BARBRI CON LAW II

I. FEDERALISM
Existence of national government & 50 states, necessarily limits state/local government power.

1. Preemption
Supremacy Clause - Art. 6: Con & laws/treaties made pursuant to supreme law of land. In
conflict between federal law & state/local law, federal wins. State/local law is preempted.
a. Express preemption: Fed statute “fed law exclusive in field”, state/local law = preempted.
i. Anytime congress is authorized to act, it can say that federal law is exclusive.
 Ex. Fed meat labeling act—only congress may regulate labels/grades of meat
b. Implied Preemption. Fed statute silent on preemption, but it may be implied:
i. Mutually exclusive fed & state laws
 Ex. Fed agency: must have “ingredients on labels”, state prohibits.
ii. State/local law impedes achievement of federal objective
 Ex: “File labor grievance w/ NLRB no state unemployment benefits” NLRB’s
point is to encourage filing, if FL denies benefits impedes fed objective
iii. Congress evidences plenary power/clear intent by leg history to preempt state/local law
 Ex: SC: Congress evidenced clear intent for fed immigration law to wholly
occupy field. Attempts by state/local gov to regulate immigration=preempt
 Toll v. Moreno (1982)- SC strikes down policy granting preferential tuition to
students with in-state status. Congress did not bar such aliens from acquiring
domicile. State’s decision to deny in-state status, solely on basis of fed
immigration status, is burden not contemplated by Congress in admitting to US
c. States may not tax or regulate federal gov activity
i. McCulloch v. Maryland, SC declared unconstitutional state tax on bank of US.
Marshall: power to tax = power to destroy. If states could tax the federal government
they could tax it out of existence. Fed gov immune to state gov taxation or regulation

2. Privileges and Immunities Clause

a. P&I-Article IV - No state may deprive citizens of other states the privileges &
immunities accorded its own citizens (in terms of earning a living)
b. P&I- 14th Amendment (only use for right to travel) (Thomas concurrence – maybe should
be revisited). “No state should deprive any citizen of the P&I of US Citizenship.”
i. Slaughterhouse Cases (1873) P&I no longer basis for applying Bill of rights to states
ii. Rediscovered in 1999 in Saenz v. Roe: Under P & I a CA statute limiting welfare
benefits to new residents in their 1st year violates fundamental right of interstate travel

3. Application of the Bill of Rights to the States

a. Bill of rights (protection of liberties, specifically first 8 amendments of the constitution)
technically applies directly only to the federal government, not to state/local ones.
b. 5th amend (federal) & Bill of Rights deemed fundamental have been applied to state/local
gov thru incorporation of DPC of 14th amendment
c. One by one SC has found almost every bill to apply to states/local except the following 4:
i. 3rd amend right to not have soldiers quartered in a person’s home
ii. 5th amend right to grand jury indictment in criminal cases
iii. 7th amend right to jury trial in civil cases
iv. 8th amend right against excess of fines
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 Case Facts Incorp? Holding
Barons v Mayor City diverted silt onto
Not a “taking.” Bill of rights only applies to fed gov.
& City of Balt Baron’s land making No
No longer law
(1833) it unusable
State appealed &
Palko v CT (1937) No Double jeopardy ≠ fundamental right. Later overruled
retried criminal D
Prosecutor Reversible error at fed level b/c of 5th but not here.
Adamson v
commented on D’s No Black & Douglas Dissent – purpose of 14th to
California (1947)
refusal to testify incorporate all of 5th
th
Duncan v Judge gave man light Reversed. 6 amendment guarantee to jury trial is
Yes
Louisiana (1968) sentence for battery incorporated in 14th amendment to include states
nd
DC v Heller 2 amendment gives individuals right to own guns for
DC banned guns Yes
(2008) personal security and a city cannot ban this
nd
2 amendment is incorporated & applies to state &
McDonald v City local govs who have right to restrict who has guns
Yes
of Chicago (2010) (ex. excluding felony/mental illness) & where guns
are allowed (ex. not school/airport)

II. C’s Protection of Individual Liberties/Civil Rights by Private Actors

STATE ACTION
1. State Action Doctrine: Is there government action?
a. Constitution only applies to gov & its officials (state, local, federal) not private people
2. Exception? Even if no gov action, amendments may still apply to private conduct if:
a. Public Functions: Private entity performing task traditionally exclusively done by gov
b. Entanglement: Gov affirmatively authorizes, encourages, facilitates unC conduct then
a. Gov must stop what it’s doing OR
b. Private conduct must comply w/ Constitution.
3. EP or DP claim? What level of Scrutiny (depends on class or right)?

No State Action

Case Facts Reason

14th amend only prohibits state action not
CRA 1875: illegal to discrim at private, 13th for slavery doesn’t apply
Civil Rights Cases (1883)
inns, transport, theatre etc. Harlan Dissent: “Badge” racial inferiority
pervades & becomes just like slavery
Moose Lodge (1972) Private club w/ liquor license No symbiotic relat. Even if license very benefic
Even monopoly/extensive state reg doesn’t
Jackson v Met Ed Co (74) Terminated customer no hearing
convert private action to state for utilities. histr
Flagg Bros. (1978) Sale of stored good upon non$ State enactment of UCC=acquiesc not encourage
Prvt nursing home moves No PDP violation b/c state financial support &
Blum v Yaretsky (1982)
Medicaid patients to ↓ $ facil acquiescence is insufficient. Need encourage
Private school 90% gov funded Mere gov subsidies insufficient. Sig history of
Baker v Kohn (1982) 100% kids from PS fire teacher private school not exclusively provided by
for criticizing principal state.
DeShaney v Winnebago Failure to intervene after report DPC doesn’t require state to protect life,
(1989) of child abuse liberty, property from private actors

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 Judicial Involvement As State Action

Case Facts Reason

Shelley v Kraemer Judicial enforcement of If state or officers are involved can b state
(1948) racially restrictive covenant action. Under this everything can be
Penn v Trust Bd (1957) Will left $ 4 white orphan school Will infused w/ state action if enforced
Allowing housing proposition
Reitman (1967) State is encouraging racial discrimination
14 which permits discrim
Creditor had clerk issued writ a) deprivation caused by state exercise b)
Lugar (1982)
of attachmnt executed by sherif party charged w/ deprivation is state actor

Yes Public Function

Case Facts Reason

Political party determines who
Smith v Allwright (1944) Elections is exclusively public function
can vote in primary
Private town refused Jehova’s Running town = traditionally gov function.
Marsh v Alabama (1946)
W from distributing lit. So must comply w/ C
Selecting candidate/vesting in
Terry v Adams (1953) Elections is exclusively public function
political party that exclude Blk
Even though privately operated, city
Evans v Newton (1966) Trust park for Whites only
maintains + service is municipal in nature.
Impossible to fulfill trust conditions.
Evans v Abney (1970) Trust park reverted to heirs
Violates no fed rights b/c impact Blk = Wt

Yes Entanglement

Case Facts Reason

Symbiotic relationship. Gov benefit from
Burton v Wilmington Private lessee of state discrim. private revenue which benefits from
Parking Authrty (1961) Flag, restaurant in state bldng customers. Robust view. Good law but
today don't find licensing/reg sufficient
Edmonson (1991) Preemptory racial challenges Entanglement: Court bldg, subpoena witnes
Private org regulating school Entanglement: 84% PS in Assn, meet on gov
Brentwood Academy (2001)
sports unduly influence rcrtmnt property, voter PS admin back to Burton

CONGRESSIONAL POWER TO REGULATE PRIVATE PARTIES

1. Typically, cannot regulate private actors under these amend, must find state action
a. 5th amend regulates fed gov
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 b. 14th amend incorporates 5th & regulates state/local gov
2. However congress can regulate private actors by statute in certain cases under
a. 13th amend prohibits slavery & badges of slavery. Authorizes congress to enact
enforcement laws. Broad authority to prohibit private race discrim.
b. 15th amend ensuring the right to vote
c. Federal statutes to fix limits in C
i. Allowing regulation of crime (may include discrim reg)
ii. Allowing regulation of conspiracy (may include discrim reg)
iii. Allowing regulation of state actors
3. Pursuant to section 5 of the 14th amendment congress cannot regulate private behavior.
a. Section 5 authorizes congress to regulate state and local governments.

Case Facts Regulatable? Reason

Policeman falsely arrested & Congress is allowed to enforc18 USC
Screws v US (1945) Yes
beat black man to death to fill limit of C to regulate state actors.
Crim conspiracy to deprive Criminal statutes may incorporate EP
US v Guest (1966) Yes
Blks use public facility/travel if clear
Court can regulate racial discrim
Griffin, Scott, Bray Civil or criminal conspiracy Yes
conspiracies (others too if state actor)
Congress has determined that free
Jones v Alfred Mayer Alfred Mayer refused to sell
Yes exercise of property right = essential to
(1968) house to Jones b/c he is black
abolition of badge of slavery 13th amnd
Runyon (1976) Private school racial exclusin Yes 42 USC prohibits school discrim

Can Congress Legislate Substantively Or Only Remedially Under 5th Amend?

Case Facts Result Reason
Lassiter v Bd Indiscriminately applied
Upheld
Elections (1959) literacy test for voting
1965 VRA: rebuttable
SC v Katzenbach Congress may enforce 15th
presump that literacy test used Upheld
(1966) amendment
to discrim
Congress may enact specific
NY law requires Eng
Katzenbach v remedies it deems necessary &
proficiency, VRA said 6th
Morgan (1966) VRA proper to uphold 15th needn’t wait 4
grade completion in Puerto
Upheld specific finding. a) legitimate ends
Rico no denial for
b) means aren’t prohibited by &
proficiency
are consistent w/ letter/spirit of C
Congress may enforce freedom of
religion under enforcement power of
Use of RFRA to overturn 14th but not change or define right.
City of Boerne (1997) Overturned
permit denial 4 church Remedy s/t OK, but here means
(RFRA) out of proportion & no
record of religious bigotry
Congress enacted Violence Congress cannot proscribe discrim
US v Morrison (1994) Overturned
Against Women Act by individuals, only state
LEVEL OF SCRUTINY
Scrutiny Means Ends Burden of Proof Case
Legitimate: Any
Rational Rationally related Challenger
conceivable
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 Important: Only McCollaugh
Intermediate Substantially related Government
actual v Maryland
Necessary. Narrowly
Compelling:
Strict tailored, least Government Saenz v. Roe
Only actual
restrictive alternative

III. Individual Liberties and Fundamental Rights

PROCEDURAL DUE PROCESS of 14th AMENDMENT

Procedures (i.e. notice, hearing etc) gov must follow when removing life, liberty or property.
Always ask: a) Is there a deprivation? b) If so, what procedures are required?
1. Liberty - loss of significant freedom provided by constitution or statute
a. Paul v Davis - Louisville posted pic of wrong shoplifter. SC: harm to reputation ≠ liberty loss
2. Property - person has unfulfilled entitlement (reasonable expectation of benefit continuance)
a. Welfare Benefits
i. Goldberg v Kelly (1970) – SC discarded rights/privilege distinction, focused on
“entitlement” instead, a reasonable expectation to continue receipt of benefit.
b. Public Employment - No property interest if “at will”, but tenure → hearing
i. Roth v Bd. of Regents – No DP if year-to-year contract expires (unless promised secure)
ii. Perry v Sniderman (1972) – de facto tenure necessitate termination hearing for all
iii. Bishop v Wood (1976) – police officer dismissed without termination hearing.
iv. Arnett v Kennedy (1974) – fed law mandated cause removal but not adversary hearing
v. Clvlnd Bd. of Ed (1985)–Statute creating property interest cannot limit DP
c. Restraining Order
i. Town of Castle Rock v Gonzalez (2005) – Police didn't enforce & dad killed 3 kids.
SC: Restraining order ≠entitlement or property interest, police had discretionary power
d. Attachment of property & seizure require notice & hearing, except in exigent
circumstances (i.e., person might sell property if on notice, seize 1st then notice & hearing)
3. Balancing Test - Matthews v Eldridge – test to determine procedures required b4 depriving:
a. Importance of interest to individual (more important require more procedures)
b. Ability of additional procedures to reduce risk of erroneous deprivation
c. Government’s interest – usually efficiency
4. Punitive damages = taking. If grossly excessive violate due process; require procedural safeguards
a. BMW v Gore (1996)–4 mil punitive damage for BMW repainted due to acid rain violate DP
b. State Farm (2003) – punitive damages ≤ 10 x compensatory damages (145 x violates DP)
c. Phillip Morris(2007) 80 mil punitive (100:1) for cigarette co for man’s death violates DP
d. Exxon (2008) – applied a 1:1 ratio. B/c even a “bad man” deserves to know stakes
Termination Notice Hearing Post-hearing Jury Ins Judicial Review Case
Civil comtmnt (liberty) X X
Parental Rights X X
Suspension/Expulsio X Admin only
n
Welfare X X Goldberg v Kelly
Social Sec/disability X Matthews v Eldridge
Punitive Damages X X BMW v Gore
SUBSTANTIVE DUE PROCESS

Does the government have an adequate reason for removing life, liberty, or property?
 Depends on scrutiny level.
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 Takings Clause – 5th amend. Gov may take private property for public use if pay just $.
1. Is there a taking? (No levels of scrutiny, this is test)
a. Possessory – gov confiscation or physical occupation (regardless of property size).
b. Regulatory – government regulation is a taking if it leaves no reasonable economically
viable use of the property, but it is not a taking simply for devaluing.
2. Is it for public use?
a. No. Gov needs to return the property.
b. Yes. Public use = gov. acts out of reasonable belief that the taking will benefit public
3. Is just compensation paid?
a. Measured in terms of loss to owner in reasonable market value terms
b. Gain to the government is irrelevant

PRIVACY –fund. right to DP. Unless otherwise stated gov may only interfere w/ Strict Scrutiny
1. MARRY (fundamental EP, and strongly influenced by SDP)
Case Law Prohibited Marriage if: Result Standard
Loving v Virginia (1967) Interracial Overturned Strict Scrutiny
Zablocki v Redhail (1978) Late on child support Overturned Strict Scrutiny
Turner v Safflee (1987) Prisoner Overturned Strict Scrutiny
Boddie v CT (1971) Divorce Fees Overturned DP: marriage so import

2. PROCREATION, CONTRACEPTION, SEX (fundamental)

Case Law Prohibited Result Reasoning Standard
Contraception Overly broad. Invades married’s fund SDP privacy right
Griswold v Strict
allegedly to prevent Overturned Concurrences: Harlan (famous): intimacy tradition private
CT (1965) Scrutiny
adultery (but not absolute). Goldberg invokes (rare) 9th amend.
Eisenstadt Contraception to Strict
v Baird Overturned Interpreted Griswold broadly - sexual privacy in general
(1972)
unmarried only Dr Scrutiny

3. ABORTION (less fundamental)

a. Prior to viability gov cannot prohibit
b. Prior to viability gov may regulate so long as no undue burden
These are not undue burdens:
i. 24 hour waiting period for abortion
ii. Information requirement
iii. Informed consent
iv. Reporting requirement (anonymous for medical research)
v. Parental consent (assuming judicial bypass procedure)
vi. Narrow framework for what constitutes emergency
vii. Prohibition of partial-birth abortion
viii. Gov never has to pay (Medicaid) or provide facilities (public hospitals)
This is an undue burden:
i. Spousal consent and notice. Right belongs to woman
c. After viability, gov can prohibit except where medically necessary for life or health
ABORTION

Case Law Prohibited Result Reasoning Standard

Roe v Wade Abortion. Overturned Overly broad. Right to abortion (not absolute). Balance w/ Strict
(1973) Except save state’s interest to protect life (↑ w/ viability). Must have: a) Scrutiny
Bodily integrity
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 Dr recommend b) 1st trim-mom; 2nd trim-mom but state can
mom for gov reg
reg who/where; 3rd trim-state (except: mom health/life)
Planned Overturned States cannot prohibit abortions prior to viability (but can Undue
Parenthd v Abortion 5-4 if viable, even in 1st trim). Only regs that would prevent Burden
Casey (1992) Plurality abortion = undue burden. Gov concern for Mom=fetus <SS
Gonzalez v Intact partial- Facial challenge under 5th amend. to fed statute fails (med Undue
Carhart birth abortion. Upheld comm. uncertain, ct wont intervene unless ‘as applied’). Burden w/
(2007) No life excep Shifts burden to women. Other types ok this is infanticide Rational B

4. Parental Authority: custody, care, control of one’s kids (fundamental)

a. Violation of parental authority must be compelling reason (e.g. abuse)
b. Michael H v Gerald D (1989) Plurality upheld irrebuttable presumption hubby is dad.
Tradition protects Scalia: marriage. Brennan dissent: parent (changes over time)
c. Troxel v Granville (2000) overturned court order: grandparent visitation violates SDP

5. Family Autonomy to stay together (fundamental)

Case Facts Zoning Privacy Reserved for Standard

Belle Terre v Boraas (1974) Roommates Upheld Families Rational Review
Moore v E. Cleveland (1977) Grandma & 1st cuz Overturned family traditionally = blood Strict Scrutiny

6. Homosexual Activity/Orientation: cannot criminally punish, but unclear if fundamental right

Case Law Prohibited Result

Reason Standard
Traditionally no fund right to gay sex, in fact often
Bowers v Sexual conduct w/
criminalized. Earlier protection of sex for family/ Strict
Hardwic mouth or anus of Upheld
reproduction. Dissent: consenting adults have right to Scrutiny
k (1986) another
sex in their own home n/t to do w/ gay.
“Deviant” Overturned *Recognize sex, incl gay sex, (just 1 element of Unclear.
st
Lawrence Overrules relationship) as right for 1 time, though doesn’t say Rational
intercourse. Here,
v Texas Bowers “fund”. * (O’Conner EPC: morality alone isn’t enough basis lang
sex w/ another
(2003) SDP violates even for rational) but heightened scrutiny strikes it ‘no legit
man. 14th amend. *Kennedy: emerging tradition like Michael H state intr’

Stare Decisis Analysis

1. Have individuals or society relied on previous decision? (not on Bowers)
2. Subject to substantial & continuing criticism/ become unworkable
3. Foundations eroded by subsequent decisions/legal evolution

7. Right To Refuse Medical Care/Die (SC did not identify level of scrutiny)

Case Facts Holding Reasoning Scrutiny

Cruzan v Director Wanted to end Upheld law “need Competent adults may Unclear
Missouri Dept Health daughter’s life clear & convincing refuse medical = liberty.
(1990) support but no ev that end treatment Must balance w/ state. (Not strict, or
Bodily integrity (like Casey,
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 Eisenstadt & Roe) living will. was patient’s wishes. Living will √. Surrogacy ? fundamental)
Rehnquist Concurrence
Washington v States can allow Rational Basis
Statute Right inferred as fundmntl
Glucksberg physician assisted
prohibited only if supported by history/
(1997) suicide, but this is no
physician tradition. suicide alwys crim
not a right under fundamental
Decisional Autonomy assisted suicide Ft nt: Fatal palliative might =
privacy right
liberty but leave ‘as applied’
Glksbrg violates Diff between causation &
EPC. Allows Upholds intent. withdraw treatment,
Vacco v Quill death if on life Glucksberg disease causes death. Med Rational Basis
support & but & statute to kill – Dr causes death
not Dr assisted (palliative might be OK)

8. Right to Bear Arms -2nd Amendment is incorporated by 14th to apply to state & local gov.
a. DC v Heller (2008): SC- ppl have right to guns for personal security. City ban violates.
b. McDonald v Chicago (2010) State has right to restrict who has guns (e.g. excluding those
with felony or mental illness) & where guns are allowed (e.g., not in school or airports).

9. National Travel–Fund right under EP & P&I-14 = Strict Scrutiny, (international = rational)
a. Saenz v. Roe: Under P & I a CA statute limiting welfare benefits to 1st yr residents
violates fund right of interstate travel
b. Durational residency requirements must meet strict scrutiny.

10. Education. SC ruled NOT a fundamental right (though important)

a. San Antonio Board of Ed v Rodriguez. Taxes fund schools, poorer areas < quality ed
b. Plyler v Doe (1982) While illegal aliens are not a suspect class, unC for state to charge
their kids. Ed is not fund, but more than mere gov benefit (denial threatens creation of
underclass). Did not explicitly state scrutiny level (rational basis > strict)

11. Welfare
a. Dandridge v Williams (1970) Court may limit welfare regardless of need, not a C right

IV. EQUAL PROTECTION (EP)

Is gov’s difference in treatment of people adequately justified (depends on level of scrutiny)

1. Begin an EP question by asking:

a. What’s classification/distinction based on (e.g., race)?
b. What’s level of scrutiny?
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 c. Does gov action meet level of scrutiny?
2. Factors to consider for protected class (Carolene Products Footnote 4)
a. Immutable characteristic
b. Discrete & insular minority w/ political powerlessness
c. History of discrimination against the group
3. Constitutional provisions
a. EPC of 14th amendment applies ONLY to state/local gov
b. EP applied to fed gov thru DPC of 5th amend. EP law is same, just applied thru diff amend

RACE & NATIONAL ORIGIN

1. Facially discriminatory (on its very terms) Strict scrutiny.

Case Racial Law C? Reason Standard

Excluded blacks, very group 14th amend was to Precursor
Strauder v W. White men > 21 serve jury.
No protect, Suggests that all races & ethnicities = to strict
Virgina (1880) Black convicted of murder
suspect class scrutiny
Plessy v Segregated trains
Upheld. Separate but equal. Not for law to enforce Rational
Ferguson ostensibly to protect peace Yes
social integration. Harlan Dissent: color blind Basis
(1896) (7/8 white).
Korematsu v Internment & curfew for Established use of SS for suspect class, yet upheld 1st Strict
Yes
US (1944) Japanese Americans law despite overinclusive b/c of compelling end Scrutiny
Brown v Bd Based on Plessy schools Separate is inherently unequal in ed (important Strict
No
of Ed (1954) are segregated but, not fundamental right) Scrutiny
Bolling v Reverse incorporation. Applied EP through DPC Strict
DC segregation scheme No
Sharpe (1954) of 5th Am Scrutiny
Brown v Bd How fast must schools For district court. ‘All deliberate speed, a prompt
?
of Ed II (1955) comply? reasonable start’ Gradualist approach to appease S
McLaughlin Prohibits interracial Strict
No Invidious discrimination
v FL (1964) cohabitation Scrutiny
Loving v VA 67 Prohibits intermarriage No Illegitimate end of: white supremacy SS
Palmore v Custody to white dad b/c Stress of growing up in mixed race home not a Strict
No
Sidoti (1984) mom married black man compelling state interest & not narrowly tailored Scrutiny
Johnson v Racially segregate prisoner Strict
? Remanded for fact finding under SS
CA (2005) to avoid gang war Scrutiny

2. Facially Neutral need discriminatory effects & purpose for SS. If not, rational basis

Facially Race Neutral, No Purpose. Use Rational Basis → C

Cases Facts C? Purpose + Effect?

Washington v Blacks > white Yes No. Disparate racial impact insuf. if facially neutral.
Davis (1976) fail police exam Need invidious purpose too, not shown. Alt explan.
Palmore v Closed all city Yes No. Other legit purposes possible (ex. $). No duty to
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Tompson (1971) pools keep pools open. = impact on whites & blacks
Arlington Hts v Zoning permit Yes No. Must look at all circum. evidence to show
Met. Housing denied minority purpose. Here there is none. Must be because of not
Corp (1977) subs. housing in spite of

Facially Race Neutral, Purpose Found. Use Strict Scrutiny → unC

Cases Facts Reasoning

Yick Wo (1886) No laundry permit Extreme data, no other explanation. Purpose
4 wooden bldgs inferred from racist admin of permits
Gomillion v 28-sided district Extreme data, no other explanation. Purpose
Lightfoot (1960) almost no Blacks inferred from effect of bizarre figure
Hunter v Moral turpitude 10 xs more white. Reiterated Arlngtn Hts. Historical
Underwood offndr cant vote. context. Discrimn is the but-for-cause of this leg.
(1985) Most blacks Fact that includes whites in discrim doesn’t matter
Griffin v Closed PS & fund Only explanation can be intent to discriminate &
Prince Edwrd only white private look at recent history in that county
Cnty 1964
Rogers v Lodge 53% cnty black, Rare showing of circumstantial/historical evidence
(1982) 38% voters black. to show system is to hold power for whites

Arlington Heights: Finding purpose from circumstantial evidence:

a. Did it begin w/ discriminatory purpose, then shift? (if its part of the decision, it’s enough)
b. Sequence of events preceding act (e.g., changing policies last minute, so app is denied.)
c. Departure from normative procedures (e.g., shift from public to closed session)
d. Legislative and administrative history – meeting minutes, statements etc.

3. RACE AFFIRMATIVE ACTION (strict scrutiny: same whether invidious or benign)

a. Numerical set asides require clear proof of past discrimination. SC is very hostile to this.
b. Ed institutions may use race as 1 factor in admission decisions to benefit minorities.
i. Compelling interest for diversity. Can use race as 1 factor, but cannot b only factor
c. Strict scrutiny must be met if elementary/HS uses race in assigning students to schools.

Racial Affirmative Action in Business

Case Facts Holding C? Standard
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 Fullilove v 10% set aside of B/c of past discrimination in construction industry.
Klutznick public work $ for (Today need SS & prove discrim by entity in Q & Yes Intermdt
(1980) minority business that particular persons rights were violated)
Croson v City set aside 30% Must prove its to remedy specific past discrim
Richmond of public works $ (until open yourself to lawsuits). Wasn’t narrowly No Strict
(1989) for minority busnes tailored included Eskimos etc.
Metro Brdcst Minority Intermediate scrutiny for EP chalenge 2 fed statute
Yes Intermdt
v FCC (1990) preferences by FCC Croson applies only to state/local. Overruled.
Overrules Metrobroadcast. SS for all fed benign SS minus
Adarand Contractor hired (gov can
too. Reverse incorporation of 5th amend EP-
Construct. minority sub w/ ↑ still act to
protects against arbitrary but not equal. Dissent No
Inc. v Pena bid b/c he got fed eliminate
Croson was correct b/c excluded against out of residual
(1995) bonus for it
town contractors, but this is federal discrim)

1. Affirmative action set-asides in contracting can only be supported by surviving strict scrutiny.
2. This applies equally to federal, state, and local plans.
3. Set asides will only be allowed to remedy past discrimination when
a. Direct Discrim. Gov can point in the record to specific instances of past discrimination
b. Aided and Abetted. Specific instances of when gov aided / abetted as passive participant
4. Key is narrow tailoring. Plan must match locality; burden placed on group must not be overbroad

Racial Affirmative Action in Education

Case Facts Holding C? Standard

Regents of UC v Med school Set Diversity goal=compelling but not defined
No Strict
Bakke (1978) aside (16/100) broadly enough (Harvard: Race as 1 factor)
Wygant v Teacher seniority: Minority role model & societal discrim not
Jackson Board White > blacks, still compelling. Must show school discriminated No Strict
of Ed (1986) laid off 1st. Elmntry in past to teachers in this district.
All diversity factors Vested interest in diverse student body
Grutter v
flexibly considered (views & leaders). Narrowly tailored means, Yes Strict
Bolinger (2003)
not just race. Law but don't need to exhaust all
Gratz v Bolinger U Mich add 20 pt Not narrowly tailored. 1/5 is about race.
No Strict
(2003) Companion for minority status Candor here is disadvantage.
Elementary schools Seattle never segregated & Louisville unitary
Parent Involved
Seattle tie breaker. status. Race must b 1 factor. Kennedy, goal = No Strict
v. Seattle (2007)
Louisvile discretion good, means not. Try target recrt/stratgc bldg

GENDER DISCRIMINATION

1. Intermediate scrutiny: exceedingly persuasive justification for means to get to end

2. How is existence of gender classification proven?
a. Facially discriminatory (e.g., Craig v Boren, or US v VMI)
b. Facially neutral, need P & E, or only rational basis (Geduldig, Feeney)
3. Affirmative action for women to remedy past: (Intermediate scrutiny)
a. Ex. SS use calculator to benefit W: remedy history of discrim in employment opp
b. Ex. Navy reg fires M if unpromoted in 6 yr, W gets 10. Compensates for diff opp (combat)

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 Disadvantaged Women (W)

Case Facts C? Reason Standard

Goesaert v Cleery W cant bartend unless wife/ Rational
Yes Protection
(1948) daughter of male owner Basis
State courts preferred men for End valid, means not. Might really Rational
Reed v Reed (1971) No
estate mngmt. Cut work in ½ be heightened Basis
Based on stereotypes about W not
W excluded from VMI. tough. Separate is not equal. VMI Intermdt
US v Virginia (VMI) No exceedingly
(1996) Suggested remedial VWI. unique. Scalia dissent feels like SS persuasive
can same sex ed ever pass again?

Disadvantaged Men (M)

Case Facts C? Reason Standard
W automatic benefits from No. Brenan 4: Gender is suspect class,
Frontinero (1973) military hubby, men had to Plur must use SS. Doesn’t get last vote ?
prove dependence ality but sets stage
Actually perpetuates W stereotype.
Craig v Boren (1976) Drink: W 18 years, M 21years No Intermdt
Overinclusive.
Real physical diff. W can’t combat.
Goldberg (1981) Only M must sign up for draft Yes Deference to military. (But most M Intermdt
deferential
don't either. Just stereotype/legal)
W have traditionally been nurses. If Intermdt
W nursing school rejected M,
Hogan (1982) No med school maybe. If really disadvant exceedingly
but allowed audit. persuasive
climate wouldnt allow M to audit
Preemptory strike on M jurors Reinforces prejudicial views of Intermdt
J.E.B (1994) No exceedingly
to get W jury in paternity suit abilities of M & W persuasive

Physical Differences
Case Facts C? Reason Standard
Caban v Mohammed Only mom could block adoptn
No No real diff in ability to bond Intermdt
(1979) of illegitimate kid not dad
Statutory rape, only M perp & Based on real diff. W incentivized Intermdt
Michael M (1981) Yes relaxed based
only W victims to avoid pregnancy, M not intuitive view
Illegitimate kid automatically Real diff. mom would know of kids
Nguyen v INS (2001) Yes Intermdt
citizen if mom is, but not if dad birth, dad would not

Facially Neutral
Case Facts C? Reason Standard
This is a real diff. based on physical
Pregnancy not included under Rational
Geduldig (1974) Yes diff not gender b/c both M & W can Basis
disability
still benefit if unpreg
Facially neutral, but no purpose. ?
a) facially
Preference to veterans for civil Btwn veteran & non, not M & W.
Feeney (1979) Yes neutral? b)
service even though 98% M Purpose needs to b > awareness. invidious
Must b b/c of not in spite of purpose?

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 ALIENAGE CLASSIFICATIONS
1. Generally strict scrutiny

2. Exceptions use Rational Basis

a. Congressional discrim. Fed has plenary power to reg immigration (Matthew v Davis)
b. Gov/Political process
i. Voting
ii. Serving on jury
iii. Holding office
iv. Police officer (Foley)
v. Teacher. Instill democratic values, 1 of most important gov functions is public ed
(Norwich)
vi. Probation officer – are like police officers

3. Apparent Intermediate Scrutiny

a. Plyler v Doe (1982) - While illegal aliens are not a suspect class, unC for state to charge
their kids. Ed is not fund, but more than mere gov benefit (denial threatens creation of
underclass). Did not explicitly state scrutiny level (rational basis > strict)

Case Excluded C? Reason Standard

Graham (1971) Welfare No Inherently suspect & interferes w/ fed policy Strict
Griffiths (1973) JD Bar No Inherently suspect & interferes w/ fed policy Strict
Not narrowly tailored. Overbroad/narrow, includes
Dougal (1973) Civil service No Strict
menial, but not ↑ office (Political proces ↓ strict)
Hampton Competitive While feds have power over immigration, cannot use
No Strict
(1976) civil service arbitrarily once admitted (failed to justify).
Mathews v Medicare only Rational
Yes Defer to fed for distinctions drawn w/in class
Diaz (1976) if >5/perm Basis
Norwich (1979) PS teachers Yes Dougal gov function exception Intermediate
Foley (1981) State troopers Yes Dougal gov function exception Intermediate
Bernal (1984) Notary No Exception doesn’t apply to clerical Strict
↓ tuition to
Toll v Moreno Preempted. Violate supremacy clause since congress
residnts but not No ?
(1982) clearly didn't bar aliens from acquiring domicile
alien residents

ALL OTHER DISCRIMINATION NOT PROTECTED CLASS (rational basis review)

1. Age discrimination: Murgia (1976) SC upheld mandatory retirement at 50.

2. Disability discrimination (rational basis w/ a bite).
a. Cleborn v Cleborn (1985). Zoning ordinance disallowed group home in community’s
midst. Rational basis-unC b/c others not similarly excluded
3. Discrimination against non-marital children / legitimacy classifications (intermediate)
a. Intermediate scrutiny is used.
b. Laws that provide a benefit to all marital children but no non marital children are always
unconstitutional b/c they always fail intermediate scrutiny.
4. Wealth discrimination (against the poor). Poverty is not a suspect class
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 a. San Antonio Board of Ed v Rodriguez. Taxes fund schools, poorer areas < quality ed
5. Economic Regulations. (e.g. minimum wage, law reg trade, bar exam) SDP & EP
a. Use Rational basis test
b. Old law: Lockner v NY (1905) – freedom of contract was a fund right and courts used SS
to protect it. After 1937 Lockner era, we only use rational basis.
c. Stone’s footnote 4: ↑ scrutiny for for law that
i. Violates bill of rights/individual rights
ii. Defect in political process (voting, restraints on info, interference w/ political org)
iii. Discrete and insular minorities

Case Discrimination C? Reason Standard

Reg violates right to K, a fundamental right of
Regulated hrs of bakery Strict
Lochner (1905) No “liberty”. Holmes dissent advocates deference
employees Scrutiny
C doesn’t embody part. economic theory
Nebbia v NY (1934) Fixed milk price Yes Reasonable relationship to proper leg purpose Rational
Official death of Lochner. Deferential test, a
W Coast Hotel v Min wage for women Rational
Yes state may regulate to serve any reasonable
Parrish (1937) hotel employees Basis
purpose
Extremely deferential. Economic regs upheld if
US v Caroline Rational
“Filled milk” law. Yes supported by any conceivable rational basis,
Products (1938) Basis
even if unable to prove that was leg intent.
Railway Express v No car advertising unless Maybe less distracting. This case reflects Rational
Yes
NY (1949) business delivery vehicle extreme deference Basis
Can go 1 step at a time, as long as not
Opticians can’t fill
invidious. Contemporary rational basis test – Rational
Lee Optical (1955) prescriptions, but others Yes
so long as court can conceive of any Basis
(ready-wear sellers) can
legitimate purpose & law is reasonable
New Orleans v Pushcart vendors < 8 yrs State economic regulations not subject to Rational
Yes
Dukes (1976) prohibited in French ¼ strict scrutiny. Basis
US Dept Households w/ unrelated End was to raise nutrition levels. This was
Rational
Agriculture v members ineligible 4 No unrelated, legislative history indicates animus
Basis
Moreno (1973) food stamps to hippies (illegit)
MTA v Beazer Meth users ineligible 4 Might overinclude some who can work, but Rational
Yes
(1979) employment wont define class based on unpopular trait Basis
New benefit system
No need to investigate actual reason, just need
US RR Retirement denied those who would Rational
Yes plausible reason for congress’ act. We don't
Bd. v Fritz (1980) benefit from SS & Basis
invalidate economic legislation on EP just b/c
retirement simultaneously
6. Sexual Orientation (may change in future to higher scrutiny)
a. Roemer v Evan (1996) Initiation repealed all laws protecting gays & prohibited passage
of new ones. Rational basis review → unC at any level , imposed broad disability on
entire group, can only be animus

FUNDAMENTAL EQUAL PROTECTION INTERESTS

1. Right to vote. 14, 15, 19, 24, 26 amendments all deal with voting right fund under EP
a. Laws keeping some citizens from voting must meet strict scrutiny.
i. Poll tax

14
 ii. Property ownership (Salyer exception)
iii. Laws to protect integrity of electoral process allowed (e.g., ID to prevent fraud)
b. 1 person 1 vote. Each district must have about the same number of people
c. If gov uses race in election districts to benefit minorities, must meet SS

Case Discrimination C? Reason Standard

Fees or wealth limits are unrelated to voter
Harper v Virgina Strict
Poll tax No qualification & violate EP of 14th amend
Bd Elections (1966) Scrutiny
which require equal participation by all voters
Voting in school district Voting is 1 of the most fundamental rights of
Kramer v School Strict
based on property or No a democratic society. Even if ends can be
District (1969) Scrutiny
child enrollment justified, means not narrowly tailored.
Only property owners All citizens have an interest in quality of Strict
Cipriano (1969) No
can vote on utility bonds service & utility Scrutiny
Only property owner can Even though only property owners would pay Strict
Phoenix (1970) No
vote gen obligation bond for improvement, all residents would benefit Scrutiny
Only landowners can Costs assessed against land. Limited purpose Strict
Salyer Land (1973) Yes
vote for district board disproportionately impacting landowners Scrutiny
Ramirez (1974) Convict felons cant vote Yes 14th amend specifically permits this limitation SS

2. Access to the Courts

Must Provide Fee/Service Fee Waiver/Service Not Required

Griffin (1956) Transcript 4 crim appeal
Douglas v CA (1963) Counsel 4 1st crim appeal (Griffin) Ross v Moffit (1974) Counsel 4 discretion crim appeal
Divorce
Boddie v CT (1971) PDP a) marriage very import b) forced US v Kras (1973) Bankruptcy
to go thru state so deserve opp
Little v Streater (1981) Paternity test Schwab (1973) Welfare admin hearing
Appellate parental termination
MLB. v SLJ (1996) Griffin applies to crim, but some civil
(ex. divorce). Here unique deprivation,

V 1ST AMENDMENT: FREEDOM OF SPEECH

FREE SPEECH METHODOLOGY

1. Reasons to Protect Speech
a. Truth – diversity of ideas
b. Self governance – need dissent for holding gov accountable
c. Personal autonomy – e.g., Cohen v California
2. Content Based & Content Neutral Laws Regulating Speech
a. Content Based Restrictions. Generally strict scrutiny.
i. Subject Matter – law’s application depends on message topic (e.g. RAV)
 Ex. Chicago “no picketing in residential unless related to employment”
ii. Viewpoint – law’s application depends on message ideology
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  Ex. Pro war protests allowed in park but not anti war
 Ex. DC: no protest outside foreign embassy if embarrassing to foreign gov
b. Content Neutral. Intermediate scrutiny if law applies generally e.g. restricting all parades
3. Vagueness & Overbreadth, then law can be voided as unconstitutional.
a. Vagueness – Reasonable person can’t tell what speech is prohibited/permitted
 Ex. City ordinance disallowing magazines that would corrupt morals of youth.
b. Overbreadth –Regulates substantially more speech than C allows (Gooding, RAV)
 Ex. City ordinance prohibits all live entertainment (incl concerts) close nude bar
4. All Prior Restraints. Judicial order to administrative system before speech occurs
a. Court: Preliminary Injunction or Temporary Restraining Order. Strict scrutiny.
 Ex. NY Times v US Pentagon Papers. Fed gov gets injunction against Times
publishing about ongoing Vietnam War. SC ruled against gov. Stewart
concurrence: convinced would injure nation but couldn’t prove would result in
“direct, irreparable harm” so allows it.
b. License or Permits. Can only require this for speech if: (e.g., Skokie)
i. Important reason for requirement
ii. Clear criteria leaving almost no discretion to licensing authority
iii. Enact procedural safeguards such as:
 Prompt determination of license request
 Judicial review of license denials
 E.g., Permit required for parade in park on 1st come 1st serve basis to ensure
only 1 parade at a time. Notice if permit denied & hearing of judicial review=C
5. Symbolic Speech. Government may regulate conduct that communicates only if
a. Important reason for regulation unrelated to message suppression
b. Impact on communication is no greater than necessary to achieve gov’s purpose
c. Examples
 Flag burning = constitutionally protected speech (Texas v Johnson)
 Beating up bar examiner ≠ C. Gov has important interest unrelated to message
 Draft card burning ≠ C. Gov has important reason (to make sure they respond)
 Cross burning (Virginia v Black) (OK at private rally but not neighbor’s lawn)

UNPROTECTED SPEECH
1. Obscenity & Lewd/Sexual. Though profane & lewd often protect (see Cohen v California)
2. Libel
3. Incitement of Illegal Activity

Case Facts Protect? Reasoning Standard

Free speech ≠ absolute. Congress Clear & Present
Schenck v Leaflets: “Recognize right to
No can regulate especially in war, Danger
US (1919) oppose draft”
irrespective of leaflets’ success
Frohwerk v Germans = insular community, ↑ (Rational
German newspaper criticizing war No
US (1919) likely to coalesce & oppose gov Review)
Debs v US Socialist party leader spoke Politician speaking to draft eligible Rational Review
No
(1919) against draft to Ohio assembly crowd. Probable incitement
Unknown Russians: “silly” If succeed defeat US war program. Clear & Present
Abrams v
leaflets urging “workers strike. No No Holmes dissent: need clear & Danger
US (1919)
war materials production” present danger + intent.
Gitlow v NY Wrote “Left Wing Manifesto” No Urges violence. Match near wood. Rational Review
(1925) advocating overthrow of gov Holmes dissent: every idea is Overruled by
16
 incitement. Must have “imminent” Brandenburg
Whitney v Rational Review
Member of org advocating criminal Gov can prohibit even speech just
California No Overruled by
syndicalism/future overthrow aimed at illegal conduct.
(1927) Brandenburg
Hand Test. Evil:
Dennis v Conspiracy to organize party to No ‘presence’ so created new test
No Probability. Not
US (1951) advocate communism for this new threat of communism.
current, but can b
This was remote & unlikely to a) Aims to incite
KKK had rally w/ violent words
Brandenburg incite. Must look at context before imminent lawles
against blacks & Jews on remote Yes
v Ohio (1969) presuming entire category is action b) Likely
farm. Had weapons. Invited TV.
unprotected. to incite action

4. Fighting Words

Case Facts Protect? Reasoning Standard

Cantwell v Jehova’s witness plays record anti Not advocating imminent lawless
Clear & Present
Connecticut Christian. They almost punch him Yes action, just conversion. He walked
Menace
(1940) & tell him to scram. He does. away when they told him to.
(FW) Certain
Chaplinsky v Jehova’s witness. Police advises Murphy: Lewd, obscene, profane
categories
New fighting speech is not protected.
to leave upset crowd. He calls No unprotected
Hampshire Look at context. Here it is likely to
him “fascist racketeer” No FW since, but
(1942) provoke the ~ person
still good law
Statute void 4 overinclusivity b/c
Gooding v Antiwar block army bldng “White Clear & Present
Yes included words like “tendency”.
Wilson (1972) SOB touch me again cut u 2 piece Menace
FW = lead to immediate violence
Texas v Intervening events deescalate Clear & Present
Antiwar protesters burned flag Yes
Johnson violence so not direct affront Menace
Cohen v Harlan: Words=emotive. Gov cant Context: 1-1
California “F the draft” jacket while in court Yes arbitrarily restrict words when provocative &
(1971) squeamish. Duty to avert eyes. invoke response

5. Hate

Statute
Case Statute Reasoning Standard
Allowed?
Ntnl
Nazi party wanted parade in If create these regs, must provide Strict
Socialist
Skokie – lots of HS. City created No procedural safeguards like procedural
Party v
permit rules to prevent rally immediate appellate review. safeguards
Skokie (1977)
Scalia: Statute void. Can prohibit
R.A.V. v Statute: “symbol, including
unprotected speech, but cant Strict scrutiny
City of St. burning a cross…swastika etc.
No choose within that category to Unclear if
Paul, MN which know arouses anger… on
prohibit some content but not holds today.
(1992) basis of race etc. is guilty”
other. White, hate speech =0 value
Wisconsin v Black teens beat up White kid, Yes Limits RAV to speech. Conduct Conduct is
17
 Mitchell statute enhances penalty for race unprotected, so can single out race unprotected
(1993)
Can regulate incitement & FW Cross burning =
Prohibits cross burning for
Virginia v ½ Yes like intimidation, but not all cross speech =
intimidation. Act is prima facie
Black (2003) ½ No burnings are this. Prima facie case protected unless
case of intimidation
ignores that & D’s right to silence to intimidate

REVIEW
Reliance on Harlan’s “Tradition Analysis in Griswold” for Determining Fundamental Rights

Case Tradition Protects

Moore v Cleveland (1977) Blood relationships
Bowers v Hardwick (1986) Gay sex never a right. In fact been criminalized
Michael H v Gerald D. (1989) Scalia: Marriage not adultery. Brenan Dissent: Parents & definition changes
Washington v Glucksberg (1997) Life. Suicide has always been criminalized.
Lawrence v Texas (2003) Right to privacy in forming relationships including (gay) sex.

Over-inclusive

Case Overbroad Because

Griswold v Connecticut (1965) Criminalizes contraception for all including married couples
Only allowed to abort to save mom. While cant abort always (late
Roe v Wade (1973)
trimester) liberty permits aborting beyond just life & death situations
Includes anything that would upset (not just incite) also underbroad
R.A.V. v St. Paul, MN (1992)
b/c it chooses within category
Gooding v Wilson (1972) Included words like “tendency” but FW = lead to immediate violence
Korematsu v US (1944) Overinclusive Japanese but sustained b/c of compelling interest
Overinclusive 30% set aside for minorities, including Eskimoes who
Croson v Richmond (1989)
had never been discriminated against in Richmond
Craig v Boren (1976) Drink: W 18 years, M 21years. Overinclusive, only 2% of men offend
Overturned Using Rational Basis

Case Reason Didn't pass Rational Basis

O’Conner: Morality alone is insufficient to pass rational basis, though
Lawrence v Texas (2003)
unclear what standard used here
City of Cleborn v Clebron Living Purpose was to discriminate or would have also singled out others.
Reed v Reed (1971) State courts preferred men for estate mngmt. Cut work in ½
Roemer v Evan (1996) Initiation repealed all laws protecting gays & prohibited passage of new ones.
Rational basis review → unC (may change in future)
US Dept Agric v Moreno (1973) Households w/ unrelated members ineligible 4 food stamps. Animus to hippies

Marriage/Sex Discrimination

McLaughlin Prohibits interracial Strict

No Invidious discrimination
v FL (1964) cohabitation Scrutiny
Loving v VA 67 Prohibits intermarriage No Illegitimate end of: white supremacy SS
Palmore v Custody to white dad b/c No Stress of growing up in mixed race home not a Strict
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Sidoti (1984) mom married black man compelling state interest & not narrowly tailored Scrutiny
Initiation repealed all laws
Roemer v Imposed broad disability on entire group, can only be Rational
protecting gays & prohibited No animus
Evan (1996) passage of new ones. Basis
Lawrence v
Prohibits gay sex No Right to privacy in relationships
Texas (2003)

Bodily Autonomy
1. Eisenstadt v Baird (1972) – sexual privacy (contraception) to all
2. Roe v Wade (1973) – abortions not just to save mom’s life
3. Planned Parenthood v Casey (1992) -
4. Cruzan v Director Missouri Dept Health (1990) – Cessation of life support

Decisional Autonomy
1. Washington v Glucksberg (1997) - physician assisted suicide

19