Con Law II
Con Law II
Con Law II - 1-9-06
Very common e-mail to use for him: Union2757@
Home Phone number 541-344-0768 - Oregon Phone number - from Wed. Night until Sunday night.
USSC notes - conflict over the elitist court view vs. the democratic nation.
A. Serves to protect the minority view from the dictatorship of the majority.
Solomon Case - Fair v. Rumsfield - Heller Ehrman spearheaded the original suit.
A. Dec. 6 hearing in the USSC.
B. Josh Rosenkrantz attorney arguing
C. Possibly until June, but maybe earlier.
D. Real close re-argue, but new may govern if not close, even if didn't hear the argument.
Exam is usually closed-book three hours exam, essay style usually.
Con Law I review
A. Impossible to separate out the stuff from Con Law I.
B. Which branch of federal govt. is most powerful? Thing about this, major source of debate, but not entirely clear.
C. Which is more powerful in our system federal or state governments?
D. Getting into court is half the battle sometimes.
1. Think mootness, ripeness, or standing as possible issues. All part of case or controversy requriement. But think about:
a) Capable of repetition yet evading review.
2. Mootness and Ripeness - think aobut no advisory opinions.
3. Court discretion to not hear a case.
E. Ways Congress can Exercise power over courts?
1. Congress can reverse an unpopular decision by passing Constitutional Amendment, but truly cumbersome process.
2. If Court really only interpreted statute, then Congress can amend old statute or pass a new statute. So Congress can answer court's issue with this.
3. Congress sets judicial salaries.
4. Impeachment proceedings.
5. Fact of having nomination hearings before the Senate Judiciary Hearings.
6. Most controversial and most important way is to curtail the jurisdiction of the court.
a) Article III section 2 about appellate jurisdiction and how congress can make exceptions and regulations to the jurisdiction of the court.
b) Is this to be more administrative, or is this able to be extended to substantive issues.
F. Executive may even try court-packign to effect the court.
G. National Powers and Local Activities
1. McCulloh - state cannot tax the US bank.
2. US term limits case - AK and attempt to put limit on number of terms of senators and representatives - additions to Const. requirements of congressmen, original were age, residence, citizenship - court struck down this additional term limitation.
H. Commerce Power - one of the enumerated powers of Congress - not the only power, but good because it is a good teaching tool, and it is relevant in the modern age.
1. Whatever Congress does must be based on the enumerated powers in Const. always.
2. Look at a little Adam Smith's a Wealth of Nations.
3. Regulation among the several states as extremely important.
I. Great Catch all as "Necessary and Proper Clause" - this with Commerce was basically carte blanche for acting.
1. Wickard v. Filburn - wheat farmer - regulations on how much to produce, but farmer was producing only for himself. Court said that the difference came in because of aggregate national economic effect.
2. More recent things that are big is the commerce power and racial discrimination and how that is affected.
a) 14th amendment, but difficult in that it applies to government or state action only, so hard, and commerce clause attempted as a substitution.
Con Law II - 1-11-06
Con Law I review
A. Commerce Power - used as good tool to show Congress' use of powers.
B. Necessary and Proper Clause
C. Two recent changes in commerce clause - Lopez and Morrison
1. Lopez - USSC sasid that congress went beyond its powers, siad not enough of a substantial effect on interstate commerce.
2. Morrison left criminal law to states' and would not apply the commerce clause.
D. Majority of court in modern era is not as deferential to congress, especially if intrusion on states' rights.
E. Dormant Commerce Clause, pre-emption, P + I clause of Art. IV section 2 - cannot discriminate against non-citizens
1. DCC saw facial discriminatory laws, or in purpose or effect favoring local groups, facially neutral laws that unduly burden interstate commerce.
2. state regulation on interstate asks if federal adn state laws are inconsistent, and look at Congressional intent - field preemption
3. Market Participant exception to the Commerce Clause - but cannot control downstream activity.
F. Privileges and Immunities of the 14th amend., think about residency requirements for working there.
1. Edwards v. CA - requirement from CA that poor people could not come into LA. NIMBA. Could challenge on commerce and infringement on interstate, P + I for 14th clause - what is privilege and immunity of US citizenship, Art. IV, section 2, right to travel.
G. Separation of powers issues
1. Youngstown Sheet - truman blocked from seizing the steel industry. Jackson's concurrence was so important and the three types of situations where Pres. Has power
a) Zone of twilight, strong power, weakest power.
2. Gitmo now too, Razul v. Bush, Hamdi, Padilla - debate around the joint resolution for authorization of military force. So pres. Has authority to fight war after 9/11. Issues over what Congress meant by this.
H. Bill of Rights -
1. SlaughterHouse Cases - good tool because of many possibilities for how to challenge. 13th amend. Possible for involuntary servitude, P &I 14th, EP, DP procedural and substantive.
I. DP
1. procedural - deals with whether you are getting the fair hearing.
2. substance - deals with issue itself, so read meat into the clause. Deprivation of liberty adn what this entails, this is substantive inquiry.
a) Is there something that is important protected liberty, that no matter how fair your process is this would still be where you want government to stay out of this.
J. Substantive -
1. first with economic an Lochner v. NY - some argued that there should be no substance read into the DP clause, possibly read only enumerated liberties into the DP clause, or you should include unenumerated rights into liberty, but just the right unenumerated rights.
2. some protectionist leg. Upheld in other cases
K. Takings Clause - public use and just compensation
1. what does a "taking" mean - regulatory as well as physical taking.
2. just compensation debatable
3. what is public use - now public purpose is okay
L. Under due process court has been very deferential when it comes to economic rights.
1. For economic rational basis
2. Personal human right now strict scrutiny.
M. Substantive DP for non-economic
1. first liberty interest found based on non-enumerated rights.
2. Griswold, Roe adn trimester apporach and this became an issue resolved in Casey with discussion of undue burdens and substantial obstacles
3. Informed consent cases, parental notification, consent issues. Question is if these are legitimate leg. Concerns, or are they an end run around Roe v. Wade.
4. Lawrence, Bowers - Bowers is a great lesson in how the issue is framed and how that can be determinative.
a) Dissent framed it as the right to be let alone.
b) Majority framed as if Const. gave right to homosexuals a right to engage in sodomy
5. Lawrence - possible EP because only governed same sex sodomy, but EP not used, because not enough protection, so DP used for liberty issue.
a) Majority talked about history and tradition to see if it is a fundamental right, sasy history and tradition are starting points and not the determinative.
b) Huge difference in looking at other countries for precedence. Which is now much more common.
6. Other contexts for right to liberty have come up.
a) Right to die
b) Right to marry
N. Now we see that EP and DP substantive go hand in hadn.
Equal Protection Clause under 14th Amend.
A. 90% are rational basis
B. First assure legitimate governmental interest, and then if you have that you need to assure that the policy is "rationally related to legitimate government purpose."
C. Some cases where immutable characteristics that are basis for discrimination - especially race, court adopted a higher level test
1. Now a compelling interest and not legitimate
2. If compelling interest, also need to show that your policy is necessary to the fulfillment of the compelling interest.
D. Some cases come along that are otherwise, women for example - not enough for rational basis because there the govt. wins all the time. Talks about history of gender discrimination
1. middle category of review comes out.
2. Need an important interest, so in between the others.
3. If important governmental interest, then you need to show the law is substantially related to the important interest.
E. B, C, D are the three categories of review, soem justices wanted a sliding scale. Categories are mobile and blend, but not quite overtly adopted of the sliding scale.
Page 646 - look at thinking about ideal classification vs. the classification in use.
Under and Over inclusive
A. Under-inclusive would be like - Japanese interrment camps, basically classification did not cover all that were possibly a threat.
B. Over-inclusive is same example because it includes some that are not a threat.
C. Trying to make the ideal classification congruent with the classification in use, and when they are not then they are probably both over and under inclusive.
Railway Express case - advertising on trucks in NY, where those advertising their own business could do so, but those advertising other companies could not.
A. Law's purpose stated to be traffic issues and safety issues in distractions to drivers and pedestrians.
B. Court said there was a legitimate purpose and it was rationally related to that purpose.
C. Challengers could say it should be all or none, so no difference to justify the classification
D. Upheld under rational basis scruitny, because court does not demand complete congruence. Court will not require perfection, allows the Leg. To do it in piecemeal fashion.
E. Scrutiny low, deference high.
Incorporate cases from 650-55 in notes as important for the reviews.
US RR Retirement Bd. v. Fritz
A. Three levels of the scrutiny mentioned and it is the same scrutiny.
Con Law II - 1-18-06
Rational Basis Scrutiny as a way to rubber stamp govt. action now.
A. Note reform does not have to be all or nothing. Overlapping circles need not mesh perfectly. Can be soem over and under inclusion.
B. P.650 - presume leg. Acted okay even though there is some inequality.
C. Question of wheher the legitimate govt. purpose has to be the actual purpose or if created by lawyers afterwards. May look for conceivable purpose where not actual reason. Still an issue in these cases.
D. MA bd. of ret. V. Murgia - court uses rat. Basis for looking at age discrimination. Marshall discusses the sliding scale in this case. Wants special circumstance specific examination because life does not work in special categories. Most justices felt this was just too subjective, so too fluid of scrutiny to be practical.
US Railroad Retirement v. Fritz - USSC allowed federal law that drew a line for who can double dip for benefits and who cannot.
A. Challenge is unfairly discriminates against those employees working lower number of years.
B. Note always need two different classes in EP always. Ask if the two people are being treaeted differently yet they are in the same situation.
C. Ps make a 5th Amendment claim, this was because the 14th Amendment was only covers states. So, the federal govt. was sued under the 5th amend. Due process clause, which then is held to incorporate EP principals, but these are not enumerated.
D. Lawmakers were maybe thinking about the budget here.
E. Question is if the means are rationally related to legitimate govt. purpose.
F. D. Ct. said not rationally related.
G. USSC reversed and upheld the system under rat. Basis scrutiny.
H. Any plausible reason held sufficient here, it need not be the one that is articulated here. So, he says basically not all political losses can be fixed in the courts, really sees it necessary for the Leg. To be voted out and the court to not be involved.
I. Stevens concurrence - says actual purpose is not a good thing to use because actual purpose may be unknown, and you may have statutes that are same in different states and one is valid and one is not valid because of the purpose articulated. So, he does not agree with Brennan.
J. Dissent - says post hoc identifications should not be enough, we need to look at true motivation. Notes possible misleading of Congress, so may reflect no legitimate governmental purpose.
Cases following
A. Schweiker - ok, if rationally advances a reasonable and identifiable governmental objective.
B. Logan - rare case where rational basis not satisfied. Blackmun here even cites to dissent in Schweiker.
C. Allegheny - Unanimously struck down the law - still rational basis scrutiny. Now Thomas, who was deferential in the FCC case. Strong presumption of validity in these cases, and anything conceivable for him isokay. Note too the allowance of solving the problem incrementally.
D. Willowbrook - struck down under minimal scrutiny too.
E. So, this is reflective of most EP cases that are decided under rational basis scrutiny. This again is majority of cases.
Racial discrimination
A. The burden now shifts and rules of game change now. A higher burden on govt. in these cases - now compelling govt interest required, as well as the means must now be necessary to the fulfillment of that compelling govt. interest. Necessary enunciated to mean that you could not have done this in any other way that would be less burdensome to the Ps in these cases. So, no other means available to accomplish the goal enunciated.
B. Strauder - court struck down law saying no blacks on juries. Here court restricted 14th Amendment reach to just racial classifications.
C. Korematsu - Japanese interrment case. Strict scrutiny applied here, but statute survives in this case, which is rare. Note that when national security is raised, the courts will almost say all bets are off. So, court will allow this to trump. So, this is reasoning for case. Conviction vacated.
D. Outside of text cases - integration in cases
1. for half a century we have wrestled with this, and now we are finding a re-segregation of schools - racial and economic.
2. Here, chronology to Brown
3. Roberts v. City of Boston 1850 - segregated school policy upheld - psychological damage of this brushed aside. Court noted that deep rooted prejudice cannot be changed by law.
4. 1857 - Dred Scott - MS compromise unconst. Congress cannot bar slavery.
5. 1864 Emancipation
6. 1865 - 13th amend. - no slavery
7. '68 - 14th amend. P+I, DP, EP
8. 1870 - 15th Amend. Franchisement of the slaves.
9. '75 - Congress passed Civil Rights Act of 1875 - it forbade discrimination in public accomodations. This was challenged in:
10. Civil Rights cases of 1883 - where court struck down the Civil Rights Act on the grounds that the 14th Amend. Applies only to state action, not to private action. So, 14th did not apply to private business owners who were discriminating not the states. Said Congress could not ban this type of discrim. Using the 14th.
11. 1881 KS case - KS S.Ct. said much about psychological effects on children. Said schools should reflect society.
12. 1896 - Plessy -
Plessy - law requiring segregation in LA of RR cars.
A. Really a law to perpetuate discrim. Against blacks.
B. Mixed race man objects, but RR also object to this as a loss in money.
C. EP claim, possible 13th and badge of inferiority for the blacks, Court said no badge of slavery and no inference of inferiority.
D. Brown for majority said separation okay to preserve social order and peace and comfort.
E. Notes no different than Congress mandated segregated schools.
F. 14th - court says we cannot enforce social equality, no enforcing of co-mingling.
G. Harlan I - notes the real purpose and effect. Reference to the Jim Crow laws as ways to fight war purpose and to keep racism allowed. Great dissent.
H. Remained the law until Brown
I. 1896-1954 - number of challenges
1. Cumming vs. County Bd of Ed. - black taxpayers in GA bring this, black high school closed. Court said no more white school until black high school re-opened. Enforced the requirement of equality.
2. Gong Lung v. Rice 1921 - said no denial of equal to put asian child in black school.
3. MS ex rel Gaines 1938 - talk of new MS black law school, and state offered student money to go out of state. Court struck this down, saying you have to provide substantially equal education and if black school not there or comparable must allow in white school.
4. Sipuel v. OK - court forced admission of black to white law school too.
5. '50 Sweat v. Painter - argued by Thurgood Marshall - Court found TX black law school to be grossly inferior.
6. '50 - McLaurin v. OK - black student had to go to white school, but required him to sit separately, and court found impairment to his education in grad school.
Brown I - 1954
A. Argued by Thurgood Marshall - several combined. Unanimous opinion.
B. Warren is Chief Justice - former governor of CA
C. Opinion short on law, but done to achieve unanimity and reach a necessary political decision.
D. 14th EP claim - Court relied on psychologists who found the psychological effect on education of segregation.
E. Court notes separate is inherently unequal, and is a badge of inferiority.
F. Same day Bollinger decided based on 5th b/c in D.C. based on fed. Jx.
G. Brown II - Court enforced, said required prompt and reasonable start toward compliance.
1. Said some time extension possible for practical concerns
2. Court said admit without looking at race with "all deliberate speed"
H. Derrick Bail - prof at NYU
Think about why so politically important at this time, and why so valuable for white americans.
Think about ethnicity of the school you were in for lower grades.
Con Law II - 1-23-06
Recap of Last Class
A. Korematsu and current significance of that case and the allowed military profiling.
B. Brown helped us with communist countries and relationship, and precepts of WWII as a reassurance here at home, fear that the south before had not been able to industrialize which it now could by treating the workforce in equitable manner.
C. Questions of whether results are happening instead of just efforts
D. Soem concern that black only schools made some level of sense, maybe integration not the way to go now. Practical problems of high concern too.
E. Harry Bird - VA Senator in 1956 - talked about massive resistance to Brown - Senators signed massive initiative to oppose Brown dictates -
F. Griffin v. Prince Edwards County - grants given to white kids for private schools and public schools were closed, four years without schooling for black students - Court noted that the time limit for deliberate speed had run out, and ordered grants to stop and equitable remedies
G. Tool of the time was Freedom Of Choice Plan - allowed parents to choose where to enroll their children, high burdens on minorities to not enroll students at white schools, and the white children only enrolled at white schools. Choice of whether to force children to be the tools for desegregation.
H. One of the great difficulties was this tipping point - when schools achieved a certain level of minority in the school, then white flight and white community moved to suburbs with new school districts, so court struggled if they should step in and integrate between urban and suburban.
I. So, low income whites were the only ones that could fight the desegregation, the middle and upperclass whites could afford to move away or send to private schools.
J. Some argument that Brown only mandated the end of segregation, but did not mandate integration. So, did not require affirmative efforts to integration, but rather taking away the barriers to it. So, first real use of term affirmative action.
K. Must there be affirmative efforts to integrate?
L. Also distinctions drawn between de jure discrimination and de facto discrimination
1. if de jure - by law - then it could be addressed
2. if de facto - may not be addressed, because say a result of innocent housing patterns.
3. so said de facto was not from govt. action, and thus okay, so this distinction becomes very important.
Swann v. Charlotte - Mecklenburg - p 98
A. District court ordered busing between the inner city and outlying areas, court said neutral assignment of students would render Brown irrelevant. So, given the background of segregation, must be conscious of race in devising a remedial plan.
B. Court seemed to approve readjustment of school zones, or setting racial quotas, or school busing to all accomplish integration.
C. Increase in integration in the south, but decrease in the north. Most of nothern decrease was because of white flight to the suburbs.
Milliken v. Bradley - 700 - city is one school district, and suburb district, de jure segregation found only in the city school.
A. District Court found that the only remedy would be a multi-district remedy, boundaries created by state and so changeable.
B. USSC reversed saying the remedy went too far to stand. Only violated 14th if the lines had been drawn for the purpose of segregating, so can only use multi-district where you find all the districts have de jure segregation.
Raises issue of purpose and effect.
A. Note you must find discriminatory purpose in order to find 14th violation
B. Need intent not impact and purpose not effect.
C. Another way to restate de jure and de factor discrimination, but there de jure is done by law specifically, so a little different but same idea
D. So, need intentional discrimination: found on its face, in the application of the state, or by its intent which sometimes can be shown through circumstantial evidence which may be overwhelming evidence of impact.
E. If you find discriminatory purpose, then you can use strict scrutiny, so must show compelling interest and means necessary to the interest, in other words there must be no less burdensome alternatives available to the govt. to achieve its interests.
Started with sep but equal - Plessy - Brown and sep is inherently unequal - mandated integration - then see mechanisms to keep segregation, then saw de jure/de facto and purpose/effect distinction
Loving v. Virginia - Virginia case - interracial couple went to D.C. to marry, then when they return to VA they are arrested for violating the law, then sentenced and postponed on condition that they leave the state for a while
A. Challenged on the basis of EP - state said equally applied so not EP violation
B. In this case, the clear purpose was to not spoil white blood.
C. If we have legitimate reason - why?
D. Distinction in treatment
E. Always EP is designed to protect individuals from stereotypes, right or wrong, about their race.
F. Also, Warren notes possible substantive DP claim, in that it is a substantive right to marry who you want - under liberty and that unenumerated right under there as a basic civil right of man.
G. So, even handed state purpose still struck down under strict scrutiny
Palmore v. Sidoti 683 - remarriage to black man allows white father to get custody in best of interests of child to be with unracially mixed families.
A. Social stigma is basis for the removal request.
B. Trial Court agrees with dad
C. Appeals - in USSC eventually - Court said that public prejudice cannot be a reason to remove the child, debatable best interests of the child.
D. Interests of child are compelling here, but this may not be the necessary means to accomplish the ends, no less burdensome alternatives, So, there are means less alternative.
E. Concern of legitimizing overt racism in decions-making.
Purpose and effect material on p. 685 - administration of the law may be discriminatory
A. Motivation might be discriminatory as well. Griffin and Palmer v. Thompson and closing of swimming pools. Court wrong on swimming pools really as motivation was discriminatory.
B. For discrimination in administration - the court will likely retain jurisdiction to assure compliance.
Washington v. Davis - qualification test for cops based on ability to read and comprehend - black cops who failed sued saying disproportionate impact.
A. USSC - said Appeals wrong, and agreed with District Court that it should be rational basis because not enough for disproportionate impact, but need discriminatory purpose requried in the law in order to say it violates the Const.
B. Title VII also noted that even if the statutory standard applied then it would be based on impact, but this title did not apply because it only applied to state action and this was a federal/D.C. case.
C. Court said this was legitimate test, said job relatedness, need to show intent to discriminate which they did not
Arlington Heights - effect was there, but need to show intent.
A. Shows one great effect of this as impact of the intent doctrine.
B. Problematic because problems are instiutionalized or unconscious a lot, intent test demands that we point fingers and say you are a racist, whereas many engage in these behaviors unintentionally, perhaps unconsciously.
C. Huge hurdle to overcome, serves as a divisive course because now we must blame someone as a racist to get results
D. Intent requirement has been very restrictive force for Plaintiff in this field.
Con Law II - 1-25-06
DeFunis v. Odegarrd - first time the case came up, out of WA, admission program that reserved slots for minority groups. Separate admission track for minorities, and most of those accepted under this program had lower scores and GPAs than the white Plaintiff.
A. WA S Ct reversed lower court and went against Plaintiff.
B. Question became if this stigmatized the students as inferior, said it was not like Brown where this happened.
C. Court found some areas where consideration of race in and of itself was allowed, such as busing cases.
D. The court said this is not benign discrimination with respect to those not admitted.
E. Court said burden on school to meet the strict scrutiny case
F. The University gives reasons: (i) minorities grossly underrepresented despite equal taxes to state, (ii) minority community in state underserved, and will be served better by minority graduates returning to their own communities, (iii) minority young folks need minority role models, (iv) minorities underrepresented in WA as professors, officials, and political leaders, and (v) white students will benefit, because it is necessary for education to assure that they be cognizant of different races and this is part of a good education.
G. Court then looked at these and asked if compelling, then they looked for less burdensome alternatives. Tried improvment of lower schools, but has not worked yet, they said that this is the only plan available to work now and quickly.
H. The problem here was that the minority track did not include all minority groups in the program. University said the groups not included were already achieving without help.
I. Court said the school can remedy the most serious racial problems, but they did not have to negate the whole program in order to do it all at once.
J. So, Court found Constitutional. White student stays in school pending the appeal to the USSC.
K. Pale dissented because he does not believe discrimination is good regardless of the purposes behind it. Says really cannot have special criteria for graduate level education.
L. USSC finds case moot, because plaintiff was still in school and was to finish regardless of outcome.
M. Douglas wrote on the merits saying it should be decided and not found moot - said more cases will come up. Says LSAT adn GPA are not to be only criteria, can look at past, and motivation towards school, and then the process could be applied to all individuals as individuals and not by race. Said you must consider each applicant in a racially neutral way. Finds special treatment of minorities as a special class is a bad idea with too many issues. Plus there are more alternatives. Sees stamp of inferiority.
Bakke - medical school case
A. Bottom Line is Court finds separate admissions program here is unconstitutional, but Court does say that race can be a factor in admissions.
B. Davis reserved 16 slots out of 100 for special admissions program - said "designated for members of minority groups - black, chicanos, asians, and native americans" P had applied several times.
C. Trial Court said race cannot be taken into account, but did not order Bakke to be admitted, because he did not show that but for the special program he would not have been admitted.
D. CA S. Ct. said that all racial classifications like this must be strictly scrutinized, same interests from DeFunis looked at and found to be compelling state interests. But, court found less burdensome interests available. Said 14th EP said that no applicant can be rejected because of his race for another less qualified by racially neutral standards. So, said court right to strike down, but reversed to admit Bakke. Said once you demonstrate bad racial classification, then the burden shifts to the university to show that Bakke would not have been admitted without the program. University said it could not meet this burden, so Bakke admitted.
E. Order stayed for cert. to USSC. University argued that because program did not disadvantage a discrete and insular minority, so that strict scrutiny should not be applied here. Discrimination against majority cannot be scrutinized if classification is benign.
F. Benign and invidious distinction had many problems
1. how to draw distinction. Powell said hard to tell, possibility that preferential programs may reinforce stereotypes.
2. Unfair and inequitable to make innocent persons suffer to right wrongs for which they are not personally responsible.
G. Powell requires finding of discrimination in history of institution as a prerequisite to allowing these special programs. Societal discrimination held to not be enough here.
H. Interests offered by University - 1) health care to underserved - not demonstrated that minority doctors are not more likely to deliver health care to deprived citizens. Means not correlated to the ends sought.
I. discussion of academic freedom as a part of 1st amendment for University to make its own decisions about student body.
J. Powell refers to Harvard where race or ethnicity may be a plus in the file, but still considered along with other applicants.
K. Program eventually held to be Unconstitutional at least in the absence of past discrimination in the institution. Also, Bakke to be admitted, because Univ. concedes that it cannot prove Bakke would be rejected without the program.
L. Race may be a factor along with others to maintain a diverse student body.
M. Dissent - Brennan, White, Marshall, and Blackmun - traditional strict scrutiny not required because no fundamental right involved and no suspect class involved. Either of these two will invoke strict scrutiny.
1. says Whites have no characteristics of suspectness.
2. race is being used, but for benign purposes
3. so appropriate scrutiny is the intermediate scrutiny - need to show important government objectives and show substantially related to those objectives. So, they can adopt a program to right wrongs of societal discrimination.
4. Leap of Faith - says but for pervasive racial discrim, Bakke would not have qualified even without the special admission program. Sees advantage to white applicant from the get go because of the past.
5. Remedial measures that affect whites do not create a badge of inferiority or stigma for the whites.
N. Marshall dissent - good portrayal of condition of blacks in this country, said 14th designed to prohibit all outrageous racial discriminatory measures.
O. Blackmun - asks why race is a bad factor, where athletic ability and such is not a big deal. Two track thing in Const. bounds, but barely, not qualitatively different from Harvard, but the important element here is free of stigma. Need to get beyond racism by being conscious of race first.
Grutter
A. U of Mich Law - policies made public on website and such. Notes key words as "critical mass" of minority candidates admitted each year. But, to what extent can we do this with characteristics that are immutable and out of applicant's control.
B. D. Ct. - said attaining diverse student body is not a compelling govt. interest, and even if it is the means here are not narrowly tailored. Appeals said diversity is a compelling interest, adn race as a factor is a sufficiently narrowly tailored means.
C. USSC certs - split of authority as to whether diversity was a compelling state interest. Asked what was the precedential value of the Bakke case.
D. Court said that concurrence in the judgment on the narrowest grounds counts to say that the narrow grounds of five are okay. Here they endorse the fact that race can be a factor and diversity can be a compelling interest.
E. Result is school had compelling interest in attaining diverse student body, and the admissions program was narrowly tailored, but not necessarily for a remedy of past discrimination in that institution.
F. Critical mass said to be able to make unique contributions, they can learn that there is no single minority viewpoint on the issue.
G. So 14th Amend violation alleged, Admissions Committee chair said objective was not to remedy past discrimination, but to create diversity or a different perspective here.
H. Court respects educators as having a need for diversity, and discusses many briefs filed.
I. Military amicus especially cited
J. Lower court said means not narrowly tailored, because there were other means available.
K. Court says allow the consideration, but it must be limited in time - notes 25 years from now use of racial preferences should not be necessary to remedy anymore. Is this to be a mandate or a tagline....a lot of attention paid to that figure.
L. Concurrence cited international authority - which agian is a recent phenomenon. Notes research about lower schools resegregating and the equal opportunity still not being there.
Con Law II - 1-30-06
Grutter dissents
A. Scalia - sees critical mass as a sham, just like a quota, etc. Makes fun of multi-racial education as crappy justification.
B. Thomas - only African American on the court. He is sort of token minority on the court. Quotes from Frederick Douglas - wants no interference, just leave them alone. Wants strict scrutiny because of racial discrimination, and the Court here is giving too much deference to the school. Talks about narrow cases where the government has survived strict scrutiny. This is a minimal level of cases. Says no compelling reason presented here like in those situation.
1. Hates social experiments on other people's children.
C. Rehnquist dissent - unprecedented deference under strict scrutiny. Sees means as bearing no relation to the ends. Goal is a sham, but really doing race-based planning which is wrong.
Grutter and Gratz - see swing votes in the middle of O'Connor and Breyer. In Grutter they joing majority, but in Gratz they go the other direction. This is where we see a distinction.
Gratz - different because of the point scale which is what people don't like.
A. Facts missing from out version - 150 point scale for undergraduate admissions. 110 of these points are for academic factors, within these up to 80 points can be earned for high school grades. Note that the higher GPA's are due to AP courses giving over 4.0, not available in disadvantaged schools. 10 points for good high school, 2 points for SAT, and 8 points for other academic achievements.
B. You can earn up to 20 points in any one of the following, but no more than 20.
1. Black, hispanic, indian, or
2. disadvantaged background, or
3. if you attend an overwhelmingly minority school, or
4. if you attend a socio-economically disadvantaged school, or
5. if recruited for athletics, or
6. if you are beneficiary of provost's discretion (usually influential donors).
C. Then you can 10 points if you are a Michigan resident - 82% are white
D. If you life in upper-peninsula 6 points, still all white, but more moderate in income
E. 2 points if you are from underrepresented states.
F. Legacy applicants gets 4 points if your parent, 1 point if another close relative is alumni. Favors whites again.
G. Up to 5 points for leadership and service, 5 points personal achievement, up to 5 points for personal essay.
H. Despite the overwhelming points for white applicants, focus on the race points.
I. Gratz arguing past discrimination remedy, or diversity is too fluid, but in Grutter diversity held to be a compelling interest, but Rehnquist says even if diversity is a compelling interest, the means are not suff. Necessary.
J. MI argued that volume of apps prevented case-by- case look at candidates, but this is administrative convenience, which only works for rational basis.
K. Souter dissent says between Grutter and Bakke, and he wants candor and wants it encouraged.
L. Percentage plans held as somewhat neutral in these cases.
After all this diversity really became the major rationale. The remedy for past discrimination kind of left.
Read first full paragraph on 733.
Maybe the real key that underlies this is merit and how we define it, are we reducing merit in affirmative action programs, or are we redefining merit.
Essentially always a threshhold issue of if the person would get in without the discriminatory program.
Con Law II 2-1-06
Introduction
A. Note what criteria we look for in all of these cases that differentiates one case from another case?
B. Be prepared with a view.
Employment
A. 1980 Fullilove p 737 - plan where so much funding for public works funding had to go to minority run business groups.
1. Hispanic, African American, Eskimo, Asian for to be a minority group.
2. No specific allegation of discrimination in the contruction industry.
3. Suit by white contractors.
4. Berger upheld the plan, said use strict scrutiny but with deference to Congress. This deference to Congress is because they are acting pursuant to the spending power, and they can regulate conduct pursuant to the Commerce Power too.
5. Berger says we can be color conscious in order to respond to discrimination in these cases. He argued that there was not much of a burden on nonminority contractors. Minimal effect on plaintiffs. So impact on nonminorities is a factor.
6. Underinclusiveness was a factor here. Ps said that it only includes certain minority groups and not others that are deserving. Says Congress can fix things in increments.
7. Overinclusiveness argument too, some members of included groups that did not suffer discrimination, possible a few had societal discrimination, but they did not suffer as individuals. Berger agrees this may be true, but here preventive measures are provided in statute like waivers, exemptions, as well as additional efforts to uncover minority-front busniess to get around this rule.
8. Berger concludes that under the Bakkee case two prongs this should be upheld. So, either level of scrutiny there would okay this rule.
9. Powell concurs here and invokes strict scrutiny - he was voice of Bakke. He said need finding of past discrimination to make the interest compelling. Here past discrimination revealed in vague findings, but allow Congress to paint with a broad brush.
a) Powell questiosn possible less burdensome alternatives, but he ends deferring to Congress for that question.
b) He talks about factors to consider
1) Efficacy of alternative remedies
2) Duration of remedy - is there an endpoint?
3) Relationsihp between the percentage of minority workers to be employed and the percentage of minority group members in the workforce.
4) Availability of waiver provisions if the plan cannot be met (but don't take too far to let all off the hook).
10. Marshall concurs and repeats his intermediate scrutiny. He notes a difference in when discrimination is benign or invidious so that benign should get intermediate scrutiny.
11. Stewart and Rehnquist dissent - no discrimination every right. Compares this to Plessy. Saying discrimination is discrimination no matter what group we are talking about. No exception here for those that had not been discriminated against, nor for non-discriminating white people. Again, why should innocent pay for the discrimination effect.
a) Concerned about under and over inclusiveness.
b) Quote from Powell - preferential programs reinforce stereotypes that some can only achieve things if they have help.
12. Stevens dissent - not narrowly tailored. Overinclusive. Wants Congress to justify why to give preference to some and not others.
B. 1986 Wygant p 736
1. School board said by seniority for lay-offs except that a special exception for minorities.
2. D. Ct. and Appeals had upheld this practice.
3. USSC reversed saying strict scrutiny always applies where race is a determinative factor. Past societal discrimination is not enough to be a compelling governmental interest.
4. School board defends its role model theory, where you need teachers of a certain color where there are a certain number of minority students.
5. Powell says this goes beyond a limited legitimate purpose usage.
6. Means have to be narrowly framed, need a tight correlation between means and ends.
7. Burden on nonminorities - high burden here. B ecause they are losing an existing job, so greater burden than not being hired in the first place.
8. There are other less intrustive means available.
a) Reframe the compelling interest
b) Find another program not dependent on race here.
9. Dissenters repeat the intermediate scrutiny - where whites are victims due to a program to right past wrongs, then we should require important govt interest and then substantially related means. Why put burden on govt here.
10. Stevens dissent - swayed by the education difference in having a diverse faculty.
C. 1987 Paradise N/A -
1. U.S. v. Paradise - problem with AL dept of public safety hiring state troopers. D. Ct. ordered remedy of hiring one black trooper for every white trouper hired.
2. Brennan writes for plurality and says that the level of scrutiny is hard, but here strict scrutiny would be satisfied.
3. Compelling govt interest - combatting discrimination in this particular dept, and compounded by resistance to earlier court orders which speaks to discriminatory intent.
4. Plan here is narrowly tailored for strict scrutiny.
5. Flexible plan too including provision for waivers.
6. Limited in duration.
7. Numerical goals are relevant to the labor market and not just the whole public.
8. Impact on nonminorities is not as severe as in Wygant.
D. 1989 Croson p 739
1. Richmond's plan, upheld by D.Ct, appeals strikes down, USSC strikes down as well.
2. siad construction contracts % don't match the population, but not direct discrimination, rather just de facto showing.
3. Said Congress could enforce 14th Amend. Thru section 5, so that is different than this case where it is the state or local govt that is enforcing the 14th.
4. 14th was response to discriminating states, but section 5 was positive grant to Congress to do something about this.
5. Marshall dissent looks at differently - says 14th prevented invidious discrimination, but the states could act in benign fashion to remedy past wrongs.
6. Majority - discusses strict scrutiny in all race cases. Raises question of why whites should get strict scrutiny when they are on receiving end. Whites are not discrete and insular minority? Still majority leaves it at strict scrutiny should apply in any case.
7. Majority notes that a black city councilmen passed this bill - accused them of racism basically against whites.
8. Marshall's dissent responds to this allegation saying that the Court is being insulting to black politicians
9. Court less willing here to accept the govt.'s argument that there had been past discrimination in the industry. The figure the local officials used has no means - end correlation. So any correlation to general population is irrelevant, one must use the population in the industry.
10. Court much less deferential than in Fullilove. Said to be grossly overinclusive. Council should consider race-neutral means.
11. Dissent said should defer to local officials.
E. 1990 Metro Broadcasting p 749
1. in the view of some this was highpoint, in other's view the low point
2. Things changed here. Brennan writes.
3. Minority preference from the FCC here - mandatory minority ownership program passed by Congress.
4. From Fullilove we expect great deference to congress. Court said in cases where we talk about Congress trying to affect remedial measures for past discrimination then intermediate scrutiny was appropriate, so the test is important interest and substantially related means.
5. Finds the intermediate test satisfied. Based on need for diversity from like Bakke, need for change of ideas in a given community.
6. Majority and Dissent both raised issue of whether a change of color means a change in views here?
7. Slight burden on nonminorities, mroe analogous to being not hired in the first place as opposed to fired later. Find burden not so great.
8. Dissenters here say must be strict scrutiny again, and this would fail on that test.
9. The fact that one's race affects one's views is a damaging stereotype.
F. 1995 Adarand p 750
1. Most recent powerful case in this area
2. O'Connor - talking about subs from socially and economically disadvanted groups.
3. USSC vacates and remands because the court of appeals used the wrong standard of review.
4. DOJ policy in question, where contractor gets extra compensation for hiring subcontractors in socially and economically disadvantaged individuals categories.
5. Federal law includes a presumption that socially and economically disadvantaged includes blacks, asians, etc.
6. Race-based rebuttable presumption here.
7. Claim based on 5th Amend. Because it is the feds. Doing this and not state.
8. Review cases talked about, and follows Croson saying strict scrutiny for all these cases, so to the extent they do this they overrule Metro Broadcasting.
9. Quote Stevens dissent in Fullivlove.
10. Note strict scrutiny is not "stict in theory, but fatal in fact." They make a point to leave hope that government does not nec. Lose under this test.
11. Dissenters again take the view that there is a huge difference between benign and invidious use of race.
12. Ginsburg dissent - talks about unexamined habits of thought. Refverence to unconscious and institutional racism in society. Talking about showing of intent hurdle is too difficult and does not recognize this unconscious racism that does cause harm regardless of intentional actions or not.
G. Focus on Factors in all of these cases.
H. The intermediate scrutiny test is pretty much now dead.
Electoral Districting: Benign Purposes + Bizarre Shapes
A. Redrawing of lines in TX about to be before the court.
B. Each of these cases is 5-4, so no strong mandate or consensus about the outcome.
C. 1993 - Shaw I p 759
1. Congressional districting with a presumed benign purpose. There are bizarre shapes involved here.
2. Court begins saying race-consciousness is okay, but if districting is unexplainable on grounds other than race, then strict scrutiny is required.
3. Assuming all of one race think alike we perpetuate stereotypes, and divide communities into racial factions.
4. Remedying past discrimination is a compelling interest, but we need narrowly tailored means.
5. White dissent - no injury or preferential treatment, says no other racial group is injured here
6. Stevens dissent argues that when purpose is benign and not invidious, we are trying to empower the disempowered, so equal protection is not violated. Any group that is underrepresented can be a basis to redistrict, we have always done this. Other criteria used to redistrict have been permissible, so this should be here.
7. Souter - says districting different from other contexts - says no one is hurt again.
D. 1995 Millerv. Johnson p 763
1. Another 5-4, creates 3 majority black districts, white voters complain.
2. States cannot segregate any other parts of their states, so why should we allow them to do this for political districting? Is segregating in public really analagous to this.
3. Alwasy stop and see if you can respond to these analogies.
4. He says bizareness of shape is not required for unconstitutional, but it may be evidence that race is the dominate factor here.
5. P has initial burden of showing discriminatory purpose, and can do this by circumstantial evidence such as bizarre shape, or by direct evidence of leg. Purpose. Looking for purpose, bizarre shape not conclusive, but if it is really odd or reflects racial line, it shows some purpose.
6. Ginsburg dissents - ethnic based districts are long-standing, not demeaning, but rather political reality.
E. 1996 Shaw II p 765
1. remand of the first case.
2. Rehnquist finds no compelling interest,
3. Stevens, etc. dissent say strict scrutiny may not be required, but it would be satisfied if we did use strict scrutiny. Past society-wide discrimination should be enough of an interest here.
F. 1996 Bush v. Vera p 765
1. O'Connor talks again about how race-consciousness is okay, but if race is the predominant factor than we have a problem.
2. Race was predominating factor, so race irrelevant and strict scrutiny required. Says means chosen are not necessary to fulfill objective.
3. Souter - says really a political question and leave it to Congress to decide.
G. 1997 Abrams v. Johnson p 766
H. 1997 Lawyer v. DOJ p 767
I. 1999 Hunt v. Cromartie p 768
1. Breyer writing to look at if racial motive was really predominant factor. So, unexplainable on grounds other than race.
2. Courts must use a lot of caution on basis race, be careful because some racial bloc voting so may not be based on race.
3. Thomas dissent - racial basis is bad regardless of good or bad motive.
Con Law II - 2-6-06 (includes book notes)
• Gender specific traits
o Men - better at physical labor, work well in men only offices mostly, aggressive, disciplinarian, dominating
o Women - better at cooperation, smarter, more caring, relate better to others, nuturing, longevity, emotional, listening ability, analytical, patience, ability to commit, biological clock
• Are we try to assimilate, or do we appreciate the differences? Is equality different from sameness? When we talk about equality, what are we talking about? Equal to what?
• What person is the standard? Who is the litmus test?? Is maleness standard? Is whiteness standard?
• Is the key access to opportunity.
Section 4: Other classifications: Sex, Illegitimacy, Alienage, Disability, Sexual Orientation.
Introduction
A. 3 categories held to merit some heightened scrutiny: gender, alienage, illegitimacy.
B. Disability and Sexual orientation are subsequent categories for heightened.
C. Does the 14th Apply to all unalterable traits? Or just race
A. Sex Discrimination
Introduction - there is no provision in the Constitution declaring sex equality.
A. What is useful in Constitution to deal with gender issues?
1. 19th Amendment
2. 14th Amend. EP - has been used in other areas.
3. Privilege and Immunities 14th and 5th Amendment.
4. possible 15th and previous condition of servitude?
B. Many other countries have written gender equality into their Constitutions
C. So, if no other provision applies to women should the 14th?
D. 1873 - USSC said the 14th did not apply to women in Bradwell v. State - woman in IL wanted to go to law school
1. Slaughter-house cases said that you have the right to pursue an occupation, Court said women just not equal for some occupations, so Slaughter was inapplicable.
2. Women to be wife and mother
3. Notes 5th and 14th Amend all used and rejected by the Court.
E. Minor v. Happersett - 1874 - USSC said federal P+I's clause did not include the right of women to vote in state elections, the clause said women were persons and citizens, but not necessarily a right to vote.
F. 19th Amendment
1. Guaruntees owmen are equal, the Court said this did not imply a right against discrimination, because unlike 14th, no EP clause was included.
G. 1971 Equal Rights Amendment tried, but not enough states ratified, and time ran out.
H. Court saw several sex based cases under the 14th Amend.
I. Court usually applied the rational basis review, and struck a few but not all.
Goesaert v. Cleary - 1948 - Court allowed law saying no bartender license unless wife or daughter of male bar owner
A. Purpose of law looks to be protection of women from men at the bar.
B. Frankfurter refers to moral and social problems.
1. Keeps an eye on women
2. are these women of ill-repute
3. don't want to lower female perception.
C. Said states can draw lines in liquor trafficking
D. No requirement for states to follow latest social standard.
E. Deference to the MI legislature.
F. If the Court sees as EP claim, then use rational basis review, and upheld.
G. Dissent saw bad means, but ok ends in benign law. Dissent says no worries.
H. Lochner had kept maximum hours for women as okay.
Reed v. Reed - 1971 - Court declined to say sex was a suspect class. Filed by Ginsburg as counsel.
A. EP used, and Court struck under rational basis.
B. Law preferred male administrators of estates. Possibly based on thought males were more competent, so that they were better able to do this.
C. Men better educated, or conversant in business affairs.
D. Court saw legitimate ends in lower court volumes, but said means too arbitrary so against EP.
E. Really law was to evoke a presumption in order to have administrative convenience. This is a proxy for ease of application.
F. Court says classification must be reasonable and fair and substantial relation to the objective. Sort of sounds like rational basis with teeth.
G. Law struck because means do not bear a rational relation to ends being sought. Court struck admin. Convenience argument.
H. Start suspiscion of sex-based laws
I. Remember EP is designed to protect individuals from stereotypes, true or not, being used against them based on society.
J. Admin. Convenience may be sufficient raitonale under rational scrutiny, but still a proxy, so must show the proxy does reflect the actual for all.
Frontiero v. Richardson - Court rejected assumed wife dependent in military but for dependant husband had to prove dependance for benefits.
A. Could view discrimination from either perspecitive, but it seems the message is that there is discrimination against women who choose to be in the workplace.
B. Generality might be true for administrative convenience, but not credited by the court.
C. Brennan saw as inherently suspect, so wanted strict scrutiny. This is only a plurality though.
D. U.S. said to have a history of sex discrimination. Similar treatment as for slaves. Blacks got right to vote before women.
E. Highly visible difference still generates subtle discrimination everywhere.
F. Also an immutable trait.
G. Make inferior without regard to individuals.
H. Women may not be a minority, but are underrepresented due to their past.
I. Why suspect? Political powerlessness possible, history of societal discrimination, immutable characteristic, or discrete and insular minority. These are all the ways to look at what is a suspect class. These are all qualities or characteristics that derive from cases involving African Americans.
1. what does discrete and insular mean?
2. discrete - easily identifiable
3. insular - separate, easily kept apart.
4. sort of measuring it against race, but how can we really ask people to measure which discrimination has been worse, which group has had it worse?
J. Said Congress could reasonably have thought easier to presume wives dependant and make husband prove, but drawing lines on sex not ok here.
K. Court here (4 member) said yes, and settled on strict scrutiny, but since it has moved to intermediate scrutiny. Brennan's strict standard was not ratified, so intermediate scrutiny used thereafter.
L. Powell Concurrence - said no need to make a suspect class, Equal Rights Amendment may fix, court should stay out of it.
M. Once women could vote should we leave to political process.
Pre-Craig
A. Intermediate settled in Craig, standard is need important ends and substantially related means, also, burden to show exceedingly persuasive justification for the classification.
B. Scalia in VA argues that struct used and not supposed to be.
Craig v. Boren - 1976
A. Brennan majority.
B. Law from OK that said women can't drink N/A beer under 18, but men under 21 can't.
C. Men 18-20 challenge the laws.
D. Standard set out as important governmental objectives and means are substantially related to achievement of those ends.
E. Court said administrative ease is not good enough end.
F. You cannot use gender classification as a proxy for other classifications.
G. Place of women as a justification also rejected.
H. Legislature must "realign their substantive laws in a gender-neutral fashion, or adopt procedures for identifying those instances where the sex-centered generalizations actually comported to the fact."
I. Using Reed as a basis, that the law difference is invalid.
J. Purpose cited is highway safety, but statistics don't show means requirement.
1. 18-20 yr. old male arrests are higher than female arrests
2. very small percent actually at fault also.
3. Law does not forbid drinking it, only buying it.
4. Differences in male and female arrests is even greater as people get older, disparity increases.
5. Young guys often arrested, where women are escorted home by the officers.
6. Also, an issue of group characteristics, and the court discusses dangers of using these generalities even if correct to punish individuals.
7. There is a gender disparity in DUI arrests, but maleness is not a good proxy, also important because state defines as non-intoxicating liquor
K. Use of statistics not good for EP, here not a legitmate proxy. Hard because must move from statistics to generalizations.
L. Also sale laws and not drinking laws.
M. Raises important points as to analyze data.
N. Held that this law denies EP to males.
O. Powell - Concurrence - Reed is correct precedent, and yes it is a higher standard than rational basis.
1. Sees this as means standard, does not work to justify here, also easy to get around the difference in the law.
P. Stevens Concurrence - really need and should use 1 standard, and should explain review instead of using buzz words.
1. Difference here is arbitrary so can state justify.
2. This may seem rational, but no showing safety was actual purpose.
3. It is overinclusive, so really shows not justified.
Q. Rehnquist Dissent - 2 faults
1. use of more stringent review is bad
2. court's adoption of standard without reasons is bad.
3. Should be rational basis and so Constitutional.
4. Males not disadvantaged subjected to systematic discrimination, so males not the same as females before now.
5. Standard of review too vague and subjective.
6. Use rational beasis and Court requires too much expertise from the Legislature.
7. Could see statistics as showing underinclusive and get to this law.
8. Says stereotype bad according to majority, males may now try to conform to stereotype.
9. Give deference to legislature where not irrational, so law okay.
Mississippi University for Women v. Hogan - 1982.
A. Struck Miss Univ. for women's ability to refuse male applicants
B. Oldest state women's school, D wanted in and male.
C. O'Connor wrote majority and affirmed Craig while striking down the admission policy.
D. Just because discriminates against males it is no different. Male or Female, Invidious or Benign, or traditional discrimination, or remedial, it does not matter, you get the same level of scrutiny.
E. Restate the "exceedingly persuasive" justification requirement.
F. Standard again is important govt. objective and substantially related means.
G. Cannot use objective based on stereotypes.
H. Close relationship helps assure not on stereotypes.
I. Said scheme here was bad, and compared to affirmative action.
J. For such remedial must show specific factual discrimination in the past.
K. There is no past discrimination against women for nursing.
L. Policy here perpetuates the stereotypes.
M. Said Kirchberg v. Feenstra - 1981 confirmed the exceedingly persuasive requirement.
N. Policy reflects the view that women can be nurses but not men.
O. Benign purpose is not the actual purpose so invalid.
P. Failed the means standard too.
Q. Record is inconsistent with the school's claims.
R. Powell dissent
1. Said use minimal scrutiny, because this is not sex discrimination, but expanding opportunities.
2. So, he is knocking down the scrutiny level, because he believes the discrimination to be benign.
3. Majority hurt diversity in education, there was no sex discrimination here.
4. Said higher EP standard to evaluate small step for the state in helping women was wrong.
5. Student choice not forced, this is an expansion of women's choices, so why remove
6. This is substantially related.
7. There was no forcing separate here as in separate but equal, rather a choice to go to school alone.
S. 2 other dissents also.
J.E.B. v. AL - 1994 -
A. Court said gender-based peremptory challenges Unconst.
B. Cited race analogy in Batson v. Kenturcky 1986
C. State struck male juroris in child support case.
D. D used changes to strike female jurors.
E. Ended with all female jury.
F. Blackmun majority said need exceedingly persuasive justification.
G. AL relied on stereotypes to justify, Court notes no support for gender as a proxy and stereotypes just not enough.
H. Rehnquist dissent said not deregoatory like race-based challenges so uphold.
I. Scalia dissent - said because D struck women, and AL struck men, system workedf, and no discrimination against men.
U.S. v. VA - 1996 - VMI case
A. U.S. challenges VMI policy saying you cannot keep women out and Court agrees.
B. Ginsburg writes majority
C. VMI is only single-sex school in VA, school is meant to produce soldiers. No where else offers same training.
D. Goal and methoedes are not inheretly unsuitable to women and women want in, VA refuses.
E. VA funds the school, the school gives extensive training and no privacy, really a boot camp that bonds guys together.
F. Women complained and U.S. sues on EP. D.Ct. for VA, Appeals reversed. Alternate women's school opened, but not equal. D. Ct. said okay and Appeals affirmed.
G. Appeals said that you could shut school, make equal school, or go private and accept no more funding.
H. Two issues here
1. does it deny qualified females EP of laws
2. If violates EP, what must VMI do?
I. Need exceedingly persusaive justification, you cannot deny women full rights because they are women.
J. This is not like race, but gets close inspection. State has burden to show.
K. This must be actual justification adn no reliance on stereotypes
L. There are inherent differences, but should not hurt of benefit because of them.
M. No exceedingly persusavie justification shown by VA
N. Remedy here did not cure so reverse and Unconstitutional.
O. Court wants to assure these are not post hoc justification, or invented after the fact.
P. Two justifications offered by VA
1. diversity in education - public good to have diverse educational opportunities.
2. lower standards required if women come in.
Q. Okay if benign, so long as show actual justification as benign.
R. Here unique opportunity denial, not an attempt to give more options.
S. School established when higher education for women unthinkable, other schools did this and are now co-ed.
T. Progression shows no single sex for women is not an anomaly.
U. Need co-ed to teach students to live in society
V. VA studied single-sex ed there and confirmed it should stay that way.
W. Here women only does not serve diversity goal to women, but men only.
X. VA says if it allows women it will destroy trianing methods, so men loss opportunity and women still don't get it.
Y. D.Ct. saw 3 areas affected by co-ed - physical training, the absence of privacey and the adversative approach
Z. But, still there and women want it, and some women can meet physical standards.
AA. Studies and Appeals noted real gender differences in tendencies.
AB. U.S. says Court has said need close look at stereotypes and basis.
AC. Women may not want this ed., but might want it.
AD. Prediction of destruction is self-fulfilling and used before to deny rights.
AE. No goal advanced by excluding women here, VA has not shown justification.
AF. Separate and equal women's program not enough because you need to remedy by eliminating the effects of past discrimination.
AG. Women's school not military and uses different programs, Women did not experience the lifestyle the school said was integral, they don't get training that makes VMI unique.
AH. VA says need differences based on stereotypical differences of women.
AI. Not all women like this and some would like and thrive under VMI system.
AJ. You need a remedy to end exclusion from education opportunity they can do.
AK. New school does not equal and reputation does not equal VMI
AL. The thing that really make VMI a great school are absent here.
AM. Just not equal here.
AN. VA remedy does not match violation and is not enough justification, so remanded as Unconstitutional and need right remedy.
AO. Rehnquist Concurrence
1. Intermediate test ahs been held so far, so why introduct extra piece
2. Exceedingly persuasive justification is more vague than imprecise standard already used.
3. Must be actual purpose, but doesn't like method majority used to get result.
4. Rellay meant to show bit not more.
5. 1982 HOgam and is issue starting point, as notice.
6. diversity in ed. Yes was not real reason, don't look before the school was aware of issue
7. Here diversity only benefitted one sex.
8. State's choice was not limited to admit women or stop school.
9. Court frames issue so only remedy is admitting women.
10. Needs to be actual purpose not saying necessairly discriminatory.
11. Diversity is not pretext for discrimination against women always.
12. Committee did not rate diversity as desire, so why does VA cite now?
EP violation in having mlae only and no female counter-part.
13. VA could offer an equivalent quality school for women only to remedy, here they still created inferior and will be for sometime so VA still loses.
AP. Scalia dissent
1. Court rejects lower fact findings and goes against precedent here.
2. Court dwells on closed-minded past with no chance ot fix their thinking, we should allow democrcy to fix and not read into Constitution.
3. Tests ok, but meant to preserve society's values not prescribe them in the Court.
4. Tradition in U.S. to have all male schools for military, saying not Constitutional is politics not law.
5. VA ordered to change, Court is ordering change to co-ed.
6. Court is creating Constitution not interpreting, it is writing in its own values.
7. Tradition should determine Constitution, not court tests
8. Court says intermediate, but doesn't use it.
9. Exceeding persuasive justification is something new.
10. Intermediate does not require least restrivie means test, and no need to be perfectly congruent.
11. Court avoids codifying existing test.
12. This should get rational basis if re-evaluate.
13. Court has never used strict scrutiny, but has used rational basis before.
14. Women are not insular minority, so no strict, rational because can fix thru political process
15. Court being paternalistic to say this so, women heave held their own.
16. VA has interest in ecuation, history shows single-sex schools are substantially related.
17. Shown the Court similar women's school would not work, and VMI would die if women allowed in.
18. Really 2 legitimate goals taken care of in one school.
19. Court goes outside the record, Committee refutes keeping male as a pretext.
20. Court never addresses lower court's findings.
21. Court's ruling will kill all good programs for men only.
22. Single-sex is substantially related so why look further? No need to discruss how much VMI must change, Copurt's below found huge change in letting women in.
23. Creation of equal women's school is irrelevant, and new school was find, majority wrong.
24. Note hesays clear staement of diversaity as a goal for higher ed. In record. Where??
25. When history of school rejeted, no evidence of pretext.
26. Single-sex public ed. Now illegal, it is just an illusion that future single-sex schools may survive.
27. Intermediate now equals strict.
28. All unique programs must be open to both sexes, but really all unique.
29. Lawyers won against the country.
30. Sees possible effect on private single-sex ed.
31. Limit court notes means nothing unless court disclaims today's holding
32. U.S. in its brief dealt with this but wrong
33. Only hope is inf Court later abandons this broad opinion.
Con Law II - 2-8-06
U.S. v. VA - 1996 - VMI case
A. U.S. challenges VMI policy saying you cannot keep women out and Court agrees.
B. Ginsburg writes majority
C. VMI is only single-sex school in VA, school is meant to produce soldiers. No where else offers same training.
D. Goal and methoedes are not inheretly unsuitable to women and women want in, VA refuses.
E. VA funds the school, the school gives extensive training and no privacy, really a boot camp that bonds guys together.
F. Women complained and U.S. sues on EP. D.Ct. for VA, Appeals reversed. Alternate women's school opened, but not equal. D. Ct. said okay and Appeals affirmed.
G. Appeals said that you could shut school, make equal school, or go private and accept no more funding.
H. Two issues here
1. does it deny qualified females EP of laws
2. If violates EP, what must VMI do?
I. Need exceedingly persusaive justification, you cannot deny women full rights because they are women.
J. This is not like race, but gets close inspection. State has burden to show.
K. This must be actual justification adn no reliance on stereotypes
L. There are inherent differences, but should not hurt of benefit because of them.
M. No exceedingly persusavie justification shown by VA
N. Remedy here did not cure so reverse and Unconstitutional.
O. Court wants to assure these are not post hoc justification, or invented after the fact.
P. Two justifications offered by VA
1. diversity in education - public good to have diverse educational opportunities.
2. lower standards required if women come in. Fear that unique method would have to be modified if women allowed in.
Q. Okay if benign, so long as show actual justification as benign.
R. Here unique opportunity denial, not an attempt to give more options.
S. School established when higher education for women unthinkable, other schools did this and are now co-ed.
T. Progression shows no single sex for women is not an anomaly.
U. Need co-ed to teach students to live in society
V. VA studied single-sex ed there and confirmed it should stay that way.
W. For Ginsburg the first justificaiton does not hold.
1. Here women only does not serve diversity goal to women, but men only.
2. historical recorde does not bear out this interest, rather the historical trend was to go co-ed so more of post-hoc justification.
X. Ginsburg agrees some modifications necessary, but not insurmountable.
1. VA says if it allows women it will destroy trianing methods, so men loss opportunity and women still don't get it.
Y. D.Ct. saw 3 areas affected by co-ed - physical training, the absence of privacey and the adversative approach
Z. But, still there and women want it, and some women can meet physical standards.
AA. Studies and Appeals noted real gender differences in tendencies.
AB. U.S. says Court has said need close look at stereotypes and basis.
AC. Women may not want this ed., but might want it.
AD. Prediction of destruction is self-fulfilling and used before to deny rights.
AE. No goal advanced by excluding women here, VA has not shown justification.
AF. Separate and equal women's program not enough because you need to remedy by eliminating the effects of past discrimination.
AG. Separate women's school just not equal
1. Women's school not military and uses different programs, Women did not experience the lifestyle the school said was integral, they don't get training that makes VMI unique.
2. relied heavily on Carol Gillian and "In A different Voice" used incorrectly to justify differentiating between the two sexes.
3. Ginsubrg falls back on this is not equal so cannot treat it as such. So, the Plessy type cases where just not equal.
AH. VA says need differences based on stereotypical differences of women.
AI. Not all women like this and some would like and thrive under VMI system.
AJ. You need a remedy to end exclusion from education opportunity they can do.
AK. New school does not equal and reputation does not equal VMI
AL. The thing that really make VMI a great school are absent here.
AM. Just not equal here.
AN. VA remedy does not match violation and is not enough justification, so remanded as Unconstitutional and need right remedy.
AO. Rehnquist Concurrence
1. Intermediate test ahs been held so far, so why introduct extra piece
2. Exceedingly persuasive justification is more vague than imprecise standard already used.
3. Must be actual purpose, but doesn't like method majority used to get result.
4. Rellay meant to show bit not more.
5. 1982 HOgam and is issue starting point, as notice.
6. diversity in ed. Yes was not real reason, don't look before the school was aware of issue
7. Here diversity only benefitted one sex.
8. State's choice was not limited to admit women or stop school.
9. Court frames issue so only remedy is admitting women.
10. Needs to be actual purpose not saying necessairly discriminatory.
11. Diversity is not pretext for discrimination against women always.
12. Committee did not rate diversity as desire, so why does VA cite now?
EP violation in having mlae only and no female counter-part.
13. VA could offer an equivalent quality school for women only to remedy, here they still created inferior and will be for sometime so VA still loses.
AP. Scalia dissent
1. Looks to Court destroying a long standing historical school, and the court acting to activist
2. Court rejects lower fact findings and goes against precedent here.
3. Court dwells on closed-minded past with no chance ot fix their thinking, we should allow democrcy to fix and not read into Constitution.
4. Tests ok, but meant to preserve society's values not prescribe them in the Court.
5. Tradition in U.S. to have all male schools for military, saying not Constitutional is politics not law.
6. VA ordered to change, Court is ordering change to co-ed.
7. Court is creating Constitution not interpreting, it is writing in its own values. - Acting as activist Court in making law, not interpreting.
8. Tradition should determine Constitution, not court tests
9. Court says intermediate, but doesn't use it.
10. Exceeding persuasive justification is something new.
11. Intermediate should be used and does not require least restrivie means test, and no need to be perfectly congruent. Hates the phrase "exceedingly persuasive justification."
12. Court avoids codifying existing test.
13. This should get rational basis if re-evaluate.
14. Court has never used strict scrutiny, but has used rational basis before.
15. Women are not insular minority, so no strict, rational because can fix thru political process
16. Court being paternalistic to say this so, women heave held their own.
17. VA has interest in ecuation, history shows single-sex schools are substantially related.
18. Shown the Court similar women's school would not work, and VMI would die if women allowed in.
19. Really 2 legitimate goals taken care of in one school.
20. Court goes outside the record, Committee refutes keeping male as a pretext.
21. Court never addresses lower court's findings.
22. Court's ruling will kill all good programs for men only.
23. Single-sex is substantially related so why look further? No need to discruss how much VMI must change, Copurt's below found huge change in letting women in.
24. Creation of equal women's school is irrelevant, and new school was find, majority wrong.
25. Just because a few women interested doesn't mean we should throw out the all male program
26. Note hesays clear staement of diversaity as a goal for higher ed. In record. Where??
27. When history of school rejeted, no evidence of pretext.
28. Single-sex public ed. Now illegal, it is just an illusion that future single-sex schools may survive.
29. Intermediate now equals strict.
30. All unique programs must be open to both sexes, but really all unique.
31. Lawyers won against the country.
32. Sees possible effect on private single-sex ed.
33. Limit court notes means nothing unless court disclaims today's holding
34. U.S. in its brief dealt with this but wrong
35. Only hope is inf Court later abandons this broad opinion.
AQ. AFter the decision, VMI and the Citadel chose to let women in.
Race discrimination parallel
A. We know there is a settled intermediate scrutiny from Craig v. Boren, but should we just let this be settled, or should we push to make stricter.
So, what about single sex schools generally
A. Only one or two single sex public high schools left in the country
Michael M. - 1981
A. Males punished for statutory rape, and not females.
B. Both parties minors here, but only male can be punished under the statute.
C. Rehnquist says he uses Craig and intermediate, but may not really be.
D. Important governmental interest
1. prevent teenage pregnancy.
E. Because females are already punished by nature, then the males must be punished in order to equalize the deterrance.
F. So, we ask if means are subst. related.
G. Court says that gender-neutral statutes would likely make females less likely to report this problem.
H. Statute discriminates against men, but because no history of disadvantage, it makes it easier to say okay and follow.
I. Brennan dissent - Craig should apply whether male or female is discriminated against.
J. Court upholds the male only statutory rape law.
Rostker - 1981 - male only registration for the draft challenged.
A. Great deference given to Congress
B. Court applies intermediate scrutiny.
C. Important point is proper allocations of how you apply the test.
1. so how do you allocate burdens when you impose the test.
D. Dissent addresses this burden allocation.
1. govt argues no military need to draft women, but it is not appellees burden to prove that the registration exclusion hurts.
2. govt. must justify the existing program, not the challenger's burden to prove that alternative of registration for all substanitally furthers the same objective for the govt.
3. So, really burden should be on govt. to show exclusion of women from the draft substantially furthers an important governmental objective.
4. So, any triggering of higher scrutiny due to classifications, shifts burden to the govt.
Personnel admin of Mass. V. Feeeney - 1979
A. Law giving absolute preference to veterans for life.
B. Women challenges saying the effect of the law is that men are favored, because a substantial part of the veterans were men.
C. Title VII claim not brought because that had explicit exclusion for veterans.
D. Law is neutral, but effect is dicriminatory.
E. We need discriminatory intent or purpose which did not exist here.
F. Argument made that foreseeable consequences render the overwhelmning knowing impact to be circumstantial evidence of intent.
G. Intent v. Impact distinction is what is important from this case.
Several problem areas
A. Should females constitute a suspect class
B. Should males get same level of scrutiny as females
C. Is gender a suspect classification, or is it femaleness
D. Note level of scrutiny as intermediate, and the uniformity as to male or female, benign or invidious
E. When applying intermediate scrutiny be clear re: allocation of burdens
F. Always keep in mind the requirement that you show discriminatory intent not just impact.
Two lines of cases
A. Struck
1. frontiero - military husbands had to prove dependcy to get benefits
2. wiesenfeld - no insurance benefits to widowers with kids
3. goldfarb - widowner must prove depedncy to get survivors' benefits
B. upheld
1. kahn - property tax exemption for widows
2. Webster - more favorable computation of rfemales for old age insurance benefits
3. ballard - longer promotion time for famels in navy.
C. Really juxtaposes perpetuation of stereotypes vs. compensation for past discrimination.
Con Law II - 2-13-06
Other bases of discrimination under Equal Protection.
Categories
A. Alienage
B. Illegitimacy
C. Disabilities
D. Age - young and old, esp. housing areas
E. Wealth
F. Marital status
G. Sexual orientation
Alienage - here discussion around legal aliens
A. Must ask what parts of Constitution goes to this, Art. I section 8, clause 4 - one of Congress' explicit powers is to regulate immigration and such, also foreign trade, and necessary and proper clause.
B. States may not interfere, but 14th and 5th Amendments may have some bearing here. 5th says person not citizen, 14th - P & I does say citizen, DP and EP both refer to person.
C. Courts have thus dealt with this in many contexts
D. Struggle with level of scrutiny and is this unalterable trait, but sometimes can become citizen at later date, so alterable.
E. Is this discrete and insular minority, or is there history of discrimination.
F. IL case with law banning outside citizenship persons from practicing law.
G. Court's fear that foreigners will be formulating govt. policy, so that is litmus test, so the closer you are to formulating the more likely that you can be blocked.
H. Court rejected with respect to practice of law.
I. Ambach - NY ban against public school teachers as aliens. Court upheld, Ps permanent resident aliens. Court was swayed by influence on children, and a government function. Teachers perform task that goes to heart of representative govt.
1. Minimal scrutiny because of important govt. interest so the law upheld.
J. Aliens could work for civil service, practice law, civil engineers, real estate brokers, veterans preferences, denied right to vote, to hold public office, to teach, to be state police, to serve on juries.
Illegitimacy - waivering degree of heightened scrutiny
A. Particularly if fundamental right involved.
B. Think about in all the context and the possible sliding scale. So, level of scrutiny varies on what civil rights involved.
Disabilities cases - Cleburne
A. one of best cases for review of EP doctrine.
B. Town said home for mentally ill violated zoning adn so refused license from City Council.
C. Council's reasons
1. NIMBY
2. what is the fear? Concern of safety, and possibly uncomfortable, security
3. not as much fear for physically disabled.
D. So ask if suspect class here
E. Courts may have to be more involved where stereotypes being furthered by some laws.
F. Majority says that the existence of laws and bans on discrimination may mean a powerful enough force to show not politically powerless.
G. No suspect class here, and rational basis scrutiny used.
H. Court says this still fails the rational basis test. Based only on irrational fears of neighbors.
I. Concurrence - said don't use different levels of scrutiny, but rational basis always, and let the facts determine if that is satisfied or not.
1. 3 basic questions for all EP cases
a) History of disfavor?
b) Public purpose of law?
c) Is there a characteristic that justifies the disparate treatment?
J. Dissent - especially with standard of review
1. agree with result
2. majority says using rational basis, but not really or would uphold the law.
3. want intermediate scrutiny.
K. Different treatment might really be appropriate in some situations.
Age and Murgia case
A. Cop retirement law upheld on rational basis
B. Not a suspect class, so for age then rational basis.
C. Be clear on application of EP in these cases
1. Legitimate government interest - articulate as what?
a) Public safety
2. so now ask is the ban on those above 50 is rationally related to the legitimate government interest in safety
D. Court does generalize about age
E. If race-based then we would have to give them a chance, but here no requirement to give them a chance.
Many cases in age discrimination dealing with children
A. Possible DMV regulations to underage students
B. Rights in schools
C. Employment
D. Housing
E. Drinking age
F. Sex
G. Curfew laws
H. Contracts
I. Generally court only holds to rational basis scrutiny, part of this is that young people will get over this. Only temporary restriction, but the older people will never get any younger.
Sexual Orientation
Romer v. Evans
A. Referendum saying no protection could be granted to gays, and could not in any way give them minority status here.
B. State did this to counter-act anti-discrimination based on sexual orientation laws and such. Large cities were passing laws to protect.
C. Upsetting to others maybe because similar to Cleburne did not like the analogy to other minority groups.
D. State Supreme Court - applied strict scrutiny and amendment failed.
E. USSC certs.
F. State arguments
1. conserve resources to fight discrim against suspect classes
a) Kennedy doesn't buy
G. Kennedy - protections removed are taken for granted by other groups, or are not needed. So, this takes normal rights from gays. Protections taken are against exclusion from ordinary matters that constitute civic ability in general.
H. Seems court is toughening rational basis scrutiny.
I. Scalia dissent
1. politically powerful minority that is overly influential.
2. said opinion against precedent of Bowers, but now overruled.
3. no conflict unless you conflate conduct with status re: homosexuals
4. law denies homosexual preferential treatment only
J. really though is this special treatment or ensuring equal treatment.
1. this divides court in many contexts.
K. Dissent is concerned with the slippery slope here too, and raises the issue that there is a Consitutional ban on polygamy.
1. Parade of horribles concern
2. are these the same or distinguishable.
Same sex marriage
A. Some states uphold.
B. Concern of full faith and credit, as states will have to recognize marriage of same sex they do not like
C. So, defense of marriage act passed, good capsule discussion of this issue here 836-37.
D. Polygamy - possible that there is such an abuse of the system to hurt women, or such, then we are worried about sanctioning of abusive system.
1. genetic concerns?
Summation
A. Really hang on all the contexts that EP is applied.
B. We have covered all the groups now, so think about groups and others in society on how to scrutinize those laws.
Con Law II - 2-15-06
Now fundamental interest strand of EP, particularly voting.
Somewhat easier to think of these cases as substantive due process.
A. Analysis of EP or DP is strict scrutiny if you find a fundmantal right.
B. Either of these might be enough, and some cases do in fact present both.
C. This is a confusing area, and placement in book confusing.
Harper - poll tax in VA
A. Despite appearance, this was substantial deterrance to voting rights.
B. Federal elections this would be banned by 24th Amendment. All but four states had banned this at the time.
C. Nowhere in Constitution is there a right tovote in state elections.
D. Court notes that Wealth has no bearing on voting qualifications.
E. ONly legitimate purpose is voter qualification, fundraising not real reason, so this is not a means toward the end of voter qualification.
F. Majority notes that the right to vote is too precious and fundamental to be impeded.
G. Black dissent - says legitimate state interest in collecting revenue.
1. belief that those who pay tax will be more interested in the state's welfare.
2. So, voters will be more engaged and thoughtful if have to apy
Kramer - only parents and property owners could vote in school board elections.
A. Lessees could vote too.
B. Those who cannot vote are single people that are not paying rent or anything else, also those living with children or relatives. Clergy, military, and other small categories.
C. State's interest is in getting those who really care and are really impacted to vote in those elections - Court sees this category as under and over-inclusive for the interest set forth.
D. Fundamental right, and no compelling state interest.
E. Same dissenters as in Harper
1. see as legitimate
2. also want lesser standard invoked, so rationally related means no denial of EP.
Salyer Land Co. - 1973 - costs assessed in relation to benefit received by land owners.
A. Court allows because special and limited purpose, so disproportionate impact on those allowed to vote.
B. Rational basis - really maybe because this dilutes impact of vote as opposed to denial of right to vote.
Rice v. Cayetano - 2000 -
A. HI people only could vote
B. State tried to say special purpose districts
C. Dissent - analogy to native Americans accepted, and only rational basis imposed which is satisfied.
Reapportionment and Districting
A. Court initially address this as non-justiciable. Said no judicially manageable standards.
B. Baker v. Carr first one - said not necessarily political questions.
Reynolds v. Simms
A. Alleged malapportionment of AL legislature.
B. Populations had changed dramatically since the lines were drawn.
C. Warren - talks about dilution, not denial, talked about right to vote as a fundamental matter in free and democratic society.
D. Says precision not required, but so long as divergence from strict population standard are based on legitimate considereations, incident to affection of rational state policy, then some deviations from EP are okay.
E. But history, economics, and groups not a reason to draw lines.
F. What can you use
1. geography
2. local interests/economic interests
G. does not want a lot of variation, but some minor may be okay.
H. CO companion case - the fact that state voters have approved of districting does not make it Constitutional. Majority cannot take Constitutional rights from the minority just by voting.
Gerrymandering - politicians setting up their own districts to assure that they get voted in. Draw odd shaped districts to assure that they have success at voting booth.
Unassigned, Davis v. Bandemer - decided 20 years ago.
A. IN had apportioned districts in a way that the republicans were favored over democrats.
B. Democrats said the apportionment diluted their vote, so they are majority of voters, but are minority of those elected.
C. Committee arranged for this that was all republican, along with computer experts to assure proper voting lines.
D. Court decided that political gerrymandering cases (i.e. political parties) are properly justiciable under the EP clause Court's rationale. Said that need to show threshhold showing of discriminatory vote dilution in order to have case heard.
E. Parties did not meet threshhold here.
PA case, Vieth - decided 2004
A. Important because a TX will come up that this sets up.
B. One party disenfranchised from another.
C. Four justices: Scalia, Rehnquist, Thomas, O'Connor said that Davis should be overruled, should say political cases like Davis are not justiceable. This is because no matter what there have been no standards have been established to review this.
D. Kennedy opinion concurred in judgment, but left open the door that some situations where practice is so egregious that it was necessary to step in. Limited and precise rationale to judge these in those cases.
1. also suggests that the 1st amend. May be a better basis for court intervening than EP.
2. 1st amend. Because gerrymandering may interfere with one's vote based on ideaologies and associations.
3. Says if workable standards emerge, the Court should be prepared to hear the case.
E. What they are all searching for is some way to judge these cases.
F. The apportionment was applied based on invidious objective.
G. Stevens dissent - equal justice requires state to govern impartially and when partisanship is sole intention, and no neutral thing put forth on the surface. When this happens cannot say govt. acted impartially.
1. says just because political group and not racial group that is asserting the right here does not make nonjusticiable.
2. says need discriminatory intent also, so may look at shapes of districts, etc. to see the purpose.
3. Concludes that rational include elements of neutrality and legitimacy for application.
H. Souter and Ginsburg also dissent - asks how much is too much?
1. when is this effect too extreme.
2. discuss how sophisticated the process is, this Court created problem no one else can solve, the Court should make a fresh start and set up a real solution.
3. This trend has hurt democratic process too much, and incumbent re-election so bad that we see their doing this to achieve election.
I. Four members want to deal with this and come up with criteria, four say not justiciable, and Kennedy says willing to listen if some criteria established.
TX redistricting case
A. Usual method is every ten years with the census.
B. Districts were 17 Dem. 15 Rep., Tom Delay - republican Congressman - put pressure on governor and officials to redistrict, and pushed through legislature.
C. Districts became 11 Dem, 21 Rep.
D. Question became when political party gerrymandering become so egregious to become unconstitutional.
E. No reason here beyond bad one.
F. Initially all redistricting must be reviewed by DOJ - and here they say violated Voting Rights Act.
G. Their conclusion suppressed because their bosses overruled them.
H. Lawsuits brought.
I. Challenges
1. dilution of hispanic vote is one challenge
2. population figures did not change, so no real reason to change districts.
J. So question about limits on reapportionment.
K. Commissions may be one way to remedy situations.
L. 3-1-06 argument in USSC
Con Law II - 2-21-06
Ok - Boddie - court fees for divorce
X - Kras - court fees for voluntary bankruptcy
X - Ortwein - judicial review of denial of welfare benefits
OK - Little - blood test in paternity action
X - Lassiter - right to counsel in parental status determination
OK - MLB - fee for appeal of termination of parental rights.
This is now fundamental right strand of EP. Combines a little with DP too.
Boddie - DP so marriage fundamental right, and the only way to get a divorce is through the judiciary, so no alternative. Teh govt. has monopolized means of divorce
A. EP - classes set up first so indigent vs. nonindigent, so really on the basis of wealth.
B. DP does not guaruntee access to the court in all civil actions, but divorce deals with a fundamental right, so deserves special consideration.
C. Douglas relies on EP - based on Griffin where indigent Ds have a right to their trial transcript for appeal.
1. so Douglas relies on crim pro cases here too.
Kras - talking about bankruptcy, Blackmun finds distinguishable as no fund. Right involved adn no exclusive control over the remedy. Court sees possible alternatives to judicial interference, but this may not be realistic despite the Court's decision.
A. Dissent from Marshall - comments that when right or entitlement in question, the only body who can determine the claim is the judiciary.
B. 2nd dissent says invidious discrimination in wealth discrimination.
Ortwein - Court follows Kras saying no fund. Right
A. Think of case discussing necessities? Shapiro v. Thompson - no suspect class here either.
B. Note not wether you agree, but the factors to use.
Little -substantive DP right here.
A. Cost of blood test in paternity action. Quasi-criminal case, and no alternative forum.
B. Fundamental right here
Lassiter - Court strikes, is this consistent with earlier cases.
MLB - fee to appeal of termination of parental rights.
A. Too much like criminal action.
B. Cost to state are no too great, and floodgate concern not that huge. Court reviews general rules on p. 868
1. rationality satisfied here under admin convenience. States do not have to adjust all fees for circumstances.
2. Two spots where there are exceptions to this ability
a) Basic right to participate in political processes
b) Nor can access to judicial processes in cases criminal or quasi-criminal contexts.
3. Is there a third category not mentioned here?? Family relationships.
C. Kennedy concurrence notes this third exceptions.
D. Majority says quasi-criminal so fine, Kennedy says should rely on subst. DP to decide this stuff.
E. Thomas, scalia, rehnquist and concern for slippery slope in creating rights out of nowhere. Want to overrule the Griffin line of cases that are now established law.
F. 870 - Dissent discussion of purposeful discrimination requirement.
1. are there rights taht we have, that the govt. cannot demand payment for their exercise. If not is it a hollow right?? State funded ed. Or abortion??
2. Harris v. McCray and govt funding of abortion not required.
Note lassiter and right to counsel, but the MLB is fee for appeal of termination of parental rights.
Now, food shelter and education
Possibly we want some things to fall out of the market
A. Health care
B. Childhood public education
C. Possibly crim pro rights as criminal D
D. Right to food
E. Police protection
F. Right to vote
G. Right to clean water??
H. Right to run for political office
Danridge - aid to families capped, analyzed under rational basis
A. State interest - spreading the aid to as many families as possible.
B. Also possible interest in making sure that the working poor still earn more than those just living on welfare benefits.
1. want to encourage working.
C. Marshall dissent finds the two-tier test unsettling.
1. look at character of classification and the importance of individuals in the class discriminated against.
Housing? Lindsey v. Normet - OR eviction law
A. Law upheld under rational basis.
B. Note unique aspects of the law - abbreviated time frame for the actual case, and limitation on defenses.
Education next.
After early cases, there was a lot of effort to find fundamental rights in other areas, without much success. Where you see affirmative cases, you need to look for what were the affirmative qualities in these areas. But, is education more of a material precondition to the exercise of other rights in these cases?
A. So, strong arguments about public education.
San Antonio Ind. School Dist.
A. Note side discussion of Serrano v. Priest
B. Nationwide problem of disparate funding between, among, and within school districts.
C. Very many minority students in the school, and funding disparity was huge.
1. this was despite the parents in the lowest area were taxing themselves at the highest rate around.
D. Some effort to take some of the higher school district's money in order to equalize, but not much really happened.
E. Trial Court finds wealth to be a suspect class based on crim pro cases, and finds ed to be fundamental right, so applies strict scrutiny.
F. USSC then asks about precedents
1. was there a denial of education? No, quality is really at issue here.
2. no absolute deprivation of the education here, but they are getting lesser value of education.
3. So, crucial thing for the court was denial vs. dilution.
G. Court says no absolute denial mere dilution, so even if fundamental right then no strict scrutiny.
H. Court then says regardless of whether the poor are a suspect class, this does not matter, because not all poor or rich live in certain areas.
1. So, no correlation between the effect here and purposeful discrimination.
I. Then, Powell for the Court notes that money doesn't necessarily buy better education. Even if there is a disparity it does not translate to better or worse education.
J. Court says education is not a fundamental right because the right is not specifically guaranteed in the Constitution, rejects the rights in Const. as dependant on ed. No guarantee of the quality of fund. Rights mentioned in the const. so if this goes to quality of ed., then no reason to have strict scrutiny. So, deference to guarantee of the legislature.
K. Court says passes rational basis, because of importance of local control and allowing competition between districts, and for experimentation. So, rational basis satisfied.
L. Court wants to leave this to the Legislators.
Con Law II - 2-22-06
San Antonio v. Rodriguez -
A. Dissent - several dissents - Marshall and Douglas - sliding scale of rights in degree of importance
1. Education much closer to voting than to anything else, so will not really lead to the slippery slope.
2. nearly All state Consts. Guarantee education, so could be seen as fundmaental right as such.
3. Note footnotes for this dissent.
4. Be clear where marshall comes down on this concern.
5. 881 - wealth not as immutable as race, and wealth is not irrelevant to our system, so invidiousness of wealth classification guaged with importance of interest being affected. Context of wealth discrimination as part of the fundamental rights strand of EP is what is important to Marshall.
6. no matter how much these parties want to assess taxes on themselves as far as local concerns, still the property values are not that high so cannot raise too much.
7. Alternatives noticed:
a) Distribute all taxes to the capital and distribute according to each area's share.
b) Look at rate of taxation to see how priority the education is and then give them a share in respect to that.
Plyler v. Doe - 14th Amend. EP
A. EP applies to anyone who is in the jurisdiction, not just those there legally.
B. So, are illegal aliens a suspect class, do they meet indicia.
1. For the adults, no suspect class, because trait is not immutable.
2. So, we come to is this a choice, that is mutable.
3. Brennan says not immutable characteristic, so not meeting criteria.
C. Kids are different, they have no control over their illegal entry and their presence here now.
D. How about education as a fundmental right - Rodriguez must be followed, and note education is not a fundamental right. But, even if not fundmanetal right, it does deserve some heightened scrutiny.
E. The test to be used without suspect or fundamental right - is rationally further some substantial goal. This is a little different from general rational basis review, this is a case where substantial begins to creep into this easy test. So, rational basis with teeth really.
F. Now apply that test to the circumstances.
G. States interests - are they substantial.
1. 1st offered - preservation of state's limited resources for education of lawful residents - main reason for immigrants to come is employment not free education.
2. 2nd state says undocumented kids singled out for exclusion because of special burdens they place on state to educate its citizens. Talking about language probably. No evidence that this language issued actually affected education.
3. finally - state says appropriate, because their presence in United States is less likely after education, so they may take educaiton and go back to their country. NO evidence to back this up though.
H. So, denial must be justified through further substantial state interest, and this showing was not made here.
I. Blackmun concurrence - denial of education is connected to denial of right to vote.
J. Powell - legislative classification that threatens creation of future underclass of citizens and this cannot be allowed under the 14th Amend.
K. Dissent says unwise of legislature, but not unconstitutional, not up to court to make policy judgments.
1. Court should not engage in result-oriented approach and this is not allowed.
2. fear of slippery slope.
3. withstands rational basis scrutiny.
These two casses are important, be clear about what distinguishes these two cases from each, and where do we go from here.
A. Think about how to use these cases to support the positions you have
B. How do you use this and analogize the cases to do this.
C. So, is there anything that we cannot deny to people based on money fee.
Constitutional Restraints on Private Conduct - state action requirement
Background on congressional power to reach private conduct.
A. 13th forbids slavery and invol. Servitude even at hands of private parties, no state action requirement.
B. 14th and 15th Amend. Apply to govt. conduct only. But, problem is now govt. is so vast and delegates its powers to private parties.
C. These amendments have enforcement provisions for Congress to enact legislation to enforce these.
1. "power to enforce by appropriate legislation"
2. pursuant to this Congress has passed legislation to enforce at two times.
a) Right after Amendments enacted, and
b) The last half century.
D. For 13th - Civ Rts Act 1866, sec 1 - right to contract, own property, and have benefit of laws regardless of former slavery.
1. modern counter-parts 42 U.S.C. 1981, 1982.
2. For 13th same, but section 2 - cannot deprive rights under color of law, means state action
3. 18 U.S.C. 242
E. For 15th - Voting Act 1870, 42 usc 197(a) is modern counter-part.
F. For 14th - civ. Rights act of 1870, sec 6
1. sec 6 - conspiracy to deprive of rights or intimidate from using rights not allowed.
a) Modern is 18 usc 241
2. Civ. Rights Act 1871 - known as KKK act, creates civil and criminal penalties for abriding civil rights.
a) Modern is 42 usc 1983. creates civil suit availability if under color of law someone is deprived of const. federal right.
b) 42 usc 1985(c) - permits civil suit for the conspiracy jazz.
G. Laws to enforce 14th and 15th
1. civ rts act 1875 - public accomodation provisions.
a) Struck down in civ rts cases of 1883, b/c no state action.
2. """ of 1957 - allowed you to go after those with rac discrim voting
3. """ of 1960 - voting
4. """ of 1964 - voting, school deseg, pub accom, some based on commerce clause
5. 1965 voting rights act - mandated end of voting test
6. civ rts act 1968 - fair houseing, riot provisions, based on commerce clause too.
7. voting rights act amendments of 1970 - expanded 65 version, monitors reapportionment cases.
H. See handout of cases for today and next time as a quick reference list.
I. Keep in mind state action requirement applies to 1st amendment too, so applicabilitiy to the rest of the course.
J. In most cases it is clear based on govt action and other cases hazy as to if private behavior is mixed up enough with govt.
K. Three theories that allow private conduct to be considered state action
1. public function approach - if serves public function.
2. significant state involvement
3. judicial enforcement of some private discriminatory practice.
Marsh v. Alabama - public function as to the outside world this is a town, so the outside world does not think of as privately owned. Quasi-town
A. What about cities where the mall really becomes the city center.
B. Movement toward privatizing out communities.
Con Law II - 3-6-06
I. State action requirement - may come from interest of private party balanced with interest of the actor.
A. Weighing these interests in all these cases.
II. Civ Rights Act 1875 - reaching private restaurants, etc.
A. Civ Rights cases of 1883 - Court said that this went too far. We are only reaching private acts at the hands of the govt.
B. What about arguments that there was state action.
1. protections of the state provided
2. open to public
3. is inaction really action
4. judicial enforcement??
5. think about Marsh and her wanting to use the streets to advertise and thus while company owned, entity was opened to the public, so if you want to play as if you are public and play in the public domain, then you should have to abide by public rules too.
III. Theories
A. Public function
B. Significant state enforcement
C. Judicial enforcement
IV. Marsh
A. Analogy to historical New England Town commons.
V. Cases that follow
A. Logan Valley - shopping center treated as functional equivalent of downtown business area. So, we see analogy to Marsh and the shopping center being like a company town.
B. Extension short lived, and Lloyd and Hudgens cut back.
VI. Substance of discrimination should not matter as far as deciding if state action requirement is met.
VII. Smith v. Allwright
A. Electoral process affected because Dem party excluded minorities. Primary affected, so part of election process, so selecting candidates without minority votes is really govt. action. Specifically affects voting mechanism.
B. Here party had a convention - there were state laws that required a primary, and party determined qualifications for the primary candidates. So, state action.
VIII. Terry v. Adams
A. Court looked at purpose of organization which was to pick the primary candidate.
IX. Example of rotary that invites candidates, but not being invited is basically a denial of ability to compete well in the election.
A. Note importance of keeping the state action analysis separate from the actual substantive discrimination claim.
B. What makes state action here, aside from having discrimination in a private club.
C. Are we facing how to face the private interests of the group.
X. P 906 - sit-in cases
A. Harlan concurrence - ask whetehr character of the State's involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.
B. Douglas talks about fact that this is a restaurant, so public and not like an individual's home.
C. Argument for these cases that government was creating the environment for segregation, also publicly government supported.
D. Court said if private business wihtout culture created by business and government, then the business would not even have been able to operate this way, or act this way.
XI. Burton - restaurant next to public parking structure, city leasing restaurant space, restaurant discriminating against blacks.
A. Court decided state action because of symbiotic relationship. Same building, revenues from restaurant funded the parking structure, and the restaurant needed the parking place, and restaurant got location on lease from government.
B. Govt and business were mutually benefitting. And benefitting from each other.
C. So, need to find these two way streets or symbiotic relationship to show that there is state action.
XII. Hypo - city league, where they provide fields, refs. Etc.
A. What if one team is from Catholic youth group - must be catholic to participate.
B. If team fee paid to play, sort of start seeing the symbiotic relationship.
C. What about state delegation to private parties of ability to choose who is on their teams? Is this state action, if teams choose their participants.
D. Gilmore 910-11 - exclusivity distinction, not exclusive use of facility means no state action in this case.
XIII. Moose Lodge and liquor license
A. Hard to come by sometimes, or limited number available sometimes.
B. Limited number, so state choosing one over another means that they are endorsing the other one.
XIV. Jackson v. Metro Edison - private utility with monopoly providing public service.
A. Utilities are necessities, so part of state obligation to provide, and delegating this to a private party.
XV. Reitman v. Mulky - state implements const. amend. saying that people can rent or lease to whoever they want.
XVI.
3/8/06
State action finishing
• May ask for a vote in a case, why and implications
• Reitman -
• Jackson v. Metro Edison - emphasizes the importance and difficulty of separating the substance of the claim and the state action prelimary requirement.
• Blum - due process issue -
• Distinguish - NCAA v. tarkanian, from Brentwood academy
• Should state be responsible for private action of actor
• Try to find internal consistency, and develop a checklist of what is looked at and what applies.
• Always ask if facts really distinguishable or did court change the rules.
Review
I. Really cannot isolate a lot of discussion on exams on grounds of DP vs. EP
A. So, need to reflect on the full value, but focus on Con Law II
II. EP -
A. Three levels of scrutiny in general
1. rational - rationally related to legit. Govt purpose
2. intermediate - subst. related to imp. Govt interest
3. strict - necessary - compelling - no alts. Avail.
B. some in the middle, but not as much.
C. Buzz words important
D. Under and over-inclusiveness, problems with proxy use and how close a fit these things are.
E. Think of it as ideal classification vs. classification in use - this shows issues of over and under inclus.
F. Fritz - Pre-Schweiker case - Three levels of rational basis Rehnquist, Stevens, Brennan - note three ways of using not necessary to anme
III. Willowbrook case - program struck under rational basis - which is unusual
IV. EP and race -
A. Strouder, Korematsu (Murphy dissent saying fails rat. Basis too)
B. Then, pre-civ. And things leading from there.
C. 1883 case
D. Plessy to Brown and sixty years of separate but equal which made okay despite practice as not okay.
V. Note 5th vs. 14th when we are looking at which state actor to see which const. provision is the basis of the claim
VI. Brown - sep ed as inherently unequal
A. Evolved into freedom of choice plans and forced busing etc.
VII. EP outside of education in race
A. Loving - marriage
B. Palmore v. Sidoti - custody case - ct. struck custody to mom removal: interracial - interest in child compelling, but means unacceptable.
C. Purpose behind statute, or effect
D. Palmer v. Thompson - pool closure allowed.
E. Must find purpose in
1. administration, or
2. underlying motivation, or
3. discriminatory effect if sufficient to show discriminatory purpose.
F. Washington v. Daivs - cited for proposition re: purpsoe necessary.
VIII. Busing cases - p. 697+
A. Deals with attempts to enforce promise of Brown
IX. Higher ed. Cases
A. Defunis - not reached on merits
B. Bakke - med school,
1. benign v. invidious a bunch wanted strict
2. dissent said benign rules, govt. should only be held to intermediate.
3. Powell, swing vote, said race could be a factor, but cannot be overwhelming and determinative factor.
1. two track admission system said to be unconst.
C. Grutter - no points, but utilized critical mass as the goal.
D. Gratz - point system, but with many other aspects other than race.
E. Want to see how cases evolved, and what carries to later cases from earlier
F. Early rationales were righting past wrongs, which has now become more advantage to white community of having diverse education.
G. So importance of diversity to white majority has become the more palatable of the rationales
H. Focus on analysis in these and what came out of it in order to apply to new and different fact pattern.
I. Be clear about dissent viewpoints in these decisions, especially where 5-4 case.
J. Not concerned about tracking individual justices and who votes which way in these cases.
X. Race preferences in employment
A. Fulligan, paradise, wygant, crossin, metro broad and adarant
B. Look for elements and laundry list of what made a difference in the case.
C. Factors
1. was it fed. Govt.
2. deference to other branch of govt.
3. waivers and exemptions
4. impact on white majority( for instance not hiring vs. firing)
5. purpose
6. past discrimination within a pool of eligible workers, not just in the whole population, focus in on group as to what is at stake.
7. was history of discrim. In organization, or societal discrimination only
8. resistance ot previous ct. orders
9. narrowly tailored
10. flexible
11. limited duration, period of re-examination.
D. Metro - one case where plurality said intermediate scrutiny was appropriate
1. majority same foursome in Bakke
E. Adarran - cut back from Metro and broadness
XI. Race-preference in electoral districting.
A. Shaw cases, Miller, Bush
XII. Gender discrimination
A. Note handout
B. Is equality sameness
C. How do we look at gender related traits.
D. Gessart bartender, to Reed admin. Of state and male preference, frontiero - military dependancy case (strict scrutiny held there), Craig v. Boren then that became the case to look at despite the case facts.
E. Then cases applying intermediate based on Craig
F. Are we looking at suspect criteria, or suspect class of group. Raises issue of fairness in looking at this and who gets to claim.
G. Court has taken latter view? No difference if male/female or benign/invidious.
H. Hogan and nursing school, showed that reverse would be the same under O'Connor
I. Still have to prove intent in all of these.
J. Make sure that when you apply intermediate scrutiny you keep in mind burden allocation - Rostker case
1. wrong allocation there male only draft here.
2. Dissent said not burden of challengers to prove that their side will substantially furthers, said govt has burden to defend their policy as best method.
K. Michael M. - statutory rape case and should parites be treated differently
L. Two lines of cases analysis. - are we perpetuating damaging stereotypes or correcting past wrongs.
1. compare two lines to see the difference and what it means.
M. Is there an independant community responsibility, or does individual desire to do what you wish a little more important.
XIII. Other areas of heightened
A. Alienage - citizenship not required under clause, only have to be a person
B. Illegitimacy
C. Disabilities - mental v. physical
1. Cleburn case
D. Age - young and old, esp. housing areas
1. Murgia
E. Wealth/poverty
F. Marital status
G. Sexual orientation
XIV. Note pattern of analysis and step-wise
XV. Fund. Interest of EP
A. Voting rights
1. Harper
2. Kramer
3. Salyer land
4. ask if denial or dilution in all of these cases.
5. denial -strict
6. dilution - maybe not.
B. Reapportionment and redistricting
1. note gerrymandering
2. current Tom Delay case before the court.
XVI. Economic barriers and civil litigation.
A. Three upheld, three struck down
B. Look at all together to see if correctly decided and consistent
C. is there anything you should have a right to regardless of ability to pay.
D. Food, shelter, ed., dandridge and cap on welfare.
E. Housing - lindsey
1. housing important, but not fundamental
F. payment for appeal, analogy to crim cases and trial transcript too.
1. used rat. Basis
XVII. Education
A. Maybe not fundamental right, but precondition to a lot of fundamental right.
B. Plyler v. San Antonio and distinction there.
C. P. 884 - what about immigrants from public hospitals, charging admission to parks.
XVIII. State Action requirement.
Suggestions
• No research beyond in text and what he said in class.
Con Law II - 3-13-06
I. Now, talking specifically about the speech aspect of the First Amend. Noting free exchange of ideas.
II. Function of free speech - why do we have this?
A. Promoting Knowledge - allowing formulation of informed opinions
1. discovery of truth - healthy competition in marketplace of ideas.
2. need these open channels of communication.
B. Improvement of society by having more engaged and informed electorate.
1. serves as a check on abuse by public officials.
C. Promotion of individual development and expression - achievement of self-realization.
1. free speech may not be the answer to these, but there is some development seen in the ability to express oneself.
2. even where speaker is completely ignored, we may see that the speaker is able to develop themselves through this expression.
D. Safety Valve function
1. theory that govt and society must afford some way to let off steam, or else we play into the hands of despotism
2. allows a way to achieve goals or express what goals are without a violent event.
3. so avoids resentful attitude in not being able to express oneself, where they need ot to avoid social instability
4. Need to permit entire spectrum of ideas in order for the system to incorporate the ideas so as to difuse the dissent here. '
5. Allows orderly, incremental, evolutionary social change. So this is product or purpose of safety valve function here.
6. Sees hazard in encouraging fear and repression.
III. First two of these reflects the tension between balancing power - view of majority always seems to win, but not always correct. Democratic view, but this is still a difficult and inefficient method. Goes back to placing the power in the hands of the people, but we do not need to pretend that the people possess ultimate wisdom.
A. Free speech may not express wisdom that people already have, but may rather be a way for people to gain wisdom.
B. Need faith in the people to decide wisely, but this can only be done if they are aware of the competing arguments.
C. So, more able to wisely govern ourselves if exposed to ideas on all sides of the issue.
D. We see the remedy for false speech as allowing more speech which will correct hopefully this false speech. So counter speech is the answer.
E. Progress means education is necessary, so we don't repeat the mistakes of history. To avoid the mistakes we must educate ourselves with more speech not enforced silence. So, are there still some places where censorship appropriate.
IV. So what possible limits should there be on the exercise of free speech
A. Amendment seems to be absolute in saying govt cannot even abridge free speech.
B. Or, is there a need to balance other interests.
C. Not absolute, the Court has found situations where there are exceptions and other interests prevail over the first amendment concerns.
V. Schenck - from espionage act of 1917 - which is now being relied upon for several things which may threaten the war effort.
A. Anti-draft flyer distributed to those being drafted.
B. Act prohibited obstruction of recruitment.
C. The parties are arguing 13th Amendment claims regarding involuntary servitude.
D. Court's standard is set out as clear and present danger, so depends on the circumstances. So, the obstruction itself or the act of dragging away is the one that is a crime, but is speech encouraging this action illegal.
E. Court notes that the speech in question does not need to be successful.
F. You need the intent to obstruct and the tendency to instruct. This is really the basis of the clear and present danger standard. Of bringing about a substantive evil.
G. Does the truth or falsity make a difference here? How do we measure the truth or falsity of an idea.
H. Court sees a difference in what the intent was behind the speech.
I. What about analogy to saying during intermission that there are not enough fire exits in the theatre.
Con Law II - 3-15-06
I. Frohwerk - newspaper articles about the draft. Finding of guilt under the espionage act.
A. 1919 case - Ct. infers possible situations where the effect of the speech is minimal and clear and present adanger would not exist regardless of what the words were, or the intent.
B. Govt. perception of the threat is not without basis, so we should defer to its judgment.
C. Ask whether the standard of creating a breath which might kindle a flame as being enough to restrict speech - is this enough, or should we use Schenck and tendency.
D. Should innuendos be enough or do we need actual inciting work.
E. Conviction affirmed.
II. Debbs - socialist party candidate
A. Holmes looks at purpose of speech in matter of the war, where natural result and intention of the effect was to obstruct recruiting.
B. What is standard from this case?
C. Natural tendency, speaker intended effect, reasonably probable effect.
D. Perhaps political and social context make a difference, but these are not really arguments to make to the court.
III. Abrams
A. Deals with 1918 Amend. to the Espionage act.
B. Ds are Russian jews leafleting NY, conviction sustained, Holmes dissent.
C. Message was anti-capitalism message. Encouraged strikes in bullet-making factories.
D. Holmes says no intent to cripple us war effort here. Fear of this huge deference to govt. fears.
E. Dissent restates the Schenk notion of imminent danger.
1. really says going too far.
2. trying to change the mind of the country cannot in and of itself be found to be illegal speech here.
3. says this is really punishment for the content of the speech or more the content of one's beliefs. Not for the clear and present danger which may be created by the expression of those beliefs.
4. best test of truth.........
5. calls test as if the words imminentely threaten an immediate issue - so very narrow circumstances for when we can curtail in any way.
F. Majority had expansive view and seems to broaden the definition of intent - likely to produce is the key phrase.
IV. Mases case - Learned Hand -
A. Calls for test to be direct incitement not natural tendency.
B. Reversed on appeal.
C. Monthly journal that post office refused to mail under Espionage Act.
D. No explicit call for resistance, but these were political cartoons against the war effort.
E. Question of proximate cause really here. We should not interpret cause so broadly to allow suppression of all hostile criticism.
F. Political agitation may encourage others that might lead to law breaking, but that is not close enough. Too remote.
G. If you stop short of direct incitement to violence in resistence, then one should not be liable.
H. You can approve of the course of a hero without deciding to follow him.
I. Goes to 2nd Cir. Who revserses on appeal, saying literal wording does not determine, rather if intent of speaker is clear, and the natural and reasonable effect is to encourage breaking the law, then it is bad.
J. Hand's approach is really the one later adopted and used by the court.
V. We are skipping over the McCarthy era cses - "good night and good luck" film worth seeing.
VI. Gitlo case - one example of case in the intervening 40 years.
A. Prosecution under NY law against criminal anarchy
B. Involved socialists - which were said to advocate and encourage action which shall excite disturbances, and eventually overthrow and disorganize parliamentary government.
C. Court said no need to advocate a specific and immediate act of violence in order to be convicted.
D. Dissent said every idea is really an incitement, and these words continue to be quoted. Need to punish more than ideas.
VII. Brandenburg v. OH - 1969
A. KKK rally, where member convicted.
B. OH statute forbidding advocating violence to achieve political reform.
C. Court reviews the McCarthy era cases then, but alters reading a little of the cases.
1. Imminence and likelihood not required during that era.
D. This case seems to narrow the test, or give greater protection for first amendment and the speakers.
E. Much more protective view here. Closer to views of dissenters in the early cases.
F. Court says Act unconstitutional because it includes mere advocacy as well as incitement - violates speech and assembly protections.
G. Conviction reversed, saying must be direct immediate and likely results to punish words.
H. Concurrence - says clear and present danger in times of peace just should not be the test.
VIII. Hess v. IN
A. Perhaps need a more definite future time, or perhaps more imminence listed.
B. Disorderly conduct conviction reversed, because of lack of imminence in the speech.
C. Tendency to lead to violence not enough.
IX. NAACP v. Claiborne
A. Black boycott against discriminating white merchants encouraged by saying there would be reprecussions for those who did not follow the boycott.
B. No violence resulted the court says - and looks to the possible causation.
C. Discipline phrase was vague and could encompass many different things. Context of comment seems to suggest no violence.
D. Court said hyperbolic vernacular
E. No clear and present danger of imminent lawless conduct.
X. Planned Parenthood - 2002, divided 9th circuit
A. Wanted posters on internet re: abortion providers, and lines drawn through names of doctors who had been harmed by people against this.
B. Had full information about the dr's online too.
C. No direct command, but inference obvious
D. Conviction upheld, why?
1. specific people listed for violence
2. direct inference.
XI. What about bomb instructions and illegal drug instructions?
Fighting Words
I. One of the content based exceptions in first amendment law.
II. Also, obscenity, child porn, defamation, and fighting words are all content based exceptions.
A. Each of these are not entitled to strict scrutiny that we get for content based restrictions, but instead fall under rational basis as not arbitrary adn capricious.
III. This exception gets very few words nowadays.
IV. These are words that if you say them to anyone, then any reasonable person would fight with you.
V. Cantwell - Jehovah's witness
A. People found it offense to attach organized religion in this case.
B. Breach of the peace was law.
C. Court balanced state interest in peace and order against interest in freedom of speech and religion as well.
D. No intent to insult, but rather to draw followers.
E. Not likely to provoke violence, nor were there fighting words used.
VI. Chaplinsky - J's witness again.
A. Insulted the city official, and these were said to be fighting words in this situation.
B. Court talks about speech with ever so slight social value, which is sometimes outweighed by society's interest in order and morality.
C. Lewd and obscene words
VII. Gooding - anti-war picketers
A. Statute deemed too broad here.
B. Almost death threats to officers trying to break up.
C. Problem with state court's interpretation as entirely too broad. Broader than abusive words here. Court did not like how broad the statute had been interpreted.
VIII. Rosenfeld, Lewis, Brown
A. Contexts a little bit different, but same language used just context changed.
B. Rosenfeld - at schoolboard meeting, white teacher supporting black community
C. Lewis - spoke to cops
D. Brown - at church meeting to explain views of Black Panthers.
E. All three convictions vacated.
F. Powell dissent in Rosenfeld - fighting words should be extended to words grossly offensive and disturbing.
1. says in Lewis cops should have higher tolerance
2. brown - the speech should have been anticipated.
3. does this reflect a slightly different standard for whites and blacks.
IX. TX v. Johnson - flag burning case
A. Found not to involve fighting words, no direct person insult, not an invitation to fight.
X. Cohen v. CA
Con Law II - 3-20-06
I. Cohen v. CA - jacket in courthouse
A. Statute prohibts willfully disturbing the peace with offensive conduct.
B. Harlan makes a point of noting that women and children were present at the time.
C. Not pornography, or otherwise totally obscene.
D. Content of message was about the draft, so is this different??
E. Must ask because of "fighting words" doctrine if these words had a tendency to provoke someone to violence.
F. Context may have made a huge difference here.
G. You cannot punish the person for the content of the speech, but manner of speech.
H. Holding is not obscenity case, not fighting words case, also no captive audience here.
I. Mostly conduct and not speech here as well. This is an important thing to look for in these cases. Dissent here specifically addresses this.
II. So, fighting words wrapped up, no real cases of recent times that constitute fighting words here.
III. Hostile Audiences now, which is a live topic still.
IV. Feiner v. NY - court held that free speech could not overcome the convictions here.
A. Dissent noted that the police should have protected the speaker from the crowd. They say that the last resort should be to silence the speakers.
B. Where is line where you would want to shut down the speaker because the speech has gone too far to be allowed.
V. Edwards - demonstration on state house grounds.
A. Court reverses convictions
B. Dissent says same as Feiner.
VI. Forsyth County
A. Permit fees case
B. Struck down b/c here there was a county official who had unbridled, standardless discretion of the official in setting the permit fee amount.
C. His judgment was based on how disruptive the demonstration would be.
D. What about counter-demonstrators
E. What is fee for - security? Clean-up? Possibly based on content of speech as how it will affect the audience in question.
F. Standardless and arbitrariness were fatal here.
VII. Injury to Reputation and Sensibility
A. Court still trying to look at what exceptions it can make where speaker has just gone too far.
VIII. Beauharnais - group libel case
A. Relatively no attention at the time, but when hate speech issues began to arise, the case came up again.
B. Anti-black leaflets - statute discusses exhibiting in a public place which exposes a certain group to derision or bad treatment etc.
C. Basically defamation against an entire race.
D. Dead letter for a long time, but then, started to come back as more popular.
IX. NY Times v. Sullivan
A. Need to show actual malice when you are a public official, negligence not enough. Need knowledge of falsity or reckless disregard of whether true or not.
B. This actual malice must also be show with clear and convincing clarity.
C. Media D here too though, so may be more portection.
D. Must the D show truth to overcome.
E. A lot of balancing of the interests.
F. No finding of actual malice in this case.
X. What interests are promoted by false statements?
A. Need breathing room for truth.
B. Without breathing room, then there will be a chilling effect on the press in not allowing them to make even a small mistake.
C. Need to protect some falsehood in order to protect speech that matters.
D. Balancing of interests again. Need the leeway in question.
E. So goes back to what are the functions of free speech and whether this is really promoting those interests. Most of these have to do with political speech, because it is the highest form of free speech usually.
F. Criticism of this case came from both sides
1. some say good compromise would be in letting public figures vindicate their reputation, but severely cap the damages to avoid the huge chilling effect.
2. goes to reputation is what they want to preserve, they don't need the money as much.
XI. P. 1062 and the 3 variables involved in these cases
A. Identity of Plaintiffs
B. Media vs. Nonmedia Defendant
C. Matter of public concern, or purely private concern - so what is the type of issue involved here.
XII. Butts case - court said public figures included under public official standards.
A. Still media D
XIII. Rosenbloom - extended to a private figure, where the person is involved in matter of public or general interest.
A. Court not pleased with this extension though, especially where this was not voluntary involvement.
XIV. Gertz - abandoned Rosenbloom, new standard for private figures
A. Two dissenters felt majority too hard on media, other two dissenters said too hard on the Plaintiffs in these cases.
B. Lawyer representing family suing cop who was convicted of killing their family member.
C. No strict liability rules allowed, and no immunity either.
D. For private individual to recover on defamation, they must show actual damages, but must meet a standard above strict liability imposed by the states.
E. Damages limited to actual injury or compensatory, punitive and presumed no longer allowed.
Con Law II - 3-22-06
I. Dunn & Bradstreet - white's quote - consider whether NY times has gone too far and is now allowing too much protection in the interest of speech, etc. are White's fears real or not?
A. Be able to articulate an argument one way or another.
II. O'Connor and summation of law in defamation - 1067
III. Nondefamation torts case
A. Falwell v. Hustler - porn mag prints ad making fun of falwell
1. no privacy or defamaiton allowed at lower,
2. IIED was really claim that went up through.
3. unanimous court reversing, USSC.
4. falwell says falsity not a requirement for this. IIED reqs.
1. outrageous and intentional conduct.
2. need severe emotional injury.
5. USSC said that for IIED and public figure must show false statement of fact that was made with actual malice.
6. Court said no one would believe it actually happened, so no recovery.
7. NY Times really being expanded a lot.
B. Privacy vs. Free press.
C. False Light - invasion of one's privacy, when made by press NY Times applies again. Press wins through all of these.
D. Bartnicki case - eavesdropping on cell convo is broadcast on radio.
1. press wins here.
2. concurrence said no legitimate interest in maintaining privacy in the convo - so no privacy interest.
3. Dissent - said this was still an area where there was an expectation of privacy for these folks.
Hate Speech
I. Note the summary of the arguments for and against regulations here.
II. Skokie v. IL - ACLU represented the Nazis here, very controversial issue.
A. Very provocative venue here for marching, the end was march elsewhere nad not very successful.
B. Prohibition on march upheld upwards, then USSC reverses the stay.
C. STate Court then reviewed to see if injunction should be set aside.
1. fighting words not allowed
2. hostile audience/captive audience di not fit. All theories rejected.
D. Skokie revised ordinance for permit requriements in insurance mostly. So, higher insurance where is against a person.
E. What if you are counsel for Skokie?
1. fighting words - do we require actual physical violence to be the goal. May qualify if one on one here, and direct attack.
2. hostile audience - two hostile groups and more encouragement the more likely violence will happen.
3. court is again concerned about all the ifs and the conjecture about whether violence will occur or not.
4. hostile audience doctrine as we have known it may not fit as we usually understand it.
5. captive audience - not presented, b/c march in commercial area, whereas if private, then really cannot retreat even to their own homes.
6. IIED likely not applicable, b/c not about group direction, but more about direction towards an individual listenere.
F. Ordinance found unconstitutional by lower courts. USSC says march goes on, and so it does.
III. Campus restrictions on speech.
A. 89 Mich. Policy struck which barred hate speech.
B. Mostly issues resolved in thse areas resolved internally.
C. Private university not covered under 1st amend.
D. Stanford rule struck
1. required
1. intent to insult
2. use of fighting words or symbols
3. directed at particular individual.
2. seemed to fall under what is allowed regularly, so when struck we must ask what regs can we do in this case.
E. some have said equality is a pre-condition to free speech.
IV. International community has limited hate messages, so U.S. in minority of not regulating hate speech.
V. This speech can inflict serious harm, but this speech also serves some to provoke silence, not to provoke a response as we see in marketplace of ideas.
VI. Victims may have to modify their behavior in order to combat this or avoid this.
VII. What if community moves more into itself, then there is no marketplace of ideas taking place, no exchange and dialogue so what does 1st amend. do here?
VIII. Does Beauharnais apply here?? Group libel or not.
A. Private individuals that don't voluntarily choose the limelight, so speech towards them may be regulated.
B. Possible group libel claim
IX. Brandenburg v. oh - not group libel case, but seems to undermine Beauharnais
A. Threats at KKK rally protected from prosecution
B. No clear and present danger of imminent violence. Strict application of this may not work on campus.
X. Some deference to the academic freedom of the university.
XI. Two possible compelling state interests
A. Attract diverse student body - want various voices and marketplace of ideas.
B. Interest in minimizing psychological harm to the community.
XII. Official tolerance of racist speech may be more harmful than tolerance in the entire community.
XIII. Maybe students are really a captive audience in these cases.
XIV. When numbers are small and stigma may be huge, then educational process is damaged in some way.
Con Law II - 3-27-06
I. Be clear in all of these how court distinguished between all the cases to come to different results.
II. R.A.V. - cross burning on front lawn case. Note language of statute. The statute specifically discusses certain bases for the resentment or hate, etc.
A. If this does reflect fighting words, then it only restricts certain words - it is actually a content based restriction, not just time place and manner.
B. It is also very viewpoint based.
C. Content based restirctions and viewpoint based restrictions are different things.
D. Really statute is only aimed at secondary effects of speech. Fear of fallout of this type of speech - like the stripjoint cases where this has been used a lot before. The speaker's reaction is not the secondary effect, but the primary.
E. So, if content based or viewpoint based, the court must examine under strict scrutiny.
F. Court says then
1. is there compelling govt. interest - protect minorities from harrassment
2. is means necessary to fulfillment, narrowly tailored, less burdensome alternatives unavailable.
3. so then the court finishes saying this is not reasonably necessary b/c there are less burdensome alternatives.
G. Concurrences - White - strike on overbreadth grounds, anger or alarm is much broader than clear and present danger - so goes too far for the concurrences.
H. Some EP argument under overbreadth may be cognizable - this could be seen as subset of fighting words doctrine.
I. Concurrence dwells on the compelling interest based on long history of such a discrimination.
III. Wisconsin v. Mitchell
A. State S. Ct. strick these statutes down under R.A.V.
B. But the USSC has said that this is really a conduct based statute.
C. Concern may be greater societal harm based on this type of motivation, so this is how we determine punishment usually, so why not.
IV. Virginia v. Black -
A. Ban on cross-burning with intent to intimidate
B. Different here b/c does not specify the viewpoints that you cannot address as R.A.V. did.
C. Upholds paragraph one unlike RAV, so here you cannot burn cross with intent to intimidate.
D. Second paragraph struck down, because it ignores context - they say this is up to jury, so leave to fact-finder.
E. Thomas says conduct and not speech, so no need to look to first amendment to see if protected or not. Some gray areas, but if conduct generally upheld.
V. What distinguishes the three cases?
A. Conduct vs. speech
B. Viewpoint specific, as opposed to general
C. Leave intent and motive to jury.
Commercial Speech
I. Far from political context originally envisioned.
II. Now questions of whether the court has moved to an area of eliminating distinction between commerical and non for standards.
III. Virginia Pharmacy v. VA citizens' commerical council.
A. VA statute bans price advertising for pharmacists b/c want to keep standard of medical treatment by pharmacists as paramount, and keep level of professionalism.
B. Ps are consumer group that wants to know the prices of the products.
C. This is interesting because where there is a willing speaker, there is another right of listeners to hear the information.
D. Court talks about society's interest in the free flow of informaiton.
E. Court does see interests of the state.
F. Some intimation in dissent that there will be overconsumption if we advertise and this will hurt people, so paternalistic.
G. Early cases that allowed these bans went into Lochner type place and upheld based on DP and EP.
H. Court concludes that the ban must be struck down, and the right to commercial speech is upheld. So, now commercial speech is protected, but we can still have time, place, and manner restrictions. We can regulate misleading and false, etc. But, there will be some protection given to commercial speech now.
I. Distinction was before held on dissemination of goods and services vs. the dissemination of viewpoints. Asked if easy way to see the distinction.
J. Dissent here says uphold the ban, analogy to prohibition on liquor and cigarettes' advertising. So, he sees bans as good and some should be allowed.
IV. Book looks at some reasons based in original free speech as what is involved here.
V. Board of Trustees v. Fox - ban of tupperware parties on college campuses
A. Parties defending b/c they included noncommercial speech, so more education and should be held outside of the commercial speech.
B. So one of the early cases where we start to see this blending of speech. So, does inclusion of noncommercial speech give protection to the entireity.
VI. Linmark v. Willingboro - ban on posting of for sale signs, govt. trying to prevent white flight.
A. Wanted to prevent posting of signs that would create panic.
B. Court struck b/c ban on commercial speech that would give society valuable information. Defense said only time place and manner restriction.
C. Alternatives to putting sign in yard are more costly and not as easily achieved. Content based b/c not all signs are banned.
D. Important here was that the city was seeking to keep information from people for fear that they would misuse the information.
E. Not a restriction on false or misleading speech, but rather this was perfectly accurate speech.
F. Marshall - finds that ordinance is speech to be protected, so strict scrutiny is used where speech and to be protected.
G. So, govt. interest - compelling? Yes, seems to be.
H. Then how necessary the means are - so he concludes that there are other means, so strikes.
VII. Bates v. AZ bar -
A. Prohibits lawyers from advertising prices for routine legal services. State says the public image of the profession will be tarnished.
B. State says that advertising is inherently misleading.
C. Court said could not prohibit.
D. Blackmun says that the routine services as advertised are not inherently misleading.
E. State bar concerned with stirring up litigation - Blackmun says that there is a big part of society that is not represented. We can assure that people are represented in these cases.
F. State also tries to defend on the basis that ads will increase cost to consumer as they become part of overheard. So, costs ultimately paid by consumer.
G. Blackmun says price ads in other industries have only lowered the price.
H. Also lower quality of service now, but Court says no, we can always ban deceptive ads unlike here.
I. Dissent - asks what is routine legal service, no leagal service is routine, so cannot be true really.
VIII. Distinction between Ohralik and In re Primus
A. Ohralik - bar said lawyer wrong to approach victims right after accident in order to get the contingency fees. Possibly bad b/c time when folks are vulnerable.
B. In re Primus - volunteer ACLU attorney writes letters asking if wants to be plaintiff for a case against a doctor that requires sterilization to get abortions. More free speech b/c about rights and political in a way.
Con Law II - 4-3-06
I. Zauderer
A. Advertising to women using IUD for a PL case, ad said if you lose waive your legal fees.
B. Illustrations here were problem as possibly offensive.
C. Costs here waived were only fees, but still not totally free because of court costs.
D. With drunk driving example, then you get convicted of a lesser offense, so not totally off, means this is slightly misleading.
E. In this case, preservation of dignity in the profession is not substantial enough here. Court said striking illustration is not sufficient.
II. Shapero - targeted amilings.
A. Court distinguishes this from face to face solicitation.
B. Less restrictive and more precise means are available to state legislatures.
III. Don't worry about Peel and Edenfield, or Ibanez
IV. Florida Bar - ban on personal injury lawyers contacting vics within 30 days of accidents upheld.
A. Dissent - notes importance of presrving evidence and acting quickly, and insurance companies are not required to wait.
1. not a captive audience situation or anything.
2. vics who are least sophisticated and need help will be the most harmed.
B. Reasons for the law and level of professionalism of attorneys is there, but is it enough to overcome the recognized freedom of speech.
V. Central Hudson Gas -
A. Remains most important and standard test in this area, despite some controversy.
B. Essential four part test laid out.
1. must concern lawful activity, and cannot be deceptive or misleading.
2. is govt. interest in restricting the speech substantial,
3. then must see if means are correlated to ends being sought.
4. then finally ask if the rule is more extensive than necessary to achieve the ends, so only upheld if no less burdensome alternatives (like strict scrutiny).
C. Ban on promotional ads of utility company is struck down.
D. Note that there are more than one state interest looked at, and you must examine each in turn as to if each is correlated to the end.
E. Here fails because too extensive - more suppressed than necessary, so voilates first amendment.
F. Reasons to have 4 part test - narrowly drawn ban on ads may be justified.
G. Blackmun - no need to look further if truthful, wants paternalism cut out. State not allowed to pursue its goals by keeping public in ignorance.
H. Stevens concurrence - commercial speech should get less protection, but even if motivation is economic does not make it commercial. So, the ban here is just too broad. Too much can be characterized as commercial.
I. Dissent - says court is shifting to Lochner and regulating bus too much.
VI. SUNY v. Fox - court cuts back on fourth prong.
A. Tupperware party.
B. Court says no more extensive than necessary is not the same as requiring the least restrictive alternative.
VII. Metromedia - allowed differing treatment of commercial billboards allowed, but only because qualitatively different.
VIII. Cincinnati - something must be distinctively commercial, there must be a uniquely commercial harm.
A. Newsracks case
IX. Posadas de Puerto Rico
A. Prohibited advertising of casinos to locals.
B. Court walks through Central Hudson directly.
C. Challengers to prohibition raised a few cases
1. Carey - dealt with contraception
2. Bigelow - abortion.
D. Court notes Carey and Bigelow were constitutionally protected activities.
E. Here gambling could have been banned entirely, so ads can as well.
F. Dissenters - really question PR's motives here. Possibly state trying to get citizens to play state run lottery instead. So, not a really good motive, but rather pecuniary in its own respect. So, look at state motivation and motivation behind the scenes to see what real motivation likely is.
X. Rubin v. Coors - federal ban on including alcohol content on beers.
A. Struck,
B. Govt. interest presumed significant, b/c law does not advance govt. interest.
C. Inconsistencies seem to show this, regulatory scheme overall was irrational, so why ad this.
D. Other ways to do this that would be better, so case really failed the over-extensive test.
XI. Tricky issue for the court is dealing with these legal activities that the govt. has a certain moral judgment about.
A. Linmark was first classic case in this area.
XII. 44 Liquormart - ban on advertising alcoholic beverage prices unless inside liquor store and only over a certain height.
A. State wants to decrease consumption of alcohol, and so perhaps prices can go up so cutback in sale of drugs.
B. Thomas concurrence - ban on advertising for legal activities is per se illegitimate.n Says you get to same result in all of these cases under Central Hudson, so why take a more complex route.
C. Restriction is more extensive than necessary, b/c several alternatives are available.
1. education
2. taxes
3. limiting purchases
D. O'Connor suggests alternatives too.
E. So, is there some movement towards strict scrutiny, b/c justices talk about greater protection for advertisement.
XIII. Greater New Orleans - fed. Ban on advertising casino gambling, etc.
A. Struck down by the court.
B. Problem is with 3rd prong - because you are still allowing some advertsingin and gambling.
C. Other ways to keep social costs down in this case too, that could be employed.
XIV. Lorillard
A. Truthful
B. Substantial state interest - in protecting children from tabacco info.
C. Means - Advertisements must be a certain, height, distance, etc.
1. for 1k court okay until 4th prong,
2. height - fails 3rd and 4th.
D. Overly broad
E. Height limit doesn't satisfy 3rd prong - kids can look up and may be tall enough.
F. Some justices here want more protection for commercial speech.
G. Concurrences - wonder about Central Hudson test, and seem to indicate it is outdated.
XV. So commercial speech is one area with hybrid test - content-based restriction like ones before.
A. When looking at these cases, ask if there were any cases where ban should be up held
B. What about cases that blatantly fail the first prong of test.
C. Rehnquist throughout has seemed like the strongest advocate for lesser protection.
Con Law II - 4-5-06
charts
I. Functions - goes to why first amend matters.
A. Truth, knowledge enlightment
B. Improving democratic system
C. Self-enlightenment
D. Safety valve function
II. 3 following are categories in these cases.
III. Pure Speech
A. Exceptions
1. numbers
1. clear and present danger
2. fighting words
3. defamation and privacy
4. obscenity
5. child pornography
2. commercial Sp. - pseudo exception, but not totally
1. concern lawful activity
2. cannot be deceptive
3. if first two okay, can still be regulated if the state shows a substantial interest, and if the means chosen are correlated to the ends sought, and if no less burdensome alternatives available.
B. Non-exceptions
1. Public forum
1. content-based
a. strict scrutiny
2. content-neutral - unrelated to suppression of ideas, or poss. Time place and manner restriction.
a. No absolute bans, alternatives might be allowed.
b. Govt. interest must be substantial.
c. Means chosen must further that interest.
d. Restriction on 1st amend. freedoms must be no greater than is necessary to further that interest - narrowly drawn basically.
e. Ample alternative forums must remain available.
2. limited public forum
1. sometimes public forum by designation - or place opened up to the public.
2. once govt does this and for as long as it does it must follow the public forum rules.
3. non-public forum
1. public property, but not necessarily open to the public
2. here content based
a. ok, if place is being reserved for its intended purpose, if speech is incompatible with the primary purpose, if regulation is reasonable, and if it is not viewpoint discriminatory,
3. if content neutral, then we follow rules used for content neutral as above only with lesser scrutiny in some respects.
IV. expressive conduct - O'Brien analysis
V. pure conduct - no first amend protection, b/c it is not applicable to conduct, but cannot be arbitrary and capricious like other laws.
VI. Outlining tips
A. Flesh out rules and how to analyze and cases become secondary to that.
B. Chart above is example of a structure
VII. Content based v. Content neutral
A. Why have a difference?
1. content based more offensive to 1st amend protections.
B. Viewpoint restrictions - somewhat a subcategory of subject matter restriction. Strict scrutiny
C. Subject matter may allow complete restriction of some subject, but not of one viewpoint. Strict scrutiny
1. Mosley - picketing near school not allowed except labor disputes, so seems subject, but may be time place and manner restrictiosn.
1. without content based exception this may have been allowed, but with exception seems to be different.
2. also EP claim raised by exception.- no suspect so poss. Treating diff is real so some scrutin.
2. Burson - no campaigning within so many feet of the polling place. So, content based, but strict scrutiny.
1. govt. won here despite strict scrutiny
2. especially important to dissent that lower budget people cannot get their message out, and this really restricts political speech which is at the heart of the amendment.
3. Scalia concurrence - said not a public forum and so the only requirement left was that it be viewpoint neutral so it should be okay.
3. Rep Pub Party - judges not allowed to speak on political issues
D. Content Neutral - intermediate scrutiny, govt. can use subst. interest and closely tailored - look at p.120
VIII. O'Brien
A. Guy burning draft card, convicted under federal law saying you cannot burn your draft card.
B. If we see as pure conduct, then we ask only if it passes rational basis only.
C. If any of O'Brien categories is not met it falls back into strict scrutiny area.
D. Court notes expressive conduct - says govt. regulation allowed in this situation, if
1. it furthers a substantial or important govt. interest
2. if govt. interest is unrelated to suppression of free expression, and
3. if the incidental restriction on alleged 1st amend freedoms is no greater than essential to the furtherance of the interests.
E. Then, apply the tests above to the case
1. govt interest is right to raise and support an army, assure administrative system to fulfill the objective here. So, pretty obvious this is important and substantial.
2. poss. Implicit message in "knowingly" burning the card. Even congressional intent seems related to the suppression of ideas.
1. if we consider this not met b/c reg. is related to speech, then the regulation is subject to strict scrutiny.
2. seems as long as one interest that is not related to the suppression of speech, then it may be okay. How far do we want court to get into whether the interests submitted are true or not.
3. seems very debatable in O'Brien
3. If unrelated, than ask if essential to furtherance of interests -
IX. Flag burning cases
A. Symbolic speech or expressive conduct still.
B. Overbreadth and vagueness both noted in street - somewhat conflated and hard to distinguish
C. Not exactly identical.
D. Overbreadth is important in strict scruntiny, especially in Constitutional right context.
E. Spence - peace symbol on the flag, flag was privately owned and displayed on private property
1. conviction reversed based on unconstitutional as applied grounds.
2. interests rejected.
3. restricting content here specifically, and no exceptions applied.
4. found to be overbroad.
5. Dissent - says only time place and manner, it rejects only one forum as a place to not be able to say anything.
X. TX v. Johnson
A. Pivotal case in this area.
B. Flag burned in political protest - audience says seriously offended.
C. Conviction affirmed by intermediate court, TX S. Ct. reversed, USSC affirmed that case.
D. So apply o'brien if first we determine expressive conduct involved.
1. court says speech element there to be covered by 1st amend.
2. where person doing conduct intends it to express an idea, then it really contains enough to be under 1st amend. must be sufficiently imbued with elements of communication.
E. Court then applies O'Brien
1. where speech and nonspeech, need significantly important govt. interest in regulating nonspeech elements, can just incidental suppression effect on speech, this does still require that the statute be unrelated to suppression of expression.
2. interests stated
1. breach of peace - rejected - said speech should invite dispute that is what the free marketplace of ideas should be about.
a. potential for breach of peace not enough
b. fighting words n/a here.
2. preservation of flag as symbol of national unity
a. so statute is directed at burning where anti-unity view is intended.
b. So restriction is content based if we allow this interest to be put forth.
3. 4 dissenters - seem to rely on uniqueness of flag and reverence it should entail. Said analogous to fighting words, meant to incite breach of peace, not a conviction for content of speech.
1. said manner or means of expression was restricted only, so allowed to regulate.
2. can regulate conduct that is offensive to majority of people.
3. analogy drawn to graffiti on the washington monument.
Con Law II - 4-10-06
I. Exam question
A. First note what is the first amendment, its importance, that it is a fundamental right, what it covers, and how important.
B. Be brief on the foundation and the applicability of the first amendment.
C. So, strict scrutiny, unless possible with the exceptions, but none really apply.
D. Then, note conduct, speech, mixture middleground.
E. Then, O'Brien test.
F. Also, note time place and manner restrictions as subject to lesser scrutiny.
G. So, may ask first is this conduct or speech, then is it content neutral or content based.
II. Barnes - ban on public nudity upheld.
A. Many opinions here.
B. Is this pure conduct, is this outside 1st Amend. entirely.
C. Scalia and pure conduct.
D. Ban goes beyond just nuddie bars.
E. Statute upheld here as satisfying the O'Brien test
1. unrelated to the suppression of free speech? Or expression?
2. what is the purpose of this ban, the government interest?
1. protection of order and morality, really accross the board ban too, so seen as even-handed in application.
2. is there some sort of alternative readily available?
3. does this further the substantial interest, or narrowly drawn??
4. Alternative forums to express such.
F. Note the time, place, manner thing such as if this is significant interest and closely drawn?
G. Note to look at the extensiveness thing.
H. Scalia says the purpose is not to keep from offending, but rather one of morality.
1. fear about slippery slope, saying there are things we ban and should continue to ban regardless of if it is just for offfending or morality.
I. Souter and finding different state interest that qualifies this as okay
1. Secondary effects cited, such as promoting illegality like prostitution or secondary effects otherwise.
J. Dissents - offending others is not an appropriate reason, and does not apply here as these are consenting, so only real purpose is protecting viewers from the message in question.
1. content based, so need strict scrutiny, and then fails.
III. City of Erie v. Pap's A.M.
A. O'Brien test applied, saying ban not aimed at the content of the expression, but rather the secondary effects.
B. No more mention of morality in this case.
C. O'Brien analysis leads to it being upheld here. Says regs. Conduct only no expression involved.
D. And if expressive conduct, fostering good morals is fine, we don't need secondary effects addition.
E. Souter argues that O'Brien needs to be applied with some teeth. We need more than just allegations, but some sort of evidence.
F. Dissents - secondary effects and if the addition of minimal clothing will make that big a difference to have the distinction involved.
IV. 1227 - Does 1st Amend. guarantee speakers access to public forums, or give all equal access if the public spaces are open at all.
A. So, can govt. close certain spaces to all, and unless it does this must give equal access to all.
B. Or, does 1st Amend mean that the govt. cannot restrict speech in certain areas, which are labeled public spaces.
V. Clark v. Comm for Crative Non-violence
A. Homeless protest in park accross from the white house.
B. Expressive conduct, and the court starts to blend O'Brien and time, place, and manner restrictions.
C. Time, place, and manner - only limits time as to happening during the day only, and not permitted overnight. So, no limit on the actual content of the message.
D. T, p, m - only suspiscious if govt has allowed other speakers to do this in the manner they are now restricting.
E. Court goes through both standards.
F. Tpm
1. justified without reference to content
2. serve significant governmental interest
3. narrowly tailored
4. leave open ample alternatives for ocmmunication.
G. O'Brien
1. unrelated to suppression of free speech
2. substantial govt interest
3. narrowly drawn, also note the least intrustive means available does not seem to be necessary any longer.
H. Dissenters say tpm applies and reach a different conclusion - preservation of the park is interest cited.
1. could ban certain size groups
2. so, why this ban and not include others
3. restricts modes of expression that are the most effective, and least expensive, so danger that poorer people are being prohibited from certain symbolic expression.
4. least intrusive means is no longer part of O'Brien, and so scrutiny less penetrating, and more likely that prohibitions will be upheld. Dissent here wants to keep the element.
VI. Abortion clinic picketing cases here then too
A. Minute details involved, like feet of distance required, etc.
B. Important to look at how test applied, and context as important.
VII. Frisby - picketing of abortion dr's home.
A. Town enacted flat ban
B. Court upholds tpm restriction as long as prohibition is aimed at only picketing of single residence as a target.
C. So, marching through the neighborhood okay, just cannot target one specific house.
D. Dissent - ways to make this prohibition more narrow, could possibly just limit number of protestors allowed, or conduct involved.
1. so not narrowly tailored for the dissent here.
2. note that may be demonstrating in front of your house for positive reasons.
3. So, this gives city officials too much discretion to apply and not apply the ban.
4. When city officials have unbridled discretion, this has a chilling effect on speech.
VIII. Madsen - dealing with FL injunction
A. Not content based or viewpoint based.
B. Applies tpm with some teeth, says we need to be more careful when apply to injunctions and not just statutes. Need to be a little more suspiscious in those cases. Make sure injunction burdens no more speech than necessary.
C. Injunction against yelling and showing upheld as well as distance.
D. Ban on observable images struck down, on the same grounds as the fuck the draft jacket, viewer can avert their eyes, etc. Distinguishes beween visual images and the sound.
E. 300 foot ban on approaching individuals struck here, because it burdens more speech than necessary - no fighting words though, may feel like harrassment, how much do we regulate. Also, distance extreme here.
F. Picketing within 300 feet of residences of clinic staff as too broad, this would ban marches through neighborhoods that is to be permitted, and there could be narrower bans that would be okay.
G. Stevens says injunctions should get less scrutiny because impact only falls on a few, but the statute would fall on everyone.
H. Dissent - says more protection for the speakers should be required. Pretty much take position of first amend. purists. Say content based so fails strict scrutiny.
Con Law II - 4-12-06
I. Schenck v. Pro-Choice Network - court getting involved again in the details a lot.
A. Fixed buff upheld, floating buffer struck down.
B. Scalia would strike fixed buffers as well here.
II. Hill v. CO - statutory ban on approaching individuals
A. Upheld by the court as a valid time place and manner restriction.
B. Must be content neutral first of all.
C. Majority says content neutral, dissent saying content based - if content based then again we use strict scrutiny.
D. Think to Reitman v. Mulky - remember Court struck b/c the political impetus behind it was to allow discrimination. So does intent behind law here matter?
E. Really legislature is cloaking negative thing in content neutral way, but is it the Court's job to really find the actual intent not just what they say.
F. Dissenters really looked at effect, and concluded it was content based because it was based on permission, adn as such that what you want to talk about comes to light as if you get permission or not.
III. Buckley v. Valeo - 1976 - Court upheld limits on political contributions, but not political expenditures. So, those spending money to promote a candidate limits struck, but limits on contributions upheld.
A. Court of Appeals relied on O'Brien and case regulated conduct not speech. Then, USSC concluded pure speech and used strict scrutiny to begin, but O'Brien satisfied too. Although with respect to the contributions, they really used intermediate with contribution. Expenditures used strict and thus struck.
B. restriction on amount of money you can spend on political contribution during a campaign necessarily restrict how much you can say and to who, etc. So, reducing expenditures means you cannot get your word out.
C. Limit on contributions only marginally restricts first amend. Only minor restriction on ability to get the word out.
D. Court used intermediate scruitiny for evaluating restrictions on contributions.
E. Said Congress could see limits on contributions were narrowly drawn to deal with the reality/appearance of corruption.
IV. Context of McConnell on 1447-48 - number 10
A. Soft money had not been regulated, soft money is money to political parties intended to influence state or local elections, and some used for federal/state mixed stuff.
B. Govt. trying to help close the many loopholes people are trying to implement.
C. Distinction btwn express and issue advocacy
1. buzz words became the issue then, or specifically naming the candidate in the ad - that is express.
2. issue did not mention name.
V. McConnell v. FEC
A. Poloitical contributiosn a form of speech which gets a lot of attention accross different political bodies, etc.
B. Note only important issues and passages
C. Title I - 323a - national committees cannot receive or spend soft money - subjected to Buckley's intermediate scrutiny..
1. some deference to Congress dealing with election based decisions.
2. only marginal impact on political speech here.
3. govt interest again is reality or appearance of corruption.
D. 323b and d
1. short discussions, note upheld/rejected.
E. Electioneering and communications struck down.
F. Rehnquist - 1454
1. those under 18 cannot make contributions dealt with.
2. basically congress saw it as a loophole.
3. struck under intermediate scrutiny.
G. Dissent and too loosely drawn, Scalia still says Buckley wrongly decided.
1. says majority denying protection to those seeking to criticize government.
2. impact on challengers as fairly common and very destructive.
3. This burdens necessary, and only really effective means of speech.
4. really a way to ban the speech, without denying it outright.
5. People capable of considering content of speech and speaker of speech.
H. Thomas
1. says satisfactory alternative would be bribery laws, but will this ever do it will it be enough.
VI. Freedom of the press
A. Does specific mention of press in Const mean press should get special treatment.
B. Possible just historical discrim from england and trying to avoid that.
C. Possible press refers to dissemination, but speech is just speech.
D. Stewart - notes that perhaps this was an outside check on the govt. as a fourth institution as a check.
E. Burger sees press as only another aspect of speech.
VII. HYPO - pot smoking at party and reporter asked to tell about it
A. Maybe seriousness of offense important.
B. Some fiduciary duty.
C. Do they need relationship to get the information.
VIII. Branzburg - says no special protection for press, treated just like individs that have to testify at grand juries.
A. Press wanted test to be that a reporter should not have to testify anywhere until sufficient grounds there to believe reporter possesses information relevant to a crime, and that the information is unavailable from other sources, and the need for the information is sufficiently ocmpelling to override the 1st Amend. interest.
B. Court said public's interest in news about crime from undisclosed unverified source was outweighed by interest in prosecuting the actual person.
C. Concurrence here is really what has carried through.
1. news reporters should not be harrassed, but rather the quesitons must be related to proper purpose of the investigating body.
2. said reliance on good faith in cooperation of the bodies involved.
D. Dissent - says press now forced into being an investigative arm for the government. Where law enforcement cannot find the answer, they will now force the press to do so. So coopted as govt. agents.
1. pure 1st amend issue, so fund right, need compelling govt interest.
2. very narrow circs for getting info only should be allowed, this is far too broad.
3. B/c of nature of grand jury, the press needs particular protection.
E. Still good law.
IX. Zurcher - warrant to search newspaper office.
A. Warrant upheld as opposed to getting info through a subpeona.
B. Court focused on 4th amend. search and seizure,
C. Powell - still said we need stronger test under 4th b/c the 1st amend was involved here.
Con Law II - 4-17-06
I. Cannot establish a govt. religion or prohibit parties from practicing their religion.
II. Applicable to states thru 14th Amend.
III. In free exercise law, a statute that has a purpose or effect of infringing upon or burdening one's religious beliefs violates free exercise clause. P. 1513 - Tourcaso case. This is not a debated issue
IV. If statute interferes with religious practice or conduct which manifests a religious belief, then it may or may not be struck down.
V. If burden is significant on religious practice or conduct, then we get strict scrutiny - compelling state interest, are there least restrictive or less burdensome alternatives?
VI. Smith v. OR - Scalia writes that if the law is one of general applicability and it only incidentally burdens the exercise of religion, then gets minimal scrutiny or rational basis.
VII. Congress responded in passing the Religious Freedom Restoration Act - said generally applicable laws would be subject to strict scrutiny, but the USSC struck this.
VIII. Then establishment clause - neither the intent nor the principle effect may benefit or harm religion. Avoid excessive government entanglement through a position of benevolent neutrality.
A. Is wall between church and state too big?
IX. Can a city allow religious organizations to use city facility for a religious event, can govt require the allowance?
X. Govt. often feels it is caught between two positions, or both clauses.
XI. Terms used are voluntarism and separatism - goes to the conflict between the two clauses. Or, is it more to prevent establishment of a national church, or the preference of one denomination over another, while still allowing govt to support religion generally - so more neutral support.
XII. Maybe best rule is govt cannot use religion as a standard for action or reaction. Cannot impose penalities, or give favors if for religious reasons.
XIII. Polygamy example - repeal or allow, goes to we don't make exemptions for religion.
XIV. What about conscientious objectors? Esp re: military draft. Said does not have to be specific religious belief - rule is the belief must be parallel to orthodox belief in god, but again not just a political belief, or situational, etc. 1510-11
XV. Hialeah - 1514
A. Santeria religion.
B. City passed resolution re: policy opposing ritual sacrifice of animals.
C. 11th Cir affirms rejection of free exercise claim.
D. If not a law of general applicability, then it fails and must be under strict scrutiny.
E. Law here is neutral on its face, but then court looks further, goes towards legislative intent.
F. Said record in this case shows that the object of the ordinance was suppression of the central practice of this religion.
G. Looked at legislative history - and seems all they wanted to do was to ban this specific practice, b/c of the religion.
H. Substantially under-inclusive - look at state's interest.
1. State's interest seems to be public health and safety, but underinclusive.
I. So, basically we have strict scrutiny here, and this fails that test.
J. Concurrences - say motive behind the statute irrelevant, b/c where actual effect is burden than it must be struck.
XVI. Locke - 1519
A. No burden enough for this case, more a minor burden, and this is reconcilable with santeria case.
B. Is this inconsistent with santeria case.
C. Scalia and Thomas view this as a contradiction for that.
XVII. What about public school teachers wearing religious attire?
A. Free exercise issue first, if they permit and overwhelming percent of one religion in a community, then we may have an establishment problem.
XVIII. Braunfeld - 1522 - orthodox Jew who takes off Saturday as part of religious tradition, so objects to Sunday closing laws because he will then have to close down twice per week, so economic sacrifice.
A. Court asks if indirect burden, and state can act. Court looks for alternatives. Burden on state interest not specific, but they seem to say where indirect burden, then less than strict scrutiny.
B. Possible because court looked past the religious connotations of the rule.
XIX. Wis v. Yoder - school attendance laws and Amish want exemption for their kids to have to go to school after 8th grade.
A. Compulsory school attendance, why have it? Keep supervision, keep kids from working.
B. Here exemption to valid law.
C. Amish religion more simplistic, and values totally different than what is taught in schools.
D. Seems direct infringement on their religious belief. Possible damage to their youth.
E. Strict scrutiny here b/c of direct burden, but this test is satisfied here.
F. Amish have good track record, however, despite fears of the state.
G. Exemption permitted here, the Amish are allowed to voilate the compulsory school attendance laws.
XX. Bob Jones - denial of tax exemption upheld here.
A. Racially discriminatory - denial upheld here.
XXI. Goldman - yamulke wearing in military -
A. Dissent particularly upset about level of scrutiny, b/c the Majority uses deference b/c of military involvement.
XXII. OR v. Smith - laws against Peyote
A. Parties fired for use of controlled substances, and unemployment compensation denied.
B. Use of peyote can be banned under this case.
C. Scalia notes incidental effect and the otherwise valid generally applicable law in this case.
D. Cites to Reynolds - bigamy case
E. Distinguishes Wis. v. Yoder
F. Uses Sherbert test - govt actions that substantially burden a religious practice, then they must satisfy the strict scrutiny test, and give compelling interest.
G. Says Sherbert test only used in unemployment compensation cases, and should only be used there.
H. Says only reason to apply the compelling state interest should be limited, b/c too many religious exemptions will allow too much abuse and cause anarchy.
I. So, he wants less than strict scrutiny.
J. O'Connor concurrs in result, but say use strict scrutiny.
K. Dissent says strict, and the less burdensome means test is not met here.
1. draw parallels to the Amish
2. Here church uses responsibly and conforms with other state interests
L. Several feel strict scrutiny should apply.
M. Is there some fear that courts will need to examine sincereity, or if the practice is central to the belief.
N. Note fear of minorities not being represented through the political process.
XXIII. Congress enacted the RFRA to combat how this went.
XXIV. Gonzales case - needed imported controlled substance to perform religious ceremony.
A. Govt argued 3 compelling interests
1. protection of health and safety of members of the church
2. preventing use of tea for recreation
3. UN convention they wanted to comply with
B. Court dismissed last interest easily, but dealt with the other two
C. Analogies drawn to the Amish case
D. Discussion of substantially burdening a sincere religious belief.
E. Talked about Sherbert test being reconfirmed through the RFRA.
F. Note that there have been exceptions for other groups, even larger ones, and larger groups have gotten the exceptions too.
G. Exception allowed in this case.
H. Shift away from the basic scrutiny of Scalia
XXV. Male circumcision
A. If there were a full ban, what would rationale be?
Con Law II - 4-19-06
I. Note Lemon Test in introduction to section. Three prongs
A. Secular purpose required - but some question if this has to be the dominant purpose, or if it is okay if other purposes are there.
B. Principle effect must neither advance nor inhibit religion
C. Government action does nto foster excessive governement entanglement - such as constant monitoring or need to constantly make decidions.
II. This test continues to be used in establishment clause cases, but there are still the current concerns on the court.
III. Two cases, one struck and one upheld.
A. Back to debate over whether the religion clauses are designed not to favor one religion over another, or rather not to favor religion over nonreligion.
B. Can we really distinguish the two cases.
IV. School Prayer
A. Wallace and moment for silence or prayer
B. Scale tipped for the court because of intent, context, or otherwise why this evolved.
C. So, we are back to the court trying to discover the legislative intent behind the laws.
V. Ten Commandments recent case - biggest issue for the court was whether to look at legislative intent
A. Suits filed, then the exhibit of commandments made more inclusive with other legal documents.
B. Somewhat goes back to Lemon test.
VI. Lee v. Weisman - possible school could use tradition or historical evidence to keep the practice. Could also have studetns choose whether or not to go to their graduation.
A. Possible say neither the purpose nor the effect is meant to advance religion.
B. Souter comment - says not allowed regardless of if nondenominational, but rather establishment clause meant to say don't encourage religion over nonreligion.
C. Dissent - court is killing long-standing tradition. Says judges going beyond their appropriate role.
D. Not very realistic to say no need to go to graduation.
VII. Santa Fe Ind v. Doe - Different from Lee?
A. O'Connor's social pressure, and highly forced activities in these cases.
B. Voting process involved here too, so somewhat worse for minority religions involved.
VIII. Good News Club v. Milford Central -
A. Compare to McCollum and Zorach
B. Possible connection between the program right after school and the school day is really strong, and so children see the connection blurred. Goes somewhat to coercion or social pressure issue.
IX. Stone v. Graham - 10 commandments posted on the walls, and struck down.
X. Elk Grove v. Newdow - some mention by the court about standing.
A. Court found unconstitutional, but USSC said dad did not have standing b/c he did not have legal custody of the child, so no way he can assert the claim for the child.
B. So, the mother's desires where she was fine with this, the dad just had no standing.
C. 9th Cir. Underlying opinions very interesting. Close decision, so track record of substantive opinions.
D. Case re: the pledge of allegiance.
E. Debate over if we are discriminating among religions, or among religion vs. nonreligion.
F. Back to lemon test again.
XI. Epperson and Edwards
A. Edwards said if you teach one theory you must teach the other. Court struck because it looked at intention behind the law.
B. Edwards dissent - wants to abandon the first prong of the lemon test and relax wall of separation between church and state.
C. Should we allow for more free exercise even where it would have before killed the establishment clause.
XII. Choose life license plates available through the state cases.
A. 4th and 6th circuit split.
B. Issue was allowing choose life vs. pro choice.
C. 4th struck, 6th upheld.
Con Law II - 4-25-06
I. 4 questions, 3 hours, essay, closed book, equal protection, free speech and religion.
A. Keep your eye out for state action as a preliminary issue.
B. Always think about standing, mootness, and ripeness.
C. Note some of the basics from Con Law I that may be implicated.
II. Free speech
III. Exceptions
A. Initial test - clear and present danger and how do we measure this.
1. Imminent lawless activity.
B. Fighting words
1. Breach of the peace cases
2. tx v. Johnson - and flag burning as possible more recent fighting words case.
C. Obscenity cases
D. Hostile audience - not as worried about listeners following you, but rather to the reaction of the audience to the speaker, possible speaker being endangered. When do we shut down the speaker where the audience cannot control itself.
1. when are you responsible for violent provocation.
E. Non-defamation torts
F. Invasion of privacy - false light also
G. Hate Speech - usually offensive remarks made on the basis of race, etc.
1. skokie
2. are campuses different?
IV. Conduct vs. speech cases.
A. Speech as protected, conduct as not, but some gray area of speech infused conduct.
B. Rav and va vs black - cross burning cases.
V. Commercial speech
A. An area that has gained more and more protection in recent times.
B. Gets some first amend. protection, but not full protection.
C. Va pharmacy - earlier one, right of comm speech upheld.
D. be able to look back at functions of free speech adn which ones apply equally and to a sufficient extent to commercial speech.
E. Suny, Linmark
F. Lawyer regulations
1. bates
2. orlick v. primus
3. In re RMJ - restrictions too tight and struck
4. zauderer
G. central hudson gas - four part test as very important part here.
1. concerns lawful activity - ground level
2. ad cannot be deceptive - second portion
3. then, must show substantial interest in restricting,
4. and means chosen to accomplish the ends must be narrowly tailored (? Check)
5. less burdensome alternatives
H. Gambling ads cases
I. 44 liquormart case
VI. Content based v. content neutral
A. Greater protection for content based,
B. Content neutral really means time place and manner.
C. Subject matter, viewpoint restrictions
1. mosley
D. content neutral - last paragraph on 1200 as describing scrutiny for these.
VII. Symbolic conduct/speech etc. basically O'Brien
A. Similar to time place and manner analysis.
B. Govt reg justified if furthers important or subst. govt interest, and
C. Interest unrelated to suppression of free expression.
D. Is incidental restriction on 1st amend no greater than essential for the furtherance of that interest, or no greater than necessary.
E. More than administrative convenience.
F. Looked at issues of legislative intent.
VIII. Flag desecretion
A. Street, spence
B. Tx v. Johnson
IX. Nude Dancing cases
A. Barnes
B. City of eerie
X. Speech in public forums and other public property
A. Homelessness protest
B. Ward
XI. Captive audience cases
A. Frisbee
B. Abortion picketing cases
XII. Money and political campaigns
A. Buckley
B. Look at 1447-48, soft money background.
C. No need to know a lot of detail from McConnell
XIII. Freedom of the press
A. Narrow issue looked at
B. Wondered if special protection for the press or just like other freedom of speech case
C. Brazenburg
D. Zurcher
XIV. Religion clauses
A. Questionnaire
B. Overview of how the two clauses work together.
C. Do we not favor one religion over another, or more no favoring of religion over nonreligion
D. Free exercise clause
1. cannot prohibit belief at all, but
2. can prohibit some conduct pursuant to belief.
3. Hileah
4. reynolds
5. braunfield
6. sherbert v. verner
7. ws v. yoder
8. bob jones
9. goldman
10. scalia in Smith - peyote case.
11. look at religious freedom restoration act, where Congress and public upset by low level of scrutiny previously used, so wanted return to strict scrutiny of earlier cases.
E. Establishment clause
1. Lemon test - 3 prong test
2. debate over first prong somewhat, is it a secular purpose, or predominant secular purpose
3. release time cases
4. McCollum and Zorach
5. school prayer cases
6. good news club
7. look at cases in conjunction and be comfortable with distinctions
8. ten commandments case
9. pledge of allegiance cases - no standing in USSC
10. epperson
11. edwards
1. some talk about relaxation of wall between church and state.
XV. No need to memorize case names, can really just reference the main idea of the case. Note important to mention some cases that are important.
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