CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Exam: Two essay questions o Will cover what we‟ve covered here Open book, including anything except your attorney (ha ha); don‟t tell him what the law is, tell him how it applies here on the question he has asked
BILL OF RIGHTS AND POST CIVIL WAR AMENDMENTS ............................................................... 11
PRE-CIVIL WAR: WHAT THE AMENDMENTS APPLY TO ............................................................................................ 11
Barron v. Mayor and City Council of Baltimore p. 412 ..................................................................................... 11
POST CIVIL WAR ...................................................................................................................................................................... 11
Slaughter-House Cases p. 415 ............................................................................................................................ 11 Shapiro v. Thompson p. 426 ............................................................................................................................... 12 Dunn v. Blumstein p. 427 .................................................................................................................................. 12 Memorial Hospital v. Maricopa County p. 428 .................................................................................................. 12 Saenz v. Roe p. 428 ............................................................................................................................................. 13 Crandall v. Nevada p. 426 .................................................................................................................................. 13 Edwards v. California p. 426 .............................................................................................................................. 13
COURT APPLIES THE DUE PROCESS CLAUSE ................................................................................................................ 13
Palko v. Conneticut, p. 435 ................................................................................................................................. 13 Adamson v. California, p. 436 ............................................................................................................................ 14
CRIMINAL PROCEDURE RIGHTS ALMOST COMPLETELY INCORPORATED ..................................................... 14
Duncan v. Louisiana, p. 441............................................................................................................................... 14 Williams v. Florida, p. 447 ................................................................................................................................. 15 Apodaca v. Oregon, p. 446.................................................................................................................................. 15
SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL .............................................................. 15
THE EARLY YEARS- NATURAL LAW JUSTIFICATION ................................................................................................. 15
Calder v. Bull, p. 453 .......................................................................................................................................... 15 Fletcher v. Peck, p. 454 ....................................................................................................................................... 16 Munn v. Illinois, p . 456 ..................................................................................................................................... 16 Mugler v. Kansas, p. 457 .................................................................................................................................... 16 Allgeyer v. Louisiana, p. 457 .............................................................................................................................. 16
THE LOCHNER ERA – RISE OF JUDICIAL INTERVENTION ........................................................................................ 16
Lochner v. New York, p. 458 .............................................................................................................................. 17
EXAMPLES OF LOCHNER-ERA JUDICIAL SCRUTINY OF ECONOMIC REGULATIONS .................................... 18
Muller v. Oregon, p. 466 .................................................................................................................................... 18 Bunting v. Oregon, p. 466 .................................................................................................................................. 18 Coppage v Kansas, p. 467 ................................................................................................................................... 18
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Adair v. United States, p. 468 ............................................................................................................................ 18 Adkins v. Children‟s Hospital, p. 468 *(later overruled by West Coast Hotel) .................................................. 19 Munn v. Illinois, p. 468 ...................................................................................................................................... 19 New State Ice Co. v. Liebman, p. 469 ................................................................................................................. 19 Weaver v. Palmer Bros. Co., p. 469 .................................................................................................................... 19
THE MODERN ERA: DECLINE OF JUDICIAL SCRUTINY OF ECONOMIC REGULATION ................................. 19
Nebbia v. New York, p. 469 ................................................................................................................................ 19 West Coast Hotel Co. v. Parrish, p. 471 *(Overrules Adkins) ........................................................................... 20
MINIMAL JUDICIAL SCRUTINY: AFTER THE NEW DEAL .......................................................................................... 20
United States v. Carolene Products Co., p. 473.................................................................................................. 20 Olsen v. Nebraska, p. 475 ................................................................................................................................... 20 Williamson v. Lee Optical Co., p. 476 ................................................................................................................ 20 Eastern Enterprises v. Apfel, p. 478 ................................................................................................................... 20
THE TAKINGS CLAUSE .......................................................................................................................................................... 20
Hawaii Housing Authority v. Midkiff, p. 481 .................................................................................................... 21 Pennsylvania Coal Co. v. Mahon, p. 482 [TheKohler Act] ................................................................................ 21 Keystone Bituminous Coal Ass‟n v. DeBenedictis, p.486 .................................................................................. 21 Miller v. Schoene, p. 485 .................................................................................................................................... 21 Brown v. Legal Foundation of Washington, p. 8, 2003 Supplement (14 th Ed.) .................................................. 22 Penn Central Transportation Co. v. New York City, p. 488 .............................................................................. 22 Loretto v. Teleprompter Manhattan CATV Corp., p. 489 .................................................................................. 22 Lucas v. South Carolina Coastal Council, p. 490 ............................................................................................... 22 English Evangelical Lutheran Church c. Los Angeles County, p. 493 ............................................................... 23 Palazzolo v. Rhode Island, p. 494 ....................................................................................................................... 23 Nollan v. California Coastal Comm‟n, p. 494 .................................................................................................... 23 Dolan v. City of Tigard, p. 495 ........................................................................................................................... 23 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, p. 9, 2003 Supplement (14 th Ed.) ............................................................................................................................................................................ 23
NONECONOMIC LIBERTIES: REPRODUCTION; FAMILY; SEX; DEATH ................................................................. 24 REPRODUCTION CASES ........................................................................................................................................................ 24
Meyer v. Nebraska, p. 508 .................................................................................................................................. 24 Pierce v. Society of Sisters, p. 509 ...................................................................................................................... 24 Skinner v. Oklahoma, p. 509 .............................................................................................................................. 24 Roe v. Wade, p. ................................................................................................................................................... 25 Griswold v. Connecticut, p. 510 ......................................................................................................................... 25 Eisenstadt v. Baird, p. 520 .................................................................................................................................. 26
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Carey v. Population Services International, p. 520 ............................................................................................ 26
ABORTION CASES ................................................................................................................................................................... 26
Roe v. Wade, p. 521 ............................................................................................................................................ 26 Akron v. Akron Center for Reproductive Health (Akron I), p. 535 .................................................................... 27 Thornburgh v. American College of Obst. & Gyn., p.536 .................................................................................. 28 Webster v. Reproductive Health Services, p. 536 ............................................................................................... 28 Maher v. Roe, p. 533 ........................................................................................................................................... 28 Harris v. McRae, p. 533 ..................................................................................................................................... 28 Webster v. Reproductive Health Services, p. 536 ............................................................................................... 28 Rust v. Sullivan, p. 534 ...................................................................................................................................... 28 Planned Parenthood of Central Missouri v. Danforth, p. 531 ............................................................................ 29 Bellotti v. Baird; Planned Parenthood Assn. of Kansas City v. Ashcroft; Ohio v. Akron Center for Reproductive Health, pp. 532 ............................................................................................................................. 29 Hodgson v. Minnesota, p. 532 ............................................................................................................................ 29 Planned Parenthood of Southeastern PA v. Casey, p. 537 ................................................................................. 29 Mazurek v. Armstrong, p. 556 ........................................................................................................................... 30 Sternberg v. Carhart, p. 556 ............................................................................................................................... 30
FAMILY RELATIONSHIPS ...................................................................................................................................................... 30
Loving v. Virginia, p. 559 .................................................................................................................................. 30 Zablocki v. Redhail, p. 559 .................................................................................................................................. 31 Turner v. Safley, p. 560 ...................................................................................................................................... 31 Moore v. East Cleveland, p. 561 ......................................................................................................................... 31 Belle Terre v. Boraas, p. 563 ............................................................................................................................... 32 Troxel v. Granville, p. 563 .................................................................................................................................. 32 Michael H. v. Gerald D. , p. 565......................................................................................................................... 33
SEXUALITY ................................................................................................................................................................................. 34
Bowers v. Hardwick, p. 568 (Overruled by Lawrence v. Texas, supp. p. 11) ..................................................... 34 Lawrence v. Texas, supplement p. 11 (Overrules Bowers v. Hardwick, p. 568) ................................................ 35 Lofton v. Secretary of the Department of Children and Family, linked from syllabus online ............................ 36 Powell v. State, p. ** probably not in the case book – this was a note in the supplement ................................... 36 Youngberg v. Romeo, p. 574 ............................................................................................................................... 36 Kansas v. Hendricks, p. 574................................................................................................................................ 36
RIGHT TO DIE ........................................................................................................................................................................... 36
Cruzan v. Director, Missouri Dept. of Health, p. 575 ........................................................................................ 36 Washington v. Glucksberg, p. 578 ...................................................................................................................... 37 Vacco v. Quill, p. 588 ......................................................................................................................................... 38
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PROCEDURAL DUE PROCESS: RIGHT TO A HEARING................................................................... 38
DEPRIVATION OF LIBERTY AND PROPERTY INTERESTS ......................................................................................... 38
Goldberg v. Kelly, p. 590 .................................................................................................................................... 39 Board of Regents v. Roth, p. 591......................................................................................................................... 39 Perry v. Sinderman, p. 592 ................................................................................................................................. 39 Arnett v. Kennedy, p. 595 .................................................................................................................................. 39 Bishop v. Wood, p. 595 ....................................................................................................................................... 39 Cleveland Board of Education v. Loudermill, p. 595 [clarifies Arnett v. Kennedy] ........................................... 40
LIBERTY HAS A NARROW SCOPE IN PROCEDURAL DUE PROCESS ...................................................................... 40
Paul v. Davis, p. 596 .......................................................................................................................................... 40 Meachum v. Fano, p. 597 ................................................................................................................................... 40 Bell v. Wolfish, p. 597 ......................................................................................................................................... 40 Vitek v. Jones, p. 598 .......................................................................................................................................... 41 Matthews v. Eldridge, p. 599 .............................................................................................................................. 41
EQUAL PROTECTION ..................................................................................................................... 41
RATIONALITY REQUIREMENT: ECONOMIC AND SOCIAL REGULATIONS; ..................................................... 42
Under- and Over-inclusive Classifications......................................................................................................... 42 F.S. Royster Guarano Co. v. Virginia, p. 606 .................................................................................................... 43 Lindsey v. Natural Carbolic Gas Co., p. 606 ...................................................................................................... 43
RATIONAL REVIEW – BEFORE JUSTICE WARREN ........................................................................................................ 43
Railway Express Agency v. New York, p. 609 ................................................................................................... 43
DEFERENTIAL EQUAL PROTECTION- DURING WARREN ......................................................................................... 44
Williamson v. Lee Optical Co., p. 611 ................................................................................................................ 44 McGowan v. Maryland, p. 612 .......................................................................................................................... 44 McDonald v. Board of Election Commissioners, p. 612 ..................................................................................... 44
RATIONALITY REVIEW – DIFFERENT LEVELS OF “BITE” AFTER WARREN (1970’S) .......................................... 44
U.S. Dept of Agriculture v. Moreno, p. 613 ....................................................................................................... 45 New Orleans v. Dukes, p. 614 ............................................................................................................................ 45 Massachusetts Bd. of Retirement v. Murgia, p. 614 .......................................................................................... 45 New York Transit Auth. v. Beazer, p. 615 ......................................................................................................... 45 U.S. Railroad Retirement Br. v. Fritz, p. 616 ..................................................................................................... 45 Schweiker v. Wilson, p. 620 ................................................................................................................................ 46 Logan v. Zimmerman Brush Co., p. 622 ............................................................................................................ 46 Allegheny Pittsburgh Coal v. Webster County, p. 623 ...................................................................................... 46 Nordlinger v. Hahn, p. 623 ................................................................................................................................ 46 FCC v. Beach Communications, p. 624 .............................................................................................................. 46
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Village of Willowbrook v. Olech, p. 625 ............................................................................................................. 47
RACE CLASSIFICATIONS ...................................................................................................................................................... 47
Strauder v. West Virginia, p. 629 ...................................................................................................................... 47 Korematsu v. United States, p. 631 .................................................................................................................... 47 Loving v. Virginia, p. 633 .................................................................................................................................. 47 McLaughlin v. Florida, p. 635 ............................................................................................................................ 47 Palmore v. Sidoti, p. 635 ..................................................................................................................................... 47 Plessy v. Ferguson, p. 637 [separate but equal is equal] – overturned by Brown v. Board of Ed-I .................... 48 Gaines v. Canada, p. 639– overturned by Brown v. Board of Ed-I..................................................................... 48 Brown v. Board of Education [Brown 1 – the Constitutional Ruling] – overturns Plessy v. Ferguson, p. 639 48 Bolling v. Sharpe, p. 643 ..................................................................................................................................... 48 Johnson v. Virginia, p. 644 ................................................................................................................................. 48 Brown v. Board of Education [Brown II – the Implementation Decision], p. 645 .............................................. 49
GENDER ...................................................................................................................................................................................... 49
Bradwell v. State, p. 648 ..................................................................................................................................... 49 Minor v. Hapersett, p. 648 ................................................................................................................................. 49 Goesaert v. Cleary, p. 649 ................................................................................................................................... 49 Reed v. Reed, p. 650 ............................................................................................................................................ 50 Frontinero v. Richardson, p. 650 ........................................................................................................................ 50 Craig v. Boren, p. 652 ......................................................................................................................................... 50 Mississippi University for Women v. Hogan, p. 656 ......................................................................................... 50 J.E.B. v. Alabama, p. 658 .................................................................................................................................... 51 United States v. Virginia, p. 659 ........................................................................................................................ 51 Gedulig v. Aiello, p. 671 ..................................................................................................................................... 51 Michael M. v. Superior Court, p. 672 ................................................................................................................ 52
WHEN IS SEX AN APPROPRIATE PROXY FOR CLASSIFICATION? .......................................................................... 52
Rostker v. Goldberg, p. 674 ................................................................................................................................. 52 Caban v. Mohammed, p. 677 .............................................................................................................................. 52 Parham v. Hughes, p. 677 .................................................................................................................................. 52 Nguyen v. I.N.S., p. 678 ..................................................................................................................................... 53
PREFERENTIAL TREATMENT OF WOMEN ...................................................................................................................... 53
Kahn v. Shevin, p. 681 ........................................................................................................................................ 53 Orr v. Orr, p. 682 ............................................................................................................................................... 53 Weinberger v. Weisenfeld, p. 682 ....................................................................................................................... 53 Califano v. Goldfarb, p. 683 ................................................................................................................................ 54 Califano v. Webster, p. 683 ................................................................................................................................. 54
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Wengler v. Druggists Mutual Ins. Co., p. 684 ................................................................................................... 54 Schlesinger v. Ballard, p. 684 ............................................................................................................................. 54
ALIENAGE .................................................................................................................................................................................. 54
Graham v. Richardson, p. 685 ............................................................................................................................ 54 In re Griffiths, p. 686 .......................................................................................................................................... 54 Sugarman v. Dougall, p. 686 .............................................................................................................................. 54 Foley v. Connelie, p. 687 ..................................................................................................................................... 55 Ambach v. Norwich, p. 687 ................................................................................................................................ 55 Bernal v. Fainter, p. 687 ..................................................................................................................................... 55 Toll v. Moreno, p. 688 ........................................................................................................................................ 55 Hampton v. Mow Sun Wong, p. 688 ................................................................................................................. 56 Mathews v. Diaz, p. 689 ..................................................................................................................................... 56
NON-MARITAL CHILDREN .................................................................................................................................................. 56
Levy v. Louisiana, p. 690 .................................................................................................................................... 56 Trimble v. Gordon, p. 691................................................................................................................................... 56 Clark v. Jeter, p. 692 ........................................................................................................................................... 56
DISABILITIES............................................................................................................................................................................. 56
Cleburne v. Cleburne Living Center, Inc., p. 693............................................................................................... 56
PURPOSEFUL DISCRIMINATION AND PURPOSE-IMPACT DISTINCTION .......................................................... 57
Yick Wo v. Hopkins, p. 713 ................................................................................................................................ 57 Gomillion v. Lightfoot, p. 715 ............................................................................................................................. 57 Griffin v. County School Board of Prince Edward County, p. 715 .................................................................... 58 Palmer v. Thompson, p. 715 ............................................................................................................................... 58 Washington v. Davis, p. 717 .............................................................................................................................. 58 Arlington Heights v. Metropolitan Housing Corp., p. 721 ................................................................................ 59 Personnel Administrator of Mass v. Feeney, p. 723 ........................................................................................... 59 Rogers v. Lodge, p. 726 ....................................................................................................................................... 60 Hunter v. Underwood, p. 732 ............................................................................................................................. 60
SCHOOL DESEGREGATION AND THE DE JURE – DE FACTO DISTINCTION ...................................................... 60
Green v. County School Board, p. 734 ................................................................................................................ 60 Swann v. Charlotte-Mecklenburg Board of Education , p. 735 .......................................................................... 61 Keyes v. School District, p. 736 .......................................................................................................................... 61 Dual Educational Systems: Brown v. Board of Education, Columbus Board of Education v. Penick, Dayton Board of Education v. Brinkman, p. 738............................................................................................................. 61 Milliken v. Bradley, p. 741 ................................................................................................................................. 61 Missouri v. Jenkins, p. 743 ................................................................................................................................. 61
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Board of Educ. Of Oklahoma City v. Dowell, Freeman v. Pitts, p. 745 ............................................................. 61 United States v. Fordice, p. 746 .......................................................................................................................... 61
RESTRUCTURING THE POLITICAL PROCESS THAT DISADVANTAGE MINORITIES ...................................... 62
Hunter v. Erickson, p. 747 ................................................................................................................................. 62 Washington v. Seattle School District, p. 747 .................................................................................................... 62 Crawford v. Los Angeles Board of Education, p. 749 ......................................................................................... 62
BENIGN USE OF RACIAL CRITERIA AND THE PROGRESSION OF STRICT SCRUTINY ................................... 62
Regents of Univ. of California v. Bakke, p. 752 .................................................................................................. 62 Hopwood v. Texas, p. 765 ................................................................................................................................... 63
RACE PREFERENCES IN PUBLIC EMPLOYMENT AND CONTRACTING SINCE THE 1980S .............................. 63
Wygant v. Jackson Board of Education, p. 766 ................................................................................................... 63 Fullilove v. Klutznick, p. 768.............................................................................................................................. 63 Richmond v. J.A. Croson Co., p. 770 .................................................................................................................. 64 Metro Broadcasting, Inc. v. FCC, p. 784 ............................................................................................................ 64 Adarand Constructors, Inc. v. Pena, p. 786 ....................................................................................................... 64
SUPPLEMENT CASES HERE – PP. 21-35............................................................................................................................... 65
Grutter v. Bollinger, p. supp 21.......................................................................................................................... 65 Gratz v. Bollinger, p. supp 31 ............................................................................................................................. 65
“FUNDAMENTAL INTERESTS” STRAND OF EQUAL PROTECTION STRICT SCRUTINY ................................. 65 DENIAL OF VOTING RIGHTS .............................................................................................................................................. 65
Harper v. Virginia, p. 795 .................................................................................................................................. 65 Kramer v. Union Free School District No. 15, p. 798 ........................................................................................ 66 Other Types of Restrictions on Voting, p. 799 ................................................................................................... 66
VOTE DILUTION: REAPPORTIONMENT CASES, GERRYMANDERING, AND RACE-CONSCIOUS DISTRICTING ............................................................................................................................................................................ 67
Reynolds v. Sims, p. 804 ..................................................................................................................................... 67 Davis v. Bandemer, p. 813 (1986) ...................................................................................................................... 69
RACE-CONSCIOUS DISTRICTING ...................................................................................................................................... 69
Shaw v. Reno [Shaw I], p. 818 ............................................................................................................................ 69 Miller v. Johnson , p. 824 ................................................................................................................................... 69 Shaw v. Hunt [Shaw II], p. 826 .......................................................................................................................... 69 Bush v. Vera, p. 826 ........................................................................................................................................... 70 Hunt v. Cromartie, p. 829 .................................................................................................................................. 70
ACCESS TO THE BALLOT: RESTRICTIONS ON CANDIDATES AND PARTIES .................................................... 70
Williams v. Rhodes, p. 831 ................................................................................................................................. 70 Jenness v. Fortson, p. 832 ................................................................................................................................... 70 Bullock v. Carter, and Lubin v. Panish, p. 832 ................................................................................................... 71
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Clements v. Fashing, p. 833................................................................................................................................ 71 Anderson v. Celebrezze, p. 833 ........................................................................................................................... 71 Burdick v. Takushi, p. 834 .................................................................................................................................. 71 Timmons v. Twin Cities Area New Party, p. 835 .............................................................................................. 71 California Democratic Party v. Jones, p. 837 ..................................................................................................... 71
ACCESS TO COURTS ............................................................................................................................................................... 72
Griffin v. Illinois, p. 838 ..................................................................................................................................... 72 Douglas v. California, p. 840 .............................................................................................................................. 72 Ross v. Moffitt, p. 841 ........................................................................................................................................ 72
ECONOMIC BARRIERS AND CIVIL LITIGATION .......................................................................................................... 72
Boddie v. Connecticut, p. 842 ............................................................................................................................. 72 United States v. Kras, p. 843 .............................................................................................................................. 72 Little v. Streater, p. 843 ...................................................................................................................................... 72 M.L.B. v. S.L.V., p. 844 ...................................................................................................................................... 72 Shapiro v. Thompson, p. 848 .............................................................................................................................. 73 Dandridge v. Williams, p. 849 ............................................................................................................................ 73 Lindsey v. Normet, p. 850 .................................................................................................................................. 73 San Antonio Independent School Dist. v. Rodriguez, p. 851 ............................................................................. 73 Plyer v. Doe, p. 859 ............................................................................................................................................ 73
POST-CIVIL WAR AMENDMENTS AND CIVIL RIGHTS LEGISLATION: CONSTITUTIONAL RESTRAINTS ON PRIVATE CONDUCT; CONGRESSIONAL POWER TO IMPLEMENT THE AMENDMENTS .............................................................................................................................. 73
LAWS OF THE RECONSTRUCTION ERA ........................................................................................................................... 75
1866 Act.............................................................................................................................................................. 75 1870 Act.............................................................................................................................................................. 75 1871 and 1875 Acts ............................................................................................................................................ 75
MODERN COUNTERPARTS .................................................................................................................................................. 75
Criminal Provisions ............................................................................................................................................ 75 Civil Provisions .................................................................................................................................................. 75 Civil Rights Act of 1964 ..................................................................................................................................... 75
PROBLEMS OF STATE ACTION ........................................................................................................................................... 75
19th Century Enforcement .................................................................................................................................. 75 20th Century Enforcement .................................................................................................................................. 76 Marsh v. Alabama, p. 872 ................................................................................................................................... 76 Hudgens v. NLRB, p. 873 .................................................................................................................................. 77 Evans v. Newton, p. 874 ..................................................................................................................................... 77
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THE WHITE PRIMARY CASES .............................................................................................................................................. 77
Nixon v. Herndon, p. 875 ................................................................................................................................... 77 Nixon v. Condon, p. 875 ..................................................................................................................................... 77 Grovey v. Townsend, p. 875 [Overruled by Smith v. Allwright]....................................................................... 78 Smith v. Allwright, p. 875 [Overrules Grovey v. Townsend] ............................................................................ 78 Terry v. Adams, p. 876 ....................................................................................................................................... 78
PUBLIC FUNCTION DOCTRINE NARROWS .................................................................................................................... 78
Jackson v. Metropolitan Edison Co., p. 876 ........................................................................................................ 78 UCC – Uniform Commercial Code (adopted in all states) .................................................................................. 78 Flagg Bros., Inc. v. Brooks, p. 877 ...................................................................................................................... 78
NEXUS STRAND OF STATE ACTION ................................................................................................................................. 79
Shelley v. Kraemer, p. 879 .................................................................................................................................. 79 Barrows v. Jackson, p. 882 .................................................................................................................................. 79 Evans v. Abney, p. 883 ....................................................................................................................................... 79 Pennsylvania v. Board of Directors of Trusts, p. 883 ......................................................................................... 79 Bell v. Maryland, p. 884 ..................................................................................................................................... 80 Burton v. Wilmington Parking Authority, p. 885 ............................................................................................. 80 Derrington v. Plummer, p. 888 .......................................................................................................................... 80 Gilmore v. Montgomery, p. 888 ......................................................................................................................... 80
LICENSES STATE ACTION ................................................................................................................................................. 80
Moose Lodge No. 107 v. Irvis, p. 889 ................................................................................................................. 80 CBS, Inc. v. Democratic Nat. Comm., p. 891 ..................................................................................................... 80
STATE ACTION THROUGH STATE “ENCOURAGEMENT” AND “AUTHORIZATION” ..................................... 81
Reitman v. Mulkey, p. 891 ................................................................................................................................. 81
STATE ACTION SINCE THE 1980’S ...................................................................................................................................... 81
Blum v. Yaretsky, p. 898 .................................................................................................................................... 81 Rendell-Baker v. Kohn, p. 899 ............................................................................................................................ 81 Lugar v. Edmondson Oil Co., p. 899 .................................................................................................................. 82 NCAA v. Tarkanian, p. 900 ............................................................................................................................... 82 San Fran. Arts & Athletics v. U.S.O.C., p. 901 ................................................................................................. 82 Edmondson v. Leesville Concrete Co., p. 901 ..................................................................................................... 82 DeShaney v. Winnebago Cty. Soc. Servs. Dept., p. 902 ..................................................................................... 82 Brentwood Academy v. Tennessee Secondary School Athletic Ass‟n, p. 904 ..................................................... 82
CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCES WITH CONSTITUTIONAL RIGHTS ....................................................................... 83
SOURCES OF CONSTITUTIONAL RIGHTS ...................................................................................................................... 83
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PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CRIMINAL SANCTIONS ................................................. 83
United States v. Guest, p. 906 ............................................................................................................................ 83
PROBLEMS WITH APPLYING CRIMINAL SANCTIONS TO STATE-INVOLVED DEFENDANTS INTERFERING WITH 14TH AMENDMENT RIGHTS ........................................................................................................ 84
State v. Price, p. 910 ........................................................................................................................................... 84 The Williams Cases, p. 911 ................................................................................................................................. 84 Screws v. United States, 1945, p. 912 ................................................................................................................ 84
§245 OF THE CIVIL RIGHTS ACT OF 1968 .......................................................................................................................... 85 PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CIVIL SANCTIONS ........................................................... 85
Griffin v. Breckenridge, p. 916............................................................................................................................ 85 United Brotherhood of Carpenters v. Scott, p. 917 ............................................................................................. 85 Bray v. Alexandria Women‟s Health Clinic, 1993, p. 918 ................................................................................. 85 National Organization for Women, Inc. v. Schneider (1994), p. 919 ................................................................ 86 Monroe v. Pape, p. 919 ....................................................................................................................................... 86
CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT UNDER THE 13TH AMENDMENT ..................... 86
Jones v. Alfred H. Mayer, Co., 1968, p. 920 ....................................................................................................... 86
13TH AMENDMENT POWERS AND THE 1866 ACT .......................................................................................................... 87
Sullivan v. Little Hunting Park, p. 923.............................................................................................................. 87 Runyon v. McCrary, p. 924................................................................................................................................ 87
CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER §5 OF THE 14TH AMENDMENT ................ 87
South Carolina v. Katzenbach, p. 925................................................................................................................. 88 Lassiter v. Northampton County Election Bd., p. 927 ....................................................................................... 88 South Carolina v. Katzenbach, p. 927................................................................................................................. 88 Oregon v. Mitchell, p. 929 .................................................................................................................................. 88
SCOPE OF CONGRESSIONAL POWER TO ENFORCE VOTING RIGHTS: “REMEDIAL” OR “SUBSTANTIVE” ..................................................................................................................................... 89
Katzenbach v. Morgan, p. 930 ............................................................................................................................ 89 Oregon v. Mitchell, p. 937 .................................................................................................................................. 89 Rome v. United States, p. 939 ............................................................................................................................ 89 City of Boerne v. Flores, p. 940 ........................................................................................................................... 89
CONGRESS CANNOT ABROGATE STATE SOVEREIGN IMMUNITY ...................................................................... 90
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, p. 947 .............................. 90 US v. Morrison, p. 949 ....................................................................................................................................... 90 Kimmel v. Florida Board of Regents, p. 952 ....................................................................................................... 90 Board of Trustees of Univ. of Alabama v. Garrett, p. 953 .................................................................................. 90 Nevada Dept of Human Resources ..................................................................................................................... 91
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Exam: Will be on the first day of exam period; 2 typical essay questions; Sup Ct opinion – of which we will be asked to complete, including at least one dissent (optionally - in a style of a particular justice)
BILL
OF
RIGHTS
AND
POST CIVIL WAR AMENDMENTS
PRE-CIVIL WAR: WHAT THE AMENDMENTS APPLY TO Generally, original Constitution only deals with government structure The First Congress adds protection for individuals in the Bill of Rights Barron v. Mayor and City Council of Baltimore p. 412 Fifth Amendment is inapplicable to the states Facts: A wharf owner wanted to sue the Mayor and City Council of Baltimore when construction on the streets created a buildup of sand in his wharf, making it difficult for large vessels to dock there Procedural Posture: Trial ct awarded $45K; St appellate ct reversed; Barron brought it before US Sup Ct on basis of a 5th Amendment Claim – ct agreed to hear it in order to determine if the “just compensation” clause of the 5th amendment limits state authority – Ruled that it did not and DISMISSED THE CASE Issue: Is the 5th amendment “just compensation” clause applicable to states? No. It is by the ppl for their gov‟t (Fed) and not for the States‟ govt and the BOR (Bill of Rights) does not contain a general or express provision to extend those reqs to state govts; see §§ 9, 10 of Art. I RULE: The “just compensation” provision of the Fifth Amendment does not apply to the states. Reasoning: Had the framers wanted those rights to apply against the states, they would have included an express provision saying so POST CIVIL WAR Generally: Narrowly Applicable: Sup Ct reads the 13th and 14th amendments narrowly and applies them only to former slaves and African-Americans, then declines to make the BOR applicable to the states Expanded View: Wider view later adopted to protect individual rights under the 14th amendment‟s clauses Slaughter-House Cases p. 415 13th and 14th Amendment narrowly limited by Supreme Court to apply only to former slaves and African-Americans only Facts: Louisiana passed a law creating a 25-year monopoly in 1869 for slaughterhouses; other butcher companies could use the company‟s facilities to slaughter cattle but at prices set at statute; the law was challenged on a claim that it deprived butchers and cattle companies from the ability to exercise their trade Issue: Do the post-civil war amendments apply broadly to everyone, or just African Americans?
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Procedural Posture: Law was challenged up to the highest state court which sustained the law; here the Sup Ct AFFIRMED the state sup ct‟s ruling Holding: The intent of the 13th (no involuntary servitude) and 14th (equal protection) amendments apply to former slaves and African Americans o o The right to pursue the profession of one‟s choice is an unenumerated right provided by the Constitution This holding takes an Originalist position by narrowly holding that slaughterhouse operators were not among the class of persons intended to benefit from the legislation Textual Argument – follows that P&I only applies for those rights enjoyed as a citizen of the United States – but then ask… is that right (right to pursue one‟s trade) P&I clause applies to Federally-available rights
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Shapiro v. Thompson p. 426 Equal Protection clause requires that state statutes must survive STRICT scrutiny, even if they are not suspect, when they invade a fundamental right Facts: Similar to Saenz v. Roe; denied welfare to those persons not residing in state for 1 year Holdings against this law were inconsistent Holding here: Justice Brennan – waiting period requirement is creating 2 classes of citizens of the state Rule: It is unconstitutional to inhibit migration by needy persons into the State. (p. 427) Any classification that serves to penalize the exercise of a constitutional right is invalid unless it promotes a compelling governmental interest. FUNDAMENTAL RIGHTS include 1) Freedom of association, 2) Right to Interstate Travel, 3) Right to Privacy, 4) Right to Vote Dunn v. Blumstein p. 427 Durational residency requirements in voting must be reviewed with strict scrutiny because they curtail fundamental voting right as well as the right to travel. Facts: A TN state law requiring 1 year residence before being able to vote was invalidated Any classification which serves to penalize an exercise would meet with strict scrutiny Memorial Hospital v. Maricopa County p. 428 A state cannot penalize an indigent for exercising his right to migrate and seek healthcare in wherever state he settles. Facts: AZ law required 1 year residence of indigent persons before providing them with free non-emergency hospitalization or medical care Holding: Invalid because like welfare, medical care is a basic necessity of life for an indigent
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Saenz v. Roe p. 428 A state must provide the same privileges and immunities (such as travel) to new residents as it does to other citizens. Facts: Citizens who lived in the state for a longer amount of time received higher welfare benefits than new citizens of the state, or the amount was dependent upon the amount payable by the prior state of residence Procedural Posture: Law was struck down, citing 14th amendment‟s Privileges and Immunities Clause because ppl have the right to migrate freely through the US without their privileges being violated Unenumerated right to move freely about the United States (P&I of CA citizens who, regardless of their length of residency, then gets different benefits) Cites a distinction between a benefit which is portable (such as coming into the state, getting a cheap, state-subsidized education then leaving) and one which is non-portable, such as welfare benefits Crandall v. Nevada p. 426 A state cannot tax persons on their movement within and out of the state Facts: Cited in the Slaughter-house cases, the state taxed persons leaving the state via common carriers Procedural Posture: Court invalidated the law; came before the 14th amendment was ratified but made use of the phrase “come to the seat of the Government” to mean that ppl can move freely among the states Edwards v. California p. 426 A state cannot pass an “anti-Okie” law disallowing persons to bring someone into the state if that person is indigent. Facts: Law passed making it a misdemeanor to bring an indigent person into CA, knowing that person to be indigent Procedural Posture: Unanimously struck down, although for differing reasons among the justices; Justice Byrnes = Commerce Clause; Justice Douglas = P&I of 14th amendment (joined by Justices Black & Murphy) This infringes upon the right to travel
COURT APPLIES THE DUE PROCESS CLAUSE In order to extend federal constitutional provisions to the states Debates over whether Due Process (DP) incorporates all BOR guarantees, making them applicable to the states or if DP incorporates only selected guarantees Palko v. Conneticut, p. 435 Only those rights that are “of the very essence of a scheme of ordered liberty” are necessary for DP and there should not be total incorporation, rather selective incorporation [Justice Cardozo] Facts: Connecticut state law allowed the State to take appeals cases for criminal actions; Palko‟s 2d murder charge was set aside and he had a second trial – Palko claimed 5th
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN amendment double jeopardy, but the ct said BOR does not apply to give guarantees of protection to the states – some BOR rights are applicable to the States and others aren‟t Ct reaffirmed this position 10 years later by rejecting a position by Justice Black: Black was of the opinion that the original purpose of the 14th amendment was to incorporate all of the BORs, and To use “natural law” to judge the scope of constitutional protections of “fundamental liberty and justice” – this position was overruled because it was too subjective Adamson v. California, p. 436 5th Amendment self-incrimination does not apply to the states Facts: Adamson challenged his murder conviction because prosecution commented on his refusal to testify in prior proceeding and thus violated his 14th amendment “Fair Trial” right CRIMINAL PROCEDURE RIGHTS ALMOST COMPLETELY INCORPORATED Almost all of the guarantees available in the BOR applying to criminal procedure are incorporated by the 14th Amendment and are thus applicable to the states Grand jury indictment (5th amendment) and the “no excessive bail” (8th amendment) clauses are not incorporated Types of Incorporation: incorporating the BOR rights into those rights available as a citizen of the individual states Total: 14th amendment‟s purpose was to completely incorporate to apply BOR to the states; and when we use this, the text itself is provided to constrain how this applies to the states [within the text itself, it is self-regulating from being overly powerful] The problem is with 1st amendment – you can‟t because of the text limiting Congress‟ right to make such laws; 14th amendment‟s due process clause creates a referral problem… it is circular because 14th refers to 5th and back and forth if you make the BOR apply to the states And if the 14th amendment DP clause – why do you have it when you already had the 5th amendment? Selective: [this is where the courts are now] Wiseman not completely comfortable with this as it was deployed by Cardozo was that you can‟t really call it incorporation if you have to incorporate them – if those rights are so fundamental, why then do you have to spend so much energy determining if they should be included – as part of due process; doctrine now incorporates almost all crim None:
Duncan v. Louisiana, p. 441 6th Amendment right to jury trial is fundamental and applicable to states in prosecutions involving possible two-year prison term Facts: Duncan was convicted of simple battery, punishable by up to 2 years imprisonment (e got 60d + $150 fine); he brought Writ of Cert on basis that state denied him his right to jury trial
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Holding: Louisiana court looked to LA constitution which said jury trial only for capital crimes and prison with hard labor but this violated 14th amendment right to jury trial and Sup Ct reversed his conviction Justices argued over whether selective or total incorporation was the best way to go LATER: Baldwin v. NY = “A state must provide a right to jury trial for any offense where imprisonment for more than 6 months is authorized” Williams v. Florida, p. 447 Specific rights within the Crim Pro incorporated rights do not have to be followed in a mandatory manner Facts: FL case where petitioner wanted reversal of robbery conviction because he was tried by jury of 6 rather than 12 (FL only required 12 in capital cases) – here Justice White said “trial by Jury” did not mean that 12 person panel was essential Such as specific rights within Crim Pro are not mandatory – number of jurors may be different from 12 and still satisfy the Constitution – it is a federal standard and not a REQUIREMENT, e.g., not a “necessary ingredient” of the right to a jury trial to have 12 jurors Apodaca v. Oregon, p. 446 Unanimous jury verdict does not “materially contribute” to the core function of the right to a jury trial Facts: Ct upheld a un-unanimous jury verdict in a state case; on Oregon it was only necessary to have 10 of 12 jurors agree
SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL
“Nor shall any State deprive any person of life, liberty, or property, without due process of law.” Substantive Due Process identifies the lines that laws cannot cross. When those lines are crossed, they are invalid unless they pass the threshold of scrutiny. Requires: Compelling state interest, narrowly tailored THE EARLY YEARS- NATURAL LAW JUSTIFICATION Sup Ct drew from the natural law tradition of England, feeling that it should be the general guarantor of fundamental rights [but no explicit text in the Constitution granted them this leeway] Calder v. Bull, p. 453 Rights of personal liberty or of private property are examples of natural law that should not be infringed on by legislative acts There, a Connecticut law that set aside a probate court‟s decree disapproving a Will was upheld; the heirs wanted the Will declared void, claiming that the Connecticut law was an ex-post factor law; the Court rejected their argument in favor of an interpretation that the ex post facto clause applied to criminal legislation
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Congress cannot allocate powers without explicit limitations, and if any act of Congress or of the Legislature violates this constitutional provision, it is VOID. If, however, a law is passed that is within the general scope of Congress‟ constitutional powers, it is NOT for a court to pronounce it void merely because it is contrary to the principles of natural justice. [natural law standard is too subjective] Fletcher v. Peck, p. 454 [Outdated] Marshall advocated natural law, justifying it on the basis that it those decisions should be followed “either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States.” Georgia law revoking a land grant declared invalid Munn v. Illinois, p . 456 Private property may be regulated when it is affected with a public interest, becoming so when it is used in a manner to make it of public consequence and affect the community at large Grain elevator rates in Illinois were getting expensive, and the grain elevator operators had a near monopoly of storage, thus the Court felt it was OK to regulate the rates (but without describing what is appropriate) as if they were a utility or monopoly Mugler v. Kansas, p. 457 It is the duty of the Court to decide whether exercise of police powers invade rights of fundamental law, or whether the exercised powers contain real or substantial relation to what they regulate Law prohibiting intoxicating beverages was sustained Allgeyer v. Louisiana, p. 457 Laws prohibiting consumers from obtaining insurance from companies that were not in full compliance with state law are invalid means of depriving the consumer’s liberty – their freedom to contract – without due process of law This is the first case in which the Court invalidated a law on substantive due process grounds It was a broad articulation of the “liberty to contract” Unanimous decision Allgeyer was convicted of violating the law because he mailed a letter conducting business with a New York insurance company which was not licensed to conduct business in Louisiana THE LOCHNER ERA – RISE OF JUDICIAL INTERVENTION Sup Ct expanded use of substantive due process by striking down state regulations that the justices believed unduly interfered with the “liberty” protected by the 14th Amendment This is the era of increased scrutiny of economic regulation as a burden on due process
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Early Lochner-era cases imposed a higher standard of strict scrutiny, requiring laws that infringed on liberty to be closely and rationally related to some legitimate and important concept of public health, safety or other purpose Lochner v. New York, p. 458 A law infringing on freedom in the marketplace and from freedom to contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose Law Challenged: NY law prohibiting bakery employees from working more than 10 hours per day or 60 hours per week – declared invalid because o o o o Does not protect the health of an individual engaged in the occupation of a baker Numbers of hours worked by a baker does not bear relation to outcome of bread Does not involve the safety, morals, or welfare of the public The act is not a health law, but one which illegally interferes with the rights of employers and employees to make contracts regarding labor
Lochner was convicted of violating this provision by allowing one of his employees to exceed the statutory hours Reasoning: While a similar law related to mining workers was upheld, the nature of that employment made it such that it was reasonable for the state to interfere with the freedom to contract and protected the health o o o Applied the ends/means rationale – rather poorly Court was not convinced that the motive of the law was a health reason No foundation found by the Court to relate it to a health regulation – if we validate this legislation, what next? [but what of distinctions made by the court later?]
** Wiseman finds it interesting that there is a low degree of deference to the Legislature‟s decisions about employers‟ bargaining power DISSENT: o Justice Harlan: Dissented stating it is not the court‟s business whether or not a law regarding 60-hour work weeks is wise legislation; BUT ct may determine whether the means of an act are germane to a lawful end – because it is a subjective measurement and because there is evidence that bakers labor under conditions which are injurious to their health, this decision is crippling states‟ power to legislate working conditions for the health of their citizens States may make laws that are physically injurious or interfere with one‟s ability to contract (cites 8-hour maximum workdays for minors)
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Justice Holmes:
WHAT‟S WRONG WITH LOCHNER ALONG CONTEMPORARY DOCTRINE?
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o Court‟s judgment should not be allowed to second-guess the legislature Level of scrutiny, on a 0-10 scale = More scrutiny, then lower deference to Legislature o o And the higher the scrutiny, there must be valid justification No fundamental right = rational basis level of review
Level of deference on the same scale = More deference, then lower scrutiny Is the end conceivable? And the means arguably applies to what it seeks to protect
EXAMPLES OF LOCHNER-ERA JUDICIAL SCRUTINY OF ECONOMIC REGULATIONS Muller v. Oregon, p. 466 Legislation to protect women is OK, “to compensate for some of the burdens which rest upon her” Contested Law: Oregon law banning any female from working in any factory or laundry for more than 10 hours per day o Muller broke that law and was convicted Justice Brewer stated that – it was obvious that the physical structure of women put them at a disadvantage in the workplace o Justified it by stating that it was in the public interest to protect women because their health was essential to „vigorous offspring‟
Bunting v. Oregon, p. 466 Male and female factory workers shall have a maximum 10-hour work day but shall be able to work 3 hours additional at a rate of time-and-a-half Coppage v Kansas, p. 467 Unless it is a reasonable exercise of the police power of the state, any interference with the right to make contracts is invalid Challenged Law: “Yellow Dog” law in which it was unlawful for employers to require employees to refrain from joining labor unions Employees are unable to bargain for their services the same way that the employers may bargain to provide employment – unequal bargaining power Labor groups enable employees to contract effectively Adair v. United States, p. 468 No “Yellow Dog” contracts on Interstate Railroads Dissent: Justice Harlan, “right of a person to sell his labor upon such terms as he deems proper is the same as the right of the purchaser of labor to prescribe the conditions. The employer and employee
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Adkins v. Children’s Hospital, p. 468 *(later overruled by West Coast Hotel) Paying women minimum wage violates due process* [Overruled 14 years later by West Coast Hotel v. Parrish, p. 471 bottom] 19th amendment had been adopted, so women‟s civil inferiority was vanishing Liberty to contract could not be subjected to greater restriction in the case of women than men Ct didn‟t like this law because: o o o It compelled payment without regard to the employment contract It compelled payment without regard to the business involved or the work performed Essentially found to be violaticve of the employer‟s rights
Munn v. Illinois, p. 468 Rate regulation only permissible for businesses “affected with a public interest” Stated the general rule: o A State legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property issued, unless the business or property involved is “affected with a public interest.”
New State Ice Co. v. Liebman, p. 469 Laws treating private business as a public utility are invalid means of restricting business entry Court invalidates an OK law which treated the manufacture of ice like a public utility requiring a certificate of convenience and necessity as a prerequisite to enter the business Weaver v. Palmer Bros. Co., p. 469 It is a valid interest of the State to regulate business practices that may defraud consumers or injure their health Contested Law: law banning all mattress filling with shoddy (cut up or torn up fabrics) Majority held it an invalid because it was a total prohibition Total ban was justifiable because of health reasons THE MODERN ERA: DECLINE OF JUDICIAL SCRUTINY OF ECONOMIC REGULATION Nebbia v. New York, p. 469 Price controls which are non-discriminatory and bear a rational relation to a proper legislative purpose are constitutional Contested Law: Showed deference to the legislature
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN West Coast Hotel Co. v. Parrish, p. 471 *(Overrules Adkins) Minimum Wage Laws for Women are Valid Protection of women from unscrupulous employers Exploitation of a class of workers who are on an unequal position with respect to bargaining power is detrimental to their health and well being, and casts a direct burden on the community to support them if they cannot earn at least a minimum wage THIS CASE OVERRULES ADKINS v. CHILDREN‟S HOSPITAL MINIMAL JUDICIAL SCRUTINY: AFTER THE NEW DEAL United States v. Carolene Products Co., p. 473 The Court will not challenge the rationality of the Legislature’s basis for a prohibition of inferior products Filled milk, or skim milk with non-milk-fat additives used for fillers was banned from interstate shipment The facts for the rational basis for the legislation are outside the scope of judicial proceedings Olsen v. Nebraska, p. 475 Courts are not concerned with the wisdom, need, or appropriateness of the legislation Williamson v. Lee Optical Co., p. 476 The Court will not overturn economic regulations unless there is no conceivable justification for the regulation So long as some valid, rational purpose could be imagined it will withstand constitutional scrutiny See also Ferguson v. Skrupa Eastern Enterprises v. Apfel, p. 478 Retroactive employment laws will be reviewed with highest scrutiny and will be invalid when they are to compensate costs the employer avoided at the earlier time Contested Law: Coal Industry Retiree Health Benefit Act of 1992 o Paid coal mining workers health benefits from a benefit pool funded by companies that employed coal miners in the past
Here, the company had not been in the coal mining business for a number of years and the Court said it was too remote in time, too retroactive and beyond the scope of due process THE TAKINGS CLAUSE “Nor shall private property be taken for public use, without just compensation.” Whether and when regulation of land use amounts to a taking Gov‟t has 2 options:
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o Buy the property Regulate it so much that it makes it impossible to use
Hawaii Housing Authority v. Midkiff, p. 481 When the exercise of eminent domain power is rationally related to a conceivable public purpose it is not a taking Upheld Hawaii‟s taking of property to lessen concentrated land ownership Even though here the land was later sold the private individuals, it was not only for a private purpose Pennsylvania Coal Co. v. Mahon, p. 482 [TheKohler Act] A regulation that severely restricts land use rights can constitute a taking, which is unconstitutional unless the Government pays just compensation This is the surface rights mining case – the Kohler Act o Court looked at the 27 million tons of coal that had to be left in place as a portion of the total coal held by the company and saw that it was only 2% of their total holdings, thus, the court held it was not a taking
Law prohibited the coal company, which bought the subsurface mining rights below Mahon‟s home from mining the coal because it would cause subsistence of the house Keystone Bituminous Coal Ass’n v. DeBenedictis, p.486 Laws prohibiting subterranean coal mining from damaging preexisting public buildings will not result in a taking This was not a taking because: o o o 1) Protection of public interest in health, environment, economic integrity of the area 2) no showing of a depravation equal to PA Coal 3) It is not a taking to add zoning to place limits on property owner‟s rights to make reasonable use of some segments of their property
Miller v. Schoene, p. 485 When two types of property are in dangerous proximity to each other and there is a necessity of making a choice between the preservation of one class of property and another – it is not a taking to destroy one class of property if doing nothing would have decimated the other class of property Ornamental Red Cedar Trees in Virginia had a communicable plant disease which destroyed apple trees, and the decision by the lower court to pay the owners of those trees the fees necessary to remove them was deemed not a taking by the Supreme Court because the apple industry was more important because, o “When forced to make a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which … is of greater value to the public.”
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Brown v. Legal Foundation of Washington, p. 8, 2003 Supplement (14th Ed.) The rights of the property interest rest with the individuals who may benefit from it IOLTA – Interest in Lawyers Trust Accounts Every state has one in which the attorney fees are pooled The interest generated from the account is used to fund indigent legal services In the Phillips case, the interest is the client‟s property – because the Government‟s regulation created the property – therefore it is “takeable” – Stevens dissented Brown Case – Stevens wrote this opinion – IOLTA is a PER SE taking of the property o There is not violation of the property clause because the measure of just compensation was $0 for the collective attorneys – so the amount of money is just a component of the liability paid to the person being taken from If it was the attorney property, it does not matter if it is worthless, the attorney should direct the use of the worthless property BUT this has implications for other takings – what if you owned property that was worthless and you cannot devise it as you wish even though it does not have a market value ******* This is a violation of basic property rights – since you do not have any right to exclude someone from using it.
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Penn Central Transportation Co. v. New York City, p. 488 Landmark laws, through public policy, are special and property owners cannot claim “investment-backed expectations” that their property was taken when they are asked to comply with the landmark law Penn Central was denied approval to build an office building atop Grand Central Terminal and therefore sued the city stating it was an unconstitutional taking Sup Ct said it was not a taking because landmarks are special, it is akin to a zoning ordinance, and a property owner cannot claim that they had “investment-backed” expectations with regard to the property that they are now not allowed to reap Loretto v. Teleprompter Manhattan CATV Corp., p. 489 Any permanent physical occupation, authorized by the government, without compensation, is a taking NY Law required that rental property owners allow a CATV wire to be installed on their property This case rejects the Penn Coal balancing test as inappropriate Lucas v. South Carolina Coastal Council, p. 490 Any regulation which prohibits all economically beneficial use of land is PER SE invalid Lucas bought 2 beach-front lots he wanted to use to build 1 nice house on – the city said NO because it would interfere with the view of the ocean
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN English Evangelical Lutheran Church c. Los Angeles County, p. 493 Government must compensate individuals for temporary takings of property Regulation was in force when property was purchased Regulation was then challenged The regulation was found to be sufficiently burdensome, and was thus ruled a taking, so the courts ordered payment of the time the property was owned as a partial compensation for the partial taking Palazzolo v. Rhode Island, p. 494 Inverse Condemnation is valid – a property owner who purchases a property which is encumbered by an invalid regulatory taking restriction may challenge the regulation State argued that investment-backed expectations barred the property owner‟s ability to claim that there was a taking – but the court said it should have no bearing on whether a restriction is so substantial to constitute a taking for which compensation should be paid Nollan v. California Coastal Comm’n, p. 494 It is a compensable taking when a city conditions granting a building permit upon receipt of an easement across the property owner’s land The Nollans owned beach-front property and wanted to build a house on it where they had a bungalow on it before, because the public had been using their property as a pass-through to get to the beach, the city conditioned receipt of the building permit on the Nollans granting an easement across the property to the public – the Court said this was a taking for which they should be compensated Dolan v. City of Tigard, p. 495 A restriction on granting a landowner use of their land must be compensated, or if uncompensated, it will be considered a taking if the restriction does not bear a reasonable relationship to the benefit the government seeks to provide in creating and enforcing the regulation Dolan had a store which she wanted to expand, her permit to do so was conditioned upon dedicating 1) 15 feet of the front of the street side for a bike path, 2) portions of the rear of the property for flood/creek control Ct said she must be compensated for this or it will be an invalid conditional requirement because it does not bear a reasonable relationship to the public interest it seeks to protect Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, p. 9, 2003 Supplement (14th Ed.) Temporary development bans must be evaluated on a case-by-case basis and not by the per se ruling A moratorium on development was imposed in Tahoe while the city developed its comprehensive land-use plan Court declined to say that such moratoriums will always be a per se taking, rather the court said it would always seek to look at the circumstances of each case individually
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN NONECONOMIC LIBERTIES: REPRODUCTION; FAMILY; SEX; DEATH Higher scrutiny of laws regulating personal liberty and non-economic rights “Liberty” (during the Lochner-era Court) read broadly in the 14th amendment to mean: o The right to teach foreign language to young children While a state may be able to regulate a reasonable basis, if you articulate it in a manner of fundamental right, it will be met with strict scrutiny – the way you frame the threshold question determines the outcome of the case When a law regulates a fundamental right, it is met with Strict Scrutiny – most laws declared invalid under this level of scrutiny o o Must be a compelling state interest Must be narrowly tailored statute
Rationally Based o Tradition becomes the basis for laws – look at the most specific tradition (Scalia) REPRODUCTION CASES Meyer v. Nebraska, p. 508 “Liberty” includes those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men
Pierce v. Society of Sisters, p. 509 Children do not HAVE to attend public schools, to require so is a violation of a parent’s right to direct the education of children under their control
Skinner v. Oklahoma, p. 509 Sterilization laws invalid violation of fundamental right to procreate OK Habitual Criminal Sterilization Act provided compulsory sterilization after 3rd conviction for felony involving moral turpitude; but embezzlement criminals did not have the same punishment Viewed with strict scrutiny because a fundamental right is implicated Brought as an equal protection case – involved legislation line drawing/classification where thieves and embezzlers (is there any difference?) on different sides of the fence – one gets jail, the other gets sterilized (or one gets jailed and the other gets fined) Courts will defer in these types of cases to the legislation
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Roe v. Wade, p. The State bears the burden of proving that its legislation is necessary to further a compelling state interest
Griswold v. Connecticut, p. 510 The Fundamental right to privacy emanates from the penumbras of the Bill of Rights Contested Law: CN law prohibiting use of birth control and an accessory statute thereof Privacy cannot be invaded absent a showing that the legislation is necessary to accomplish a compelling state interest A state law prohibiting the use of birth control by a married couple or the counseling of a person to use birth control is a violation of the fundamental right of privacy Griswold was director of planned parenthood in CT; arrested for giving birth control advice to married couples This ends up getting characterized as a marital right (contra Eisenstadt) 9th Amendment – unenumerated rights (1st, 3rd, 4th, 5th were cited as creating “zones of privacy”) – thus, Justice Douglas has identified a “theme” of the constitution (the implied fundamental rights which we extrapolate from these amendments) o o o o o 1st: Speech and expression, personal autonomy 3rd: No government intrusion into the home; no soldiers in the home = no police in the home 4th: No unreasonable search and seizure 5th: Due process, can‟t be compelled to self-incriminate/remain silent ** BUT ** Privacy is not mentioned in the Constitution, so you are reading it into the Constitution as a fundamental right
IMPLICIT FUNDAMENTAL RIGHTS: right to educate one‟s child in school of parent‟s choice; right to study language in private school; freedom to associate Textualist Foundation of Douglas‟ Opinion: there is none, he sees it as being so fundamental that it has a textual basis but not explicitly in the language – rather in the extension of the language … and is reasonably inferred Justice Goldberg: Look to the 9th amendment; look at the basic, fundamental, and deeprooted traditions of the society as being the fundamental rights Justice Harlan: Concurs on the ruling but rejects the reasoning – bases his opinion on the Due Process Clause of the 14th Amendment; rejects Douglas‟ approach because some due process rights lend themselves to personal interpretation Justice White Concurred: Applied rational basis level of scrutiny Justice Black: objects to appeal to 9th amendment Justice Stewart: no textual basis in the constitution for this silly law
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Is Griswold different from Lochner (baker work-hours case)? Is the principal of these two cases really just the second-guessing of legislation? Especially when the right to contract is explicit in the Constitution and right to privacy not? Eisenstadt v. Baird, p. 520 It is a violation of the Equal Protection Clause of the 14th Amendment to make it a felony crime to distribute birth control materials to unmarried couples Just because they are married, it does not make them 1 entity as far as rights are concerned, each retains their individual fundamental rights Both married and unmarried people should be allowed contraception (recreational sex for everyone!) Characterized as an individual right Equal protection case – where is the scope of protection? o Do we protect voluntary sex among adults? Of child molesters (just because they are nice enough to wear a condom when they molest their daughters… NO – because this is outside the scope).
Every constitutional case poses a THRESHOLD QUESTION: The right asserted – is it constitutionally protected? Does it fall within the scope? (As for homosexual acts, the court will later ask if such acts are a right within the scope of the asserted right.) o Also – we will see that Constitutional equal protection has to do with people who are similarly situated but are being treated differently
Carey v. Population Services International, p. 520 Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state A state law only allowing pharmacists to distribute contraceptive devices to those persons over the age of 16 violated due process clause of the 14th amendment ABORTION CASES Roe v. Wade, p. 521 Abortion is a fundamental right within the scope of personal liberty protected by due process clause of the 14th amendment – but NOT an absolute right and may be regulated by a state where it has a compelling interest and it draws its statute narrowly to further that interest Ct relies on Griswold Ct must show a compelling state interest This law does not allow the mother due process against the state action o State action depends on how you define it Privacy rights of a pregnant woman is different than others – married individuals, etc… because she is “eating for two”
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o There are limits to the ways the court may intervene This case has to do with a potential life which state has a legitimate interest State‟s interest comes from its Police Power; regulation is justified at the outset of the pregnancy but only become compelling at the point of viability (it is at that point when the Gov‟t has the duty to serve its compelling interest) Comes from State‟s right to act in loco parentis of its citizens
Established the trimester framework for regulating abortion, during the same time the Court decided Planned Parenthood of Southeastern PA v. Casey o o o First trimester – states cannot regulate woman‟s right to have an abortion Second trimester – state‟s interest is greater in protecting the health of the mother Third trimester – Fetus‟ viability is stronger, so the state‟s interest in protecting potential life is compelling; can prohibit abortion except where necessary to preserve health and/or life of mother
Doe v. Bolton, p. 527: GA Companion Case to Roe v. Wade: GA Law was upheld that allowed a physician to perform an abortion when, the physician‟s best judgment deems it necessary to preserve the health or life of the mother White‟s Dissent: With such issues over which reasonable minds differ, what is the appropriate conclusive entity? the Legislature or the judiciary? White said it was not the judiciary o Wiseman says – if reasonable people may differ – take it all the way back to the people who have to make a decision, such as the woman herself – let her decide
Rehnquist Dissent: Asks, rather obtusely, what‟s so private about this? Right to abortion is not fundamental, thus this only requires rational basis. From Roe to Casey Many cases challenged Roe v. Wade between 1973 – 1992 States continued to regulate, creating procedural hurdles which were eventually invalidated Each time Ct majority affirmed woman‟s right to terminate pregnancy; affirmed the trimester framework Casey says State has legitimate interest from beginning of pregnancy and the standard is whether the regulation presents an undue burden Akron v. Akron Center for Reproductive Health (Akron I), p. 535 Unconstitutional to require 24-hour waiting period, hospital abortions for second-trimester abortions, and to require informed consent Invalid to make a law requiring: o 24-hour waiting period before abortions
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o After 1st trimester all abortions done in a hospital, and not as outpatient clinic surgery Woman must give “informed consent” to the surgery
Thornburgh v. American College of Obst. & Gyn., p.536 Certain abortion reporting requirements and restrictions on abortion sought after fetus obtained viability is unconstitutional 1986 PA/Fed law requiring certain reporting and reporting and specific restrictions on abortions done once fetus has gained viability is too burdensome Webster v. Reproductive Health Services, p. 536 A physician may test any pregnancy seeking abortion who physician suspects to be 20 weeks or more to determine viability (MO) Modified the trimester framework o o State‟s interest in protecting potential human life should not only come into existence at the point of viability Favored permitting regulation to protect potential life before viability
MO Law was upheld – required a doctor to test viability of any pregnancy where the doc thought the fetus was 20 weeks or more This was a PLURALITY decision (3 justices agreed – Rehnquist, White, Kennedy) – not a majority Maher v. Roe, p. 533 There is no fundamental right to financial assistance to obtain an abortion Use of Medicaid funds for first trimester abortions when medically necessary is appropriate – but not for elective or non-medically necessary abortions Harris v. McRae, p. 533 Federal Gov’t may limit the funding of abortions to those necessary to protect the health or life of the mother or other exceptional circumstances
Webster v. Reproductive Health Services, p. 536 States may prohibit use of its facilities from being used for abortions except when necessary to protect the health or life of the mother
Rust v. Sullivan, p. 534 It is valid to regulate or restrict abortion counseling of family planning programs receiving federal funding Abortion is not a form of family planning
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Planned Parenthood of Central Missouri v. Danforth, p. 531 Spousal consent is not necessary to obtain an abortion (1976)
Bellotti v. Baird; Planned Parenthood Assn. of Kansas City v. Ashcroft; Ohio v. Akron Center for Reproductive Health, pp. 532 Requiring parental consent and notice is permissible so long as alternative judicial bypass procedures are in place
Hodgson v. Minnesota, p. 532 It is invalid to require a minor to notify both parents 48 hours before obtaining an abortion It would have been a valid provision to require both parents be notified if the law contained a judicial bypass by which the minor could avoid telling her parents if a court found it reasonable under the circumstances – as where abuse might result Planned Parenthood of Southeastern PA v. Casey, p. 537 Multi-opinion where ct affirmed the rulings of previous cases Majority Opinion: upholds the essential holding of Roe v. Wade and show reverence to the doctrine of stare decisis o o o Woman has a right to choose to have an abortion before viability of the fetus without undue interference from the state [as in Roe] State has the power to restrict abortion after viability of fetus so long as it provides an exception to protect the mother‟s health or life [as in Roe] State has legitimate interests [not compelling] from the start of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child [not exactly as in Roe – but is there] But there‟s no mention/upholding of the trimester framework Constitutional Precedent should be overruled when 1) the rule is completely unworkable, but that was not part of the essential holding of Roe or 2) when people have relied on the rule and 3) when the rule has been rendered obsolete because of operation of law Examples: West Coast Hotel Case was overruled – don‟t second guess legislature; Brown v. Board of Education
Ct worries that if they overruled Roe, then they would lose face and appear to have reacted politically
Plurality Opinion: O‟Connor, Kennedy, Souter o o Rejected the trimester framework and strict scrutiny standard STANDARD: Adopted a standard of “undue burden” = whether a state regulation of abortion was improper was if it created an undue burden on the mother?
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Under this standard, ct upheld a 24-hour waiting requirement, a parental notification requirement containing a judicial bypass option and abortion facility reporting requirements
o
State can regulate, even during first trimester
Overall the court also invalidated a provision of the law that required a woman to obtain her husband‟s signature indicating that he had been notified of her desire to obtain an abortion – undue burden because it was likely to prevent large number of women from obtaining them because of fear of abuse The effects of the plurality opinion here are still uncertain Mazurek v. Armstrong, p. 556 A state may pass a law restricting those medical professionals performing abortions to physicians, even though the state had previously allowed physicians’ assistants to perform the procedure I think this case was slightly contrived since there was only 1 physicians‟ assistant, and the law essentially made it so that no one in the rural Montana area could perform abortions Partial-Birth Abortion Sternberg v. Carhart, p. 556 Laws banning partial-birth abortion, except in cases where necessary to save the life of the mother, were held unconstitutional This law held unconstitutional (5 to 4 majority) because it: o o Lacked any exception for preserving the health of the mother Imposed an undue burden on a woman‟s ability to choose a dilation and evaluation abortion
Unconstitutional as an undue burden on abortion rights State argued that the law only considered the method called “dilation and extraction” (body drawn up through cervix up to fetus‟ head to abort) but Ct also found that the law also dealt with “dilation and evaluation” methods (only arm or foot is drawn up out of cervix to abort) FAMILY RELATIONSHIPS Loving v. Virginia, p. 559 A state may not outlaw marriage of persons of different race Contested Law: Virginia‟s ban on interracial marriage Due process and equal protection (mainly) case Freedom to marry = vital personal right essential to orderly pursuit of happiness; basic civil right to marry Freedom to marry, an individual of any race, sits with each individual and the state may not infringe on that right
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Zablocki v. Redhail, p. 559 The right to marry is a fundamental right Contested Law: law requiring those who have outstanding child support to pay may not be issued a marriage license Justice Marshall: right to marry is part of the fundamental right to privacy implicit in the Due Process clause o o Right lives on the same level as procreation, childbirth, child-rearing and family relationships Marriage is the relationship which is the foundation of family in our society
Any state law seeking to regulate the incidents or prerequisites of marriage must be subject to rigorous scrutiny State law can only be upheld if it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests POWELL CONCURRS: marriage has always been subject to pervasive state regulation, since it regulates things like preconditions to marriage, bans against incest, polygamy, etc. Turner v. Safley, p. 560 Even in the prison context, unreasonable regulations of marriage are invalid Contested Law: No inmate can marry unless it is approved by the prison superintendent as a compelling reason to wed (as in birth of a child, pregnancy) Fundamental right, even in context of prison Why marriage is allowed in prison: o o o o Marriages are expressions of emotional support and commitment Marriage has spiritual significance in many religions Most inmates will eventually be out of prison, so they have a right to form them in the expectation that someday those unions will be consummated Marital status is often a pre-condition for receiving Government benefits [social security), property rights, and other less tangible effects
Even under rational basis scrutiny, the law is not justified to assist in rehabilitation and it does not have a basis of security considerations Moore v. East Cleveland, p. 561 Zoning ordinances limiting housing based on the constitution or make up of a family are invalid Contested Law: Zoning ordinance limiting occupancy of a dwelling to members of a single family (narrowly defined which included categories of related individuals) o o City contended that a child‟s grandmother living with the family was in violation of the zoning law Issue was regarding what constituted a „family‟ for purposes of the statute.
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Due process case
[Powell] Court said, that the argument that a nuclear family was the only type of family considered under the constitution would operate to ignore our societal practices that aunts, uncles, cousins and “especially grandparents” are part of the nuclear family – our country embraces the idea of an extended family Joined in a separate opinion by Brennan and Marshall- notes that the law had a “distressing insensitivity toward the exonomic and emotional needs of a very large part of our society – also notes that many black families exist in an extended form WHITE Dissented: living with grandchildren is not a right so fundamental that it needs heightened protection o Slippery slope because it is so broad that it could be used to attack other laws which have a similar foundation
STEWART Dissented: stating that elevating the status of a grandparent‟s right to live with the family to equal that of marriage and procreation was an invalid expansion of Due Process Belle Terre v. Boraas, p. 563 It is a fundamental right of privacy to determine with whom one has as a household companion Contested Law: [VALID HERE] Village ordinance restricting land use to one-family dwellings and defined “family” to mean no more than two persons living together as a single unit and excluding lodging, boarding, and fraternity houses Upheld This case is distinguished by MOORE v. EAST CLEVELAND (see above) because this law only affects “unrelated” individuals – this is not a fundamental right of privacy or association Troxel v. Granville, p. 563 It is a violation of substantive due process to allow those who are not parents to petition for visitation rights of someone else’s child – Fundamental right of parents to make decisions concerning the care, custody, and control of their children Contested Law: allowing grandparents to petition for visitation, against mother‟s consent Found invalid because it violated the mother‟s substantive due process rights 14th Amendment Due Process includes the right of a parent to make decisions concerning the care, custody and control of their child Court cannot contradict a parent‟s decisions concerning child rearing The problem with the trial ct was that it made the ruling to allow the grandparents visitation without affording special weight to the mother‟s wishes CONCURRED by THOMAS: agreed, noting that neither side argued due process
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN DISSENTED to by STEVENS: due process also includes the right of the child; when someone was a prior caregiver who has interests in the child‟s well being, it is OK to consider the impact on the child of arbitrary parental decisions DISSENTED to by SCALIA: who am I to judge this and make ineffectual laws which infringe on an unenumerated right DISSENTED to by KENNEDY: similar to Stevens = depends upon too many factors unique to each case – as to rights of a mother against a stranger, that is certain, but when it involves another parent to the child or de facto parent (someone else) with reasonable interests since family courts deal with this all the time Michael H. v. Gerald D. , p. 565 The law presumes that a child born to a married woman living with her husband (who is neither sterile nor impotent) is a child of that marriage Contested Law: court ruling that presumed that a child, born to a woman who was married and living with her husband, was a child of that marriage – barring another man‟s right to visitation although he proved to a 98% chance certainty that he was the father of the child DIVIDED COURT – LAW UPHELD Scalia = there is a tradition which cannot be upset by allowing an adulterous man to break into a marriage and seek visitation of the child born to it (under the presumption of the CA law) o o None of the father‟s constitutional rights have been violated Adultery is not a tradition protected by our society
Scalia joined by O‟Connor and Kennedy: joined except the point on using historical analysis of past decisions BRENNAN (joined by Marshall and Blackmun): o o o o Tradition is malleable No objective boundary to this opinion Constitution is limited in its use of adherence to traditions It should be part of our society to include the freedom to not conform to traditions just because one chooses a path non-traditional or “repellent”
STEVENS: the natural father had opportunity to assert that he was the natural father WHITE joined by BRENNAN: purported natural father had a constitutional liberty interest; procedural due process of the purported natural father were also violated because he did not get a hearing at which he would be allowed to prove that he was the natural father
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN SEXUALITY Bowers v. Hardwick, p. 568 (Overruled by Lawrence v. Texas, supp. p. 11) There is no fundamental right for adults to engage in consensual acts of sodomy and states may legislate and prohibit such conduct Contested Law: GA anti-sodomy law – defined as committing or submitting to a sexual act involved the sec organs of one person and the mouth or anus of another Facts: Hardwick was charged with breaking the sodomy law at trial level, on appeal it was reversed, Sup Ct granted cert and said the law was valid Here, because the court takes a stand to identify another fundamental right – they start to worry that if they get away from what has been determined by the legislature, and as they get further from the text of the constitution it will look as if they are replacing their judgment for that of the legislature Rationale: Homosexual sodomy is not a right protected by the constitution o o A right is fundamental if, without it, neither liberty nor justice would exist if they were sacrificed It would be an unreasonable expansion of Due Process to create or discover a new fundamental right
No one has ever been convicted of this crime Ct takes Griswold and Eisenstadt line of cases – says they are not equal o Those laws are not the same as rights to Family, Marriage or Procreation which is claimed here Argued that there was no rationale to support the law / Ct said that the electorate majority in GA stated that the act outlawed was immoral and unacceptable and we will not go against the legislature In Stanley v. Georgia, the first amendment provided that it was unlawful to convict someone for possessing and reading obscene materials at home / Ct said that case was FIRMLY ROOTED in first amendment issues while this case is not (the two are not analogous)
Hardwick‟s Arguments: o
o
BERGER CONCURRENCE: proscriptions against sodomy have roots in Judeo-Christian moral and ethical standards and we cannot cast aside a millennia of moral teaching BLACKMUN DISSENT: this case is not about making sodomy a fundamental right; case is about privacy and the basic right to keep others from dictating what happens at home o o o Also relied on the 4th Amendment – special protection of an individual in his home State cannot justify its law based on conformity with religious doctrine Just because it is illegal to do an act in public does not make it a crime to do it in private, at home
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o The Court is ignoring the fundamental interest all persons have in controlling the nature of their intimate relationships Law applies evenly to all acts of sodomy, regardless of whether persons are married or not, or if they are the same or different sex We must ask if the law, neutral on its face, why is it only enforced against homosexuals Traditionally, even if a law governs a practice which is generally considered immoral, we have struck those down before – here the morality argument is not sufficient reason to uphold the law Individual decisions by unmarried/married couples is protected – so to enforce it only against homosexuals is an invalid application of that law without reason from the state Just as “all men are created equal” all men deserve the same interest in liberty
STEVENS DISSENT: o o o
o
o
Lawrence v. Texas, supplement p. 11 (Overrules Bowers v. Hardwick, p. 568) All persons, including homosexuals, have a right under Due Process, to engage in private, consensual sexual acts without interference by the gov’t Scope of the right to privacy expanded to include those rights within the home and provides INTIMATE AUTONOMY Provides a barrier to the slippery slope of allowing the conduct by consensual adults (not minors) – so what then with bigamy? But this is a criminal law – brings it into different realm of scrutiny since it has the potential to deprive liberty o o State may nor criminalize something just because it is morally disapproved If reasonable minds may differ on a point of law, then it is not for the ct to determine which side to take
But what of stare decisis? (see also the Casey joint opinion where they declined to overrule Roe v. Wade) Ct says this statute furthers no legitimate state interest (which implicates it as a fundamental right while it is being analyzed against a rational basis test) Ct says Bowers was wrong to identify the right as that of one of family, marriage, etc. o Two cases put Bowers ruling in doubt – Casey and Romer O‟CONNOR CONCURRENCE: bases her opinion on 14th Amendment‟s Equal Protection Clause o To label homosexuals (by implication) criminals is to subject them to discrimination
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN SCALIA DISSENT: to overrule Bowers is to invalidate state laws against bigamy, adultery, fornication, prostitution, masturbation, bestiality, etc. in light that they are laws based on morality Lofton v. Secretary of the Department of Children and Family, linked from syllabus online “Practicing” homosexual couples in the State of Florida are precluded from adopting children Brought as an Equal Protection and Due Process claim Affirmed summary judgment for Florida in determining that the law was valid Adoption is not a fundamental right; adoptive children are not part of a suspect class Adoption is a state-created privilege This lowers the threshold under which this law is scrutinized Powell v. State, p. ** probably not in the case book – this was a note in the supplement GA Supreme Ct plus 5 other states have struck down anti-sodomy laws citing a fundamental right to private, consensual, adult sexual activity under their state constitutions
Youngberg v. Romeo, p. 574 Mentally retarded persons, involuntarily committed to a mental hospital, have limited substantive due process rights to ensure safe conditions of confinement and freedom from undue restraint
Kansas v. Hendricks, p. 574 State statute permitting involuntary civil commitment on release from prison of persons who had been convicted of sexually violent offenses Ct said this right may be overridden by civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor such as mental illness or mental abnormality RIGHT TO DIE Cruzan v. Director, Missouri Dept. of Health, p. 575 A patient’s wishes to refuse medical treatment must be shown by clear and convincing evidence A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment o o o Said liberty will be balanced with a state‟s interest in preventing mistakes, abuse, and a generalized interest in the preservation of life State has a compelling interest to preserve life Danger ensues when one person‟s judgment is exchanged for another
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Room for abuse – someone withholding medical treatment because of personal gain?
Woman in a persistent vegetative state, parents sought to have treatment withdrawn in order to allow her to die; because the woman could not relay her wishes as to her health care treatment, the court said it could not allow the parents to substitute their judgment without clear and convincing evidence of the patient‟s wishes Washington v. Glucksberg, p. 578 It is not a fundamental right to commit suicide or to assist someone in committing suicide Contested law: WA law making it a felony to cause or aid another person to attempt suicide vs. another WA law, “Natural Death Act” stated that withholding or withdrawal of life-sustaining treatment at a patient‟s discretion shall not constitute a suicide Parties contesting this law: group of docs who treat the terminally ill, 3 gravely ill patients and a non-profit organization, Compassion in Dying – assembled to sue to have the law declared unconstitutional Due Process not applicable: when reviewing a law against a due process claim – look at the nation‟s history and legal traditions o Assisted suicides have no place in our nation‟s history Such laws are expression of the state‟s commitment to preserving life – almost all states have some form of this law on the books o State may designate when such circumstances are situations in which the act will be considered suicide v. withholding medical treatment
The Cruzan case is not implicated because in that case, the court looked @ whether someone could refuse medical treatment – as it constituted a battery to force someone to continue medical treatment WA Law is rationally related to legit gov‟t interests: o o o o Interest in preservation of human life Suicide is a public health problem – state has an interest in protecting the terminally ill from suicidal impulses Assisted suicide is fundamentally in opposition to a physician‟s job as healer Interest in protecting vulnerable groups, such as poor and elderly from abuse and neglect – some terminally ill may choose to use it to spare their families from costs of healthcare Starts the state down a slippery slope leading to eventual euthanasia (voluntary and involuntary) and the Court will not go there because that would make it hard to police Agrees no generalized right to commit suicide
o
O‟CONNOR CONCURRENCE: o
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o The need to police the process and ban it because those who are not competent or facing imminent death Providing drugs to hasten death would not be unconstitutional
STEVENS CONCURRENCE: The ruling does not completely foreclose the possibility that some applications of this ban are invalid; state interests will fluctuate given individual cases‟ facts SOUTER CONCURRENCE: The state makes a valid argument vis a slippery slope because this law does not contemplate a reliable method of authorizing assisted suicide (2 docs confirm terminal diagnosis, penalties for coercion, reporting) BREYER CONCURRENCE: Joins O‟Connor; would have rephrased it to include personal control over manner of death, professional medical assistance, avoidance of unnecessary suffering; thinks this is not a case for the court to decide if this right is fundamental Vacco v. Quill, p. 588 A state may have laws allowing patients to refuse lifesaving medical treatment while still maintaining laws prohibiting assisted suicide Decided at same time as Glucksberg The two NY laws: o o Patients may refuse lifesaving medical treatment No assisted suicide
Terminally ill may hasten death but not request it through a physician‟s assistance The distinction between the two laws relates to legal principles of causation and intent o o o o When refusing treatment, the intent is not the same because the patient is dying from an underlying illness When a doc withholds treatment because it ceases to be of benefit suicide; or if doc provides aggressive care to ease suffering and it becomes lethal suicide Intent of a suicide is to ensure primarily that the patient die There is a difference between letting a patient die and making that patient die
PROCEDURAL DUE PROCESS: RIGHT
TO A
HEARING
DEPRIVATION OF LIBERTY AND PROPERTY INTERESTS Due Process clauses of the 5th Amendment and 14th Amendment provide guarantees of procedural fairness when the federal or state governments try to deprive someone of a liberty or property interest to which they are entitled.
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Goldberg v. Kelly, p. 590 Due process requires that welfare recipients be given the opportunity for an evidentiary hearing before benefits are terminated
Board of Regents v. Roth, p. 591 An occupation is not a property interest and one may be denied employment or position without explanation or right to a hearing Professor was notified he would not be returning the following year without explanation, and held no tenure rights under state law Procedural due process only applies to those rights implicated by the 14th Amendment Property is something which one has already acquired – not an expectancy The K between prof and school had an end date – this is more like a K claim NOT analogous to Goldberg v. Kelly (welfare case) because in Goldberg, they were entitled to the payments via statute, not K Perry v. Sinderman, p. 592 When rules are imposed or a mutual understanding creates a person’s interest in a benefit, then it is property for Due Process purposes Another professor case, but here, he claimed that the college had a de facto tenure program which he was party to o This entitled him to a hearing – not the job Ct held that a person‟s interest in a benefit constituted a property interest for due process purposes where there were rules imposed or a mutual understanding that supported such a claim Arnett v. Kennedy, p. 595 When a property interest is conditioned on certain criteria, and imposes certain criteria, that do not provide for a hearing, it is not a taking to implement the criteria creating the property interest Federal statute describing the grounds/procedure for removal of a non-probationary civil service employee was not invalid, because the fact that those procedures were explained and created the property right, said property right is a conditional right Bishop v. Wood, p. 595 State laws creating civil service positions may determine whether or not such an employee may have a hearing before termination Here, a police officer said he had a property right because he was a “permanent employee” The ct said that state law determines the circumstances under which he was employed The state legislature may write laws that term a “permanent employee” as an “at-will” employee, thus eliminating the requirement of a hearing
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Cleveland Board of Education v. Loudermill, p. 595 [clarifies Arnett v. Kennedy] The Due Process clause provides the certain substantive rights – such as life, liberty, and property – which cannot be deprived without constitutionally adequate procedures; the state law may create the property, but not the process for determining if it can be taken Once it is determined that the due process clause applies, it is not for state laws to describe which due process is appropriate to terminate it Only in Goldberg v. Kelley did the Court say a hearing was required before adverse governmental action – because the rights to welfare have more compelling state interest, whereas it is in the state‟s best interest to fire a bad employee LIBERTY HAS A NARROW SCOPE IN PROCEDURAL DUE PROCESS When an alleged “liberty” has been infringed the Court will act to define procedural due process much more narrowly than for substantive due process. Paul v. Davis, p. 596 There is no constitutionally protected right to enjoy a good reputation Reputation of a person is not a constitutionally liberty The police force distributed flyers about a man claiming he was an “active shoplifter”; once the charges were dismissed, he brought a federal civil rights claim against the police department This is different from stigma created by governmentally-created stigma 14th amendment only applies when the state seeks to remove or significantly alter one‟s protected status BRENNAN hated this decision because thought a person‟s right to their good name is just the same as stigma created by wrongfully calling someone a homosexual, Communist, traitor, “active murderer” or “any other mark that „merely‟ carries social opprobrium”[ opprobrium= Disgrace arising from exceedingly shameful conduct] Meachum v. Fano, p. 597 State prisoners do not have constitutional rights in determining the process/procedures for transporting him or her No traditional, broad liberty was implicated because the state had an interest of detention of a criminal and there was no property interest implicated Bell v. Wolfish, p. 597 Pretrial detainees have a “liberty” interest in the condition of their confinements
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Vitek v. Jones, p. 598 Involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the due process clause State law and official practice created an expectation that a prisoner would not be transferred to a mental institution unless he suffered from a mental disease or defect that could not be adequately treated in prison Liberty interest in procedures in connection with determining the conditions that would warrant transfer to a mental hospital State law may also imply that a liberty interest is implicated – o Moving prisoners in two cases, Olim v. Wakinekona and Hewitt v. Helms, state law may be examined to see if they triggered a liberty right; Olim involved transfer of inmate to out-of-state prison = no liberty right implicated Hewitt involved transfer of an inmate from general population to a more segregated are of the prison = yes liberty right implicated because they were a dramatic departure from the basic conditions of the sentence
Matthews v. Eldridge, p. 599 Due process requires weighing governmental and individual interests that are affected by a state action, focusing on the risk of erroneously depriving the interest from the procedures applied Minimum procedures required for due process are notice + hearing Three factors apply when determining whether a requested procedure is required by due process o o o Severity of harm to the litigant if the requested procedures were not granted Risk of error if requested procedures were not granted Administrative difficulty and cost of providing requested procedures
EQUAL PROTECTION
Reverse incorporation – applying state laws federally/feds adopting state law o Mainly when 14th amendment, which provides equal protection of state laws, is judicially interpreted to apply in a 5th amendment due process aspect [Bolling v. Sharpe (DC school desegregation)]
Minimum threshold of equal protection – prevent racial discrimination against blacks Tests: less strict historically because it only required that the regulation “rationally relate to a legitimate purpose” EQUAL PROTECTION ALWAYS CONCERNS LEGISLATIVE CLASSIFICATIONS
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Why protect specific classifications? Ability to protect themselves because they cannot rely on the legislature because of their lack of power, economical weakness, immutable characteristics, history of discrimination, traditions Like cases treated alike Those persons similarly situated should be treated equally Suspect classifications / Fundamental Rights = highest “Strict Scrutiny” o Such as race/color/ethnicity, religion, marital status, national origin, alienage (states) Gender [contrary to belief, gender is mutable], illegitimacy, Age, handicap, sexual orientation, wealth-based classifications, Strict Scrutiny: to pass this level, a legislative classification must be NARROWLY TAILORED AND NECESSARY TO ACHIEVE A COMPELLING STATE INTEREST But it is the step of defining a SUSPECT CLASSIFICATION or a FUNDAMENTAL RIGHT which proved difficult Fundamental interest = Voting, criminal appeals, interstate travel o o Rational Review: reserved for Also: Heightened Scrutiny: areas such as sex, alienage, illegitimacy Intermediate Standard of Review: law must be substantially related to achieving important government objectives RATIONALITY REQUIREMENT: ECONOMIC AND SOCIAL REGULATIONS; Under- and Over-inclusive Classifications There must be a rational connection between legislative means and legitimate ends o A minimal “fit” or congruence must exist between the classifications and objectives – but a perfect fit is not required
Quasi-suspect classifications = intermediate scrutiny o Non-suspect classifications = rational basis review (but this level of review o Two-tiered Equal Protection System: o
Economic and social legislation is treated differently than legislation involving suspect classifications and fundamental interests o Economic and social regulation cases reviewed from the standpoint include 1) the degree to which a legislative classification and the objective of it may be imperfect; 2) the amount of discretion the court wants to give to the legislature,
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN and 3) whether the court will have to make value judgments contrary to the legislature Over- and under-inclusiveness describes how well a statutory classification fits the purpose of the statute A classification will be considered reasonable if it successfully treats those persons similarly situated in a similar way – look beyond the classification to the intended purpose of the law – that will aid in identifying the classification Tussman & tenBroek Analysis – over inclusive and under inclusive classifications can be described 5 ways: Perfect fit – classification includes all those who possess regulated characteristic Perfect mismatch – classification includes none that possess the regulated characteristic, but all others Underinclusiveness – classification includes some but not all who possess the regulated characteristic o Dangerous in some ways because it is such a small group of people affected, those people will have less political ability to protect themselves
Overinclusiveness – classification includes all who possess the regulated characteristic and some that do not o Most dangerous because the law reaches out beyond those who are intended for it Both under- and over-inclusive – some laws can be both under- and over- inclusive F.S. Royster Guarano Co. v. Virginia, p. 606 Classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Less deferential standard against which classifications scrutinized Lindsey v. Natural Carbolic Gas Co., p. 606 If the Court can think of any state of facts that would sustain a legislative classification, then it will assume that the legislature enacted the law for that reason. RATIONAL REVIEW – BEFORE JUSTICE WARREN Railway Express Agency v. New York, p. 609 A statute that regulates economic activity will survive an equal protection challenge if there is a rational relation between the challenged classification and the purpose of the statute. Railway Express Agency operated a number of trucks in NYC and sold advertisements on the sides of their trucks The NY law made it illegal to sell advertising in this manner, but allowed use of the sides of trucks for companies to advertise their own companies
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Law was upheld – just because there may be other advertising elsewhere, the court will not second-guess the local authorities Under-inclusive law- prohibits some but not all persons from advertising on the sides of trucks JACKSON Concurred: Governments should not act to discriminate between its inhabitants except upon some reasonable distinction fairly related to the object of the regulation; cities have the right to require that their streets and public places be used in a quiet and orderly fashion and that they only be used for their proper purpose o Laws disadvantaging the few should have higher scrutiny since the fewer people have less influence and political power than the many
DEFERENTIAL EQUAL PROTECTION- DURING WARREN Williamson v. Lee Optical Co., p. 611 Equal protection goes no further than prohibiting invidious discrimination, legislature may reform one group and not bother another Opticians were regulated in the industry differently from ready-to-wear eyewear makers McGowan v. Maryland, p. 612 It is not a violation of equal protection for a state to impose laws requiring businesses to close on Sundays Statutory discrimination would not be set aside if any state of facts could be conceived of to justify it Ct said it could think of a good reason [health and recreation] to justify allowing some businesses to open on Sundays The issue was that some businesses were allowed to be open for sales while others weren‟t McDonald v. Board of Election Commissioners, p. 612 It is not a violation of equal protection to deny absentee ballots to citizens imprisoned and awaiting trial State denied absentee ballots to persons imprisoned but not tried yet It is not the right to vote which is being withheld, but the right to an absentee ballot Legislature has been expanding the class of people affected by the regulation, and there is no requirement that all affected groups receive ballots at a different times RATIONALITY REVIEW – DIFFERENT LEVELS OF “BITE” AFTER WARREN (1970’S) Adds a third level of scrutiny: Rational, Strict, Rational with Bite (and later… Intermediate)
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN U.S. Dept of Agriculture v. Moreno, p. 613 Gov’t cannot deny assistance with food stamps of persons living together who are not related when food stamps are provided to those who live in households composed of relatives Congressional purpose of the law was to 1) raise levels of nutrition in low-income households, 2) strengthen the agriculture economy by promoting the consumption of food, the classification was found to be completely unrelated to the objective of the law Evidence in the Congressional record that the law was enacted to keep hippies and hippy commune from getting assistance o Congress‟ objective to harm an unpopular group from is an illegitimate governmental interest
New Orleans v. Dukes, p. 614 A classification that furthers the purpose of the regulation is not invalid even if it applies to people of the same class differently City ordinance in New Orleans banning push carts to those who had not been operating them prior to the effective date was found valid because it bore a rational relationship to the purpose of the regulation, preserving the French Quarter for residents and tourists Massachusetts Bd. of Retirement v. Murgia, p. 614 A state statute designating a maximum age for uniformed state police officers is not invalid Because state has an interest in ensuring public protection by a physically fit police force Age is an imperfect means of classification, but imperfect means of classification will not defeat a regulation as a violation of equal protection Age statutes get high deference from the court New York Transit Auth. v. Beazer, p. 615 A regulation prohibiting a class of persons with history of drug addiction from public employment is not invalid equal protection Persons who were on methadone treatment were precluded from being employed by the NY Transit Authority because it was a public body As long as the treatment program was available, then a degree of uncertainty would exist as to their ability to do the job U.S. Railroad Retirement Br. v. Fritz, p. 616 Ct will treat with deference state laws classifying those subject to rational basis Ct declined to invalidate a law which included a grandfather clause for RR workers who were denied benefits based on the number of years they had been employed by the RR when the law took effect Employees there longer would continue to get benefits, others would not Purpose of the regulation was to keep the retirement program from going bust Post-hoc statutes making sense to those looking at it now, but did not make sense at the time it was made by the legislature, may be considered enough
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Schweiker v. Wilson, p. 620 Split decision from the court regarding denial of Medicaid benefits to persons in facilities which did not receive Medicaid funding Ct was split on whether this law stated a fair and substantially related purpose for the law Law was upheld – state statute denying needy persons residing in a facility which did not receive benefits from Medicaid Logan v. Zimmerman Brush Co., p. 622 Arbitrary cut-off dates in a statute that create two classes of individuals is invalid under equal protection Employees feeling discriminated against could file a complaint to a state agency – if the state agency did not review the claims within 120 days, then it would be dismissed o Such a cut off date, with no rational basis for creating it, created two classes of people with claims
Invalidated because it was an arbitrary cut off from government benefits not based on a reason related to the statute Allegheny Pittsburgh Coal v. Webster County, p. 623 Valuation of property based on factors creating a disparaging difference in tax assessments is invalid equal protection Properties were being assessed tax based on their recent sales price resulting in taxation of property owners disproportionately, even though the purpose of the statute was to tax property owners based on the current value of the property Invalid [by unanimous vote] because it denied Allegheny Pittsburgh from equal protection based on undervalued comparable property Nordlinger v. Hahn, p. 623 Recently purchased property may be taxed on the acquisition value is valid when it was an intended result of the statute The purpose was rational because it was INTENDED to protect long term individuals This is the same classification in Allegheny Pittsburgh Coal but the distinction between the two is the REASON for the law in Hahn was articulated and intended to have the result it had FCC v. Beach Communications, p. 624 Social and economic policies will be upheld against rational scrutiny as long as it does not classify along suspect lines, and does not infringe a fundamental right – but it has to have a reasonably conceivable set of facts that could provide a rational basis for the classification
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Village of Willowbrook v. Olech, p. 625 A class of one person may bring an equal protection claim Olech was asked to provide a 33 foot easement to connect her home to the municipal water supply when other neighbors only required a 15 foot easement Court invalidated this statute
RACE CLASSIFICATIONS Laws explicitly discriminating against people because of their race always implicate equal protection Discriminating laws which outlaw interracial marriage have been argued that they do not discriminate unequally against blacks or whites, because each is treated equally [Loving v. Virginia] – court does not buy that argument o o Facially discriminatory law – any law which implicates race explicitly is a red flag that the law is discriminatory Such laws receive strict scrutiny
Strauder v. West Virginia, p. 629 14th amendment prohibits all discrimination due to race or national origin Law limiting juries to white males over 21 years of age was invalid Korematsu v. United States, p. 631 Legal restrictions curtailing the rights of a single group are immediately suspect and subject to strict scrutiny Up to 1944, race was not explicitly considered a suspect class Here, however the law was upheld despite strict scrutiny Loving v. Virginia, p. 633 Laws proscribing penalties for interracial marriages are unconstitutional Equal protection case McLaughlin v. Florida, p. 635 Laws making it illegal for interracial married couples are unconstitutional Classification based on race = strict scrutiny Purpose of 14th amendment was to eliminate racial discrimination Palmore v. Sidoti, p. 635 Goal of the 14th Amendment was to do away with governmentally imposed racial discrimination, thus states may not give effect to private biases A white mother‟s child was taken from her and given to her white ex-husband because the white mother had married a black man
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Plessy v. Ferguson, p. 637 [separate but equal is equal] – overturned by Brown v. Board of Ed-I Black and white segregation violates equal protection unless it is to provide separate but equal accommodation on a train Began the separate but equal distinction of equal protection Law was found to be valid because the Court said the intent of the 14th amendment was to give blacks political equality – not to abolish all distinctions based on color or ensure racial equality Court blows off the argument that such laws create a stigma Gaines v. Canada, p. 639– overturned by Brown v. Board of Ed-I Black student must be admitted to law school if the school does not provide adequate equal facilities Black applicant was denied entry into a state law school and denied equal protection even though the school offered to pay student‟s tuition at an out-of-state school [University of Texas] Intangible benefits of attending UT law school would be lacking if Gaines was given his own law school Brown v. Board of Education [Brown 1 – the Constitutional Ruling] – overturns Plessy v. Ferguson, p. 639 Derogatory implications of separate but equal facilities in public education deem that such facilities are inherently UNequal Apartheid abolished Bolling v. Sharpe, p. 643 Education segregation laws are invalid, even in Washington DC, under the 5th Amendment even though DC was not bound by the 14th amendment (as it is not a state) Federal Gov‟t has the same responsibilities and obligations with respect to racial discrimination No rational basis or relationship to a governmental – no legitimate gov‟t process Depravation of liberty without due process – have the liberty to attend the school of one‟s choice 5th amendment contains an element /component of equal protection – Wiseman thinks this is an irrational explanation because 14th amendment allows Congress the power to legislate about race – not the states It makes sense that Ct found this as a parallel between Fed and State law Johnson v. Virginia, p. 644 Any racial segregation cannot be required in any public facilities Segregation itself has stigmatizing effects Reversed a contempt conviction for refusal to comply with state judge‟s order to move a section of a courtroom reserved for blacks
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Brown v. Board of Education [Brown II – the Implementation Decision], p. 645 Variations in local implementation of laws cannot slow the adoption of the law just because it is an unpopular law to implement
GENDER Prior to 1970‟s, gender-based laws only received deferential review From Mid-1970s onward, the new standard that emerged was “INTERMEDIATE SCRUTINY”: o o o Law must serve important governmental objectives and Be substantially related to achievement of those objectives Courts must show an exceedingly persuasive justification for the classification
For gender-based classification to survive an equal protection challenge, Ct looks @ whether disparate treatment of men and women is justified by real differences between the sexes as opposed to archaic generalizations Intermediate Scrutiny is the same regardless of whether the classification is one that will disadvantage women or whether the classification is one that can be described as having a benign, compensatory motivation- must still be related to achieving an important governmental purpose What is the difference between sex-based and race-based classifications? o o Race is more of a minority Women are not a minority; there are physical differences between men and women, but not with race
Bradwell v. State, p. 648 14th Amendment guarantees did not apply to women attending law school in 1873 Privileges and immunities did not include a woman being able to study at law school in 1873 Minor v. Hapersett, p. 648 14th Amendment Privileges and Immunities did not apply to women being able to vote in 1873
Goesaert v. Cleary, p. 649 Court showed deference in law banning women from being barmaids unless their father/husband owned bar “Constitution does not require legislatures to reflect sociological insight… “ Woman working for husband or father more likely to be protected there than working for some other man
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN States may draw sharp lines between the sexes Reed v. Reed, p. 650 State statutes creating a preference for men will be held invalid and viewed under heightened scrutiny Contested law: State law providing that men are the preferred relatives if there was a question as to who would serve as the executor of a family member‟s estate Held invalid because state argued that eliminating one class of contestants for executor made less work for probate courts – but ct said this reasoning did not justify the denial of the opportuinity to women Frontinero v. Richardson, p. 650 Law denying benefits to a service woman’s spouse is invalid Contested Law: Male members of the military are automatically provided spousal benefits but female service members must show that their husbands are dependent Held invalid because state argued that eliminating women from this class made it administratively convenient – court didn‟t buy it o An administrative convenience will not pass intermediate scrutiny
Craig v. Boren, p. 652 A law stratifying genders will be met with intermediate scrutiny Contested Law: Sale in OK of 3.2% „near beer‟ restrictions o No sales to males under 21 or females under 18 Intermediate scrutiny for gender – must be substantially related to achievement of the statutory objective This law prohibits sale of, but not consumption of the beer Stevens‟ Concurrence: “There is only one equal protection clause” o o o Race almost never rational Sex sometimes rational More often but not always rational for gender-based classifications
Mississippi University for Women v. Hogan, p. 656 A university cannot discriminate against men and deny them admission, even into an allfemale university Contested Law: MUW denied entrance into the nursing program of a male registered nurse who wanted to attend in order to get his BSN Argument by the state that its program was designed with the objective that it is compensation for past ills toward women but the ct didn‟t agree – said there was no evidence that women had ever been discriminated against in nursing education
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Ct said state failed to articulate an “exceedingly persuasive justification” for its genderbased classification – not going to pass intermediate scrutiny O‟Connor - Heightened scrutiny does not apply here, because men have not been historically been discriminated against; said the admissions scheme could not survive scrutiny J.E.B. v. Alabama, p. 658 Gender-based peremptory challenges of jurors is unconstitutional State brought case to establish paternity of a child, and to have an order for child support established State used all its peremptory challenges during voir dire to get rid of all of the men on the jury because it thought women would be more sympathetic to their case United States v. Virginia, p. 659 All-male Military Colleges must admit all qualified females State had two justifications for the law: o o Education Diversity = failed because it was not the state‟s actual motive Women would destroy the character of the school = failed because it was not an “exceedingly persuasive justification” Must be genuine, not post hoc as a result of litigation, no reliance on overbroad generalizations about different talents, capacities or preferences of males and females
Standard of Review = “exceedingly persuasive” (p.660) o
There are some benign classifications based on gender (to compensate for discrimination) as well as other invidious classifications which must have a substantial justification to survive scrutiny The admission of women would be a post hoc justification – Virginia can‟t just provide another option VMI was a unique educational program that was not provided to women, thus they are missing out on the intangibles of such an educational experience Scalia: Since women have political power, sex classification should have rational basis scrutiny; after VMI – single-sex education is unconstitutional Gedulig v. Aiello, p. 671 Normal Pregnancy is not a sex-classification or disability Contested Law: state‟s refusal to pay disability insurance for pregnant women did not violate equal protection because there was no gender-based classification o Upheld because it classified people as those who were pregnant and those who were not
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Since excluding pregnant women from the benefits, the program was of use to men and women
The law applied equally between men and women Michael M. v. Superior Court, p. 672 Laws punishing men but not women for statutory rape are not sex-discriminatory State has interest to lessen illegitimate children Reasoned that women can get pregnant and men cannot, so the different treatment did not violate equal protection Brennan Dissent: sex neutral law would achieve these objectives as well as a sex-based classification law – when a sex-neutral classification is available, the gov‟t should choose it WHEN IS SEX AN APPROPRIATE PROXY FOR CLASSIFICATION? Common thread in these cases: Where a sex-neutral classification is available, the legislature must choose it over a sex-based classification – this is more like strict scrutiny They all have to do with “the big difference” – men v. women Rostker v. Goldberg, p. 674 It is not a violation of 5th amendment due process to require men to register for selective service State has an interest in facilitating any later conscription When it comes to military, Court gives congress great deference Congress acts deliberately to create the selective service registry – it wasn‟t a haphazard or random undertaking of law Women and men are differently situated when it comes to the military because women are ineligible for active combat and statutorily ineligible for selective service Caban v. Mohammed, p. 677 A state cannot make a law denying a father the right to block an illegitimate child’s adoption Law distinguished unwed mothers as being closer with the children than the unwed men Divided court 5-4 invalidated the law Law was based overbroad generalizations about differences between mothers and fathers‟ relationships with their children Parham v. Hughes, p. 677 A state may bar a father from suing for non marital child’s wrongful death while allowing the mother to sue for same wrongful death Divided court held valid because men who legitimate their children are not similarly situated as those who do not
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Distinguished between fathers who legitimized their children and those who didn‟t Nguyen v. I.N.S., p. 678 A law treating children born of mother citizens as opposed to father citizens is valid Children whose mother is a citizen for a certain amount of time are automatically citizens Children whose father is a citizen are not automatically citizens, but the father must meet the following 3 conditions before being considered a citizen: o o o Establish blood relationship by clear and convincing evidence Father‟s written promise of financial support Before child = 18, formally recognize paternity – legal legitimization, father declare paternity under oath, or court order of paternity
Based its reasoning that mothers must be present for the birth while fathers need not be present Law justified because it ensured a biological parent-child relationship existed and that child and citizen of the US will have an opportunity to develop a relationship that will provide a relationship to the US PREFERENTIAL TREATMENT OF WOMEN Intermediate Scrutiny of laws creating sex classifications claiming women are disadvantaged Kahn v. Shevin, p. 681 State tax exemption for widows but not widowers was not invalid in 1974 Deferential review “State policy of cushioning financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden” Orr v. Orr, p. 682 Laws imposing alimony payable by husbands but not wives are invalid Purpose of law was to compensate for discrimination of women in the past Rejected the law because it‟s purpose did not justify its application Hearings before alimony is set are based on financial information so they are tailored to the specific situation of the parties involved Weinberger v. Weisenfeld, p. 682 Law held invalid when it would not pay social security benefits to a widower and his children but would make same payments for widows and their children Unjustifiable discrimination by affording female wage earners‟ survivors less benefits
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Califano v. Goldfarb, p. 683 Gender-based distinctions within Federal Programs are invalid Contested Law: Federal benefits program declared invalid because it paid the survivor wife depending on her deceased husband‟s wage rate; but widowers had to prove that they had been receiving more than ½ of their support from their deceased wife Califano v. Webster, p. 683 Laws providing compensation to women to correct past discrimination are valid Benefits from social security paid more to women wage earners than male wage earners Reduced economic disparity between the two classifications Wengler v. Druggists Mutual Ins. Co., p. 684 Discrimination between men and women before providing benefits does not further the state’s interest in providing for needy spouses Contested law: women did not have to prove dependence on their men to receive benefits, but men had to prove that they depended on their wife „s earnings Schlesinger v. Ballard, p. 684 Military laws receive deferential scrutiny Contest Law: Navy promotion system that gave women a 13-year tenure before they had to be discharged if they were not promoted, but o ALIENAGE When states enact a classification based on alienage, the Court usually reviews the classification under strict scrutiny Graham v. Richardson, p. 685 No denial of welfare benefits to aliens based on alienage (aliens are discrete/insular minority) Blackmum – “inherently suspect and subject to close judicial scrutiny” Aliens as a class are a prime example of a discrete and insular minority In re Griffiths, p. 686 Resident aliens may not be barred from practicing law Strict scrutiny invalidated CN law excluding resident aliens from practicing law None of the asserted state interests were sufficiently substantial Sugarman v. Dougall, p. 686 States may not restrict competitive classified civil service jobs to only citizens NY law allowing only American citizens to serve in the competitive classified civil service jobs
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Men would be discharged if they were passed over for promotion twice, regardless of years of service
CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Restriction had little if any relationship to the State‟s substantial interest in having an employee of undivided loyalty Foley v. Connelie, p. 687 State may exclude aliens from some types of positions (here = state troopers; also elem school tchrs, probtn ofcr) Such as those of police state troopers (NY) To require every statutory exclusion of aliens to clear the high hurdle of struct scrutiny would obliterate all the distinctions between citizens and aliens and thus depreciate the historic values of citizenship Because troopers have broad discretion and authority in matters that are important to the functioning of the state, the state‟s exclusion of aliens did not violate equal protection EXCEPTION TO THE GENERAL RULE: Narrowly construed - State may exclude aliens from government function jobs that involve broad discretion or policy making responsibilities Ambach v. Norwich, p. 687 State may require Elementary and Secondary School Teachers to be citizens because they exercise great influence over students Applied the Dougall exception and Foley to exclude alien applicants for the job of elementary and secondary school teachers when they refused to seek naturalization Less demanding scrutiny was required when aliens were excluded from state functions that were bound up with the operation of the state as a governmental entity Bernal v. Fainter, p. 687 State cannot bar aliens from duties that are essentially ministerial, such as notary public functions States cannot bar aliens from serving jobs which are essentially ministerial and clerical in nature Toll v. Moreno, p. 688 States cannot charge aliens more tuition than citizens who are in-state residents University of Maryland denied to give alien, in-state residents in-state tuition Brennan – in light that Congress has not barred such aliens from being domiciled in the state, the university‟s policy violates the supremacy clause – it cannot impose additional burdens over what congress has imposed o The university‟s policy was banned on federalism grounds and not equal protection grounds
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Hampton v. Mow Sun Wong, p. 688 Civil Service Commission (CSC) cannot impose a citizenship requirement for employment Court invalidated a Civil Service Commission regulation barring resident aliens from employment in the federal competitive civil service Still recognized that national interests may provide for justification for a citizenship requirement in the federal service although an identical requirement may not be enforced by a state Mathews v. Diaz, p. 689 States may not discriminate against aliens while the Federal gov’t can Strict standard that applies to states does not apply to federal restrictions on aliens Constitution specifically provides Congress and the President authority to regulate immigration and foreign affairs Court is very deferential to the decisions of Congress and the President in the areas of immigration and naturalization NON-MARITAL CHILDREN Intermediate Scrutiny Levy v. Louisiana, p. 690 Non-marital children may recover for the wrongful death of their mother Louisiana law violated equal protection – 1968 Trimble v. Gordon, p. 691 Non-marital children may be considered in the line of intestate succession of their fathers in IL IL Law keeping non-marital children from receiving in the intestate line of succession found in violation of equal protection (1977) Similar law upheld in NY in 1978 – Lalli v. Lalli Clark v. Jeter, p. 692 Court will apply intermediate scrutiny to classifications based on illegitimacy To survive intermediate scrutiny a statutory classification must be SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENTAL OBJECTIVE DISABILITIES Cleburne v. Cleburne Living Center, Inc., p. 693 Classifications based on mental retardation shall receive rational review Contested Law: TX law stating that a special-use license for group home for mentally retarded ppl was required where other types of institutional home licenses were not required to have same license o Held unconstitutional under rational basis “with teeth”
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Mental retardation quasi-suspect class as determined in lower ct b/c they are not the same as non-retarded ppl so state has interest in regulating how they are dealt with and regarded Mentally retarded persons are have no political power, thus gov‟t specially charged to legislate appropriately
Must be rationally related to a legit gov‟t purpose Dissent – Stevens: req‟t wasn‟t based on rational basis but b/c of irrational fear of neighbors, not on concerns about the potential residents of the home receiving EP Concurrence & Dissent – Marshall: Ct said rational basis but analyzed it under heightened scrutiny; should have passed rational review PURPOSEFUL DISCRIMINATION AND PURPOSE-IMPACT DISTINCTION Purposeful Discrimination: that which offends the Constitution Yick Wo v. Hopkins, p. 713 Facially neutral laws may be administered in a discriminatory fashion San Francisco law made it illegal to operate a laundry in a building, unless made of brick or stone, and despite applications being approved for many such laundries, 200 Chinese applicants had their applications declined Purposeful discrimination may be present when it takes place in the manner of the administration of the law Facially neutral law – but in the issuance of the licenses, all Chinese applicants were denied – impact of this law is racially disparate o o Ways to explain the disparate treatment include statistics with which the statute was implemented Even when there is no way to explain it – some factors just point to it as if that were the blatant intent
Yick Wo was arrested for illegally operating his laundry which he had been operating prior to the law‟s enactment Gomillion v. Lightfoot, p. 715 Laws redefining a city’s boundaries to exclude groups because of race are invalid Tuskegee, Alabama redefined its city boundaries from a square shape to a 28-sided shape in order to oust 400 of its negro voters while ousting NO white people and keeping only a mere 4 or 5 black people within its boundaries There is intentional discrimination going on Violates 15th Amendment (equal rights amendment)
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Griffin v. County School Board of Prince Edward County, p. 715 A law providing public funds to propagate racial segregation is invalid Public schools were closing down; white kids were eligible for a grant to attend private school based on voucher grants from the gov‟t but black kids could not go to those same private schools Ct held law invalid The opportunity for public education, undertaken by a state to provide it – then the state decided to not provide it and close the schools instead of desegregating o No explanation except for racial hostility and improper motive States cannot close public schools for reasons that are unconstitutional – and grounds of race and objection to desegregation are not appropriate means or reasons for closing public schools Palmer v. Thompson, p. 715 Laws passed with a discriminatory motivation are not necessarily unconstitutional Contested Law: Law ordering swimming pools closed in Mississippi once it was ordered that there be desegregation was found to be valid City thought they could not operate the pools safely or economically once everyone could go to them – these are racially vague reasons It is the effect that mattered here more than the motivation o o If it has discriminatory motive but does not have such an effect it is not invalid No one gets to swim because of this law – it is not discriminatory – however, the black citizens suffered from stigma from the state that it would rather close the pools than integrate them – this creates friction between the groups of people effected State does not have to allow people to enjoy public swimming pools Because the law is racially neutral – there is no reason to use strict scrutiny – where there is no discriminatory effect, then absent the effect, no equal protection has been denied But it the intent is shown plus the effect -> strict scrutiny
o o
o
Washington v. Davis, p. 717 Equal protection is not violated when laws have disparate racial impact and no purposeful discrimination Facts: o Blacks taking the civil service exam were failing more often than whites – they brought suit to determine whether an administrative action violated equal protection But it was a nationwide test Were not a reliable predictor of job performance
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o o
CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Respondents Argument: law has a discriminatory effect but it was not purposeful discrimination
Civil Service Exam that has a racially disparate impact (or predictably results in discrimination) – this will get rational basis review and will pass because the test was necessary for the application process to have literate cops Intent required for an Equal Protection Violation Disparate impact alone will not raise the level of scrutiny but is one factor to consider But intent is not required to find that a provisions is statutorily violative of rights Official acts which do not have a discriminatory purpose may be shown by the totality of the circumstances Invidious/undesirable result may be shown by the totality of the circumstances, including racially disproportionate impact Arlington Heights v. Metropolitan Housing Corp., p. 721 Disparate impact alone does not trigger strict scrutiny Would begin as a review of purposeful discrimination with additional areas of inquiry o o Legislative history Specific sequence of events leading up to the official action or decision and departures from normal procedures
Petitioner sought to have an area where whites lived to be rezoned so he could develop multiple-family dwellings for moderate to low income families Personnel Administrator of Mass v. Feeney, p. 723 A law will not be held invalid when there is no evidence of gender-based discriminatory purpose behind the law Contested law: one giving preference to veterans for filling civil service jobs – since most veterans are male, it was seen as discriminatory against women but there was no evidence of legislative intent that the law discriminate against women 14th amendment provides a guarantee of equal laws, not equal results Issues: o Whether the statutory classification is neutral in that it is not gender based Yes – because it was not enacted or established for the purpose of discriminating against women; distinction between veterans and nonveterans is not gender discrimination Plaintiff says – 1) nature of the preference favors a status reserved under federal military policy primarily to men, and 2) impact of the lifetime preference of employment will be created an impact too inevitable in that
o
Whether the adverse effect reflects invidious gender-based discrimination
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN it would definitely affect women‟s rights under the law (as well as the fact that the status has little to no bearing on job performance) Ct says – 1) such an argument is at odds with the central holding by the Dist Ct that the law was not acted for the purpose of discriminating against women, and 2) no hiring preference, more limited would be sustained – this is as broad as they can take it Law was enacted despite its potential preferential treatment
Rogers v. Lodge, p. 726 In order to prove the invalid purpose of a law that was implemented and maintained to dilute the voting strength of black voters, circumstantial evidence may be sufficient Such evidence includes lingering effects of discrimination, demographics Equal protection claim here is that representation of the black citizen voters was nonexistent because the votes were diluted because of an at-large electorate process – because there was no districting, there was also no way a black person would be elected to city council Hunter v. Underwood, p. 732 State laws that are racially motivated and which have racially discriminatory impact are invalid Contested law: held invalid a provision in the Alabama State Constitution which prohibited people from voting if they had committed a crime of “moral turpitude” because it was enacted in 1901 when a “zeal for white supremacy ran rampant” and had the effect of being impermissibly racially motivated and resulted in racially discriminatory impact SCHOOL DESEGREGATION AND THE DE JURE – DE FACTO DISTINCTION De Jure Discrimination: results from laws neutral in language and application but which may have been enacted with a purpose or motive to discriminate De Facto Discrimination: results from governmental action that is neutral in its language, administration and purpose, but which has a disadvantaging impact or effect Green v. County School Board, p. 734 There is no “freedom-of-choice” when it comes to attending any school in the district within which one resides Law providing for freedom of choice for school children to attend any school in the district in which they live was struck down as invalid once that same school system resulted in a district full of segregated schools They were working toward a unitary school system – this includes similar opportunities, teachers, facilities, etc.
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Swann v. Charlotte-Mecklenburg Board of Education , p. 735 Just because after desegregation more than 50% of white kids had to go to a school which used to be all black (and vice versa) does not make the result of a law invalid This is just stupid Intra-district busing was challenged as not being enough Keyes v. School District, p. 736 District-wide desegregation is REQUIRED when there was purposeful segregation in only part of the district before Notes Dual Educational Systems: Brown v. Board of Education, Columbus Board of Education v. Penick, Dayton Board of Education v. Brinkman, p. 738 Dual education systems in 1954 resulted in an inference of purposeful segregation Even if only in part of the school district In 1954, if could be inferred that there was purposeful segregation by an inference under certain circumstances – such as maintaining two educational systems De Facto discrimination – how do you know when the school system has achieved the task the court set to it – to desegregate by law Milliken v. Bradley, p. 741 Inter-district remedies for segregation are inappropriate when there has been no inter-district violation Ct re-defined the districts to expand past Detroit city in order to desegregate the kids Missouri v. Jenkins, p. 743 Federal courts cannot order states to impose property taxes to pay for the costs of a school district’s desegregation Courts should have ordered the counties to increase the taxes themselves Board of Educ. Of Oklahoma City v. Dowell, Freeman v. Pitts, p. 745 Once racial discrimination through official action is eliminated, neither the school districts nor the courts are mandated to make adjustments in the racial makeup of a school Forced ratios of race are invalid School ended its jurisdiction of enforced desegregation into a neighborhood school system for K-4 because after 16 years ct felt the programs were established United States v. Fordice, p. 746 State Universities have same duties to desegregate as primary and secondary schools Notes
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN RESTRUCTURING THE POLITICAL PROCESS THAT DISADVANTAGE MINORITIES Hunter v. Erickson, p. 747 Laws which classify anyone based on race of those who would benefit from the laws banning discrimination are invalid City charter amendment requiring that any ordinance regulating real estate transactions on the basis of race, color, religion, national origin or ancestry must be approved by a majority of voters was held INVALID because it discriminated based on factors for which those persons were protected Washington v. Seattle School District, p. 747 Children may attend public schools that are located close to their homes Contested law was held invalid Law was a state initiative that prohibited school boards from requiring children to attend schools located away from their home Ct said this placed a special burden on those families because it is difficult for those families to achieve legislation that is in their best interest Crawford v. Los Angeles Board of Education, p. 749 It is not unconstitutional for a state to include in its constitution that state courts cannot require busing unless a federal ct would do so as a remedy for an equal protection violation Contested law: California amendment to its state constitution was held to be valid because it limited the state‟s ability to contradict Federal law ? BENIGN USE OF RACIAL CRITERIA AND THE PROGRESSION OF STRICT SCRUTINY Regents of Univ. of California v. Bakke, p. 752 No educational institutions receiving public funds may use race as its sole criteria for admission. A RACIAL QUOTA IS ILLEGAL UNDER TITLE 6 OF THE CIVIL RIGHTS ACT. Bakke had better application stats for admission than minorities who were admitted into medical school , so he brought an action on the basis of violation of equal protection o o Certain # of seats set aside for minority students A benign classification is one that is adopted by the majority to aid or benefit a minority So Bakke was a subject of discrimination but the law was considered benign as to him because the law was not made to remedy a prior discriminatory classification
o o
A invidious classification is one that is adopted by the majority to substantially burden minorities Challenged on statutory grounds that Title 6 of the Civil Rights Act, and constitutional grounds that Equal Protection Clause was violated
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Powell: “Judgment of the Court” but this was not a majority [there are RARELY OPINIONS OF POWELL THAT ARE SUPPORTED BY A MAJORITY in the Court]; 14 Amend §5 Powell sees a violation of Title 6 and Equal Protection are one in the same; no one agreed with him on the constitutional question [if you come to conclusion on statutory grounds, you do not have to proceed to the constitutional issue] Brennan, White, Marshall and Blackmun: Said to look @ this with intermediate scrutiny Burger, Rhenquist, Stevens and
Ct said it is a violation of equal protection clause for a state school to admit some students based solely on their race [not the lease restrictive means available] even though the school‟s goals were found to be compelling state interests; strict scrutiny applies racial and ethnic classifications are inherently suspect, even when they are supposed to serve “benign” purposes What is important to realize is that to set aside X seats is illegal; instead use the Harvard standard and use race as a “plus” and not the entire criteria Hopwood v. Texas, p. 765 Bakke is not binding precedent because it was not a majority ruling. 5th Cir. Declined to follow Bakke when it struck down an affirmative action program at the University of Texas Law School because it felt that the Bakke ruling was only Justice Powell‟s opinion Discussed Harvard plan (the Harvard plan looks at race as one factor of many) o The Harvard plan is supposed to predictably yield a certain number of minority students
RACE PREFERENCES IN PUBLIC EMPLOYMENT AND CONTRACTING SINCE THE 1980S Wygant v. Jackson Board of Education, p. 766 A program with a goal of providing minority role models cannot use such goals to discriminate in its decisions to lay off particular teachers. In an effort to provide minority role models in the community, teachers were selectively laid off due to their race – INVALID Can only implement something to remediate its own discrimination Fullilove v. Klutznick, p. 768 Congress may implement a program setting aside work for minority businesses if that program is instituted to correct historically unequal treatment in traditional government funding. Ct gives Congress “appropriate deference” here because the Court reasoned that Congress reasonably determined that the program was appropriate to ensure that
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN minority businesses were not denied equal opportunity to participate in federally funded public work programs Must also be to remedy its own prior violations and not arbitrary violations So then are we not allowed to look @ societal discrimination as a whole? Richmond v. J.A. Croson Co., p. 770 Any race-based classifications must show that they are narrowly tailored and are necessary to achieve some compelling governmental purpose. 50% of Richmond city was black, yet, 1 out of 150 contracts with the city would go to a minority business City can only be race-conscious when it is acting for remediation of a past discriminatory conduct Classic STRICT SCRUTINY Metro Broadcasting, Inc. v. FCC, p. 784 Benign race classifications are allowed when they serve important governmental objectives and are substantially linked to achieving those objectives (intmd scrutiny) Even if those measures implemented are not remedial measures (which means it does not have to be just that which is prior infractions that are being remedied) This is INTERMEDIATE SCRUTINY Adarand Constructors, Inc. v. Pena, p. 786 All race-based classifications, whether imposed by federal, state, or local governmental actors, MUST be analyzed under strict scrutiny. Removes the ability for the Court to vary the scrutiny standard by which the classification is viewed Main themes in this case – o Skepticism = Strict Scrutiny o o Compelling governmental interest Narrowly tailored means
Consistency = all Race classifications should get same level of scrutiny Congruence = Between the 5th and 14th amendments – if a state can‟t do it under 14th, the Feds can‟t do it in the 5th amendment – this is implicit (Bolling v. Sharpe)
Remember State Law not limited by constitution – but there must be congruence between laws similar
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN SUPPLEMENT CASES HERE – PP. 21-35 Grutter v. Bollinger, p. supp 21 Law schools may use individualized consideration of applicants which includes race as a factor, so long as it is not the only factor Race based classification in law school admissions in Michigan Law School OK b/c not total reason for admissions Barely uses the real “teeth” of strict scrutiny Diversity in a student body is a compelling interest Narrow tailoring does not require exhaustion of every conceivable alternative – but narrow tailoring means just that Gratz v. Bollinger, p. supp 31 Only an individualized consideration for undergrad admission, taking race into account is the only way to survive constitutional attack Strict scrutiny Univ of Michigan again – this time the undergrads were pissed b/c minority groups got automatic 20 points towards consideration for admission and got it in most cases Undergrad admissions based en masse with no consideration of the individual o Ct rejected the school‟s argument that it was impracticable to look @ each applicant individually
Wiseman thinks courts should be able to look @ discrimination policy prospectively and not as a remedial measure to correct past race-based classifications “FUNDAMENTAL INTERESTS” STRAND OF EQUAL PROTECTION STRICT SCRUTINY Scrutiny is heightened because the Court finds particular rights or interests fundamental Fundamental interests that receive equal protection analysis: o Right to vote, right to protection from vote dilution Non-fundamental rights / “Necessities” = Education, welfare benefits, and housing DENIAL OF VOTING RIGHTS Harper v. Virginia, p. 795 Right to vote is fundamental and must be allowed to be exercised free and unencumbered because it preserves other basic political rights Any restrictions on voting must be viewed with close scrutiny and narrowly confined As it relates to voting, classifications based on wealth, like race, are disfavored Charging a fee to vote (Poll Tax) constitutes in invidious discrimination that violates equal protection
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o The Poll Tax was payable to allow one to vote. Ct said that once a right is granted by a state, it must be granted to everyone equally – (this is just like EDUCATION) o Black and Harlan: apply rational basis scrutiny Drivers‟ licenses are different because driving is a privilege and not a right; the level of scrutiny is not increased because it is unlike voting which is the process by which we exercise our political rights
Kramer v. Union Free School District No. 15, p. 798 Restrictions on voting should be viewed with strict scrutiny to ensure they are necessary to promote a compelling state interest STRICT SCRUTINY REQUIRED for any restrictions on voting Legislative classifications having to do with voting = strict scrutiny Challenged Restriction: own or lease taxable real estate or have children enrolled in the local schools – school board voting o o o Property taxes pay for schools People with kids use the schools Should have included – teachers, prospective parents or employers, prospective property owners… really anyone would have an interest here
The means to promote a state interest – if this one is even compelling enough – is the means by which it is being carried out appropriate? o Who gets to vote? There is an assumption that the legislature is representative of the people and they may vote accordingly
Stewart Dissent: Court can‟t substitute its policy judgment for that of legislature Other Types of Restrictions on Voting, p. 799 Limited Purpose Elections and special purpose elections o Ciprano v. Houma: Decided same day as Kramer, invalidated a law allowing only property owners a vote on issuance of municipality utility bonds because they were to be paid from operations of utilities and not property taxes Phoenix v. Kolodziejski: Extends Ciprano – restrictions on voting for general obligation bonds were no different from those votes on revenue bonds – differences between the interests of the property owners and the non property owners were not enough to justify excluding non property owners from the voting group Salyer Land Co. v. Tulare Lake Basin Water Storage District: Declined to follow the Ciprano-Phoenix lines of cases because in here, the benefits conferred to a group of voting members was in proportion to the water used for farming land, and the amount of benefits received under the plan – strongly dissented to and later distinguished as inapplicable to governmental units lacking general powers
o
o
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Disenfranchisement of Felons o Richardson v. Ramirez: 14th Amendment, §2 – felons are disenfranchised from voting – may be denied “for participation in rebellion, or other crime” Rosario v. Rockefeller: sustained a law requiring New Yorkers to register or enroll for their party primaries 30 days before a general election in order to be eligible to vote in the following year‟s primary o Was not unreasonably long, unduly burdensome on the exercise of the right to vote and free association – purpose was to inhibit party raiding
Requirements for Voting in Primaries o
Kusper v. Pontikes: IL Law struck down which disallowed a voter to vote for a party candidate if he or she voted for a different party candidate within 23 months prior – invalid because it substantially restricts one‟s ability to change political party affiliation Tashjian v. Republican Party: Conn. Law struck down which required voters in any party primary be registered members of that party EU v. San Francisco County Democratic Central Comm.: CA election law struck down when it barred political parties from endorsing, supporting a candidate for nomination by that party for partisan office in the direct primary election – unanimous decision – strict scrutiny under the First Amendment Free Association clause and free political association Rice v. Cayetano: Invalidated under 15th Amend. HI provision limiting the vote for trustees of the state Office of Hawaiian Affairs to “Hawaiians” defined by state statute as descendants of peoples inhabiting the islands in 1778 or those who are ½ descendants of those peoples This is ambiguity of whether this is a race issue since the law was racebased
o o
Race-based and ancestral disenfranchisement and the Fifteenth Amendment o
VOTE DILUTION: REAPPORTIONMENT CASES, GERRYMANDERING, AND RACECONSCIOUS DISTRICTING Reynolds v. Sims, p. 804 One-person-one vote – if a districting scheme violates that tenet, it is unconstitutional State must structure its districts and legislature such that its citizens are equally represented by population A scheme giving equal votes without regard to the population in the district dilutes some of the citizens‟ votes; dilution impairs basic constitutional rights just as much as invidious discrimination based upon factors such as race or economic status Ct required legislature to establish population-based voting Apportionment – by weighing it based on population, it may still not be representative of the people because one out of 500 portion vote is not equal
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN How close does it have to be to exactly 1::1? o Any deviation is unacceptable absent a compelling reason the state cannot comply Some areas were less populated and those more populated areas were receiving disparate treatment = dilution
Where is the disparate impact? o
Elaborating “One-Person-One-Vote” o Avery v. Midland County: (Texas County Commissioners) Local government with general governmental powers over the entire geographic area served by the body must also apply equal population in determining voting districts Hadley v. Junior College Dist.: Defined the general rule as requiring – a state government electing persons by popular election to perform governmental duties, Equal Protection requires that each qualified voter must be given an equal opportunity to participate in the election; and when members of an elected body are chosen from separate districts, each district must be established on a basis which will insure as far as is practicable that equal numbers of voters can vote for proportionally equal members of officials. Congressional Districting: Kirkpatrick v. Preisler: p. 809: States must make a good-faith effort to achieve precise mathematical equality (not the 2.8 – 3.1% deviation this Missouri plan allowed) White v. Weiser: Adhered to “precise equality” – no population variances allowed Karcher v. Daggett: Further insistence on the population mathematical equality unless a state were able to show why more precise results than 0.7% could be achieved using the best available census data available
o
o
o
State Districting: with state elections, there are other factors that are allowed to stay intact [incumbent protection from running against each other] Abate v. Mundt: p. 810: 11.9% Deviation allowed because of the county‟s constituent towns Mahan v. Powell: States are allowed wider ranges of deviation to assist them in normal functioning
o
Supermajorities: p. 811: Gordon v. Lance: WV law requiring 60% majority before it incurs bonded indebtedness There is nothing in the Constitution, our history, or our cases what requires that a majority always prevail
o
Courts Reluctant to Scrutinize Political Gerrymandering (drawing lines with the intent to create specific political boundaries)
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Gaffney v. Cummings: Even if the population divisions are correct, they may still result in political polarity – it is more appropriate for those who work to do the redistricting should use both political and census data
Davis v. Bandemer, p. 813 (1986) A mere lack of proportional representation will not be deemed unconstitutional Indiana apportionment plan created secretly to ensure that Dems would end up with specific # of seats (less than republicans) No constitutional requirement for proportional representation Drawing district lines is a justicable issue – it isn‟t the outcome @ issue but the ability to influence the political process E.g. Bush v. Gore: what is the standard to define the voters‟ intent (as when reviewing ballots for hanging chads, etc.) o What if different districts use different machines with different error rates? In the 9th District the Gubernatorial rehearing was not held because machines had differing error rates in their machines. Higher error rates = higher possibility that my vote won‟t count When the margin of victory is within the margin of error, you keep working to increase the margin of victory Intentional discrimination is required against an identifiable political group Actual discriminatory effect
o
Not a violation because o o
RACE-CONSCIOUS DISTRICTING Shaw v. Reno [Shaw I], p. 818 Race-based districting plans created to benefit historically disadvantaged racial minority groups are still subject to strict scrutiny Miller v. Johnson , p. 824 A state cannot define a district to ensure a specific race makeup Just because a district is shaped bizarrely does not make it unconstitutional District was set up to ensure 3 majority-black districts, the whites sued GA 11th District invalidated because it was created with a race being the predominant factor in defining it – this will bring it subject to strict scrutiny after it has been shown to be a predominant factor Shaw v. Hunt [Shaw II], p. 826 Any districting plan significantly based on race is subject to strict scrutiny After Miller, looking @ Shaw I again, although the districting plan was significantly based on race, was there a compelling interest sufficient to withstand strict scrutiny
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Here, Rehnquist said yes, strict scrutiny is appropriate standard, but there was no compelling state interest supporting the use of race to define the districts Bush v. Vera, p. 826 Strict scrutiny does not apply to redistricting merely because it is performed with consciousness of race Decided same day as Shaw II – Plurality opinion. O‟Connor: Strict scrutiny does not apply to redistricting merely because it is performed with consciousness of race…. but that the predominant factor motivating legislature‟s redistricting decision was race. Claim was that race was explicitly taken into account when the district was drawn o The process of defining the districts should be color-blind Strict scrutiny applies if other legitimate redistricting principles, such as compactness, were subordinated to race Dissent: No one is injured here. Whites are still majority and have not had their voting strength diluted; Stevens: Equal Protection violated when state creates a district for sole purpose to discriminate (invidious) as compared to benign classification which is here and helps those historically disenfranchised Hunt v. Cromartie, p. 829 Plaintiff must show that race was the PREDOMINANT FACTOR motivating a legislature’s districting decisions When bringing an equal protection claim regarding districting – must show intent on the part of the legislature otherwise it does not rise to strict scrutiny o Unexplainable on grounds other than race – that is why this district is shaped so funky – not to subdivide due to race (political reasons are OK, protecting incumbents are OK, and if race was only 1 factor, then it is OK)
After predominant factor shown, then the state must shown “narrowly drawn” for a “compelling state interest” ACCESS TO THE BALLOT: RESTRICTIONS ON CANDIDATES AND PARTIES The right to appear on the ballot is an unenumerated right – springs from the First Amendment right to redress grievances and political association, freedom of political and other speech; thus it is treated as a fundamental right. Williams v. Rhodes, p. 831 Undue burdens placed on those seeking a place on a ballot are subject to strict scrutiny OH law making it difficult for new parties to appear on the ballot subject to strict scrutiny Jenness v. Fortson, p. 832 State can put conditions upon candidates who wish to appear on ballots State allowed write-in votes and let independent candidates on the ballot but they had to meet specific minimum criteria in order to appear on the ballot
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Burden was low Bullock v. Carter, and Lubin v. Panish, p. 832 A state cannot require filing fees to appear on a ballot Strict scrutiny and rationality standards applied here Ct held unanimously that you can‟t charge to appear on the ballot Disparity because it keeps indigent candidates from running Clements v. Fashing, p. 833 Ct will treat with deference state laws requiring state officials to resign from current office before seeking new office TX constitution required officials to resign before they ran for a new office Ct reviewed this law with deference stating that not all ballot access restrictions require heightened scrutiny Heightened scrutiny will apply in 2 cases: o o Classifications based on race Classifications imposing burdens on new or small political parties or independent candidates
Anderson v. Celebrezze, p. 833 There cannot be differing requirements for independent candidates than for mainstream candidates Ct based decision on 1st Amendment and not Equal Protection Invalidated the requirement for independent candidates to file earlier than conventional candidates Burdick v. Takushi, p. 834 Ct will review with deference a state ballot regulation prohibiting write-in voting Ct sustained the law Timmons v. Twin Cities Area New Party, p. 835 Ct will review with deference a state ballot regulation prohibiting “fusion” of a candidate – running as a candidate of multiple parties Ct sustained the law California Democratic Party v. Jones, p. 837 Political parties may limit the voting to those persons within their party under their First Amendment right of Free Association Ct struck down a CA initiative changing the state‟s partisan primary from a closed primary, where voters could vote only for candidates in their party, to a blanket primary, where any voter could vote for any candidate
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN ACCESS TO COURTS Griffin v. Illinois, p. 838 If right to appeal is granted by state, it cannot enact fines which make it impossible for an indigent appellant to receive a transcript of his trial Once a state gives a right, it cannot make application of that law discriminatory to indigent persons State must provide transcript if it is necessary for an individual to appeal BOTH EP and DP do not allow a state to discriminate based on poverty Douglas v. California, p. 840 Griffin holding extended to apply to ct appointment of indigent defendants for first appeal To deny representation at first appeal is invidious discrimination Mainly because the discrimination is primarily based on one‟s wealth or lack thereof Ross v. Moffitt, p. 841 Griffin and Douglas [supra] do not extend to discretionary appeals Individuals only afforded equal oppty to present their claims within the adversarial system State may pay for use of state shrink when main defense is insanity [Ake v., OK] ECONOMIC BARRIERS AND CIVIL LITIGATION Boddie v. Connecticut, p. 842 State can’t require fee for divorce by indigent couple b/c state has monopoly to grant dissolution Ability to determine familial relationships = fundamental and state has monopoly on granting divorce United States v. Kras, p. 843 No fundamental right to file for bankruptcy, so the fee is not waived for indigent debtors filing for bankruptcy protection Mainly because filing for BK fundamental right Little v. Streater, p. 843 Indigent in paternity may receive $ for paternity blood test Illegitimacy and familial issues make this more important than BK filing fees Paternity test in claim for child support = Source of exculpatory evidence M.L.B. v. S.L.V., p. 844 Indigent mother entitled to receipt of her trial transcript for appeal even if she can’t pay for them State req‟d to provide transcript for appeal Case limits such provisions to those persons whom the state is required to provide services
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Must show: Fundamental right Ct provides the only available remedy Shapiro v. Thompson, p. 848 [Dicta] Special scrutiny may be applied to restrictions on classifications affecting “necessities” Dandridge v. Williams, p. 849 State may limit access to state benefits via rational basis standard; such as limiting amt avail to welfare families State welfare pgm setting maximum limits per family = OK regardless of size of family Lindsey v. Normet, p. 850 No fundamental right to decent shelter; states may authorize via law procedure to evict nonpaying renters Rational basis used here No pay = LL can evict and this is not unconstitutional; not up to gov‟t to make sure you have somewhere to live San Antonio Independent School Dist. v. Rodriguez, p. 851 Just because a system of financing a school dist results in some disparity of spending on students, it is not irrational Contested Law: TX law which apportioned the amt of money spent in school based on the tax base of $ generated for that area o o o Constitutional because it for a right fundamental No absolute deprivation resulted here Industrial areas where poor kids also have tax base of those nearby businesses
Plyer v. Doe, p. 859 Laws regarding access to education receive rational relationship standard Contested Law: TX law allowing schools to deny access to free education b/c they were illegal aliens o o Failed and is unconstitutional because other methods may be available State interest here was not substantial and rational to any acceptable objective
POST-CIVIL WAR AMENDMENTS AND CIVIL RIGHTS LEGISLATION: CONSTITUTIONAL RESTRAINTS ON PRIVATE CONDUCT; CONGRESSIONAL POWER TO IMPLEMENT THE AMENDMENTS
14th and 15th Amendments are directed to limit governmental action, not private behavior o Issues come from what is defined as “state action”
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o Or what is considered a “private actor” or what is “private conduct” 13th, 14th, 15th amendments provide congress with “power to enforce” each amendment by “appropriate legislation” Commerce power has also been invoked on behalf of civil rights 13th Amendment: Abolished slavery “Black Codes” established by many states after this amendment in order to severely limit the rights of black citizens to the extent that their position was not much better then when they were slaves 13th do not apply to state action – it is not required to find that it is the state acting Congress replied with legislation which ensured the rights of black citizens to travel, contract, vote and own property Limited action by gov‟t ISSUE: whether these laws overly restrict power of state gov‟t to control its citizens and whether these laws overreach congressional power o These powers given to congress are provided for in the amendments and not the original constitution
Congress has the authority to protect civil rights o
14th Amendment: Guarantees Due Process and Equal Protection under the law to everyone, regardless of their skin color or whether they were formerly slaves Action by gov‟t mentioned in 14th 15th Amendment: Ensured that the former slaves and black freemen were eligible to vote Action by gov‟t mentioned in 15th
o
NOW – Court expect Congress to express in its legislation where it has the power to enact certain types of legislation (e.g., “We are enacting this law as an exercise of our right under the Commerce Power”) Whether Congress may pass laws to completely equalize all people in the US – we are a capitalist country – doesn‟t matter if someone is poor Congress is limited in the amount of power it has to control the activities generally reserved to the states Tension between Congress and the Court to determine which acts violate the Constitution since these amendments provide Congress with the
Main Themes: o
o
Separation of Powers:
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN ability to “enact appropriate legislation” to enforce Post Civil-War Amendments LAWS OF THE RECONSTRUCTION ERA 1866 Act Enacted under the 13th Amendment to respond to the “black codes” o Because of the potential problems with the constitutionality of this act, the 14th Amendment was drafted to validate the 1866 Civil Rights Act 1870 Act Passed to enforce the 15th Amendment providing black men the right to vote Dealt with state denials of voting rights Provided criminal penalties for private conspiracies to violate federal rights 1871 and 1875 Acts Established civil and criminal penalties for violation of civil rights 1871 Act = KKK Act 1875 Act = Public accommodation Act Both of the above acts struck down in the Civil Rights Cases MODERN COUNTERPARTS Criminal Provisions Criminal punishment for deprivation of civil rights through private conspiracy or under color of state law 18 USC §§241 and 242 Civil Provisions Equal rights to all citizens and provide civil penalties for deprivation of civil rights through private conspiracy or under color of law 42 USC §§1871, 1982, 1983, 1985(3) Civil Rights Act of 1964 Adopted in 1965, it was the first comprehensive modern civil rights law Included provisions for voting rights and desegregation PROBLEMS OF STATE ACTION 19th Century Enforcement Narrowly construed the civil rights amendments 14th Amendment guaranteed only apply to state action depriving individuals of their rights
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Congress may only regulate activities that the Court would independently find to be a violation of equal protection Court will independently examine congressional action under the 13th Amendment to insure that it was designed to eliminate the clear vestiges of slavery 20th Century Enforcement Still requires state action under 14th Amendment but court is more generous in allowing Congress to reach private behavior How private action may become state action for equal protection purposes, thus allowing Congress to regulate incidents of private discrimination o Public Function Approach: Requires figurative state action (private actor performing what is normally a state action) = wider reaching Private actors doing things that are sufficiently like what the government does, thus imputing to them the same duties as the government Government gives a private actor the right to act as a government entity and with that power goes the same duties This approach has been generally abandoned Private Entity Acting as a Government Does Private entities functioning as if they were a government entity fulfill a public function and the private entity may not do what the gov‟t cannot do If state privatizes gov‟t functions, the function approach may allow the private actor more leeway to do more
o
Nexus Approach = narrow reaching Government having at least some action Looks at how entwined the gov‟t is with the action
Marsh v. Alabama, p. 872 A private, company owned town acting as the local government may not limit a person’s religious speech If the company performs all of the duties of a government, it may not limit a person‟s rights, such as religious speech, in the downtown shopping area Distinguished in later cases because it is a town, much like a home Cited and followed for shopping centers in Amalgamated Food Employees Union v. Logan Valley Plaza, Inc. (1968) which was later OVERTURNED by Hudgens v. NLRB (see below)
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Hudgens v. NLRB, p. 873 Shopping Centers do not act sufficiently like government entities for their owners to be considered State actors Court has gone through a little indecision here Evans v. Newton, p. 874 Private areas traditionally having a purpose of which to serve the community, may be considered public There was an alternate holding in this case, so the issue of the park did not get resolved, although it looks like it may be considered to be public because of the public‟s typical use of a park in this manner Senator Bacon left property as a park in his will as a “whites only” park and the city was trustee; when the Brown decision came down, they requested to be released from being trustees and the state granted the request and allowed appointment of private trustees – but the park could not continue to operate as a whites only park o Mass recreation through the use of parks is plainly in the public domain; and state courts that aid private parties to perform that public function on a segregated basis implicate the state in conduct proscribed by the 14th amendment.
THE WHITE PRIMARY CASES Court had been refusing to allow Democratic party groups in southern one-party states to exclude black voters from the pre-election candidate selection process, despite repeated attempts to eliminate all formal state action from the primaries State regulation of primaries has traditionally been handled exclusively by the states Particularly because the 15th Amendment is specific to the right to VOTE Nixon v. Herndon, p. 875 14th Amendment is violated when states enact laws which, on their face, exclude blacks from primary elections Texas law, on its face, excluded blacks from Democratic primaries – held to be state discrimination in violation of the 14th Amendment Nixon v. Condon, p. 875 State cannot circumvent its obligations to abide by the 15th amendment by delegating its power to a private entity If a state allows a committee to take over the obligations of prescribing membership qualifications, it is granting that committee agency status of the state
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Grovey v. Townsend, p. 875 [Overruled by Smith v. Allwright] Exclusion of blacks even by a private group is unconstitutional Even if the state is not at all involved and the private actor excludes blacks from a private party convention, the private group will have committed constitutional discrimination of a voluntary, private group o Originally this was held to be OK because the convention was held to be a voluntary, private group, but 9 years later, Smith v. Allwright overturned it
Smith v. Allwright, p. 875 [Overrules Grovey v. Townsend] State’s delegation to a private entity of the power to fix the qualifications of primary elections subjects those functions to constitutional constraints of the 15th amendment When state delegated this function, the party accepting the function was acting as the state and was subject to 15th amendment Terry v. Adams, p. 876 Any form of a vote, even private “pre-primaries” where candidates run unopposed, are subject to 15th amendment requirements No matter if this is private and the candidates run unopposed, it is still a vote and blacks must be allowed to vote Mainly because the process of using that private club equated to a duplication of the election process and it had the purpose and effect of denying “negroes on account of their race and effective voice in governmental affairs PUBLIC FUNCTION DOCTRINE NARROWS Soon became limited to those actions traditionally done EXCLUSIVELY by the state Jackson v. Metropolitan Edison Co., p. 876 Utilities, while heavily regulated, are not providers of public functions because historically utilities have not always been exclusive to the gov’t Since not exclusive to the State, then not a public function Private utility operator not subject to the 14th amendment (already subject to the regulations) UCC – Uniform Commercial Code (adopted in all states) Provides private citizens rights to resolve disputes without resorting to courts – repo and sale of warehoused goods held in storage (warehouseman‟s lien) Flagg Bros., Inc. v. Brooks, p. 877 Private sales pursuant to UCC are not state action even though the sale is pursuant to statute Because the resolution of private matters are not exclusive to the gov‟t (See Jackson v. Metropolitan Edison Co.)
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Warehouseman held a lien on plaintiff‟s property and sought to execute the lien by selling the goods – plaintiff claimed it was unconstitutional because the warehouseman was able to make the sale pursuant to the UCC NEXUS STRAND OF STATE ACTION Private actor = engaged in state action if gov‟t is found to be involved to some degree in the action But how much gov‟t involvement is required to convert private action to gov‟t action? Shelley v. Kraemer, p. 879 Private racially restrictive covenants do not violate equal protection when voluntarily complied with – but as soon as the Court is used to enforce that covenant, the state has acted to deny rights under the 14th Amendment Shelley applies to damages actions but not reversions (when a party has a possibility of reverter on property – O to A so long as no black people live on it = this would hold up even with shelley) Voluntary compliance is OK, the problem is when the court enforces it – at that point, the state‟s action invokes the 14th amendment Barrows v. Jackson, p. 882 Can’t give damages to private seller of property if he violates a covenant when he does it If a private party sells his property in violation of a racially restrictive covenant and gets sued, the gov‟t, thru the cts can‟t give damages against him o Because it would induce prospective sellers either to refuse to sell to nonCaucasians or to “require non-Caucasians to pay a higher price to meet the damages which the seller may incur”
Evans v. Abney, p. 883 An action which has an effect that applies to all persons equally is not violative of the constitution State, through probate, enforced a will which provided for closure of a private park if it were to be desegregated o This was not found to be discriminatory because the result was that the park ceased to exist – and thus the result applied equally to blacks and whites
Pennsylvania v. Board of Directors of Trusts, p. 883 Government agents in receipt of property as beneficiaries must comply with the constitution as state actors Will was enforced by the courts providing for funds to create a school for educating only white male orphans where the City of Philadelphia was the trustee – the state courts would not force the school to admit to black students o Sup Ct reversed because the trustees of the school‟s funds were all gov‟t agents
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Bell v. Maryland, p. 884 A state may assist in discriminatorily removing someone from private property so long as public activities do not take place on that property It‟s OK to have the police remove someone from your house because you don‟t like them due to their race It‟s NOT OK for the police to remove people from private property operating to serve the public – such as removing people who are sitting-in at a restaurant that serves the public Burton v. Wilmington Parking Authority, p. 885 State action will be found when the gov’t is involved in private conduct that abridges constitutionally protected rights Particularly when the private entity and the gov‟t are in a mutually beneficial “symbiotic relationship” Gov‟t building rented a diner area in its parking ramp area; the diner refused service to a black man; Delaware law allowed such treatment if the private restaurant determined that service to a customer would be offensive to the other patrons; DE Sup Ct did not take the law off the books, but found that there is state action when the state‟s lesee has acted in a discriminatory manner and the state benefits from that lesee Derrington v. Plummer, p. 888 State lessees who discriminate against blacks violate equal protection as state actors The state‟s involvement as lessor is enough when they lease the basement cafeteria to a private entity and that entity refuses to serve food to blacks Gilmore v. Montgomery, p. 888 Gov’t can’t grant exclusively something to segregated private schools An exclusive grant to a public facility to a private segregated school is unconstitutional But it may allow all persons to use that facility, which may include private, all-white church groups LICENSES STATE ACTION Moose Lodge No. 107 v. Irvis, p. 889 State regulation by issuance of a license to serve liquor is not state action A private club‟s racial discrimination in refusing to serve food or drink to a member‟s black guest is not discrimination by the fact that the state issues the establishment a liquor license CBS, Inc. v. Democratic Nat. Comm., p. 891 [dicta] The actions of a television station are not state action by way of issuance of FCC license to broadcast A television station would not broadcast editorial advertisements – party claimed that it was governmental action for purposes of first amendment
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Justice Burger explained that the government was not a partner to the action of the broadcast licensee in denying broadcast of the advertisement; First Amendment does not reach acts of private parties in every instance where the congress or the commission (FCC) has merely permitted or failed to prohibit such acts o o No symbiotic relationship where the gov‟t was profiting from any invidious discrimination State action cannot be invoked in every instance where the government has permitted or failed to prohibit certain acts
STATE ACTION THROUGH STATE “ENCOURAGEMENT” AND “AUTHORIZATION” Reitman v. Mulkey, p. 891 Enactment of a law authorizing racial discrimination in the housing market violates the 14th amendment California, in 1959 and 1963 enacted fair housing laws making it illegal to racially discriminate in the sale or rental of residential housing In 1964, it adopted Proposition 14, which prohibited the state from denying “the right of any person to decline to sell, lease or rent real property to such person or persons as he in his absolute discretion chooses” o The issue was that the state allowed this legislation to pass and encourage people to discriminate in the sale or rental of their housing
Justice White wrote for the majority Harlan Dissented (Black, Clark, Stewart): any act permitted by a state law under this opinion would be encouragement; the state action required to bring the 14th amendment into operation must be affirmative and purposeful, actively fostering discrimination STATE ACTION SINCE THE 1980’S Blum v. Yaretsky, p. 898 Nursing Homes State Actors Even though regulated by state, received reimbursements for Medicaid patients – were not state actors for 14th amendment purposes because state was not responsible for the specific conduct complained of Rendell-Baker v. Kohn, p. 899 Private Schools State Actors Even though subject to state regulation, receives some funds from public sources, no engaging in state action when it fired certain employees Even though school relies on public contracts does not become a public actor for that reason alone – still a private entity
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Lugar v. Edmondson Oil Co., p. 899 Attachment of property in a civil dispute = state action State officials are acting with a private creditor in ex parte proceedings to seize disputed property without consent of the creditor is state action for 14th amendment purposes By creating a system whereby state officials may attach property on the ex parte application of one party to a private dispute NCAA v. Tarkanian, p. 900 Policies of a private organization are not state action UNLV suspends coach because of NCAA (National Collegiate Athletic Association) state action because UNLV (University of Nevada Las Vegas) is acting under NCAA rules not state law San Fran. Arts & Athletics v. U.S.O.C., p. 901 US Olympic Committee State actor USOC has a right to control the use of commercial and promotional uses of the word “Olympic” Majority bases its opinion on the opinions Rendell-Baker (p. 899), Blum (p. 898), and Jackson (p. 876) Edmondson v. Leesville Concrete Co., p. 901 Use by a private litigant to exclude jurors on basis of race = state actor Meets two prong test of Lugar v. Edmondson Oil Co. (p. 899): Did the claimed constitutional deprivation result from the exercise of a right or privilege having its source in state authority? Must the private actor, in all fairness, be deemed a government actor? DeShaney v. Winnebago Cty. Soc. Servs. Dept., p. 902 There is no affirmative duty of the gov’t to insure that 14th amendment interests are not harmed by other actors State interscholastic athletic association = state actor Child was being abused by his father; social workers were aware of the situation; abuse continued until the child suffered brain damage; after father convicted of child abuse, mother and child brought action claiming that the state deprived the child of liberty in violation of due process Rehnquist: Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, p. 904 Statewide interscholastic athletics association will be considered a state actor when it maintains a “considerable” (84%) public entwinement in its management and control Even though the association had nominally private status under state law
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Distinguished NCAA v. Tarkanian because there, the NCAA had no connection to any one state whereas here the Association had exclusive action in TN (84% member schools in TN)
CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCES CONSTITUTIONAL RIGHTS
SOURCES OF CONSTITUTIONAL RIGHTS
WITH
Congress must interpret amendments 13-15 in order to legislate appropriately Due process and Equal Protection rights under the 14th Amendment as well as the 15th Amendment right are rights by their terms applicable only to state interferences o But some activities by private actors is reachable under the 14th and 15th Amendments
13th Amendment is NOT LIMITED TO STATE ACTION and applies to private interferences generally – it is the provision for independent constitutional basis for congressional sanctions against private interferences with rights o §2 of the 13th Amendment deals broadly with private acts of racial discrimination Some rights are based on sources and not on the post-Civil War Amendments – so they are not limited to the actions of a state o Such as implied rights based on structures and relationships implicitly described in the Constitution (such as the right to travel in United States v. Guest
PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CRIMINAL SANCTIONS United States v. Guest, p. 906 §5 of the 14th Amendment provides Congress with the right to enact legislature preventing individuals and their conspirators from violating other individuals’ civil rights Six people shot a black reserve officer coming back from active duty in DC in 1964; the man died and they were indicted; a Georgia Fed Ct dismissed the indictment on the ground that it didn‟t charge a crime under the laws of the USA The other surviving people filed suit on the grounds that there was a conspiracy between the mob to not allow them their basic right to free movement [right to travel] – this falls under the commerce clause But where is the state action for the 14th Amendment to be implicated? Agents in the state made false reports which caused the black persons to be arrested and this official action was enough to constitute enough to be a denial of rights o Specific intent to interfere with the federal right must be proved Clark (Concurs) §5 of the 14th Amendment is specific and shows Congress‟ intent to enact all laws punishing conspiracies – with or without state action Ct avoided determining purely determining that it could reach private actors here because they were able to find state action when the private actors were acting “under color of law”
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN PROBLEMS WITH APPLYING CRIMINAL SANCTIONS TO STATE-INVOLVED DEFENDANTS INTERFERING WITH 14TH AMENDMENT RIGHTS State v. Price, p. 910 18 USC §242’s language of “under color of state law” is the same as state action under the 14th amendment Parties who conspire with state officers to violate the Constitution fall within the statute This statute has survived challenges of being vague – because it is criminal, it has a scienter element and thus there is no vagueness Any conspirator with a state official will bring a private actor under control of the 14th Amendment to charge them with the private conspiracy provisions Facts: murder of 3 civil rights workers near Philly; conspiracy was the release of the civil rights workers from jail at night by the state after which they were intercepted and killed The Williams Cases, p. 911 Court-developed state action under §1 of the 14th Amendment will reach private individuals Williams v. United States 1951: Police officer investigating theft flashed his badge and beat suspects until they confessed violated their rights to Due Process United States v. Williams 1951: Same , plaintiffs were two of his employees convicted of conspiracy under the private conspiracy provision – ct said that 18 USC §242 was applicable to 14th amendment rights as well as others o Such as the rights “secured” by the Constitution
Screws v. United States, 1945, p. 912 18 USC §242 is not vague in providing notice of what is prohibited [willful actions under color of law that deprive a person of his 14th Amendment rights, such as the right not to be deprived of life without due process of law] The “original” Rodney King case Black victim was beat to death by Screws; Screws challenged the conviction because he claimed §242 was vague Ct said NO because the act of beating suspect to death was intent to deprive him of due process o o Evidence of bad purpose or evil intent alone is not enough Must show specific intent that a person intended to act in a way that deprived another person of a right which has been granted specifically by express terms in the Constitution or laws of the USA Acting is in open defiance or with reckless disregard of a constitutional requirement which has been made specific and definite
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN §245 OF THE CIVIL RIGHTS ACT OF 1968 Intent behind Federal legislation such as §245 was to prevent private interference with federally protected activities SEE PAGE 914 FOR SPECIFIC TEXT LISTING THE “FEDERALLY PROTECTED ACTIVITIES” of §245 (voting, campaigning, poll watching, employment, etc.) For §245 Congress is acting PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CIVIL SANCTIONS 42 USC §1983 is the civil counterpart to 18 USC §245 civil rights legislation and provides for civil remedies for deprivations of rights Griffin v. Breckenridge, p. 916 42 USC §1985 is applicable to certain private conspiracies Mainly has to do with §2 of 13th Amendment [Ct looked to the 13th amendment – not Congress exercising authority] African Americans from Mississippi were detained in MS, beat by other citizens of that state and they brought a claim under 42 USC §1985 o o o Ct said it would not apply §1985 to all tortuous conduct Claim was to protect interstate travel Statute requires intent
Ct: Intent required in the statute is that which deprives one of equal protection, or equal privileges and immunities – it also means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirator‟s action United Brotherhood of Carpenters v. Scott, p. 917 42 USC §1985(3) Does not Reach Conspiracies Motivated by Economic or Commercial Animus 14th Amendment does not give Congress a broad power to prevent all class-based animus The right asserted here is a 1st Amendment right where there was a claim that a union interfered with nonunion workers – and 1st Amendment applies to only STATE action, thus this case differs from Griffin v. Breckenridge, supra Bray v. Alexandria Women’s Health Clinic, 1993, p. 918 Animus toward abortion is not class-based toward women 42 USC §1985(3) does not apply to women seeking an abortion; to do so would make it a general federal tort law Women seeking abortion wanted protection from those who would blockade the clinics as depriving them of their rights
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN SCALIA wrote this opinion - §1985(3) did not include within the notion of a “class” those persons whose connections lay only in a common desire to engage in conduct that the §1985(3) defendant disfavors o o o Even though women are a quasi-suspect class and they are seeking a fundamental right here Didn‟t strike down the law, only said it didn‟t apply here Ct presumed that the statute only reaches those actions Congress can reach under the Constitution
BUT SEE National Organization for Women, Inc. v. Schneider (1994), infra which renders Bray v. AWHC less important Substantially superseded by the Freedom of Access to Clinic Entrances Act of 1994 which rests on both the Commerce Clause and on §5 of the 14th Amendment National Organization for Women, Inc. v. Schneider (1994), p. 919 RICO federally provides civil remedies for those activities that did not fall under Bray v. Alexandria Women’s Health Clinic Civil remedies were applied against those who unlawfully obstructed access to abortion clinics o Ct used the RICO (Racketeer Influenced and Corrupt Organizations) chapter of the Organized Crime Control Act of 1970 to control those who repeatedly and unlawfully blocked access to abortion services
Monroe v. Pape, p. 919 Local Governments are immune from 42 USC §1983; §1983 also does not include the specific intent provision as does its counterpart 18 USC §242 (the criminal version) 18 USC §242 and 42 USC §1983 are counterpart civil rights legislation §242 is the criminal section and requires specific intent §1983 is the civil and does not require specific intent
CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT UNDER THE 13TH AMENDMENT Jones v. Alfred H. Mayer, Co., 1968, p. 920 The 13th Amendment provides Congress with the power to enact law that defines and eradicates the “badges and incidents” of slavery for both private and state action Negro family brought claim that a family would not sell them their home in violation of §1982 and the lower ct ruled in favor of the property owner stating that §1982 only applied to state action – the Sup Ct said NO - §1982 APPLIES TO ALL RACIAL DISCRIMINATION, PRIVATE AND PUBLIC in the same or rental of property Something is a “badge or incident of slavery” when Congress says it is – they have the right to interpret activities against a touchstone of the 13th Amendment
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN This is a tricky opinion because the court is giving Congress practically carte blanche with respect to interpreting what is a violation of the 13th Amendment But that was the court back then… today, it is likely that they would not be as deferential to Congress making such interpretations without showing some sort of proof of discriminatory intent on the part of one of the parties
Harlan‟s Dissent: Legislature has enacted “fair housing” laws that show the wisest course of action with regard to housing discrimination and §1982 is not for private actors – here it is misapplied – the application of this ruling is too broad and a narrower remedy is more appropriate if any 13TH AMENDMENT POWERS AND THE 1866 ACT Earlier sup court was narrower in its rulings on how it construed the “badges and incidents” of slavery but later the ct became more liberal in its application and applied it more broadly. Sullivan v. Little Hunting Park, p. 923 §1982 May also apply to a private organization that denies a person rights to contract to sell or purchase property based on race Sullivan‟s neighborhood had a park association with playground facilities on it. When he leased his place to Freeman, a black man, the association board refused to approve the assignment of Sullivan‟s portion of the park [co-op park] on the sole basis of his tenant‟s race – Sullivan was later completely expelled from the co-op because he protested the refusal of his assignment to Freeman, so he and Freeman sued. Ct said Sullivan and Freeman could sue under 42 USC §1982 for damages and injunctive relief as being part of the 1866 Act because there were no selective criteria to join the park except for race Runyon v. McCrary, p. 924 §1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are negroes Maj relied a little on Jones – here for free association and privacy o Parents may want to have their kids go to segregated schools, but it is not for the state to protect such discrimination
Justice WHITE dissented: §1981 means what it says and no more – cannot disable someone from making a contract contrary which may be a private, racially motivated refusal to contract CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER §5 OF THE 14TH AMENDMENT Voting became the battleground between Congress and the Court in defining what the proper Voting Rights were to be. 1965 Voting Rights Act: enacted in response to what Congress saw as continued defiance by certain states to keep blacks from voting and the lack of success in past attempts to remedy the situation
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN o o Some states continued to use literacy or other tests especially to keep blacks from voting As each test was overturned by a ct on 15th Amendment litigation, they would devise a new test
South Carolina v. Katzenbach, p. 925 Congress may enact legislation conflicting with existing state legislation in order to correct Equal Protection problems Voting Rights Act of 1965 – case by case litigation was slow and did not produce results o o Any provisions requiring literacy tests were controversial in areas where voting discrimination was most flagrant §2 of the 15th Amendment – as a remedial measure
Congress may enact equal protection legislation and may use any rational means, including those that conflict with state statutes and procedures, to effectuate the constitutional prohibitions of racial discrimination in voting Lassiter v. Northampton County Election Bd., p. 927 State may have some factors available to it to describe minimum requirements for voting, but if the application of determining whether someone meets those requirements is discriminatory, then it may be invalid Lassiter challenged the requirement by Louisiana that a voter be literate in order to read the ballot Ct said this requirement was OK because literacy is a neutral requirement and it is somewhat related to “promote intelligent use of the ballot” o o THIS IS STILL GOOD LAW – LITERACY TESTS ARE NOT PER SE UNCONSTITUTIONAL Congress may do this pursuant to §2 of the 15th Amendment where there has been history of discriminatory activities keeping the vote from black voters – but that it has to be the conduct and not the test that is the issue
South Carolina v. Katzenbach, p. 927 Voting Rights Act of 1965 constitutional b/c Congress broadly allowed to legislate EP legislation Even if those laws conflict w/state statutes and procedures Congress can enact laws when case-by-case litigation does not adequately protect discrimination Oregon v. Mitchell, p. 929 The 1975 Amendment to the Voting Rights Act outlawed all literacy tests nationwide; such an amendment was allowable under the Constitution As a remedial power to correct and promote nationwide uniformity in voting rights
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Falls within Congress‟ power to enforce, through laws, the intent of the 13th – 15th Amendments SCOPE OF CONGRESSIONAL POWER TO ENFORCE VOTING RIGHTS: “REMEDIAL” OR “SUBSTANTIVE” Katzenbach v. Morgan, p. 930 §5 of 14th Amd. allows Congress to override state law if it finds reasonable basis to perceive that the law violates EP Ct is highly deferential Congress could have reasonably perceived enactment of the Voting Rights Act was necessary to correct the discriminatory voting law of NY requiring literacy in English for those persons raised in Puerto Rico o o As a method of eliminating invidious discrimination Aid Puerto Ricans in obtaining nondiscriminatory treatment in obtaining gov‟t svcs (ability to vote)
Oregon v. Mitchell, p. 937 States may provide for their own state age limits for their own elections But not for Fed Elections Rome v. United States, p. 939 §2 of Amd 15 allows Congress to outlaw voting practices which are discriminatory in effect Intent not required, disparate impact is enough Congress may legislate unconstitutional behavior regardless of whether there was intent that the actions be discriminatory City of Boerne v. Flores, p. 940 Religious Freedom Restoration Act of 1993 Later substantive content is only allowed as interpretation by the court Disputed legislation: RFRA o Smith case: modified the scrutiny to rational basis; “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest” Was Congress making a move to enact a statute determining what scrutiny a law would get overstepping? Yes, because the Court has absolute province to analyze law and Congress can only make the law – Congress cannot make a law that the court has already determined and ruled upon only as a ploy to reiterate its desires – that would act as an amendment to the constitution They cannot enact laws overruling constitutional decisions by the court
o
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN CONGRESS CANNOT ABROGATE STATE SOVEREIGN IMMUNITY Congress can have an interpretive role only when the court has not made a determination in that area of the law Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, p. 947 Congress may not be proactive in enactment of law without evidence that such activities are actually happening Congress wanted to pass the Patent Remedy Act which would allow patent holders to sue states for infringement But there was no widespread evidence that patent holders were being infringed upon by states and then states pled sovereign immunity US v. Morrison, p. 949 Violence Against Women Act NOT allowed to provide suit against state Is this within Congressional power to allow a private remedy for violence against women o No – under §5 of the 14th Amendment – even though states were failing to provide equal protection to women subjected to violence because this would be against a private actor
Also, ct notes gender-motivated crimes not prevalent in all, or even most states Cts have nostalgia for antebellum federalism – intent of the framers (the original framers, not the post-civil war 13-15 framers) o !! But that was the whole point of the post civil war amendments provisions to allow Congress the power to enforce through carefully crafted legislation And if Congress feels there is a gap, they must legislate
Kimmel v. Florida Board of Regents, p. 952 Congress may not enact a law which violates sovereign immunity of states [11th Amd] by allowing ppl to sue state b/c of Fed Law Conduct of the state which would violate the ADEA would not violate the equal protection clause Congress can‟t give you something it doesn‟t have – the right to allow you to sue for something which is not unconstitutional; 14th Amendment does not allow Congress to provide for those things which are unconstitutional Board of Trustees of Univ. of Alabama v. Garrett, p. 953 Congress cannot abrogate sovereign immunity of State [11th Amd] by allowing stateemployees to sue under ADA as Congressional power to enact under Amd XIV Under ADA states must make reasonable provisions for handicapped but under equal protection congress cannot make states do it
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN Nevada Dept of Human Resources Congress can only abrogate a State’s 11th Amd sovereign immunity via §5 of 14th Amd by enforcing Fed law against states for actions violative of 13-15 Amd Family medical leave act applied to states is within Congress‟ §5 power to enact proscribed constitutional conduct
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN
TABLE
OF
CASES
AND
RULINGS
PRE-CIVIL WAR: WHAT THE AMENDMENTS APPLY TO ............................................................................................ 11
Barron v. Mayor and City Council of Baltimore p. 412 ..................................................................................... 11
Fifth Amendment is inapplicable to the states ................................................................................................................................. 11
POST CIVIL WAR ...................................................................................................................................................................... 11
Slaughter-House Cases p. 415 ............................................................................................................................ 11
13th and 14th Amendment narrowly limited by Supreme Court to apply only to former slaves and African-Americans only ................................................................................................................................................................................................................ 11
Shapiro v. Thompson p. 426 ............................................................................................................................... 12
Equal Protection clause requires that state statutes must survive STRICT scrutiny, even if they are not suspect, when they invade a fundamental right................................................................................................................................................................. 12
Dunn v. Blumstein p. 427 .................................................................................................................................. 12
Durational residency requirements in voting must be reviewed with strict scrutiny because they curtail fundamental voting right as well as the right to travel........................................................................................................................................... 12
Memorial Hospital v. Maricopa County p. 428 .................................................................................................. 12
A state cannot penalize an indigent for exercising his right to migrate and seek healthcare in wherever state he settles. .... 12
Saenz v. Roe p. 428 ............................................................................................................................................. 13
A state must provide the same privileges and immunities (such as travel) to new residents as it does to other citizens. ..... 13
Crandall v. Nevada p. 426 .................................................................................................................................. 13
A state cannot tax persons on their movement within and out of the state .................................................................................. 13
Edwards v. California p. 426 .............................................................................................................................. 13
A state cannot pass an “anti-Okie” law disallowing persons to bring someone into the state if that person is indigent. ...... 13
COURT APPLIES THE DUE PROCESS CLAUSE ................................................................................................................ 13
Palko v. Conneticut, p. 435 ................................................................................................................................. 13
Only those rights that are “of the very essence of a scheme of ordered liberty” are necessary for DP and there should not be total incorporation, rather selective incorporation [Justice Cardozo] ............................................................................................ 13
Adamson v. California, p. 436 ............................................................................................................................ 14
5th Amendment self-incrimination does not apply to the states ..................................................................................................... 14
CRIMINAL PROCEDURE RIGHTS ALMOST COMPLETELY INCORPORATED ..................................................... 14
Duncan v. Louisiana, p. 441 ............................................................................................................................... 14
6th Amendment right to jury trial is fundamental and applicable to states in prosecutions involving possible two-year prison term ............................................................................................................................................................................................ 14
Williams v. Florida, p. 447 ................................................................................................................................. 15
Specific rights within the Crim Pro incorporated rights do not have to be followed in a mandatory manner ........................ 15
Apodaca v. Oregon, p. 446.................................................................................................................................. 15
Unanimous jury verdict does not “materially contribute” to the core function of the right to a jury trial ............................... 15
THE EARLY YEARS- NATURAL LAW JUSTIFICATION ................................................................................................. 15
Calder v. Bull, p. 453 .......................................................................................................................................... 15
Rights of personal liberty or of private property are examples of natural law that should not be infringed on by legislative acts ......................................................................................................................................................................................................... 15
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CONSTITUTIONAL LAW II: SPRING 2004 GSU COL\PROFESSOR WISEMAN
Fletcher v. Peck, p. 454 ....................................................................................................................................... 16
[Outdated] Marshall advocated natural law, justifying it on the basis that it those decisions should be followed “either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States.” ...................................................................................................................................................................................... 16
Munn v. Illinois, p . 456 ..................................................................................................................................... 16
Private property may be regulated when it is affected with a public interest, becoming so when it is used in a manner to make it of public consequence and affect the community at large ................................................................................................ 16
Mugler v. Kansas, p. 457 .................................................................................................................................... 16
It is the duty of the Court to decide whether exercise of police powers invade rights of fundamental law, or whether the exercised powers contain real or substantial relation to what they regulate ................................................................................ 16
Allgeyer v. Louisiana, p. 457 .............................................................................................................................. 16
Laws prohibiting consumers from obtaining insurance from companies that were not in full compliance with state law are invalid means of depriving the consumer‟s liberty – their freedom to contract – without due process of law ....................... 16
THE LOCHNER ERA – RISE OF JUDICIAL INTERVENTION ........................................................................................ 16
Lochner v. New York, p. 458 .............................................................................................................................. 17
A law infringing on freedom in the marketplace and from freedom to contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose ............................................................................................................. 17
EXAMPLES OF LOCHNER-ERA JUDICIAL SCRUTINY OF ECONOMIC REGULATIONS .................................... 18
Muller v. Oregon, p. 466 .................................................................................................................................... 18
Legislation to protect women is OK, “to compensate for some of the burdens which rest upon her”...................................... 18
Bunting v. Oregon, p. 466 .................................................................................................................................. 18
Male and female factory workers shall have a maximum 10-hour work day but shall be able to work 3 hours additional at a rate of time-and-a-half ...................................................................................................................................................................... 18
Coppage v Kansas, p. 467 ................................................................................................................................... 18
Unless it is a reasonable exercise of the police power of the state, any interference with the right to make contracts is invalid .................................................................................................................................................................................................... 18
Adair v. United States, p. 468 ............................................................................................................................ 18
No “Yellow Dog” contracts on Interstate Railroads ........................................................................................................................ 18
Adkins v. Children‟s Hospital, p. 468 *(later overruled by West Coast Hotel) .................................................. 19
Paying women minimum wage violates due process* .................................................................................................................... 19
Munn v. Illinois, p. 468 ...................................................................................................................................... 19
Rate regulation only permissible for businesses “affected with a public interest” ...................................................................... 19
New State Ice Co. v. Liebman, p. 469 ................................................................................................................. 19
Laws treating private business as a public utility are invalid means of restricting business entry ........................................... 19
Weaver v. Palmer Bros. Co., p. 469 .................................................................................................................... 19
It is a valid interest of the State to regulate business practices that may defraud consumers or injure their health ............... 19
THE MODERN ERA: DECLINE OF JUDICIAL SCRUTINY OF ECONOMIC REGULATION ................................. 19
Nebbia v. New York, p. 469 ................................................................................................................................ 19
Price controls which are non-discriminatory and bear a rational relation to a proper legislative purpose are constitutional ................................................................................................................................................................................................................ 19
West Coast Hotel Co. v. Parrish, p. 471 *(Overrules Adkins) ........................................................................... 20
Minimum Wage Laws for Women are Valid .................................................................................................................................... 20
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MINIMAL JUDICIAL SCRUTINY: AFTER THE NEW DEAL .......................................................................................... 20
United States v. Carolene Products Co., p. 473.................................................................................................. 20
The Court will not challenge the rationality of the Legislature‟s basis for a prohibition of inferior products ......................... 20
Olsen v. Nebraska, p. 475 ................................................................................................................................... 20
Courts are not concerned with the wisdom, need, or appropriateness of the legislation ........................................................... 20
Williamson v. Lee Optical Co., p. 476 ................................................................................................................ 20
The Court will not overturn economic regulations unless there is no conceivable justification for the regulation ................. 20
Eastern Enterprises v. Apfel, p. 478 ................................................................................................................... 20
Retroactive employment laws will be reviewed with highest scrutiny and will be invalid when they are to compensate costs the employer avoided at the earlier time ................................................................................................................................. 20
THE TAKINGS CLAUSE .......................................................................................................................................................... 20
Hawaii Housing Authority v. Midkiff, p. 481 .................................................................................................... 21
When the exercise of eminent domain power is rationally related to a conceivable public purpose it is not a taking ........... 21
Pennsylvania Coal Co. v. Mahon, p. 482 [TheKohler Act] ................................................................................ 21
A regulation that severely restricts land use rights can constitute a taking, which is unconstitutional unless the Government pays just compensation ................................................................................................................................................ 21
Keystone Bituminous Coal Ass‟n v. DeBenedictis, p.486 .................................................................................. 21
Laws prohibiting subterranean coal mining from damaging preexisting public buildings will not result in a taking........... 21
Miller v. Schoene, p. 485 .................................................................................................................................... 21
When two types of property are in dangerous proximity to each other and there is a necessity of making a choice between the preservation of one class of property and another – it is not a taking to destroy one class of property if doing nothing would have decimated the other class of property .......................................................................................................................... 21
Brown v. Legal Foundation of Washington, p. 8, 2003 Supplement (14 th Ed.) .................................................. 22
The rights of the property interest rest with the individuals who may benefit from it ............................................................... 22
Penn Central Transportation Co. v. New York City, p. 488 .............................................................................. 22
Landmark laws, through public policy, are special and property owners cannot claim “investment-backed expectations” that their property was taken when they are asked to comply with the landmark law .............................................................. 22
Loretto v. Teleprompter Manhattan CATV Corp., p. 489 .................................................................................. 22
Any permanent physical occupation, authorized by the government, without compensation, is a taking.............................. 22
Lucas v. South Carolina Coastal Council, p. 490 ............................................................................................... 22
Any regulation which prohibits all economically beneficial use of land is PER SE invalid........................................................ 22
English Evangelical Lutheran Church c. Los Angeles County, p. 493............................................................... 23
Government must compensate individuals for temporary takings of property .......................................................................... 23
Palazzolo v. Rhode Island, p. 494 ....................................................................................................................... 23
Inverse Condemnation is valid – a property owner who purchases a property which is encumbered by an invalid regulatory taking restriction may challenge the regulation ............................................................................................................ 23
Nollan v. California Coastal Comm‟n, p. 494 .................................................................................................... 23
It is a compensable taking when a city conditions granting a building permit upon receipt of an easement across the property owner‟s land ......................................................................................................................................................................... 23
Dolan v. City of Tigard, p. 495 ........................................................................................................................... 23
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A restriction on granting a landowner use of their land must be compensated, or if uncompensated, it will be considered a taking if the restriction does not bear a reasonable relationship to the benefit the government seeks to provide in creating and enforcing the regulation............................................................................................................................................................... 23
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, p. 9, 2003 Supplement (14 th Ed.) ............................................................................................................................................................................ 23
Temporary development bans must be evaluated on a case-by-case basis and not by the per se ruling ................................. 23
NONECONOMIC LIBERTIES: REPRODUCTION; FAMILY; SEX; DEATH ................................................................. 24 REPRODUCTION CASES ........................................................................................................................................................ 24
Meyer v. Nebraska, p. 508 .................................................................................................................................. 24
“Liberty” includes those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men ........................................................................................................................................................................................................ 24
Pierce v. Society of Sisters, p. 509 ...................................................................................................................... 24
Children do not HAVE to attend public schools, to require so is a violation of a parent‟s right to direct the education of children under their control ................................................................................................................................................................ 24
Skinner v. Oklahoma, p. 509 .............................................................................................................................. 24
Sterilization laws invalid violation of fundamental right to procreate.......................................................................................... 24
Roe v. Wade, p. ................................................................................................................................................... 25
The State bears the burden of proving that its legislation is necessary to further a compelling state interest ......................... 25
Griswold v. Connecticut, p. 510 ......................................................................................................................... 25
The Fundamental right to privacy emanates from the penumbras of the Bill of Rights ............................................................. 25
Eisenstadt v. Baird, p. 520 .................................................................................................................................. 26
It is a violation of the Equal Protection Clause of the 14th Amendment to make it a felony crime to distribute birth control materials to unmarried couples .......................................................................................................................................................... 26
Carey v. Population Services International, p. 520 ............................................................................................ 26
Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state ....................... 26
ABORTION CASES ................................................................................................................................................................... 26
Roe v. Wade, p. 521 ............................................................................................................................................ 26
Abortion is a fundamental right within the scope of personal liberty protected by due process clause of the 14 th amendment – but NOT an absolute right and may be regulated by a state where it has a compelling interest and it draws its statute narrowly to further that interest ....................................................................................................................................... 26
Akron v. Akron Center for Reproductive Health (Akron I), p. 535 .................................................................... 27
Unconstitutional to require 24-hour waiting period, hospital abortions for second-trimester abortions, and to require informed consent.................................................................................................................................................................................. 27
Thornburgh v. American College of Obst. & Gyn., p.536 .................................................................................. 28
Certain abortion reporting requirements and restrictions on abortion sought after fetus obtained viability is unconstitutional.................................................................................................................................................................................... 28
Webster v. Reproductive Health Services, p. 536 ............................................................................................... 28
A physician may test any pregnancy seeking abortion who physician suspects to be 20 weeks or more to determine viability (MO) ....................................................................................................................................................................................... 28
Maher v. Roe, p. 533 ........................................................................................................................................... 28
There is no fundamental right to financial assistance to obtain an abortion ................................................................................ 28
Harris v. McRae, p. 533 ..................................................................................................................................... 28
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Federal Gov‟t may limit the funding of abortions to those necessary to protect the health or life of the mother or other exceptional circumstances ................................................................................................................................................................... 28
Webster v. Reproductive Health Services, p. 536 ............................................................................................... 28
States may prohibit use of its facilities from being used for abortions except when necessary to protect the health or life of the mother ............................................................................................................................................................................................. 28
Rust v. Sullivan, p. 534 ...................................................................................................................................... 28
It is valid to regulate or restrict abortion counseling of family planning programs receiving federal funding ....................... 28
Planned Parenthood of Central Missouri v. Danforth, p. 531............................................................................ 29
Spousal consent is not necessary to obtain an abortion (1976) ....................................................................................................... 29
Bellotti v. Baird; Planned Parenthood Assn. of Kansas City v. Ashcroft; Ohio v. Akron Center for Reproductive Health, pp. 532 ............................................................................................................................. 29
Requiring parental consent and notice is permissible so long as alternative judicial bypass procedures are in place ........... 29
Hodgson v. Minnesota, p. 532 ............................................................................................................................ 29
It is invalid to require a minor to notify both parents 48 hours before obtaining an abortion ................................................... 29
Planned Parenthood of Southeastern PA v. Casey, p. 537 ................................................................................. 29
Multi-opinion where ct affirmed the rulings of previous cases ..................................................................................................... 29
Mazurek v. Armstrong, p. 556 ........................................................................................................................... 30
A state may pass a law restricting those medical professionals performing abortions to physicians, even though the state had previously allowed physicians‟ assistants to perform the procedure .................................................................................... 30
Sternberg v. Carhart, p. 556 ............................................................................................................................... 30
Laws banning partial-birth abortion, except in cases where necessary to save the life of the mother, were held unconstitutional.................................................................................................................................................................................... 30
FAMILY RELATIONSHIPS ...................................................................................................................................................... 30
Loving v. Virginia, p. 559 .................................................................................................................................. 30
A state may not outlaw marriage of persons of different race ....................................................................................................... 30
Zablocki v. Redhail, p. 559 .................................................................................................................................. 31
The right to marry is a fundamental right......................................................................................................................................... 31
Turner v. Safley, p. 560 ...................................................................................................................................... 31
Even in the prison context, unreasonable regulations of marriage are invalid ............................................................................ 31
Moore v. East Cleveland, p. 561 ......................................................................................................................... 31
Zoning ordinances limiting housing based on the constitution or make up of a family are invalid ......................................... 31
Belle Terre v. Boraas, p. 563 ............................................................................................................................... 32
It is a fundamental right of privacy to determine with whom one has as a household companion .......................................... 32
Troxel v. Granville, p. 563 .................................................................................................................................. 32
It is a violation of substantive due process to allow those who are not parents to petition for visitation rights of someone else‟s child – Fundamental right of parents to make decisions concerning the care, custody, and control of their children . 32
Michael H. v. Gerald D. , p. 565......................................................................................................................... 33
The law presumes that a child born to a married woman living with her husband (who is neither sterile nor impotent) is a child of that marriage .......................................................................................................................................................................... 33
SEXUALITY ................................................................................................................................................................................. 34
Bowers v. Hardwick, p. 568 (Overruled by Lawrence v. Texas, supp. p. 11) ..................................................... 34
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There is no fundamental right for adults to engage in consensual acts of sodomy and states may legislate and prohibit such conduct .................................................................................................................................................................................................. 34
Lawrence v. Texas, supplement p. 11 (Overrules Bowers v. Hardwick, p. 568) ................................................ 35
All persons, including homosexuals, have a right under Due Process, to engage in private, consensual sexual acts without interference by the gov‟t ...................................................................................................................................................................... 35
Lofton v. Secretary of the Department of Children and Family, linked from syllabus online ............................ 36
“Practicing” homosexual couples in the State of Florida are precluded from adopting children .............................................. 36
Powell v. State, p. ** probably not in the case book – this was a note in the supplement ................................... 36
GA Supreme Ct plus 5 other states have struck down anti-sodomy laws citing a fundamental right to private, consensual, adult sexual activity under their state constitutions ........................................................................................................................ 36
Youngberg v. Romeo, p. 574 ............................................................................................................................... 36
Mentally retarded persons, involuntarily committed to a mental hospital, have limited substantive due process rights to ensure safe conditions of confinement and freedom from undue restraint .................................................................................. 36
Kansas v. Hendricks, p. 574................................................................................................................................ 36
State statute permitting involuntary civil commitment on release from prison of persons who had been convicted of sexually violent offenses...................................................................................................................................................................... 36
RIGHT TO DIE ........................................................................................................................................................................... 36
Cruzan v. Director, Missouri Dept. of Health, p. 575........................................................................................ 36
A patient‟s wishes to refuse medical treatment must be shown by clear and convincing evidence.......................................... 36
Washington v. Glucksberg, p. 578 ...................................................................................................................... 37
It is not a fundamental right to commit suicide or to assist someone in committing suicide ..................................................... 37
Vacco v. Quill, p. 588 ......................................................................................................................................... 38
A state may have laws allowing patients to refuse lifesaving medical treatment while still maintaining laws prohibiting assisted suicide ..................................................................................................................................................................................... 38
DEPRIVATION OF LIBERTY AND PROPERTY INTERESTS ......................................................................................... 38
Goldberg v. Kelly, p. 590 .................................................................................................................................... 39
Due process requires that welfare recipients be given the opportunity for an evidentiary hearing before benefits are terminated ............................................................................................................................................................................................. 39
Board of Regents v. Roth, p. 591......................................................................................................................... 39
An occupation is not a property interest and one may be denied employment or position without explanation or right to a hearing ................................................................................................................................................................................................... 39
Perry v. Sinderman, p. 592 ................................................................................................................................. 39
When rules are imposed or a mutual understanding creates a person‟s interest in a benefit, then it is property for Due Process purposes .................................................................................................................................................................................. 39
Arnett v. Kennedy, p. 595 .................................................................................................................................. 39
When a property interest is conditioned on certain criteria, and imposes certain criteria, that do not provide for a hearing, it is not a taking to implement the criteria creating the property interest ..................................................................................... 39
Bishop v. Wood, p. 595 ....................................................................................................................................... 39
State laws creating civil service positions may determine whether or not such an employee may have a hearing before termination............................................................................................................................................................................................ 39
Cleveland Board of Education v. Loudermill, p. 595 [clarifies Arnett v. Kennedy] ........................................... 40
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The Due Process clause provides the certain substantive rights – such as life, liberty, and property – which cannot be deprived without constitutionally adequate procedures; the state law may create the property, but not the process for determining if it can be taken ............................................................................................................................................................. 40
LIBERTY HAS A NARROW SCOPE IN PROCEDURAL DUE PROCESS ...................................................................... 40
Paul v. Davis, p. 596 .......................................................................................................................................... 40
There is no constitutionally protected right to enjoy a good reputation ....................................................................................... 40
Meachum v. Fano, p. 597 ................................................................................................................................... 40
State prisoners do not have constitutional rights in determining the process/procedures for transporting him or her ........ 40
Bell v. Wolfish, p. 597 ......................................................................................................................................... 40
Pretrial detainees have a “liberty” interest in the condition of their confinements ..................................................................... 40
Vitek v. Jones, p. 598 .......................................................................................................................................... 41
Involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the due process clause ................................................................................................................................................................................ 41
Matthews v. Eldridge, p. 599 .............................................................................................................................. 41
Due process requires weighing governmental and individual interests that are affected by a state action, focusing on the risk of erroneously depriving the interest from the procedures applied ...................................................................................... 41
RATIONALITY REQUIREMENT: ECONOMIC AND SOCIAL REGULATIONS; ..................................................... 42
Under- and Over-inclusive Classifications......................................................................................................... 42 F.S. Royster Guarano Co. v. Virginia, p. 606 .................................................................................................... 43
Classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. .......... 43
Lindsey v. Natural Carbolic Gas Co., p. 606 ...................................................................................................... 43
If the Court can think of any state of facts that would sustain a legislative classification, then it will assume that the legislature enacted the law for that reason........................................................................................................................................ 43
RATIONAL REVIEW – BEFORE JUSTICE WARREN ........................................................................................................ 43
Railway Express Agency v. New York, p. 609 ................................................................................................... 43
A statute that regulates economic activity will survive an equal protection challenge if there is a rational relation between the challenged classification and the purpose of the statute. .......................................................................................................... 43
DEFERENTIAL EQUAL PROTECTION- DURING WARREN ......................................................................................... 44
Williamson v. Lee Optical Co., p. 611 ................................................................................................................ 44
Equal protection goes no further than prohibiting invidious discrimination, legislature may reform one group and not bother another ...................................................................................................................................................................................... 44
McGowan v. Maryland, p. 612 .......................................................................................................................... 44
It is not a violation of equal protection for a state to impose laws requiring businesses to close on Sundays ......................... 44
McDonald v. Board of Election Commissioners, p. 612 ..................................................................................... 44
It is not a violation of equal protection to deny absentee ballots to citizens imprisoned and awaiting trial ............................ 44
RATIONALITY REVIEW – DIFFERENT LEVELS OF “BITE” AFTER WARREN (1970’S) .......................................... 44
U.S. Dept of Agriculture v. Moreno, p. 613 ....................................................................................................... 45
Gov‟t cannot deny assistance with food stamps of persons living together who are not related when food stamps are provided to those who live in households composed of relatives ................................................................................................. 45
New Orleans v. Dukes, p. 614 ............................................................................................................................ 45
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A classification that furthers the purpose of the regulation is not invalid even if it applies to people of the same class differently.............................................................................................................................................................................................. 45
Massachusetts Bd. of Retirement v. Murgia, p. 614 .......................................................................................... 45
A state statute designating a maximum age for uniformed state police officers is not invalid .................................................. 45
New York Transit Auth. v. Beazer, p. 615 ......................................................................................................... 45
A regulation prohibiting a class of persons with history of drug addiction from public employment is not invalid equal protection .............................................................................................................................................................................................. 45
U.S. Railroad Retirement Br. v. Fritz, p. 616 ..................................................................................................... 45
Ct will treat with deference state laws classifying those subject to rational basis ........................................................................ 45
Schweiker v. Wilson, p. 620 ................................................................................................................................ 46
Split decision from the court regarding denial of Medicaid benefits to persons in facilities which did not receive Medicaid funding .................................................................................................................................................................................................. 46
Logan v. Zimmerman Brush Co., p. 622 ............................................................................................................ 46
Arbitrary cut-off dates in a statute that create two classes of individuals is invalid under equal protection ........................... 46
Allegheny Pittsburgh Coal v. Webster County, p. 623 ...................................................................................... 46
Valuation of property based on factors creating a disparaging difference in tax assessments is invalid equal protection .... 46
Nordlinger v. Hahn, p. 623 ................................................................................................................................ 46
Recently purchased property may be taxed on the acquisition value is valid when it was an intended result of the statute 46
FCC v. Beach Communications, p. 624 .............................................................................................................. 46
Social and economic policies will be upheld against rational scrutiny as long as it does not classify along suspect lines, and does not infringe a fundamental right – but it has to have a reasonably conceivable set of facts that could provide a rational basis for the classification .................................................................................................................................................................... 46
Village of Willowbrook v. Olech, p. 625 ............................................................................................................. 47
A class of one person may bring an equal protection claim ........................................................................................................... 47
RACE CLASSIFICATIONS ...................................................................................................................................................... 47
Strauder v. West Virginia, p. 629 ...................................................................................................................... 47
14th amendment prohibits all discrimination due to race or national origin ................................................................................ 47
Korematsu v. United States, p. 631 .................................................................................................................... 47
Legal restrictions curtailing the rights of a single group are immediately suspect and subject to strict scrutiny .................... 47
Loving v. Virginia, p. 633 .................................................................................................................................. 47
Laws proscribing penalties for interracial marriages are unconstitutional ................................................................................... 47
McLaughlin v. Florida, p. 635 ............................................................................................................................ 47
Laws making it illegal for interracial married couples are unconstitutional ................................................................................ 47
Palmore v. Sidoti, p. 635 ..................................................................................................................................... 47
Goal of the 14th Amendment was to do away with governmentally imposed racial discrimination, thus states may not give effect to private biases ......................................................................................................................................................................... 47
Plessy v. Ferguson, p. 637 [separate but equal is equal] – overturned by Brown v. Board of Ed-I .................... 48
Black and white segregation violates equal protection unless it is to provide separate but equal accommodation on a train ................................................................................................................................................................................................................ 48
Gaines v. Canada, p. 639– overturned by Brown v. Board of Ed-I..................................................................... 48
Black student must be admitted to law school if the school does not provide adequate equal facilities .................................. 48
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Brown v. Board of Education [Brown 1 – the Constitutional Ruling] – overturns Plessy v. Ferguson, p. 639 48
Derogatory implications of separate but equal facilities in public education deem that such facilities are inherently UNequal ................................................................................................................................................................................................ 48
Bolling v. Sharpe, p. 643 ..................................................................................................................................... 48
Education segregation laws are invalid, even in Washington DC, under the 5th Amendment even though DC was not bound by the 14th amendment (as it is not a state) ........................................................................................................................... 48
Johnson v. Virginia, p. 644 ................................................................................................................................. 48
Any racial segregation cannot be required in any public facilities ................................................................................................ 48
Brown v. Board of Education [Brown II – the Implementation Decision], p. 645 .............................................. 49
Variations in local implementation of laws cannot slow the adoption of the law just because it is an unpopular law to implement ............................................................................................................................................................................................. 49
GENDER ...................................................................................................................................................................................... 49
Bradwell v. State, p. 648 ..................................................................................................................................... 49
14th Amendment guarantees did not apply to women attending law school in 1873 .................................................................. 49
Minor v. Hapersett, p. 648 ................................................................................................................................. 49
14th Amendment Privileges and Immunities did not apply to women being able to vote in 1873 ............................................ 49
Goesaert v. Cleary, p. 649 ................................................................................................................................... 49
Court showed deference in law banning women from being barmaids unless their father/husband owned bar .................. 49
Reed v. Reed, p. 650 ............................................................................................................................................ 50
State statutes creating a preference for men will be held invalid and viewed under heightened scrutiny .............................. 50
Frontinero v. Richardson, p. 650 ........................................................................................................................ 50
Law denying benefits to a service woman‟s spouse is invalid ....................................................................................................... 50
Craig v. Boren, p. 652 ......................................................................................................................................... 50
A law stratifying genders will be met with intermediate scrutiny ................................................................................................ 50
Mississippi University for Women v. Hogan, p. 656 ......................................................................................... 50
A university cannot discriminate against men and deny them admission, even into an all-female university ....................... 50
J.E.B. v. Alabama, p. 658 .................................................................................................................................... 51
Gender-based peremptory challenges of jurors is unconstitutional .............................................................................................. 51
United States v. Virginia, p. 659 ........................................................................................................................ 51
All-male Military Colleges must admit all qualified females ......................................................................................................... 51
Gedulig v. Aiello, p. 671 ..................................................................................................................................... 51
Normal Pregnancy is not a sex-classification or disability .............................................................................................................. 51
Michael M. v. Superior Court, p. 672 ................................................................................................................ 52
Laws punishing men but not women for statutory rape are not sex-discriminatory .................................................................. 52
WHEN IS SEX AN APPROPRIATE PROXY FOR CLASSIFICATION? .......................................................................... 52
Rostker v. Goldberg, p. 674 ................................................................................................................................. 52
It is not a violation of 5th amendment due process to require men to register for selective service ........................................... 52
Caban v. Mohammed, p. 677 .............................................................................................................................. 52
A state cannot make a law denying a father the right to block an illegitimate child‟s adoption................................................ 52
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Parham v. Hughes, p. 677 .................................................................................................................................. 52
A state may bar a father from suing for non marital child‟s wrongful death while allowing the mother to sue for same wrongful death ..................................................................................................................................................................................... 52
Nguyen v. I.N.S., p. 678 ..................................................................................................................................... 53
A law treating children born of mother citizens as opposed to father citizens is valid ............................................................... 53
PREFERENTIAL TREATMENT OF WOMEN ...................................................................................................................... 53
Kahn v. Shevin, p. 681 ........................................................................................................................................ 53
State tax exemption for widows but not widowers was not invalid in 1974 ................................................................................ 53
Orr v. Orr, p. 682 ............................................................................................................................................... 53
Laws imposing alimony payable by husbands but not wives are invalid .................................................................................... 53
Weinberger v. Weisenfeld, p. 682 ....................................................................................................................... 53
Law held invalid when it would not pay social security benefits to a widower and his children but would make same payments for widows and their children .......................................................................................................................................... 53
Califano v. Goldfarb, p. 683 ................................................................................................................................ 54
Gender-based distinctions within Federal Programs are invalid ................................................................................................... 54
Califano v. Webster, p. 683 ................................................................................................................................. 54
Laws providing compensation to women to correct past discrimination are valid ..................................................................... 54
Wengler v. Druggists Mutual Ins. Co., p. 684................................................................................................... 54
Discrimination between men and women before providing benefits does not further the state‟s interest in providing for needy spouses ....................................................................................................................................................................................... 54
Schlesinger v. Ballard, p. 684 ............................................................................................................................. 54
Military laws receive deferential scrutiny ......................................................................................................................................... 54
ALIENAGE .................................................................................................................................................................................. 54
Graham v. Richardson, p. 685 ............................................................................................................................ 54
No denial of welfare benefits to aliens based on alienage (aliens are discrete/insular minority) ............................................. 54
In re Griffiths, p. 686 .......................................................................................................................................... 54
Resident aliens may not be barred from practicing law .................................................................................................................. 54
Sugarman v. Dougall, p. 686 .............................................................................................................................. 54
States may not restrict competitive classified civil service jobs to only citizens ........................................................................... 54
Foley v. Connelie, p. 687 ..................................................................................................................................... 55
State may exclude aliens from some types of positions (here = state troopers; also elem school tchrs, probtn ofcr) .............. 55
Ambach v. Norwich, p. 687 ................................................................................................................................ 55
State may require Elementary and Secondary School Teachers to be citizens because they exercise great influence over students ................................................................................................................................................................................................. 55
Bernal v. Fainter, p. 687 ..................................................................................................................................... 55
State cannot bar aliens from duties that are essentially ministerial, such as notary public functions ....................................... 55
Toll v. Moreno, p. 688 ........................................................................................................................................ 55
States cannot charge aliens more tuition than citizens who are in-state residents....................................................................... 55
Hampton v. Mow Sun Wong, p. 688 ................................................................................................................. 56
Civil Service Commission (CSC) cannot impose a citizenship requirement for employment .................................................... 56
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Mathews v. Diaz, p. 689 ..................................................................................................................................... 56
States may not discriminate against aliens while the Federal gov‟t can ........................................................................................ 56
NON-MARITAL CHILDREN .................................................................................................................................................. 56
Levy v. Louisiana, p. 690 .................................................................................................................................... 56
Non-marital children may recover for the wrongful death of their mother ................................................................................. 56
Trimble v. Gordon, p. 691 ................................................................................................................................... 56
Non-marital children may be considered in the line of intestate succession of their fathers in IL ............................................ 56
Clark v. Jeter, p. 692 ........................................................................................................................................... 56
Court will apply intermediate scrutiny to classifications based on illegitimacy .......................................................................... 56
DISABILITIES............................................................................................................................................................................. 56
Cleburne v. Cleburne Living Center, Inc., p. 693 ............................................................................................... 56
Classifications based on mental retardation shall receive rational review ................................................................................... 56
PURPOSEFUL DISCRIMINATION AND PURPOSE-IMPACT DISTINCTION .......................................................... 57
Yick Wo v. Hopkins, p. 713 ................................................................................................................................ 57
Facially neutral laws may be administered in a discriminatory fashion ....................................................................................... 57
Gomillion v. Lightfoot, p. 715 ............................................................................................................................. 57
Laws redefining a city‟s boundaries to exclude groups because of race are invalid ................................................................... 57
Griffin v. County School Board of Prince Edward County, p. 715 .................................................................... 58
A law providing public funds to propagate racial segregation is invalid ..................................................................................... 58
Palmer v. Thompson, p. 715 ............................................................................................................................... 58
Laws passed with a discriminatory motivation are not necessarily unconstitutional ................................................................. 58
Washington v. Davis, p. 717 .............................................................................................................................. 58
Equal protection is not violated when laws have disparate racial impact and no purposeful discrimination ......................... 58
Arlington Heights v. Metropolitan Housing Corp., p. 721 ................................................................................ 59
Disparate impact alone does not trigger strict scrutiny................................................................................................................... 59
Personnel Administrator of Mass v. Feeney, p. 723 ........................................................................................... 59
A law will not be held invalid when there is no evidence of gender-based discriminatory purpose behind the law ............ 59
Rogers v. Lodge, p. 726 ....................................................................................................................................... 60
In order to prove the invalid purpose of a law that was implemented and maintained to dilute the voting strength of black voters, circumstantial evidence may be sufficient............................................................................................................................ 60
Hunter v. Underwood, p. 732 ............................................................................................................................. 60
State laws that are racially motivated and which have racially discriminatory impact are invalid .......................................... 60
SCHOOL DESEGREGATION AND THE DE JURE – DE FACTO DISTINCTION ...................................................... 60
Green v. County School Board, p. 734 ................................................................................................................ 60
There is no “freedom-of-choice” when it comes to attending any school in the district within which one resides ................ 60
Swann v. Charlotte-Mecklenburg Board of Education , p. 735 .......................................................................... 61
Just because after desegregation more than 50% of white kids had to go to a school which used to be all black (and vice versa) does not make the result of a law invalid .............................................................................................................................. 61
Keyes v. School District, p. 736 .......................................................................................................................... 61
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District-wide desegregation is REQUIRED when there was purposeful segregation in only part of the district before ........ 61
Dual Educational Systems: Brown v. Board of Education, Columbus Board of Education v. Penick, Dayton Board of Education v. Brinkman, p. 738............................................................................................................. 61
Dual education systems in 1954 resulted in an inference of purposeful segregation .................................................................. 61
Milliken v. Bradley, p. 741 ................................................................................................................................. 61
Inter-district remedies for segregation are inappropriate when there has been no inter-district violation .............................. 61
Missouri v. Jenkins, p. 743 ................................................................................................................................. 61
Federal courts cannot order states to impose property taxes to pay for the costs of a school district‟s desegregation ........... 61
Board of Educ. Of Oklahoma City v. Dowell, Freeman v. Pitts, p. 745 ............................................................. 61
Once racial discrimination through official action is eliminated, neither the school districts nor the courts are mandated to make adjustments in the racial makeup of a school......................................................................................................................... 61
United States v. Fordice, p. 746 .......................................................................................................................... 61
State Universities have same duties to desegregate as primary and secondary schools ............................................................. 61
RESTRUCTURING THE POLITICAL PROCESS THAT DISADVANTAGE MINORITIES ...................................... 62
Hunter v. Erickson, p. 747 ................................................................................................................................. 62
Laws which classify anyone based on race of those who would benefit from the laws banning discrimination are invalid 62
Washington v. Seattle School District, p. 747 .................................................................................................... 62
Children may attend public schools that are located close to their homes ................................................................................... 62
Crawford v. Los Angeles Board of Education, p. 749 ......................................................................................... 62
It is not unconstitutional for a state to include in its constitution that state courts cannot require busing unless a federal ct would do so as a remedy for an equal protection violation ............................................................................................................ 62
BENIGN USE OF RACIAL CRITERIA AND THE PROGRESSION OF STRICT SCRUTINY ................................... 62
Regents of Univ. of California v. Bakke, p. 752 .................................................................................................. 62
No educational institutions receiving public funds may use race as its sole criteria for admission. A RACIAL QUOTA IS ILLEGAL UNDER TITLE 6 OF THE CIVIL RIGHTS ACT. ............................................................................................................ 62
Hopwood v. Texas, p. 765 ................................................................................................................................... 63
Bakke is not binding precedent because it was not a majority ruling. .......................................................................................... 63
RACE PREFERENCES IN PUBLIC EMPLOYMENT AND CONTRACTING SINCE THE 1980S .............................. 63
Wygant v. Jackson Board of Education, p. 766 ................................................................................................... 63
A program with a goal of providing minority role models cannot use such goals to discriminate in its decisions to lay off particular teachers. ............................................................................................................................................................................... 63
Fullilove v. Klutznick, p. 768.............................................................................................................................. 63
Congress may implement a program setting aside work for minority businesses if that program is instituted to correct historically unequal treatment in traditional government funding. .............................................................................................. 63
Richmond v. J.A. Croson Co., p. 770 .................................................................................................................. 64
Any race-based classifications must show that they are narrowly tailored and are necessary to achieve some compelling governmental purpose......................................................................................................................................................................... 64
Metro Broadcasting, Inc. v. FCC, p. 784 ............................................................................................................ 64
Benign race classifications are allowed when they serve important governmental objectives and are substantially linked to achieving those objectives (intmd scrutiny) ...................................................................................................................................... 64
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Adarand Constructors, Inc. v. Pena, p. 786 ....................................................................................................... 64
All race-based classifications, whether imposed by federal, state, or local governmental actors, MUST be analyzed under strict scrutiny. ....................................................................................................................................................................................... 64
SUPPLEMENT CASES HERE – PP. 21-35............................................................................................................................... 65
Grutter v. Bollinger, p. supp 21.......................................................................................................................... 65
Law schools may use individualized consideration of applicants which includes race as a factor, so long as it is not the only factor ............................................................................................................................................................................................. 65
Gratz v. Bollinger, p. supp 31 ............................................................................................................................. 65
Only an individualized consideration for undergrad admission, taking race into account is the only way to survive constitutional attack ............................................................................................................................................................................. 65
“FUNDAMENTAL INTERESTS” STRAND OF EQUAL PROTECTION STRICT SCRUTINY ................................. 65 DENIAL OF VOTING RIGHTS .............................................................................................................................................. 65
Harper v. Virginia, p. 795 .................................................................................................................................. 65
Right to vote is fundamental and must be allowed to be exercised free and unencumbered because it preserves other basic political rights ....................................................................................................................................................................................... 65
Kramer v. Union Free School District No. 15, p. 798 ........................................................................................ 66
Restrictions on voting should be viewed with strict scrutiny to ensure they are necessary to promote a compelling state interest ................................................................................................................................................................................................... 66
Other Types of Restrictions on Voting, p. 799 ................................................................................................... 66
VOTE DILUTION: REAPPORTIONMENT CASES, GERRYMANDERING, AND RACE-CONSCIOUS DISTRICTING ............................................................................................................................................................................ 67
Reynolds v. Sims, p. 804 ..................................................................................................................................... 67
One-person-one vote – if a districting scheme violates that tenet, it is unconstitutional ............................................................ 67
Davis v. Bandemer, p. 813 (1986) ...................................................................................................................... 69
A mere lack of proportional representation will not be deemed unconstitutional ...................................................................... 69
RACE-CONSCIOUS DISTRICTING ...................................................................................................................................... 69
Shaw v. Reno [Shaw I], p. 818 ............................................................................................................................ 69
Race-based districting plans created to benefit historically disadvantaged racial minority groups are still subject to strict scrutiny .................................................................................................................................................................................................. 69
Miller v. Johnson , p. 824 ................................................................................................................................... 69
A state cannot define a district to ensure a specific race makeup .................................................................................................. 69
Shaw v. Hunt [Shaw II], p. 826 .......................................................................................................................... 69
Any districting plan significantly based on race is subject to strict scrutiny ................................................................................ 69
Bush v. Vera, p. 826 ........................................................................................................................................... 70
Strict scrutiny does not apply to redistricting merely because it is performed with consciousness of race ............................. 70
Hunt v. Cromartie, p. 829 .................................................................................................................................. 70
Plaintiff must show that race was the PREDOMINANT FACTOR motivating a legislature‟s districting decisions .............. 70
ACCESS TO THE BALLOT: RESTRICTIONS ON CANDIDATES AND PARTIES .................................................... 70
Williams v. Rhodes, p. 831 ................................................................................................................................. 70
Undue burdens placed on those seeking a place on a ballot are subject to strict scrutiny .......................................................... 70
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Jenness v. Fortson, p. 832 ................................................................................................................................... 70
State can put conditions upon candidates who wish to appear on ballots ................................................................................... 70
Bullock v. Carter, and Lubin v. Panish, p. 832 ................................................................................................... 71
A state cannot require filing fees to appear on a ballot ................................................................................................................... 71
Clements v. Fashing, p. 833................................................................................................................................ 71
Ct will treat with deference state laws requiring state officials to resign from current office before seeking new office ....... 71
Anderson v. Celebrezze, p. 833 ........................................................................................................................... 71
There cannot be differing requirements for independent candidates than for mainstream candidates ................................... 71
Burdick v. Takushi, p. 834 .................................................................................................................................. 71
Ct will review with deference a state ballot regulation prohibiting write-in voting ................................................................... 71
Timmons v. Twin Cities Area New Party, p. 835 .............................................................................................. 71
Ct will review with deference a state ballot regulation prohibiting “fusion” of a candidate – running as a candidate of multiple parties .................................................................................................................................................................................... 71
California Democratic Party v. Jones, p. 837 ..................................................................................................... 71
Political parties may limit the voting to those persons within their party under their First Amendment right of Free Association ............................................................................................................................................................................................ 71
ACCESS TO COURTS ............................................................................................................................................................... 72
Griffin v. Illinois, p. 838 ..................................................................................................................................... 72
If right to appeal is granted by state, it cannot enact fines which make it impossible for an indigent appellant to receive a transcript of his trial ............................................................................................................................................................................. 72
Douglas v. California, p. 840 .............................................................................................................................. 72
Griffin holding extended to apply to ct appointment of indigent defendants for first appeal ................................................... 72
Ross v. Moffitt, p. 841 ........................................................................................................................................ 72
Griffin and Douglas [supra] do not extend to discretionary appeals ............................................................................................ 72
ECONOMIC BARRIERS AND CIVIL LITIGATION .......................................................................................................... 72
Boddie v. Connecticut, p. 842 ............................................................................................................................. 72
State can‟t require fee for divorce by indigent couple b/c state has monopoly to grant dissolution ........................................ 72
United States v. Kras, p. 843 .............................................................................................................................. 72
No fundamental right to file for bankruptcy, so the fee is not waived for indigent debtors filing for bankruptcy protection ................................................................................................................................................................................................................ 72
Little v. Streater, p. 843 ...................................................................................................................................... 72
Indigent in paternity may receive $ for paternity blood test ....................................................................................................... 72
M.L.B. v. S.L.V., p. 844 ...................................................................................................................................... 72
Indigent mother entitled to receipt of her trial transcript for appeal even if she can‟t pay for them......................................... 72
Shapiro v. Thompson, p. 848 .............................................................................................................................. 73
[Dicta] Special scrutiny may be applied to restrictions on classifications affecting “necessities” .............................................. 73
Dandridge v. Williams, p. 849 ............................................................................................................................ 73
State may limit access to state benefits via rational basis standard; such as limiting amt avail to welfare families ................ 73
Lindsey v. Normet, p. 850 .................................................................................................................................. 73
No fundamental right to decent shelter; states may authorize via law procedure to evict non-paying renters ...................... 73
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San Antonio Independent School Dist. v. Rodriguez, p. 851 ............................................................................. 73
Just because a system of financing a school dist results in some disparity of spending on students, it is not irrational ........ 73
Plyer v. Doe, p. 859 ............................................................................................................................................ 73
Laws regarding access to education receive rational relationship standard................................................................................. 73
LAWS OF THE RECONSTRUCTION ERA ........................................................................................................................... 75
1866 Act.............................................................................................................................................................. 75
Enacted under the 13th Amendment to respond to the “black codes” ........................................................................................... 75
1870 Act.............................................................................................................................................................. 75
Passed to enforce the 15th Amendment providing black men the right to vote............................................................................ 75
1871 and 1875 Acts ............................................................................................................................................ 75
Established civil and criminal penalties for violation of civil rights .............................................................................................. 75
MODERN COUNTERPARTS .................................................................................................................................................. 75
Criminal Provisions ............................................................................................................................................ 75
Criminal punishment for deprivation of civil rights through private conspiracy or under color of state law ......................... 75
Civil Provisions .................................................................................................................................................. 75
Equal rights to all citizens and provide civil penalties for deprivation of civil rights through private conspiracy or under color of law............................................................................................................................................................................................ 75
Civil Rights Act of 1964 ..................................................................................................................................... 75
Adopted in 1965, it was the first comprehensive modern civil rights law .................................................................................... 75
PROBLEMS OF STATE ACTION ........................................................................................................................................... 75
19th Century Enforcement .................................................................................................................................. 75
Narrowly construed the civil rights amendments ........................................................................................................................... 75
20th Century Enforcement .................................................................................................................................. 76
Still requires state action under 14th Amendment but court is more generous in allowing Congress to reach private behavior ................................................................................................................................................................................................. 76
Marsh v. Alabama, p. 872 ................................................................................................................................... 76
A private, company owned town acting as the local government may not limit a person‟s religious speech ......................... 76
Hudgens v. NLRB, p. 873 .................................................................................................................................. 77
Shopping Centers do not act sufficiently like government entities for their owners to be considered State actors ................ 77
Evans v. Newton, p. 874 ..................................................................................................................................... 77
Private areas traditionally having a purpose of which to serve the community, may be considered public ........................... 77
THE WHITE PRIMARY CASES .............................................................................................................................................. 77
Nixon v. Herndon, p. 875 ................................................................................................................................... 77
14th Amendment is violated when states enact laws which, on their face, exclude blacks from primary elections ................ 77
Nixon v. Condon, p. 875 ..................................................................................................................................... 77
State cannot circumvent its obligations to abide by the 15th amendment by delegating its power to a private entity ............ 77
Grovey v. Townsend, p. 875 [Overruled by Smith v. Allwright]....................................................................... 78
Exclusion of blacks even by a private group is unconstitutional ................................................................................................... 78
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Smith v. Allwright, p. 875 [Overrules Grovey v. Townsend] ............................................................................ 78
State‟s delegation to a private entity of the power to fix the qualifications of primary elections subjects those functions to constitutional constraints of the 15th amendment ............................................................................................................................ 78
Terry v. Adams, p. 876 ....................................................................................................................................... 78
Any form of a vote, even private “pre-primaries” where candidates run unopposed, are subject to 15th amendment requirements ......................................................................................................................................................................................... 78
PUBLIC FUNCTION DOCTRINE NARROWS .................................................................................................................... 78
Jackson v. Metropolitan Edison Co., p. 876 ........................................................................................................ 78
Utilities, while heavily regulated, are not providers of public functions because historically utilities have not always been exclusive to the gov‟t ........................................................................................................................................................................... 78
UCC – Uniform Commercial Code (adopted in all states) .................................................................................. 78 Flagg Bros., Inc. v. Brooks, p. 877 ...................................................................................................................... 78
Private sales pursuant to UCC are not state action even though the sale is pursuant to statute ............................................... 78
NEXUS STRAND OF STATE ACTION ................................................................................................................................. 79
Shelley v. Kraemer, p. 879 .................................................................................................................................. 79
Private racially restrictive covenants do not violate equal protection when voluntarily complied with – but as soon as the Court is used to enforce that covenant, the state has acted to deny rights under the 14 th Amendment ................................... 79
Barrows v. Jackson, p. 882 .................................................................................................................................. 79
Can‟t give damages to private seller of property if he violates a covenant when he does it ...................................................... 79
Evans v. Abney, p. 883 ....................................................................................................................................... 79
An action which has an effect that applies to all persons equally is not violative of the constitution ....................................... 79
Pennsylvania v. Board of Directors of Trusts, p. 883 ......................................................................................... 79
Government agents in receipt of property as beneficiaries must comply with the constitution as state actors ....................... 79
Bell v. Maryland, p. 884 ..................................................................................................................................... 80
A state may assist in discriminatorily removing someone from private property so long as public activities do not take place on that property.......................................................................................................................................................................... 80
Burton v. Wilmington Parking Authority, p. 885 ............................................................................................. 80
State action will be found when the gov‟t is involved in private conduct that abridges constitutionally protected rights .... 80
Derrington v. Plummer, p. 888 .......................................................................................................................... 80
State lessees who discriminate against blacks violate equal protection as state actors ............................................................... 80
Gilmore v. Montgomery, p. 888 ......................................................................................................................... 80
Gov‟t can‟t grant exclusively something to segregated private schools ........................................................................................ 80
LICENSES STATE ACTION ................................................................................................................................................. 80
Moose Lodge No. 107 v. Irvis, p. 889 ................................................................................................................. 80
State regulation by issuance of a license to serve liquor is not state action................................................................................... 80
CBS, Inc. v. Democratic Nat. Comm., p. 891 ..................................................................................................... 80
[dicta] The actions of a television station are not state action by way of issuance of FCC license to broadcast ....................... 80
STATE ACTION THROUGH STATE “ENCOURAGEMENT” AND “AUTHORIZATION” ..................................... 81
Reitman v. Mulkey, p. 891 ................................................................................................................................. 81
Enactment of a law authorizing racial discrimination in the housing market violates the 14th amendment ............................ 81
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STATE ACTION SINCE THE 1980’S ...................................................................................................................................... 81
Blum v. Yaretsky, p. 898 .................................................................................................................................... 81
Nursing Homes State Actors ........................................................................................................................................................... 81
Rendell-Baker v. Kohn, p. 899 ............................................................................................................................ 81
Private Schools State Actors............................................................................................................................................................. 81
Lugar v. Edmondson Oil Co., p. 899 .................................................................................................................. 82
Attachment of property in a civil dispute = state action ................................................................................................................. 82
NCAA v. Tarkanian, p. 900 ............................................................................................................................... 82
Policies of a private organization are not state action ..................................................................................................................... 82
San Fran. Arts & Athletics v. U.S.O.C., p. 901 ................................................................................................. 82
US Olympic Committee State actor ................................................................................................................................................ 82
Edmondson v. Leesville Concrete Co., p. 901 ..................................................................................................... 82
Use by a private litigant to exclude jurors on basis of race = state actor ....................................................................................... 82
DeShaney v. Winnebago Cty. Soc. Servs. Dept., p. 902 ..................................................................................... 82
There is no affirmative duty of the gov‟t to insure that 14th amendment interests are not harmed by other actors ................ 82
Brentwood Academy v. Tennessee Secondary School Athletic Ass‟n, p. 904 ..................................................... 82
Statewide interscholastic athletics association will be considered a state actor when it maintains a “considerable” (84%) public entwinement in its management and control ....................................................................................................................... 82
SOURCES OF CONSTITUTIONAL RIGHTS ...................................................................................................................... 83 PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CRIMINAL SANCTIONS ................................................. 83
United States v. Guest, p. 906 ............................................................................................................................ 83
§5 of the 14th Amendment provides Congress with the right to enact legislature preventing individuals and their conspirators from violating other individuals‟ civil rights ............................................................................................................. 83
PROBLEMS WITH APPLYING CRIMINAL SANCTIONS TO STATE-INVOLVED DEFENDANTS INTERFERING WITH 14TH AMENDMENT RIGHTS ........................................................................................................ 84
State v. Price, p. 910 ........................................................................................................................................... 84
18 USC §242‟s language of “under color of state law” is the same as state action under the 14 th amendment ........................ 84
The Williams Cases, p. 911 ................................................................................................................................. 84
Court-developed state action under §1 of the 14th Amendment will reach private individuals ................................................ 84
Screws v. United States, 1945, p. 912 ................................................................................................................ 84
18 USC §242 is not vague in providing notice of what is prohibited [willful actions under color of law that deprive a person of his 14th Amendment rights, such as the right not to be deprived of life without due process of law] .................................. 84
§245 OF THE CIVIL RIGHTS ACT OF 1968 .......................................................................................................................... 85 PRIVATE INTERFERENCES WITH FEDERAL RIGHTS: CIVIL SANCTIONS ........................................................... 85
Griffin v. Breckenridge, p. 916............................................................................................................................ 85
42 USC §1985 is applicable to certain private conspiracies ............................................................................................................. 85
United Brotherhood of Carpenters v. Scott, p. 917 ............................................................................................. 85
42 USC §1985(3) Does not Reach Conspiracies Motivated by Economic or Commercial Animus ............................................. 85
Bray v. Alexandria Women‟s Health Clinic, 1993, p. 918 ................................................................................. 85
Animus toward abortion is not class-based toward women .......................................................................................................... 85
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National Organization for Women, Inc. v. Schneider (1994), p. 919 ................................................................ 86
RICO federally provides civil remedies for those activities that did not fall under Bray v. Alexandria Women‟s Health Clinic ...................................................................................................................................................................................................... 86
Monroe v. Pape, p. 919 ....................................................................................................................................... 86
Local Governments are immune from 42 USC §1983; §1983 also does not include the specific intent provision as does its counterpart 18 USC §242 (the criminal version) ............................................................................................................................... 86
CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT UNDER THE 13TH AMENDMENT ..................... 86
Jones v. Alfred H. Mayer, Co., 1968, p. 920 ....................................................................................................... 86
The 13th Amendment provides Congress with the power to enact law that defines and eradicates the “badges and incidents” of slavery for both private and state action .................................................................................................................... 86
13TH AMENDMENT POWERS AND THE 1866 ACT .......................................................................................................... 87
Sullivan v. Little Hunting Park, p. 923.............................................................................................................. 87
§1982 May also apply to a private organization that denies a person rights to contract to sell or purchase property based on race ......................................................................................................................................................................................................... 87
Runyon v. McCrary, p. 924................................................................................................................................ 87
§1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are negroes ..................................................................................................................................................................... 87
CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER §5 OF THE 14TH AMENDMENT ................ 87
South Carolina v. Katzenbach, p. 925................................................................................................................. 88
Congress may enact legislation conflicting with existing state legislation in order to correct Equal Protection problems .... 88
Lassiter v. Northampton County Election Bd., p. 927 ....................................................................................... 88
State may have some factors available to it to describe minimum requirements for voting, but if the application of determining whether someone meets those requirements is discriminatory, then it may be invalid ....................................... 88
South Carolina v. Katzenbach, p. 927................................................................................................................. 88
Voting Rights Act of 1965 constitutional b/c Congress broadly allowed to legislate EP legislation ......................................... 88
Oregon v. Mitchell, p. 929 .................................................................................................................................. 88
The 1975 Amendment to the Voting Rights Act outlawed all literacy tests nationwide; such an amendment was allowable under the Constitution ........................................................................................................................................................................ 88
SCOPE OF CONGRESSIONAL POWER TO ENFORCE VOTING RIGHTS: “REMEDIAL” OR “SUBSTANTIVE” ..................................................................................................................................... 89
Katzenbach v. Morgan, p. 930 ............................................................................................................................ 89
§5 of 14th Amd. allows Congress to override state law if it finds reasonable basis to perceive that the law violates EP ........ 89
Oregon v. Mitchell, p. 937 .................................................................................................................................. 89
States may provide for their own state age limits for their own elections .................................................................................... 89
Rome v. United States, p. 939 ............................................................................................................................ 89
§2 of Amd 15 allows Congress to outlaw voting practices which are discriminatory in effect .................................................. 89
City of Boerne v. Flores, p. 940 ........................................................................................................................... 89
Religious Freedom Restoration Act of 1993 ...................................................................................................................................... 89
CONGRESS CANNOT ABROGATE STATE SOVEREIGN IMMUNITY ...................................................................... 90
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, p. 947 .............................. 90
Congress may not be proactive in enactment of law without evidence that such activities are actually happening .............. 90
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US v. Morrison, p. 949 ....................................................................................................................................... 90
Violence Against Women Act NOT allowed to provide suit against state ................................................................................... 90
Kimmel v. Florida Board of Regents, p. 952 ....................................................................................................... 90
Congress may not enact a law which violates sovereign immunity of states [11th Amd] by allowing ppl to sue state b/c of Fed Law ................................................................................................................................................................................................. 90
Board of Trustees of Univ. of Alabama v. Garrett, p. 953 .................................................................................. 90
Congress cannot abrogate sovereign immunity of State [11th Amd] by allowing state-employees to sue under ADA as Congressional power to enact under Amd XIV ............................................................................................................................... 90
Nevada Dept of Human Resources ..................................................................................................................... 91
Congress can only abrogate a State‟s 11th Amd sovereign immunity via §5 of 14th Amd by enforcing Fed law against states for actions violative of 13-15 Amd ..................................................................................................................................................... 91
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