Final Flashcards
- What is the scope of federal judicial power?
Article III, section 2 limits the jurisdiction of federal courts to cases: (1) Whose disposition depends upon construction of the Constitution, an act of Congress, or a federal treaty; (2) In which the United States is a party; (3) Between a state and citizens of another state; (4) Between citizens of different states (diversity).
- What are the limitations on the scope of federal judicial power?
Limitations on the scope of federal judicial power include the Sovereign Immunity Doctrine and the Eleventh amendment.
- What is the Sovereign Immunity Doctrine?
The United States may not be sued without its consent. Consent is generally afforded by federal statutes. Note: a suit against a federal official acting in official capacity is deemed to be an action against the United States. If the official’s actions are beyond statutory powers, the official may be sued.
- What does the Eleventh amendment encompass?
A citizen of one state may not sue another state in federal court without the state’s consent. It has also been interpreted to prevent federal court suits by citizens of the state being sued. It does not bar suits by the federal government against a state, or against state subdivisions, or against state officials, or from being sued in the courts of other states.
- What is the Supreme Court’s power of judicial review?
The Court has held that it has the power to hold acts of other branches of the federal government unconstitutional; to hold state statutes unconstitutional, and to review judgments of state courts in cases that fall within the federal judicial power.
- What two methods has Congress provided for invoking Supreme Court appellate jurisdiction?
The appellate jurisdiction of the Supreme Court is invoked where the jurisdiction is mandatory and by certiorari (where it is within the Court’s discretion.) Certiorari will be granted only when there are special and important reasons. A denial or certiorari carries means that fewer than four members of the Court believe it desirable to review the decision.
- What limitations can Congress impose on the federal courts?
The power to limit Supreme Court review is limited by due process of law. Congress may deny all Supreme Court review of certain cases, but it must permit jurisdiction to remain in some lower federal court. In addition, certain avenues of review may be eliminated but not all avenues.
- What basic limitations are imposed upon all federal courts?
All federal courts are limited in jurisdiction to cases of controversy. The matter before the court must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy. Federal Courts will not issue advisory opinions.
- What is ‘ripeness’?
Under the requirement of a case or controversy and pursuant to principles of judicial self-restraint, the Court will not decide constitutional questions before it is necessary to do so.
- Will the Court issue declaratory judgments?
The Court may issue a declaratory judgment if there is a genuine controversy, the issue is ‘ripe,’ and a real threat of harm is present. If no claim of harm or justiciable controversy is alleged by the complaining party, the Court will not consider the case.
- What is a moot case?
A moot case is one in which there is no case or controversy. In some instances, a case is not moot even if a jail sentence has been served. The issue is recurring in elections problems, or where there is a voluntary cessation of activity by the plaintiff. The Court will not review a moot case.
- Define ‘standing.’
Standing concerns the requirement of a case or controversy and the prudential principles of judicial self-restraint. The second is a self-imposed limitation. Standing requires that there be a direct and immediate injury and causation showing that the injury suffered can be traced to the challenged action and redressed by judicial relief.
- Can Congress confer standing by federal statute?
Yes. However, the statute may not go beyond the article III requirement of ‘injury in fact.’ Complainants must demonstrate that they have engaged in conduct or wish to do so and that the challenged action poses a real and immediate danger to their interests.
- May a person assert the rights of third parties before the Court?
Generally not. Pursuant to the principles of judicial self-restraint, the court will only permit the injured person to claim a violation of his constitutional or statutory rights. An exception lies if it is difficult for a third party to assert the rights or if a special relationship exists between the claimant and the third party.
- How is standing determined for an association?
An association has standing even if no injury is suffered if the members themselves have standing, the interests asserted are germane to the association’s purpose, and neither the claim asserted nor the relief requested require the members to participate in the suit.
- What standing does a state have before the Court?
A state has standing to attack federal provisions regarding property interests. A state has no standing to attack a federal statute on the grounds that Congress has exceeded its delegated powers. In addition, a state is not considered parens patriae for its citizens.
- What additional requirements besides standing are imposed for review of state court decisions?
(1) State procedures must be exhausted. (2) There must be a federal question. (3) The judgment must be final, i.e., no further proceedings can be pending that could alter or modify the judgement. An issue is final regardless of state actions to be taken if a federal issue is conclusive, the issue will survive state court review, a later federal review would be impossible, or if the delay would seriously erode federal policy. (4) The state court decision must turn on a federal issue.
- What is ‘strict necessity’?
The Court will only decide those constitutional issues that are actually raised in the case before it, and will not decide them in broader terms than are required by the precise facts to which the ruling is to be applied.
- What is the ‘Abstention Doctrine’?
A federal court may abstain from granting an injunction or declaratory judgment and remand the parties to state court for an interpretation of a statute. This is usually done if there is an ambiguity that the state court may be able to clarify to avoid the constitutional issue. It is not done if the issue regards free speech or where further delays are unjustifiable.
- What is the effect of a declaration of unconstitutionality?
Depending on the issues presented, the ruling may apply retroactively to all earlier positions making them void ab initio. The decision may also be interpreted to apply to only a partial invalidity, depending on the nature of the statute and its severability from the unconstitutional portion.
- What is the Doctrine of Implied Powers?
Despite the doctrine of enumerated powers, the doctrine of implied powers holds that in addition to those powers specifically enumerated in the Constitution, certain broad powers are to be implied from the Necessary and Proper Clause.
- What is the Necessary and Proper Clause?
Congress is not limited to only those means that are absolutely necessary. It may use any appropriate means to achieve the ends specified in the enumerated powers. It is for Congress to decide the need for particular means, not the Court.
- What are inherent powers?
International powers are considered to be inherent federal powers even though not expressly recited in the Constitution.
- Can legislative powers be delegated?
The Nondelegation Doctrine has been abolished. The Court has been very liberal in its interpretation of the intelligible standards needed for Congress to delegate its legislative powers. They may even be delegated to the judicial branch.
- Will a tax be upheld in an area where Congress has no power to regulate?
Yes. The tax will be upheld if its dominant intent is revenue-raising rather than penal in nature. The objective test is whether or not the tax raises revenue. The subjective test looks to the people who enforce the tax, the detailed activity that is taxed, what if any scienter is required, and the amount of the tax.
- Can Congress spend tax revenue with the purpose of regulation?
Where Congress has the power to regulate, it may. If Congress has no power to regulate spending, this may be upheld if it satisfies a federal fiscal purpose. However, spending is limited to general welfare, and it may not be in violation of individual rights.
- Does the war power provision of Congress extend after the cessation of physical hostilities?
The war powers extend beyond the cessation of hostilities. They may not be as all-encompassing as during war, but they have been upheld.
- Who has power over naturalization and citizenship?
Congress has plenary power over aliens. If not on U.S. soil the authority of exclusion is virtually absolute. However, when they are on U.S. soil, they do have certain procedural rights, and they are considered to be persons under the fifth amendment. The power of naturalization is vested exclusively in Congress. Congress does not have the power to take away citizenship unless that citizen intended to relinquish citizenship.
- Is Congressional power over property absolute?
Only Congress has absolute power over United States property.
- Is Congress’ investigatory power enumerated or implied?
Congress’ investigatory power is implied from the power to legislate. The power to investigate is limited to inquiries about all matters upon which Congress could choose to act. The principle method of enforcement is by contempt. The privilege against self-incrimination, first amendment rights, and due process safeguards apply.
- Does the President have the power to remove appointees?
The Constitution is silent on these powers. Officers appointed by the President serve at the will of the President. Officers who serve in administrative bodies created by Congress may be removed by the President only for causes specified in the statute creating the organization.
- What types of legislative powers does the President have?
The legislative powers of the President are limited. Congress may grant powers by delegation. The Veto power is legislative, but that may be overridden by 2/3 majority of each House. As Commander-In-Chief, the President has legislative power in ‘theaters of war’ to establish military governments. There may also be an inherent power to act in great emergencies limited to congressional denial of authority.
- What is the scope of Executive Privilege?
There is no express recognition of Executive Privilege in the Constitution. Executive Privilege is derived from separation of powers. This privilege is given utmost deference by the courts for military, diplomatic, or sensitive national security interests. Other communications are presumptively privileged. There is an absolute immunity from civil damages. 34, Does Executive Privilege extend to presidential aides? They may be entitled to absolute immunity in the sensitive areas of foreign policy, national security, and military affairs. Ordinarily, they have qualified immunity and a shield from civil damages if their conduct does not clearly violate statutory or constitutional provisions under a reasonable person standard.
- What are the foreign affairs powers of Congress?
Congress has the power to regulate commerce with foreign nations, to declare war, to raise and support armies, and to provide for a navy.
- What are the foreign affairs powers of the President?
The President is the Commander-In-Chief of the Army and Navy. He shall receive foreign ambassadors and ministers and shall nominate and appoint U.S. ambassadors and other public ministers, subject to Senate confirmation. In addition, he has certain treaty powers.
- May Congress delegate greater power to the President for foreign affairs?
Congress may delegate greater power to the President for foreign affairs than is permitted under internal affairs.
- What is the effect of a treaty on state law?
Under the Supremacy Clause, treaties are the supreme law of the land.
- How many different types of treaties are there?
There are self-executing and legislative enacting treaties. A self-executing treaty needs no further action by Congress to take effect. A legislative enacting treaty requires Congress to expressly or impliedly pass effectuating legislation to create rights and liabilities thereunder.
- What limitations are placed on the treaty power?
Treaties may not contravene constitutional prohibitions that protect individual rights. In addition, treaties must concern a proper subject of negotiation between our government and the governments of other nations.
- What are Executive Agreements?
The Presidential power to enter into agreements or compacts with foreign countries independent of the treaty power and without the consent of the Senate are known as Executive Agreements.
- What powers are exclusive to the states?
Under the tenth amendment, all powers not delegated to the federal government are reserved for the states.
- What federal powers are exclusive?
State action is prohibited expressly in Article I, section 10 in treaty, coining money, laying imposts and duties, and keeping troops of ships in times of peace. The nature of some federal powers make them exclusive, such as borrowing money on the credit of the United States. Other powers are exclusive by the grant, such as federal jurisdiction over the District of Columbia.
- What constitutes privileges and immunities of national citizenship?
These are the rights that arise out of the relationship of the individual and the national government. They do not include the Bill of Rights. They do include the right to pass from state to state, the right to petition Congress for grievances, the right to vote for national officers, the right to assemble peaceably, and the right to discuss matters of valid national legislation.
- What is the enabling clause of the fourteenth amendment?
The enabling clause of the fourteenth amendment allows Congress to enforce the Privileges and Immunities Clause of the fourteenth amendment by appropriate legislation.
- What article prohibits state discrimination against noncitizens or nonresidents of the state in respect to essential activities or basic rights?
Article IV, section 2 provides: The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
- Does Article IV, section 2 prohibit all discrimination against noncitizens or nonresidents of a State?
Discrimination is allowed if it is closely or substantially related to a substantial state purpose.
- May states tax property and activities of the federal government?
Federal property and activities enjoy a greater immunity from state regulation and taxation than the states are afforded from federal regulation and taxation.
- How has the power of the tenth amendment been limited by Court rulings?
The Court has held that state interests are more properly protected by the inherent restraints of state participation that are built into the structure of the federal system. States are represented in the Congress. In the absence of extraordinary defects in the exercise of congressional power, the court will limit tenth amendment applications Q & A Constitutional Law 51 - 100
- What limitations are imposed upon state taxation of the federal government?
When Congress has spoken, Congress may authorize or prohibit taxation by the states upon the federal government. When Congress has not spoken, the Supremacy Clause impliedly forbids state taxes that discriminate against federal property or activities and nondiscriminatory taxes that unduly interfere with or place a substantial burden on the federal government.
- Can states regulate the federal government?
Congress has complete power to forbid or permit state regulation of federal property or activities. Absent congressional consent the Supremacy Clause impliedly prohibits state regulations that interfere with the performance of federal functions.
- Is the federal power to regulate interstate commerce concurrent with that of the states?
Yes. They are concurrent powers of regulation. The Court must determine the respective scopes of the federal and state powers regarding interstate commerce.
- What is the scope of federal power over interstate commerce?
The Commerce Clause Article I section 8 grants the power to regulate commerce among the several states. There are two theories: (1) Congress has power over the channels or facilities of interstate commerce; or (2) Congress has power over activities that have a national economic effect.
- What is Congress’ power over the channels or facilities of interstate commerce?
Congress has plenary power to regulate the channels or facilities of interstate commerce. This includes power over interstate carriers, roads, transmission facilities, etc. They can exclude from shipment any goods, persons, or activities found to be harmful to public health, safety, welfare, or morals. The motive of Congress is irrelevant.
- Is the federal police power broad enough to allow regulation even after interstate commerce has ended?
Yes. If the regulation relates to the conditions of the goods, the regulation may continue. It may not regulate the use of the goods.
- What is the scope of Congressional power regarding the regulation of interstate commerce under the national economic effect?
This power includes the power to prohibit as well as encourage both commercial and noncommercial activities. In addition, if the activity takes place wholly intrastate, it may still affect other states, making it subject to congressional regulation under this theory.
- Is federal power virtually limitless over regulation of intrastate commerce?
No. The intrastate activity must have a substantial relationship to interstate commerce or have a substantial effect on interstate commerce. However, the pertinent inquiry is not how much commerce is involved, but whether Congress could rationally conclude that the regulated activity affects interstate commerce.
- What is state regulation of interstate commerce dependent upon?
It is dependent on whether there is relevant federal legislation. Congress may expressly authorize or prohibit state regulation. If there is no express congressional authorization or prohibition of state law, the ‘supersession’ or ‘preemption’ doctrine applies. In addition, states have the power to act when Congress has not acted at all.
- What is the ‘supersession’ or ‘preemption’ doctrine?
When there is no express authorization or prohibition of state law in matters of interstate commerce, the Court determines the general intent of the federal statute and then upholds or forbids the state regulation in question.
- What factors does the Court look to in determining the general intent of Congress to apply the ‘supersession’ or ‘preemption’ doctrine?
The Court looks to: (1) the interest in uniform, national regulation; (2) historical or traditional classification of the subject matter as federal or local; (3) the completeness of the federal scheme; (4) the coincidence between the federal and state statutes.
- If Congress has not acted, when are state statutes that discriminate against interstate commerce valid?
Discriminatory state statutes will be upheld if they protect health and safety and if reasonable and adequate nondiscriminatory alternatives are unavailable. The only exception is if the state is a market participant.
- Are there any Court limitations imposed on state regulations that are not discriminatory against interstate commerce?
Yes. Under the ‘subject matter’ test, if the subject matter does not require a uniform national rule, is of local concern, and if it permits diverse regulation, it will be upheld. Under the ‘balancing’ test, the burden on interstate commerce is weighed against the strength of the state interest; unreasonable burdens are not upheld.
- When balancing is applied by the Court, what factors are considered?
The Court will give greater weight to statutes that further local health, safety, or social welfare interests than statutes that protect mere economic interests.
- Why do states have broad powers to regulate commerce involving liquor?
The passage of the twenty-first amendment has allowed the states to take greater liberties unconfined by commerce clause limitations. However, the twenty-first amendment does not permit regulation of interstate commerce.
- May states tax interstate commerce?
Yes. The tax is valid if Congress has not spoken, it is nondiscriminatory, and passes the test of due process, i.e., the benefits and protection afforded by the taxing state to those taxed have a sufficient relationship to the subject matter taxed, so the subject matter has a tax situs or nexus in the taxing state.
- What is an ad valorem property tax?
Ad valorem property taxes are based on the value of the property being taxed.
- When are ad valorem property taxes on the instrumentalities of commerce valid?
The instrumentalities of commerce are airplanes, railroad cars, and trucks, etc. The requirements are whether the property has acquired a taxable situs or nexus with the taxing state. Taxable situs is determined by the benefits and protection from the state. In addition, the property must have its value properly and fairly apportioned according to the amount of contacts with each taxing state.
- Can states levy ad valorem taxes on property in transit?
No. In transit is defined as cargo delivered to an interstate carrier or the cargo starting its interstate journey. Goods merely being prepared for transit are not immune from state taxation.
- What are ‘doing business’ taxes?
‘Doing business’ taxes are imposed for engaging in business within the state. They are valid if the activity taxed has a substantial nexus to the taxing state, the tax is fairly apportioned, it does not discriminate against interstate commerce, and if it fairly relates to the services provided.
- When are state taxes on solicitors or on representatives who engage in interstate commerce valid?
These taxes are not valid if the solicitor or representative orders are filled from goods shipped interstate. However, a state may impose a license tax on a peddler who actually sells and delivers wares within a state even if the goods are shipped from interstate commerce.
- What is the difference between a sales and a use tax?
A sales tax is imposed on sales consummated within the state. A use tax is imposed on the user of goods which were purchased outside the state. Use taxes are valid because they do not violate the Commerce Clause if they are levied at the same rate as a sales tax.
- If a sale is made to a buyer outside the state and the goods are delivered to the buyer by common carrier to the other state, is it valid for the seller state to impose a sales tax?
No. The Commerce Clause prohibits a sales tax by the seller’s state in this situation.
- How are foreign corporations protected from burdensome state taxes or regulations?
Foreign Corporations are not protected under the Privileges and Immunities Clause as they are not citizens, and the Commerce Clause is not clear in this area. However, they are protected under the Equal Protection Clause. Under Equal Protection a state may not impose more onerous taxes on foreign corporations unless the discrimination is rationally related to a legitimate state purpose.
- Is a nondiscriminatory ad valorem property tax on all imported goods located in a state prohibited?
No. The question that has not been answered is whether such a tax is valid on goods still in transit.
- May a state impose an ad valorem property tax on instrumentalities of international commerce with situs in the state if the instrumentalities are foreign owned and are used exclusively in international commerce?
No. The taxes are not valid even in the absence of congressional authorization because of the stricter limitations and the need for uniformity in international commerce.
- Are the Bill of Rights privileges and immunities of national citizenship protected on the state level by the fourteenth amendment Privileges and Immunities Clause?
The Bill of Rights are not privileges and immunities of National Citizenship.
- Are all of the Bills of Rights protected under the fourteenth amendment Due Process Clause?
No. Only those principles that are implicit in the concept of ordered liberty or are fundamental to the American scheme of justice are protected. This is known as the doctrine of Selective Incorporation. However, if a right is incorporated into the Due Process Clause, then all aspects and elements of the rights must be deemed incorporated.
- What provisions in the Bill of Rights have been incorporated into the Due Process Clause of the fourteenth amendment?
(1) First: religion, speech, assembly, and petition of grievances. (2) Fourth: arrest, search, and seizure. (3) Fifth: double jeopardy, self-incrimination, bar against taking property. (4) Sixth: counsel, confrontation, trials (speedy, public, jury), compulsory process. (5) Eighth: cruel and unusual punishment.
- What provisions of the Bill of Rights are not incorporated into the Due Process Clause of the fourteenth amendment?
(1) Fifth: grand jury indictment. (2) Seventh: civil jury trial for suits of $20 or more.
- Does Due Process protect rights beyond those enumerated in the Bill of Rights?
Yes. Modern decisions indicate that Due Process protects rights not enumerated in the Bill of Rights.
- Does an Equal Protection Clause that applies to the federal government exist under the Constitution?
There is no federal clause for equal protection. However, the Court uses the fifth amendment Due Process Clause.
- Are federal equal protection under the fifth amendment and state equal protection under the fourteenth amendment equal in interpretation and application?
No. They are not always ‘coextensive.’¬†Special national interests may justify discrimination by the federal government. Such discrimination with a local impact would be judged under the same standard as state equal protection.
- What two amendments protect due process of law?
The fifth for the federal government and the fourteenth for the state governments.
- What is substantive due process?
Due process that involves the substance of legislation is substantive due process. This is opposed to procedural due process that protects interests in procedural safeguards imposed before a person can be deprived of life, liberty, or property.
- Is the right to privacy enumerated in the Constitution?
No. The Court does recognize this right. Some hold that it is part of the ninth amendment: ‘the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.’ Others hold that it is within the penumbra or emanations of various provision of the Bill of Rights. Still, others have indicated that it is implicit in the concept of liberty within the protection of Due Process. Others indicate that it is a basic human right fundamental to society.
- To what areas has the right of privacy been applied?
(1) Marriage. (2) Procreation. (3) Contraception. (4) Abortion. (5) Right to educate children as one chooses.
- Is the right to interstate travel protected by the Constitution?
Yes. The source of the right is not exactly clear, but it is protected. It is virtually unqualified.
- Is the right to vote a fundamental right?
Yes. There is a fundamental right to participate in elections on an equal basis. However, the states are allowed to set the requirements for voting in both state and federal elections.
- Is the confinement to a mental hospital a deprivation of liberty subject to protection by the Due Process Clause?
Yes. The person must be dangerous to himself and others, or incapable of surviving safely outside an institution.
- Do the Due Process Clauses in the fifth and fourteenth amendments protect civil liberties and property interests of persons besides those accused of crimes?
Yes. Procedural Due Process requires some form of notice and hearing before an unbiased decision maker. The Court will first determine whether a liberty or property interest has been infringed upon and if so it will then determine what procedures are due.
- How does the Court define liberty?
Liberty is the right to be free of physical restraints in both criminal and noncriminal contexts. This also includes the right to be free of defamation when it is made public in connection with some significant tangible interest.
- How does the Court define property?
It is more than an ownership of real or personal property. It includes entitlements as well.
- What is necessary for a person to be deprived of life, liberty, or property by due process?
It requires more than mere negligent conduct on the part of a government. It is open whether reckless or gross negligence is sufficient. Note: the purpose of Due Process is to protect people from the power of government and not to ensure government protection of people from each other.
- How does the Court determine whether a prior evidentiary hearing is required to meet Due Process of law?
The Court weighs the importance of the individual interest involved, the value of specific procedural safeguards to that interest, and the government interest in fiscal and administrative efficiency.
- Does due process require an evidentiary hearing before termination of welfare benefits?
Yes. Counsel need not be provided. The final decision must be based solely on evidence adduced at the hearing and must be rendered by an impartial decision maker.
- Does due process require an evidentiary hearing before termination of disability benefits?
No prior evidentiary hearing is needed. Notice, an opportunity to respond in writing, and a subsequent evidentiary hearing are necessary.
- Does Due Process require an evidentiary hearing before termination of a public employee who is subject to removal only for cause?
No pretermination hearing is required if there is some form of pretermination notice, an opportunity to respond, and a subsequent evidentiary hearing.
- Does due process require an evidentiary hearing before termination of public education by disciplinary suspension?
Temporary suspension does not require a formal evidentiary hearing. Due process requires some notice and an opportunity to explain. If there is a real danger, notice and hearing may follow removal as soon as practicable.
- Does due process require an evidentiary hearing before termination of public education by academic dismissal?
No. Due process is satisfied if the student is adequately informed and given an opportunity to respond. 01. Does due process require an evidentiary hearing before license suspension? No. If there is probable cause to believe that conditions of a license have been violated, the state’s interest may permit the suspension without a prior hearing. However, there must be a prompt post-suspension hearing and decision on any disputed issue.
- Does due process require an evidentiary hearing before any prejudgment garnishment of wages?
Yes. However, if the application for prejudgment garnishment of wages is made before a judge, the application contains an affidavit based on personal knowledge setting forth specific facts, the creditor posts an adequate surety bond, and provisions are made for an early hearing, then it will be allowed.
- Does due process require an evidentiary hearing before termination of parental status?
Yes. In addition, appointment of counsel for indigent parents is only required if fundamental fairness demands it. Due process also requires that the state only need prove the charges by a preponderance of the evidence.
- What types of tests has the Court developed to determine whether Equal Protection has been violated?
(1) The rational basis test. (2) The strict scrutiny test. (3) The quasi-suspect test or mid-tier test.
- When is the rational basis test used to determine Equal Protection?
When the statutory classification is not based on suspect or quasi-suspect criteria, the rational basis test is used. It is used for virtually all economic and social regulations. Thus the classification is valid if it is rationally related to a proper state interest. Such classifications are presumed valid unless it is invidious, wholly arbitrary, or capricious. The burden of proof is on the challenger.
- What is a suspect classification?
Classifications that discriminate by race or national origin are suspect under Equal Protection. They will not be upheld unless found to be necessary to promote a compelling state interest, and no other means are available.
- Is a government’s negligent discrimination enough to invoke the strict scrutiny test?
The government must act with intentional or deliberate discrimination for strict scrutiny to be applied.
- How does the Court determine intentional or deliberate discrimination?
Such discrimination may be found on the face of the state action, by unequal administration, or by an impermissible motive.
- When unequal administration is claimed under Equal Protection, who has the burden of proof to invoke strict scrutiny?
The burden of proof of unequal administration lies with the person who alleges this form of discrimination. They must show that it was intentional or purposeful.
- When will the requirements of the prima facie case of unequal administration be ignored?
The requirement of an intentional showing will be excused when the law gives uncontrolled discretion to officials to engage in intentional racial discrimination when such laws have been used in the past to discriminate on the basis of race, and the courts are incapable of remedying further discriminatory applications.
- How does the Court determine an impermissible motive in order to apply strict scrutiny?
If the impermissible motive is not obvious from the effect of the law, the Court will look into such factors as: (1) the historical background of the action; (2) the sequence of events leading to the action; and (3) the statements of the members of the decision-making body.
- What is de facto discrimination?
Laws that are racially neutral on their face, in their administration and their motivations may nonetheless be discriminatory in effect. They may have a racially disproportionate impact. This de facto discrimination is judged by the rational basis test.
- What presumptions does the Court use to prove racial segregation?
(1) Segregation of a significant portion of the school district creates the presumption that the entire school district is segregated. (2) Intentional segregation of a meaningful portion of the district creates a presumption that all the schools are segregated. (3) If the presumption of segregation exists, the burden shifts to school authorities to prove that it does not exist.
