ConLaw Flashcards
For the government to punish membership in a group, it must be proven that the person:
- Actively affiliated with the group
- Knowing of its illegal activities
- With the specific intent to further those illegal activities
Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document
has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails).
Facial discrimination is itself sufficient to show the intent needed to make out a prima facie case for improper discrimination. And facial discrimination can be proven even though the classification is not explicit. For example, facial discrimination was found when a bizarrely drawn redistricting electoral map could not be explained in any way other than in terms of establishing a district in which racial minority persons would be the majority in the district.
Likewise, discriminatory application of a law or program to a certain individual or group of individuals is sufficient to show discriminatory intent, even if the program appears to be neutral on its face. The classic example here is a zoning ordinance that prohibits laundries in wooden buildings unless the owner is granted an exception, and exceptions are granted only to majority race members and denied to minority race members.
And, of course, if a discriminatory motive for the government action can be shown, that is sufficient to show the necessary intent. It should be noted, however, that mere statistical evidence that the government action has a discriminatory effect, as indicated by the correct choice above, is not enough to show discriminatory intent or purpose.
Under the Equal Protection Clause, a government classification based on race is constitutional only if the government can show that the discrimination is necessary to achieve a compelling interest. The Supreme Court has held that remedying past discrimination is a compelling interest and that the type of hiring program described in this choice was necessary to achieve that interest.
A program assigning students to public high schools based on race in order to promote diversity among the student body is not constitutional. The Supreme Court has found that promoting racial diversity in public high schools (or grade schools) is not a compelling government interest, and, as discussed above, race-based discrimination is constitutional only if necessary to achieve a compelling interest. Students can be assigned on the basis of race to remedy past discrimination (remedying past discrimination being a compelling government interest), but merely promoting diversity is not. Note, however, that a different rule applies at the college level. The Supreme Court has accepted that diversity is important enough at the college level to allow schools to take race into account in making enrollment decisions, but it cannot be the predominant factor.
A program laying off white teachers before minority teachers with less seniority, in order to achieve racial balance among the faculty, is unconstitutional. Racial balance is not a compelling interest and a compelling interest is needed to justify racial discrimination-even racial discrimination that favors minorities. A redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority is unconstitutional for similar reasons.
The physician will succeed. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship. This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.
An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care,
It is not true that hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions.
content-based restrictions on speech are permitted in cases where the speech creates a clear and present danger of imminent lawless action. A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action.
A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order. It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd. [See Feiner v. New York (1951)] In this question, the conditions under which the police can prevent a speaker from continuing because of an unruly crowd have not been met. There were 50 police officers who would have been able to restrain or subdue anyone who appeared to be intent on committing violence.
