Constitutional Law II

I. Review of Con Law I

A. Standing, Mootness and Ripeness- Article III, Section 2, Clause I says: “judicial power shall extend” to a list of

enumerated cases and controversies - To qualify as a case or controversy:

o a matter must be concrete and non-hypothetical, as affirmed by longstanding federal practice barring issuance of merely advisory opinions

o It must also involve parties claiming an injury personal and concrete to them (must have standing)

o It must arise neither too late or too soon for judicial resolution (mootness and ripeness)

1. Advisory Opinions- advisory opinions- opinions on the legality of executive or legislative action that did not

involve an actual caseo when one branch of government asks for advice from the court before it becomes

an issue- some state supreme courts are authorized to issue advisory opinions

o ex. Massachusetts’ and Michigan’s laws say: each branch of legislature has the authority to require the opinions of the justices

- strict necessityo court will not determine constitutional issues:

until they absolutely need to nor in broader terms than are required by the precise facts to which the

ruling is to be applies nor if someone fails to show that the statute has injured him in some way or if the statute can be constructed in a way by which the question can be

avoided

2. Standing to Litigate- standing- whether the P has made out a “case or controversy” between himself and the D

within the meaning of Article III- the Court has to make sure that the parties bringing suit have a concrete and

particularized interest in the case

Constitutional Requirements for Standing: (Art. III)- 1. personal injury—actual or imminent threat- 2. fairly traceable to the government—as a result of the illegal conduct of the D, and can

be traced to the action- 3. likely to be redressed by the court

Type of Injuries:- *Injuries do not have to be economic

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- Non-economic injuries include:o vote dilution, loss of opportunity to participate in racially neutral proceedings, and

aesthetic offenses Limits on Standing:

- 1. third-party standingo P generally must assert his own legal rights and interests—cannot rest his claim

to relief on the legal rights or interests of third parties.- 2. assertion of generalized grievances or

o when the asserted harm is a “generalized grievance,” shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant the exercise of jx

o The court will not adjudicate wide areas of public interests, which are “generalized grievances,” b/c they are more appropriately addressed in the representative branches

- 3. claims outside the zone of interest protected by the relevant statute or constitutional provisions

Public Policy:- the Court has sometimes determined that where large numbers of Americans suffer alike,

the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance

Example Cases:- A generally available grievance about government is not a case or controversy under

Article III- Parents w/o legal custody do not have standing to bring an action on behalf of their child- Even in the absence of injury to itself, an association may have standing solely as the

representative of its members o As long as the members have alleged facts sufficient to make out a case or

controversy had they themselves brought suit.

3. Mootness and Ripeness- Mootness- whether the occasion for judicial intervention persists

o pertains to the timing of lawsuitso when litigants clearly had standing to sue at the outset of litigation, but then

problems arise from events occurring after the suit has gotten underwayo due to changes in facts or in the law that occur after the case has started

- Ripeness- whether the harm asserted has matured sufficiently to warrant judicial intervention

o seeks to prevent premature adjudication—where the lawsuit has not developed enough

Mootness- the court will not decide cases that are moot- this requires that an actual controversy must exist at all stages of review, not merely at

the time the complaint is filed.

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- This is part of the Article III case or controversy requirement- NOTE: Mootness can be decided differently for difference issues in a case

o Ex. if D stops doing a wrongful act, the case might be moot for an injunction, but not a claim for damages

Kinds of harm that will prevent a case from becoming moot (the case will be heard):- 1. A continuing harm to the P- 2. The likelihood of future recurrence of past harm (either to the P personally or the

group that he represents); AND- 3. The probability that some of the cases arising in the future will evade judicial review

(every time they come up, they will be mooted before justice can be served)o Ex. cases involving pregnancy

Roe v. Wade- the case was not decided until 1973 when the P was not even pregnant anymore (but if the case had been terminated on that basis, pregnancy litigation would not get to the Supreme Court ever)

o Ex. cases involving school there was an affirmative action case but by the time it got to the court the

kid was already about to graduate, so they decided to continue the case on the merits, even though there was no longer an issue

Ripeness- The case has to have ripened—has to have developed (can’t just be an advisory opinion)- This prevents hearing cases that are too premature to be decided- We have to wait until there is actual damage- the courts are most likely to insist on a clear and defined record to assure informed and

narrow decision making- ripeness can rest on Art. III case or controversy grounds, but are sometimes based on

discretionary, remedial, or prudential (cautionary) grounds

B. Substantive Due Process

TEST FOR ECONOMIC SUBSTANTIVE DUE PROCESS - 1. Does the state action have a legitimate governmental objective?- 2. Is there a rational relation between the means chosen and the state objective?

o Otherwise, the Court will assume that the legislature has acted in a completely arbitrary and irrational way

- *if NO, the state action violates one’s personal liberties

Strict Scrutiny- if rights are fundamental, they require a higher standard of review:

o 1. The state must show a compelling governmental interest for the lawo 2. the means chosen must be necessary; and o 3. there cannot be any less restrictive alternative means

How to Analyze Substantive Due Process Cases:- 1. Decide whether the interest is traditionally seen as a fundamental right.

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- 2. Is it being denied completely (ban), or just infringed on (regulation)?- 3. If it is a mere regulation, then go to rational basis test:

o Rationale Basis (Two Elements):o 1. Legitimate State Objective- the gov. must be pursuing a legitimate

governmental objective This is very broad—practically any type of “health, safety, or general

welfare goal” will be found “legitimate”o 2. Rational Relation- the law has to be rationally related to the state objective

This is also easy to satisfy—only if the gov. has acted in a completely arbitrary and irrational way will this rational link between means and end not be found.

o *here, the person contesting the law has the burden of proving that the action is unconstitutional

o *under this standard of review, the gov. action will almost always be upheld- 4. if the undue burden on the fundamental right is so severe that it presents an obstacle to

that right (basically becoming a denial of that right), the Courts must use strict scrutiny:o Strict Scrutiny (Two Elements):

1. Compelling Objective- the objective being pursued by the gov. must be compelling

2. Necessary Means- the means chosen by the gov. must be necessary to achieve that compelling end (it is not enough that there’s a rational relation between the ends and the means)

The means chosen must be narrowly tailored to serve a compelling state interest--There cannot be any less restrictive means that would accomplish the gov.’s objective just as well (no alternatives)

*here the gov. has the burden to prove that its action is constitutional *under this standard of review, the gov. action is almost always struck

down

II. Equal Protection

14th Amendment (Equal Protection Clause):- “no state shall make or enforce any law which shall…deny to any person within its jx

equal protection of the laws”- the clause guarantees that people who are similarly situated will be treated similarly

o Does not mean laws must deal in the same way with everyoneo Almost all laws classify (or “discriminate”) by imposing special burdens or

granting special benefits to some people and not to others - This Clause was designed to protect individuals from stereotypes, whether they are right

or wrong

A. Overview of Equal Protection

Federal Government

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- the direct text of the Clause applies only to state governments (state action), but judicial interpretation has made it applicable to the federal government as well (through the 5th amendment due process clause)

o the federal government is bound by the same rules of equal protectiono the 5th amendment’s due process clause bars the federal gov. from making any

classification that would violate the Equal Protection Clause if done by a state

Classifications- legislative classification- all individuals possessing the defining trait- the law imposes a general restraint on the governmental use of classifications based on:

o race o sexo alienageo illegitimacyo wealth; ORo any other characteristic

Two Elements of Discrimination:- 1. discriminatory effect

o P must show that the governmental action caused an actual discriminatory effect - 2. State Action

o 14th amendment only applies only to government action, not to actions by private citizens—this is the requirement of state action

o individuals can discriminate all they want (ex. you can keep anyone out of your home based on whatever qualities you choose)

Two Kinds of Discrimination- 1. De Jure (by law)- must be intentionally discriminating (purposeful)

o Three ways to show purpose 1. the law can be applied in a discriminatory way; OR 2. the law is discriminatory on its face; OR

where a classification is written into the statute or regulation 3. discriminatory motive in the legislation

- 2. De Facto (by fact)- unintentional discriminationo Discrimination just happens—has a discriminatory effecto This is not unconstitutional

History of the Equal Protection Clause- Old equal protection standard:

o the government statute only had to relate to a legitimate governmental purpose (easy for gov. to get away with)—the government would almost always win

- The Warren Courto things changed when Earl Warren was CJ—it burgeoned (flourished) in the 1960so the court did not abandon the deferential stance of old equal protection, but the

Warren court did find large new areas for strict, rather than deferential, scrutiny

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fundamental rights and suspect classification theory court started requiring strict scrutiny, which switched the burden to gov.

- Post-Warren Courto Burger court said that the idea of fundamental values was the too vagueo suggested that other fundamental values (welfare, housing, education) should be

subjected to strict scrutiny, but that didn’t happeno The Court maintained strict scrutiny of racial criteria but added heightened

scrutiny (intermediate scrutiny) for those based on sex, alienage and illegitimacy- Other Views on Strict Scrutiny in Equal Protection Cases:

o justices disagreed on how to handle equal protectiono Justice Marshall (and some others) wanted a sliding scale

He thought it was unrealistic to expect that all equal protection legislation fit neatly in two categories: strict scrutiny OR rational basis

He thought some cases needed a standard somewhere in between (ex. sex discrimination cases)

- Currently o The courts have set up different degrees of judicial scrutiny (from “the most

deferential to Congress” to “the strictest”) and have found in equal protection a range of specially protected fundamental values

o Equal protection focuses on the means, more than the ends

Three Levels of Scrutiny:

1. Strict Scrutiny- Applied to any statute that is based on a “suspect classification” OR that impairs a

“fundamental right”o Suspect classifications:

race, national origin and alienageo Fundamental rights:

right to vote, right to have access to the courts, right to interstate travel- The classification will only be upheld if it is necessary to promote a compelling

governmental interest- strict scrutiny requires a far closer fit between classification and statutory purpose

o gov. almost always loses

Two Factors that Qualify for “Strict Scrutiny” Level of Review - 1. the presence of a “suspect classification”

o Race, national origin (nothing to do with citizenship), alienage o *Things outside our control

- 2. impact on “fundamental” rights or interestso Voting, criminal appeals, and the right of interstate travel

Test for Strict Scrutiny- 1. Is there a compelling governmental interest?- 2. Are the means necessary to fulfill that compelling governmental interest?

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- 3. Are no less burdensome alternatives—no other way to serve the compelling interest? (narrowly tailored)

2. Intermediate Scrutiny- Less demanding than strict scrutiny- Used for “quasi-suspect” classifications

o Those based on gender and illegitimacy- Focuses on the means used by the legislature

Test for Intermediate Scrutiny:- Are the means chosen by the legislature (i.e. the classification) substantially related to

an important governmental objective?

3. Rational Basis Review- This is the easiest to satisfy- Used in 95% of cases- This applies to all classifications that are not based on a “suspect” or “semi-suspect”

classification (those that do not involve race, national origin, alienage, gender or legitimacy)

- the preference is for the gov.- in this level of scrutiny, it doesn’t matter if the Court would have preferred another way

of accomplishing the ends- *usually used in economic and social welfare cases

Test for Rational Basis- 1. Are the means rationally related to a legitimate governmental interest?- 2. Were the means “rational” to achieve the ends (even if the ends are legit)?

Burdens in Tests:- rational basis—burden is on the P

o all the government has to show is that the means chosen are rationally related to the governmental objective

- intermediate scrutiny—burden in on the gov.- strict scrutiny—burden is on the gov.

B. Scrutiny of Means in Economic Regulations: The Rationality Requirement

1. “Underinclusive” and “Overinclusive” Classifications- determining whether a classification is reasonably related to the purposes of the

legislation is an aspect of the requirement that there be a “rational connection” between legislative means and legitimate ends”

- equal protection demands that there be some “rational” connection between classifications and objectives

o a minimal “fit” or “congruence” must exist between the classifying means and the legislative

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o but it is hard to get the perfect fit, so legislatures must often act on the basis of generalizations

- heightened scrutiny must be used where there are “suspect” or “quasi-suspect” classifications and “fundamental interests”

Traditional Standard- 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

Current Standard- Then the court moved in a less deferential direction than the “fair and substantial

relation”- the court never formally abandoned the traditional equal protection requirement that the

legislative means must rationally further legitimate legislative ends- “idea classification” = “classification in use” = “classification in practice”

Classifications and Adequate Congruence- reasonableness of a classification = its success in treating similarly those similarly

situated (with respect to the purpose of the law)- to determine this, we must look to the purpose of the law

Underinclusive:- where all those included in the class are affected by the problem that the classification

seeks to solve, but there are others affected that are not included in the class- there is a prima facie violation of the equal protection requirement of reasonable

classification b/c the law does not include all who are similarly situated with respect to the purpose of the law

Overinclusive:- when the classification imposes a burden on a wider range of individuals than are

included in the class that are affected by the problem- We can’t just operate on stereotypes

NOTE: Some classifications are both underinclusive and overinclusive and can be challenged separately on both grounds

- Hirabayshi v. U.S.- the treatment of Japanese-Americans during WW2 was challenged b/c the law was both underinclusive and overinclusive. It was underinclusive b/c German and Italian American citizens were equally under the strain of divided loyalties. It was overinclusive b/c not all Japanese were disloyal.

Rationality Review- EP does not require that all evils of the same genus be eradicated or none at all—“one

step at a time”o Railway Express Agency v. NY- where there was a law that banned advertisements

on trucks, unless it was a company truck. It said that you couldn’t rent space on

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someone else’s vehicle—you could only advertise on your own vehicle. P said it was underinclusive, b/c billboards at Time Square are distracting and there are no laws against them. The Court applied rational basis scrutiny and found that the legitimate state interest was public health and safety and eliminating distraction. There was a rational relation b/t the means and the ends. The court was very deferential to state/local government. The Court also held that a law does not have to eliminate all similar evils to qualify as constitutional under EP—it can just do one at a time.

o NOTE: Here, you don’t want to focus on the “legit interest” here b/c it is legit, so focus on the means

- Before a court can determine whether the purpose of a statute is legitimate, and that there is a sufficiently close link b/t means and end, it must determine what the purpose is—as long as one of the purposes of the statute is legitimate, and sufficiently linked to the means, the statute will be valid under rationality review

o U.S. Dept of Agriculture v. Moreno- where there was a law only allowing food stamps to households of related people. P’s claimed it was overinclusive b/c the law might involve related people who don’t need the food stamps. Congress said the law was to raise levels of nutrition among low-income people. The Court used a rationality review to strike it down, finding it was irrational to exclude unrelated people—there was no rational basis. The real reason was to prevent hippies living in communes from the benefits of the program. A congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

o NOTE: it is very rare that gov. will lose when using rational basis- All that is required is that the means-end relationship be close enough that its rationality

is “debatable,” a very loose fit b/t means and ends will be acceptable.o Massachusetts Board of Retirement v. Murgia- a law that cops should retire after

age 50. The Court found that age was not a suspect class. The Court applied rational basis and upheld the law. They found that the law tried to protect the public by ensuring physical fitness of its cops, so this law was “rationally related to the State’s objective.” Dissent said it is unrealistic to have nothing in b/t the strict scrutiny and rational basis tests—there should be something to fill the gap.

- If the Court finds that a certain legitimate purpose may have motivated the legislature, the statute will be upheld even if there is no “hard” evidence that that purpose was the real motivation of the legislature.

- Even if there is a “plausible” reason for Congress to have made the classification scheme that it did, the rationality requirement was satisfied—it was constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.

o U.S. Railroad Retirement Bd. v. Fritz- where the law allowed dual benefits for those employees with ten years of experience, but not others. This would eliminate a double windfall. The class of unretired employees who would now not be able to receive their benefits after retiring challenged this Act. The Court found that because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to draw lines b/c a group of employees for the purpose of phasing out those benefits. The Court says: The only question is whether Congress achieved its purpose in a

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patently arbitrary or irrational way. The Court found that it was neither arbitrary nor irrational. The court has never required that Congress articulate its reasons for enacting a statute.

o Rehnquist’s majority opinion: 5th amendment due process clause, while it is not the same words as equal

protection, has been interpreted to include equal protection Judicial system does not solve all problems, sometimes people have to go

to the political process Like Warth v. Seldin (from Con Law I), the Court said that it was a

concern that would be better addressed by going through the political process.

Majority opinion did not require “actual purpose”—they would accept any “plausible reason” whether it was the “actual purpose” or not

o Steven’s Concurrence: There must be more than just a plausible explanation for the unequal

treatment Sometimes it is hard to know the actual purpose Congress had, so they

have to make presumptions about the purpose “we must discover a correlation b/t the classification and either the actual

purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislature”

o Brennan’s Dissent: Rational basis test applies:

1. figure out what the purposes of the statutes are (usually from statements of purpose and other evidence in the statute and legislative history)

2. whether the classification is rationally related to the achievement of those purposes

A challenged classification may be sustained only if it is rationally related to achievement of an actual legitimate governmental purpose

The dissent says that the Court does not look enough at the purpose, and only looks at what the law does

He feels that the Court uses a tautological (a statement which is true by its own definition) approach, which is an incorrect way to analyze this law

The legislation was drafted by outside parties and Congress relied on them to explain it at the congressional hearing and no one in Congress stated the effect of the classification correctly—the law was based on misstatements

Court investigated the congressional hearing to see whether Congress acted rationally and whether they knew what they were doing

- Justice Thomas cited Fritz in FCC v. Beach Communications, Inc.o Equal protection is not a license for courts to judge the wisdom, fairness, or logic

of legislative choiceso In areas of social and economic policy, a statutory classification that neither

proceeds among suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable set of facts that could provide a rational basis for the classification

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o b/c we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.

o Whether or not Congress explains the distinction using legislative facts has no significance on the rational basis analysis

C. Suspect Classifications: Race Discrimination- race and “national origin” are usually suspect, which requires compelling justification

o discrimination must be purposeful to be actionable under equal protection- Gender is a “quasi-suspect class” and requires an intermediate level of review- NOTE: a classification will not be deemed to be “suspect” and therefore subject to strict

scrutiny, unless the Court finds that there was a legislative intent to discriminate against the disfavored group

1. Strict Scrutiny of Racial Classifications Disadvantaging Minorities- The gov.’s discriminatory purpose can be shown by a facially discriminatory law - If a law discriminates on its face, there is no additional burden to show discriminatory

purposeo Strauder v. WV(1880)- the Court overturned a WV state law providing that only

white males over 21 y/o can serve on a jury. P was Black and was convicted of murder by an all-white jury. The Court said if this had been a law saying only Blacks could serve on a jury, there would be no question that it violated EP. By singling Black people out, the law is putting a brand upon them, an assertion of their inferiority. States can set forth the qualifications of its jurors and in doing so may cause discrimination; but they cannot do it based on race or color under the 14th amendment.

- NOTE: where a law is discriminatory “on its face,” the Court will not require that it be shown to have had an actual discriminatory impact on the case at hand—the mere risk of discriminatory impact is enough

- All legal restrictions which curtail the civil rights of a single racial group are immediately suspect—this means that they must be subjected to the most rigid scrutiny

o Korematsu v. United States- although this case established race as a suspect class, the law did survive strict scrutiny (very rare). The Court sustained a conviction for violating a military order during WW2 excluding all Japanese from certain West Coast areas. FDR set up designated military areas where there were curfews, detentions, etc. The Court upheld it saying “certain public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” In this case, the court found that there was a pressing public necessity. The military order was not condoning racial prejudice, but was aimed at protecting the US from invasion based on the urgency of the times. The need for action was great and the time was short.

Dissent: Justice Murphy said this was a “legalization of racism” There was no proof that this law would end the dangers

2. The Unconstitutionality of Racial Segregation

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The Line of Cases Leading to Brown v. Board of Education- post-Civil War amendments were put in place to give the recently emancipated race

(Blacks) the same civil rights that the superior race enjoyed- 1870- 15th amendment- 1875—Civil Rights Act (forbade discrimination in public accommodations)- Back then, the theory was that the 14th amendment applied to public places and federal

gov.- Plessy v. Ferguson (1896)- where the Court upheld a law that called for “separate but

equal” accommodations for black and white railroad passengers. Plessy was 1/8 black and the rest white and was arrested for not giving up his seat to a white person. The Court said that the intent of the 14th amendment was not to abolish distinctions based on color; it was only to enforce the absolute equality of the two races before the law. When determining reasonableness, the legislature is at liberty to act with deference to the established usages, customs, and traditions of the people. Based on this, the law is not unreasonable.

o Dissent by J. Harlan: everyone knows that the purpose of the law was not to keep whites out of

black cars, but to keep the blacks out of white cars (to exclude Blacks) the law interferes with the personal freedom of citizens—the white race

deems itself superior our constitution is colorblind in this country, there is no superior, dominant, ruling class of citizens—

there is no caste system- this “separate but equal” doctrine lasted for a century

o 1899- Case in GA, where only a white school was operating, so no Blacks could go to school—this violated “separate but equal”

- History of Blacks o Charles Houston said discrimination in education is symbolic of all discrimination

that negroes face in all aspects of lifeo 80% of all illiterates were black peopleo Charles Houston brought suit when a Black man was not admitted to Maryland

Law School—the only law school in the stateo Seven states were forced to equalize teachers salaries—Black teachers saw their

salaries double- Gaines v. Canada

o P was Black and was not admitted to University of Missouri Law School. The law said he would have to go a Black law school in Missouri, and the state would pay his tuition in an out-of-state school, while an all-Black law school was built. The Court held that the state was required to build a law school for legal education for Blacks equal to that of whites.

o The decision here was in the USSC, so it would apply to all of the states

Brown v. Board of Education (Brown I and II)- Brown I:

o separate would never be equal

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o four desegregation lawsuits (from all different states) were consolidated by the USSC into one important case

all of the Black students want to be allowed admission to the white schools in their community after they had been denied admission based on the segregation laws from “separate but equal”

education is the most important function of state and local governments and it must be made available on equal terms to all races

the USSC looked at the effect of segregation in schools on public education and found that it has a detrimental effect on colored students

segregation deprives the children of the minority group of equal educational opportunities

o Thurgood Marshall argued for the blackso Unanimous decision—“to separate children solely because of their race generates

a feeling of inferiority that will affect their hearts and minds in a way that will never be undone.”

o The USSC found that segregated public schools are not “equal” and cannot be made “equal,” therefore the doctrine of separate but equal violates the EP Clause

- Brown IIo school authorities have the primary responsibility for implementing the ruling in

Brown b/c of their proximity to local conditions, the local courts should figure out

how to implement the Brown rule P’s should be let into public schools as soon as practicable on a

nondiscriminatory basis D’s are required to make a prompt and reasonable start toward full

compliance with Brown I If they need extra time, they have the burden of showing a good

reason for taking so long integrating the schools Schools should do whatever is necessary

o remedies should proceed “with all deliberate speed”o *part of the Civil Rights Act conditioned federal funds for education on states’

compliance with desegregation- Green v. County School Board- where a school district had about a 50% Black

population, two schools and little residential segregation. They adopted a “freedom of choice” plan allowing any child to choose what school he/she wanted to go to. No white children chose to go to the formerly Black school and all of the Black kids remained there. The Court held that this plan did not adequately desegregate the schools. While it might work sometimes, there were other plans, such as rezoning, that would be more likely to accomplish a non-racial school. This was the first case that the USSC attached explicit importance to the effect of the desegregation measures, and not merely to the intent with which those measures were enacted. Once segregation existed, good intentions by the school board were not sufficient—they must implement affirmative measures were needed to bring about a non-racial system.

- Swann- the Court found that federal courts cannot order a school board to adjust the racial composition of any of its schools (no matter how great the racial imbalance is b/t schools) unless there was officially maintained (de jure intentional) segregation. The

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Court approved busing as a means of bringing about desegregation. But, a busing scheme would not be upheld if the time or distance of travel is so great as to risk either the heath of the children or significantly impinge on the educational process.

The Road after Brown- the southern states upheld segregation laws, despite the USSC decision- KKK terrorized anyone who tried to follow the laws- 1955: beaches were integrated- 1956: buses were integrated- 1958: parks- 1960: lunch counters are integrated- 1964: Congress passes the Civil Rights Act- 1965: Congress passes the Voting Rights Act

Interracial Families- racial classifications (as in the VA statute), especially suspect in criminal statutes, should

be subjected to the “most rigid scrutiny” and if they are upheld, they must be shown to be necessary to the accomplishment of some permissible state objective

- restricting the freedom to marry solely because of racial classifications violates the central meaning of equal protection

o Loving v. VA- where the Court struck down a statute that prohibited interracial marriages. The state argued that since the law punishes both Black and White people, it is not racially discriminatory. The Court says “equal application” is not enough to survive an equal protection challenge. The clear and central purpose of the 14th amendment was to eliminate all official state sources of racial discrimination in the states. VA’s marriage law rests solely on distinctions drawn according to race—the statutes proscribe generally accepted conduct if engaged in by members of different races. There is no legitimate overriding purpose independent of racial discrimination which justifies this classification. VA only prohibits interracial marriages involving white people, so it is clear that its purpose was to maintain White Supremacy.

o Palmore v. Sidoti- where the state took away custody of a woman’s daughter b/c she remarried a Black man, saying that the daughter would suffer from social problems. The Court found that the custody ruling was based solely on race, and it would have been different if the woman had remarried a White man. The Court used strict scrutiny, and found that the child’s best interest was definitely a compelling governmental interest. However, while social prejudices are an issue, and there would be a possibility of social injury to the child, they are not permissible considerations for removal of the child. The law cannot, directly or indirectly, give effect to private biases. The effects of racial prejudice, real or not, cannot justify a racial classification removing an infant child form the custody of its natural mother found to be an appropriate person to have such custody.

3. Racially Discriminatory Purpose and Effect

Discrimination in the administration of law

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- A facially neutral law can still impose purposeful discrimination b/c of the manner of its administration

- Even if the law is facially neutral, if it is applied and administered by public authority in a discriminatory way, which makes unjust and illegal discriminations between persons in similar circumstances, it violates the Constitution

- A legislative act may not violate equal protection solely b/c of the motivations of the men who voted for it (just b/c the voters voted for the law to create segregation, it does not affect the actual legislative purpose when the law was created)

o Palmer v. Thompson- the Court did not find discriminatory motivation when the city of Jackson, MS did not act unconstitutionally in closing its public swimming pools after they had been ordered desegregated. There was some evidence that the closing was b/c of opposition to integration, but there was also evidence that the city just thought the pools couldn’t be operated safety and economically on an integrated basis. The Court found it was difficult, if not impossible, to determine the “dominant” motivation behind the choices of a group of legislators. There was also no affirmative duty to operate swimming pools.

- If P’s can show that the law has been administered in a way that is disadvantageous to the suspect class, P’s do not have to show a legislative discriminatory motive

Discriminatory Purpose is Required- A law that is facially neutral, and serves ends that are within the government’s power to

pursue is not invalid solely b/c it affects a greater proportion of one race than another- must be an intent to discriminate by the legislature to uphold an EP claim—there must be

a discriminatory purpose- Disproportionate effect is a factor, but it is not alone sufficient to show the discriminatory

intent forbidden by the constitution o Washington v. Davis- where Black applicants who failed a police officer test (on

verbal and writing ability) claimed that the test was “discriminatory in effect”, but they did not claim that the discrimination was purposeful. A higher percentage of Blacks failed the tests than Whites, but the Court found that the test was reasonably related to the requirements of the police force and it was not designed to discriminate against otherwise qualified Blacks. The Court refused to hold claims of racial discrimination to the same standard at Title VII claims. The central purpose of equal protection is to prevent official conduct from discriminating on the basis of race. But a law is not unconstitutional solely b/c it has a racially disproportionate impact. An essential element of de jure segregation is a “current condition of segregation resulting from intentional state action.” A statute otherwise neutral on its face must not be applied so as to discriminate on the basis of race. A discriminatory purpose may often be inferred from the “totality of the relevant facts” (Ex. when the law will bear more heavily on one race than another). The Court thinks that proof of discriminatory racial purpose is necessary. Just because more Blacks failed the test, it does not warrant the conclusion that it is a purposeful device to discriminate against Negroes. The test is neutral on its face and rationally may be said to serve a purpose the Gov. is constitutionally empowered to pursue.

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Title VII- Congress provided that when hiring practices disqualifying a substantially disproportionate number of blacks are challenged, discriminatory purpose doesn’t need to be proved

The Court decides not to adopt this high standard for equal protection.o NOTE: had this been a Title VII case, the consequence would have been very

different b/c discriminatory effect was enough (there would be no need to show discriminatory intent), but constitutional law says there must be a discriminatory purpose

- Official action will not be held unconstitutional solely b/c it results in a racially disproportionate impact

Discriminatory Purpose Doesn’t Need to Be the Sole Purpose of the Law- a discriminatory purpose is required for strict scrutiny, but that purpose doesn’t need to

be the sole purpose of the statute—the purpose can just be a “motivating factor” in the legislature’s decision to enact the statute.

o Arlington Heights v. Metropolitan Housing Corp- where a Chicago city refused to grant a request to rezone certain property from a single-family to a multiple-family classification, which would allow low and moderate income tenants to move in. The Court emphasized the effect rather than purpose and upheld the refusal. One place to start looking for the purpose behind the law is in the historical background. The Court found no racially discriminatory intent.

- NOTE: finding the purpose only causes the case to be reviewed under strict scrutiny- After the P shows a discriminatory purpose, the burden shifts to the D to show that the

law would have been passed anyway, even without that intent—if D is successful, the requirement of discriminatory purpose is not satisfied

Requirements to Invoke Strict Scrutiny:- 1. the discrimination must be purposeful- 2. it must be of an especially invidious or prejudicial sort (generally it must be on the

basis of race or national origin)

The Purpose and Effect Distinction- Legislation which, for a racially discriminatory purpose, modifies the political process to

make certain types of political action more difficult, will be subject to strict scrutinyo Hunter v. Erickson- where, after the city council adopted a fair housing ordinance,

the voters amended the city charter to prohibit any ordinance dealing with racial discrimination in housing, unless it was approved by the voters. The USSC said that the charter violated EP, on the theory that it was an explicitly racial classification, AND clearly made it more difficult to enact anti-discrimination ordinances than other types of ordinances.

- States have attempted to limit the use of busing as a judicially-ordered desegregation toolo Washington v. Seattle School District- where Seattle enacted a plan to undo de

facto segregation in its schools by the use of mandatory busing. The State then enacted a law preventing local school districts from implementing busing plans (unless the court ordered it). The Court held that the state laws violated EP b/c the reallocation of governmental decision-making power must be done in a

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racially-neutral manner. B/c the mandatory busing involved racial issues, the state could not take the power to decide busing matters away from local school boards, while leaving them with control over other matters. The state law was unconstitutional b/c it made it “more difficult for certain racial and religious minorities … to achieve legislation that is in their interest.”

- Desegregation laws and remedies may be repealed at any time, but the power to make decisions about racially-linked issues may not be reallocated in a way that makes it harder for minorities to obtain favorable disposition of such issues.

o Crawford v. LA Board of Education- the Court upheld an amendment to the state constitution which had the effect of preventing judicially-ordered busing in cases of de facto segregation. The CA Constitution was amended to prevent state courts from ordering mandatory busing unless a federal court would order such busing to redress a violation of the federal EP Clause (unless the segregation was found to be de jure). The Court found that CA went further in enforcing the right to racially-balanced schools than the U.S. Constitution required, should be free to return to the federal standard. A state is always permitted to modify an anti-discrimination or desegregation law.

4. Affirmative Action and Race Preferences- benign/reverse discrimination- attempts to remedy past discrimination (affirmative

action)

Preferential Admissions (Bakke, Gruter & Gratz):- when a state’s distribution of benefits or imposition of burdens hinges on the person’s

color of skin or ancestry, that individual in entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest

o Regents of University of CA v. Bakke- (J. Powell) where a white student was denied admission to UC Davis medical school b/c they wanted to assure the admission of a certain number of minority students, thereby limiting the number of white students. Out of 100 spots, they left 16 open for only minorities. Other minority students were let in with GPA’s and MCAT scores lower than P’s. The Court found that the special admissions program was undeniably a classification based on race and used strict scrutiny. The compelling state interest was integrating the medical profession, increasing the number of physicians willing to help minorities and creating a more diverse student body. However, the Court found that this was not the least intrusive means of achieving these goals. The need to obtain “the educational benefits that flow from an ethnically-diverse student body is clearly a constitutionally permissible goal, and this could be pursued by considering an applicant’s minority status as one factor in the admissions process. But it was not necessary (and therefore not permissible) to use a quota system.

They compare it to the Harvard program where being a minority tips the balance in your favor a little bit, but only as much as being from out of state, living on a farm, etc. It is deemed a plus in the applicant’s admission file, but it doesn’t insulate the individual from comparison with

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all the other candidates for the available seats. This treated applicants as individuals in the admissions process.

o Universities may make individualized decisions in which ethnic background plays a part, as long as the university proceeds on an individualized, case-by-case basis. The State has a substantial interest that may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. The Court found this admissions program violated equal protection.

o Three Views in Bakke (there was no majority opinion in this case—there were six separate opinions)

1. Dissent—Brennan, White, Marshall, and Blackmum thought the plan was constitutional.

Whites as a class do not have the “indicia of suspectness” Should not have been analyzed under strict scrutiny

2. Another group only focused on the statutory violations (Title VI) and didn’t even reach the constitutionality of the plan

3. Justice Powell was the swing vote. He agreed that the Univ. should be able to take into account an

applicant being a minority as part of the admission process, but he thought a racial quota system (the explicit reservation of places which could only be filled by minorities), was unconstitutional—RACE CAN BE A FACTOR

Justice Powell believed that any racial or ethnic classification, regardless of class against which it is directed or the reason for it, must be subjected to strict scrutiny. He conceded that white males are not a “discrete and insular minority,” this has never been required for applying strict scrutiny.

- Race-conscious admissions measures will receive strict scrutiny- The pursuit of diversity in the student body can be a compelling objective- Public universities and colleges may explicitly consider minority racial status as a factor

that increases the odds of admission (using a “one-student-at-a-time” evaluation) is sufficiently narrowly tailored

- They cannot award “points” for minority status, or otherwise pursue mechanical quota-like schemes (they are not narrowly tailored)—they must instead evaluate each candidate, and use race as merely one factor among others.

o Grutter v. Bollinger- upheld University of Michigan Law School’s “race as among many” approach. The school tried to accomplish diversity by subjectively adding race into the mix when a student’s entire application was considered. Admission was based on grades, LSATs, and many other variables (letters of rec, quality of undergrad, difficulty of undergrad classes taken, extent to which student would contribute to diversity at the school). One type of diversity considered was: “racial and ethnic diversity with special reference to the inclusion of students from groups which have historically been discriminated against (like Blacks, Mexicans, and Native Americans), who w/o this commitment might not be represented in our student body in meaningful numbers.” The compelling interest was to enroll a “critical mass” of underrepresented minority students. They said they wanted a number that encouraged “underrepresented minority students to

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participate in the classroom and not feel isolated.” The school said there was no particular number or percentage that constituted a “critical mass.” They said that the consideration of race significantly increased the numbers of minorities who attended.

J. O’Connor applied strict scrutiny and found that the school’s method was sufficiently narrowly tailored to achieve the compelling governmental interest in maintaining diversity. She spoke about Powell’s opinion in Bakke, which “approved the university’s use of race for only one interest: ‘the attainment of a diverse student body’.” Student body diversity is a compelling state interest that can justify the use of race in university admissions. Diversity itself was essential to the school’s educational mission and the Court had a tradition of giving a degree of deference to a university’s academic decisions

Critical mass of minority students- the school said this would: promote a “cross-racial understanding,” break down racial stereotypes, and promote livelier and more-enlightening classroom discussion b/c of the variety of backgrounds. O’Connor said this would extend to society as a whole.

Quotas- she agreed w/ Powell that schools could not use a quota system (a program where a certain number or proportion of opportunities are reserved exclusively for certain minority groups). UM Law school’s approach was not a quota system—it was more like the Harvard system mentioned in Bakke. Like Harvard, it used race as a “plus factor,” while still having minimum goals for minority enrollment, even though they had no specific number in mind. This was proved by the variation in numbers per year of underrepresented minorities students in each class.

Individualized review- O’Connor said UM did an individualized review of each applicant’s file, noting each way an individual would contribute to a diverse educational environment. The school did not give any bonuses based on race or ethnicity.

Less Burdensome alternatives- narrow tailoring does not required exhaustion of every conceivable race-neutral alternative—only those alternatives that would serve the governmental interest “about as well.” Here, there were no proposed alternatives that were workable

o Dissent in Gruter: Rehnquist, Kennedy, Scalia and Thomas

Rehnquist- said the means are not narrowly tailored to the “critical mass” goal b/c there are a disproportionate number of each racial group (ex. 100 Blacks, but only 15 Native Americans and 50 Hispanics), therefore they really weren’t obtaining a “critical mass” of each minority group. The alleged goal of a “critical mass” was a sham. He said the real goal was “racial balancing”

Kennedy- he didn’t think they were using strict scrutiny. He felt the school was using “Critical mass” to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.

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Thomas/Scalia- they did not feel that it was a “compelling governmental interest”—he said they only had an aesthetic interest, so that the school had a certain appearance. He says racial benefits hurt minorities, instead of help them, by setting them up for failure and making them feel as if they don’t have a right to be there. Blacks can achieve success in every aspect of American life without the meddling of universities

Scalia- said putting together a “critical mass” would extend to other contexts, ending in bad results—it will convey general lessons in good citizenship and lead to never-ending litigation.

o Gratz v. Bollinger- (decided on the same day as Grutter) the Court struck down UM’s undergrad scheme, where members of underrepresented racial and ethnic groups got an automatic 20 points of the 100 points needed for admission. The effect of these 20 points was that almost all qualified underrepresented minority applicant was admitted. The points for other qualities, such as extraordinary artistic talent, were only 5 points.

Rehnquist’s majority opinion found this point system to be unconstitutional b/c it was not narrowly tailored to achieve the school’s interest in educational diversity. He said it did not meet the requirement of the Bakke decision. Race could be deemed a plus, but was not to be decisive—each applicant had to be evaluated as an individual, and each characteristic of that applicant was to be considered. The automatic reward of 20 points had the effect of making race decisive for virtually every minimally qualified underrepresented minority applicant. It didn’t matter that if an applicant came close to the requisite points, he/she would be flagged for individualized review—this was not a remedy. He also said that the large number of applicants to UM was not an excuse to forego an individualized approach. Administrative convenience is enough in rational basis scrutiny, but not for strict scrutiny.

Distinguish from Grutter: far fewer points were available for diversity characteristics other than race (ex. leadership, personal achievement, and geographic diversity). The point system ensured that the diversity contributions of applicants could not be individually assessed. In the law school cases, the admissions officers were able to make judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class.

- NOTE: the big difference b/t Grutter and Gratz was that in Grutter, the school did not give any bonuses based on race or ethnicity.

- strict scrutiny must be applied regardless of whether the racial classification is benign or invidious (an attempt by Whites to hurt minorities)

o City of Richmond v. Croson

Significance of Bakke, Grutter, and Gratz- the core principle of affirmative action to ensure a racially-diverse class is preserved

o as long as admissions officers individually evaluate the contribution that each applicant will make toward a diverse class (not just racially diverse), the fact that

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membership in an underrepresented class is given great weight will not constitute a violation of EP

- a “mechanical” system will not be upheld (ex. one using points, where points are automatically given for membership in a minority group)

- administrative convenience will not justify dispensing with an individualized review

Race Preferences in Public Employment and Contracting- minority set-aside programs, where the state sets aside a fixed amount for minority-

owned businesses, are subject to strict scrutinyo Fullilove- where the court upheld a law setting aside 10% of federal funds for

local public works programs for minority-owned businesses. Congress doesn’t always have to act in a purely colorblind manner. This law was seen as a remedy that serves the compelling gov. interest of eradicating the continuing effects of past discrimination. Unlike the UC in Bakke, Congress is allowed to make the past-discrimination findings necessary to sustain the program. They wanted to make sure that minority businesses don’t slip through the cracks.

Dissent- says the rule against invidious discrimination shouldn’t be different when the people injured are not members of a racial minority

- Any governmental action that is explicitly race-based must be “necessary” to achieve a “compelling governmental interest”

- Race-based affirmative action plans were subject to strict scrutiny o Croson- where the city enacted a law plan requiring contractors on construction

contracts to give at least 30% of the dollar amount of the contract to minority businesses (those owned by 51% or more minorities). The plan was supposed to overcome the effects of past discrimination. There was evidence that there was racial discrimination in the construction business. J. O’Connor found that strict scrutiny was necessary b/c there is no way to tell which are benign/remedial and which are really motivated by illegitimate notions of racial inferiority (ex. this law was created by a city council that was mostly Black). Also, the favored group might end up being harmed since they might feel they are incompetent and can’t succeed on their own. This law must be struck down b/c there was not enough evidence of past discrimination to warrant the law, which was said to serve a remedial purpose. The Court found that the city wasn’t specific enough—there was no direct evidence that the city itself had ever discriminated in regards to construction. There was evidence that there were few contracts awards to Blacks.

Dissent- Marshall and Blackmun said the Court should have applied intermediate level scrutiny b/c the law was serving a remedial purpose.

- All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny

o Adarand- where P bid for a construction contract and his was the lowest, but the general contractor took a bid from a minority-owned firm that qualified under federal regulations as a disadvantaged business enterprise. If general contractors gave bids to these disadvantaged ones, they would get a financial incentive. A firm owned by a minority was automatically disadvantaged. The Court wanted to dispel the notion that “strict scrutiny is strict in theory, but fatal in fact.”

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Factors used in Race in Employment:- burden on non-minorities- firing v. hiring- being fired is a bigger deal than not being hired in the first place- limited in duration (won’t go on forever)

o is the program appropriately limited, so that it will not last longer than the discriminatory effect it is designed to eliminate

- don’t want minority businesses to slip through the cracks- consideration of the use of racial-neutral means to increase minority participation in the

business

Race Preferences in Electoral Districting- when election districts are drawn by state legislatures, they almost always take race into

account, just like they take account of party affiliation, ethnic breakdown and other demographics

- P will succeed with a reverse discrimination claim by showing:o 1. that the lines were drawn with the purpose and effect of disadvantaging the

group of which P is a part; ORo 2. that race was a predominant factor in how the district lines were drawn

- if P can show that the districting scheme was “so irrational on its face that it can only be understood as an effort to segregate voters into separate voting districts b/c of the their race,” strict scrutiny will be used

o Shaw v. Reno- where the district was oddly-shaped and non-compact. Using a long, narrow, irregularly shaped district was the only way to get a majority-Black district in North Carolina b/c the black population was so spread out. The district was 160 miles long and only as wide as a freeway. The drawing of these lines would have a socially-divisive impact on votes, resembling political apartheid AND racially-motivated districts send the message that the elected officials’ primary obligation is to represent only the members of the racially dominating group, rather than the whole constituency.

- A bizarre shape is not a requirement for a racial-gerrymandering claim, and Ps only have to prove that race was the predominant factor in the drawing of the district lines for the Courts to use strict scrutiny

- States can be race conscious when drawing lines, as long as race is not the predominant factor

D. Other Classifications: Sex, Illegitimacy, Alienage, Disability, Sexual Orientation- certain quasi-suspect classes warrant “heightened scrutiny” (intermediate scrutiny)- sex, alienage, illegitimacy

Determination of a suspect class: (indicia of suspectness)- 1. discrete and insular (not obvious)

o A minority which is politically powerless and has been historically discriminated against)

- 2. history of societal discrimination (includes job discrimination, housing, etc.)- 3. immutable characteristics (unchangeable trait)- 4. political powerlessness

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- *all of these came from slavery

Argument for Women Being A Suspect Class:- in regards to #4, women didn’t have the right to vote until after slaves did- they have been discriminated against historically - like Blacks, they were awarded a “place” in society- there was the same myth for Negroes and women—the “contented woman” and the

“contented Negro” did not want to have suffrage or other civil rights and equal opportunities

- men often don’t like to work “under” women and/or Negroes- both women and Blacks have limitations on education and were confined to traditional

jobs (barred from supervisory positions)- both were deprived of political importance

1. Sex Discrimination - early laws:

o were always to protect womeno woman’s job was to be wife and mothero the laws all assumed that men were more competent to do certain tasks o they assume women are dependent

- classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives

o Craig v. Boren- where there was an Oklahoma statute which forbade the sale of 3.2% beer (supposedly non-intoxicating) to males under 21, and to females under 18. The state claimed that 18-20 year old males (2%) were arrested more for DUIs than girls (.18%) at that age. The Court struck down the law, saying it denied equal protection to men aged 18-20. The percentage was so small that maleness could not serve as a “proxy” for drinking and driving; the beer was supposedly non-alcoholic; the law only preventing the sale of the beer, not the drinking of the beer; and fit b/t the means and the end was too tenuous to be considered “substantially related.” The Court formulated a third, middle level of judicial scrutiny.

- intermediate scrutiny- any gender-based classification must be “substantially related” to an “important governmental issue” (USED FOR STATUTES AGAINST MEN AND WOMEN)

- the means must be “substantially related” to the important governmental ends- In the area of military affairs, Congress’ authority is extremely broad, and the courts

should show even greater-than-unusual deference to Congress.o Rostker v. Goldberg- where the Court upheld the male-only draft registration.

The court viewed this as a case involving military necessity. The policy of both Congress and the armed services had been that women should not serve in combat. Here, the issue was whether the policy against the use of women in combat was sufficient to allow Congress to decline to require registration of women. The Court held that this was not a violation of EP and applied the middle level scrutiny. Since the purpose of the draft registration was to facilitate eventual

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drafting of combat troops, and since only men were eligible for combat at the time, the male only registration scheme was “closely related” to the purpose of the statute. Men and women were not similarly situated in this context.

Burden on Government:- whenever we have heightened scrutiny (intermediate scrutiny), which is anything above

rational basis, the burden shifts and the government has to explain itself

Remedying Past Discrimination - If the statute is attempting to remedy past discrimination against women, both prongs of

the intermediate-level test will be satisfied- It is not enough that the statute is intended to improve the position of women—it must

come in a narrowly-defined sphere where women have been previously disadvantagedo Mississippi Univ. for Women v. Hogan- where a nursing school allowed men to

audit classes, but not take them for credit. Hogan was denied admission to the nursing school, which was located in his town. He would have had to far to get to another nursing school. The Court struck down the women-only policy, applying the intermediate level of scrutiny. O’Connor added that an “exceedingly persuasive justification” must be shown for any sex-based classification—this statute did not survive this. The school would have to show that women were actually disadvantaged in the field of nursing, not just in education in general. We don’t usually think of women as being discriminated in the nursing profession. (If this was a different school, we might apply the same test and get a different result).

- NOTE: now the defender’s of a gender-based scheme must show an “exceedingly persuasive justification” for the scheme

Laws Based on Stereotypes- laws based on faulty generalizations or stereotypes about the differing abilities and

interests of the two sexes are likely to be struck downo U.S. v. VA- where the state of VA had an academy, Virginia Military Institute that

was men-only. The school’s purpose was to develop “citizen-soldiers.” The state’s defense was that its rigorous physical training, its technique of depriving soldiers of privacy, and its adversative approach (where students are treated like a marine boot camp), would have to materially change if the school was made co-ed. The state tried to create a less rigorous program for women at an all-women college. The Court (J. Ginsberg) voted (7-1) to strike down the rule, saying it violated women’s EP rights and the program at the other school was not sufficiently comparable to the VMI program. The Court said that “gender based classifications” must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females. Classifications cannot be used to perpetuate the legal, social and economic inferiority of women. There were clearly some women who would want to join the program despite its rigorous characteristics. The women-only program at the other school did not constitute an adequate remedy for the EP violation—it would not give its students the same intense military and leadership training; it would not have the same

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quality faculty. The Court also used the “exceedingly persuasive justification” standard to analyze the school rule.

o Scalia’s Dissent in U.S. v. VA- Scalia thought they should have used rational basis (he said the majority changed the “intermediate level of review” and it was an “unacknowledged adoption of what amounts to strict scrutiny.” He said it was too strong and the effect would be to end single-sex public education. “The function of this court is to preserve our society’s values, not revise them.”—it is a tradition to have government funded military schools for boys. Only a small amount of women would want to attend anyway.

- NOTE: in gender based classifications, the “exceedingly persuasive justification” for the rule, must describe the actual state purpose—it can’t be merely a pretext for the state action

Discriminatory Purpose is Required - in sex discriminatory cases (as in race ones), the P has to prove a discriminatory

purpose/intent, not just a discriminatory effect- Massachusetts v. Feeney- where a woman challenged a civil service statute that gave an

absolute hiring preference to any veteran who obtained a passing score on a competitive exam. At that time, over 98% of veterans were men, so the preference operated to benefit men and was detrimental to women. The Court held that the statute was not intentionally gender-based. Only purposeful discrimination can give rise to EP protection. It was not enough that the legislature may have foreseen that the statute would operate to women’s extreme detriment—P must show that the disparate effect was part of their intention when enacting the statute.

ALWAYS ASK: are we righting past wrongs or reinforcing damaging stereotypes?

Struck Down v. UpheldStruck Down:

- Frontiero- laws that said military husband had to prove his wife was dependent on him- Wiesenfeld- law that said no insurance benefits to widowers with kids- Goldfarb- law that said widower must prove he was dependent on his wife to get benefits

Upheld:- Kahn- law where there was a property tax exemption for widows, but not widowers- Webster- more favorable competition for female of old age benefits- Sches v. Ballard- longer promotion time for women in the Navy.

2. Other Classifications Arguably Warranting Heightened Scrutiny (intermediate level)

Intermediate Level Scrutiny (these are considered quasi-suspect class):- illegitimacy- gender

Rational Basis- disability

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- age- poverty- mental retardation

Age- young and old- it is an immutable characteristic—you can’t get any younger- young—age, drinking, employment, voting, marriage, housing- this is not a quasi-suspect class

Mental Retardation- the USSC will not treat mental retardation as a quasi-suspect class

o City of Cleburne v. Cleburne Living Center- where TX denied a special use permit for the operation of a group home for the mentally retarded. The Court would not apply intermediate scrutiny b/c it found that mental retardation was not a quasi-suspect class. However, the court analyzed it more rigorously than most rational basis cases.

Sexual Orientation- Intent to harm unpopular groups is not a legitimate state objective - disapproval of gay lifestyles is not a legitimate objective

o Romer v. Evans- where the Court struck down a CO constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays or lesbians. The law basically banned any anti-discrimination laws. (ex. laws that prohibited housing discrimination against gays in housing , employment, education, etc.). This failed the rational basis test b/c (1) there was no legit state interest being served; AND (2) the means chosen by the state were not rationally related to the (possibly legitimate) interest that the state asserted. The state tried to say that it just puts gays and lesbians in the same category as everybody else, but the Court found that the law actually singled them out for worse treatment than others and made them unequal to everyone else.

o Scalia’s dissent- accused the majority of taking sides in the culture wars and said the ruling is inconsistent with Bowers.

Voting:- fundamental rights- exceptions:

o literacy requirement are constitutionally permissible (but they have been outlawed by federal law)

o people in prison don’t have a right to vote

Laws about Allocation of Government Funds:

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- it gets rational basis -

E. The “Fundamental Interests” Strand of Equal Protection Strict Scrutiny

Three Main Fundamental Rights:- 1. right to vote- 2. the right to use the courts- 3. the right of interstate migration - NOTE: welfare and education are not fundamental rights

1. Voting Rights- States may exercise substantial control over the right to vote- all laws that violate a fundamental right will be automatically subject to strict scrutiny- the imposition of a poll tax, no matter how minor, creates an inequality in the right to

vote that violates EP o Harper v. VA- where the court invalidated a law imposing a $1.50 poll tax on

anyone who wished to vote after applying strict scrutiny.- The Court will be suspicious of state claims that only a certain group is “interested” in the

electiono Kramer v. Union Free School District- the Court struck down a NY statute

limiting school district elections to persons who either (1) owned or leased property within the district OR (2) were parents of children in the district’s public schools. The court will apply strict scrutiny to any law that had the effect of giving the franchise to some residents, but not others. Here, even if the goal of limiting elections to those “interested” was legit, the means chosen was an inadequate way of reaching that goal.

- Any racial discrimination in voting will be subject to strict scrutinyo Rice v. Cayatano- the HI constitution says that the trustees can only be elected

solely by people who are descendants of the original Native Hawaiians who inhabited the island before the English settlers arrived. The Court found that this provision constitutes racial discrimination in votes and violated the 15th amendment.

- Not having one’s vote diluted is a fundamental right—one person, one voteo Reynolds v. Sims- where the population had grown so much that P’s vote was

diluted based on how the districts were drawn. This had a negative effect on P’s vote, in contrast with those in other districts, by giving it less weight in the election. This violates EP and was struck down. The Court found that the divergence from one person, one vote can only be slight. The court should deal with political gerrymandering cases.

2. Economic Barriers and Civil Litigation- wealth by itself is not enough to trigger strict scrutiny, but where the state imposes fees

which have the effect of preventing the poor from gaining access to a significant constitutionally protected right, the court will sometimes apply strict scrutiny

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o Boddie- where the parties seeking divorce were welfare recipients who could not afford the $60 filing fee. The Court said that access to the court was part of one’s due process rights b/c (1) marriage has a fundamental place in our society’s values; and (2) the state has a monopoly on the means to dissolve a marriage—there is no other way to divorce.

o Kras- the Court did not think the right to bankruptcy was as fundamental as was the right to divorce.

o Ortwein- the Court held that indigents could be forced to pay a $25 filing fee in order to gain judicial review of the termination of welfare benefits. The Court found that welfare payments were in the area of economics and social welfare, and therefore had far less constitutional significance than the interest in divorce. Welfare is a privilege, not a right.

o Little- D was an indigent against whom a paternity action had been brought. The Court held that he was entitled to a state-subsidized blood grouping test to determine whether he was the child’s father.

o MLB- the court held that, where a child’s father successfully sued to have the child’s mother’s parental rights terminated so the child could be adopted by the child’s step-mom, the state had to pay for a trial transcript to be used by the mother on appeal. The interest of parents in the relationship with their children is fundamental.

- Where the proceeding is civil, an indigent has no general right to fee relief. - But an indigent does have an EP right to fee relief in:

o actions for divorceo determinations of paternity; ANDo terminations of parental rights

- the state’s need for revenue to offset costs satisfies the rationality requirement (two exceptions):

o 1. the right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license

o 2. access to the judicial process in cases criminal or family law related (as mentioned above) cannot turn on the ability to pay

3. Refusal to Extend Fundamental Interest Analysis to Food, Shelter and Education- education is not a fundamental right- poverty is not a suspect class

o San Antonio v. Rodriguez- where Ps complained b/c the TX system of funding public schools was based on property taxes, so those areas with higher property taxes spent more on education. The residents in the poor areas had none of the indicia of suspectness—the class was only unified by the common factor of living in districts that have less taxable wealth. Members of the class had not been subjected to a history of unequal treatment or political powerlessness as to require protection from the political process. Most importantly, the right to education is not guaranteed in the Constitution. The court applied rational basis and upheld the law.

o Plyler v. Doe- where a TX statute denied funds to local school districts for education of illegal-alien children and allowed school districts to deny free public

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education to such children. The court applied a hybrid test (was the discrimination rational to further a substantial goal?), after determining that education was not a fundamental right. However, they would treat denial of education to a U.S. citizen as an infringement of a fundamental right. Illegal aliens are not a suspect class b/c their undocumented status is not an immutable characteristic. (however, the children had no choice in this matter, so the Court argues it could be an immutable characteristic). The court said that this law denied the children of EP b/c the state interests in deterring illegal immigration, and reserving public education for those who are likely to reside in the state later, were not substantial enough. (This case leaves the door open for education being a fundamental right).

o NOTE: In Rodriguez, the Court found that education was not a right guaranteed in the Constitution. On the other hand, in Plyler, the Court stressed that public education was not merely “some governmental benefit indistinguishable from other forms of social welfare legislation”—it was vital to achieve one of the goals of the EP clause: “the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.”

F. Requirement of State Action- sometimes even a private individual’s actions can be state action- public function doctrine:

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o if a private individual or group is entrusted by the state to perform functions that are traditionally viewed as governmental in nature, the private individual becomes an agent of the state and therefore, his actions must obey the Constitution

- “State involvement” doctrine- a private individual’s conduct may be transformed into “state action” if the state is heavily involved in those activities (the nexus is so great that it should be considered state action)

o Examples: Where the state commands/requires the private person’s action The state encourages the private parties actions The state and the private actor have a symbiotic or mutually beneficial

relationship The state is entangled with the private actor (they act together to carry out

the action being challenged)

Governmental Entities - actions by a city, county, municipally-owned utility- federal government- government-owned companies

o ex. Amtrak- b/c it was created by the U.S., the President appoints its board of directors

A. Public Function Approach

Public functions?- the entire political process is a public function and the political parties are acting as

agents of the state- operation of the town was a public function

o Marsh v. Alabama- the Court said the town had a public downtown shopping area, which was accessible to and freely used by outsiders

- Operation of a park is a public functiono Evans v. Newton- where they operated it only for whites, the Court found that this

violated the 14th amendment (this was based on the city’s day-to-day involvement with the park)

o NOTE: purely private action of an ordinary park might no longer be held to be a public function

- Operation of a privately owned utility licensed and regulated by the state was not considered performance of a public function

o Jackson v. Metropolitan- the Court said the public function analysis is applicable only where a private entity exercises powers traditionally exclusively reserved to the State

- Operation of a nursing home is not a public function o Blum v. Yaretsky

- Private schools, even where the money comes from public grants, are not public functions

o Rendell-Baker v. Kohn- b/c provision of education was not exclusively the prerogative of the state

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Two Elements of the Public Function Doctrine:- 1. the function is one which is traditionally the exclusive prerogative of the state; AND- 2. some statute or state constitutional provision in fact requires the state to perform

the function

B. “Nexus—The Significance of State Involvement- this relates to the conduct of the government, not to the type of activity carried out by the

private actor- this focuses on the points of contact between the state and the private actor

Commandment- the state can become liable by commanding the private party’s conduct- judicial enforcement can constitute state action

o Shelley v. Kramer- where the neighbors had made a covenant not to sell their houses to anyone but whites for 50 years. When Blacks bought homes from other whites, who disregarded the covenants, the White neighbors sued to enforce the covenant. The Court held that judicial enforcement of the restrictive covenant would constitute state action, and would therefore violate the 14th amendment.

- Even giving money damages to enforce discrimination would be state actiono Barrows v. Jackson- this would violate the 14th amendment b/c it would deter

sellers from selling to Blacks- A restaurant owner cannot even use state trespass laws to back up his order to have

Black protesters leave without invoking state action- The mere fact that a state grants a license to an entity does not transform the entity’s

conduct into state actiono Moose Lodge- where private club wouldn’t serve black guest

- NOTE: when dealing with licenses, note that the state only gives out so many, so they are seen to condone the activity

- Mere acquiescence by the state of the private individual’s actions is not enough - White only restaurant leased from the state was found to be state action- When an activity in done in a public place, Lloyd v. Tanner, says that the activity must

have a relation to some purpose for which the public place was used (ex. anti-war leaf-lets in the mall had nothing to do with the mall’s business, so preventing them from doing it was not state action

Symbiotic Relationship- does the gov. get something out of it?

o If yes, then state action

NOTE: if there are other alternatives to D’s actions, note them—if there are none, then it is a stronger case

III. Freedom of Speech

ANALYSIS:

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- 1. Does the regulation affect some fundamental right?o Speech or conduct?

If it expressive conduct, go to O’Brien Test If it is regulating conduct, use rational basis

There is no 1st amendment protection, but like any law, it cannot be arbitrary or capricious (must be rationally based)

- 2. Is it pure speech or symbolic speech?- 3. Public forum or Non-Public Forum?

o Does it regulate speech in a particular place?- 4. Is the speech protected or unprotected?

o If protected speech, is the regulation content-based or content-neutral? If content based, use strict scrutiny

Did the gov. have a compelling governmental interest? Are the means narrowly tailored to that interest or are there

less burdensome alternatives? Content-neutral- intermediate scrutiny

Time, place and mannero If unprotected speech, go to rational basis

Cannot be arbitrary and capricious

ALWAYS LOOK FOR:- two types of speech: pure and symbolic

o ex. flag burning is symbolico ex. speaking is pure

- vagueness and overbreadth- notions of under and overinclusiveness

A. Unprotected Speech- if the speech falls into an unprotected category, then the gov. can completely ban the

expression - *anything not falling into one of these 5 categories is “protected speech”

o Therefore any governmental ban on them is presumed to be unconstitutionalo It will be measured by strict scrutiny

Unprotected Categories:- 1. advocacy of imminent lawless behavior- 2. fighting words/hostile audience- 3. obscenity

o Three part test: 1. prurient interest- the average person must find that the work as a whole

appeals to the sexual interest 2. sexual conduct- the work must describe or depict in a “patently

offensive way” particular types of sexual conduct defined by state law; AND

3. lacks value- the work taken as a whole must lack “serious literary, artistic, political or scientific value”

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o NOTE: the mere private possession of obscene material by an adult may not be made criminal

- 4. child porn- 5. injury to reputation (libel, slander, hate speech)

o defamation

1. Advocating Illegal Conduct- gov. may ban speech that advocates imminent illegal conduct- although it is necessary to have public discussion of ideas, certain types of political

speech will pose a threat to our system of democracy

Old Test- “Clear and Present Danger Test”- the speech could be punished as an attempt to commit an illegal act if the speech created

a “clear and present danger” that the illegal act would come about (even if it never occurred)

o Schenck v. U.S.- this presented the question of whether people could oppose WWI. D’s sent two draftees documents opposing the war and urging the draftees not to submit to intimidation. The documents did not explicitly advocate illegal resistance to the draft—it merely advocated peaceful measures, such as petitioning for repeal of an Act. The Court still found that D’s could be convicted, based on the timing of the documents. Had this been peacetime, it would have been different (possibly constitutionally protected) but based on the surrounding circumstances, they created a clear and present danger that they would bring about the substantive evils that Congress was trying to prevent.

- NOTE: the D’s in Schenck , Frohwerk, Debs and Abrams were all convicted without any showing that the words of any of them actually brought about a substantial evil

Modern Standard: Brandenburg Test - This is a much narrower view, so it gives greater protection to free speech- Must greater First Amendment Protection - The speech must urge people into action- Now the speech must be intended and likely to produce the lawless action

o Brandenburg v. Ohio- where D was a leader of a KKK group who was advocating white supremacy and was charged with violating a statute that forbade the advocacy of crime or violence as a means of accomplishing industrial or political reform. The Court struck down the statute and mad a new test

- Brandenburg Test:o the speech must be:o 1. directed to(intended to) incite or produce imminent lawless action; ANDo 2. likely to incite or produce that imminent lawless action

- Three Key Words: Direct, Imminent and Likely- Ex. if the speech is convincing people to do something far in the future, it won’t be

imminent so it would fail the test

2. Fighting Words v. Hostile Audiences

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- Any words that are likely to make the person to whom they are addressed commit an act of violence, probably against the speaker

o distinguish from advocating illegal actions- here the speech also induces violence by the listeners, but here the violence will be directed at the speaker, instead of undertaken in sympathy with the speaker’s cause

- typically, a speaker’s provocative message so outrages the audience that some listeners are likely to resort to violence in response

o this can happen with a large audience, or just one on one- anything that constitutes “fighting words” can be flatly banned or punished by the state

o they have no protection b/c they are unlikely to be expressing any ideas- Chaplinsky v. New Hampshire- established the fighting words doctrine

o Where D was a Jehovah’s witness who called the city marshall and “goddamn racketeer” and a “fascist” and then got into a fight with him on the sidewalk. He was convicted under a statute (declaring no person shall say any offensive word to anyone on a street or public place). Conviction was upheld b/c the words were likely to provoke the average person to retaliate.

- NOTE: this was the last time a fighting words statute was upheld, since then they have all been struck down

Offensive language- the issue is whether the gov. can prevent or punish words that listeners will find offensive

even though these words are not likely to lead to actual violence- the answer is generally no, unless substantial privacy interests are at stake

o ex. when there is a captive audience - Cantwell- where a Jehovah’s witness played a record saying all organized religions were

instruments of Satan, especially Catholics. The Court reversed the conviction, even though the words were seen as “offensive.”

- Profanity- generally statements cannot be punished solely because they are profaneo Distinguish profane from obscene- obscene is profane words with sexually erotic

undertones- Profane, offensive language is still protected speech

o Cohen v. CA- Cohen wore a jacket that said fuck the draft in the hall of an LA Courthouse where women and children were present. He was convicted of violating a statute prohibiting the “intentional disturbing of the peace of any person by offensive conduct.” The Court (J. Harlan) reversed the conviction, finding that the jacket was not obscene—there was no erotic psychic stimulation that could come from the jacket. The Court held it was not a captive audience b/c viewers could have averted their eyes. There was also no evidence that any unwilling viewer was in fact offended.

This would have been different if the jacket had read “end the draft,” so it was not based on the content.

Also, there was emotional content—there was no way that Cohen could have expressed his feeling equally well by using more polite language.

o NOTE: this changed Chaplinsky by holding that profanity was sometimes protected speech

- TX v. Johnson- the Court found that burning the flag was not fighting words.

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o No reasonable on-looker would have regarded D’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to fight. Therefore, the state’s interest in maintaining order is not implicated here.

Elements of Fighting Word (from Cohen v. CA)- directed at “the person of the hearer”- an individual present could reasonably have regarded the words as a direct personal insult- exercise of state police power to prevent the speaker from intentionally provoking a given

group to hostile reaction- showing that anyone was violently aroused- intention of speaker to create violent reaction or disorder

NOTE: the regulation on speech can sometimes be both content-based and time, place, and manner (ex. disturbing the peace can be T,P & M and content-based)

Hostile Audiences - when the audience is provoked by the form of the message or the message itself- The court addresses these with balancing- “stirring to anger” is not enough (not enough if the words just make the listener angry)

b/c controversial issues are very valuable, and should invite disputeo Terminiello v. Chicago- the Court reversed the conviction of a speaker who

denounced religious and political groups outside of an auditorium to an angry audience. The Court found that the function of free speech is to invite disputes, and sometimes this may induce conditions of unrest or dissatisfaction or stir people to anger. Unless it is likely to produce lawless activity, it should be upheld.

- the police must control the angry crowd instead of arresting the speaker, if they have the physical ability to do so

o Cox v. LA- where police separated 75 picketers in front of the courthouse from 300 people in an angry crowd. The court said the police could have controlled the angry crowd.

- Specific words or acts are necessary—it is not sufficient if the police just have generalized fears that there may be violence

o Edwards v. SC- where 187 black students demonstrated in front of the State House in front of a crowd of 300. The court reversed their conviction b/c there was no violence of specific threat of violence from either the demonstrators or the crowd; also, there was enough police present to control the crowd if necessary

3. Injury to Reputation and Sensibility - defamatory language is not protected - there are currently 1st amendment limits placed on states when making their laws

regarding libel and slandero If P is a public official or public figure, he may only win a defamation suit against

D for a statement relating to P’s official conduct if P can prove that the statement

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was made with actual malice—knowledge that it was false or reckless disregard for the truth

TRUTH IS AN AFFIRMATIVE DEFENSE- State defamation rules are limited to 1st amendment principles—debate on public issues

must be left wide openo NY v. Sullivan- where P was a public official who oversaw the police dept. He

said that D libeled him by printing an ad saying that the police had attempted to terrorize MLK and his followers. Even though the newspaper thought they were right, there was a strict liability standard, so they were fined because it was false. The Court overturned the fine b/c they said the ad involved criticism of government policy, not merely statements about an individual.

Public Figures- included Univ. of Georgia football coach- included prominent retired AG- Three Classes of Public Figures:

o 1. those who have general fame and notoriety in the communityo 2. those who have voluntarily injected themselves into a public controversy (they

are only public figures with respect to that controversy)o 3. involuntary public figures who are directly affected by the actions of public

officials (such as a D in a criminal trial)

Private Figures- if P is not a public figure, there is no constitutional requirement that he prove that the D

knew his statement to be false or recklessly disregarded the trutho Gertz- where P was a well-known lawyer who represented the family of a child

who was killed by a cop. A magazine said he was framing the cop and was a communist. The Court held that he was only famous in this case, and was not generally a public figure, therefore, a general negligence standard applied. He wasn’t even a public figure in this case b/c he played a minor role in it.

o NOTE: there must be an actual injury to recover damages- So now the NY Times standard only applies to public figures—not private individuals

Intentional Infliction of Emotional Distress- If P is a public official or public figure, he may only win an IIED suit against a publisher

for a statement if P can prove that the statement was made with actual malice—knowledge that it was false or reckless disregard for the truth (NY Times standard)

o Hustler v. Falwell- Hustler portrayed Rev. Jerry Falwell as a drunk who had sex with his mother. The Court held that Falwell could not recover for IIED, b/c “even when the speaker or writer is motivated by hatred or ill will, his expression is protected by the First amendment” Political parody and satire is an important element of free speech.

Invasion of Privacy- when a P claims that he has been presented to the public in a misleading way, he does not

have to show actual harm—that his reputation was actually damaged

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- the Court hasn’t decided whether the NY Times standard applies to both private and public figures, or just public figures

- court did not hold a newspaper liable for publishing a rape victim’s name, but they did not rule on whether the NY Times standard applies

4. Hate Speech and Where It Fits into Unprotected Speech- hate speech- directed against racial minorities, women, homosexuals, and other

traditionally disfavored groups- generally gov. cannot prevent or punish words on the grounds that listeners might find

them offensive - states have to be careful because if they single out bias-motivated speech, it will be a

content-based regulationo a ban on speech or conduct intended to or likely to incite anger or violence based

solely on particular listed topics or motives (race, color, religion or gender hatred) is impermissibly content-based

o NOTE: this is true even if all of the speech or conduct banned is unprotected

Three Area where A State CAN Ban Hate Speech- 1. worst examples- a state may impose a content-based ban on particular instances of

unprotected speech if the ban forbids only the very worst examples illustrating the very reason the particular class of speech is unprotected

o Ex. the most obscene fighting wordso RAV v. St Paul- D and other teenagers burned a cross in the yard of a black family

in the middle of the night. They were convicted by a statute that outlawed “placing a symbol, object, appellation, characterization, etc. (including swastika, burning cross) that one knows will arouse, anger, alarm or resentment in others. The Court found that the law violated the First Amendment, b/c the regulation was impermissibly content-based b/c it “prohibits speech solely on the basis of the subjects the speech addresses.” Even when gov. is regulating an “unprotected” category of speech, it may not do so in a content-based manner.” There were adequate content neutral alternatives to accomplish the gov’s compelling interest in safeguarding the rights of traditionally disfavored groups.

- 2. penalty enhancement- the state can identify and punish more severely those criminal acts that happen to be motivated by hate

o Ex. where the Black group beat up a little boy because he was white, so they got harsher penalty (increasing the two year penalty to seven years)

o Distinguish from RAV- RAV was speech—this was conduct - 3. all intimidating acts- a state may select a particular type of expressive act (ex. cross-

burning) and punish all instances where that act is done with a purpose of intimidating or threatening someone, even those the state doesn’t punish the other types of intimidating or threatening acts.

o VA v. Black- the state made it a crime to burn a cross in a public place with the intention of intimidating a person.

Thomas dissents- says cross burning is conduct, not speech

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MY VOTE: I would allow the statutes because although the D’s are expressing their viewpoints toward a political or social issue, words can be very powerful and I think free speech needs to be curtailed when it has the danger to severely hurt others

B. Commercial Speech- category of speech—one that advertises or merely proposes a commercial transaction

o Used to be “unprotected” but now it gets First Amendment protectiono the protection is more limited than protection given to non-commercial speech

ex. False or deceptive commercial speech or speech proposing an illegal transaction may be forbidden by the gov.

- the Court recognizes a right to receive information under the 1st amendmento VA Pharmacy Board- the Court invalidated a law that pharmacists could not

advertise the prices of medications b/c it was unprofessional. The Court found that consumers are entitled to this information, regardless of whether the information might be harmful.

o Linmark Associates v. Willingboro- the Court unanimously held that a racially-integrated town’s prohibition on real estate “For Sale” and “Sold” signs violated the First Amendment, despite the town’s interest in stopping “white flight.” The Court found that the ordinance was an attempt to protect the public by keeping them in ignorance. The town claimed that the information about sales might cause residents to act “irrationally,” but the Court said if they accepted this then they would have to permit every locality in the country to suppress any facts that reflect poorly on the locality. (no compelling governmental interest). The signs give information that is very important to the residents and can have an effect on one of their most important decisions—where to live and raise their families.

o You can’t protect people from information just because of the way they might use the information

- content-based restrictions on truthful commercial speech get only mid-level scrutinyo to regulate commercial speech, the gov. must be:

1. directly advancing 2. a substantial governmental interest 3. in a way that is reasonably tailored to achieve the gov.’s objective

Regulation of Lawyers- regulating the way lawyers get clients- states may not ban all newspaper advertising of legal services

o Bates v. State Bar of AZ- where the Court upheld the right of a legal clinic to offer routine services at “very reasonable fees” in newspaper ads. The state interest was protecting the image of the profession, saying attorney ads were “inherently misleading” and they stir up litigation. The Court found these

- Some in-person solicitation of clients can be banned (ambulance chasing)o Ohralik v. Ohio State Bar- where the lawyer was soliciting women who had been

victims of accidental sterilization. The Court held that a state may forbid in-person solicitation for pecuniary gain.

- States may not completely ban targeted direct mail advertising of legal services

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- Where targeted direct mail would be likely to cause direct mental anguish to the recipient, the state may be able to ban it, or at least delay it—the state can required a 30-day cooling off period before lawyers may send targeted direct mail solicitation to tort victims and their relatives following an accident or disaster

o FL Bar v. Went For It,Inc.- the Court found that while the free-speech rights of tort lawyers were being restricted, those rights were outweighed by the state interest in: (1) the interest of victims and relatives in being spared a sales pitch while the wounds are still open; and (2) the interest of the bar in forestalling the public’s outrage over this kind of conduct.

o Dissent: said that the law hurts tort victims b/c it deprives them of info that could be critical to their right to make a claim for compensation

- Main test for whether a regulation violates the First Amendmento Central Hudson- where NY banned all “promotional advertising” by electric

utilities. The gov. interest was to conserve energy. The state said that the advertising was intended to stimulate the purchase of utility services. Here, the ban was more restrictive than necessary, so it was struck down.

FOUR PART TEST-Central Hudson (to determine whether the regulation violates the First Amendment)

- 1. protected speech- courts must determine whether the commercial speech is protected at all by the 1st amendment.

o All commercial speech receives partial protection except: 1. misleading speech; and 2. speech which concerns unlawful activity

- 2. substantial gov. interest- whether the gov. interest in support of the regulation is substantial

o If NO, the regulation will be struck down without further inquiry- 3. interest directly advanced- does the regulation directly advance the gov. interest?

o If NO, the regulation will be struck down without further inquiry- 4. means-end fit- the regulation can’t be more extensive than is necessary to serve the

gov. interest.o There can’t be any less burdensome alternatives or it will be struck down

Advertisement of Lawful, But Harmful, Products- the Court allowed Puerto Rico to ban ads for casino gambling aimed at Puerto Ricans

o Posada de Puerto Rico- the state wanted to aim the ads at tourists and kept the local gambling at a minimum. The court used the Central Hudson test and upheld the law. The means were “no more extensive than necessary to serve the gov. interest.”

- Ban on alcohol content was struck down by the Court, using the Central Hudson testo Rubin v. Coors Brewing Co.

- If the gov.’s sole objective is that people consume less of the product, that will not hold up—here, the burden is on the gov. to show evidence that the limitation will “significantly reduce consumption”

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- If the objective is to reduce consumption by minors, the gov. will have to show that its means are very narrowly tailored, so there is no interference with the rights of adults to obtain the information

NOTE: the overbreadth doctrine does not apply to commercial speech

C. How the Government Restricts Free Speech

1. Content-Based Restrictions- this is one that burdens expression by aiming at the communicative impact of the

expression- the gov. is restricting the speech because of its content—the ideas or information

contained in it OR its general subject matter- Content based = strict scrutiny- Regulations that are content-based get greater scrutiny b/c they are view-point based- NOTE: If speech regulation is content based, it makes no difference whether the

expression is in a public forum—strict scrutiny will be used

Subject Matter- the gov. cannot show favoritism b/t differing points of view on a particular subject- the state may not place a particular issue off-limits while allowing other subjects to be

discussedo Simon v. Schuster- the Court invalidated a law requiring proceeds from a

murderer’s tell-all book to put in an account for the victim’s family, saying this was content-based (used strict scrutiny)

2. Content neutral- when the gov is aiming at something other than the communicative impact, even if it has

a burdensome effect- still has an adverse effect on the communicative opportunity

o ex.- where the city forbids the distribution of leaflets to prevent littering. The city doesn’t care about what info is in the leaflets; even blank leaflets would be prohibited. This is struck down b/c a less burdensome alternative exists.

- NOTE: if a listener who couldn’t understand English would still be harmed by the speech or conduct, then the regulation will be content-neutral

Standard of review for content neutral:- A gov. can justify content-neutral regulations on speech, only if it can show:

o The regulations are narrowly tailored to serve a “substantial or significant” governmental interest; AND

o Cannot close adequate alternative channels for communication

Symbolic Conduct- where someone expresses their views by behavior instead of words

o ex. burning the flag, burning a draft card- certain non-verbal action is protected by the first amendment

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- conduct combining “speech” and “non-speech” elements could be regulated if four elements are met

o U.S. v. O’Brien- where D and several others burned their draft cards in public to protest the Vietnam War. They were convicted of violating the draft laws, which make it illegal to burn or destroy a draft card. D said it was symbolic speech protected by the 1st amendment. But, the Court found this can be regulated if four elements are met. The Court found all of these elements were satisfied, so the regulation was upheld

O’Brien Test- 1. the regulation was within the constitutional powers of the gov.- 2. the reg. furthered an important or substantial gov. interest (what was the motivation of

the legislature in enacting this regulation)- 3. the interest was unrelated to the suppression of free expression; AND- 4. the incidental restriction on 1st amendment freedoms was no greater than essential to

the furtherance of the governmental interest

NOTE: to determine whether something is conduct or speech, look at which element is predominant (is it the action or the expression that is most predominant in the conduct)

Flag Desecration - most states have laws against desecrating the flag to preserve the flag as a symbol of

national unity- if these statutes are applied to some flag-related conduct and not others, based on the

actor’s message, the Court will presumably apply strict scrutiny, and will probably strike the statute

o ex. TX v. Johnson- D was convicted of burning the flag b/c it seriously offended people. The Court held that the TX statute violated the First Amendment as applied to D’s acts. They determined that the prosecution of D was directly related to expression. The majority didn’t believe that the Court was really trying to prevent breaches of the peace, b/c none actually occurred or was threatened by this flag burning. The need to protect the flag as a symbol of national unity would only be implicated if the D had a contrary message associated with it; therefore this objective was directly related to expression. They applied strict scrutiny and found that while the interests were compelling, the means were not necessary and less burdensome alternatives existed.

Nude Dancing- the Court finds nude dancing to be expressive conduct

o Barnes v. Glen Theater- the Court upheld an Indiana statute banning public nudity. The law required go-go dancers to wear pasties and G-strings. The Court found it was content-neutral, and that it did not violate first amendment. Rehnquist applied the O’Brien test. He found the purpose was to promote order and morality. It was content-neutral because it banned public nudity all across the board. (Scalia thought this was pure conduct, undeserving of a first amendment analysis).

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- Secondary effects doctrine- the argument is that the state has no objection to the act itself, they only have a problem with the effects of the actions.

o Here, the gov. will argue that they were merely trying to eliminate the undesirable non-content related consequences of an expressive activity (to prevent increased crime, declining property values, public intoxication, prostitution etc.). If the Court agrees, the regulation will be found to be content-neutral.

- NOTE: Erie expanded the secondary effects doctrine to provide that the gov. did not have to have evidence of the secondary effects

3. Time, Place and Manner- Expression, whether oral or written or symbolized by conduct, is subject to reasonable

time, place and manner restrictions- gov. often tries to regulate the time, place and manner

o they will use this as a defense when a regulation is challenged - the regulation based on a TP&M restriction has to be:

o 1. content neutral o 2. narrowly tailored to serve a significant governmental interest; ANDo 3. it must “leave open alternative channels” for communicating the info

- Licensing o There are special limits on when gov. can require a license or permit before

expressive conduct takes placeo The licensing scheme must set forth the grounds for denying the permit narrowly

and specifically, so that the control by officials is not too broado NOTE: you can challenge the “unfettered discretion” of the gov.

- Offensive language- language that is offensive is protected by the First amendment

4. Public Forum- THIS IS ONLY USED WHEN THE REGULATION IS CONTENT-NEUTRAL- When expression takes place in a public forum, the regulation will only be upheld if:

o 1. it is narrowly drawn o 2. to achieve a significant governmental interest; ANDo 3. the government leaves alternative channels open

- When expression takes place in a non-public forum, the regulation merely has to be rationally related to some legitimate governmental objective

True Public Forums- streets- sidewalks- parks- places in which a public gov. meeting takes place

Limited Public Forums- locations where the gov. has decided to open the place to particular open-expression

purposeso ex. where the city allows classrooms to be used at night for speecheso ex. a theater where any group can put on productions

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- these have the same rules as true public forums, except that gov. can decide to close the forum at any point

Non-public Forums- other public places can still be considered “non-public forums

o ex. airports- still use TP&M rules, but drops the level of scrutiny- the state can regulate in a content neutral manner, unless the regulation’s interference

with expression is substantial o if it is substantial interference, the regulation is subject to the three prong test for

public forums (see above)- if it is not substantial interference, government regulation merely has to be rationally

related to some legitimate gov. objective, as long as alternative channels are left open- NOTE: if there is an alternate channel of communication, then the regulation will only be

seen as insubstantial interference

Private Forums- a speaker has no first amendment right to speak at a person’s private property to deliver

his messageo ex. at a private shopping center

Sleeping in Parks- a ban on sleeping in parks does not violate the First Amendment rights of the

demonstrators that wanted to show the plight of homeless peopleo Clark v. Community for Non-Violence-the Court found this was symbolic

expression and was content-neutral. They applied the O’Brien test and found the regulation was valid. The substantial interest was maintaining the parks in D.C. in an attractive and intact condition

D. Freedom of the Press- the Court has almost always denied special treatment for the press- sometimes the gov. will seek info from the press (that has not been published yet) as part

of its law enforcement efforts- the press is not entitled to any special 1st amendment protection against what would

otherwise be proper compulsory disclosure of information obtained during news gathering

o Branzburg v. Hayes- where the Court held that requiring newsmen to testify before grand juries concerning information obtained from confidential sources during newsgathering does not violate the 1st amendment. The journalists said that this would deter future sources from giving info to the press. The Court held that the press does not have a special privilege and has the same duty as any other citizen to disclose info about a crime to a grand jury.

o The court applied a balancing test—and held that even if an impairment of confidential sources did occur, the governmental interest in prosecuting crimes took precedence over the public interest in future news about a crime from undisclosed sources

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- they also have to abide by search warrants to search the publisher’s premises like anyone else—no special privilege exists

o Zurcher

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IV. Religion Clauses

The Religion Clauses: Free Exercise and Establishment - 1st amendment—Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereofo this goes back to the reasons the settlers came to America—to get away from

someone telling them what religion to belong to- Theses two parts sometimes conflict- Sometimes the gov. abridges the free exercise of religion

o Ex. deliberately prohibiting or disadvantaging a religious sect or its central practices

- While such laws are rare in contemporary society, the Court subjects them to the strictest scrutiny

- The problem comes when a state grants an exemption to one religion, then it might be violating the establishment provision by giving them a preference

- The Court has held free exercise to require some religious exemptions from generally applicable laws, but has narrowed the scope of such compelled exemptions in recent cases.

A. Free Exercise Clause- this flatly forbids the outlawing of any religious belief- 1st amendment applies to the states through the 14th amendment

Purpose of the Law- when the purpose of a gov. action is to negatively affect a particular types of conduct

because it is dictated by religion, this act will be held to strict scrutinyo Church of the Lukumi Babalu Aye- where the religion practiced Santeria and held

animal sacrifices. The city in FL made it illegal to sacrifice any animal within the city. The ordinances were written so that their sole effect would be to ban sacrifices by Santeria practitioners (ex. it exempted Kosher slaughters by saying it was allowed if the primary purpose was for food consumption). The Court found that the purpose of the statute was to suppress the rituals of the Santeria religion, so they struck down the ordinance. Justice Kennedy found that the laws were not neutral, since they were clearly enacted to disfavor a particular religion

- where the statute is not motivated by intent to interfere with religiously-related conduct, but it has that effect, the court will apply heightened scrutiny

o 1. the state must show that the regulation pursues an important governmental goal; AND

o 2. that an exemption would substantially hinder the fulfillment of that goal

Neutral Laws Adversely Affecting Religion- usually laws are facially neutral and not targeted a particular religion, but they have a

disproportionately adverse impact on religious practitioners o Reynolds v. U.S.- where the court upheld a law against bigamy after it was

challenged by a Mormon. The Court found that if they allowed practices like this,

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it would make doctrines of religious belief superior to the law of the land. (gave the example of human sacrifices)

- Braunfeld v. Brown- where there was a state law requiring stores to close on Sundays. P was an Orthodox Jew who took Saturdays off, so he challenged the law b/c it meant he had to close his shop for the whole weekend. The Court upheld the law.

MODERN APPROACH TO NEUTRAL LAW CASES:- the state will only uphold “neutral” laws with the unintended effect of burdening

religious beliefs when they are the least restrictive means of accomplishing a compelling state objective

- where the state’s objective could be upheld just as well by giving an exemption to those people who are burdened, such an exemption must be given

o Sherbert v. Verner- where P was fired b/c she was unwilling to work Saturdays due to her religion’s day of rest. The state refused to give her unemployment benefits. The Supreme Court held that the state’s refusal violated the free exercise clause. The law forced her to choose b/t receiving benefits and following her religion. This was also discriminatory b/c Sunday worshippers were not put to this choice. Also, the state was not able to show that an exemption for her would prevent them from achieving their objective—making sure benefits only go to those who were involuntarily employed.

- Where interference with religious freedom exists, the state can’t just show there are no less burdensome alternatives for achieving its goals—if granting an exemption will almost fully achieve these goals, the state will be required to grant it even though it is a slight sacrifice to its objectives

o WI v. Yoder- where the Court invalidated WI’s refusal to exempt 14 and 15 y/o Amish students from the requirement of attending school until 16. The state interest is that we all have an interest in having educated children (minimize ignorance and reliance on state resources). The Amish don’t send their children past 14 b/c they think it will endanger the Amish Community (religious belief). The Court always must consider whether it is essential to the state’s objectives. Two more years of school is not that essential. The state has no evidence of children becoming burdens on society.

Notes:- Court upheld law that refused to exempt the Amish from paying social security taxes on

wages earned- Upheld a law denying tax-exempt status to a university that wouldn’t allow anyone but

Whites—compelling gov. interest was preventing racism- Upheld law prohibiting wearing a Yarmulke in the military

Criminal Laws- if the gov. act is a generally applicable criminal prohibition, and the burden on religion is

merely incidental there is no violation of the free exercise clause (regardless of the degree of burden on an individual’s religious beliefs)

o Employment Division v. Smith- where Oregon criminalized the drug peyote and refused to give exemptions to American Indians who use it as part of their

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religious rituals. The Court upheld the law and said that no balancing of the state’s interest with the burden on religious beliefs was required. All that was required was that the law against peyote was generally applicable and not motivated by a gov. desire to affect religion.

o Dissent: thought strict scrutiny should have been applied- NOTE: this only applies to law that have the unintentional effect of burdening religion

B. Establishment Clause- purpose it to put a wall between church and state-

Lemon Test:- to be upheld, government action must:

o 1. the law must have a secular purpose Courts are divided on whether this means any secular purpose;

o 2. principle effect must neither advance or inhibit religion; ANDo 3. must not create excessive entanglement between gov. and religion

Overview:- the reading of prayers in school will almost always be unconstitutional - curriculum cannot be designed to further religion, at the expense of non-religion- the reference to God in the pledge of allegiance does not violate the establishment clause

b/c it is “merely a reference to our political heritage”- prayer before football game was a violation of Est. Clause

Religious Instruction- McCollum v. Board of Education- the public school allowed privately-employed religion

teachers to conduct classes on the school’s premises, during school hours. Attendance was voluntary, but students who didn’t go studied secular subjects elsewhere. The Court struck down this plan on the theory that the program helped religious groups obtain pupils, through the use the state’s public school

- Zorach v. Clauson- the Court upheld a program where students who wanted to participate were released to receive religious training away from the campus.

Prayer- Where school officials can be said to be sponsoring the religious message, a prayer will

be found to be a violation of the Establishment Clause- Even a completely non-denominational prayer will violate the first amendment

o Lee v. Weisman- where prayer was part of graduation and they told the rabbi to make it non-sectarian. The prayers were non-denominational and thanked God for many things. The Court held that the school coerced children into listening and it was unreasonable to say that they didn’t have to be there. The fact that it was non-sectarian was irrelevant.

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