BAR FLASHCARDS - CL 4_ Individual Rights
(270 cards)
1
Q
STATE ACTION REQUIREMENT
A
Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. State action includes action taken by the government and government officers at all levels (that is, local, state, or federal).
Sometimes state action can be found in actions of seemingly private individuals who perform exclusive public functions or have significant state involvement.
2
Q
Private action can sometimes be attributed to government:
A
a. Traditional and exclusive government function (for example, running a town or election)
b. Significant state involvement
1) Official encouragement or use of judicial machinery
2) Entwinement of state and private actors
3) But mere regulation, provision of public services, or licensing not enough
3
Q
Congress, by statute, may apply constitutional norms to private conduct: 3 BIG EXAMPLES
A
a. The Thirteenth Amendment can be used to prohibit private race discrimination. Broad latitude to eradicate the “badges and incidents of slavery”. BUT 13A only prohibitds slavery and allows congress to make laws. “DOESNT VIOLATE 13A - bc 13A only authorized Congress”
b. The commerce power can be used to apply constitutional norms to private conduct. 1963 civil rights act under CC authority.
c. Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior. Congress can ONLY regulate state and local gov under Section 5 of 14A.
4
Q
Exceptions: situations where private conduct must comply with the Constitution
A
a. The public function exception.
b. The entanglement exception.
5
Q
The public function exception
A
The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
Activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them (such as running an election).
6
Q
The public function exception: Exclusive Public Functions
A
Activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them (such as running an election).
7
Q
suppose a company runs a “company town” (that is, a community in which an employer provides a place for employees to live and includes most of the features of a typical town, such as police and fire protection, schools, and parks), and the company bars minorities from using the town park.
A
Running a town park is typically a public function. When the town is run by a company and the company excludes minorities from the park, it’s acting as the government. Therefore, the company’s rule counts as state action (and the 14th Amendment, among other things, applies). Marsh v. Alabama.
8
Q
Running a utility… public function exception?
A
NO! Utility is NOT exclusively done by gov, so Con’ does not apply. Jackson.
9
Q
The entanglement exception
A
State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. The state must be “significantly involved” in the private entity; mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.
10
Q
Entanglement exception Leading cases
A
i) Courts cannot enforce racially restrictive covenants.
ii) There is state action when the government leases premises to a restaurant that racially discriminates.
iii) There is state action when a state provides free books to schools that racially discriminate. State was encouraging discrimination.
iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. Gov subsidy by itself is NOT ENOUGH for state action.
v) There is no state action when the NCAA orders the suspension of a basketball coach at a state university. (NCAA = voluntary association of public and private universities that establishes rules for its members regarding collegiate sports).
vi) There is state action when a private entity regulates interscholastic sports within a state. a private entity regulates high school interscholastic sports within a state where the association is whose governing body is made up mostly of public school officials; whose meetings are held during regular school hours; whose employees may join the state retirement system; and which is funded by gate receipts from the regulated sports
vii) There is not state action when a private club with a liquor license from the state racially discriminates.
11
Q
when a private school that is over 99% funded by the government fires a teacher because of her speech- State Action?
A
iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. Gov subsidy by itself is NOT ENOUGH for state action.
12
Q
TWO big examples of PUBLIC FUNCTION = State Action
A
Running a town, Conducting an election
13
Q
Granting a license and providing essential services to a private club
A
NO state Action
14
Q
Granting a monopoly to a utility
A
NO state Action
15
Q
Heavily regulating an industry
A
NO state Action
16
Q
Granting a corporation its charter and exclusive name
A
NO state Action
17
Q
Standard for entanglement
A
The state must be “significantly involved” in the private entity; mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.
18
Q
CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS
A
The Constitution sets the minimum threshold of rights. States generally are free to grant broader rights than those granted by the United States Constitution. Also, Congress may, by statute, apply constitutional norms to private conduct.
19
Q
Bill of Rights generally
A
- The Bill of Rights applies directly only to the federal government - By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power.
- The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except:
a. The Third Amendment right to not have a soldier quartered in a person’s home.
b. The Fifth Amendment right to grand jury indictment in criminal cases. (prohibition of criminal trials without a grand jury indictment).
c. The Seventh Amendment right to jury trial in civil cases.
20
Q
Bill of rights applied to states
A
The Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states.
The most notable exceptions to incorporation are:
• The Third Amendment’s right to not have a soldier quartered in a person’s home
• The Fifth Amendment’s prohibition of criminal trials without a grand jury indictment
• The Seventh Amendment’s right to a jury trial in civil cases
21
Q
Thirteenth Amendment
A
The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as compulsion of labor through the use or threat of physical or legal coercion. Under the Thirteenth Amendment’s Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).
22
Q
Fourteenth and Fifteenth Amendments
A
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. Due process.
The Fifteenth Amendment prevents federal, state, and local governments from denying a citizen the right to vote on account of race or color.
Generally, private conduct is not prohibited by these amendments; they apply only when some state action is involved.
Note: Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.
23
Q
Scope of Congressional Power Under Fourteenth Amendment
A
Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment.
Under Section 5, Congress may not expand existing constitutional rights or create new ones—it may only enact laws to prevent or remedy violations of rights already recognized by the courts.
To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.
24
Q
Section 5 of the Fourteenth Amendment
A
Section 5 of the fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment.
25
To adopt a valid law under Section 5 of the Fourteenth Amendment, Congress must....
To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.
26
Power of individuals - Commerce Clause
Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.
27
Rights of National Citizenship
Congress has inherent power to protect rights of citizenship (for example, interstate travel, assembly, and the right to petition Congress for redress).
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LEVELS OF SCRUTINY
1. Rational basis test.
2. Intermediate scrutiny.
3. Strict scrutiny.
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1. Rational basis test.
Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard. The law is upheld if it is rationally related to a legitimate government purpose. Any conceivable permissible purpose. Burden on challenger to show no conc' purpose or no law not rationally related. The law will usually be valid unless it is arbitrary or irrational.
Classifications that Are Not Suspect or Quasi-Suspect: The rational basis standard is used to review regulations involving classifications that are not suspect or quasi- suspect, such as age, disability, and poverty
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Under the rational basis test a law is upheld if...
Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.
31
When is the Rational Basis standard used?
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard.
32
Classifications that Are Not Suspect or Quasi-Suspect:
The rational basis standard is used to review regulations involving classifications that are not suspect or quasi- suspect, such as age, disability, and poverty
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2. Intermediate Scrutiny
Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.
Look at ACTUAL purpose, not conceivable purpose. Means must b substantially related to achieving the end, not the only ones. GOV has BURDEN.
Regulations involving quasi-suspect classifications (for example, gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantially related to an important government purpose.
34
Under intermediate scrutiny a law is upheld if....
Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.
35
When is the intermediate scrutiny standard used?
Regulations involving quasi-suspect classifications (for example, gender and legitimacy) are reviewed under the intermediate scrutiny standard.
36
3. Strict scrutiny.
Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose. Gov has BURDEN. Must show government purpose is compelling- meaning vital. Look at ACTUAL purpose. Means have to be NECESSARY to achieve the goal (least restrictive alternative to achieve objective).
Regulations affecting fundamental rights (for example, interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (for example, race, national origin, and alienage) are reviewed under the strict scrutiny standard. The law is upheld only if it is necessary to achieve a compelling government purpose.
This is a difficult test to meet. A law examined under a strict scrutiny standard will often be invalidated—especially if there is a less burdensome alternative to achieve the government’s goal.
37
Under strict scrutiny a law is upheld if...
Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose. Gov has BURDEN.
Must show government purpose is compelling- meaning vital. Look at ACTUAL purpose. Means have to be NECESSARY to achieve the goal (least restrictive alternative to achieve objective).
38
When is strict scrutiny used?
Regulations affecting fundamental rights (for example, interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (for example, race, national origin, and alienage) are reviewed under the strict scrutiny standard.
39
Least restrictive alternative analysis applies to?
ONLY STRICT Scrutiny
40
language used to describe strict scrutiny sometimes varies:
For bar exam purposes “narrowly tailored to achieve an overriding government purpose” and “necessary to achieve a compelling government purpose” mean the same thing.
41
Commerce Clause
Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.
42
Rights of National Citizenship
Congress has inherent power to protect rights of citizenship (for example, interstate travel, assembly, and the right to petition Congress for redress).
43
Prohibitions Against Retroactive Legislation
1. Contracts Clause—applies only to states
2. Ex post facto laws—prohibited
3. Bills of attainder—prohibits laws inflicting punishment without a trial on people by name or past conduct
44
1. Contracts Clause
—applies only to states
a. Prevents only substantial impairment of a party’s rights under an existing contract
b. Exception—law valid if:
1) Serves an important interest; and
2) Is narrowly tailored to promote that interest
c. Public contracts subject to stricter scrutiny
1) State cannot be obligated to refrain from exercising its police power
2) Law should not broadly repudiate government contractual obligations
45
2. Ex post facto laws
—prohibited
a. Makes criminal an act that was innocent when done
b. Prescribes greater punishment than what was prescribed when act was committed
c. Reduces evidence required to convict
d. Specifically applies only to legislation but due process prohibits similar changes by the courts
46
3. Bills of attainder
—prohibits laws inflicting punishment without a trial on people by name or past conduct
47
Individual liberties (3 big buckets)
Procedural Due Process
Substantive Due Process
Equal Protection
48
Procedural Due Process (Clauses)
Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states)
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The focus in procedural due process claims is on whether...
The focus in procedural due process claims is on whether the government has provided adequate procedures when it takes away life, liberty, or property.
IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN?
50
A deprivation of liberty occurs if....
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
While the term “liberty” is not specifically defined in the Constitution, it includes more than just freedom from bodily restraints (for example, it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if there is a loss of a significant freedom provided by the Constitution or a statute.
51
Government duty to protect people from harm
Gov has no duty to protect people from PRIVATELY inflicted harms. ONLY if the Gov literally creates the danger, or if the person is in gov custody, does the gov have a duty to provide protection.
52
A deprivation of property occurs if...
A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. An entitlement exists if there is a reasonable expectation that a benefit will continue.
“Property” includes more than personal belongings and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough.
RIGHT vs PRIVILEGES is a RED HERRING. Now magic word is ENTITLEMENT.
53
An entitlement exists if...
There is a reasonable expectation of the continued receipt of a benefit.
54
A person has a protectable property interest whenever she has...
A person has a protectable property interest whenever she has a legitimate claim to a benefit under state law.
55
Person works for the gov, gov promises that theyll have the job next year. Takes the job away in the middle of the year. Violation?
YES.
56
Examples of property interests include....
Examples of property interests include continued attendance at public school, welfare benefits, and (in some cases) government employment.
57
For a procedural due process claim, government action must be....
Government negligence is an insufficient basis for a procedural due process claim. Similarly, the government’s failure to protect people from privately inflicted harms isn’t a denial of due process. Instead, there generally must be intentional or reckless government action.
58
In emergency situations, the government is liable under the due process rules only if....
In emergency situations, the government is liable under the due process rules only if its conduct “shocks the conscience.”
59
the government’s failure to protect people from ____ does not deny due process
Generally, the government’s failure to protect people from privately inflicted harms does not deny due process
60
When approaching a procedural due process issue, ask:
• Has there been a deprivation of life, liberty, or property?
• If yes, what procedures are required?
61
What does Procedural Due Process require?
Requires fair process/procedure when government acts intentionally or recklessly to deprive a person individually of life, liberty, or property
a. Both actual bias and serious risk of actual bias unconstitutional
b. Liberty includes losses of significant freedom of action
c. Property includes legitimate claims/entitlements to government benefits
1) Public employment is a property right if claim to entitlement through contract, policy, law, etc.
62
PROCEDURAL Due Process ANALYSIS
Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
YES: What procedures must gov supply? BALANCE:
a. Importance of interest to the individual.
b. Ability of additional procedures to increase the accuracy of the fact finding; and
c. The Government's interests.
NO: Gov need not provide PDP
63
Procedural Due Process: Balancing TEST for determing what PROCEDURES are required
3. Balancing test for determining fair process in terms of timing (pre- vs. post-depriva- tion) and scope of hearing. The Court weighs:
a. Importance of individual right to the individual
b. Value of specific procedural safeguard involved (ability of additional procedures to improve the accuracy of the fact-finding against)
c. Governmental interest in fiscal and administrative efficiency (saving money)
64
The type and extent of procedures required under the Due Process Clause are determined by a three-part balancing test that weighs:
The type and extent of procedures required under the Due Process Clause are determined by a three-part balancing test that weighs:
• The importance of the interest to the individual, and
• The ability of additional procedures to improve the accuracy of the fact-finding against
• The government interest, which is usually focused on fiscal and administrative efficiency.
65
What are always required for procedural due process?
fair procedures and an unbiased decisionmaker are always required.
66
___ and ___ are usually required before the termination of liberty or a property interest.
Notice and chance to respond are usually required before the termination of liberty or a property interest.
67
Before an adult can be institutionalized, there must be...
Notice and a hearing.
68
Before an CHILD can be institutionalized by an adult, there must be...
Screening by a neutral fact-finder
69
Harm to reputation
is NOT a loss of liberty. Ex-posting pictures of shoplifters by the city.
70
Before welfare benefits are terminated, there must be...
Before welfare benefits are terminated, there must be notice and a hearing
71
When Social Security disability benefits are terminated, there need be....
When Social Security disability benefits are terminated, there need be only a post-termination hearing
72
Before a school can discipline a student, there must be...
Before a school can discipline a student, there must be notice of the charges and an opportunity to explain. BUT doesnt have to have trial.
73
Corporal punishment in schools requires...
DOes NOT REQUIRE ANY due process.
74
Before a parent’s right to custody of a child can be permanently terminated, there must be...
Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing
75
Punitive damage awards require ...
Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness
76
Grossly excessive punitive damages...
Violate due process
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For an American citizen to be detained as an enemy combatant, there must be....
For an American citizen to be detained as an enemy combatant, there must be due process (at a minimum, notice of the charges against him, representation by a lawyer, and a meaningful factual hearing).
78
Except in exigent circumstances, prejudgment attachment or government seizure of assets require...
Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing.
exigent circumstances = reason to believe person would get rid of the property before hand.
EXCEPTION: Civil FOrfeiture, EVEN if person owning it is innocent.
79
PDP: Civil Forfeiture
If property is used for illegal activity, EVEN if the owner is innocent, gov may SEIZE it.
If the government seizes property allegedly subject to forfeiture (usually because it was connected to illegal activity):
• If the property is real property, generally the government must provide the owner notice and an opportunity for some type of hearing prior to seizing it
• If the property is personal property, the government may be able to seize it prior to providing the owner a hearing, since personal property can be hidden or destroyed.
80
Due Process Rights: WAIVER?
DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER: As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.
81
ACCESS TO COURTS—INDIGENT PLAINTIFFS
Government fees (such as court filing fees) must be waived when the imposition of a fee would deny a fundamental right to the indigent.
Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office (voting rights) must be waivable. However, fees can be imposed when nonfundamental rights are involved (for example, fees for a bankruptcy discharge or review of welfare termination).
82
Economic Liberties - what test is used?
Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.
83
Protection for economic liberties?
Minimal protection
84
Regulation of trade or professions
Rational basis, gov wins
85
Consumer protection law
Rational basis, gov wins
86
Employment Regulation - min wage, max hour law
Rational basis, gov wins.
87
THE “TAKINGS” CLAUSE
The Fifth Amendment provides that the government may take private property for public use if it provides just compensation. This rule applies to the states via the Fourteenth Amendment. “Takings” include physical appropriations and some government action that damages property or impairs its use. The Takings Clause covers both personal property and real property.
88
ANALYSIS: To analyze a Takings Clause question, ask:
To analyze a Takings Clause question, ask:
a. Is there a taking?
- - Is there a government confiscation or physical occupation of property?
- - Does the government’s regulation leave no reasonable economically viable use of the property?
>If NO to BOTH, No taking and No gov compensation required.
>IF YES TO EITHER, there is a taking.
b. Is it for public use?
- - Does the government act out of a reasonable belief that its action will benefit the public?
> if NO, Government must return the property.
> If YES, Just compensation must be paid. Government must pay economic market value of property in hands of owner (gain to the taker is irrelevant)
c. Was just compensation paid?
89
Two ways of finding a taking
- Posessory taking: —Actual Appropriation or Physical Invasion. Government confiscation or physical occupation of property is a taking.
- Regulatory Taking— Leaves no REASONABLY ECONOMICALLY VIABLE USE. Government regulation is a taking if it leaves no reasonable economically viable use of the property.
90
Is there a taking: “TAKING” VS. “REGULATION”
The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation). There is no clear-cut formula for making this determination, but the following general guidelines apply:
- Possessory Taking—Actual Appropriation or Physical Invasion
- Regulatory Taking—Use Restrictions
- Remedy—Inverse Condemnation
91
Possessory Taking—Actual Appropriation or Physical Invasion
Government confisctation or physical occupation is always a taking. An actual or physical appropriation of property will almost always amount to a taking. Even a temporary appropriation or physical invasion may constitute a taking.
EXCEPTION: Emergency situations.
92
Ag employers had to alow union organizers to meet with workers for certain hours per year
SC found this was a POSESSORY TAKING - owning property means being able to control it.
93
Apt owners had to make 1 cb foot available for tv boxes
TAKING, no matter how small the space is!
94
Regulatory Taking—Use Restrictions (3 types)
a. Denial of All Economic Value of Land—Taking:
Temporary Denials of All Economic Use:
b. Decreasing Economic Value—Balancing Test:
c. Building/Development Permit Dedication Requirements
95
Regulatory Taking—Use Restrictions: Denial of All Economic Value of Land—Taking
a. Denial of All Economic Value of Land—Taking: If a government regulation denies a landowner of all reasonably economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking.
Temporary Denials of All Economic Use: Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances (for example, the planners’ good faith, the reasonable expectations of the owners, the length of the delay, and the delay’s actual effect on the value of the property) to determine whether “fairness and justice” require just compensation.
96
Regulatory Taking—Use Restrictions: Decreasing Economic Value—Balancing Test
b. Decreasing Economic Value—Balancing Test: Generally, regulations that merely decrease the value of property (for example, prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
- The Court will consider the social goals sought to be promoted; the diminution in value to the owner; and whether the regulation substantially interferes with the owner’s distinct, investment-backed expectations.
97
NYC grand central station
SC said no taking. There was still reasonably economically viable use, decrease in value wasnt enough.
98
Taking vs Regulation example: Condemnation of Land to build Highway
TAKING
99
Taking vs Regulation example: Creating public access easement on private property
TAKING
100
Taking vs Regulation example: Abolishing inheritance rights
TAKING
101
Taking vs Regulation example: Zoning ordinances that merely prohibit the most beneficial use of property
REGULATION
102
Taking vs Regulation example: Ordering destruction of diseased trees
REGULATION
103
Taking vs Regulation example: Landmark ordinances generally
REGULATION
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Regulatory Taking—Use Restrictions: Building/Development Permit Dedication Requirements
c. Building/Development Permit Dedication Requirements: Municipalities often attempt to condition building or development permits on a landowner either conveying title to all or part of the property to the government or granting the public an easement to access the property. Known as exactions, these conditions constitute a taking unless:
• The government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and
• The adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.
For example, the Supreme Court found a taking when a city refused to grant a permit to a landowner to pave a parking lot unless the landowner dedicated some of their land as a greenway and a bike path (nothing indicated a nexus between paving the lot and the need for a greenway or bike path). Moreover, the Supreme Court has found a taking not only when land was in fact dedicated in contravention of the above requirements, but also when the landowner was denied a permit for refusing a government request that was in contravention of the above requirements.
105
Gov conditions on development of property.
Benefit must be roughly proportional to burden. (• The adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.)
106
Government conditions on development of property must be....
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking
107
regulations that existed at the time the property was acquired
A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
108
Temporarily denying an owner use of property....
Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable.
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Takings: Remedy—Inverse Condemnation
When a government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation (that is, fair market value of the property taken).
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.
If the court determines that the government action amounted to a taking, the government will be required to either:
• Pay the property owner just compensation for the property; or
• Terminate the regulation and pay the owner for damages that occurred while the regulation was in
effect (that is, temporary taking damages).
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When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for...
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.
111
Public Use
Public Use Is Liberally Construed: The government may take property but only for public use. A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. In other words, the government’s action must be rationally related to a legitimate public purpose (for example, for health, welfare, safety, economic, or aesthetic reasons).
Authorized takings by private enterprises are included if they are for the public advantage (for example, railroads and public utilities).
112
A taking is for public use so long as the government.....
A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. In other words, the government’s action must be rationally related to a legitimate public purpose (for example, for health, welfare, safety, economic, or aesthetic reasons).
113
Just Compensation
Just compensation is measured in terms of the loss to the owner in reasnoable market value terms, not the gain to the taker. Typically, just compensation equals the fair market value at the time of the taking. Increases in value to the owner’s remaining property as a result of the taking are not considered.
Property that is worthless to the owner can be the subject of a taking, but no compensation is necessary.
114
Takings Summary
1. If government takes land for public purpose, it must provide just compensation
2. Public purposes liberally construed
3. Actual or physical appropriation almost always a taking, even if property taken is small
a. Exception: Emergencies
4. Use restrictions (action for inverse condemnation)
a. Denial of all economic value—taking
b. Decrease in economic value—generally not a taking if economically viable use remains
c. Dedications—cannot condition building permits on forced dedication unless:
1) Government can show legitimate interest, and
2) Adverse impact of development roughly proportional to owner’s loss
5. Just compensation—reasonable (fair market) value of property taken at time of taking
115
The contracts clause - Impairment of contracts generally
No state shall impair the obligations of contracts. The Contract Clause says no state shall impair the obligation of contracts. Thus, it limits the ability of states or local governments to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.
116
The contracts clause as applied to fed gov
Not Applicable to Federal Government: There is no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause (rational basis review).
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The contracts clause - Impairment of PRIVATE contracts
Private Contracts—Intermediate Scrutiny
State or local interference with private contracts must meet intermediate scrutiny, but the test is different than it is in other contexts—
State or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest.
Example: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause
118
State or local interference with private contracts must meet....
State or local interference with private contracts must meet intermediate scrutiny
— Does the legislation substantially impair a party’s rights under an existing contract?
— If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
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state or local legislation that ____ a party’s rights under an existing PRIVATE contract is invalid unless the law is ____
state or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest.
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The contracts clause - Impairment of PUBLIC contracts
Public Contracts—Strict Scrutiny: State or local interference with government contracts must meet strict scrutiny, especially if the legislation reduces the contractual burdens on the state.
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State or local interference with government contracts must meet...
State or local interference with government contracts must meet strict scrutiny
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EX POST FACTO LAWS
The state or federal government may not pass an ex post facto law (that is, a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed).
Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.
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A statute will be held to retroactively alter a law if it does any of the following:
A statute will be held to retroactively alter a law if it does any of the following:
• Makes criminal an act that was innocent when done
• Prescribes greater punishment for an act than was prescribed for the act when it was done
• Reduces the evidence required to convict a person of a crime from what was required when the act was committed
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ex post facto clause in civil cases
The ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)
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BILLS OF ATTAINDER
Bills of attainder are legislative acts that inflict punishment on specific individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder.
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RIGHT of Privacy
PRIVACY IS A FUNDAMENTAL RIGHT PROTECTED UNDER SUBSTANTIVE DUE PROCESS.
The Supreme Court has found that privacy is encompassed by the word “liberty” and protected as a fundamental right under the Due Process Clause. Regulations affecting activities protected by the right to privacy are reviewed under the strict scrutiny standard.
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Privacy rights INCLUDE
1. The right to marry (laws prohibiting same-sex marriage violate the right to marry)
2. The right to procreate.
3. The right to custody of one’s children.
4. The right to keep the family together (including extended family). Related individuals.
5. The right to control the upbringing of one’s children
6. The right to purchase and use contraceptives
7. There is no right to abortion under the Constitution. Only rational basis review is to be used in evaluating laws regulating abortions.
8. The right to privacy protects a right to engage in private consensual homosexual activity
9. The right to refuse medical treatment
i. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
iii. A state may prevent family members from terminating treatment for another.
10. There is not a constitutional right to physician-assisted death.
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The Right to Marry
A law prohibiting a class of adults from marrying is likely to be deemed invalid unless the government can demonstrate that the law is narrowly tailored to promote a compelling, overriding, or (at least) important interest.
a. Ban on Interracial Marriage: A ban on interracial marriage triggers—and fails—strict scrutiny.
b. Same-Sex Marriage: The fundamental liberties guaranteed by the Fourteenth Amendment (both the Due Process and Equal Protection Clauses) require every state to issue marriage licenses to two people of the same sex and recognize same-sex marriages performed elsewhere. Bans on same-sex marriage are not based on any legitimate interests related to protecting or promoting marriage.
c. Special Test in Prisoners’ Rights Cases: A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
d. Minimum Age Requirements: Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.
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The Right to Marry - Special Test in Prisoners’ Rights Cases
c. Special Test in Prisoners’ Rights Cases: A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
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The Right to Marry - Minimum Age Requirements
d. Minimum Age Requirements: Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.
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The Right to Procreate
Individuals have a fundamental right to reproduce that cannot be limited by the state.
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3. The right to custody of one’s children.
Fundamental privacy right. The government cannot permanently terminate parental custody unless it has a compelling reason.
EXCEPTION: State can create a rebuttable presumption that a married womans husband is the father of the child. Michael H v. Gerald D.
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The Right to Keep Family Together
Zoning regulations that prevent family members, including extended family, from living together are invalid. Thus, a city ordinance prohibiting first cousins from living in a single household would be invalid.
However, this right does not extend to unrelated people. Therefore, the Court applied the rational basis standard when it considered a zoning ordinance that denied a special use permit to a group of unrelated people with intellectual disabilities who wished to share a residential home or apartment building.
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Other Parental Rights
Parental rights are fundamental rights. They include the companionship, care, custody, and management of children (for example, the right to send a child to private school or forbid grandparent visitation). If the government interferes with parenting choices, it must satisfy strict scrutiny.
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The Right to Purchase and Use Contraceptives
A state cannot prohibit distribution of nonmedical contraceptives to adults. (Griswold).
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Abortion
No con right - RATIONAL BASIS REVIEW!
The Supreme Court recently overruled the line of cases that held that the Constitution protected a woman’s right to obtain an abortion. As there is no longer a fundamental right to an abortion under the federal Constitution, the matter is left to the states to legislate. The Court has stated that laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review. Further, the Court has identified several legitimate state interests that can support a restriction, namely, respecting and preserving prenatal life at all stages of development; protecting maternal health and safety; eliminating “particularly gruesome or barbaric medical procedures”; preserving the integrity of the medical profession; mitigating fetal pain; and preventing discrimination based on race, gender, or disability.
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The Right to Engage in Intimate Sexual Conduct
Private consensual adult sexual activity - LEVEL of SCRUTINY UNCLEAR.
The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature. This includes the right of adults to engage in private consensual homosexual activity. While the Court has not stated what standard of review should be applied to such laws, it has indicated that such laws can’t even pass rational basis review because of the lack of legitimate state interest.
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9. The right to refuse medical treatment
i. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
iii. A state may prevent family members from terminating treatment for another.
Competent adults have the right to refuse medical treatment, even life-saving medical treatment. The Court has not identified what level of scrutiny applies to this right, but a state can require clear and convincing evidence that a person wanted treatment terminated before it is ended. This right belongs to each individual, and a state may prevent family members from terminating treatment for another.
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ii. A state may require ___ that a person wanted treatment terminated before it is ended.
ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
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Right to Physician-Assisted Death?
No Right to Physician-Assisted Death
The Supreme Court said the right to privacy does not protect the right to physician-assisted death.
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Collection and Distribution of Personal Data—
No Privacy Right: The state may reasonably gather and distribute information about its citizens. Thus, the right to privacy does not prohibit the accumulation of a list of names and addresses of patients for whom dangerous drugs are prescribed.
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Obscene Reading Material
The right to privacy includes freedom to read obscene material in one’s home (except for child pornography), but not the right to sell, purchase, or transport such material.
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THE SECOND AMENDMENT RIGHT TO BEAR ARMS
“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
1. The Second Amendment protects the right to have handguns in the home for the sake of security.
2. State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional.
3. State laws regulating guns are allowed only if they were a type of regulation that historically existed.
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2nd amendment includes the right to...
This includes the right to keep a handgun at home and the right to carry a handgun in public.
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Gun Permits
For a gun permit law to be constitutional, the criteria must be clear; a law that gives an official discretion in granting permits is unconstitutional. State laws that require an applicant to show a safety need to obtain a permit to carry a concealed weapon in public are unconstitutional.
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2nd amendment: Standard of Review
If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation. Simply positing that the regulation promotes an important interest is not sufficient.
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Bans on firearms in sensitive places—such as legislatures, courtrooms, and schools—are
....constitutional based on historical tradition.
There is no analogous historical tradition to justify general bans on handguns in the home or in public.
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Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents....
Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel is associated with the clause.
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RIGHT TO TRAVEL
1. Laws that prevent people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny
3. Restrictions on foreign travel need meet only the rational basis test
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Interstate travel - Fundamental Right
An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state under the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment. Laws that prevent people from moving into a state must meet strict scrutiny, but not every restriction on the right to cross state lines is an impairment of the right to travel (for example, increased penalties for a father abandoning his children and leaving the state are valid).
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What is the right to travel protected under?
under the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment.
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Laws that prevent people from moving into a state must meet....
Laws that prevent people from moving into a state must meet strict scrutiny, but not every restriction on the right to cross state lines is an impairment of the right to travel (for example, increased penalties for a father abandoning his children and leaving the state are valid)
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Durational Residency Requirements
Durational residency requirements must meet strict scrutiny. A durational residency requirement is a rule requiring a person to live in a jurisdiction for a specified time in order to be eligible to receive a benefit (for example, a rule that a person must live in a state at least 30 days before being eligible to receive state welfare benefits).
The Supreme Court has noted that durational residency requirements chill the right to interstate travel and migration. However, some durational residency requirements have been upheld.
An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care. A state's interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits
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Durational residency requirements must meet...
2. Durational residency requirements must meet strict scrutiny
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Restrictions on foreign travel need meet....
3. Restrictions on foreign travel need meet only the rational basis test
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1 year residency to receive full WELFARE benefits
INVALID
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1 year residency to receive state-subsidized medical care
Invalid
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1 year residency to vote in state
Invalid
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30 day residency to vote in state
Valid
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1 year residency to Get divorced
Valid
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International Travel
International travel is not a fundamental right. It is, however, protected from arbitrary federal interference by the Fifth Amendment Due Process Clause. Only a rational basis test applies to restrictions on foreign travel.
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Durational residency requirements for VOTING
50 days is the maximum.
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Right to VOTE
The right to vote is a fundamental right. Laws that deny some citizens the right to vote (other than on the basis of residence, age, or citizenship) must meet strict scrutiny, but regulations designed to prevent fraud need only be, on balance, desirable.
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Laws that keep some citizens from voting must meet
Laws that keep some citizens from voting must meet STRICT scrutiny
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Right to VOTE Sumamry
1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable.
2. One-person - one-vote must be met for all state and local elections.
3. At-large elections are constitutional unless there is proof of a discriminatory purpose
4. The use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes without standards in a presidential election violates equal protection
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1. Laws that deny some citizens the right to vote must meet ..., but regulations of the electoral process to prevent fraud need be ....
1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable.
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Laws that can protect integrity of system if desirable must meet....
Laws that can protect integrity of system if desirable must meet balancing test.
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2. One-person - one-vote
2. One-person - one-vote must be met for all state and local elections. Everything except for US Senate.
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Dilution of Right to Vote - One Person, One Vote Principle
The “one person, one vote” principle must be met for all state and local elections.
If a state or local government decides to select representatives for a governmental body by popular election from individual districts, then all districts must be the same in population.
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Dilution of Right to Vote - One Person, One Vote Principle: Congressional Elections
States must use almost exact mathematical equality when creating congressional districts within the state. However, this is not true for Congress when it apportions representatives among the states. Congress’s good faith method for apportioning representatives commands more deference and is not subject to a precise mathematical formula.
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Dilution of Right to Vote - One Person, One Vote Principle: State and Local Elections
For state and local elections, the populations of voting districts must be substantially equal. That is, the variance in the number of persons included within districts can’t be unjustifiably large, but the districts don’t need to be within a few percentage points of each other. A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions), although a 10% variance is presumptively valid.
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Dilution of Right to Vote - One Person, One Vote Principle: Districts Can Be Measured Using Total Population
States need not measure the equality of their districts by counting only persons eligible to vote. Counting the total population best serves the “one person, one vote” principle.
Exception—Appointed Officials and Officials Elected “At Large”
The apportionment requirement is inapplicable to officials who are appointed or elected at large. At large elections (that is, when all of the voters vote for all of the office holders) are constitutional unless there’s proof of a discriminatory purpose.
Exception—Special Purpose Election
The one person, one vote principle does not apply to elections of officials who do not exercise “normal governmental authority” but rather deal with matters of special interest in the community (for example, water storage districts).
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At large elections
Where all voters vote for all officeholders. At large elections are allowed absent discriminatory purpose.
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3. At-large elections are....
3. At-large elections are constitutional unless there is proof of a discriminatory purpose
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4. The use of race in drawing election district lines....
4. The use of race in drawing election district lines must meet strict scrutiny
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Gerrymandering
Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny.
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States May Use Independent Commissions to Draw Districts
To avoid gerrymandering, states may use independent commissions to adopt congressional districts, rather than allowing the state legislature to redistrict.
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5. Counting uncounted votes without standards in a presidential election....
5. Counting uncounted votes without standards in a presidential election violates equal protection. (Bush v. Gore)
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Uncounted Votes
Counting uncounted votes without preset standards violates equal protection.
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Restrictions on Right to Vote - Residency Requirements
Reasonable time periods for residency are valid. The Supreme Court has said that 50 days is the maximum allowable durational residency requirement for voting. Congress may override state residency requirements in presidential elections and substitute its own.
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Restrictions on Right to Vote - Identification:
Identification: A state may require voters to show a government-issued voter identification. The Supreme Court held that a photo- identification requirement was, on balance, desirable because the benefits in preventing fraud outweigh the burdens with regard to voting.
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Restrictions on Right to Vote - Property Ownership:
Property Ownership: Conditioning the right to vote or hold office on ownership of property is usually invalid. However, there is an exception for special purpose elections (for example, water storage districts).
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Restrictions on Right to Vote - Poll Taxes:
Poll Taxes: Poll taxes are unconstitutional.
184
Restrictions on Right to Vote - Primary Elections:
Primary Elections: States may require early registration to vote in primaries. However, states cannot prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.
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Candidate Qualifications - Fee Must Not Preclude Indigents:
Fee Must Not Preclude Indigents: States may not charge candidates a fee that results in making it impossible for indigents to run for office.
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Candidate Qualifications - Restrictions on Ability to Be a Candidate:
Restrictions on Ability to Be a Candidate: A ballot access regulation must be a reasonable, nondiscriminatory means of promoting important state interests. A state may require candidates to show reasonable support to have their names placed on the ballot.
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Campaign Funding
The government may allocate more public funds to the two “major” parties than to “minor” parties for political campaigns.
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RIGHT TO EDUCATION
THERE IS NO FUNDAMENTAL RIGHT TO EDUCATION
189
FAIR NOTICE
A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause
190
Substantive Due Process
The focus is on whether the government has an adequate reason for taking away a person’s life, liberty, or property.
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if a law limits the ability of all persons to engage in some activity, it usually is...
if a law limits the ability of all persons to engage in some activity, it usually is a due process issue.
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SDP: APPLICABLE STANDARDS
Under the Due Process Clause, when a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard.
In all other cases—including when economic liberties are involved—the rational basis standard applies.
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Equal Protection
The focus is on whether the government’s differences in the treatment of people are adequately justified.
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APPROACH TO EQUAL PROTECTION QUESTIONS
AN APPROACH TO EQUAL PROTECTION QUESTIONS
1. What is the classification?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?
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Equal Protection Constitutional Source
Constitutional Source: The Equal Protection Clause of the Fourteenth Amendment applies only to actions taken by the states and local governments.
There’s no provision in the Constitution that explicitly says that the federal government cannot deny equal protection, but the Supreme Court has said that the Due Process Clause of the Fifth Amendment implicitly includes an equal protection requirement.
The substance of the analysis is the same for all levels of government.
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CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION
1. The equal protection clause of the Fourteenth Amendment applies only to state and local governments
2. Equal protection is applied to the federal government through the due process clause of the Fifth Amendment.
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Equal Protection: APPLICABLE STANDARDS
If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.
If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard.
If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, then a rational basis standard applies.
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PROVING DISCRIMINATORY CLASSIFICATION
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate.
Intent may be shown through proof that:
• A law is discriminatory on its face
• There is a discriminatory application of a facially neutral law
• There is a discriminatory motive behind the law
Note: The third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature’s discriminatory motive must be shown (for example, using evidence of a history of discrimination).
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Discriminatory use of preemptory challenges based on race ....
Discriminatory use of preemptory challenges based on race denies equal protection.
200
CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN
1. Strict scrutiny is used
2. How is the existence of a racial classification proven?
3. How should racial classifications benefiting minorities be treated?
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SUSPECT CLASSIFICATIONS
Classifications are suspect if they are based on race, national origin, or alienage.
Remember, If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.
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Classifications based on: Race and National Origin
Classifications based on race or national origin are judged by a strict scrutiny standard. A racial classification can be shown in two ways:
• If the classification is evident on the face of the law (FACIAL DISCRIMINATION).
• If the law is facially neutral, proving a racial classification requires demonstrating both
discriminatory impact and discriminatory intent.
For example, the discriminatory use of peremptory challenges based on race constitutes a denial of equal protection.
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Classifications based on race and national origin - How is the existence of a racial classification proven?
2. How is the existence of a racial classification proven?
a. The classification exists on the face of the law
b. If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
Ex: Discriminatory use of preemptory challenges based on race denies equal protection.
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Proof of a racially discriminatory affect/impact
not enough, must show impact AND intent.
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Discriminatory use of preemptory challenges based on race ....
Violates equal protection
206
Classifications based on race and national origin: How should racial classifications benefiting minorities be treated?
a. Strict scrutiny is applied
b. Numerical set-asides require clear proof of past discrimination
c. Educational institutions may use race as one factor in admissions decisions to help minorities. They must show, however, that there is no race neutral alternative which could achieve diversity. Additionally, educational institutions may not add points to applicants’ admissions scores based on race.
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School Integration
Only intentional segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is no violation. Thus, there is no violation if housing patterns result in racial imbalance in schools.
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“Benign” Government Discrimination—Affirmative Action
Government action—whether by federal, state, or local governmental bodies—that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
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Affirmative Action: Numerical set-asides
Numerical set-asides require clear proof of past discrimination. Generally, the Supreme Court is hostile toward quotas and set-asides.
210
when a set aside was held up
When the police department said for every white officer promoted there has to be a black one too (50% set aside. They said it was a remedy for CLEARLY pROVEN past discrimination.
211
Affirmative Action: Remedying Past Discrimination:
Remedying Past Discrimination: The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general “societal discrimination.”
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Affirmative Action: Where There Was No Past Discrimination:
Where There Was No Past Discrimination: Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest.
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Affirmative Action: Affirmative Action in Higher Education:
Affirmative Action in Higher Education: Public colleges and universities may use race as one factor in admissions decisions to benefit minorities and achieve diversity. However, they must show that there is no race neutral alternative that could achieve diversity. Additionally, educational institutions may not add points to applicants’ admissions scores based on race.
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Affirmative Action in Public Education: Elemtary and secondary school assignments
Affirmative Action in Public Education: The Supreme Court has not found diversity itself to be a sufficiently compelling reason to justify placing students in a particular elementary or secondary school.
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Discriminatory Legislative Apportionment
Race can be considered in drawing up new voting districts, but it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominately on the basis of racial considerations, the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.
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Public school systems using race as a factor in assigning students to schools...
Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.
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GENDER CLASSIFICATIONS
1. Intermediate scrutiny is used AND EXCEEDINGLY PERSUASIVE JUSTIFICIATION
218
QUASI-SUSPECT CLASSIFICATIONS
Classifications based on legitimacy and gender are “quasi-suspect.”
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Gender Classifications
Gender classifications are reviewed under the intermediate scrutiny standard. They must be substantially related to an important government purpose. The government bears the burden of showing an “exceedingly persuasive justification” for the discrimination.
• If a law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.
• The discriminatory use of peremptory challenges based on gender denies equal protection.
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The discriminatory use of peremptory challenges based on gender ...
• The discriminatory use of peremptory challenges based on gender denies equal protection.
221
Women
Intentional discrimination against women is usually invalid. Likewise, gender classifications benefiting women that are based on role stereotypes will not be allowed.
HOWEVER, gender classifications that are designed to remedy past discrimination and differences in opportunity will typically be valid. (ex-social security formula to benefit women was constitutional).
222
Intentional Discrimination Against Men
Intentional discrimination against men is generally invalid.
However, some discriminatory laws have been found to be substantially related to an important government interest (for example, statutory rape laws and the all-male draft).
223
Gender-based death benefits
Invalid
224
All-male draft
Valid
225
Gender-based peremptory strikes
Invalid
226
Discriminatory statutory rape laws
Valid
227
Alimony for women only
Invalid
228
Requiring American fathers (but not mothers) to prove their parentage of nonmarital children born abroad in order to obtain U.S. citizenship for them
Valid
229
Discriminatory minimum drinking age (women at 18, men at 21)
Invalid
230
How is the existence of a gender classification proven?
Same as with race.
a. The classification exists on the face of the law
b. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.
231
How should gender classifications benefiting women be treated?
a. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
b. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
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Discrimination Against Non-Marital Children
Laws that discriminate against non-marital children are also reviewed under the intermediate scrutiny standard: They must be substantially related to an important government interest.
Discriminatory regulations intended to punish non-marital children (for example, a law providing a benefit to marital children but not to non-marital children) are invalid.
Example: A law allowing only marital children to recover from their fathers’ estates is invalid.
But note: A law allowing non-marital children to recover from their fathers’ estates only if parenthood is established before the father’s death is valid. The government has an important interest in preventing fraud and requiring paternity be established during the father’s lifetime was substantially related to that goal.
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OTHER CLASSIFICATIONS
All other classifications are evaluated under the rational basis standard. These include:
• Age discrimination
• Disability discrimination
• Wealth discrimination
• Economic regulations
EX: Mandatory retirement ages may be established. Also, because education is not a fundamental right, there is no denial of equal protection when wealthier children can afford to pay for access to the best state-operated schools.
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Mandatory retirement ages
Mandatory retirement ages may be established.
235
the suspect classifications
the suspect classifications (race, national origin, and sometimes alienage)
236
quasi-suspect classifications
quasi-suspect classifications (gender and legitimacy),
237
Fundamental rights
Fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).
238
These are NOT rational basis review
The suspect classifications (race, national origin, and sometimes alienage), quasi-suspect classifications (gender and legitimacy), and the fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.
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STRICT SCRUTINY
RACE, National origin, alienage generally
240
INTERMEDIATE SCRUTINY
GENDER, Illegitamcy, Uncodumented alien chidlren
241
RATIONAL ABSIS
Congressional regulation of aliens, age, disability, wealth, all other classifications.
242
Alienage Classifications - Federal Classifications:
Federal Classifications: Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.
243
DISCRIMINATION AGAINST NON-CITIZENS , Generally
Strict scrutiny is used
244
Only ___ is used for Congressional discrimination against non-citizen
Only a rational basis test is used for Congressional discrimination against non-citizen
245
Alienage Classifications - State and Local Classifications
State and Local Classifications: Generally, a state or local law differentiating treatment based on alienage is treated as being based on a suspect classification and is subject to strict scrutiny.
Examples: It is unconstitutional for United States citizenship to be required for state welfare, civil service jobs, or a license to practice law.
EXCEPTIONS: The Supreme Court long has said that the government can reserve some privileges just for citizens, namely those that relate to self-government and the democratic process.
If a law discriminates against alien participation in state government, the rational basis standard is applied. The rational basis standard is also used for state and local laws limiting certain non-elective offices involving important public policy. Thus, government can discriminate against non- citizens with regard to voting; serving on a jury; or taking a job as a police officer, a primary or secondary education teacher, or probation officer.
Compare: The Supreme Court applied strict scrutiny to a law requiring that notaries public be citizens and struck down the law.
246
Only a rational basis test is used for discrimination against non- citizens that concern _____
Only a rational basis test is used for discrimination against non- citizens that concern self-government and the democratic process
247
When can state have alien classifications??
The Supreme Court long has said that the government can reserve some privileges just for citizens, namely those that relate to self-government and the democratic process.
Voting, serving a jury, being a cop, being a probatiob officer
These are rational basis review.
248
Undocumented Aliens
State and local laws that differentiate based on whether a person is an undocumented (“illegal”) alien are not applying a suspect classification. Thus, state laws regarding them are usually subject to a rational basis standard. However, it appears that intermediate scrutiny is used for discrimination against undocumented alien children.
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State laws based on alienage are subject to ___, except when the law concerns ____, and possibly ____, in which case the rational basis test is applied
State laws based on alienage are subject to the strict scrutiny test, except when the law concerns alien participation in the functioning of the state government (and possibly “illegal” alien adults), in which case the rational basis test is applied
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Undocumented immigrant children
It appears that intermediate scrutiny is used for discrimination against undocumented immigrant children
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DISCRIMINATION AGAINST NON-MARITAL CHILDREN
1. Intermediate scrutiny is used
2. Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional
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Laws benefitting all marital children but no non-marital children...
always fail, unconstituional.
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Laws benefitting SOME non-marital children but not ALL non-marital children...
sometimes upheld. like paternity test during fathers lifetime.
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RATIONAL BASIS REVIEW IS USED FOR ALL OTHER TYPES OF DISCRIMINATION UNDER THE CONSTITUTION
1. Age discrimination - never been struck down.
2. Disability discrimination - one got struck down for a disability ordinance.
3. Wealth discrimination
4. Economic regulations
5. Sexual orientation discrimination
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memorize the suspect classifications (____), quasi-suspect classifications (____), and the fundamental rights (____).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.
memorize the suspect classifications (race, national origin, and sometimes alienage), quasi-suspect classifications (gender and legitimacy), and the fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.
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Equal Protection - CLASS of ONE
Class of One: The Supreme Court has recognized—at least in relation to property regulation—that an equal protection claim may be brought not only for discrimination against a group but also for arbitrary treatment of a single individual (known as “a class of one”). However, an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim.
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Fundamental Rights Source
Fundamental rights can be enumerated in the Constitution or unenumerated. Whether an unenumerated right is fundamental depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.
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Funfamental rights scrutiny.
If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, government action must be necessary to protect a compelling governmental interest. (Remember that there must be no less restrictive means to achieve this goal.)
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Substantive Due Process Clauses
Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states).
The Due Process Clause of the Fifth Amendment applies to the federal government.
The Due Process Clause of the Fourteenth Amendment applies to state and local governments. The same tests are applied under each clause.
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Substantive Due Process
2. Prohibition against unreasonable laws
3. Reasonableness test depends on interest involved
a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)— strict scrutiny
1) Government must prove action is necessary to achieve a compelling government interest
b. All other interests—rational basis
1) Challenger must prove action not rationally related to any legitimate government interest
4. Requires laws to give fair notice of conduct that is forbidden or required
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Equal Protection
14th Amendment prohibition against unreasonable discrimination by states.
Test for reasonableness depends on criteria used to classify (suspect or quasi- suspect class) and nature of right (fundamental right)
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Equal Protection - a. Discriminatory intent by government:
1) Law discriminatory on its face
2) Discriminatory in application
3) Discriminatory motive
4) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies
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Equal Protection - b. Suspect classification (race and national origin) or fundamental right—strict scrutiny
1) Government must prove action is necessary to achieve a compelling government interest
2) Affirmative action (favoring minorities) invalid unless:
a) Seeking to remedy past discrimination within jurisdiction
3) Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body
a) Cannot be a special/weighty factor
4) Alienage— state/local laws on alienage are suspect, except alienage can be considered for state employment positions involving theself-government process (including police officers and primary and secondary schoolteachers)
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Equal Protection - c. Quasi-suspect classification (sex and legitimacy)
—intermediate scrutiny
1) Government must show discrimination is substantially related to an impor- tant government interest
2) Sex discrimination—exceedingly persuasive justification required
a) Interest must be genuine and not hypothesized
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Equal Protection - d. All other classifications
—rational basis standard
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Other Privacy Rights
Include marriage, use of contraceptives, possession of obscene reading material in the home (except child pornography), right to live with extended family, right to educate and raise children
1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent
2. Intimate private, noncommercial sexual contact between fully consenting adults—no legitimate government interest in regulation.
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Voting Rights
1. Short residency requirement (for example, 30 days)—valid
2. One person, one vote
a. Congressional elections—almost exact mathematical equality required (a few percentage points may be fatal)
b. State and local elections—variance not unjustifiably large (16% variance upheld)
3. Fees—cannot preclude indigent candidates
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Laws prohibiting nonresidents from voting
Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or "rational basis," standard. Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city's mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting.
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Gerrymandering
preserving political subdivisions is a legitimate state interest that justifies the plan's variance in representation.
the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. Generally, if the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)-16% variance upheld]
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Right to Travel Interstate
1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30-day period probably okay; one year invalid)
2. Distinctions between old and new residents—invalid
