Con Law Flashcards
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Can Private property lose it’s private nature when you invite the public?
Can Private property lose it’s private nature when you invite the public?
Rule 49: Private property does not lose its private nature just because the public is invited onto it, and any private store can exclude individuals trying to assert their 1st Amendment rights (
(e.g. if a large privately owned and operated shopping mall required that protesters peaceably distributing anti-war leaflets to leave the mall, this is constitutional even if the mall rents a small percentage of their space to the government because there is no implied right of free speech within a private shopping center and there is no state action warranting the application of the 1st and 14th Amendments). [2019]
Can a private property lose its private nature when the public Is invited on to it? May a private store exclude individuals assering their 1st amend rights?
Rule 49: Private property does not lose its private nature just because the public is invited onto it, and any private store can exclude individuals trying to assert their 1st Amendment rights (e.g. if a large privately owned and operated shopping mall required that protesters peaceably distributing anti-war leaflets to leave the mall, this is constitutional even if the mall rents a small percentage of their space to the government because there is no implied right of free speech within a private shopping center and there is no state action warranting the application of the 1st and 14th Amendments). [2019]
The First and Fourteenth Amendments generally apply only to actions by who?
Rule 50: The First and Fourteenth Amendments generally apply only to the actions of governments and government officials, not to the actions of privately owned companies, BUT courts have found state action where the government is significantly involved in the private entity or the private actor has exercised a public function, such as running a privately owned company town (e.g. if a private bank refuses to hire a person solely because he promotes controversial political views on his website, the person has no viable claim based on freedom of speech because a private entity is not subject to the provision of the 1st and 14th Amendments, which generally apply only to state actions, and not to private actions, even if the private entity is heavily regulated or affecting a public interest). [2013]
Does an association regarded as an agency of he state have to comport with the constitution ?
Rule 51: If an association is regarded as an agency of the state, the association must comport with the constitution and cannot discriminate on the basis of race, religion, or sex. [1992]
The Equal Protectio Clause may apply to a private citizen, if that person is __________?
Rule 52: While the Equal Protection Clause forbids only governmental discrimination, not private discrimination, it may apply to a private citizen if that person is an agent of the state and acting in that capacity. [1992]
What does the 13th amendment address?
Rule 54: The 13th Amendment address private acts of racial discrimination. [1991]
What does the 13th amendment prohibit?
Rule 55: The 13th Amendment prohibits public and private discrimination in housing. [1991]
The 14th amenddment does not directly apply to ______ action. It only applies to _____ action.
Rule 56: The 14th Amendment does not directly apply to federal action, only to state action. [1991]
When can the Equal Protection clause apply to a private school?
Rule 57: The Equal Protection clause of the 14th Amendment can apply to a private school if the state is highly involved in school regulation and support. [1991]
Does licensure by a government body make the individual a state actor?
Rule 58: Licensure by a government body does not make an individual a state actor (e.g. displaying a bumper sticker on a vehicle is symbolic political speech, which may not be regulated unless the state shows a compelling need that is closely related to the regulation). [1991]
Revocation of a professional or operating license is a deprivation of liberty or property and requires Due Process. BUT a license may be revoked withou a hearing if WHAT?
Rule 59: Generally, an administrative revocation of a professional or business operating license is a deprivation of Liberty or Property that requires notice and a hearing under the procedural Due Process Clause of the 14th Amendment, BUT a license may be revoked without a hearing upon the holder’s conviction of a crime if the adjudicative facts necessary to revoke the license are determined in the criminal trial (e.g. if a pharmacist is found guilty of the crime of selling narcotics without a prescription, the pharmacist’s license can be revoked without an opportunity for a trial-type hearing before revoking the license). [2019]
When does the due process clause obligates a government agency to provide an indivdual with an opportunity for a hearing?
Rule 60: The due process clause obligates a government agency to provide an individual with an opportunity for a hearing only when the agency makes an adjudicatory decision that deprives the individual of a property or liberty interest that is protected by the clause (e.g. if Congress enacts a statute to provide new agricultural subsidies to eligible farmers on a discretionary basis, if a farmer applies for the subsidy but his application is denied by the federal agency administering the subsidies, the farmer’s demand for a hearing will be denied because the farmer has no due process rights - the new statute gives the farmer no legitimate claim of entitlement to receive a subsidy (i.e. no property or liberty interest in the subsidies) since the statute provides the agency with discretion in selecting subsidy recipients). [2013]
Does a private entity that receives some public funding satisfy the nexus for state action under the 14th amendment?
Rule 61: A private entity that provides a public service or receives some public funding does not sufficiently satisfy the required nexus for state action under the Fourteenth Amendment - there must be something more than mere regulation/ funding for the actions of a private entity to be attributable to the state (e.g. if P is fired by his employer, a private college that receives 30% of its funding from the state, because P uploaded on YouTube a feverish denouncement on the high cost of education, P cannot recover on 1st Amendment grounds because the private employer’s action cannot be imputed to the state for purposes of the 14th Amendment). [2011]
Federal law that requires new security measures in airports only to individuals of one race is unconstitutional UNLESS what?
Rule 62: A federal law that requires new security measures in airports that apply only to individuals of one race is unconstitutional as a violation of the due process clause of the Fifth Amendment, UNLESS the government can prove the racial classification is necessary to serve a compelling public interest (a standard that the government cannot typically meet). [2008]
When a minor seeks to have an abortion, a state law requiring parental notification is constitutional, so long as it contains what?
Rule 63: When a minor seeks to have an abortion, a state law requiring parental notification is constitutional, so long as it contains a judicial bypass where the minor can petition a judge to authorize her physician to perform an abortion without parental notification if the judge finds the minor is mature and capable of giving informed consent. [2006]
A licensing orddinance does not give licensees a property interest in being free of competition from additional licensees and thus they do not have the right to _________?
Rule 64: A licensing ordinance does not give licensees a property interest in being free of competition from additional licensees and, accordingly, they do not have a right to demand a hearing for the purpose of objecting to additional licensees. [1998]
What standard will the court use where a govermental action affects fundamental rights such as marriage, child- bearing, and child-rearing?
Rule 67: Where a governmental action affects fundamental rights such as marriage, child- bearing, and child-rearing, the court will use strict scrutiny and the burden of persuasion is on the state to show the law is necessary to achieve a compelling government purpose and is the least restrictive alternative. [1992]
A statute that permanetly removes children from their parents due to child abuse is subject to what standard?
Rule 68: Since parents have a fundamental right to raise their children, a state statute that permanently removes children from their parents due to child abuse is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. [1992]
If state law does not require it, do government employees of the state have a right to be rehired after their probationary period expires?
Rule 69: If state law does not require it, government employees of the state do not have a right to be rehired after their probationary period expires, nor is there a requirement for a statement of reasons or an opportunity for a hearing. though procedural due process may require a hearing if the employee relied on an oral promise from the employer. [1992][1992]
A state statute banning contraceptive sales to minors may be unconstitutional because ?
Rule 70: A state statute banning contraceptive sales to minors may be unconstitutional because it denies minors one of their fundamental rights without due process. [1992]
What procedures are required for the required for the institutionalization of adults, welfare benefits, disability benefits, public employment, public education discipline, termination of child custody, and civil forfeitures of real property
Rule 73: Notice and a pre-termination hearing or opportunity to explain/ respond to the charges are required for the institutionalization of adults, welfare benefits, disability benefits, public employment, public education discipline, termination of child custody, and civil forfeitures of real property. [1991]
What standard of review will education be granted (wealthy district vs poor)
Rule 74: There is no fundamental right to education guaranteed in the Constitution, and the Equal Protection Clause does not require exact equality or precisely equal advantages among school districts. Thus, if a wealthy school district raises substantially more tax revenue for education than a poor school district, no fundamental right is involved and the claim will be subject to rational basis review. In such a case, no suspect class is involved (nor is any quasi-suspect class) because the poor are not considered to be a suspect class. Since a fundamental right is not involved, the claim will be subject to rational basis and the plaintiffs must show the action is not rationally related to a legitimate state interest. Under this test, the plaintiff’s claim will fail because the government has a legitimate state interest in giving control over education to local communities and the property tax system is rationally related to that interest. [2019]
The right to travel (under the Privileges and Immunities Clause of the 14th Amendment) includes the rights of _______ to enjoy the same privilages an immunites as are enjoyed by other citizens of the state BUT _________ requirements are valid for obtaining a divorce/reduced tuitio
Rule 75: The right to travel (under the Privileges and Immunities Clause of the 14th Amendment) includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state and durational residency requirements for dispensing govt benefits are subject to strict scrutiny (e.g. a state cannot give reduced benefits to new residents who have lived in the state for less than 2 months versus full benefits it provides to other residents), BUT reasonable residency requirements are valid for obtaining a divorce or reduced tuition at state universities. [2019]
Economic regulations and wealth discrimination need only satisfy what standard of review?
Rule 76: Economic regulations and wealth discrimination need only satisfy the rational- basis standard (e.g. poverty is not a suspect class)- thus, in cases of economic discrimination, the 14th Amendment does not apply (e.g. a zoning ordinance that prohibits the construction of low- income housing need only be rationally related to a legitimate state interest UNLESS it can be shown that low-income residents would not be able to afford any housing due to the ordinance). [2019]