c



 
 c       

`m It becomes unworkable- national league of cities
‘m In casey court says nothing unworkable about Roe
`m Reliance- if people have relied on the law that it would bring substantial economic hardship
‘m 3sually has to do with contracts, it would be unfair if someone had reliance on a
contract based on a law overruled
‘m In casey court says reliance interest is a factor
xm ›omen have come to expect that they will have control over this sphere of
their life
`m ¦ave related principles of law so evolved to leave this law a remnant of abaondoned doctrine
‘m ½ochner never specifically overruled but basically has come to be
‘m oe is not an abandoned doctrine, an outlier
`m ¦ave facts or the courts understanding of facts changed so as to rob the old rule of significant
application of justification
‘m ½ochnerline of cases is an example; court has come to realize facts differently
‘m rown and Plessy- part of justification for overruling is that between Plessy and Brown
sort of a changed understanding of facts, separate but equal brought an unwelcome
stigma not previously realized

Casey says that state has an interest in taking steps to encourage women to not have abortions
`m Game as in roe there is a point of viability and after the point of viability the state can regulate so
long as there is an exception for mother͛s health
`m uifference from oe is that now even prior to this point of viability the state may impose
regulations furthering their interests so long as there is not an undue burden or substantial
obstacle placed in the way of the woman having an abortion
‘m ½ine between persuasion and coercion
xm Gtate can persuade women to not have abortions but not coerce them
xm 3ndue burden standard
`m infor


  c

`m Gupreme Court upheld Congress͛s ban on partial birth abortions

`m £ollowed Gupreme Court Gtriking down similar law in Gtenberg which they distinguished as
broader than the case here
‘m ºustice Gtevens and Ginsburg in Gtenberg discussed liberty rights of the 14th amendment
and that in oe the court expressed that ͞liberty͟ includes a woman͛s right to make this
decision͙so following with this the state can never have any legitimate interest in
requiring a doctor to follow any procedure other than the one that he or she reasonably
believes will best protect the woman in her exercise of constitutional liberty
 `m 


‘m mhe act on its face does not impose a substantial obstacle to late-term but pre-viability
abortions
‘m Government has in interest in promoting fetal life
‘m anly unlawful to perform this procedure when certain conditions are met
xm Go narrow enough to only apply to intact dilation and evacuation- doctors will
not be liable criminally accidently (a concern from Gtenbergë
‘m If argument could be made that banned procedure is safer then there would certainly
be an undue burden
xm uiffering opinions whether intact u
is medically safer
`m Õedical uncertainty here whether the acts prohibition creates
significant health risks provides a sufficient basis to conclude this is not
an undue burden
`m ather abortion procedures which are considered safe alternatives
‘m In casey court does not care that it will not apply to a large number of cases here the
court says because it will not apply to a large number of cases then they uphold the law
xm Inconsistency with decision to strike down the law in casey and uphold it here
xm Õaybe reconcile because here they say large ͞fraction͟ andcasey large
͞number͟ so there is a difference
xm ÚÚÕaybe court is moving away from facial challenges in the abortion context
and more towards as applied challenges
`m 

‘m Õajority says this promotes the government͛s legitimate and substantial interest in
preserving and promoting fetal life
xm uoes not save a single fetus from destruction the act only targets a method of
performing abortion
xm ueprives women of right to make an autonomous choice even at expense of
their safety
‘m @o provision for a health exception

  
 
 
    

`m Court leaves open the fact that a woman in a certain situation a woman could challenge this law
as applied
`m  woman would have to rely on the exception to mootness͙for women in my condition this law
is unconstitutional as applied to us͙but would not benefit the woman at hand because it would
never reach the court quick enough
 
 
 


 

  
 


!
     
 " 
  

½

 
 -
 `m Court strikes down Virginia͛s ban on interracial marriage relying principally on equal protection
but suggesting as an alternative holding that the freedom to marry is one of our basic civil
fundamental rights protected by the liberty clause of the 14th amendment and substantive due
process
‰
 
 

`m Court strikes down law keeping people from re-marrying when they owe child support
`m Gtate cannot deny fundamental right to marry unless law could pass strict scrutiny
 
 

`m Inmates can get married law does not pass strict scrutiny this is a fundamental right 
`m Rehnquist found no basis for applying any heightened standard of review, insisting on
͞traditional presumption of validity͟ as expressed in ½ee Optical
 
 
 

`m Gtrict scrutiny when government invades on choices concerning family living arrangements
`m Gtruck down law not allowing certain related individuals to live together

  

`m 3pheld law banning unrelated couples from living together
`m uistinghuished from Õoore
 
! 

"###
`m Õother has ultimate right to raise children as she sees fit
`m Grandparents do not have fundamental right to visit 
`m uue process does not permit a state to infringe on the fundamental rights of parents to make
childrearing decisions simply because the state judge believes a ͞better decision could be made͟ 
$ %
! &

`m Gcalia says when defining ͞tradition͟ is there a traditional right for father of illegitimate children
to have visiting rights
‘m ÚÚvery specific rights
‘m Gcalia believes this level of specificity would help constrain the subjective preferences of
judges 
`m Brennan wants to define rights from ͞tradition͟ much more generally 
‘m ½ike oe right to have abortion not looked at in specific terms, more along the lines of
bodily autonomy etc
‘m ÚÚlevel of generality in describing tradition is very important in figuring out your answer 

c # 
 


 $


 %
    
`m Pierce and Õeyer- child rearing and education
`m G inner procreation
`m ½oving-marriage
`m uriswold and Eisenstadt- contraception
`m oe-abortion

 !
     
   


‘m  

 
  

‘m ¦istorical oppression
‘m uiffuse (not insularë and anonymous (not discreetë so opposite of carolene Products but
still less political power (unless you believe Gcalia͛s boogermenë
‘m Immutability
‘m   !

 !  å   #
 
   ! !  
 &     '    !
    (
‘m  '
% '$
 (refused to strike down facially neutral statute (on substantive due
process groundsë though didn͛t consider equal protection, and court limited its holding to the
question of homosexual sodomy presented on the facts

)'
  *+ &,--.(

¦ouston police were dispatched to ½awrence͛s (uë apartment in response to a reported weapons
disturbance. mhe officers found ½awrence and Garner (uë engaged in a sexual act. ½awrence and Garner
were charged and convicted under mexas law of ͞deviate sexual intercourse, namely anal sex, with a
member of the same sex (manë.͟ ½awrence and Garner challenged the statute as a violation of the
qual
Protection Clause of the £ourteenth mendment. ½awrence and Garner were each fined $200 and order
to pay $141.25 in costs. mhe Court of ppeals considered us͛ federal constitutional arguments under
both the
qual Protection and uue Process Clauses of the £ourteenth mendment. fter hearing the
case en banc the court rejected the constitutional arguments and affirmed the convictions. mhe court
held that Bowers v. ¦ardwick was controlling regarding the due process issue. mhe Gupreme Court
granted certiorari.
/ 

uoes a statute making it a crime for two persons of the same sex to engage in certain intimate sexual
conduct violate the uue Process Clause?

0 
 
   &1

(

Yes.  statute making it a crime for two persons of the same sex to engage in certain intimate sexual
conduct violates the uue Process Clause.

½iberty protects the person from unwarranted government intrusions. £reedom extends beyond spatial
bounds. ½iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct. us are adults and their conduct was in private and consensual.

mhe right to privacy is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision whether to
bear or beget a child.

Roe v. ›ade recognized the right of a woman to make certain fundamental decisions affecting her
destiny and confirmed that the protection of liberty under the uue Process Clause has a substantive
dimension of fundamental significance in defining the rights of the person. It is clear that in Bowers v.
¦ardwick this Court failed to appreciate the extent of the liberty at stake. mo declare the issue as one
related to the right to engage in certain sexual conduct demeans the claim the individual put forward,
just as it would demean a married couple were it to be said marriage is simply about the right to have
sexual intercourse.

 
: Reversed and remanded.

c
 
 &#c

( I do not join the Court in overruling Bowers but I agree that the mexas statute is
an unconstitutional violation of the £ourteenth mendment͛s
qual Protection Clause.


 & (

@owhere does the Court͛s opinion declare that homosexual sodomy is a ͞fundamental right͟ under the
uue Process Clause; nor does it subject the mexas law to the standard of review that would be
appropriate (strict scrutinyë if homosexual sodomy were a ͞fundamental right.͟ mhus, while overruling
the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: ͞u would
have us announce . . . a fundamental right to engage in homosexual sodomy. mhis we are quite unwilling
to do.͟ Instead the Court simply describes petitioners͛ conduct as an exercise of their liberty and
proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications
beyond this case.


 &* (

If I were a member of the mexas ½egislature, I would vote to repeal this law. Punishing someone for
expressing his sexual preference through noncommercial consensual conduct with another adult does
not appear to be a worthy way to expend valuable law enforcement resources. But, I am not
empowered to help petitioners and others similarly situated. Õy duty is to decide cases agreeably to the
Constitution and laws of the 3nited Gtates. I can find neither in the Bill of Rights nor any other part of
the Constitution a general right of privacy, or as the Court terms it today, the liberty of the person both
in its spatial and more transcendent dimensions.

2 

`m † 
 
 
 3 '  0'4

‘m bandoned uoctrine? Probably see omers
‘m 3nworkability? @o, bright line rule, probably works against overruling it
‘m £acts or understanding changed? Yes broadened understanding of tradition of laws,
typically only targeted conduct that was not consensual

2       4   !  ! 
  
 ' '

  

*  


   !  ' 
 
   5
`m  
 
 5
‘m Rational basis, strict scrutiny, or intermediate scrutiny
 ‘m In ½awrence the court sort of leaves it vague as to the type of scrutiny they are applying
‘m ÚÚ* 
  


  
 
    


 
 
' !  !6    

xm   
   
   !  

xm "
   ! &!(
 '   
7
 '  8 

5
xm c

 ! 
  

 
‘m 2



    !6   
 ! '
xm 
 !  
   ! 
xm ½)$ 

ÚÚ "5
`m £irst question what standard of review?
`m @ext is there a tradition? (is it a fundamental right such that a state can only infringe if it passes
strict scrutiny?ë
‘m Gpecific or general terms?
xm ¦ard to make the case from specific terms that there is a deep-seeded tradition
to marry someone of the same sex
xm Generally has there been a tradition to choose who you want to marry?
`m ›ell yes
`m
ven if not a fundamental right can the state then pass rational basis review?

*   
½ '$         '  
    
 

  


 

  9   
   6 

  '   





 

  
&$ * & + % 
#(
`m Competent person has a constitutionally protected liberty interest in refusing unwanted medical
treatment
‘m Gtems from traditions of battery actions based on unwanted medical treatment and
bodily integrity
`m Gtate has interest in protection and preservation of human life and can have an additional
procedural requirement (clear and convincing evidenceë in place ensuring the patient͛s wishes
are exercised

›  
! $



`m /  do terminally ill patients have a right to physician assisted death͙this is an as applied
challenge
`m ÚÚÕuch more narrow analysis of liberty and privacy than the broad analysis in ½awrence
‘m ¦ere in uluc sberg the court only focuses on tradition
 xm Court here focuses much more if tradition is ͞deeply rooted͟ not ͞emerging
tradition͟ of ½awrence
‘m Õore ͞specific͟ and more ͞deeply rooted͟ we require it to be the much harder it will be
to have the right granted
`m Concurring opinions seem to leave open possibility I na different circumstance a patient may be
able to bring this case
`m ºoining the opinion͙and 5 join then the opinion is law͙joining the judgment the justice may
believe the outcome is right but the way they reached the outcome is wrong
`m a͛Connor suggests that if the state was denying a patient sufficient pain medicine even if that
pain medicine would end killing them this might be a different case

!
     
 0
`m Regularly observed that uue Process clause specially protects those fundamental rights and
liberties which are, objectively, ͞deeply rooted in this @ation͛s history and tradition͟ and implicit
in the concept of ordered liberty such that neither liberty nor justice would exist if they are
sacrificed
`m In these cases must be a careful description of the asserted fundamental liberty interest

     
 


   
 ! '

† 
  45
`m Is this a fundamental right? (to decide rational basis or strict scrutiny reviewë
‘m If its economic, no
‘m uoes it fall under the right to privacy?
xm uoes it fit within the court͛s conceptualization of privacy?
`m Gome level of bodily integrity, decisional autonomy etc. involved? nd if
so, does this fall under a prior recognized right? (casey; marriage, etc.ë
`m uoes tradition support the conclusion that it is a right to privacy or does
tradition undermine this?
‘m Is it a deep seeded or long rooted tradition? ar is the court
willing to look at the evolving or emerging tradition? (½awrenceë
xm Gpecific (uluc sberg) v. general (½awrence overruling
owersë
`m If it is a fundamental right, apply strict scrutiny
‘m Government must have a substantial interest
‘m nd law must be narrowly tailored, maybe least restrictive means to meet their ends
`m If it is not a fundamental right, apply rational basis review
‘m Physician assisted suicide is not, we do not know whether sodomy or the ability to
marry someone of the same sex is
‘m Government must have a legitimate interest and law must be rationally related to
furthering that legitimate interest
 ‘m Promotion of morality is not a legitimate government interest (½awrence)
`m £or abortion cases, apply undue burden standard
`m Ban on same sex marriage could be challenged on substantive due process as well as equal
protection grounds

:9   

    ' 2c 
`m Gtart with trying to get equal facilities
‘m uaines v. canada(1938)- 3niversity of Õa required separate educational facilities but
provided no black law school (only provided for arranging attendance out of state and
would pay reasonable tuition
xm Court says unequal
xm Big change is no deference to determinations of equality by the state
`m Changes strategy, ͞separate not inherently equal͟ partly b/c equalization requires litigating
every institution and determining what is ͞equal͟
‘m Gweatt v. Painter (1950)- court ordered black student to be admitted to a white school
(3m ½aw Gchoolë
    


xm mhe black school was demonstratbly not equal (size of library, faculty etc.ë
xm B3m does not rely on this alone; court acknowledges intangible factors of alumni
networks, prestige of institution

3 '
 3 
: 
&;<=>(

mhis case is a consolidation of several different cases from Kansas, Gouth Carolina, Virginia, and
uelaware. Geveral black children (through their legal representatives, Psë sought admission to public
schools that required or permitted segregation based on race. mhe plaintiffs alleged that segregation
was unconstitutional under the
qual Protection Clause of the £ourteenth mendment.

In all but one case, a three judge federal district court cited Plessy v. £erguson in denying relief under
the ͞separate but equal͟ doctrine. an appeal to the Gupreme Court, the plaintiffs contended that
segregated schools were not and could not be made equal and that they were therefore deprived of
equal protection of the laws.

/ 
Is the race-based segregation of children into ͞separate but equal͟ public schools constitutional?
¦olding and Rule (›arrenë

@o. mhe race-based segregation of children into ͞separate but equal͟ public schools violates the
qual
Protection Clause of the £ourteenth mendment and is unconstitutional.
Gegregation of children in the public schools solely on the basis of race denies to black children the equal
protection of the laws guaranteed by the £ourteenth mendment, even though the physical facilities
and other may be equal.
ducation in public schools is a right which must be made available to all on
equal terms.

mhe question presented in these cases must be determined not on the basis of conditions existing when
the £ourteenth mendment was adopted, but in the light of the role of public education in merican life
today. mhe separate but equal doctrine adopted in Plessy v. £erguson, which applied to transportation,
has no place in the field of public education.

Geparating black children from others solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds in a way unlikely ever to be
undone. mhe impact of segregation is greater when it has the sanction of law.  sense of inferiority
affects the motivation of a child to learn. Gegregation with the sanction of law tends to impede the
educational and mental development of black children and deprives them of some of the benefits they
would receive in an integrated school system. ›hatever may have been the extent of psychological
knowledge at the time of Plessy v. £erguson, this finding is amply supported by modern authority and
any language to the contrary in Plessy v. £erguson is rejected.

 

ºudgment for the plaintiffs

2 
Brown interprets the 14th amendment as requiring color blindness
`m ¦ow does it get here? mhrough text of equal protection?
‘m
ven if equal resources, Gweatt recognized intangibles of the school are anything but
equal
`m ¦arlan͛s dissent in Plessy that ͞our Constitution is colorblind͟
`m If it says the 14th amendment requires color blindness then affirmative action becomes a
problem͙essentially looking at color
Brown prohibits subordination or subjugation of one race to another
`m Caste system and social science data indicates stigmatization of a racial group
`m ffirmative action not as much of a problem because not really subordination of whites

) 
  ?
 &;<@A( (discriminatory intent w/o discriminatory effect b/c it applies evenlyë
`m Court invalidates V law preventing marriage between persons soley on the basis of racial
classifications for violating the 14th amendment
`m Gtrict scrutiny bc statutes have to do solely with race
`m @eed a state objective independent of race
‘m Court denies integrity of white race as sufficient basis

  
 
 

 `m Palmore v. Gidoti- best interests of child are substantial interest and there is a risk of pressures
involved but this cannot justify the removal of an infant from the custody of its natural mother
based on her interracial relationship
‘m ½aw cannot give private biases effect
`m ºohnson v. california- segregation of prisoners by race even if gang violence is the justification
the supreme court remanded to be judged under strict scrutiny
‘m Probably a compelling interest but can the government meet the burden of proving this
is the best way to control gang violence?

1   B
 
`m Classification based on race survived strict scrutiny
‘m Õajority sustained against challenge under equal protection of the fifth amendment
due process clause conviction for violating a military order during ››II excluding all
persons of ºapanese ancestry from designated ›est Coast areas.
`m ºustice Õurphy uissent- purported to apply reasonableness standard and opined that this
obvious discrimination had no reasonable relation to the removal of dangers
`m ºustice ºackson uissent- did not believe military orders should be enforced by civil courts bound
to the constitution
‘m ºudicial construction of the due process clause sustaining this order is a much more
subtle blow to liberty than the promulgation of the order itself
xm Õilitary order, however unconstitutional will not last logner than the military
emergency but once a judicial opinion rationalizes the Constitution to show it
will sanction such an order the Court for all time has validated the principle of
racial discrimination in criminal procedure and of transplanting merican
citizens.
`m Principle then lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent need
`m 1984 district court vacated conviction on grounds of governmental misconduct in the
submission of information to Gupreme Court and Congress enacted law apologizing and giving
reparations but still on the books

)'
 

 '  
      !6    

C4  0 4
 &;DD@(
`m uiscrimination in the administration of the law
`m ardinance prohibiting operation of ½aundromat in wooden structures only enforced against
Chinese
`m £irst time equal protection extended beyond blacks
‘m rbitrary denials of fundamental economic rights include those based on racial
discrimination

! + 
½ 
 #(borders of muskegee
 `m uiscriminatory purpose alone enough to invalidate law

B3m G

 +
 + 

( racially motivated closing of a public pool which was ordered to be
integrated was not a violation of equal protection
`m uon͛t look to motivation; too hard to determine, uomillion was really based on actual effect not
intent
`m Geems to be the opposite of ½oving v. Virginia; closed pool where clearly discriminatory intent
but no effect
`m ÚÚmhis and ›ashington v. Davis suggest need proof of both discriminatory purpose and
discriminatory impact


 ' c 
 '
  4


   
 !



1.ë ueference to the legislature
ʹ don͛t want to label another branch of govt. ͞evil͟
2.ë
videntiary problems
ʹ what kind of proof should be admissible and how much is enough?
3.ë Remedial problems and ºudicial £utility
ʹ the same statute, if reenacted w/ pure motives would be valid

  %



  ;<A@

3
 
mhe Petitioner, ›ashington (Petitionerë, a black man failed the written test to become a ›ashington,
u.C. police recruit. ¦e claims that the test was racially biased and cited the relatively low number of
black cops on the force as evidence.



 
)'
 rule that is neutral on its face and rationally related to a legitimate state interest is constitutional
even though it may impact a race disproportionately.


›ashington, u.C. required each police officer applicant to submit to a round of testing including
physical tests and a written personnel test, mest 21. In order to enter the 17-week training course an
applicant had to achieve 40 out of 80 on mest 21.
Petitioner took mest 21 in 1970 and failed it. ¦e claims that this test is racially biased because the
majority of black applicants who took it failed.

/ 
uoes an employment test that results in a higher failure rate amongst black candidates deprive them of
their
qual Protection rights?
0
@o. mhe Court of ppeals, reversing the uistrict Court, is reversed.
ºustice Byron ›hite (º. ›hiteë said our cases have not embraced the proposition that a law can be a
violation of equal protection on the basis of its effect, without regard for governmental intent.
`m ue jure segregation: current condition of segregation resulting from an intentional state action
`m ue facto segregation: purpose or intent of act was to cause segregation

uisproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications
are subject to the strict scrutiny standard of review.

mhe police force͛s efforts to recruit black police officers are evidence that the police department did not
intentionally discriminate on the basis of race.
mhe exam is rationally related to the legitimate government purpose of ensuring that police officers
have acquired a particular level of verbal skill.

c
 
.
ºustice ºohn Paul Gtevens (º. Gtevenë said that frequently the most probative evidence of intent will be a
showing of what actually happened.  Constitutional issue does not arise, however, every time some
disproportionate impact is shown.
`m uiscriminatory purpose required but what must be shown to make out a prima facie case will
vary based on evidentiary considerations å like btwn discriminatory intent and disparate impact
is not as bright as we pretend it to be

2 
`m 
 &
+ strict scrutiny if explicitly draws racial lines or motivated by a racial purpose, if
classification is non-race specific than rational basis review
`m  
+ disproportionate impact is not by chance, happened b/c history of disadvantaging
blacks
‘m c
+ just b/c morally bad drunk driver ruined the hands of the neurosurgeon
doesn͛t mean the neurosurgeon may still practice b/c not his fault
`m 
  

   ! 


    



`m   

 + 

 5
‘m *
' '  

5
‘m /
    

  ! 


   

   '  '  
4
  


 !

 
   


 %
   %  
"(£acially @eutral Gtatute
`m £acts: non-profit builder challenged suburbs refusal to rezone certain property from single
family to multiple family classification. Builder planned to build federally subsidized townhouses
 in the largely white suburb so that low income tenants and members of racial minorities might
live there
`m ½ower court found that motivation was for integrity of zoning plan rather than racial hostility;
court of appeals held unconstitutional because ͞ultimate effect͟ was racially discriminatory;
GCam3G reversed
`m Court said plaintiff failed to prove discriminatory purpose was motivating factor
‘m ºustice Powell looked to history of decision for when no clear pattern unexplainable on
grounds other than race
‘m 
 '
   '   
 ! 
 (½ike
uormillion and Yic ›oë- departures from usual procedure may also be indictive of
improper purposes

 
 
     
  %
`m ›    ,
‘m uiscriminatory impact
‘m ¦istorical background
‘m Gpecific sequence of events leading up to the challenged decision 
xm Including departures from procedure and substance
‘m dministrative or legislative history of racist comments etc. 
`m If plaintiff produces evidence of a discriminatory purpose then burden shifts to government to
prove it would have taken the same action without the discriminatory motive
`m ogers v. ½odge
‘m Davis and rlington Heights made it clear that in order for equal protection to be
violated the invidious quality of a law claimed to be racially discriminatory must
ultimately be traced to a racially discriminatory purpose
xm However discriminatory intent need not be proved by direct evidence 
‘m t-½arge voting system overturned by Gupreme Court as discriminatory looking towards
history and effect (no black every electedë in drawing an inference of purposeful
discrimination 
‘m uissent- Powell, Gtevens and Rehnquist did not believe subjective intent should have a
bearing on constitutionality 


  /

  
  :


`m ) 
  ?
 &;<@A( (discriminatory intent w/o discriminatory effect b/c it applies evenlyë
‘m Gtrict Gcrutiny- only patently legitimate overriding purpose independent of racial
discrimination
`m   * 
&;<A;( seems to go the other way, can close pool where clear
discriminatory intent, because no discriminatory effect
`m 

  &;<A@(equal protection under 14th amendment is not violated soley by
disparate impact with no proof of discriminatory intent
 ‘m Can use disparate impact to prove implicit discriminatory intent just cannot invalidate
on disparate impact alone



 


 -
    
 

3
 
mhe Respondent, Bakke (Respondentë, a white applicant to the 3niversity of California, uavis Õedical
Gchool, sued the 3niversity, alleging his denial of admission on racial grounds was a violation of the

qual Protection Clause of the £ourteenth mendment of the 3nited Gtates Constitution (Constitutionë.



 
)'
lthough race may be a factor in determining admission to public educational institutions, it may not be
a sole determining factor.


mhe 3niversity of California, uavis Õedical Gchool reserved 16 spots out of the 100 in any given class for
͞disadvantaged minorities.͟ mhe Respondent, when compared to students admitted under the special
admissions program, had more favorable objective indicia of performance, while his race was the only
distinguishing characteristic. mhe Respondent sued, alleging that the special admissions program denied
him equal protection of laws under the £ourteenth mendment of the Constitution.

/ 
Is the special admissions program of the 3niversity of California constitutional?
Can race be considered as a factor in the admissions process?

0
mhe special admissions program is unconstitutional, but race may be considered as a factor in the
admissions process.

ºustice ½ewis Powell (º. Powellë, writing for the court, says that the Gupreme Court of the 3nited Gtates
(Gupreme Courtë should not pay attention to past discrimination in reviewing the policies of the
3niversity, as this is tantamount to allowing political trends to dictate constitutional principles.

º. Powell determines that accepting a minimum number of minorities simply to reduce the traditional
deficit of such individuals in the medical profession is facially unconstitutional, as it gives preference to
an individual on the basis of race alone.
mhe major determination of the Gupreme Court is whether or not racial preference may be used to
promote diversity of the student body. º. Powell argues that setting aside a specified number of minority
slots is not congruent to the purported goal ʹ minority students in themselves do not guarantee a
diversity of viewpoints in the educational environment.


ºustices ›illiam Brennan (º. Brennanë, Byron ›hite (º. Brennanë, mhurgood Õarshall (º. Õarshallë, and
¦arry Blackmun (º. Blackmunë dissent, believing the special admissions program to be constitutional. In
particular, the ºustices argue that the racial classification in the present case is remedial, serves an
important government objective and also substantially related to that objective and thus insulated from
the £ourteenth mendment͛s general prohibition of such classifications.

º. Õarshall writes separately in support of º. Brennan, º. ›hite, º. Õarshall, and º. Blackmun.

E  E 
  
 &E 
( 
  
6 
 !  
, citing that mitle VI of the Civil
Rights ct of 1964 prohibits the denial of any individual on the basis of race from participation in any
program receiving federal funding. º. Gtevens argues that prohibiting white students from participation
in the special admissions program is a direct violation of mitle VI.

c
 

º. Brennan, º. ›hite, º. Õarshall, and º. Blackmun concur so much as the Gupreme Court͛s opinion allows
race to be considered as a factor in the admissions process. ¦owever, the ºustices believe that in this
particular example, race should be allowed as a single determining factor.
º. Gtevens concurs to the extent that the special admissions program is impermissible. ¦owever, º.
Gtevens holds that the constitutional issue is not reached, because the federal statutory ground (mitle VIë
prohibits the activity directly.

2*: 
`m 4 (Brennan, ›hite, Õarshall, and Blackmunë- would have upheld under intermediate scrutiny
`m 4 (Burger, Gtewart, Rehnquist, and Gtevensë- thought program violated mitle VI of the 1964 Civil
Rights ct and therefore would not have reached its constitutionality
`m Powell (for 1, but the majorityë:all racial categories suspect, should be subject to same
heightened scrutiny, votes to strike down policy, B3m would not ban all affirmative action (as
narrowest opinion is controllingë
‘m Benign racial categories subject to strict scrutiny
‘m cceptable compelling ends: (1ë remedying effects of specific individualized past
discrimination; (2ë diversity rationale (citing Gweatt, law school integrationë (3ë must be
narrowly tailored- no quotas, but can use ¦arvard ͞plus͟ factor
‘m mhis current system not justified because no history of prior discrimination to justify a
remedy of such
`m   
 c

  
 0
‘m Pros
xm ½anguage of 14th amendment
xm Interpretation of 14th amendment
 `m Protections already have been extended to classifications on the basis
of sex
xm †uestions about whether a law is benign
`m Can reinforce stereotypes and stigmatize beneficiaries of these
programs
xm ½ine drawing- which racial groups get protection and which do not?
‘m Cons
xm ›hites not discrete and insular minority
`m Could maybe argue this in the poor whites are the only ones bearing the
burden
xm ariginal understanding of 14th amendment equal protection clause was to
protect freed slaves (Gee Glaughter-¦ouse not the purpose of the 14th
amendmentë

 

 
: 
 
 c


`m › 
. $ )
 ( unconstitutional minority preference in teacher layoffs
‘m Powell: goal of providing ͞minority role models͟ and ͞societal discrimination concerns͟
in order to overcome societal discrimination was not compelling (strict scrutinyë
xm Gocietal discrimination alone not sufficient to justify racial classification must be
some showing or prior discrimination by governmental unit involved before
allowing limited use of racial classifications to remedy such discrimination
`m a͛Connor disagrees and argues a requirement of past discrimination
before implementing affirmative action programs would undermine
employer incentives to meet voluntary civil right obligations
xm
ven if these interests were compelling not narrowly tailored b/c unduly burden
white teachers
`m Reason was because we are talking about layoffs not hiring; there is a
difference͙in hiring the burden on disfavored race is more spread out
however when preferences are given to minority workers in layoffs the
entire burden falls on particular individuals 
xm ÚÚ* 
 


 ' 4    ! 
   


 


`m £ 

/ $
#(10% of contracts must go to minority business enterprise (ÕB
së
‘m no majority opinion
‘m ›hite, Powell, Burger: this is constitutional but outer limit of Congressional authority
(under rticle 1 §8 [powers of congress] and §5 of 14th amendmentë
xm Gatisfied Congress had abundant historical basis from which it could conclude
traditional procurement practices perpetuated effects of prior discrimination 
‘m Powell: strict scrutiny, but here serves a compelling governmental interest of rectifying
past discrimination by Congress
‘m Õarshall, Brennan, and Blackmun concur: intermediate scrutiny (substantially relatedë
 `m 
$+ 
.   
(state trying to implement ÕB
set-aside program
similar to £ullilove
‘m   
 

  
 

 

‘m Gtates do not have §5 power and only state prohibitions in §1
‘m Gearching inquiry is required to ensure that racial classifications are in fact ͞benign͟ or
͞remedial͟å because of stigma 
xm mhese classifications may promote notions of racial inferiority and hostility
unless strictly reserved for remdial settings
‘m ¦ere no real evidence of discrimination by the City or Gtate å w/o this its impossible to
determine whether the program is narrowly tailored
xm £or example a quota cannot be narrowly tailored
‘m Gcalia concurrence: agree strongly with strict scrutiny but disagrees affirmative action
should ever be used to ameliorate demonstrated past discrimination
‘m Õarshall uissent:
xm 2 compelling interests: (1ë rectifying past discrimination, (2ë not perpetuating
racial discrimination (current private institutions result of public discrimination
in pastë
xm doption of strict scrutiny is unwelcome development

   $ *0$
 
1 constitutionality of federal financial incentives to general
contractors who use minority contractors
`m Racial classifications always subject to strict scrutiny, whether by federal, state, or localåÕetro
roadcasting overruled
‘m mhree principles; consistency, skepticism, and congruence lead the court to conclude
they will apply strict scrutiny to the use of race by the federal government just like they
did to the state and local government
`m Gcalia uissent- same as before government cannot have compelling interest in discriminating to
make up for past discrimination͙in the eyes of the government we are one race, merican
`m mhomas concur: racial determinations are always destructive, racial paternalism (badge of
inferiority on minorities and engender attiudes of superiorityë
‘m gree with strict scrutiny for all government classifications
‘m Government cannot make us equal; it can only recognize, respect, and protect us before
the law
`m Gtevens uissent: this is a misguided view of ͞consistency͟ å there is a difference btwn majority
oppressing minority and a majority providing a benefit to the minority notwithstanding
incidental burden on some majority

2 
`m a e approved diversity in the classroom as a compelling interest but found 3C uavis
admission policy not narrowly tailored to that end
 `m cronson and derandcontrastly appeared to view only remdial justifications as sufficient while
in the contracting context
‘m Gcalia would confine permissible remedial justifications to the identified victims of past
discrimination while ›ygant considered and rejected an argument for correcting
broader societal prejudice
‘m croson and derand seemed to settle in-between: on remedies for identified past
discrimination but not limited to particularized victims
`m ariginal standard (under a eë was that state actions would be subject to strict scrutiny while
federal actions were subject to intermediate scrutiny
‘m £ederal gov͛t in better position to enforce equal position
`m fter derand all race based affirmative action subject to strict scrutiny and symmetry for strict
scrutiny whether benign or invidious racial classification
‘m Gender based is intermediate

! 
 
"##2(Õichigan law school, race as plus factor with individualized attention to
applications, 
`m :
   '# ' 
       
  
  
6 

 
 

 

‘m uiversity opens doors of leadership to everyone å legitimacy to a school but also
government (court conceptualizing diversity as a means, not endë
`m   
 (but with deference to educator͛s decisionsë
‘m Geems closer to intermediate scrutiny but maybe because the court is boxed in by
precedent they must still employ strict scrutiny
‘m a͛Connor suggests context is important
‘m ÚÚÚÕaybe implies not really 3 different levels of scrutiny but more of a continuum from
a lot of deference to no deference
`m 2 '  
 9   6  !  $ % 

 
   

 
 
'  
 å
9 + $ 
 % 

 !  
‘m But wouldn͛t quota technically be most narrowly tailored means??
‘m uoes not require exhausting every conceivable race-neutral alternative
`m mIÕ
½IÕIm
u, in 25 years these programs probably will not be necessary
`m Rehnquist uissent: unprecedented deference in application of ͞strict scrutiny͟ å this is race
based planning obscured as ͞plus͟ factor͙look at the statistics
`m mhomas uissent:
‘m £rederick uouglas: don͛t want benevolence, want justice
xm @ot a compelling interest to operate an elite public law school, lower standards
if so concerned about racial makeup
xm ÿ 3  
 $ + ½ '$ 
$  $+   

$   $     
4
‘m 2
 *+  $ $5   $(
 + 
 $ ,
 xm uefinition of ͞merit͟ at elite law schools is unduly narrow.
lite schools use the
½Gm and other quantitative measures to predict academic performance in law
school when they should use more flexible standards that ͞give the applicant a
chance to prove he can succeed in the study of law͟ Rigid standards are why
exceptions to merit based admission exist for minorities, legacies, etc.
xm Racial preference benefit those least in need of assistance- socieconomically
and educationally advantaged
`m uo nothing to help poor or uneducated participate in elite education
`m uespite preferential admissions black men significantly
underrepresented and Õichigan seemed content
xm Race-based admission policies exploitative
`m llow elite, majority white schools to achieve a desired racial mix for
own self-serving purposes; ͞classroom aesthetics͟
`m ½aw school tantalizes unprepared students with promise of 3niversity of
Õichigan degree and all opportunities it offers; overmatched students
take the bait only to find they cannot succeed in the cauldron of
competitions
! 
 
"##2( invalidated points program/flagged applicants at 3niversity of Õichigan
`m Rehnquist opinion for the court: this policy does not provide individualized consideration å 20
points given makes race determinative for virtually every minimally qualified applicant
‘m mhis system is not narrowly tailored
‘m @o individualized consideration
`m Gouter uissent: school͛s just being transparent, really doing almost the same thing as in Grutter

2 
    # 
5 &FG 
' 4
' H+ ! +  
 + 
 
 5(
`m      9 
  
5 !  !

     


   
5  c 
   

  '  !
 

5
‘m Õany say more epistemic or distributive- integration serves nation͛s purposes (see
empirical evidence from military and business etc.ë
xm Is this a cognizable interest though under
qual Protection?
‘m  
 If students and faculty are benefitted by ͞diversity͟ (allegedly prize the
engagement of ideasë to the point that it qualifies as a compelling interest justifying
discrimination that would otherwise be unconstitutional, why the lack of concern about
the absence at virtually all elite institutions of a ͞critical mass͟ who are
vangelical
Protestants, devout Catholics, social conservatives etc.?
‘m c
 
 something special and important for society in world outside
university about admitting Blacks
 ‘m c 
  ºustice a͛Connor wrote that we expect 25 years from now racial
preferences will no longer be necessary to further the interest approved today
‘m 

 
/
 to say that diversity contributes to learning incorporates an

irony in that it argues that admitting blacks is good because it helps ›hites who would
otherwise be stuck learning with all white classmates
"! !    
  
 
`m a͛Conner thinks it looks bad when we go out of our way and say that race is being taken into
account͙sends an explicit message
‘m Õore harmful messages to society, stigmatization etc.
/
   

 
'
  4  
 
  
!


9 
  

  4 '
    
 
`m Is there individualized consideration?
`m no quotas
`m re there race-neutral alternatives?
‘m @arrow tailoring does not require exhaustion of every conceivable race-neutral
alternative only good-faith consideration of workable race-neutral alternatives that will
achieve the diversity the university seeks
`m In order to be narrowly tailored it cannot unduly burden another race


 /
  /
c 
        &,--A(

`m £acts: parents of students denied assignment to particular schools under these plans solely
because of their race brought suit, contending that allocating children to different public schools
on the basis of race violated the 14th mendment guarantee of equal protection.
`m mwo school districts:
‘m Geattle ¦igh Gchools
xm Gtudents first choose which they want
xm £irst tiebreaker is if a sibling attends
xm mhen second depends on racial composition
‘m ½ouisville Grammar Gchools
xm Black enrollment must be between 15 and 50 percent
`m Reasoning:
‘m Gtrict Gcrutiny: whenever government distributes burdens or benefits on the basis of
individual classifications
xm Õust be ͞narrowly tailored͟ to achieve a ͞compelling͟ government interest
xm Prior cases involving racial classifications in school context have recognized ,

 ' 9 
   

`m (1ë Remedying effects of past intentional discrimination
‘m Geattle never segregated by law and ½ouisville were and subject
to a desegregation decree but now achieved ͞unitary͟ status
 ‘m
ssentially schools are trying to remedy de facto segregation
not de jure
`m (2ë Interest in diversity in higher education
‘m 
  !

    
  
 '  6 
   


   
    

`m 
 "
‘m mhe explicit designation of racial compositions may be more offensive than implicit
designations
`m 1

 leaves open possibility that government could seek to integrate K-12 schools but
cannot use race explicitly only race-conscious measures (building of school, recruiting certain
students etc.ë

'  
&;<<.( F ' /H use of race in the drawing of electoral districts
`m Gtate legislature re-drawing of voting districts in response to the census but so irregular that
reapportionment plan cannot rationally be understand as anything other than an effort to
segregate voters on the basis of race [uomillion was such a case]
`m Reapportionment is one area in which appearances matter
`m Gignificant state interest in eradicating effects of past racial discrimination but the state must
have a ͞strong basis in evidence for concluding that remedial action is necessary [croson]
`m Problems with using race in the drawing of electoral districts:
‘m Gends message to elected officials that they only represent interest of majority race in
that district
‘m Reaffirms stereotypes that people of the same race think and act alike
‘m Promotes racial bloc voting

:  c  &,--;( race in drawing of electoral districts again

`m Court must determine whether adequate support for the uistrict Court͛s finding that the
legislature͛s motive was predominately racial, not political
‘m Burden of proof is ͞demanding͟
‘m Õust show at a minimum that the legislature subordinated traditional race-neutral
districting principles to racial considerations
‘m Race must not simply have been a motivating for the drawing of a majority minority
district but the predominant factor motivating the legislature͛s districting decisison

2 
`m ÚÚ . 
 
  
 

‘m compactness
‘m congruity
‘m respect for political subdivisions
`m  

 !  


  !


 
  
 
 !   

! 6 
 
 ‘m Gimilar to uratz and urutter appearances matter
`m   

 
 1
`m #c

 '
  

  8    
‘m Gtandards are deciding cases on their facts͙do not drive at an unsafe speed
‘m Rules are clear not fuzzy͙do not drive over 35 ÕP¦


 
 :9   


 '
 
2( Court denied that federal privileges and immunities included the right of
women to practice law in Illinois

 
% 

( Court denied federal privileges and immunities included right of women to
vote in state elections; suggested may be persons within 14th amendment and even citizens but not
entitled to participate in political or professional realm reserved to me

!  
 
( court sustained Õichigan law provided no woman could obtain a bartenders
license unless she was ͞the wife or daughter of the male owner͟ of a licensed liquor establishment



(court declined to look at sex under strict scrutiny but applied a ͞heightened
rational basis͟ review invalidating a law preferencing men over women in appointing persons as
administrators of an estate when someone dies intestate
`m court purported to invalidate under rational basis

£  
$  

2( Court sustained equal protection challenge to law affording male
members of armed forces automatic dependency allowance for their wives but requiring servicewomen
to prove their husbands were dependant
`m ÚÚ 
     ' '   
 !'
   
    


 


   9   

`m E  3


 tradition of ͞romantic paternalism͟ in which the ͞pedestal͟ on which women
were placed all too often became a ͞cage͟

/ 


( court applied a deferential standard of review to uphold a state property tax
exemption for widows but not widowers
`m max law reasonably designed to further the state policy of cushioning the financial impact of
spousal loss upon the sex for which that loss imposes a disproportionately heavy burden
‘m ÚÚlaws designed to rectify the effects of past discrimination against women passed
muster
`m Brennan and Õarshall uissent: could have been more narrowly tailored͙remedial measures are
justified but this law grants exemptions to all widows regardless of financial status
 
 
 ( court declared unconstitutional an aklahoma law that allowed women to buy low
alcohol, 3.2 percent beer, at age 18, but men could not buy such beer until age 21
`m    
+ $     
'
 



 
 
‘m $ '
 c
 
 
+    !  

 !

     
  

 !6 
   !  !
 
   !6%
‘m . 
 

xm :

`m Gtrict- compelling
`m Intermediate- important
`m Rational basis- legitimate
xm "

`m Gtrict- narrowly tailored
`m Intermediate- substantial relationship
`m Rational basis- rationally related
)
)
( court struck down laws authorizing the labama courts to impose alimony obligations
on husbands but not wives
`m pplied craig v. oren standard
‘m Benign gender classification: even statutes purportedly designed to compensate for and
ameliorate effects of past discrimination must be carefully tailored, ͞since they carry the
inherent risk of reinforcing stereotypes about the proper place of women and their need
for special protection͟
‘m Compensating women for past discrimination was legitimate and important objective
͞ends͟ but ͞means͟ not satisfied

-
 › +
%  

"(court applied intermediate scrutiny to declare
unconstitutional state nursing school available only to women
`m a͛Conner- policy excluding men perpetuates stereotype͙like saying that nursing is a field
reserved solely for women and it follows they should not be doctors
`m
ven when law is benefitting women it still may be advancing stereotypes adversely affecting
women

.

+  
( peremptory challenges to jurors on basis of gender is unconstitutional

- 
 
 ( Court held as unconstitutional the exclusion of women by the Virginia
Õilitary Institute (VÕIë
`m Virginia in response to order from Court of ppeals created Virginia ›omen͛s Institute for
½eadership at Õary Baldwin College but court concluded women were still denied opportunity
available only to men
 `m Ginsburg: Parties who seek to defend gender-based government action must demonstrate and
exceedingly persuasive justification for that action
‘m Burden of justification is demanding
‘m Õust not rely on overly broad generalizations about different talents, capacities, or
preferences of males and females
`m pplied Intermediate Gcrutiny
‘m Important governmental interest? (endsë͙start here
‘m



 c

 B   c  :
 )
 
 
  
 
`m $ 
   
(Court upheld California͛s ͞statutory rape͟ law punishing
the male but not the female participant in sexual intercourse when the female was under 18
and not the male͛s wife
‘m 5 ,court will uphold statutes where gender classification is not invidious but
rather realistically reflects the fact that the sexes are not similarly situated in certain
circumstances
xm ½egislature acting to protect minor females and teenage pregnancy protects
them from punishment
xm Goal is deterrence and females already deterred by risk of pregnancy no similar
natural sanction deters males
`m  
! 

( Gupreme Court upheld federal law requiring men not women to
register for the draft
`m 3   !     
    
 
 
  '  


   



ÚÚ   
 
 ! 


 
5
`m   

‘m ½ong history of discrimination against women in virtually every aspect of society
xm @o right to vote, own property etc. for long time
xm Gender classifications like race are usually based on stereotypes rather than
important governmental interests
`m Õany purported biological differences invoked to justify legal
distinctions are stereotypes
‘m Gex, like race, is an immutable characteristic
xm mraits not chosen and cannot be changed
xm Gender immediately visible characteristic
xm ›omen significantly underrepresented in political process
`m /
  

‘m ¦istorical
xm £ramers of 14th amendment meant to outlaw on racial discrimination
 ‘m Biological
xm Biological differences make more likely laws are justified
xm Real differences
‘m ›omen are a political majority who are not isolated from men and cannot be
considered a discrete and insular minority

*' 
 
  
 c

&
  

  

(
`m )' 
 
 
‘m ½aw in its very terms draws a distinction based on gender
xm ½ike craig v. oren
`m /
'

 +    ! !   
   
  
 
   !
  
   
  
   9   
&›  

&
* % 
 
9 I
 


 '   


 

  
! 

   

   '  '     



 !

  

 (
‘m Personnel dministrator of Õassachusetts v. £eeney- court upheld a state law giving
preference in hiring to veterens even though it had a substantial discriminatory impact
against women
xm @a
VIu
@C
a£ uIGCRIÕ@maRY P3RPaG

xm If impact could not plausibly be explained on a neutral ground then impact
would be dispositive that the real classification was not neutral͙but it can
`m ll non-veterans both male and female are disadvantaged
xm ºustice Gtevens: number of males disadvantaged by law is sufficiently close to
number of disadvantaged females
xm Requires proof that government desired discriminatory purposes instead of
simply seeing them as reasonably foreseeable (criminal intent v. tort intentë


 c

3
   
`m /


' !


 ' 
!
    


  
‘m ›einburger v. ›iesenfeld (1975)- Court deemed unconstitutional provision of the Gocial
Gecurity ct that allowed a widowed mother but not a widowed father tp receive
benefits based on the earnings of the deceased spouse
‘m califano v. Goldfarb (1977ë- Court held unconstitutional provision in the £ederal ald-
ge, Gurvivors and uisability Insurance Benefits Program whereby a woman would
automatically receive benefits based on the earnings of her husband but a man would
receive such benefits only if he could prove he received at least half of his support from
his wife
xm 3nconstitutional b/c based, at least in part, on presumption wives are usually
dependent
 ‘m ›engler v. Druggists Õutual Ins. co. (1980)- applied same principle as above to rule
unconstitutional state law automatically allowing widows benefits but only allowing
widowers benefits if they proved they were dependent on their wives incomes
xm c  6  !  ' !  !
 




 ' 

 
 


 

‘m Õississippi University of ›omen v. Hogan(1982)- unconstitutional state policy of
operating nursing school that excluded men
`m B  ' !


 ' 

  !
 
‘m Õichael Õ. v. Guperior court (1981)- upholding C͛s statutory rape law
xm ÚÚforces consideration of when biological differences between men and women
justify gender discrimination
`m Ignoring physical differences between men and women leads to absurd
results like uedulig (1974) (court said pregnancy is not a sex-based
classificationë
`m B3m allowing laws to be based on perceived physical differences btwn
men and women risks upholding laws that are really based on
stereotypes
‘m ots er v.uoldberg- upheld male-only draft

B 
 
 c

3


  


    





 
 


`m califano v. ›ebster (1977)-Court sustained a valid gender preference, the Gocial Gecurity ct͛s
formula for computing old age benefits
‘m Reduction of the disparity in economic condition between men and women caused by
the long history of discrimination against women has been recognized as an important
governmental objective (Xahn)
xm mhe mere recitation of a benign, compensatory purpose us not an automatic
shield that protects against any inquiry into the actual purposes underlying a
legislative scheme (›iesenfeld)
xm mhe court has rejected attempts to justify gender classifications as
compensation for past discrimination against women when the classifications in
fact penalized women wage earners or when legislative history revealed
classification was not enacted as compensation for past discrimination
(uoldfarb, ›iesenfeld)
‘m mhis scheme more analogous to Xahn
xm anly discernible purpose of the law͛s more favorable treatment is permissible
one of redressing past disparate treatment of women
`m Gchlesinger v. allard (1975)- court upheld a navy regulation that required discharge of male
officers who had gone 9 years without a promotion but allowed women 13 years to remain
without a promotion


 
 2
 
&  
(
`m uiscrete and insular minority; history of discrimination; often stereotypes relied upon in
drafting of law
`m @ot strict scrutiny if illegal alien

  

 
 c

 & 
 
(
`m 
 3

uraham v. ichardson (1971)- strict scrutiny, welfare cannot be denied to non-
citizens
‘m aliens are prime example of ͞discrete and insular͟ minority
`m 3 
In re uriffiths- (1973ë- no substantial interest in excluding aliens from practice of
law
`m c  6 !Gugarman v. Dougall (1973)- court invalidated law that only 3G citizens could
hold civil service jobs; the restriction (meansë has little if any relationship to ͞having an
employee of undivided loyalty (endsë
‘m some public policy positions this would be ok but not all civil service jobs
‘m Rehnquist dissent: should not be strict scrutiny, status here is not immutable
`m  

 

:
 Blackmun͛s dicta in Dougall regarding greater deference to
exclusion of noncitizens from ͞public functions that go to the heart of representative
government͟
‘m   

 £oley v. connelie (1978)- @Y could bar employment of aliens as state

troopers
xm 2    

xm Police function is where citizenship bears rational relationship to special
demands of particular position
‘m  !   *mbach v. Norwic (1979)-public function exception applied
such that state may refuse to employ as elementary and secondary school teachers
aliens who are eligible for citizenship but who refuse to seek naturalization
‘m ÚÚ2   ! ernal v. £ainter (1984)- limit to public function exception; mexas
could not bar aliens from becoming notaries public
xm !

  4
 
!  !  

 
 !  
   !  
`m 

   )' 

 
 
 :

‘m Õatthews v. Diaz (1976)- Court upheld unanimously federal statute denying Õedicaid
benefits to aliens unless they had been admitted for permanent residence and resided
for at least 5 years in the 3nited Gtates
xm Rational basis for alienage classifications imposed by £ederal Government but
GG for Gtate
‘m ExceptHampton v. ›ong (1976)- distinction if classification made by Congress or the
President and those by administrative agencies
 xm Court struck down federal civil service regulation adopted by Civil Gervice
Commission
xm Rational basis review if order comes from Congress or President
xm GG from £ederal dmin gencies

 
  
"( $ '   $   +  5 
 $  
`m court struck down 3niversity of Õu͛s policy of not granting nonimmigrant aliens status as ͞in
state͟ even if domiciled in Õaryland
`m ͞amounts to an ancillary burden not contemplated by Congress in admitting these aliens to 3G͟
`m ÚÚ     
 !  + 

 !  
    

 




  
 
 
 '
    
  !

   
 ! 

 
 ! c
 
‘m    
( $ ' '   
  ! 
 



  


 '
 '
 B
  

 ' 
c
 
   '    
% 

 $   
 + $( intermediate scrutiny

0+ $ (

`m Illegitimacy
`m Gender

$$ (
`m Race, alienage, national origin


) &$+  (    
'
`m + !+ ' & !!   

( 
`m ! 

 
 
 !
 9   
  ! 

  &
 ' ! ( !   ! 





*
½
*0$
1( ͞heightened͟ (deferentialë rationality review
`m Court declared unconstitutional city ordinance that required special permit for the operation of
a group home for the mentally disabled
‘m ͞mo withstand equal protection review, legislation that distinguishes between the
mentally retarded and others must be rationally related to a legitimate government
purpose͟
`m ºustifications by City Rejected
 ‘m Gtudents from junior high across street may harass mentally disabled (based on
prejudices against mentally disabled and indulging of private biases is not a legitimate
government purposeë
‘m 500 year flood plain, or concern for number of ppl living in one house both rejected b/c
similar concerns did not play a part in granting the building of nursing homes etc.
`m mypical rational basis significant under-inclusiveness ok and government may proceed one step
at a time
‘m 3nder traditional rational basis may regulate homes for mentally disabled but not apply
standards to hospitals or nursing homes
`m ppears to be more ͞bite͟ than normal rational basis review
‘m ½i ellegheny Pittsburgh Coal Co. v. County Commission (1989ë- court unanimously
invalidated a county tax assessor͛s practice of valuing real property as 50 percent of its
most recent sale price
xm County tax assessors practices were arbitrary and unsupported by state law
xm Relative undervaluation of comparable property in ›ebster County over time
denies petitioners equal protection of the law

ailway Express gency Inc v. New Yor (1949)-tolerance for underinclusiveness

`m Court upheld ordinance banning all advertising on side of trucks unless ad for business of truck͛s
owner
‘m rgued irrational way to achieve governmental purpose of decreasing driver distractions
and promoting safety
`m Court said: government may have perceived some difference and immaterial whether the
government failed to deal with even greater distractions to motorists
‘m ͞no requirement of equal protection that all evils of the same genus be eradicated or
none at all͟
`m ardinary circumstances Government may move ͞one step at a time͟

New Yor Transit uthority v. eazer- (1979)-tolerance for overinclusiveness

`m Gupreme court upheld city͛s regulation that prevented those in methadone maintenance
programs from holding positions with the mransit uthority
‘m Gtrong majority of patients on methadone maintenance programs have been free from
illicit drugs for over one year and exclusion of all methadone addicts was substantially
overinclusive relative to the goal of safety
`m B3m upheld under rational basis, any alternative rule would be less precise and ͞more costly͟

$)   %
Yes ½egitimate
`m ailway Express gency v. New Yor (1949)- advertisement law described above is
constitutional as promoting public safety
`m ›illiamson v. ½ee Optical- public health as basis for finding law constitutional
 ‘m Geemed to have clearly protectionist purpose: helping optometrists and
opthamologists at expense of opticians but potentially advances public health
xm ½egislature may have rationally concluded eye examinations critical for
detection of ailments and diseases that need a precriptions
`m Õcuowan v. Õaryland (1961)- public morals sufficient for upholding law under rational
basis
‘m Gtate law requiring business to be closed on Gundays with many exceptions such as
sales of cars, boating accessories, flowers, foods and souvenirs
‘m Benefit of having uniform day of rest
@ot ½egitimate
‘m omer v. Evans (1996)- public morals not sufficient to satisfy requirement of legitimate
government purpose
‘m Gupreme court declared unconstitutional Colorado mendment 2, voter-
apporvedintitiative to repeal all laws protecting gays, lesbians and ͞bisexuals from
discrimination and prohibited all future government action to protect these individuals
from discrimination͟
‘m @o legitimate purpose in singling out a particular group and precluding it form using the
political process
xm @ot to further proper legislative end but make unequal to everyone else
xm Gtates argument was protection of freedom from association- and Court
disagrees
‘m UG Dept. of griculture v. Õoreno (1973)- unconstitutional a federal law excluding from
participation in the food stamp program any household containing an individual who is
unrelated to any other member of the household
‘m
xpress congressional purpose of discriminating against ͞hippies͟ could not constitute a
͞legitimate͟ purpose
‘m ÚÚ$ ! 

      
     

 
 
  

 
%
3sually public safety, public health, morality, peace and quiet, and law and order are part of traditional
application of police power to municipal affairs


  

 '
  +5
‘m Õ supreme court equates to ½oving (the right to marry means little if it does not include the
right to marry the person of one͛s choiceë
‘m ¦omosexuality includes both conduct and status (due process and equal protectionë
‘m uue process
xm @ot really private or privacy by asking for a public recognition of marriage
xm an the other hand however court͛s conception has seemed to expand to
decisional as well as spatial privacy
‘m
qual Protection
‘m 3nless court decides to apply heightened scrutiny it will still be considered under rational basis
‘m In omereasy to say justification is simply a pre-text for an animus
 ‘m an the other hand could be very easy to distinguish that gay marriage is not nearly as broad as
the statute invalidated in omer
‘m anly being disadvantaged small amount
:)*0
`m ¦ybrid of equal protection and substantive due process
`m Poor discrete and insular minority?
‘m Yes money is power
‘m @o- look at all the welfare legislation
xm @ot immutable trait?
`m ›hat constitutes fundamental interests under the due process clause??
`m 0
  

 
 ' 


‘m !
0 
1 
xm Requires states to provide transcripts of cases to indigents
‘m &  
   
 2
xm Counsel for first appeal
‘m % 
    $  
 
xm Gtriking down poll taxes
xm £undamental right of voting plus classification
‘m  
 $$ 

xm Indigent welfare recipients sought to file divorce actions in state courts but
unable to pay fees
`m Court relied on due process
`m ͞due process prohibits a Gtate from denying, solely because of inability
to pay, access to its courts to individuals who seek judicial dissolution of
their marriages͟
‘m ½
 
( due process entitled indigent defendant in paternity action to
state-subsidized blood grouping tests
‘m ")3  )E &;<<@(
xm @o constitutional guarantee of a right to appeal under uue Process but equal
protection issue because this is a fundamental interest
xm c     !   



  '  




  
 


  
  

xm :

 ! 


  
    '
xm c    
 
     !
   
 
 

!  ' ! 
  &'

 
 
(
xm ll of these only show a disparate impactfrom a facially neutral law (ºustice
mhomas uissent in Õ½ that these cases are at odds with ›ashington v. Davis)
`m Equal protection protects only ͞purposeful͟ discrimination
`m uuarantee equal laws not equal results
`m 
  
  

‘m -
/ 
(wont extend to civil filing fees; here voluntary bankruptcy proeedings
 ‘m  
 
( wont extend Douglas beyond first appeal
‘m )'
$'

2(won͛t extend to filing fee prerequisite to judicial review of
administrative denial of welfare benefits 
`m /    
   &
 

!  ( 
 
 





         
3
4   '
 !

55

ÚÚc  

 
    
 
 
 '  
 
 
 

 ' 

 $9 
% & 
 

  


 

(     
 
  
     
  
'  
 4


2 

 /
 
 +   : 

xm Dandridge v. ›illiams (1970)- (Õu id to £amilies with uependent Children Program maximum
cap regardless of family size or needë å this is a state regulation in social and economic field;
doesn͛t affect freedoms guaranteed by bill of rights
‘m mhis conception of substantive equality of rights would lead back to ½ochner era
disrespect for state legislation
‘m 
 !  apple; classifications need not be perfect
‘m :9   
 
 9  
   
   !   4
xm ½indsey v. Normet (1972)- denial of stricter standard of procedure for eviction after nonpayment
of rent
‘m constitution does not provide remedies for every social and economic ill
‘m uecent, safe housing is important but no Constitutional guarantee of right to occupy
housing beyond term of lease or without payment of rent
xm Gan ntonio Independent Gchool District v. odriguez (1973)-challenge to property tax system to
education
‘m c 


 

 
 



  ' 
9    
  
xm  
    


‘m Griffin and uouglas require two characteristics (for suspect classificationë:
xm (1ë must be completely unable to pay
xm (2ë and as a result must be completely deprived of the meaningful opportunity
to enjoy a benefit
`m @ot completely deprived of a benefit here͙still receiving education
‘m 2  !
    

 c
 
&
   (
xm @ot implicit
`m Rights to speech or vote are not rights to effective speech or informed
voting
xm 
  


I ! '  ! 


 


 
 
‘m " 
spectrum not just two categories of strict scrutiny or rational basis
xm mhere has been closer scrutiny for certain rights (like to procreate, vote in a
state electionë
 xm bsolute deprivation has not always been required
xm Procreation (G inner v. O lahoma- criminal sterilization act unconstitutional
under equal protectionë, exercise of state franchise, access to criminal appellate
processes are not fully guaranteed but have been afforded special judicial
consideration in the face of discrimination because of interrelation with other
constitutional guarantees
‘m     
  $


% 
   
+  
+ 
   + 
 

    &;<D,( statute that allows denial of free public education to children who have not been
͞legally admitted͟ to the 3nited Gtates is unconstitutional
xm Illegal aliens are not a suspect class,
$  $ + 
  å $  

$ * 
  
xm
ducation not a fundamental right but a fundamental role in society
xm 2  
 !   

    !
  
 
xm @o legitimate interest in creating an illiterate underclass of illegal workers

c

 
 '    


 '      
  




`m c  '  
 


   


 
 c
 


  
     
`m   

 
 
        
 
 



 

  :9   
c 
`m  
+(right to vote in state elections 
‘m Geats in state legislature must be apportioned based on population under Equal
Protection
`m % 
    $ ( poll taxes are unconstitutional as a denial of equal
protection 

* 9 

 


 
2

`m ¦olding- 14th mendment apples only to government not to private conduct

‘m Constitution offers no protection against private wrongs no matter how discriminatory
or how they may infringe fundamental rights
`m Private action governed by state law and not 3nited Gtates Constitution 
‘m Õaybe federalism or individual liberty concerns 
`m @otes-
‘m 13th mendment is the one provision of the Constitution regulating private conduct
xm forbids people form owning or being slaves; forbids compelling a person to work
for another individual to repay a debt
‘m Gituations where private conduct has to comply with the Constitution
 xm Public functions exception- principle that private conduct must comply with the
Constitution if it involves a task traditionally, exclusively done by the
government
xm Entanglement exception- principle that the Constitution applies if government
affirmatively authorizes, encourages, or facilitates unconstitutional conduct 
`m  $  

$+    ++$ 


$  
‘m @o matter how Court tries to restrict Congress; Congress can usually find a way around
it
xm aich- even intrastate non-economic activity that is part of larger regulatory
scheme Congress can get at that activity
xm      '

;> 

 /



`m Gection 1: prohibits state denials of due process, equal protection

`m Gection 5: Congress can enforce prohibitions of Gection 1

 ! 

:


`m  

  
 ! !    
! ! 
 
     

  
`m ºac son v. Õetropolitan Edison, co.- there is state action ͞in the exercise by a private entity of
powers traditionally exclusively reserved to the state͟
‘m Privately-owned utility company did not have to provide due process before terminating
a customer͛s service
‘m Government-owned utility must provide notice and a hearing before cutting off service
‘m ͞running a utlity is not traditionally the exclusive prerogative of the state͟
`m . "6  
‘m Õanagement of Private Property-
‘m Õarsh v. labama (1946)- running a
͞company town͟ is a public function and must be done in compliance with Constitution
xm ¦ere was challenge to 1st mendment right to free speech and distribution of
religious material when law said ͞no solicitation͟
xm Õore an owner opens up property to public in general do rights become
circumscribed by Constitutional and statutory rights of those who use it
xm
nd of opinion court used balancing test to balance Constitutional rights of
owners of property against freedom of press and religion and the latter
category occupy a preferred position
‘m Evans v. Newton (1966)- city could not avoid desegregating a park by turning over its
control to a private entity
xm Running the park is a public function
xm lthough suggestive of such court has never gone so far to say every
amusement park or golf course etc applies
xm Civil Rights ct of 1964 made this less necessary because it prohibited
discrimination by places of public accommodation
‘m Ghopping Centers are not state actors even though similar to a ͞company town͟
 ‘m
lection Cases- election for government office is a public function
xm ›hite Primary Cases- applied public function exception in holding uemocratic
Party groups in Gouthern one-party states could not exclude frican-mericans
from candidate selection processes prior to general elections despite repeated
efforts to remove all formal indication of state involvement from such primary
schemes
xm ÚÚPerhaps most useful as a precedent if the government ever would choose to
spot performing a traditional task so as to avoid the Constitution
‘m Running and Regulating Gchools- where a private entity is managing or regulating
schools
xm In National collegiate thletic ssociation v. Tar anian (1988)- @C is a private
entity and did not have to provide due process before suspending a basketball
coach at a Gtate 3niversity
xm rentwood cademy v. Tennessee Gecondary Gchool theltic ssociation (2001)-
private entity regulating high school athletics was a state actor based on
government͛s ͞entwinement͟ with the activities
`m Gouter͛s entwinement test: ͞that state action may be found͙only if,
there is such a close nexus between the Gtate and the challenged action
that seemingly private behavior may be fairly treated as that of the
Gtate itself͟
`m 84% of members public schools, most of funds from public schools, and
most of meetings on government property
`m uistinguished from Tar anian in that this is an entity operating in one
state versus all states

:


 :


`m ÚÚ 

 

   + 
 + 

  
  
   c
 

‘m  ##    ' 

  


 
  


 
   ' ' 
  
`m >  
‘m E  
 ' 


 

xm Ghelley v. Xraemer (1948)- state cannot enforce racially restrictive covenants
`m Participation of the state in the enforcement of the restrictions
xm Distinguished £rom Evans v. bney (1970)- upheld reverter bringing back park to
Bacon͛s heir b/c racial covenant would not be enforced and frustrated intent
xm P v. oard of Directors of Trusts (1957)- refuse to enforce testamentary
provision to admit only ͞poor white students͟ even with private trustees as
trustees of college
xm ½ugar v. Edmonson Oil co. (1982)- state action when creditor obtained a writ of
prejudgment attachment from a court
`m involvement of court in issuing writ and sheriff enforcing sufficient for
state action
`m 2 part test for state-action analysis:
‘m (1ë deprivation must be caused by the exercise of some right or
privilege created by the state, or a rule of conduct imposed by
the state, or by a person for whom the state is responsible
 ‘m (2ë party charged with deprivation must be a person who may
fairly be said to be a state actor ͞because he is a state official,
because he has acted together with or has obtained significant
aid from state officials, or because his conduct is otherwise
chargeable to the state͟
`m In this case state law provided for prejudgment attachment (first partë
and sheriff carried out attachment (secondë
xm Distinguished from £lagg rothers v. roo s (1972)- Gupreme court held that a
private creditor͛s self-help repossession did not constitute state action, and thus
due process was not required prior to the sale of he belongings
`m Difference was direct involvement of sheriff in former case, and latter
was entirely self-help
`m ¦owever, both cases dealt with state law providing procedures for
debtor͛s actions
xm atson v. Xentuc y (1986) & Edmonson v. ½eesville concrete (1991)- peremptory
challenges cannot be used in a discriminatory fashion in both criminal and
private cases
‘m  

 )

 
  

xm urton v. ›ilmington Par ing uthority (1961)- parking utility leased space to
private restaurant who denied service to someone because they were black.
`m Gupreme Court said state so entangled with restaurant that ͞symbiotic
relationship͟ sufficient to create state action
`m mhis reasoning virtually everything is state action (i.e. all corporations
chartered by state government etcë but has not been the case
xm Õoose ½odge Number 107 v. Irvis (1972)- state grant of liquor license to private
club not sufficient government entanglement
`m ½ike parking authority could have added clause in condition of license
like lease to prevent discrimination but not as close as relationship
between lessor and lessee
xm ºac son v. Õetropolitan Edison co. (1974)- gov͛t regulation of utility not enough
to create state action
`m Õaybe less state approval here
xm Besides urton difficult to state action based on licensing or regulation alone
`m Õaybe because urton was before Civil Rights ct of 1964 when the
Gupreme Court was trying to find ways to apply the Constitution to
forbid private discrimination
`m Õaybe in the future Court may find that ͞symbiotic relationship͟ that in
an extraordinary case could support a finding of state action based on
licensing or regulation
‘m  

 !
xm endall-a er v. Xohn- not state action when private school, receiving over 90%
of funds from state fired teacher because of her speech activities
`m Government funding by itself is not basis for state action
xm lum v. Yarets y (1982)- no state action b/c decision of private nursing home to
transfer patients
`m Neither extent of regulation or size of funding is a basis for state action
 `m ÚÚCiting ºac son: constitutional standards are invoked only when it can
be said the Gtate is responsible for the specific conduct which the
plaintiff complains; mere approval of or aquiesence in the initiatives of a
private party is not sufficient to justify holding the state responsible
xm Court likely to find government subsidies state action when government
purpose is to undermine protection of constitutional rights; absent such
motivation, very difficult to find government funding sufficient for a finding of
state action
‘m /
 :
 
 ? 


xm eitman v. Õul ey (1967)- unconstitutional C voter intitiative repealing open
housing laws and preventing the enactment of future anti-discrimnation laws

    '  $
 $ 1 ++

`m ½assiter v. Northampton county Election oard (1959)- the court unanimously rejected attack on
state literacy tests
`m Gouth carolina v.Xatzenbach (1966)- Court sustained section 5 of the Voting Rights ct as a
proper exercise of Congressional Power under Gection 2 of the 15th amendment
‘m In covered areas the ct suspended literacy tests and other devices for 5 years from the
last occurance of substantial voting discrimination 
‘m ͞Congress may use any rational means to effectuate the constitutional prohibition of
racial discrimination in voting͟
‘m mest is the same as in all cases concerning the express powers of Congress with relation
to the reserved powers of the Gtates (Õcculloch)
`m Oregon v. Õitchell (1970)-nationwide literacy test suspension is constitutional
‘m £ell within ͞remedial͟ powers of Congress 
`m city of ome v. United Gtates (1980)- suggest Congress has power to interpret meaning of 15th
amendment under section 2͙however decided before city of oerne 
‘m Can be interpreted narrowly or broadly
xm @arrow
`m Gimply approving a remedy for violations of voting rights; allowing proof
of a discriminatory impact to show a violation of the ct was meant as a
remedy for a proven history of the denial of voting rights
xm Broad
`m uthorizing Congress to independently interpret 15th amendment and
even adopt views contrary to the Gupreme Court 
‘m Court had said discriminatory impact was insufficient to show a
violation of 14th amendment 

Xatzenbach v. Õorgan (1966)-congress may independently interpret constitution and overturn court
`m @Y challenge to Congressional Voting Rights ct upheld in which ͞no person who has
successfully completed 6th primary grade in Puerto Rico in which the language of instruction was
other than
nglish shall be denied the right to vote in any election because of his inability to
read or write
nglish͟
‘m @Y argued that it violated @Y law
`m 3nder subsequent Gupreme Court Precedent would have been un-constitutional because
following Harper and Xramer right to vote is subject to Gtrict Gcrutiny so it will probably fail
`m ¦ere, plainly adapted to furthering
qual Protection- not court͛s duty to look at specific
considerations or even least restrictive means so long as plain basis
 `m uoes Court need to itself conclude the
nglish literacy requirement violates Gection 1 of the 14th
mendment in order to uphold a Congressional measure to suspend it?
‘m ¦ere no
`m Õcculloch Gtandard:
‘m Very deferential
‘m ›hether section 4(eë may be regarded as an enactment to enforce equal protection,
whether it is ͞plainly adapted to that end͟ and whether it is not prohibited by but is
consistent with ͞the letter and spirit of the constitution͟
`m 2 rationales of the Court:
‘m rationally related
xm rational way to remediate past discrimination
‘m reasonably eliminates invidious discrimination
xm way for Congress to get rid of invdiuous discrimination even if this particularly is
not invidious itself
`m uissent: Congress will only have Gection 5 power if the condition is an infringement on the
Constitution
‘m mhis is giving Congress the power to define the substantive scope of an mendment
`m @otes:
‘m Court is saying that Congress may go outside the Court͛s definitions of what is a
violation of the 14th amendment and unconstitutional
xm ¦arlan is worried about a separation of powers issue; it is the Court͛s job to
interpret what and what not is Constitutional
`m Broad view of Õarbury and cooper; this is the Court͛s role only

£ollowing Xatzenbach Court upheld Gection 2 (states cannot change election systems adversely effecting
voting rights of minoritiesë and Gection 5 of the Voting rights ct
`m Court upholds Congressional findings without finding the acts violated 14th mendment
`m 1937-1995 court very deferential to Commerce Power until United Gtates v. ½opez
`m 1960s-1980s Court very deferential to Congressional Power under Gection 5 of the 14th
mendment until city of oerne v. £lores (1997)

14th mendment
`m Gection 1:
‘m
qual protection
‘m uue Process- free exercise
‘m 3nder Gmith purposeful discrimination needed against a religious practice

city of oerne v. £lores (1997)- court sharply limits scope of power under Gection 5 to only remedies for
rights recognized by courts and may not create new rights or expand scope
`m Issue- ¦ad Congress exceeded its powers under Gection 5 of the 14th mendment to remedy
violations of the £ree
xercise Clause, incorporated against the Gtates by the uue Process Clause
of Gection 1 of the 14th mendment
`m £acts:
‘m Congress enacted R£R in response to Ore v. Gmith in which Court upheld aregon
prohibition on Peyote which @ative mericans said violated their free exercise rights
 xm Court drew distinction between cases with a discriminatory purpose and
discriminatory effect (like ›ashington v. Davis)- law only violates £ree
xercise
Clause if passed with a discriminatory purpose
xm Gmith held that neutral, generally applicable laws may be applied to religious
practices even when not supported by a compelling governmental interest
(rational basis reviewë ʹ impact only no purpose then rational basis review
‘m Congress enacted R£R essentially requiring strict scrutiny such that any time any
branch of government passes a law to substantially burden a religion will only be upheld
if narrowly tailored to meet a compelling governmental interest (trying to ͞undo͟ Gmithë
`m Congress͛s rgument:
‘m Passed under Gection 5 in order to enforce Gection 1͛s uue Process Clause which itself
prohibits the states from prohibiting the free exercise of religion
`m Court uistinguishes Xatzenbach v. Õorgan:
‘m ½egislation which deters or remedies constitutional violations can fall within the sweep
of Congress͛ enforcement power even if in the process it prohibits conduct which itself
is not unconstitutional and intrudes into legislative spheres of autonomy previously
reserved to the states
‘m mhis power is only ͞remedial͟
xm  +  
+ $ 
$  
+  $ '   $  
‘m ½egislation which alters the meaning of the £ree
xercise Clause cannot be said to be
enforcing the Clause
‘m ½iteracy requirement can be used in many ways to effectuate discrimination
xm mhis upheld because necessary given the ineffectiveness of existing voting rights
laws and slow costly character of case-by-case litigation
‘m mhis is way too broad and sweeping unlike the Voting cts cases and no prior evidence
of racial discrimination
`m uetermining line between measures that remedy or prevent unconstitutional activity and
measures that make a substantivr change in the governing law
‘m -½,+ 
 $  $     
'3  


 + +     
+   
 $$ $+      
xm Proportionality: uecent fit between ends and remedy
`m Is this law too broad in relation to what Congress is targeting?
xm Congruence: harmony or correspondence between Constitutional violation
Congress trying to get at and what it passes
`m Racial discrimination and literacy tests probably pass this test; close link
over the years between these two
`m
nforcement Clause
‘m uid not authorize Congress to pass ͞general legislation upon the rights of the citizen͟
`m ›hat Congress could have rgued
‘m Provide evidence generally applicable laws were being passed for the purposes of
discrimination
‘m ½imit scope of law to areas of the country where there is a problem (proportionalityë
‘m Õaybe limit to a particular level of government
‘m Õaybe not requiring a jump from rational basis review to GG but to intermediate review
 `m ane argument is Congress was given power to enforce 14th mendment b/c following ured
Gcott didn͛t trust Court͛s interpretations͙so Congressional interpretation of 14th mendment
ok?
`m mhese cases all revolve around the question of how much power section 5 gives Congress
`m 2 
‘m Xatzenbach v. Õorgan not overruled; the system of deciding is simply changed
(congruent and proportional test v. deference to Congressë

B
   " 
&,---(


  '
 
=
;> 

I

    

 
 
`m Gupreme Court reaffirmed the Civil Rights Cases and disavowed the opinions to the contrary in
United Gtates v. uuest
`m £acts: constitutional challenge to the civil damages provision of the Violence gainst ›omen ct
which authorized victims of gender-motivated violence to sue under federal law.
stablishes
cause of action in federal court against those individuals that committed a crime against you.
`m ¦olding:
‘m mhe law exceeded the scope of the commerce power because Congress cannot regulate
noneconomic activity based on a cumulative impact on interstate commerce
xm 3nder commerce clause first look if economic activity
xm If not is there a substantial effect on economic activity
xm ½opez- carrying a gun is not an economic activity and Õorrison- violence against
women is not an economic activity
‘m mhe law is not constitutional as an exercise of Congress͛s Gection 5 power:
xm Congress may regulate only state and local governments not private
conduct8even if this regulation was a way to remedy unconstitutional conduct
by the states

!
c

 
=
 ;> 

      
  
`m Gtates can be sued for injunctive relief but @am money damages without their consent unless
Congress validly abrogates state sovereign immunity (11th mendmentë
‘m c
  !    


 
=

;>


`m ll the ways Congress can regulate private organizations (anti-discrimination etc.ë they can
regulate the state
‘m Go naturally they gave private individuals a way to vindicate these rights by suing the
states; however this brings up issues of sovereign immunity;
‘m can congress give individuals the right to sue the state for money damages in light of
the fact that states have sovereign immunity?
xm Court says no Congress may not use Commerce Power to override 11th
mendment
xm ¦owever can use power under Gection 5 of the 14th mendment to abrograte
sovereign immunity
`m Because 14th mendment comes after 11th mendment
`m mo accomplish this:
‘m Intention to abrogate state sovereign immunity must be clear
‘m Õust be a valid exercise of Gection 5 power
 xm ÚÚÚ    ,$   
     + 
   
 $$  $     $  $66
`m £lorida Prepaid Postsecondary Expense Education oard v. college Gavings an (1999)-
Congress amended patent laws to authorize individual suits against states for money damages
when the states violate their patents
‘m Court overturns law b/c:
xm @o evidence states are violating patents in history
xm
ven if they are no evidence denying without due process
xm @am Congruent and Proportional 
`m Ximel v. £lorida oard of egents- u
 says cannot discriminate on the basis of age; justified
under the Commerce Power, regulating workplace etc. 
‘m ½aw said state employees if discriminated against can sue the state for money damages
xm ½aw itself ok and justified under commerce power
xm brogation of state sovereign immunity Congress tries to say is justified by
Gection 5
`m Court disagrees
‘m @o pattern or practice of unconstitutional state conduct
xm ge not a suspect classification only rational basis
review
xm uiscrimination is not irrational; only irrational
discrimination would suffice to make this conduct by
employers unconstitutional 
‘m
ven more so basically prohibiting states from discriminating on
basis of age subject to strict scrutiny review when the
constitution only holds this to rational basis (too overinclusiveë 
‘m ÚÚGince only subject to rational basis review Congress would have to show the states
were discriminating on the basis of age or disability (labama v. uarrett)irrationally to
validly abrogate state sovereign immunity
xm This is very hard to show 
xm In the case of race or gender easier to show
`m Ximeland uarret court rejects Gection 5 power because rational basis review
`m Hibbs(£Õ½ applied to private companies and state employees, gender discriminationë and
Tennessee v. ½ane (fundamental right is access to courts, when handicapped person could not
get to court roomë were upheld because easier for Congress to show discrimination is not
substantially related to important or compelling governmental interest 
`m ÚÚÕuch easier for congress to exercise Gection 5 power in abrogating sovereign immunity when
dealing with discrimination that is subject to heightened scrutiny 
ÚÚÚ34 '

;m ›hat kind of constitutional violation is Congress trying to remedy or prevent?
m Race, sex, age, disability, denial of access to courts (Tennessee v. ½ane)
,m ›hat must a party show to establish that kind of constitutional violation? (level of scrutinyë
m Irrational, not narrowly tailored to further a compelling government interest etc?
!m @eed this to establish what Congress needs to show to justify pattern or practice of
unconstitutional conduct
.m ¦as Congress provided evidence that the states have engaged in a pattern or practice of
unconstitutional conduct?
 >m Is the law congruent and proportional to remedying or preventing that unconstitutional
conduct?
m uoes it go geographically far beyond the evidence of unconstitutional conduct?
!m uoes it apply to all sorts of governmental conduct when there is only evidence of
discrimination in one government decision?
m Õaybe only discrimination in zoning but Congress passes R£R which applies to
all levels of government conduct
m uoes it impose a level of review far broader than what is required by the Constitution
m mhe constitution only requires rational basis but this requires strict scrutiny

 


`m Establishment clause and free exercise clause present a tension between the two
‘m Gometimes permitting one thing may raise questions under the establishment clause
and denying it may raise questions under the free exercise clause
‘m
: requiring to pray at school violates establishment; not allowing to pray at school
violates free exercise but what about permitting it?

: 
 
  &;<<-(

`m *
    

 !   
 
  '

 !
‘m @o matter how much a law burdens religious practices it is constitutional under Gmith so
long as it does not single out religious behavior for punishment and was not motivated
by a desire to interfere with religion
`m In this case a law prohibiting smoking Peyote did not violate free exercise even if it interfered
with £ree
xercise
‘m Gtate law prohibiting consumption of Peyote applied to everyone and did not punish
conduct solely because it was religiously motivated
`m Respondents urge the Court to use the balancing test of Gherbet- governmental actions that
substantially burden a religious practice must be justified by a compelling governmental interest
‘m Court says they have never invalidated a government action on the basis of this test
besides the denial of unemployment benefits
‘m Recent years the court has abstained from applying test at all (Roy, ½yng, Goldmanë
`m   the right of free exercise does not relieve an individual of the obligation to comply with a
͞valid and neutral law of general applicability on the ground that the law proscribes (or
prescribesë conduct his religion prescribes (or proscribesë
`m 2 
‘m mhis case is example of Gcalia͛s preference for rules over standards vs. a͛Conner who
likes to decide cases on a case by case basis favoring standards
xm Rule- do not drive over 35 mph
xm Gtandard- do not drive an unsafe speed
`m Vaguer and fuzzier
‘m By applying rational basis review there is a lot less room for judges to insert their policy
preferences into an outcome
‘m Gcalia believes that we can rely on the political process to carve out exceptions from
generally applicable rules
xm Response to this is that minority religions may be ͚discrete and insular minority͛
(carolene products footnote 4ë and will not be able to get rules carved out
 `m Gcalia says that this is a consequence we must live with in that a
democratic process is preferable to where judges are weighing the
importance of religious beliefs

c 
 ) 4 3!   c
0 &;<<.(
`m c  

 
   

   !   



!   '          
‘m £reedom of speech usually trying to distinguish between speech and conduct; does not
protect conduct
‘m £ree
xercise Clause oppositely, does protect conduct
`m ½aw was neutral on its face but purpose was discriminatory so subject to strict scrutiny
‘m Governmental interest of public health concerns etc. could be compelling
‘m ¦owever even if government interest is compelling it is too underinclusive
xm mhese ordinances had as their object the suppression of one religion
`m Gcalia uissent: can we strike down any law that has a discriminatory purpose
‘m mhis is really a religious gerrymander let͛s look at all the exceptions and see that in
essence the only religion affected by the law is Ganteria
‘m Úڛhen he talks about effect he means it is drawn in such a way to single out members
of the Ganteria religion
xm Unli eGmith where it is generally applicable to all and simply affects a group
detrimentally
`m 2*: maybe so discriminatory in purpose like uommillion a violation of
qual Protection

ÚÚÚ
    ' 
`m    '   $
   +   

'
 '$
  $$ 
3$ $$ 

ÚÚc  '
  4   

 !
 !  

!# !


) 4   &,-->(
`m  challenge to ›ashington Gtate Promise Gcholarship with stipulation in accordance with
the ›ashington Gtate Constitution that students may not use the scholarship at an institution
where they are pursuing a degree in devotional theology.
‘m Õay still attend Christian colleges etc., just will not fund the study of devotional
theology
‘m › Constitution͛s establishment clause arguably broader than that of the 3G
Constitution
xm The Gtate could consistent with the Establishment clause permit Promise
Gcholars to pursue a degree in devotional theology but › may also, pursuant
to their own constitution, deny funding without violating the £ree Exercise
clause 
`m ›ould not violate £ree
xercise because he can receive training still to
be a pastor just without it being subsidized by the government 
`m uling contrary would have dramatically changed the law and meant anytime the government
provides assistance to private secular entitites it would be required to give the same aid to
religious institutions 
 `m  government at all levels can choose how it wants to spend taxpayers͛ money and what
extent if any it wants to financially support religion 
‘m Religion is not being singled out for a burden; simply being denied a benefit 

!  ?
 &;<@.(

`m  Gupreme Court said the Gtate may not deny unemployment benefits when a woman was
discharged and could not immediately find new employment offered because she could not and
would not work Gaturday due to her religion
`m uifference between ½oc e and Hialeah
‘m abject of laws was singling out religion
‘m mhis is a facially neutral law that is generally applicable 
‘m ½aw in Gherbert does not treat religion any differently 
xm ͞you are not eligible to receive unemployment benefits if you do not accept
suitable work when offered͟ 
`m re incidental effects upon religion from general, facially neutral laws violate the £ree
xercise
Clause?
‘m Court applies Gtrict Gcrutiny here
`m Perhaps accommodating people͛s beliefs does not necessarily violate the establishment clause
because there is no mention of secular entitites

3nemployment Compensation Cases after Gherbert- free exercise upheld

Thomas v. eview oard, 1981- Court rejected Indiana denial of unemployment compensation for all
employees who voluntarily left for personal reasons without good cause; here because ºehovah͛s
›itness quit job in munitions factory because religious objections to war
`m Burger found coercive impact ͞indistinguishable͟ from Gherbert
‘m Rehnquist dissent said
stablishment Clause being read too broad; and advocated for
Gherbert͛soverruling
Hobbie v. Unemployment ppeals comm͛n, 1987-followed Gherbert in upholding unemployment
compensation claim of employee whose religious beliefs had changed during course of employment

£razee v. Illinois Employment Gecurity Dept. 1989-Gherbert, mhomas, and ¦obbie were applied to an
applicant whose refusal to accept employment that required he work on Gunday was not based on
membership in an established church but on sincere and religious claim he was a Christian and could not
work on the ͞lords day͟

Compulsory
ducation- free exercise upheld

›isconsin v. Yoder (1972)- Court overturned a fine an mish father received for not sending his
daughter to high school past the 8th grade; violation of £ree
xercise Clause
`m Õust be strict scrutiny when ͞it impinges on fundamental rights and interest͟ such as the right
of £ree
xercise
`m @o compelling governmental interest to override the overwhelming sincerity of the mish
religious belief

uenials of £ree
xercise Between Gherbert and Gmith- although Gherbert and Yoder held £ree
xercise
mandated exemptions from governmental regulations in certain circumstances much larger rejected;
the heightened scrutiny is quite deferential
 `m United Gtates v. ½ee (1982)- Court denied mish challenge to paying Gocial Gecurity for his mish
employees even though they will not ever use it; they provide for their own
‘m Õandatory participation was indispensable to fiscal vitality of system, and difficult to
deal with myriad of exceptions which would arise; should people not pay part of their
taxes because they disagree with war?

2 
`m uenials for one of 3 different reasons
‘m pplied strict scrutiny; but holds government has met strict scrutiny
xm ½ee,ob ºones (denied tax exempt status because practice discrimination in
accord with their religious beliefë
‘m ½owers level of scrutiny because special context
xm uoldman v. ›einberger (1986) ( court defers to military in not allowing
arthodox ºew to wear yarmulkeë, also O͛lone v. Estate of Ghabazz(prison context
deferenceë
‘m Rejects
qual Protection claims where claimant asks government to change something
they do to practice their religion
xm owen v. oy- 1986- never had Court interpreted to require government itself
to behave in ways that the individual beliefs will further his or her development

ÚÚc 
  
   
    

`m ½aws that single out religious practice for disadvantages (Hialeahë
‘m
xcept situations like ½oc e v. Davey where it is not a burden involved but a benefit
where the government is saying they will not
`m ¦ybrid Cases- 2 constitutional rights (fundamental interestë ʹ e.g. Yoder; maybe a free speech
and free exercise claim or free exercise and substantive due process claim
`m Gherbertsituation- any situation in which the government has in place a system of individualized
governmental exemptions- i.e. unemployment cases


 +7
`m aregon legislature amended drug laws to say that criminal charges could not be brought against
good faith use of peyote for religious purposes and
`m Congress passed R£R preventing all government actors from burdening religious practices by
generally applicable laws without compelling governmental justification
‘m mhese are examples of Gcalia͛s governmental protections from the legislature coming
true
‘m ¦owever, R£R was struck down as applied to state and local governmentbecause Court
said it exceeded Congress͛s power under the 14th mendment
xm Congress could not point to pattern of discriminatory conduct the law was
trying to prevent
xm moo sweeping; applied to all actors all levels of government
xm Ratcheted up standard of scrutiny to strict scrutiny; as attempt to overrule the
court
‘m R£R remains good law because Congress can impose this ͞disability͟ upon itself
`m Congress passed R½3IP
‘m If a state passes any zoning laws or prisons that deny free exercise exemptions it
requires a compelling interest on the condition of federal funding
 xm Congress can get around Gection 5, just like commerce clause, with the
Gpending power
`m mhey give the states money for land development and prisons; so
condition attached to the receipt of such that there must be exemptions
carved out of generally applicable laws
‘m Gouth Da ota v. Dole
xm Condition must be related to the spending power
xm Cannot be any other external constitutional bar
xm Cannot be too coercive
xm Õust promote the general welfare
xm Õust be unambiguous

* :!
 c 

$  +
   $  

( Court struck down program of allowing kids to attend religious
classes in public schools during school hours

‰  $
  
1"(Court sustained free exercise challenge to program permitting public schools
to release students during the day so they may leave school grounds and go to religious centers for
religious instruction or devotional exercises
`m Gtanding in establishment clause cases:
‘m Court has basically done away with requirement of a concrete injury
xm ardinarily cannot challenge government actions simply because you are a
taxpayer
`m
stablishment clause is exception to this
`m Court in recent years has limited this͙must be a direct congressional
expenditure
‘m Presidential expenditures and discretionary spending does not
count
xm But this only helps if taxpayer dollars are not being spent; this case taxpayer
dollars are really not being spent
`m Court has been vague why in these cases plaintiffs have standing
`m
xpressive harms
‘m ½ike white voters in racial gerrymandering cases
xm mhe message being sent is racial stereotyping
‘m ÚÚane theory is that court is recognizing an expressive harm or
stigmatic injury
`m ½ooking for violation of establishment clause
‘m uoes the law facilitate coercion?
xm ½ook at language of establishment clause- ͞Congress shall make no law
respecting an establishment of religion͟
`m uifference between Õccollum- looks similar besides fact not in the walls of the school but
appearances matter
‘m urutter and uratz
‘m Re-districting cases
‘m Gtate action cases (›ilmington Par ing case (diner in municipal parking structure makes
it look more like state actionë
 `m Court is also concerned that if they strike down a law like this they will not be neutrally
enforcing the establishment clause but be aggressively going against religion; i.e. not permitting
free exercise of religion
‘m @arrow interpretation of establishment clause in order to preserve free exercise of
religion

½
›+ 
"(
`m Court strikes down official, non-sectarian prayer at a middle school graduation ceremony
‘m Reference to a god but not any type of particular religion 
`m Court says the degree of school involvement here mad it clear that the prayers bore the imprint
of the Gate and thus put school-age children who objected in an untenable position 
`m Õajority relies on coercion for striking down the law
‘m Part of it is the age of the actors involved; minority much more susceptible to be
influenced or coerced into conforming to religion 
xm @ot being technically forced but ͞subtly forced͟ because of social expectations
and peer pressure bearing down upon students 
`m Concurrence:
‘m Proof of government coercion not necessary to prove
stablishment Clause violation but
it is sufficient
‘m ÚÚmhis is more a violation of government endorsement
`m Ganta £e Independent Gchool District- holding extended to football games




`m Gtudents cannot be required to say the pledge of allegiance (freedom of speechë
`m †uestion of still reciting it went to Gupreme Court and Court vacated on complicated standing
issue
‘m uid not want to decide and say unconstitutional but probably would have
xm Coercion and endorsement issues

)
  

 &;<D>(

`m uisplay of nativity scene among other holiday symbols is not a violation of the
stablishment
clause
`m an occasion, some advancement of religion will result from governmental action
‘m @o more an advancement or endorsement of religion than the Congressional and

xecutive recognition of the origins of the ¦oliday itself

 c
  c)B &;<D<(
`m Court held unconstitutional free-standing nativity scene on the main staircase of county
courthouse
`m ºustice a͛Conner- ͞no endorsement͟ analysis as general approach to
stablishment Clause
adjudication
‘m
stablishment Clause, at the very least, prohibits government from appearing to take a
position on questions of religious belief or from ͞making adherence to a religion
relevant in any way to a person͛s standing in the political community͟
‘m mhis is supposed to be objective test
xm ›hat would a reasonable person think of this display
xm Context is very important

)
*  





 
  '  !  4  '

`m ›hether the government has a secular legislative purpose;
`m Is the primary effect of the government action to advance or inhibit religion
`m ›ould the government action foster an excessive entanglement between government and
religion
mest was criticized that under ½emon even government accomodations of religion would be struck down
because that would not be a purely secular purpose
`m ½emon test never been completely overruled though
`m Go 3 kind of models of analysis
‘m Coercion
‘m
ndorsement
‘m ½emon test
`m ½ower courts now frequently use all 3 tests

"c c
  c)B
1
 4 &,--=(
/  uoes government-sponsored displays of 10 commandments in county courthouses violate the
establishment clause?
0 
 displays unconstitutional
2 
`m mhe case was heard at the same time as Van arden v. Perry, a similar case challenging a display
of the men Commandments at the mexas Gtate Capitol in ustin.
`m mhe Gupreme Court ruled on ºune 27, 2005, in a 5-4 decision, that the display is unconstitutional.
mhe similar case of Van arden v. Perry was handed down the same day with the opposite verdict
(also with a 5 to 4 decision



`m Purpose behind display is important because sends an unmistakable message of endorsement
‘m Really talking about first prong of ½emon test


`m merica is different; tradition of involving some amount of religion in society
‘m Religion is best way to foster morality
`m Õajority argues posting of ten commandments violates principle government cannot favor one
religion over another
‘m Valid when public assistance or aid is concerned or free exercise at issue but should be
much more limited with public acknowledgment of creator

?

  &,--=(

`m ½emon test not useful in dealing with passive monument mexas erected on Capitol grounds
`m 10 commandments statue is not unconstitutional among a host of other monuments and
markers commemorating mexas identity
‘m designed to demonstrate ͞ideals͟ not religious message
‘m moreover sat there for more than 40 years with no objection
`m Gcalia: nothing unconstitutional in a Gtate͛s favoring religion generally, honoring God through
public prayer and acknowledgment
`m Õodern day version of ½ynch and llegheny county- two similar things the court rules differently
on
`m uistinguishable from ÕcÕcreary
‘m @o obvious governmental effort to substantially promote religion
 `m uissent:
‘m Court cannot advocate moral ideals through a religious medium
‘m mhis is not about historic preservation or mere recognition of religion

:
 3 
: 
&;<>A(
 case involved reimbursement to parents for children attending parochial schools
0 
 1st mendment does not prohibit @º from spending tax-raised funds to pay bus fares of
parochial pupils as part of a general program under which it pays the fares of pupils attending public and
other schools
`m 1st amendment merely requires neutrality not adversity
`m state contributes no money to the schools; legislation as applied does no more than provide
general program to help parents get their children, regardless of religion, safely and
expeditiously to and from accredited schools
`m does not breach ͞wall͟ between church and state
2  Gince Everson court has accorded greater deference when aid is being contributed to individuals
rather than the parochial school itself
`m also court really relies on this principle of facial neutrality
Court relates this to provisions of other services (fire, police, etc.ë

*+ + + 
 + 
  


`m ½emon- reimbursement for salary, books, etc. is excessive entanglement
`m llen- lending books ok
`m Õee - lending instructional materials (maps etc.ë not permissible
`m Õitchell- overruled mee lending books and instructional materials is aK

$2  

 
+   + 
!      
     
 
%
`m However,
stablishment clause does not bar extension of ͞general state law benefits to all its
citizens without regard to their religious belief͟

"   
&;<D.(- Gupreme Court affirmed Õinnesota law which allowed taxpayers to deduct
certain expenses incurred in providing for the education of their children; does not violate

stablishment clause
`m ueduction available for educational expenses incurred by all parents including those whose
children attend public schools and non-sectarian private schools
`m mhis is a private choice
`m Õajority says they will not adopt a rule grounding constitutionality of a facially neutral law on
annual reports reciting the extent to which various classes of private citizens claimed benefits
under the law
`m If parents take this relief it is only because they are bearing a greater financial burden in
educating their children
‘m ny unequal effect can be regarded as a rough return for the benefits provided to the
state and all taxpayers through parents sending their children to parochial schools
`m uifference between Nyquist and this is that in Nyquist the re-imbursement applied only to non-
public schools

 tax-break alone will prompt some parents who otherwise won͛t send their children to Catholic
school to decide to send them to Catholic school
/ 
   neutrality, breadth of the recipient class, no risk of entanglement
‰
 
0 &,--,(
/  uoes pilot voucher program, which reimburses parents who send their children to adjacent public
schools outside of the district or any type of private school, violate the
stablishment Clause?
`m ½emon mest:
‘m Court says secular legislative purpose
xm
nacted for purpose of providing educational assistance to poor children in a
demonstrably failing public school system
‘m Primary effect is not to benefit religion (even though vast majority use vouchers to go to
religious schoolsë
xm @eutral
xm Private choice
xm Broad class of recipients
Court is concerned with adjudicating constitutionality of this case as it plays out in a particular locale
`m In Clevelend may be more religious schools so it looks less constitutional
‘m In another part of the country this may not be the case
`m Õere fact that 46% percent of participating schools are religious is not enough to show parents
do not have private choice
ÚÚÚmhis case shows how far government is willing to go as long as (1ë money flowing through choices of
individuals not based on skewed incentives to a (2ë broad class of recipients and (3ë law is facially neutral
`m Gkewed incentive would be more money to go to a religious school


`m ½evel the voucher is at makes it so students can only attend parochial schools; private schools
are usually much more money
‘m
ffect that overwhelming majority of the vouchers are being used at private religious
schools is partly by design

‘m averwhelming majority of children sent to private religious schools are not themselves
members of those schools

ÚÚ  
   ‰+ ( $
  !        
 
%  !
 
   

    
  

 

 
`m
ven if effect is not completely neutral