Constitutional Law II-Professor Ifill EQUAL PROTECTION A. Who‘s Acting? o State o Congress o Private Actors B. How does the statute disc riminate? o Facially Discriminatory o Facially Neutral C. What right is at issue? o fundamental right
I.
Race History
A. 1865-Thirteenth Amendment is passed-outlaws slavery§ 1--―Neither slavery or involuntary servitude, except as punishment of crime whereof the party shall have been duly convicted, shall exist w/in the U.S. or any place subject to their jurisdiction.‖ § 2—―Congress shall have power to enforce this article by appropriate legislation.‖ B. Civil Rights Act of 1866 is passed by Congress—conferred citizenship w/out regard to race or previous servitude (overturned Dred Scott); gave every citizen the right to: make and enforce ks, to sue, to purchase and convey land, enjoy = benefits and security. controversy over whether enforcement clause of the 13th Amendment gave Congress the right to pass the Act of 1866. (controversy over whether this is an exhaustive list of rights) led to… C. 14th Amendment (1868)-redefines citizenship and rights, contained the P & I clause, due process, and equal protection—directed solely at the states. § 1—No state shall…make or enforce any law which shall abridge the P or I of citizens of the U.S.; nor shall any state deprive any person of life, liberty or property w/out due process of law; nor deny to any person w/in its jurisdiction the equal protection of its laws. §§--2-4—not pertinent to race stuff § 5-The Congress shall have power to enforce this provision w/ appropriate legislation. (Enforcement clause) D. Civil Rights Act of 1870 (1866 Act + criminal penalties) E. 15th Amendment passed (1870)
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§ 1-The right of citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any state on account of race, color, or previous condition of servitude. § 2-Enforcement Clause F. Slaughter House cases (1873) – says that civil war amendments not meant to grant US citizens broad protection against the actions of state govts, shifting the focus away from the P & I clause to Equal Protection; characterizes the drafters‘ intent in passing the 13th amendment as r/t freeing slaves, security of freedom, and protection from oppression, says that it applies to all races; says that 14th amend is primarily focused on blacks G. Civil Rights Act of 1875-forbids discrimination in public accommodations.
Supreme Court Defining Citizenship under 14th Amendment [Civil War-1870‘s]
A. Strauder v. West Virginia (1879): 1. Black criminal convicted by an all-white jury claimed an e.p. violation b/c state of W.V. prohibited blacks from sitting on the jury (affirmative state law, not inaction of the state). 2. Sup. Ct. says this is a right of citizenship (political) and 14th Amendment created to reduce unfriendly legislation that implies inferiority – says that blacks are entitled to all of the same rights as whites B. The Civil Rights Cases: (1883): 1. 5 consolidated cases involving criminal and civil penalties under the Civil Rights Act of 1875 which forbid discrimination in public accommodations; blacks excluded from hotels, theatres and railroads; issue: was congress‘ passing of Civil Rights Act of 1875 a valid exercise enforcement rights under 13th or 14th Amendment?? 2. Under 14th Amendment: ‘argued that the Act was valid b/c these rights are part of ―citizenship‖ rights guaranteed by the 14th Amendment; therefore, Congress can pass legislation to protect them. Ct. denies this claim—this is an affirmative attempt to make rules for the conduct of individuals in society (not state actors); 14th amend not so broad that it can reach into private discrim 3. Under 13th Amendment: Ct. says 13th was designed to regulate slavery and to give Congress the rt. to eradicate it; this is not a badge of slavery b/c even free blacks were discriminated against. 4. Ct. says the appropriate remedy is to sue in state ct. and seek state remedies. 5. Harlan dissent: exemption from race and discrimination is a right of citizenship, so 14th Amendment is valid; also, this is a badge of slavery, so 13th Amendment is valid too. 6. Overall: E.P. clause regulates states only; ―state action‖ will be narrowly defined; Ct. looking for affirmative action, passive activity is not enough; enforcement clause of 14th Amendment is limited to
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redress of state action (ct. can be reactive only, can‘t step in and affirmatively regulate an area held by the state [federalism concerns]; and enforcement clause of 13th reaches ―slavery‖ only. C.Yick Wo v. Hopkins (1886): Discriminatory administration of a facially neutral law 1. A San Fran ordinance that required that a laundry operator had to have Bd. consent if their building was made from anything but stone or brick; operated a laundry in a wooden building and was imprisoned for not getting Bd. consent (Chinese citizen) All 200 Chinese who applied for consent, were denied; claims e.p. violation under 14th Amendment b/c administration of the licenses was regulated by the state. (State‘s rationale: to protect against fire) 2. Statute is facially neutral but argues that must look at it ―as applied‖, and the administration of the statute is discriminatory. 3. Sup. Ct. extended protection of 14th Amendment to any person w/in the territory (Chinese not citizens) 4. Ct.--is facially neutrallook at intent or effects, Ct. finds that effects are so egregious that intent in insignificant (no matter how innocent the intent may have been) 5. Very few cases are the effects egregious enough to ship the intent analysis.
1896-Plessy v. Ferguson: Ct. defines outer perimeters of citizenship.
D. Plessy v. Ferguson (1896): SEPARATE BUT EQUAL 1. LA statute that required railway cos. to provide ―separate but equal‖ accommodations for blacks and whites; claims 13th and 14th Amendment, but Ct. looks at 14th; only 1/8 black (test case) 2. Themes – struggle between court and legislature, state and fed govt, public and private; What is equality? olitical, social, civil; How do we define citizenship? 3. Surely considered a state actor; Ct. defers to state in instances where state tx acts EXCEPT when state acts ―arbitrarily or unreasonably‖(ct. willnot intervene in social rights)Ct. finds the statute at issue in this case to be reasonable b/c it promotes comfort and the preservation of peace. 4. 13th amend arg focuses on what are badges or incidents of slavery 5. 14th amend arg focuses on what it means to be a citizen and equal 6. Result of majority‘s decision – narrows the definition of citizenship 7. Harlan dissent: resurrects Strauder language-does it imply inferiority?look at intent of statute to determine if the intent of the separation is to imply inferiority-he finds that the statute reinforced the subordination of one race—meant to keep blacks out of white car, not vice versa. ―Our constitution is color-blind‖ and this is a political right. 8. Majority says this is consistent w/ Strauder b/c the separation was merely a distinction, it did not imply inferiority (can still ride the railroad); also says that Strauder involved a political right, and this only involved a social right 3
9. After Plessy: 2 options: (1) attack the facilities as inequal or (2) attach segregation as unconstitutional per se because it always implies inferiority) E. U.S. v. Carolene Products (1938): 1. Case is really about the regulation of milk; ct. upheld the constitutionality of a federal statute prohibiting the interstate shipment of filled milk; reduced the degree of judicial scrutiny applicable to economic regulation but suggested a new role for S. Ct. in protecting ind. Civil liberties. 2. In dicta: FN 4: judicial inquiry needed to examine/review the statues that are aimed at ―discrete and insular minorities‖ that are aimed at curtailing their use of the political process, which is the preferred method of effectuating social defendants and their personal rights. 3. Discrete and insular minorities a. Discrete – recognizable/identifiable characteristic b. Insular – groups that keep to themselves b/c of racial or ethnic hostility; inability to form important alliances 4. Suggests that judicial deference to statutes is based in part on a presumption of a fair political playing field but these discrete and insular minorities are not able to create alliances to take part in the political process-rendered politically powerless; meaning identifiable and recognizable (immutable) and in one area. 5. Strict scrutiny is appropriate where a group lacks access to the political process 6. Should apply strict scrutiny and strike down leg. that violates specific const. prohibitions esp. under 14th Amend;
S. Ct‘s considerations up to Brown:
Rts at issue: social, political, civil Plessy: social Strauder: political Yick Wo: strange e.p. case (economic) Civil Rts. Cases: public accommodation—social, political Who’s bringing the claim? Citizen v. non-citizen: Yick Wo: race doesn‘t matter, citizenship does; Plessy (Harlan dissent): color-blind constitution Race-white v. non-white: Strauder Reasonableness v. arbitrary state action: Yick Wo: facially neutral statutes can violate e.p. if effects are sufficiently egregious Intent Strauder: does the intent of the statute imply inferiority Nature of the State Action Civil Rts. Cases: must be remedial against an affirmative state action; Strauder: aff. state action The Road to Brown: NAACP and Marshall attacking higher education as not equal; tactic judges understand prof. School; manageable set of cases;
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easier to highlight differences in resources; involved a group of blacks who had already proven that they are over-achievers (only a few blacks) Missouri ex rel Gaines v. Canada (1938): Gaines was a black citizen denied admission to MO state law school; MO offered to pay him to go to an out-of-state law school S. Ct. held that state must provide an in-state law school for blacks if they have one for whites-okay to separate them but must be in the state-denial of same privilege to go to law school in state that whites have based solely on their race Remedy: MO created a law school for blacks at Lincoln University. Sipuel v Bd. of Regents (1948): Ct. struck down OK‘s failure to provide a law school for blacks (they said they were building it)-OK complied by roping off an area in the Capitol for her and she is the only person who attended. Murray v. Pearson (1936): Murray wanted to go to MD law school, statute would give money to go out of state; testimony is important—the value of law school comes from networking in the state (grounds for sep. is not equal); Marshall wins; Ct. of Appeals upholds, saying that equal privilege must be extended to blacks but can be achieved by separate facilities within the state Sweatt v. Painter (1950): Sweatt wanted to go to UT Law School; TX decided to build a law school instead of admitting him to the already existing one; Marshall challenged the equality issue; brought dean of law school to say integration amongst students, participation (all intangibles that makes it inherent that sep. cannot be equal) Sup. Ct. held that separate law schools cannot be equal b/c of ―those qualities that are incapable of objective measurement,‖ ensuring to use narrow language to avoid overturning Plessy McLaurin v. Oklahoma State Regents (1950): Marshall thought this would be the case to overturn Plessy; once admitted to all-white Univ. of OK, cannot then be forced to sit in segregated areas of classroom, cafeteria or library, ct. decided on narrower grounds. How do we make the leap from higher education to public education?? Need to got S. Ct. to appreciate that education is a fundamental right that deserves strict scrutiny, Marshall‘s sep. cannot be equal args. were failing to get the ct. to discuss this. Marshall changes his args. to separation is per se unconstitutional. Korematsu v. United States (1944): an American citizen of Japanese decent-convicted of violating a civilian exclusion order aimed at all persons of Japanese decent Majority sets forth its constitutionality analysis:
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(1) recognizes that statute is discriminatory on its face based on race and therefore immediately suspect (all legal restrictions on the civil rights of a single racial group) and subject to rigid scrutiny. (2) Such statutes are not immediately unconstitutional (3) Subject to rigid scrutiny (FN 4-Carolene) (4) Sets forth circumstances where overtly discriminating statutes are permissible (justifiable and constitutional) ―Citizenship has its responsibilities as well as its privileges, and during time of war, burden is heavier.‖ Ct. gave great deference to military issues and b/c during war time. (compelling gvpt. interest) The last time the S. Ct. upheld a racial classification that disadvantages a certain group.
1954 - Brown v. Board of Education: Things to think about: judicial decision-making and the ability to
depart from stare decisis; ct. relies in part on social science and empirical data; ct. makes an announcement that it expects will be followed by states in a fx that is tx controlled by the states. 4 cases consolidated; some directly raised Plessy - that sep. is not =; and some raised arguments that ct. had already started own the path that some rights not previously enumerated were entitled to protection against e.p. violations and public educ. should be done too o Did 14th Amendment contemplate public education— enumerated many rights but did not include public education Argument 1: sep. cannot be equal: Ct. held that segregation of public schools denies minorities of e.p. guaranteed by the 14th Amendment. Used empirical data of the dolls that black children in segregated schools feel inferior (note: Strauder)-generates and perpetuates feelings of inferiority (stigma) and noted effects of intangible differences (Sweatt; McLaurin) Argument 2, segregation is unconstitutional per se: Warren says intent of 14th Amendment could not have addressed public education, but education now is ―the most important fx of state and local gvpts. and the foundation of good citizenship.‖ 2 ways to look at Brown: just about education or has broader sense? REMEDIES Brown II – deals w/ question of appropriate relief and implementation o Court remanded with direction to fashion an equitable relief, namely injunctions requiring school boards to make a prompt and reasonable start towards full compliance with Brown I; instructed lower courts to maintain jurisdiction over the litigation and enter any orders or decrees as necessary and proper to admit public schools on a racially nondiscriminatory basis with ―all deliberate speed‖
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o Implementation in the south failed during the first decade; many school systems closed down rather than integrate; many just ignored or defied the decision Bolling v. Sharpe (1954) FACTS: segregation in DC public schools; under control of federal gvpt; argues violation of 5th amend. and Due process rights HOLDING: classifications based solely on race must be scrutinized with particular are b/c they‘re against our traditions and constitutionally suspect; the DC system imposes a burden that constitutes an arbitrary deprivation of their liberty in violation of 5th amend. Due process clause; imposes same duty on federal gvpt as on states REMEDY: injunctions requiring the school boards to make a prompt and reasonable start towards full compliance with Brown IMPLEMENTING BROWN Cooper v. Aaron (1958): FACTS: Governor and legis of AK claim there‘s no duty on state officials to obey federal courts orders in Brown HOLDING: SC holds that federal judiciary is supreme in explication of the law of the constitution, therefore interpretation of 14th amend. Enunciated in Brown is supreme law of the land and has a binding effect on all states Swann v. Charlotte-Mecklenburg Bd of Ed (1971): FACTS: challenged a trial judge‘s adoption of the ―Finger Plan‖ developed by the court appointed expert which rezoning and busing, using racial quotas; HOLDING: SC uphold the district court‘s plan but explains that there first must be a showing of liability (foot-dragging to compliance), then the trial court will be given broad discretion in fashioning an appropriate remedy Court says that the existence of a school primarily or totally of one race in a school system is not evidence of segregation imposed by law, but there is a presumption against such schools if the district has a history of such segregation Milliken v. Bradley (1974): FACTS: involving interdistrict (between white suburban and black urban) busing in Detroit school system ordered by district judge to achieve greater racial balance HOLDING: Court struck down the busing b/c it is only justified when racially discrim. Acts of the state or local school districts, or of a single schools district have been a substantial cause of the segreg. REMAND: district judge ordered massive reform of the inner-city system, incl remedial programs, counseling and career guidance, SC affirmed the order, holding that remedial orders may incl expenditure of state funds
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Freeman v. Pitts (1992):
FACTS: continued segregation in the Dekalb county school system was caused by changing residential patters, called ―white flight;‖ lower court directed district court to consider the aggressive remedies used in Swann to remedy the continued segregation HOLDING: school system only has a duty to remedy racial imbalance which is attributable to their own actions not those due to private actions; school system beards burden of showing that any current imbalance is not traceable in a proximate way to the prior violation; beyond the authority of the federal courts to counteract private choices of massive demographic shifts Modern Equal Protection Analysis: A. The Requirement of Discriminatory Intent- based on idea that states no longer tend to pass facially discriminatory statutes, so courts must look beyond the language 1. Is impact enough? a. Yick Wo and Gomillion (gerrymandering case): the Court suggested that where impact is sufficiently egregious, discrim. Intent can be inferred – no longer followed b. Fletcher and Palmer (swimmingpools) suggest 3 reasons why intent alone is not enough, but must be combined with effect i. Deference to legislature ii. Evidentiary problems iii. Remedial problems and judicial futility c. Washington v. Davis (1976): finding intent FACTS: DC police dept was rejecting applic. from blacks; alleged racial discrim. in hiring practices b/c of the use of a test which a greater proportion of blacks failed HOLDING: holds that the test here was neutral and valid because it was rationally related to the government‘s legitimate interest; court does not apply strict scrutiny because they do not find discrim intent present, and discrim intent and impact is required to trigger strict scrutiny; court is also concerned about the slippery slope involved in invalidating statutes such as these; Laws that are facially neutral and that rationally serve a permissible govt end do not violate EP simply b/c they have a racially discriminatory impact DISPROP IMPACT NOT ENOUGH: court suggest that intent can proven by circumstantial evidence and inference, but disproportionate impact alone is not enough, showing of discrim impact may support an inference of discrim purpose which may then be rebutted by the govt d. Arlington Heights v. Metrop Housing Dev. Corp (1977): FACTS: MHD applied for rezoning permit to build low income homes for mostly racial minorities STD for Proving Discrim Intent:
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i. Impact ii. History of decision iii. Specific sequence of events leading up to the challenged decision iv. Departures from ordinary procedural sequence v. Legislative or administration history APPLICATION of the std: All five factors do not have to be present, they must be looked at as a whole trial judge has discretion impact is probably required b/c that shows injury burden shifts to defendant/decisionmaker to show that the same decision would have resulted even if the impermissible purpose had not been considered CONSEQUENCE: If these factors point towards discrim intent, the strict scrutiny is justified, if not, then rational basis e. Personal Administrator v. Feeny (1979) Court requires a showing that decisionmaker acted at least in part because of a desire to harm a protected minority, not just that they could have foreseen the harmful effects B. Theories of Constitutional Decision-Making: By what method should the SC give meaning to the Constitution? 1. Originalist – focuses on original intent of the Constitution and its Framers a. Textualist- focuses on the words as written; reads the text in light of the entire document, overall constit. Principles (i.e. if one part of constit. Contemplates an idea, another can not prohibit it); favors using a contemporary dictionary; how was the language intended by the framers b. Original Understanding (Judge Bork) – would look at framers‘ debates and federalist papers; also look at newspapers from the time to see how it was understood at the time of the law‘s enactment; meant to ensure neutrality c. Purposivist (Bickel) – requires that two inquiries be made (1) what was Congress‘ understanding of the immediate effect of the enactment on conditions then present?, (2) What thought was given to long-range effect? d. Problems with these methods: i. Counterfactual – most issues of constit interp are speculative b/c of changed circumstances that framers could not have anticipated ii. Aggregation – difficulty in determining the intent of the decisionmakers b/c so many people involved; there was no one intent
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iii. Levels of intent – too difficult to look at specific intent; what about general intent, is that enough? 2. Proceduralist / Legal Process Theorist a. Wechsler criticizes Brown for being too results oriented and b/c the Court failed to articulate a neutral principle for interp the EP clause; says that actual issue in Brown is freedom of association b. Proceduralist – based on notion that the original constitution was principally based on concerns of process and structure, not on the identification and preservation of specific substantive values c. Ely‘s Representation Reinforcing Approach (2-part test) i. Are the ins blocking channels of change or liberation (ex- voting laws, grandfather clauses) ii. Are representatives of the majority systematically disadvantaging some minority because of hostility or prejudice (FN 4 – lack of access to the system) iii. Assumes that when the system malfunctions, the judge must become involved as separate from the political process to correct the inequities in the political system d. Public Choice theory – application of economic insights to political behavior; conflicts with Ely‘s theory b/c it recognizes different values associated with discrete and insular minorities which they believe provides them with greater access to political system 3. Evolutist – desire an approach that is more adaptable to problems of an evolving polity and more explicitly normative a. Ackerman – identified 3 important Constitutional moments (Creation, Reconstruction amendments, New Deal); sees post Lochner as such a big deal and as supporting the Brown decision b/c in increasing the power of the state to regulate individuals‘ actions, such that the state is acting affirmatively like in requiring education, the court can then look more critically at the state‘s actions b. Critical Race and Feminist Theories – challenges the idea of neutrality; says that certain perspectives were left out of the constitution‘s creation so that the voices that were heard (white males) are viewed as the norm c. Republican v. Liberal Theories i. Republican – civic virtue, common good, decision by consensus, checks and balances, values perspective ii. Liberal – focuses on access, political process r/t bargaining which produces winners and losers
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d. West‘s Progressivist Theory – believes that the real problem is r/t the unjust concentration of private power so that the 14th Amendment is not helpful because it does nothing to attempt to fix the private discrimination and even limits the ability of the state to take steps to eliminate private discrimination 4. Charles Lawrence‘s ―Unconscious Racism‖ – suggests that EP theories don‘t get us that far b/c not every discriminatory act/effect is the result of a conscious desire to discriminate D. When is private action sufficiently intertwined with the state that it can become part of state action to trigger the 14th Amendment? o Review of the Civil Rights Cases: where the ct. did not allow the triggering of the 14th Amendment to declare private action unconstitutional. Majority believed that enforcement clause was designed as a remedial device to correct state action only; did not accept ‘s argument that state‘s inaction in regard to entities receiving public $ is sufficient. Majority is concerned with slippery slope, where will it end if we hold individuals under the 14th; institutional incompetency argument— 10th Amendment says that if the power is not relegated to Congress, then it is w/in the state‘s power only. Harlan dissent: grating of citizenship rts. under 14th should make who‘s acting irrelevant, and when performing a public fx. must comply with the constitution, holding themselves out as public. o U.S. v. Morrison (2000): Sup. Ct. struck down provisions of VAWA which allowed litigation against private individuals; s argued that the provision could not be justified under 14th Amendment or the Comerce clause (that Congress had exceeded their law-making power)— raised the q of whether Civil Rts. Cases are still good law. Sup. Ct. said that there are still good law b/c Congress cannot regulate private action. o White Primary Cases (year): when state discriminatory actions are taken over by private actors-Nixon v. Herndon (1927): state regulation required segregation in political parties in TX; blacks could not vote in democratic primary in TX; strikes down the statute b/c TX grants the authority to the Exec. Comm. Of the Democratic Party to determine voting, the delegation of power constitutes state action. Smith v. Allwright: as long as state rules say that only primary winners can run in state election, the prohibiting of blacks to vote in dem. primary constitutes state action and violates the e.p. clause. Terry v. Abrams: Jaybird Dem. Assn. Functions as a state actor b/c is the only dem. party in that county and all candidates that are selected are endorsed by that group—therefore, state action. (very fact intensive inquiry) (little precedential value-―duck‖ test) o State action has been found when the state encouraged or reinforced private conduct that would violate the constitution of done by the state
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directly---Shelley v. Kraemer: (6-3) (1948): involved a racial restrictive covenant that will not sell to blacks for 5 years. A property owner sold to the Shelleys anyway, and the state ct. enforced the covenant. Ct. held that state cts. are included w/in def. of state action but for active intervention of the state ct. s would have been free to enjoy the property; court‘s enforcement of a private agreement constitutes state action sufficient to satisfy state discrimination required under the 14th amend Moose Lodge v. Irvis (1972): club member brought a black person who was barred from admittance; ct. concludes that there is not a proper nexus b/t Moose Lodge and the state. Court says that a private entity is not covered by the 14th amend when it merely receives any sort of benefit or service at all from the state or is subject to any state regulation Question is still what is considered state entanglement? What factors will the court look at? Burton v. Alabama: distinguished from Moose Lodge b/c the restaurant that discriminated was on state-owned property and leased to the restaurant. And, the parking garage owned by state adjacent to the restaurant, facilitated getting more customers. The cost to upkeep, maintain was from public funds. State could probably enact a statute that only gave liquor licenses to those clubs w/out discriminatory by-laws b/c has plenary power over liquor in the state o State can only regulate private action under the 13th Amendment: but only when it is out of its enforcement power against incidents or badges of slavery. Jones v. Alfred Mayer (1968): is the codification of the C.R.A of 1866 a valid exercise of enforcement power under the 13th Amendment? Ct. says yes-this is a badge or incident of slavery which 13th amendment was intended for (housing discrimination)—cts. give deference to Congress to determine what amounts to a badge of slavery—if not allow it under Commerce clause if it had ―Commercial overtones‖ Race E.P. Analysis: 1) State action? 2) From the enforcement cls. of which amendment? 3) What type of classification? 4) race and national origin---trigger strict scrutiny---in absence of compelling state interest and narrowly tailored means---race classifications cannot survive e.p. analysis.
Rational Basis---14th Amendment is supposed to protect us from arbitrary classifications—absent ―suspect‖ or some other classifications-you are entitled to ―rational basis‖
Railway Express Agency v. Inc.: NY prohibits advertising on vehicles unless it is on your own vehicle, and for your own company. 12
s argued that classifications are not rational b/c are not aimed at reducing distractions. And is a burden on companies that don‘t own trucks. Sup. Ct. applies rational basis: (1) valid state interest (articulated goal of the state—ct. usually accepts what the state says) (2) means are rationally related to the articulated goal. Ct. uphold the statute giving great deference to the state—state is in a better position than the ct. to make these factual inquiries.
Other classifications that may be worthy of heightened judicial scrutiny:
1. Alienage: if fed. is actingrational basis, feds have plenary authority over foreign relations, immigration, etc. BUT if state is actingstrict scrutiny (states have less justification for treating aliens differently. Plyler v. Doe (1982): Illegal Aliens--(rational basis)--are never a ―suspect class‖ b/c being illegal is voluntary not an immutable characteristic and its never irrelevant b/c state always has a legitimate purpose in controlling this. BUT children of illegal aliens may get rational basis plus b/c not accountable for their disabling status and in this case b/c its about education. Education is not fundamental, but the court recognizes that it is important b/c lack of education imposes a lifetime stigma on children 2. Illegitimacy: something more that rational basis has been applied to classifications based on parental statute intermediate scrutiny. Must be substantially related to an important gvpt. objective and means must be appropriate. Look more to means in these cases than the state‘s articulated purpose; Sup. Ct. has held that the encouragement of marriage is an important enough objective. 3. Age: rational basisct. is unwilling to apply any form of heightened scrutiny to age classifications. Why? Everyone gets old and they are not insular—they have disproportionate political power 4. Wealth: unclear, level of scrutiny is probably triggered by the right involved— most likely is rational basis unless education or something similar is involved. M.L.B. v. S.L.J. (1996): Ginsberg ruled that state could not constitutionally apply an appeals fee recognizing e.p. and due process issues. She considered ―the character and intensity of the individual interest at stake and the state‘s justification for its exaction‖—MLBs stakes were most severe and greatly outweighed state‘s financial interest. Thomas, Rehnquist, Scalia 14th Amendment is not a panacea for perceived social or economic inequity; it seeks to ‗guarantee equal laws, not equal results] San Antonio Independent School District v. Rodriquez (1973): FACTS: Π claims educational disparities b/t school districts- white school shave more money than predominantly Hispanic schools Ct. rejected district court‘s ruling that wealth is a ―suspect‖ class (b/c none of the traditional indicia of suspectness apply, like history of purposeful 13
unequal treatment or extreme political powelessness) and that education is not a fundamental right to trigger heightened scrutiny. Found that s made no effort to demonstrate that the state action operates to the disadvantage of indigent populations; those children are getting an ―adequate education‖—whether it is less than others is moot. Found that education is not a fundamental right (even though Brown says it is) because the focus is whether the right is explicitly or implicitly guaranteed by the constitution, there is no language that infers this; even though the court thinks that education is an important connection to citizenship Marshall dissent – thinks there is a nexus b/t explicit and implicit constitutional right; advocates for an approach that recognizes a spectrum of scrutiny which focuses on balancing the constitutional and societal interests 5. Sexual Orientation: rational basisbut always look to see what the right at issue is. Bowers v. Hardwick (): anti-sodomy law: homosexual man found engaged in consensual sodomy when a police officer delivered a warrant. Ct. did not strike down the statute b/c states are free to criminalize sodomy b/t homosexuals. Ct. is looking at the fact that sodomy is an activity, while homosexuality is a status. Ct. says sodomy is illegal for heterosexuals too. Watkins v. U.S. Army (1989): ct. invalidated the army‘s policy of excluding bisexuals, gay men and lesbians from the armed forces. Majority makes 3 inquiries: (1) hx of purposeful discrimination [yes, army conceded that homosexuals are target of hostility; (2) whether the discrimination embodies a gross unfairness that is sufficiently w/ the ideals of e.p. to term it invidious—(a) is class being defined by a trait that bears no relation on ability to perform [sexual orientation does not impair ability to perform well in the military](b) whether the class has been saddled with unique disabilities b/c of prejudice or inequal stereotypes [yes] (3) whether the trait defining class is immutable [sexual orientation whether immutable or not rests outside the control if the individual]; (3) does penalized group lack effective representation [most gays are in the closet and therefore cannot collate]----9th Circuit vacates but upholds on estoppel grounds----basically this raises status or conduct. Romer v. Evans (1996): CO voters adopted a ballot proposal adding an Amendment 2 to the state constitution…―neither the state of CO nor any of its agencies, etc…shall enact, adopt, or enforce any statute, regulation…whereby homosexual, lesbian or bisexual orientation or conduct…shall constitute or otherwise be the basis of a claim of minority status, quota preferences, protected status or claim of discrimination.‖ basically the statute rescinded state protections against discrimination against homosexuals Sup. Ct. invalidated the statute b/c the CO Sup.Ct. interpreted the statute as repealing local protections for gay and preventing further protections from being adopted unless state constitution was first amended. Ct. believed that this put them in a solitary class—r/t political process and process theories—FN 4 Carolene.
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State argued that they weren‘t trying to take away rights but were trying to put homosexuals on the same level playing field – freedom of asociation Ct. finds this is discrimination against a status/class not an activity. Doesn‘t pass ―rational basis‖ test (b/c the state had no rational basis, but was just trying to disfavor a particular group; rep animus to wards a politically unpopular group)—majority knew it would fail—set the analysis up for heightened scrutiny b/c FN 4 analysis. Rehnquist Dissent – thinks it‘s OK for state to disfavor certain behavior
GENDERIntermediate Scrutiny…
When 14th Amendment was passed it was not aimed at white women (look at language— every ―male‖)—women thought it would have covered their right to vote but it didn‘t. Why intermediate scrutiny: hx of discrimination; lack of access to political power (not anymore); discrete but not insular, immutability, prevalence of traditional gender stereotypes. Probably not strict scrutiny like race classifications b/c there are in fact some differences between the sexes, as opposed to between blacks and whites, also b/c women are not a minority, but make up 50% of the population Bradwell v. Illinois (1874): Ct. upheld a denial of a woman‘s application to practice law, solely b/c she was a married woman. Reasoning: tx gender stereotypes make women f not fit for the legal field. Minor v. Happersett (1874): S. Ct. held that right to vote was not a p & I of U.S. citizenshipthis reasoning no longer an avenue for women. (Women were always citizens but not always given the right to vote) NOTE: at this point female stereotypes were part of state‘s police power to discriminate aginast women; important later b/c many justices look to see if the classification perpetuates these stereotypes in deciding whether to uphold them. Under New Deal Ct.ct. begins to recognize power and political differences instead of physical differences. As ct. reshapes its thoughts on tx gender classifications: the jurisprudence of e.p. changed with the urging of heightened scrutiny: Wendy Webster Williams‘ article: Equality’s Riddle: no generalizations should be attached to gender; if state classifies based on gender, must provide a justification free from gender stereotype. Seeking to break down gender hierarchy and to release men and women from tx. gender stereotypes/ Reed v. Reed (1971):struck down a statute that created a tie-breaker preference for males over females of equal degrees of relationship to be appointed to administer an estate. Purports to apply rational basis: administrative convenience is never a rational purpose and the preferring of men b/c of financial saavyness perpetuates gender stereotypes. Ct. probably used intermediate scrutiny though. Frontiero v. Richardson (1973): fed. statute that allows a man to claim his wife as a ―dependent‖ w/out regard to dependent status; where a woman claims her husband as a ―dependent‖, must prove it instead of presuming it. seeks strict scrutiny b/c inherently ―suspect‖ based on immutable characteristics. Ct. finds that the rationale was not sufficient to support the statute, does not apply strict
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scrutiny—wants to guard the ―suspect‖ class or it will be legislating instead or reviewing. o Results in application of intermediate scrutiny to gender classifications – requiring that the statute be substantially related to an important govt objective After Frontiero Ct. strikes down statutes that perpetuate gender stereotypes, without deciding which level of scrutiny is appropriate involving facially discrim statutes Stanton v. Stanton (1975): father relied upon a state statute under which females reached majority at 18 and males at 21 to justify the cessation of child support payments to his 18-year old daughter. State ct. upheld the statute based on notion that men are primary breadwinners that needed to be afforded to opportunity to get an education. o Sup. Ct. reversed finding education as equally necessary for both sexes and distinction based on hx stereotypes. Schlessinger v. Ballard (1975): statute providing that male naval officers had a shorter period in which to attain promotion or be discharged than female officers o Sup. Ct. upheld the classification b/c not based on archais generalizations but reflected the real differences of male/female officers b/c women can‘t serve in combat. Kahn v. Shevin (1974): State statute widows, but not widowers, a small property tax exemption was upheld on the ground that women face more difficult barriers in the job market that widowers.—reflects facts instead of stereotypes. o Craig v. Boren (1976): the ct. finally states that it is using ―intermediate scrutiny‖- FACTS: State prohibited the sale of 3.2% beer to males under the age of 21 but to females under the age of 18; suit was brought by a male (gets intermediate scrutiny b/c he‘s a member of the disfavored class) and a bartender (only suffers economic harm and entitled only to rational basis b/c not a member of the class) - HOLDING: Court applied intermediate scrutiny, saying that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives; state offers statistical evidence about the higher percentage of males that are arrested for DWIs, but court says that the discrepancy was not large enough to pass muster under intermediate scrutiny - Importance of statistical evidence to support state‘s articulated purpose for classifying - Inapplicability of original intent and purposivist theories in justifying strict scrutiny because framers did not intend for 14th amendment to protect women because they specifically chose to include the word ―male‖ US v. Virginia (1996) o FACTS: US sued VA and VMI alleging that VMI‘s exclusively male admission policy violated the EP clause o Court applied intermediate scrutiny and found that the state fell short of establishing the important govt interest
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o Court also found that the state‘s proposed remedial plan, creation of VWIL, was insufficient b/c of the qualitative differences and quantitative inferiority (tangible and intangible) o Remedy – nothing short of admitting women would remedy the EP violation that the admission policy constituted o VA and VMI offered 2 justifications for the policy Diversity of educational benefits (Court didn‘t believe this was really one of the state‘s interests) Preservation of the adversative method of education, which they believed would be destroyed by admitting women Parham v. Hughes (1979) o Facts: GA law allowed mothers, not fathers of a child born outside of marriage to bring a wrongful death suit-even though the father in the case established paternity and took part in the child‘s life. o Ct. found that since the father can sue if he legitimizes-the statute differentiates b/t mothers and fathers that legitimize their sons and fathers who do not. o Powell agreed that state was discriminating, but under a rational basis analysisit served a greater state interest in encouraging dad to form relationships with their children. Michael M. v. Sup Ct of Sonoma City (1981): CA statutory law made men alone criminally liable for having sex with a female under 18 years of age. CA charged a 17 ½ year old boy for having sex w/ a 16 ½ year old girl. o Rehnquist finds that state‘s articulated goal to curb teen pregnancy an important state interest. o Another factor: Rehnquist believes that girls are punished by actually getting pregnant. (Ifill thinks he used ―rational basis‖ instead of intermediate) o Dissent argued that the statute was really aimed at protecting a girl‘s chastity which is a tx gender stereotype. o Leg. amended stat. Rape law. EP analysis for facially discriminatory classifications based on gender – Intermediate Scrutiny applies – additional considerations o Traditional Gender Stereotypes – generally court will strike down classifications that are based on these Frontiero – male as breadwinner Reed – male as financially saavy J.E.B. – women as empathetic jurors Miss. V. Hogan o Military Deference Schlesinger Korematsu o Always think about who is bringing the suit o Actual Differences (biological or social/political/economic)
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Factual showing that the classification is based on actual differences between men and women will help the statute prevail the intermediate scrutiny inquiry Kahn v. Shevin – unequal opportunities in the mkt place Schelsinger Michael M. 3. Facially Neutrally with Disparate Gender Impact Geduldig v. Aiello (1974): o Court upheld a CA disability insurance program that paid benefits to person temporarily disabled from work, but excluded from coverage pregnancy related disabilities o Court found that the exclusion was rationally related to the insurance program‘s goal of lowering premiums o Said that rational basis was appropriate b/c the classification was based on pregnancy, not gender o Also suggested that the fact that the impact was exclusive to women was not enough to trigger heightened scrutiny - Feeney v. Personnel Administrator of Mass (1979) o SC upheld a state statute that provided a preference for veterans who qualified for state civil service positions over non veterans; court found that there was no discriminatory purpose because it was applied equally to male and female veterans o ISSUE: whether a program that does not expressly favor males but which operates in practice to benefit males almost exclusively denies EP to women o FACTS: Feeney, a woman, was unable to obtain a position, despite her qualifications, b/c she was not a veteran o Court applied Arlington Heights test for the proposition that even if a neutral law has a disproportionately adverse effect on women, it is unconstitutional if that impact can be traced to a discriminatory purpose o Says that the 14th amend guarantees equal laws, not equal results o Closes the loophole on foreseeability and reaffirmed that a state legislature must have chosen the action at least in part because of, not merely in spite of its adverse effects upon an identifiable group o Marshall and Brennan dissent – thought that under Arlington Heights, the foreseeable impact of this facially neutral policy was so disproportionate that the burden should have rested on the state to show that sex-based considerations played no part in the decision - Feeney rationale suggests that if there‘s no reason to infer animus, even improvident decisions will be rectified by the democratic process o However, Title VII, which prohibits employment discrimination based on race, sex, etc, still contained an exception for veteran preferences
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o 1978 Pregnancy Discrimination Act amended Title VII to include pregnancy, childbirth and related conditions in the definition of sex - Rostker v. Goldberg (1981): o FACTS: military secret service act which requires only men to register was challenged for its exclusion of women o argues that b/c it involves military affairs and national security, court should only apply rational basis std o Court refuses to apply rational basis, instead applied intermediate, but govt still prevails b/c raising and supporting armies is an important govt interest that is substantially related to the legislation because registration is a precursor to being drafted, and only men can be drafted - J.E.B. v. Alabama (1994): o SC extends Batson to include peremptory challenges that are based solely on gender o Party alleging discrim must make a prima facie showing of intentional discrim; other party then must show that strike was motivated by non-gender motivated reasons
Affirmative Action/ Benign ClassificationsStrict Scrutiny
Two prevalent theories behind affirmative action (the overt use of racial criteria to benefit racial minorities) race is never relevant to government decision-making-whether the classification is benign or discriminatory, should triggerstrict scrutiny; constitution is colorblind; reinforces stereotypes There are circumstances where gvpt. should and can classify without violating the Constitution. [but only if group is a Carolene, FN 4 group o This is based on political process, or the fact that gvpt. has an obligation to ameliorate hx discrimination Regents of UCLA v. Bakke (1978): (no precedential value b/c didn‘t even agree that is should be struck down on constitutional grounds, just that it should be struck down) Facts: 16 spots of UC Davis Med school out of 100 were reserved for minorities. White student denied admission w/ better paper credentials brought suit. 5 justices struck down the statute (4 for violation of Title VI, and 1 (Powell) for violating equal protection. Brennan 4 would have upheld the policy as not violative of equal protection. Powell-advocates strict scrutiny b/c race classifications always get it, whether benign or not. Carolene minority is fluid, therefore, innocent persons should not bear the burden of redressing wrongs not of their making. Historical, societal discrimination is too amorphous a concept, must be narrow and provable discrimination (leg findings or factual support should be necessary and 19
how the program will remedy or geared toward that goal/ remedying general societal discrimination is too amporphous) Brennan 4-advaocate intermediate scrutiny for benign classifications (those that don‘t stigmatize those disadvantaged by the discrimination)—concede that rational basis would not suffice, intermediate level still calls for real evidence that hx discrimination is specific, substantial and chronic. Blackmun (part of Brennan 4): critiques colorblindness, sometimes it is okay to take race into account. Fullilove v. Klutznick (1980): again no majority opinion, little precedential value. (6-3) Facts: ct. upheld a facial challenge to a 1977 federal statute providing federal funds to state and local gvpt. building projects that require that at least 10% of money must be spent procuring goods or services from MBE‘s (minority business enterprises) Marshall, Brennan and Blackmun: passed intermediate scrutiny; gave deference to legislative findings (Bakke lacked these) Burger, White, Powell: voted to uphold under ―close examination‖ Powell: still would apply strict scrutiny and this policy passes it— serves ―compelling gvpt. interest in eradicating the effects of past discrimination identified by Congress in the legislative findings.‖ Bottom line, no agreement on which level of scrutiny is proper in aff. action cases. Wygant v. Jackson Board of Education (1986): (plurality opinion)--again no majority opinion. Ct. struck down a collective bargaining agreement b/t a public school bd. and a teachers union that provided that lay-offs be made on seniority basis except a restriction to not lay off too many minorities. Powell, Burger, Rehnquist, O‘Connor: apply strict scrutiny— rejected both the purpose and the chosen means. Discrimination needed in the specific situation, with a factual record that proves it and a policy that remedies it. Rehnquist thinks it‘s too hard to decipher important from compelling, thinks that legislature is better equipped to do the job. This is a layoff case which tends to get a more heightened scrutiny b/c ―disrupts people‘s lives as opposed to just not granting an opportunity. Hiring eliminates only one opportunity (diffuses burden), while layoffs make the innocent party bear the entire burden of being laid off. City of Richmond v. Croson (1989):
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local Richmond statute that mandated that gen. contractors receiving city construction ks ―to subk at least 30% of the k$ to MBEs. City‘s rationale was to remedy past discrimination-that Richmond was 50% black but only .67% were awarded to minority businesses. A white-owned gen contractor could not find an MBE to do the work he needed and sued on e.p. grounds. O‘Connor (writing for the majority: agreed on applying strict scrutiny)—―any governmental action that is explicitly racebased must be ―necessary‖ to achieve a compelling government interest. Remedying past discrimination w/in the gvpt. agencies jurisdiction is a compelling interest, but generally remedying societal discrimination is not. Majority strikes the statute down for a variety of reasons, pointing both to insufficient justifications for a compelling govt interest, and lack of narrow tailoring strict scrutiny applied When a jurisdiction seeks to remedy discrimination, it must identify a specific source of past discrimination and ensure that the statute is narrowly tailored enough so that innocent victims don‘t bear the burden of correcting wrongs for which they are not responsible O‘Connor says effect is not enough, there must have been some intent b/c ct. is supposed to remedy the motive of a wrong-doer. Also, says that b/c the statute was passed by a majority black Council that aided blacks-immediately ―suspect‖ which triggers strict scrutiny; turns Carolene FN4 on its head by saying that strict scrutiny is appropriate b/c the statute benefits the group that passed it Refuses to defer to city‘s fact-finding when the statute is ―suspect‖ b/c of point above-more likely when Congress is doing the fact-finding. Concerns of narrow tailoring: no evidence of discrimination against others in the MBEs like Latinos-must show no other race-neutral alternatives. Kennedy---if we can‘t uphold MBE set-asides by Congress, certainly can‘t uphold city set-asides. Marshall, Brennan, Blackmunstanding strong that intermediate scrutiny is appropriate level of scrutiny when dealing with benign classifications and it passed it. Metro Broadcasting v. FCC (1990): 1. FACTS: involves a federal race-based preference for minority ownership of TV and radio stations 2. Majority upholds the statute under intermediate scrutiny, finding that the govt objective of diversifying info on the 21
airwaves and increasing minority ownership and broadcast diversity serves important 1st amendment values (substantially related to the objective), recognizing that Congress has an important role to play in enforcing important rights under the 14th amendment 3. Majority based its decision on Fullilove, which also dealt with congressional action 4. Dissent by Rehnquist, Scalia, Kennedy and O‘Connor advocates for the strict scrutiny approach , relying on Croson, and finding that the statute fails to meet the strict scrutiny requirements; distinguishes Fullilove and says that here the rationale offered by Congress is merely to remedy past societal discrimination, which is too vague Adarand Constructors, Inc. v. Pena (1995): 5. HOLDING: SC holds that the same strict scrutiny std must be applied to affirmative action promulgated by states and federal govt 6. Draws on Bolling, Hirabayashi, and Korematsu to support the correlation between the protection guaranteed by the 5th and 14th amendments (symmetry) and as origin of the strict scrutiny language 7. Overrules Fullilove and Metro Braodcasting 8. Majority bases its decision on three general propositions a. Skepticism – says that any preference based on racial or ethnic criteria must necessarily receive a most searching examination b. Consistency – says that all racial classifications reviewable under EP must be strictly scrutinized, regardless of which race is benefitted or burdened by the classification c. Congruence – says that EP analysis under the 5th amend is the same as under the 14th so that action by fed govt must receive the same strict scrutiny 5. Stevens dissent – criticizes the majority for ignoring the difference b/t invidious and benign classifications a. Also points out the fact that the majority claims that consistency is one of its goal, but as a result of its holding, benign racial classifications receive strict scrutiny, while benign gender classifications only get intermediate b. Also says that there is a valid justification for treating decisions by fed govt differently from state govts Fundamental Rights/ Substantive Due Process I. Unenumerated Rights and the Incorporation Doctrine
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A. Natural Law – notion that there are certain rights that we are entitled to by virtue of being free people 1. underlies many of this nation‘s earliest documents 2. drives the Court‘s analysis of substantive due process B. Procedural v. Substantive Due Process (basic definitions) 1. Procedural – the processes guaranteed to you before the govt can deprive you of life, liberty, and the pursuit of happiness; examples include notice, opportunity to be heard, confronting accusers, counsel, appeal, jury, fair and speedy trial 2. Substantive – basic rights that we are entitled to that are given constitutional protection; includes both enumerated and unenumerated rights II. Privileges and Immunities Clause (14th Amendment) –supposedly intended to protect citizenship rights A. Slaughter House cases (1873) 1. FACTS: city creates monopoly for one butcher; claims that his fundamental right to practice his trade has been violated 2. Court rejects ‘s argument, focusing only on the P & I of natl citizenship, drawing a very narrow circle around the rights that are implied in the 14th amend 3. RESULTS: P & I no longer a successful avenue; EP takes center stage, but only when a state draws distinctions and classifies so that there is differential treatment of similarly situated people III. Due Process – focuses on whether a deprivation of rights is constitutional, not dependent on whether any distinction is drawn A. Enumerated Rights / Incorporation 1. Incorporation - Early analysis focuses on whether those rights mentioned in the Bill of Rights were intended to be covered by the 14th amend and whether these rights can be abridged by states a. Palko v. Connecticut (1937) i. Court holds that such provisions of the Bill of Rights as were ―implicit in the concept of ordered liberty‖ are secure from state interference under the 14th amend. ii. In this case, the court found that the 5th amendment rights involved were not violated (involves ‘s claim that right of protection from double jeopardy was violated), and therefore did not reach the question of incorporation, subsequently most of the 5th amend. does become protected b. New language as a result of Duncan v. Louisiana (1968) – ―fundamental to the American scheme of justice‖ c. Now protected incorporated rights include: 1st, 4th (search and seizure), 5th (double jeopardy, self-incrimination, takings), 6th (impartial jury, counsel), and 8th (cruel and unusual punishment) 2. Unenumerated Rights (from economic protection to guarantees of privacy) a. Loving v. Virginia (1967) – marriage as fundamental right b. Value of Due Process language – appeared in the original Constitution; history was limited to procedural guarantees; helps clarify what are fundamental rights in order to determine what level of scrutiny is appropriate for EP analysis
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c. Skinner v. Oklahoma (1942) i. FACTS: challenging the constitutionality of an Oklahoma habitual criminal sterilization act (r/t three convictions for crimes involving moral turpitude); was convicted twice for robbery with firearms and once for stealing chickens ii. Court recognizes that the case could be decided on three grds, either EP (treating classes of criminals differently), procedural due process, or substantive due process (right to procreate as fundamental) – ultimately deciding to use EP and focusing on the arbitrary nature of the state‘s classification of which criminals will be sterilized, basically using rational basis iii. Court‘s discussion of procedural DP grds focuses on the limitations that were placed on the ‘s trial, prohibiting the opportunity to be heard on the issue of whether sterilization is appropriate, i.e. whether ‘s the probable potential parent of socially undesirable offspring iv. Decision was based on precedent of Buck v. Bell, upholding a sterilization statute for institutionalized persons, narrowing the possibility for substantive DP claims v. Court‘s dicta does begin to work out the idea of fundamental right of privacy (not mentioned in the constitution), focusing on the sphere around us in which govt can‘t intrude – but what is the scope of the sphere? Our bodies, homes, cars?; court is unwilling to step in this early to overstep federalism concerns vi. Court‘s discussion of right to procreate as fundamental calls it a ―basic civil right of man‖ d. Voting as a fundamental right – citizenship was not always coterminous with voting i. Harper v. VA Bd. of Elections (1966): voting was not mentioned as a fund right within the constitution but has been has come to be viewed as one of the enumerated fundamental rights (not confined to historical notions of equality); court strikes down a state poll tax requirement for voting e. Education NOT fundamental, but sits on the cusp i. Brown calls it fundamental ii. San Antonio closes the door, saying that it‘s important but not fundamental iii. Plyler says that state may have an obligation to provide some minimum f. Right to Travel i. Shapiro v. Thompson (1969) – involving a residency requirement that mandates that you can‘t get welfare until resident for one year; Court strikes down on EP grds, but engages in discussion of right to travel as fundamental, deriving from personal liberty; also explaining that where the right comes from is not essential (but looks at progeny
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of cases dealing with the right to travel; suggests that strict scrutiny is appropriate in analyzing a statute restricting a fundamental right 3. Lochner Era of Substantive Due Process Analysis a. SC recognized substantive DP as including a constitutional protection against state infringement on the right to contract b. Beginning with Lochner v. NY in 1905 and lasting through the Depression c. SC struck down state regs on employment, incl minimum wage and maximum hour laws d. Lochner v. NY (1905) – i. SC struck down a state reg r/t ability of bakers to work more than 60 hours/wk, finding that it infringed on individuals‘ fundamental right to contract, explaining that states do have some police power r/t the safety, health, and general welfare of its citizens, but may not overstep; suggesting that heightened scrutiny is appropriate to evaluate ii. Overruled Holden, which upheld an 8-hr maximum day for miners and swelters iii. Decision probably influenced a lot by other economic factors and events that were occurring at the time e. Lochner decision spawned a whole set of cases f. Changes occurred in the 30s, following the Depression g. Leads to question of whether substantive DP has come to be interpreted too broadly, or did it never really exist? 4. Modern Substantive Due Process – Right of PRIVACY a. Roots in the Lochner economic realm, but reformulated for application in the newly established right of privacy b. Meyer v. Nebraska (1923) – liberty is protected by subst DP and, means more than being free from bodily restraint, but also means the ability to exercise a set of rights c. What zones of privacy are protected? locations, intimate relationships, intimate decisionmaking d. Marriage and Contraception – important intersection of zones – is it about the intimacy of the relationship of the decision-making i. Tileston v. Ullman (1943) - doctor brought a suit based on claim that state statute prevented him from prescribing birth control advice; case was dismissed on standing issues ii. Poe v. Ullman (1961) – involving a married woman‘s inability to get birth control b/c of a state statute; court didn‘t decide it because they said the issue wasn‘t ripe b/c Connecticut doesn‘t enforce the statute, so birth control is actually readily available Harlan‘s dissent – talks about due process and says that there are some rights that aren‘t enumerated that are fundamental, which involve balancing individual liberty with the demands of an organized society; seems to derive the privacy right from the 3rd and 4th amends; talks about a rational continuum; says that marital privacy is a subset of general privacy and that even
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though every state recognizes marriage and can regulate it to an extent, they can‘t regulate within it iii. Griswold v. Connecticut (1965) – involving a Planned Parenthood doctor and counselor arrested for giving out info about contraception to married people Strategy – chose a case w/ married people b/c SC has already recognized a zone of privacy for marriage relationship which single women don‘t have Enumerated rights have penumbras – privacy is one right of marriage that pre-exists the Bill of Rights; attempts to list amendments and their connection to specific zones of privacy iv. Goldberg 9th amendment rationale – suggests that drafters believed that we had other rights than those enumerated in the Bill of Rights
Equal Protection Analysis Chart: STRICT SCRUTINY 1. Suspect classes (race, alienage) 2. Fundamental Rights Narrowly tailored INTERNEDIATE SCRUTINY Gender Illegitimacy RATIONAL BASIS Age Wealth Sexual Orientation Illegal Aliens Rationally Related Legitimate interest
CLASSIFICATION
STD for reviewing the statute Level of STATE Compelling state INTEREST required interest
Substantially related Important state interest
Equal Protection Exam Tips: For there to be an EP problem, there must be discrimination against members of one of the classes, i.e.. one class must be treated intentionally less favorably than the other. Use the adjective ―invidious‖ to describe the required discrimination If you state that can make an EP attack on the classification in issue, state whether the attack would be on the statute‘s face or as applied. Remember that a facial attack is used where the statute itself in its text discriminates against a class; an ―as applied‖ attack is used where the discrimination against one class stems from how the statute or regulation is carried out. Examine whether the discrimination is being practiced by a state/local govt, or by the federal govt. If it‘s the state or local govt, then you‘re using the 14th amend EP clause. If it‘s the federal govt, you‘re using 5th amend DP, which by the process of ―reverse incorporation‖ includes the principle of EP.
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Once you‘ve identified an EP problem, you must determine the appropriate level of scrutiny: Strict scrutiny – used where there‘s either a classification based on a suspect class (race, alienage, national origin) or whether the classification impairs the exercise of a fundamental right. Intermediate scrutiny – used for quasi-suspect classes (gender, illegitimacy) Rational- basis – used for all other types (age, wealth, sexual orientation, illegal aleins) Rational – basis standard of review: If the classification r/t economic regulation, you‘ll almost certainly be using rational basis (ex. including where states choose to tax things differently) Most types of social welfare classifications will also be judged using this std. Including classifications based on age, out-of-state status, poor If the govt is trying to single out an unpopular group (but one that doesn‘t get suspect or quasi-suspect status) for unfavorable treatment, indicate that although only rational basis is applied, the review will be applied ―with bite‖ and the scheme may be struck down. Unequal treatment of gays and the metally retarded seems to fall into this category. Race classifications: Race is a suspect class. Therefore, any intentional discrimination based on race – either in the face of the statute or in the way that it is applied – must be strictly scrutinized. That is, it muts be struck down unless it is necessary to achieve a compelling govt interest. You should almost always conclude that this std is not satisfied. Typically, your reason will be that there is some alternative non-raceconscious method of handling the problem, so that the race-conscious means are not necessary. Remember that race as a suspect class will not be deemed to be involved unless the govt is acting with the purpose, not just the effect, of classifying based on race. This is the single most commonly tested aspect of strict scrutiny. The fact pattern will usually not contain a racial classification ―on its face.‖ Yet, the facts will indicate to you that some racial group is affected more than other groups. This should tip you off that you have an effect vs. purpose problem.
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Keep in mind that circumstantial evidence can always be used to show that the govt has the intent to discriminate against the unfavored group, and that the effect is not merely an unintended by-product. Remember that the discrimination must be ―invidious.‖ That is, there must be an attempt to treat some racial group in a less favorable, stigmatizing way. You will want to examine whether this element if invidiousness is present whenever the govt scheme tends to merely record racial differences, or to impose some kind of racial matching Be on the lookout for segregation – any govt program that intentionally separates the races, or intentionally encourages the races to separate themselves, is likely to be invidious and thuis needs to be strictly scrutinized (example – if a state univerity allows dorms to classify themselves, by vote of the existing residents, as primarily black or primarily white, this probably represents intentional govt support of segregation, and probably requires strict scrutiny) Race-conscious affirmative action: Strict scrutiny is applied to the affirmative action situation just as much as to the invidious situation. Cite to Richmond v. Croson. Typically, the only govt objective that is strong enough to overcome strict scrutiny in the affirmative action context is the eradication of past discrimination by govt, and only if the discrimination is shown by clear evidence The fact that it‘s Congress, rather than a state or local govt, that‘s doing the affirmative action now makes no formal difference – strict scrutiny is still applied (Cite to Adarand). However, you may want to allude to the possibility that even though the Court applies strict scrutiny, it may end up giving slightly greater deference to Congress‘ conclusion that race-conscious measures are needed, than it would to a similar situation conclusion by a state or local body. Here are some contexts in which race-conscious affirmative action programs may pop up on exams: preferential admission to universities minority set-asides in the award of public construction and other contracts allocation of public sector jobs (including layoffs and promotions as well as original hiring the drawing of election districts The drawing of classifications based on national origin is also to be strictly scrutinized. However, exams rarely pose a national-origin problem.
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Gender classifications: Gender classifications get intermediate scrutiny. That is, the govt objective must be important, and the means must be substantially related to that objective. Note that the intermediate scrutiny is now a pretty tough std, with the court requiring that the state offer and ―exceedingly persuasive justification,‖ and giving ―skeptical scrutiny.‖ Cite to U.S. v. Virginia. Remember that the same std of review is in theory used whether the sex-based classification is invidious (designed to harm women) or benign (intended to help women). Any classification that derives in part from stereotypical views about women (ex- women belong in the home or women are weaker) is especially likely to be struck down. Where the classification disadvantages men, the same intermediate scrutiny is used. As with race-conscious discrimination, only govt action whose purpose, not mere effect, is to discriminate against one gender, will be considered. (ex – a strength requirement for paramedics would not be subjected to intermediate review if the requirement‘s purpose was not to discriminate against women, but was merely an unintended effect that fewer women than men could qualify) Here are common areas where gender-based classifications may pop up on exams: The govt provides that pregnant women in the work force are to be treated differently than all others, e.g., with respect to exposure to toxic substances (probably not gender discrimination b/c women who are not pregnant aren‘t impacted, so you probably don‘t apply intermediate scrutiny, just mere rational basis Women are given different school activities than men (ex – women aren‘t allowed to play football. Probably appropriate to apply intermediate scrutiny, but the classification will probably survive that review in light of the different average size and strength of women) Classifications based on illegitimacy are also quasi-suspect and thus get intermediate scrutiny. Most commonly, you would be tested on a state statute that discriminates against illegitimates with respect to the right to inherit. Discrimination against aliens is frequently tested. As a general rule, remember that discrimination against aliens is subject to strict scrutiny. (ex- a state‘s refusal of welfare benefits to aliens, or its refusal to let an alien practice a profession)
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Note that discrimination against aliens typically refers to discrimination against legal aliens. Strict scrutiny is not generally used for discrimination against illegal or undocumented aliens. Remember that there is a key exception to the general rule of strict scrutiny: where the alien has applied for a job that goes to the ―heart of representative govt,‖ only mere rational basis review is used. Most govt jobs that have a policy, law enforcement or education component fall within this representative govt exception. (ex- jobs as a public school teacher, police officer, or probation officer are all within the exception, so the state merely has to be rational in its decision to close these positions off from foreigners) But there are some jobs that are sufficiently ministerial that they do not fall within the representative govt exception. (ex- secretary in govt agency; meter reader for a publicly owned electric utility) Classifications impairing a ―fundamental right‖ are tested less frequently than those involving a suspect or quasi-suspect class. But they do sometimes pop up on exams. Any impairment of the right to vote is an impairment of a fundamental right, and thus strictly scrutinized (ex – literacy test, poll tax) Limits of the choices that may be made by voters usually are not strictly scrutinized (ex – when a state bans write-in votes, there‘s no impairment of a fundamental right and thus no strict scrutiny) A person‘s right to be a candidate seems to be semi-fundamental, and thus gets a more than mere rational basis review (ex – a high candidate filing fee that is imposed even on indigent candidates violates EP). Similarly, restrictions that unfairly keep new, not-yet-established, political parties off the ballot get this semi-fundamental review. Access to the courts is sometimes a fundamental interest. Look for situations where the state imposes a fee that it refuses to waive for indigents. The two contexts that count are criminal cases (so that the state may not charge an indigent for a trial transcript or for counsel) and family law cases (so that the state may not charge a filing fee to indigents who want a divorce). But other types of civil access (e.g., small claims court or bankruptcy court) are not deemed fundamental, so the state‘s refusal to subsidize indigents get only mere rational basis review. The right to travel (really the right to change one‘s state of residence or employment) is fundamental. Therefore look for patterns where the state imposes a substantial waiting period on newly arrived residents: if they have to do this to wait before they
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get some vital govt benefit (e.g. welfare), a fundamental right has been impaired. But non-vital benefits are not fundamental so that there‘s only mere rational basis review where the state makes newcomers wait for, say, low instate university tuition rates. The right to necessities is not fundamental. So fi your fact pattern involves the state‘s refusal to equalize the right of indigents to such items as public school education, shelter ore medical care, you probably need to apply only rational basis review, not strict scrutiny fundamental interest review.
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