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Constitutional Law II
CON LAW I, REVIEW Before the Constitution was enacted there were the Articles of Confederation, and no Supreme Court. It is due to the failure of the Articles that the Constitution was enacted Article I Legislative powers - 8 Congress cannot act without invoking an enumerated power directly out of the USC Kryptonite of the legislative powers is the states 10th amendment right Article II Presidential powers Implied power from tradition and codified in US v. Nixon, Steel Mills, etc. Article III Supreme Court was created by Article III, 1 The USSC gets its power from Marbury v. Madison o John Marshall created the power of the USSC as the final arbiter Limitations President Congress, impeachment, privileges within his official acts, terms of office Judicial no advisory opinions, cases and controversies, justiciability doctrine, cannot create laws, impeachment, Congress Misc. The original constitution had no bill of rights because there were no individual rights as slavery was the status quo and no one wanted to give rights to slaves The BOR applies to the federal government and was incorporated into the states by the incorporation doctrine State action doctrine to sue the federal government o Public function exception when acting like a federal government you can sue o Entanglement exception when the state facilitates, encourages, or authorizes discrimination by a public actor, the public actor must comply USC or the government must cease involvement with the private actor

CHAPTER 5 REFER TO HAND OUT FROM BROUSSARD

CON LAW II CHAPTER SIX, ECONOMIC LIBERTIES Economic Liberties Constitutional rights concerning the ability to enter into and enforce contracts, to pursue a trade or profession, and to acquire, possess, and convey property Three types: o Obligation of Contracts Contracts Clause

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o o Takings Clause Substantive Due Process

Substantive Due Process of the Lochner Era: Allgeyer v. Louisiana (1897) State law prohibited payments on marine insurance policies issued by out-of-state companies that were not licensed or approved to do business in the state Holding: the court found the Louisiana law interfered with freedom of contract and that it thus violated the due process clause of the 14th amendment o This was the first time the court used the 14th amendment to connect substantive due process rights for the right to contract Lochner v. New York (1905) NY law set out the maximum hours a baker could work Holding: the court found the law to be unconstitutional as violating the due process clause of the 14th amendment because it interfered with freedom of contract and it did not serve a legitimate valid police power o NY was trying to protect the industry, not take care of the immigrants so the USSC used Allgeyer to shoot down the law Three themes emerged from the Lochner era (1905-1937); hands off approach o Freedom of contract was a right protected by the due process clauses of the 5th and 14th amendments o The state government could interfere with freedom of contract only to serve a valid police purpose of protecting public health, safety, or morals o The judiciary would carefully scrutinize legislation to ensure that it truly served such a police power o This was a shameful time because on the surface it looked good but Lochner was used to invalidate laws of consumer protection it was undesirable, inconsistent, and attacked judicial activism Coppage v. Kansas (1915) Kansas law prohibited employers from requiring that employees not join a union Holding: the court found the law to be unconstitutional as impermissibly infringing on freedom of contract o It was not a legitimate exercise of the police power for the government to attempt to equalize bargaining power between employer and employee o Dissent found there was no interference with contract as the defendant can choose if he wants to be employed or not Muller v. Oregon (1908) Oregon enacted a maximum hours law for women Holding: the court upheld the law as it was not in conflict with the USC and because the law was justified in a widespread belief that womens physical structure and performance should be regulated o Oregon was trying to protect the men in the workplace, play cousin to politics of the court o Opposite of Lochner case o Famous for its 113 page Brandeis brief using scientific data instead of just law to demonstrate the need for this particular law ( 1st Public Policy Argument.)

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Adkins v. Childrens Hospital (1923) Congress enacted a law which guaranteed a minimum wage to woman and children in D.C. Holding: the court found the law to be unconstitutional as it would dangerously extend the police power of the state as there was no valid purpose and it interfered with freedom of contract o The court said a minimum wage law was different than a maximum hours law (Muller) but women were getting slave labored Weaver v. Palmer Bros. Co (1926) State law prohibited the use of shoddy in comfortables as there was health issues arising Holding: the court found the law to be purely arbitrary and violated the due process clause of the 14th amendment o The state was trying to protect the consumers, but the court found that the law interfered with the freedom of contract for those who wished to buy and sell such products o Court says there is a less restrictive way of doing this. A factor later used in equal protection. o One of Broussards favorite cases Nebbia v. New York (1934) NY law set prices for milk as there were rough economic conditions due to the depression Holding: the court found the law constitutional and valid to promote public welfare in NY o The small farmers had too much milk so they were just trying to sell what they could but the big farmers and corporations were outraged o Statute was upheld as there was no violation of due process rights Demise of the Lochner era o The court declared a need for judicial deference to legislative choices o Rational basis as a standard what was the states economic interest in doing this? o Precursor of things to come with standard of review Recap: No exclusive word of liberty in the 14th amendment Ideological interpretation of the substantive due process the right you got was the right to contract This substantive due process was going to change the court changed with FDR and his new deal Economic Substantive Due Process since 1937: West Coast Hotel v. Parrish (1937) Washington state enacted a fixed minimum wage law for women and minors of $14.50 per week of 48 hours. Appellee Elsie Parrish was employed as a chambermaid and (with her husband) brought the initial suit to recover the difference between the wages paid her and the wages fixed by the state law. West Coast challenged the constitutionality of this act based on Adkins as it was repugnant to the due process clause of the 14th amendment, right to contract Rationale: The Constitution does not speak of freedom of contract, it speaks of liberty and prohibits the deprivation of without due process. Liberty is subject to the restraints of due

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process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. Power to contract between employer and employee can undeniably be restricted if in the public interest. Health and welfare of women and their protection from unscrupulous employers is in the public interest. The legislature was entitled to adopt measures to reduce the evils of the sweating system, the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living. Helps to carry out the legislative policy of protection, as evidenced by many other states doing the same. What the workers lose in wages, the tax payers are called upon to pay. The community may direct its law-making power to correct the abuse which springs from employers selfish disregard of the public interest. Holding: the court found the law constitutional and expressly overruled Adkins v. Childrens Hospital. o There is no substantive due process liberty right to contract anymore o This lowered the threshold for the states they do not need a compelling reason, just a legitimate and reasonable one, regardless of a purpose falling under its police power Struck down Lochner and three new themes emerge o States can now act to further any purpose not forbidden by the USC o States are not limited to using just the police power o States may use any way that is reasonable to achieve their ends United States v. Carolene Products (1938) Congress enacted the Filled Milk Act in 1923 which prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat Carolene argued this infringed on the 5th amendment federal due process rights Holding: the court found the law constitutional and that it did not violate the 5th amendment o Famous for FN 4 which set up the standards of review: it proclaimed a need for judicial deference (rational basis test) to government economic regulations, with more aggressive judicial review (strict scrutiny) reserved for cases of fundamental rights and discrete and insular minorities Rational Basis legitimate purpose for business and economic regulations Intermediate Scrutiny for equal protection and womens issues Strict Scrutiny substantial reason o Abandoned the substantive due process principles of Lochner o Sotomayer talked about this case when responding to what was happening with the firefighters the argument from the town was it was based on money so rational basis but the argument for the firefighters was it was based on race so strict scrutiny should apply Williamson v. Lee Optical of Oklahoma (1955) Oklahoma enacted a law which made it unlawful for any person not a licensed eye doctor to fit lenses or replace new frames, except if upon prescriptive authority Williamson found it violated the provisions under the due process of the 14th amendment Holding: the court found the law constitutional as there is a need for judicial deference to legislative choices if it passes the rational basis test of Carolene o So long as the court could find some legitimate purpose and its reasonable, the law will be upheld all you need is that it is a matter of public health and concern BMW of North America v. Gore (1996)

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The due process clause of the 14th amendment prohibits a state from imposing a grossly excessive punishment on a tortfeasor Gore sues BMW for failure to disclose a material fact and Gore was awarded $2 million in punitive damages Holding: the court found the punitive damages cannot be assessed to punish for residents in other jurisdictions and thus a violation of due process o The court gives a test applicable to the states which is the exception to the rational basis test 3 prong test for deciding grossly excessive punitive damages o Degree of reprehensibility o Disparity between the harm suffered and the award ratio must be reasonable o Difference between this remedy and civil penalties in other comparable cases sanctions for comparable misconduct must be justifiable State Farm v. Campbell (2003) Campbell filed suit against State Farm for bad faith, fraud, and intentional infliction of emotional distress and was awarded $145 million in punitive damages Holding: the court found the punitive damages were grossly excessive and used the test from BMW v. Gore to have guidelines and parameters of the punitive/economic regulations o A state may not punish a defendant for conduct that may have been legal where it occurred elsewhere and the wealth of a defendant may not justify an otherwise unconstitutional punishment Phillip Morris USA v. Williams Evidence of reprehensibility can be used to show harm but cannot go any further than that A jury cannot punish for other non-party plaintiffs Recap: We are now moving away from substantive due process (legal fiction to the extent as the rights are not specified in the USC) towards the contracts clause Switch in time saves nine one switched vote saved the supreme court and prevented FDR from court-packing The Modern Use of the Contracts Clause: Home Building v. Blaisdell (1934) Minnesota enacted a moratorium law for 2 years which provided relief to foreclosures during declared emergencies In response to the Depression, the Minnesota legislature passed the Minnesota Mortgage Moratorium Law. This law allowed homeowners to seek relief from foreclosure proceedings. Sales could be postponed and periods of redemption extended except for those loans that were made after the passage of the law. Issue. Does this provision violate the Contract Clause of the United States Constitution (Constitution) by impairing the obligations between private parties in contracts? Holding: the court found the law to be constitutional as it does not violated the contracts clause as it was not a permanent situation and it is an exception to the contracts clause

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o o o Farmers were foreclosing but the redemption period was not unreasonable as it was temporary in operation Rational basis test of the states police power - it safeguarded the vital interests of its people The Supreme Court of the United States (Supreme Court) provides a description of contractual impairment as that which releases a person from contractual obligation. Generally, a state is not permitted to interfere with private contracts. But, if the state can provide sufficient justification for the interference (such as safeguarding the community for health or economic reasons), then the law will likely be constitutional.

Energy Reserves v. Kansas Power and Light Co. (1983) Kansas adopted a law that provided that the price to be paid for natural gas under a contract could not be increased because of prices set by Federal authorities The state of Kansas regulated the price of natural gas sold in the intrastate market. It prohibited natural gas producers from charging higher prices even if the federal government set higher prices. The Petitioner, Energy Reserves Group (Petitioner), had a contract with the Respondent, Kansas Power & Light (Respondent) that allowed the price paid for the gas to increase if federal regulators increased the price to an amount greater than the contract amount. Issue. Is this provision a violation of the Contracts Clause of the United States Constitution (Constitution)? Holding: the court found the law constitutional as it attempted to coordinate the intrastate and interstate prices by supplementing the federal acts regulation of intrastate gas o The state exercised its police power to protect consumers from the hardship of higher gas prices No. Price regulation existed and was foreseeable at the time of contracting. Therefore, the Kansas law did not impair Petitioner's contractual expectations. Also, the state has a legitimate interest in correcting any discrepancy between the interstate and intrastate markets. o 3 part test emerged from Energy Reserves and serves as the modern test for the contracts clause: o Is there a substantial (strict scrutiny) impairment of a contractual relationship? o If so, does it serve a significant and legitimate public purpose? And o If so, is it reasonable related (defined in this case) to achieving the goal? Allied Structure Steel Co. v. Spannaus (1978) Minnesota passed a law requiring any employer with more than 100 employees who provided pension benefits, to pay a pension funding charge if the funds were insufficient to cover all employees who had worked for at least 10 years with the company The Appellant funded a pension plan for all employees. At age 65 each employee was entitled to receive a pension equal to 1% of their average monthly salary, multiplied the number of years of service. The pension right became vested, in that employment termination could not affect the right to receive the money. But, the company was free to terminate the pension plan at any time for any reason.

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Minnesota passed a law requiring any employer with more than 100 employees who provided pension benefits, to pay a pension funding charge if the funds were insufficient to cover all employees who had worked for at least 10 years with the company. In the summer of 1974, the Appellant closed its Minnesota office. Nine of the employees did not have vested rights under the company's plan, but they had worked for the company for 10 years. So, the state charged Appellant a fee of $185,000 under the Act. Issue. Does Minnesota's Act violate the Contract Clause? Holding: the court found the law to be unconstitutional as there was a substantial impairment with private contracts o The court used a test that sounded similar to the Lochner era of substantive due process brings us full circle o Only case since 1934 that the court has found a state law to be unconstitutional could be an anomaly because as it has not been followed since Yes. The Act substantially altered the employer's obligation to the employees by retroactively modifying the funding of the pension plan. This resulted in a severe, permanent and immediate change in the contractual relationship. The Supreme Court of the United States observed that the Act nullified express terms of the company's contractual obligations and imposed a completely unexpected liability in potentially disabling amount. Furthermore, the law was not designed to remedy a generalized economic or social problem. Dissent. Justice William Brennan (J. Brennan) argued that the Act was designed to prevent corporations from obtaining a windfall by closing shops early and eliminating pension contributions. Also, J. Brennan observed that the burden on companies is small.

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United States Trust v. New Jersey (1977) New York and New Jersey prohibited the use of toll revenues from being used to subsidize railroad passenger service. It was meant to pay debt for bonds but instead the government repealed their own contracts because of the energy crisis New York and New Jersey formed a Port Authority (Authority). Bonds were sold to support the independent authority and bridge and tunnel tolls were pledged to protect the bondholders. In 1960, the Authority took over a financially troubled, privately owned commuter train. In 1962 New York and New Jersey entered a contractual arrangement not to finance railroad deficits with revenue pledged to make bond payments. However, in the 1970's, both New York and New Jersey passed laws, which repealed the original legislation and allowed the toll revenue to be used to upgrade and maintain the railroad system. The Petitioner argued that this changed the state's contractual obligation to repay the bonds. The Petitioners, the United States Trust Company of New York and various bondholders (Petitioners), brought suit alleging that the repeal of the original legislation violated the Contract Clause in that it impaired their rights to payment on the bonds. Issue: Does the repeal of the earlier legislation impair the obligation of New Jersey to the bondholders? Holding: the court found the 1962 repeal was a violation of the contracts clause and it was unconstitutional for the government to interfere with the contract o The court used a heightened more strict scrutiny test looking at if it was necessary to interfere with the contract and if it was the least restrictive alternative reasonably related and narrowly tailored to the means of the ends o In this case, the court found the government was not justified as it was not reasonable nor necessary and the states violated the contracts clause Yes. The Contract Clause does not prevent a state from enacting legislation, which may affect existing contracts so long as reasonable conditions and public interests justify its enactment. The situation is different when it comes to the state impairing its own contracts. In that case, the nature of the contract must be scrutinized. Only where the state's promise is not purely financial, may the state impair its own debts. Here, the reservation of tolls was purely financial. States cannot impair their debts merely because they would prefer to spend their money in a different manner. This repeal was not a necessary or reasonable means of achieving the goal of encouraging citizens to use the transit system instead of automobiles. A less drastic alternative was available to achieve the state's goal. Dissent. The Contract Clause should not be used to preserve a property right of third parties who contract with the government, nor should it be used to overrule sound legislative decision-making. Recap: Merely passing a law is not interference before, somebody believed it was more appropriate to use due process instead of the contracts clause because it had a broader interpretation The contracts clause never applies to the federal government The contracts clause is only used when a law impairs an existing contract AND the government can only interfere with a private contract if the interference is reasonably related to a legitimate purpose If a government interferes with private contract its rational basis If a government interferes with a government contract, state v state its a heightened (intermediate) scrutiny

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The Takings Clause: 5th Amendment- nor shall private property be taken for public use without just compensation. A possessory taking occurs when the government confiscates or physically occupies property. A regulatory taking is when government regulation leaves no reasonable economically viable use of property. Object taken must be property and state law decides whether there is a property interest. Next question is: Is the taking for public use? If not for public use, the government must give the property back. (broadly defined to fit almost all takings) (as long as rationally related to a conceivable public purpose) Final question : Was just compensation paid? Calder v. Bull-condemned takings. Loretto v. Teleprompter (1982) Justice Marshall delivered the opinion. NY law provides that a landlord must permit a cable television co. to install its cable facilities upon his property 828 of the Executive law, effective 1/1/73 Prior to 1973 the Respondent, Teleprompter Manhattan CATV (Respondent), would obtain permission from property owners to run cable through their premises. In exchange, for this permission the Respondent would pay the owners 5% of the gross revenue recognized from the installation of cable in the apartment buildings. In 1973, the New York legislature passed an act stipulating that a landlord "could not interfere with the installation of cable television facilities upon his property." The State Commission ruled that a one-time $1 payment is the normal fee to which a landlord is entitled. The Court of Appeals concluded that the act was a legitimate exercise of the state's police powers. Issue. Does a minor, but permanent physical occupation of property under the authorization of the government constitute a "taking"? Rationale: Teleprompter's cable installation on appellant's building constitutes a taking under the traditional test. The installation involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building's exterior wall. Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State's broad power to impose appropriate restrictions upon an owner's use of his property. Holding: the court found the law to be unconstitutional as it was a possessory taking under the 5th amendment o No matter how small the amount of property, the court has made it clear that government confiscation or physical occupation of property constitutes a taking o Such installations as telephone lines, rails, pipes or wires are takings

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Dissent. This decision relies upon the subjective analysis of whether property was permanently occupied or temporarily invaded. Permanency results in a per se taking, but temporary occupation is open to interpretation. This analysis is illogical.

Pennsylvania Coal v. Mahon (1922) Justice Holmes delivered the opinion. The Mahons were bound by a valid covenant to permit the Coal Company, which had sold to them or to their ancestor the surface rights only in their lot, to exercise without objection or hindrance by them, its reserved right to mine out all the coal, without liability to them for damages occasioned thereby, which damages had been expressly waived as a condition for the grant. On August 27, 1921, the statute completely annulled this covenant, by giving them the right, by injunction, to prevent such mining. The Kohler Act regulated the use of coal companies by forbidding the mining of coal in certain areas unless owned by the landowner or 150 feet away from other property. Issue: Whether Pennsylvanias police power allows the enactment of the Kohler Act, or if this represents a taking of the coal companys property rights. Rationale: The court found the public interest in one house to be limited. Not justified as a protection of personal safety. The extent of the taking is great. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so short sighted as to acquire only surface rights without the right of support, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place and refusing to pay for it because the public wanted it very much. The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. We assume, of course, that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought. Holding: the court found the law to be unconstitutional as it was a regulatory taking under the 5th amendment o Landmark case as the court said a taking could be found if government regulation of the use of property went too far 3 factors in determining if a taking has occurred - too far test: o The economic impact of the regulation of the claimant o The extent to which the regulation has interfered with investment-backed expectations AND o The character of the governmental action Miller v. Schoene (1928)

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Facts: Acting under the Cedar Rust Act of Virginia, defendant in error, the state entomologist, ordered the plaintiffs in error to cut down a large number of ornamental red cedar trees growing on their property, as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity. Neither the judgment of the court nor the statute as interpreted allows compensation for the value of the standing cedars or the decrease in the market value of the realty caused by their destruction whether considered as ornamental trees or otherwise. But they save to plaintiffs in error the privilege of using the trees when felled. The Virginia statute presents a comprehensive scheme for the condemnation and destruction of red cedar trees infected by cedar rust. Trees within 2 miles around apple orchards must be cut down in order to contain the disease. The Cedar Rust Act of Virginia ordered the destruction of a large number of ornamental red cedar trees to prevent the spread of cedar rust, an infections plant disease. Rationale: Its life cycle has two phases which are passed alternately as a growth on red cedar and on apple trees. It is communicated by spores from one to the other over a radius of at least two miles. It appears not to be communicable between trees of the same species but only from one species to the other, and other plants seem not to be appreciably affected by it. The only practicable method of controlling the disease and protecting apple trees from its ravages is the destruction of all red cedar trees, subject to the infection, located within two miles of apple orchards. The red cedar, aside from its ornamental use, has occasional use and value as lumber. It is indigenous to Virginia, is not cultivated or dealt in commercially on any substantial scale, and its value throughout the state is shown to be small as compared with that of the apple orchards of the state. Apple growing is one of the principal agricultural pursuits in Virginia. The apple is used there and exported in large quantities. Many millions of dollars are invested in the orchards, which furnish employment for a large portion of the population, and have induced the development of attendant railroad and cold storage facilities. And where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property. Here, the Supreme Court of the United States (Supreme Court) weighs each of these factors to reach its conclusion. This construct helps explain the differing result found in Pennsylvania Coal. Factors below vvvv There are 3 factors to consider when determining if a taking exists: o (1) the economic impact of the regulation on the claimant; o (2) the extent to which the regulation interferes with expectations and o (3) the character of the governmental action. Holding: the court found the law to be constitutional and no compensation need be paid as a taking did NOT occur o When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another, which, in the judgment of the legislature, is of greater value to the public o Different from Pennsylvania Coal as the trees will grow back and the economic impact if the apple trees were to die was greater than the small amount of income from the ornaments from the red cedar trees Penn Central Co. v. NYC (1978) Justice Brennan delivered the opinion. Under New York City's Landmarks Preservation Law (Landmarks Law), which was enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or

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fundamentally alter their character, the Landmarks Preservation Commission (Commission) may designate a building to be a "landmark" on a particular "landmark site" or may designate an area to be a "historic district." Facts: New York City, responding to similar concerns and acting pursuant to a New York State enabling Act, adopted its Landmarks Preservation Law in 1965. The city acted from the conviction that "the standing of [New York City] as a world-wide tourist center and world capital of business, culture and government" would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character. NY law set the terminal as a historic landmark of NY and prevented the owner from expanding on top of the building up to the planned 50 stories that was to be built under a 50-year lease contract between the owner, Penn Central and UGP Properties Ltd. Issue: whether the application of New York City's Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has "taken" its owners' property in violation of the Fifth and Fourteenth Amendments. Rationale: Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects. First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission's actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for any comparably sized structure, nothing the Commission has said or done suggests an intention to prohibit any construction above the Terminal. Holding: the court found the law to be constitutional as the regulation of the historical landmarks were NOT takings and the regulation is not interfering with the present use of the terminal o The restriction does not interfere with the petitioner profiting from obtaining a reasonable return on its investment o The time of purchase and knowing of the regulation is irrelevant at this point o The petitioner may have been able to argue Carolene rational basis test but would probably fail because there was not rationally related argument Dissent- MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEVENS join, dissenting. o Of the over one million buildings and structures in the city of New York, appellees have singled out 400 for designation as official landmarks. 1 The owner of a building might initially be pleased that his property has been chosen by a distinguished committee of architects, historians, and city planners for such a singular distinction. But he may well discover, as appellant Penn Central Transportation Co. did here, that the landmark designation imposes upon him a substantial cost, with little or no offsetting benefit except for the honor of the designation. The question in this case is whether the cost associated with the city of New York's desire to preserve a limited number of "landmarks" within its borders must be borne by all of its taxpayers or whether it can instead be imposed entirely on the owners of the individual properties.

Lucas v. South Carolina Council (1992) South Carolina enacted the Beachfront Management Act which prohibited construction by the sea without any exceptions in 1988 Facts: In the late 1970's, Lucas and others began extensive residential development of the Isle of Palms, a barrier island situated eastward of the city of Charleston. The Petitioner purchased

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two beachfront lots for $975,000 in 1986. He intended to build single-family homes on each lot. No portion of the lots, which were located approximately 300 feet from the beach, qualified as a "critical area" under the 1977 Act; accordingly, at the time Lucas acquired these parcels, he was not legally obliged to obtain a permit from the Council in advance of any development activity. His intention with respect to the lots was to do what the owners of the immediately adjacent parcels had already done: erect single-family residences. He commissioned architectural drawings for this purpose. But, in 1988 the South Carolina legislature passed the Beachfront Management Act (the Act) that barred the building. The Act's stated purpose was to protect property from storms, tides and beach erosion and as an environmental protection. The Petitioner did not challenge the state's right to pass the Act or its justifications for doing so. Lucas claims that the passage of the Act resulted in a taking of the property since he cannot use it for the intended purpose. Issue: Does the no-build regulation result in a compensable taking? Rationale: Lucas did not take issue with the validity of the Act as a lawful exercise of South Carolina's police power, but contended that the Act's complete extinguishment of his property's value entitled him to compensation regardless of whether the legislature had acted in furtherance of legitimate police power objectives. Following a bench trial, the court agreed. The Supreme Court of South Carolina reversed. It found dispositive what it described as Lucas's concession "that the Beachfront Management Act was properly and validly designed to preserve South Carolina's beaches." Holding: the court found the law to be unconstitutional and a taking in which compensation need be paid o South Carolina must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the circumstances in which the property is presently found. Only this showing can the state fairly claim that , in proscribing all such beneficial uses, the Beachfront management Act is taking nothing. o Where regulation denies all economically beneficial or productive use of the land, there is a taking o If there had been notice of the act at the time of purchase, the state may have been able to prevail o Dissent: argues the court created a new categorical rule with an exception of background common law nuisance and property principles Dissent: JUSTICE BLACKMUN, dissenting. Today the Court launches a missile to kill a mouse. The State of South Carolina prohibited petitioner Lucas from building a permanent structure on his property from 1988 to 1990. Relying on an unreviewed (and implausible) state trial court finding that this restriction left Lucas' property valueless, this Court granted review to determine whether compensation must be paid in cases where the State prohibits all economic use of real estate. According to the Court, such an occasion never has arisen in any of our prior cases, and the Court imagines that it will arise "relatively rarely" or only in "extraordinary circumstances." Almost certainly it did not happen in this case. o I protest not only the Court's decision, but each step taken to reach it. More fundamentally, I question the Court's wisdom in issuing sweeping new rules to decide such a narrow case. o More than a century ago, the Court explicitly upheld the right of States to prohibit uses of property injurious to public health, safety, or welfare without paying compensation: "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the

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community, cannot, in any just sense, be deemed a taking or an appropriation of property." A condition on the development of property is a taking if the burden imposed by the condition is not roughly proportionate to the governments justification for regulating. Nollan v. California Coastal (1987) Justice Scalia wrote the opinion. The government had conditioned a permit for the development of beachfront property on the owners granting the public an easement to cross the property for beach access Rationale: The police power allows the government to place a condition on development if it is rationally related to preventing harms caused by the new construction. If government action resulted in permanent occupation of land, it would effect a taking unless it substantially furthered legitimate state interests. Holding: the court found the law to be unconstitutional as there was a taking because it was not a valid regulation of the land o There needs to be an essential nexus between the state interest and the condition by the city looking at the character of the government action o Clarified better in Dolan Dolan v. City of Tigard (1994) Chief justice Rehnquist delivered the opinion. Oregon required all cities to adopt a new comprehension plan requiring pedestrian and bike paths along the facilities The owner of a city lot in Oregon, on which she operated a retail store, applied to the city for a building permit for a bigger store, a paved and expanded parking area, and an additional structure for complementary businesses. The city's planning commission, pursuant to the city's community development code, granted the application subject to two conditions: that the owner dedicate to the city (1) as a greenway the portion of her lot within the 100-year floodplain of a creek which flowed through one corner and along one boundary of the lot; and (2) as a pedestrian/bicycle pathway an additional 15-foot strip of land adjacent to the floodplain. Owner of an electric store wanted to pave a new parking lot and wanted just compensation for her public easement Rationale: The right to exclude others is one of the most essential property rights. Kaiser Aetna v. United States, (1979). A land use regulation does not effect a taking if it substantially advances legitimate state interests and does not deny an owner economically viable use of her land. In evaluating a takings claim, the court must first determine whether the essential nexus exists between the legitimate state interest and the permit condition exacted by the city. If the court finds that a nexus exists, it must then decide the required degree of connection between the exactions and the projected impact of the proposed development. Holding: the court remanded this case back with the new standard of rough proportionality test as to the demands of the condition must be roughly proportionate to the impact of the proposed development o There was probably a taking as it went too far o However, nowadays, this may not be a taking because of the growing public awareness of environmental issues (1) in order to decide whether conditions requiring the dedication of land to a city, which conditions are imposed by the city on its approval of a lot owner's building permit,

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constitute an uncompensated taking in violation of the Fifth Amendment's takings clause, (a) a court must first determine whether an essential nexus exists between legitimate state interests and the permit conditions, and (b) if the court finds that a nexus exists, then the court must determine whether the city has shown a rough proportionality between the exactions and the projected impact of the proposed development; and (2) as to the case at hand, even though an essential nexus existed between legitimate state interests and the two conditions in question, the commission's findings did not satisfy the requirement or test of showing rough proportionality, because (a) the city had never said why a public greenway, as opposed to private one, was required in the interest of flood control, and (b) the city had not met its burden on demonstrating that the additional number of vehicle and bicycle trips generated by the development reasonably related to the pedestrian/bicycle pathway condition. Stevens, J., joined by Blackmun and Ginsburg, JJ., dissenting, expressed the view that (1) the Supreme Court's test of rough proportionality (a) focused too narrowly on a property owner's right to exclude others, (b) imposed a novel burden of proof on a city implementing an admittedly valid, comprehensive land use plan, and (c) resurrected a rejected species of substantive due process analysis; and (2) even under the Supreme Court's new test, the defects found by the court in the city's case were, at most, nothing more than harmless error. Palazzolo v. Rhode Island (2001) Rhode Island designated certain areas as coastal wetlands and prohibited development on it The petitioner purchased the land in 1978, after it was already deemed a coastal wetland The Petitioner owns a piece of land on the waterfront in Westerly, Rhode Island. Under Rhode Island law, almost all the of the Petitioner's property is designated coastal wetlands. The Petitioner sought to develop the land, but his multiple attempts to do so were rejected by the Respondent. Of the Petitioner's many proposals to develop the property, one was to develop a private beach club. In order to do so, salt marshes on the property would have to have been filled. A developer needed a "special exception" from the Council to fill a salt marsh. A "special exception" was only granted if the proposed activity serves "a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests." The special exception was refused, and after the rejection, the Petitioner sued in state court asserting that the Respondent's "application of its wetlands regulations took the property without compensation in violation of the Takings Clause of the Fifth Amendment, binding upon the State through the Due Process Clause of the Fourteenth Amendment." Whether the states wetlands regulations, as applied by the [Respondent] to [the Petitioner's] parcel [a taking of] property without compensation in violation of the Fifth and Fourteenth Amendments. Holding: the court remanded the case for further consideration under Penns 3 factor test of reasonableness o A property owner can bring a takings claim as to regulations and laws that were in place at the time the property was acquired o Different from Penn Central as the timing was irrelevant there, and now timing is relevant to bringing a challenge to a regulation under the takings clause No. Justice Anthony Kennedy ("J. Kennedy") wrote the majority opinion and recognized "[t]he owner is not deprived of all economic use of his property because the value of upland portions is substantial" and as such the case must be remanded for consideration under the [Penn Central] principles. J. Kennedy observed "we have given some, but not too specific , guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, that a

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regulation denying all economically beneficial or productive use of land' will require compensation under the Takings Clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." J. Kennedy also held (i) the claim was ripe and (ii) the "claim is not barred by the mere fact that title was acquired after the effective Tahoe Council v. Tahoe Planning Agency (2002) Involves a 32 month moratoria ordered by the Tahoe Planning Agency to maintain the status quo beauty while studying the impact of Lake Tahoe Holding: the court found the law to be constitutional and there was no taking as the plan was not unreasonable nor was it permanent o A moratorium does NOT constitute a taking per se but the court will look at the time constraint and the value after the restraint in their determination (duration and value of property after the moratorium) Kelo v. City of New London (2005) What is public use? A city in Connecticut used their eminent domain powers to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Petitioner argued the city violated their 5th amendment rights as the city was not taking their property for public use Holding: the court reaffirmed that a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public o The court used a broader and more natural interpretation of public use as public purpose o Because the city was following an economic development plan, it was a taking for public use o 5-4 decision and shocking that all liberals were siding with the city - know this case Lingle v. Chevron USA (2005) What is public use? Hawaii enacted a limit on the rent oil companys could charge dealers leasing co-owned stations Chevron argued it was an unconstitutional cap and a taking of its property Holding: the court remanded this case back as the Agins test of substantially advancing a legitimate state interest is not the correct test to be using o Takings clause challenges to regulations had to be based on the severity of the burden that the regulation imposed upon property rights, not the effectiveness of the regulation in furthering the governmental interest o The court should be using the reasonableness test o Probably not a taking because the state can argue it is a moratorium until the market conditions improve Hawaii Housing Authority v. Midkiff (1984)

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The Hawaii legislature enacted the Land Reform Act of 1967 which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees This act in effect required the large landowners to break apart their estates Holding: the court found the act constitutional as it was consistent with the public use clause of the 5th and 14th amendments, as it was to reduce the concentration of ownership in the state o So long as the act is rationally related to a conceivable public purpose, a taking should be upheld o This is an example of a Robin Hood case similar to present day South African situation Brown v. Legal Foundation of Washington (2003) What is just compensation? The state of Washington uses IOLTA to pay for legal services for the needy Holding: the court found the law to be constitutional as there was no taking, and even if there was a taking, there was no violation of the takings clause because no compensation was due o Just compensation is measured by the property owners loss in market value at the time of the taking rather than the governments gain Recap: The takings clause gives the most economic rights to the people it was the first right applicable to the states Takings means the same thing as condemnation Four questions to ask: o Is there a taking? * Is it property? * Is the taking for public use? o Is just compensation paid? - through taxes, from everyone Two types of takings o Possessory taking takes property o Regulatory taking economic loss that diminishes property to valueless -no reasonable economically viable use = taking -decrease the value of property but still use = NO taking Takings is based on a case-by-case basis in which it looks at the harm of the claimant o The state has to make a showing of its purpose, but the claimant gets the most favorable light in regards to the balancing test of rough proportionality Regulatory takings involve: zoning ordinances, conditions of development on property, conveyance of property, rent and rate controls, and imposition of government liability Zoning ordinances limit the way in which a person may use his/her property and therefore frequently have the effect of diminishing the propertys economic value

CHAPTER SEVEN, EQUAL PROTECTION Originally the USC did not have provisions ensuring equal protection of the law because slavery was the staple of America. Being black was enough to elevate you to being convicted of crimes, but did elevate you to being given rights Equal Protection Both the 5th and 14th amendment has the same analysis

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5th amendment applies to the federal government 14th amendment applies to state and local government EP treats everyone differently (1) suspect classification (2) fundamental rights 14th amendment Enacted in 1867 but it was not used until Brown in 1954 Jim Crow laws were black codes that were around for 335 years (1619-1865-1867-1954) The 13th, 14th, and 15th amendments did not abolish the Jim Crow laws Framework for Analysis 1. What is the classification? o Discrimination exists on the face of the law o There is a discriminatory impact to the law of discriminatory effects from its administration because of the law 2. What is the appropriate level of scrutiny? o Based on race, national origin, or alien - strict scrutiny compelling government purpose burden on the government to prove o Based on gender or non-marital children -intermediate scrutiny substantially related to an important government purpose burden on the government o Based on equal protection every thing else that is not a suspect classification of (1) strict scrutiny or (2) intermediate scrutiny -rational basis test rationally related to a legitimate government purpose burden on the challenger 3. Does the government meet the level of scrutiny? o The underlying issue in every case did the government meet their burden of proof of the EP classifications o Is there an appropriate means to its end Standards of Review o Uses of immutable characteristics, ability to protection, and the history of discrimination in the past helps to decide the level of scrutiny the court uses o All EP is not viewed the same way by the court some view it differently Rational Basis Test 1. Is there a legitimate purpose? o Was it the actual purpose or is such a purpose conceivable 2. Is the law rationally related to achieving the state purpose? What Constitutes a Legitimate Purpose: Romer v. Evans (1996) Colorado Amendment 2 was a voter-approved initiative that repealed all laws protecting gays, lesbians, and bisexuals from discrimination and that prohibited all future government action to protect these individuals from discrimination Voters of CO adopted a referrendum as an Amend to the state constitution after local and state govtl bodies were providing protection to people who were discriminated against by

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reason of their sexual orientation. The Amend repeals, rescinds, and prohibits all legislative, executive, and judicial action at any level that protects members w/i that class. D argues that the law simply denies gays special protection, but still allows them equal protection under the laws. BUT, this amendment singles out homosexuals to be stripped of the special protection, while many other classes retain their special protection. Homosexuals are disallowed a protection that other groups seek without constraint.

Issue: Whether a State Constl Amend can validly discriminate and den y people from the political process solely because of their sexual orientation under the 14th ? Procedure: Soon after Amend was adopted, suit was filed to enjoin and declare its invalidity. Trial Ct granted preliminary injunction, on Appeal sustained temp injunction and remanded for further proceedings, ST S Ct held Amend subject to Strict Scrutiny b/c fundamental right-participation in political process-was involved. On remand, trial ct did not find states means were narrowly tailored and enjoined enforcement. St S Ct Affirmed. U.S. S. Ct Affirmed but on different rationale.

Rationale: Legitimate interest- D argues that they passed the law so as not to force

landlords, etc. to employ homosexuals if they have an objection to homosexuality. D also argues that it has an interest in conserving resources to fight discrimination against other groups. The desire to harm a group isnt a LSI. Substantially related- But, the law is not substantially related to these interests. The law is overly broad. There is no rational relationship because the law was enacted simply to burden homosexuals.
[EPC] forbids govt law/policy by which homosexual/lesbian/bisexual orientation, conduct, practices, relationships are the basis by which persons may have or claim minority or protected status, quota preferences, or discrimination.

Amend 2 is at once too narrow and too broad. It identifies people by a single trait and then denies them protection across the board. The resulting disqualification of a class of people from the right to seek specific protection from the law is unprecedented. A law declaring that it will be more difficult for one group of citizens than others to seek the aid of Govt is itself a denial of EP of the laws. Laws of this kind raise the inevitable inference that the disadvantage imposed is born out of animosity toward a class of people. If EP of the laws means anything it must mean that a desire to harm a politically unpopular group cannot constitute a legitimate Govt interest. Amend 2 inflicts immediate, continuous, and real injuries that outrun and belie any legitimate justifications. Amend 2 does not bear a Rational relationship to a legitimate Govt purpose.
Holding: the court found the law to be unconstitutional and invalid as violating the equal protections clause of the 14th amendment

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o o CO was arguing respect for others freedoms and religious objections, also animus we dont like gay people but the court found no rational relationship nor any legitimate purpose The court ruled that the state can use any legitimate reason except for hate or any other unconstitutional purposes

Analysis o A) homosexuals o B) rational basis o C) does not meet the standard the court used an enhanced rational basis, one with more bite (but why didnt they use a heightened level we dont know)

Dissent: Scalia dissent:

The amendment has no effect on general legislation; it only strips gays of special treatment. Gays still have equal protection, they just dont have special protection The state has a LSI in banning sodomy (Bowers), so youd think the state has an LSI in disfavoring homosexuality. But in this case, the state isnt even disfavoring homosexuality, theyre just not allowing homosexuality special protection! **orientation v. acts- the law could have been drawn more narrowly to only include homosexual acts (like Bowers), but this doesnt make it unconstitutional. A lot of classifications are over inclusive. (Discrimination of the conduct people are engaging in or discrimination of the basis of status. The later is much more like race or sex and would be better protected) Theres no hostility in the law. This is the democratic process at work- homosexuals are allowed to petition for anti-discrimination laws and the state is allowed to pass an amendment endorsed by the majority not allowing such laws Compare to polygamy- both involve the citizens preserving sexual morality, but for some reason the majority thinks banning polygamy is okay whereas banning homosexuality isnt.

Must it be the actual purpose or is any conceivable purpose enough: United States RR Board v. Fritz (1980) Indiana section of the RR Retirement Act of 1974 prevented retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system. The law allowed those who were already retired and receiving dual benefits to continue to get them, but those who were still employed could not get dual benefits unless they had worked for the railroads for 25 years. In restructuring the Railroad Retirement Act in 1974, Congress divided employees into various groups. First, those employees who lacked the requisite 10 years of railroad employment to qualify for railroad retirement benefits as of January 1, 1975, the changeover date, would have their retirement benefits computed under the new system and would not receive any windfall benefit. Second, those individuals already retired and already receiving dual benefits as of the changeover date would have their benefits computed under the old system and would continue to receive a windfall benefit. Third, those employees who had qualified for both

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railroad and social security benefits as of the changeover date, but who had not yet retired as of that date (and thus were not yet receiving dual benefits), were entitled to windfall benefits if they had (1) performed some railroad service in 1974 or (2) had a "current connection" with the railroad industry as of December 31, 1974, or (3) completed 25 years of railroad service as of December 31, 1974. Fourth, those employees who had qualified for railroad benefits as of the changeover date, but lacked a current connection with the railroad industry in 1974 and lacked 25 years of railroad employment, could obtain a lesser amount of windfall benefit if they had qualified for social security benefits as of the year (prior to 1975) they left railroad employment Rule of law: Congress needs just a rational basis for its social and economic legislation. Issue: Whether congress achieved its purpose in a patently arbitrary or irrational way. Holding: the court found the law to be constitutional as Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed by the RR industry had a greater equitable claim to those benefit o Where there are plausible reasons for Congresss action, the courts inquiry is at end o A legitimate reason just has to be a plausible reason, it does not have to be the actual purpose of the enactment o The court held that RR Retirement Act of 1974 did not violate U.S. Const. amend. V because Congress could have eliminated windfall benefits for all classes of employees and it was not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits. The court held that Congress had not achieved its purpose in a patently arbitrary or irrational way, and that the current connection test was not a patently arbitrary means for determining which employees were career railroaders. The judgment was reversed. Analysis o A) double dippers v. single dippers o B) rational basis economic regulation, Carolene Products. o C) did meet the test o Equal protection rationality analysis does not empower the courts to second-guess the wisdom of legislative classifications Dissent: The Court argues that Congress chose to discriminate against appellee for reasons of equity, stating that "Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of appellee's class who were no longer in railroad employment when they became eligible for dual benefits." Ante, at 178. This statement turns Congress' assessment of the equities on its head. As I have shown, Congress expressed the view that it would be inequitable to deprive any retirees of any portion of the benefits they had been promised and that they had earned under prior law. Thus, a "principal purpose" of the Railroad Retirement Act of 1974, as explicitly stated by Congress, was to preserve the vested earned benefits of retirees who had already qualified for them. The classification at issue here, which deprives some retirees of vested dual benefits that they had earned prior to 1974, directly conflicts with Congress' stated purpose. As such, the classification is not only rationally unrelated to the congressional purpose; it is inimical to it. The Requirement for a reasonable relationship: Railway Express Agency v. NY (1949) Facts: To decrease the traffic congestion in NYC, the city enacted an ordinance banning commercial vehicle advertising, unless the advertisement pertained to the regular business of

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the vehicles owner. Railway was engaged in the business of delivery and sold space on its trucks for advertisements of other businesses. Section 124 of the Traffic Regulations of the City of New York promulgated by the Police Commissioner provides: "No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used merely or mainly for advertising." Appellant operates about 1,900 delivery trucks in New York City. To increase revenue, Appellant sold the use of the sides of the truck as advertising billboards to its clients. Appellee passed a law specifically prohibiting such advertising unless it was connected to the business of the vehicle.

Procedure: Railway was convicted and fined. Ct of Special Sessions sustained conviction held advertising on vehicles is a distraction to vehicle drivers and pedestrians; Ct of App Affirmed w/o opinion.

Issue: Whether the ordinance violates the EP Cl of the 14th by favoring one class of vehicles and disadvantaging another in the same class?
A law is under-inclusive if it does not apply to individuals who are similar to those to whom the law applies. This does not necessarily mean that the law is invalid used to evaluate the fit between the governments means to its end Section 124 of the Traffic Regulations of NYC provided that there shall be no advertising on the sides of trucks unless the ad was for the business of the trucks owner Rationale: The local government may have concluded that those who advertise their own products on their trucks do not present the same traffic problem. To say otherwise would require the Court to assume more power than it has. If that judgment is correct, the aIf that

judgment is allowable, the classification has a relation to the purpose of the law and does not discrimination in violation of the EP Cl. The fact that NYC wants to eliminate this type of distraction, and not touch on other forms of advertising is immaterial. The EP Cl does not require all evils of the same genus be eradicated or none at

all. The Court is unwilling to question the municipality's judgment in passing such a law; it would be stepping on their toes in effect, to tell them how to run their government. The Court cannot see exactly how effective such a law would be as an outside party when it is the municipality which knows its city the best. If the city describes the law as one which prevents distractions to other drivers in order to avoid accidents, this Court trusts their judgment. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. The fact that the city doesn't deal with billboard ads or building ads is immaterial, as long as the judgment of NYC is legitimate. advertising displays that are exempt have less incidence of traffic than Railways displays. Holding: the court found the law to be constitutional and valid as there was a legitimate purpose of traffic safety o Notwithstanding the fact that the law was under-inclusive, that in itself, is not sufficient enough to make the law fail Analysis o A) trucks permitted to advertise v. trucks not permitted

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o o B) rational basis economic regulation C) did meet the test based on safety

Concurring: (Justice Jackson): Burden rests heavily upon anyone who wants the Court to use the due process clause to strike down laws/ordinances. But using the EPC does not offend the people as much. The city's means is not to regulate all advertising, or all ads on vehicles: this is only meant to cease certain ads unrelated to businesses on those businesses' vehicles. There is no problem here; it's not arbitrary. The city could even go so far as to limit the size, shape and coloring if they wished, as long as the ends justified the means.

New York City Transit Authority v. Beazer (1979) A law is over-inclusive if it applies to those who need not be included in order for the government to achieve its purpose. This does not necessarily mean that the law is invalid used to evaluate the fit between the government means to its ends Transit Authority placed a restriction on all employees and job applicants on a no drug policy, preventing those in methadone maintenance programs from holding positions. Respondent applied for a job with Petitioner and was denied because he was being treated for a drug addiction with methadone. This treatment is an effective cure for the addiction, but still has a high failure rate, exceeding 25%. The Petitioner, New York City Transit Authority (Petitioner), refuses to employ methadone users. The Respondent, Beazer (Respondent), brings suit on behalf of all methadone users who might work for Petitioner under the auspice that the policy violates the Equal Protection Clause of the United States Constitution (Constitution). The majority indicates that just because a rule may create sub-classifications that are not as closely connected to achieving the legitimate interest, this does not invalidate the entire rule. The Petitioner has a legitimate interest in the safety of the services provided, even though the available positions may have had no safety responsibility, the majority is reluctant to impose judicial judgment over that of the business' management. Rule of law: A rule will violate the Equal Protection clause of the Constitution if it circumscribes a class of persons according an unpopular trait or affiliation. Issue: Whether the rule reflects an impermissible bias against a special class. Holding: the court found the law to be constitutional and valid as there was a legitimate purpose relative to the goal of safety even though the state was singling them out o Even though there is an over-inclusive law enacted, the rational basis test is still applied and the law could be upheld Analysis o A) methadone users v. all other drug addicts o B) rational basis economic regulation as the court said that any other rule used would be more costly than the total ban on those using drugs o C) did meet the test based on safety o D) The rule was not motivated by racial animus, there was no rebuttal claim that it was merely a pretext for intentional discrimination, and the findings did not support the conclusion that the regulation prohibiting the use of narcotics violated Title VII. While it may have been unwise for the employer to rely on a general rule instead of

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individualized consideration of every job applicant, it concerned matters of personnel policy that did not violate equal protection principles, and the Constitution did not authorize a federal court to interfere in such policy decisions Dissent: It is improper to classify those who are on methadone treatment as a drug user. This discriminates against them as potential employees, when they no longer have the same traits as active users. I agree with the courts below that there is no rational basis for an absolute bar against the employment of persons who have completed successfully a methadone maintenance program and who otherwise are qualified for employment. It bears repeating, then, that both the District Court and the Court of Appeals found that those who have been maintained on methadone for at least a year and who are free from the use of illicit drugs and alcohol can easily be identified through normal personnel procedures and, for a great many jobs, are as employable as and present no more risk than applicants from the general population. That 20% to 30% are unsuccessful after one year in a methadone program tells us nothing about the employability of the successful group, and it is the latter category of applicants that the District Court and the Court of Appeals held to be unconstitutionally burdened by the blanket rule disqualifying them from employment. Finally, even were the District Court wrong, and even were successfully maintained persons marginally less employable than the average applicant, the blanket exclusion of only these people, when but a few are actually unemployable and when many other groups have varying numbers of unemployable members, is arbitrary and unconstitutional. US Dept of Agriculture v. Moreno (1973) Moreno challenged the Food Stamp Act, a federal law excluding from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. Section 3(e) of the Food Stamp Act of 1964, as amended in 1971, generally excludes from participation in the food stamp program any household containing an individual who is unrelated to any other household member. The Secretary of Agriculture issued regulations thereunder rendering ineligible for participation in the program any "household" whose members are not "all related to each other." Congress stated that the purposes of the Act were "to safeguard the health and well-being of the Nation's population and raise levels of nutrition among low-income households . Facts: Appellee Jacinta Moreno, for example, is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. They share common living expenses, and Mrs. Sanchez helps to care for appellee. Appellee's monthly income, derived from public assistance, is $ 75; Mrs. Sanchez receives $ 133 per month from public assistance. The household pays $ 135 per month for rent, gas, and electricity, of which appellee pays $ 50. Appellee spends $ 10 per month for transportation to a hospital for regular visits, and $ 5 per month for laundry. That leaves her $ 10 per month for food and other necessities. Despite her poverty, appellee has been denied federal food assistance solely because she is unrelated to the other members of her household. Moreover, although Mrs. Sanchez and her three children were permitted to purchase $ 108 worth of food stamps per month for $ 18, their participation in the program will be terminated if appellee Moreno continues to live with them. Under traditional equal protection analysis, a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest. The challenged statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act. As the District Court recognized, "the relationships among persons constituting one

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economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements Rationale: Thus, if it is to be sustained, the challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional "declaration of policy." Regrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of 3 (e). The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment." The Government contends that, in adopting the 1971 amendment, Congress might rationally have thought (1) that households with one or more unrelated members are more likely than "fully related" households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and (2) that such households are "relatively unstable," thereby increasing the difficulty of detecting such abuses. But even if we were to accept as rational the Government's wholly unsubstantiated assumptions concerning the differences between "related" and "unrelated" households, we still could not agree with the Government's conclusion that the denial of essential federal food assistance to all otherwise eligible households containing unrelated members constitutes a rational effort to deal with these concerns. Holding: the court found the law to be unconstitutional and invalid as there was no legitimate purpose relative to the goal of fraud prevention o When a law is both over-inclusive and under-inclusive it is an arbitrary and unreasonable law, and the law will be struck down Analysis o A) hippies, not related, that do not commit fraud v. those who are related that do commit fraud o B) rational basis o C) did not meet the test Dissent: Rehnquist, J., joined by Burger, Ch. J., dissenting, stated that the
limitation which Congress enacted in 3(e) could, in the judgment of reasonable men, conceivably deny food stamps to members of households formed solely for the purpose of taking advantage of the food stamp program; that since the food stamp program was not intended to be a subsidy for every individual who desired low cost food, this was a permissible congressional decision consistent with the underlying policy of the Act; and that the fact that the limitation would have unfortunate and perhaps unintended consequences beyond this did not make it unconstitutional.

City of Cleburne v. Cleburne Living Center (1985) The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the Respondent, Cleburne Living Center (Respondent), for the establishment of a group home for the mentally retarded in the community. The Court of Appeals of the Fifth Circuit determined that this

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group is a "quasi-suspect" class and that the ordinance violated the Equal Protection Clause of the United States Constitution (Constitution). In July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of Cleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC), for the operation of a group home for the mentally retarded. It was anticipated that the home would house 13 retarded men and women, who would be under the constant supervision of CLC staff members. The house had four bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable state and federal regulations. The city informed CLC that a special use permit would be required for the operation of a group home at the site, and CLC accordingly submitted a permit application. In response to a subsequent inquiry from CLC, the city explained that under the zoning regulations applicable to the site, a special use permit, renewable annually, was required for the construction of "[hospitals] for the insane or feeble-minded, or alcoholic or drug addicts, or penal or correctional institutions." The city had determined that the proposed group home should be classified as a "hospital for the feebleminded." After holding a public hearing on CLC's application, the City Council voted 3 to 1 to deny a special use permit. The city of Cleburne required the CLC to obtain a special building permit for the operation of a group home for the mentally disabled 1. Mentally retarded dont have a reduced ability to cope with and function in everyday world and they range in disability. 2.unique problems that lawmakers have been addressing by outlawing discrimination and given right to appropriate treatment, services and habilitation least restrictive to personal liberty. 3. Public support negates claim they are politically powerless with no ability to attract attention of lawmakers. 4. Couldnt set apart from others with disabilities if given quasi-suspect status. Rationale: Council concerned with negative attitudes of the residents in the area. School in area also has 30% mentally retarded and would be allowing community to validate an equal protection violation. 500 year flood plain argument didnt fly because other facilities could be located on the site without a special permit. Home with non-retarded adults would be permitted there. In the courts below the city also urged that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets. These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as 201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood. The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law. Holding: the court found the law to be unconstitutional and invalid as there was no legitimate purpose relative nor was the ordinance a reasonable way to accomplish its goals o The petitioner aimed for a suspect class to apply the strict scrutiny test but the state argued mentally disable individuals were not a suspect class and the court used a rational basis test o A law that is based on other prejudices will not meet the rational basis test and will be struck down Analysis o A) mentally disabled individuals v. other residents o B) rational basis not a suspect classification so not a heightened scrutiny o C) did not meet the test

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Recap: All EP is different Rational basis: o Default level of scrutiny o Generally the law will be upheld o Reasonable purpose o Conceivable, not an actual purpose needed o Just because it is over-inclusive or under-inclusive, it is not enough to make rational basis fail (but if it is both over-inclusive and under-inclusive then it will be arbitrary and capricious and will fail Moreno) When rational basis is not met and the law is unreasonable: o A law cannot be based on hate Romer o A law cannot be arbitrary Moreno o A law cannot be based on other prejudices CLC Race Discrimination and slavery before the 13th and 14th Amendments: Prior to the adoption of the 13th amendment, slavery was constitutional. Prior to the 14th amendment there was no constitutional assurance of equal protection and thus no limit on race discrimination. Southern states would not have adopted the USC that abolished slavery. The judiciary consistently enforced slavery by ruling in favor of slave owners and against slaves Dred Scott v. Sanford (1856) Chief Justice Taney In deciding whether or not Missouri would be a slave or free state there was a resolution of the Missouri Compromise. Congress admitted Missouri as a slave state but prohibited slavery in the territories north of the latitude of 3630. Territories below the line could decide whether to allow slavery. Scott was taken to Illinois by his master. His master died and Sanford administered the will, extraditing Scott back to Missouri, making him still a slave. Scott sued Sanford in federal court, basing jurisdiction on diversity of citizenship, and claimed that his residence in Illinois made him a free person. It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case. The Supreme Court reversed the judgment for respondent and ordered the case dismissed for lack of jurisdiction. Petitioner was a slave of African descent. He brought suit in the federal court against respondent, his owner, for assault. The Court held that petitioner was not a citizen of Missouri as asserted in his original complaint because he was not permitted to become a citizen, and no state had the power to grant him citizenship. Furthermore, the Court held that petitioner did not gain his freedom by being transferred into a territory of the United States declared free by Congress because Congress's power to make rules and regulations for territories only applied to those territories belonging to the United States when the constitution was drafted. Therefore, the law making the territory free was unconstitutional. Finally, the Court held that petitioner did not gain his freedom by being taken into the free state of Illinois because the property laws of one state could not grant petitioner's freedom. Therefore, the Court held that judgment against respondent was to be vacated and the case dismissed because the Court did not have jurisdiction over petitioner's complaint. Issue: is the Missouri Compromise constitutional?

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Is Petitioner a citizen of the United States and entitled to use of the federal court system? Whether the descendants of slaves born to free parents are citizens of a State, in the sense in which the word citizen is used in the Constitution. Holding: the court found that they lacked jurisdiction in this matter, however invalidated the Missouri Compromise anyway o Scott argues the Missouri Compromise freed him o But the Court said no the Missouri Compromise is void and unconstitutional and broadly held that slaves were property o play cousin politics was involved as there were competing interest at stake as it was the brink of the civil war The original framers of the United States Constitution (Constitution) were clear in their words and actions. "All men" included the dominant race and not the Africans who were imported as slaves. They are still property as they were originally. This case sets up the rationale for 13th, 14th, and 15th amendments o Trying to abolish slavery, yet says nothing about strict scrutiny o The bridge case is Korematsu Race and national origin classifications on the face of the law: Korematsu v. US (1944) Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942 from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner -- an American citizen of Japanese descent whose home was in the described area -- violated it. The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, 1 and the importance of the constitutional question involved caused us to grant certiorari.Facial race and national origin classifications exist when a law, in its very terms draws distinctions among people based on those characteristics The US enacted an executive order excluding all persons of Japanese ancestry both alien and non-alien from the pacific coast but Korematsu stayed in California and violated the law. In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that: ". . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $ 5,000 or to imprisonment for not more than one year, or both, for each offense."

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One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. Rationale: In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. Holding: the court found that the order was constitutional and upheld the law as it was made in direst emergency and peril o This is the only one situation in which the SC has expressly upheld racial classifications burdening minorities, affirming the constitutionality of the evacuation of Japanese Americans during WWII (shameful time like Lochner) o Give us the standard for strict scrutiny does the law burden the suspect class? Analysis: o A) Japanese Americans suspect classification o B) strict scrutiny race and national origin o C) did meet the test based on national security Loving v. Virginia (1967) Virginia enacted a miscegenation statute which prohibited a white person from marrying anyone that was not white The equal protection clause of the Fourteenth Amendment demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigid scrutiny, and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some

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permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage. In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S. E. 2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment. State argument: the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. Rationale: Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. Holding: the court found that the law was unconstitutional as it violated the 14th amendment o The states argue it burdened both whites and minorities equally

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The SC rejects that argument as when animus is at the center of the reason for burdening both whites and minorities then it is not valid Analysis: o A) interracial couples suspect classification o B) strict scrutiny race and national origin o C) did not meet the test as animus is not a compelling reason to discriminate o Palmore v. Sidoti (1984) A state court denied a mother custody of a child because she had married a person of a different race When petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both Caucasians, were divorced in May 1980 in Florida, the mother was awarded custody of their 3-year-old daughter. In September 1981 the father sought custody of the child by filing a petition to modify the prior judgment because of changed conditions. The change was that the child's mother was then cohabiting with a Negro, Clarence Palmore, Jr., whom she married two months later. Additionally, the father made several allegations of instances in which the mother had not properly cared for the child. After hearing testimony from both parties and considering a court counselor's investigative report, the court noted that the father had made allegations about the child's care, but the court made no findings with respect to these allegations. On the contrary, the court made a finding that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." Issue: Whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. Rationale: The Florida court did not focus directly on the parental qualifications of the natural mother or her present husband, or indeed on the father's qualifications to have custody of the child. The court found that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." Id., at 24. This, taken with the absence of any negative finding as to the quality of the care provided by the mother, constitutes a rejection of any claim of petitioner's unfitness to continue the custody of her child. Although there is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin, nevertheless the reality of private biases and the possible injury they might inflict are not permissible considerations for removal of an infant child from the custody of its natural mother; the United States Constitution can not control such prejudices and neither can it tolerate them; private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Holding: the court found that the practice was unconstitutional as it violated the 14th amendment as racial prejudices are impermissible considerations for removal of custody o Courts may not use racial bias as a justification for official court action o Nowadays, the courts take culture/race into consideration to adopt, how? o We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held." o Analysis:

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o o o A) kids in an interracial environment suspect classification B) strict scrutiny race and national origin C) did not meet the test as the courts cannot use race to determine the best interest of the child

Plessy v. Ferguson (1896) Louisiana passed a jim crow law providing for separate railway carriages for the white and colored races. Plessy, was an octoroon (1/8 black) and sat in a white carriage. He challenged the constitutionality of the law under the 14th amendment. This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152. Issue: However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States Rationale: We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, "this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed." Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. Holding: the court found that the law was constitutional and upheld segregation laws o Termed separate but equal to accommodations and then spread throughout all areas of life o This was a test case that went horribly wrong, which made separate but equal the law of the land o Plessy led to the systematic and institutionalized segregation of whites and blacks for the first half of the 20th century (slavery-freedom-jim crow laws-Plessy) If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. This end can neither be accomplished nor promoted by laws that conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal

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opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. Harlan dissent: . The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. Cumming v Richmond County Board of Education, 175 U.S. 528 (1899).- Court upheld the governments operation of a whites only high school when there was not one for blacks. 1938- 1954- Supreme Court finds states denied equal protection by failing to provide educational opportunities for blacks that were available to whites. (Mostly education) Sweatt v. Painter, 399 U.S. 629 (1950).- first time the Supreme Court ordered a white university to admit a black student. (University of Texas Law) Court refused to reconsider Plessy, instead deciding the schools were not equal. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)- Unconstitutional for Missouri to refuse blacks admission, but instead pay for blacks to attend out of state schools. Missouri responded by creating a new school for blacks. Mclaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).- SC held that once admitted to previously all-white school, could not force them to sit in segregated areas of classrooms, libraries and cafeterias. Reality-only 1 of 41 laws schools, 1 of 30 medical school and none of the engineering schools in the south admitted blacks. In 12/1952, only Justices Minton, Burton, Black and Douglass felt segregation was unconstitutional. The addition of new Chief Justice Warren, who persuaded all of the justices to join in a 9-0 unanimous decision, was key. Brown v. Board of Education (1954) The SC set these cases for reargument. At that time, Justice Vinson died and Eisenhower appointed Chief Justice Earl Warren. Chief Justice Warren said segregation no more, and went around to each justice to secure a unanimous decision against segregation. (would have been 2-6/4-5 if decided the first term, but due to the change in the court, it was 9-0) The Petitioner, Brown (Petitioner), was a class action representative of black, school aged children from 4 different states who wanted to attend public school with white students. At the time all public schools in those states were segregated and thought to be "separate but equal." In Kansas, South Carolina, Delaware and Virginia the public schools were segregated by race. Petitioner and the rest of the class sought to enter the schools attended by whites because they contend that the black schools are not equal and cannot be made equal.

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One of five cases that the plaintiffs contend that segregated public schools are not equal and a violation of the 14th amendment Rationale: Although the tangibles of the schools may be equal, separation of the races generates a feeling of inferiority and effects educational opportunities. The doctrine of "separate but equal" has no place in public education. Separation is inherently unequal. The Supreme Court of the United States (Supreme Court) rejects the holding of Plessy. It discusses the profound effect separation has on the hearts and minds of young children as they try to understand and learn about society and their place in it. Education is considered necessary to succeed in life and be a good citizen. Therefore, it is in the nation's best interest to desegregate the races and educate equally. Because attending school is compulsory and the state has decided to provide schooling, it is a right. Holding: the court found that the racial segregation in public schools was unconstitutional and separate was not equal under the 14th amendment o The SC looked at the effects of segregation on public education, rather than the tangible factors being equal, and used social policies, rather than law, to secure an unanimous ruling in favor of Brown o Overturned Plessy v. Ferguson, expanded to other areas and not just education (56 years of separate but equal, but finally over ) o The SC is now an arbiter of the law and also in charge of pushing the country forward towards universal good Misc: o The EP clause did not apply to former slaves as the slaughterhouse cases gutted the 13th, 14th, and 15th amendments o The EP clause had not been used from the slaughterhouse cases until 1954 when Brown brought back the EP clause o Brown v. Board of Education was a case of first impression and therefore there was not precedent in the law so it used social policies and Brandeis briefs to make the ruling o TV starting and communication all around the world so the US had to be a world leader and have democracy at home

On the same day that Brown was decided under the 14th amendment, Bolling v. Sharpe was decided under the 5th amendment with respect to the District of Columbia (federal schools). Although there is no equal protection clause in the 5th amendment, the due process clause of the 5th amendment affords similar protection with regard to classifications based on race. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on [Black] children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of due process.
o

Johnson v. California (2005) The California Department of Corrections had an unwritten policy of racially segregating prisoners in double cells

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African-American state prison inmate brought 1981 and 1983 equal-protection action against corrections officials, challenging unwritten policy of placing new or transferred inmates with cellmates of same race during initial evaluation. The United States District Court for the Central District of California, Kim M. Wardlaw, J., granted officials' motion to dismiss. Inmate appealed. The Ninth Circuit Court of Appeals, 207 F.3d 650, reversed in part and remanded. On remand, the District Court, Consuelo B. Marshall, C.J., granted summary judgment for officials. Inmate again appealed. The Ninth Circuit Court of Appeals, 321 F.3d 791, affirmed. Certiorari was granted. Facts: Garrison Johnson is an African-American inmate in the custody of the CDC. He has been incarcerated since 1987 and, during that time, has been housed at a number of California prison facilities. Fourth Amended Complaint 3, Record, Doc. No. 78. Upon his arrival at Folsom prison in 1987, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another African-American inmate. Johnson filed a complaint pro se in the United States District Court for the Central District of California on February 24, 1995, alleging that the CDC's reception-center housing policy violated his right to equal protection under the Fourteenth Amendment by assigning him cellmates on the basis of his race. He alleged that, from 1987 to 1991, former CDC Director James Rowland instituted and enforced an unconstitutional policy of housing inmates according to race. Second Amended Complaint 2-4, Record, Doc. No. 21. Johnson made the same allegations against former Director James Gomez for the period from 1991 until the filing of his complaint. Ibid. The District Court dismissed his complaint for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed and remanded, holding that Johnson had stated a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. On remand, Johnson was appointed counsel and granted leave to amend his complaint. On July 5, 2000, he filed his Fourth Amended Complaint. Record, Doc. No. 81. Johnson claimed that the CDC's policy of racially segregating all inmates in reception-center cells violated his rights under the Equal Protection Clause. Johnson sought damages, alleging that former CDC Directors Rowland and Gomez, in their individual capacities, violated his constitutional rights by formulating and implementing the CDC's housing policy. He also sought injunctive relief against former CDC Director Stephen Cambra. Since 1987, he has been segregated each time he has been transferred to a new facility. Thus, he has been subject to the CDC's policy both as a new inmate and as an inmate transferred from one facility to another. The CDC's asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs. Brief for Respondents 1-6. It cites numerous incidents of racial violence in CDC facilities and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. Id., at 2. The CDC also notes that prison-gang culture is violent and murderous. Id., at 3. An associate warden testified that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the yard. Issue: Whether strict scrutiny is the proper standard of review for an equal protection challenge to that policy. Rationale: Because the CDC's policy is immediately suspect as an express racial classification, the Ninth Circuit erred in failing to apply strict scrutiny and thereby to require the CDC to demonstrate that the policy is narrowly tailored to serve a compelling state interest. The Court has previously applied a heightened standard of review in evaluating racial segregation in prisons. Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. The need for strict scrutiny is no less important here. By perpetuating the notion that race matters most, racial segregation of inmates may exacerbate the very patterns of [violence that it is] said to counteract.

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The United States argues that it is possible to address prison security concerns through individualized consideration without using racial segregation, unless it is warranted as a necessary and temporary response to a serious threat of race-related violence. The Court declines the CDC's invitation to make an exception to the categorical strict scrutiny rule and instead to apply Turner's deferential review standard on the ground that the CDC's policy applies only in the prison context. The Court has never applied the Turner standard-which asks whether a regulation that burdens prisoners' fundamental rights is reasonably related to legitimate penological interests. Holding: the court found that the law needed to be looked at under the level of strict scrutiny and remanded the case back to the court of appeals o The state argued that it was necessary to segregate to prevent violence caused by racial groups and that it does not burden one such class but effects both equally (like Loving) o The SC held that since it was both over-inclusive and under-inclusive, the policy was arbitrary and capricious and therefore the CDC would have a hard time passing the narrowly tailored to a compelling government interest test of strict scrutiny o Notwithstanding the fact that there is a legitimate reason, when there is race discrimination, strict scrutiny will be used Facially neutral laws with a discriminatory impact or discriminatory administration: Some laws that are facially race neutral are administered in a manner that discriminate against minorities or has a disproportionate impact against them. The SC has held that there must be proof of a discriminatory purpose in order for such laws to be treated as racial or national origin classifications Washington v. Davis (1976) Justice White. Test 21 was used by the Police Commission to test verbal ability, vocabulary, and reading comprehension which had the effects of blacks failing the examination more often than whites An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. Issue: Whether an employment test that results in a higher failure rate amongst black candidates deprive them of their Equal Protection rights? Facts: Washington, D.C. required each police officer applicant to submit to a round of testing including physical tests and a written personnel test, Test 21. In order to enter the 17-week training course an applicant had to achieve 40 out of 80 on Test 21. Petitioner took Test 21 in 1970 and failed it. He claims that this test is racially biased because the majority of black applicants who took it failed. No claim of intentional discrimination, just that the test 21 bore no relationship to job performance and has a highly discriminatory impact in screening out black candidates. Procedure: The trial court denied the police recruits' motion for summary judgment because the qualifying test was directly related to the requirements of the police training program, and a positive relationship between the test and training course performance was sufficient to validate the former. The appellate court reversed that ruling because the disproportionate impact resulting from the fact that a greater proportion of blacks failed the test than whites established a constitutional violation. The court reversed, holding that the appellate court erroneously applied legal standards applicable to Title VII cases.

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Rationale: A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins (1886). The parties argued the case as though Title VII standards were applicable. First, the test serves the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum standard of literacy. Reading ability is manifestly relevant to the police function, there is no evidence that the required passing grade was set at an arbitrarily high level, and there is sufficient disparity among high schools and high school graduates to justify the use of a separate uniform test. Second, the same test is used throughout the federal service. The applicants for employment in the District of Columbia Police Department represent such a small fraction of the total number of persons who have taken the test that their experience is of minimal probative value in assessing the neutrality of the test itself. The District Court also assumed that Title VII standards were to control the case, identified the determinative issue as whether Test 21 was sufficiently job related and proceeded to uphold use of the test because it was "directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy." 348 F. Supp., at 17. The Court of Appeals reversed because the relationship between Test 21 and training school success, if demonstrated at all, did not satisfy what it deemed to be the crucial requirement of a direct relationship between performance on Test 21 and performance on the policeman's job. Holding: the court found that the test was constitutional and valid as there must be proof of the discriminatory purpose as well as a discriminatory impact. o The discriminatory impact is insufficient, by itself, to show the existence of a racial classification o Discriminatory purpose is similar to the criminal specific intent and the intent can be used as evidence of a discriminatory purpose o In order for the court to use strict scrutiny, the law must discriminate and the law must have been passed to specifically discriminate Dissent: Justices Brennan and Marshall- Every other court presented with this same issue has found in the opposite. The test needs to be proven that it is an indicator of future job performance. McCleskey v. Kemp (1987) Under Georgia law, a jury cannot impose the death penalty unless the crime was accompanied with aggravating circumstances. McCleskey was convicted of armed robbery and murder, making the death penalty a potential sentence. Plaintiff claims the capital sentencing process was racially discriminatory and violated the 8th and 14th amendments Synopsis of Rule of Law: A criminal defendant has the burden of proving the existence of purposeful discrimination and that this discrimination had a discriminatory effect on him. Holding: the court found that the process was constitutional and upheld Georgias capital sentencing process as statistical evidence is not enough to show a discriminatory purpose o The plaintiff uses the Baldus study to show a disproportionate amount of black people being put to death as opposed to white people, so from that we can impute the discriminatory purpose was there o The SC applied Washington and held that proof of discrimination impact in the administration of the death penalty was insufficient evidence to show an equal protection violation. Thus, where no purpose is shown, the government is on a rational basis test Misc:

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o o This case sets up that a discriminatory purpose can be proved with substantial evidence but what more can you show in this situation? To be held to strict scrutiny with a facially neutral law, there must be proof of (1) a discriminatory purpose can use substantial evidence to prove and (2) a discriminatory impact

City of Mobile v. Bolden (1980) Justice Stewart Facts: The Petitioner City has a 3-person council. Each councilman runs for an open seat on the council and is elected by a majority vote. He will then serve a term of four years. State law governs this design of government. The Respondent, Bolden (Respondent), alleges that his voting rights have been adversely affected by this method of election, as evidenced by the lack of any black persons in the city council. The district court found invidious discrimination and the court of appeals affirmed. Extending requirement for a discriminatory purpose to include the 15th amendment Alabama had an at-large system of voting where each candidate needed a majority vote to win which had the impact of disadvantaging minorities in the election Rationale: First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court's findings of fact, unquestioned on appeal, make clear that Negroes register and vote in Mobile "without hindrance," and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission. Indeed, it was undisputed that the only active "slating" organization in the city is comprised of Negroes. It may be that Negro candidates have been defeated, but that fact alone does not work a constitutional deprivation. Second, the District Court relied in part on its finding that the persons who were elected to the Commission discriminated against Negroes in municipal employment and in dispensing public services. If that is the case, those discriminated against may be entitled to relief under the Constitution, albeit of a sort quite different from that sought in the present case. The Equal Protection Clause proscribes purposeful discrimination because of race by any unit of state government, whatever the method of its election. But evidence of discrimination by white officials in Mobile is relevant only as the most tenuous and circumstantial evidence of the constitutional invalidity of the electoral system under which they attained their offices. Holding: the court found that the at-large process was constitutional and that it did not violate the 15th amendment o The SC reaffirmed that discriminatory impact is not sufficient to prove a racial classification; there must also be proof of a discriminatory purpose o But isnt there a duty to change the at-large system of voting when the legislatures know that it is highly discriminatory? o There is no indication that this type of government was developed to purposely prevent a black person from being mayor. State action that is racially neutral on its fact violates the Fifteenth Amendment only if it is motivated by a discriminatory purpose. Multi-member legislative districts will only be found unconstitutional when their purpose is to minimize the voting power of racial minorities. It is not enough only to show that minority council members were not elected in proportion to their percentage of the total population. Misc: o The 1965 Voting Rights Act enacted the 1982 amendments which eliminated the need to proof as it prohibited election systems diluting minority voting powers

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Two days after the 1982 amendments, the SC ruled on the case Rogers v. Lodge and expressly overruled City of Mobile v. Bolden when it came to election systems Dissent-White- Both the district court and the court of appeals found an invidious discriminatory purpose could be inferred from the totality of facts in this case. The court noted a history of racial discrimination in voting and the political process. Believed 14 th and 15th Amendment rights were violated. Argued that there is no basis for the majority opinion that the Respondent needs to show a discriminatory intent. o Palmer v. Thompson (1971) City of Jackson, Mississippi closed down all the public pools instead of desegregating and plaintiffs seek the court to force the city to reopen the pools Procedure: In prior litigation, the city's operation of segregated swimming pools and other public attractions was declared unconstitutional as a violation of equal protection under the Fourteenth Amendment. The city desegregated some attractions but decided to close all of its public pools. Several African-American citizens brought suit to force the city to reopen the pools and operate them on a desegregated basis. The trial court entered a judgment declaring that enforced segregation denied equal protection of the laws but denied the requested relief and the appellate court affirmed. Facts: After federal litigation had resulted in a judgment declaring unconstitutional a Mississippi city's operation of public swimming pools on a racially segregated basis, four for whites only and one for Negroes only, the city council decided not to operate public swimming pools at all, and the pools were closed. Some Negro residents of the city brought suit in the United States District Court for the Southern District of Mississippi, seeking a declatory judgment to require the city to reopen the pools and to operate them on a desegregated basis. The city desegregated its public parks, auditoriums, golf courses, and the city zoo, but decided not to operate the pools. Petitioners argued that the city violated the EPC because the decision to close the pools was motivated by a desire to avoid integration. City argued they could not operate them safely and economically on an integrated basis. There is evidence to support this. Rationale: If struck down for the bad motives of its supporters rather than its facial content or effect, it would presumably be valid once repassed for different reasons. Substantial evidence supported the city's claims, as accepted by the lower courts, that it was neither

Holding: the court found that the legislative act was constitutional and not in violation of the 14th amendment o The state uses a Loving argument that it burdens both races equally but there might not have been an adequate look by the court o Since there was no indication of a discriminatory purpose, the SC falls back on the rational basis test which was upheld by safety and economic reasons o The SC held that the EP clause is not in violation merely because a legislative act was motivated by a discriminatory purpose Dissent: showing that if blacks protest, then they should realize the consequenceseither have segregated accommodations or no accommodations

safe to operate the pools on an integrated basis nor economically feasible to do so. Consequently, the Court ruled, the lower courts correctly held that the city did not violate the Fourteenth Amendment. The record, the Court ruled, showed no state action affecting the races differently. The Court summarily dismissed the citizens' claim that the city's conduct violated the Thirteenth Amendment.

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Personnel Administration of Massachusetts v. Feeny (1979) The standard in this case is applicable to both gender and race Under 31, all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying non-veterans which overwhelmingly favored males over females. Feeny scored higher on the exams and was not chosen for several jobs Holding: the court found that the law was constitutional and did not violate the EP clause o The SC held that for a law to be deemed purposefully discriminatory, a government act must have been taken because of, not merely in spite of, its adverse effects upon an identifiable group o In order to prove a discriminatory purpose, the intent must have been for the specific effects of the desired consequences the state must have intended the consequences Analysis: o (1) the discriminatory impact is on non-veterans but it is not a suspect class o (2) the discriminatory intent means the desire to effect the consequences; specific intent like criminal lawmore than just foreseeable effects -in this case, there was not a desired effect towards women but it was to benefit all veterans vs. non-veterans Village of Arlington Heights v. Metropolitan Housing (1977) Metropolitan Housing applied for the re-zoning of a 15 acre parcel from single family to multiple family classifications but the Village denied the re-zoning request. They are trying to integrate Arlington Heights Holding: the court found that the law was constitutional and did not violate the EP clause o The SC held that you can use statistics to prove a discriminatory purpose such as evidence of historical background, sequences of events, departures from procedure, administrative history, etc. o The purpose must be so clear as to leave no other explanation of what is happening besides the discrimination Analysis: o (1) the discriminatory impact is on minorities o (2) the discriminatory intent was not proved as racial discrimination was not a substantial or motivating factor behind the law (although in this case, it was) o However, where there is proof of a discriminatory impact and discriminatory purpose, judicial deference is no longer warranted and then the burden shifts to the laws defenders to demonstrate that the law would have been enacted regardless of the race or national origin factor Recap: When laws that are discriminatory on its face either by statute or practice/policy, you ask: o Is there some discrimination? o What is the suspect class? o What is the level of scrutiny? when the law discriminates against race and national origin, strict scrutiny applies o Has the government met its requirement? When laws are facially neutral but have a discriminatory impact, you ask: o What is the class being discriminated against? o Can you prove a discriminatory purpose by state action? can use statistics to show specific intent

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o o If so, then has the government met the requirements of strict scrutiny? they must show that there is another explanation as to why this act had been enacted regardless of the race or national origin factor If not, then rational basis review

The Problem of School Segregation

Brown v. Board of Education II (1955) After issuing its decision, the SC set the case for re-argument to determine the question of how to remedy school segregation After Brown I, some of the defendant school districts met the ruling with great resistance. While some school districts readily adopted plans to desegregate their school systems, others sought guidance from the Supreme Court on the appropriate remedy for school segregation. Holding: Cases remanded to federal district courts for equitable resolution. Chief Justice Earl Warren (J. Warren) stated that local school districts were to come into compliance with Brown I at the earliest possible date. J. Warren also notes that the steps toward compliance would vary depending on the circumstances present in various local school systems. Because of the variety of local problems, the Supreme Court remanded the individual cases to the district courts in which the suits were filed, asking that the district courts apply principles of equity to guide individual districts into compliance with the tenets of Brown I. Equitable remedies were appropriate because of the traditional flexibility of such remedies and because of the ability of equity to reconcile the personal stakes of the plaintiffs with the public interest in the elimination of obstacles to the implementation of Brown I. The courts remedy was no remedy at all but remanded it back to the lower courts o The SC could have done more than they did o The federal district courts are to employ their full equitable power to ensure and oversee the full implementation of the constitutional principles announce therein to ensure the integration of public schools o However, there was very little desegregation until 1968 massive resistance Information: Apart from the delay gained by asking for clarification of the principles of Brown I, the respondents in Brown II were asking for clear goals and guidelines for reaching compliance with Brown I. The Supreme Court disappointed them by not only not providing concrete guidelines, but also requiring the district courts to sit in equity over their compliance process - that is, asking that the judicial review of the school districts' policies maximize its flexibility. Swann v. Charlotte Mecklenberg Board of Education (1971) The district court approved a plan for North Carolina but Charlotte School failed to desegregate as of the black students were attending all-black schools School districts undergoing desegregation under Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II), sought clarification of their duties and the scope of federal district courts' power under [Brown I/II].

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In the wake of Brown II, many school districts still sought to maintain vestiges of their preBrown I segregated systems. Defendant school districts brought suit, alleging that District Courts had overreached their authority, broad as it may be, under Brown II. Synopsis of Rule of Law. The scope of District Court authority is broad, but enters only when local school districts have not voluntarily brought themselves into compliance with Brown I/II. Issues: What is the scope of District Court authority under Brown II? When is it appropriate for the court to invoke that authority? Holding: the court found that there can be remedies and the court upheld the remedies o The SC held remedies may include implementing quotas, a substantial reduction in allblack schools, gerrymandering school districts, and busing techniques o The district court has broad equitable powers o Mathematical racial quotas are an allowable exercise of judicial authority, when used as a starting point after a "total default" of the school board's duty. o Single-race schools are not per se a "mark of a system that still practices segregation by law." The court "should scrutinize such schools," and the burden is on the school district to demonstrate that the school's racial makeup is not the result of past or present de jure segregation. The courts may redefine district lines to desegregate the systems, even though such redistricting may cause initial inconvenience and burdens. Busing is an appropriate remedy, as well, as long as the time involved in the busing does not risk the health of the children or significantly impinge on the educational process.

o o

Analysis: o Is there a constitutional violation? o Was there an opportunity to remedy the situation? o Did the school fail to remedy the situation? Miliken v. Bradley (1974) A federal district court in Michigan ordered a multidistrict, area-wide remedy to address the racial segregation in only 1 of the 53 schools in Detroit Synopsis of Rule of Law. The District Courts cannot redraw the lines of integrated school systems to achieve racial balance in a segregated school system absent an interdistrict violation or effect. Facts: Attempts to integrate the Detroit schools had been unsuccessful. The District Court redefined the area in question from the city itself to the outlying school districts in the metropolitan area, a total of 54 school districts, including the Detroit district itself. The proposed redistricting would cause significant administrative and financial problems for the resulting school system. Holding: the court imposed a substantial limit on the courts remedial powers in desegregation cases and held this remedy in Detroit to be impermissible

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The SC held that you cannot have a remedy, unless there is a problem (Arlington Heights) o Racially discriminating acts of a school district must have a substantial cause of interdistrict segregation; in order to have an inter-district remedy, there must be an interdistrict effect and proof of an inter-district violation o Brown did not say anything about housing, but the courts cannot mandate that Chief Justice Warren Burger (J. Burger), writing for the majority, notes that there are many practical difficulties in the proposed plan. It is unclear what the status of currently elected school officials would be in the new "super district;" how taxes would be levied and distributed and who should make curriculum decisions. o The scope of the remedy is determined by the nature and scope of the constitutional violation. In the present case, the discriminatory acts of a single district must be a substantial cause of interdistrict segregation. Thus, if district lines were drawn on the basis of race, or if discriminatory acts of one district caused segregation in another, an interdistrict remedy may be in order. However, this is not the case here. Milliken is the first case since Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), which reigned in the power of federal courts to remedy segregation in public schools. Until Milliken, the courts had been given broad powers in equity to enforce the holdings of Brown I by a variety of methods, including redistricting, establishing racial quotas and busing. Milliken drew the line at redistricting integrated districts, unless there was an interdistrict effect with a segregated district. Dissent. Justice Byron White (J. White) argues that the Supreme Court of the United States (Supreme Court) is asking District Courts to consider administrative convenience over violations of constitutional rights. The "core of [his] disagreement is that deliberate acts of segregation and their consequences will go unremedied." J. White argues that the remedy espoused by the District Court is not impossible, merely inconvenient and convenience is not as important as preserving individuals' rights to an integrated education. Board of Education of Oklahoma City v. Dowell (1991) The district court ordered (makes the federal government in charge of changes) the Defendant school to adopt a finger plan. This plan worked to achieve a unitary system but the Plaintiffs do not want the order to be dissolved. (unitary = everyone from one district would be at one school) Facts. In 1972, the District Court imposed a desegregation plan for the Oklahoma City Public School System. In 1985, the Board of Education adopted a new plan ("SRP") for assigning students to schools. The SRP was not discriminatory on the basis of race. The Petitioner was sued by the Respondents, Dowell, et al. (Respondents), alleging that the District Court injunction was still in effect. The District Court ruled that the desegregation decree was dissolved. After a reversal by the Court of Appeals, the Supreme Court of the United States (Supreme Court) granted certiorari. Synopsis of Rule of Law. District Court authority over school districts extends only until the districts in question have complied with the injunctions long enough to reasonably redress past segregation.

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Holding: the court found that the dissolution order should be ended as the board has complied in good faith and the vestiges of past discrimination have been eliminated to the extent practicable o The SC held that there is a temporal limit on remedies as the remedy cannot go on forever Chief Justice William Rehnquist (J. Rehnquist) notes that the lower courts have been inconsistent with their definition of a "unitary" school system. Some courts defined unitary as meaning a district had removed all vestiges of segregation. Other courts defined unitary as meaning that a district has currently desegregated its assignment policies. It is clear that under the latter definition, a district may still maintain some vestiges of past discrimination. J. Rehnquist further states that a District Court's authority to enjoin a school district only extends to the point necessary for the district to remedy past discrimination to the extent practicable, as long as the district was making a good faith effort to remedy the situation. Dissent. Justice Thurgood Marshall (J. Marshall) notes that under the SRP, over half of Oklahoma City's schools have a racial component of at least 90% white or 90% non-white students. J. Marshall finds this to be persisting segregation and would leave the decree in place.

Recap: Analysis: o What is a remedy? o What is an allowable remedy? o What standard of review does the court use to challenge the remedy? There can be remedies - Swann In order for a remedy, there must be a wrong - Milliken But the remedy cannot go on forever - Board of Education of Oklahoma The emergence of strict scrutiny as the test Parents involved in Community Schools v. Seattle School Dist. No. 1(2007) Facts: Seattle has never operated segregated schools--legally separate schools for students of different races--nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of "tiebreakers" to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district's public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district's overall white/nonwhite racial balance, it is what the district calls "integration positive," and the district employs a tiebreaker that selects for assignment students whose race "will serve to bring the school into balance." Jefferson County schools: Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson

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County had maintained a segregated school system, , vacated and remanded, reinstated with modifications, and in 1975 the District Court entered a desegregation decree. Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating "[t]o the greatest extent practicable" the vestiges of its prior policy of segregation. In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. Approximately 34 percent of the district's 97,000 students are black; most of the remaining 66 percent are white.. The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent. Rationale: Racial balancing is not permitted and is of substa nce and not semantics. Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. Council for the plaintiffs in brown said [w}e have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens. The effects of the school districts assignments are minimal and shows there is no need for them. Before Brown, school children were told that where they could and could not go to school based upon the color of their skin and the districts have not met the heavy burden of showing why this should be allowed again. State interest necessary: Holding: The Court held that the districts, which did not operate legally segregated schools, denied students equal protection by classifying students by race and relying upon the classification in school assignments. The districts failed to establish a compelling interest in racial diversity since their plans relied on racial classification in a nonindividualized, mechanical way as a decisive factor, and racial imbalance in the schools was not unconstitutional by itself. Further, the minimal effect the classifications actually had on assignments indicated that other means would be effective to achieve the districts' goals and that the use of racial classifications was unnecessary. Dissent: Breyer-The end justifies the means and strict scrutiny shouldnt apply. The plurality is wrong to do so. The last half century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret. Concur-Clarence Thomas-The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in Croson, the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible Concur- Kennedy- Concurs in part but believes Diversity can be a compelling state interest. Fact that these school districts believe they need to have these plans shows that our highest aspirations are yet to be achieved. Race can be taken into account. Brown shows us that the problem doesnt have an easy solution. The solutions the school systems use just has to be lawful. Note: The court says that the Constitutions guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.(p821) 3 questions key to considering affirmative action.

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What level of scrutiny should be used What purposes for affirmative action programs are sufficient to meet the level of scrutiny o What techniques of affirmative action are sufficient to meet the level of scrutiny Richmond v. JA Croson Co. (1989) The Richmond City Council adopted the plan requiring contractors to subcontract at least 30% of the dollar amount to minority businesses The Appellee, J.A. Croson Co. (Appellee) a subcontractor, who was denied a project under the Minority Business Utilization Plan (the Plan) sued the Appellant, the City of Richmond (Appellant), alleging that the Plan denied the Appellee equal protection of the laws in violation of the Fourteenth Amendment of the United States Constitution (Constitution). o o The Appellant was approximately 50% black, however, less than 1% of the City's construction contracts had been awarded to minority businesses in the period from 1978 to 1983. To address this disparity, the City Council conducted public hearings and voted to approve the Plan, which required 30% of the dollar amount of a prime contract be subcontracted to Minority Business Enterprises (which were owned/controlled by at least 51% minority members), unless the prime contractor was itself a Minority Business Enterprise. The Appellee, a non-minority business under the Plan, sued the Appellant, alleging Equal Protection violations.

Appelant argues is controlling: Fullilove v. Klutznick:

Upheld the set-aside program, but the court didnt employ the strict scrutiny test in the analysis. Two reasons for upholding in this case: congress is better abled under the constitution to remediate discrimination. because exceptions are granted to the set-aside requirement, it would fix the problem if there werent enough minority businesses to fulfill the requirement or if minority businesses upped their prices The city says that in Fullilove since the Congress didnt need to make specific findings of discrimination, neither did the city counsel. But what this ignores is that the congress is specifically empowered to enforce the 14th amendment. The city counsel can only remedy discrimination if it finds specific instances of it.

Rationale: The Plan denies certain citizen the opportunity to compete for a percentage of contracts based solely on their race. Even though the city says this is benign/remedial, we have no way of truly knowing that. Indeed, thats what the strict scrutiny test is for. On the first prong: legitimate state interest. There is none here because the city is only aiming at remedying societal discrimination (impermissible). A permissible state interest would be one which wanted to remedy specific past instances of discrimination. On using statistics to show discrimination: You can use statistics to show that there is discrimination in an industry, but if special qualifications are necessary for the industry, you cant just compare their minority numbers against the minority

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numbers in the entire population. You must compare their numbers with the number of qualified minorities in the entire population to gauge discrimination.
On the second prong: necessity. There was no consideration given to using race-neutral means to increase minority business participation Holding: the court found that the plan was not justified as a remedy as it failed to identify a need for remedial measures o Yes, even benign discrimination (those that favor minorities) are subject to strict scrutiny. o The city argues this plan addresses the effects of past discrimination of blacks, Orientals, Aleuts, etc. o Since there is no past discrimination of all these classes in contracting, there is no injury, and there is not sufficient evidence in order to remedy the situation o Strict scrutiny must be applied when it comes to affirmative action programs/remedies at the state level, under the 14th amendment Justice Sandra Day O'Connor (J. O'Connor) noted that the Appellant has legislative authority over its procurement practices, and may use spending power to remedy private discrimination. However, J. O'Connor notes that race-based classifications must be subject to strict scrutiny, that is, they must serve a compelling government interest and be narrowly tailored to advance that interest. A generalized assertion that there had been past discrimination in the construction industry cannot support this particular remedy. J. O'Connor invokes an essentially "slippery slope" argument to note that without particularized findings, any remedy could be plausible without any surety that it is narrowly tailored to remedy the perceived wrong. In this case, the 30% quota cannot be logically attached to the harm suffered by anyone.

Stevens concur: I dont agree with the premise that it is only permissible if it is to remedy a specific past wrong. But I agree that in this case its unconstitutional because the city doesnt specify some public interest that will be served by the Plan. Kennedy concur: I dont agree that we need to make a sweeping statement that all racial classifications are invalid. Lets stick with the case-by-case strict scrutiny test. Scalia concur: The state can only use racial classifications to undo past discrimination when theyre undoing their own discriminatory system (like school desegregation cases)not just to undo social discrimination. Marshall dissent: Wants to change the test to important government objective/substantially related. (the standard used for gender classifications). There are two powerful public interests here: (1) citys interest in eradicating the effect of past discrimination and (2) ensuring that in dispensing contracts the city doesnt perpetuate the old system. Also, the city did prove the necessity prong: They tried non-racial classifications to fix the problem, but it didnt work.
Adarand Constructors, Inc. v. Pena (1995) In a 1990 case, Metro, intermediate scrutiny was applied to Federal government remedies

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In this case, Adarand complied with the Federal Small Business Act and hired a higher bid offer from a socially and economically disadvantaged individual/minorities Holding: the court found that the law is unconstitutional and violates the 5th amendment by denying equal protection under the law and remanded it back to the COA o The government argues Metro and intermediate scrutiny should be used and diversity is the important government interest o The SC overrules Metro and said that the court erred when using intermediate scrutiny in the past o Beneficial and burdensome racial classifications are equally invalid strict scrutiny is still applied in both state and federal remedies - must serve a compelling government interest AND must be narrowly tailored to further that interest AND must be the least restrictive alternative - a compelling interest can be (1) diversity and also can be (2) remedying for past discrimination if with specificity narrowly tailored Misc: o On remand, the COA held that the programs and regulations were unconstitutional and the defendants were enjoined from enforcing the program o The COA held: (1) Congress had compelling governmental interest in federal program allowing subcontractor compensation clauses in federal highway contract, and (2) program was racial classification that was not narrowly tailored to goal of overcoming discriminatory barriers in federal construction industry nationwide, and, thus, statutes and regulations creating program violated equal protection clause under strict scrutiny test. Grutter v. Bollinger (2003) This was a test case that allowed race to be used as a plus factor in law school admissions. University of Michigan law school used race as part of their admissions program.

Michigan Law School uses several soft factors in admissions decisions, including race. It gives as justification its commitment to a racially diverse student body. They attempt to enroll a critical mass of minority students (no set number). The use daily reports to keep track of the racial composition of the class.

Facts: The Petitioner in this matter was Barbara Grutter, (the "Petitioner"). The Petitioner was a white Michigan resident with a 3.8 grade point average and 161 LSAT score. The University of Michigan Law School (the "Law School") initially put the Petitioner on a waiting list. However, the Law School eventually rejected her application. The Petitioner sued in District Court, alleging the Law School's admission policy violated the Fourteenth Amendment of the United States Constitution (the "Constitution"). The District Court struck down the Law School's use of race as a valid factor in their admissions decisions, but an en banc panel of the Court of Appeals reversed. One of the criteria relied upon by the Law School when deciding who should be admitted, was the applicant's race. The race and ethnicity portion of the Law School's admission policy encouraged "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." The Law School's goal "[b]y enrolling a " 'critical mass' of [underrepresented] minority students," was to "ensur[e] their ability to make unique

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contributions to the character of the Law School." Although race is relied upon, the Law School's diversity policy did not define diversity solely in racial and ethnic terms.

Reasoning: Compare Regents v. Bakke (16/100 seats in medical school reserved for minorities). Powell said that the state has a legitimate interest in a diverse student body. But to pass the SS test, it needs to be narrowly tailored. Race can be used as a plus, but not as a quota system. Like in Bakke, here we hold that the state does have a legitimate interest in a diverse student body (because law school produces leaders, good for leaders to be diverse, etc.). Because here they use an indefinite critical mass instead of a quota system, the affirmative action admissions plan is upheld. Were going to defer to the schools good-faith judgment that they have an interest in promoting a diversity. We hold that it is narrowly tailored because there is no quota system. It is used as a plus factor and thus is flexible enough to be an individualized review and thus is narrowly tailored.
Dicta: Dont need to exhaust every neutral classification option before turning to racial classifications. (reject lottery plan, reject percentage auto-admit plans). Holding: the court found that Michigan has a compelling interest in using race as a plus factor o The SC held racial diversity is a compelling state interest when used in a plan and narrowly tailored and in the least restrictive alternative o The Law School has a compelling interest in attaining a diverse student body because "attaining a diverse student body is at the heart of the Law School's proper institutional mission". Justice Sandra Day O'Connor ("J. O'Connor"), writing for the majority, began her analysis by citing and reaffirming [Bakke], which stood for the proposition that student body diversity is a compelling state interest, justifying the use of race in university admissions. J. O'Connor then set forth the appropriate standard of review to be used in analyzing racial classifications. Racial classifications "must be analyzed by a reviewing court under strict scrutiny", meaning "such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests." J. O'Connor refused to read [Bakke] to mean the only permissible rationale for race-based governmental action was to remedy past discrimination. If the Law School had defined "critical mass" as a specified percentage of a particular group that would be patently constitutional, but here "critical mass" was defined by reference to the educational benefits that diversity is designed to produce. Universities cannot adopt strict quotas or insulate minorities from admission competition, but they can "consider race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration of each and every applicant.

Rehnquist concur: Not narrowly tailored because critical mass is basically quota. Look at the individual #s of blacks, Hispanics, native Americans. Why are the critical masses different for each of the groups? Further, the correlation between the % in the pool of applicants and the % in the critical mass for each of the groups is too precise. Kennedy dissent: No strict scrutiny was applied here. Use of daily reports and the fact that the minority % varied little from year-to-year shows that there is something more than just a critical mass going on here.

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Scalia dissent: No compelling state interest in using racial classifications to obtain a diverse student body. This just perpetuates the controversy. Thomas dissent: No compelling state interest because using racial classifications just perpetuates the idea that blacks are racially inferior. Further, we shouldnt defer to the belief of the school that theres a LSI rather than use true strict scrutiny.
Info: This decision, along with the Supreme Court's decision in [Gratz v. Bollinger] are Supreme Court's most recent regarding affirmative action. Gratz v. Bollinger (2003) University of Michigan LSA program added 20 points to minority groups when applying which had the effect of making race a decisive factor in admissions. The University's LSA College adopted a point system to judge applicants' admission qualifications. One hundred points would guarantee admission. The University assigned point values to many factors when determining eligibility for admission, one of which being race. If an applicant was African-American, Hispanic or Native American, they were automatically given twenty points, or one-fifth the amount needed for guaranteed admission. The University's LSA College considered all the Petitioners "qualified" applicants, but nonetheless denied them admission. The Petitioners in this matter were high school students who applied for admission to, and were rejected from, the University of Michigan's (the "University") College of Literature, Science, and the Arts ("LSA"). The Petitioners brought suit alleging LSA's admission policy violated their rights under the Fourteenth Amendment of the United States Constitution (the "Constitution"). Synopsis of Rule of Law. A policy implemented by a university, "which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve educational diversity."

Rationale: Automatically distributing 1/5 of the needed points for admission to minority students is not narrowly tailoring the means to achieve the legitimate interest in educational diversity. There is no individualized review that Powell or Grutter discussed because it is a mechanical point system. (Even though the ARC reviews some files, this isnt individualized review because most of the files dont get reviewed).
Justice Rehnquist ("J. Rehnquist") writing for the majority held "the University's current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve educational diversity." The majority distinguished [Bakke] and observed "[t]he admissions program [the Bakke court] described did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity." In other words, the individual assessment required by [Bakke] is not present. Holding: the court found that Michigan did not narrowly tailor their admissions program as the points were not equally distributed o The SC held that you can use race in admissions programs, but it must be holistic and individualized consideration of each person

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o There cannot be a quota and you cannot award unequal points (race -20 points vs. talent -5 points)

Dissent: Souter dissent: this case is closer to Grutter (holistic review) than Bakke

(quota) because 20 points can also be awarded for other soft factors like athletic ability. Ginsburg dissent: talk about historic effects of discrimination, how it lingers in the schools, and how the schools are forced to take these proactive measures in order to remedy it.
This decision, along with the Supreme Court's decision in [Grutter v. Bollinger] are the Supreme Court's most recent regarding affirmative action. It is interesting to compare J. Thomas's argument in his Concurrence finding any manner of affirmative action unconstitutional and J. Ginsburg's and J. Souter's argument that certain forms of affirmative action are acceptable.

Easley v. Cromartie (2001) Justice Breyer-North Carolina was gerrymandering districts that contained a majority of African-American voters Issue: In this appeal, we review a three-judge District Court's determination that North Carolina's legislature used race as the "predominant factor" in drawing its 12th Congressional District's 1997 boundaries. In Shaw I, the Court considered whether plaintiffs' factual allegation -- that the legislature had drawn the former district's boundaries for race-based reasons -- if true, could underlie a legal holding that the legislature had violated the Equal Protection Clause. The Court held that it could. In Shaw II, the Court reversed a subsequent three-judge District Court's holding that the boundary-drawing law in question did not violate the Constitution. This Court found that the district's "unconventional," snakelike shape, the way in which its boundaries split towns and counties, its predominately African-American racial make-up, and its history, together demonstrated a deliberate effort to create a "majority-black" district in which race "could not be compromised," not simply a district designed to "protect Democratic incumbents." And the Court concluded that the legislature's use of racial criteria was not justified. Our third holding focused on a new District 12, the boundaries of which the legislature had redrawn in 1997. A three-judge District Court, with one judge dissenting, had granted summary judgment in favor of those challenging the district's boundaries. The court found that the legislature again had "used criteria that are facially race driven," in violation of the Equal Protection Clause. Facts: This "racial districting" litigation is before us for the fourth time. Our first two holdings addressed North Carolina's former Congressional District 12, one of two North Carolina congressional districts drawn in 1992 that contained a majority of African-American voters. The issue in this case is evidentiary. We must determine whether there is adequate support for the District Court's key findings, particularly the ultimate finding that the legislature's motive was predominantly racial, not political. In making this determination, we are aware that, under Shaw I and later cases, the burden of proof on the plaintiffs (who attack the district) is a "demanding one." The Court has specified that those who claim that a legislature has
improperly used race as a criterion, in order, for example, to create a

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majority-minority district, must show at a minimum that the "legislature subordinated traditional race-neutral districting principles to racial considerations." (majority opinion). Race must not simply have been "a motivation for the drawing of a majority minority district," but "the 'predominant factor' motivating the legislature's districting decision," Plaintiffs must show that a facially neutral law "'is "unexplainable on grounds other than race."'

Rationale: Justice Stephen Breyer ("J. Breyer"), writing for the majority, first observed that this issue is entirely evidentiary. The burden of proof is on the party challenging the district and the burden is a demanding one. What must be shown in arguing that a majority-minority district was created, at a minimum is that the "legislature subordinated traditional race-neutral districting principles ... to racial considerations." Race must be the " 'predominant factor' motivating the legislature's districting decision," not just a motivation for the line that was drawn. The facially neutral law must be "unexplainable on grounds other than race." The court additionally observed that districting is generally in the "legislature's sphere of competence" and as such the legislature must be given room to accomplish the function. This is "especially [true] where, as here, the State has articulated a legitimate political explanation for its districting decision and the voting population is one in which race and political affiliation are highly correlated". J. Breyer recognized that the District Court's finding was based on three facts "the district's shape, its splitting of towns and counties, and its heavily African-American voting population". Due to the "undisputed evidence that racial identification is highly correlated with political affiliation in North Carolina, the [three above] facts in and of themselves cannot, as a matter of law, support the District Court's judgment."

Holding: the court found that it was constitutional as the gerrymandering was based on political party and not predominantly on race and remanded the case back to see if the plaintiffs could show that a facially neutral law is unexplainable on grounds other than race o The Plaintiff argues it violates the EP clause on its face o The state argues that they divided by party and not race o The court used party affiliation as a proxy for race, which was permissible Analysis: o If you can show that you used party more than race, then the burden shifts to the plaintiffs to show proof of the opposite o Since party affiliation is not a suspect class, then it is not strict scrutiny o This also happened in Texas with republicans not so long ago Dissent. Justice Clarence Thomas ("J. Thomas") filed a dissenting opinion joined by Justice William Rehnquist ("J. Rehnquist"), Justice Anthony Kennedy ("J. Kennedy") and Justice Antonin Scalia ("J. Scalia"). J. Thomas argued that the decision of the court below was not clearly erroneous and as such, the court did not commit clear error. J. Thomas also criticizes standard of review the majority applied. First, the majority erroneously finds significance in the fact there was no intermediate level of appeal. Second, the courts reliance on the fact the trial was not lengthy. Third, the majority's treatment of the district court's findings concerning expert testimony. Finally, the majority's "foray into the minutiae of the record." Recap: Some of the remedies by the courts are affirmative action programs When using an affirmative action program, the level of scrutiny is strict for both the state and federal level the government must have a compelling government interest that is narrowly

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tailored to the means of achieving the interest and it must be done in the least restrictive alternative o They cannot give race more weight than another factor o There cannot be a quota system o Must be an individualistic/holistic look at the individual o But if you use party affiliation as a proxy for race, then the level of scrutiny is rational basis Gender Classifications: The emergency of intermediate scrutiny Frontiero v. Richardson (1973) Under a Federal law, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency, in fact, whereas no such burden is on male members Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. Appellants Claim: In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Holding: the court found that the law was unconstitutional as it did violate the EP clause of the 5th amendment because it was facially discriminatory o The SC did not classify gender as a suspect class, so they did not use strict scrutiny o This was a case of first impression and they used a heightened scrutiny from Reed Brennan, J., announced the judgment of the court, and in an opinion joined by Douglas, White, and Marshall, JJ., expressed the views that (1) statutory classifications based upon sex were inherently suspect and thus must be subjected to close judicial scrutiny, and (2) under such standard of judicial scrutiny, the challenged statutes were unconstitutional as constituting an invidious discrimination against servicewomen in violation of the due process clause of the Fifth Amendment, the sole purpose advanced for the statutory discrimination being mere administrative convenience. Stewart, J., concurred in the judgment, agreeing that the statutes worked an invidious discrimination in violation of the Constitution.

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Powell, J., joined by Burger, Ch. J., and Blackmun, J., concurred in the judgment, agreeing that the challenged statutes constituted unconstitutional discrimination against servicewomen in violation of the due process clause of the Fifth Amendment, but expressing the view that it was unnecessary and inappropriate to determine whether sex was a suspect classification requiring strict judicial scrutiny, particularly since the Equal Rights Amendment, which would resolve the question if adopted, had been submitted for ratification by the states. Other: J. Brennan argues that gender-based classifications are always subject to strict scrutiny. J. Powell stops short of this, arguing that such a ruling would have far-reaching implications with respect to inherent differences between the sexes. Craig v. Boren (1976) Oklahoma enacted two statutes which interacted to prohibit the sale of non-toxicating 3.2% beer to males under 21 and to females under 18 Synopsis of Rule of Law. Gender-based classifications must satisfy intermediate scrutiny requirements to pass constitutional muster. (They must serve important governmental objectives and be substantially related to achievement of those objectives.) Appellants, a male between 18 and 21 years of age and a liquor vendor, filed an action in district court that sought declaratory and injunctive relief against the enforcement of Okla. Stat. tit. 37, 241 and 245 (1958 and Supp. 1976). Together, the statutes prohibited the sale of non-intoxicating three and two-tenths percent beer to males under the age of 21 and to females under the age of 18. Appellants alleged that the statutes constituted invidious discrimination against males between 18 and 20 years of age. The district court sustained the constitutionality of the statutory differential and dismissed the action. Holding: the court found that the law was unconstitutional as it did violate the EP clause of the 14th amendment because it denied males between 18-20 year olds EP o The state argued rational basis of traffic safety laws o The SC declared the proper standard of review was intermediate scrutiny for gender classifications o The Court reversed, holding that the gender-based differential that resulted from 245 invidiously discriminated and constituted a denial of the equal protection of the laws to males who were 18 to 20 years of age. The Court held that gender did not represent a legitimate, accurate proxy for the regulation of drinking and driving, and therefore, the classification was not substantially related to the achievement of a legitimate government objective. The court also noted that U.S. Const. amend. XXI did not save the gender-based discrimination from invalidation. Justice William Brennan (J. Brennan) argues that case precedent dictates that an intermediate level of scrutiny should be applied in analyzing the statute. Specifically, the gender-based classification must serve an important government objective and be substantially related to the achievement of such objective. Dissent: Justice William Rehnquist (J. Rehnquist) dissents on two levels. He believes that rational basis analysis is the appropriate level of scrutiny for gender-based classification. Furthermore, he believes that the intermediate scrutiny applied by the Supreme Court of the United States (Supreme Court) is so "diaphanous and elastic" as to encourage judicial prejudice. Discussion. Craig v. Boren establishes intermediate scrutiny as the appropriate level of review for gender-based classification. Intermediate scrutiny is distinguished from strict

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scrutiny at both the objective and means levels. Important government objectives (intermediate) v. compelling government objectives (strict) and substantially related (intermediate) v. narrowly tailored (strict). US v. Virginia (1996) Virginia Military Institute was exclusively for men to receive a unique educational experience but it was a state school, so everyone paid for it. VMI opened a sister school under a separate but equal mindset. VMI has a long tradition of providing a rigorous, military style college experience to its undergraduate students. Since its founding in 1839, VMI has been an exclusively male institution. After a negative ruling by the Fourth Circuit Court of Appeals, the Respondent attempted to create a separate women's program at a coeducational institution. However, it was clear that the qualifications of the faculty and students at the parallel institution for women were inferior to VMI's in several indicators. Procedure: In 1991, the District Court rejected the equal protection challenge, on the basis that--while some women would want to attend VMI and some women were capable of all of the individual activities required of VMI cadets--(1) VMI's school for men brought diversity to Virginia's otherwise coeducational system; (2) the only means of achieving this objective was to exclude women from VMI; and (3) if women were admitted, then some aspects of the school's distinctive method would have to be changed, with respect to (a) allowing for personal privacy, (b) altering physical education requirements, at least for women, and (c) modifying the adversative environment (. In 1992, the United States Court of Appeals for the Fourth Circuit vacated and remanded, as the court expressed the view that (1) even if, as was doubtful, there was a state policy of educational diversity that included single-sex institutions, an explanation was lacking as to how this policy was furthered by affording a unique educational benefit only to males; (2) while VMI's absence of privacy, physical training, and adversative approach would be affected by admitting women, neither the goal of producing citizen-soldiers nor VMI's implementing methodology was inherently unsuitable for women; and (3) on remand, Virginia, in the first instance, would have the responsibility for selecting a remedial course, from options including--so long as the Fourteenth Amendment was satisfied-(a) admitting women to VMI and adjusting its program, or (b) establishing a parallel program (976 F2d 890). In 1994, the District Court ruled that this proposal met the requirements of the equal protection clause, as--even though the VMI methodology could be used to educate women and some women might prefer this methodology--VMI and VWIL would achieve substantially similar outcomes (852 F Supp 471). In 1995, the Court of Appeals affirmed in pertinent part, as the court expressed the view that (1) under a deferential standard of review, Virginia's goal of single-gender college education was legitimate; and (2) men at VMI and women at VWIL would obtain substantially comparable benefits (44 F3d 1229). The Court of Appeals then denied rehearing en banc. Synopsis of Rule of Law. A state may not preclude one gender or the other from participating in a unique educational environment solely on the basis of gender. Va. Argument: Single-sex ed provides important educational benefits, and the option contributes to diversity I educational approaches. Second, the VMI method of character development and leadership training, the schools adversative approach, would have to be modified were VMI to admit women. (Pedagogal benefits to some students.) Modifications would be radical as to destroy VMIs program. Men would be deprived and women wouldnt gain.

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Rationale: VMI hasnt shown it was established or has maintained a diversifying view with exclusion of women. (remedial decree) VWIL must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of discrimination. J. Ginsburg categorically denies that VMI's "adversative method of training" is incompatible with accepting women, as the VMI's methods were well known to those familiar with the school, and the student body was selfselecting in this regard. Only 15% of VMI cadets enter military service. Holding: the court found that the law was unconstitutional as Virginia did not meet its exceedingly persuasive justification for having an all men school o The SC found the remedial women school was still unconstitutional as separate is not equal and the state would be unable to afford two schools o Women should have the same opportunity to become officers and were denied EP under the 14th amendment o School had to shut down Dissent. Justice Antonin Scalia (J. Scalia) views the majority opinion as shutting down a traditional institution and that intermediate review is inappropriate in gender-based classification cases. Much of the Courts opinion is devoted to deprecating the closedmindedness of our forebears with regard to womens education , and even with regard to the treatment of women in areas that have nothing to do with education. Important: Interestingly, the majority opinion leaves open the door to separate, but equal institutions of learning for men and women. Much of the Supreme Court of the United States' disapproval of VMI's single-sex education lies not with its single-sex character, but rather with the lack of comparable opportunities for women within Virginia's state colleges. It was the denial to women of the uniqueness of the opportunities afforded by VMI that Virginia was unable to justify under intermediate scrutiny. 2 ways of proving a gender classification. o Facially the very terms draws a distinction among people based on gender o Facially neutral Requires demonstrating there is both a discriminatory impact to the law and a discriminatory purpose behind it.

Geduldig v. Aiello (1974) California administered a disability insurance system that paid benefits to persons in private employment who were temporarily unable to work because of disabilities but it did not cover pregnancy-related disabilities For almost 30 years California operated a disability insurance system that supplemented workers compensation, in that it provided for payments for disabilities not covered by workers compensation. The list of disabilities paid for by the State of California was not exhaustive. Among those disabilities not paid for were certain pregnancy related conditions. Suit was brought challenging the system as an unconstitutional gender-based classification. An

individual is eligible for disability benefits if, during a one-year base period prior to his disability, he has contributed one percent of a minimum income of $ 300 to the

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Disability Fund. In the event he suffers a compensable disability, the individual can receive a "weekly benefit amount" of between $ 25 and $ 105, depending on the amount he earned during the highest quarter of base period. Benefits are not paid until the eighth day of disability, unless the employee is hospitalized, in which case benefits commence on the first day of hospitalization. Weekly benefit amounts" for any one disability are payable for 26 weeks so long as the total amount paid does not exceed one-half of the wages received during the base period.
Facts: Each of the appellees became pregnant and suffered employment disability as a result of her pregnancy. With respect to three of the appellees, Carolyn Aiello, Augustina Armendariz, and Elizabeth Johnson, the disabilities were attributable to abnormal complications encountered during their pregnancies. The fourth, Jacqueline Jaramillo, experienced a normal pregnancy, which was the sole cause of her disability.

Procedure: This litigation began as two separate suits on behalf of California employees who had paid sufficient amounts into the Disability Fund to be eligible generally for benefits under the program. Carolyn Aiello brought her suit against appellant in the Federal District Court. Augustina Armendariz, Elizabeth Johnson, and Jacqueline Jaramillo jointly initiated their suit as a petition for a writ of mandate in the California Supreme Court. Both suits were brought as class actions and asserted the unconstitutionality of 2626 of the California Unemployment Insurance Code under the Equal Protection Clause of the Fourteenth Amendment. The appellant removed the state court suit to the Federal District Court, where the two actions were consolidated.
Synopsis of Rule of Law. Underinclusive legislation is appropriate under the Equal Protection Clause, so long as the line drawn by the State is "rationally supportable." Rationale: Although California has created a program to insure most risks of employment disability, it has not chosen to insure all such risks, and this decision is reflected in the level of annual contributions exacted from participating employees. This Court has held that, consistently with the Equal Protection Clause, a State "may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others. . . ." Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); Jefferson v. Hackney, 406 U.S. 535 (1972). Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. "The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all." Holding: the court found that the law was constitutional and upheld the law as the benefits accrued to both sexes and there was a legitimate interest of the program being self-supporting o The SC agreed that there was no discrimination since there was women on both sides of the argument o The SC used a rational basis review as this was a gender-related and not a genderbased classification o A statute is not invalid merely because it fails to account for biological differences between the sexes Analysis:

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Pregnant women v. non-pregnant women used a Loving argument and passed rational basis review, even though the non-pregnant women could become pregnant o Overruled by the Pregnancy Discrimination Act Dissent: Dissent. Justice William Brennan (J. Brennan) argues that by disallowing payments related to pregnancy, the State inevitably discriminates against women. o Discussion. The majority reaches its conclusions through viewing the problem as one of underinclusive legislation, while the dissent focuses on the inevitable connection of the unfunded conditions with a single sex. Orr v. Orr (1979 Laws of the State of Alabama would require men in some cases to pay alimony on divorce, but women were in no case required to pay alimony. Synopsis of Rule of Law. Without an important state interest and substantially related means, the State may not classify on the basis of sex. On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $ 1,240 per month in alimony. On July 28, 1976, Mrs. Orr initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $ 5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So. 2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. This case arises out of a petition for divorce. The Alabama courts would review the financial status of both partners during the proceedings to determine whether or not the husband owed alimony to the wife. The husband in this particular divorce argued that the law denied him equal protection. Mr Orrs standing was attacked because It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay. It is therefore possible that his success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only "proper plaintiff" would be a husband who requested alimony for himself, and not one who merely objected to paying alimony. His constitutional attack is construed as asking for alimony. Orrs argument- It is a gender classification that benefits women based on role stereotypes, which isnt allowed. States argument- It is designed to remedy past discrimination and differences in opportunity and is permitted. Women are unprepared to fend for themselves. Rationale: In the present case, the State of Alabama argues that sex is a proxy for need of financial assistance. As the finances of both parties to the divorce are examined to determine

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whether a husband owes alimony, this assertion cannot even support a claim of administrative convenience. Because a gender-neutral classification serves the State's purposes just as well as a gender-based classification, the State cannot be permitted to classify on the basis of sex. Holding: Reversed and remanded. Discussion. Orr v. Orr is a very straightforward decision. The State cannot argue that a classification is a proxy for financial need when financial need is a necessary determination in the particular case to begin. Combined with the intermediate scrutiny afforded gender classification legislation, the statute is clearly unconstitutional. Must have exceedingly persuasive justification for the classification (next case) Mississippi University of Women v. Hogan (1982) Mississippi limited its enrollment policy to just women and Hogan applied for the schools nursing program and was denied solely on his gender Rule of Law. A state may not preclude one gender or the other from participating in a unique educational environment solely on the basis of gender. Facts: In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi, now the oldest statesupported all-female college in the United States. 1884 Miss. Gen. Laws, Ch. 30, 6. The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women. No other single-sex public university or college. Respondent, Joe Hogan, is a registered nurse but does not hold a baccalaureate degree in nursing. Since 1974, he has worked as a nursing supervisor in a medical center in Columbus, the city in which MUW is located. In 1979, Hogan applied for admission to the MUW School of Nursing's baccalaureate program. Although he was otherwise qualified, he was denied admission to the School of Nursing solely because of his sex. School officials informed him that he could audit the courses in which he was interested, but could not enroll for credit. Hogans argument- United States v. Virginia says that the state cannot preclude one gender or the other from participating in a unique educational environment solely on the basis of gender. States argument- It compensates for discrimination against women and constitutes educational affirmative action. This would be okay if it intentionally and directly assists members of the sex that is disproportionately burdened. Rationale: Applying intermediate scrutiny, Justice Sandra Day O'Connor (J. O'Connor) notes that the State of Mississippi has not advanced an important state interest for operating a single sex nursing school. In particular, she notes that women did not lack opportunities to be trained as nurses in Mississippi without the presence of MUW. . O'Connor also argues that the means to achieving even an important governmental objective (although she found none) are absent, as MUW allows male auditors in the nursing classes. If men are already in the classroom, the state is not technically operating a single-sex nursing program. Mississippi has not shown that women lacked opportunities to obtain training in the field or leadership positions. Women earned 94% of BS. Degrees in nursing in Mississippi and 98.6% nationwide. 98% of all R.N.s working were women when the school began operation. Denying men just tends to perpetuate the stereotyped view of nursing as a womans job. Didnt prove the stated objective is the actual purpose underlying the discriminatory classification. Fails the 2nd part of the EP test by not showing the gender-based

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classification is substantially and directly related to its proposed compensatory objective. Holding: the court found that the policy was unconstitutional as it failed to establish that the alleged objective is the actual purpose underlying the discriminatory class o The state argues remedial policy for past discrimination o The SC used tradition and gender stereotypes to analyze the case through intermediate scrutiny Analysis: o Like Croson must be a precise injury and there was no injury since women are 98% of nurses and there was no remedial measure needed o He was allowed to go to the school of nursing Dissent. Justice Lewis Powell (J. Powell) argues that the Respondent has not suffered a cognizable injury, as there were state-operated nursing programs that accepted men elsewhere in the state and there is no right to attend a state-run university close to one's hometown. There are two powerful arguments brought up by the dissent. The first is the lack of injury argument - without injury a case is not ripe, and the constitutional issue may not be reached. There is also the argument that as there is no unique educational opportunity here (there are nursing programs accepting men in the State college system), the state is not denying opportunities to men. Michael M. v. Superior Court (1981) Californias statutory rape law makes men only criminally liable for the act of sexual intercourse. Plaintiff was charged under the statute and is fighting it, claiming it violates EP clause. A complaint was filed in the Municipal Court of Sonoma County, California, alleging that a then 17 1/2 year old male had had unlawful sexual intercourse with a female under the age of 18, in violation of California's "statutory rape" statute, which defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Prior to trial, the defendant sought to set aside the complaint on both state and federal constitutional grounds, asserting that the statute unlawfully discriminated on the basis of gender. The trial court and California Court of Appeal denied this request, and on appeal the Supreme Court of California upheld the statute, holding that the state had a compelling interest in preventing teenage pregnancies, and that because males alone can physiologically cause the result which the law properly seeks to avoid, the gender classification was justified as a means of identifying offender and victim Rationale: Girls have a natural deterrent b/c they are the ones that carry the baby. The consequences of illegitimate pregnancies for minor girls are substantial physically, mentally, financially, etc. The guys do not have these burdens. The petitioner claims the act is overbroad b/c it prohibits sex with girls who arent even capable of becoming pregnant. This is dumb, though; sex could hurt really young girls, etc. He also says that this law assumes the male is the aggressor, but the court isnt persuaded.

Reasons why its rational to treat the sexes differently in this case: o All consequences of teen pregnancy fall on the woman, so its legitimate when the state focuses punishment on the one who doesnt already bear consequences. o If the state is acting to protect young teenage girls, then it makes sense that the state wouldnt want to punish them.

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o Pregnancy in itself is deterrence for females. Punishing only the males thus equalizes the deterrents. o Girls wouldnt report the rape if they could be punished too
Holding: the court found that the law was constitutional as there is a public policy for women being afraid to report rape if they were criminally liable too o The state argued similar to rational basis as it prevents teenage pregnancies but the state is not really preventing teenage pregnancies o The SC used an intermediate scrutiny and the state still met this burden o Blackmun concurring- glad the court recognizes the struggles on the pregnant girl. Pregnancies are hard on the girl financially and economically, and also on the child and the state. The means fit the ends here. Brennan dissenting- court should focus more on whether the statute is substantially related to the achievement of the states goal. To legitimize the goal, CA has to show that b/c the law punishes only males, and not females, it more effectively deters minor females from having sexual intercourse. Court says that a gender-neutral law would be harder to enforce- need to prove. Stevens- says the law should apply to all unmarried teenagers to prevent pregnancy and spread of vd. If the law is supposed to protect girls, they shouldnt be exempted from the law. In order to support law, the state would have to prove males are more guilty than females in this aspect of life. No justification for the belief that males are guiltier than girls. Analysis: o Basing discriminations on stereotypes, but it was still allowed o An anomaly case Rostker v. Goldberg (1981) The Military Selective Service Act required every male citizen to register in the draft for war and Rostker was a woman who sued on the constitutionality of this Act. Facts: The MSSA requires all males between the ages 18 to 26 to register with the Selective Service. The purpose of the MSSA is to allow the armed services to select men in the event that a military draft is necessary. Women are not required to register with the Selective Service. Additional facts: Although registration for the draft was discontinued in 1975, President Carter determined in early 1980 that it was necessary to reactivate the registration process, and recommended that funds be transferred from the Department of Defense to the Selective Service System for this purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men. Congress agreed that is was necessary to reactivate the registration process; however, it allocated only those funds necessary to register males and, although it considered the question at great length, it declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men pursuant to 3 of the Act. Ultimately ruling in a case which had been brought nearly ten years earlier in the United States District Court for the Eastern District of Pennsylvania by several men subject to registration for the draft and subsequent induction into the armed services, a three-judge Federal District Court held that the Act's gender-based discrimination violated the due process clause of the Fifth Amendment and permanently enjoined registration under the Act Synopsis of Rule of Law. The federal government may classify on the basis of race, but only when there is an important government interest and the means are substantially related to the interest.

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Rationale: Justice William Rehnquist (J. Rehnquist) writes for the majority, noting that the primary objective for the MSSA is to provide a supply of combat troops in times when a military draft is necessary, clearly an important government interest. As to the means, J. Rehnquist notes that only men (as a group) are eligible for combat duty. Because of this, registering all women is a substantial administrative inconvenience for a small degree of payoff. Men and women are thus differently situated for purposes of a draft. Furthermore, most non-combat positions are filled by combat-ready troops that are rotated with other troops, further diminishing the payoff from the registration of women. Holding: the court found that the law was constitutional and did not violate the EP clause of the 5th amendment o (1) Congress did not act unthinkingly or reflexively and not for any considered reason and its decision was not the accidental byproduct of a traditional way of thinking about women and o (2) women as a group, unlike men as a group, not being eligible for combat, the exemption of women was closely related to the congressional purpose in instituting registration which was to prepare for a draft of combat troops and, rather than being invidious, realistically reflected the fact that the sexes were not similarly situated. o The SC showed deference to Congress act as there was a sufficiently related purpose of having only men register for the draft when only men are eligible for combat o The plaintiff should have attacked the fact that women were not able to go into combat, bad lawyering Dissent. Justice Byron White (J. White) dissents, arguing that there are jobs that can be performed by persons ineligible for combat duty. As such, there is no reason that Congress cannot recruit women for these positions. o Marshall, J., joined by Brennan, J., dissented, expressing the view that both the court and Congress had lost sight of the distinction between registration and conscription and that there was no basis in the record for concluding that the total exclusion of women from registration was substantially related to the achievement of the concededly important governmental interest in maintaining an effective defense.

Info: Again, J. Rehnquist does not use the intermediate scrutiny terminology, although it may clearly be applied to the case at bar. There is an important government interest (providing for a draft) and a substantially related means to achieve the interest (requiring only men to register, where only men are eligible for combat as a group). Califano v. Webster (1977) The Social Security Act old-age insurance benefits are calculated differently between men and women and women benefits were skewed to receive 3 fewer years, resulting in a higher average earning. Under 215 of the Social Security Act, as added, old-age insurance benefits are computed on the basis of the wage earner's "average monthly wage" earned during his "benefit computation years" which are the "elapsed years" (reduced by five) during which the wage earner's covered wages were highest. Until a 1972 amendment, "elapsed years" depended upon the sex of the wage earner. Section 215(b)(3) prescribed that the number of "elapsed years" for a male wage earner would be three higher than for an otherwise similarly situated female wage earner; for a male, the number of "elapsed years" equaled the number of years that elapsed after 1950 and before the year in which he attained age 65; for a female the number of "elapsed years" equaled the number of years that elapsed after 1950 and before the year in which she attained

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age 62. Thus, a male born in 1900 would have 14 "elapsed years" on retirement at age 65 but a female born in the same year would have only 11. Accordingly, a female wage earner could exclude from the computation of her "average monthly wage" three more lower earning years than a similarly situated male wage earner could exclude. This would result in a slightly higher "average monthly wage" and a correspondingly higher level of monthly old-age benefits for the retired female wage earner. A single-judge District Court for the Eastern District of New York, on review under 205(g) of the Social Security Act, 42 U.S.C. 405(g), of a denial, after hearing, of appellee's request that the more favorable formula be used to compute his benefits, held that, on two grounds, the statutory scheme violated the equal protection component of the Due Process Clause of the Fifth Amendment: (1) that to give women who reached age 62 before 1975 greater benefits than men of the same age and earnings record was irrational, and (2) that in any event the 1972 amendment was to be construed to apply retroactively, because construing the amendment to give men who reach age 62 in 1975 or later the benefit of the 1972 amendments but to deny older men the same benefit would render the amendment irrational, and therefore unconstitutional. Rationale: To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197 (1976). Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective. The challenged statute operated directly to compensate women for past economic discrimination. Retirement benefits under the Act are based on past earnings. But as we have recognized: "Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs." Thus, allowing women, who as such have been unfairly hindered from earning as much as men, to eliminate additional lowearning years from the calculation of their retirement benefits works directly to remedy some part of the effect of past discrimination. Holding: the court found that the law was constitutional and that the government may enact remedial legislation to benefit women in areas where they have been traditionally discriminated against o The SC held that a remedy was proper because it directly related to the injury of women in the workplace o Gender classifications will be allowed to remedy past discrimination or differences in opportunity o Seems at odds with Croson, but Croson was strict scrutiny and gender classifications does not need to be narrowly tailored Nguyen v. Immigration and Naturalization Service (2001) Facts: 28 USC 1409 governs US citizenship for a child born to a US citizen and a non-citizen when the parents are unmarried and the child is born outside of US and its territories. There are different requirements for the mother who is a citizen versus the father who is a citizen. If the father is the citizen he has three options: legitimation, declaration of paternity under oath by father, or a court order of paternity. Mother doesnt have to do these things. The difference is the relationship b/w the parent-child at the time of birth. A child who was born in Vietnam to a United States citizen father and a Vietnamese mother came, at the approximate age of 6 years, to the United States, where he became a lawful permanent resident and was raised by his father. After the child reached the age of 18, he pleaded guilty in a Texas state court to two counts of sexual assault. The United States Immigration and Naturalization Service (INS), on the basis of these crimes, initiated

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deportation proceedings against the child. A United States Immigration judge found the child deportable. While the child's appeal to the United States Board of Immigration Appeals was pending, the father obtained from a state court an order of parentage that was based on DNA testing. The Board, in dismissing the appeal, rejected the child's citizenship claim on the basis that he had not complied with 1409(a). On appeal by the child and his father, the United States Court of Appeals for the Fifth Circuit, in affirming, rejected the claim that 1409 violated equal protection by imposing different citizenship rules according to the gender of the citizen parent Govt objectives: ensuring a biological parent-child relationship exists, and insure the child and citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized by law but also that has real, everyday ties that provide a connection b/w the two, and also b/w the child and the US. 1409(a)(4): the requirements that while the child was under the age of 18
years:

o o o

Rationale: Reasoning: There is no need to impose these upon the mother b/c she will obviously be there at birth. One can guarantee that she will be with the child and will have the chance to develop a meaningful relationship with him. Proof of motherhood is inherent in birth. With the father however, the US doesnt want to confer full benefits, etc. to someone who isnt proven to be a US citizen. Since one cant guarantee the father will be p resent at birth or even meet the child, there needs to be proof of parentage. The petitioners argue that just b/c a woman gives birth to a baby doesnt mean she will have a meaningful relationship with it. The court says the means fit the ends, and they are exceedingly persuasive. The obligation imposed on the citizen father is minimal. Besides, children dont have to depend on their parents for citizenship. If they have significant ties to the US, they can try to attain citizenship on their own. Holding: The judgment of the appellate court was affirmed. o o The means adopted by Congress to further its objectives substantially related to the facilitation of a relationship between parent and child. The difference between men and women in relation to the birth process was a real one, and the principle of equal protection did not forbid Congress to address the problem at hand in a manner specific to each gender.

the child had to be legitimized under the law of the child's residence or domicile, (2) the father had to acknowledge paternity in writing under oath, or (3) paternity had to be established by a competent court--for the child to acquire citizenship.

Dissent: OConnors dissent- The majority merely hypothesizes about the interests served but doesnt look into the actual purposes of the statute. It also didnt adequately explain the importance of these interests. The means/ends analysis wont fit heightened scrutiny. Precedents require higher scrutiny than is given here. Why dont we just use DNA tests? S he points out that in previous cases, a comparable or superior sex-neutral alternative has always been a good reason to reject a sex-based classification. Regarding the second goal, a demonstrated opportunity for a meaningful relationship doesnt mean one will occur. There are many sex-neutral alternatives that would fit the means/ends analysis and pass scrutiny. The 1409 requirements go along with the stereotype that guys normally dont have a relationship with their kids like the mothers do.

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Recap: Three principles emerge: o Gender classifications based on role stereotypes generally will not be allowed o Gender classifications benefiting women designed to remedy past discriminations and differences in opportunity will be permitted o Gender classifications benefiting women can be based on biological differences between men and women If it is discriminatory on its face, then a state must come back with a reason to meet intermediate scrutiny - substantially related to an important government purpose If it is discriminatory, but facially neutral, then the plaintiff must prove its discriminatory with its actual purpose Alienage Classifications: Alienage refers to discrimination against non-citizens who legally reside in the United States Graham v. Richardson (1971) Arizona statutes provided that only US citizens and resident aliens who lived in the state more than 15 years could receive welfare benefits. Richardson was permanently disabled and was eligible for benefits except for the specification of residency for 15 years. Otherwise qualified US citizens living in AZ are entitled to federal funds w/o regard to the length of their residency in this country, but aliens must have lived here 15 years to qualify. Issue(s): Whether the EP Cl of the 14th prevents a state from conditioning welfare benefits on either: a) the recipients possession of U.S. citizenship; or b) if recipient is an alien, on his having resided in the U.S. for a certain number of years?

Rule(s): 14th the term person encompasses lawfully admitted aliens and citizens of the US, and entitles both to EP of the laws. Supremacy Cl. Art. IV sec. 1 cl.2 Dfs A: (AZ/PA) States may favor US citizens over aliens in the distribution of benefits when consistent w/ EP Cl. This distinction does not involve invidious discrimn b/c the state is not discriminating w/ respect to race or nationality. The restrictions on eligibility for public assistance are justified on the basis of special public interest favoring citizens over aliens in the distribution of limited resources. Plaintiffs argument: Shapiro says it is unconstitutional to require durational residency for welfare. Rationale: Typically states have broad discretion to legislate in the areas of social and

economic welfare, but where classifications are inherently suspect, race, nationality, and alienage, then strict scrutiny applies. The power to apply state law exclusively to alien inhabitants is confined w/i narrow ltds. A states desire to preserved limited economic resources to citizens is an inadequate justification in AZ. State laws that restrict the

eligibility of aliens for welfare benefits solely b/c of their alienage conflict with the overriding national policies in an area reserved for the Federal Government. Restrictions that deny benefits to nonresidents or condition receipt on periods of residency, equate into the assertion of a right to deny entrance and a place of dwelling. Those restrictions are inconsistent with federal policies and are constitutionally impermissible.
Holding: the court found the law was unconstitutional as it denied welfare benefits to resident aliens and legal aliens are part of a suspect class so strict scrutiny must be met

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o o The state argued that aliens could not receive benefits because the state did not have enough funding economic argument so the court would be persuaded to use a rational basis test Generally, alien classifications are a suspect class and strict scrutiny will be used

Foley v. Connelie (1978) A NY statute only allowed US citizens to sit for an exam to be a state trooper. Foley, a resident alien, applied for an appointment as a state trooper and was denied because we was not a US citizen. (but was legally residing in the US). He was eligible in due course to become a naturalized citizen, who was a lawful permanent resident. Rationale: where the power the state is exercising is clearly within its governmental function or political function. Otherwise, there would be no benefit to citizenship. Thus, in these cases, rational relationship is the appropriate standard. Since police officers exercise a very broad discretion in enforcement of laws, it would be as anomolous to say that a citizen could be exposed to the broad discretion of a non-citzen police officer as it would be to say that judges and juries can be made up of aliens. Thus, citizenship bears a rational relationship to law enforcement. Chief Justice Warren Burger (J. Burger) wrote for the majority that strict scrutiny in all areas where alien status is used restrictively would "obliterate all distinctions between citizens and aliens." J. Burger notes that a State may deny the right to vote, run for office, or sit on juries to non-citizens, as these are "at the heart of our political institutions." The police power, as well, is an extension of the political life of the community. For the same reason that noncitizens do not sit in trial over citizens, the state has an interest in not allowing non-citizens to invade the privacy of citizens and to allow non-citizens to exercise the discretionary powers of police officers against citizens. Holding: the court found the law was constitutional as the state has a right to put conditions on who is going to govern its state and can put conditions on legal aliens o The state argued that police have discretionary powers which can significantly impact the public and used an exception for discrimination within the democratic process in executing public policy o The SC upheld NYs statute under rational basis as it fell under the exceptions of self government or part of the democratic process Dissent: Marshall, Brennan, Stevens, must also overturn In re Griffiths as well because aliens must be disloyal or untrustworthy, based upon this decision. Argues that loosening of the level of review in the present case is inappropriate. He argues that the position of police officer does not require policy-making and as such, is not incompatible with integrity of the political process. Discussion. The majority changes the standard of review in certain situations, namely where the State is legislating within its "constitutional prerogative." Strict scrutiny is no longer appropriate, but rather rational basis. Ambach v. Norwick (1979) NY had a statute which prohibited a public school teacher certification to be given to any person who was not a US citizen, unless such person has manifested an intent to apply for citizenship. Norwick was a Scottish born-resident alien who was denied a teaching certificate based on her citizenship and sue under the EP clause of the 14th amendment. Norwick refused to seek naturalization. The Respondents both are foreign citizens eligible to seek

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naturalization who have refused to do so. Their refusal to seek naturalization is the sole requirement for certification as a teacher that they have not met. They brought suit, alleging that the requirement denies to them equal protection of laws. Norwick- born in Scotland and a subject of Great Britain, and Dachinger- a Finnish subject who came to the U.S. in 1966. Rationale: Justice Lewis Powell (J. Powell) argues that the unequivocal bond that citizenship establishes makes it a rational distinguishing trait for the purposes of a state exercising its governmental functions. This he compares to the police power discussed in Foley, 435 U.S. 291 (1978). In particular, J. Powell notes that a teacher "has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities." An oath of allegiance, he feels, is not a suitable substitute for citizenship itself. Holding: the court found the law was constitutional and requiring citizenship bears a rational relationship to a legitimate interest of NY o The state argued important principles inherent in the USC which gives the public policy exception in furtherance of education and the restriction was carefully framed as it opens up qualification if the teacher was going to apply for citizenship o The SC emphasized the exception must be narrowly tailored to those who participate directly in the formation of public policy and hence perform functions of representing the government Analysis: o Do you agree with this case? What is the other side? sometimes people just want to stay loyal to their primary country and return to their other country so they dont want US citizenship o There can be alienage discrimination if the act deals with self-governance of the state, deals with the democratic process, or if passed by Congress Dissent: Blackmun, Brennan, Marshall, Stevens: Just like Foley. the dissent argues that a teacher is not in such a position, as indeed the dissent in Foley had argued about police. Discussion. Norwick extends the rational basis test to more tangential areas of government function. Under the majority's reasoning in Norwick, there is no clear horizon to a State's ability to discriminate against legal aliens as government employees. In Amach v. Norwick, the court applied the Dougall exception and Foley to hold that a state may refuse to employ teachers who are eligible for naturalization, but refuse it, stating that less demanding scrutiny is required where aliens are excluded from state functions that were part of the states governmental function. Cabell v. Chavez-Salido, 454 U.S. 432 (1982)- Court followed Foley and Ambach and held states can require citizenship for a person to be a probation officer.- they are law enforcement and teachers at the same time. Bernal v. Fainter, 467 U.S. 216 ( 1984)- unconstitutional for notary public.- Confirmed strict scruitiny and must be specifically tailored to those who participate directly in the formulation, execution, or review of broad public policy and go to the heart of representative government. Exception-Feds Plenary power over immigration allows for defference and only rational basis is used if Congress has created the alienage classification or in the result of a presidential order.

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Mathews v. Diaz, 426 U.S. 67 (1976)- Feds can deny Medicaid benefits to aliens. Served fiscal integrity of the program. Hampton v. Wong (1976)-rational basis is not used for federal administrative agencies. Invalidated a federal civil service regulation that denied jobs to aliens. Agency had no role in making immigration or foreign policy.

Plyler v. Doe (1982) Brennan: The state of Texas enacted a statute which prohibited children who resided as undocumented aliens from enrolling in public schools. Plaintiffs sued under the 14th amendment EP Holding: the court found the law was unconstitutional, while controlling illegal immigration was a legitimate state interest, this state law affected those who have no control over thief conduct o The state argued that there was a concern for the preservation of economic resources and rational basis o The SC ruled that non-documented aliens are not a suspect class nor is education a fundamental right so it is not strict scrutiny, however the court used a heightened rational basis review (like in Romer v. Evans)

Issue and Holding Does denying public education to illegal aliens violate the EPC? Yes. Alienage isnt a suspect class because its the product of a conscious and unlawful action. Public education isnt a fundamental right guaranteed by the constitutional, but neither is it like other forms of social welfare because it has a lasting importance in the life of the child and it is important to maintain our basis institutions. Therefore, to be rational it needs to further some substantial goal of the state Rationales: State shouldnt have to benefit those who enter the state illegally. BUT, you shouldnt punish the children who have no effect over their parents illegal/immoral conduct (compare to discrimination against illegitimates). State has an interest in protecting from an influx of illegal immigrants. BUT, theres no evidence suggesting that illegal entrants impose any significant burden on the economy (in fact, the opposite is true) Congress disapproves of their presence and the evasion of the fed. Regulatory program that is the mark of undocumented status, provides authority for its decision to impose upon them special disabilities. Undocumented children impose special burdens on the states ability to provide high-quality education. BUT, in terms of educational costs and need, undocumented children are basically the same as legal residents.

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Alien children are less likely than others to remain within the boundaries of the State and to put their education to productive social use within the state. BUT, the same could be said of all other children.
Analysis: o Using rational basis review, the court struck down this act o Just a thought: we can have the illegal aliens working in our fields, but we cannot have their children in our schools Burger, White, Rehnqist, OConnor, dissent: Cant change laws just because they dont meet or standards of desirable social policy, wisdom or common sense. Since the majority says there is no suspect class, they shouldnt be using a quasi-suspect class analysis. Instead, they should use a RR test. The law passes the RR test. notes that "the level of scrutiny employed to strike down the Texas law applies only when illegal aliens children are deprived of a public education," and accuses the Supreme Court of the United States (Supreme Court) of adopting a results-oriented approach. In the end, the dissent argues that illegal aliens have no expectation of any public benefits from the country in which they reside illegally. Recap: The 14th amendment applies to all persons, not just citizens Generally, strict scrutiny is used for alienage classifications, but there are four exceptions in which strict scrutiny is not used: o Related to Self-government rational basis o Related to the Democratic process rational basis o Deference to Federal statutes and presidential orders rational basis o Undocumented aliens rational basis /heightened Discrimination against Non-Marital Children: Children born out of wedlock are non-marital children Recap: Intermediate scrutiny is used for non-marital children as there would be an unfairness of penalizing the child for illegitimacy of his/her parents Three principles emerged: o Laws that provide a benefit to all marital children, but no non-marital children are always unconstitutional o Laws that provide a benefit to some non-marital children, while denying the benefit to other non-marital children, are evaluated on a case-by-case basis o Laws that create statute of limitations for the time period for child paternity must provide enough time for those with an interest to present his/her right and must be substantially related to the states interest in preventing false claims -no restrictive limits have been upheld thus far Levy- law unconstitutional that prohibits non-marital children from suing for wrongful death of mother. Glona- law prohibiting parents from suing for wrongful death of their non-marital children was unconstitutional. Cahil- law limiting public assistance benefits Assistance to Families of the Working Poor, had to have 2 married adults and a child. GOMEZ- Texas law created a legal obligation for marital children and none for non-marital children was unconstitutional. Trimbleunconstitutional to deny non-marital children in Ill. To inherit from their father. Other Types of Discrimination: The type of review for age, disability (City of Cleburne), wealth, and sexual orientation (Romer) is rational basis review. This is because these conditions affect everyone and the condition can change

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Massachusetts Board of Retirement v. Murgia (1976) Massachusetts enacted a statute providing that police officers shall be retired at 50 years old. Murgia challenged the state law on EP. The Respondent was an officer in the uniformed branch of the Massachusetts State Police. Upon his 50th birthday, the Respondent was required to comply with state law and retire, although a physical examination just four months prior had determined the Respondent to be healthy and capable of all his job functions. The Respondent brought suit in United States District Court, alleging that the compulsory retirement law for Massachusetts State Police denied him of equal protection under the law. Rationale: The Supreme Court of the United State's (Supreme Court) majority states that although there has been age discrimination in the past and at present, it does not represent the same type of "purposeful unequal treatment" that has been shown on the basis of race or national origin. As such, the Supreme Court states that rational basis review is the proper level of scrutiny in the current case. Police work can be physically arduous and the individual officers must be capable of executing their duties fully in the interest of public safety. As individuals grow older, they are no longer as physically able as individuals in their 20's and 30's. Although Massachusetts requires routine physicals annually for all officers over the age of 40, there is no requirement that it base retirement solely on the results of these physicals. There is a rational basis for using a set age as a proxy, and hence, the Supreme Court finds no equal protection violation. Holding: the court found the law was constitutional as age is not a suspect class nor is a right to work a fundamental right. o The state argued they were protecting the public by assuring physical preparedness of its uniformed police rational basis o The plaintiff argued employment is a fundamental right so strict scrutiny o The SC looked at tradition, political power, immutable characteristics, etc. to declare old-aged people as not a suspect class Justice Thurgood Marshall (J. Marshall) dissents, arguing that the right to work is a fundamental right and hence proper for a heightened level of scrutiny, as well as that the discrimination against the elderly is more widespread and systemic than the Per Curiam opinion admits. The central holding of Murgia is that age classifications are subject only to rational basis review. Given the relatively small gain in administrative convenience in the present case (officers approaching 50 are physically examined annually, anyhow), one might argue that the majority is looking at the larger picture of how age classifications are used in this country (for example, driver's licensing, drinking age, voting rights, statutory rape, etc.). Analysis: o If you are able to link age to a fundamental right, then strict scrutiny is the type of review but because you cannot link age to a fundamental right in this case, then it is rational basis review o The SC knew what they wanted and ruled such way o Federal Acts now outlaw mandatory retirement ages CHAPTER EIGHT FUNDAMENTAL RIGHTS UNDER DUE PROCESS AND EQUAL PROTECTION

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There are r-rights and R-rights when talking about rights. r rights are rights secured by law. R-rights are fundamental and enumerated through the 9th amendment of the USC as a textual justification for a penumbra of rights Framework for Analyzing Fundamental Rights 1. Is there a fundamental right? o Some liberties are so important they are deemed fundamental rights (FR) even though they are not enumerated in the USC o There are two ways to have a cause of action under FR: -due process: government interference -equal protection: government discrimination 2. Is the constitutional right infringed? o Extinguishes or deprives one of that right 3. What level of scrutiny should be used? o Usually strict scrutiny must be necessary to achieve a compelling purpose o The regulation of a r-right is rational basis unless it so infringes on R-right and then strict scrutiny is used 4. Is there sufficient justification for the governments infringement of a right? 5. Is the means sufficiently related to the purpose? Ninth Amendment- Used to provide a textual justification for the Court to protect non-textual rights, such as the right to privacy. Procedural Due Process: Substantive-Gov. must justify an infringement by showing that its action is sufficiently related to an adequate justification. Procedural- When the Gov. takes away a persons life, liberty, or property it must provide adequate procedures. Constitutional Protection for Family Autonomy: The right to marry Loving v. Virginia (1967) Virginia enacted a miscegenation statute which prohibited a white person from marrying anyone that was not white In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," a prohibition against issuing

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marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage. Holding: the court found that the law was unconstitutional as it violated the 14th amendment but this case overlapped EP and FR issues o The states argue it burdened both whites and minorities equally o The SC rejects that argument as when animus is at the center of the reason for burdening both whites and minorities then it is not valid o These statutes also deprived the Lovings of liberty without due process of law in violation of the Due Process Clause of the 14th Amendment. Analysis: o While this was an EP case based on a suspect class of race, the dicta of the court explained that marriage is one of the basic civil rights of man and it was fundamental to existence and survival o It was the first time the SC was announcing their position on marriage but the court could not sua sponte address the issue of marriage being a FR if it was not brought up in front of the court Zablocki v. Redhail (1978) Wisconsin statute provided that any person with child support obligations had to get the permission of a court to marry and such persons could not be granted permission unless proof of compliance with the support was provided and the children were not likely to become public charges. Redhail sues under EP as he was unable to get permission to marry anywhere since he was a resident of Wisconsin The Respondent has an out-of-wedlock minor daughter when he was in high school, for whom he is under a court order to provide monetary support for $109 per month. The Respondent has been unemployed for long periods of time and at the time of the suit is over $3,700 behind in his support payments. The Respondent's marriage license of September 27, 1974 was denied on grounds that he did not procure a court order granting explicit permission for the marriage to proceed. It is uncontested that the Respondent could not receive such an order because of statutory limitations and his arrearages in child support. Holding: the court found the statute unconstitutional as the right to marry is a FR that cannot be infringed upon without a compelling government interest which is narrowly tailored to effectuate those interests and it must be in the least restrictive way o The state argues it is an opportunity to counsel the one owing child support and for the welfare of the child o The SC rejects that argument as the means unnecessarily impinge on the right to marry and the three prong test of strict scrutiny was not met Justice Thurgood Marshall (J. Marshall) wrote for the majority. He cites precedent that marriage is a fundamental right and that the classification at issue significantly interferes with the exercise of the right. Because of this, the State must show a compelling interest in the interference and show that the means chosen to do so are sufficiently related to the interest. The challenged statute was originally to be a counseling device, requiring individuals with support obligations to children from previous relationships to be counseled before entering into a new marriage and perhaps incurring other support obligations. The court was then to give automatic permission for the marriage. However, this does not resemble the enacted statute.

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The statute as enacted is supposed to aid in collection of child support. In the case of individuals unable to meet the requirements, no money is given to the supported children, but the right to marry is withheld from the individual. As such, the statute does not add any new collection devices. Because of the broad infringement of the statute, the means are not sufficiently related to the government interest advanced. Concurrence. Justice Potter Stewart (J. Stewart) concurred in the judgment, but believe that rather than invalidating the statute on Equal Protection grounds, the Supreme Court of the United States (Supreme Court) should have invalidated it as an impermissible regulation of marriage that invades the sphere of liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Constitution doesnt mention freedom to marry, but liberty, which is protected by the Due Process Clause of the 14th Amendment embraces more than what is enumerated in the Bill of Rights. Law makes no means for indigent to marry. Dissent. Justice William Rehnquist (J. Rehnquist) argues that marriage is not such a fundamental right as to trigger strictest scrutiny. He rather argues for rational basis review. J. Rehnquist argues that the statute at bar passes rational basis review. Analysis: o The court must 1st declare the right to marry is a FR in this case, the court declares the right to marry is a FR o Then the court must establish if the FR was infringed o And then the court uses strict scrutiny to see if the state met their burden in this case they did not The majority opinion focuses on two classes: Wisconsin residents without obligations to noncustodial, dependent minor children and Wisconsin residents with support obligations toward such children. J. Stewart's concurrence does not view the case as one of discriminatory classifications, but one of unwarranted state intrusion into private matters of citizens. J. Rehnquist argues that marriage is not a fundamental right and thus Wisconsin is not producing a discriminatory class or intruding into personal liberties. Why cant homosexuals take this to court when being denied a right to marry? -our society is not ready to take that step -must assume being gay is not a choice -in the next 10 years, gay marriage will probably be allowed Case discussed Boddie v. Conneticut, where paying of court cost and filing fees violated due process rights. The right to custody of ones children: Stanley v. Illinois (1972) Joan and Peter lived together for 18 years during which they had three children and were not married. Joan died and Peter lost custody because an Illinois law gives children to the state if the mother dies and there is an unwed father. Stanley sues under EP. Peter asserted the fact that he has never been deemed an unfit parent and has always remained with his children. Ill. Supreme court found against Stanley. States argument: doesnt make a difference if found to be unfit, unmarried men are presumed unfit under the law. Misc: o

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Rationale: Meyer v. Nebraska(1923),(ability to raise ones children is essential) Skinner v. Okalahoma(1942)(basic civil rights of a man) Prince v. Massachusetts(1944) (custody, care, nurture and preparation for future obligations for parents to do for children.) Neglectful parents should be separated from their children, but the state has no interest in separating fit parents from their children. No state gain towards goals in this case. Overly inclusive means to the ends, and the ends are not defensible. Although presumption is cheaper and easier than individualized determination, here it impermissibly forecloses the determinative issues of competence and care and hinders the interest of both parent and child. Holding: the court found the law was unconstitutional as there was no evidence of him being unfit as Illinois had no due process established to even show he was unfit to have custody of the children o There is a FR that one has custody to ones children o There must be due process in order to take away a FR Michael H. v. Gerald D (1989) California had an irrebuttable presumption that a child born to a married woman living with a husband who is neither impotent or sterile, is the child of that marriage. Michael H brought suit to establish paternity and visitation rights with his biological daughter (through an adulterous affair) and sued under EP Facts: On May 9, 1976, in Las Vegas, Carold D. and international model, and Gerald D., a top executive in a French oil company, were married. The couple live in Playa del Rey, California, when one or the other was not out of the country. The situation at bar is sordid and convoluted. In short, a neighbor, Michael H. impregnated Carole D. while she was still married and living with Gerald D, while he was away on business. The child born from their encounter, Victoria D., has Gerald D. recorded as her father on her birth certificate. Carole and Gerald, commencing with the child's birth, held Victoria out publicly as their own offspring. However, Gerald moved to N.Y. for business then DNA tests show that Michael H. is over 98% certainly Victoria's biological father. While Carole D. and Gerald D. were separated, Carole and Victoria visited Michael H in St. Thomas. Carole then went back to California and cohabited with yet another man, Scott K, in the spring and summer, while also visiting Gerald D in N.Y. Carole returned to Scott in the fall. 11/82 Carole rebuffed Michaels attempts to visit Victoria and Michael filed suit. A guardian ad litem was appointed to for Victoria. Victoria file a cross complaint stating she had more than one psychological or de facto father. 3-7/83 Carole again lived with Gerald in N.Y. Carole moved back to California in August of 83 and Michael H. and Carole D. lived together with Victoria D. and held her out publicly as their child for 8 months. In 4/84 Carole and Michael signed stipulations to Victorias being Michaels child but Carole left Michael the next month and instructed the lawyer not to file the paperwork. Victoria files for visitation for Michael. Carole D. has cohabitated with Scott K. Michael H. Back with Gerald D., now sues for parental rights over Victoria D. California's paternity laws conclusively presume that the issue (child) of a wife cohabiting with her non-impotent or sterile husband is a child of the marriage. This presumption may only be challenged by the husband or wife within the first two years of marriage. They now have 2 more kids under the marriage. A blood test conducted in 1981, the year of the child's birth, had shown the putative father's paternity by a probability of more than 98 percent, but the mother had never made a motion for this blood test in court. In 1985, having found sufficient evidence that the mother and her husband had been cohabiting at the child's conception and birth and that the husband was neither sterile nor impotent, the Superior Court granted the husband's motion for summary judgment and rejected challenges by the putative father and the child to the constitutionality

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of the statute. The Superior Court also denied motions by the putative father and the child for continued visitation pending an appeal, under a second California statute which provided that reasonable visitation rights may be granted to any person, other than a parent, having an interest in the child's welfare. The California Court of Appeal, Second District, affirming, held that (1) the conclusive presumption statute did not violate the rights of the putative father or the child under the due process clause of the Federal Constitution's Fourteenth Amendment, (2) the statute did not violate the child's rights under the Fourteenth Amendment's equal protection clause, and (3) the Superior Court had impliedly determined not only that the husband was the child's presumed father, but that the putative father was not entitled to any visitation rights under the second statute. Issue. Do California's paternity statutes deprive Michael H. of a fundamental right to have parental contact with his child? Holding: Justice Scalia the court found the presumption constitutional as the right to marry is rooted in history and tradition and fundamentally unmarried fathers were not protected as unmarried fathers change the family unit o The plaintiff argues Stanley, which established a liberty interest o The state argues there is not a sufficient interest as it is not a FR o The SC limited the rights of unmarried fathers and protected the family unit through a public policy stand point (best interest of the child and judicial economy) Justice Antonin Scalia (J. Scalia) refutes Michael H.'s contention that biological fatherhood and an existing parent-child relationship entitle him to prove paternity of Victoria D. Specifically, J. Scalia notes that there is no established tradition of allowing a unitary family to be dissolved by a third party judicially without their consent. (1) the putative father's procedural due process claim failed, because the statute, although phrased in terms of a presumption, was the implementation of a substantive rule of law; (2) the putative father's substantive due process claim failed, because the power of a natural father to claim paternity of a child born into a woman's existing marriage with another man, and to assert parental rights over such a child, is not so deeply embedded within society's traditions as to be a fundamental right qualifying as a liberty interest; (3) in determining whether a due process liberty interest exists with regard to an asserted right, the inquiry focuses on whether the most specific relevant societal tradition that can be identified protects such a right; (4) the child had no due process right to maintain filial relationships with both her putative father and her mother's husband, or with her putative father regardless of her relationship with her mother's husband, and (5) the statute did not violate the child's equal protection rights insofar as the statute denied the child, unlike her mother and her mother's husband, the opportunity to rebut the presumption of paternity, because under the "rational relationship" test, which was the appropriate standard of scrutiny, the state's decision to treat the child differently from her mother and her mother's husband pursued a legitimate end by rational means. Dissent. Justice William Brennan (J. Brennan) dissents, viewing the majority's insistence on the rights of the State to preserve the unitary family as singularly incongruent to the current case. There is little or no resemblance to a traditional unitary family in the relationships carried on by Carole D., Gerald D., and Michael H.. J. Brennan further asserts that such state of affairs is more common than the majority wishes to admit. Misc: o P. Diddy and Kim scenario with father Al B.

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The right to keep the family together: This right has two limitations (1) must be relatives and (2) no liberty for foster parents Moore v. City of East Cleveland, Ohio (1977) Justice Powell with Brennan, Marshall, Blackmun: The City of East Cleveland had in effect an ordinance which limited the occupancy of certain dwellings to a single family and defined single family and other classifications. Ohio told her she had to evict her grandson or else be held criminally liable without a hearing to explain her situation. East Cleveland's housing ordinances restrict occupancy of certain dwellings to single family units. The ordinance in question, however, recognizes only a few categories of related individuals as a "single family." At the time of the complaint the Petitioner, lived in East Cleveland with her son and two of her grandsons, who were cousins, rather than brothers. Her living situation did not match one of the statutory definitions of single family. She was charged and sentenced to pay a $25 fine and spend 5 days in jail. Citys argument: Means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Clevelands school system. Holding: the court found the statute unconstitutional as the right to keep the family together (a choice of family members living together) is a FR that cannot be infringed upon without due process o The state argues the Village of Belle Terre but it was distinguished o The SC rejects that argument as there was no sufficient purpose to the statute the substantive due process right to live together as a family did not extend only to the nuclear family, since the Constitution's protection of the sanctity of the family was deeply rooted in the nation's history and tradition, and since such tradition was not limited to respect for the bonds uniting the members of the nuclear family, but extended as well to the sharing of their household with uncles, aunts, cousins, and especially grandparents. Justice Lewis Powell (J. Powell) notes that municipalities generally have a broad ability to enforce single-family housing ordinances against groups of individuals living together where there is no relation by blood, adoption, or marriage. However, the tradition of having family members live with others in their extended family is long and representative of the basic values underlying our society. As such, the decision to move in with extended family or move extended family in with ones nuclear family may be regarded as a fundamental right. J. Powell argues the State has no compelling interest in restricting the definition of a single family in such a manner as to exclude combinations of close blood relations.

Dissent. Justice Potter Stewart (J. Stewart) argues that the line of cases restricting definitions of single families focuses not so much on blood relation, but rather the ability to have children and to raise them in the manner one deems proper. The City ordinance does not affect the Petitioner's right to do any of these. Not for the court to rewrite the ordinances or substitute Courts judgment for that of prosecutor who initiated the litigation Misc: o In Virginia today, there are statutes that two unrelated same sex people cannot buy a house together which discriminates against gays but this is ok?

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The right of Parents to Control the Upbringing of their children Meyer v. Nebraska (1923) Nebraska had a state law prohibiting teaching in any language other than English in public schools. Statute: "Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language. "Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides. "Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense. Facts: Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an information which charged that on May 25, 1920, while an instructor in Zion Parochial School, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained [*397] and successfully passed the eighth grade. The information is based upon "An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919 Rationale: The statute, as construed by the Supreme Court of Nebraska, is prohibitive, not regulatory of a legitimate vocation. The liberty guaranteed by the 14th Amendment to the Federal Constitution denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The liberty protected by the 14th Amendment to the Federal Constitution may not be interfered with, under the guise of protecting the public interests, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to Holding: the court found the statute unconstitutional and invalidated the law by using substantive due process (Lochner era) and finding that the statute violated the right of parents to make decisions for their children o There is a FR to control the upbringing of your children and a state cannot interfere with that right to have his/her child study a foreign language Justice James McReynolds (J. McReynolds) notes that "mere knowledge of the German language cannot be reasonably regarded as harmful." As such, it is difficult to ascertain why the Respondent should so influence the educational opportunities of the children of the State and interfere with parental choice of educational experiences. Discussion. J. McReynolds notes that the justification for the statute was most likely antiGerman sentiment following the First World War. He also suggests that the statute may not be unconstitutional in wartime, when the State's interest in fostering a homogeneous population with "American ideals," is far greater than during peacetime. Meyer is clearly indicative of jurisprudence prior to the development of the fundamental right/compelling state interest/substantial relation analysis of the current Supreme Court of the United States (Supreme Court).

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Pierce v. Society of Sisters (1925) Oregon had a state law requiring children aged 8-16 to attend public schools for the period of time public school shall be held or be faced with a misdemeanor. A private school owner sued under substantive due process. Appellees asserted that their enrollments were declining as a result of the Act. The district court entered an order enjoining appellants from enforcing the Act and appellants sought review in consolidated appeals. The court affirmed, ruling that the inevitable practical result of enforcing the Act was the destruction of appellees' primary schools and perhaps all other private primary schools for normal children within the state. The Act unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of their children. Although appellees were corporations, they could claim constitutional protection for their business and property. They sought protection against a present and real threat of injury from the arbitrary, unreasonable, and unlawful interference with their patrons and injunctive relief was proper. Rationale: Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Holding: the court found the statute unconstitutional as there was no reasonable relation to some state purpose o The SC held that forcing a child to go to public schools unreasonably interfered with the liberties of parents and guardians in the upbringing of their children under their control Analysis: o The 9th amendment encompasses the FR to control your childs upbringing and there must be a process in place if the state is going to regulate it to give adequate notice o The court recognized the right to make parental decisions is not absolute and can be interfered with by the state if necessary to protect a child, however great deference is given to the parents Prince v. Massachusetts, 321 U.S. 158 (1944). 9 year old girl soliciting for Jehovahs witnesses at the direction of her parents and the Court upheld the application of child labor laws. There are some private realm of family life which the state cannot enter. Family itself is not beyond regulation. Acting to guard the interest in youths well being, the state as parens patriae may restrict the parents control by requiring school attendance, regulating or prohibiting the childs labor and in many other ways. Need to protect children from being exploited is important even in the face of the parents direction being for religious purposes. Wisconsin v. Yoder, 406 U.S. 205 (1972). Court held that Amish parents had a constitutional right, based on their right to control the upbringing of their children and based on free exercise of religion, to exempt their 14 and 15 year old children from a compulsory school attendance law. Free exercise clause of the 1st Amendment and traditional interest of parents with respect to the religious upbringing of their children trumped the states interest in universal education. Gave weight to claim that additional education would threaten their childrens religious beliefs and to the uniquely insulated nature of the Amish culture. No evidence of harm to children.

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Parnham v. J.R., 442 U.S. 584 (1979). Procedural due process for children when parents commit them to an institution. Parents presumed to act in childs interest. Just need a neutral fact finding 3rd party or physician to screen the child. Recognized that some parents may abuse this power but cannot make laws based upon what some might do. Troxel v. Granville (2000) Washington statute permitted any person to petition for visitation rights if it was in the best interest of the child. Grandparents wanted more visitation rights than the plaintiff was giving so brought suit. Facts: The Respondent and Brad Troxel (Mr. Troxel) had a relationship that lasted some years and produced two daughters, but the couple never married. Two years after they separated, Mr. Troxel committed suicide. In the time between their separation and his suicide, Mr. Troxel often brought Isabelle Troxel and Natalie Troxel to his parents', Jennifer and Gary Troxels house. After Mr. Troxel's suicide, his parents wanted to continue to have a relationship with their granddaughters. However, the Respondent's opinion of appropriate visitation times and durations differed from the grandparents'. The Troxels wanted 2 weekends per month and 2 full weeks in the summer, while Tommie Granville offered 1 short visit per month. So, under the Washington statute authorizing suit for visitation rights by any party, the grandparents asked for a judicial determination in the best interest of the children. Holding: Justice Sandra Day O'Connor (J. O'Connor) reiterated that the raising of a child is one of the most fundamental of all protected liberties. Because of this, the state must prove the existence of a compelling interest for the statute. J. O'Connor points out two important issues: (1) the statute does not require the court to afford any special weight to the parent's decisions regarding the child and (2) there is no determination that the parent is an unfit guardian. This latter point is most important, as there is a presumption that fit parents act in the best interests of their children. Because of this, when the trial court reviewed the suit it gave no special consideration to the Respondent's concept of the best interest of her children. The court found the statute unconstitutional as the statute was too broad and it infringed on the parents rights to the care, custody, and control of her children o The SC rejects that claim as there was no evidence of the mother being an unfit parent nor was it not in the best interests of the children Anaylsis: o This was a plurality opinion which did more to confuse the law in areas of grandparents rights laws o All 50 states have grandparent rights laws because nowadays sometimes it is in the best interest of the child to stay with the grandparents Justice Thomas, concurring: I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day. Courts recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Pierce v. Society of Sisters, (1925) parents have fundamental constitutional right to rear their children. Justice David Souter (J. Souter) Concurring: argues that the statute is facially unconstitutional as it too broadly allows anyone to sue for visitation rights at any time. Justice Antonin Scalia (J. Scalia) Dissenting: argues that the Court should not be deciding questions of family law, but rather the legislature.

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Justice Stevens Dissenting: Justice John Paul Stevens (J. Stevens) believes the case should have been denied certiorari, as the Washington Supreme Court struck down the statute itself. State just needed to draft a better statute. Justice Kennedy Dissenting: Court should remand back to the state because of error in using the harm to the child standard and the best interest of the child standard considered never being appropriate in 3rd party visitation cases. Recap: There are Fundament Rights to: o Right to Marry (Zablocki) o Right to Custody of Ones Children -and it cannot be infringed upon without a showing of unfitness through some due process (Stanley) -but irrebuttable presumptions are allowed to protect the family unit (Michael H.) o Right to Keep the Family Together (Moore) o Right of Parents to Control the Upbringing of their Children (Meyer) -great deference is given to the parents but the state may have reason to step in when its in the best interest of the child (Prince child labor laws) - grandparents do not have FR to children but many states have enacted laws to give them rights Analysis: 1. Is there a fundamental right? 2. Is the constitutional right infringed? 3. What level of scrutiny should be used? 4. Is there sufficient justification for the governments infringement of a right? 5. Is the means sufficiently related to the purpose? The Right to procreate: Buck v. Bell (1927) Virginia had an act which allowed in some cases to promote sterilization of patients for public welfare and Carrie Buck was sterilized while in an institution. Facts: Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, &c.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c. The statute then enacts that whenever the superintendent of certain institutions including the above named State Colony shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, &c., on complying with the very careful provisions by which the act protects the patients from possible abuse.

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Holding: the court found the statute constitutional and said three generations of imbeciles are enough o The state argues public welfare and safety and the SC ordered the sterilization Misc: o Do parents have the right to sterilize their mentally disabled children? Case never overruled but Skinner v. Oklahoma implicitly does so. Carrie Buck was found alive and of normal intelligence in 1980, living with her sister who had also been one of the 20k others that were sterilized in the U.S. by 1935. Skinner v. Oklahoma (1942) Oklahoma had a Habitual Criminal Sterilization Act that allowed courts to order the sterilization of those convicted two or more times for crimes involving moral turpitude Skinner brings this suit to court on the basis of EP as it discriminates. Facts: The Petitioner had been twice arrested for theft offenses before being arrested and confined for armed robbery. During his third incarceration, the Act was passed and proceedings were instituted against him. Holding: Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders in no way guarantees that new offenders will not be born. Furthermore, there is no guarantee that habitual offenders would spawn offenders themselves. . Douglas cannot justify the distinction between larceny (involving moral turpitude) and embezzlement (not involving moral turpitude) in the eyes of the statute. This is clear discrimination in J. Douglas's view. In terms of fines and imprisonment the crimes are identical to the State. Only when it comes to sterilization do the crimes differ. As such, equal protection is violated. The court found the statute unconstitutional and declared the right to procreate was a FR that had to meet strict scrutiny if governments wanted to involuntarily sterilize people o The court implicitly overruled Buck v. Bell by recognizing the FR to procreate o The state could not meet the burdens of strict scrutiny and therefore the statute was invalid Analysis: o There is a strand of privacy rights within a penumbra of rights of the 9th amendment o Implicit in the right to procreate is the right not to procreate Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his decision on due process grounds, arguing that the invasion of personal liberty is too great. The right to purchase and use contraceptives: Griswold v. Connecticut (1965) Connecticut had a statute that prohibited the use and distribution of contraceptives and made it a crime to assist, or counsel a violation of the law. Griswold is a planned parenthood director which sued under the due process of the 14th amendment, in response to his arrest for operating the New Haven clinc from Nov. 1- 10th. They gave information, instruction, and medical advice to married persons as to the means of preventing conception. Holding: Justice William Douglas (J. Douglas) describes the "penumbras[] formed by emanations from specific guarantees of the Bill of Rights." In particular, he describes the fact that the State cannot "contract the spectrum of available knowledge" consistent with the First Amendment of the United States Constitution (Constitution). He also describes the rights to "privacy and repose" suggested by many of the Amendments in the Bill of Rights. J. Douglas suggests that the marital relationship lies at the center of such a zone of privacy. As the law

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prohibits the use of contraceptives, rather than their manufacture or sale, the law is aimed at the core of the marital relationship. He argues that this is too broad a sweep to be a constitutional exercise of state authority. The court found the statute unconstitutional as it was not narrowly tailored and unnecessarily broad o The plaintiff argued that the right to contraceptives is a private matter and was protected o The state argues it discourages extra-marital relations and health reasons o The SC says that right of privacy is implied through a penumbra of the BoR that cannot be invaded by the government absent showing a compelling government interest Analysis: o The court uses the marital relationship to show a right of privacy existed and it was a violation of their marital privacy o The penumbra approach is ultimately a due process analysis Concurrence: Justice John Marshall Harlan (J. Marshall) argues that the statute should be overturned on Due Process grounds, as the enactment violates "basic values 'implicit in the concept of ordered liberty.'" Justice Byron White (J. White) concurs on due process grounds, believing that the purpose of the statute is to enforce policies disfavoring illicit sexual contact. He notes that denying married couples the right to contraception in no way strengthens that policy. Justice Arthur Goldberg (J. Goldberg) believes that the Ninth Amendment of the United States Constitution (Constitution) guarantees that the marital relation is a right retained by the people, and as such, Connecticut does not have the constitutional authority to abridge that relationship. Dissent. Justices Hugo Black (J. Black) and Potter Stewart (J. Stewart) dissented. They admit they find the Connecticut statute offensive, but believe that unless there is a specific constitutional provision otherwise, the remedy for such legislation is through the political branches, not the judiciary. Eisenstadt v. Baird (1972) Massachusetts law prohibited distributing contraceptives to unmarried individuals and it only allowed physicians to distribute them to married persons. A lecturer, Baird at BU gave away contraceptive foam and exhibited contraceptives at a lecture and was charged. He filed suit under EP as a violated of his FR to access contraceptives ]Massachusetts General Laws Ann., c. 272, 21, under which Baird was convicted, provides a maximum five-year term of imprisonment for "whoever . . . gives away . . . any drug, medicine, instrument or article whatever for the prevention of conception," except as authorized in 21A. Under 21A, "[a] registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. [And a] registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician." 2 As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of 21A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees -- first, married

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persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease. Synopsis of Rule of Law. The State may not discriminate between married and unmarried individuals in prohibiting the distribution of contraception. Holding: the court found the statute unconstitutional and declared the right of privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person o The state argues deterrence of premarital sex o The SC extended privacy to everyone and the state did not meet strict scrutiny Analysis: o This case expands Griswold to hold that a woman has a right to determine if she wants to bear children; the case connects Griswold to Roe o Under the right to privacy is the right to procreate and the right not to procreate/right to use contraceptives Justice William Brennan (J. Brennan) notes that "if the right to privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Dissent. Chief Justice William Burger (J. Berger) argues that there is nothing in the Fourteenth Amendment of the United States Constitution (Constitution) that suggests birth control must be made available on the open market. Powell and Rehnquist, JJ., did not participate. Discussion. A right to privacy is again recognized in Eisenstadt. Here, the right to contraception is extended to unmarried individuals, as well. Carey v. Population Services International (1977) Declared unconstitutional, a N.Y. law that made it a crime to sell or distribute contraceptives to minors under age 16; for anyone other than a licensed pharmacist to distribute contraceptives to persons over age 15; and for anyone to advertise or display contraceptives. The court decided that the decision to bear a child is at the very heart of this cluster of constitutionally protected choices. The right to abortion: Roe v. Wade (1973) Texas penal code made it a crime to obtain an abortion unless it was necessary to save the life of the mother. Jane Roe challenged the statute arguing that the law improperly infringed upon a womans right to obtain an abortion whenever she so desired Holding: the court found the statute unconstitutional and swept too broadly violating the 14th amendments right to abortion o Even though Roe had her baby, this was not moot because it was an issue capable of repeating itself

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The state argues discouraging illicit sex, health and safety of mother, health and safety of potential life o While the state interests were valid, they did not meet the level of strict scrutiny needed to infringe upon a womens right to abortion Justice William Brennan (J. Brennan) produced a continuum. He begins by noting that a statute, which only excepts from criminality those abortions designed to save the mother's life is unconstitutional. o Prior to the end of the first trimester, only the pregnant woman and her physician may make decisions regarding the termination of a pregnancy. During the second trimester, the state may regulate abortion in manners reasonably related to maternal health. During the third trimester, the state may even prohibit all abortion procedures, except where the life or health of the mother is at risk. Analysis: o The court used a trimester approach to rule that a states interest becomes compelling when the woman reaches term or when the fetus is viable o Pre-viability strict scrutiny review but post-viability rational basis review Dissent. Justice William Rehnquist (J. Rehnquist) dissents, largely arguing that the threetrimester approach offered by the majority speaks more of judicial legislation than constitutional analysis. Discussion. The right to privacy is extended further again. Roe is the central case involving a woman's right to terminate a pregnancy. Roe's three-trimester approach is no longer used by federal courts in analyzing abortion legislation, but rather a more fluid approach outlined in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Planned Parenthood v. Casey (1992) Pennsylvania enacted the Abortion Control Act, which required a woman must provide informed consent, have a 24 hour waiting period, informed consent from parents if a minor, married woman must notify their husbands, and facilities must meet recording requirements. Holding: the court found that the state can regulate and place restrictions on abortion so long as those regulations do not impose an undue burden on the womans ability to make the abortion decision o This reaffirms Roe but overrules the trimester approach and implements the undue burden approach the states regulations must not put an undue burden/substantial obstacle on a womans right to abortion o The SC upheld the informed consent, 24 hour waiting period, and the facility record keeping but invalidated the spousal notification requirement Analysis: o This was not an equity decision but a decision at law; there were enough conservatives to overrule Roe but they did not and OConnor gave the 5-4 opinion (conservative woman) o The woman carries the baby, so its the womans choice as it is a part of her and not the mans

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o o o o Court compared right to the right to vote and said that not every law that made exercising the right more difficult is ipso facto, an infringement of the right. State is supposed to inform the woman of her free choice, not hinder it, and unless it has that effect on her right of choice, a state measure designed to persuade her to choose child birth over abortion will be upheld if reasonably related to that goal. Woman has the right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.

o Justices Sandra Day O'Connor (J. O'Connor), Anthony Kennedy (J. Kennedy), and David Souter (J. Souter) wrote for the Supreme Court of the United States (Supreme Court), noting that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." J. O'Connor, J. Kennedy, and J. Souter note that any reservations the Suprem Court has in reaffirming Roe are overcome by the force of stare decisis. In particular, "[n]o evolution of legal principle has left Roe's central doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking." "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Because the State has an interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed, as long as those measures do note unduly overburden a woman's right. Unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Concurrence. Justice Harry Blackmun (J. Blackmun) writes in large part to display his worry that Roe will be overturned when he steps down from the Court. Dissent: Chief Justice William Rehnquist (J. Rehnquist) states that he believes Roe was improperly decided and tradition requires the Supreme Court to overturn the holding. Justice Antonin Scalia (J. Scalia) believes Roe was improperly decided, as abortion should be debated at the political level, not decided by the courts. States may permit abortion but the Constitution doesnt require them to. Compared abortion to bigamy. If the Constitution guarantees abortion, how can it be bad? Discussion. The majority takes down the rigid trimester outline of Roe and focuses more clearly on the issue of viability. The concurrence and dissents discuss openly their hopes or fears that a change in the Supreme Court's composition will open the door to overturn Roe.

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Government Regulation on Abortion: Gonzalez v. Carhart (2007) The Partial-Birth Abortion Ban Act of 2003 (18 U.S.C.S. 1531) (1) in 1531(a), prohibited "knowingly perform[ing] a partial-birth abortion . . . that is [not] necessary to save the life of a mother"; and (2) in 1531(b)(1), defined "partial-birth abortion" as a procedure in which a physician "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother's] body . . ., or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother's] body . . ., for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus," and "(B) performs the overt act, other than completion of delivery, that kills the fetus." Thus, the Act did not prohibit (1) the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions took place; or (2) the usual second-trimester procedure, "dilation and evacuation" (D&E), in which (a) a physician dilated the cervix and then inserted surgical instruments into the uterus and maneuvered them to grab the fetus and pull it back through the cervix and vagina, (b) the fetus was usually ripped apart as it was removed, and (c) the physician might take 10 to 15 passes to remove the entire fetus. This act proscribed a particular method of ending fetal life in the later stages of pregnancy which would ban most late-term abortions and be an undue burden on womens FR Prohibited: However, the Act prohibited a D&E variation referred to as, among other terms, "intact D&E," in which a physician (1) extracted the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart; and (2) in order to allow the head to pass through the cervix, typically pierced or crushed the skull. In one case, some physicians who performed second-trimester abortions brought, against the Attorney General of the United States in the United States District Court for the District of Nebraska, a suit that facially challenged the federal constitutionality of the Act. The District Court granted a permanent injunction prohibiting the Attorney General from enforcing the Act in all cases but those in which there was no dispute that the fetus was viable. The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment. In another case, a national abortion-rights advocacy organization and one of its local affiliates brought, against the Attorney General in the United States District Court for the Northern District of California, a suit that also facially challenged the Act. After a city intervened as a plaintiff, the District Court enjoined the Attorney General from enforcing the Act. The United States Court of Appeals for the Ninth Circuit affirmed the District Court's judgment Holding: the court found the statute constitutional as it did not place an undue burden on woman o The plaintiffs used Steinberg to try and show the partial births were invalid o The SC distinguished the two cases as the language of both of the acts were different Analysis: o The court held that (1) the acts prohibition on intact dilation and D&E evacuation procedures is not void for vagueness, (2) it is not too broadly swept, (3) the act does not impose a substantial obstacle on women, (4) the act furthers a legislative congressional purpose as this was a federal statute, and (5) absent a health exception, the act was not facially unconstitutional because there was an alternative to partial birth abortions D&E method o D&E vs. intact abortions; go inside and dismember vs. taking out and might deliver a live baby that the doctor would have to commit homicide

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Government Restrictions on Funds and Facilities for Abortions: Maher v. Roe (1977) Connecticut Welfare Department limits state Medicaid benefits for 1st trimester abortions to those that are medically necessary. The claim is EP but wealth is not a suspect class, therefore it is a rational basis approach. Holding: the court found the statute constitutional as the regulation did not impinge upon the FR recognized in Roe (the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate) o The plaintiffs argue it is a denial to indignant woman o The state argues economics and meets rational basis review Analysis: o The SC upheld the ability of the state government to deny funding for abortions and allowed Connecticut to legislate morality o The state pays for child birth, but wont pay for abortions o If you dont have the money, then you dont have that right but in the end it will probably cost the state more o The Court held that the law places no restrictions on the right to an abortion. The law leaves a woman in no different a place than before the law was passed. Harris v. McRae (1980) The US Medicaid Act has a Hyde Amendment which denies public funding for abortions except where necessary to save the life of the mother. The State Welfare Department limits funding for first trimester abortions to those abortions that are "medically necessary." Indigent women brought suit, claiming that the statute denies them their constitutional right to an abortion. Synopsis of Rule of Law. The Supreme Court of the United States (Supreme Court) should not decide legislative policy. Issue. May Connecticut regulate funding for abortions in a manner that discriminates against the individuals having non-therapeutic abortions? Holding: the court found the statute constitutional and the Hyde Amendment does not impinge on the FR o The plaintiffs argue that by restricting the funds, this places an undue burden on women o The state argues Maher Analysis: o The court uses Maher reasoning of although the federal government may not place obstacles in the path of a womans exercise of her freedom of choice, it need not remove those not of its own creation (indigence) Justice Lewis Powell (J. Powell) notes that there is no "constitutional right to an abortion." Rather there is a constitutional right to have the government not unreasonably interfere with a woman's decision to have an abortion. Connecticut may make childbirth a more attractive option for the indigent by paying for a pregnancy taken to term, but the state has put no obstacle in the way of an indigent woman procuring an abortion. The Supreme Court is in no position to review the State's policy choice.

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Dissent. Justice William Brennan (J. Brennan) believes that the State is forcing women to carry children to term and thus is making reproductive decisions for the women. Understanding the majority opinion, one must understand that indigent woman have no funding for an abortion whether or not the State denies funding. As such, the State is not putting obstacles in the way of indigent women wanting abortion services. Spousal Consent and Notice Requirements: Planned Parenthood v. Danforth (1976) A Missouri law requires the prior written consent of the spouse of a woman seeking an abortion during the first 12 weeks of pregnancy, unless the abortion is deemed medically necessary in order to preserve the life of the mother. Holding: the court found the statute unconstitutional as spousal consent would be an undue burden on the womans right to an abortion o If the state cannot prohibit the wife from terminating her pregnancy, then the state cannot give that right to someone else Analysis: o The court reasoned that if one spouse unilaterally should make the decision, it should be the one bearing the child as it is a part of her The Court held that the state may not constitutionally require the consent of the spouse as a condition for abortion during the first 12 weeks. The state cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy. Planned Parenthood v. Casey (1992) Pennsylvanias abortion law provided that before an abortion could be performed, the physician had to obtain a signed statement that the woman informed her spouse of the termination. Pennsylvania amended the Act to require, among other things, that a woman give informed consent at least 24 hours before the procedure, that a minor have at least one parent give consent (although there is a judicial bypass option for minors), and that a married woman must sign a statement saying she has notified her husband of the procedure. Synopsis of Rule of Law. Spousal notification presents an unconstitutionally substantial obstacle to a woman's right to choose to have an abortion. Holding: the court found the statute unconstitutional as spousal consent is a substantial obstacle on the womans right to an abortion o The state cannot require a married woman to notify her spouse of her intent to obtain an abortion o The court used Danforth to invalidate the statute o The Court stated that women do not lose their rights when they marry. Justice Sandra Day O'Connor (J. O'Connor) argues that in well-functioning marriages, spouses would communicate on issues as great as having an abortion. However, in a dysfunctional marriage, there is a higher probability that a wife would not want to disclose the unwanted pregnancy to the husband. As such, the statute presents a substantial obstacle to a woman's right to choose. O'Connor also suggests that the statute represents a view of marriage

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reflecting the common-law view of women's status in marriage, which is repugnant to our current view of marriage. Concurrence. Justice John Paul Stevens (J. Stevens) concurs with the majority opinion, but writes separately to voice concern that there are not concrete guidelines for the judges standing over a request for consent for an abortion. Dissent. Chief Justice William Rehnquist (J. Rehnquist) argues that the statute should not be unconstitutional simply because the statute will be unnecessary in some cases or even counterproductive in some others. The Pennsylvania legislature was in a position to weigh the costs and benefits of the statute. Discussion. The basic rationale here is that the State cannot put substantial obstacles between a woman and the abortion decision. It can counsel to take a child to term, but it may not substantively hinder access to an abortion. Parental notice and consent requirements: Bellotti v. Baird (1979) Massachusetts had a law which prevented an unmarried woman under age 18 from receiving an abortion unless her parents consented or had the consent of a judge. Massachusetts required unmarried, minor women to obtain parental consent from both parents before allowing her to acquire an abortion. In the event that she was unwilling or unable to obtain such consent, she could petition in superior court for a determination that she is mature enough to make this decision, or even if she is not, the abortion is in her best interest. Synopsis of Rule of Law. A minor's right to an abortion may be conditioned on parental consent, as long as there is an alternative procedure provided by the State. Holding: the court found the statute constitutional as it did provide an alternative procedure whereby authorization for the abortion could be obtained o The plaintiffs argue the law unduly burdens the right of a minor to terminate her pregnancy o The state argues parental consultations is often desirable and in the best interest of the minor o The SC upheld the law as the states cannot give parents an absolute veto power over a minors decision to obtain an abortion Analysis: o The judicial bypass is the alternative and the court can give a minor permission to obtain an abortion if (1) its in the minors best interest or (2) the court decides the minor herself is mature enough to decide for herself o Justice Lewis Powell (J. Powell) argued that the rights of a woman to have an abortion must be balanced with the ability of parents to make decisions for their minor offspring. o The Supreme Court of the United States (Supreme Court) had previously held that an absolute parental veto over a minor's decision to terminate her pregnancy was unconstitutional. In the statute at bar, the State provides a "safety valve" of allowing a judicial determination instead of parental consent. Because the statute balances

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parental interest in raising their children with the unique situation of a pregnant minor seeking an abortion, the statute is constitutional. Discussion. The main point of Bellotti is the balancing of the interests of the minor woman in terminating the pregnancy and the parents in having the ability to raise their offspring. Recap: Before you can sue for a violation of the EP clause or violation of a FR, there needs to be STATE ACTION There are Fundamental Rights to: o The Right to Procreate (Skinner) o The Right to Purchase and Use Contraceptives (Griswold) -extended to single/unmarried people in Eisenstadt o The Right to Abortion -this is a qualified right because the state can put parameters on this right as long as it does not place an undue burden on the womans right to decide to terminate (Planned Parenthood v. Casey) -the state or federal government does not infringe on the FR if they do not pay for abortions or regulate the funding for abortions, even though a certain class of individuals is then denied the right (Maher; Harris) -there is no notification or consent requirement as this gives a veto power to someone else and this is an undue burden (Danforth) -when it comes to a minors right to abortion, it varies depending on state, but there has to be a judicial bypass alternative other than parental consent (Bellotti) Analysis: 1. Is there a fundamental right? 2. Is the constitutional right infringed? 3. What level of scrutiny should be used? 4. Is there sufficient justification for the governments infringement of a right? 5. Is the means sufficiently related to the purpose? Right to refuse medical treatment: Cruzan v. Director, Missouri Department of Health (1990) Rehnquist. Nancy Cruzan suffered severe head injuries in an automobile accident and was in a persistent vegetative state. There was virtually no chance of her regaining consciousness. Her parents wished to terminate food and hydration and thus to end her life. The state intervened to prevent this and asked for clear and convincing evidence of her wishes to die. Ms. Cruzan had a discussion with a friend who testified in court that she said she would not want to be on life support, but this was the only evidence of her personal wishes. Issue: Whether the U.S. Constitution forbids the establishment of Clear and Convincing Evidence, as a requirement prior to allowing a person to refuse medical care. Missouri rationale: Interest in the protection and preservation of human life. State declines to make quality of life judgments. Family argument: In absence of substantial proof of persons views, the state must accept the substituted judgment of close family members.

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Rationale: Jacobson v. Massachussets, (1990), infers an individuals liberty interest. It is an intermediate standard of proof used in deportation, denaturalization, civil commitment and termination of parental rights proceedings. Used when interest at stake are particularly important and more substantial than mere loss of money. State is only required to accept the decision of the patient herself. Holding: Chief Justice William Rehnquist (J. Rehnquist) notes that unwanted medical treatment is considered a battery at common law. Hence, it is clear that there must be a liberty interest to refuse medical treatment. However, the treatment must be unwanted by the patient. the court found the clear and convincing evidence procedural safeguard constitutional and it did not violate due process. Missouri is free to choose whether or not they will accept a surrogate for an incompetent's medical decisions, but they are free to establish the standard by which they do so. That is a legislative, not judicial choice. The SC declares the right to refuse medical treatment a FR and gives competent persons the right to accept or refuse life-saving medical treatment for themselves Analysis: o The clear and convincing evidence standard is an alternative if there is no direct knowledge or advance directive to state that he/she wants to refuse medical treatment o But the court did not say what clear and convincing evidence is nor declared what type of scrutiny should be used OConnor Concurring: Justice Sandra Day O'Connor (J. O'Connor) concurs, emphasizing that the Supreme Court of the United States (Supreme Court) did not have to decide whether a State must abide by the decisions of a medical surrogate. Agrees that a protected liberty interest in refusing unwanted medical treatment may be inferred from previous decisions. o Dissent. Justice William Brennan (J. Brennan) dissents, arguing that the State interest cannot outweigh Ms. Cruzan's liberty interest in having treatment withheld. Right to physician-assisted suicide: Washington v. Glusksburg (1997) Rehnquist. Washington law prohibited aiding in a suicide for physicians, even if they were terminally ill patients. The Respondents, Glucksberg and other physicians who treat terminally ill patients (Respondents) seek a declaration that a Washington law prohibiting assisted suicide is unconstitutional. Holding: Chief Justice William Rehnquist (J. Rehnquist) notes that suicide is criminalized in almost every State and every Western democracy. To hold for the Respondents would strike down hundreds of years of legal tradition. The Supreme Court of the United States (Supreme Court) had already established that there is a liberty interest in withholding unwanted medical treatment, even life support. However, in terms of suicide, there are several State interests against defining such a liberty interest: preserving human life, protecting the vulnerable and fear that this may start down the path toward involuntary euthanasia. Given that the State of Washington has compelling state interests in preventing assisted suicide, the means chosen are substantially related to that end. the court found the statute constitutional as it was rationally related to the states promotion and protection of life/involuntary euthanasia

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The plaintiffs asserts the existence of a liberty interest The SC uses history and traditions to uphold Washingtons ban on physician-assisted suicides Analysis: o There is NO FR under the 14th amendment to assist in suicide and therefore the default level of scrutiny is rational basis review Concurrence. o o Justice Sandra Day O'Connor (J. O'Connor) concurs, but does not reach the narrow question of whether a mentally competent patient may ask for assistance in taking his own life. This is because she finds no liberty interest in suicide in general. Justice John Paul Stevens (J. Stevens) concurs noting that although the Washington statute is not facially invalid, it does not foreclose the possibility that some applications of the statute might well be invalid. Justice Steven Breyer (J. Breyer) concurs with the decision, but wishes that the formulation of the right was not "the right to commit suicide with another's assistance," but a formulation similar to "the right to die with dignity." Discussion. The Supreme Court does not decide whether it is constitutional for a law permitting assisted suicide to exist; only that it is constitutional to pass a law prohibiting assisted suicide, as there is no constitutional guarantee to assisted suicide.

Vacco v. Quill (1997) *decided the same day as Washington (above) Rehnquist. NY law made it a crime to aid another to commit or attempt suicide, but patients may refuse life-saving treatment. Terminally ill patients sue under EP of the 14th amendment. 2nd Circuit found patients on life support were treated differently than those not and were allowed to hasten death by being taken off of life support. In 1994, an action was brought in the United States District Court for the Southern District of New York, by plaintiffs including three physicians who practiced in New York, against various New York public officials. The plaintiffs, who sought declaratory and injunctive relief against the enforcement of the criminal statutes, asserted that such statutes violated the equal protection clause of the Federal Constitution's Fourteenth Amendment as applied to physicians who assisted mentally competent, terminally ill adults who chose to hasten death, insofar as New York (1) sanctioned a patient's refusal of medical treatment, but (2) criminalized physician-assisted suicide. Issue: Whether N.Y.s prohibition on assisting suicide therefore violates the Equal Protection Clause of the 14th Amendment. Rationale: Holding: the court found the statute constitutional as it neither infringed on a FR nor involved a suspect classification so it was upheld under rational basis review o The court drew a clear distinction between assisting in suicide and withdrawing lifesaving medical treatment assisting in suicide is unconstitutional but refusing medical treatment is a FR o The courts decision emphasized the absence of constitutional limits on state laws, and thus some states enact their own laws protecting such a right for terminally ill patients Misc:

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o o o Is there really a difference between letting you starve to death when refusing medical treatment and giving you something to put you out of your misery? Hemlock Society advocates for rights to physician-assisted suicide and is involved in the choice in dying movement All 9 justices voted to uphold the law, but OConnor, Stevens, Souter, Ginsburg and Breyer indicated they may be willing to find the laws unconstitutional as applied in particular instances. May be different where suffering cannot be eliminated.

Constitutional protection for sexual orientation and sexual activity: In Bowers v. Hardwick (1986), the SC held that the right to privacy does not protect a right to engage in private consensual activity based on Georgia law and thus said no right to homosexuality but Bowers asked the wrong question. Bowers should have asked about privacy not homosexuality Lawrence v. Texas (2003) Texas had a statute prohibiting sodomy (any contact other than penis to vagina) and two male petitioners were arrested and prosecuted for engaging in a consensual sexual act Rationale: Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. Holding: the court found the statute unconstitutional and violated the due process clause of the 14th amendment o The statute furthered no state interest which could be justified by intrusion into the personal and private life of the individual o The SC overruled Bowers and used broad legal principles to justify its decision here o Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. Analysis: o The court knew they messed up and re-framed the question from Bowers to deal with privacy and not homosexuality o There is a FR of privacy with consenting adults (does not apply to minors) No, the statute is violative of the Due Process Clause of the Fourteenth Amendment of the Constitution. The Texas statute "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Yes. The Supreme Court of the United States ("Supreme Court") initially revisited its decision in [Bowers v. Hardwick], in which a Georgia statute criminalizing certain sexual conduct was upheld. Justice Anthony Kennedy ("J. Kennedy"), writing for the majority, began by criticizing the Supreme Court's framing of the issue in [Bowers], because it overlooked the extent of the liberty interest at stake. The Supreme Court in [Bowers] framed the issue as follows: "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." J. Kennedy observed, the statutes at issue in these cases "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Additionally, "[i]t suffices for [the majority] to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." No showing has been made that the United States Government has a legitimate or urgent interest in curbing this type of personal choice. J. Kennedy adopted Justice John Paul Steven's ("J. Stevens) dissenting opinion from [Bowers]. It read:

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[o]ur prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Concurrence. Justice Sandra Day O'Connor ("J. O'Connor") concurred in the judgment. However, instead of basing her opinion on the Fourteenth Amendment of the Constitution's Due Process Clause, she does so on the Equal Protection Clause in the Fourteenth Amendment of the Constitution. J. Kennedy, writing for the majority refused to base his decision on the Equal Protection Clause. J. No rationale basis when just use moral disapproval without any other state interest. O'Connor stressed the "Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction." Additionally, "Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. " Further, "[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Dissent. Justices Antonin Scalia ("J. Scalia), William Rehnquist ("J. Rehnquist") and Clarence Thomas (J. Thomas) dissented. The dissenting justices criticized the majority's application of the doctrine of stare decisis. Specifically, "[t]oday's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions; (2) it has been subject to "substantial and continuing" criticism; and (3) it has not induced "individual or societal reliance" that counsels against overturning." The dissenting justices then argue [Roe] satisfies this three-prong test. Court doesnt declare homosexual sodomy a fundamental right and doesnt use strict scrutiny, instead says homosexual sodomy is part of a liberty exercise and uses an unheard of form of rational basis review. J. Thomas also drafted his own dissent in addition to joining J. Scalia's. J. Thomas described the law before the court as "uncommonly silly" and recommended that the Texas legislature repeal it. Cannot find in the Bill of Rights or Constitution a general right of privacy, nor liberty of a person, the way the Court sees it. Constitutional protection for control over information: Whalen v. Roe (1977) Stevens: NY law required that physicians provide reports identifying patients receiving prescription drugs that have a potential for abuse. The state maintained a centralized computer

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file that listed the names and addresses of the patients. The statute also criminalized unauthorized release of any such information. The Court reversed a judgment that held that the state could not record in a centralized computer file, the names and addresses of all persons who obtained, pursuant to a doctor's prescription, the drugs for which there was both a lawful and an unlawful market. The Court agreed that there was a constitutionally protected zone of privacy that included the interest in avoiding disclosure of personal matters and the interest in independence in making important personal decisions. The Court held the law adequately protected privacy when it limited access to the lists and built in protection from disclosures. Issue: May the government maintain lists of personal health information without violating a zone of privacy? Yes. Appeals Court ruling reverse. Holding: the court found the statute constitutional as it was not an invasion of a right o The plaintiffs argue that this database infringed the right to privacy because individuals have a right o avoid disclosure of personal matters o The state argues an interest in knowing names due to the illegal drug market and that there is a safeguard against unwarranted disclosure o The SC upheld the law saying that the state did have an important interest in monitoring the use of prescription drugs and this is not automatically an impermissible invasion of privacy Analysis: o The court noted that in the future, the right to privacy may include a right to control information but not today o The right to privacy guaranteed by the 14th amendment does not preclude the state from collecting information regarding the use of prescriptive drugs by its citizens Justice John Paul Stevens (J. Stevens) argued that there are two different interests implicated by zones of privacy. The first is the right to avoid disclosing personal matters and the second is the right to independence in making certain decisions. The statute protects against public disclosure and some degree of disclosure is already inherent in the current prescription drug system. The Respondent has failed to establish how the statute invades any right or liberty. Discussion. The Supreme Court of the United States (Supreme Court) does not argue there is no invasion of privacy here, only that there is no constitutionally impermissible invasion of privacy. J. Stevens acknowledges the fear of accidental disclosure, but he also acknowledges that there is a statutory penalty for unauthorized disclosure. Constitutional protection for travel: This is based on the US constitution and therefore the FR is limited to the US and there is no FR to international waters Saenz v. Roe (1999) The Social Security Act authorizes states to fund various welfare programs and provides some federal tax dollars for those programs. California enacted a statute which limited payments made to first-year residents of the state to the amount from which they moved to Ca.

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Holding: the court found the statute unconstitutional as the right to travel embraces the right to be treated equally in her new state of residence, and the discriminatory classification is itself a penalty o The Right to Travel includes: (1) free to enter state to state, (2) out-of-staters are to be treated like in-staters, and (3) new residents must be treated the same as other citizens of the state Analysis: o This is the first time since the Slaughterhouse cases that the SC uses the Privileges and Immunities Clause to invalidate this law o This law did not meet strict scrutiny as the means to the ends were not narrowly tailored Recap: There are Fundamental Rights to: o The Right to Die by refusing medical treatment (Cruzan) -there is NO right to physician-assisted suicide (Glusksberg) -you have a right to die, someone just cant help you (Vacco) o The Right to Expect Privacy -if 2 consenting adults in sexual activity (Lawrence) -there is NO right to protect your information (Whalen) o The Right to Travel (Saenz) -this is limited to the US, not a foreign FR Analysis: 1. Is there a fundamental right? 2. Is the constitutional right infringed? 3. What level of scrutiny should be used? 4. Is there sufficient justification for the governments infringement of a right? 5. Is the means sufficiently related to the purpose? The Right to Vote: 15th amendment cannot deny on the account of race; blacks allowed to vote 19th amendment cannot deny on the account of sex; women allowed to vote 24th amendment cannot deny by reason of failure to pay a tax; no poll taxes 26th amendment cannot deny on the account of age; 18 year olds and older allowed to vote Harper v. Virginia State Board of Elections (1966) Justice Douglas. Section 173 of Virginias Constitution directed the state to impose an annual poll tax of $1.50 on every resident 21 years and older. A group of residents challenged under EP of the 14th amendment. $1 of the tax is to be used by state officials exclusively in aid of the public free schools and the remainder is to be returned to the counties for general purposes. Section 18 of the Constitution includes payment of poll taxes as a precondition for voting. Rationale: Art. I, 2, of the Constitutions confers the right to vote in federal elections, but right to vote in state elections isnt mentioned. Argued right is implicit in 1st Amendment. Dont canvass relation between voting and political expression. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. State can demand fees for drivers license but not voting. To introduce wealth or payment of a fee as a measure of a voters qualifications is to introduce a capricious or irrelevant factor. Holding: the court found the statute unconstitutional as it causes an invidious discrimination which violates EP

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The Right to Vote is a FR and is too precious to be burdened or conditioned no poll taxes o The state did not meet strict scrutiny as the right to vote is the essence of a democracy Reversed and remanded. Justice William Douglas (J. Douglas) notes that the tax divides the eligible voters of the State into two classes: those who can afford the tax and those who cannot. As such, it invidiously discriminates against those who cannot afford the tax. o Because voting is a fundamental right, classifications involving the right to vote are closely scrutinized. In the present case, a classification based on wealth is clearly inappropriate. Kramer v. Union Free School District (1969) Chief justice Warren. A NY state law 2012, restricted voting in school district elections to those who owned(or lease) taxable real property in the district or who were parents or had custody of children enrolled in the local public schools. A bachelor brings suit under EP of the 14th amendment. New York Education Law requires the ownership of real property within a school district or custody of children attending the district to be eligible to vote in school district elections. The Petitioner, a 31 year old college-educated stockbroker is currently living with his parents within the school district. His denial of voting rights was based solely on his lack of real property ownership or custody of children. He brought suit, seeking to invalidate the statute as unconstitutional under the Fourteenth Amendment of the United States Constitution. He has voted in elections since 1959. Statute also affects, senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers, parents with children too young to attend school that dont own or lease property. Issue. Is the New York statute narrowly tailored to serve a compelling government interest? Synopsis of Rule of Law. Statutes limiting the right to vote must be narrowly tailored to achieve a compelling state interest. State argument further: increasing complexity of the school system make it extremely difficult for those voters not interested in school affairs to understand. Rationale: Appellees dont offer any justification for the exclusion of seemingly interested and informed residents, other than 2012 includes those the state deems interested in school board actions. Holding: the court found the statute unconstitutional as the statute did not meet strict scrutiny because it was not narrowly tailored to the states compelling interest o The state argues they had an interest in limiting the franchise to those primarily interested in the school system o The SC struck down the law of property ownership requirements, except in narrow circumstances, when the requirements restrict the FR to vote Appeals Court ruling reversed. Chief Justice Earl Warren (J. Warren) notes that the State's legitimate interest seems to be restricting a voice in school matters to those "directly affected." J. Warren notes that the system of exclusion excludes some members that have a direct interest (individuals whose children are not yet school age) and includes some with little

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interest (individuals with no children who just incidentally own real property in the district). As such, it cannot be narrowly tailored. Dissent. Justice Potter Stewart (J. Stewart) argues that the classification is valid, as the State has "broad powers to determine the conditions under which the right to suffrage may be exercised." As the classification in the present case is not of a suspect class, J. Stewart argues that the classification is constitutional. Discussion. The right to vote is a fundamental right. Notice that J. Warren does not say that the State cannot discriminate as to who gets to vote in a school district election, only that such discrimination must be tailored to the compelling interest sought to be advanced. Ball v. James (1981) This case involved a water district election. The votes were allocated based on property ownership and the district was a major supplier of hydroelectric power to the Arizona. The Salt River Project Agricultural Improvement and Power District (the District), stores and delivers untreated water to land owners in central Arizona. The directors of the District are voted for by landowners in the district on a one-acre, one-vote system of apportionment. The District comprises 236,000 acres in central Arizona. As the District's primary purpose is providing water to these 236,000 acres, the legislature vested the election of the District directors in the hands of the landowners of the District. The landowners' votes are prorated so that one acre of land owned entitled an individual to one vote. Adopted in 1936. The district formed as a government entity in 1937. This lawsuit brought on behalf of residents that owned no land or less than 1 acre of lane. Claims the district can condemn land, sell taxexempt bonds, and levy taxes on real property. Also, it can influence flood control and environmental management within its boundaries and substantially effect all that live within its boundaries. Arizona argues: Sayler Land Co. v. Tulare (1973) allowed only land owners to vote. In election of directors of a water district. There votes were assessed based upon value of land owners property. However, court found the district had little power and burden should fall on land owners, so it was just. Reynolds strictures didnt apply. Landowners wouldnt subject property to lien otherwise. D Issue: Whether the peculiarly narrow function of this local governmental body and the special relationship of one class of citizens to that body releases it from the strict demands of the oneperson, one-vote principle of the EP Clause of the 14th Amendment. Reynolds v. Sims (1964). Synopsis of Rule of Law. In government entities of limited purpose, the State may create voting schemes that are unconstitutional in elections for broader-based entities. Holding: the court found the statute constitutional as it was reasonably related to its statutory objectives and justified o The plaintiffs argue EP as a class of registered voters o The state argues this is a narrow exception like the Saylor case in which the state just has to prove that the limit on voting is reasonable to only those primarily affected o Justice Potter Stewart (J. Stewart) notes that the narrow and special function of the District justifies a departure from the popular-election requirement. There is a reasonable relationship between the voting system and its governmental objectives. Analysis:

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The SC held that in certain situations, states may limit the right to vote (1) to only those primarily affected in the outcome or (2) if meeting a compelling government interest Dissent. Justice Byron White (J. White) argues that the function of the District is not as narrow as the majority would believe. J. White stresses that the District provides electric power to several hundred thousand citizens and believes that the one-person one-vote principle should apply. o Discussion. The majority and dissent differ only in the characterization of the function of the District. They both agree that if the function is narrow enough, the State voting scheme is acceptable, but if the function is broad, then one-person, one-vote should apply. Crawford v. Marion County Elections (2008) Indiana legislature passed a law requiring all voters who cast a ballot in person to present a photo ID issued by the state or federal government Holding: the court found the statute constitutional and upheld the law concluding the that photo IDs were closely related to Indianas state interest in preventing voter fraud Misc: o This is an important voting rights case as the Marion County Board essentially determined which American citizens were able to exercise their right to vote and which Americans were not o What really happened: voting fraud is not really a problem, the Election Board feared illegal immigrants were voting o How are poll taxes different from state IDs? Dilution of the right to vote: Reynolds v. Sims (1964) The Alabama legislature had a 35-member state senate elected from 35 districts that varied in population. The re-apportionment had not been done since 1900 so a group of citizens filed suit challenging the apportionment scheme. Holding: the court found the apportionment scheme unconstitutional as it violates the EP clause of the 14th amendment o The SC reasoned that the apportionment scheme should be based on population and not by districts as legislators represent people, not trees or acres o Strict scrutiny was not met in the case as an individuals right to vote is unconstitutionally impaired when its weight is substantially diluted when compared with votes of citizens living in other parts of the state Analysis: o The state must make an honest and good faith effort to construct districts as nearly of equal population as is practicable o Each citizen must have an equally effective voice in the election of the states legislature the principle of one-person, one-vote Wesberry v. Sanders (1964) The inequality of Georgias districts meant one congressman represented 2-3x more people and their votes were weighted significantly less than other voters in the state

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Holding: the court found that Georgia had to re-apportion as the SC upheld the one-person, one-vote principle as to elections of the US House of Representatives o While it might not be possible to achieve mathematical equality, there is no excuse for ignoring the USCs objective of making equal representation o The government must make a good faith effort towards proportional representation Bush v. Gore (2000) A controversy arose over the 2000 Presidential Election about FLs voting system which in certain instances, produced hanging chads. The FL SC ordered a recount that the intent of the voter be discerned but Bush brought suit to stop the recount Holding: the court found the FL recount process was unconstitutional and violated EP, and thus the SC decided the outcome of the Presidential Election o This was a 5-4 per curium decision in which may or may not have been decided correctly and still holds much controversy today o This case sets forth that while there is a FR to vote, there is NOT necessarily a FR to have your vote counted Recap: There is a Fundamental Right to: o The Right to Vote (but only when there is an election; appointments are legal) -cannot implement poll taxes (Harper) but can implement state IDs (Crawford) -cannot implement property ownership requirements (Kramer) -except the right to vote may be limited to (1) those only primarily affected in the outcome or (2) if meeting a compelling government interest (Ball v. James) -literacy tests were constitutionally permissible (not strict scrutiny) to promote intelligent use of the ballots, but now outlawed in the Voting Rights Act -felons and ex-felons may permanently be disenfranchised from voting -there must be proportional representation (Wesberry) in an apportionment scheme so everyone has one, undiluted vote (Reynolds) -not everyones vote need be counted in an election even though there is a FR to vote (Bush v. Gore) Analysis: 1. Is there a fundamental right? 2. Is the constitutional right infringed? 3. What level of scrutiny should be used? 4. Is there sufficient justification for the governments infringement of a right? 5. Is the means sufficiently related to the purpose? Constitutional Protection for access to the courts: Filing Fees: Boddie v. Connecticut (1971) The average cost of a divorce in Connecticut is $60.00 per litigant. If an individual cannot afford the cost of divorce, then he/she cannot file for one. The petitioner argues this denies indigents EP under the law

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Holding: the court found the divorce fee unconstitutional as it violates the EP clause of the 14th amendment o The SC reasoned that a fundamental right (to access courts) cannot be denied to people on the basis of wealth if the only way to get that divorce was through the state courts o The DP clause requires that all persons be afforded an opportunity to go to court to obtain a divorce US v. Kras (1973) Kras wanted to file for bankruptcy but NY denied his request because he could not afford the filing fee. Holding: the court found the bankruptcy filing fee constitutional as bankruptcy, unlike marriage, is not a FR and the government can require the payment of filing fees as a prerequisite o Kras argued Boddie o The government argues the filing fee is a reasonable exercise of Congress plenary power over bankruptcy; rational basis because it is not a FR o The SC upheld the filing fee on a rational basis test Anaylsis: o Majority says because there are alternative ways to file for bankruptcy besides coming to court, then the fee is okay o Dissent says that the majority are out of touch with the reality of the poor MLB v. SLJ (1996) MLB sought to appeal the termination of her custody rights but Missouri law required her to pay in advance certain preparation fees, such as the trial transcript. MLB could not afford to do so and sued under the 14th amendment Holding: the court found the custody filing fee unconstitutional as termination of parental rights is a FR which cannot be usurped by the state o The SC struck down the filing fee as a stricter standard applied; while fees are normally examined under rational basis, when a FR is involved, the fee will probably be waived as it is violating your access to court o The SC held that sates may not deny appellate review of a decision finding a biological parent to be unfit simply because of the parents inability to pay for the appeal Anaylsis: o FR more likely than not, the fee will be waived as it is violating your right to access the courts o Not a FR rational basis review so the fee will probably be upheld Prisoners rights of access to the courts: Bounds v. Smith Lewis v. Casey (1996) A federal district court found Arizona had systematic inadequacies with the law libraries and legal assistance available to prisoners and an injunction was entered to remedy the inadequacies. Holding: the court found the prison systems were constitutional as the prisoners still have the right to access the courts

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o o o Prisoners argued Bounds which gave prisoners the right to access the courts through the information of law libraries and legal assistance The government argues rational basis The SC dramatically undermined Bounds and basically eviscerated the holding by saying that prisoners have the right to access courts, but not to the tools that get them there

Constitutional Protection for rights to education: San Antonio Independent School District v. Rodriguez (1973) Texas imposed a public financing scheme which required school districts to come up with a portion of their budget through local resources. The individual districts imposed property taxes and the more affluent areas in turn were able to allocate more money per student. Holding: the court found the financing scheme constitutional as poverty is not a suspect class nor is there a FR to education o Plaintiffs assert the financing scheme infringes on the FR to obtain an education but there is no such thing o The government argues rational basis as property taxation advances the states goal to control local schools o The SC upheld the scheme as the right to an education is NOT a FR Analysis: o The plaintiffs thought they could use wealth as a proxy for race and qualify under EP, but they could not o When you combine this ruling with Miliken, you basically get segregated schools which weakens the ruling of Brown without injury, no claim; without money, no claim Recap: There is a FR to access the courts if this court access involves a FR then a filing fee will probably be deemed unconstitutional and will be waived if you do not have the money to pay There is a FR to access the courts if you are a prisoner, however this does not mean that you can have all the resources available to help make an educated claim/defense to the courts There is NO FR to education Procedural Due Process: Substantive Due Process v. Procedural Due Process: PDP: SDP: If state takes away your freedom of speech, certain procedures (notice, etc) must be followed. If state takes away your freedom of speech, SDP is the sufficiency of the reason for taking away that right.

Analysis of Procedural DP Please note there is no due process analysis if there is NO RIGHT in the first place. 1. Is there a deprivation of a right?

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o Do you actually have a right? Determine this before you ask yourself if its been taken away

2. Is it a life, liberty or property interest? 3. What are the procedures that are due to you? What is a Deprivation? Daniels v. Williams (1986) Prisoner asserted he was deprived of a right of his liberty interest in freedom from bodily injury when he slipped on a pillow left on the ground due to a guards negligence. Basic negligence on the part of the government does not rise to the level of deprivation needed for DP claim Holding: the court found that there is no right to be free from ordinary negligence County of Sacremento v. Lewis (1998) Lewis was a passenger on a motorcycle that was chased by police. When motorcycle stopped, the police cruiser did not and Respondent was killed Holding: the court found that in an emergency situation, the governments actions must shock the conscience in order to violate the Fourteenth Amendment o Placing bright line rules and boundaries on police officers conduct during the course of their job would essentially tie their hands to work to their best ability o This is an exception to Daniels this case made it difficult to hold the government liable When is the governments failure to protect a person from privately inflicted harms a deprivation? DeShaney v. Winnebago Child was beaten to the point of mental retardation by his father. During the entire time, the Winnebago County Department of Social Services was monitoring his home and paying regular visits. Holding: the court found that they do not have a duty to protect an individual from a third party o The DP Clause provides no affirmative right to protect an individual from a third party. The protection provided protects against action from the STATE and GOVERNMENT. o The court system cannot protect each and every person from the crazies Analysis: o How has he been deprived? What is the deprivation here? State deprived him of liberty by not protecting him is the argument. Perhaps state inaction? o You must first make the argument that the state has a duty to protect the child o Broussard: these types of cases tell us that our court system is jacked up about family law and we NEED REFORM Town of Castle Rock v. Gonzales (2005) Woman of several children had a crazy ex husband and a history of filing complaints against him with the police department. She went to the station one day to enforce the restraining

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order she had against him, begging for police to go find her husband, who had her children. Police did nothing to find him. In the interim, father killed all the children and left them dead in the car for wife to find. Holding: the court found that there is no property interest in having a restraining order enforced. o The womans argument was that the back of the restraining order stated that they would do anything to protect her and her children. She argued that she had a property interest in having the restraining order enforced. o Do you have a life or liberty interest in property? Not in this case Is it a deprivation of life, liberty, or property? Goldberg v. Kelly State terminated public financial assistance without giving recipients notice. Holding: the court found that individuals receiving welfare benefits have a property right in the continued receipt of benefits and the government must provide due process before it terminates benefits. Therefore, an administrative hearing should be held to determine assistance eligibility before it is completely withdrawn. o Is there a right? Yes, the statute gives them a right. This is called an ENTITLEMENT. o What is due for the property to be taken away? After all, there was a property right here. o Entitlements by statute can be deemed rights. Example: Student is in the LEAP summer program at FAMU. Professors decide that student is not going to be FAMU material and, before the program is over, tells the student thanks but no thanks. Does this violate their due process? No. Student does not have a property right to the education YET. Once the student is ACCEPTED as a student, the school has expressly given them that right to the education and their right has VESTED. It is at this point that students are owed the proper due process for termination of this right. Board of Regents v. Roth Roth was hired on a yearly contract basis (renewed each year for several years). One year, it was not renewed and the university provided no explanation not to renew the contract. Claimed he had a property right in his work and that this violated his due process. Holding: the court found that there is no property right in a one year employment contract. o Here, contract law will protect the professor, not property and constitutional rights. If he had tenure, it would be protected by the constitution as a property right. Goss v. Lopez (1975) Lopez and eight other students were suspended from their public high school without a hearing. Holding: the court found the law was unconstitutional as a students legitimate entitlement to a public education is a property interest protected by the DP clause o Lopez argues that the school cannot suspend him arbitrarily and needs to promote fundamental fairness o The school argues that since there is no FR to education, the DP does not protect against suspensions or expulsions o The SC ruled that because the state gave you a right to education, the state cannot take away that right without DP and that a reputation attaches to this right Analysis:

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o o o DP under the 14th amendment State action is the public high school principal suspending them The property interest is getting a diploma and obtaining an education

Paul v. Davis (1976) Kentucky Sheriff prepared a flier with the words active shoplifter and mug shots underneath. The plaintiffs picture was circulated on this flier even though his shoplifting charge had been dismissed. Holding: the court found the law was constitutional as reputation is not a liberty or property interest for the purposes of the 14th amendment o Davis argues Goss and sues under DP o The Sheriff argues that it was for protection of local merchants during Christmas o The SC upheld the flier and completed undermined Goss Analysis: o DP under the 14th amendment o Chief of police is the state action o Since there is no liberty or property right to a good reputation, then there is no DP violation but how do you un-ring the bell? You dont! Liberty Interest for Prisoners: Sandin v. Connor (1995) Connor was convicted of numerous state crimes and was serving in prison in Hawaii for 30 years. During a strip search, Connor resisted with anger and foul language which resulted in a write-up for a misconduct infraction. Connor was not allowed to bring witnesses on his behalf during the board meeting and was punished in lockdown confinement for his misconduct. Holding: the court found the law was constitutional as the punishment did not impose significant hardship on the inmate in relation to ordinary incidents of prison life o Since lockdown was the status quo for those who misbehave, the prisoners know thats how the prison operates and thats how it was o There was no expectation of a right so there was nothing taken away from plaintiff when he did not get to bring his witnesses in Analysis: o Another argument to be made is that by him not being able to bring in witnesses, his substantive due process was violated what was the sufficiency of the reason o The courts did not want to open up a can of worms for the prisons What Procedures are Required? Usually notice of the charges or issue, opportunity for a meaningful hearing, and an impartial decision maker. Mathews articulates a balancing test for deciding what procedures are required Mathews v. Eldridge (1976) A state disability recipient filed suit when the state decided to stop providing him with the benefits he had been receiving. Plaintiff received a letter providing him with notice of the termination and his benefits were terminated. Holding: the court found the law was constitutional as a DP is flexible o The SC upheld the procedure with a three-part balancing test (below) weighing the cost of procedure required to the potential benefits arising from those procedures o DP can be made after the fact, or before, the deprivation Analysis:

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o o o (1) the private interest that will be affected by the official action (2) the risk of an erroneous deprivation of such interest, and the probable value, if any, of additional or substitute procedural safeguards (3) the governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirements would entail