Constitutional Law II OutlineMT by rblovett

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									Constitutional Law II Outline Professor McLaughlin Spring Semester 2005 First Amendment – - Congress shall make no law abridging the freedom of speech or press. - Fundamental right. - Incorporated into state law via 14 th Amendment. Unprotected Speech (Categories): - Illegal activity - Reputation and Privacy - Obscenity - Fighting words Protected Speech + Content Based = Strict Scrutiny Standard Unprotected Speech + Content Based = Non-Strict Scrutiny Standard Content Neutral Speech: - Unrelated to content of the speech. - Important government interest (unrelated to content) and does not burden more speech than needed. Additional Analysis/Arguments Related to Protected Speech: - Vagueness - Overbreadth - Prior Restraints - Places available (time, place, etc). Clear and Present Danger Test Schenk - Upheld Ds' conviction for distributing anti-draft material, under the 1917 Espionage Act citing that in times of war, some speech that may be allowed in times of peace may be outlawed. - Protected v. Unprotected Speech o Protected – Fundamental right. Uses strict scrutiny test (State must show a compelling state interest. o Unprotected – Can be limited. - Clear and Present Danger Test – o Whether words are used in such circumstances as to create a clear and present danger that will bring about the substantive evils that the legislature has the right to prevent. o Question of proximity between the words and the harm. - Evil Speech o Imminent

Public Speech Debs - Upheld D's conviction under the Espionage Act for obstructing the recruiting service and attempting to cause disloyalty in the armed services. D spoke at a political rally and said some anti-war/draft things, encouraging insubordination in the armed services; though it wasn't successful. - Two-Part Test: o Clear and Present Danger Test o Intent (found in the jury instructions). Incitement Masses Publishing - Postmaster informed D that he would no longer be able to receive an anti-draft/war publication under the Espionage Act. Court held that the publication was permissible because it did not encourage resistance of the draft. Holding that if the legislature can reach this, it can reach every part of political speech. - Case prior to Deb and Schenk. - Distinguishes between ideas, critique, beliefs, (legal) AND urging individuals to violate the law (illegal). Abrams - The court upheld D's conviction under the Espionage Act, for distributing an anti-war leaflet. - Holmes Dissent - government can't change people's minds and this is only about expressing one's opinion. The act must carry some subjective intent to carry out the illegal act as well; the balance must come from danger/emergency (of speech/action or speaker), so when fools speak it should get more protection, but when someone speaks and poses a real threat of action, government can stop them. Legislative Facts Gitlow - Court upheld D's conviction under the NY "criminal anarchy" statutes because statutes designed to prevent against the overthrow of the government should be given the presumption of validity, deference to the legislatures interest of protecting public safety and welfare. Statutes may be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the state. - Issue – Should Congress be allowed to outlaw specific language without the element of immanency to prevent the result? Yes – Example here is banning language to overthrow the government. o Does not use the Schenk test. o Gives deference to legislature. Legislature cannot deny freedom of speech if it is unreasonable to do so. You have freedom of speech unless there is a conceivable basis to deny it.

Rational for Free Speech Whitney - D, Whitney, was a member of the Communist Labor Party, which eventually endorsed more radical actions, over D's protests. Despite D's pleas that her mere presence at a rally was insufficient, the court upheld her conviction. The Criminal Syndicalism Act declared that becoming a knowing member of an organization that endorsed crimes against the public peace was punishable. - Case takes Gitlow standard further. - Adds the requirement of imminence to the Schenk test. - When legislature decides that a certain speech is dangerous and there is a question of fact, it will then be deferred to the jury. - Sets the standard for modern law under the question of the government’s right to protect itself and people being allowed to share their ideas. Dennis - Court upheld D's conviction under the Smith Act, which made it a crime to teach or conspire for the destruction of any government within the US through force or violence. (success or probability of success of overthrow doesn't matter). Government interest in preventing the overthrow of the government by force or violence is a substantial one. - Balancing Test (L. Hand) – Whether the severity of the harm, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. o Depends on the severity of the harm (the more harm, the more invasion, the less harm, the less invasion allowed by the government). This is also discounted by the level of probability. Modern Distinction Between Advocacy and Incitement Brandenburg - Reversed D's, KKK leader, conviction under a statute criminalizing the advocating violence as a means of accomplishing political reform. - Standard Applied – State can make words illegal when advocacy incites or produces imminent, lawless action. Imminent Danger Express Advocacy of a 1 Crime 2 Mere Discussion of ideas Brandenburg Standard – Section 1 Dennis and Yates – Sections 1 and 3 Holmes and Brandeis opinion – Sections 1 and 2 Future Danger 3 4

Defamatory Language of Reputation and Privacy Beauharnais - Sustained a statute (and a conviction) prohibiting exhibition in any public place of any publication portraying depravity, criminality, that would incite a brea ch of the peace, when D distributed racist literature. - Court applies rational relation test b/c defamatory language falls outside of the protected sphere. - Constitutionally protected speech can cover individuals, then it can protect a group (defamation law is applicable). Public Officials and Seditious Libel Sullivan – NY Times ran an advertisement funded by a committee to defend MLK. The ad featured several false statements about Sullivan, police commissioner. Takes part of libel law into 1st Amendment protection. - Issue – Can a public official recover for libel without actual malice? NO. o The Constitution prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not - Public Officials v. Private Officials (Analysis): o Public officials are elected, appointed, or employed by the government. They thrust themselves into the public eye and with that, they must expect scrutiny, which is part of their job. - Speech is protected b/c it is a matter of general public concern. This criticizes a public official in a matter that is relevant to a current public concern. - Public Official Standard – o Actual Malice – To Prove:  Actual knowledge or falsity, OR;  Reckless disregard for falsity (which is a high degree of probability of falsity). o Damages –  Must prove actual damages (actual evidence of harm). o Burden of Proof – Burden of proof is on the . Private Individual Involved in Public Issue Gertz - (encompasses all of libel law) D printed an article falsely stating that P was a long time communist and helped frame a policeman for murder. D had been in the news on this issue. - This case interprets how and if a person should be considered a public figure for defamatory purposes.


Rejects Sullivan standard (Sullivan standard does not fit these particular facts because this is a private individual suing a public, broadcast entity). Gertz Standard – Applied when a private individual sues a print/broadcast defendant. There is a lower burden of proof but there is still a requirement of fault. Test – (Private or Public Figures) – As an individual, you must thrust yourself into the vortex of the public eye.

Matter of Public Interest Hill – Family sought to avoid publicity regarding them being held hostage. Life Magazine wrote a story that was loosely based on the family’s hostage experience, however, many facts in the story were different. - False Light – False reporting with the absence of actual malice. - A person cannot, under the Sullivan standard, recover in the case of false reporting of a matter of public interest in the absence of actual malice. Statements are not defamatory. Infliction of Emotional Distress Hustler v. Falwell – Hustler published a parody article where Falwell was stated to have had sexual relations with his mother in an outhouse. - Falwell tries to sue under IIED instead of defamation because there is no false statement of fact. - Public figures may not recover on IIED, this leaves room for satire and parodies. Disclosure of Private Facts B.J.F. – FL made it illegal to print the name of a sexual abuse victim in an publication or instrument of mass communication. The Florida Star named a rape victim, who sues for damages. - Liability cannot be imposed on the press for printing truth that harms someone when those facts are lawfully obtained. - The main requirement the press must satisfy is obtaining the facts truthfully. Obscenity - obscene speech is outside the purview of the 1 st Amendment (no essential part of free expression), unlike libel and fighting words have been (in large part) brought into 1st Amendment protection Roth – Roth was convicted of mailing obscene materials in violation of a state obscenity statute. - Roth fails to actually define obscenity, but does lay out guidelines: o Obscenity is not necessarily synonymous with sex. o Obscenity deals with sex in a manner appealing to prurient interest. - If a state writes a statute dealing with obscenity, the statute must give notice of the material proscribed.

Rationale for Regulating Obscenity Stanley - Reversed a conviction for knowing possession of obscene matter where police discovered pornographic movies in his home under a search warrant for another purpose. States retain broad power to regulate obscenity, but it does not extend into a private individual's home. - The government has an important interest in regulating the public distribution of obscene materials, but the statute cannot regulate the private possession of such material. State Regulation of Obscene Films Paris Adult Theater - Theater only let in adults over 21. Pornographic films do not acquire constitutional immunity from state regulation simply because they are acquired for consenting adults only. - Rational Basis Test - State has right to protect neighborhood and clean public environment from obscene material. - Watching porn in a public place is not a fundamental right implicit in the concept of ordered liberty—if you do it in your home, Stanley applies. Revised Standard of Obscenity Miller – Miller was convicted under a CA statute for distributing obscene materials to unwilling recipients. - Serious Value Test (3 Prong Test): o Average person, applying contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest. o Sexual representation in a patently offensive way. o Lacks serious literary, artistic, political, or social values. - Brennan Dissent – o Feels that the vagueness does not put the public on notice and therefore creates a due problem. o Will create a slippery slope o Chilling effect Overbreadth v. Vagueness - Overbreadth – Statute sweeps too broadly and it over-inclusive. o Challenges the statute on its face making the entire statute unconstitutional. o If an individual challenges the statute on how it applies to them, then the statute will stand, but they might steer clear of any punishment. o Standing issue - Vagueness – It can’t be read literally, and cannot be readily understood. - NOTE – If a statute is either overbroad or too vague, it will not provide sufficient notice.

Fighting Words Not protected. (Fighting words are outside the protection of the first amendment, however, few cases ever classify the words at issue as ―fighting words‖). Words by their very utterance inflict injury or tend to incite an immediate breach of peace.

Chaplinsky - Upheld D's conviction for calling someone a ―goddamned racketeer‖ and fascist in public. Fighting words, by definition, intend to incite an immediate breach of the peace. - Fighting Words - Direct personal insults made to someone face-to-face that would provoke a reasonable person to violence; narrowly interpreted. Unconventional Forms of Communication O’Brien - Upheld P's conviction for burning his draft card during a demonstration protesting the Vietnam War. - A law by the government is justified if it: o Is within the Constitutional authority of the government. o Furthers an important government interest. o Interest is unrelated to the suppression of free expression. o Incidental restriction on the 1 st Amendment freedoms is no greater than is essential to furtherance of that interest. - This focuses on legislation that impermissibly impacts conduct as well as words (speech and non-speech). Johnson - Court overturned P's conviction for burning (desecrating) a flag, in violation of TX law, at the Republican National Convention. This law is not content neutral. Though the only power of this "speech" seems to be how much it pisses people off, that is okay. Offense alone is not enough. - When to use O’Brien: o Was there conduct? o If yes, was it meant to convey a message? o If so, would others likely understand? - O’Brien does not apply in this case, (meaning, they must challenge against the strict scrutiny standard b/c the restriction placed on Johnson is content based, in other words, the statute directly prohibits the burning of the flag). Clark v. Communiy for Creative Non-Violence – Protestors wanted to sleep in public parks to exemplify the plight of the homeless. There is a law against people sleeping in public parks generally. - Time, Place and Manner Test: Symbolic expression may be regulated or forbidden if: o Regulation is narrowly drawn to further a substantial government interest, o Interest is unrelated to free speech, AND


o Leaves open ample alternative channels for communication of the information. This test is used when the statute is content neutral, as in this case where all the statute outlawed was anyone sleeping in a public park, not just protestors. This statute was made for the safety and well-being of the public and is completely content neutral.

Near Obscene Speech Young – Detroit zoning law required adult movie theaters to be only in certain places according the Anti-Skid-Row statutes. Theater’s vagueness argument fails and therefore, they must challenge on the application. - Court applied the Time, Place and Manner test. - Court decided that this statute did not question or challenge the content of the material shown and there was no distinction drawn to decide whether or not this material had any societal values. - Zoning-Law – Only regulates where the film can be watched, NO CONTENT. Regulation of Speech Based on Secondary Effects Renton – Zoning ordinance for adult dancing (not all adult entertainment) was upheld even though it only gave 1 square mile of available space to adult theaters. - Law is content-neutral. - Court uses secondary effects (what effects having nude dancing places would have on the community). Prohibition of Public Nudity Pap’s AM – Statute made it illegal to knowingly or intentionally appear in a ―state of nudity‖ in public. Nude dancers had to wear pasties and g-strings. - Court applies O’Brien standard o Statute was found to be valid. o Court argues that the secondary effects (crime, prostitution, drugs, etc) as a rational reason to uphold regulation. Commercial Speech In determining the degree of protection, the free speech interest in the contents of the speech must be weighed against the public interest served by the government regulation. Scope of Protection for Commercial Speech 4-Part Test for Regulation of Commercial Speech (from Central Hudson): - Is the expression protected? (If it concerns lawful activity and is not misleading, it generally is. - Is the asserted government interest in regulation substantial?


Does the regulation directly advance the governmental interest? Is the regulation more extensive than necessary?

Virginia State Board of Pharmacy – VSBP prohibited advertisement of the retail prices of prescription drugs by pharmacists. - Commercial speech is protected but it can be regulated by ―Time, Place and Manner‖ regulations. Ohralik – Attorney advertising. Ohralik solicited two clients after he discovered they had been injured. - A state can better regulate what an attorney does as opposed to a normal business b/c of the fiduciary relationship that exists, also because attorneys play a more vital role in society. - Reasoning – It protects the clientele as well as the profession. 44 Liquormart – Rhode Island law prohibited advertising of the retail price of alcohol except for price tags or display within licensed premises and not visible from the street. - Does not pass the third and fourth part of the test. - There are better alternatives to curb the consumption of alcohol. Private Speech Dun and Bradstreet – D & B reported false credit information regarding , and caused them damage negligently. - Very few 1st Amendment protection for private speech. R.A.V. – Teenagers got together and constructed a wood cross and set it on fire outside the home of a black couple. This violated anti-racism laws in MN. - Statute was written to specific and it might have failed constitutionally had it been written more broad. Freedom of Association Freedom of Association is an expressive right and goes hand in hand with the Freedom of Speech. NOT IN THE CONSTIUTION. - Freedom of Association is an implied right by the courts. - Negative Freedom – Free from forced speech and forced association. o Choosing not to say, or not to associate with a group is just as important as the freedom to say, or join a group. Intimate Association v. Expressive Association - Intimate Criteria: o Size of the group o Degree of selectivity o Seclusion

True intimate associations (such as marriage) are fundamental rights and laws made that might deter people from the freedom to engage in such rights will be subject to strict scrutiny. Jaycees – US Jaycees is an organization dedicated to developing young men for activity in civic affairs. Men over the age of 35, and women, could join, but could not vote. Chapters in MN inducted women as regular members and the national president threatened to revoke their charters. The Court explained that a large group could not exclude applicants based solely on sex b/c the interference with the internal organization is justified by the state’s compelling interest in eradicating discrimination against its female citizens. - Test – For a statute to restrict the freedom of association, it must: o Serve a compelling state interest o Be unrelated to the suppression of ideas o Not be able to be reached through a less restrictive means; AND o Enforcing the statute does not violate the overall message of the group. BSA v. Dale – Adult leader in the BSA was reported in the local newspaper as being the co-president of the gay/lesbian alliance at Rutgers, and was revoked of his membership in the BSA. Court holds that because opposition to homosexuality was part of the Scout’s ―expressive message,‖ and a state anti-discrimination law that barred the group from excluding gays as members violated the Scouts freedom of association. - The regulation was put under the test found in Jaycees and failed. o Court reasoned that requiring the Scouts to accept a gay leader would send a message opposite of the message the Scouts put forth by saying ―morally straight.‖ Freedom of Religion The First Amendment – Provides that ―Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.‖ The Establishment Clause – Clause prohibits any law ―respecting an establishment of religion.‖ It puts a wall between church and state (the government must stay out of the business of religion). o Three Part Test – Gov’t action that has some relationship to religion will violate the Establishment Clause unless it satisfies ALL THREE PARTS of the test.  Purpose – Gov’t action must have a secular legislative purpose.  Effect – Gov’t action’s principal or primary effect must not be to advance religion. (Note: Incidental effects helpful to religion do not violate this prong).  Entanglement – Finally, the governmental action must not foster an excessive government entanglement with religion.

Lemon – The Court invalidated state salary supplements to teachers of secular subjects in non-public schools. The Court created the three-part test found below. - The Lemon Test: o A law written by the government must:  Reflect a clearly secular purpose;  Have a primary effect that neither advances nor inhibits religion;  Avoid excessive government entanglement with religion. Wallace – Series of AL statutes came under scrutiny (1978 – 1 minute for meditation, 1981 – 1 minute for meditation or voluntary prayer, 1982 – authorized teacher to lead willing students in a prescribed prayer). Court is looking at the 1981 statute in this case. - Lemon test applies. o Court decides that this statute has no secular purpose, and that the statute was designed to have the State favor prayer in school which is inconsistent with the strict neutrality toward religion that the gov’t is supposed to maintain. Zorach – Statute established a release program so that students whose parents so requested were permitted to leave school grounds early for religious purposes. Court held that the time release program was Constitutional b/c it separated church and state enough (the separation is not absolute). Allegheny – County Courthouse was decorated with a (1.) creche and was not accompanied by any non-secretarian decorations. They also sued to enjoin a (2.) menorah, which was placed next to a Christmas tree and a sign saluting liberty at a CityCounty building a block away from the courthouse. - (1.) The display of the crèche, which stands alone, with nothing to detract its religious message violates the Establishment Clause. The gov’t may celebrate Christmas, but not in a way that endorses Christian doctrine. - (2.) The menorah, combined with the liberty sign and the Christmas tree is a secular celebration of Christmas coupled with an acknowledgement of Chanukah as a contemporaneous alternative tradition. This does NOT endorse religious faith. Weisman – Suit was aimed at enjoining school officials from inviting clergy members to deliver prayers at future graduation. - The Est Clause does not allow the government to compose official prayers to be recited as part of a religious program carried on by the government. o Even though attending the ceremony is not required to graduate, attendance is in a fair and real sense, obligatory. - Freedom of Speech v. Freedom of Religion issue – The Free Exercise Clause and the Free Speech Clause are similar, but the Est Clause prevents the gov’t from intervening in religious affairs, a prohibition with no counterpart in the speech provisions. Pinnette – Court allowed the KKK to erect a cross on a public square where other unattended displays had been permitted, such as a Christmas tree, and a menorah. The

Court held that the state did no sponsor the expression, which was made on government property open to the public for speech.

Free Exercise Clause Free Exercise Clause is designed to protect against governmental compulsion with regard to religious matters. - Bars gov’t acts that would (examples, not a test): o Regulate beliefs as such or interfere with the dissemination thereof. o Impede the observance of religious practices, or o Disseminate in favor of one religion over another, where such acts are not otherwise justifiable in terms of valid government aims. Conflict with State Regulation: - Absolute freedom to believe - No absolute privilege for all activity undertaken pursuant to a religious belief. Barnette – Compelling a flag salute by public school children whose religious scruples forbade it violated the first amendment. Hobbie – Hobbie was fired from her job when she refused to work Saturdays and filed for unemployment. The Unemployment Appeals Commission denied Hobbie’s application for unemployment compensation. (Court employed the Strict Scrutiny standard). - Sherbert standard quoted in this case – Sets up standard for religious beliefs vs. unemployment benefits. o Disqualification for unemployment benefits of a person who refuses to work on the Sabbath forces the person to choose between following the precepts of her religion and abandoning those precepts to accept work. Imposition of such a choice burdens free exercise of religion. - Rehnquist Dissent – So long as the gov’t doesn’t employ or coerce, then the law is okay. Freedom of Religion Spectrum Far Left – o Strict Separation (ACLU v. Alleghany) o Leans more on the Establishment Clause Middle – o Effect Prong (Lemon Test) Between Far Right and Middle – o Gov’t Can’t  Sponsor a religion with money  Coerce anyone to worship



o If they don’t do these, LAW IS OKAY Far Right – o Lean more on the ―Free Exercise Clause‖

Bob Jones University – Held that IRS denial of tax exempt status to private schools that practice a racial discrimination on the basis of sincerely held religious beliefs does not violate the Free Exercise Clause. - Reasoning – Gov’t has a fundamental right, overriding interest in eradicating racial discrimination. Lyng – Indians protested the building of a road, and the allowance of timber harvesting in a national forest violated the Indian’s right to the Free Exercise Clause. - Point of the Case – Court allowed this b/c the gov’t cannot adhere to every religious practice. The Court still protected their right to believe. Unemployment v. Smith – “Peyote Case” – Smith and Black were fired from their job for using a narcotic called ―Peyote‖ which was outlawed by statute. Upon being fired, they attempted to collect unemployment. - The State can make certain conduct that is part of a religious ritual illegal. - Distinguish Sherbert – Sherbert applies ONLY to unemployment cases. This case affects CRIMINAL MATTERS. o This case creates an exception for the Court to prohibit religious acts b/c they are outlawed by criminal statute. (VERY IMPORTANT) o State no longer has to prove a COMPELLING INTEREST. This is why this case is so important. When creating a law that will outlaw certain religious acts, the government must still abide by the rules of the Establishment Clause in that they cannot pick out a particular act by a particular religion and outlaw it. (See Church of Lukumi v. Hialeah) - Church of Lukumi v. Hialeah – Cult was sacrificing chickens. City passed a special ordinance which prohibited animal sacrificing. o Court held this ordinance against the Strict Scrutiny standard, and it’s not presumptively valid b/c it singles out one particular religious practice. Equal Protection Race Level of Scrutiny o Strict Scrutiny:  Narrowly tailored  To achieve a compelling government interest.

History: - Dread Scott – Supreme Court upholds the construct of slavery. In order to dismantle slavery, there needs to be an amendment to the Constitution. The amendment didn’t completely cure the issue. - Plessy – Courts allowed separation of the 2 races and allowing separation does not eliminate the idea. So long as there is separate but equal facilities, then it’s okay. - Korematsu - The first case introducing elevated scrutiny under the EP clause; ironically this case had a long term beneficial effect on EP. After the bombing of Pearl Harbor Pres. Roosevelt signed, and the court upheld Executive Order 9066 allowing for the internment of Japanese in America (whether they were US citizens or not). Korematsu was arrested and convicted for remaining in a prohibited area. o Rule - All restrictions that curtail the rights of a racial group are immediately suspect, however this is not a racial issue, it is one of military dangers. Brown v. Board of Education - A class action suit challenging the legally mandated segregation of the public schools. Separation itself is inequality. Brown did not automatically overrule Plessy (until perhaps Loving), but eventually did in that the court applied the principles in Board to other things. - Impact – In the field of public education, doctrine of separate but equal has no place, separate educational facilities are inherently unequal-psychological studies that show the impact of segregation on children who are going through their formative years. o Undid Plessy. o Functional equivalent of Dread Scott. - Brown II – All provisions to federal, state, or local law requiring or permitting such discrimination must yield to this principle. o Burden – Burden is on  to establish that such time is necessary in the public interest and is consistent w/ good faith compliance at the earliest practicable date w/ all deliberate speed. Loving v. VA - Invalidated a VA law prohibiting interracial marriages involving whites. VA argued that this law was not subject to an EP challenge because it was applied equally to blacks and whites. - Marriage is a fundamental right: as such, this law violates the EP clause as well as the DP clause. - Rule – Marriage is a fundamental right. 14 th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations, under our Constitution, the freedom to marry or not, a person of another race, resides with the individual and can’t be infringed by the State. De Jure v. De Facto Discrimination De Jure – Racially neutral in its terms, administration, and purpose but has a discriminatory effect or impact. De Facto – Discrimination exists even though the law in question is racially neutral on its face, the law may be deliberately administered in a discriminatory way; or the law,

although neutral in its language and applied with its terms, may have been enacted with the purpose or motive to disadvantage a suspect class. Yick Wo - City ordinance prohibited the operation of a laundry in a building that was not brick or stone. Evidence was presented to show that this law was selectively enforced against the Chinese. Race triggers the CSI test, but this statute is neutral on its face; this statute is not unconstitutional on its face, but in its enforcement. - Rule – The EP clause applies to all three branches of government, but also to enforcement. Washington v. Davis - DC had a test for entrance into police service that white recruits did much better on than did their black counterparts (4 times higher passage rate). Disproportionate impact alone does not trigger strict scrutiny; it must be motivated by a discriminatory purpose, other evidence showed that the PD was not discriminating on the basis of race: efforts to recruit black officers. - Test - If you have a dramatically disproportionate impact in the use of a test, the burden shifts to the employer, who must justify its test to "validate" its use. Impact alone is not enough, you must also show intent to discriminate on the basis of race. - Remains the law in race and sex discrimination; closed the door to the cases in which you could get elevated scrutiny by showing a discriminatory impact. Personnel Administrator v. Feeney, (1979); upheld Mass. absolute lifetime preference to veterans for state civil service provisions, even though it greatly benefited men. - Test when a statute is challenged that is gender-neutral on its face: o Whether the statutory classification is indeed neutral:  Statute serves a legitimate and worthy purpose.  Purpose is not to discriminate against women. o If not, whether the adverse effect reflects invidious gender-based discrimination (impact is relevant, but discriminatory purpose is truly constitutionally offensive). Arlington Heights v. Metropolitan Housing Dev. Corp. (1977); Court upheld a city’s refusal to rezone single family dwelling site for multiple family dwellings so that P could build racially integrated housing. - Case sets up Evidentiary Factors for Finding Illicit Purposes: o Evidentiary Sources  Historical background (sequence of events leading to the challenge decision)  Departures from normal procedural sequence (substantive departures too may be relevant.  Legislative or administrative history

Gender Discrimination Level of Scrutiny: - Intermediate Standard of Scrutiny: o Served an important government interest. o Substantially related to the achievement of a compelling government interest. Reed – First case involving gender discrimination. Law preferred males to females when 2 persons are qualified to be the administrator of an estate. Court applied rational basis test and said that it was unconstitutional. - First case to rule gender discrimination violated the EPC. Craig – Invalidated an OK law that allowed women to buy beer at the age of 18, and prohibited men from buying beer until they were 21. - Intermediate Standard – Court ruled that this discrimination was subject to the laws of the EPC. This case heightened the level of scrutiny from Rational Standard to Intermediate Standard. o Must serve and important government interest. o Must be substantially related to the achievement of a compelling government interest. - Analysis: o This case served an important government interest in trying to protect it’s citizens from the effects of drunk drivers. o However, the method that they used to achieve this (via gender discrimination) is not substantially related to the achievement of this important government interest. US v. Virginia – VMI Case – Invalidated VMI's men-only admissions. - Gender-based government action must demonstrate an exceedingly persuasive justification for that action. - Post hoc justifications (that defendant made up for court) won't work. - The state argues that the all-male system promotes diversity in education—that is, a single sex education provides a different experience than does a co-educational system; however, the alternate education for women provided by the state of VA at Mary Baldwin is inferior. - The court does not suggest that single sex education is unconstitutional, but in this case single sex opportunities were available to men and women without justification. Difference Between Men and Women If the differences are based on societal expectations, there is an elevated review. Geduldig - Affirmed a law excluding disabilities that accompany pregnancy and childbirth; absent a showing that it is meant to discriminate against one sex or the other.

Court found that this decision was made for neutral reasons, and not to discriminate. This is an actual physical distinction (not a distinction based on gender stereotypes) Dothard – Upheld a law which prohibited females from being prison guards where they will come in contact with male prisoners. - Court justified this for safety reasons. Michael M. – California statute that punishes males and not females in statutory rape cases. State defends this by saying that pregnancy burden falls on women and not males. - Court found that the state had a legitimate interest in preventing teen pregnancy. - Uses sex to define the crime; there are actual physical differences. women won't report the crimes if they'll be prosecuted too and they have to bear the burden of pregnancy. Rostker v. Goldberg – Challenged statute that men and not women have to register for the draft when they turn 18. Raising an army is an important government interest. Congress investigated this issue in-depth and decided that any draft would require a need for persons in combat positions (which women are excluded from); the sexes are not similarly situated in this case. - Rule – Laws that discriminate against men have been upheld when found to be substantially related to an important government objective. Here, the court upheld the draft registration of males only b/c of Congress’ considered conclusion, pursuant to its military powers, that this was needed to further the important government interest of preparing for a draft of combat troops. Califano – Challenged statute gives women higher social security benefits to make up for past discrimination. - State replacing past discrimination due to prejudice on the role of women in the work force did not violate the EPC. - Applied the Craig test: Passed because it did not point out generalizations and stereotypes between women and men, but was meant to compensate for past discrimination. - This creates an exception to the Craig test – A statute that discriminates against gender can still pass the test so long as it attempts to remedy past discrimination. Orr – AL statute providing that husbands (only) be required to pay alimony. Statute failed to pass the Craig standard. Hogan - Male was rejected from the School of Nursing solely based upon his sex. Invalidated the school's women-only attendance policy on the grounds that it perpetuated the stereotype that nursing is a woman's job. Sexual Orientation Romer v. Evans - Invalidated a Colorado Constitutional Amendment that denied "special protection" to persons based on their sexual orientation—repealed laws that denied

prohibiting discrimination on the basis of sexual orientation and denying redress to homosexuals that were victims of discrimination. - Colorado’s Claim: o Just avoiding giving homosexuals special treatment. o Putting homosexuals in same position as anyone else. - The amendment was overbroad and failed the rational basis test. - Court applied the rational basis test with a heightened standard. o Test for Sexual Orientation - at the very least Romer and Lawrence say, we'll apply the rational basis test, but the rational basis test will not allow discrimination as a basis for legislation; however, no one really knows what the standard of review is or will be for sexual orientation. Voting Rights Harper – Court struck down a VA $1.50 poll tax as invidious discrimination. Applied strict scrutiny, though the right to vote in state elections is not expressly stated in the Constitution, once the right has been granted, lines which violate EP may not be drawn. - Impact of Case – Declared the right to vote a fundamental right (which heightens the level of scrutiny to Strict Scrutiny when looking at statutes). Kramer - Invalidated a NY ordinance requiring voters to the school district election to: either own property in the area or have children in public schools. - This is a means-end analysis. The state says, our end is interested voters, but it fails because it is overbroad and/or under-inclusive. There must be a very tight fit between the means you employ and the end. Reynolds - Held that Alabama's failure to reapportion every 10 years on the basis of population was a rational approach to legislative representation and anything less would be constitutionally suspect. However, Alabama hadn't reapportioned in 60 years, so that 25% of the population elected a majority of the House. Of course, incumbents didn't want to reapportion because the people in their districts elected them. - People's votes should (at least by a good faith effort) have roughly the same weight. Alabama's scheme was "diluting" people's right to vote. - Rule: legislative districts have to be equal in population (the right to have a representative based on equal population).

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