Constitutional Law II Outline- Chemerinsky

Constitutional Law II Outline Procedural Due Process: the procedures the government must follow when it takes away a person‘s life, liberty or property. (Notice && right be heard) Questions to ask for Analysis 1. Who‘s doing the depriving? (Looking for a state actor here) a. 10th Amendment: No state shall deprive a citizen of their life, liberty, or property without due process of law 2. Is there a Deprivation? (Is a liberty (substantive right) or property interest (NOT defined by the Constitution; look to some independent source [K, statutory entitlement, etc] for this) being taken away?) Social Security (disability---considered property interest) 3. How much process is due? (Finesse Test—sometimes you need a little, sometimes you need a lot; the greater the interest, the greater the process; depends upon the liberty or property interest is at stake) This is the balancing test applied.

Substantive Due Process: whether the government has an adequate reason for taking away a person‘s life, liberty or property. Just taking about dry water. Liberty: freedom right Two due process clauses: - 5th amendment (applies against the federal government) - 14th amendment (against states) 14th amendment adopted in 1868 Rational Basis: reasonably related and neither arbitrary nor discriminatory (capricious, erratic)… reasonable minds differ Amendment 14 section 1 1. Citizenship – born or naturalized 2. P & I of national citizens a. Federal Government b. National Character c. Constitution d. Laws 3. Due Process Clause (doesn‘t use the word citizens, applies to persons which includes aliens) life, liberty, or property 4. Equal Protection Lawrence v. Texas – fundamentally protected liberty interest to engage in consensual sexual relationship Barron v. Baltimore 1

S.Ct. decided the first 10 amendments were expressed in general terms and therefore would only apply to the federal government o States have their own constitutions o Constitution can only limit states when expressly stated o Never overruled Slaughterhouse cases First time the S.Ct. interpreted the Bill of Rights and determined that it only protects the rights we have by being a citizen of the U.S., not a citizen of states o Bill of rights are common law and therefore do not owe their existence to the constitution o Privileges and Immunities National Citizenship Test: those that owe their existence to the federal government, its national character, its constitution or its laws o Never overruled Selective incorporation: incorporated nearly every right of the Bill of Rights and up to the 14th amendment: - Not incorporated: o 3rd amendment solider quartered in a home o 5th amendment right to a grand jury indictment o 7th amendment right to a jury in a civil trial o 8th amendment excessive fines LOCHNER ERA Allgeyer v. Louisiana Louisiana attempts to stop out of state companies from enjoying contracts with Louisiana residents. o S.Ct. determined unconstitutional because Liberty of Contract o Decision based on the freedom to contract It is unconstitutional for the government to interfere with one‘s LIBERTY to contract under the due process clause. The word liberty in the Due Process Clause of the 14th Amendment interpreted to include economic liberties Lochner v. New York (Judicial Deference to Legislative Choices in this Era) NY attempted to limit the number of hours that bakers could work. NY claims police powers for health and safety reasons o S.Ct. determined unconstitutional because of Liberty to Contract th Both 5 and 14th Amendments Due Process Clause assume Liberty to K. No legitimate Police power, unconstitutional as to Liberty of K. Legitimate police power would allow for interference with one‘s freedom to K. (Ct decision)

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Coppage v. Kansas Kansas says it is illegal to require employees to agree not to join a union as a condition of employment o S.Ct. determined this is not allowed because of the freedom to contract It is outside the scope of state police power to prohibit employment contracts that bar workers from joining a union. Muller v. Oregon Brandeis brief attempted to set the maximum hours that women could work. The State justified as a valid police power. o S.Ct. upholds the statute to protect woman Valid police power to protect women from overworking Adkins v. Children’s Hospital This case deals with an Act by Congress that set a minimum wage for women and children to balance an unequal bargaining power. o Ct determines this is arbitrary because it has nothing to do with the type of work or the person‘s skills o Ct determines unconstitutional o Case brought under the 5th amendment Due Process Clause o OVERRULED by West Coast Hotel v. Parrish Weaver v. Palmer Bros. Co. ―Shoddy‖ material used and a statute prohibits the use o No evidence showing any health or safety hazard o Statute is arbitrary and unreasonable Violates the due process clause of the 14th Amendment because buyers should be free to choose what kind of materials they want to purchase.

Any time the state tried to interfere with a K, presumption against Violation of Substantive Due Process Rights, the only acceptable state claim was for safety, health, moral, or general welfare Nebbia v. New York NY set a minimum and maximum for the price of milk o Ct determines that under the freedom of contract this is OK o This act prevents ruthless competition o Milk is an essential part of the diet o Rational Basis: ―reasonable relationship and not arbitrary or discriminatory‖ Stands for the proposition that it bears a Minimal Causal Connection with the minimum and maximum of the sale of milk, thus not arbitrary 3

SECTION RECAP: No exclusive definition for liberty in the 14th Amendment Ideological interpretation of the substantive due process  The right you got was right to K This substantive due process was going to change  The Ct changed w/ FDR and the ―New Deal‖

1937-Now ECONOMIC SUBSTANTIVE DUE PROCESS West Coast Hotel v. Parrish State of Washington set the minimum wage for women. The state claimed that protecting women is in the public‘s interest. o Case brought under the 14th amendment due process clause o S.Ct. used rational basis to determine the minimum wage law is constitutional o As long as reasonable minds differ it will be upheld  Must show that its arbitrary and capricious and basically we ALL agree for it not to be rational o This case overruled Adkins case A state can set the minimum wage for women Struck down Lochner 3 NEW themes: 1. States can act to further any purpose not forbidden by the Const. (10th Amend) 2. States not limited to using JUST police powers 3. States may use any way that is reasonable to achieve their ends United States v. Carolene Products Co. 1938 Congress passed the ―Filled Milk Act‖ which prohibited milk being sold and shipped through interstate commerce that was compounded with any fat or oil other than milk fact. o Congress relies on their commerce power o Footnote 4 is very important…see page 627-628 of textbook  Paves the way for higher judicial scrutiny o Ct uses rational basis to uphold the legislation (any basis to uphold the legislation and it will be upheld) o Economic Liberties are not fundamental; receive Rational Basis Review Williamson v. Lee Optical of Oklahoma Inc. State law prohibited any person from fitting or duplicating lenses unless a licensed ophthalmologist.

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o The day is gone when this Court uses the Due Process Clause of the 14th amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. o People should resort to the polls, not to the courts o Ct. determines the law is OK and if people want change then they should vote for change o Ct used rational basis State Action!!! BMW of North America, Inc. v. Gore Gore sued over his BMW being repainted before being sold for full price. Settlement of $4mil punitive damages involving only $4,000 actual damages. The punitive was reduced to $2mil. Issue is whether the punitive damages are grossly excessive. o Ct. used this test to determine punitive award is grossly excessive:  The degree of reprehensibility (HOW BAD WAS IT?)  The disparity between the harm or potential harm and the punitive damage award (RATIO)  The difference between the remedy and the civil penalties authorized or imposed in comparable cases (AWARD COMPARED TO CIVIL PENALTIES) o Ratio of 500 to 1 ―raise a suspicious judicial eyebrow‖ o Transcends the constitutional limit A person can sue for punitive damages, but they must be limited to the damages suffered. State Farm Mutual Automobile Insurance Co. v. Campbell Award of $145 Mil punitive and $1 Mil compensatory damages o S.Ct. used BMW guideposts to reach a decision o 145 to 1 ratio o Single digit multipliers are more likely to comport with due process (1 to 9 max) o Punishment must be reasonable and proportionate o Grossly excessive under the due process clause Philip Morris U.S.A. v. Williams Williams died after smoking for most of his life; his widow sued. The jury awarded $79.5 Mil in punitive damages designed to punish the company for its actions against smokers who were not part of the suit. o S.Ct. determined you can‘t punish for others, only the plaintiff in the case o Such an award would amount to a taking without due process o Single digit award is constitutional, double maybe The Contracts Clause: - History: preventing states from passing laws that could end obligations after Revolutionary war 5

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Limits regulations on existing contracts, but not future contracts Level of review: Rational Basis No Federal Contracts Clauseonly applies to States State/Local Gov‘t may interfere with private Ks, only if actions are reasonably and narrowly tailored to serve legitimate and important gov‘t interest. Analysis: 1. Substantial Impairment 2. Sig end, legit public purpose 3. Conditions reasonably related to mtg public purpose Home Building & Loan Assn. v. Blaisdell Minnesota Mortgage Moratorium Law allowed people more time/postpone foreclosure sales during economic emergency times. o State used a reserved power o Ct. determined that mortgages were not abolished but simply delayed o This is a temporary measure and the obligation remains therefore it does not violate the Contracts Clause. o Ct. determined that an emergency existed, legislation was addressed to a legitimate end, relief was justified, the length of time for relief was not unreasonable and legislation was temporary. o Degree of Impairment was not considered substantial; delayed obligation, rather than abolishing it; interest to society itself, individualized protection; no benefit to the state, help to citizens Energy Reserves Group, Inc. v. Kansas Power and Light Co. Kansas adopted a law that provided the price to be paid for natural gas under a contract could not be increased because of the prices set by federal authorities. The state law prevented the natural gas producer from charging higher prices that it was entitled to under the contract. o In order to determine whether this law violates the Contracts Clause, 3 step test:  Does this amount to a substantial impairment?  Is there a significant and legitimate public purpose?  Are the conditions reasonably related to meeting the public purpose? o Ct. determines Kansas did not violate the Contracts Clause o Significant public interest, protecting consumers, no per say state interest Allied Structural Steel Co. v. Spannaus Minnesota created a pension law that interfered with Allied‘s pension structure. o Ct. determined that the state law operated as a substantial impairment on the contractual relationship. o Due to the severe impact, the State law is unconstitutional under the Contracts Clause. o K was in place before the law was created, cannot come up with pension act to force payment United States Trust Co. v. New Jersey 6

In 1962 NY & NJ prohibited toll revenues to subsidize the rail service for the purpose of ensuring the tolls covered the bondholders. Once the energy crisis hit, both NY & NJ repealed the laws to allow the tolls to support the rail service. o Ct. determined that the Contracts Clause prohibits the repeal of the 1962 covenant o If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contracts Clause would provide no protection at all. o When the gov‘t interferes with gov‘t K, high standard (strict scrutiny) o Bondholders had expectations of the bonds and what was expected of their K o Difference: unlike the previous cases , no PUBLIC interest at stake, only beneficiary is state, where bondholders are jeopardized. The Takings Clause (5th Amendment): - Limitation on the federal government - 1st right incorporated from the Bill of Rights - Private property, taken, for public use, and has paid just compensation Purpose is to provide assurance that the gov‘t will not take property from some to give to others Spreading Loss –to avoid individuals having to bear the cost of particular public good, which should be for everyone to bear. Has a taking occurred? Requirements… 1) Two types: Physical Taking: occurs when the government confiscates or physically occupies property. Regulatory Taking: occurs when the government‘s regulation leaves no reasonably economically viable use of the property. 2) For a Public Use or Purpose Analysis: Private property Taken (physical, occupying, regulation) Public use (Public Purpose Requirement) Just compensation (Reasonable Value for the property) Loretto v. Teleprompter Manhattan CATV Corp. NY law provided that landlords had to allow cable television operators to install cable on their property. NY believed cable to be important and it gave tenants a choice. o Ct. determined that the cable running on the building is a taking because of the permanent physical attachment and the government authorized it by creating a law requiring landlords to allow the attachment. o Regardless of the extent of the occupation, just compensation must be paid Pennsylvania Coal Co. v. Mahon PA statute prevented the mining of coal under a property in such a way as to remove the supports and cause a subsidence of the surface of their house. State claims act is designed to protect the safety and the surface of the property. 7

o Ct. determines the general rule is that just because there is a regulation does not amount to a taking, however if it goes too far it will be recognized as a taking & the gov‘t must pay just compensation. o Consider the extent of the taking Miller v. Schoene NOT a taking Cedar Rust Act- allows the killing of cedar trees in order to protect the apple trees. Apple orchards were important to the economy Public Interest involved in the trees and Economy o Ct. determines this is the only practicable method to control the disease, the choice is unavoidable and therefore not a taking… this does not go too far. Ad Hoc Test: 1) economic impact of the regulation on the claimant; 2) the extent to which the regulation has interfered with investment-backed expectations; and 3) the character of the government action. Penn Central Transportation Co. v. New York City NY established historic landmark law that is designed to preserve historical landmarks. Case involved Grand Central Station, owners of Grand Central wanted to build on top of the building, but the historic landmark would not allow. The court applied the Ad Hoc Test. o Ct. determined that economic value is not effected, not a complete prohibition and no physical invasion. o Any regulation that amounts to anywhere between no effect and total effect is subject to the following factors: (1) the economic impact of the regulation on the claimant (2) the extent to which the regulation interferes with expectations (3) the character of the governmental action. o Not a taking Lucas v. South Carolina Coastal Council Lucas bought beachfront property with the intention of building on it. Two years after purchase S.C. enacted the Beachfront Management act that barred Lucas from building on the land. o Ct. determined the act left Lucas with ―no economically viable use,‖ therefore it was a taking that resulted in compensation. o Taking = total deprivation of the economic use of the property. The Gov‘t does have a right to take private property but the owner MUST be properly compensated Where there is ―no economically viable use,‖ it is a taking

Nollan v. California Coastal Commn. (ZONING ORDINANCE)

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CA limited building on a beachfront on the owners‘ granting the public an easement to cross the property for beach access. o Ct. determined taking because of easement and the condition does not relate to the government purpose. o The land use regulation is extortion. The condition MUST relate to the gov‘t purpose. *Strong presumptions in favor of zoning ordinances Dolan v. City of Tigard (ZONING ORDINANCE) Dolan wanted to expand her store and the city conditioned the expansion on dedicating a portion of the property to provide adequate storm drainage and a pedestrian and bike path. o Cannot use the conditioning of the property to obtain an easement o Ct. determines ―Roughly Proportionate‖ is the proper test for the 5th amendment.  The condition placed on the development must relate to the development.  Stricter than rational basis  There must be some proportionality between the condition and the impact on the proposed development Palazzolo v. Rhode Island Palazzolo bought land under a corporation name in 1959; he attempted to build on the land several times and was prevented by the state. In 1978, the corporate charter was revoked, transferring title solely to Palazzolo. Again attempts were made to build on the land. In 1971, Rhode Island enacted legislation calling Palazzolo‘s land a ―coastal wetland.‖ Palazzolo sued for a taking because of the complete bar of building on his land. Inverse condemnation proceeding—gov‘t takes the property, but fails to pay just compensation for the loss of value o Time does not lessen the burden of the taking and therefore even an owner who takes title of the property after a government regulation can still claim the taking. o The property was not a total taking because it retained 6% of its total development value and Palazzolo can still build on the property. Koontz v. St. John’s River Water Management District Conditions, whether precedent or subsequent, are unconstitutional Would have been a taking, but nothing was ever seized Remanded to the state court to assess damages that may be available Nolan/Dolan requirements should also be applied here. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency Lake Tahoe imposed a 32 month moratorium on development to formulate a comprehensive land use plan. o Ct. weighs the fairness and justice interests and determines the 32 month moratorium is not a taking. Hawaii Housing Authority v. Midkiff 9

Hawaii enacted legislation to break the oligopoly of land ownership by creating the HHA which enables the HHA to condemn and seize the properties. o Ct. discusses public use; calling it well-nigh conclusive (meaning ―all but‖) gives deference to the legislature. o Any conceivable justification and it is permissible o The act is constitutional because the landowners are compensated and it is for public use. Kelo v. City of New London New London condemned private residences in order to use their property as part of a planned economic development. o Ct. determines economic revival is public use o Any conceivable public use will be allowed o Used Midkiff and Berman to hold that a taking is for public use so long as the gov‘t acts out of a reasonable belief that the taking will benefit the public. The court gives unlimited discretion as far as the determination of eminent domain in finding there is a public purpose. Brown v. Legal Foundation of Washington Interest from client funds in a lawyer‘s trust account automatically became the property of the Legal Foundation of Washington because the State enacted a program for trust accounts. o Ct determines that the money is not payable to the client and therefore no taking and no compensation is required. o Just compensation is measured in terms of what the owner has lost, not what the taker has gained Equal Protection 14th amendment: No state shall  no explicit statement for the federal government, but the S.Ct. has interpreted the 5th amendment Due Process clause to apply EP to the federal government Due Process clause measures the constitutionality of Framework for EP Analysis:  General Issue: Can the gov‘t ID an important objective for its discrimination? Questions to ask: 1) What is the government’s classification? 1a) Is it discriminatory on its face? 1b) Or is it neutral but has a discriminatory effect? (Discriminatory impact is not enough, must show a discriminatory purpose) Race, national origin and sometimes alienage= suspect classification= strict scrutiny - Burden of proof is on the government - Strict Scrutiny: 1) compelling/overriding governmental interest; 2) means chosen is narrowly tailored/least restrictive or no other way Gender, non-marital children= intermediate scrutiny - Burden of proof is on the government 10

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Intermediate Scrutiny: 1) important governmental interest; 2) substantially related to that interest All other classifications= rational basis - Burden of proof is on the party who is attacking - Rational Basis: 1) no legitimate governmental interest; 2) not rationally related o Legitimate governmental interest= any governmental interest o If reasonable minds can differ it will be constitutional o Strong presumption in favor of the government o Unconstitutional if arbitrary & capricious Meaningful Rational Basis (falls between rational basis and intermediate scrutiny): Rational Basis with a bite Over-inclusive vs. under-inclusive (simply either is not enough to render unconstitutional) - Over-inclusive means it contains more than necessary; - Under-inclusive means it doesn’t include everyone; law does not apply to ALL individuals who are similar to those whom the law applies

Colorado adopted an amendment to prevent discrimination statues from protecting people on the basis of sexual orientation. o Immediate objective was to repeal existing statues, regulations, etc. o Amendment withdrew from homosexuals, no one else o Nullified specific legal protections for homosexuals in all transactions o Operated to repeal laws and policies that provided specific protections for homosexuals o Imposes special disability on this class o Had the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and invalid form of legislation o Sheer breadth so discontinuous with its reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. o Ct. determined no rational reason other than harming homosexuals  The only purpose was to make them unequal  Bowers v. Hardwick determined sexual orientation to be rational basis level of review United States Railroad Retirement Board v. Fritz Retirement act created different categories for retirement benefits, eliminating some from receiving windfall benefits. Π class sought declaratory judgment that the Act was unconstitutional under the Due Process clause of the 5th amendment because it irrationally distinguished between classes of beneficiaries. o Sup. Ct. determined Congress had a plausible reason for creating the categories and therefore under rational basis, no violation. Railway Express Agency, Inc. v. New York 11

NY enacted an advertising statute that prohibited advertising on vehicles unless the vehicle was part of the company, i.e. no mobile billboards. o NY claimed this statute was to prevent distractions to drivers o Ct. determined that statute was constitutional under rational basis because NY had a reason for creating the statute

New York City Transit Authority v. Beazer TA will not allow anyone who uses methadone to work for the TA. This rule is a blanket prohibition on any drug user, including methadone (designed to get the person off drugs). o Ct. used rational basis level of review and even though it is overinclusive the TA has a reason to exclude (high rate of relapse); therefore constitutional. U.S. Dept. of Agriculture v. Moreno 1964 Food stamp act excludes people from the program who have an unrelated individual living in the household. o Amendment created to prevent hippies from participating, stop people from abusing the system and prevent unstable households. o Not enough to be a legitimate interest and therefore does not pass rational basis o No relation to the policy for food stamps City of Cleburne, Texas v. Cleburne Living Center, Inc. Texas has a requirement for a special use permit in order to open a mental retardation home. Cleburne was denied the permit. o Ct. determines mental retardation does not amount to a suspect class and therefore rational basis level of review. o Ct. says that this would open the flood gates if this class was made to be a special class, everyone would be suspect class. o Ct. determines unconstitutional even under rational basis because irrational prejudice no justified reason. Classifications based on race- suspect classifications Dred Scott v. Sanford Dred Scott was a slave that was taken from a slave state to a free state. Scott sued for freedom. o Ct. rules that Dred Scott is not a citizen, property only and therefore not entitled to sue. o This case made the Missouri Compromise unconstitutional. Under the constitution slavery is protected property. o Never expressly overruled, but overruled by the 14th amendment 1865: 13th amendment freed slaves 1868: 14th amendment created EP, overruled Dred Scott

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Classifications based on race are a suspect classification regardless of benefit or disadvantage and therefore Strict Scrutiny applies Demonstration existence of a race or national origin classification: o On it‘s face o Discriminatory administration/impact (also requires proof of discr. purpose)

Korematsu v. United States During WWII, exclusion order required all persons of Japanese ancestry to leave the military area of the Western U.S. Korematsu was convicted of violating the order. o Ct. upholds the law because it is impossible to separate and it was a time of war. o Ct. gives deference to the military to determine what is best during a time of emergency/war. o Compelling interest: National Security o Strict Scrutiny application articulated: ‗All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.‖ (pg 757) o Dissent: Calls it ―legalization of racism‖; says no racial discrimination is justifiable; ―race, and not emergency alone led to the exclusion order.‖ o Jackson Dissent: Supreme Court should not decide whether military make reasonable judgment Loving v. Virginia Virginia statute made inter-racial marriages between whites and blacks illegal. State claimed the purpose was to keep racial integrity and prevent ―corruption of blood‖, ―the obliteration of racial pride.‖ o Trial judge opinion: God created us differently, and separated us; He did not intend for the races to mix o Ct. determines no overriding purpose o Statute not neutrally applied (applies only to whites & blacks) o Under EP & fundamental right to marry this violates the due process clause and is therefore unconstitutional Palmore v. Sidoti White mother divorces white father, they had a child together and the mother retained custody. The mother then started dating a black man, he moved in. The father fights custody because he doesn‘t want the child to live with a black man. o S.Ct. determines that custody cannot be denied based solely on private biases and possible injuries based upon racial reasons. o S.Ct. determines the trial court used racial prejudice and therefore says it‘s unconstitutional.

Plessy v. Ferguson Louisiana act provided for separate railway cars for whites and colored races. Plessy, 7/8 white, 1/8 black took a vacant seat in the white section of the train, He was ordered to

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vacate the car, and upon his refusal, he was ejected by a police officer and taken to jail. Charged with violation of this act. o Case is key as constitutionalizing ―separate but equal‖ under the 14th amendment o State chose to separate for safety reasons o Found that this was within the state‘s exercise of their police powers o Dissent: Called for ―color blind‖ constitution; predicted that this decision would be as infamous as the Dred Scott case; Brown v. Board of Education Case deals with segregated schools. Five cases consolidated into this opinion o Ct. determines ―separate but equal‖ has no place in the education system. o Used social sciences to make decision o Unanimous Decision Brown I – 1954 This involves cases from three states, African Americans seeking public schools without segregation. Separate but equal in school is unconstitutional under EP. This case mandated the dismantling of segregated school system. Shift from dual to unitary schools 1. 2. 3. 4. 5.

Primary Responsibility of implementing Brown is with the School Board Federal courts: Equitable Jurisdiction ―as soon as practicable‖ ―with all deliberate speed‖ Objective is to eliminate state imposed segregation

Brown II- 1955 (fully implemented in 1969) School authorities are charged with complying with the mandate of this decision. Equitable Remedies are available when legal damages will not make the party whole. o $ is not enough (legal damages) o Ct. determines that school authorities must make a ―prompt reasonable start‖, ―as soon as practicable with all deliberate speed.‖  School board has the B/P of showing they are making a ―good faith effort.‖  Ct. knows it will not be an overnight change o Ct. determines that a dual school system violates the constitution and we must dismantle Swann v. Charlotte Mecklenburg Board of Education Busing used as a means to integrate with an objective to eliminate state supported segregation. o Ct. discusses de jure segregation (segregation by operation of law) and de facto (segregation by practice)

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o Ct. says its powers will go as far as need be to correct the wrong, they will and can do whatever is necessary to end segregation. Eliminate all vestiges of segregation. o Remedial Tools (problem areas) to integrate:  1) racial quotas- starting point only, although not favored  2) single-race schools- NOT per se unconstitutional, but strong presumption against  3) altering attendance zones- this is ok and non-discriminatory  4) busing transportation is ok Proving de jure segregation: MUST show segregation w/in school district resulted from deliberate decisions made by school board Milliken v. Bradley Detroit is racially segregated on its own. The African Americans live in the city and the Whites live in the suburbs. Detroit wanted to bus kids from the suburbs to the city and kids from the city to the suburbs in order to break up the segregation. o Ct. determines that the city is de jure segregation but the suburbs are de facto. o You can‘t force a remedy on a district that has never violated the constitution. o Ct. says inter-district relief is appropriate, cannot mix de jure and de facto.  De jure can be corrected by court because there is a constitutional violation.  De facto cannot be fixed or corrected by a court because there is no constitutional violation. Board of Education of Oklahoma City Public Schools v. Dowell Case involves the finger plan, plan designed to end segregation. o Dowell Two Prong Test: 1) good faith compliance by school board to meet desegregation decree and 2) the vestiges of past discrimination had been eliminated to the extent practicable. Freeman v. Pitts Federal desegregation orders will end when its complied with, even if other orders for desegregation remain in place. o Ct. held that once one aspect of desegregation is completed, the court will no longer have the ability to control because it has been complied with. This applies even if other aspects of desegregation are still being attempted. Missouri v. Jenkins Kansas City was ordered to desegregate. The court ruled the efforts made by Missouri for desegregating were impermissible. o The district court attempted to attract non-minority students from outside the district to attend to decrease the segregation.  Ct. ruled this is impermissible because the students outside of the district were not under the desegregation order. o S.Ct. ruled that the district court lacked authority to increase the teacher salaries 15

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District Court believed an increase in salaries would promote desegregation but S.Ct. determined not a necessary remedy. o Disparity in test scores was not enough to continue a desegregation order.  Ct. determined equal opportunity does not mean equal results. Parents Involved in Community Schools v. Seattle School District. No. 1 Seattle voluntarily adopted student assignment plans. The school would choose where a student attended school based solely on the student‘s race. The parents of the students that were denied admittance to a school based solely on race brought suit. o Ct. determined that once a school is no longer under a court order the school will be treated as though there was never desegregation. o Ct. determined the plan is in violation of the constitution under Strict Scrutiny. Johnson v. California This case involved segregating prisoners based on race. o Ct. does not decide the EP issue but remands and requires Strict Scrutiny be applied in determining. Washington v. Davis This case involved a written police exam that had the effect of preventing a disproportionate amount of African Americans from becoming members of the police force. o Ct. states that a law neutral on its face with discriminatory effects is not enough, there must be discriminatory intent. o Disproportionate impact is relevant, but not enough to invoke the Strict Scrutiny standard of review.  Under rational basis you must show the purpose of the rule if the statute is neutral on its face. McCleskey v. Kemp This case involved a challenge to the death penalty statute of GA. The record showed that the death penalty was disproportionately sought and applied to African Americans. o Ct. rules that you must show the decision maker continued to use the statute ―because of‖ not in spite of.  Awareness is not enough City of Mobile v. Bolden City Commission of three members is elected from the voters of the entire city at large. The city was predominately white, which resulted in an all-white committee; however 1/3 of the city is African American. o Even though there has never been an African American elected, it is not enough to show discriminatory purpose. o Ct. rules that a law neutral on its face must have a discriminatory purpose to violate the constitution. Rogers v. Lodge 16

Similar to Mobile v. Bolden. The court determined that this was a violation because in 1982 the amendments to the voting rights act eliminated the need to show a discriminatory purpose when challenging an election system as being racially discriminatory. Palmer v. Thompson Jackson Mississippi responded to a desegregation order by closing its public swimming pools rather than desegregating them. o There is not enough evidence to show that Jackson‘s decision to close its public swimming pools was racially motivated. o The State‘s decision is neutral on its face and therefore no evidence of a violation of EP. Personnel Administrator of Massachusetts v. Feeney This case involved a veteran‘s preference statute. The problem is that 98% of veterans are men so it has the effect of discriminating against women. o Ct. rules that the statute is neutral on its face and that there is no intent to discriminate. o Test: not in spite of but “because of”  Neutral on its face then must show they discriminate because of…

Village of Arlington Heights v. Metro Petitioner wanted to rezone land to build low to moderate income housing but the request was denied. o Ct. determined that if it is neutral on its face but there is a stark pattern and the only way to explain is through discrimination. o Ct. needs to look at other evidence:  The historical background of the decision…  Departures from normal procedural sequence  Substantive departures if the factors usually considered important by the decision maker strongly favor a decision contrary to the one reached  The legislative or administrative history o Ct. still determines lack of evidence to show a discriminatory purpose behind and therefore constitutional Yick Wo v. Hopkins (pg.798) Chinese laundry case city’s ordinance required laundries to be located in brick or stone buildings unless a wavier is obtained. The petitioner alleged that over 200 petitions by Chinese individuals seeking a waiver had been denied but ONE requested by a non-Chinese individual was granted. - Ct. determined “STARK PATTERN” because the administration was so exclusively directed against a particular class of persons as to warrant and require the conclusion that whatever the intent of the ordinance is so unequal and oppressive as to amount to a practical denial by the state of the equal protection of the laws.

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Gomillion v. Lightfoot This case involved a city’s drawing of the voting districts to exclude blacks from participating in the city’s elections. The city drew the district to be a 28 sided figure and all but 4-5 of the 400 blacks were drawn outside of the district with no whites being excluded. - Ct. determined that the “conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing negro citizens out of town to deprive them of their pre-existing municipal vote.”

Preemptory Challenges- given to parties to use at their discretion - Race or Gender cannot be the base of the challenge Batson v. Kentucky three part test: 1. Defendant establishes prime facie case 2. Burden shifts to prosecutor to provide neutral reasons 3. Judge determines whether the neutral reasons are legitimate In a criminal prosecution, equal protection clause prohibits prosecutors from using race as a reason to exclude jurors - In Edmonson, the court held the race cannot be used in civil cases - Georgia v. McCollum held that criminal defendants cannot use race as a basis for eliminating jurors - J.E.B. v. Alabama held that Gender cannot be used a basis on either side for juror exclusion. Affirmative Action

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Regents of the University of California v. Bakke*** 100 seats to enter medical school; 16 set aside for minority seats which left 84 available for any competition. This case represents racial classification on its face. In a 5-4 decision without a majority opinion ruled that race may be used as one factor in admissions to benefit minorities and enhance diversity. o 4 justices: Stevens, Burger, Stewart and Rehnquist ruled that race should ―never‖ be a factor o 1 justice: PowellEP= Strict Scrutiny when involving Race o 4 justices: Brennan, Marshall, White and Blackmun are liberal ruling that EP= Intermediate Scrutiny o Within the confines of higher education, diversity is a compelling governmental interest Bakke said: o Race means race o Strict Scrutiny applies  Compelling govt‘l interest  Least restrictive/No Reasonable Alternative o Race can be a factor; not the SOLE factor (Race-neutral alt must be included) 18

o Interests: correcting past discrimination && diversity Fullilove v. Klutznick S.Ct. again considered affirmative action but did not decide a majority opinion as to the level of scrutiny United States v. Paradise Plurality opinion ruled that Strict Scrutiny was the level of review Wygant v. Jackson Board of Education This case involved faculty diversity of teachers. The school board was attempting to diversify and was laying off white teachers even though they had more seniority than some black teachers in order to prove diversity. o Ct. ruled this was an impermissible affirmative action plan o Plurality opinion: legitimate interests were not narrowly tailored (intermediate level of review) Richmond v. J.A. Croson Co. Minority Business Utilization Plan was designed to increase minority business. The plan required all city construction projects must be subcontracted to at least 30% minority businesses. o Ct. ruled that racial preference must be for remedial purposes and there is no evidence of past discrimination in this case. o Majority of the court even with plurality opinion determined Strict Scrutiny is the level of review

Metro Broadcasting, Inc. v. Federal Communications Commission Case decided a year after Croson in which the S.Ct. held that a congressionally approved affirmative action plan only needs to be Intermediate Scrutiny o Overruled by Adardand

Adardand Constructors, Inc. v. Pena This case overruled Metro after a major change in S.Ct. In a majority opinion the court ruled that ―all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under Strict Scrutiny.‖ o Racial classifications must serve a compelling governmental interest and must be narrowly tailored to further that interest. Grutter v. Bollinger University of Michigan law school used a race conscious admittance program. The admissions office considered many factors but race is taken into account. o Ct. ruled Strict Scrutiny is the level of review.

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o o o o o

The compelling interest is diversity (under Bakke this is a compelling interest).  Race is not the only factor in determining, it is just one factor. Ct. ruled that there was no possibility for the motive for the classification was illegitimate racial prejudice or stereotype. Ct. rules this narrowly tailored use of racial classification was sufficient to achieve the compelling governmental interest and therefore is constitutional. ALL racial factors receive strict scrutiny Must not unduly burden non-members Should be of a limited time; not open-ended (logical end to taking race into consideration at all)

Gratz v. Bollinger This case involved University of Michigan‘s use of racial preferences in the undergraduate admissions process. The college assigned points to each factor considered, most factors are worth 5 points but race is worth 20. School stated the interest was diversity. o Ct. ruled that race cannot be sole factor or a predominant factor.  Not a narrowly tailored approach and therefore unconstitutional. Fisher v. UT Austin Found that the lower court did not apply strict scrutiny; remanded to the lower court for correct application Shaw v. Reno When race is used as a predominate factor to draw district lines, strict scrutiny must be applied. o One way to show race is a predominate factor is if the district is a ―bizarre shape.‖ o Ct. rules that if the only interest is complying with voting rights that is not enough.  Race must be ―the controlling factor‖ Easley v. Cromartie Plaintiff must show a facially neutral law is ―unexplainable on grounds other than race.‖ o To determine if race is a predominate factor:  The district‘s shape  The splitting of towns and counties  High African American voting population Gender Classifications - Immutable characteristic (visible) Reed v. Reed This case was the first time the Supreme Court invalidated a gender classification. This case involved estates where a male was preferred over a female.

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o Rational Basis review was applied: ―a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.‖ Frontiero v. Richardson Case involving a female member of the uniformed services to claim her male spouse as a dependent; such benefits would automatically be given to a male, the female has a burden to prove that her spouse is a dependent. o Plurality opinion- gender based should be suspect class o Ct. used Strict Scrutiny to rule this was unconstitutional Stanton v. Stanton Ct declared unconstitutional a Utah law that required parents to support their female children until age 18, but their male children be supported until age 21. Ct declared the law unconstitutional under ―any test—compelling state interest, or rational basis or something in between.‖ Craig v. Boren Oklahoma statute allowed females to purchase beer at age 18, but required males to be 21. The state claimed the interest was in safety. o Ct. ruled that there must be an important governmental interest and it must be substantially related to that interest to classify on the basis of gender.  Mid-level/Intermediate level of review United States v. Virginia Virginia Military Institute is an all-male school to produce ―citizen-soldiers‖; this case was brought because women wanted to join VMI. o Ct rules that Virginia has shown no ―exceedingly persuasive justification‖ for excluding all women from VMI.  Intermediate Scrutiny  Unconstitutional Geduldig v. Aiello Pregnancy or any disability related to pregnancy was not covered by the disability insurance offered by California. o Ct. used Rational Basis review and finds no discrimination because men can‘t get pregnant and state has a legitimate interest in maintaining the insurance program.  This is an underinclusive program because not all disabilities are covered  Congress overruled the Ct by creating the Pregnancy Discrimination Act. o Ct. says there is no risk from which men are protected and women are not and there is no risk from which women are protected and men are not. Orr v. Orr

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Alabama alimony statutes provide that husbands, but not wives, may be required to pay alimony upon divorce. State used a justification of helping ―needy‖ women and to remediate past discrimination. o Ct used intermediate scrutiny and determined that ―needy‖ is an important governmental interest but it is not substantially related because needy males could not get help.  There is no reason not to have a gender neutral statute Mississippi University for Women v. Hogan All female nursing school barred men from entering. University claims past discrimination and this would disrupt the female students. o Ct. said no past discrimination because nursing is 90% women and men are able to audit to therefore it would not disrupt women if they were able to enroll. o Ct. used intermediate scrutiny and defined ―exceedingly persuasive justification‖: The burden is met only by showing at least the classification serves ―important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.‖ Michael M. v. Superior Court of Sonoma County State statute makes ―statutory rape‖ only a crime for men. Statutory rape is sex with a minor (consensual or not). The state claims the important interest is to prevent illegitimate teenage pregnancies. o Ct. rules this is permissible because it is sufficiently related to ―equalize‖ the deterrents on the sexes. o Ct says a gender neutral statute would frustrate its purpose because females would not report the crime for fear of criminal prosecution.  Rational basis review because women can get pregnant and men cannot. Rostker v. Goldberg Military Selective Service Act only requires males to register for the draft. Women are not permitted to participate in combat and therefore should not have to register. o Ct. gives great weight to Congress and the Military in determining.  Purpose of the SS is to have combat ready and since Congress determined women are prohibited from combat, they cannot be combat ready and therefore only males can. o Ct. rules that Congress acted within the constitution and the SS act does not violate.

Califano v. Webster The Social Security Act allows women to get a slightly higher monthly payment to remedy longstanding disparate treatment of women. Women are economically disadvantaged by men. o Ct. uses intermediate scrutiny and finds this constitutional because of the past disparity. 22

Nruyen v. Immigration & Naturalization Service Court allows a difference in INS rules favoring mothers over fathers because of the greater certainty as to the identity of the mother as compared to the father and the greater opportunity that mothers have in establishing a relationship with their children. o Majority uses intermediate scrutiny to find constitutional Alienage Classifications 1) Equal protection or 2) preemption Questions to ask: 1) Who is doing the classification? - Level of review depends on federal or state 2) Documented or undocumented alien? (Documented are legally in the country) 3) Does the classification deal with social/welfare benefits, political processes or the inherent right of citizens to be governed by citizens?-Social welfare= strict scrutiny Graham v. Richardson State conditioned welfare benefits on alienage (citizenship) o Ct. ruled this violated the constitution and used strict scrutiny because the injured were documented  Under the questions to ask: 1) state, 2) legal resident and 3) social welfare  Both over and under inclusion Foley v. Connelie NY State has a statute that does not allow people on the police force unless they are a citizen. o Ct used rational basis turning to political process as a reason for the statute o State has the power to exclude aliens from participating in democratic institutions o Citizens have inherent rights that aliens do not:  Right to vote  Right to seek office  Jury service  TEST: Non-elective positions that formulate execution, formulation, or review (interpretation) of broad public policy will be held to RATIONAL BASIS Standard of Review! Ambach v. Norwick NY education law forbids certification as a public school teacher to any person who is not a US citizen, unless that person has manifested an intention to apply for citizenship. This case involves two people who do not want to become a U.S. citizen but want to teach. o Ct. used rational basis to determine the NY statute is permissible.  Teachers set examples for students, they have influence over our children and we have an interest in choosing who teaches our children. Plyer v. Doe 23

Texas denied undocumented school-age children from free public education. o Ct. used rational basis to determine that this is impermissible.  We cannot punish the children because of the status of their parents Independent Federal Admin Agency---no deference; Foley Test applies; Strict Scrutiny Executive and Legislative Gov‘t Branch---broad deference applied; No application here; Rational Basis Non-marital Children -intermediate scrutiny Types: Age, Wealth, Disability, Sexual Orientation Clark v. Jeter S.Ct. declared unconstitutional a state law that required a non-martial child to establish paternity within six years of birth in order to seek support from his or her father. o The Court ruled that intermediate scrutiny is used for discriminatory classifications based on illegitimacy.  We do not punish the child Levy v. Louisiana S.Ct. declared unconstitutional a state law that prevented non-martial children from suing under a wrongful death statute for losses because of a mother‘s death. o Legitimacy or Illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. Lalli v. Lalli S.Ct. upheld a state law that provided that a non-martial child could inherit from his or her father only if paternity was established during the father‘s lifetime. o State has an important interest in preventing fraud and that requiring paternity to be established during the lifetime was substantially related.  Intermediate Scrutiny Other types of Discrimination: Rational Basis Review Massachusetts Board of Retirement v. Murgia State law required police officers to retire at age 50. o Ct. uses rational basis to determine this is valid  There is no fundamental right to work for the government  No special class for aging/ everyone ages  Legitimate state interest in safety and it is rationally related to that purpose  This is overinclusive but it does not make it invalid Discrimination based on Disability: Rational basis is used but the American Disabilities Act broadly prohibits discrimination Wealth Discrimination: Rational basis

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Discrimination based on Sexual Orientation: See Romer v. Evans = rational basis Fundamental Rights Defined: a right that is deeply rooted in our nation‘s history and traditions -key to these rights is ―LIBERTY‖ Court determines fundamental rights: 1) Traditionally recognized 2) History 3) ―Deeply embedded moral consensus that exists in society‖ 4) ―So rooted in our traditions and conscience of our people as to be ranked as fundamental.‖ Zablocki v. Redhail Statute prevented marriage if back child support is owed. The state asserted its interests were to have an opportunity to counsel the applicant on fulfilling his obligations and to ensure the welfare of the child. o The Court determined the State interests were legitimate but they were unrelated and not the least restrictive means to fulfill the states purpose. o Marriage is a fundamental right and the state has other ways in place to meet the State‘s objectives without denying a fundamental right. o The Court used intermediate scrutiny to rule this statute unconstitutional  ―sufficiently important state interest that is closely tailored‖ Stanley v. Illinois Unwed fathers lost custody of their children if the mother died. The children became wards of the state. o Court determined this is impermissible. There is a right to conceive and raise one‘s children.  The Ct. determines fathers have an interest.  State‘s reason for this was a presumption that if the fathers did not care enough to marry, they wouldn‘t care for the children. Lehr v. Robinson Case involved a non-martial father who had not supported his two-year old child and had not registered his parental interest in a state registry. o The S. Ct. ruled that the state could terminate his parental rights without notice or a hearing.  Distinguished Stanley because in that case the father was active in the child‘s life. Here, a simple biological link does not merit constitutional protection. Michael H. v. Gerald D. California has a statute that provides a conclusive presumption that if a child is born while the husband is living with the wife and the husband is not sterile or impotent, then the child is that of the husband.

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o Ct determines this presumption does not violate a fundamental right and is therefore permissible. o State may create an irrebuttable presumption that a married woman‘s husband is the father of her children Moore v. City of East Cleveland, Ohio Ordinance limits occupancy of a home to members of a single family. In this case, the grandmother lived with her son, grandson and another grandson from another son. o Ct rules this ordinance as violating the fundamental right of family. The city‘s reasons for the ordinance may be legitimate but they only marginally are met with this ordinance. o Constitution protects the sanctity of family because it is deeply rooted in our history and tradition. Meyer v. Nebraska This case involved a teacher that unlawfully taught the German language to a child 10 years of age. o The Ct. determined that parents have a right to raise their child and to choose how to educate them. However, a statute that makes it a crime to teach a child any language other than the English language violates the Due Process clause. o Learning a foreign language is not injurious to the health, morals or understanding of the ordinary child. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary Oregon created an act that required children from 8 to 16 years of age to attend only a public school. It made it a crime for a child to attend private school. o Ct. stated that parents have rights over their children‘s care, custody and control and therefore have the right to send them to private school if they choose. Troxel v. Granville Washington enacted a code that permits ―any person‖ to petition the court for visitation rights ―at any time‖ and authorizes the court to grant the visitation whenever ―visitation is in the best interest of the child.‖ o One of the oldest liberty interests recognized by the court is a parent‘s fundamental right in the care, custody and control of their children. o Court holds the statute is much too broad and infringes on a parent‘s rights and therefore is unconstitutional. Buck v. Bell This case involved the involuntary sterilization of a mentally disabled woman. The court upheld the sterilization. Justice Holmes said ―three generations of imbeciles are enough.‖ o Overruled by Skinner v. Oklahoma Skinner v. Oklahoma Oklahoma had a statute that would sterilize ―habitual criminals.‖

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o Court overruled Buck v. Bell and stated that the right to procreate is a fundamental right.  Court also says Marriage is a fundamental right  Court uses Strict Scrutiny for a fundamental right  Decided on the grounds of Equal Protection

Griswold v. Connecticut Statute makes it a crime to provide birth control and for anyone to use birth control. o Court recognizes the implicit right to privacy because of the intimate relationship between husband and wife o ONLY applies to marital relationships o Statute is unconstitutional o Privacy is not specifically expressed in the constitution  Implied by the 4th amendment, first amendment right of association, 3rd amendment and the 5th amendment.  ―zone of privacy‖ is created by several fundamental rights  Rights can be regulated but not completely banned Eisenstadt v. Baird Contraception was given to unmarried students, the statute treated married and single people differently. o Court applies right to privacy to individuals, married or single and declares this statute unconstitutional.  Rational basis Carey v. Population Services International NY made it a crime for anyone other than a licensed pharmacist to distribute contraceptives to anyone over the age of 15, to distribute contraceptives to a minor under the age of 16 or to advertise contraceptives. o Court used Strict Scrutiny and said ―compelling‖ is the key.  Unduly restricted access to birth control and interfered with the right to control procreation. Roe v. Wade Abortion rights o Court determines that the woman‘s right to choose stems from privacy interests but the state also has an interest in safety. o Court rules that abortion rights break down by trimester:  1st trimester (0 to 3 months) it is up to the mother and the doctor (ABSOLUTE)  2nd trimester (3-6 months) state may regulate for mother‘s health (there IS a compelling interest here)  3rd trimester-Post Viability (6-9 months) state has an interest in the life of the fetus except for the mother‘s life or safety.

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Planned Parenthood v. Casey Deals with abortion rights o Court reaffirmed Roe’s essential holding that a woman has the right to choose but abandoned the trimester approach.  Court changes to viability/pre-viability req’t  About 23 weeks or 5 ½ months (viable)  State may not place an undue burden pre-viability  Rules that unduly burdensome is the rule (cannot provide a substantial obstacle in the woman’s right to choose pre-viability)  State has an interest in the potential life of the fetus  State has the power to restrict abortions after the fetus is viable, unless the mother’s life or health is in danger o State may regulate at ANY POINT but cannot provide an undue burden  State has a legitimate interest from the beginning of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.  Reasoned Judgment Gonzales v. Carhart Partial birth abortion (at any time during pregnancy) banned by Congress o Court determines that the ban does not place an undue burden. City of Akron v. Akron Center for Reproductive Health, Inc. This case was decided before Casey, it involves a 24 hour waiting period from the time a woman signs the consent form before the abortion can be performed. o The court ruled the 24 hour waiting period unconstitutional HOWEVER, this issue was revisited in Casey and determined not to be an undue burden. Casey also established that informed consent is not an undue burden. Maher v. Roe Medicaid limited paying for abortions unless they are medically necessary. Medicaid will pay for childbirth. o The Court determined that this is a policy choice left to the legislature. o The right to choose is a fundamental right, but there is no right to have the government pay for the abortion.  Court ruled that indigency is not a suspect class.  Appropriate forum is the legislature. Never required to use gov‘t money for abortions! Planned Parenthood v. Danforth Missouri law required that a husband give his written consent for his spouse to obtain an abortion. o Court ruled that this would give the husband a complete veto power. o Woman has more with this decision because she is the one carrying the child for the nine months and it is her body therefore the court weighs the decision more in the woman‘s favor. 28

o Court declared the required consent of the husband unconstitutional. Planned Parenthood v. Danforth Statute required that a married woman seeking an abortion must sign a statement that she notified her spouse. o Court determines that this is an undue burden (places a substantial obstacle in the way of the woman‘s right to choose). Bellotti v. Baird This case was decided before Casey and deals with a minor‘s ability to obtain an abortion without parental consent. This is a plurality opinion. o Court determined that children‘s rights are not the same as adults:  Children are vulnerable  Difficulty in making critical decisions  Parental role in child rearing o State can require parental notice/consent but there must exist an alternative  Alternative is the judicial bypass (going before a judge)  Child goes before a judge and the court determines if the child is mature enough to decide or if the abortion is in the best interest of the child Jacobson v. Massachusetts S.Ct. upheld a law that required vaccinations because the government has a compelling interest in stopping the spread of communicable diseases. Washington v. Harper Ct. determined that prisoners have a right to be free from involuntary administered antipsychotic drugs. However this right to be free is protected by providing notice and a hearing to challenge the decision to administer the drugs. Cruzan v. Director, Missouri Dept. of Health This case is similar to Terry Shivo. A woman‘s parents wanted to stop her artificial feeding and hydration equipment because it was apparent that she had virtually no chance of recovering her cognitive abilities. o Incompetent person is unable to make an informed choice. o The burden is on the family to prove by clear and convincing evidence of what the patient‘s wishes would be regarding her life sustaining equipment. Washington v. Glucksberg Washington law prohibits aiding or causing a suicide. (Physician assisted suicide case) o Court applied the rational basis standard to determine that the ban on suicide does not violate the constitution. o Due Process (KNOW FOR EXAM)  Specifically protects those ll and liberties which are ―deeply rooted in this Nation‘s history and tradition, and implicit in the concept of ordered

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liberty such that neither liberty nor justice would exist if they were sacrificed.‖  We require in substantive-due process cases a ―careful description‖ of the asserted fundamental liberty interest. Our Nation‘s history, legal traditions, and practices thus provide the crucial ―guideposts for responsible decision making,‖ that direct and restrain our exposition of the Due Process Clause. o Right to privacy DOES NOT include physician-assisted death Vacco v. Quill NY makes it a crime to commit or attempt suicide but patients may refuse lifesaving treatment. o Court determines that NY has valid and important public interests that satisfy the rational basis analysis.  Everyone regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.  doesn‘t discriminate -

\ Whalen v. Roe NY requires certain prescription drugs be written on triplicate form in order to maintain a record of those drugs. NY claims an interest in regulating controlled substances. o Court determines that NY‘s interest outweighs the privacy interest claimed to be violated by the statute. o Court validates the statute and holds it constitutional. Saenz v. Roe This case involved CA attempting to limit the amount of welfare benefits a new citizen receives. CA states that a citizen who has not lived in CA for at least a year is entitled to the welfare benefits that the person would have had in the state they lived in prior to moving. Once the year is up, they are entitled to the higher CA benefits. o Court states that citizens have a fundamental right to travel.  Strict Scrutiny  Shapiro v. Thompson: struck down a residency requirement o Court says the right to travel:  Protects the rights of a citizen of one state to enter and leave another state  The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state  For those travelers who elect to become permanent residents, to be treated like other citizens of that state. o Right to travel (Interstate, not International):  Ingress/egress  Inherent nature of our federal system  Articles of confederation  Commerce Clause of the Constitution (one nation) 30

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Welcome Visitor  Article IV, sec 2 substantial/substantial test  Intermediate scrutiny  No discrimination  Right of new citizens to be treated like other citizens  14th amendment citizenship clause  Citizen of the U.S. is also a citizen of the state in which they reside o Court strikes down CA residency requirement for the welfare benefits  Court has upheld residency requirements for in-state tuition and divorces  No fundamental right to international travel Right to Vote - Amendments: 15th (Denial on basis of RACE), 19th, 24th and 26th - 14th amendment makes the right to vote a fundamental right Reapportionment by the legislature is NOT a political question and therefore the Court can decide. - Congressional Reapportionment is HOR in Congress, legislative reapportionment is done by the state legislature - Reapportionment is always a state legislative function Harper v. Virginia State Board of Elections Virginia has a poll tax requiring voters to pay a small fee to cast their vote. o Ct. says right to vote is fundamental so Strict Scrutiny is applied  The poll tax infringes on the right to vote and therefore is unconstitutional Reynolds v. Sims 60 years since the last apportionment of the Alabama legislature. o Ct determines that mal-apportionment violates equal protection. o The Ct determines that districts should be apportioned to the population 1 person = 1 vote o Legislature must make an “honest, good faith effort” to draw a district of equal population as is practicable.  Take the total # of votes and divide by the # of districts  Ex. 100 seats with a populations of 100,000  100,000/100 = 1,000 per district  After lines are drawn, count the population o Determine the one that exceeds by the most and the one that is under by the least  Take the difference between the most and the least and that gives the variation %/. Wesberry v. Sanders 1 person 1 vote applies to legislature, congressional seats, local gov‘t officials, special purpose gov‘t unit, o Dilution/reapportionment ―1 person, 1 vote‖ applies to HOR 31

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Equal or same population 5.9% for HOR is not close enough  Only those minute variations in the quest for absolute voter equality

Who has the duty to reapportion the state legislature? Entire state legislature Who reapportions Congress (HOR)? State legislature draws congressional districts o Ct. determined that below 9.6% for state legislature is honest/good faith effort and therefore constitutional o Above 16.4% is presumptively invalid Kramer v. Union Free School District Statue limiting the right to vote unless a person owned property or are parents of a child enrolled in the school. o Statute is over-inclusive and under-inclusive o Ct. determines this statute violates the fundamental right to vote even if it is a limited purpose election. Salyer Land Co. v. Tulare Lake Basis Water Storage District This case represents the EXCEPTION to the 1 person, 1 vote o Special purpose government unit that disproportionally affects some more than others, then you can have voting on some other basis than the 1 person, 1 vote and it is constitutionally permissible. Ball v. James Arizona reclaimed water district‘s director are elected by voters but limits voter eligibility to landowners and apportions voting power according to the amount of land a voter owns. o Court rules the exception to the one person, one vote applies o Limited purpose local government unit that disproportionately affects (exception) Crawford v. Marion County Election Board This case was decided 3-3-3 plurality opinion. Marion County requires a photo ID to vote. The state interests are to deter fraud, modernize the election and to increase voter confidence. o Ct determines that requiring a photo ID is not a substantial burden on a person‘s fundamental right to vote  The photo ID is provided for free  There are exceptions for religious reasons, etc. to accommodate. Bush v. Gore

Shelby County, Alabama v. Holder Dissent--- the decision here is the enumerated power of Congress (15th Amendment §6) to enact legislation to enforce the provisions of Article 3 32

McCullough v. Maryland----end-means test

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis 1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.): A. Suspect Classifications: 1. Race 2. National Origin 3. Religion (either under EP or Establishment Clause analysis) 4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied). B. Classifications Burdening Fundamental Rights 1. Denial or Dilution of the Vote 2. Interstate Migration 3. Access to the Courts 4. Other Rights Recognized as Fundamental 2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.): Quasi-Suspect Classifications: 1. Gender 2. Illegitimacy 3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The government need only show that the challenged classification is rationally related to serving a legitimate state interest.) Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens.

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