Final Con II

Question 1

Current USSC justices

Answer 1

 Conservative Justices: Thomas; Gorsuch; Kavanaugh; Roberts; Coney-Barrett; Alito
 Liberal Justices: Jackson; Sotomayor; Kagan

Question 2

Barron v Baltimore - drop in value of property due to state action

Answer 2

Pre-incorporation - Bill of Rights does not apply to states

Question 3

Slaughterhouse cases

Answer 3

Privileges and Immunities Clause only includes citizenship of the United States and doesn’t include citizenship of individual States; therefore, the Privileges and Immunities does not apply individual liberties to the States.

Question 4

Saenz case - interstate travel abridged by states

Answer 4

Actually apply P&I clause of 14th amendment to IST - only time

Question 5

Reasoning of incorporation

Answer 5

 No State shall deprive any person of life, liberty, or property without due process of law
 Used to apply the Bill of Rights to the States
 Use of the word “liberty” (fundamental rights) and property is how the Bill of Rights is incorporated into the 14th Amendment - not P&I clause = citizens while DP clause = any person

Question 6

Which provisions in Bill of Rights nor recognized by court

Answer 6

 3 provisions of the 28 in the Bill of Rights have still not be incorporated into the Bill of Rights
 3rd amendment – “right to not have soldiers quartered in a person’s home” – hasn’t come up
 5th amendment – “right to a grand jury indictment in criminal cases”
 7th amendment – “right to a jury trial in civil cases”

Question 7

Incorporation analysis

Answer 7

 Would “neither liberty nor justice exist if the right was sacrificed”
 Does right “involve principles of justice so rooted in the tradition and conscience of our people as to be fundamental”
 Is “right” implicit in the concept of ordered libery
 Does the violation of this right “offen canons of decency and fairness which express the notions of justice of English-speaking peoples?”
 Is right “deeply roote in this nations history and tradiation?”
 If YES – then the right is incorporated
`

Question 8

State Action analysis

Answer 8

Does it fall under exceptions?
If not apply lugar test (1) right of privilege created by state or rule of conduct imposed by state or someone for whom state is responsible (2) fairly said state actor

Question 9

Exceptions to state action

Answer 9

 The 13th Amendment directly regulates private conduct (slavery)
 Government (fed/state) can pass “public accommodation laws”
 Government can enact laws that require that private conduct meet the same standards that the Constitution requires of the government (i.e. the government can regulate things that affect interstate commerce through the Commerce Clause (Heart of Atlanta Motel case))
 States have the police power (to regulate health, safety, and welfare)
- Entanglement/Public Functinos exceptions

Question 10

When public functions exception has been used:

Answer 10

(1) The management of private property – analysis balances whether private property used for public purpose - company towns (yes), parks (yes), not shopping centers or private clubs (Augusta nations)

Question 11

Marsh case - company town

Answer 11

 Running a city is a public function and therefore it must be done in compliance with the Constitution, whether by the government or a private entity

Question 12

Evans v Newton - whites only condition of a park

Answer 12

public part held out to public but had “whites only” clause; court says golf culbs or other social centers may be private, a park is not

Question 13

Jackson v. Metropolitan Edison - no N&H when utilites shut off - heavily regulated utility case

Answer 13

does not fall under public functions just because regulated by the government

Question 14

Terry v Adams - Jaybird Democratic Association controlled a private primary that limited voting

Answer 14

falls under the public functions because it is a traditional state fxn

Question 15

What is a case that signalled the end of the Lochner Era

Answer 15

 West Coast Hotel Co. v. Parrish – End of Lochner
 State law imposing a minimum wage for women employees
 ISSUE: does a WA minimum wage law for women violate the Due Process Clause of the 14th amendment?
 Held: minimum wage laws for women are constitutional (overrules Adkins)
 How does the Court determine this?
* Evaluate the situation of women in employment
* Historical distinctions that need to be looked at
 WA’s police powers allow it to protect its citizens health, safety, and welfare
 The court states a strong “rational basis review”
* Gives Deference to the states
 We see that the Court will give more deference to the States and have a lot less involvement in the legislatures actions
Contracts of adhesion

Question 16

Define rational basis review

Answer 16

 High level of deference – presumption of constitutionality
* The law being reviewed is presumed to be Constitutional
* Challenger has the burden of proof
* RULE: The law will be upheld so long as the legislature has a 1. rational (reasonable) basis for thinking that 2. the law will accomplish its permissible goal/interest

Question 17

Define intermediate scrutiny

Answer 17

 Means SUBSTANTIALLY ADVANCES an IMPORTANT government interest
 The presumption shifts to a presumption against the government
 Presumption shifts in favor of the offender – forces the government to defend itself
 Presumption of invalidity (presumed UNconstitutional)
 Examples: involve gender

Question 18

Define strict scrutiny

Answer 18

 Means are NARROWLY TAILORED (or NECESSARY) to a COMPELLING government interest
 A very high standard that forces the government to defend itself
 A very high test that only few laws can survive
 Very narrowly tailored
 Presumption of invalidity (presumed UNconstitutional)
 Examples: Classifications based on race
 Examples of fundamental rights subject to heightened scrutiny:
 Racial issues, religion, Bill of Rights (people who argue there should be total incorporation)
 Right to Privacy – not in the Constitution but considered a fundamental right – court finds it in the “penumbra (area surrounding) of Bill of Rights”

Question 19

Give the continuum

Answer 19

Rational basisi

US v Plyler - rational basis plus education of children of illegal aliens

Intermediate scrutiny

US v Virgina - “exceedingly persuative jusitifcation”

Strict Scrutiny

Question 20

United States v Carolene products

Answer 20

Resurrected non-economic due process:

Government regulations with respect to economic issues will be given a greater amount of deference compared to individual rights
 When we are discussing fundamental rights (non-economic issues), there should be a heightened scrutiny – intermediate or strict

Question 21

Williamson v. Lee Optical of Oklahoma, Inc. - optician regulations case

Answer 21

Example of how far away from Lochner we have gone
-Whether the optician can fill prescriptions? Law says no
-The court upholds this law even though they seem to be creating a monopoly – deference to the State’s legislature

Question 22

State Farm v. Campbell - excessive punitive awards

Answer 22

State law allowing very high punitive awards struck down - first Lochner-like ruling seen in awhile

Question 23

Contracts clause analysis

Answer 23

FMay a STATE impair a contract?
First, does it substantially impair the contract,
Then feviewed under rational basis 2 part test - rationally related to the governments legitimate interest

Exception, where U.S. is a party to the contract - then will he subject to heightened review - see US Trust Co v New Jersey

Question 24

US Trust Co v New Jersey - gov’t changed their mind on using bonds for gov’t use

Answer 24

• Gov’t told people that they would not use their money for gov’t purposes. Later, the gov’t changed its mind and began to use bonds for gov’t use

Question 25

Parts of the First Amendment

Answer 25

 Express protections
* Religion
* Establishment
* Free exercise
* Free speech
* Free press
* Peaceable assembly
* Petition government regarding grievances
 Implicit protections
* Free association

Question 26

First amendment analysis for the test:

Answer 26

Ways of evaluating – the process for the test
Is it speech?/Is is conduct incident to speech?
Content-based vs. content-neutral (this is a key inquiry)
Vague/overbroad
Overbreadth: it regulates substantially more speech than the Constitution allows
“Prior restraints” (the most disfavored; restraints aimed at restricting speech before it occurs)
The exceptions:
* Less protected examples: commercial speech, low value sexual speech, profanity/indecent speech
* Unprotected examples: incitement of illegal activity, defamation, obscenity/child pornography, defamation/other torts
Forum analysis
Freedom of association

Question 27

First part of 1A analysis

Answer 27

Is it speech?
1. Is it “classic speech”
a. If yes, strict scrutiny
b. If no, go to 2
2. Is it communicative conduct?
1b) Is it communicative conduct?
Test via Spence v Washington (flag burning case)
a) person intends to convey a particular method ~AND~
b) Likelihood is great that the message was understood by those who viewed it
i) If NOT communicative conduct, apply rational basis
ii) If YES communicative conduct apply intermediate scrutiny AND O’Brien test
(1) Intermediate scrutiny =
(2) O’Brien test = government may regulate conduct when…
(a) Its within the governments power
(b) Furthers an important, sunstantial government interest
(c) Government interest is unrelated to speech (if it’s not, strict scrutiny would apply)
(d) Restriction is no greater than essential  he calls this “hybrid intermediate scrutiny”
NOTE - analyze (3) first - if it fails 3 it is STRICT SCRUTINY under lawrence v texas flag burning case

Question 28

2) Is it content-based vs. Content-neutral?

Answer 28

a) Content based is either:
i) Subject-based restrictions
ii) Viewpoint-based restrictions
b) “Knotty” issues
i) “Secondary effects doctrine” – only applied to “adult content”
(1) City of Renton v Playtime Theaters – 2o effects here are the effect of this business on the surrounding area
(2) But see Boos v Berry – protesting signs in front of embassy – would not apply secondary effects doctrine
ii) When government must choose based on subsidy
(1) National Endowment for the Arts v Finley - Congress passed “decency” standard when allocated arts endowments – clearly under taxing and spending for welfare clause – deemed taking decency into consideration was content-neutral
iii) When the government itself is speaking
(1) Walker v Texas Division Sons of Confederate Veterans – Confederate license plate determined to be speech government speech, not personal speech because it was a government ID
(2) But see Shurtleff v Boston – 2022 flag at city hall case – allowed many groups to fly flags at city hall, refused only religious group.

Question 29

SEcondary effects doctrine

Answer 29

(1) City of Renton v Playtime Theaters – 2o effects here are the effect of this business on the surrounding area
(2) But see Boos v Berry – protesting signs in front of embassy – would not apply secondary effects doctrine

Question 30

National Endowment for the Arts v Finley -

Answer 30

(1) National Endowment for the Arts v Finley - Congress passed “decency” standard when allocated arts endowments – clearly under taxing and spending for welfare clause – deemed taking decency into consideration was content-neutral

Question 31

1A when the government itself is speaking cases

Answer 31

(1) Walker v Texas Division Sons of Confederate Veterans – Confederate license plate determined to be speech government speech, not personal speech because it was a government ID
(2) But see Shurtleff v Boston – 2022 flag at city hall case – allowed many groups to fly flags at city hall, refused only religious group.

Question 32

i) City of Austin v Reagan National Airport – grandfathered zoning requirements for off-business versus on-business signs.

Answer 32

Example of content-neutral analysis - Is this content based? Court says No – content neutral

Question 33

Reed v Town of Gilbert - forbidding certain catergories of signs

Answer 33

Example of content-neutral analysis - Is this content based? Court says Yes

Question 34

Matal v Tam – TM disparagement clause unconstitutional – claims the anti-disparagement clause was a “happy talk” clause

Answer 34

Content-based restriction - “happy talk” language

Question 35

3) Is the restriction vague or overbroad?

Answer 35

a) Vagueness is when a “reasonable person” won’t understand what is being restricted – worry is malicious prosecution
i) Coates v City of Cincinnatti – Three or more persons on sidewalk “annoying” to passersby was vague
b) Overbreadth is when the law regulates substantially more speech than the Constitution allows
i) New York v Ferber – child pornography law applied to many more instances of child pronagraphy that artistic or scientific purposes
ii) But see – narrowing construction – Osborne v Ohio – adopted state court’s construction

Question 36

Is the restriction a prior retraint?

Answer 36

a) Worse kind of retraint on speech – will never see the speech to know it is restrained – also the reason the First Amendment was set forth in the first place (see seditious libel)
b) The test:
i) Government has an important reason for licensing
ii) Clear standards leaving almost no discretion to government
iii) procedural safeguards in place

Question 37

Lovell v City of Griffin - literature refusal case

Answer 37

Required “city manager approval” = too much discretion for prior retraint - unconstitutional

Question 38

Lox v New Hampshire - cant have 2 parades on the same day

Answer 38

example of nearly zero discretion - not a prior restraint

Question 39

City of Lakewood v Plain Dealers Publishing - no mail racks on public sidewalks

Answer 39

Allowed a “mayor’s exception” but did not have any criteria, too much discretion to gov’t for prior restraint

Question 40

Freedman v Maryland - procedural safeguards test

Answer 40

(1) place the burden of proving the film is unprotected expression on the censors,
(2) require judicial determination to impose a valid determination
(3) require prompt determination “within a specified time period.”

Question 41

Walker v City of Birmingham – Court-ordered prevention of demonstrations against MLK

Answer 41

problematic case – protestors should have gone to court and not ignored a unconstitutional injunction on demonstrations

Question 42

New York Times v U.S - pentagon papers release

Answer 42

unconstitutional prior restraint

Question 43

Are gag orders a prior restraint? (plus test)

Answer 43

i) Nebraska Press v Suart – three factor test laid out that did not clear the court, so the press was allowed to publish:
(1) Is the risk real?
(2) Least restrictive means?
(3) Was there a lot of coverage?

Question 44

Less common prior restraints (list of 5)

Answer 44

i) Allowing liability for expression
ii) Preventing compensation for speech
iii) Compelling expression
(1) Making Jehovah’s witness salute the flag
iv) Condition benefit on foregoing speech
v) Pressure individuals not to speak

Question 45

Brandenburg - criminal syndicate law applied to klansmen

Answer 45

Unconstitutional as applied because did not pass Brandenburg test:
(a) Likelihood (with intent) of causing
(b) Imminent
(c) Seriously harmful, lawless action

Question 46

(2) Hess v Indiana - we will take to the streets later case

Answer 46

Not imminent lawless action

Question 47

Fighting words catergories

Answer 47

Violence against speaker cases
Hate speech
Actually fighting words - not really followed anymore

Question 48

(2) Virginia v Black - cross burning case

Answer 48

conclusions:
(a) Hate speech alone is protected by 1A
(b) However, hate speech with intent to intimidate does not count

Question 49

Chapinsky v Indiana – “You are a god-damned racketeer” “and a fascist” language

Answer 49

Old school fighting words case - not less followed because the Court will find another reason (overbreadth, unlikely to incite violence) to throw out the case

Question 50

(4) RAV v City of St Paul – statute criminalizing burning a cross - D burns a cross on a black family’s yard

Answer 50

Seen as “content-based” (he thinks should have applied secondary effect test OR fighting words exception)

Question 51

Hostile audience case

Answer 51

(a) Feiner v New York – speaking ill of President, crowd becomes restless. The dissent becomes the standard - Police must try to control the audience that is threatening violence and stop the speaker only if crowd control is impossible and a threat to breach of the peace is imminent.

Question 52

Test for obscenity

Answer 52

(1) The Miller test:
(a) Whether the “average person” applying “local community standards” would find the word as a whole appeals to “prurient interest”
(b) Whether the work depicts in an offensive way sexual conduct defined by state law – AND -  commonly missed
(c) Whether the work as a whole, using a national standard lacks serious artistic, political, or scientific value

Question 53

Defamation test

Answer 53

(a) Speaker (newpaper) may be liable for speaking about a public official if
(i) P has clear and convincing evidence
(ii) P proves falsity of D’s statements
(iii) P prove D has actual malice (knowledge of reckless disregard of falsity)
(b) Thus via NYT:
(i) Public official & public OR private matter test
1. Compensatory damages – actual malice req’d
2. Punitive damages – actual malice – req’d
(ii) Private person & public matter
1. Compensatory damages – normal malice standard
2. Punitive damages – actual malice standard
(iii) Private person & private matter
1. Compensatory/Punitive damages – normal malice standard

Question 54

Torts as first amendment protections

Answer 54

Need to show actual malice if it is against a public figure

Question 55

Low value sexual speech

Answer 55

(1) Young v Am Mini Theaters – Separate zoning for regular movie theaters v regular ones – acceptable because this is a less protected class
(2) The nude dancing problem:
(a) Either conduct, not speech
(b) Or low value speech

Note - bring up the secondary effects doctrine

Question 56

(1) Cohen v California – “fuck the draft” jacket

Answer 56

Constitutional becuase you can divert your eyes - profanity exception does not apply

Question 57

WHat kinds of media are subject to profanity regulations

Answer 57

Not telephone or internet, broadcast - limited channels thus captive audience - TPM appropriate

Question 58

Commercial speech analysis

Answer 58

(1) First question – is it commercial speech? Sides will always disagree on this – is it directed towards selling products
(2) Central Hudson case – cease all ads on using electricity because there was a fuel shortage – wants to discourage the use of fuels – says unconstitional
(3) The Central Hudson test -
Assuming 1) that the ad is lawful and not misleading (if it is unlawful and/or misleading, it can be banned outright)
Government may regulate if:
2) substantial government interest; AND
3) regulation directly advances government interest; AND
4) no more extensive than necessary to advance the interest (when applying this partit must be narrowly tailored; in this context, even if there are less restrictive alternatives, this may still survive (which is different than strict scrutiny because in strict, if there are less restrictive alternatives, it won’t survive))
(a) This is basically intermediate scrutiny; by adding (4), it is intermediate scrutiny plus (not quite strict scrutiny but more than intermediate

Question 59

Case of commercial - PLUS improved test

Answer 59

Bolger v Youngs Drug Products – mailing contraceptive ads “objectionable material” under USPS law thus forbidden, court says free speech so unconstitutional as-applied
Commercial speech –
o First Bolger test
i) First: It is an advertisement of some form OR
ii) It refers to a specific product OR
iii) Speaker has an economic motivation (at least in part)
- Second – Central Hudson factors:
o Is it illegal or deceptive?
o Is it a substantial gov’t interest
o Does it “directly advance” this interest
o Is the restriction no more extensive than necessary

Question 60

Forum analysis (with cases)

Answer 60

a) Types of forums
i) Public forum (sidewalks etc)
(1) Jehovah’s witness pamphlets increased littering – subject to strict scrutiny and did not pass strict scrutiny
(2) Hague v Committee for Indust. Org. – blocking of pro-union activities by police, violently blocking movement through streets and parks was unconstitutional because these are public forums “kept in public trust”
(3) Schneider v New Jersey – municipalities NOT allowed to regulate public welfare, safety, and health by stopping handing out of handbills. Can put forth TPM restrictions or arrest litterers, but not a ban on handbills
(4) But see Adderley v Florida – rally outside of jail where they don’t disband  arrested, NOT free speech because you need to listen to government when they ask you to behave a certain way on their property
Perry union mailbox case

ii) Designated public forum
iii) Limited/Non-Public Forum – limited 1A protections
(1) Test:
(a) Reasonable
(b) Not viewpoint based

Question 61

Forums where 1A protections are limited:

Answer 61

Schools, prisons, military

Question 62

Analysis for a school forum

Answer 62

(a) Non-school sponsored speech – use Tinker test
(i) Substantially interferes with work of school
(ii) Impinges on the rights of othe students
1. Tinker v Des Moines Comm School Dist – black armbands plus fasting in protest of Vietnam = suspension
2. Mahoney v B.L. 2022 – personal cell phone used to complain about cheer on SnapChat – suspension unconstitutional because 1) off campus 2) not “in loco parentis”, 3) did not impinge
(b) School sponsored speech
(i) Reasonably related to
(ii) Legitimate pedagogical concerns
1. Bethel School v Fraser – obscene speech at school assembly results in suspension – court upholds because there are legitimate teaching concerns
2. Morse v Frederick – BONG HITS 4 JESUS outside school when torch passing through – court says school event

Question 63

Freedom of association analysis - the 4 types

Answer 63

Laws punishing membership
Gov’t requiring disclosure of membership
When govt can force membership
When 1A protects a groups rights to discriminate

Question 64

Laws preventing or punishing membership

Answer 64

a) Laws preventing or punishing membership
i) Rule: Can only limit membership if the group
(1) Active affiliation
(2) You have knowledge illegal objectives
(3) Specfic intent to further those objectives

Question 65

b) When government can require disclosure of membership

Answer 65

i) NAACP v Alabama - disclosing membership of NAACP, did not meet strict scrutiny
ii) Americans for Prosperity v Bonta – Large dollar donor disclosures for preventing tax fraud. Facial challenge for overbreadth – court used “exacting scrutiny” which is essenetially intermediate scrutiny PLUS – “substantial relationship between disclosure and government interest”

Question 66

c) When government can “force” membership

Answer 66

i) OVERRULED CASE – Abood v Detroit BoE – forcing union membership for public unions only, does so for labor peace and protecting the “free riders”
ii) Janus – Court overturns Abood because it considers it a contract of adhesion
(1) Note stare decisis factors:
(a) Quality of reasoning
(b) Workability of rule
(c) Consistency with other decisions
(d) Reliance
(e) Consistency

Question 67

d) When freedom of association protects a group’s right to discriminate

Answer 67

i) Two types of allowances:
(1) Intimiate associations (like Augusta Nat’l)
(2) Expressive if integral to the message
(a) U.S. v Jaycees – would not burden the male members to have female members
(b) Boy Scouts case – says forbidding homosexuality is in the charter and the public accomodation laws preventing discrimination must yield here

Question 68

Does equal protection apply to 5th amendment?

Answer 68

Yes,  Bolling uses 5th Amendment Due Process reasoning to include Equal Protection as applicable to Congress

Question 69

Analysis if you see a group being violated - 1) What is the classification?

Answer 69

1) What is the classification?
A. Is it “facial”? (facially discriminatory) OR
* If YES, go to second question
* The very language of the law or regulation makes a classification – ex. prohibiting blacks from serving on a jury
B. Is it “neutral”? (discriminatory in its effects (as applied))
* If it is neutral, plaintiff must show (plaintiff has the burden) that the government intended the particular discrimination.
* If NO, use RATIONAL BASIS
* If YES (i.e. a discriminatory purpose and effect is shown), go to third question
* Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose
* Laws that have a Discriminatory impact alone is insufficient – must prove discriminatory purpose – applies only to discriminatory as applied and applies only to race and national origin
* Rational basis: used when something only has a discriminatory impact; however, if the law has a discriminatory purpose and impact, then use a more heightened scrutiny
* You take into account the purpose, not the impact
* In application is there a discriminatory classification – ex. height and weight requirement for police officers (facts prove that women are smaller than men; therefore, very few women will satisfy that requirement)
* Would want to write about both but stress purpose
 Suspect Classifications – all classifications that get heightened scrutiny (intermediate or strict scrutiny)
* They are gender, non-marital children, race, national origin, alienage
* Age discrimination is not a violation of the Constitution because it is not a suspect classification; rather, it receives rational basis
* Rational for suspect classifications: notion is that it is unfair to penalize a person for characteristics that the person did not choose cannot change (immutable char.)

Question 70

Equal protections analysis part 2 -  2) What is the appropriate standard of review (level of scrutiny)?

Answer 70

 Rational basis (always the default) unless dealing with:
* A “suspect” classification; OR
* Five suspect classifications:
 Race
 Gender
 National origin
 Alienage (qualified)
 Children of unmarried parents/adoptees
 Strict scrutiny for:
* Race
* National origin
* Alienage
 Intermediate scrutiny for:
* Gender
* Children of unmarried parents/adoptees
*

Question 71

Equal protection analysis pt 3 -  3) Does the government action meet the level of scrutiny (Is the standard of review met)?

Answer 71

 “over-inclusiveness” and “under-inclusiveness” can come into play in this part of inquiry
* “Over-inclusiveness”: regulates individuals who are not similarly situated; that is, if it covers more people than it needs to in order to accomplish its purpose.
* “Under-inclusiveness”: when laws do not regulate all who are similarly situated
* Government can be underinclusive and include some things as a step to get to the larger problem. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all (Railway Express Agency v. New York)
* Example of overinclusive AND underinclusive – Korematsu – all people of Japanese heritage = overinclusive all Japanese people, underinclusive, not all espionage suspects
* Overinclusiveness and underinclusiveness are less allowed during strict scrutiny because there has to be a tighter fit with the law.
 For Rational Basis, relatively “loose fit” (“rationally related”) between government’s means (the law at issue) and ends (“legitimate government purpose”) is required
 For Strict Scrutiny, a “close fit” (“narrowly tailored”) between government’s means (the law at issue) and ends (“compelling government interest”)

Question 72

Overall analysis for equal proteciton - 3 questions

Answer 72

 What is the classification?
 What is the proper standard of review?
 Is the standard of review met?

Question 73

Catergories of cases based on race

Answer 73

• Classifications that disadvantage minorities
• Classifications burdening both Whites and minorities (Facial Classifications):
• Classifications that require separation of the races
• Facially neutral laws with a discriminatory impact
   Racial Classifications Benefiting Minorities

Question 74

Cases on * Classifications that disadvantage minorities

Answer 74

• Classifications that disadvantage minorities – exclusion of minorities in WWII (national origin) seen as constitutional – Korematsu v. United States (last case where racial or ethnic classification survived strict scrutiny)

Question 75

Cases on Classifications burdening both Whites and minorities (Facial Classifications):

Answer 75

• Burden both majority and minority groups
• Even though they are invidious, they violate Equal Protection because they discriminate based on race
• Loving v. Virginia
   Preventing inter-racial marriages is not a compelling governmental interest
• Palmore v. Sidoti
   The effects of racial prejudice by father cannot justify a racial classification removing an infant child from the custody of its natural mother

Question 76

• Classifications that require separation of the races - segregation

Answer 76

• Plessy v. Ferguson
   Established “Separate but equal”
   Law stated that Blacks and Whites were to be in separate train cars
   Court upholds the law and gives deference to the state legislature
   Court states that if people feel inferior, it is because they put that label on themselves
• Proliferation but separate but equal laws – but there is a lack of equality
• A way of institutionalizing a system of apartheid (separation of races)
• Brown v. Board of Education: overruling separate but equal
   Does the separation of children (white and black) deny them the Equal Protection of the law
   Court overrules Plessy v. Ferguson
   Justification on the part of the court:
   Looks to sociological studies because “moral reasons” would not have had consensus– criticized for this

Question 77

• Facially neutral laws with a discriminatory impact

Answer 77

• No “purpose” - Washington v. Davis
   Facts: blacks who were not passing police test claimed violation of Equal Protection Rights
   The Court upholds the test saying that the test does not discriminate against minority persons – need purpose
   Court holds that there must be a showing of a discriminatory purpose
   Reason is because the police department was actively pursuing hiring blacks
   Reasoning behind this – slippery slope argument
• McCleskey v. Kemp
   Whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that McCleskey’s capital sentence is unconstitutional under the 8th or 14th amendment
   Proof a discriminatory purpose is required – rat’l basis is the std
• BUT SEE Yick Wu - laundromat case where discriminatory purpose was obvious based on how incredible the discrepancy was

Question 78

• Proof of a Discriminatory Effect

Answer 78

 Palmer v. Thompson
 Pool case where the city owned and operated five pools – 4 white, 1 black
 An official government action that denies access to public facilities to all citizens does not violate the Equal Protections Clause.
 Court must find a racially motivated reason

Compare to Yick Wu

Question 79

 Racial Classifications Benefiting Minorities

Answer 79

• Affirmative Action Programs: - takeaway – quotas not okay, factors may be okay
• What is the classification?
   Ask as a subset, is it facially neutral or discriminatory impact?
• What is the appropriate standard of review?
• Is the standard of review met?
   Are the means and the end satisfied?
• What about benign classifications – situations that are intended to help minorities
• Where affirmative action programs come about
• Regents of the University of California v. Bakke – a plurality opinion (not much precedential value) first allowing aff action
• Richmond v. J.A. Croson Co.
• GOAL was to remedy past societal discrimination – not enough for the regulation to be a compelling government interest – 30% quota for minorities for construction contracts – overinclusive – USSC hates quotas
• Croson does not apply to the federal government, just states – Fed Aff Action okay for now
   Why would the court make this distinction between state government and federal government?
   More deference given to Congress – the 14th amendment section 5 gives Congress the authority to enforce the provisions of the 14th amendment – therefore, Congress may identify and redress the effects of society-wide discrimination
   Congress has the authority to provide for Equal Protection
• Grutter v. Bollinger
• Brief Fact Summary. A white law school applicant challenges a law school’s use of race as a factor in the admissions process.
• Synopsis of Rule of Law. Schools may consider race as a part of the admissions process as long as it is only one factor in an individualized process.
• Fisher v UT Austin
• Race is a factor of a factor in admissions – permissible - deference given to school saying that diversity it GOOD, not given to school w.r.t. how the diversity is achieved

Question 80

• Redistricting (Easley v. Cromartie)

Answer 80

• Gerrymandering is ok if it is done for political purposes but not if it is based on racial reasoning.
   For political redistricting, the standard of review is rational basis
   For racial redistricting, the standard of review is strict scrutiny

Question 81

Overall analysis for gender-based discrimination

Answer 81

 Think about real differences vs. archaic over-broad, generalizations (stereotypes)
 Need to explain in an argumentative fashion why the law may be over-broad or archaic? Argue these points to discredit the law
 Up until the 1970’s, gender classifications cases were given rational basis – deference to the legislature
 Remember: racial animus or animus against a disfavored group will never be acceptable (Romer and Moreno cases)

Question 82

Level of scrutiny for gender-based discrimination

Answer 82

 Level of scrutiny
 Gender classifications get intermediate scrutiny (substantially related to an important governmental interest) – Craig v. Boren – different drinking ages for men and women
 United States v. Virginia
 Whether Virginia’s exclusive male school, VMI, denies Equal Protection to women?
 Standard of Review – intermediate scrutiny (Craig v. Boren)
 Burden of justification of VMI (showing that the reason for VMI is substantially related to an important governmental interest) is demanding and it rests entirely on the state – the state has the burden of proof
 Here, the court doesn’t buy the governmental interest that it couldn’t achieve its goals of citizen soldiers if women were admitted. The fact that another school was created for only women is not acceptable because that is more like “separate but equal.”
 “Exceedingly persuasive justification” language taken from this case

Question 83

 Gender classifications benefiting women because stereotypes - cases

Answer 83

Unctonstitutional
 Orr v. Orr
 Brief Fact Summary. Appellant alleged that Alabama’s alimony statute was unconstitutional because it provided that husbands, but not wives, may be required to pay alimony upon divorce.
 Synopsis of Rule of Law. The Alabama statute is unconstitutional because it is not rationally related to the legitimate state objectives proposed for the statute.
 Historically, women are economically dependent on men so that is why this is the case here. Does this satisfy intermediate scrutiny?
 Califano v. Webster
 Brief Fact Summary. The Social Security old-age insurance benefits are calculated differently for men and women, with the result that women’s benefits are skewed slightly toward their later (higher earning) years, qualifying women for slightly greater benefits.
 Synopsis of Rule of Law. The government may enact remedial legislation to benefit women in areas where they have been traditionally discriminated against.

Question 84

 Gender classifications benefiting women because biology case

Answer 84

 Nguyen v. INS -
 Nguyen is subject to deportation because he committed a crime and his mother is gone but his father is here.
* The challenge is whether he is a citizen.
* There is a distinction between whether the mother or father is available to determine citizenship. It favors citizen mothers over citizen fathers. It is easier if you have the mother involved.
 This does not violate the clause and is acceptable. There are governmental interests that are important.
* The interests are:
* Ensure that a biological parent-child relationship exists
* Opportunity for a real relationship with the father (child and citizen parent had a real everyday relationship)
* Act of bearing a child is a real interest and the statute is ok

Question 85

Alienage discrimination analysis

Answer 85

 Alienage is a subcategory of national origin
 Aliens have the base protections and constitutional rights because they are still people, even if they are not citizens
 Distinguish from Privileges and Immunities Clause that specifically says “citizens”
 Alienage uses strict scrutiny usually:
 Exceptions:
 Classifications that are made to prevent aliens to participate in self-government or the democratic process will use rational basis review – includes aliens becoming school teachers
 If Congress decides to discriminate against aliens based on immigration, Congress may do so – standard of review? – More likely use 5th Amendment Due Process
* Balance federal governments interest in controlling terms of immigration against aliens right to fair treatment
 Undocumented aliens with respect to a classification that disadvantages children, there isn’t a named scrutiny, but the court seems to imply intermediate scrutiny – not rational basis and not strict scrutiny

Question 86

 Foley v. Connelie - noncitizen not allowed to be a police officer


Answer 86

New York State law prohibited non-citizens from being appointed state policemen. The Appellant, Edmund Foley, was refused the opportunity to sit for the state police exam on the basis of his alien status – close enough to an “executive” job for the court to say its constituional
Equal protection alienage

Question 87

Plyler v Doe analysis

Answer 87

 Whether a Texas law may deny to undocumented school-age children the free public education that it provides to children who are citizens of the US or legally admitted aliens
 Undocumented aliens cannot be treated as a suspect classification
 NOTE: they will receive intermediate scrutiny
 The denial of the free public education to the children of undocumented aliens within a state’s borders must be justified by a showing that such denial substantially furthers a substantial state interest.
 Court is not as deferential to the state law as usually is required under rational basis. Therefore, the court falls under something more than rational basis but less than intermediate scrutiny
 Education does not rise to the level of a fundamental right
 Holding: Court finds statute unconstitutional
 Arguing to preserve the states limited resource is never a sufficient reason

Question 88

D. Other Types of Discrimination: only Rational Basis Review (counter: law is arbitrary and unreasonable)

Answer 88

 Age classifications
 Vance v. Bradley
 Court upheld a federal law that mandates retirement at age 60 for participants in the Foreign Service Retirement System
 What is the classification – age
 Standard of Review – rational basis
 Once we see it is rational basis, the law is presumed constitutional and that is very difficult to overcome
 Massachusetts Board of Retirement v. Murgia
 Massachusetts law requires state police officers to retire upon turning 50 years old. The Respondent, Murgia, argues that this compulsory retirement denies him equal protection under the laws.
 This law does not violate equal protection.
 Why rational basis?
* We look at the traditional elements to see if a higher scrutiny is needed:
* History of discrimination
 No history based on age
* Immutability
 Everyone will be there at some point
* Political powerlessness
 They have a lot of political influence and can vote
* None of these factors is present so rational basis is the test
 Disability
 American with Disabilities Act – gives statutory protection to the handicapped
 Wealth discrimination
 Dandridge v. Williams
 State law that puts a cap on welfare benefits
 Sexual Orientation
 Romer v. Evans
 Court strikes down the Colorado amendment #2
 The Court had no need to consider whether heightened scrutiny is appropriate for discrimination based on sexual orientation
 Classification – sexual orientation
 Standard of Review – rational basis review (but it is a very strong rational basis – almost like Plyler)
 The Colorado law does not meet the discrete and insular minority and there isn’t immutable characteristics (people can choose their sexual orientation)
 In applying the rational basis review – Court strikes down the law.

Question 89

Fundamental rights question analysis framework

Answer 89

Is there a fundamental right
Is this right infringed
What is the level of scrutiny and is it met

Question 90

 1) Is there a Fundamental Right (or “constitutionally protected liberty interest”)?

Answer 90

 If NO, use RATIONAL BASIS
 If YES, go to second question
 Strict Text
 The 9th amendment is the exception to this – things not enumerated in the text may be implied
 Where do we go for rights not enumerated:
* Due Process – life, liberty, or property
* Equal Protection
* 9th Amendment: “The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people”
* Surprisingly, the 9th amendment has not been used by the court very much
 Fundamental rights (liberty interests) recognized by the court:
 Bill of rights – 1st – 10th amendments
 Family autonomy
* Right to marriage
* Right to control upbringing of children
* Right to custody
* Right to keep the family together
 Reproductive autonomy/Sexual activity
* Right to procreate
* Right to contraception
* Abortion – not anymore via Dobbs
* Sexual orientation
* Not a suspect classification under Equal Protection but it IS fundamental right under Due Process – subject to undefined form of heightened scrutiny
 Medical care decision making
* Unwanted medical treatment
* NO RIGHT to physician-assisted suicide
 Travel
 Voting
 Access to the courts

Question 91

 How is a fundamental right determined?


Answer 91

The test (see ex Griswald v ct):
* Extend to personal choices central to individual liberty and autonomy
* Deeply rooted in this nations history and tradition
* Implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed

Question 92

Is the right/interest infringed? - Fundamental Right analysis

Answer 92

Always yes on test- move on

Question 93

 3) What is the standard of review and is it met? (Does the Government Action Meet the Level of Scrutiny?) – only strict scrutiny OR rational basis here

Answer 93

 If fundamental right  STRICT SCRUTINY
 If constitutionally protected liberty interest  HEIGHTENED SCRUTINY
 It depends on the context. It isn’t quite strict scrutiny but it is highly scrutinized. For example, in the abortion context, the test is “undue burden” and not strict scrutiny.
 Compelling government interest (end)
 Narrowly tailored (means) – cannot be over or under inclusive

Question 94

C. Constitutional Protection for Family Autonomy

Answer 94

 Loving v. Virginia
 The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question.
 Note that this case may also be analyzed under an Equal Protection analysis and you will want to do both on the exam
 The right to marry is a fundamental right
 The Court uses strict scrutiny
 The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
 Phrase to use when discussing history and tradition: X is deeply rooted in this nation’s history and tradition
 Obergefell v Hodges – right to marry extended to gay couples

Question 95

(2) The Right to Custody of One’s Children

Answer 95

 Stanley v. Illinois
 Appellant had an ongoing relationship with a woman with whom he sired and raised three children. Upon the death of the mother the children were deemed wards of the State under an Illinois law that did not place children in the custody of unwed fathers.
 There is a compelling interest to protect child
 However, the law is not narrowly tailored because it is over-inclusive because it applies to all fathers (no showing that the parent was unfit)

Question 96

(3) The Right to Keep Family Together

Answer 96

 Moore v. City of East Cleveland, Ohio – grandma in jail = strict scrutiny
 Chemerinsky points out that this case says the Court will not find an infringement unless the law “directly and substantially” infringes the fundamental right
 Cleveland law limited unrelated people from living together (only the nuclear family could be in the household) which kept a grandmother from living with her 2 grandsons
 Simply, people being able to live together is not a fundamental right. However, related individuals DO have a fundamental right to live together.
 NOTE: Court will uphold zoning ordinances that prevent unrelated people from living together so long as it does not also prevent families (including extended) from living together
 Law only received rational basis review
 Now strict scrutiny is applied and the Cleveland law fails strict scrutiny – this is a fundamental right – right to keep family together
 Today – the right to keep the family together is a fundamental right

Question 97

(4) Right of parents to control the upbringing of their children

Answer 97

 Meyer v. Nebraska
 Meyer taught German in school and the State convicted him of that – Court strikes down state law and Meyer’s conviction
 The Court finds that how a children is taught and brought up is a fundamental right (right to control upbringing of children, including the type of education)
 We apply strict scrutiny
 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary
 Whether Oregon law requiring children from 8-16 must attend public schools is unconstitutional?
 Yes, parents have the right to control the education of their children and the choice whether to send their children to school
 This is a fundamental right allowing parents to control upbringing of children

Question 98

D. Constitutional Protection for Reproductive Autonomy

Answer 98

The right to procreate, use contreception, and FORMERLY abortion

Question 99

(1) The Right to Procreate

Answer 99

 Skinner v. Oklahoma
 Whether OK’s law depriving certain individuals (criminals) the right to have offspring is unconstitutional?
 What analysis does the court use?
 Equal Protection
 How?
* Classification is the type of crime for what an individual has been committed – not a suspect classification – use rational basis
 Why hasn’t the court been using Due Process – these cases are in the Lochner Era
 The right to have offspring is a fundamental right, requiring a compelling state interest to interfere with it. When the law concerning those who have committed intrinsically the same type of offense punishes one, but not the other by depriving the one of a fundamental right, an invidious discrimination has been made.

Question 100

(2) The Right to Purchase and Use Contraceptives

Answer 100

 Griswold v. Connecticut
 Whether a law preventing the use of contraception or distribution of contraception is constitutional?
 What right is the fundamental raised – right to privacy?
 No right to privacy explicitly stated in the Constitution
 How does the Court justify a right to privacy?
* History and tradition
* Sanctity of the marital bedroom
* Court looks to the 1st amendment right to associate and the 3rd 4th, 5th, and 9th amendment = the penumbra of bill of rights
* In this penumbra, we find a right to privacy  this language use on test – right to privacy is not in Constitution by in the penumbra of the bill of rights it exists
* Thus, the right of a married couple to privacy is protected because it is so firmly rooted in tradition that its protection is mandated

**Important note - Court currently uses the concurrences logic that this is just under due process

Question 101

 Dobbs v Jacksons Womens Health analysis

Answer 101

 Majority opinion
 Say that the fundamental rights analysis has three parts
 Stare decisis does not hold because:
* Workability of the rule – cite Casey and say the rule was not workable
* Quality of the reasoning – say it was poorly reasoned because it inadequately considered the state’s interest in fetal viability and ignored history
* Nature of the court’s error
* Reliance – say pregnancy is unplanned
* Facts that are no longer applicable
 Dissent
 Says that privacy laws similar would not apply if the “what was going on in 1800” standard is what guides this court
 Kavanaugh’s concurrence – says Obergafell is safe

Question 102

(1) Right to Refuse Treatment

Answer 102

• There is generally a fundamental right to refuse medical treatment, but it is not absolute and may be regulated by the state – “heightened scrutiny” required
   Cruzan v. Director, Missouri Dept. of Health
   Nancy Cruzan was involved in a car accident, which left her in a “persistent vegetative state.” After it became clear that Cruzan would not improve, her parents requested that the hospital terminate the life-support procedures the hospital was providing. The hospital and subsequently the State court refused to comply.
   Whether parents/family members have the right to decide whether another family member may cease child’s life
   3 points the court points out:
   There is a right to refuse medical care/treatment
• Court looks to longstanding practice which is rooted in society – where we will find the fundamental right
• NOTE: court never says we have a fundamental right – court never annunciates strict scrutiny
• We cannot conclude that we have a fundamental right in this case.
• Case has precedential value only with similar fact situations
   Clear and convincing evidence standard is acceptable in this context
   State may prevent family members from terminating care for another
   What if Cruzan had a surrogate allowing for that person to make the determination of whether Cruzan should continue to live
   Court expressly says that it will not discuss this issue in this case
   Think about this for exam purposes
   Criticism of Cruzan, what is “clear and convincing” evidence (must be clear and convincing evidence that the patient would have voluntarily declined the life-sustaining measures)

Question 103

(2) Right to Physician-Assisted Suicide

Answer 103

 Washington v. Glucksberg
 Issue: whether Washington’s prohibition against “causing” or “aiding” a suicide offends the Fourteenth Amendment to the United States Constitution.
 The Court applies rational basis because there is no fundamental right
 Court looks to what the State’s interest might have been – protecting life
 Looks to history in the Netherlands
 Due process specially protects those fundamental rights and liberties which are “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”
 Court must look at these things before finding it is constitutionally protected.
 Court concludes that the answer is a State decision
 Court holds that the WA statute is not a violation of the Constitution and survives the rational basis test
 State has a legitimate interest that is rationally related to meeting its ends

Question 104

F. Constitutional Protection for Sexual Orientation and Sexual Activity

Answer 104

 Bowers v. Hardwick (didn’t read)
 Hardwick was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of the respondent’s home
 Whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long tome.
 Argument on behalf of the challenger:
 Look to other court decisions where the court has found fundamental rights
 History argument:
 Since the states have traditionally held that homosexual activity is prohibited, the court is not willing to expand the fundamental rights to include this
 How does Hardwick argue that this is a fundamental right?
 If there is a law that needs to be changed, change it – change history when it needs to be changed
 More substantive argument is a right to privacy
* Penumbra of Bill of Rights
* Liberty right
* Right to sanctity in our bedroom
* The right to be “let alone”
 Where are we with protection of sexual orientation?
 The is no fundamental right for this
 Rational basis governs
 Specific facts may change this decision – may become a fundamental right

Question 105

 Lawrence v. Texas

Answer 105

 Police found two men engaged in sexual conduct, in their home, and they were arrested under a Texas statute that prohibited such conduct between two men.
 Synopsis of Rule of Law. While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the Fourteenth Amendment.
 Does a law that prohibits sexual relations between two people of the same sex violate the Constitution? Yes
 Court uses rational basis language but uses heightened scrutiny
 The court has struck down all state laws that criminalize homosexual sodomy, on the grounds that such laws “demean the lives of homosexual persons,” and thus violate their substantive due process rights.

Question 106

G. Right to Vote

Answer 106

 Reynolds v. Sims – 1 person 1 vote case
 A state’s apportionment scheme lacking the one person, one vote principle resulted in an inequity in the weight placed on votes cast by participants in the election of state legislatures.
 The Equal Protection Clause of the Constitution guarantees that the right to have one’s vote counted equally to other voters in an election of state legislatures. In most instances, districts should be apportioned to allow each voter to have one, undiluted vote.
 One person, one vote concept (applies to all forms of local governments)

Question 107

H. Right to Education

Answer 107

 Right to education is NOT a fundamental right
 State may allow or even foster inequalities in the distribution of public school education, without violating any fundamental right, and thus without having to pass strict scrutiny.
 Even though the Supreme Court has found otherwise, states can declare education a fundamental right.
 San Antonio Independent School District v. Rodriguez
 Respondents brought a class action on behalf of parents and students residing in poor school districts in Texas, alleging the State’s system of funding schools based on local property taxes denies equal protection to students in poor districts.
 Education is not a “fundamental right” for purposes of Equal Protection analysis so rational basis applies and courts defer to legislature  compare to Plyler v Doe where education got special protections
 Say food/shelter are also not constitutionally guaranteed
 Look at whether the TX system of financing public education operates to the disadvantage of some suspect class or impinges on a fundamental right which would require strict scrutiny. If not, use rational basis test. Poverty is not a suspect class and therefore discrimination against the poor only need meet rational basis review. Because the use of property taxes to finance education is a rational way of achieving a legitimate state goal of giving each local school district a large measure of control of the education the residents get, this “mere rationality” standard is satisfied.

Question 108

I. Procedural Due Process

Answer 108

Is it a deprivation?
Is if of life, liberty, or property
Is it without due process of law?

Question 109

In DP analysis - o 1) Is it a “deprivation”?


Answer 109

Negligenceno (see Daniel v. Williams)
 Reckless, indifferent behavior (by government)yes
* BUT, if it is an emergencyno (see County of Sacramento v. Lewis)
o HOWEVER, even if it is an emergency, if it so egregious that it “shocks the conscience”yes (see County of Sacramento v. Lewis)
 To determine “shocks the conscience”: compare with cases like Rochin v. California (forced pumping of the stomach)
 Failure to prevent from private partysno (see DeShaney v. Winnebago- poor josh case; Castle Rock v. Gonzales)

Question 110

In PDP analysis - o 2) Is it “life, liberty, or property”?

Answer 110

 Aid to Families with Dependent Childrenyes, a pretermination hearing is required (Goldberg v. Kelly - taking away entitlement no N&H)
 Property interest? -
* Need “more than just an abstract need or desire for ir” (see Board of Regents v. Roth)
o BUT, if you have a legitimate claim of entitlementyes (e.g. state law that creates a “reasonable expectation” or “understaning that stems from an independent source”) (see Board of Regents v. Roth)
* If there is an entitlement (created by state law), then it is a property interest and can be taken away only with notice and hearing. (Goss v. Lopez - state law education and wanted suspensions off of record)
 Liberty interest?
* Reputation alone is not a liberty interest without a promise by the state vis a vis Goss (Paul v. Davis).

Question 111

o 3) Is it without due process of law (i.e. “adequate safeguards”) (what “process” is required)?

Answer 111

 Mathews v. Eldridge test
* Consider the following three factors to determine the adequacy of the process
o 1) Private interest that will be affected by the official action
o 2) Risk of an erroneous deprivation of such interest through the procedures used (probable value of additional process)
o 3) Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail

Question 112

Things to look at when determining suspect classification:

Answer 112

 Immutability
 Political powerlessness
 History of discrimination
* A fundamental right (strict scrutiny) (see ~page 30)