(VII) EQUAL PROTECTION

 Constitutional Provisions Concerning Equal Protection:

• Original Constitution had no provisions assuring equal protection of laws
• After the Civil War—the widespread discrimination against former slaves led to
the 14th Amendment, in part “No state shall…deny to any person w/in its
jurisdiction the equal protection of laws”
• Equal Protection provision was rarely used until the mid 1950s, where until then
Holmes referred to it as “the last resort of constitutional arguments”
o Brown v. Board of Education (1954) = modern era of equal protection
use--
 Since then, the Court has used it as a key provision for combating
invidious discrimination and for safeguarding fundamental rights
o Bolling v. Sharpe (1954): concerned the segregation of DC public schools
 Court held: equal protection applies to the federal government
through the Due Process Clause of the 5th Amendment
 5th Amendment is interpreted as including an implicit requirement
for equal protection—where discrimination can be so unjustifiable
as to be violative of due process
• Equal protection analysis is the same whether the challenge is to the federal gov.
under the 5th or to state and local actions under the 14th
 A Framework for Equal Protection Analysis:
• Usually, the gov. law draws a distinction among people—so, the basic questions
are:
o Is the government’s classification justified by a sufficient purpose?
o Can the gov. identify a sufficiently important objective for its
discrimination?
• What constitutes sufficient justification depends entirely on the type of
discrimination
 Equal Protection Roadmap
Question 1: WHAT IS THE CLASSIFICATION?
• Analysis BEGINS by identifying how the gov. is distinguishing among people
• Two basic ways of establishing classification:
o On the face of the law: where the law in its very terms draws a
distinction among people based on a particular characteristic
 E.g. - Law prohibits blacks from serving on juries = facially racial
o Facially neutral: but there is a discriminatory impact to the law or
discriminatory effects from its administration
 Law requiring police officers to be 150 + pounds = has a
discriminatory impact against women
 So, the women challenging the requirement must show the
gov’ts purpose was to discriminate based on gender

Question 2: WHAT IS THE APPROPRIATE LEVEL OF SCRUTINY?

• Once classification is identified, level of scrutiny must be identified
o Strict scrutiny: law is upheld if it is proven necessary to achieve a
compelling government purpose
 There must be a truly significant reason
 Must show that it cannot achieve its objective through any less
discriminatory alternative
 Gov. has burden of proof
 Law is upheld only if gov. shows that it is necessary to achieve a
compelling purpose
• E.g. - : discrimination based on race; national origin; aliens
 Applies if legislative classification effects suspect class or
fundamental right
• Largely rights protected in Bill of Rights
• Court has recognized a few extra rights the denial of equal
protection also violates the EP clause
 Test: Whether classification is necessary to promote a
compelling governmental interest
• Generally – If strict scrutiny has been applied, the
classification has been held unconstitutional, but does not
have to be fatal in fact
 How do we spot a suspect class?
• Caroline Products - Note 4
o Court speaks of prejudice of discrete and insular
minorities, groups that are small and cannot well
protect themselves through the democratic process
o Intermediate scrutiny: law is upheld if it is substantially related to an
important gov. purpose
 Test:
• Does not need to be compellingonly important
• Does not need to be necessaryonly a substantial
relationship to the end being sought
 Gov. has burden of proof
• E.g. - : Discrimination based on gender; non-marital
children; children of aliens
 Government has broad power with aliens – Court defers to
Congress on this issue
o Rational basis test: law is upheld if it is rationally related to a
legitimate government purpose
 Does not need to be compelling…or importantonly something
that the government legitimately may do
 Classification is valid if there is ANY conceivable basis upon
which the classification may relate to ANY legitimate general
interest of the government
• Areas of social/economic policy, a classification that
neither proceeds long suspect lines, nor infringes
 fundamental constitutional rights must be upheld against
challenge if there is any reasonably conceivable state of
facts which can provide for the classification
 Challenger has burden of proof
 Enormously deferential to the gov.
 Most legislation not affecting governmental rights involves the
rational basis
• Criteria to decide which level to use:
o Immutable characteristics—race, national origin, gender (but not other
parts of Caroline Products Test), marital status of one’s parents—warrant
heightened scrutiny
 Why? Can’t penalize someone for characteristics they did not
choose and those they cannot change
 What about age, intelligence, appearance, sexual preference,
height? Not good indicators under this analysis
o Ability of the group to protect self through political process
 The less likely it is for a group to protect itself in the democratic
process, the higher the scrutiny
o History of discrimination against the group
 Why? Considers the likelihood that the classification reflects
prejudice as opposed to a permissible gov. purpose
o Discrete and insular group
 Identifiable but small
• Marshall and Stevens argue for a sliding scale rather than 3 levels: courts should
consider factors such as constitutional and social importance of the interests
adversely affected
o 3 levels unduly limit the scope of judicial analysis
o Sliding scale would lead to more candid discussion of the competing
interests and provide for better decision making

Question 3: DOES THE GOVERNMENT ACTION MEET THE LEVEL OF SCRUTINY?

• To determine the constitutionalityCourt looks evaluates both the law’s ends and
its means
o Strict scrutiny: end must be compelling
o Intermediate scrutiny: end must be important
o Rational basis test: there just has to be a legitimate purpose
• How to look at the relationship of the means of the law to the endlook to the
degree to which a law is underinclusive; overinclusive; or both
o Underinclusive: if it does not apply to individuals who are similar to those
to whom the law applies
o Overinclusive: applies to those who need not be included in order for the
gov. to achieve its purpose—unnecessarily applies to a group of people
o Both: evacuating Japanese-Americans during WWII—underinclusive b/c
it doesn’t identify any other races who might pose the same danger-AND-
overinclusive b/c few if any Japanese-Americans posed a threat
Rational Basis
• Most minimal level of scrutiny  VERY BROAD
• Basic requirement: law meets this test if it is rationally related to a legitimate
government purpose
• New Orleans v. Dukes (1976): Equal Protection Clause is deemed satisfied so
long as the classification is rationally related to a legitimate state interest
• Strong presumption in favor of the law—Courts are extremely deferential to
the government
• Law will be upheld if any legitimate purpose can be conceived for the law—even
if it was not the govt’s actual purpose
• Is this appropriate deference to the legislative process or undue judicial
abdication? Since 1937, the Court will defer to gov. economic and social
regulations unless they infringe on a fundamental right or discriminate against a
group that warrants special judicial protection
• Two questions to be asked:
o WHAT CONSTITUTES A LEGITIMATE PURPOSE?
 Gov. has a legitimate purpose if it advances a traditional
POLICE PURPOSEprotecting safety, public health or
public morals are just a few examples
• E.g. - New Orleans v. Dukes (1976):
o the Court upheld an ordinance that banned all
pushcart food vendors in the French Quarter, except
those who had continuously operated there for more
than 8 years
o Court accepted city’s claim that the vendors
disturbed the tourists and interfered with their
enjoyment of the charm and beauty of the city
o Distinction with the vendors was legitimate because
the city could reasonably decide that newer
businesses were less likely to have built up
substantial reliance interests in continued operation
• Romer v. Evans (1996) —Court found that a government
purpose was NOT legitimate under the rational basis test…
very rare (virtually only rational basis test that fails)
o Court found that a voter initiative in CO that
repealed laws prohibiting discrimination based on
sexual orientation and that pecluded the adopted on
new protections failed rational basis review
o Amendment 2 FAILS for two reasons—1) It
imposes a broad and undifferentiated disability on a
single named group and 2) It is so broad as to call
into doubt any of the justifications proffered in its
defense
 o “Amendment 2 classifies homosexuals not to
further a proper legislative end but to make them
unequal to everyone else. This Colorado cannot
do.”
o MUST IT BE THE ACTUAL PURPOSE, OR IS A CONCEIVABLE
PURPOSE ENOUGH?
 USUALLY any conceivable legitimate purpose is enough—
even if not the gov’s actual purpose
 The actual purpose is irrelevant and the law must be upheld “if any
state of facts reasonably may be conceived to justify its
discrimination”
• RR Retirement Board v. Fritz (1980)
o Congress tried to prevent retired railroad workers
from claiming both social security and their railroad
pension, but it created an inequitable result for
railroad workers with varying employment lengths
o HOLD - The rational basis test requires only that
there be plausible reasons for the challenged
legislation, regardless of the actual reasons behind
the law
o Dissent (Brennan) - The law should be invalidated
because it failed to serve any purpose that Congress
actually intended
• FCC v. Beech (1993)
o Court reaffirmed that any conceivable legislative
purpose is sufficient and even went so far as to say
that: “those attacking the rationality of the
legislative classification have the burden to negate
every conceivable basis which might support it”
• The Requirement for a “Reasonable Relationship”
o Laws will be upheld unless the government’s action is clearly wrong, a
display or arbitrary power, not an exercise of judgment.”
o As a result, laws that are both over and under inclusive will be allowed
• TOLERANCE FOR UNDERINCLUSIVENESS UNDER RATIONAL BASIS
REVIEW
o Laws are underinclusive when they do not regulate all who are similarly
situated
o **Raises the concern that the gov. has enacted a law that targets a
particular politically powerless group or that exempts those with more
political clout**
o Railway Express Agency v. New York (1949)
 Court upheld ordinance that banned all advertising on the sides of
trucks unless the ad was for the business of the truck’s owner
  It was argued that this distinction was irrational as a way to
achieve a government’s purpose of decreasing distractions/
promoting safety
 Where the government chooses to regulate a particular
activity, the regulation will not be held invalid simply because
it is not applicable to every form of that activity
 Concurrence (Jackson) Because we are more likely to find
arbitrariness in the regulation of a few, I am more receptive to
attacks on local ordinances grounded in equal protection than
challenges based on due process
 Jackson does not think that difference in treatment under law
should be approved because of difference unrelated to the
legislative purpose
 The Equal Protection Clause ceases to fulfill its purpose if it can be
avoided by any conceivable difference that can be pointed out
between those subject to regulation and those free from it
• TOLERANCE FOR OVERINCLUSIVENESS UNDER RATIONAL BASIS
REVIEW
o A law is overinclusive if it regulates individuals who are not similarly
situated, that is, if it covers more people than it needs to in order to
accomplish its purpose.
o Overinclusive laws are unfair to those who are unnecessarily regulated and
they risk burdening a politically powerless group which would have been
spared if it had enough clout to compel normal attention to the relevant
costs and benefits
 NYC Transit Authority v. Beazer (1997)
• The NY Transit Authority enacted a policy which
prohibited the hiring of narcotics users, which was read to
include those undergoing methadone treatment for heroin
addiction evidence suggests that meth use helps kick
heroin and those in meth programs are free from illicit drug
use, thus the exclusion of all meth addicts was substantially
overinclusive relative to the goal of safety (the vast
majority of those in meth programs pose no safety threat)
• The SC held that the policy that postponed employment
eligibility until completion of the methadone program was
rational.
• TWO CASES WHERE LAWS ARE DEEMED ARBITRARY AND
UNREASONABLE (and fail rational basis review)
o US Dept. of Agriculture v. Moreno (1973)
 In 1971, Congress amended §3(e) of the Food Stamp Act to
provide that eligible households did not include groups of
unrelated persons.
  Since eligibility for the program was based on households rather
than individuals, a number of people became ineligible for the
program bc they happened to live with unrelated persons.
 For example, Jacinta Moreno (P), a 56 yr old diabetic, became
ineligible bc she lived with an unrelated person who helped care
for her and with whom Moreno shared living expenses.
 Holding - The Court held that even under a rational basis scrutiny,
a challenged classification must rationally further some legitimate
governmental purpose.
• The stated policy of the Food Stamp Act is to provide for
the nutritional requirement of needier segments of society.
• The fact that unrelated people live as one economic unit is
in no way related to this purpose.
• Thus, for the classification to withstand scrutiny it must be
related to some other purpose of the statute.
• However, the legislative history of the amendment suggests
that it was Congress’ intent to prevent hippy communes
from being provided food stamps – this is NOT a legitimate
government interest, so it fails under rational basis
o City of Cleburne v. Cleburne Living Center (1985)
 Cleburne Living Center (P) applied to the city of Cleburne, TX for
a special use permit to operate a group home for the mentally
retarded. After the City Council (D) held a public hearing on the
application, it voted 3 to 1 to deny the permit.
 The Court declared unconstitutional the city ordinance that
required a special permit for the operation of a group home for the
mentally disabled.
 The Court first decides that mental retards should not be a quasi
suspect class and that laws regarding mentally retarded persons
should therefore be subjected to the rational basis test :
• 1) States have legitimate interest in dealing with them
because they require special needs and have a reduced
ability to function in everyday world
• 2) Recent legislation, both state and federal, has shown
greater sympathy for the plight of this group, obviating the
need for enhanced judicial scrutiny.
• 3) They are not a politically powerless group because
legislators have responded to their needs
• 4) If the mentally retarded were deemed a quasi-suspect
class, such a determination would also have to apply to
groups such as the disabled or infirm.
 Nevertheless, there simply is no rational basis for believing that
the CLC’s proposed home would threaten the city’s legitimate
interests.
 • Unsubstantiated fears or negative attitudes aimed at
some groups are not permissible bases for classifying
members of that group separate from the general
population.
 **This case serves to substantiate the notion that the levels of
review are really more on a sliding scale than in distinct
categories.**

CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN

1. Race Discrimination and Slavery before the 13th and 14th Amendments
o Dred Scott v. Sandford (1856)
 Dred Scott, a slave owned in Missouri by John Emerson, was taken
into Illinois, a free stateAfter Emerson died, his estate was
administered by John Sandford, a resident of New York
 Scott sued Sandford in federal court, basing jx on diversity of
citizenship and claimed that his residence in Illinois made him a
free person
 Holding: The SC held here that slaves were NOT citizens and thus
could not invoke federal court diversity of citizenship jurisdiction
 The court goes on and declared the Missouri Compromise
UNCONSTITUTIONAL ruling that Congress could NOT grant
citizenship to slaves or their descendentsreasoning that this
would be a taking of property from slave owners w/out due
process or just compensation
 The act of taking away this property is NOT warranted by the
constitution and is therefore INVALID
 Scot not only repressed the possibilities of the citizenship for
blacks but it also raised alarming questions about the future of
slavery
The Post Civil War Amendments
o Congress enacted and the states ratified the 13th Amendment, which
abolished slavery after the Civil War
o But because southern states still discriminated against Blacks, Congress
ratified the 14th Amendment in 1868 –even though the 14th amendment
was originally intended to only help Blacks, it was interpreted to protect
all American citizens
 §1 of the 14th Amendment overrules Dred Scott by declaring that
all persons “born or naturalized in the US are citizens of the US
and of the state where they reside”
 Also, § 1 guarantees P&I and that no state shall deprive any person
equal protection under the law.
2. Strict Scrutiny for Discrimination Based on Race and National Origin
o Racial classifications will be allowed only if the government can meet the
heavy burden of demonstrating that the discrimination is necessary to
achieve a compelling government purpose.
 o The government must show both:
 An extremely important reason to discriminate; and
 That the goals desired could not have been achieved by any less
discriminatory alternative
3. Proving the Existence of a Race of National Origin Classification
o 2 ways of showing existence of racial or national origin classification:
A) Classification on the Face of the Law
B) Facially Neutral, but discriminatory impact/administration

A) Race and National Origin Classification on the Face of the Law

o 3 types of these laws:
1. Race-specific classifications that disadvantage racial
minorities
• Strauder v. West Virginia (1879)
o Court found unconstitutional law which only
let white men serve as jurors because it expressly
singled out disadvantaged blacks
• Korematsu v. United States (1944)
o After bombing of Pearl Harbor, military
commissioned order which excluded Japanese
Americans from certain areas of the West Coast -
the government reasoned that national security
allowed them to do this.
o Korematsu, Japenese American born citizen,
remained in his home and was convicted. He
argued that the order was unconstitutional as
violative of his 14th Amendment right of equal
protection
o Holding: While all legal restrictions which
curtail the civil rights of a single racial group are
immediately suspect; all such restrictions are not
unconstitutional. Courts must therefore subject
them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of
such restrictions; racial antagonism never can.
o Example of both underinclusiveness and
overinclusiveness
2. Racial Classifications burdening both whites and
minorities
• Loving v. Virginia (1967)
o Court declared unconstitutional a state’s
miscegenation statute that made it a crime for a
white person to marry outside the Caucasian race
(these apply to both whites and minorities).
 o Court shut down state’s argument that the law
was permissible b/c it burdened both whites and
blacks
o If you are going to argue no compelling state
interest, you have to demonstrate there is
probably an equal protection violation
• Palmore v. Sidoti (1984)
o Π and Δ were divorced and white. Sidoti sought
custody of the child, citing a changed condition,
which was that Palmori was living with a black
man, who she eventually married.
o The trial court held that the mother was putting her
needs over that of the child and that a racially mixed
household would not be in the child’s best interests
because of possible taunting at school
o The Court held that the Constitution cannot control
such prejudices but neither can it tolerate them.
 Private biases may be outside the reach of
the law, but the law cannot, directly or
indirectly, give them effect.
 Although racial prejudice is a reality, and its
effects are far reaching, courts cannot consider
the effects of a biracial upbringing when making
a custody assessment.
3. Laws requiring Separation of the Races
• As reconstruction ended, many states, especially in the
South adopted laws that discriminated against Blacks.
Every southern states enacted statutes that required
separation of the races in virtually every aspect of life
called Jim Crow Laws.
• Plessy v. Ferguson (1896)
o A Louisiana law adopted in 1890 required railroad
companies to provide separate but equal
accommodations for whites and blacks; the law
required there to be separate coaches, divided by a
partition, for each race. In 1892, Louisiana
prosecuted Homer Plessy, a man who was 7/8 white
for refusing to leave the railroad car assigned to
whites.
o The Supreme Court upheld laws that mandated
that blacks and whites use separate but equal
facilities.
 The 14th Amendment of the United States
Constitution (Constitution) was introduced to
ensure that whites and blacks receive equal
treatment. If the civil and political rights of both
 races are equal, one cannot be inferior to the
other. If one race is socially inferior, the
Constitution cannot rectify this.
o Dissent (Harlan) - This legislation is inconsistent
with equality of rights. It is clear that the motive of
this statute is to keep blacks out of the coaches
occupied by the whites. By requiring the races to
stay separate, the legislation is depriving citizens of
their right to choose.
o Morris - Even if you can accept that separate, but
equal is constitutional; most everyone can agree that
the facilities were not equal
• Brown v. Board of Ed. (1954)
o Class action suit by black school children of 4
different states who wanted to attend school with
white children – at this point, all public schools
were segregated and though to be separate but
equal.
o The Chief Justice said that the constitutionality of
segregation in education could not be resolved
based on the framers intent – the historical sources
of the 14th amendment “at best …. Are
inconclusive” and that the enormous changes in the
nature of education made history of little use in
resolving the issue.
o The Court did not discuss the equality, or lack
thereof, of the facilities in question, but rather the
effect of segregation in public education on the
children and held that separation based on race
alone creates a social inferiority of minority
children and therefore impairs their educational
growth.
o In the field of public education, the doctrine of
separate but equal has no place.
o Achieved by Brown:
 Schools were desegregated in border
states (Del, MD)
 The pre concern about Civil Rights
led to new civil rights law in 1957 –
gave Justice Dept. power in certain areas
 Opinion was influential in
desensitizing some of the white fervor
 Made possible black white liberal
cooperation

B) Facially Neutral Laws with a Discriminatory Impact or with

Discriminatory Administration
o When laws that are racially FACE NEUTRAL, but
ADMINISTERED in a manner that discriminates against
minorities–or-has a disproportionate impact against them There
must be proof of a discriminatory purpose for such laws to be
treated as racial or national origin classifications
 Washington v. Davis (1976)
• Applicants for the Wash DC police dept.
were required to take a test, which required a grade
of at least 40/80. Statistics revealed that blacks
failed the test much more often that whites.
• The Court held that proof of a
discriminatory impact is insufficient by itself to
show the existence of a racial classification - Equal
protection requires proof of a discriminatory
purpose before a facially neutral law will
constitute a racial classification
• As a result, a racially neutral qualification
for employment cannot be held racially
discriminatory simply because a “greater proportion
of Negroes fail to qualify than members of other
racial or ethnic groups
o Unlike the holding in Washington, civil rights statutes can
allow violations to be proven based on discriminatory impact
without evidence of a discriminatory purpose
o Title VII of Civil Rights Act of 1964-allows employment
discrimination to be established by proof of discriminatory
impact
o In McCleskey, the Court uses Washington to reject equal
protection challenge to a facially neutral law that has a racially
discriminatory impact concerning the administration of the death
penalty…
 McClesky v. Kemp (1987)
• Court held that proof of discriminatory
impact in the administration of the death penalty
was insufficient to show and equal protection
violation
• McClesky was a black defendant on trial for
armed robbery and murder. He argued that Georgia
capital punishment statute violates the Equal
Protection Clause of the 14th Amendment—that the
Baldus study shows he was discriminated against
because of his race –and-race of the victim
• Court held that for a defendant to
demonstrate an equal protection violation, he must
 prove that the decision makers in his case acted
with a discriminatory purpose and that since Δ
could not prove that the jury or prosecutor were
biased, no equal protection violation ensued.
o Current law—the gov. does not have to offer a racially
neutral explanation for the effects, and do not need to do
anything more than meet a rational basis test
 Justification—
• Equal protection Clause is concerned w/
stopping discriminatory acts, not in bringing about
equal results-and—
• Proving discriminatory purpose is very
difficult—so many laws that have both a
discriminatory purpose and effect might be upheld
simply because of the evidentiary problems in
requiring that kind of proof
• Based on a history of discrimination—there
can be a presumption that many laws with a
discriminatory impact likely were motivated by a
discriminatory purpose
• End result, not means - Also, it’s been
argued that equal protection should be concerned w/
results of gov. actions and not just their underlying
motivations
o Bottom line: should a discriminatory purpose be required,
or is a discriminatory impact sufficient to prove an equal protection
violation?
 City of Mobile v. Bolden (1980)
• System of election used in thousands of
districts in the United States says that the 3 member
city council is voted in by a majority. Black voters
claim that this method has a racially discriminatory
effect.
• Court will hold violations of 14th
Amendment if purpose were invidiously to
minimize or cancel out the voting potential of
ethnic/racial minorities
• Furthermore, action by a state that is racially
neutral on its face violates the 15th Amendment only
if motivated by a discriminatory purpose
o In following 2 cases, the result was so inequitable that the
Court implied an invidious purpose:
 Gomillion v. Lightfoot
• Whites were clustered in center of city in
Tuskeegee, AL and blacks were on the outskirts.
 • The city limits were redrawn to include
basically only the whites. The blacks would be part
of the larger county, which was substantially white.
As a result, the blacks’ vote was subsumed into the
white county
• Purpose was so obvious by the impact that
the Court declared the redistricting unconstitutional
 Yick Wo v. Hopkins
• A lot of Chinese operated laundries in San
Francisco in wooden buildings, rather than stone.
But there was a law which made provision for a
license exception if you were in a wooden building.
• Inspections occurred – every white that
owned laundry in wooden building got permits, but
most Chinese that owned laundries in wooden
buildings were denied
• Court said equal protection had been
violated
O PROOF OF DISCRIMINATORY PURPOSE + EFFECT
 Palmer v. Thompson (1971)
• Court found that Equal Protection was not
violated when a city closed down its previously
segregated swimming pool rather than allow it to be
integrated.
• A law will not be struck down just because
of the bad motives of its supporters
• Palmer suggests that discriminatory
purpose alone is insufficient to prove that a
facially neutral law constitutes a race or national
origin classification
• Together with Washington v. Davis, and its
progeny, it appears that a facially neutral law will
be regarded as creating a race, or national origin
classification only if there is proof of BOTH a
discriminatory impact and a discriminatory purpose.
o HOW IS A DISCRIMINATORY PURPOSE PROVEN?
 Requires proof that the gov’t desired to
discriminate; it is not enough to prove that the gov’t took
an action with knowledge that it would have discriminatory
consequences.
 Personnel Admin. Of MA v. Feeney (1979)
• Law favored veterans over non veterans; not
men over women – by chance that 98% of veterans
are men
 • There are two major ways to prove gender
classification:
o On the face of the law; or
o If a law if facially gender neutral,
proving a gender classification requires
demonstrating that there is both a
discriminatory impact to the law and a
discriminatory purpose behind it.
• Since there was no discriminatory purpose
behind the law, it was not unconstitutional.
 Village of Arlington Heights v. Metropolitan
Housing Development Corp. (1977)
• Three ways in which discriminatory purpose
can be proven:
o The impact of the law may be so
clearly discriminatory as to allow no other
explanation that that it was adopted for
impermissible purposes
o Through the history surrounding the
government’s action
o Through the legislative or
administrative history of the law
o DISCRIMINATORY USE OF PEREMPTORY
CHALLENGES
 Batson v. Kentucky
• 1) The defendant must set forth a prima
facia case of discrimination by the prosecutor.
• 2) The burden then shifts to the prosecutor
to offer a race-neutral explanation for the
peremptory challenges.
• 3) The trial court must decide whether the
race-neutral explanation is persuasive or whether
the defendant has established purposeful
discrimination.
 JEB v. Alabama
• The court emphasized that Batson only
would apply to types of discrimination that would
receive heightened scrutiny under equal protection
analysis. (race & gender)
REMEDIES: The Problem of School Segregation
o If a court finds an equal protection violation, it must then find a remedy,
for example invalidating the discriminatory law
o In some cases the court goes further and fashions an injunction – which
would be an order prohibiting offending conduct
 Brown v. Board of Ed. II (1955)
 •
Supreme Court left the matter of enforcement to the district
court which was much closer to the practical problems of
desegregation than the Supreme Court was.
• Δs can get extra time to remedy segregation if they prove
that it can only be accomplished over a period of time
o JUDICIAL POWER TO IMPOSE REMEDIES IN SCHOOL
DESEGREGATON CASES
 Swann v. Charlotte-Mecklenburg Board of Ed. (1971)
• Court said that district courts have broad authority in
formulating remedies in desegregation cases
• Court stated than mathematical ratios such as comparisons
of the race in particular schools with the race of overall
district was a useful starting point
• Allowed bussing of students long distances to achieve
desegregation
 Milliken v. Bradley (1974)
• Remedies for desegregation were only needed when there
was intentional desegregation
o Segregation in Detroit was simply due to housing
patterns
• Black letter law - Plurality opinion – scope of remedy was
to be determined by the extent of the violation
o As a result, you could not have court ordered
interdistrict mixing as a remedy, when there had not
been a specific violation on the part of the suburb
 Board of Ed of Oklahoma City v. Dowell (1991)
• 1) These desegregation injunctions are not intended to
operate forever (unlike anti-trust injunctions)
• 2) Federal supervision of schools was intended as a temp
measure rather than being a remedy for past discrimination
• 3) Dissolving a desegregation decree after the local
authorities operated it in compliance with it for a
reasonable time, recognizes the necessity of concern for
important values of global control of the public school
system.
 Freeman v. Pitts
• Decrease control in incremental stages before full
compliance has been achieved in every area of operation
o E.g. – student body was desegregated, but teaching
body was not; Court said decree could end for
student placement, but not for teaching
 Long run significance of Brown
What did it achieve?
• desegregation of schools in border states
 o generally dormant Eisenhower administration
actually decided to push some civil rights laws
through
• Rising expectation of African Americans
• Greatly influenced con law – other things happened
because of newly found race consciousness of Warren court
AFFIRMATIVE ACTION
o Constitution is silent on it
o Title VI of 1964 Civil Rights Act, stating:
 No person in US based on race, color, national origin, be excluded
from participation in, be denied benefits of, or be subject to
discrimination of any program or activity receiving any federal
financial funding.
o University of California v. Bakke
 Involved challenge to Cal’s Davis Medical Program, which set
aside 16 slots out of 100 for minorities.
 4 votes for Bakke; 4 votes for School - proper level of
scrutiny was intermediary because it was benevolent discrimination for minorities
based on years of discrimination
 J. Powell’s deciding vote – same standard whether you
used 1964 act  must be strict scrutiny, and Davis program failed because racial
quotas were unconstitutional. However, diversity is compelling governmental
interest and properly tailored programs could be constitutional
o EMERGENCE OF STRICT SCRUTINY AS TEST
 Richmind v. Croson
• Court held that strict scrutiny should be used in evaluating
state and local affirmative action programs
 Adarand v. Pena
• Adarand - White owned construction firm who
supplied guardrails to contractor for federal highway. Despite being the lowest
bidder, he was rejected in favor of a minority owned subcontractor b/c set aside
program was in place which gave more money to contractors who chose minority
owned subcontractors.
• Court decided:
o 1) Strict scrutiny was used
o 2) There was different standard for federal
and state set aside programs, but the Court decided they had to be dealt with in the
same way.
o Strict scrutiny is strict in theory but fatal in
fact. Meaning some affirmative action programs would not survive.
 Grutter v. Bollinger (2003)
• U. Michigan Law School case
• Because the 14th amendment protects persons, not groups
all governmental action based on race—a group
classification long recognized as in most circumstances
 irrelevant and therefore prohibited—should be subjected to
detailed judicial inquiry to ensure that the personal right to
equal protection of the laws has not been infringed
• Even in the limited circumstances when drawing racial
distinctions is permissible to further a compelling state
interest, government is still constrained in how it may
pursue that end
o The means chosen to accomplish the government’s
asserted purpose must be specifically and narrowly
framed to accomplish that purpose
• Quota system is not narrowly tailored
o To be narrowly tailored, a race conscious
admissions program must not unduly burden
individuals who are not members of the favored
racial and ethnic groups
• Court agrees that this is compelling state interest – diversity
inside and outside the classroom stretch as a state interest
possibly to raise the profile of the University
 Gratz v. Bollinger (2003)
• All racial classifications reviewable under the Equal
Protection Clause must be strictly scrutinized
GENDER CLASSIFICATIONS
o Level of Scrutiny (RBStrictIntermediate)
 Reed v. Reed
• Court applied rational basis test and for the first time
invalidated gender classification
 Frontiero v. Richardson (1973)
• Applies strict scrutiny because of historical discrimination, but
plurality opinion
 Craig v. Boren (1976)
• Oklahoma statute creating a difference in age to buy non-
intoxication beer
• The Court applied intermediate scrutiny and said that the
gender-based classification must serve an important
government objective and be substantially related to the
achievement of such objective.
 US v. Virginia
• VMI excluded women historically
• Parties who seek to defend gender-based government action
must demonstrate an exceedingly persuasive justification for
that action by intermediate scrutiny test  none shown here
• State arguments that have failed:
1) the classifications serves no objective but efficiency
2) where its purpose is easing administration, where it is
possible to rationalize it, but the rationalization is based on
 interests that are not legitimate
2) where interest by the state is not what legislature had in
mind
o Proving the existence of a Gender Classification
 2 major ways of proving a gender discrimination (identical to racial
classifications)
• Laws that are facially gender discriminatory
o The very terms of the law draw a distinction among
people based on gender
• Laws that are facially gender neutral
o requires demonstrating that there is both a
discriminatory impact to the law and a discriminatory
purpose
 When is it discriminatory?
• Geduldig v. Aiello (1974)
o Court held that it was not a denial of EP for state’s
disability insurance system to exclude pregnancy-
ralated disabiolities, but included disabilities affecting
only men.
o CA’s disability law provided payments for disabilities
for more than 8 days, but less than 26 weeks, but denied
coverage for pregnancy.
o The exclusion of pregnancy met rational basis review
because the state has a legitimate interest in maintaining
the fiscal integrity of its program and making choices in
allocating its funds
 Gender Classifications based on role stereotypes
• Orr v. Orr (1979)
o Laws of the State of Alabama would require men in
some cases to pay alimony on divorce, but women were
in no case required to pay alimony.
o Court held laws unconstitutional because a gender-
neutral classification serves the State's purposes just as
well as a gender-based classification. As a result the
State cannot be permitted to classify on the basis of sex
o To withstand scrutiny under the Equal Protection
Clause, classifications by gender must serve important
governmental objective and must be substantially
related to achievement of those objectives
• Mississippi University v. Hogan (1982)
o Court used intermediate scrutiny to hold that female
only nursing school was unconstitutional because it did
not advance an important state interest.
• Michael M. v. Superior Court of Sonoma County (1981)
 o The CA statutory rape law which only punishes males
is sufficiently related to the state’s objectives to pass
constitutional muster
 Women bear more risks from sex
• Rostker v. Goldberg (1981)
o Challenge to the Selective Service Act
o The government’s interest in raising and supporting
armies is an important governmental interest
o Because women are not eligible for combat, they are
not similarly situated and therefore Congress’s decision
to authorize the registration of only men does not
violate the Due Process Clause
 Gender Classifications Benefiting Women as a Remedy
• Califano v. Webster (1977)
o Women could earn more from Social Security
o Court held classifications by gender must serve
important governmental objectives and must be
substantially related to achievement of those objectives
(Craig v. Boren)
o Reduction of the disparity in economic conditions
between men and women caused by the long history of
discrimination against women has been recognized as
an important governmental objective
ALIENAGE CLASSIFICATIONS
o Introduction
 Refer to discrimination against non-citizens
 14th amendment covers alienage and includes illegal aliens…in theory,
everybody.
• 14th amendment explicitly states no “person” shall be denied
equal protection of the laws.
 Yick Wo v. Hopkins
• 14th amendment is not confined to protection of citizens…
protects all persons within the territorial jurisdiction
 Premeption – local state laws are preempted by federal alienage law
o Strict Scrutiny as General Rule
 Graham v. Richardson (1971)
• AZ and PA statutes that limit or restricts the rights of non-
citizens to receive welfare benefits
• Court held classifications based on alienage are inherently
suspect and subject to close judicial scrutiny
• A state may not preserve the fiscal integrity of its program by
invidious distinctions between classes of its citizens
o Since an alien as well as a citizen is a person for equal
protection purposes, a concern for fiscal integrity is no
 more compelling a justification for the questioned
classification in these cases than it was in Shapiro
• Using classifications under Caroline Products, aliens can be
viewed as discreet and insular class (even though there are a lot
of them)
o Alienage Classifications Related to Self-Government and the Democratic
Process
 On a whole strict scrutiny is used for classifying aliens - but 2
exceptions:
• Congressionally approved discrimination
• When it relates to democratic and self governance
 Foley v. Connelie (1978)
• Court used rational basis test to uphold state law that required
citizenship for person to be police officer
• Requiring strict scrutiny for every statutory exclusion of aliens
would “obliterate all the distinctions between citizens and
aliens, and thus depreciate the historic values of citizenship”
• States have the power to exclude aliens from participation in its
democratic political institutions, part of the sovereign’s
obligation to preserve the basic conception of a political
community.
o I.e. - right to vote, run for office, participate in jury
serviceb/c they are at the heart of our political
institutions
 Ambach v. Norwick (1979)
• Court upheld state law that required citizenship for person to be
an elementary or secondary school teacher, following
reasoning of Foley
o Congressionally Approved Discrimination
 Another exception to the usual rule of strict scrutiny is where
discrimination is a result of federal law
 The federal government’s plenary power to control immigration
requires judicial deference and that therefore only rational basis
review is used if Congress has created the alienage classification or
if it is the result of a presidential order.
 Matthews v. Diaz
• Federal statute that denied Medicaid benefits to aliens unless
they have been admitted for permanent residence and have
resided for at least 5 years in the US.
 Hampton v. Wang
• Supreme Court clarified the Matthews decision and articulated
a distinction between decisions by Congress or the President
and those by federal administrative agencies
 Congress/President RATIONAL BASIS
 Admin. Agencies - STRICT SCRUTINY
 o Undocumented Aliens and Equal Protection
 Plyler v. Doe (1982)
• Declared unconstitutional a Texas law that provided a free
public education for children of citizens and documented
aliens, but not undocumented aliens.
• Appeared to be intermediate scrutiny
o Undocumented aliens cannot be treated as a suspect
class because their presence in this country is not a
constitutional irrelevancy; nor is education a
fundamental right.
 More than rational basis
DISCRIMINATION AGAINST NON MARITAL CHILDREN
o Intermediate scrutiny is applied in evaluating laws that discriminate against
non-marital children
 Where some illegitimate children are treated differently from other
illegitimate children, the court has applied a case-by-case analysis
o Two major principles emerge from the court:
 1) Laws that provide a benefit to all marital children, but no non-
marital children always are declared unconstitutional
 2) Laws that provide a benefit to some non-marital children, while
denying the benefit to other non-marital children are evaluated on a
case-by-case basis under intermediate scrutiny
o Levy v. Louisiana
 Declared unconstitutional a state law that prevented non-marital
children from suing for wrongful death of mother
OTHER TYPES OF DISCRIMINATION – RATIONAL BASIS REVIEW
o Age Classifications
 Rational basis review
o Discrimination Based on Disability
 Only rational basis review should be used for discrimination based on
disability
 Americans with Disabilities Act offers broader protections than the
14th Amendment
o Wealth Discrimination
 Rational Basis Review
o Discrimination Based on Sexual Orientation
 Romer v. Evans
o Colorado Constitutional Amendment eliminating statutes
protecting homosexuals from discrimination
o Rational Basis review
o Animus against gays and lesbians even when presented
as a purported moral basis for a law is not sufficient to
meet the rational basis test.
VIII) FUNDAMENTAL RIGHTS UNDER DUE PROCESS AND EQUAL
PROTECTION
o Introduction
 The government can only infringe on a fundamental right if it is
necessary to achieve a compelling purpose
 Difference between due process and equal protection
• How the constitutional arguments are phrased
o If a right is safeguarded under due process, the
constitutional issue is whether the government’s interference is
justified by a sufficient purpose
o If the right is protected under equal protection, the issue
is whether the government’s discrimination as to who can
exercise the right is justified by a sufficient purpose
 If the law denies the right to everyone, due
process is best grounds
 If law denies right to some, while allowing
others, the discrimination can be challenged as
offending either clause
th
 The 9 Amendment
• “the enumeration in the Constitution of certain rights, shall not
be construed to disparage others retained by the people”
o Generally seen, not as a source of rights in that rights
are protected under it, rather as a textual justification for the
courts to protect non-textual rights, such as the right to privacy
o The Framework for Analyzing Fundamental Rights
 4 questions
• Is there a fundamental right?
o If a right is fundamental, the government usually will
be able to prevail only if it meets strict scrutiny.
o But if the right is not fundamental, generally only the
rational basis test is applied
 Articulated in Carolene Products- the judiciary
will defer to the legislature unless there is
discrimination against a discrete and insular minority or
infringement of a fundamental right
• Is the Constitutional Right Infringed?
o In evaluating whether there is a violation of a right, the
court considers the directness and substantiality of the
interference
o Unconstitutional conditions doctrine- the principle
that the government infringes upon a right if it demands that a
person forgo a constitutional right in order to receive a
government benefit
• Is There Sufficient Justification for the Government’s
Infringement of a Right?
 o If a right is deemed fundamental, the government must
present a compelling interest to justify an infringement
 If a law is not fundamental, only a legitimate
purpose is required for the law to be sustained
• Is the Means Sufficiently Related to the Purpose?
o Under strict scrutiny, it is not enough for the
government to prove a compelling purpose behind a law; the
government also must show that the law is necessary to achieve
the objective.
o Constitutional Protection for Family Autonomy
 The Right to Marry
• Loving v. Virginia (1967)
o The Court first recognized the right to marry as
fundamental under the liberty of due process clause
 The freedom to marry or not marry a person of
another race resides with the individual and cannot be
infringed by the state
 To deprive people of these rights is without due
process of the law
• Zablocki v. Redhail (1978)
o Facts: Wisco law prevented a person from getting
marriage license if they failed to pay child support.
o Hold: Court held that this law directly and substantially
interferes with the right to marry
 When a statutory classification significantly
interferes with the exercise of a fundamental right, it
cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to
effectuate only those interest
 Even if these were legitimate and substantial
interest, the means selected to achieve the interests
unnecessarily impinge on the right to marry. Therefore,
the statute CANNOT be sustained
• Not every law that impacts on the right to marry is
declared unconstitutional. Rather, there must be a direct and
substantial interference with the right in order to heightened
scrutiny to apply
 The Right to Custody of One’s Children
• Parents have a fundamental right to custody of their children
o There must be a very substantial reason before parental
custody can be terminated.
• Stanley v. Illinois (1972)
o Declared unconstitutional a state law that automatically
made children of an unmarried mother wards of the state at the
time of her death.
 o State can do it, but only if theres a hearing and father
can show he isn’t an unfit parent.
• Lehr v. Robertson
o Court held that the state could terminate the father’s
parental rights without providing notice or a hearing when the
father had not been a part of the raising of his children nor had
he supported his children while the mother was alive
• Michael H. v. Gerald D. (1989)
o Supreme Court held that even an unmarried father who
participated actively in child’s life is not entitled to due process
if the mother was married to someone else
o The state may create an irrebuttable presumption that a
married woman’s husband is the father of her child even
though it negates all of the biological father’s rights.
 The Right to Keep the Family Together
• This right has been recognized as fundamental and includes the
extended family
• The court has emphasized that individuals must be related to
one another to be considered a family
• Moore v. City of East Cleveland (1977)
o A city ordinance limited the number of unrelated people
who could live together in one household and defined
“unrelated” to keep a grandmother from living with her two
grandsons who were first cousins.
o City cited Belle Terre v. Borras–
 However, that ordinance allowed those related
to each other by blood to live together it promoted
family needs and values. It regulated unrelated people
from living together to prevent excess noise and
congestion.
 The ordinance here allows certain categories of
families to live together while other cannot
 The constitution protects the sanctity of the
family precisely because the institution of the
family is deeply rooted in this nation’s history
and tradition
o While family is not beyond regulation when the
government intrudes on choices concerning family living
arrangements, the court must look at the importance of the
government’s interest and the extent to which the challenged
regulation serves that interest
 The Right of Parents to Control the Upbringing of their Children
• Meyer v. Nebraska (1923)
o Declared unconstitutional a state law that prohibited the
teaching in school of any language except English
  The law violated the right of parents to make
decisions for their children
 But there is no enumerated constitutional right
for parents to control what children learn – most likely
common law
• Pierce v. Society of the Sisters of the Holy Names of Jesus
and Mary (1925)
o Guarantees the right of parents to send their children to
some school other than public school
 The law requiring parents to send their children
to public schools unreasonably interferes with the
liberty of parents and guardians to direct the upbringing
and education of children under their control
 Rights guaranteed by the Constitution may not
be abridged by legislation which has n
reasonable relation to some purpose within the
competency of the state
 State’s police power over education is limited
by some degree by parental desires
• Troxel v. Granville (2000)
o Washington law allows anybody to be granted
visitation rights when those rights serve the best interest of the
child – grandparents statute
o The statute is broad in that it allows ANY person to
petition for visitation ANY time
o The lower courts decision was an unconstitutional
infringement on the parent’s fundamental right to make
decisions concerning the care, custody, and control of her two
daughters.
• Constitutional Protection for Reproductive Autonomy
• Right to Procreate
o The Supreme Court has held that the right to procreate
is a fundamental right and therefore government imposed
involuntary sterilization must meet strict scrutiny. But in Buck
v. Bell, the Court initially rejected the position
o Buck v. Bell (1929)
 Court held that forced sterilization was
constitutional pursuant to law providing for involuntary
sterilization of retards in mental institutions
o Skinner v. Oklahoma (1942)
 Court found unconstitutional OK statute forced
criminals to be sterilized if convicted 2 or more times
for crimes or moral turpitude.
  OK law violated equal protection - Procreation
is a fundamental right and the statute had discrimination
in it; that only certain crimes resulted in sterilization
 Requires strict scrutiny
• The right to Purchase and Use Contraceptives
o 2 types of privacy:
1) Spacial – geographic – privacy in the home – to keep the
government away
Stems from the constitution
2) Personal autonomy – right to make one’s personal
decisions without government interference
No real textual support
o Griswold v. Connecticut (1965)
 Court declared unconstitutional CT law that
prohibited use and distribution of contraceptives.
 Hold – Right to privacy was fundamental
right.
 Douglas expressly rejected argument that right
was protected under Due Process Clause, but instead
found that privacy was implicit in many specific
provision of the Bill of Rights (Penumbral notion that
the emanations of a number of amendments flowing
outside the amendment itself, taken together, amount to
a right to privacy):
 Right of association
 Prohibition against quartering soldiers
 Protection against search and seizure
 Self incrimination
 9th amendment
 There is a right to privacy and therefore the
state has to prove that its statute violating that right is
narrowly tailored to achieve a compelling state interest
 Different Views:
 Goldberg Concurring - The 9th Amendment is
authority for the Court to protect nontextual rights such
as privacy
 Harlan Concurring - The right to privacy should
be protected under the liberty of the due process clause
 White Concurring – law did not even meet
rational basis test
 Black Dissent – privacy is not fundamental right
because there is no mention of it in the constitution
o Eisenstadt v. Baird (1972)
 Distribution/exhibition of contraceptives in
violation of Mass law.
  Expands on Griswold - If the right of privacy
means anything, it 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.
o Carey v. Population Services International
 Strict scrutiny must be met for the government
to justify a law restricting access to contraceptives.
 The Right to Abortion
• Roe v. Wade (1973)
• The Supreme Court holds that the Constitution protects a right
for a woman to choose to terminate her pregnancy prior to
viability – the time at which the fetus can survive on its own
outside the womb. The Court specifically ruled that the
government may not prohibit abortions prior to viability and
the government regulations of abortions had to meet strict
scrutiny.
• The Court focused on the right to privacy – “This right of
privacy, whether it be founded in the 14th Amendment’s
conception of personal liberty and restrictions upon state
action, as we feel it is, or,…in the 9th amendment’s reservation
of rights to the people, is broad enough to encompass a
woman’s decision whether or not to terminate a pregnancy.”
o Right to privacy of the mother is broad enough to
encompass a woman’s decision to terminate her
pregnancy fundamental right
• The right to abortion is not absolute and that it must be
balanced against other consideration, like the state’s interest in
protecting prenatal life.
o However, strict scrutiny will be used in striking the
balance because the right to an abortion is a
fundamental right.
• The Court rejected the view that a fetus is a person.
• The Court divided pregnancy into trimesters.
o 1st Trimester – the government could not prohibit
abortions and could regulation abortions only as it
regulated other medical procedures.
o 2nd Trimester – the government could not outlaw
abortions, but the government “may, if it chooses,
regulated the abortion procedure in ways that are
reasonable related to maternal health.”
o 3rd Trimester – the government may prohibit abortions
except if necessary to preserve the life or health of the
mother.
• Three major Criticisms of Roe:
 o The Court was wrong to protect a right to abortion
because the right is neither mentioned in the text nor
intended by the framers.
o The Court gave insufficient weight to the state’s interest
in protecting fetal life.
o The Court erred in using due process rather than equal
protection as the basis for its decision.
 Planned Parenthood v. Casey (1992)
• The Court said that the essential holding of Roe should be
retained and once against reaffirmed.
• The Court held that Strict Scrutiny will not be applied to laws
limiting abortions – rather states may regulate abortions
clearly after viability, but before viability will be held to a
test whether or not there is an undue burden for a woman
to exercise constitutional right
• The Court abandoned the trimester approach for determining
state’s interest, but reaffirmed viability as the key dividing line
during pregnancy:
o Before viability, the government may not prohibit
abortion, but after viability, abortions may be
prohibited where necessary to protect the woman’s life
or health.
• In overruling precedent, Planned Parenthood v. Casey asks 4
questions
o Is the rule workable?
o Reliance on the precedent?
o Whether the law’s growth in the intervening years has
left Roe’s central rule a doctrinal anachronism
discounted by society?
 Does the doctrine seem correct at the time, but
has it been eroded?
o Whether Roe’s premises of fact have so far changed in
the ensuing two decades as to render its central holding
somehow irrelevant or unjustifiable in dealing with the
issue it addressed?
o Government Regulation of Abortions
 Stenberg v. Carhart (2000)
• **first time that a majority of the Court said that the
undue burden test is to be used in evaluating laws
regulating abortion**
• The Court, expressly adopted and applying the undue burden
test, declared unconstitutional a state law that prohibited partial
birth abortions.
• The Court basically holds that the statute is unconstitutional
because there is no exception for the health of the mother and
 its overbreadth, as read, it imposes an undue burden on a
woman’s ability to choose this kind of abortion.
o Government Restrictions on Funds and Facilities for Abortions
 Government is not constitutionally required to subsidize abortions
even if it is paying for childbirth
 Maher v. Roe (1977)
• No obligation imposed by the Constitution on the states to pay
the pregnancy related medical expenses of indigent women, or
indeed to pay any of the medical expenses of indigents
o Financial need alone has never been held as a way to
identify a suspect class for the purposes of equal
protection analysis
 Poverty/impoverished are NOT a suspect class
except for voting, right to access of the courts
and travel
• 2 Significant principles:
o With virtually all constitutional rights in the United
States, the government is prevented from intruding on it
but is not compelled to assist them
o Whether we are talking about Congress or the states,
the legislature has discretion in choosing how to spend
money
 Harris v. McRae (1980)
• Hyde Amendment prohibits the use of federal funds to
reimburse the cost of abortions under the Medicaid program
except under certain specified circumstances
• Court declared Hyde Amendment constitutional b/c it did not
impinge upon freedom of choice
o The financial restraints that restrict an indigent
woman’s ability to enjoy the full range of
constitutionally protected freedom of choice are the
product not of governmental restrictions on access to
abortions, but rather of her indigency.
 From Maher and Harris, we get two principles:
• 1) As with virtually all constitutional rights, the government is
prevented from intruding on it, but not compelled to assist
them
• 2) Legislatures have great discretion on how to spend money.
o Spousal Consent and Notice Requirements
 Planned Parenthood v. Danforth (1976)
• The Supreme Court declared unconstitutional a state law that
required a husband’s written consent before a married woman
could receive an abortion unless a physician certified the
abortion was necessary to protect the life of the women.
 • The state cannot delegate to a spouse the veto power over an
abortion which the state itself does not have.
 Planned Parenthood v. Casey (see above)
• The Court invalidated a state law that required spousal
notification before a married woman could receive an abortion.
o The spousal notification requirements is likely to
prevent a significant number of women from obtaining
an abortion – UNDUE BURDEN
 Belotti v. Baird
• Court has held that a state may require parental notice and/or
consent for an unmarried minor’s abortion, but only if---
o It creates an alternative procedure where a minor can
obtain an abortion by going before a judge who can
approve the abortion by finding that
 It would be in the minor’s best interest, OR--
 By concluding that the minor is mature enough
to decide for herself
• Constitutional Protection for Medical Care Decisions
o Right to refuse treatment
 Generally there is a constitutional right of individuals to refuse
medical treatment, but it is not absolute and can be regulated by the
state
• State has the right to demand compulsory vaccination under its
police power (Jacobson v. Mass)
• Cruzan v. Director, Missouri Dept. of Health (1990)
o There is a right to cut off treatment but the state
does have an interest in protecting life so the state
can demand a high level of proof if the intent is not
known
o Three parts to the Courts hold in Cruzan:
 First, the Court said that competent adults have
a constitutional right to refuse medical
treatment. This came under the liberty clause of
the 14th Amendment.
 Second – Courts can act for patient, but there
are due process procedural safeguards to assure
that the action conforms to the wishes of the
patient:
 TEST - A state may require clear and
convincing evidence that a person wanted
treatment terminated before it is cut off.
 Third - The Court said that a state may prevent
family members from terminating treatment for
another. The right to end treatment belongs to
 each individual, and a state may prevent
someone else from making that election.
o Possible State Interests:
 Protection and preservation of human life
 Protecting personal element of choice between
life and death
 Guarding against potential abuses in family
members making these decisions
 Consider that a judicial proceeding to make a
determination may not be adversarial with the
guarantee of accurate fact finding
o Right to Physician-assisted Suicide
 Washington v. Glucksburg (1997)
• The Court rejected the claim that Washington law prohibiting
assisted suicide violated a fundamental right protected under
the Due Process Clause.
• The Court determined that “the assert right to assistance in
committing suicide is not a fundamental liberty interest
protected by the DPC.”
 Vacco v. Quill (1997)
• The Supreme Court held that laws prohibiting physician-
assisted suicide do not violate the Equal Protection Clause.
• The Court said that the prohibition of assisted suicide neither
discriminated against a suspect class, nor violated a
fundamental right. Therefore, the law will be upheld so long as
there is a rational basis.
• Constitutional Protections for Sexual Orientation and Sexual Activity
o Bowers v. Hardwick (1986)
 The Court ruled that the right to privacy under the Constitution does
not include a right for consenting adults to engage in homosexual oral
or anal sexual activity, even in the privacy of their own homes.
 Justice White, writing for the majority, said that the Court should
protect fundamental rights only if they are stated in the text, intended
by the framers, or supported by a clear tradition.
 The Court based its decisions on tradition and history.
o Lawrence v. Texas (2003)
 The Court overrules Bowers and held that the right to privacy protects
a right to engage in private consensual homosexual activity.
 The Court basis its opinion on privacy and said there are certain things
involve intimate choices.
 The Court invalidated the statute under the Due Process Clause –
said it was a liberty interest. “Their right to liberty under the DPC give
them the full right in their conduct without intervention of
government.”
 • Texas could not further any legitimate state interest which can
justify its intrusion into the personal and private life of the
individual.
 O’Conner Concurrence:
• Finds the statute to be unconstitutional, but bases this on the
Equal Protection clause though
o Rational basis standard of review
 objectives that bare desire to harm a politically
unpopular group are not legitimate state
interests
 moral disapproval is not a legitimate state
interest
 Legitimate interests would include- national
security or preserving traditional institution of
marriage
 Morris discusses Romer v. Evans here to distinguish between using
Due Process and Equal Protection to find law unconstitutional
• Unconstitutional because of Equal Protection was violated in
that case
• Area of sexual orientation, EP claim would work better than
DP
• Constitutional Protection for Control Over Information
o A basic aspect of privacy is the ability of people to control information about
themselves
o Whalen v. Roe (1977)
 Facts – NY statute required doctors to file report of prescription drugs
prescribed to patients - to be kept track of in a database – the state
wants to know what prescription drugs you are taking to make sure no
one is abusing them.
 The Court rejected a privacy argument.
• The Court said the state has an important interest in monitoring
the use of prescription drugs that might be abused.
• The Court said this serves and important interest by the least
restrictive means.
o Whalen is where the law stands on databanks – it is constitutional with a
medical reason.
• Constitutional Protection for Travel
o Text of the constitution doesn’t mention the right, but there is a fundamental
right to travel and to interstate migration within the United States. Therefore,
laws that prohibit or burden travel within the United States are subject to
strict scrutiny.
o United States v. Guest
 The Court expressly declared that there is a fundamental right to
travel.
o Shapiro v. Thompson (1969)
  1 year state residency requirements for welfare eligibility – were
sanctioned by Congress.
 Court said no – spoke about constitutional right to travel, purpose for
deterring migration of indigents is impermissible – state may no more
try to fence out indigents seeking better welfare benefits than it can
indigents simply moving.
o Saenz v. Roe (1999)
 Facts – CA. limits the amount of welfare benefits for the first year in
the state to the benefits you would have received in your old state.
 The Court strikes this down because it violates the fundamental right
to travel.
 The Court uses the P&I clause of the 14th amendment as a basis for the
right to travel.
 Court lists three components to the Right to Travel
• Edwards v. California - Right to enter and leave states -
appears to be fundamental under the whole structure of the
Constitution, at the least the commerce clause
• Article IV § 2 - P/I Clause of 14th Amendment – Right of out
of staters to be treated the same as in staters in certain kinds of
matters esp. jobs
o 1st time Court applies P/I clause to invalidate state law
• Right of new residents to be treated the same as older
residents – right of all residents to be treated the same way.
o This is what the Court finds is violated here.
 Court says: “That newly arrives citizens ‘have two political capacities,
one state and one federal,’ adds special force to their claim that they
have the same rights as others who share their citizenship. Neither
mere rationality nor some intermediate standard of review should be
used to judge the constitutionality of a state rule that discriminates
against some of its citizens because they have domiciled in the state
for less than a year. The appropriate standard may be more categorical
than that articulated in Shapiro, but it surely no less strict.”
o Two major exceptions to fundamental right to travel:
 Divorce – Court has essentially held constitutional state’s
requirements (police power, protection of marriage)
 Residence requirement for higher education
• Rationale:
o State is providing service (selfishly in long run, to have
better trained people working in state)
o Also connected to the relative flexibility in education
o Restrictions on Foreign Travel
 There is NO fundamental right to international travel and therefore
only a rational basis test will be used in evaluating restrictions on
foreign travel
 Haig v. Agee (1981)
 • reaffirmed rational basis test for restrictions on foreign travel
• Secretary of state revoked passport of former CIA agent who
threatened to identify other officers
• Considered a reasonable governmental regulation to revoke the
passport in this instance
• The Right to Vote
o No formal constitutional right, but Court has held it’s a fundamental right,
protected by EP clause not to be discriminated against when you as a person,
or group are attempting to vote
 It is clearly established that laws infringing on the right to vote must
meet STRICT SCRUTINY
o Restrictions on the Ability to Vote
 Poll Taxes
• Harper v. Virginia State Board of Elections
o The Supreme Court held that poll taxes are
unconstitutional as a denial of equal protection for all
other election.
 Cant introduces wealth or payment of fee as
measure of voter’s qualification
 Property Ownership
• Kramer v. Union Free School District
o The Supreme Court declared unconstitutional a state
law that restricted voting in school district elections to
those who owned taxable property in the district or who
has custody of children enrolled in the local public
schools.
o The Court used strict scrutiny.
 Literacy Tests:
• The Supreme Court has concluded that literacy tests are
constitutionally permissible as a qualification for voting,
although they have been outlawed by federal law.
• The Court has concluded that literacy tests may be used
because the ability to read and write is relevant to the ability to
exercise the franchise intelligently.
• This rests on two assumptions: that literary test’s are race
neutral in their purpose and effect, and that literacy test meet
strict scrutiny.
 Rights of prisoners to vote
• Richardson v. Ramirez
o gov’t must provide absentee ballots for those held in
jail awaiting trial, but the Court held that once a person
has been convicted of a felony, the state may
permanently deny that person the right to vote
 • If a prisoner is denied the right to vote with the purpose of
disenfranchising any racial or ethnic group, then the EP clause
kicks in and denial becomes unconstitutional
• Constitutional Protection for Access to Courts
o There is a fundamental constitutional right of access to the courts
 Any law taking that right away must be met with Strict Scrutiny
• Due process and equal protection demand for procedures in
criminal trials which “allow no invidious discrimination
between persons and different groups of persons”
o Right to Counsel in Criminal Cases
 Gideon v. Wainwright (1963)
• States are constitutionally required to provide indigent
defendants an attorney in all criminal cases where there is
punishment of imprisonment
o Right to Appeal
 Griffin v. Illinois (1956)
• If state law creates a right to appeal, the state may not deny the
poor an adequate appellate review –state must purchase the
transcript if Δ cannot afford it
• Gov. must provide free attorney to indigent defendants for their
appeals BUT the right is LIMITED to FIRST appeals
o Filing Fees
 Boddie v. Connecticut (1971)
• Court held that it was unconstitutional to deny indigent
individuals of access to the courts for filing a divorce petitioner
because of their inability to pay a filing fee. The government
must waive filing fees for the indigent.
o Emphasized the fact that only the Courts can grant a
divorce and that defendants therefore were “faced with
exclusion from the only forum effectively empowered
to settle their disputes. Resort to the judicial process by
these plaintiffs is no more voluntary in a realistic sense
than that of the defendant called upon to defend his
interest in court.”
 In subsequent cases, NOT involving constitutional rights, the Court
refused to extend Boddie to require a waiver of filing fees in other
civil proceedings
• United States v. Kras (1973)
o The Court held that the government was not required to
waive filing fees for indigents seeking to file for
bankruptcy.
o The Court distinguished Boddie on two grounds.
 Divorces relate to the constitutional right to
marry.
  The Court emphasized that the state has a
monopoly in granting divorces.
o The Court also emphasized that the bankruptcy debt
could be paid in installments.
 M.L.B. v. S.L.J. (1996)
• The Supreme Court declared unconstitutional a state
requirement that parents pay a fee for preparation of the trial
record in order to appeal a termination of custody.
• The Court said access to the court involved both the EPC and
DPC.
• Generally, access to courts only has to meet rational basis
review, BUT there are two exceptions:
o 1. Basic right to participate in political processes—as
voters/candidates cannot be limited to those who can
pay for a license
o 2. Access to judicial processes in criminal or quasi-
criminal cases cannot turn on the ability to pay
• The Court said that proceedings to permanently terminate
parental custody fit into the latter category because
“termination adjudication involve the awesome authority of the
state to destroy permanently all legal recognition of the
parental relationship.”
o Prisoners’ Right of Access to the Courts
 Bounds v. Smith (1977)
• The Court held that prisons were obligated to provide law
library facilities and appropriate supplies to inmates.
• There is an affirmative obligation to provide meaningful access
to the courts.
• “We hold that the fundamental constitutional right of access to
the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistances
from persons trained in the law.”
 Lewis v. Casey (1996)
• Narrowed and even repudiated parts of Bounds v. Smith
• The Court ruled that “in order to establish a violation of
Bounds, an inmate must show that the alleged inadequacies of
a prison’s library facilities or legal assistances program caused
his actual injury – that is, actual prejudice with respect to
contemplated or existing litigation.”
• The Court also said that system wide relief contained in the
district court’s injunction was unjustified.
• The Court could restrict access for people in “lockdown”
because of security concerns.
• Only rational basis is to be used.
 • After this case, there still is a right to use the courts to remedy
their grievances and challenge theirs convictions and sentences,
but the right is only minimally protected.
• Right to Education
o Supreme Court has refused to recognize a fundamental right to education
o San Antonio Independent School District v. Rodriguez (1973)
 Challenge to Texas’ system of funding public schools largely through
local property taxes – meant poor areas had to tax at high rate and rich
areas were taxed at lower rate, but still had much more to spend on
education.
 Πs challenged this on 2 grounds:
• EP violation b/c impermissible wealth discrimination
o Court dismissed this claim by saying that poverty is not
a suspect classification and that therefore discrimination
against the poor only meet rational basis.
 Not an immutable trait – can change it
• Denial of Fundamental right to education
o Court said no fundamental right to education and
therefore, no strict scrutiny
 1) Right to Education is not explicitly or
implicitly in the Constitution
 2) Just b/c education is important, that does not
make is fundamental right. Despite fact that
right to education leads to other fundamental
rights (voting and freedom of speech), that in
and of itself does not make it a fundamental
right.
o Still must meet rational basis test
 Court says it meets test b/c This is a matter of
fiscal policy and educational policy –areas
Court lacks specialized knowledge of and
judgments should be made at state/local levels
o Morris - Its quite clear that the Court does not want to
break from the tradition of locally based education
o Plyler v. Doe (1982)
 Texas law provided a free public education to citizens and children of
documented immigrants, but required undocumented immigrants to
pay for their education
 Court held law unconstitutional
• Law denied equal protection to aliens
• While education is not a right, it is not merely a benefit to the
state either
o The IMPORTANCE of education, and the lasting
impact of its deprivation on the life of the child mark
 the distinction b/t education and some other form of
welfare legislation
o Bottom Line: The Court’s refusal to find a fundamental right to education is
consistent with its general unwillingness to hold that there are constitutional
rights to affirmative services provided by the government
 Strong argument that education is differentessential to the exercise
of constitutional rights; for economic opportunity; ultimate
achievement of equality
 Several STATE courts have found a fundamental right to education--
and conclude that inequities in school funding are impermissible as a
matter of State constitutional law

IX) TAKINGS CLAUSE

• Introduction
o Both the federal gov’t and the states have the power of eminent domain - the
authority to take private property when necessary for government activity
o 5th Amendment states “nor shall private property be taken for public use w/out
just compensation” – 1st provision of Bill of rights to be applied to states
 Takings clause never actually prevents government from taking. It
just determined if there is a taking for which there would be just
compensation
• If the government takes unjustly, it may well be
unconstitutional, but not as a takings clause violation – instead,
it would be a substantive due process clause violation
o Analysis under Takings Clause Divided into 4 Questions:
1. Is There a “Taking”? – two basic ways of finding a taking:
(1) Possessory Taking – occurs when the gov’t confiscates or
physically occupies property, and
(2) Regulatory Taking – when gov’t regulation leaves no
reasonable economically viable use of property
2. Is it “Property”? – only if the object of the taking is “property” does the
5th Amendment provision apply (court usually relies on state law)
3. If there is a Taking of Property: Is the taking for “Public Use”? – If
the taking is not for public use, then the gov’t must give it back*; pubic
use has been defined BROADLY so almost anything will meet the
requirement
4. Assuming Taking is for Public Use: Is “Just Compensation” Paid? –
this is measured in terms of the loss to the owner; **the gain to the taker is
IRRELEVANT
• Is There a Taking?
o Possessory Taking
 Loretto v. Teleprompter Manhattan CATV Corp. (1982)
• NY law provided that a landlord must permit a cable TV
company to install its cable facilities on their property – in this
 case the cable installation by Teleprompter occupied portions
of appellant’s roof and the side of her building
• Court has often upheld substantial regulation of an owner’s use
of his own property where deemed necessary to promote a
public interest, BUT…Where the character of the
governmental action is a physical intrusions on to ones land
and where it reaches the extreme form of a permanent
physical occupation, a taking has occurred
• PHYSICAL TAKING = JUST COMPENSATION
o Regulatory Takings
 Pennsylvania Coal Co. v. Mahon (1922)
• Penn statute that prohibited mining of coal in any way that
would cause subsidence of property. Effect of the law was to
prevent companies from exercising certain mining rights.
• In this case, the government did not actually confiscate,
occupy, destroy or invade the property, but just regulated its
use.
• The Court held that there was a taking - The general rule is that
while property may be regulated to a certain extent, if
regulation goes “too far” it will be recognized as a taking.
o The court provided for a balancing test: one has to
balance the extent of the taking versus the justification
as a protection of personal safety.
 Must be a fact based analysis
 Miller v. Schoene (1928)
• Cedar Rust Act of Virginia presents a comprehensive scheme
for the destruction of red cedar trees infected by cedar rust
(plant fungus spread by spores) – the only way to stop it is to
cut the trees down. Necessary to cut trees down b/c they
destroy apple orchards (which are big crop in VA)
• When forced with this kind of choice, the state does not exceed
its constitutional powers by deciding upon the destruction of
one class of property to save another, which in the view of the
legislature is of greater value
• When the public interest is greater than the property interest of
the individual, the extent it may be destroyed, is a function of
the police power which affects property
 The court has articulated criteria that should be considered in
evaluating whether a regulation is a taking (Connolly v. Pension
Benefit Corp (1986) states:
• Three facts which have a particular significant for identifying a
taking:
1. the economic impact of the regulation on the claimant
2. the extent to which the regulation has interfered w/
investment-backed expectations; and
 3. the character of the governmental action
• One important principle that emerges from these cases is that
government regulation is a taking if it leaves no reasonable
economically viable use of property; government regulation is
not a taking simply b/c it decreases the value of a person’s
property, so long as it leaves reasonable economically viable
uses
 Penn Central Transportation Co. v. New York City (1978)
• Court held that there was not a taking when the government
designated a building as a historical landmark and prevented
the owner from constructing a substantial expansion on top of
the building.
• Court emphasized that that the regulation did not deny the
owners all profitable use of the building.
• Furthermore, because designating the building a historic
landmark only decreased property value and served an
important purpose, the Court held that just compensation need
not be paid b/c there was no taking.
 Lucas v. South Carolina Coastal Council (1992)
• After a person bought beachfront property for $1M, the state
adopted a coastal protection plan that prevented the
construction of any permanent habitable structures on the
property.
• The State trial court concluded that the property was rendered
valueless
• Even though the purpose of the act was legitimate
governmental purpose, the Court concluded that the law was a
taking of the property unless there had been a similar
restriction on development at the time he acquired the land.
o Regulatory Takings - Zoning Laws
 Nollan v. California Coastal Commn (1987)
• The government conditioned a permit for the development of
beachfront property on the owner’s granting the public an
easement to cross the property.
• The Court said that the police power allows the government to
place a condition on development if it is rationally related to
preventing harms caused by the new construction. But the
Court said that there is a taking if the condition utterly fails to
further the end advanced as the justification.
• Morris - Conditions on the use of prop is regulatory taking if
burden is excessive relative to the benefit of the land owner
 Dolan v. City of Tigard (1994)
• The Court holds that the government may not requires a person
to give up a constitutional rights, in this case the right to
receive just compensation, when property is taken or a
 discretionary benefit conferred by the government where the
property what was sought here had little or no relationship
• Two Part Test
o Is there a “nexus…between the legitimate state
interest and the permit condition created by the
city?” – It must be shown that the condition is
rationally related to the government’s purpose for
regulating.
o The Court said that it would evaluate whether the
exactions on development were roughly proportionate
to the government’s justifications for regulating.
 Palozzolo v. Rhode Island (2001)
• There was not a taking when environmental protection laws
prevented development of property because some economically
viable use remained.
• Property owners can bring a taking claim as to regulations and
laws that were in place at the time the property was acquired.
 Tahoe-Sierra Preservation Council, Inc v. Tahoe Regional Planning
Agency (2002)
• The Court holds that a temporary moratorium denying a
property owner the right to develop is ok so long as the
government acts reasonably.
• Is it for the “public use”?
o Hawaii Housing Authority v. Midkiff
 A taking is for public use so long as the government is taking property
to achieve a legitimate government purpose and so long as the taking
is a reasonable way to achieve the goal.

X) PROCEDURAL DUE PROCESS

• Introduction
o The DPC is used to impose procedures on government when it takes away a
person’s life, liberty, or property.
o “Procedural” DP - Gov’t taking away something from you that it has the
power to do, but that certain procedures have to attach
 Two Questions:
• Whether some particular liberty or property interest that needs
procedural protection?
• What procedures are required?
o Substantive DP clause of 5th and 14th amendment, which says that there are
some things that the government cannot do
• What is Deprivation?
o Is Negligence Sufficient to Constitute a Deprivation?
 The Supreme Court has held that allegations and proof of negligence
are insufficient to demonstrate a deprivation of due process;
 establishing a denial of due process requires demonstrating an
intentional deprivation or at least a reckless government action.
 Daniels v. William; Davidson v. Cannon
• Two cases in which prisoners claimed that guards’ negligence
caused them bodily harm.
• The Court concluded that “the SPC is simply not implicated by
a negligent act of an official causing unintended loss of or
injury to life, liberty, or property…not only does the word
‘deprive’ in the DPC connote more than a negligent act, but we
should not open the federal courts to lawsuits when there has
been no affirmative abuse of power.”
• A deprivation of due process exists only if there is an
allegation of an intentional violation by government or
government officers.
 County of Sacramento v. Lewis
• The Court held that in emergency circumstances the
government can be held liable only if its officers’ conduct
shocks the conscience. This requires showing that the officers
acted with intent of causing harm to the victim.
o What is the Government’s Failure to Protect a Person from Privately Inflicted
Harms of Deprivation?
 DeShaney v. Winnebago County Dept. of Social Services (1989)
• Facts: Little boy was beaten regularly by his father. Social
services intervened and took him away, but gave him back to
his father, who denied accusations. They continued to monitor
the situation closely, but despite evidence that the father
continued to abuse the child, they did nothing. Eventually, the
father beat the kid into a coma. The mother sued on behalf of
herself and the child, claiming the state deprived procedural dp.
• The Court declared that “as a general matter…a state’s failure
to protect an individual against private violence simply does
not constitute a violation of the DPC.”
• There is no constitutional violation because the DPC does not
require the state to protect one person from another.
• The Court recognized two exceptions
o One where the government has limited the ability of a
person to protect himself, such as incarceration.
o The other is when there is a special relationship
between the government and the injured person, such as
when the government took an affirmative step to place
the person in danger.
• Is It a Deprivation of “Life, Liberty, or Property”?
o The “Right-Privileges” Distinction and its Demise
 The government is only required to provide due process if there has
been a deprivation of life, liberty, or property.
  Until the last 30 years, the court narrowly defined what constitutes a
liberty or property interest.
• The Court held that there was a liberty or property interest only
if there was a “right.”
• A government bestowed privilege was not a basis for requiring
due process.
 “Rights-Privileges” Distinction – “The petitioner may have a
constitutional right to talk politics, but he has no right to be a
policeman.”
 The Unconstitutional Conditions Doctrine
• Although the rights-privileges distinction was firmly embedded
in the law, it also was established that the government could
not condition a privilege on the requirement that a person give
up a constitutional right.
o Goldberg v. Kelly (1970)
 The Supreme Court held that individual receiving welfare have a
property interest in continued receipt of benefits and the government
must provide due process before it terminates those benefits.
 “It may be realistic today to regard welfare entitlements as more like
property than a gratuity. Much of the existing wealth in this country
takes the form of rights that do not fall within traditional common-law
concepts of property
 This case effectively reversed the rights-privileges distinction.
 There must be pre-termination hearing.
o What is deprivation of Property
 Board of Regents v. Roth (1972)
• Facts – The Board of Regents had a rule that allowed college
professors to acquire tenure after four years of continued
employment at a university. However, the first years of
employment are left to the discretion of the institutions. Roth
wound up not getting tenure and sued.
• The Court, attempting to define property, said that “to have a
property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a
unilateral need of it. He must, instead, have a legitimate claim
of entitlement to it.”
• The Court goes on to say that the existence of an entitlement is
determined by an “independent source such as state law” and
the “rule or understanding” it creates. By this view, an
entitlement exists if there is a reasonable expectation to
continued receipt of a benefit.
• If there is a reasons affecting a constitutional right and
connected to a constitutional rights, then there will be hearing
o What is a Deprivation of Liberty?
  There are two different ways for the Court to approach this and define
liberty.
 One would be for the court to determine what is “liberty” based on the
importance of interest at stake.
 The other way would be for the Court to determine whether there is a
liberty interest based on the expectations engendered by state law.
o Reputation as a Liberty Interest
 Goss v. Lopez
• Students have a liberty interest in not being disciplined by a
public school because suspension from school would damage
the students reputation.
• The Supreme Court found that there was a property interest in
continued receipt of an education when the government ceases
a public school system and requires children to attend.
• Even though the government had no constitutional duty to
provide public education, the court found that there was a
property interest in continued public schooling created by state
laws and a liberty interest in not being stigmatized by
suspension.
• The total exclusion from education requires due process
 Paul v. Davis
• Facts – Police circulated flyers of those known to shoplift
• The Supreme Court held that an “interest in reputation alone is
neither liberty nor property guaranteed against state deprivation
without due process of law.”
• Court distinguished from Goss –
o Must invade private space (or some aspect of privacy)
if its dp curtailment. Court says not invasion of
privacy, but too much publicity
o Is reputation implicit in concept of liberty?
 Court says it is not
• Morris - If school hypo, put emphasis on property right rather
than liberty right
o Liberty Interest for Prisoners
 Over the past quarter of a century, the Court indicated prisoners have a
liberty interest only when an important matter is at stake.
• Morrissey v. Brewer (1972)
o Revocation of parole is a deprivation of liberty that
requires the provisions of due process. It’s a
deprivation of liberty b/c if out on parole, an individual
can be gainfully employed and is free to be with family
and friends.
o Found a liberty interest based on the significance of the
interest to the parolee, rather than focusing the specifics
of the state law involved
 The Court later moved away from this approach and decided that
prisoners have a liberty interest when statutes and regulations create
them
• Wolf v. McDonnell (1974)
o Court held that prisoners have liberty interest in good
time credits awarded under state law. While this would
otherwise not have been a liberty interest, the Court
held that it was one b/c the statute dictated.
• Meachum v. Fano (1976)
o The Court held that prisoners do not have a liberty
interest in remaining in a minimum, as opposed to a
maximum security prison, unless the state or federal
law clearly creates the exception.
• Greenholtz v. Inmates of Nebraska Penal (1979)
o The Court held that the existence of a parole system is
not enough to create a liberty interest in parole; rather,
there must be specific requirements in the law that
transform parole from a mere hope to an entitlement
under particular circumstances
 In Sandin v. Connor, the Court recently held that regardless of the
content of statutes and regulations, there is a liberty interest only if
there is a significant deprivation of freedom that is atypical to the usual
conditions of confinement.
• Sandin v. Conner (1995)
o Facts – Prisoner placed in solitary for objected to body
cavity search.
o The Supreme Court held that regardless of the content
of statutes and regulations, there is a liberty interest
only if there is a significant deprivation of freedom
which is atypical to the usual conditions of
confinement.
o The Court first says that this “creates an incentive for
States to codify prison management procedures in the
interest of uniform treatment.”
o The Court then said that “the approach has led to the
involvement of federal courts in the day-to-day
management of prisons often squandering judicial
resources with litter offsetting benefits.”
o What Procedures are Required?
 Matthews v. Eldridge (1976)
• Disability coverage was terminated without a hearing. Π
claims there should have been hearing before termination, but
Court disagrees
• Possible procedures:
o Notice of termination
 o Hearing before or after, before impartial tribunal
o Possible counsel at time of hearing
o Reasons for holding
o Right to appeal
• But how do we know which procedures go with which
deprivation? Matthews 3 part test:
o Private interest that will be affected by official
action
 E.g. - Presumably, if the action was the gov’t
cutting off your head, the private interest would
be very great, so the procedural aspects would
be great
o Risk of erroneous deprivation as a result of
whatever right or interest
 Matthews - Risk of erroneous deprivation is not
so great that you need a pretermination
hearing… its medical assessment written by
doctors, but there must be hearing after the fact
o Look at the government’s interest if there is a
pretermination hearing
 Administrative burdens on the government are a
factor to be weighed
• How do you apply the balancing test on exam?
o Put interests down and apply them…indicate there is no
bright line
• Hamdi as applied to Matthews
o O’Conner – Hamdi was entitled to procedural due
process
 Notice - what was he doing, who found him,
evidence…
 Fair opportunity to rebut the government’s
factual assertions
• Gov’t argued they found him wandering
Afghanistan with an automatic weapon
• But the court didn’t say hes entitled
counsel, or capacity to subpoena
witnesses
 Had to be before a neutral decision maker
 No right to appeal