sovereignty. *****6) KKK Act of 1871 (42 USC § 1983): More IMP THAN 14th PERHAPS!!! U use this statute when u sue anyone for violating any constitutional right. It says u have a remedy both equitable and legal for anyone acting under color of state law for violating ANY CON RIGHT!!! “this is an action brought against state of Florida under 42 USC § 1983..” Used to litigate any con right in state or fed court!!! Cannot sue under the Constitution with regard to state and local officials so this gives a remedial mechanism to sue and this is how u enforce the constitution against state / local officials. NO REMEDIAL STATUTE to SUE FED OFFICIALS – (see Bibbens v. 6 unknown agents). 7) Civil Rights Act of 1875: gives u all kinds of other rights in addition to commercial rights. Free from discrimination in public accommodations (broad, hotels / restaurants / airports, etc). Reenacted by Congress in 1964. 8) Judiciary Act of 1875: Comprehensive Fed ? Juris, overruled Dred Scott. 2) Race Cases – How Courts have reduced the statutes 1) Slaughter-house Cases: Gutted the 14th, destroyed Privileges or immunities clause of 14th, Court said EP applies ONLY to RACE. Very Narrow. Eliminated the notion that P OR I was connected to natural law or natural rights and has never come back except for TRAVEL CASES. 2) US v. Reese: KY election supervisors said u cannot vote cuz u black, flat out violation of 1870 Civil Rights Act. Court Civil Rights Act of 1870 is UNCON!!! Because the Civil rights act was NOT limited
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to race the court said if it is not limited to race then the statute goes beyond the 14th and is uncon (see Slaughter-house cases). 3) US v. Cruikshank: several potential voters lynched, feds prosecuted them under provisions of 1870 Act. USSC u cannot use the statute to go after these guys cuz no evidence that these guys lynched these peeps when they wre trying to exercise their con right. Thus fed stat did not apply and u have to leave them to the states!!! 4) The Civil Rights Cases (1883): Involved the most important 1875 Act (prohibited race discrimination in public accommodations). Court invalid b/c it purports to regulate private activity and the 14th governs state action only!!! Court said whole stat is uncon cuz the stat is regulating private behavior. Since it was passed under § 5 of 14th the whole thing is uncon cuz 14th requires state action. ***(think of private prisons, u have to convince the court that the prison is a state actor, any privatized gvt action u must prove to court that this is state action) BOTTOM LINE court was gutting all the stuff passed by Congress, so u fought the civil war and u got nothing. So USSC eviscerated all of Congress‟ work. 5) Plessy v. Ferguson: Jim Crow Era. LA stat w/ separate but equal train cars, u did not want blacks and whites sleeping together so u had to erect either physical barriers b/w black and white or run separate cars altogether. Groups in LA brought suit w/ RR companies who hated the laws cuz it cost more. Plessy was 7/8 white and he went into white area and forced the conductor to arrest him. One drop of non-white blood made u colored. i) USSC 8-1, this is fine, this is equal cuz u get a car to get u from point a to point b. 14th not intended to enforce social integration and the law society as a whole‟s view is fine, u are making this stuff about disenfranchisement up. This is inferiority is just in your head and if we are to integrate it must be through society‟s consent and not thru the law. Court said that as an empirical matter this stuff about segregation does not send any kind of message. 14 th does not prohibit statutes premised on separate but equal notion. Races like to associate w/ like kind. EP clause only requires separate but equal gvt benefits and separate is not necessarily unequal. Dissent Harlan, writes a modernist opinion, there is no caste system here and our con is color blind and the law regards man as man, race hate must not be planted under the sanction of law. * but see Casey Case court said we just screwed this message stuff up and got it wrong. 6) Cumming v. Board (1899): GA case, one white male high school, one all female white, and one for blacks altogether. County converted black high school to second black elementary school and to get black high school education they had to go to another county at their own expense. Court this is fine, equal meant virtually nothing, basically a federalism opinion. 7) MO ex rel Gaines v. Canada: MO did not allow blacks to go to state law schools, and MO did not give blacks access to white schools, they said we will buy u a one way ticket to go to Howard or Columbia and do not come back. P here applied to law school and he challenged that system. i) for first time separate was NOT equal. Court going outside state to obtain education is a denial of the equality of legal right to the enjoyment of the privilege which the state has set up. Have to have some availiability in the same juris if u make available to whites a school of the same sort. U can create a black institution or let them into the public law school or whatever. So the first chink in Plessy v. Ferguson. 8) Sweatt v. Painter (1938): TX law school, created a law school w/ a racial bar. NAACP argued on qualitative grounds that u can create all the other schools u want but these separate schools are not UT. USSC buys the argument!! i) UT possesses qualities that are incapable of objective measurement but which make for greatness in a law school – equal means really equal – not just in existence now – look at the qualities that cannot be measured. So they started making SUBJECTIVE standards. “Reputation
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of the faculty, experience of the admin, position and influence of the alums, standing in the community, and traditions and prestige.” 9) McLaurin v. OK (1950): U of OK grad school, black wanted phd in dept of education, OK lawyers said u have to let him in cuz OK did not offer these programs at other schools. Faculty tried to drive him away w/ brass rails, put him in hallway / library table just for him / 30 minute lunch alone. i) USSC if u admitted him then u must treat him the exact same way!!! Treat him like everyone else. This stuff impaired and inhibited his ability to study, to engage in discussions, and exchange views w/ other students, and to learn his profession. 10) Brown v. Board (1954) – Brown I – at first it was 4-4, but Warren made sure that the vote was unanimous. Re-argued and court said we want u to focus on history of racial segregation in public education. i) USSC 9-0 the history stuff does not help cuz public education is relatively new and there really was no original intent. BUT even if no history of public education we must consider EP in terms of its effects on society today. Today public education is the most imp thing that gvts do so equal protection matters most here. Segregation solely on basis of race is done and this is based on intangible factors incapable of measure and this is w/o regard to the tangible factors that go w/ it. Court says segregation is inherently uncon cuz it has detrimental effects on kids and retards the education and mental development of negro children. Separate is inherently unequal and is a violation of the 14th. Psychological factors of segregation of children. BUT HOW TO ENFORCE? 11) Brown II: H we send cases back to lower court to take such proceedings and do what that can “w/ all deliberate speed.” Enforce Brown I with all deliberate speed. (stole this phrase from Holmes who got it from a poem). What then went one was an unhurrying pace cuz courts controlled by liberals who did not like court doing anything, congress against them, and president against them too. * Court never really limited it to public education – extended it in: public parks (Muir v. Louisville)….public beaches (baltimore v. Dawson)….golf courses (holmes v. Atlanta)….public buses (gayle v. bowder)….public atheletic events (dorsey)…..publicly owned restaurants (turner)….public auditoriums (sherrer). Rev incorporation – 12) Bolling v. Sharpe: challenge to segregation in DC schools. DC area schools are Fed Schools, problem cuz no ep clause that applies to Fed Gvt. 14th regulates states. i) USSC The states cannot segregate cuz that violates EP, but here court held that segregation violates due process clause of 5th amendment. This was through reverse incorporation, here court takes ep clause from 14th and sticks it into the due process clause of the 5th. Thus segregation in DC is illegal to the same extent as in Kansas, it would be unthinkable that the same con would not impose the same equality notion on the fed gvt. 13) Cooper v. Aaron (1958): Court sent this stuff to lower courts after Brown and said no segregation and “with all deliberate speed.” But southern states resisted. Here AK judge said we should start this at the high school slowly integrating. Governor of AK said no and AK Legis passed a stat saying it is against the law to do this. So con crisis. Governor said I am not a party to the lawsuit and u cannot hold me in contempt and my opinion of the law is just as good as yours. i) USSC 1) Court reaffirms Brown, Brennan decides all judges sign the 9-0 majority opinion. 2) U have to obey us cuz we are USSC and what we say is what the law is (see supremacy clause), we are the extreme dispositer of the con and u as a state actor must follow what we say. 3) u can have the court and desegregation or vice versa. Court says u will have to take us out institutionally. 14) Goss v. Board: Lower courts said segregation is uncon but remedy is a voluntary choice and we refuse to mandate anything. U could transfer to school where u were minority to schools where u were racial majority (this enhanced segregation). i) USSC u cannot do it this way. These “one-way transfer” plans permitting students to transfer from schools where they were in racial minority to schools where they were majority were invalidated.
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15) Griffin v. County School Board: VA case where u had a fairly aggressive district court that said u must desegregate. County school board said fine and we will just shut down the public school system. And use the $ to give to the parents and let these vouchers pay for privates schools (privates would not take blacks). Dist Court said this is fine!!! U can shut em down and cut checks to the parents. There was no stay of original decision! They cut checks and handed them out and by 9am the money was gone. ? was are these peeps in contempt? USSC this was a violation of an inchoate order, no authority to shut down the public school system if it was because they did not want to obey the fed court order to desegregate the schools. (inchoate order came from Holmes opinion sheriff got bored and hung a guy for violating something that the court was ruling on)…H: this is kind of what u did, u violated an inchoate decree by spending the $ and if u do not get it back then we will take your houses! It is NOT a con right that u have access to public school system BUT it is uncon to shut them down if the intent is to avoid a desegregation decree. 16) Green v. County School Board (1968): another freedom of choice plan (dist court trying to implement Brown so kids could go to schools of their choice where they would be racial majority). i) USSC Brown II is OVERULED, this is the end of “all deliberate speed,” 9-0 desegregate schools immediately. 17) Swann v. Charlotte-Mecklenburg: Post Green freedom of choice plans do not satisfy Brown. This is a busing case Swann tells how to implement this. 5 things to get out of this directed lower courts to implement Brown in 1971. i) USSC 1) in implementing Brown lower courts could NOT impose absolute quotas on racial representation in schools (it is impermissible to say that every school will be 23% black). 2) Although absolute quotas are BAD the court may use GENERAL RATIOS as a starting point for integration, the central notion is flexibility (u can says roughly 20% black). 3) Some one race schools may remain in a school system that has been desegregated, u do not have to integrate all schools in a school district to satisfy Brown, if a system satisfies Brown then a school system is deemed “unitary” meaning it is integrated and not segregated. 4) in implementing a desegregation decree the dist court may gerrymander the districts to achieve racial integration, the dist court can basically take over the school districts by just redrawing the attendance zones. 5) in implementing the new districts the district court may order mandatory school busing to achieve racial integration in the school system. ***so could be 100 attendance zones and u could still have 10 schools or so all white or all black and still be “unitary.” ***Since Swann it all really turns on flexibility. The only way gvt can violate EP clause is w/ INTENT. Civil Rights Act under Title 7 u do not have to show intent – u just have to show discriminatory effect / disparate impact. So take away from this that intent is KEY, political configuration of what u r suing is KEY (for ghettoes and what not outside south it does not work), U can say “critical mass” but u cannot say we want 11.9% black every year (this is unconstitutionally rigid). Very important political configuration means u have to look at the political configuration of a school district so if u have one school system governed by a separate school board and a completely separate political system in a county next door then u cannot use those kids to integrate the other!!! So u could be segregated but really have no remedy (think of Detroit cases where u could not bus in white kids from suburbs to integrate and vice versa). ***in south busing was not a big deal, but in North where there was serious housing segregation then this was a big problem. 18) Keyes v. School Dist No. 1, Denver: 22 yrs post Brown, involved segregation outside the South. There was no statute mandate for school segregation but the district court said that the schools were deliberately segregated thru use of gerrymandered attendance zones and other similar devices. In the South showing
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intent was no big deal cuz there were statutes mandating segregation, but everywhere else segregation just seemed to magically happen (housing and such). So how do u prove intent w/ no statute? i) USSC To prove a Brown case outside of the South the P’s must show intentional discrimination by the gvt. One way of doing that is by establishing a pattern of segregation that is so extreme that there is no other explanation for it than intentional segregation. 1) simply showing one or two or a handful of schools is segregated does not in and of itself prove that the entire school district is segregated. 2) if the p shows that several schools are segregated then the burden shifts to the school board to explain that segregation in a way that does not relate to intentionally racial discrimination. So it all becomes an ad hoc factually intense mess. ii) Powell concurrence I do not like this intent stuff at all, it makes Brown only apply to South cuz u will never show intent in all other regions. B) Limitations on School Busing Decrees – cross-district / inter-district busing cases The school cases are evaporating b4 our very eyes, but they give a template for how u litigate race discrimination generally (how to find violations, remedies, limits on remedies). 1) Milliken (I): Deals w/ problem of desegregating schools outside the South, in south u had one school district but elsewhere u had an inner city district and satellite cities that ran their own separate schools. What to do when u find inner city segregation illegal? Detroit busing here, Can judge bus kids from Gross Pointe to Detroit and vice versa – NO!. USSC lower court in these juris have to focus on each separate school district as if it were its own separate university. U cannot attribute the discrimination in the city to the suburb and the violator here is Detroit and Detroit alone. In a school segregation case the court must pay attention to district lines. If J finds Detroit schools segregated then the remedy has to come from w/n the Detroit District. U would have to show complicity to tie the remedy to the suburbs. “No cross District Bussing!” i) so cannot bus here cuz they are separate cities / jurisdictions. District Court judge then writes an injunction saying get better teachers, fix the schools, reduce class size etc (so he wanted to cure the effects of racial segregation). 2) Milliken (II) (1977): The injunction goes back up to the USSC. The district judge had wrote an injunction to double the $ for Detroit schools to cure effects of segregation. USSC this is fine, general approval of quality improvement in injunction, they approve as a general principle. 3) Missouri v. Jenkins (I) (1990): Kansas City was overwhelmingly black and Hispanic. School district says we were bad and district judge wrote huge injunction saying build all these schools, Olympic pools, etc. But ? is how u gonna pay for it judge imposes property and income tax charges. State says we cannot do that look at our state con judge, well your state con is uncon. i) USSC 5-4, they approve everything except the part about imposing the taxes. Leave it to the state to figure out how to impose the taxes. So everything is permissible. 4) Missouri v. Jenkins (II) (1995): The USSC reconfigures the standards for crafting injunctions. USSC 1) in terms of the objective of the injunction, the court says that if the dist judge is drafting this injunction w/ the intention of making the schools so good that it attracts whites back in KC cities that that is no good and it is uncon buz it violates Milliken cuz it amounts to a cross-district busing of sorts. 2) if writing the injunction to cure the effects of segregation then that is fine, BUT how do u determine when the effects of past discrimination have been cured? i) District Judge redrafted, went back up to USSC p‟s argued this is not working cuz the test scores and still bad and so we know that the remedy is not there yet. USSC these test score more be result of poverty, bad nutrition, single parents families, etc. U can only sustain the injunction if u can prove that the bad test scores are caused by LINGERING EFFECTS OF PAST DISRIMINATION. The rule is that u must measure in some substantive way that the lingering effects of past discrimination are the CAUSE of lower test scores. (so u have to try experts and fund studies). Also when do u dissolve these injunctions we now fight on when the injunctions go away.
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C) Dissolutions Cases how and when do u tell if the injunction has served its purpose? 1) Passadena v. Spangler (1976): CA case where school system was deemed segregated, injunction under Swann redrawing the districts. Then the schools began to resegregate, and Ps go back to court to redraw the lines. i) USSC strikes down the second injunction where the lines were redrawn. Instead of writing the 1st injunction as a continuing injunction (“I retain juris on this…”) the judge wrote here is remedy / case resolved (do this and problem is cured). So he declared the schools unitary as of that first year. ii) USSC if u do it this way then u must show some intentional discrimination by the school board from the time u release injunction 1 and 2. Court says no evidence that the school is the problem here the city is segregated by housing and school board is doing nothing intentionally, Rehnguist opinion “normal patterns of human migration.” Unless u find the school board at fault then no second injunctions. What is uncon is intent that CAUSES segregation. Resegregation must be attributable to state action (only way to violate EP clause). Should just make injunctions continuing and do NOT dismiss juris but how do u tell if a continuing injunctions has served its purpose??? 2) OK City v. Dowell (1991): an injunction was issued and then dissolved after the School Board said look we are fine and are behaving. So the next year after it was dissolved, the district became segregated again. Original P‟s go back to court and judge tries to reimpose the injunction. i) USSC ? is whether the district court judge should have declared that the school system was unitary (clear of uncon racial discrimination ). U look at two things to see if the school district is unitary: 1) the extent of good faith compliance w/ the original injunction (look for resistance / attitudes). 2) Whether vestiges of past discrimination have been eliminated to the extent possible (but they do not define “vestiges”), if they have been eliminated then let them out of the injunction and the system should be declared unitary. ii) As applied here USSC says this looks like Pasadena, neighborhoods were segregated and this is not the School Board‟s fault. ***So this leads many to forget about applying Brown anywhere outside the South. If u cannot consider other factors then Brown is ineffective. 3) Freeman v. Pitts (1992): Adds to Dowell USSC dist judges should dissolve injunctions piece by piece or bit by bit. He should NOT wait until every part of the system is unitary. Dissolve perhaps teacher assignment § and leave the rest intact and eventually the whole injunction will disappear. Once dissolved u have to show intentional racial discrimination again by the school board and this is damn near impossible cuz they could be segregated but caused by housing and not school board. D) Universities – what to do w/ state funded universities, or state funded universities that are traditionally black? 1) US v. Fordice (1992): Challenge to MS state university system, 7 universities w/ 3 predominantly Black. Are the historically black schools uncon? Dist Court judge held MS university system uncon. i) USSC General Principle does not matter if natural migration, the state is also not allowed to create a system which will have the effect of leading most whites to go to one school and blacks to another. The court does not eliminate any of the schools, but court said it is not a compelling interest when u say we want schools specifically for blacks / Hispanics. Court held the fact that college attendance is by choice and not by assignment does not mean that a race-neutral admissions policy cures the con violation of a dual system. schools must be arranged in a way to allow more diverse schools. a) state is required to separate the degree program so that one is focused on liberal arts and one is focused on math and science. This would break down the segregated attendance patterns. b) all schools have to have the same financial support. c) State has an affirmative obligation to stop segregation even if it is to break down social dynamic trends. Basically u have to take action that would change the character of the black schools.
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Concurring Thomas this should be a compelling interest. *** What about afro-centric high schools? Sued by NAACP who said this was wrong cuz what about black females? Court took Fordice and said u cannot do this and it was never appealed and Detroit just stopped doing this. U cannot help out one suspect category like race / gender to the exclusion of the other. But could u have an all male med school, all female law school, or put all females in a single-sex math class? VII) Intent Req‟ment (focus on gvt intent), EP cases outside of school arena. Cuz intent is such a problem u must separate cases into different types of discrimination. CATEGORIES i) Overt discrimination based on race stat makes discrimination based on race. 1) Strauder v. WV: stat prohibited blacks from serving on juries. USSC struck down cuz on its face it said whites can serve but blacks cannot. So if overt discrimination based on race then that is no good. 2) Korematsu v. US (1944): Jap internment camp, WWII taken from homes and put them in internment camps. ? was did this violate EP clause of 14th as subsumed under 5th amendment due process? Gvt argued that this was not really race and we are worried about sabotage / allegance to japan. “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” i) USSC sort of the beginning of the multi-tiered approach to EP clause. Top tier is suspect classes (most protection), so a racial class is suspect and thus receives what is today called strict scrutiny (then it was called rigid), gvt can only justify if it comes up w/ a compelling interest. Then comes Quasi-suspect classes (gender) and these receive intermediate scrutiny which gvt can overcome by a substantial or important gvt interest. Does not have to rise to level of compelling interest. Everything below these two is the default rational basis category and gvt wins by coming up w/ a rational basis (gvt always wins except for “rank prejudice”). The only case the gvt ever won w/ category #1 was this one!!! So unless u have a war where country’s existence is at stake then gvt loses a strict scrutiny case. He never got his conviction expunged. ii) Dissent by Murphy this is purely racial and not a military necessity. Dissent by Jackson the military is not telling the truth, what they are doing is illegal but during war there is no law, military leaders should decide. U should not call this legal. *** what exigency needs to be proven prolly a global war. Anything short of wartime necessity is not going to work. 3) Hirabayashi v. US (1943): Curfiew case, expunged later on so no longer good law, memo came out that confirmed that the military did this based on race and nothing else. ii) Facially neutral statutes premised on racial bigotry. Policy is premised on racial bigotry. 1) Loving v. VA (1967): VA stat made it a felony for any white to intermarry w/ a colored or vice versa. Stat allowed colored peeps to inter-marry, but could not intermarry w/ a white person. VA argued this is not discriminatory cuz we will throw the white and the colored both into jail. i) USSC This statute is “premised on racial bigotry.” This is designed to maintain white supremacy and this violates the central meaning of the EP clause. ****So if u have a facially neutral stat but predicates of the stat are theories of racial inferiority or superiority then the stat will be struck down. iii) Facially neutral stats w/ no evidence of bigotry in enacting the stat BUT STAT ADMINISTERED IN A WAY THAT MAKES IT DISCRIMINATORY. (hurts minorities more than majorities). Hardest category of all and is where all the litigation occurs. Effects one race overwhelmingly more than others. 1) Yick Wo v. Hopkins (1886): San Fran fire safety stat, if u ran a laundry it had to be brick or stone. Almost every time enforced it was against Chinese. USSC discriminatory administration of a statute
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violates EP clause even if the statute itself is not discriminatory. Keep in mind the numbers though here it was nearly 100% Chinese peeps being prosecuted for this. 2) Gomillion v. Lightfoot (1960): AL case where a city was facing litigation over voting rights cuz they prohibited black voting, they reconfigured the city so u had an uncouth 28 sided figure that excluded the black population entirely. USSC this is Yick Wo, every time the line shifted the city did it to exclude the black voters, they had excluded all but 4 or 5 out of a possible 400 black voters w/ this reconfiguration. 3) Palmore v. Sidoti (1984): divorce b/w two whites, custody granted to mom who remarries a black, court tries to take custody. Lower said we are doing this in the best interests of the kid did not want him to suffer from social stigmatizations. USSC 9-0, the reality of private biases are not permissible to take into account here. A decision by the gvt to take into account private racial prejudice and base action on this is still STATE ACTION and is therefore subject to Yick Wo. ***so if the stat reflects the private bigotry even if state renounces that bigotry then that will still violate the EP clause. ***So when alleging racial discrimination by the GVT under the EP clause, the argument will be that the administration is in a racial way; PROBLEM is showing INTENT, showing a disparate impact is NOT enough – MUST show that the impact was the result of specific intent of the gvt to discriminate on the basis of race, so if u cannot show intent then you lose!!! MUST ALWAYS CITE (Washington v. Davis and Keyes). ---MUST SHOW INTENTIONAL DISCRIMINATION BASED ON RACE (first saw this in Keyes case, but now cite to Washington v. Davis)… **must cite 4) Washington v. Davis (1976): AFFIRMS THAT INTENT IS KEY COMPONENT OF CHALLENGE: Literacy test to be a cop, akin to verbal SAT, negroes failed 4 times more often than whites, so it clearly excluded based on race. Does that violate EP Clause – clearly a disparate impact under Title 7 though. i) USSC In these cases court will refer to de facto discrimination (this means just numbers, disparate impact, minorities effected, this DOES NOT violate EP clause). U do not get to compelling interest analysis here b/w u cannot show discrimination at all. U must first show that DC imposed the test w/ the intent of flunking out blacks and not whites. From Keyes the essential element of de jure segregation is “a current condition of segregation resulting from intentional state action.” ii) here the USSC said that disparate impact on a racial group is not enough to invalidate a statute, although the “intent” of the government can be taken into account. (u can infer intent from the way the stat got applied), but here DC police force was training and had outreach programs to bring in black applicants, and there is no evidence of excluding black applicants. So u must look at the overall range of things to infer intent, but the problem is that once u get out of the south then u do not find intent unless u have a stupid gvt official saying something like I hate blacks. a) if there are clear efforts by the gvt to do AA or community outreach to get minorities into the pool of benefits then the court is not going to buy that a policy has the intention of discriminating (and u need this to get in for strict scrutiny). b) De jure discrimination = intentional discrimination …. De facto discrimination = a showing of a disparate impact that falls short of proving intentional discrimination. ***really tough to win EP clause cases cuz u cannot show intent, remember intent applies across the board to any heightened scrutiny area. (for intermediate or strict scrutiny u must show intent). What is intent? **** 5) Massachusetts v. Feeney (1977): Gender case, had to take a civil service exam, BUT veterans got preference over non-vets even if non-vets had a higher score. Hurt women cuz women did not get drafted in Vietnam. i) USSC Could not show intent, “Discriminatory purpose implies MORE than intent as volition or intent as awareness of consequences. It implies that the decision maker selected or reaffirmed a
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particular course of action at least in part because of NOT merely in spite of its adverse effects upon an identifiable group.” this is the meaning of intent here. To prove intent u MUST show that the gvt established policy because it would discriminate (not in spite of the fact that it discriminates). The gvt must have done this because of the discriminatory effect!!! ***intent is a monster!!!! The FRAMEWORK FOR THINGS TO LOOK FOR TO FIND AN IMPERMISSIBLE INTENT UNDER EP clause 6) Village of Arlington Heights v. Metro Housing Development Corp: 4 factors, talk about them all if trying to INFER intent. 1) actual numbers or statistical disparity, court says u can look at impact of a particular policy, BUT unless the numbers rise to the level as in Yick Wo (near 100%) but other than that u will not win, must be no other explanation than racial or gender discrimination. Numbers matter but are not the whole story unless u rise to Yick Wo numbers. (this is gonna be expensive studies). 2) Sequence of events leading to adoption of the Statute (think of the case in VA where they shut the public schools down to thumb there noses at desegregation order). Does it look suspicious? 3) Procedural departure from the norm – is the agency meeting in the middle of nite to do this, are things happening for no other reason than discrimination, just looks fishy). Is gvt imposing req’ments where none were before. 4) Contemporaneous statements by gvt officials, if dumb enough to say this then this is evidence of intent (problem when u have 10 person board and 1 person says it, how much can u hold board accountable for this one person Establishment Clause case where one state senator said we are doing this to reinstall school prayer court said that one was enough and ruled against entire state legislature *normally this is not gonna be enough). 7) McClesky v. Kemp (1987): Death penalty case, if u look at death row u see a snapshot of poor and minorities. Death penalty was struck down in 1971 as violation of 8th (Powell said last execution in US). But w/ advent of bifurcated trial and jury discretion advised by aggravating vs. mitigating factors the argument was that it was amazingly predictable under MPC. But there are some catchalls as aggravating factors, so it is still unpredictable and peeps argue that the system is still arbitrary and one way is thru race. i) here a study was performed using tons of factors and did a multiple regression analysis. In GA race is the most statistically significant factor and if the victim is white then d is 4.3 times more likely to get death than if victim is black. So he says u have intentional racial discrimination a la‟ Yick Wo. ii) USSC 5-4, accept all the evidence but reject the claim!!! U have NOT shown us that in this particular case he received death penalty cuz he killed a white person!! U have just shown us that in general across the board there is a higher risk of getting death if u kill a white as opposed to a black. U must prove that in HIS case there was state action or an actor intentionally gave M death because the victim was white. If we accept your argument then peeps are going to attack all penalties all the time under our crim law system. (some would argue Woodson case death penalty is different than putting him in jail and u could get it wrong and there should be more scrutiny in death penalty cases for this very reason). ****Congress‟ resonse Title VII prohibiting race discrimination in employment – Ps do NOT have to show intentional discrimination, only have to show evidence of disparate impact. BUT court has not said if this was uncon after Boerne!!!! -------------------------------------------------------------------------------------------------------------------------------------------VII. § 5 of 14th and Boerne / Katzenback What does § 5 give Congress the authority to do, how can title congress provide broader rights in title 7 than under the eaula protection clause which title 7 is in theory enforcing. ? Congress shall have power to enforce by appropriate legis the provisions of this article (provisions refer to privilege/immunities / due process / ep clause).
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Once CC was the beast, but then Seminole Tribe said no abrogation under CC, 11th is a block (cannot sue state or arm of state in fed or state court for damages or other forms of retroactive relief). U can sue state official by his own name under fiction of ex parte young and once in court he becomes state actor so prospective relief is no problem, but u really want damages. But for damages Seminole Tribe said Congress has no authority to abrogate state‟s 11th w/ legis passed under CC, BUT Seminole Tribe re-affirmed Shower v. Rhodes (fed gvt has authority to abrogate 11th w/ legis passed under § 5 of 14th). So if plain statement is satisfied (see Atascadero), then 11th can be abrogated under § 5 of 14th (see Seminole tribe reaffirming Rhodes). *****only talk of Boerne if u have a stat that relates to due process issue (basically all of the BOR), or an equal protection claim. The ? is whether the stat enforces those rights and the term enforces (as used in § 5 of 14th) is interpreted in Boerne to incorporate a distinction b/w a remedial stat which court says is a legitimate enforcement VS a stat which changes the substantive law (which goes beyond enforcement authority and is thus uncon). But do not forget about the prophylactic remedy which looks much like a change in the sub law, but court says this redresses underlying con violations by the states. Must assess whether there is congruence and proportionality b/w the injury to be prevented and the means adopted to that end (this means Congress when it passes a stat it must develop a massive record in the legis history of a PATTERN of con violations by the states and if congress Does that then the remedy will be congruent and proportional. The trick is to develop a PATTERN of violations by the states and w/ the pattern then the feds can write a stat to redress / remedy these violations. In absence of the pattern u cannot have a remedy and w/o a remedy u get no damages cuz of the 11th). ***After this analysis u must look and see what u are enforcing, strict scrutiny / intermediate / rational basis and if they would or would not satisfy. U then could have something invalid under § 5 of 14th but under CC u could sue under ex parte young for injunction. 1) City of Boerne v. Flores (1997): Interpretation of Free Exercise Clause of the 1st. The old rule was if gvt passed a law that severely inhibited the practice of religion then the gvt had to justify that law thru a compelling interest. But in Dept of Human Services v. Smith USSC changed this rule and said if u have a law of general applicability then the law can be applied to everyone and the gvt is under no obligations to accommodate religious practices that violate the law. i) in response to Smith Congress passed RIFRA under § 5 purporting to go back to pre-smith compelling interest rule. USSC STRUCK DOWN Congress under § 5 of 14th has the authority to enact remedial statutes (which remedy a sub violation, this is enforcing) BUT Congress CANNOT change the sub law!! Congress cannot change the scope of substantive law. There must be congruence and proportionality b/w the injury to be prevented or remedied and the means adopted to that end. U are not enforcing the 1st cuz u are changing the 1st and are giving peeps more rights that what they had in the 1st. U are not enforcing here, u are changing the substantive law. Thus, since RFRA expanded the sub rights instead of providing a remedy to enforce the sub right already identified IT is STRUCK DOWN. When Congress passes a racially restrictive statute it was probably passed under Sec.5 of the 14 th and not under the commerce clause. Boerne Court addresses: Katzenbach v. Morgan (1966): literacy tests imposed on black voters – Lasseter v. Northampton said that literacy test did not violate 14th / 15th. Then Voting Rights Act passed under § 5 to outlaw literacy tests (court said this was fine and Congress can increase substantive rights). Brennan said what do we care if they are giving u more rights, we will not tell congress that they cannot write a stat giving u more rights…BUT WHAT DOES BOERNE DO TO THIS??? i) Boerne USSC this is different. If congress tries to change a right then it is unconstitutional. Here Congress did not increase sub rights, they merely provided a prophylactic remedy to redress the systematic violations by the state that did constitute a pattern of constitutional violations. Congress passed a stat that took into account other things that the state were doing that amounted to violations of the EP clause. (this is stupid and is directly contrary to Boerne). ii) We are allowing Katzenback to stand because this particular remedy was congruent and proportional to the injury that Congress was trying to prevent or remedy. Here the
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court had evidence of widespread violations in states and b/c that injury was widespread then the prophylactic remedy was proportional to the violations. ***So court says in Boerne that Katzenback is fine because the stat in Katzenbach was congruent and proportional to redress the injury of banning blacks in MS (the injury) that the court had identified as a con violation (keeping peeps from voting). (must identify a pattern of this behavior to be congruent and proportional!!!!) ****The INJURY U ARE TRYING TO REDRESS MUST BE IDENTIFIED AS A CON VIOLATION IF NOT THEN IT WILL BE STRUCK DOWN UNDER BOERNE. the statute must be a remedy and NOT a “rewriting” of a law. 11th Amendment: basically prohibits all lawsuits against states for damages.
Post-Boerne Cases dealing w/ what is congruent and proportional 3) Fla. Pre-Paid v. College Saving Bank: Fla stole patent from NJ Bank. NJ sued, patent law allows suit for damages under CC – tried to used § 5 of 14th for $ damages, cuz no abrogation under Boerne now. Fla screamed 11th, and bank countered that this was passed under § 5 of 14th to remedy uncon takings by state actors. So the ? was whether the patent law were a valid exercise of Congressional power under § 5 of 14th? i) USSC 5-4 INVALID exercise of § 5 of 14th authority since it was not congruent and proportional cuz in enacting the patent remedy act congress had identified NO pattern of patent infringement by the states let alone a pattern of takings violations under 5 th and 14th. ***So in absence of patterns by various states then a stat giving a remedy is NOT congruent and proportional to evidence that congress had of con violations by the states. So the injury of stealing patents was not cong and proportional to the remedy (money damages) so NJ Bank lost. 4) Kimmel v. Fla Board of Regents: Salary inversion, professors claimed they were discriminated against based on age. Sued under Age discrimination in Employment Act Fed stat saying u cannot discriminate based on age and specifically allowing u to sue state employers for damages (here backpay). i) No congruence and proportionality, sorry but the stat is invalid under Boerne cuz Congress did not have an abundance of evidence showing a pattern of age discrimination by the states prior to passing this legislation. Age discrimination is not necessarily a con right and age is a rational basis category so states cannot violate the con unless they discriminate based on age in totally irrational / arbitrary ways. State could say we wont pay them cuz it is cheaper and that would be rational. Congress must have a pattern of this stuff by the states. Here they would need a pattern of irrational violations to satisfy congruence and proportionality. 5) Univ of Alabama v. Garrett: Americans w/ Disabilities Act says that states must make reasonable accommodations for peeps w/ physical disabilities. Here P was a nurse at state hospital, got cancer, and was fired cuz they would not change her schedule so she could undergo chemo treatment. She sued and ? was whether ADA gives her right to sue state for damages which turns on whether stat was passed validly under § 5 of 14th and to do that she must prove that the stat is congruent and proportional to a pattern of con violations by the states that Congress had evidence of. Under title 1 of ADA. i) USSC 5-4, NOT VALID, disabilities is a rational basis category, there is no systematic or widespread violations that are wholly irrational / arbitrary there must be enough evidence to show that there is widespread discrimination to get away from the rational basis “scrutiny level.” ii) Breyer dissent 2000 pgs of evidence synthesized by his poor clerk, employers would not hire those w/ cancer cuz co-workers thought it contagious, zoo no kids w/ down syndrome cuz zookeeper thought it would upset the chimps, school for blind would not hire blind peeps. What do u do w/ Title VII – does not require u show intent…after Boerne is Title VII uncon (court has not said). Title 7 deals w/ race and gender and it gets around Washington v. Davis‟ intent req‟ment (Gey says I think this is still ok as applied to title 9, 6, and 7). Remember to say I think I can get around intent by citing Boerne as
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interpreted by Hibbs and if I can justify the stat by finding a pattern of discrimination in the absence of a compelling interest (race) or a substantial or imp gvt interest (gender) then I can justify the stat to get around the con req‟ment of showing intent and this makes it easier cuz under a constitutionally fine statute then the intent req’ment is done and gone. 6) Dept of Human Resources v. Hibbs: P‟s WIN!!! Fed Family Medical Leave Act, Employees can take 12 weeks off work every year unpaid to take care of family problems. Passed under § 5 of 14th and a provision to sue employers for damages. ? is whether this is proper exercise of § 5 authority. i) USSC YES, O‟Connor switched sides, she classifies this as a gender case passed to protect women (heightened scrutiny…quasi-suspect / receiving intermediate scrutiny). Congress had an abundant record indicating this was a problem, so cuz this is intermediate scrutiny congress finds it easier to have examples of uncon behavior by the states and thus the stat is congruent and proportional to the problems that congress is trying to redress. State would have to show a substantial or imp gvt interest in doing this (natural physical abilities / like upper body strength). ii) so w/ strict or intermediate scrutiny the record will be bigger and a pattern can be identified and thus the stat will be congruent and proportional. THE LAST SECTION WAS FUCKING HARD AND I NEED TO UNDERSTAND IT MUCH BETTER; ESPECIALLY THE DIFFERENCE BETWEEN A 5 th and 7th AMENDMENT CASE. FUNDAMENTAL RIGHTS: (TN v. lane / Chicago v. Moseley / 11th circuit case (education as very imp right). (*remember there are enumerated fund rights (see chart above) and unenumerated fund rights (privacy).. 1) TN v. Lane: Univ of Alabama v. Garrett dealt w/ Title 1 of Americans w/ Disabilities Act, here we have title 2 of the ADA. Title 2 is the access provision which requires states to build ramps and such for public buildings so that disabled may participate in services/programs/or activities of the state. Here guy needed access to courtroom on second floor, crawled up steps, threw in jail for failure to appear. i) TN screamed Garrett, USSC u are not talking about a group based EP Claim but instead a Fundamental Right Claim. (1st and 6th access to courts). See Skinner v. OK (strict scrutiny standard for fundamental rights). So he wins. So at least as applied to courthouses by denying the fundamental right of access then the state has violated that fundamental right and thus congress can prove the violation. ii) the statute here said “all public facilities” but the same provision of that same stat would be con if it were a court, BUT it would be uncon for public hockey rink or auditorium cuz no fundamental right to hockey or whatever. Fundamental Rights – privacy, contraception, free speech, freedom of religion, family rights, marriage, anything that is a con right is a fundamental right, crim procedure stuff, cruel and unusual analogize like crazy (so anything u can analogize to the stuff we talk about then that is a fundamental right. (e.g. see Chicago v. Moseley Chicago stat saying no one may picket outside public schools unless part of a union. Challenged under 1st and EP wins because the stat took a fundamental right and allowed this right to some and denied the right to others). See also 11th circuit education as a “very important right” (perhaps could apply to medicine/hospitals/public safety) u may be ably to use this case w/ welfare saying welfare is really imp too and we are trying to get a heightened scrutiny standard. Also, think of the guy in prison cell w/ wheel chair (the lower court cripples Congress)!!!! ****Whether the record is sufficient seems to depend entirely on whether u are in a heightened scrutiny category or not. B) EP Political Participation Cases (may or may not be race cases, may or may not be fundamental rights cases) 1) Hunter v. Erickson (1969): Akron OH city council passed a stat prohibiting discrimination based on race in housing, citizens in Akron got mad and put a referendum on the next ballot w/ two provisions: 1) overturning the existing ordinance. 2) said any ordinances involving race discrimination must be put b4 the votes b4 they become valid. (Holds that the equal protection clause prohibits state and local governments form changing the political process or political structure in a way that disadvantages or harms racial minorities. i) USSC Struck down referendum.
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ii) this could be a race case cuz the referendum dealt w/ racial discrimination BUT it also dealt w/ political participation in general. Are they only cases where u cannot change the political process when it disadvantages a racial minority OR are these cases about fundamental right to political participation where u cannot change the process where it hurts any group trying to have their voice be heard? So it could be that if u change the political process to hurt a RACIAL minority then uncon BUT it could also be uncon if u change the process to disenfranchise ANY identifiable group. The second provision of the referendum put impediments in front of racial miniorites that no one else had to suffer and any other political group in the city could have gotten their way (or had stuff passed just on basis of city concil). So two explanations: 1) Court says if what is happening is that u have a stat passed w/ a racial motive (disenfranchise minorities) then that is EP violation kinda like Luning case. BUT 2) could focus on fact that the political process is being manipulated in a way to hurt one faction where that group can NEVER win. 2) Washington v. Seattle School District (1982): Seattle School board voluntarily adopted a busing policy to achieve integration of schools (could not show intent for showing segregation), but a statewide ballot had an initiative that took away from the local school board the authority to voluntarily bus and required a statewide vote on this. i) USSC court talks about dilution of the political process, the city of Seattle has some constituency of blacks in Seattle BUT requiring a statewide vote dilutes this. So it is racial and political since u are diluting the voice of the minorities in Seattle. So this case deals w/ changing the political system in a manner that dilutes the power and destroys any faction so that they no longer have any political clout in the relevant / proximate area in which they live. Could be EP or Race or Something Political under the 1st. Cannot reconfigure the political system in a way that disadvantages a racial minority.(reconfiguration was done through a vote). But could be one of the things a sentence above. 3) Crawford v. Board of Education (1982): decided on same day as Washington case supra. Post Washington v. Davis and Keyes the CA SC said that USSC is destroying everything w/ this intent req‟ment. Here in CA we have our own EP clause and under our con u do not have to show intent to win an EP case!!! Clearly this was focusing on schools and some peeps in CA did not like this and put a referendum item on the ballot that prohibited the CA SC from interpreting the CA EP Clause in a manner different than the US Con‟s EP Clause. Supporters of CA SC sued in FED COURT claiming that this violated Hunter v. Erickson (race discrimination passed by Akron city Council in housing case) and argued that this was a change of the political system in the same way as in Hunter. i) USSC NO, this is NOT a political system change, this is a change in the substance of CA Law and that is always OK. U can always change the law but not the system that decides the law. Here the court says this is a change in the substantive law!!! So this blurs everything and is very easily manipulated. A change in the political system (taking power way from local government and gives it to state government as a whole) based on race or a dilution = BAD…but a change in the sub law even if it hurts minorities is GOOD. This is a nightmare. 4) Evans v. Romer (we are talking about the CO SC decision) (still an open question): CO is very conservative, but Aspen / Boulder / Denver are very liberal and they write ordinances prohibiting discrimination based on sexual orientation. The rest of CO is aghast and puts an amendment on the ballot that said the state and its political subsidies and its political subdivisions are prohibited from writing any stat for anyone claiming the right to anything based on sexual orientation. Aspen City Council Sues. i) CO SC strikes down the amendment, the court looks at the cases supra and assesses whether these are just race cases or are protecting political minorities w/ power at local level but no power at the state level. CO SC says that in Seattle the blacks had some political power locally but its power was diluted on a statewide level and thereby they were taken away their part of the political process. ii) USSC ruled on basis of rational scrutiny that this amendment was uncon because it targeted homosexuals out of rank prejudice. So they see it as group based EP claim, so they affirmed on different grounds. So we do not know if these are race cases or political process cases. So USSC ducked this cuz they did not know how to draw the line cuz someone will always be disenfranchised. Such is the problem of reapportionment. Does
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the EP clause allow or not allow the state to have a foreordained political decision b4 the fact? ***If race no good…if change of sub law that is fine even if it hurts a minority or a race…but the CO SC case says that if u have any group that could be related to smaller groups then that is bad too (homo’s hurt / democratic party hurt etc). -------------------------------------------------------------------------------------------------------------------------------------------VIII. Affirmative Action In any state system, state university, state employment k‟s, provisions built into statutes that allow special treatment for minorities and sometimes women. But these cases involve overtly racial statutes, cuz on their face the stat says we treat race / women differently. So it should be uncon but the court says strict scrutiny applies to AA like it does any other overt treatment on the statutes. But the court does something different cuz the gvt does NOT automatically lose, gvt can win if they can prove a compelling interest. There are two categories 1) education and 2) everything else (employment / set-aside k‟s). It is easier to win education than it is to win set-aside or employment k‟s. In set-aside the ONLY compelling interest recognized by the court = the remedial interest (gvt‟s interest in remedying past discrimination against race/gender by the gvt itself). In the education context u have 1) remedial interest and 2) educational diversity interest (1st amendment right of faculties to dictate the composition of classrooms cuz a diverse class room is better than a non-diverse one). Intent is huge here as well cuz gvt does not want reveal its past intent. So state has to admit its past intent to discriminate and thus the p‟s line up at the door ready to sue the state. So if u allow AA programs then u open yourself up to tons of liability. The court says it is doing one thing but it does something completely different, u must focus in the facts in these cases on SS analysis. A big part of § 5 of 14th = must “enforce” a part of § 1 of the 14th, u cannot change the sub law, but u can remedy and also provide a prophylactic remedy. BIG DISTINCTION = disparate impact VS a showing of intent. This is big, disparate impact u do not have to show intent u just have to show numbers, but this DOES NOT win an EP Clause case cuz under EP Clause u must show intent (in disparate impact cases the mere numbers would win). A) 1st Education Case 1) Univ of CA v. Bakke (1978): USSC‟s 1st sustained encounter w/ AA. (Court ducked AA in Defunis where law student AA case was mooted). Challenge to AA at UC Davis Med School. Rigid AA program where 100 slots for new students and 16 were given to minority applicants and the other 84 were available to anyone. Completely separate processes and committees b/w the 84 and the 16. i) USSC 4-1-4, 4 votes of the conservatives led by Rehnguist did not touch the con law issue at all, they decided on stat grounds that the program violated Title 6 which prohibits discrimination when receiving fed funds. 4 votes led by Brennan AA at Davis was ok as is, said they would apply a different con standard to racially cognizant programs that benefit racial minorities vs those that disadvantage racial minorities. We should apply an intermediate scrutiny standard to those programs that benefit racial minorities (but not all the way down to rational basis). Given our history we are scared of gvt cognizance of race and we must require some reasoning of the gvt for doing this stuff even if it benefits. Also he was afraid of a reverse stigma / possibility of misuse applying to minorities here, so he req‟ed gvt to come up w/ substantial or imp gvt interest here. He says that this is fine at Davis because 1) there are controls on reverse stigma here because as written the minorities may get in under the 16 or the 84 slots and there had never only been 16 minorities b4 and no one would know who they were. 2) All the 100 slots had to meet the same standards to get in so it is not just a gvt give away, all these peeps are qualified. 3) even though there are different committees for the 84 and 16 no one got in simply cuz they checked a box. So 4 say no AA ever (prohibited by Title VI) --- 4 say intermediate scrutiny. ii) Majority is the 1 – Powell – he splits the baby and says everyone is right. I agree w/ the conservatives that “race is race” and AA programs get strict scrutiny just like other race cases, and it does not matter if benefiting the
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majority or the minority. BUT he applies something that is not strict scrutiny!!! Under strict scrutiny as I see it AA is not always uncon (usually SS = Fatal Scrutiny except in times of war see Koramatsu). We can get around strict scrutiny by finding a compelling interest in a certain matter. THIS WAS AFFIRMED IN GRUTTER SO IT IS STILL GOOD LAW!!! CA asserted 3 interests to justify this program. 1) remedial interest – we are doing this to remedy past discrimination against race minorities in med school. Powell says the faculty CANNOT do this, this program was implemented by the faculty and NOT the legislature, he seems to say that the legis could do this but the faculty does not have this ability. Someone can do it if u have proof coming from a legally accountable body that there was discrimination (so probably have to have a big database). So Powell does not say u can never have a remedial program but the faculty does not have the expertise to do it…..2) We want to improve health care in the inner city, a social services interest. Powell Prove It!!! There is no record saying this will improve med care, no data, and there are other ways to make this happen (waive tuition to those who go to inner city once graduated). Strict Scrutiny means that the AA must be narrowly tailored to accomplish the gvt interest by the least restrictive means. Must try all the other options first (must try non-racial means first b4 resorting to race means). 3) educational diversity UC said u get better education w/ different viewpoints and diverse classroom. Powell likes this Faculty u can do this cuz u know something about teaching, BUT this program is not designed to accomplish that purpose cuz it is too rigid. I think u are setting aside a racial quota and are not trying to do this out of educational diversity. So u cannot focus on a single type of diversity (think of the Harvard Plan where Ivies said AA was necessary but we must take into account all aspects to diversity, race PLUS). ***the key is that u cannot use race as a single isolated factor, use race as a plus along w/ a bunch of other pluses and it u do it right the it survives SS analysis and AA survives. Cannot have a right program, and this defines AA for 30 yrs. THIS WILL ALWAYS BE STRICT SCRUTINY, BUT NOT KORAMATSU STRICT: @ ways to justify: (1) remedial interest; (must be tied to institution that discriminated) (2) Educational diversity; however, race cannot be the single factor that the school focuses on (race can only serve as a “plus” when compared with other factors). ***Looking at Grutter there were 50 other pluses including Race, so SS is satisfied only by two compelling interests 1) remedial interest – probably must be implemented by some legally accountable office…2) educational diversity – can be faculty, but cannot be “rigid” or w/ a quota, if program is predictable by a factor of race alone then it will be uncon. this is basically powells opinion from Bakke. B) AA Employment and Set-Asides 1) Wygant v. Jackson Board of Education: challenge to lay-off program, funding cut and layoffs. ? was whether race could be used in a layoff program to retain teachers who had been there a shorter time cuz of race? Public employer, 14th requires state action. i) USSC NO, there was not a good record established by school board. Court distinguishes b/w AA hiring programs and AA layoff programs. Court is much more likely to uphold AA hiring than AA layoff. In layoff u know who the victim is and in a hiring program u really do not know who missed out on the job. Social dissent is eased in a hiring program. Person being laid off is an identifiable target.
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2) Local 28 Sheet Metal Workers v. EEOC: title 7 case, private employer, court ruled that a private employer had engaged in race discrimination in hiring. Court imposed a remedy for that discrimination w/ an AA program. i) USSC goes back to Powell in Bakke, u cannot have a rigid program that focuses exclusively on race, u must take into account a range of factors. Flexibility is KEY. 2) regarding state action for 14th EP claim this is a private employer engaged in race discrimination that was sued under title 7 and the remedy was this court induced AA program, in implementing a remedy under title 7 u have got state action and so all the rule in EP cases apply to those remedies too. So EP stuff applies to a title 7 ruling of forcing a private employer to have an AA program. Court uses CC justification but in implementing a remedy they say the mandate that was forced upon the employer is state action. ***so if private employer voluntarily does AA then none of this applies. Goals are good b/c they are flexible but quotas are uncon b/c too rigid. 3) US v. Paradise (1987): AL state highway patrol, public employer. In 1972 the Dist Court found that the patrol had never hired a black ever, violation of EP clause and we the dist court are going to tell u how to fix this. By 1979 they had hired some blacks but not promoted a single one. Court says u gonna have to promote some, so in 1983 there were 4 black corporals out of 66 and no blacks higher than this rank. Dist Court said everytime u promote a white u promote a black and u gonna do this until every level reaches 25% minority. So strict quota imposed by dist court. Appealed. i) USSC AL screams too rigid, USSC if u have a judicial decree finding a state d has violated the EP clause then the remedy for that violation may include RIGID RACIAL QUOTAS IF NOTHING ELSE WORKS. Record here is vital. This is one exception to Powell rule saying u must be flexible. In every other context u must adhere to the Powell notion of flexibility in Bakke. MAIN STANDARD FOR AA IN SET-ASIDE and K CASES (cases outside of education)--- Fullilove 4) Fullilove v. Klutznick (overruled in adaran) (1980): Fed construction set-aside program. Public Works act of 1977, in every K under the program the gvt req‟ed that recipients of the money set aside ten percent of the funds for minority biz enterprises (MBEs biz owned or controlled by minorities here defined as Aleuts, black, orientals, etc.). There was some flexibility saying u could get out of the program in certain circumstances. USSC UPHELD program. But fractured opinion, no majority. i) Plurality EP clause is satisfied cuz it is a remedial program and the objective is a compelling interest that justifies this system to remedy past discrimination that is narrowly tailored to satisfy that interest. The is a goal and not a quota, waiver built-in, and congress has broad remedial authority under § 5 of 14th (pre-Boerne). Two-step analysis 1) find compelling interest. 2) is program narrowly tailored to achieve that interest? A) is it flexible, B) is there a waiver, C) broad remedial authority. 5) City of Richmond VA v. Croson (1989): identical to program in Fullilove which was upheld except the percentage was changed from 10% to 30% given to MBEs. Richmond did the same as in Fullilove, took % of minorities and cut that number in half. i) USSC WTF are u doing??? Fullilove is different cuz it was fed gvt and fed gvt is allowed to do things that the states are not (why they say this is a mystery remember Boller v. Sharpe w/ reverse incorporation doctrine??? This part is overturned in Adarand infra). This was a voluntary program and not a judicially mandated one, key here is that SS applies in educational area and set aside area as well. Court said u have no compelling interest here. The only compelling interest for set-aside program is remedial, and USSC says here is how that works: 1) u cannot speculate about how many minority biz would exist in absence of discrimination (u the city who wants AA must tell the court why the absence of minority contractors is due to your discrimination). U must prove to the court that the deferential b/w white and minority contractors is attributable to gvt discrimination. 2) We will not just accept your boilerplate legislative statement that we discriminated, u must bring #’s / data / history and tell us what happened over a
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period of time. Must prove to us how bad u were. 3) the #’s alone are not enough, if the disparity can be explained by other factors then that is not sufficient for u to adopt AA, it must be the fault of your discrimination and u cannot rely on the statutes from other areas. The numbers and studies must apply to your juris and not a larger area. U also cannot be underinclusive (think of groups that do not benefit from some AA program who have been discriminated worse than the pattern of discrimination of the peeps that are benefiting from this program) or overinclusive…if it is not all tightly linked then the whole program sinks. ii) Scalia concurrence only time u can do AA is in the midst of an emergency rising to an imminent danger of life or limb (prison riot). iii) Marshall (dissent) try to hammer the Brennan notion of advantaging / disadvantaging, should majority be able to disadvantage itself. ***After City of Richmond Case brief style = 1st talk about compelling interest (in set-aside = remedial interest only, in education = remedial interest or educational diversity). Race is race and any program focusing on race is given strict scrutiny. 2nd talk about narrow tailoring, must craft AA program in a narrow way to address only the narrow interest u have defined. The program must be closely focused on past discrimination (all groups cannot be lumped together. Must talk about a) what race-neutral efforts u have made to address the problem b4 u resorted to a racially cognizant method (comm. Outreach / small biz loans / educational programs). MUST try racially neutral methods first. B) Give the court tons of specific data of past discrimination by the gvt agency doing the AA, if in Tampa u give Tampa data and not Florida data as a whole, must be the same governmental unit that wants to do the AA. Yrs and yrs of data and u must show that the k‟s or whatever are so egregiously skewed so badly that the only explanation is discrimination, must prove to court that it engaged in illegal and intentional race discrimination to adopt AA now. C) Must talk about the availability of a WAIVER (goes back to powell in Bakke saying that the program must be flexible), waiver program that allows recipients of the money to get out of the set-aside req‟ment is they cannot find qualified MBEs. These three things still stand and u must address them after talking about the compelling interest. 6) Metro Broadcasting v. FCC (1990)(no longer good law): Involved licensing w/ radio and tv stations, u have to have a license to have a right to use a public section of the airwaves and these are valuable cuz they are few in #. Under Fed Communications Act u could get licenses in 2 ways: 1) for a new license there was a comparative licensing scheme, bunch of factors that come into play in deciding who gets the license (financial stability, local interests are key, reps that they will take license and dedicate 10% of our day to public interest, race). So race PLUS. 2) Distress State if a broadcaster who owns a license is convicted of a crime or engages in security violations then u give up the license to the gvt and lose millions, BUT u can agree to sell it to MBE for 75% of fair market value. So 2 types of AA here, challenged both programs here. i) USSC Brennan writes nonsense about a dual standard like in Croson explaining why Croson was coming out different than Fullilove, he says that there is a dual standard where state and local gvt had to meet strict scrutiny BUT feds had to meet only intermediate scrutiny. So gvt wins. (OVERRULED BY Adarand infra). 7) Adarand Constructors v. Pena (1995): Overturned Metro case supra and overrules Roman Numeral II of Croson (part that says Feds have different authority / power than state and local gvt). USSC Strict scrutiny applies across the board to state / fed / local gvt. O’Connor for majority u must walk through 3 general principles of AA 1) principle of skepticism: we are skeptical about AA or any program that is racially cognizant (just means that AA based on race gets strict scrutiny). 2) consistency AA programs must be consistent, this means that race cases are decided on the same basis, race is race and gets same level of scrutiny whether it advantages or disadvantages minorities it is STILL treated the same way. 3) Congruence every level of gvt has to meet the same standard (overrules the stuff in Croson saying feds get intermediate while state / local have to meet strict). MUST LIST THESE THREE THINGS FOR THE COURT!!!! (Scalia and probably Thomas too) I would allow a highly individualized AA, show me a particular person harmed by gvt discrimination and the gvt can do AA for that individual but not a group. So he would allow AA for emergencies and individualized AA.
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***Some lingering ?‟s what does fed gvt do? Can feds have a nationwide AA program? Fed statutes assume that fed programs need to be broken down into a region by region basis based on discrimination in those areas. Also, what do u do w/ communities that may be described in different ways? Cubans / Hispanics … Koreans / Japanese…court does NOT want to get involved w/ definitions of race but what is race? ***Post Adarand give the advantage to socially disadvantaged groups. Show some form of economic discrimination from getting K‟s, not exclusively racial. W/n each region the bidding preference applies only if the % of minorities in a particular trade in that region getting k‟s from the fed gvt is lower than the # of MBEs listed for that trade on the small biz admin‟s small biz list. 4 factors: region, amount of money allocated from that region, money allocated for particular trade and % of work done by minority business – works only if fed gvt $ is > than the regional money / private money. ***It easier to win an AA case if the beneficiary is a woman than if a racial group. Gender is given intermediate scrutiny and gender is gender. Race is race = strict scrutiny. AA for old peeps then the gvt wins hands down u can discriminate against them all u want but u can also help them out as must as u want due to rational basis scrutiny. C) Back to EDUCATION AA 1) Podberesky v. Kirwan: (4th Circuit case): Univ of MD, merit based program given to African Americans only. Challenged by a Hispanic. **remember if too broad or too narrow then it is likely to be struck down** i) 4th circuit applied SS, MD gave 4 reasons to do this. 1) we are trying to rectify the school‟s poor rep in black community of MD. 4th problem is that the poor rep is due to that fact that ten yrs ago u still engaged in behavior that looked like segregation but that was 10 yrs ago and now u aint doing it and that past stuff is not applicable. (PAST HISTORY OF SEGREGATION MUST BE RECENT STUFF, u must try to show that this was recent stuff but that opens lots of liability court also said that rep is not state action – it is just private action which is not discrimination by the gvt). 2) MD said Africans are underrepresented at Univ of MD and there is a big disparity. 4 th Numbers are NOT there because u must compare balcks at univ of MD and the number of blacks in MD w/ the qualifications to get into MD. (narrow tailoring). 3) MD said we have low retention rates for blacks. 4th on narrow tailoring u lose cuz the peeps who are dropping out are peeps at lower range of GPA and SAT and u should give scholarships for peeps at the lower end of the pyramid cuz they are the ones dropping out. 4) MD said that there have been several incidents on campus lately like racist graffiti. 4th this is NOT state action, u cannot use private discrimination to justify AA. ***most of the time u do not lose on compelling interest, but u lose on narrowing tailoring. All this is still prolly good law post-Grutter. 2) Hockwood v. TX (5th circuit): UT law school AA closely focused on blacks and Mexican Americans and they used the definition “American born African American” so if black but born in Nigeria then u did not get into AA program. Program looked a lot like Bakke w/ two separate committees and two separate tracts to get into law school. GPA / LSAT index where 199 or above was presumptive admit for whites / 189 was presumptive admit for blacks / mex American. Presumptive denial was 192 for white, but was 179 for black / mex American. i) 5th circuit Bakke is no longer good law and was never the law, educational diversity is NOT a compelling interest for AA. So now they just have the remedial interest and TX says we have been intentionally discriminating for many years and want to fix that the law school has and the state of TX total has. 5th u have NOT been discriminating cuz of Sweatt case!!! U certainly cannot use discrimination in TX‟s schools to justify AA, for AA at the law school u must have stats about the law school. If AA for undergrad u must have stats for undergrad. U must present numbers w/ regard to the governmental entity or particular branch of the gvt whose discrimination that they are wanting to remedy. Here the law school is that particular agency (state action). MI CASES 6th Circuit, there was an opinion in Grutter in 6th, but USSC granted Cert on both and no 6th opinion in Gratz (undergrad case).
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1) Grutter v. Bollinger: UMICH law school, they said yes we do AA and we pay attention to race and we do it as race PLUS w/ several other factors. We look at the numbers and we look at race in the sense that we want a critical mass of minority students to pursue the goal of education diversity. They said this is purely educational diversity. UM said a critical mass is a subjective thing and we kind of wing it. i) USSC – 5-4, majority written by O‟Connor who never voted in favor of AA til now!!! She basically just wrote a Powell opinion like in Bakke!!! Program must be subjective (no absolute numbers), race can be a plus as long as true diversity is the goal, goals and targets are good but quotas are still bad (Scalia rages about how a critical mass is the same thing as a quota in this case). She then says educational diversity is a component of the faculty‟s 1st right to define the academic curriculum at the university (teachers do not have this right at a level below university level). U can rely on the expertise of the faculty cuz teaching is an art and not a science (SCALIA well so u can do whatever u want then right). (Thomas – well what if u had a group that said we think it is better to have an all-white class or classroom --- majority ignores this). ALL AA PROGRAMS MUST BE TEMPORARY – (goes back to Croson remedial AA programs need to be temporary cuz eventually it will all be took care of). BUT BUT here O‟Connor says that even w/ educational diversity this stuff will expire 25 years from the day this case has been decided!!!! (WTF!!! I can see rationale for remedial being temporary But why is educational diversity temporary?) So 23 yrs from now Grutter disappears I guess (does this apply to set-asides / k‟s???). Also, O‟Connor said that narrow tailoring DOES NOT require exhaustion of every race neutral alternative, all u have to do is THINK ABOUT other programs but u do not have to try them all (applies at least in educational context, maybe or maybe not in set-asides or whatever). ii) SCALIA I do not believe UM, we would not allow any educational diversity only remedial AA. They are lying about this critical mass cuz I think it is a quota. Then he outlines the next wave of AA litigation 1) whether the system is individualized enough (has the univ looked at the individual characteristics of each applicant), 2) challenge the benefits of this being educationally beneficial (disprove the benefit and kill educational diversity interest), 3) look to see whether the university is in fact pursuing a good faith system to avoid a quota system (UM was 6% difference over time, less than that and it could be challenged). 4) Theory of univ that have state financed Hispanic centers or blacks centers making them show that they are not breaking up the kids into classes. 5) challenge the concept of “critical mass” and make them prove that a class w/ 20% minorities is better than 10% minorities. 6) bring challenges on behalf of groups that were left out of the AA programs. 2) Gratz case: UMICH undergrad case, AA was UNCON!!! 6-3 vote. UMICH UGRAD assigned number values to every single salient characteristic of every single file. MAX of 150, over 100 admit, 90-94 = long wait list, less than 89 then unlikely to get in but on a 3rd wait list. Up to 110 points for academic performance alone, Mich residents get 10 off the bat, legacies get 4, 3 for essays, 5 for public achievement, 20 pts for being minority OR 20 points for going to disadvantaged high school or 20 for athlete. Ugrad says we cannot do what the law school does and we cannot read 15,000 files. i) USSC 6-3 u have to figure out something cuz u cannot do this!!! This amounts to a racial quota cuz minorities get 20 pts automatically cuz of race. U must do individualized treatment of candidates w/ RACE as a PLUS w/ a bunch of other factors BUT u must do this in a gestault / subjective way, numbers like this are bad. Court made it sound that reducing the 20 to 5 points for race did not matter!! Still bad. So quotas and numbers are BAD and u cannot just give these peeps a leg up just because of race (quota means any rigid calculation of race). D) GENDER AA CASES – After Adarand u have the consistency standard (so gender =intermediate scrutiny, so AA based on gender should get intermediate scrutiny). 1) Lamprecht v. FCC: DC Court of Appeals case that IS ALWAYS CITED. Program looked a lot like the Metro case supra. For gender AA it should be intermediate scrutiny and it appears that USSC would agree but they have not said this yet!!! So cite this case. Here if a company was controlled by a non-woman then
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u do not get the PLUS. The rationale was that if u have stations owned by women then programs for women will go up and if station was owned by non-women then there would be a lower percentage. i) DC Court of appeals intermediate scrutiny applies, race is race, gender is gender, FCC u LOSE. Your numbers do not back anything up, women owners broadcast 1/3 women programs but non-women = 28%. For a broadcast co owned by blacks = 79% of programming was for women!!! So why not do this for blacks then!!! Gender groups get intermediate scrutiny no matter if it advantages or disadvantages women. Gvt did not meet the standard cuz they could not satisfy narrow tailoring aspects. Black owned companies do this better here. ***LAUNDRY LIST OF THINGS TO DO TO ATTACK OR JUSTIFY AA First- (find this) Must have a compelling interest. Thus far only 2 remedial interest (must remedy past intentional discrimination by the government body doidng the AA) that applies to all programs OR educational diversity interest in education (see Grutter). Must establish one of the two, if remedial interest then u must conform the remedy to past discrimination by THIS gvt agency (if remedial, court likes to see a politically accountable branch of government –legislative or executive- make the program)(part of narrow tailoring analysis). To do this u must develop extensive findings of the nature of past discrimination (numbers numbers numbers) and in doing that u must prove that the past discrimination was SOOO EGREGIOUS that the ONLY explanation is that it amounted to illegal uncon intentional discrimination. This also must be recent (yesterday). If educational diversity program, usually the program is more successful if someone with educational expertise helps to make the program. Next, u must attempt racially neutral methods before u resort to racially cognizant AA programs. (But, in Grutter O‟Connor said narrow tailoring does not require exhaustion of every single conceivable race neutral alternatives, BUT narrow tailoring does require serious good faith considerations of workable raceneutral alternatives. Consideration could mean that they say well we thought about it and that is enough (also we do not know if this applies only in education context or in set-asides as well). Then if a remedial program then that program can only be done by an agency that has some political accountability (executive officials in some agency that answer to gvt OR legislators…this comes from Bakke). Next, ALL AA programs MUST be temporary (in Grutter, educational diversity is dead in 23 years). Set-Aside programs must contain waiver provisions so that the person obligated under the set aside if they cannot find qualified MBEs. Hiring programs are more likely to be upheld than layoff programs (court hates layoff programs cuz u know who was harmed, do not know who was harmed in hiring programs). Also paradise case says that judges can get away w/ a lot more in ordering AA than agencies or universities can get away w/ voluntarily hard to get a quota unless the judge is being a jerk.. E) Rational Basis – Easy for Gvt to Win. 1) Royster Guano Co. v. VA: Liberals on the court like this the best. Describes the standard as reasonable but not arbitrary with a substantial / fair relation to the object of legislation (seems to give court authority to second guess the legis in some cases). CLASSIFICATION MUST BE REASONABLE AND NOT ARBIRTRARY AND REST UPON SOME GROUND HAVING A FAIR/SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGIS THE BRENNAN STANDARD. ****Nowadays, the court says this (New Orleans v. Duke) the classification must be rationally related to some legitimate state interest (seems to give the court very little basis to do anything). EVERYTHING TURNS ON WHAT IS RATIONAL AND ANY RATIONAL RELATION SATISFIES EP CLAUSE. Clearly corrupt legis disctinctions by the legislatures 1) Railway Express Agency v. NY: NY city council passed ordinance prohibiting ads on trucks for anyone except owner of truck. They did this cuz those agencies w/ fixed billboards bribed the council. They said traffic safety was their rational interst. USSC YES, this is rational basis and we will not second guess the city council. We defer to legislatures if we are out of heightened scrutiny categories. (this is clearly a facially absurd explanation). 2) Williamson v. Lee Optical (sub due process area): OK stat saying u cannot get glasses unless u get a prescription from an optometrist or optamalogist. This destroyed obticians cuz the other two groups bought a stat. USSC OK refused to even say why they did this. They win 9-0, court here says we will not second guess the legislatures in this area. Court writes their hypothetical reasons for them!!!
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3) MN v. Clover Leaf Creamery: MN bans sell of milk in plastic, u must buy waxy cardboard containers. MN said we doing this for the environment, but the evidence introduced in the legis says this is wrong, plastic is better. MN has many trees and the pulp companies had bought a statute. Plastic milk companies said we know this is irrational cuz their own evidence proves that this is more harmful to environment. USSC This does not matter, we defer to the legis, states are not required to convince the court of the correctness of their decisions, court will uphold as routine the judgments of legislatures. 4) Fitzgerald v. Racing Assoc of Central Iowa: Iowa allows slots on riverboats and they tax them 20%, then a stat passed allowing horse racing tracks to get slots too but they tax their slots 36%. Horse tracks screamed this is arbitrary and irrational and there is no logical distinction b/w us and riverboats. USSC this is fine, Iowa can do this just cuz they want more money from u than them and that is rational. ***The problem is formalism leading to injustice 5) NYC Transit Authority v. Beazer: MTA runs subways and refused to hire anyone on narcotics. They defined narcotics including methodone which satisfies a heroin users cravings. We are talking secretaries and file clerks here, not dirvers. Evidnece indicated that someone on meth for more than a year had no higher incidence of job performance problems than a normal employee. MTA says as a public relations matter it looks bad for us to hire them and this is just pr. The public already does not like us and the public does not like these peeps either. i) USSC This is fine, public relations matter and this is a rational basis. Dissent by Justice White (who was born more or less w/ a heart of stone). 6) US RR Retirement Board v. Fritz: RRs go bankrupt and Feds take over their retirement funds. Eventually they start to run out of money and Congress passed a stat that said if u worked for RR form more than 25 yrs b4 retiring or for more than 10 yrs as of date stat passed and were still working for RR then u could keep your gvt benefits. If u worked less than 25 yrs b4 retiring or worked for more than 10 yrs and were no longer employed then u lost gvt benefits entirely. Argued this was irrational. i) USSC statute upheld. Rational basis is that congress had to balance budget somehow and they picked you so no recourse. ii) Brennan (dissent) no one in Congress read the stat and they did not realize that this would disenfranchise anyone from getting gvt benefits. They just met and decided they were going to screw u instead of u. A WINNER 7) US Dept of Agriculture v. Moreno (1973): Program passed to starve hippies. Food stamps excluded from households where someone lived there that was unrelated to anyone else in the household. Did not want hippy communities to get the benefits. USSC General rule is that even in rational basis category there must at least be something more than a bare congressional desire to harm a politically unpopular group. Congressional desire to harm a politically unpopular group cannot constitute a legitimate gvt interest. (Problem is that any person who loses is not a popular group!!!) All thought Moreno was dead but STAYED ALIVE in late 90s!!! 8) Romer v. Evans: CO had Aspen / boulder / Denver who were liberal and passed ordinances prohibiting discrimination based on sexual orientation. Statewide amendment that prohibited any state privileges or benefits based on sexual orientation. USSC Kennedy majority a weird opinion, completely ignores Seattle School District cases (is that limited to race or does it extend to all political groups). USSC this is Mareno, like hippies this is gays, based on rank prejudice. Under rational basis EP law rank prejudice does not constitute a rational basis. This is sooo broad that there is no other way to explain it than it being rank prejudice (must be very very very broad). We have to goose up EP even at lowest level of scrutiny cuz u can prohibit behavior BUT u cannot target peeps cuz of their inherent characteristics!!! Dissenters where is the prejudice? Scalia this is just culture wars and the court has now entered the culture wars on the side of one faction. Bottom line Moreno and Romer u must show hatred to a pretty identifiable group.
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***Put Romer and Lawrence together could spell the end of all moral statutes, prolly cannot pass statute prohibiting gay adoption…Palmore v. Sidoti state cannot rely on prejudice of people to enact legislation. Why is race a suspect class and gender quasi-suspect but sexuality is not??? Another case lumped into rational basis category that may not belong. City of Cleburne v. Cleburne Living Center: Zoning ordinance in TX that prohibited groups home for mentally retarded in areas zoned for single family dwelling. Problem was that they only singled out this groups as the ordinance allowed nursing homes, homes for aging, and hospitals. City said we have to good reasons 1) there is a high school nearby and we are worried about harassment by the students (but many of the retarded teens went to school there too). Court said this makes no sense. 2) Group home was in a flood plain and we are worried that they will not be able to get out of the flood waters. Court said u have old peeps living two houses down!! USSC Court strkes down under rational basis. Court also uses some Moreno language “appears to us to treat on an irrational prejudice against the mentally retarded” ((But the majority said they were using rational basis but they were really doing something completely different. The targeted group won!)). So Marshall, Brennan, and Blackmun say u are not doing rational basis scrutiny cuz if u were then u would not even ask why they were doing this. ***What to do w/ City of Cleburne Many lower courts treat this as a case in effect as an intermediate level of scrutiny category (perhaps analogize to physically or mentally disabled peeps, USSC may not have intended this). Some think this is a Romer/Moreno opinion concerning “rank prejudice” where court thought the city just did not like the retarded peeps as a group. The 11th usually reads this as a pure rational basis anomaly. E) GENDER AA CASES – After Croson and Adarand u have the consistency standard (so gender =intermediate scrutiny, so AA based on gender should get intermediate scrutiny, see Lamprecht). 1) Lamprecht v. FCC (1992): DC Court of Appeals case that IS ALWAYS CITED. Program looked a lot like the Metro case supra. For gender AA it should be intermediate scrutiny and it appears that USSC would agree but they have not said this yet!!! So cite this case. Here if a company was controlled by a non-woman then u do not get the PLUS. The rationale was that if u have stations owned by women then programs for women will go up and if station was owned by non-women then there would be a lower percentage. i) DC Court of appeals intermediate scrutiny applies, race is race, gender is gender, FCC u LOSE. Your numbers do not back anything up, women owners broadcast 1/3 women programs but non-women = 28%. For a broadcast co owned by blacks = 79% of programming was for women!!! So why not do this for blacks then!!! Gender groups get intermediate scrutiny no matter if it advantages or disadvantages women. Gvt did not meet the standard cuz they could not satisfy narrow tailoring aspects. Black owned companies do this better here. Prior to 1970s 1) Bradwell v. Illinois: IL stat no women can practice law. USSC God told us that the domestic sphere belongs to the woman who is naturally timid and fragile. 2) Minor v. Happersett: COURT EP clause does not prohibit states from keeping women from voting. 3) Muller v. Oregon: Ct upheld a max hour law cuz it protected women alone (effectively kept them from getting jobs). 4) Hoyt v. FL: women cannot serve on juries unless they go down a signed a form for extraordinary circumstances, had to affirmatively throw their name into the pot. 1970s – Test Cases Argued by ACLU / Ginsburg (court changes its attitude), winner in these cases is the male cuz females were given benefits in stats cuz of difference b/w the gender. She did this on purpose to plead for equality across the board. 1) Reed v. Reed (1971): ID stat concerning the administration of an estate, provided that when two or more persons were of the same entitlement class that preference should be given to the male. i) USSC used EP for first time to unanimously strike down this as an instance of gender discrimination, applying rational basis the court struck down the stat. 2) Frontiero v. Richardson (1973): (romantic paternalism case)closest Ginsburg ever got to get gender to receive strict scrutiny. An attack on military dependency allowance, if in military and married u get some
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more money for your dep. If male and u have a wife then u automatically got the allowance. If female in military w/ a hubby then u only got allowance if u proved that hubby depended on wife for more than half of his support (otherwise no cash). USSC plurality opinion by Brennan. --Brennan set out factors to consider when looking to elevate group into EP Heightened Scrutiny: 1) history of discrimination against the group (if a history of discrimination then that may elevate the group into heightened scrutiny). 2) is the characteristic that defines the group immutable (can u change that characteristic and get out of the group). 3) congeniality (are peeps born w/ that characteristic), if they are then it is something that is not volitional and the court should elevate the group. 4) political powerlessness, looking at the numbers is the group so small that they will never effectively defend themselves in the political process. 5) relationship b/w the characteristics that define the group and the nature of the regulation (Brennan says that in Brown v. Board there was no relationship b/w race and education cuz the state could not come up w/ any way that race related to education (stuff based on real differences is fine though – upper body strength for firemen, females guards for female prisons, perhaps single sex class / females teach elementary or something). DOES NOT SAY HOW TO WEIGH THESE FACTORS!!! i) Brennan said here I apply strict scrutiny but in the gender context u kinda do a different thing. “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally such discrimination was rationalized by an attitude of „romantic paternalism‟ which in practical effect put women not on a pedestal but in a cage.” Now to see if gvt has a substantial or imp gvt interest to justify gender discrimination u look for evidence of “romantic paternalism” or a notion that women are timid and delicate little flowers. If stat is predicated on ramantic paternalism then that classification violates the EPC and the stat is uncon. BUT if the stat is based on “REAL DIFFERENCES” (mostly only physical differences) then gvt will win. ii) Administrative convenience is NOT a substantial or important gvt interest!!! This is not sufficient under intermediate scrutiny (e.g. gvt says we know in advance that 95% of women cannot meet our strength req‟ments and we will not interview any women --COURT will say u must still interview them cuz 5% can get in!!!). iii) here u have to either require that both hubby or wife in military prove it or neither has to prove it. ***Today most of this focuses on don‟t ask don‟t tell. Is it rational basis or intermediate scrutiny standard? ***Scalia This is political majority rules, we should not enter this debate at all cuz this is a culture war. Really do not know what the court would say today. ****Say congress passed a stat today prohibiting discrimination based on sexual preference and then the stat is used against the state. U would decide if this is valid exercise of § 5 of 14th is it congruent and proportional BUT if homosexuality is rational basis then the stat would be struck down!!! (perhaps could argue rank prejudice, but good luck). 3) Craig v. Boren: OK stat prohibited sale of non-intoxicating beer to males under 21 and females under 18. Clear gender distinction. State‟s rationale was 18 yr old w/ Camaro = carnage. State says we have the numbers to prove it. i) USSC Stevens concurrence footnote becomes the law Court adopts intermediate scrutiny analysis even if they say this is just rational basis. A “middle-tier” approach w/ a sharper focus…”Our decision today will be viewed by some as a “middle-tier” approach….Candor compels the recognition that the relatively deferential “rational basis” standard of review normally applied takes on a sharper focus when we address a gender-based classification .” ii) Court says we reject your numbers cuz women are chivalrously took home but you throw the boys in jail. We are rejecting these numbers cuz this reflects romantic paternalism. Stat struck down. 4) Cleveland Board of Education v. La Fleur: Regulation from County School Board that said teacher must take maternity leave as soon as they get pregnant. USSC this reflects quant ideas about dainty women, romantic paternalism, struck down.
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5) Stanton v. Stanton: Utah had a stat that req‟ed parents to support male kids until 21 and females until 18. Court struck down and said both have to be supported until the same age. 6) Califano v. Godfarb (1977): SS program where if female survives male spouse then the wife automatically got survivor‟s benefits based on hubby‟s earning. If hubby survived wife then he would only get benefits if he proved that he got more than half of his support from his now deceased wife. i) USSC Stuck down under romantic paternalism. (this effectively made the SS peeps cut in half the survovor‟s benefits overnight). So u end up w/ the “yuppy woman standard” where u disenfranchise pre-yuppy generation women who did not work before. (A short-term loss but a long-term gain or so Ginsburg would argue). 7) Califano v. Webster: Same sort of thing, dealt w/ calculation of SS benefits, gives women a higher multiple of average earnings as opposed to men. So women got a higher number. Upheld this program though!!! i) USSC Congress in Goldfarb said women are dep and they need this, but here Congress passed something like an AA remedial interest program saying we are compensating for employment discrimination. USSC that is ok cuz it is not romantic paternalism. ***so romantic paternalism = bad, but if gvt comes up w/ a remedial interest remedying past discrimination then that is fine. It will come down to how and how well the gvt established the record in either case (of course judge by intermediate scrutiny analysis). CANNOT just assume women are dependent. GENDER / REMEDIAL AA RATIONALE: (see Webster directly above too) 1) Kahn v. Shevin (1974): Court sustained a fla stat providing a prop tax exemption for widows but not for widowers. Upheld cuz Fla went into court and said we are taking into account the fact that women were discriminated against in the workplace and the job market is inhospitable to the woman seeking any but the lowest paid jobs. 2) Schlesinger v. Ballard (1975): Military case, up or out, if u did not get promoted then u had to leave, males had 6 yrs, women had 8 years. Argued that hey we discriminate against women a lot and they cannot go into combat and it clearly takes them longer to get promoted. USSC this is fine, compensation for discrimination is a substantial / important interest that survives intermediate scrutiny. ***still must show AA stuff (narrow tailoring, applying or thinking of other options that are NON-racially or NON-gender cognizant first) – ALSO INTENT IS STILL VITAL!!! LIMITS ON THE GENDER DISCRIMINATION DOCTRIEN (OBSTACLES TO Ps) INTENT --- Washington v. Davis: intent req‟ment applies to gender as well. Statutes may have a disparate impact but to get into court u must show that the disparate impact was INTENTIONALLY caused see Feeny case (intent applies in gender as it does in race). Discrimination probably has to be evident both on the benefits and detriments sides of the program notion that discrimination has to exist for peeps harmed by gvt action and for peeps that are benefited by the action. 1) Gedulig v. Aiello: Stands for proposition that if there is gender discrimination in a social benefits program then to strike it down u MUST show there is discrimination BOTH AMONG BENEFICIARIES AND THE PEEPS THAT PAID FOR THE PROGRAM. Involved disability insurance program run by CA for state employers and under the program there were several male specific disabilities (prostate cancers, erectile dysfunction, etc) and u could get money for it. BUT pregnancy was not a disability. ? was did this discriminate? i) USSC NO, there was discrimination amongst the beneficiaries but there was no discrimination amongst the peeps that paid for the program cuz both men and women benefited by lower premiums for their insurance. There was a disparate impact here but everyone is paying cheaper for their premiums. So u have to look at both sides, and u will not win one of these cases. ***must have discrimination on both the payment and the benefit sides.
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2) Michael M v. Sonoma County Superior Court: stat rape stat, CA had stat that said if u had intercourse w/ female under 18 then u are guilty of a felony. Stat specified females, so if a woman took advantage of a minor then that was fine. Does this violate EP clause cuz clear differentiation b/w males and females on face and romantic paternalism. i) USSC Stat SUSTAINED we are evening out the risks cuz females already run a big risk of pregnancy while males have no risk at all so we are gonna give him the risk of prison. This is a cost-benefit equation and NOT romantic paternalism. DISSENT Brennan and the liberals are afraid of underage abortion cases, why could CA not make their decision there as well. Also what about denial of access to contraceptives. 4) Rostker v. Goldberg (1981): draft registration case where females still do not have to register. USSC military need 20X more males than females to fill combat positions. So an obvious efficiency interest in registering who u need. This case case against the general rule that administrative efficiency is never a substantial interest but of course this is the military and they have different rules. Lamprect case gender based AA programs get intermediate scrutiny cuz under the Adarand rules the group getting AA gets the same level of scrutiny as if that group was getting discriminated against. CONSISTENCY NOTION. F) Single-Sex Education – 14th requires state action, relates to public schools and may relate to private schools w/ regard to Title VII or VI (see Bakke). If private school takes gvt money then they cannot discriminate. 1) Mississippi Univ for Women v. Hogan: Nursing school at state univ that was females only and Hogan wanted to be a nurse (male) and he wanted in. Nearest other nursing school run by state was 100 miles away. He wins! i) USSC O‟Connor is this were a med school then that could be different because they could argue that this was AA but here it is just romantic paternalism. Female only program has effect of directing females to the lower end of the medical profession, and this is gender discrimination being perpetuated, so this is a social status of the school analysis. 2) VMI case US v. VA (1996): All man state run institution, not a military school but a military oriented program, VMI admitted that if they admitted women that maybe 10 percent enrollment would be achieved by females. Since it is such a small problem we do not want to try. Went up and down the dist court and appeals court. See notes pg 53-54. USSC Ginsburg opinion VMI loses, rewrites the standard using different terminology, must demonstrate an exceedingly persuasive justification for action. This sounds like SS, but then she says that to meet this standard the state must show that the action has an imp or substantial gvt interest. By time u got to USSC VA had two arguments: 1) we think pedagogically that this works better, a general educational favoritism of single sex education…Ginsburg says that the problem is that u started the other school too late only when u got sued and we do not believe u. 2) notion that men and women learn differently and if u admit women then that would change the experience to existing students at VMI….ginsburg says again I do not believe you and why, admit them and u do not have to change anything, most will flunk out or do not want to go but the EP clause is there to let them try. ***The justification must be genuine and not hypothesized or invented post hoc in response to litigation, must also not be based on romantic paternalism…supposed “inherent differences” are not enough BUT PHYSICAL DIFFERENCES b/w men and women are enduring. -------------------------------------------------------------------------------------------------------------------------------------------FIRST AMENDMENT: speech, press, assembly, petition…and implicit right of association. Rule is related to content…different for different types of speech: political or advocacy vs. sexual vs. commercial. Cannot stop speech b4 it happens, gvt has to demonstrate that they have the right to shut u up.
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A) History Concept of seditious libel – u can be liable to gvt by saying something that brings them in to disrepute. 1) British Free Speech oriented around concept of prior restraint. English gvt could not force u to get a license to publish a paper (but could not put on a play/movie/market a video w/o a license). Once u spoke though then u could be prosecuted for something after u said it. What did framers intend – often truth was an aggravating factor! British model or not. Levy‟s books “legacy of suppression” and edition two “emergence of a free press.” Half right in either one, writers wanted seditious libel w/ no protection, but the peeps spoke!!!! Zenger trial – nullification even after he confessed. One 1st amendment for the peeps and one for those that ran the gvt. So it is a value choice and u basically choose which 1st you want. So there are two original intents. ***Court has basically chosen the Zenger tradition for protection both b4 and after speech happens, especially as it relates to politics. 2) Fox v. Wash (1915): guy prosecuted for printed article called the nude and the prudes, he liked to scamper about naked, imprisoned for 2 yrs for violating a stat that said any person who published any book advocating the commission of any crime will go to jail, he was charged w/ inciting indecent exposure. i) USSC 9-0 Holmes he said it, it was illegal, he goes to jail. So 1st really protects nothing. CASES to the Modern 1st Doctrine : Advocacy Cases Espionage Act of 1917 and Sedition Act of 1918 – Espionage Act said it was a crime to cause or attempt to cause insubordination / or to obstruct the draft. Did not discuss speech but was an obstruction statute (like laying across train tracks or something). Peeps were charged that words alone obstructed the draft. 1) Shaffer v. US (1919) gives the standard b4 USSC got involved. Prosecuted for book publishing, lower courts used the “bad tendency and effect test” (if the material involved had a bad tendency and effect of leading to obstruction of the draft then the 1st did not apply and u could be prosecuted. (ask jury if what d said had a natural and probable result to cause obstruction). 2) Schenk v. US (1919): USSC gets involved, pamplet sent to draft age kids by some socialists saying draft was slavery/vote/assert your rights. Prosecuted under bad tendency and effect test under Espionage Act. i) USSC 9-0 upheld conviction, Holmes The character of every act depends on the situation in which it is done and every act depends on its circumstances. The 1 st may protect u after speaking but it does not protect – 1) even stringent protections would not protect someone who shouted fire in a theatre. 2) clear and present danger is the standard and the question is one of proximity and degree. When the nation declares war things normally ok are not. Words do not matter only the context. ii) standard is a contextual standard – does not matter what the speaker said, a subjective analysis where the only thing that maters is context. Did what the speaker say create a clear and present danger of what the gvt has a right to prohibit? (this standard effectively led to same results as the earlier tests)…If declared war then forget it, u suspend the operation of the standard altogether. 3) Frohwerk v. US: German newspaper written in German ran a series of editorial opposing American involvement in WWI. Editor prosecuted under Espionage Act. i) USSC – 9-0 – affirmed – Holmes more social Darwinism, on the record it is not impossible to say that this paper was a little breath that would kindle a flame. Something small can send one to prison. (clear and present danger phase #1). 4) Debs v. US: ran for president, socialist party member, went into an OH prison to speak to some draft evaders, walked outside and gave a speech saying I have just been to visit some real heroes, I admire them, and I urge u to admire them to. NEVER SAID ANY ACTION WORDS. Convicted. USSC affirmed 9-0 –holmes see Frohwerk, we told u before and u are not getting the message, clear and present danger, and a factual issue to the jury. ***So clear and present danger analysis where only context matters and the words do not, intent is still not a factor at this time, it all turns on actual effects and NOT on intended effects. All a jury question.
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5) Masses Publishing v. Patten (1917): Postmaster general would not deliver a radical artsy mag in NY. Postmaster said this violates espionage act and I refuse to accept it for us mail. Owner sues for an injunction. Goes b4 Learned Hand. i) Learned Hand‟s Incitement Analysis (as opposed to Holmes‟ clear and present danger analysis)…Hand says incitement focuses exclusively on the words used by the speaker (e.g. do not go to war, do not go into draft, break the law). An objective analysis, Hand liked this cuz it got u around the jury problem so this became something that could be overturned on appeal cuz under clear and present danger the jury just convicted. 1st protects speech up to the point that the speaker engages in DIRECT incitement (this is objective). ii) of course this was reversed on appeal by the 2nd circuit. ***BUT MODERN STANDARD = incitement + clear and present danger + intent and gvt can almost never show all this, so tons of protection nowadays. Learned Hand and Holmes standard is NOW combined, must show an objective incitement and clear and present danger. 6) Abrams v. US: tossed a pamplet off the roof of a building, wrote in Yiddish, arguing against American involvement in Russian Civil War. Stat was inappropriately applied to them!!! Majority upheld conviction under Espionage Act, but Holmes dissented and Holmes created the 1st in his dissent along w/ Brandeis. i) Holmes / Brandeis dissent Holmes says this is dumb cuz these guys were not protesting WWI, people are human and we are stupid, “marketplace of ideas” notion, the best truth is the power of thought and truth is the set of principles concocted by the most powerful but every set of truths is that they are overturned eventually and the point of the 1st is to let that happen. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, UNLESS they so IMMINENTLY threaten immediate interference w/ the lawful and pressing purposes of the law that an IMMEDIATE check is required to SAVE THE COUNTRY. So now anything short of needing to save the country is protected speech. Teeth is put into the notion of clear and present danger (IMMEDIACY) and only an immediate threat of an immediate harm is the only time gvt can check it. (Now juries have to figure out whether the C&P danger is so immediate that there is nothing else u can do than put them in jail to save the country, if such is not the case then u have to let them talk cuz their speech is protected). 7) Gitlow v. NY (1925): anarcho-syndicalism statutes where these were directed at speech as opposed to action (like in Espionage Act). If u just say gvt should be overthrown then u were thrown in jail. Here the guy wrote a pamphlet to overthrow gvt in general and was thrown into jail. ? comes down to clear and present danger. i) Sanford (majority): when legis itself has identified the dangerous speech then clear and present danger analysis does not apply at all cuz the legis ahs already done the assessment of clear and present danger. So when this happens the court should not second guess them. We should suppress radical speech (a risk argument) cuz a single revolutionary fire may burst into a sweeping conflagration. We are court and what do we know about political radicalism, this is a legis function and not a judicial function. ii) Holmes Dissent Clear and present does apply cuz the 1st specifically limits Congress‟ abilities here, see the text, legislatures should not be trusted and they cannot stop history and neither can we. He responds to Learned Hand and says that every speech can be incitement, the difference is the speaker‟s enthusiasm. Cynical notion of history and politics, if peeps want to be communists then let them. 8) Whitney v. CA (1927): probably the most imp doctrinally. CA sent peeps to a Chicago convention and the moderate and radical socialists fought. Whitney was a moderate and thought they should run for office, her opponents were the radicals who wanted to blow shit up. They had a fight over the platform for the socialist party and they voted to blow peeps up instead of run. She does not leave cuz there was a party, and she went to CA and was indicted under CA syndicalism association provision cuz she hung out w/ the radicals who wanted to blow shit up. She takes a dive and wants to be a martyr and does not put up a case. i) 7-2 really, Brandeis and Holmes have to concur cuz she was stupid and did not put up a case!!
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Brandeis wrote and Holmes joined him every other part of the opinion disagrees w/ the majority. This is the modern standard that he writes everything turns on how present the clear and present danger is. Clear and present danger applies across the board even if legis has identified the speech (still good law). “it is the function of free speech to free men from the bondage of irrational fears.” The general remedy for bad speech is good speech, u do not shut up the speaker u let him talk and then u respond. So if someone talks crap then u talk non-crap back and the only time that does not work is to save the country. There must be a reasonable ground that the danger is imminent – that the harm will happen right now. Even advocacy of violation is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon. Must be an imminent threat of a serious evil (destruction of the country as a whole). “No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall b4 there there is opportunity for full discussion. If there be time to expose thru discussion the falsehood and fallacies, to acert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” Regarding more on the time frame analysis if speech acts like action and has the function of physical act then it is not con protected BUT if speech happens in context where there is time to respond then it is not imminent and it is speech acting as speech and is protected. Current Courts standard if it falls short of incitement (objective words as opposed to context) and nothing to indicate that it will be immediately acted out. So if there is any time lapse then the speaker is protected, u have to prove that speech had an immediate effect. Only time u can shut someone up is when the speaker is using action words and u have to prove that the action will take place right now (if u cannot show this then the speech is protected). ***GET AROUND THIS BY CONSPIRACY if u have evidence of speech in a group context where u have one overt act (buying fertilizer, getting explosives, etc) then u are out of speech and u are engaged in an act of conspiracy. The check on this is one overt act that is not speech related (a plan is an overt act then, but it seems like speech). It is all about pigeonholing. Allows prosecutors and judges to run around Brandeis and Holmes. *So u started out w/ nothing really and no law in essence. First batch of cases dealt w/ Sedition Act and Espionage Act and there were many Holmes unanimous opinions w/ C and P Danger analysis where all is a matter of fact for the jury and the jury would convict for anything. **Then at the end of 1919 u get the Holmes Dissents in Abrams and Gitlow and Brandeis Concurrence in Whitney these three form the foundations of the modern first amendment doctrine. They continue to emphasize c and p goosed up w/ an immediacy analysis (C and P danger of an immediate serious harm at that point C and P has some teeth). Must find an immediate serious harm to convict, then in Whitney (Brandeis) he attaches to C and P danger some conception of incitement. So Holmes / Brandeis Standard u look to the context (c and p danger, modified by immediacy, coupled w/ an objective look at incitement) So u need action words + plus context which must together create a serious danger of some immediate danger / harm. 9) Dennis v. US (1951): over time the court just adopted Brandis/Holmes analysis, adopted it here. Antisyndicalism stat. Formally adopts Holmes and Brandeis views from Gitlow, Abrams, and Whitney as the law!!! BUT then the USSC promptly guts it!!! Dennis is a type of Gitlow case where Fed Stat says it is a crime to advocate a violent overthrow of the gvt. Guy in communist party was convicted. i) USSC Appealed from the 2nd circuit who affirmed (Learned Hand) Hand had abandoned his Masses incitement test and had adopted C and P danger. Hand said that “measured by courts asking whether the gravity of the evil, discounted by its improbability, justifies the suppression of speech.” So u have a sliding scale of speech – if someone is talking about something really evil even if the probability of the speech taking hold is low then that speech can be stopped!!! So someone saying overthrow the gvt even if it is very improbable is not protected under the 1 st BUT if u had someone say trespass/steal music then that may be very probable but it is not so bad. CITE AS LEARNED HAND AS AFFIRMED BY DENNIS.
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ii) USSC Hand‟s interpretation looks good!! Affirmed. *the problem w/ this standard is that only speech that is protected is the kind no one cares about anyway; the thing gvt fears the most is talk about overthrowing the gvt. Concurrence by Frankfurter we are judges and what do we know about world wide conspiracies, we should just defer to the gvt. Concurrence by Jackson I would give u different 1st amendments for different kinds of political speakers. For political hotheads they get the full 1st (holmes and brandeis standard). W/ well organized national conspiracies then they get the 1st we have defined here. Dissent Black / Douglas (the new Holmes / Brandeis) Black was a con literalist (no law means no law, u cannot regulate speech unless u change the constitution), we do not want to let judges make discretionary judgments about what rights are imp or not. “Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the 1 st liberties to the high preferred place where they belong in a free society.” Douglas these guys are nothing w/n the political sphere of the US, these people are nothing, “There comes a time when even speech loses its con immunity. Speech innocuous one here may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the c and p test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt…” ***This opinion should have died long ago but it still pops up terrorism speech in relation to Patriot Act / crim trial gag orders. 10) Yates v. US (1957): Another anti-synidcalism stat, McCarthyism, same case as Dennis w/ the same stat, COURT REWRITES DENNIS!!! i) USSC In Dennis we said that the essential distinction is that those to whom the advocacy is addressed must be urged to DO something, now or in the future, RATHER than merely to BELIEVE in something. (but they did not say this in Dennis). Abstract advocacy VS concrete advocacy. Under the 1st if u merely advocate abstract ideas like violent overthrow of the gvt then that is fine, but if u advocate some concrete action (burn that building now) then that has no protection under the 1st. THIS IS STILL A PART OF THE MODERN DOCTRINE. So it goes back to incitement, an abstract conception of violent overthrow of gvt is fine, but if u have an agenda that says tomorrow we blow this up then that is bad. Action words are KEY. 11) Scales v. US (1961): involves association or membership components of the Smith Act (used in Dennis and Yates), could not be a member of an association who advocated violent overthrow of the gvt. i) USSC to avoid blanket prohibition the court said membership is unlawful only if the individual was an “active” member and not merely a “nominal, passive, inactive or purely technical” member w/ knowledge of the organization‟s illegal advocacy and w/ the “specific intent” to further the organization‟s illegal ends. (specific intent is impossible for the gvt to show really). See notes on pg 58-59 on CA judge and Fla Case / Patriot Act. 12) Bond v. Floyd (1966): guy in his youth was one of the PR officials for SNK or SINK which began makings statements about Vietnam like we admire peeps that refuse to go and get thrown in jail instead. Ran for State House in GA and was elected. House says NO we will not allow u in cuz u were advocating illegal action (draft evasion). So by definition u do not agree to uphold and defend the law. Bond sues for injunction. i) USSC – 9-0 – AGGRESSIVE INTERVENTION into states‟ rights by USSC, this is what we talked about a little in Yates, he was not advocating peeps not to go, he was just admiring peeps and that is protected speech. Definitively overruled Debbs, no action words and no concrete action. 13) Watts v. US (1969): Anti-war rally in DC, Watts said I have received my draft registration as a 1a and if they make me go when they give me a gun I want LBJ in my sights. Convicted for threatening life of prez.
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i) USSC REVERSED!!! He used action words but he did not mean it, this was not a “true threat” this was mere political hyperbole / puffing. “political hyperbole that would not constitute an action” when taken in the context we know that is not really what he meant. He was just spouting off and now would be governed by the rule in Brandenburg for political rules. THE MODERN ERA --- WHAM (Brandenburg / Hess / Claiborne hardware) = the modern standard 14) Brandenburg v. Ohio (1969): OH state anti-syndicalism stat, used against KKK, burned a cross on film and gave a speech, “we‟re not a revengent organization, but if our prez / congress / USSC keep suppressing white, Caucasian race, it‟s possible that there might have to be some revengence taken.” i) USSC reversed, court reiterates that Whitney / Debs are overruled and Holmes / Brandeis view is the new standard. 3 part test for free speech that amounts to advocacy (when gvt prosecuting someone for advocacy the gvt must show all three to shut them up) “these later decisions have fashioned the principle that the con guarantees of free speech and press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we have said, the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is NOT the same as preparing a group for violent action and steeling it to such action.” 1) C and P danger part gvt must show that in the context the speech of the speaker will lead to imminent lawless action (imminence is defined in Hess see infra). Must be likely to lead immediately to a harm that the gvt has a right to regulate (battery, murder, arson, etc) comes from Holmes (Gitlow, Abrams) and Brandeis (Whitney). 2) Incitement component gvt must show that speaker used action words (do it, shoot the guy, burn the building) directed to inciting or inducing imminent lawless action (means speaker must use action words comes from Masses case). Saying I admire or I have sympathy is not enough. 3) Gvt must show that the speaker INTENDED his words to lead to imminent lawless action, if u can show that he was shocked that the building was burned then he wins. (most say the language for intent = “it is directed to” = intent), in Hess they say “intent.” Speaker used words in the context w/ the specific intention that the bad thing happen. *gvt can never satisfy this, if u convince court u are in Brandenburg territory then u win. 15) Hess v. Indiana (1973): Anti-war demonstration on college campus, burned ROTC building, Hess addresses the masses “We‟ll take the fucking street later or again.” Arrested for breach of the peace. USSC At best the statement could be taken as counsel for present moderation at worst it amounted to nothing more than advocacy of illegal action at some indefinite future time. No evidence that the words were intended to produce and likely to produce imminent disorder, could not be punished on the ground that they had a tendency to lead to violence. (so if u say blow up the building then that could mean someday, Brandenburg + Hess = the law, no evidence that the words were intended to produce and likely to produce imminent disorder). It all depends on the indefinite nature of the speech, how much does it look like a definitive plan. Court came out and said “intent” for first time too. 16) NAACP v. Clairborne Hardware Co (1982): 9-0 opinion. NAACP boycott in small MS town, Evers an NAACP official stated “if we catch any of u going in any of them racist stores, we‟re gonna break your damn neck.” Owners of stores sued for tortious interference w/ K on theory that NAACP was interfering w/ ability to market goods. USSC 9-0, reversed, the same 1st amendment standard applies regardless of whether the action is civil or criminal action w/o regard to whether gvt is suing a public or private entity. What this guy said was mere political advocacy, in a passionate atmosphere it may have seemed unlawful but mere advocacy of force or violence is not enough. Violence here did not happen until weeks later, time-frame analysis if any lapse in time from what speaker says and what listenders do then the speaker is basically protected cuz during that time lapse the audience has to think about it and if they do it immediately then it was his fault but if they do it later then it is their own fault. When one does not incite immediate lawless action then they are protected by the 1st.
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*under Brandenburg specificity is key, the more individualized the more of a chance that the gvt can win, but really the exceptions swallow the rule, it also seems that something written u could never prosecute under Brandenburg. TWO TRACK ANALYSIS – content v. regulation of non-content elements of speech (time, place, or manner). Tally cannot say u cannot have anti-abortion march, but they can say u cannot have a march at 4 pm on a Friday on TN Street. (Rock Against Racism case city of NY concert, we have peeps that live on central park west and they do not want to hear this, NY City said if u give this concert then it must be at a certain decibel level and our sound guy has to work for you. Court this is a legitimate time, place, or manner regulation. So line b/w content and non-content is vital. What is advocacy? 17) Kingsley International Pictures Corp v. Regents of NY (1959): Broadens the notion of mere political speech. Under NY stat u could not get a movie license if u depicted immorality as fun. No obscenity here cuz it was fake soft-core stuff. USSC we treat this as advocacy, the state was attempting to prevent the exhibition of a motion picture because that pic advocates an idea, yet the 1st‟s basic guarantee is of freedom to advocate ideas. So advocacy of anything is protected under Hess / Brandenburg, etc. Obsenity is NOT, but politics and art where u champion an idea is protected. 18) Herceg v. Hustler Mag (1987): orgasms of death. 5th circuit this is Brandenburg, merely advocating orgasms of death. No immediacy cuz u have to read the article and be stupid enough to try it. See also Olivia N. case rape and copy cat crime in CA…..Ice-T cop killer, Natural Born Killers, on intent grounds u cannot satisfy Brandenburg test. 19) Ozzy Osbourne case 16 yr old kills himself, Record Co and Ozzy are not liable cuz Brandenburg advocacy model is applied to normal tort claims and treated as if it were advoacacy…CD came out 3 yrs ago and now someone dies, not C and P danger, in absence of intent, incitement, and C and P danger then no liability. ** So political speech / advocacy standard c and p w/ intent w/ incitement analysis = a close to complete right to speech, broad definition of advocacy but u cannot depict stuff so that it violates Brandenburgh or obscenity law. PIGEONHOLES ways to get around Brandenburg (threats and teaching speech). A) Threats all lower court context, there is immediacy in threats as soon as it is made, once u make the threat then it will immediately change the target‟s behavior in response to the threat. (hard to figure out why a lot of these are not NAACP case though). Lowers base it on Watts LBJ in my sights, USSC what he said was not a “true threat” which is not protected by 1st, USSC has never revisited this but the lowers define what a “true threat” is in different ways. 1) 9th circuit: Planned Parenthood v. American Coalition of Life Actvists (Nuremburgh files case): antiabortion website w/ doctors and judges names on it and what not, sued in civil threats stat in Oregon. 9th this is not Brandenburg or NAACP v. Clairborne cases, they said in the NAACP case that the USSC held only that the speech did not incite violence and did not arise under a threat statute (Gey says this is wrong). Our standard for a “true threat” an objective standard of whether a reasonable person would foresee that a statement would be interpreted by those to whom the speaker communicates the statement as a serious expression of intent to harm or assault. (seems u just throw it to a jury). View this from the shoes of the SPEAKER (perhaps speaker could have known about an eggshell target or something too). No intent req‟ment really, no real imminence, no immediacy, and no c and pd either. LEAST PROTECTED STANDARD. (11 th circuit has referred to this standard but no one else has adopted this full cloth). (dissent said treat this like NAACP v. Hardware case). 9th standard adopted by 8th circuit in Doe v. Polazski case JM and KG broke, he writes rape fantasy and puts it in draw, friend reads it, tells the girl, girl asks about it, he tells
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her, friend then stole it and gave it to her. 8th said JM intended to communicate the letter cuz he let the friend read w/ knowledge that she would probably find out. OR 2) Most often used – US v. Kellner – 2nd circuit Kellner had a press conference and was there w/ military fatigues and a gun, said we are planning to assassinate Arafat, everything is planned in detail, it will happen, it is gonna go off. Arrested for threat to kill Arafat. 2nd upholds conviction under more protective standard than the 9th the 2nd‟s standard = so long as the threat on its face and in the circumstances in which it is made is so unequivocal, so unconditional, immediate and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution then it is a “true threat.” (so an incitement req‟ment as to the target, c and p element as it has to be immediate and imminent, and intent element cuz u must convey a gravity of purpose). This comes very close to a Brandenburg style standard. Some additions must have a communicated threat to person whose behavior u are trying to change 3) 6th circuit – US v. Alkhabaz pretty protective too but it distinguishes threats from political speech. Grad student at UM, series of stories on net, used name of a female student in his class, cops got his harddrive and prosecution was not for the story but for the emails they found. Emails sent from Alkhabaz to a Ghonda where he said I will knock her out/abduct her/ make her suffer / rape her what do u think. No specific dates or times or anything. The emails referred to “a girl” so not specific. 6th adds to Kellner (2nd circuit standard) he was prosecuted for threats but a threat has a particular purpose to change the behavior of the target of the threat (in advocacy u look for imminent prospect of a riot or something) but a threat is to change one‟s behavior. Problem here is that these peeps never communicated any of this stuff to anyone but each other. And since they did not communicate the threatening info to targets then this is not a threat so u never get to a Kellner analysis. The 6th cites Kellner favorably but never gets to use it. **Everyone just assumes kellner is the standard, but do not forget the alternative. USSC NONSENSE Virginia v. Black VA stat prohibits peeps burning crosses in public in a way that intimidates peeps on basis of race, state prosecutes two situations: 1) head of local klan coven burns cross on hill on private prop, sheriff asks who is responsible, busted. 2) neighbors who are white burn cross in black neighbor‟s yard, busted under same stat. i) USSC O‟Connor writes opinion which is a mess. She describes the history of the Klan who uses cross as intimidation. She says that “intimidating speech” is a subset of “true threats” (which she nor the court has ever defined). Regarding situation 1 REVERSED on basis of intent and says that this is political expression absolutely protected until u satisfy Brandenburg (so if u are intimidating a group as a whole then gvt must satisfy Brandenburg to get them). Regarding 2 can be prosecuted (under stat intent was presumed but this part was struck down), remanded, requires some individual I guess. B) TEACHING SPEECH 1) Rice v. The Paladin Enterprises (1997): 4th circuit case. The Hitman a technical manual for an ind contractor “for information purposes only.” Killer had copy in his hotel w/ little tabs on it. (Gey says the whole book is just common knowledge, if so dangerous why is it available for free at 4 th circuit website). ? is whether book is protected under the 1st? i) 4th circuit guy who ran Paladin stipulated that he intended to attract and assist would be criminals and also intended and had knowledge that thru publishing and selling it he intended to assist this particular guy!!! So even if Brandenburg applies then he just satisfied it. Then ALL DICTA the standard for teaching speech (not advocating illegal conduct, but teaching how to do illegal things), 4th said Brandenburg DOES NOT apply to teaching speech, in Brandenburg the court held ONLY that mere abstract principles of teaching and advocacy were protected. MERE ABSTRACT TEACHING = Brandenburg, but 4th says that MERE TEACHING is governed by nothing more than the standard reasonable person analysis (so it goes to jury as to whether publisher was negligent). MERE TEACHING VS MERE ABSTRACT TEACHING!!!
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U can bankrupt the publisher if jury agrees w/ you (no idea what difference is b/w mere teaching and mere abstract teaching). *(Gey thinks all this stuff is protected cuz info wants to be free, how do u suppress some info in some situation but not others (chemistry class) this is kinda like Douglas dissent in Dennis, we are talking about protecting info here and not about protecting behavior ). 2) BUT see 9th circuit McCoy v. Stewart guy visits friends at AZ cookout, they ask how to run gangs in CA, he tells them about tagging / graphetti, iniation, advice on running gang efficiently. Prosecuted under AZ gang stat. 9th this is Brandenburg, we think all teaching speech is advocacy, no showing of intent/no action words/no c and p danger. Guy walks. (think of in Gitlow when Holmes said that give me five minutes and a dictionary and I will get past your incitement standard, not to tell u how to do it but this is how I would send a car to hell, “the only difference b/w the expression of an opinion an incitement in the narrower sense is the speaker‟s enthusiasm for the result. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way). So Rice = pro-gvt standard……McCoy = pro-speaker standard. McCoy went up on cert to USSC and Steven‟s said that while the req‟ment that the consequence be imminent the same justification DOES NOT APPLY to speech tat performs a teaching function!!! (so at least one justice does not think that Brandenburg controls teaching speech)…if u take away the imminence req‟ment then it allows the gvt to prosecute teaching speech even if nothing bad is happening w/ it.
Another Variation on ADVOCACY Theme 1) Cohen v. CA (1971): This is form vs content. Guy in courtroom that said “fuck the draft.” Arrested and thrown into jail. i) USSC Harlan II writes the opinion (a judical restraint guy but if he saw a con right he would enforce it to the utmost). A) CA said this is unprotected cuz it is obscenity. Court NO, For obscenity the speech must be prurient (prurience was legally defined in Miller v. CA as something that causes itching and longing in sexual way), patently offensive, and lack serious literary, artistic, or political value. So this is not legally obscene. B) CA says this is fighting words (u are not con protected to say anything that is the verbal first blow in a fight), Court no one is figting this guy, u do not satisfy the immediacy component. C) CA well this is a hostile audience case (arrested if u are instigating a hostile audience and instigating peeps rushing the stage). Court where is the audience and why are they hostile. D) CA says well this is a captive audience case then, court there is no such thing as a captive audience outside the home, the state has no authority to base a restriction on speech outside the home (gvt can regulate some speech going into the home reasoning that u should have some way to get rid of or avoid the speech – to do this gvt must show a privacy interest where the speech is intruding into the home). You live in a free society and if u go outside then u WILL hear stuff u do not like. ii) USSC can state acting as guardians of public morality regulate this? NO, CA cannot decide that one word or a group of words are impermissible!!! One man‟s vulgarity is another man‟s lyric. Form and content are EQUALLY protected. Cannot regulate the form of speech any more than gvt can regulate the content. The con protects both the underlying ideas AND the form/fashion. He chose the word “fuck” to be aggressive and over the top and it was not just content, it is that he does not like the draft so much that he uses this bad word. There is a difference b/w saying things politely and the expressive force that comes w/ vulgarity; sometimes that kind of language is intended to make peeps mad. 1st protects emotive value of speech to the same extent as the rational content. A truly free society gives u the right to talk back to a cop Brennan for majority USSC (Houston v. Hill). Guy busted, but guy on sidewalk says hey pick on someone your own side and he was arrested for obstruction of undertaking the duty of a cop.
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OVERBREADTH / FIGHTING WORDS / VAGUENESS DOCTRINES In 1st amendment doctrine u are given some very plaintiff friendly procedural mechanisms to use against the gvt. A) Overbreadth Doctrine – in general u are not allowed to challenge statutes on their face, in general u are ONLY allowed to challenge as applied to your particular facts, so if u win an as applied challenge then u get an injunction that what u did cannot be prohibited by a stat. The 1st is different!!! U have the overbreadth doctrine where u can challenge stats on their face and if u win then the whole statute goes away. Challenge the stat as facially overbroad as the stat purports to prohibit speech, a substantial portion of which is con protected. (e.g. state passes stat saying NO interstate transport of mags w/ naked pics). Rationale to avoid “chilling” effect; if u have a stat that says no nude pics then it will chill peeps who want to speak in a way that involves using nude pics. Plus cannot chill peeps from exercising speech that they have a con right to. 3 significant limitations!!! 1st limitation substantially overbroad Broadrick v. OK USSC “we believe that the overbreadth must be real and substantial as well” SO to hold stat overbroad u must have a stat that is SUBSTANTIALLY overbroad. Most of the courts have settled that this is a stat that purports to prohibit a substantial amount of things that are fine. (give judge a bunch of examples, significant number of things that clearly falls in the coverage of the stat that are actually con protected). Need a bunch of examples, but as soon as u do this then stat is uncon. 2nd limitation Standing Rules counterintuitive Brockett v. Spokane Arcades if the p is engaged in con PROTECTED speech then all the p has is an AS APPLIED CHALLENGE!!! He gets an order saying u cannot apply this stat to that guy and that is all he can do. BUT if u have a p who is engaged in UNCON speech then that p can raise a facial overbreadth challenge and if he wins then the whole stat goes away!!! (so this is a rare example of some sort of 3rd party standing cuz he is doing something uncon but is actually protecting all those engaged in con protected speech who fall under coverage of the stat) clearly this limits challenges!!! Must find a really bad p to get the whole statute struck down. 3rd limitation Osborne v. OH court can narrow the stat so it is now con!!! *court read a lewdness / lascivious (exciting sexual desires) into the stat and put it in!!! Arrested guy for possession of pics of nude kids. Court said the guy can be convicted on our narrower reading as long as 1) the guy had to be on notice that this limitation was part of the stat (here that is no surprise to anyone that lascivious pics would be fine). 2) jury that convicted him had to be informed of the limitation. (here judge at lower rd it as written) so this guy walked. ****so court can fix it themselves, or the court can tell the legis to do their job. END HERE!!! B) Vagueness Doctrine A due process claim, u are raising a due process challenge to the stat. Court likes to says that a vagueness challenge takes on a higher magnitude when u are attacking a statute relating to speech. Requires a stat to define the regulated speech w/ sufficient clarity that a reasonable person can understand what is prohibited and defined it in a manner that limits arbitrary or discriminatory enforcement. So u try to protect speaker by giving him awareness of what he can do and u try to limit the cops too. Kolender case: u litigate these cases by having a lot of counter hypos. Chicago stat did not says what loitering meant or what is a gang member, if there was a mens rea etc. i) court struck down cuz person being regulated does not know what he is supposed to do, and police do not know who they are supposed to arrest as u cannot arrest everyone. **so lots of counter-hypos and u bring a vagueness / overbroad challenge where u say the stat is vague and the states says no it is not it means what is says and then u have them on overbreadth. C) FIGHTING WORDS A standard that applies in one to one confrontation (individualized speech) and the confrontation prolly has to be physically proximate and the words have to such that the words constitute the first blow of a fight (so kinda a contextual thing).
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ALWAYS CITE Gooding v. Wilson (1972): an overbreadth case, GA during anti-Vietnam protest, d says to one of the police that I will cut u, hit u etc. Arrested under GA stat saying anyone using abusive words tending to be a breach of the peace. i) USSC Brennan gets around it by using overbreadth, he finds cases interpreting this GA stat, so Brennan says well none of this stuff u think are breaches of the peace and if this is what GA thinks the stat means then the stat goes away. But reference to Chaplinsky “those words by their utterance inflict injury or incite immediate breach of the peace.” Court never has used the 1st part so Fighting words are words that incite the IMMEDIATE breach of the peace. Those words that in essence are the 1st blow in a fight. Grant / Vacate / and Remands coming from Gooding v. Wilson 1) Rosenfield v. NJ school board meeting, person uses bad language audience of 100 adults and 40 kids. Said noun mother fucker 4 times, arrested for breach of peace. Lower court on remand there were kids and who is gonna hit him, so the kids helped him cuz it moderated the crowd. 2) Lewis v. New Orleans cops arresting appellates son, mom said GD Mother fucking police, arrested her. Lower court on remand not likely to start a fight w/ this cop, she used strong words but u are a cop and u should have thick skin regarding verbal confrontations, u are a cop and she is a mom and there is not gonna be a fight. 3) Brown v. OK black panthers speech, speaker curses at cop near him, cop waits til end of the talk and arrests him for breach of the peace. Lower overtuned u a cop and must have thick skin, also not w/n hitting distance and he did not arrest u immediately, so kinda a time-frame analysis where if u wait too long then the words have to go away (the words in the context would serve as the first blow of a fight). So a very narrow analysis. PRIOR RESTRAINTS Time, place, and manner regulations are fine this is NOT content based regulation by the gvt. CONTENT -- BUT w/ speech based on CONTENT very hard to regulate. A regulation based on content is a regulation based on an ENTIRE subject matter (no speech on anything about abortion, pro or con). Content regulation is USUALLY per se uncon but has some exceptions and those are laid out in R.A.V. case. VIEWPOINT -- GENERAL RULE the gvt MAY NEVER regulate speech based on viewpoint (one perspective of a subject). Viewpoint regulation = per se uncon. R.A.V. v. City of St Paul: Court says there are three exceptions but there are 4 really to general rule that content regulation is per se uncon. Here a MN hate stat that said if u displayed a burning cross or swastika or other symbol that you know or have reason to know “arouses anger, alarm or resentment in others” on the basis of race, color, creed, religion, or gender. Teens burn cross in neighbor‟s yard. CASE DOES NOT HOLD THAT BURNING A CROSS IN SOMEONE ELSES YARD IS PROTECTED SPEECH. This was a facial challenge to the statute. MN argued this was a regulation of unprotected fighting words, but the problem was that the ordinance is not limited to the narrow range of speech that immediately causes a fight. USSC ALL 9 say ordinance is UNCON, but they split 5-4 on why it is uncon!!! 4 concurring this is uncon because the MN SC did not limit the stat to deal only w/ fighting words (so an overbreadth claim). Anger, alarm, or resentment are not fighting words. 5 – Scalia (majority) Let‟s assume MN did limit the stat only to fighting words IT WOULD STILL BE UNCON!!! The reason is because the stat did not regulate ALL fighting words but instead it only pertained to a subset of the category of fighting words based on race, color, creed, religion, or gender (it did not cover the whole gamut of fighting words). Scalia says there are three exceptions, but really there are 4…when gvt may regulate speech based on CONTENT… 1) this is self-evident (Scalia left it out) there are certain types of content that can be regulated by the gvt cuz they are outside the 1st (e.g. advocacy speech if it satisfies Brandenburgh, “true threats,” obscenity).
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(gey thinks obscenity laws died w/ Lawrence v. TX end of moral regulation. But for obscenity cite to Miller v. CA (1973) and Paris v. Adult Theatre (Atlanta). 2) may regulate if they regulate a sub-set of an unprotected category of speech which represents an especially egregious examples of the unprotected category. He gives three examples. i) gvt could pass a stat that regulates an especially odious form of obscenity like bestiality, cuz gvt is regulating sexual explicit speech that is obscene involving animals which is worse than general regulation of explicit speech that is obscene (subset is even more prurient / patently offensive / and really lacks any serious artistic value). If so then gvt can regulate the sub-set. Here in MN there is no instance these kinds of fighting words would create a worse fight. ii) presidential threat statutes that assigns higher punishment if u threaten prez cuz that threat is worse in terms of consequences than other threats, (do not go to work, change behavior, worried, paranoid), this is worse if it is prez than a regular person). iii) state may choose to regulate price advertising in one industry but not in others, cuz the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of FULL 1 st protection) is in its view greater there. But a state may NOT prohibit only that commercial advertising that depicts men in a demeaning fashion…. 3) secondary effects gvt may regulate if the secondary effects attached to that speech are different than other types of speech (e.g. adult theatre zoning regulations – of course the theatres are protected by the 1st, but here the gvt regulates because of the stuff that goes w/ the content). 4) Blue-eyed actress exception where there is no real threat of official suppression of ideas then the gvt may regulated speech (no idea what this means). “We cannot think of any 1st interest that would stand in the way of a State‟s prohibiting only those obscene motion pictures w/ blue-eyed actresses.” So here regarding content regulation stat fails cuz this subset of speech is not a worse kind of fighting word than fighting words in general. Regarding viewpoint regulation stat fails cuz u could use a burning cross/swastika to argue AGAINST racism or religious bigots, but Nazis could not use it to fight against you. (so it is a viewpoint regulation). FLAG BURNING TX v. Johnson, Ikeman v. US --> Scalia concurring, flag-burning is a speech and it sends a message, let them talk. MOTIVE Wisconsin v. Mitchell (1993): court goes in a different direction, watched MS Burning and sitting on porch, white guy walks by and black teen ask do u want to beat him up, they beat him up (coma), and all arrested for assault and battery. Mitchell had his sentenced enhanced by 5 yrs cuz stat gave an enhanced penalty if victim is intentionally selected cuz of race/relgion/color/ancestry/disability/sexuality. USSC 9-0, court says this is not speech at all, he was convicted of the conduct of assault and the enhancement was basically his motive, an impermissible motive and not intent cuz intent has to do w/ what u do. Court says once u commit the crime then ur motive is fair game w/o the 1st coming into play at all. SEE ALSO: Fla case black arrested by white cop, “get hands off me cracker”, resisting arrest enhanced….MLK arrested for trespass at GA lunch counter, judge gives him a month cuz we do not like u raising hell here….Earth First Group chains selves to bulldozer, jury gives compensatory damages for interfering w/ biz and punitives of 2 million. (Gey thinks this is just as uncon as R.A.V) BUT argue on exam that if u hold Wisconsin case stuff uncon under the 1st then u kill of Title 7 perhaps….Title VII discussed in Wisconsin case makes it unlawful for an employer to discriminate against employees because of such individual‟s race, color, religion, sex, or national origin. We rejected the argument that Title VII infringed employers‟ First Amendment Rights (see Hishon v. King & Spalding 1984). In title 7 u punish a conduct (discrimination in employment) but that is too based on motive (an idea concerning race). I do not know how u reconcile the two.
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Obscenity see Miller v. CA whether the average person applying contemporary community standards would find that the work taken as a whole appeals to prurient interest, whether the work depicts in a patently offensive way sexual conduct that is specifically defined by state law, and whether the work taken as a whole lacks serious literary, artisitic, political, or scientific value…the lacks serious stuff is based on a reasonable person standard (see Pope v. Illinois).
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