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Equal Protection: Race and the Constitution

a. Introduction
i. The Constitution is a deeply compromised document
ii. Slavery is not explicitly mentioned, but affirmed and supported in three provisions of the
original Constitution
1. Art. I, 2, cl. 3: 3/5 Compromise
2. Art. I, 9, cl. 1: Taxing of slave trade
3. Art. IV, 2, cl. 3: Fugitive slave clause authorized Congress to imprison private
individuals/action who/which interfered with their property
a. Fugitive Slave Act of 1793 Congress took Art. IV, 2, cl. 3 and made a
federal law [necessary to add teeth to make repercussions]
iii. Rights Denied to Blacks
1. Political Rights the right to vote and sit on a jury
2. Civil Rights meant to be assured and protected by Civil Rights Act of 1866;
Common law rights to contract, own and transfer property, and to invoke and
access the legal process
3. Social Rights private association rights; integration, housing, schooling, etc
b. The Legacy of Brown v. Board of Education
i. Congressional Landmarks in Overturning Slavery
1. Pre-Civil War Acts of Congress
a. Missouri Compromise (1820)
i. An act of Congress that prohibited slavery north and west of
Missouri in turn for allowing the rest of the country to follow a
local option
2. Post-Civil War Constitutional Amendments
a. 13th Amendment (1865)
i. Private Right of Action (aimed at individual slave holders); and
ii. State Action Requirement
b. 14th Amendment (1868)
i. State Action Requirement
1. No private right of action
ii. Joint Committee on Reconstruction delegated by Congress
iii. AKA Joint Committee of Fifteen
iv. Given by Congress the task of drafting the Fourteenth Amendment
so as to protect the slaves freed by the Thirteenth Amendment from
southern efforts to deprive them of political and civil rights
v. Section 1 prohibited discrimination as to the civil rights of
persons because of race, color, or previous conditions of servitude
vi. It is not clear from the committees deliberations what the term
equal protection was meant to add
c. 15 Amendment (1870)
3. Post-Civil War Acts of Congress
a. Civil Rights Act (1866)





i. Provided enforcement for 2 of the 13th Amendment

ii. Private Right of Action
iii. Post Civil Rights Act of 1866, Congress realized, its not enough
to abolish slavery; we have to give them citizenship, to ensure that
Blacks have absolute equal rights
iv. 42 USC 1981-82
Reconstruction Act (1867)
i. (Northern) Federal Militia Occupies the South
ii. Purpose is to ensure that freed Blacks vote en masse
iii. South divided into 5 military districts
iv. Hold constitutional conventions and ratify new Southern state
v. Ratify new state constitutions
vi. All males given vote
vii. Must ratify the 14th Amendment, giving citizenship to Blacks
1. State action requirement
2. No state shall make or abridge any laws in opposition to
the amendment
3. Nor shall any state deny any citizen equal protection of the
Civil Rights Enforcement Acts (1870 & 1871)
i. AKA the anti-KKK Acts
ii. State action required
iii. 5 of 14th Amendment
Civil Rights Act (1875)
i. 2 of 13th Amendment & 5 of the 14th Amendment
ii. Held both state and private actors accountable
iii. Overturned by The Civil Rights Cases (US 1883)
Civil Rights Act (1954)
Civil Rights Act (1965)

c. Judicial Landmarks in Overturning Slavery

i. Dred Scott v. Sandford (1857)
1. Facts: Scott sued in federal court arguing that his trips to free states made him
2. Issue: Whether Plaintiff was free pursuant to the Missouri Compromise (no)
3. Rule: Plaintiff was not a citizen within meaning of Art. III, thus the District Court
did not have jurisdiction to hear his claim; Defendant cannot be dispossessed of
his property merely because he takes his property into a particular territory
consistent with Due Process
4. POC: Overturned the Missouri Compromise making slavery permissible in every
state and territory; Nationalization of Slavery; Blacks considered property; The
Court ruled that Congress had acted ultra vires outside its authority
5. Note:
a. Dred Scott ultimately overturned by the 13th Amendment, through
Congressional action, not the Court
ii. Strauder v. West Virginia (1880)
1. POC: The Court overturned a WV statute excluding any but white male
persons from juries arguably contrary to the Framers intent not to regulate
political rights; First race-based 14th Amendment case


Plessy v. Ferguson (p. 68)

1. Facts: An 1890 LA statute required railway companies to provide equal but
separate accommodations for white and blacks, making it a crime to violate the
required segregation. The state prosecuted Plessy of 1/8 African ancestry for
refusing to leave the car reserved for whites. Plessy claimed violations under the
13th and 14th Amendments, arguing that he was entitled to sit in the whites-only
car and that the state had deprived him of a property interest in his whiteness and
of equal protection of the laws
2. Issues: Whether the LA statute violated the Thirteenth Amendment (no); Whether
the statute was a reasonable regulation in light of the Fourteenth Amendment
3. Rules: A legal distinction founded in the color of two races has no tendency to
destroy the legal equality of the two races; A law which authorizes or even
requires the separation of two races in public conveyances is not unreasonable or
more obnoxious to the Fourteenth Amendment than the acts of Congress requiring
separate schools for colored children
4. POC: Established separate but equal doctrine (no language included about
monitoring standards of separate but equal)
5. Key Question: What was the intent of the 14th Amendments framers? Did they
intend social integration or equality? (no purpose of the Amendment was to
ensure political equality; social equality is not required under the 14 th
6. Notes:
a. State action legislation amounting to state sponsored discrimination is
legal and acceptable; Apartheid constitutional under 13th and 14th
b. No private right of action under the 14th Amendment
c. Private and state right of action under the 13th Amendment
d. Plessy is considered a flawed decision, upholding Jim Crow laws, as it
completely ignored Plessys Constitutional argument (obvious state
e. Most historians said that the 14th Amendments Equal Protection Clause
was meant to secure civil rights, but not meant to secure political
rights or social rights
f. What was Congress Doing During Plessy?
i. Could Congress have done something under the Supremacy Clause
(Art. 6, cl. 2) or the Enforcement Clause (14 th Am, 5) to overturn
Jim Crow (probably, but there was a lack of will)
ii. Under the Supremacy Clause of Article VI, Congress can pass
statutes preempting, or invalidating, state law, assuming those
statutes are within Congress authority delegated by the
iii. The case for segregated transportation was constitutionally weaker
than that for segregated education
iv. The 1875 Civil Rights Act prohibited segregation in transportation
but said nothing about schools

d. Separate but Equal Education

i. NAACP Legal Defense and Education Fund (1920)
1. Separate but equal cannot be equal; As long as there is separation of the races in
public accommodations [including education] they are never going to be equal,
regardless of the quality of the facilities
ii. De Jure Segregation by law things are separated (e.g. Jim Crow, pre-Brown)
iii. De Facto not by law per se, but segregation in fact/reality (Post Brown)
iv. To end de jure discrimination, Plessy must be overturned
v. Sweatt v. Painter (p. 78)
1. Facts: Sweatt was denied admission to the University of Texas Law School, on
the ground that the hastily assembled Prairie View Law School was a suitably
equivalent facility. Thurgood Marshall argued that racial classifications were per
se unreasonable and that a one-person law school was inherently unequal to the
Texas Law School
2. POC: The Court recognized the significance of intangible differences in the two
schools, suggesting that segregation itself contributed to these intangible
differences, and ordered the University of Texas to admit Sweatt
3. Note: DOJ, for the first time in a public education case, filed a brief arguing that
Plessy had been incorrectly decided
vi. Brown v. Board
1. Issue: Does segregation of children in public schools solely on the basis of race,
even though the physical facilities and other tangible factors may be equal,
deprive the children of the minority group of equal educational opportunities?
2. Rule: Separate educational facilities are inherently unequal
3. Holding: The 14th Amendment forbids States to use their governmental power to
bar children on racial grounds from attending schools where there is state
participation through any arrangement, management, funds, or property. Separate
but equal doctrine of Plessy does not satisfy the Fourteenth Amendments
requirement that black schoolchildren be afforded equal protection of the laws;
Overturns Plessy
vii. Bolling v. Sharpe (p. 87)
1. Facts: The Fifth Amendment, which is applicable in the District of Columbia,
does not contain an equal protection clause as does the Fourteenth Amendment
which applies only to the states.
2. Issue: Whether segregation of DC public schools amounted to discrimination so
unjustifiable as to be violative of due process (yes)
3. Rule: Liberty under law extends to the full range of conduct which the individual
is free to pursue, and it cannot be restricted except for a proper governmental
4. Holding: Segregation in public education is not reasonably related to any proper
governmental objective, and thus it imposes on negro children of DC a burden
that constitutes an arbitrary deprivation of the liberty in violation of the Due
Process Clause; Racial segregation in the public schools of DC is a denial of the
due process of law guaranteed by the Fifth Amendment





5. Notes: Uses 5th Amendment (Due Process, no Equal Protection Clause in 5 th

Amendment) as 14th applies only to states. Plaintiff uses slightly different
strategy, but same holding as Brown. The Thurgood Marshall approach in Brown
was called the equalization approach. Court took the 14th Amendments EPC
and incorporated it into the 5th, in a process called Reverse Incorporating.
6. Implied Equality Principle in the 5th Amendment
7. Express or Implied Rights; in order for it to be implied, there must be case law
8. The rule of stare decisis is not an absolute rule
Brown II (p. 100)
1. Facts: Case decided in order to define the manner in which relief, as held in
Brown I, is to be accorded; The Court also delegated the task of carrying out
school desegregation to district courts
2. Issue: Whether the action of the school authorities constitutes good faith
implementation of the governing constitutional principles
3. Rule: It is up to the courts to decide whether the action of the school authorities
constitutes good faith implementation of the governing constitutional principles,
deliberate speed; Requires actual integration and not just desegregation
4. POC: The Court remanded the cases to the lower courts to fashion equitable
relief, namely, injunctions requiring the school boards to make a prompt and
reasonable start toward full compliance with Brown I. The lower courts were
instructed to retain jurisdiction over the litigation and enter such orders and
decrees as are necessary and proper to admit to public schools on a racially
nondiscriminatory basis and with all deliberate speed the parties to the cases
Cooper v. Aaron (p. 101)
1. Facts: Following Brown, defendant school board president of Little Rock and
governor of Arkansas asked for a delay of 2.5 years to integrate schools. Group
of children brought suit; all nine justices announced the opinion
2. Issue: Whether there is a duty on state officials to obey federal court orders
resting on the Courts considered interpretation of the US Constitution (Yes)
Whether the Governor and Legislature of Arkansas are bound by the Courts
holding in Brown (yes)
3. Rule: The interpretation of the Fourteenth Amendment enunciated by this Court
in the Brown case is the supreme law of the land, and Art. VI of the Constitution
makes it of binding effect on the States any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding; No state legislator or executive or
judicial officer can war against the Constitution without violating his undertaking
to support it; further enforcing Article VI which makes the Constitution the
supreme Law of the Land
Enactment of the Civil Rights Act of 1964 gave Brown teeth
1. Title IV authorized the Department of Justice to bring desegregation lawsuits and
prohibited racial discrimination in any program receiving federal financial
Swann v. Charlotte-Mecklenburg Board of Education (p. 106)
1. Facts: As a large majority of the African-American students in the school system
attended schools that were 99% black, plaintiff class sued. District court judge
rejected plans offered by Defendant school board, in favor of a plan, developed by

the court-appointed expert, which rezoned school districts in ways that distributed
black students to previously white schools, requiring extensive bussing
2. Issue: Whether the dstrict court judge exercised proper constitutional power in
imposing an equity-based remedy requiring the rezoning of school districts and
extensive busing (yes)
3. Green: School authorities are charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch
4. Rule: If school authorities fail in their affirmative obligations under these
holdings (Brown II, Green) judicial authority may be invoked. Once a right and a
violation have been shown, the scope of a district courts equitable powers to
remedy past wrongs is broad, for breadth and flexibility are inherent in equitable
remedies; In a system with a history of segregation the need for remedial criteria
of sufficient specificity to assure a school authoritys compliance with its
constitutional duty warrants a presumption against schools that are substantially
disproportionate in their racial composition
5. POC: District court judges have substantial discretion to fashion a remedy
xii. Keys v. School District No. 1 (p. 110)
1. POC: De facto racial segregation (segregation resulting from purely private
decisionmaking) in public schools does not violate the Equal Protection Clause;
only de jure racial segregation (that attributable to the state) is actionable
xiii. Milliken v. Bradley (p. 111)
1. Facts: The federal district judge found that the Detroit Board of Education had
created and perpetuated a system of racially segregated school districts, and as an
entity created by Michigan, the Boards unconstitutional acts were attributable to
the state. The court imposed a remedy dependent on heavy busing
2. Issue: Whether the precedent of Keyes, Swann, and Green (which all involved a
single school district) apply to segregation amongst multiple school districts (no)
3. Rule: Before the boundaries of separate and autonomous school districts may be
set aside by consolidating the separate units for remedial purposes or by imposing
a cross-district remedy, it must first be shown that there has been a constitutional
violation within one district that produced a significant segregative effect in
another district. Specifically, it must be shown that racially discriminatory acts of
the state or local school districts, or of a single school district, have been a
substantial cause of inter-district segregation; Interdistrict remedy vacated
xiv. Freeman v. Pitts (p. 113)
1. Facts: Lower court relinquished jurisdiction over student assignment of school
system finding that continued segregation in the schools was caused by changing
residential patterns and not by anything the local government had done
2. Rule: A federal court in a school desegregation case has the discretion to order an
incremental or partial withdrawal of its supervision and control; That there is
racial imbalance in schools is not tantamount to a showing that the school district
is in noncompliance with its duties under the law. Racial balance is to be pursued
where it has been caused by a constitutional violation. Once the racial imbalance
due to the de jure violation has been remedied, the school district is under no duty
to remedy imbalance that is caused by demographic factors

3. Holding: Where re-segregation is a product not of state action but of private

choices it does not have constitutional implications
xv. Note:
1. The Constitution generally applies just to state and not private action. In order to
find a constitutional violation, therefore, courts have been forced to look
backwards to earlier acts of intentional state discrimination
2. So long as the state is neutral, there is nothing constitutionally or pedagogically
wrong with single-race public schools
xvi. Is Brown Consistent With the Original Meaning of the Fourteenth Amendment?
1. Segregationist attitudes and laws in/around 1868
a. Senate galleries were racially segregated in 1866 when Congress was
drafting and debating the Fourteenth Amendment
b. Civil equality only assured rights of formal access to courts, contracting,
and property ownership, not any kind of social equality
xvii. Race and the Equal Protection Clause
1. The Equal Protection Clause does not mention racial discrimination
2. One way to understand the result in Brown is that the states segregation had to
overcome a strong presumption against distinctions grounded upon race, and the
states never overcame that presumption
e. Racial Classifications After Brown
i. Hirabayashi v. US (p. 194)
1. POC: Court unanimously upheld the criminal conviction of an American citizen
for refusing to obey a curfew order requiring all persons of Japanese ancestry to
remain in their homes from 8 pm to 6 am daily
ii. Korematsu v. US (p. 194)
1. Facts: Court upheld the criminal conviction of an American citizen who refused
to leave the West Coast and be relocated; Strict scrutiny approach to racial
discrimination claims
2. Rule: All legal restrictions which curtail the civil rights of a single racial group
are immediately suspect. That is not to say that all such restrictions are
unconstitutional. It is to say that courts must subject them to the most rigid
scrutiny. Pressing public necessity may sometimes justify the existence of such
restrictions; racial antagonism never can
iii. *Two of the very few times in history where plaintiffs lost using the strict scrutiny test*
iv. Facially Racial Classifications [Strict Scrutiny]
1. Statutes that on their face classify on the basis of race or national origin
2. Subject to strict scrutiny, even if they equally disadvantage whites and blacks, at
least so long as the use of race can be traced to hostility toward a racial minority
or the view that the minority is inferior
3. Strict Scrutiny Test
a. Government must prove that it has a compelling state interest and that
the state action (statute or classification) is necessary or narrowly tailored
to carrying out that state interest
b. Creates an incredibly heavy burden with no presumption of
constitutionality, rather its presumed that the classification is
c. State interest of national security can usually pass the test
4. Loving v. Virginia

a. Facts: A biracial couple were married and prosecuted for violating VAs
state antimiscegenation law. The Lovings pleaded guilty and the VA trial
judge suspended their one-year jail sentence on the condition that they
leave VA and not return together for 25 years. The State argued that
because its miscegenation statute punishes equally both white and African
American participants in an interracial marriage, the statute, despite its
reliance on racial classifications do not constitute an invidious
discrimination based on race. The courts agreed, later denied Lovings
motion to vacate the conviction and sentence on the ground that the
antimiscegenation law was unconstitutional.
b. Issue: Whether the VA antimiscegenation statute was constitutional under
the Equal Protection Clause of the 14th Amendment (no)
c. Rule: The Equal Protection Clause demands that racial classifications,
especially in criminal statutes, be subjected to the most rigid scrutiny, and,
if they are ever to be upheld, they must be shown to be necessary to the
accomplishment of some permissible state objective, independent of the
racial discrimination which it was the object of the 14 th Amendment to
d. Holding: There is no legitimate overriding purpose independent of
invidious racial discrimination which justifies this classification. Reversed
e. Note:
i. The state faced at least three hurdles in defending the laws
involved in Loving:
1. If the statutes embodied racial discrimination, Brown
would subject them to close judicial examination under the
Equal Protection Clause
2. Even if the statutes were not racially discriminatory, the
state acknowledged that they violated equal protection if no
rational basis could be discerned for the distinctions among
persons found in them
3. By burdening the liberty to marry, the statutes potentially
violated the Due Process Clause
5. Strict Scrutiny
a. Statutes that on their face take race into account are subject to strict
scrutiny, even if they equally disadvantage whites and blacks, at least so
long as the use of race can be traced to hostility toward a racial minority or
the view that the minority is inferior
b. 2002 placing new inmates in cells with persons of same race during
initial evaluation period is subject to strict scrutiny
c. 1968 striking down state statutes requiring ongoing racial segregation or
prisons and jails
v. Facially Neutral Classifications
1. Statutes that on their face are neutral on the basis of race or national origin
a. De Facto Discrimination
b. Proven by demonstrating:
i. Discriminatory administration of a law;
ii. Discriminatory impact/effect; or






iii. Discriminatory intent/purpose.

Facially neutral classifications that have racially discriminatory effects are subject
to strict scrutiny only if they result from intentional discrimination by the state
a. Facially neutral statutes that have a disparate impact upon persons of color
are subject to strict scrutiny only if Davis discriminatory intent can be
shown; without that showing, such statutes are subject only to rationalbasis review, the most minimal form of equal protection scrutiny
Models of Facially Neutral Statutes
a. Results Are What Matters a showing of disproportionate racial effect by
itself should trigger strict scrutiny; intent can be inferred from results
(Yick Wo, Gomillion) [not the rule today]
b. The indignity and irrationality of intentional racism is so strong that by
itself that should trigger strict scrutiny at least where it causes at least
some tangible harm to the community (Palmer)
c. Not all de facto discrimination is intentional; there is an open door about
how you prove intent; if you are going to argue intent, you must briefly
argue and prove the intent
a. In order for strict scrutiny to apply, there has to be discriminatory intent
why is that a problem? It waters down the 14th amendment tremendously
b. Discriminatory intent/motive is not enough without concrete proof of
discriminatory effect
Yick Wo v. Hopkins (p. 206)
a. Facts: The San Francisco Board of Supervisors adopted a series of
ordinances providing that a laundry located in a building not constructed
of brick or stone could be operated only with the consent of the Board.
Yick Wo, a citizen of China, was imprisoned for operating a laundry in a
wood building without the Boards consent. Yick Wo demonstrated to the
court that nearly all Chinese laundry operators did so in wood buildings
and all who applied for permits were denied
b. Issue: Whether a facially neutral statute which disproportionately affects a
minority group is prohibited under the Fourteenth Amendment (yes)
c. Rule: A statute directed exclusively against a particular class of persons
may warrant and require the conclusion that the statute is applied by the
public authorities charged with its administration with a mind so unequal
and oppressive as to amount to a practical denial by the State of equal
protection of the laws
d. Important dicta: Though the law itself by fair on its face, and impartial in
appearance, yet, if it is applied and administered by public authority with
an evil eye and an unequal hand, so as practically to make unjust and
illegal discrimination between persons in similar circumstances, material
to their rights, the denial of equal justice is still within the prohibition of
the Constitution
e. Note:
i. Does proof of a discriminatory effect always require a finding of
an Equal Protection Clause violation? (no)
Gomillion v. Lightfoot (p. 208)

a. POC: The Court considered an Alabama statute that altered the

boundaries of a city from a square to an irregular shape. The Court ruled
that the essential inevitable effect of the statute was to remove from the
city all African American voters while not removing a single white voter
or resident; violation of the 15th Amendment
7. Washington v. Davis (p. 213)
a. Facts: Plaintiffs African Americans whose applications for the DC
police department were rejected alleged that the departments hiring
practices were racially discriminatory because they included a written
personnel test that operated to exclude a disproportionate number of
African American applicants. Plaintiffs based their claim on the equal
protection component of the Due Process Clause of the 5th Amendment
b. Issue: Whether proof of disproportionate effects of the qualifying exam
was sufficient ground to a court finding that the exam was
unconstitutionally discriminatory (no)
c. Rule: Disproportionate (discriminatory) impact, while not irrelevant, is
not the sole touchstone of an invidious racial discrimination forbidden by
the Constitution. Standing alone, it does not trigger the rule that racial
classifications are to be subjected to the strictest scrutiny and are
justifiable only by the weightiest of considerations
d. POC: Davis looks for evil decisionmakers who have harmed identifiable
people because of their race, rather than government decisions that
disadvantage historically subordinated racial groups, the court rejects the
disproportionate impact test to invalidate laws on disproportionate
impact alone leads to a slippery slope; Davis holds that racially
discriminatory effects are subject to heightened scrutiny only if they result
from intentional discrimination by the state
e. Notes:
i. Davis does not require a plaintiff to prove that the challenged
action rested solely on racially discriminatory purposes
ii. When there is proof that a discriminatory purpose has been a
motivating factor in the decision, judicial deference is no longer
iii. Absent a pattern as stark as that in Yick Wo, impact alone is not
determinative and the Court must look to other evidence
iv. The Davis Court rejects the disproportionate impact test
1. To invalidate laws on disproportionate impact alone leads
to a slippery slope
2. In the absence of the strict scrutiny test, where intent
cannot be shown, rational basis test is enough
3. The court holds that the disparate impact on African
Americans creates no serious constitutional problem unless
the government adopted the law, at least in large part, as
part of an explicit desire to achieve the discriminatory
8. Arlington Heights v. Metropolitan Housing

a. POC: Official action will not be held unconstitutional solely because it

results in a racially disproportionate impact. Citing Washington v. Davis
proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause. In cases without some evidence
of racially discriminatory intent, the mere fact that the decision of a
governmental agency affects race will not be enough to show a violation
of the Fourteenth Amendments Due Process Clause
9. To prove a Davis claim, there must be a showing that the decisionmaker acted at
least in part because of a desire to harm a protected minority; foreseeable harmful
effects upon a protected minority are not unconstitutional so long as the decision
was made in spite of, not because of, them
Fletcher (1810) & Palmer (1971) ---vs.---- Yick Wo (1886) & Gomillion (1960)
Intent not dispositive

Intent not enough

Washington v. Davis (1976)

Discriminatory Adminstration

Discriminatory Enactment Intent inferred, in part

Results are what matter (Impact/Effects)

Title VII

Proof of Discriminatory Intent/Purpose required &

Arlington Heights (1977)

Discriminatory Effects Dispositive -

Proof of discriminatory effects/impact required

Can intent be inferred?

But statutory; not the Constitutional Rule

f. Modern Doctrine of State Action

i. Introduction
1. The 14th Amendment is usually triggered only by the actions of government
officials. Yet in some cases the Supreme Court has applied the 14 th to the conduct
of private parties
2. The Civil Rights Cases (p. 249)
a. Facts: Cases involving indictments for denying to persons of color the
accommodations and privileges of an inn or hotel, for denying to
individuals the privileges and accommodations of a theater, and for
refusing a colored person a seat in the dress circle of a theater. Defendants
challenge constitutionality of the Civil Rights Act of 1875 which mandates
full and equal enjoyment of places of public enjoyment and a civil and
criminal penalty to violators.
b. Issue: Whether the refusal to any persons of the accommodations of an
inn, or a public conveyance, or a place of public amusement, by an
individual, and without any sanction or support from any State law or
regulation, does inflict upon such persons any manner of servitude or form
of slavery (No)
c. Holding: Civil Rights Act of 1875 is unconstitutional
d. POC: The Court invalidated as beyond the power of Congress the 1875
Civil Rights Acts federal remedy for private racial discrimination. The
Court held that the 14th Amendment was aimed at discriminatory state
laws, not discriminatory private action; hence, 5 of that amendment did
not authorize Congress to regulate private activity
e. Note: Illustrates why Congress in the 1964 Civil Rights Act relied on the
Commerce Clause as a basis for the constitutionality for Title II,
prohibiting discrimination on the basis of race in certain places of public
3. Three categories in the Modern Doctrine of State Action

ii. Public Functions

1. Private actors performing traditionally public functions
2. Where there is a private actor carrying out a function that has been traditionally
and exclusively carried out by the state, those private actors may be subject to the
14th Amendment (white primary cases, Marsh v. Alabama) Ex: prisons
3. White Primary Cases (p. 231-234)
a. Nixon v. Herndon
i. Court struck down Texas statutes that excluded blacks from voting
in Democratic Party primary elections [presence of state statutes
compelling discrimination by a private organization political
b. Nixon v. Condon
i. Discriminatory Democratic Party rules struck down by Court
[inherent authority to regulate membership lies with a state
political partys convention and therefore was an agent of the state]
c. Grovey v. Townsend
i. The Texas Democratic Party convention adopted racially
exclusionary rules. The Court first held that the party conventions
conduct was not state action
d. Smity v. Allright
i. Overruled Townsend stating that state delegation to a party of the
power to fix the qualifications of primary elections is delegation of
a state function that may make the partys action the action of the
e. Terry v. Adams
i. Texas Democrats relied on private groups formally independent of
the Democratic Party to control the slating of candidates for the
Democratic primary
ii. Duck test if it walks like a duck, quacks like a duck, it will be
treated as a duck
iii. Private power, if great enough, can erode constitutional values so
much that, as a practical matter, the Constitution must be brought
to bear on it
iv. Note: Terry is the result of the culmination of a series of cases
about political racism in Texas
4. Marsh v. Alabama (p. 233)
a. Facts: Marsh was arrested for trespassing after attempting to distribute
religious literature in a privately owned town
b. Issue: Whether the EPC applies to privately owned towns (yes)
c. Rule: A private entity that acts like a governmental body and performs a
public function is subject to the Constitution
iii. State Encouragement
1. When the state encourages and enforces private conduct that would otherwise
violate the constitution if it were done directly by an obvious state actor
2. Shelley v. Kraemer (p. 235)

a. Facts: A group of white landowners filed suit alleging that the Shelleys
purchase of property was void due to a 1911 racially restrictive covenant
restricting the occupancy of a block of property to white persons
b. Issue: Whether judicial enforcement of a racially restrictive private
covenant constitutes state action violating the EPC (yes)
c. Rule: Judicial action is not immunized from the operation of the
Fourteenth Amendment simply because it is taken pursuant to the states
common-law policy. Nor is the Amendment ineffective simply because
the particular pattern of discrimination, which the State has enforced, was
defined initially by the terms of a private agreement
d. Holding: In a unanimous vote in favor of Shelleys, the Court
acknowledged that the restrictive covenant was not a violation of the EPC
by itself, but the judicial enforcement of it constituted state action in
violation of the US Constitution. The opinion only declared that it was
unconstitutional for the court or other state actors to enforce private,
racially restrictive covenants. Shelley helped home-sellers who wanted to
break racially restrictive covenants
e. The Constitution confers upon no individual the right to demand action by
the State which results in the denial of equal protection of the laws to other
individuals. It is beyond question that the power of the State to create and
enforce property interests must be exercised within the boundaries defined
by the Fourteenth Amendment
f. POC: The impetus for the forbidden discrimination need not originate
with the State if it is state action that enforces privately originated
g. Examples:
i. Landowner orders someone off her property for racist reasons
1. Police arrest? No state action
2. Court injunction ordering the person to leave? No state
3. **Insert a colorblind judge. She could convict the
trespasser because her race is legally irrelevant
h. Note:
i. Fair Housing Act of 1968, an actual response to Shelley, making
restrictive covenants illegal

iv. State Entanglement Doctrine

1. Where the state has so intertwined itself with the private entity, that there is state
action (Berton v. Wilmington Parking, Moose Lodge v. Irvis, Edmonson v.

2. Berton v. Wilmington Parking

a. Facts: Burton brought an action under the EPC claiming he was
discriminated against because a restaurant refused to serve him based on

his race. The restaurant leased its space from the City and it was attached
to Wilmington Parking Authority, a city owned parking garage
b. Rule: There is significant state involvement to permit an action under the
Fourteenth Amendment when a state leases public property to a private
actor who then discriminates against nonwhites
c. POC: Court found that the restaurant was so enabled by the state that their
actions constituted state action [narrowed in Moose Lodge]
3. Moose Lodge v. Irvis (p. 241)
a. Facts: A member of defendant club invited Plaintiff, an African American,
to dine there. The club refused to serve him, consistent with rules of its
national organization that limited membership to white males and allowed
members to have only white guests. The defendant club is private, housed
in a building owned by it, and not publically funded. Plaintiff conceded
the right lof private clubs to choose members upon a discriminatory basis,
but asserted that the licensing of the club to serve liquor by the PA Liquor
Control Board amounts to such state involvement with the clubs activities
as to make its discriminatory practices forbidden by the Equal Protection
Clause of the Fourteenth Amendment
b. Issue: Whether a state liquor boards issuance of a liquor license to a
private club located on private property constitutes significant state
involvement, thus, permitting an action under the Fourteenth Amendment
c. Rule: The granting of a liquor license to a private club that discriminates
against non-whites does not significantly involve the state as to constitute
a state action
d. POC: Where the impetus for the discrimination is private, the State must
have significantly involved itself with invidious discriminations in order
for the discriminatory action to fall within the ambit of the constitutional
prohibition (Reitman v. Mulkey); State licensing and regulation are not
enough to render the private entity a state actor; Private entities are
entitled to receive the general benefits of general citizens without
subjecting themselves to the Constitution
4. Edmonson v. Leesville Concrete
a. Facts: Plaintiff appealed jury decision on the grounds that Defendant had
used race-based peremptory challenges of jurors
b. Issue: Whether a private litigant may use peremptory challenges to
exclude jurors on account of their race (no)
c. Rule: Peremptory challenges cannot be used to exclude prospective jurors
based on reasons of race
v. State Action and Congressional Authority to Enforce/Promote Civil Rights
1. Jones v. Alfred H. Mayer (p. 883)
a. Issue: Whether Congress has power under the Constitution to do what 42
USC 1982 purports to do: to prohibit all racial discrimination, private
and public, in the sale and rental of property (yes)





b. Rule: 42 USC 1982 bars all racial discrimination, private as well as

public, in the sale or rental of property. The statute is a valid exercise of
the power of Congress to enforce the 13th Amendment
c. POC: Declared that racial covenants violated federal law
South Carolina v. Katzenbach (p. 888)
a. Facts: The Court rejected a challenge by the state of South Carolina to the
preclearance provisions of the Voting Rights Act of 1965, which required
that some states submit changes in election districts to the AG
b. Rule: The Voting Rights Act was a valid exercise of the Congresss power
under the enforcement clause of the 15th Amendment
Katzenbach v. Morgan (p. 889)
a. Facts: 4(e) of the Voting Rights Act of 1965 ensures the right to vote to
all Puerto Ricans who successfully complete the sixth grade. Appellees
Morgan and other registered voters of NYC brought suit to challenge the
constitutionality of 4(e) of the Act insofar as it pro tanto prohibits the
enforcement of the election laws of NY requiring an ability to read and
write in English
b. Issue: Whether such legislation is, as required by 5 of the 14 th
Amendment, appropriate to enforce equal protection (yes); Whether the
congressional remedies adopted in 4(e) of the Act constitute means
which are not prohibited by the Constitution (yes)
c. Rule: A federal law ensuring the right to vote upon the successful
completion of the sixth grade, despite a conflicting state laws voting
qualifications, is a valid exercise of the powers of Congress by means of
5 of the 14th Amendment as 5 is a positive grant of power
Oregon v. Mitchell (p. 893)
a. POC: The Court ruled that the nationwide ban of literacy tests (put into
effect by the Voting Rights Amendments of 1970) was constitutional,
noting that Congress had evidence before it showing that literacy tests
reduced voter participation in a discriminatory manner. The Court found
302 of the Act, which lowered the minimum age for voting in state and
national elections from 21 to 18, unconstitutional it was constitutional as
applied to federal, but not state, elections.
City of Rome v. US (p. 895)
a. Facts: Georgia changed the electoral process of the City of Rome, but for
the changes to take effect, the AG was required to preclear the changes in
accordance with the Voting Rights Act of 1966. Under the Act,
preclearance is granted only if the jurisdiction proves the absence of both
discriminatory intent and discriminatory effect. He refused based on his
feeling that the changes would eliminate the power of the AfricanAmerican electorate.
b. Issues: Whether the 15th Amendment empowered Congress to impose the
rigors of the Voting Rights Act upon the covered jurisdictions (yes);
Whether Congress has the authority to regulate state and local voting
through the provisions of the Voting Rights Act (yes)
c. Rule: Congress has the authority to regulate state and local voting through
provisions of the Voting Rights Act, as the 15th Amendment supersedes

contrary exertions of state power, and the Act is an appropriate means for
carrying out Congress constitutional responsibilities under the 15 th.
Congress also has the power to regulate practices that it sees are
discriminatory, even if no evidence of past discrimination is in the present
d. Remedial Theory:
i. Congress may paint with a broad brush and adopt a prophylactic
ii. Rome seems to hold that Congress should be allowed to outlaw
changes in electoral practices that have discriminatory effects
under its power to enforce the Fifteenth Amendment

g. Affirmative Action
i. Beginning in the 1970s the Court faced a series of cases in which affirmative action the
overt use of racial criteria to benefit racial minorities was challenged
ii. Affirmative Action government or state related plans that are either in hiring, education,
pension, construction that require a certain percentage/approach to promoting gains by
African Americans, women, or other minorities. Affirmative action also exists in private
institutions but is not affected by EPC unless they receive state funds
iii. Key Question What is the appropriate level of scrutiny of facially racial affirmative
action statutes and programs?
iv. Regents of the University of California v. Bakke (p. 253)
a. Facts: A white medical student was denied admission to the defendant
school due to the implementation of affirmative action. Strict scrutiny was
used to invalidate the medical schools admission policy. The University
put forward 4 possible rationales for using affirmative action: 1)
remedying effects of past societal discrimination (no); 2) helping
underserved communities (no); 3) increasing the number of minority
physicians (no); 4) attainment of a diverse student body (yes)
2. Issue: Whether strict scrutiny should be the level of judicial scrutiny applied to
the special admissions program (yes)
3. Rule: When a classification denies an individual opportunities or benefits enjoyed
by others solely because of his race or ethnic background it must be regarded as
suspect. When a states distribution of benefits or imposition of burdens hinges
on the persons color of skin or ancestry, that individual is entitled to a
demonstration that the challenged classification is necessary to promote a
substantial state interest. Merely filling a racial quota is not a substantial state
interest and thus, is per se unconstitutional
4. Holding: Strict scrutiny will be applied to higher education admissions policy, in
this case, rendering the policy invalid as it was based, in part, on a quota system
5. Three different sets of opinions
a. Powell stressed the universal language of the EPC and concluded that it
protects all individuals equally. Strict scrutiny should apply regardless of
whether whites are a discrete and insular minority

b. The Brennan four said that strict scrutiny was inappropriate for benign
racial classifications, which they defined as those that do not stigmatize
those disadvantaged by the classification opting for intermediate
6. Note:
a. Private institutions not affected by Bakke unless they are recipients of
Title VI funding [The Bakke ruling caused some schools, like Harvard, to
refuse Title VI funding as they want to support affirmative action]
v. Fullilove v. Klutznick (p. 266)
1. Facts: Petitioner challenges a federal statute providing federal funds to state and
local government building projects that where at least 10% of the money was
spent procuring goods or services from minority business enterprises
2. POC: Congress can constitutionally use its spending power to remedy past
discrimination. The statute survives Bakke because it serves the compelling
government interest in eradicating the continuing effects of past discrimination
identified by Congress
3. Note:
a. Overturned by Adarand? Its unclear
vi. Wygant v. Jackson Board of Education (p. 267)
1. POC: The Court struck down a collective bargaining agreement between
defendant public school board and a teachers union that provided that layoffs be
made on a seniority basis except that at no time will there be a greater percentage
of minority personnel laid off than the current percentage of minority personnel
employed at the time of the layoff; The Court dismissed the teachers claims that
holding the racial preferences was permissible as an attempt to remedy societal
discrimination by providing role models for minority school children
a. Add to the list of the Bakke 4
vii. City of Richmond v. Croson (p. 268)
1. Facts: Defendant City adopted the minority Business Utilization Plan which
required govt supported construction contractors to set aside 30% of its
subcontracts to Minority Business Enterprises. The plan was remedial in nature
and enacted for the purpose of promoting wider participation by minority business
enterprises in the construction of public projects. Plaintiff contests that the plan is
unconstitutional because there had been no specific finding that its purpose was
supported by past discriminatory practices in the construction industry in
2. Issue: Whether a state may enact an affirmative action plan without support that
the race-based measures remedy the effects of past discrimination (no)
3. Rule: Affirmative action programs are constitutional only after a showing that the
programs aim to eliminate effects of past discrimination
4. Analysis: If the city could show that it had become a passive participant in a
system of racial exclusion practiced by elements of the local construction
industry, the plan would have survived scrutiny
5. POC: All affirmative action program based on race must be supported by a
compelling government interest and withstand strict-scrutiny; without a showing
that the race-based initiative was created to remedy past racial discrimination and
that it supports a compelling government interest, the initiative is unconstitutional

viii. Metro Broadcasting v. FCC (p. 274)

1. Facts: Over several decades, a federal policy had evolved through congressional
initiatives and FCC policies whereby minority applicants for new broadcast
licenses would receive a preference, and where a limited number of existing
stations could be transferred only to minority-controlled firms
2. Analysis: The Court imposed intermediate scrutiny a standard asking whether
the classification in question serves important governmental objectives and is
substantially related to the achievement of those objectives as the appropriate
standard for assessing federal benign racial classifications. Finding an answer in
the affirmative, the Court explained that Fullilove had not imposed strict scrutiny
upon the federal program at hand
3. POC: Benign federal racial classifications need only satisfy intermediate
scrutiny; Overruled by Adarand
ix. Adarand Constructors, Inc. v. Pena (p. 275)
1. Facts: Adarand submitted the low bid on a subcontract for a federal highway
project. The prime contractor, on the basis that it would receive additional federal
funds for awarding the contract to a business owned by socially and
economically disadvantaged individuals, gave the contract to a higher bidder on
this basis.
2. Issue: Whether the Fifth Amendments guarantee of equal protection requires the
federal governments racial classifications to withstand strict scrutiny (yes)
3. Rule: Race classifications by the federal government are subject to strict scrutiny
(overruling Metro Broadcasing); Unless Congress clearly articulates the need and
basis for a racial classification, and also narrowly tailors the classification to its
justification, the Court should not uphold the statute
4. POC: Strict scrutiny will be used against any facially racial program as the
framers of the Constitution never said the EPC was only for African Americans
5. Notes: The Constitution contains no EPC applicable to the federal government;
Leaves one tiny door open just because its strict scrutiny doesnt mean that
every affirmative action program will be shut down
x. Grutter v. Bollinger (p. 285)
1. Facts: Petitioner Grutter was denied admission to the University of Michigan
Law School although her scores were above average. She challenged the law
schools use of race as a factor in the admissions process
2. Issue: Whether the law schools use of race is justified by a compelling state
interest (yes)
3. Rule: Schools may consider race as a part of the admissions process as long as it
is only one factor in an individualized process
4. Analysis: The law schools process satisfied the narrow tailoring requirement
(which ensures that means chosen fit the compelling goal so closely that there is
little or no possibility that the motive for the classification was illegitimate racial
prejudice or stereotype) in that it did not use a quota system, but considered each
applicant in an individualized process. Narrow tailoring does not require
exhaustion of every conceivable race-neutral alternative, but rather a serious,
good faith consideration of workable race-neutral alternatives.
xi. Gratz v. Bollinger

1. Holding: The Universitys point systems predetermined point allocations that

awarded 20 points to underrepresented minorities ensures that the diversity
contributions of applicants cannot be individually assessed. The Court found the
program failed the narrow-tailoring requirement and that it amounted to a
practical quota and is therefore unconstitutional
xii. Objectives Used to Meet Compelling Rationale for Affirmative Action
1. Remedying past illegal discrimination most frequently identified objective for
Affirmative Action business programs
a. All affirmative action program based on race must be supported by a
compelling government interest and withstand strict-scrutiny; without a
showing that the race-based initiative was narrowly tailored to remedy
past racial discrimination and that it supports a compelling government
interest, the initiative is unconstitutional [Croson]
2. Achieving diversity most frequently identified objective for Affirmative Action
educational programs
a. Schools may consider race as a part of the admissions process as long as it
is only one factor in an individualized process [Grutter v. Bollinger]
b. Quota systems fail the narrow-tailoring requirement [Gratz v. Bollinger]
xiii. School Redistricting
1. Parents Involved v. Seattle School District (p. 301)
a. Facts: The Seattle School district and Jefferson County (KY) have
assignment plans which use the race of the child as the qualifying factor
on where to place or transfer a child. Seattles school district had never
been segregated by law and Jefferson County had achieved unitary status
by eliminating the vestiges of its prior policy of segregation. A parent
with a child from each district that was denied a transfer to another school
based on the race of their child brought suit
b. Issue: Whether a public school that had not operated a legally segregated
school or has been found to be unitary may choose to classify students by
race and rely upon that classification in making school assignments (no)
i. Two Government Interests that Qualify as Compelling:
1. The compelling interest of remedying the effects of past
intentional discrimination
a. Neither school satisfies this interest
2. The interest in diversity in higher education upheld in
a. The admission program in Grutter was focused on
each applicant as an individual, and not simply as a
member of a particular social group.
classification of applicants by race upheld in Grutter
was only as part of a highly individualized, holistic
b. The racial classifications employed by the districts
are not narrowly tailored to the goal of achieving
the educational and social benefits asserted to flow
from racial diversity. In design and operation, the
plans are directed only to racial balance (quota), an

objective that this Court has repeated condemned as

ii. Outright racial balancing is patently unconstitutional Grutter
iii. **Districts also failed to show that they considered methods other
than explicit racial classifications to achieve their stated goals
c. Rule: School assignment plans that use race alone as a qualifying criterion
are unconstitutional
2. Shaw v. Reno (p. 325)
a. Facts: The Court held that Appellants have a legitimate claim that North
Carolinas redistricting scheme was so irregular on its face that it could
only be viewed as an effort to segregate races for the purpose of voting,
without regard for traditional districting principles and without sufficiently
compelling justification
b. Rule: The deliberate segregation of voters into separate districts on the
basis of race violates their constitutional right to participate in a colorblind electoral process
Bakke (US 1978)






Federal State Action


Metro Brdcst






Equal Protection: Sex and Gender Discrimination

a. Strict scrutiny is the exception to the Equal Protection rule Most statutes that classify people
are subject to rational basis review only
b. The Traditional Jurisprudence of Difference
i. Bradwell v. Illinois (p. 349)
1. POC: Bradwells application for a license to practice law had been denied by the
Illinois Supreme Court solely because she was a married woman. The Court ruled
that the Privileges and Immunities Clause of Article IV was inapplicable to her
claim as admission to the bar of a state is not one of the privileges and immunities
of US citizenship, the 14th amendment did not secure the asserted right either
ii. Minor v. Happersett (p. 350)
1. POC: The Supreme Court ruled that the right to vote was not among the
privileges and immunities of US citizenship. However, the Court also said that
women are persons and may be citizens within the meaning of the 14th Am.

c. From Rational Basis to Intermediate Scrutiny in Gender Cases

i. Moreno & Guano

1. POC: Court applies rational basis but adds some bite; Animus towards a group




thats unfavored is not a legitimate purpose for the rational basis test
Reed v. Reed (p. 357)
1. POC: Idaho statutes provided a tie-breaker preference for males over females
of equal degrees of relationship to be appointed administer of an estate.
Unanimous Court struck down the statute under rational basis standard relying on
Royster Guano formulation under which the classification must be reasonable,
not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike
2. Notes:
a. First time the Court struck down gender discrimination in a federal
b. Court applied rational basis review (with bite)
Frontiero v. Richardson (p. 357)
1. Facts: Pursuant to the USC, a serviceman could claim his wife as a dependent
without regard to whether she was in fact dependent upon him for any part of her
support. A servicewoman could not claim her husband as a dependent under
these programs unless he was in fact dependent upon her for over one-half of his
2. Issue: Whether classifications based upon sex, like classifications based upon
race, alienage, and national origin, are inherently suspect and must therefore be
subjected to close judicial scrutiny (yes)
3. Rule: Classifications based upon sex are inherently suspect and must therefore be
subjected to strict scrutiny [Craig v. Boren intermediate scrutiny still the law]
4. Notes:
a. Is immutability a necessary or sufficient condition to trigger strict
b. No majority opinion on what level of scrutiny should be used in gender
Schlesinger v. Ballard (p. 498)
1. POC: A male Navy officer challenged a statute providing that male officers had a
shorter period in which to attain promotion or be discharged than female officers.
Upholding the statute, the Court concluded that the sex classification was not
based on archaic or overbroad generalizations like those in Frontiero, but rather
reflected the real differences between male and female Navy officers in terms of
promotions; The Court was willing to allow a sex-based remedial law which
arguably helped women overcome structural disadvantages and pursue nonstereotypical careers
Craig v. Boren (p. 365)
1. Facts: An Oklahoma statute maintained different drinking ages for men and
women based upon the justification that women got into less accidents/trouble
when associating with alcohol
2. Rule:
Gender-based classifications must satisfy intermediate scrutiny
requirements to pass constitutional muster

3. Notes: The Oklahoma statute would have passed the rational basis test as there
was an empirical connection between a legitimate state goal (safety) and the
classification chosen by the state (young men statistically threatened the goal
more than young women)

vi. Mississippi University for Women v. Hogan (p. 373)

1. Facts: MUW was an all-women school until Petitioner (male) applied and the
Court ruled that the exclusion of men violated the Equal Protection Clause
2. Rule: The party seeking to uphold a statute that classifies individuals on the basis
of their gender must carry the burden of showing an exceedingly persuasive
justification for the classification. The burden is met only by showing at least that
the classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives
3. Notes:
a. Justice OConnor shifts the burden to the state on intermediate scrutiny,
saying it must show exceedingly persuasive justification for the
vii. United States v. Virginia (p. 376)
1. Facts: VMI was the sole single-sexed public school. Its mission was to produce
citizen soldiers, achieved through an adversarial method. Pursuant to a decision
by the lower courts, the State proposed a parallel program for women which
utilized a cooperative, rather than adversative, method which the State contended
was substantively comparable to VMI
2. Rule: Gender-based classifications by the government can be defended only by
exceedingly persuasive [intermediate with bite] justifications. The State must
show that its classification serves important governmental objectives and that the
means employed are substantially related to those objectives. The justification
must be genuine, not hypothesized, and it must not rely on overbroad
generalizations about the differences between males and females
3. Notes:
a. Intermediate scrutiny with bite; Justice Scalia claimed Justice BaderGinsberg snuck in strict scrutiny
b. If there are real differences in situations where men and women are not
similarly situated, then only a rational basis test would be applied at best
i. E.g. statutory rape only applies to men (law is changing some)
viii. Since the Discrete and Insular Minority Rule does not apply, look to several factors:
1. Long and sorry history, the pervasive past and continuing discrimination against
2. Sex is immutable
3. Typically there is complete irrelevance between classifying women on the basis of
their gender and legitimate state goals

d. Deference to Traditional Gender Classifications Based Upon Real

i. Custody preferences to mothers; statutory rape laws; pregnancy; military registration and




Michael M. v. Superior Court (p. 382)
1. Facts: A California statute includes as unlawful sexual intercourse an act of
sexual intercourse accomplished with a female not the wife of the perpetrator
where the female is under the age of 18. Petitioner was 17, the female [who was
not charged] was 16
2. Issue: Whether the gender disparity in the statutory rape laws is in violation of the
Equal Protection Clause (no)
3. Rule: A state may provide for punishment only for males to equalize deterrents to
teenage pregnancy
4. Note: As of June 2008, all states except Idaho follow a gender-neutral policy for
statutory rape
Parham v. Hughes (p. 384)
1. Facts: A Georgia law allowed the mother but not the father of a child born outside
of marriage to bring suit for the childs wrongful death (despite the fact that the
father acknowledged his paternity and had established a relationship with the
2. Rule: Where gender-based classifications address circumstances where men and
women are not similarly situated, and the statutory classification is realistically
based upon the differences in their situations, the EPC is satisfied
Rostker v. Goldberg (p. 385)
1. Facts: 3 of the Military Selective Service Act empowered the President to
require the registration of every male citizen. The MSSA was challenged on
equal protection grounds for its exclusion of women
2. Rule: Men and women, because of the combat restrictions on women, are simply
not similarly situated for purposes of a draft or registration for a draft. Hence, the
decision of Congress and the President to exclude women from registration was a
sex-based classification closely related to Congress important purpose in
authorizing registration
Nguyen v. INS (p. 386)
1. Facts: The Supreme Court rejected a challenge to a federal statute that accorded
American citizenship automatically, upon birth, to a child born out of wedlock in
a foreign country to an American mother, but denied citizenship to such a child
whose only American parent was her father, unless the child were legally
legitimated or paternity were established in a court of law or by paternal oath
before the childs 18th birthday

2. POC: The Court found the sex discrimination justified by two governmental
interests; (1) The importance of assuring that a biological parent-child relationship
exists [mothers and fathers are not similarly situated with regard to the proof of
biological parenthood]; and (2) The determination to ensure that the child and the
citizen parent have some demonstrated opportunity or potential to develop not just
a relationship that is recognized by law, but one that consists of the real ties
between a child and parent [mothers and fathers are not similarly situated with
regard to relationship ties as mothers have at least the opportunity to develop real
vi. Notes:
1. The federal judiciary defers to Congress and the President with regard to matters
of military policy and war
a. The armed forces still must justify gender classifications under such a
deferential regime
b. The armed forces have traditionally maintained that men are better suited
for combat rules than women
c. Today, the main argument for the combat exclusion is that women in the
foxholes would be a sexual force disrupting morale and unit cohesion
d. Also, combat conditions tend to be rough and crude, with little privacy,
embarrassing to women as well as men
e. Notwithstanding these arguments, Congress repealed the statutory
exclusion and vested the Defense Department with discretion to assign
women to any military assignment
2. The judiciary also defers to Congress in matters of immigration and naturalization
e. Classifications That Have a Disparate Impact on Women
i. Geduldig v. Aiello (p. 393)
1. Facts: Californias disability insurance program paid benefits to persons
temporarily disabled from work, but excluded pregnancy-related disabilities from
Petitioner maintained that the insurance program resulted in
individuals receiving a benefit or suffering a detriment because of a physical
characteristic unique to their sex which constituted unconstitutional sex
2. Issue: Whether exclusion of pregnancy-related conditions violates the EPC (no)
3. Rule: The pregnancy exclusion was rationally related to the insurance programs
self-supporting goals, benefits are covered by premiums and some lines have to
be drawn; Underinclusive legislation is appropriate under the Equal Protection
Clause, so long as the line drawn by the State is rationally supportable
ii. Personnel Administrator v. Feeney (p. 394)
1. Facts: A Massachusetts law provided that all veterans who qualified for state civil
service positions be given a preference over nonveterans. Plaintiff experienced a
pattern of getting high scores on civil service exams but losing jobs to lowerscoring male veterans; she challenged the veterans preference as a violation of
equal protection [over 98% of veterans in Massachusetts were male]
2. Rule: A gender neutral statute that adversely impacts one gender does not violate
the Equal Protection Clause if it does not have a discriminatory purpose and it
does not actually classify one gender
iii. Notes:

1. In Price Waterhouse v. Hopkins, the Court held that it is sex discrimination if an

employer disadvantages an employee because she violates traditional gender roles
2. One of the purposes of the Family and Medical Leave Act of 1993 was to require
employers to provide maternity leaves to both male and female employees
iv. Bray v. Alexandria Womens Health Clinic (p. 410)
1. POC: The lower courts upheld lawsuits by abortion clinics against participants in
Operation Rescue, who allegedly conspired to deprive women of the right to
travel interstate to use abortion clinics in the DC metro area. The Court reversed,
holding that women seeking abortion did not qualify as a class for purposes of
the statute


Equal Protection: Additional Suspicious

Warranting Heightened Scrutiny

Classifications Arguably

a. Poverty and Wealth

i. Rational Basis Review
ii. Since the Civil War, most laws formally excluding or discriminating against people on
the basis of wealth have disappeared. But countless statutes have the effect of excluding
or discriminating against people without much money
iii. For a time, the Court seemed to apply heightened scrutiny to statutes disadvantaging the
poor by imposing a charge for governmental services or failing to provide support for the
necessary expenditures of life
iv. In the early 1970s, the Court rejected the proposition that wealth based classifications and
access fees are suspect unless evidence of invidious intent is shown
v. Some exceptions remain:
1. Free criminal defense counsel
2. Appellate fee requirements in cases regarding parental rights
a. MLB v. SLJ (p. 414)
i. POC: The Mississippi chancery court terminated the parental
rights of MLB, who was unable to appeal because she could not
afford the fees required to prepare a record for appeal. Ginsburg
ruled that the state could not constitutionally apply the fee
b. Language
i. Rational basis review
ii. Hernandez v. New York (p. 416)
1. Facts: Hernandez was convicted of attempted murder and possession of a
weapon. Defense counsel objected to the prosecutors striking several Latino
jurors. The prosecutor provided a race-neutral explanation for his peremptory
strikes, stating that he struck jurors who might have difficulty in accepting the
translators rendition of Spanish-language testimony, which, as a result, had a
disproportionate impact on prospective Latino jurors
2. Issue: Whether the peremptory striking of jurors based on the jurors perceived
inability to accept a translators rendition of testimony over his or her own
interpretation is violative of the Equal Protection Clause (no)
3. Holding: The prosecutions use of peremptory juror strikes does not violate the
Equal Protection Clause

iii. Courts have been reluctant to view language-based discrimination as actionable, however,
the EEOC developed guidelines presuming that English-only workplace rules are national
origin discrimination. Employers can rebut the presumption if they can show a business
necessity for the English-only policy
c. Physical or Mental Disability
i. Rational basis review (with bite)
ii. The Rehabilitation Act of 1973 which formally banned discrimination by reason of
ones handicap was never completely implemented
iii. Activist organizations sought judicial recognition that disability is a suspect or quasisuspect classification like race or sex
iv. City of Cleburne v. Cleburne Living Center (p. 423)
1. Facts: Petitioner Citys zoning regulations required a special use permit to build
homes for (inter alia) the feeble minded. City denied such permit to the Living
Center for the establishment of a group home for the mentally retarded in the
community. Lower court determined the mentally retarded to be a group that is
quasi-suspect class and that the ordinance violated the Equal Protection Clause
2. Issue: Whether the mentally retarded are part of a quasi-suspect class subject
to a higher scrutiny under the Equal Protection Clause (no rational basis
scrutiny); Whether Petitioners special use permit requirement is constitutional
(no no rational relation to a legitimate governmental purpose)
3. Rule: Legislation that distinguishes between the mentally retarded and others is
subject to rational basis scrutiny, and as such, must be rationally related to a
legitimate governmental purpose; the State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational [Zobel v. Williams]; Some objectives, such as a bare desire
to harm a politically unpopular group, are not legitimate state interests [Moreno]
4. Holding: Ordinance invalid as applied to case
5. Notes: Rational basis with bite;
a. Heightened scrutiny in the race and sex discrimination cases starts with a
presumption of unconstitutionality, shifting the burden of justification to
the government limiting the kinds or arguments the government can make.
b. Ordinary rational basis review starts with a presumption of
constitutionality, which the challenger can rebut only by demonstrating
that there is no reasonable connection with any plausible state goal.
c. Cleburne-style rational basis review also starts with a presumption of
validity, but might be understood to allow the challenger to create a prima
facie case of invalidity by showing no rational it with the asserted purpose
or by demonstrating antipathy. Such a prima facie case would shift the
burden to the state to demonstrate a rational and neutral justification for its
v. Heller v. Doe (p. 431)
1. Facts: Under KY law, mentally handicapped persons could be involuntarily
committed only upon a showing that they were dangerous to themselves or others.
The burden of proof for the mentally ill was beyond a reasonable doubt while
proof for the mentally retarded was only clear and convincing evidence, making
it easier for the state to institutionalize a retarded person

2. Issue: Whether KYs involuntary commitment procedures for retarded persons

violates the Equal Protection clause (no)
3. Rule: Because retarded persons are not a suspect classification, KYs statute
warranted only rational basis scrutiny. Consequently, the Court concluded that the
state met its burden that its procedures were rationally related to a legitimate
government purpose and were constitutional. The differences in classes justified
different standards of proof because of the plausibly different risk of error faced
by the subject of the proceeding
d. Sexual Orientation and Same-Sex Marriage
i. Rational basis review (Romer US Supreme Court); Strict scrutiny (In re Marriage Cases
ii. Laws and judicial decisions formally discriminating on the basis of sexual orientation are
widespread and numerous, including:
1. Federal exclusion of openly gay people from the armed forces;
2. Exclusion of gay people from teaching or police jobs at the local and state level;
3. State laws prohibiting educators from teaching anything that would place
homosexuality in a favorable light; etc... (p. 433)
iii. Romer v. Evans (p. 434)
1. Facts: Amendment two was added to Colorados state constitution by a statewide
referendum, prohibiting the state or local government from adopting measures
that would protect homosexuals as a class from discrimination. Respondents
argued that Amendment two did nothing more than deny homosexuals special
rights. The stated purpose of the amendment was to prevent the deterioration of
the sexual morality favored by most Coloradans. Lower courts permanently
enjoined enforcement of Amendment two
2. Issue: Whether Amendment two was violative of the Equal Protection Clause
3. Rule: A bare desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest
4. Analysis: Amendment 2 fails rational basis inquiry. First, the amendment has the
peculiar property of imposing a broad and undifferentiated disability on a single
named group, withdrawing from them, but no others, legal protections arising
from discrimination. Second, it lacks a rational relationship to legitimate state
interests, reasons offered for the amendment seem inexplicable by anything but
animus towards the class it affects
5. Rational Basis Rule: By requiring that the classification bear a rational
relationship to an independent and legitimate legislative end, the Court ensures
that classifications are not drawn for the purpose of disadvantaging the group
burdened by the law
6. Note: Equal protection of the laws is not achieved through indiscriminate
imposition of inequalities (Sweatt)
e. Watkins v. US Army (p. 446)
i. POC: Ninth Circuit Court ruled that the Armys pre-1993 policy of excluding LGBT
service persons violated equal protection strict scrutiny (later overturned). The 9ths
argument for strict scrutiny tracked the factors found in Supreme Court Cases: (A)
Whether the group at issue had suffered a history of purposeful discrimination (yes); (B)
Whether the discrimination embodies a gross unfairness that is sufficiently inconsistent

with the ideals of equal protection to term it invidious (yes); and (C) whether the
penalized group lacks effective political representation needed to protect itself from
social and state prejudice (yes)
ii. Notes: As of 2008, no federal appellate court has followed Judge Norris to find that
sexual orientation discrimination requires strict scrutiny; the vast majority of state
appellate courts have not embraced Norriss reasoning and stick with rational basis
f. Goodridge v. Department of Public Health (p. 449)
i. POC: Seven same sex couples sued the state to invalidate their exclusion from marriage.
Massachusetts appellate court struck down the discrimination under the Massachusetts
Constitution concluding that the Court need not reach the issue whether to apply
heightened scrutiny, for the discrimination had no rational basis
ii. Department Reasoning: (1) To provide a favorable setting for procreation (justifiable
state interest, but not one advanced by excluding same-sex couples from marriage as
fertility is not a condition of marriage); (2) To ensure the optimal setting for child
rearing (justifiable state interest, but not one advanced by restricting marriage to
opposite-sex couples); (3) To preserve scarce state and private financial resources
(limiting marriage has no rational relationship to the goal of economy)
iii. Notes: All three of the states arguments rested upon legitimate state goals, but the Court
found the classifications did not closely fit the goal
g. In Re Marriage Cases (p. 455)
i. Facts: A 1997 California statute limited marriage to unions between one man and one
woman, reaffirmed by a 2000 initiative limiting marriage to different-sex couples and
providing that the state would not recognize out-of-state same-sex marriage. Plaintiffs
argued that the discrimination against their relationships violated the equality guarantee
of the Cal. Constitution, arguing that the discrimination was subject to strict scrutiny for 3
reasons: (1) The exclusion of same-sex couples from state marriage law rested upon two
suspect classifications, sex (fail), and (2) sexual orientation (succeeds), and (3) denied
those couples a fundamental interest in marriage
ii. Sex Discrimination: Fails on two grounds: (1) The challenged marriage statutes do not
treat men and women differently, and are distinguishable from Perez and Loving because
the antimiscegenation statutes at issue in those cases plainly treated members of minority
races differently from white persons; and (2) A statute or policy that treats men and
women equally but that accords differential treatment either to a couple based upon
whether it consists of persons of the same sex rather than opposite sexes, or to an
individual based upon whether he or she generally is sexually attracted to persons of the
same gender rather than the opposite gender, is more accurately characterized as
involving differential treatment on the basis of sexual orientation rather than an instance
of sex discrimination
iii. Sexual Orientation: Marriage statute properly must be viewed as directly classifying and
prescribing distinct treatment on the basis of sexual orientation
iv. Issue: Whether sexual orientation should be considered a suspect classification under
the California equal protection clause, so that statutes drawing a distinction on this basis
are subject to strict scrutiny (yes)
v. Rule: The most important factors in deciding whether a characteristic should be
considered a constitutionally suspect basis for classification are whether the class of

persons who exhibit a certain characteristic historically has been subjected to invidious
and prejudicial treatment, and whether society now recognizes that the characteristic in
question generally bears no relationship to the individuals ability to perform or
contribute to society
vi. Strict Scrutiny: In order to satisfy the strict scrutiny standard, the state must demonstrate
not simply that there is a rational, constitutionally legitimate interest that supports the
differential treatment at issue, but instead that the state interest is a constitutionally
compelling one that justifies the disparate treatment prescribed by the statute in question
the state must demonstrate that the distinctions drawn by the statute are necessary to
further that interest
h. Perry v. Brown
i. Facts: Prior to November 4, 2008, the California Constitution guaranteed the right to
marry to opposite-sex couples and same-sex couples alike. On that day, the People of
California adopted Proposition 8, which amended the state constitution to eliminate the
right of same-sex couples to marry
ii. Issue: Whether Prop 8 violates the Fourteenth amendment (yes)
iii. Rule: Although the Constitution permits communities to enact most laws they believe to
be desirable, it requires that there be at least a legitimate reason for the passage of a law
that treats different classes of people differently. There was no such reason that Prop 8
could have been enacted. Under Cal. law, same-sex couples had all the rights of
opposite-sex couples, regardless of their marital status. Prop 8 had one effect only
stripping same-sex couples of the ability to marry. An individuals homosexual
orientation is not a constitutionally legitimate basis for withholding or restricting the
individuals legal rights. The state had no interest in reserving the name marriage for
opposite-sex couples. By using their initiative power to target a minority group and
withdraw a right that it possessed, without a legitimate reason for doing so, the People of
California violated the Equal Protection Clause. Prop 8 is unconstitutional on this ground
i. Alienage
i. Strict Scrutiny & Rational Basis Review
1. Aliens as a class are a prime example of a discrete and insular minority for
whom such heightened judicial solicitude is appropriate
ii. Federal vs. State Authority
1. The federal authority over foreign relations and immigration has included nearly
plenary power over aliens
a. Thus, federal regulation of noncitizens is ordinarily subject at most to the
most lenient rationality review when challenged on equal protection
2. States, however, have less justification for treating noncitizens differently from
citizens, and the Supreme Court has reviewed their discriminations more strictly
3. States are yet allowed to bar noncitizens from certain state positions that are
involved in the governance or functioning of the state as a political entity
a. The Court has attempted to apply a pragmatic distinction between state
statutes that are economically protectionist that reserve economic
benefits for citizens and ones that are deemed to be rationally related to
reserving sovereign functions for citizens
j. Illegitimacy [non-marital children]
i. Intermediate scrutiny

ii. Historically many state laws have treated children born outside of marriage less favorably
than marital children
iii. The Court has rejected the argument that statutes penalizing a child for the status of her
parents are a justified means of encouraging marriage
iv. The most recent precedents apply an intermediate level of scrutiny
1. The Court has held that a state may not categorically deny intestate inheritance to
children born out of marriage, but may limit intestate inheritance to persons who,
during the life of the deceased, were adjudged by a state court to be his children
k. Age
i. Rational basis review


Equal Protection In Review

a. What is it exactly that equal protection protects?
i. Protects against government actions that treat people differently based on their inclusion
in protected classifications, who are otherwise similarly situated as the other groups
ii. Identifiable from due process clause as its more than one persons rights, it includes a
class of people
b. Rational Basis Review (Equal Protection Rule)
Must be a legitimate state purpose which is rationally related to how the purpose is
carried out burden is on the plaintiff to show the measure being challenged is not
rationally related to any legitimate government interest
i. Age
ii. Alienage [only where regarding a federal or state statute regulating who can be teachers,
police officers, or elected officials]
iii. Economic Status

iv. Physical and Mental Disability [see rational basis with bite]
v. Sexual Orientation
1. Unless a state action was so completely unexplainable it would pass rational basis
c. Rational Basis With Bite
Not a legitimate purpose if it is driven by animus or hostility to the group Burden is
easily shifted to state actor
i. Physical and Mental Disability
1. Cleburne-style rational basis review starts with a presumption of constitutionality,
but might be understood to allow the challenger to create a prima facie case of
invalidity by showing no rational basis. Such a prima facie case would shift the
burden to the state to demonstrate a rational and neutral justification for its
discrimination and thus add bite
d. Intermediate Basis
State must prove that it has an important state interest and the statute is substantially
related to those reasons and necessary to achieve those goals Burden was initially on
the plaintiff, but VMI switches the rule, putting the burden on the state to show that it
serves important governmental objectives and the means employed are substantially
related to those governmental objectives
i. Gender
ii. Illegitimacy
e. Intermediate Basis With Bite
i. Exceedingly persuasive language written by Bader-Ginsberg
f. Strict Scrutiny (Equal Protection Exception)
The state has burden to prove that it has a compelling state interest and that the state
action is necessary and narrowly tailored to carrying out that state interest
i. Facially Racial
iv. National Origin
ii. Facially Neutral with Davis Intent
v. Alienage
iii. Ethnicity



Fundamental Rights
a. Two Pockets of Fundamental Rights
i. Bill of Rights
1. The expressly stated rights under the Bill of Rights (protected under either the 5 th
or 14th Amendments)
2. Incorporation process (by the Court) of the Bill of Rights into the 14 th Amendment
to be made applicable to the states

ii. Unenumerated Rights




1. Constitutional rights that are non-textual rights not found in the Constitution in
any meaningful sense but put there by judges
2. By case law have been applied as strongly as the Bill of Rights
a. E.g., Roe v. Wade, Lawrence v. Texas The Right to Privacy [one
3. Considered Constitutional Rights, not because the document can be fairly
interpreted to include them, but because they are simply too important to be left
4. There is some textual basis for enforcing non-textual rights
a. Ninth Amendment The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
b. Fourteenth amendment No state shall make or enforce any law which
shall abridge the privileges or immunities of the citizens of the United
Natural Law, Fundamental Rights
Generally, the government cannot infringe upon fundamental rights unless strict scrutiny is met
i. Government must justify its interference with the fundamental right by making a showing
that such interference is necessary to achieve a compelling government interest
These interests in life, liberty, and property are so important that the government cannot infringe
upon them absent a very powerful justification
The court read substance into due process [the most revolutionizing thing the Court
accomplished in 240 years]

Equal Protection and Due Process

a. Equal Protection
i. Guards people against state action that classifies them so as to treat them differently from
others similarly situated
ii. There must be a category or classification present to invoke the Equal Protection Clause,
where people are losing out on something as people similarly situated enjoy because the
law has placed them in a group that is denied such benefits or rights
iii. Loving v. Virginia clearest example of how both Equal Protection and Substantive Due
Process come up in one case
iv. Most often, if a fundamental right is being denied, it is being denied to a whole group, but
sometimes it is an individual rather than a group

1. The court can decide to use one over the other, or issue the holding based on both
b. Procedural Due Process
i. Invoked where a whole group is denied a right that has been deemed fundamental and is
denied by a lack of a procedure
c. Substantive Due Process
i. Modernly, substantive due process applies to regulations affecting fundamental rights of
personhood rather than rights of property.
1. Where a law affects the rights of all persons with respect to a specific activity
ii. Strict scrutiny review applies o laws which burden the exercise of fundamental rights
1. Right to vote
2. Right to travel
3. Right to privacy
4. Rights under the First Amendment
iii. Recognizing the differences between Equal Protection and Substantive Due Process
1. SDP Birth control devices are outlawed
2. EPC Birth control devices are outlawed for unmarried women


History of Substantive Due Process and the Incorporation Debate

a. The Slaughter House Cases (p. 471)
i. POC: A Louisiana law banned slaughter houses within New Orleans city limits but made
an exception for one which was essentially given a monopoly. One of the butchers
arguments was based on the Privileges or Immunities Clause of the 14th Amendment,
which they asserted protected their fundamental right to work at their trade. The Court
held however that this clause protected only a limited set of national privileges, such as
the right of access to federal agencies and the right to use navigable waters
ii. Note: Slaughter House is usually read as rejecting the argument that the Privilege and
Immunities Clause of the Fourteenth incorporates Bill of Rights guarantees
b. Incorporated Fundamental Rights
i. Incorporation debate the Courts went through a specific process deciding which Bill of
Rights liberties are incorporated into the Fourteenth Amendment so that they also apply
to state and local governments
1. Completed right by right
ii. Palko v. Connecticut (p. 473)
1. Facts: Defendant Palko is tried and convicted of murder for a second time after
the state appealed previous murder conviction on same facts and events.
Defendant objected that a new trial would place him twice in jeopardy for the
same offense, which he claimed would violate the 14th Amendment
2. Issue: Whether the 5th Amendments double jeopardy prohibition applies to the
states through the 14th Amendment (no)
3. Rule: The Due Process Clause of the 14 th Amendment does not draw all the rights
of the federal Bill of Rights under its protection
4. Palko Test whether the right in question is the very essence of the scheme of
ordered liberty, and the right must be rooted in the conscience and traditions of
the people; The rights of Freedom of the Mind, includes the right to:
a. Free speech;
b. Free exercise of religion;
c. Freedom of thought;






d. Freedom of conscience; and

e. Freedom of expression;
5. Note:
a. The Court eventually overruled Palko by incorporating the protection
against Double Jeopardy with its ruling in Benton v. Maryland
Adamson v. California (p. 475)
1. Facts: Appellant was convicted of murder and subsequently challenged the
constitutionality of California provisions that allowed the judge and prosecutor to
point out to the jury that he did not testify and thus made no effort to explain or
deny the evidence against him
2. Issue: Whether the Fifth Amendment privilege against self-incrimination is
incorporated into the Fourteenth Amendment and thus applicable to the states (no)
3. Holding: Although the Due Process Clause of the Fourteenth forbids compulsion
to testify through torture or other coercion, the California procedure at issue does
not violate the concept of ordered liberty
Buck v. Bell
1. POC: The court upholds a statute instituting compulsory sterilization of the unfit,
including the mentally retarded, for the protection and health of the state
Skinner v. Oklahoma (p. 481)
1. Facts: An Oklahoma Act allowed for habitual criminals to be forcibly sterilized
after jury trial
2. Rule: The right to have offspring is a fundamental right, requiring a compelling
state interest (strict scrutiny review) to interfere with it
3. Notes:
a. Skinner represents the Supreme Courts growing awareness of the right to
reproductive autonomy. Unlike later cases that focus on due process and a
right to privacy, the majority in Skinner holds that sterilization in the
present situation violates equal protection principles
b. Court rejects Buck v. Bell; Recognizes a fundamental right to procreate
McDonald v. City of Chicago
1. POC: The Court held that the right of an individual to keep and bear arms,
protected by the Second Amendment, is incorporated by the Due Process Clause
of the Fourteenth Amendment

Protecting Economic Liberty and Property

a. Lochner v. New York (p. 489)
i. Facts: Lochner was charged with violating a NY statute that sought to protect the health
of bakers by prohibiting their employers from requiring them to work over sixty hours a
ii. Rule: There are certain (limited) powers existing in the sovereignty of each state (police
powers the exact description and limitation of which have not been attempted by the
courts) which relate to the safety, health, morals, and general welfare of the public
iii. Issue: Whether the NY Act is an unreasonable, unnecessary, and arbitrary interference
with the right of the individual to enter into contracts in relation to labor (yes)

iv. Analysis: There is no reasonable ground for interfering with the right of free contract in
this instance. There is no contention that bakers as a class are not equal in intelligence
and capacity to men in other trades, nor that they are not able to assert their rights and
care for themselves without the protecting arm of the State, interfering with their
independence of judgment and of action, nor are they wards of the State
v. Rule: The statute necessarily interferes with the right of contract between the employer
and employees. The general right to make a contract in relation to business is part of the
liberty of the individual protected by the Fourteenth Amendment; The statute has no
direct relation to and no such substantial effect upon the health of the employee as to
justify the statute as health law
vi. Notes:
1. The courts decision in Lochner signaled a reinvigorated judicial hostility (both
state and federal) to legislation enacted at the behest of labor unions. Lochner
was the basis for subsequent invalidation of state laws making yellow dog
contracts (whereby the employer would require a promise by employees that
they not join a union) unlawful.
2. The courts eventually overrule Lochner in three separate opinions
b. West Coast Hotel v. Parrish (p. 495)
i. POC: Wage and hour laws generally do not violate the Due Process Clause
ii. Analysis: The court upheld a state law establishing a minimum wage for women,
overruling the Lochner-like Adkins v. Childrens Hospital. The opinion stated that the
Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law. A regulation which is reasonable in
relation to its subject and is adopted in the interests of the community does not violate
due process. The exploitation of a class of workers who are in an unequal bargaining
position with respect to bargaining power and are thus relatively defenseless against the
denial of a living wage is not only detrimental to their health and well-being but casts a
direct burden for their support upon the community
c. Williamson v. Lee Optical (p. 496)
1. POC: An Oklahoma statute prohibited opticians from duplicating or replacing
lenses without a written prescription from an ophthalmologist or optometrist. The
Court ruled that the statute did not violate due process, stating that it is for the
legislature, not the courts, to balance the advantages and disadvantages; There
will be minimal rational basis inquiry for judicial review of economic regulations
as a matter of substantive due process
ii. Notes:
1. The Court stated that there should be strong deference to state legislature and the
court will uphold economic regulations giving lowest rational basis review
imaginable, protecting state sovereignty
d. Notes:
i. Since the New Deal, the US Supreme Court has almost completely abandoned the
Lochner strict scrutiny approach to social and economic legislation


The Takings Clause and Economic Substantive Due Process

a. nor shall private property be taken for public use, without just compensation. Fifth

i. The Supreme court has held that the federal government, each state, and municipal
governments have the power to take private property for public use through the power of
Eminent Domain
ii. The Takings Clause limits the power of Eminent Domain by requiring that just
compensation be paid if private property is taken for public use
iii. The just compensation provision of the Fifth Amendment has been incorporated under the
Fourteenth Amendment so that it applies to states [Chicago, B. & Q. Railroad v. Chicago]
iv. Includes any type of government seizing of land
b. Four Taking Clause Queries

i. Government Taking
1. Was there a government taking?
2. Three types:
a. Direct Seizures
b. Physical Invasions
i. Possessory Takings (e.g. flooding)
ii. Greatly diminish owners value
c. Regulatory Takings
i. Easements
ii. Overregulation of private property
iii. Zoning is generally not a taking government regulating how land
can be used (fencing) applies to everyone in the community

ii. Property
1. Is it property that was taken?
iii. Public Use
1. If there has been a taking of property, was it for public use?
2. Purely a term of art
3. The government can condemn private property and then turn it over to a private
iv. Just Compensation
1. If there has been a taking for public use, then was just compensation paid?
a. Measured by terms of loss to the owner, not in terms of value to the
b. E.g., House once within 10,000 feet of turnpike, now 100
v. [If the answer to all four queries was yes, than there was a permissible taking]
c. Kelo v. City of New London (p. 497)
i. Facts: The city approved a development plan that was projected to create in excess of
1,000 jobs, increase tax and other revenues, and revitalize an economically distressed
city. In assembling the land needed for the project, the citys development agent
proposed to use the power of eminent domain to acquire the property from unwilling
owners in exchange for just compensation. The city then planned to give the property to
a private developer to turn the space into development to support a new state park
ii. Issue: Whether the citys proposed disposition of the property qualifies as public use
within the meaning of the Takings Clause (yes); whether the citys development plan
serves a public purpose (yes)
iii. Minor Rules: (1) A State may not take the property of A for the sole purpose of
transferring it to another private party, even though A is paid just compensation; (2) The
State may transfer property from one private party to another if future use by the public is
the purpose of the taking

iv. Rule: It is appropriate for the Court to resolve the challenges of the individual owners,
not on a piecemeal basis, but rather in light of the entire plan. Because that plan
unquestionably serves a public purpose, the takings challenged here satisfy the public use
requirement of the Fifth Amendment; Promoting economic development is a traditional
and long accepted function of government; A taking by eminent domain will be upheld as
long as it is rationally related to a conceivable public purpose and just compensation is
paid to the owner
v. Notes: Approved reasons for state takings: (1) Better balanced, more attractive
community; (2) Eliminating the social and economic evils of a land oligopoly
d. Penn Central Transportation Co. v. City of New York (p. 504)
i. Facts: Following refusal of the NYC Landmarks Preservation Commission to approve
plans for construction of a 50-story office building over Grand Central Terminal, which
had been designated a landmark, the terminal owner filed a taking challenge to the
landmarks preservation law
ii. Issue: Whether a taking has occurred (no)
iii. Rule: Whether a particular restriction will be rendered invalid by the governments
failure to pay for any losses proximately caused by it depends largely upon the particular
circumstances in that case, including, (1) the economic impact of the regulation on the
claimant; and (2) the character of the government action
iv. Holding: The NYC law is not rendered invalid by its failure to provide just
compensation whenever a landmark owner is restricted in the exploitation of property
interests (NYC specific, the Court could rule different in another case)
v. Notes:
1. This historical designation was ruled not to be a taking, but historical designations
can be takings
2. The court applied simple, rational basis standard of review
3. Dissent (Rehnquist) there was a taking

e. Lucas v. South Carolina Coastal Council (p. 507)

i. Facts: Petitioner purchased two beachfront lots, intending to build on each. 2 years later,
South Carolina legislature passed the Beachfront Management Act which barred the
building. The Acts stated purpose was to protect property from storms, tides, and beach
erosion and as an environmental protection. Petitioner did not challenge the states right
to pass the Act or its justifications, but rather that the passage of the Act resulted in a
taking of the property as he can no longer use it for his intended purpose of building
ii. Issue: Whether the Acts dramatic effect on the economic value of Petitioners lots
accomplished a taking of private property under the Fifth and Fourteenth Amendments
requiring the payment of just compensation (yes)
iii. Rule: If a regulation prohibits all economically beneficial use of land and the proscribed
use could not have been prohibited under a given states nuisance law, the regulation is a
taking which requires just compensation to be paid to the landowner
iv. Note: Lucas applies only when virtually all of the utility of property has been destroyed,
making it critical to define the denominator the total property interest
f. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (p. 510)
i. Facts: Two moratoria were ordered by respondent TRPA to maintain the status quo while
studying the impact of development on Lake Tahoe and designing a strategy for

environmentally sound growth. As a result of the two directives, nearly all development
on a substantial portion of the property subject to TRPAs jurisdiction was prohibited for a
period of 32 months
ii. Issue: Whether a regulation prohibiting any economic use of land for a 32-month period
constitutes a per-se taking of property requiring compensation under the Takings Clause
iii. Rule: In order to determine if a temporary taking has occurred requires careful
examination and weighing of all the relevant circumstances


The Rise of Fundamental Privacy Rights

a. Fundamental Privacy Rights
Receive strict scrutiny protection
i. Right to Procreate
1. Skinner v. Oklahoma
ii. Right to Contraception
1. Griswold v. Connecticut; Eisenstadt v. Baird
iii. Right to Abortion
1. Roe v. Wade; Planned Parenthood of Southeast Pennsylvania v. Casey
iv. Right to Marriage
1. Loving v. Virginia; Zablocki v. Redhail; Turner v. Safley
v. Right to Freedom of Choice in Sexual Activity
1. Lawrence v. Texas
vi. Right to Choose Who Your Family Is
1. Moore v. City of Cleveland
vii. Right to Direct the Education and Upbringing of Your Child (within bounds)
1. Meyer v. Nebraska; Pierce v. Society of Sisters
viii. Right to Refuse Unwanted Lifesaving Medical Treatment
1. Washington v. Glucksberg
a. No right to assistance in dying
b. No right to refuse treatment in other contexts
b. Introduction
i. Meyer v. Nebraska (p. 549)
1. Facts: A Nebraska law prohibited teaching young children in any public or
private school in any language other than English. The stated purpose of the
legislation was to promote civic development by inhibiting training and education
of children in foreign tongues and ideals before they could learning English and
American ideals
2. Rule: The Fourteenth Amendment prohibits states from creating legislation that
restricts liberty interests when the legislation is not reasonably related to an
acceptable state objective
3. Holding: Nebraska law is inconsistent with the Due Process Clause
ii. Pierce v. Society of Sisters (p. 551)
1. POC: Ruled that the state could not require all children to attend public schools
c. Contraception, Marriage, and Family
i. By WWI, most states and the federal government made it a crime to distribute articles of
contraception, and almost half the states criminalized a doctors providing contraceptive
information to patients
ii. Poe v. Ullman (p. 552)

1. Facts: Appellants, several couples and their physician, brought suit, seeking the
overturn of a Connecticut statute prohibiting the use of contraceptive devices and
the giving of medical advice on the use of such devices. The state had not
prosecuted the statute since 1879
2. Rule: A penal statute is not ripe for constitutional challenge unless it is enforced
by the state enacting the statute
3. Notes: Court ducked the issue of whether there is a fundamental right to
iii. Griswold v. Connecticut (p. 556)
1. Facts: Appellants are the Executive Director and Medical Director of Planned
Parenthood League of Connecticut who gave information, instruction, and
medical advice to married couples about birth control. No statute prohibited the
sale of birth control devices, but it was a crime to use any drug, medicinal article,
or instrument for the purpose of preventing conception. Appellants were charged
with accessories to that offense
2. Rule: The right of marital privacy lies within the penumbra of the Bill of Rights.
Therefore, it is a fundamental right and strict scrutiny is the standard of judicial

d. Abortion
i. Roe v. Wade (p. 570)
1. Facts: A Texas statute prohibited all abortions except for the purpose of saving
the pregnant womans life. Roe, an unmarried pregnant woman, brought a class
action challenging the constitutionality of the Texas law
2. Rule: The Constitution protects a womans right to choose to terminate a
pregnancy prior to the fetuss viability, but such a right is not unqualified and
must be considered against the important state interest in regulation [such as the
stage of the pregnancy]
a. Therefore, if there was a government regulation impeding that right to
abortion, it would be analyzed and reviewed under strict scrutiny review
b. The decision leaves the State free to place increasing restrictions on
abortion as the period of pregnancy lengthens past viability, so long as
those restrictions are tailored to the recognized state interests
c. Roe protects a womans right to choose but limits that right as the period
of pregnancy moves forward
3. Trimester System:
a. First State cannot interfere with womans right to abortion (with
consultation of physician) and strict scrutiny is applied if state wants to
regulate the womans right
i. No fetus counter-rights

b. Second State can regulate abortion procedures but only to protect the
womans health (i.e. states can prohibit abortions where the abortion
would put the womans health at risk)
c. Third States can prohibit abortions unless child birth would endanger the
womans life
i. Rational basis review is applied
d. Trimester System is eventually overruled in favor of pre-viability and
post-viability with an undue burden basis of review
4. Holding: (1) A recognition of the right of the woman to choose to have an
abortion before viability and to obtain it without undue interference from the
state; (2) A confirmation of the States power to restrict abortions after fetal
viability as long as the law contains exceptions for pregnancies which endanger a
womans life or health; and (3) The principle that the state has legitimate interests
from the outset of the pregnancy in protecting the health of the woman and the
life of the fetus that may become a child
5. Notes:
a. Roe does not address the question of when life begins
b. State abortion laws must always make exceptions for extreme health
problems and death of mother; Restrictive state abortion laws which do
not include provisions allowing for abortion to protect health and life of
mother are defective

ii. Webster v. Reproductive Health Services (p. 580)

1. POC: A Missouri statute required doctors to determine viability before
performing an abortion after the twentieth week of pregnancy and limited
abortions in the second trimester of pregnancy. Recognizing that abortion
involves a liberty interest protected by the Due Process Clause, the Court
upheld the statute in part designed to determine viability and struck down the
statute in part designed to limit abortions in the second trimester
iii. Hodgson v. Minnesota (p. 581)
1. POC: Of the 38 states with laws requiring notification or consent of parents
before a minor child could obtain an abortion, Minnesota was arguably the most
restrictive, requiring notification of both parents with virtually no loopholes
except for an alternate procedure for judicial bypass. The Court upheld the law,
ruling that although the two-parent notification requirement was in fact an undue
burden on a minor womans right to abortion, the availability of a judicial bypass
saved the statute
iv. Planned Parenthood of Southeast Pennsylvania v. Casey (p. 582)
1. Facts: Pennsylvania law required a woman seeking an abortion to wait 24 hours
(except in a medical emergency), so that she could consider information regarding
the nature and risks of the procedure and the probable gestational age of the fetus,
which the law required the physician to provide. The law required minors to
obtain the consent of one parent with a judicial-bypass option. Married women
were required to notify their spouses

2. Rule: (1) Regulations which do no more than create a structural mechanism by

which the State, or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not a substantial
obstacle to the womans exercise of the right to choose; (2) The Court abandons
Roes trimester framework as a rigid prohibition on all previability regulation
aimed at the protection of fetal life as its formulation misconceives the nature of
the pregnant womans interest; (3) A law designed to further the States interest in
fetal life which imposes an undue burden on the womans decision before fetal
viability is unconstitutional
3. Holding: The court upheld the informed consent-24 hour waiting period, and
one-parent consent provisions but held that the spousal notification was an undue,
and therefore unconstitutional, burden on the right to abortion
4. POC: The law affords constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and
education. These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by the Fourteenth Amendment
5. Notes:
a. Casey overruled the Trimester System of Roe replacing it with a previability and post-viability distinction, discarding strict scrutiny review
and replacing it with undue burden
i. The moment of viability is not clear and depends on the pregnancy
ii. Usually at the end of the second trimester and certainly by the third
b. Justice OConnor wrote the majority opinion
v. Stenberg v. Carhart (p. 597)
1. Facts: Respondent is a Nebraska physician who performs abortions in a clinical
setting. During the second trimester of pregnancy, the safest method of abortion
involves dilation and evacuation (D&E). A Nebraska statute criminalized the
performance of any partial birth abortions seeking to illegalize dilation and
extraction procedures (D&X), however the statute encompassed D&E as well.
Respondent seeks an injunction forbidding the enforcement of the statute
2. Rule: The state cannot ban abortion procedures categorically without exceptions
for the mothers health (The court struck down the statute)
3. Notes: The court also held that the statute imposed an undue burden on a
womans ability to choose an abortion as the wording of the ban reached beyond
the D&X to illegalize the most common procedure for previability second
trimester abortions, D&E
vi. Gonzales v. Carhart (p. 598)
1. Facts: In 2003, Congress passed the Partial-Birth Abortion Ban Act, banning
abortions in which part of the fetus is removed from the woman and then
terminated (known as intact D&E)
2. Issue: Whether the Act is unconstitionally vague on its face (no)
3. Rule: The void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement. The Court has made clear that scienter requirements
alleviate vagueness concerns and as the doctor performing D&E will not face


criminal liability if she delivers a fetus beyond the prohibited point by mistake,
the Act is not a trap
Issue: Whether the act imposes an undue burden because its restrictions on
second-trimester abortions are too broad (no)
Rule: Traditional D&E is not prohibited
Issue: Whether the federal government may ban partial birth abortions (yes)
Issue: Whether the Act is unconstitutional for its failure to include an exception
to protect the health of the mother (no)
Note: A real set-back for womens right to choose; women still retain a right to
choose in pre-viability, with the exception of partial-birth abortions

e. Consensual Sexual Activity

i. Bowers v. Hardwick (p. 608)
1. POC: Hardwick challenged a Georgia statute criminalizing sodomy after being
arrested for committing such act with another consenting adult in privacy; the
Court rejected Hardwicks substantive due process claim, ruling that there is no
fundamental constitutional right to engage in homosexual sodomy
ii. Kentuck v. Wasson (p. 609)
1. POC: Kentucky court struck down state sodomy law in spite of Bowers; first
state to repeal such a law after Bowers

iii. Lawrence v. Texas (p. 610)

1. Facts: County police arrested Lawrence and another man when found having sex
and later charged them with violating the Texas state sodomy law. Defendants
appealed their convictions on the ground that the sodomy law was
2. Issue: Whether the Constitution confers a fundamental right upon homosexuals to
engage in sodomy (no); Whether a statute prohibiting specific sex acts violates
liberty under the Due Process Clause of the Fourteenth Amendment (yes)
3. Rule: While homosexual conduct is not a fundamental right, intimate sexual
relationships between consenting adults are protected by the Fourteenth
4. Holding: Texas sodomy law struck down. The court does not focus on protecting
sodomy specifically, but rather, personal relationships. The Texas statute furthers
no legitimate state interest; Court overrules Bowers
f. The Right to Marry
i. Zablocki v. Redhail (p. 619)
1. POC: The Court invalidated Wisconsins law precluding the issuance of marriage
license to people with outstanding support obligations to children from a previous
marriage. Justice Marshall started with the proposition that the right to marry is a
fundamental right, that any state discrimination in allocating the right to marry
must be subject to strict scrutiny under the Equal Protection Clause, and therefore
cannot be upheld unless it is supported by sufficiently important state interests
and is closely tailored to effectuate only those interests
ii. Turner v. Safley (p. 619)
1. POC: The court struck down a state regulation barring the ability of prisoners to
marry, holding that the right to marry was implicated even in prison settings

iii. In re Marriage Cases (p. 620)

1. Facts: Consolidation of six cases where same-sex couples sought recognition of
their committed relationships as marriages; one of the plaintiffs claims was
grounded in the fundamental right to marry.
2. Issue: Whether the Constitution confers a fundamental right upon homosexuals to
marriage (no); Whether the law prohibiting same-sex marriage violated the
California State Constitution (yes)
g. The Right to Die
i. Issue: Whether there is a constitutional right to have the government provide medical
care (no there is no fundamental right to medical care)
ii. Issue: Whether there is a right to refuse medical care (yes limitedly)
1. Cruzan v. Director, Missouri Department of Health
a. POC: The Court ruled that there is a constitutionally protected right to
refuse lifesaving medical treatment, and that Cruzan had a right which
would require the hospital to withdraw life-sustaining treatment at her
parents request
2. Competent adults who state ahead of time, with clear and convincing evidence,
may have a right to refuse medical care when they are in a terminal state
3. Court does not establish exactly what is clear and convincing evidence, but a
living will does suffice
iii. Issue: Whether there is a constitutional right to physician assisted suicide (no)
1. Washington v. Glucksberg (p. 626)
a. Facts: Washington States prohibition against causing or aiding a suicide
was challenged
b. Issue: Whether the protections of the Due Process Clause include a right
to commit suicide with anothers assistance (no)
c. Rule: That many of the rights and liberties protected by the Due Process
Clause sound in personal autonomy does not warrant the sweeping
conclusion that any and all important, intimate, and personal decisions are
so protected; The liberty protected by the Due Process Clause does not
include to right to assist(ed) suicide
d. Holding: The asserted right to assistance in committing suicide is not a
fundamental liberty interest protected by the Due Process Clause



a. The Due Process Clauses of the Fifth and Fourteenth Amendments state that a person is entitled
to due process of law before she is deprived of certain important interests by the government
i. Fifth Amendment: Nor shall any person be compelled in any criminal case to be a
witness against himself, nor deprived of life, liberty, or property, without due process of
ii. Fourteenth Amendment: Nor shall any state deprive any person of life





The government establishes a rule that a supervisor can fire any employee he believes
guilty of using illegal drugs
1. Neither public employment nor drug use is a fundamental right, nor are public
employees a suspect class
2. However, the absence of a hearing process may violate procedural due process,
even though no substantive constitutional right is involved
Usually a concern where a judge or administrative official is enforcing a governmental directive
in a way that deprives an individual of life, liberty, or property
i. There must be state action

Substantive Due Process is concerned with how legislatures regulate behavior; Procedural Due
Process looks at very general rules and considers whether they are correctly applied in individual
e. The Court has held that due process does not require a legislature or other governmental
lawmaking body adopting a statute or rule that applies across a class of persons to provide any
special procedural protections
f. Goldberg v. Kelly (p. 639)
i. POC: Welfare recipients challenged the termination of their benefits without a prior
evidentiary hearing The Court ruled that the continued receipt of welfare benefits is
property whose deprivation triggers the protections of the Due Process Clause; The
Constitution requires that any time an adverse government action threatens to cause
grievous harm a pre-termination hearing is required
ii. Notes:
1. The extent to which procedural due process must be afforded the recipient is
influenced by the extent to which he may be condemned to suffer grievous loss
2. The closest the Court comes to ruling that there is a right not to be poor


Defining Liberty and Property

a. Board of Regents v. Roth (p. 641)
i. Facts: Respondent was a new college professor at a state university. He was hired on a
yearly contract that was not renewed. The university provided no explanation for the
choice to not renew the contract
ii. Issue: Whether the decision to not rehire Respondent violated his Due Process rights (no)
iii. Rule: To have a property interest in a benefit, a person must have more than an abstract
need or desire for it. He must have a legitimate claim of entitlement to it
iv. Notes:
1. A bona fide expectation of continuing employment arising from state law is
property for due process purposes
2. If entitlement under state law is shown, then property is present and procedural
due process applies notwithstanding any procedural conditions found in the
employees contract
3. Ex: Cleveland Board of Education v. Loudermill
a. Issue: Whether an employee fired by the school board had a property
interest for procedural due process purposes (yes, Ohio statutes provided
that classified civil service employees were entitled to retain their
positions during good behavior and efficient service and could not be
dismissed except for misfeasance, malfeasance, or nonfeasance in office
b. Issue: Whether the procedures accorded him complied with procedural
due process (no)
b. In general, an individual has been deprived of a liberty interest for procedural due process
purposes if she is the subject of a coercive government order prohibiting her from engaging in
previously lawful activity


Defining What Process is Due

a. Mathews v. Eldridge (p. 648)
i. Facts: After making a determination that Eldridge was no longer eligible for disability
benefits, the relevant agency informed him of the termination, gave him a statement of
reasons, and offered him an opportunity to submit a written response, which he seized.
Benefits were nevertheless terminated. Eldridge challenged the constitutionality of the
governments termination procedures as not providing for due process in accordance with
the 14th Amendment
ii. Issue: Whether the termination of disability benefits without affording an evidentiary
hearing violates the Due Process Clause of the 14th Amendment (no)
iii. Rule: An evidentiary hearing is not constitutionally required prior to the termination of
disability benefits
iv. 3 Prong Balancing Test:
1. The requirements of due process can be determined by weighing three factors:
a. The private interest that will be affected by the official action [present case
government provided elaborate procedures to prevent error];
b. The risk of an erroneous deprivation of such an interest through the
procedures the government uses, and the probable value, if any, of
additional procedural safeguards [benefits were not based on need]; and

c. The fiscal and administrative burdens to the government associated with

the additional procedural requirements [costs of increased hearings would
be high]
2. *Still good law



First Amendment Rules Framework

a. Content Neutral
i. Rule: Intermediate scrutiny of government regulations of speech that is content neutral
ii. OBrien Test: A government regulation is sufficiently justified if:
1. It is within the constitutional power of the Government;
2. If it furthers an important or substantial governmental interest;
3. If the governmental interest is unrelated to the suppression of free expression; and
4. If the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest




Burning a draft card [violation of law that states you cannot desecrate the draft
card; it does not matter why you desecrated the draft card, law has a purpose that
is non-speech related i.e. administrative reason for keeping cards intact]
Regulation prohibiting all leaflets on law school campuses

b. Content Based
i. Rule: Strict scrutiny of government regulations against speech that is content based
ii. Ex:
1. Regulation prohibiting distribution of leaflets that are critical of the law school

administration [also viewpoint discrimination]

Exception: Unprotected categories receive rational basis review


Incitement to Violence


Illegal Advocacy
Clear and Present Danger Test [Schneck v. US]



Whether challenged speech had the (1) likelihood of (2) imminent,

(3) significant harm
ii. Speech must be directed at causing immediate illegality
Ex: Yelling fire in a crowded room

Fighting Words
a. Words that by their very utterance inflict injury or tend to incite an
immediate breach of the peace, are no essential part of any exhibition of
ideas, and are of such slight social value that any benefit that may be
derived is outweighed by the social interest of order and morality
b. Words, said without a disarming smile, that ordinary men know are likely
to cause a fight
c. Look at: Cohen Test


The audience;
Results of the speech;
Length of the speech;
The actual result of the speech; and

v. The wording of the statute


Hate Speech The Exception to the Exception


An expression of hate is protected speech

The government cannot outlaw symbols of hate nor repress a

speaker based on the reaction of the audience
iii. Ex: Nazi party leading parade through Jewish resettlement
e. While fighting words can be regulated, ordinarily profanity cannot
f. Difference between Incitement to Violence and Fighting Words


Incitement to Violence Speaker encourages others to go with him

to engage in illegal action
Fighting Words Speaker encourages an attack against himself




Lewdness, indecency, and profanity receive full First Amendment

protection, but obscenity which lacks social worth is generally not entitled
to protection



Unprotected speech unless directed at a public official or re: a public

True Threat
a. True threats encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual.
b. The speaker need not actually intend to carry out the threat. Rather, a
prohibition on true threats protects individuals from the fear of violence
and from the disruption that fear engenders, in addition to protecting
people from the possibility that the threatened violence will occur
[Virginia v. Black]

c. Government Nexus Public Forum Doctrine

i. Rule: If speech takes place in a public forum, the state can implement

time, place, and

manner restrictions [including some content control]; Subject to rational basis review
ii. State property traditionally open for expressive purposes may not be closed off or
abridged for reasons relating to the content of the proposed expression, but the state may
impose reasonable time, place, and manner restrictions on the use of public property
1. *When you see measurements or permits, there is a TPM regulation
iii. Types of Public Property:
1. Traditional Public Forum
a. Government property which has traditionally and historically been
exclusively devoted to public assembly and debate, here is where the
greatest protection of speech occurs
b. Government has to follow all First Amendment rules
c. Parks, sidewalks, etc.


2. Limited (Designated) Public Forum

a. Government property which always had been a third category called nonpublic form, but for whatever reason, the government decided that it could
be a place for expressive activity
b. While this forum is a limited public forum, the same rules apply to speech
in this limited public forum as apply in the traditional public forum
c. Ex: During very big demonstrations
d. Rules will never change until the government changes the forum back to a
non-public forum
3. Non-Public Forum
a. Government property, which is not by tradition a forum for public speech
and communication
b. Speech here can be very, severely limited
c. In non-public forums, the government can:
i. Limit speech in reasonable ways
1. That are content based, but
2. Not viewpoint based
ii. Employ content-neutral TPM regulations
1. But they cant be stricter than they could be in a traditional
or limited public forum
iii. Prohibit speech that falls within an unprotected category;
iv. Prohibit speech that is narrowly tailored to a specific state interest
d. Rational basis review [viewpoint discrimination receives strict scrutiny]
e. Other than no view-point discrimination, the government can probably ban
all speech via very restrictive TPMs and through content-based regulations
in non-public forums
f. Ex:
i. Post offices (and sidewalks in front), public school classrooms,
utility poles, airports, public hospitals and clinics, every federal
Exception: Strict scrutiny applied where the regulation of government-nexus speech is


a. A law is unconstitutionally vague if a reasonable person cannot tell what
speech is prohibited and what is permitted
Viewpoint Discrimination


Government cannot regulate speech based on the personal points of view

of the speech
i. Ex: Regulation allowing pro-life demonstrations in a park but
prohibiting pro-choice demonstrations
b. All viewpoint discrimination is content-based, but not all content-based
regulations are viewpoint discrimination
4. Prior Restraint

d. Notes
i. Values in the First Amendment
1. Marketplace of ideas
2. Search for truth
ii. Incorporated under the 14th Amendment
iii. Speech is not just verbal speech
1. Also written speech and actions
2. Voting can be considered speech
iv. What is state action?
1. A law that prohibits speech in some way; or
2. A state actor carrying out a law that prohibits speech in some way
3. The state action is reviewed, not the speech


Speech: Sidewalk Protest

State Action: Policeman arresting protestor; Judge convicting protestor

Free Speech and Competing Values

a. The Court is extremely suspicious of government efforts to ban harmful messages; a rule against
content regulation
b. But, the Court is much more forgiving of laws which ignore content completely and regulate
only the time, place, or manner of speech
c. Texas v. Johnson (p. 657)
i. Facts: After publicly burning an American flag as a means of political protest, Johnson
was convicted of desecrating a flag in violation of Texas law
ii. Issue: Whether a conviction or desecrating the American flag is consistent with the First
Amendment (no)
iii. Rule: Government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable
d. R.A.V. v. City of St. Paul (p. 658)
i. Facts: Petitioner and other teenagers burned a cross in the yard of a black family. The
city of St. Paul charged Petitioner under an ordinance which forbids harmful conduct on
the basis of race. Petitioner moved to have charges dismissed on the ground that the
ordinance was substantially overbroad and impermissibly content-based
ii. Issue: Whether the ordinance is substantially overbroad and impermissibly content-based
iii. Rule: Content-based restrictions, as well as point-of-view restrictions, are presumably
iv. Famous Dicta: State may not prohibit politically offensive messages
e. US v. OBrien (p. 663)
i. Facts: OBrien was convicted for burning his draft card at an anti-war rally
ii. Rule: Content neutral. A government regulation is sufficiently justified if: (1) it is within
the constitutional power of the Government; (2) if it furthers an important or substantial
governmental interest; (3) if the governmental interest is unrelated to the suppression of

free expression; (4) and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest


Harmful Messages & Regulation of Cultural Discourse and Political

a. Illegal Advocacy
i. Historically, the most stringent controls on speech have been imposed during periods of
national emergency to prevent subversion
ii. Masses Publishing Co. v. Patten (p. 665)
1. POC: Case arose when the post office refused to mail a magazine on the ground
that its contents would hamper the war effort. The Espionage Act of 1917 barred
publications from the mail if they made false statements with the intent of
hindering the war effort, willfully caused military insubordination, or obstructed
military recruiting. The court ruled that the magazine did not violate the Act,
interpreting the statute narrowly to criminalize only speech or writings that on
their face constituted a direct incitement to violent resistance to the law
iii. Schneck v. US (p. 665)
1. POC: Schenck had mailed a leaflet to draft-age men arguing that the draft
violated the 13th Amendment. Holmes upheld the conviction concluding that the
leaflet would not have been distributed unless it had been intended to have some
effect. The court announced the clear and present danger test whether the
words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent.
iv. Abrams v. US (p. 666)
1. Facts: Defendants wrote and distributed thousands of leaflets advocating a strike
and appealing to workers in ammunitions factories to stop the production of
weapons to be used against Russian revolutionaries. They were convicted under
the Espionage Act that prohibited the curtailment of production of materials
necessary to the prosecution of war with intent to hinder its prosecution
2. Issue: Whether Defendants speech was protected by the First Amendment (no)
3. Rule: Men must be held to have intended and to be accountable for the effects
which their acts are likely to produce
4. Notes: Justice Holmes famous dissent
v. Gitlow v. New York (p. 669)
1. POC: Court upheld the conviction of Gitlow for violating New Yorks law
prohibiting the advocacy of criminal anarchy; the first opinion where the Court
held that the guarantees of the First Amendment were applicable to the states as
protections assured by the Due Process Clause of the Fourteenth Amendment
2. Note: Court applied a reasonableness test [looser than the CPD test], protecting
less speech
vi. Whitney v. California (p. 669)
1. POC: Court upheld the conviction for criminal syndicalism of a member of the
Communist Labor Party whose only individual activities had been attending
vii. Dennis v. US (p. 671)

1. POC: The convictions of members of the Communist Party under the Smith Act
were upheld by the Court which held the Act was constitutional because it was
directed at advocacy not discussion. In each case, the courts must ask whether the
gravity of evil, discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid danger in order to determine if the speech is
protected or not
viii. Yates v. US
1. POC: Fourteen individuals who were accused of advocating, teaching, and
intending to overthrow the government were convicted for violation of the Smith
Act. Court upheld the conviction under the rule that mere advocacy and teaching
for overthrow of the government is not enough to punish the otherwise protected
liberty of free speech and free press. There must be something more than just
belief, they must be urged to perform some action either now or in the future
ix. Brandenburg v. Ohio (p. 672)
1. Facts: Appellant, a leader of the Ku Klux Klan, was convicted under the Ohio
Criminal Syndicalism statute for advocating the duty, necessity, or propriety of
2. Issue: Whether the Ohio statute violates the First Amendment (yes)
3. Rule: The first amendment protections do not permit a state to forbid or proscribe
advocacy of the use of force or of law violation except (1) where such advocacy is
directed to inciting or producing imminent lawless action and (2) is likely to incite
or produce such action
4. Notes: Modifies the Clear and Present Danger test
x. Virginia v. Black (p. 674)
1. Facts: Respondents burned crosses in KKK rallies and in the yard of an AfricanAmerican. They were convicted of violating Virginias cross-burning statute
which provided that it shall be unlawful for any person, with the intent of
intimidating any person, to burn a cross on the property of another, or other public
2. Issue: Whether the cross-burning statute violates the First Amendment (no)
3. Rule: True Threats Exception True threats encompass those statements where
the speaker means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual. The speaker need not actually
intend to carry out the threat. Rather, a prohibition on true threats protects
individuals from the fear of violence and from the disruption that fear engenders,
in addition to protecting people from the possibility that the threatened violence
will occur
4. Notes:
a. Court cant ban all cross burnings, only those that are carried out with
intent to threaten or intimidate

b. Fighting Words, Captive Audiences, and Hate Speech

i. Cohen v. California (p. 702)

1. Facts: Appellant was convicted of maliciously and willfully disturbing the peace
by offensive conduct after he entered a courthouse wearing a jacket with the
words Fuck the Draft on the back. Defendant did not engage in, not threaten to
engage in, nor did anyone as a result of his conduct in fact commit or threaten to
commit any act of violence
2. Issue: Whether California can excise, as offensive conduct, one particular
scurrilous epithet from the public discourse, either upon the theory that its use is
the employment of fighting words or that the states, acting as guardians of
public morality, may properly remove the offensive word from public vocabulary
3. Rule: Emotive speech that is used peacefully to get attention is protected by the
4. Notes:
a. Even if fighting words can be regulated, ordinarily profanity cannot
b. Plummer v. City of Columbus The Court struck down an ordinance
prohibiting menacing, insulting, slanderous, or profane language
c. State v. Harrington Abusive language spoken with intent to annoy or
alarm cannot be constitutionally regulated
ii. Hate Speech Exceptions
1. Beauharnais v. Illinois (p. 707)
a. POC: Petitioner was convicted of violating a state statute that outlawed
the dissemination of printed racist materials; The Court affirmed ruling
that (1) libel is not speech protected by the First Amendment, (2)
collectivities as well as individuals can be libeled, and (3) it was within
the realm of reasonable legislative choice to create such a law to ease
racial tensions in the state
b. Notes:
i. No longer good law
ii. Collin v. Smith IL town could not constitutionally prevent white
supremacist, anti-Semitic Nazi Party march
2. Wisconsin v. Mitchell (p. 708)
a. Facts: Respondent allegedly led a group of individuals to attack a young
man based on his race. The lower court increased his sentence on account
that it was a hate crime
b. Issue: Whether the state statute allowing for increased sentences in hate
crimes violates Respondents First Amendment rights (no)
c. POC: A state may consider whether a crime was committed or initially
considered due to an intended victims status in a protected class
iii. Offensive Speech in the Electronic Media
1. The precepts of Cohen and R.A.V. apply with full force to print media such as
newspapers, but not necessarily to electronic media, such as televisions or radio
2. Broadcast media is less protected
3. Federal Communications Commission v. Pacifica Foundation (p. 713)
a. POC: A broadcast of patently offensive words dealing with sex and
excretion may, under the First Amendment, be regulated because of its
content since such words offend for the same reasons obscenity offense
and broadcasting is uniquely available to children

b. Stevens: Patently offensive, indecent material presented over the airwaves

confronts the children, not only in public, but also in the privacy of the
home [censorship not necessarily permissible late at night]
c. Brennan: Argued that the Courts result was inconsistent with Cohens
rule that the state cannot silence speech to protect others from hearing it
unless substantial privacy interests are being invaded in an intolerable
c. Sexuality and Gender Obscenity and Indecent Speech
i. In Roth v. US, the Court held for the first time that obscenity was not protected by the
First Amendment
1. The Court redefined obscenity as material which, if considered as a whole,
predominantly appeals to prurient interest, i.e., a shameful or morbid interest in
nudity, sex, or excretion that has a tendency to excite lustful thoughts
2. Some sexually explicit speech can still be protected
ii. Miller v. California (p. 695)
1. Facts: Defendant was convicted for mailing advertisements for adult material to
non-soliciting recipients
2. Issue: Whether state statutes may regulate obscene material without limits (no)
3. Rule: The basic guidelines for the trier of fact must be:
a. Whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest;
b. Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and
c. Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value
4. Notes:
a. At a minimum, prurient, patently offensive depiction or description of
sexual conduct must have serious literary, artistic, political, or scientific
value to merit First Amendment protection
i. Prurient is now a local standard nudity alone does not meet the
standard to make speech unprotectedly obscene
b. Some types of sexually oriented speech that leads to violence against
women may be prohibited even if not under Miller
c. The Court has made only one significant departure from the Miller
obscenity test
i. In NY v. Ferber, the Court upheld a statute banning child
pornography which was defined as sexual material involving
children as models or actors
ii. The Court found that the states interest in protecting children from
participating in the production of these materials was strong
enough to justify banning the materials themselves
iii. Paris Adult Theater I v. Slaton (p. 695)
1. POC: The Court rejected the argument that the First Amendment protects the
right of consenting adults to purchase obscene materials; The government had
valid regulatory interests, including the interest of the public in the quality of life
and the total community environment, the tone of commerceand public safety;
The legislature is entitled to assume that obscene materials are harmful
iv. Stanley v. Georgia (p. 696)





1. POC: The Court reversed a conviction for possession of obscene films;

Regulations for regulating obscenity do not reach into the privacy of the home
2. Note: Under Stanley, the government cannot arrest a person for possession a
videotape of an obscene movie, but under Paris, it can prosecute the store that
sold the tape
Ashcroft v. The Free Speech Coalition (p. 697)
1. Issue: Whether to expand Ferber to encompass virtual child pornography (no)
2. Rule: The mere tendency of speech to encourage unlawful acts is not a sufficient
reason for banning it; Ferbers judgment was based upon how it was made, not on
what it communicated
City of Renton v. Playtime Theaters, Inc. (p. 700)
1. Facts: Petitioner passed a zoning code restricting the location of adult movie
stores within 1,000 feet of residential areas, churches, parks, or schools
2. Issue: Whether the zoning ordinance is a violation of the First Amendment (no)
3. Rule: A regulation that is content based may be considered content-neutral if it
involves businesses that purvey sexually explicit materials so as to combat the
undesirable secondary effects of such businesses
Barnes v. Glen Theatre, Inc. (p. 701)
1. POC: In a case re: a state ban on public nudity to barroom dancing, the Court
accepted the premise that nude dancing was sufficiently expressive to receive
some First Amendment protection. However, the Court considered the states
interest in preventing public nudity to be content neutral and upheld the ordinance
under the OBrien test
City of Erie v. Paps A.M. (p. 701)
1. POC: Erie passed an ordinance against nude dancing the Court upheld the ban

d. Defamation, Privacy, and Political Speech

i. Defamation [any false statement injurious to the target] is not protected speech under the
First Amendment unless:
1. The target is a public official, and (s)he can:
a. Prove with clear and convincing evidence
b. The falsity of the speakers statements; and
c. That the speaker spoke with actual malice (the speaker knew the statement
was false, or acted with reckless disregard for the truth)
2. An exception also exists for defamatory speech involving a matter of public
ii. New York Times Co v. Sullivan (p. 678)
1. Facts: Plaintiff Sullivan Police Commissioner of Montgomery, Alabama
brought suit against the NYT for printing an advertisement about the civil rights
movement in which he claimed he was libeled by reference to the Montgomery
police. The ad contained minor and largely irrelevant inaccuracies
2. Issue: Whether the NYT forfeits its First Amendment constitutional protection by
the falsity of some of its statements and by its alleged defamation of the
respondent (no)
3. Rule: The constitutional guarantees require a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual malice
with knowledge that it was false or with reckless disregard of its veracity
iii. Gertz v. Robert Welch, Inc. (p. 682)

1. POC: In defamation case the Court held that the NYT rule did not apply because
the plaintiff was neither a public official nor public figure. The Court laid down
two rules governing liability in such cases: (1) The States may define for
themselves the appropriate standards of liability for a publisher or broadcaster of
defamatory falsehood injurious to a private individual [thus the plaintiff need only
prove negligence]; and (2) To recover damages, plaintiff must satisfy the NYT
test even if he is a private figure.
iv. Hustler Magazine v. Falwell (p. 682)
1. POC: A public figure cannot recover damages for emotional distress without
satisfying the NYT test

v. Who is a public figure?

1. Limited category
a. Involvement in well-publicized litigation is not enough to make a person a
public figure
b. Nor does representing a client in civil rights litigation
c. Government researcher not considered public figure when Senator

vi. What is defamatory?

1. Whether a statement has provably false factual implications, and whether it used
language in a loose, figurative, or hyperbolic sense which might dispel the factual

vii. What is malice?

1. Plaintiff must prove by clear and convincing evidence that the defendant knew the
statement was false or acted with reckless disregard of the truth
2. Recklessness means something more than a high degree of negligence
viii. Bartnicki v. Vopper (p. 685)
1. POC: In a case where an incriminating phone call was intercepted and played on
the radio, the Court held the First amendment shielded the radio station from
liability, concluding that the enforcement of that provision in these cases
implicates the core purposes of the First Amendment because it imposes sanctions
on the publication of truthful information of public concern.


Speech with a Government Nexus

a. The government may have additional powers to regulate speech when it is not only acting as a
regulator but also as an employer, property owner, or source of funding

b. Public Forum Doctrine

i. State property traditionally open for expressive purposes may not be closed off or
abridged for reasons relating to the content of the proposed expression, but the state may
impose reasonable time, place, and manner restrictions on the use of public property
ii. United States v. Grace (p. 719)
1. Facts: Pursuant to a federal statute, Petitioners were prohibited from displaying a
sign and passing out leaflets on the sidewalk in front of the Supreme Court
2. Issue: Whether a statute prohibiting the display of a flag or banner designed to
bringing into public notice any party, organization, or movement in the US
Supreme court buildings and on its grounds violates the First Amendment (yes in
re: to the grounds)

3. Rule: The inclusion of the public sidewalks within the scope of the statutes
prohibition results in the destruction of public forum status and, under the First
Amendment, that section of the statute is unconstitutional as applied to those
sidewalks [The sidewalks are still subject to reasonable time, place, and manner
4. Notes:
a. Defines Time, Place, and Manner Regulations
b. TPM regulations are enforceable as long as the restrictions are:
i. Content neutral;
ii. Narrowly tailored to serve a significant government interest; and
iii. Leave open ample alternative channels of communication
iii. Hill v. Colorado (p. 721)
1. POC: A Colorado statute made it unlawful for anyone within 100 feet of a
healthcare facility to knowingly approach within eight feet of another person,
without that persons consent, in order to pass out leaflets, display a sign, or
engage in oral protest, education, or counseling. The statute was prompted by
anti-abortion activities at clinics offering abortions. The Court upheld the statute
as a valid time, place, or manner regulation, finding it content-neutral on the
grounds that it applied on its face to all viewpoints and subjects
iv. Ward v. Rock Against Racism (p. 722)
1. Facts: Central Park contains an amphitheater near an apartment building and a
designated quiet area of the park. In an effort to maintain the quietness of the
area, the city has imposed a restriction on all performances to use specified
amplification equipment and staff provided by the city
2. Issue: Whether the citys restriction of amplification is Constitutionally valid
3. Rule: Even in a public forum the government may impose reasonable restrictions
on the time, place, or manner of protected speech, provided the restrictions are
justified and content-neutral, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information; Government regulation of a public forum does
not have to be the least restrictive alternative
4. Notes:
a. Rock highlights the importance of the content distinction in First
Amendment analysis content-neutral regulations receive lower scrutiny
c. Government-Supported Speech
i. Government employees and recipients of government funds do have less protected
ii. Rust v. Sullivan (p. 727)
1. Facts: Title X of the Public Health Service Act was enacted by Congress to
provide federal funding for family-planning services. The government ruled that
abortion was not to be considered a method of family planning acceptable to the
use of the funds. Petitioners brought suit seeking injunctive relief against the
implementation of the regulations based on their First Amendment constitutional
right to political expression. They felt that the Act was unconstitutional because it
suppressed their abilities to proscribe treatments which aligned with their own
political views

2. Issue: Whether the regulations as set forth by the government infringed on the
constitutional right of others (no); Whether the restriction conditions the receipt
of a benefit on the relinquishment of a constitutional right (no)
3. Rule: The government may fund activities to the exclusion of others without
necessarily infringing on the rights of citizens to express their own views; The
government has not suppressed Petitioners rights to express their views and
engage in the activities of their choosing, it has merely chosen not to fund them;
The regulations do not require recipients to forfeit rights, instead they mandate
that the activities be kept separate and distinct from the funded program
4. Notes:
a. Teacher fired for writing a newspaper letter criticizing the school boards
fiscal policies because the letter was not shown to undermine the
performance of his teaching duties or otherwise interfere with the
operation of the schools, the school had no more interest in restricting this
speech than that of any citizen: Letter was protected speech as it was a
matter of public concern and didnt affect the efficiency of public services
b. Whether the government may condition the payment of benefits to its
employees upon their waiver of First Amendment rights
iii. Rosenberger v. Rector and Visitors of the University of Virginia (p. 730)
1. POC: The University in the name of the Establishment Clause refused to
provide its otherwise customary student organization publishing payment for a
religious newspaper. The Court concluded that the University had engaged in
viewpoint-based regulation and struck down the funding ban
iv. Legal Services Corp. v. Velazquez (p. 731)
1. Facts: The LSC was established as a nonprofit corporation to distribute federal
funds to local legal aid organizations for the poor. A government condition on the
use of LSC funds prohibited grant recipients from engaging in efforts to amend or
otherwise challenge existing welfare law. LSC argued that these restrictions were
permissible under Rust
2. Issue: Whether the funding restriction violates the First Amendment (yes)
3. Rule: The funding provision violated the First Amendment by regulating private
speech and insulating federal law from legitimate judicial challenge; Advice from
the attorney to the client and the advocacy by the attorney to the courts cannot be
classified as governmental speech even under a generous understanding of the
v. Other Relevant Holdings:
1. Prison authorities have broad but not unlimited powers to regulate prisoners
correspondence, including their reading materials
2. High school students could not be expelled for wearing black armbands to protest
the Vietnam War
3. On the grounds of inculcating the schools moral values, high school students may
be suspended for using sexual innuendos in a speech at a school assembly
4. A high school principal may censor articles in the high school newspaper so long
as their actions are reasonably related to legitimate pedagogical concerns
5. It is reasonable for a principal to conclude that a banner promoted illegal drug use
in violation of established school policy and that failing to act would send a
powerful message to the students in her charge


Process-Based Protections for Speech

a. Prior Restraints and Permit Systems
i. Prior restraints are a governmental action that prohibits speech before it takes place,
usually in the form of an administrative system of judicial order and
1. Are more inhibiting than necessary than a system of subsequent punishment;
2. Shut off speech before it takes place; and
3. Bypasses criminal process
ii. Ex: Censorship, refusing to issue a permit for a demonstration that has always been
considered legal, PATRIOT Act
iii. Prior restraints on speech and publication are the most serious and intolerable
infringement of First Amendment rights
iv. They are presumptively invalid under constitutional law, are a particularly undesirable
way of regulating speech, but can be valid where the existence of the speech is proven to
create some special, compelling harm to society
v. Prior restraints can be constitutional if they are clear, narrowly drawn, or otherwise
content neutral
vi. Near v. Minnesota (p. 735)
1. POC: A Minnesota law prohibited a periodical from publishing derogatory
statements about local public officials. The Court ruled that the state had
instituted the equivalent of a licensing system, and such was unconstitutional
vii. Shuttlesworth v. City of Birmingham (p. 736)
1. POC: Civil rights marchers were convicted under an ordinance that gave
complete discretion to city officials over parade permits. The court reversed the
convictions holding that a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license, without narrow, objective, and definite
standards to guide the licensing authority, is unconstitutional
viii. New York Times Co. v. US (p. 736)
1. POC: The government sought an injunction against publication of the Pentagon
Papers. The Court rejected the governments arguments, stating any system of
prior restraints of expression comes to this court bearing a heavy presumption
against its constitutional validity
ix. Madsen v. Womens Health Center, Inc. (p. 738)
1. POC: Petitioners sought and were granted an injunction restraining Petitioners
ability to protest abortion clinics. The Court held the injunction should be
scrutinized under a standard somewhere between strict scrutiny and content
neutrality and upheld the injunction on the grounds that it burdened no more
speech than necessary to serve a significant government interest
b. Vagueness
i. The two bases for the void-for-vagueness doctrine were fair notice and preventing
arbitrary enforcement
ii. The Court will be particularly vigilant when broad, ill-defined statutes touch upon any
fundamental rights
c. Overbreadth
i. Occurs when a statutes prohibition sweeps beyond its stated purpose
ii. The overbreadth must not only be real, but substantial as well, to justify invalidation

iii. A law is unconstitutionally overbroad if it regulates substantially more speech than its
stated purpose and if a person whom the law constitutionally can be applied can argue
that it would be unconstitutional as applied to others (do not need standing)
iv. Board of Airport Commissioners v. Jews for Jesus, Inc. (p. 741)
1. Facts: The airport adopted a resolution banning all First Amendment activities
within the terminal at LAX. The resolution therefore did not merely reach the
activity of respondents (leafleting), it prohibited even talking and reading. There
was no saving construction of the resolution
2. Rule: Such a law that confers on police a virtually unrestrained power to arrest
and charge persons with a violation of the resolution is unconstitutional because
the opportunity for abuse, especially where a statute has received a virtually openended interpretation, is self-evident
v. Examples:
1. Vague but not overbroad A regulation prohibiting students to wear gang colors
to discourage gang activity
a. Vague because a reasonable person may not know which colors are gang
b. Not overbroad as the regulation does not affect anything other than
demonstrating gang membership
2. Overbroad but not vague A regulation banning all people ages 13-30 from
wearing the colors black and yellow
a. Not vague as a reasonable person knows how old they are and what the
colors black and yellow are
b. Overbroad as it regulates substantially more activity than the stated


The Religion Clauses

a. The First Amendment religion clauses only protect those religious beliefs that parallel or mirror
traditional religious views or functions
i. Court is not going to judge the reasonableness of the beliefs, but will judge the sincerity
of the beliefs
ii. Therefore, devil worship which mirrors traditional organizational/religious precepts
might be protected
b. Both religious clauses are textually named and incorporated under the Fourteenth Amendment
c. Values preserved under religious clauses:
i. Religious tolerance
ii. Individual and group autonomy
iii. Privacy
iv. Liberty
v. Diversity/Pluralism

d. Free Exercise Clause

i. The government can neither outlaw nor seriously burden a persons pursuit of the religion
of their choice
ii. When a law burdens the free exercise of religion, the court will perform a balancing test
to determine whether the law is valid weighing the magnitude of the burden against the

strength of the state interest, taking into account whether there are less burdensome
means of accomplishing the state goal
iii. Stansbury v. Marks (p. 755)
1. POC: The defendant offered a Jew as a witness, but he refused to be sworn as it
was his Sabbath. The court fined him, but the defendant afterwards waived the
benefit of his testimony and the witness was discharged of the fine
iv. Wisconsin v. Yoder (p. 757)
1. Facts: Amish defendants were convicted for refusing to send their children to
school after eighth grade, violating state-law school requirements. Evidence
showed that Amish children received vocational training at home and that
Defendants believed attending high school would destroy the Amish way of life
2. Rule: When a true religious interest exists, a state cannot enforce a law which
abrogates that interest provided the public interest in enforcing the law is not
otherwise burdened [when the interests of parenthood are combined with a free
exercise claim a particularly strong showing on the part of the state is required]
v. Sherbert v. Verner (p. 758)
1. POC: A Sabbatarian was denied unemployment benefits because she refused to
work on Saturdays. The Court held that the denial of benefits unconstitutionally
forced her to choose between following the precepts of her religion and forfeiting
benefits, or abandoning her religion in order to accept work (court applied strict
scrutiny here)

vi. Employment Division, Department of Human Resources v. Smith (p. 759)

1. Facts: Petitioners were fired for using peyote at a ceremony of the Native
American Church. Their applications for unemployment compensation were
denied under a state law disqualifying employees discharged for work-related
2. Issue: Whether a statute that criminalizes sacramental peyote use violates the
Free Exercise Clause of the First Amendment
3. Rule: An individuals religious beliefs do not excuse him from compliance with
an otherwise valid and neutral law of general applicability prohibiting conduct
that the State is free to regulate; Where a neutral, generally applicable law
produces an incidental burden on religiously motivated conduct, the Court will
apply rational basis review (the rule today Smith Rule)
4. Notes:
a. The only decisions in which the First Amendment bars application of a
neutral, generally applicable law to religiously motivated action have
involved the Free exercise Clause in conjunction with other constitutional
protections [Yoder, right to parental autonomy]
b. While, under the Sherbert test, governmental actions that substantially
burden a religious practice must be justified by a compelling government
interest, the Court found the Sherbert test is rarely if ever used outside the
unemployment compensation field
c. The rule Respondents favor would open the prospect of constitutionally
required religious exemptions from civic obligations of almost every

conceivable kind The First Amendments protection of religious liberty

does not require this
vii. Church of the Lukumi Babalu aye, Inc. v. Hialeah (p. 766)
1. Facts: Hialeah, Florida, passed a series of ordinances that, though facially neutral,
were targeted against the churchs use of animal sacrifice, a religious ritual central
to the church. A unanimous Court found the ordinances unconstitutional, that the
ordinances flunked rigid review because they were underinclusive with respect to
the two interests advanced in support of them protecting public health and
cruelty to animals
2. Rule: Where the government purposely interferes with the particular conduct
because it is dictated by religious beliefs, strict scrutiny analysis will be applied
and the law will be presumptively invalid as a Free Exercise Clause violation
e. The Establishment Clause
i. Individual religious liberty could be achieved best under a government which was
stripped of all power to tax, support, or otherwise assist any or all religions, or to interfere
with the beliefs of any religious individual or group Everson
ii. The Establishment clause of the First Amendment means at least that a state or the federal
government may not:
1. Set up a church;
2. Pass laws which aid one or all religions;
3. Force or influence a person to go to or remain away from a church;
4. Punish a person for entertaining or professing religious (dis)beliefs;
5. Levy taxes to support any religious activities or institutions; or
6. Participate in the affairs of any religious organization
iii. Everson v. Board of Education (p. 768)
1. Facts: A state statute authorized local school districts to pay for transportation of
children to and from school (both public and private)
2. Issue: Whether a local school district violated the Establishment Clause by
reimbursing parents for transportation of their children to parochial schools (no)
3. Rule: The First Amendment requires the state to be neutral in its relations with
groups of religious believers and nonbelievers; it does not require the state to be
their adversary. The First Amendment does not prohibit a state from spending
tax-raised funds to pay the bus fares of parochial school students as a part of a
general program under which it pays the fares of all students.
iv. Wallace v. Jaffree (p. 772)
1. POC: The Court held a state law mandating a moment of silence for meditation
or voluntary prayer in public classrooms unconstitutional as its purpose was to
foster school prayer
v. Lemon v. Kurtzman (p. 774)
1. POC: A state statute provided a salary supplement for teachers at private schools
in order to equalize spending on secular education with that in public schools.
Teachers were eligible if they taught only courses offered in public schools. The
Court struck down the statute because it required too much government
supervision of the teaching in parochial schools
2. Lemon Test To survive, a statute must have all: [This test applies to facially
neutral; discriminatory on its face = strict scrutiny]
a. Must have a secular legislative purpose;





b. Its principal or primary effect must be one that neither advances nor
inhibits religions; and
c. Must not foster an excessive government entanglement with religion
County of Allegheny v. ACLU (p. 775)
1. POC: The ACLU brought suit after two religious-holiday displays were placed
outside a government building.
The Court articulated a standard for
Establishment clause cases forbidding government endorsements of religion
[finding that the displays did convey a religious endorsement]
Capitol Square Review and Advisory Board v. Pinette (p. 776)
1. POC: The KKKs application to place an unattended cross on Capitol Square a
public forum was denied on Establishment Clause grounds. The Court voted in
favor of the Klan, finding that the endorsement test does not apply at all to private
religious expression in a public forum
McCreary County v. ACLU (p. 776)
1. POC: Executives of two counties posted a version of the Ten Commandments on
the walls of their courthouses. The Court ruled that placing religious documents
on court house walls is a violation of the Establishment Clause
Lee v. Weisman (p. 787)
1. Facts: School principals in the public school system of the city of Providence are
permitted to invite members of the clergy to offer nonsectarian, Judeo-Christian
invocation and benediction prayers as part of the formal graduation ceremonies
2. Issue: Whether including clerical members who offer prayers as part of the
official graduation ceremony is consistent with the Religion Clauses (no)
3. Notes:
a. The relative voluntariness of graduation attendance is irrelevant

Important Questions
f. Whether, how, who, and to what degree the constitution is interpreted
i. The Supreme Court
g. How the political and social dynamics of the 19th and 20th Centuries have impacted upon the
Constitution and caused it to change
h. Is there a right to privacy
i. Yes, Roe v. Wade
i. Is there any substantive meaning to the 5th and 14th Amendments Due Process Clause
i. Why does this matter in the 21st Century specifically in regards to the right of privacy
j. To what degree was the original Constitution a compromise document a slave affirming
k. What is the current substance of the due process clause and what difference does it make?
l. When can a speaker be punished because of the reaction of the audience?
m. When should the speaker be punished because of the risk that it will incite the audience to
violence against the speaker?
n. Why should obscenity be unprotected at all? Whats wrong with lustful thoughts? Does it cause
harm? Doesnt the roth definition focus on thought control? Should the government be allowed
to decide what is moral and then suppress speech that does not advance that particular morality?
Causes anti social behavior and violence against women and children- why is obscenity
unprotected because it could cause violence, but nazi and klan speech is at this point fully