Civil Liberties & Individual Rights

Question 1

analysis of state action

Answer 1

state must sponsor, control, or direct the action for it to qualify

ex: NCAA is not a state actor even though it’s mostly governed by member public universities

Question 2

*procedural due process analysis

Answer 2

(1) state action
(2) action has adverse effect on recognized liberty or property interest
(3) must be given notice and a meaningful opportunity to be heard

Question 3

property interest must be

Answer 3

vested

employees may have a vested interest in their job if they have a reasonable expectation to maintain their job absent good cause: civil servants, tenured public university professors

Question 4

what is a meaningful opportunity to be heard? consider factors:

Answer 4

(1) consider the type of deprivation;
(2) are common law safeguards enough to protect the right;
(3) is pre-deprivation hearing necessary to provide a check against substantial loss;
(4) has there been historical incidence of abuse of these rights?

Question 5

rational basis test

Answer 5

law are presumed to be legitimate and rational

state identifies rational relationship between law and state interest

to fail, must have a complete, irrational lack of relationship between interest and law

Question 6

carolene products footnote language

Answer 6

where discrete and insular minorities

Question 7

where law impinges on fundamental right

Answer 7

apply strict scrutiny

Question 8

strict scrutiny

Answer 8

compelling state interest
AND
narrowly tailored

Question 9

examples of substantive due process rights

Answer 9

right to privacy
right to  abortion 
right to marry
right to travel
right to vote

Question 10

hypo: restriction on voting

Answer 10

any severe restriction on the right to vote is subject to strict scrutiny

a reasonable non-discriminatory restriction on voting is allowable. state has reasonable interest in preventing voter confusion and unrestrained factionalism

Question 11

hypo: campaign finance

Answer 11

government is allowed to restrict the amount that a person may contribute to a campaign

may not limit expenditure on own campaign

may not limit expenditures not coordinated with the campaign

Question 12

hypo: burdening access to education

Answer 12

right to education is not a fundamental right
judged under rational relationship
however, no denial of education based on immigration status

Question 13

equal protection analysis must include

Answer 13

classification. applying the test to laws that classify

Question 14

equal protection analysis process

Answer 14

(1) does the law apply a suspect classification –> strict scrutiny
(2) does the law or classification burden a fundamental right –> strict scrutiny
(3) is the law entailing a quasi-suspect classification –> intermediate scrutiny
(4) if the law does not use a suspect classification or burden a fundamental righ –> rational basis

Question 15

intermediate scrutiny

Answer 15

substantially related to an important government interests

Question 16

how does a classification burden a fundamental right

Answer 16

a waiting period before you can exercise your right to vote

Question 17

suspect classification possibilities

Answer 17

(1) facial classification

(2) discriminatory impact + intent to discriminate

Question 18

affirmative action

Answer 18

(1) particularized historical discrimination that affirmative action is designed to cure
(2) plan must be temporary, particularized, and non-access barring
(3) a diverse student body is de jure a compelling state interest

Question 19

state and local alienage

Answer 19

if a state or locality treats aliens differently because of alienage –> strict scrutiny

exception = under political function theory can bar aliens from police officer or state elected official

note: immigration law is a field preemption federal law area, and states may not do more or less than states

Question 20

federal alienage laws

Answer 20

as long as reasonable they are allowed

Question 21

regulations related to unlawfully present aliens

Answer 21

likely subject to rational basis review

Question 22

quasi-suspect classifications

Answer 22

gender
subject to intermediate scrutiny
substantially related to an important government interest

note: if the law trades on sex stereotypes, gets intermediate scrutiny with bite

Question 23

hypo: ordinance that says that if you were not a street vendor in the quarter as of 1960, not allowed to be street vendor.

Answer 23

survived rational basis test

Question 24

rational basis applies

Answer 24

(1) when there is no suspect classification

(2) no fundamental right impinged