Constitutional Law II: Individual Rights and Liberties Professor Gary Peller

BLACK LETTER AND THEORY

Note: The only issue in Constitutional law is deciding which tests apply to which kinds of questions. There are only three or four tests, that part is simple. 1. Rational basis 2. Intermediate scrutiny (real and substantial review) 3. Strict scrutiny

A GUIDE FOR WHICH TEST TO USE

Content-based

a. But see RAV Content-neutral

1. If content is protected, then S.S.

2. If not protected, then R.B.

1. Obrien (I.S.) for symbolic speech,

T/P/M + ample alternate channels Law without Boundaries Direct/indirect real and substantial rational basis process/substance 1. Public interest explodes in Nebbia
2. Private collapses Blaisdell, Meier, et al 3. Process theory is embodied in the Dennis Frankfurter concurrence

Formalist: Sphere Definition (public/private) + Boundary Enforcement Realist: The breakdown and merging of the spheres Process: To each body its proper decisions based on particular abilities and to those decisions the presumption of properness. (Principle of Institutional Settlement) Legislature democratic Private ordering individual decisions Administrative agency expertise

Common law courts reasoned elaboration, but judicial review

Rational Basis Review

The opposite of rational basis is arbitrary and capricious no legitimate plausible purpose can be thought of by the court Hypothesize ends (the court can amend/hypothesize the purpose of the legislature) Presume there are facts to support the legislatures conclusion Allow legislature to attain goal one step at a time, allow a loose fit between the means chosen and the end hypothesized, can be over/underinclusive o Exemplified by the loose fit in Railway Express

Intermediate Scrutiny
(U.S. v. OBrien)

A government regulation is sufficiently justified if (1) It is within the constitutional power of the Government, (2) It furthers an important or substantial governmental interest; (3) The governmental interest is unrelated to the suppression of free (unrelated to speech content); and (4) The incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest. (a) This is not least restrictive means as in strict scrutiny. It simply means close fit.

Strict Scrutiny
1. Compelling interest 2. Least restrictive means

a. Overinclusive? b. Underinclusive?

Speech Categories
Content-based Viewpoint based restrictions Subject-matter based restrictions Status-based restrictions (tricky) Medium of communication restrictions (possibly content-based) If unprotected Rational Basis (conceivable purpose and not arbitrary/capricious) If protected Strict Scrutiny (compelling interest and narrowly tailored) Content-neutral Time, place, manner Symbolic speech Intermediate scrutiny (significant/substantial interest and close fit)

Fighting Words
1. Words that tend to incite an immediate breach of the peace 2. Limited to one-on-one/face-to-face situations, rather than words directed to a group.

Dangerous Speech Test

Brandenburg v. Ohio To be prohibited, the speech must be (1) directed at (2) inciting or producing (3) imminent (4) lawless action and (5) likely to produce such action.

Defamation Test
P = public figure Speech is of public concern Speech is of private concern NY Times standard P = private figure Gertz standard Dun & Bradstreet deference to common law.

Generally: Must be (1) knowingly false/reckless disregard of truth or falsity with (2) actual malice.

Obscenity Test

Miller v. CA 1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest. a. Local viewpoint standard 2. Whether the work, taken as a whole, lack serious literary, artistic, political, or scientific value. a. National viewpoint standard

Symbolic Speech
Spence v. Washington Test for determining when conduct is speech (symbolic speech): 1. Must have intent to convey a particular message; 2. A reasonable person must be able to understand that a message is being conveyed.

Commercial Speech
Central Hudson 1. Truthful and non-misleading? Then intermediate scrutiny. I. Lochner & the Classical Liberal Case for Protecting Individual Rights A. Lochner (1905): NY law prohibited bakery workers from working more than 10 hrs/day or 60hrs/wk. Lochner convicted of allowing worker to do so challenged as violative of due process right to liberty of K. 1. Ct.s Analysis: a. Is legislation within legitimate powers of state (public) to legislate for health, safety, morals of public (legitimate ends of state), or interfering with individual sphere of liberty (private)? i. Common law provides basis anything that would make contract unenforceable under common law, would make it regulable by the govt. Illegitimate Ends: Interfering with liberty of contract freedom of contract is a shorthand for all economic liberty. Correcting balance of power inequality of fortune is the nature and result of private liberty. Gov. should not redistrubute wealth. ii. If action within both spheres, conflict arises in this case, Congress wins (supremacy clause). b. Are the means of legislation directly related to ends? i. Legitimate end may not simply be a pretext, e.g., in this case, health of bakers as pretext to regulate labor. Ct. implies it will look to real motive of legislature. In doing so, Ct. refuses to defer to legislative findings. Other tests possible: Simple Deference, Rational Basis, Substantial Relationship (Harlan Dissent), Strict Scrutiny. Ct. refuses to defer to c. Holmes Dissent: issues of economic policy, like this, should be dealt with by legislature (i.e., contemporary process theory). 2. Lochner is epitome of public/private distinction; common law as development of such distinctions.

a. Private rights enforced thru civil law. b. Public/Private distinction maintained thru Const. interpretation. c. Sup. Ct. holds feds to enumerated powers (i.e., out of private sphere). B. Coppage v. Kansas (1915): Ct. struck down law that prohibited employers from including nounion clause in contracts. Inequalities of wealthcannot be used as a reason for restricting freedom of contract. Inequality of bargaining power not a problem for justices. 1. Holmes: defer to legislative judgment. Workman may believe that only way to get fair contract is to join union, so laws of this nature do not interfere w/freedom of contract. C. Plessy v. Ferguson (1896): challenged Louisianna legislation that required separate but equal during train passage. 1. Consistent w/ Lochner: court saw segregation as something already established in the private sphere. So, law is less regulation of a private sphere than a codification of what already exists. 2. Inconsistent w/ Lochner: inconsistent with liberty of contract doctrine, i.e., if Black man and train company can agree to contract, he can sit where he wants. 3. Holmes: in Lochner, he argues for legislative deference, which may not always be a plus. D. Civil Rights Cases (1883): Civil Rights Act of 1875 otulawed discrimination in public accomodations, transportation, subject to the conditions of the law applicable to all citizens. 1. Establishes State Action doctrine. Civil rights cannot be impaired by the wrongful acts of individuals, unsupported by state law or authority. The wrongful act of an individual is simply an act in the private sphere, remediable under common law of K, etc. 2. 13th Amendment no state action requirement, but Court found that it applied only to slavery, NOT discrimination. 3. Dissent: Congress has an affirmative duty to enforce the 13th and 14th amendments. II. The Connections b/t Issues of Individual Rights and Federalism in the Lochner Era A. Knight Antitrust Case: Congress saying under Commerce Clause they had the power to stop Knight monopoly on sugar be/c could affect baking in other states, etc. 1. Manufacture v. Commerce Court said Congress could not forbid a monopoly in manufacture. Refinery was a manufacturer and therefore left to state control. 2. Direct Effect Direct relationship with commerce not present here B. Shreveport Rate Case: TX railroad charging lower price for intrastate shipments that comparable interstate rates. Theory that TX cities competed with Shreveport and lower rates were discriminating. Court upheld right to regulate intrastate rates. Fact that activity was intrastate did not place it beyond congressional control since ultimate object was protection of interstate commerce. 1. Substantial Economic Effect Did not focus on whether relationship was direct or indirect but looked at whether the practical economic effects upon interstate commerce were quantitatively substantial. 2. Real and Substantial Relationship Court looks not to character of relationship, but this test is one of degree. This test evolves into rational basis and becomes easier to satisfy C. Ames Case: Court holds Congress can ban interstate transport of lottery tix. Holmes says once something is in interstate commerce, Congress can do whatever regardless of motive. 1. Court exercising police power here; commerce prohibition is within reg power of Congress. 2. Court makes distinction b/t local and national power. Enforcement of health, safety, and morals within local power while interstate commerce within national power. D. Hammer v. Dagenhart: Federal statute prohibited from interstate commerce goods manufd by child labor. Court struck down statute b/c goods themselves were harmless. The employment was the evil and that is unrelated to interstate commerce. 1. Formalist majority says child labor local concern. Holding otherwise would be a pretext to regulating local manufacturing, the domain of the states.

2. Coppage issue some states have child anti-labor laws and some dont. Congress could equalize competition by making everyone come to same level. Court says any marketplace inequality is due to indiv./local choice. E. Summary: limits on Commerce/Congress power have eroded/been eliminated over time, as we have moved away from a formalist approach; individual rights could suffer in the same way. 1. Spheres in the order of most power to least: private -> states -> federal govt. III. The Roots of Modern Free Speech Doctrine in the Lochner Era and Early Realist Influence A. Schenck v. United States (1919): D convicted of violating espionage act of 1917, which prohibits (when US is at war) false reports, causing mutiny/insubordination, and using mail to do so. Convictions upheld. Legislation does not appear to implicate free speech on its face, BUT D made pamphlets that purportedly violated the act (causing insubordination/obstruction) violation thru speech. 1. Opinion assumes that 1st is broader than prohibition on prior restraint. 2. Lochner Analysis: a. (1) Federal Statute does Congress have power to achieve end sought (prevent espionage/stop insubordination)? Congress has power to raise armies/declare war. The end is not to curtail speech. b. (2) Means must also be permissible, i.e., not simply pretext (means must bear direct relationship to ends). i. Clear & Present Danger Test (means-ends relationship): Relational Test: depends on how close/proximate/likely the danger is. The yelling fire in a theater analogy. The problem is that it does not really take into account how weighty the end sought to be prevented is (e.g., could curtail free speech to avoid litter). Similar to criminal attempt: Mens Rea requirement specific intent for attempt. Actus Reus no punishment for thoughts alone; at one point, this test was satisfied by the last proximate act, i.e., potential criminal had to do almost everything but complete the crime (like clear & present danger). B. Frohwerk v. United States (1919): Ds convicted under Espionage Act for preparing to publish a newspaper that was intended to cause interference with recrutiment and insubordination. At trial, jury found that this presented a clear & present danger, and Sup Ct. defers to this judgment. 1. Seems to indicate that speech moves from the private realm to the public realm at some point. C. Debs v. United States (1919): jury found Debs speech to be incitement to avoid draft. Exactly the same doctrinal issues as Frohwerk, etc. the court defers to the jury decision that this is more than mere teaching, and was incitement. 1. Test is met if speech has a natural tendency to cause danger, if it is reasonably probable that danger will result, if the speaker has the specific intent to cause the crime. D. Abrams v. United States (1919): Russian immigrants convicted for distributing flyers urging halt to producing munitions; intent is to protect Russian Revolution. knew the natural and probable effect of efforts was insubordination, so c&p danger test met. Convictions upheld. 1. Holmes/Brandeis Dissent: Holmes switches sides. a. Lays out groundwork justification for protection of free speech: i. Speech is special; can be answered with other speech; best remedy for bad speech is MORE speech, not regulation. ii. There is a marketplace of ideas; truth emerges out of the marketplace; no governmental imposed orthodoxy of ideas. As marketplace/social contract approach is being rejected in economic rights field, it is being accepted in individual rights field.

b. Argues intent not proven, that D does not intend consequence unless that is aim of the deed; Ds had a different intent (to protect Russian revolt), so are not liable. c. Wants to revive immediacy in c&p danger test: if speech will cause imminent harm, there is no time for other speech, and this warrants prohibition/prevention, i.e., marketplace of ideas has no time to correct bad speech. 2. Who would apply this test, acc to Holmes? Possibly a jury (as with earlier decisions), or the Court (independent determination of whether a clear & present danger exists). E. Beginnings of Contemporary Rationales for Free Speech 1. Gitlow v. New York (1925): D conviction under NY statute on criminal anarchy for distributing two leftist documents upheld. Actual speech is prohibited/criminalized, not just as an attempt to accomplish a criminal act (as in prior cases). a. Court defers to legislatures choice of means in pursuit of legitimate ends. b. Holmes Dissent: no clear & present danger of overthrow of government every idea is an incitement. Let the idea be fought out in the marketplace of ideas. No speech would be protected if court defers to legislature every time it concludes something is dangerous to the state/country. i. Holmes arguing for judicial overruling of state legislative findings opposite of his dissent in Lochner (advocating deference to legislature). Indicates reversal of economic and individual liberties. 2. Whitney v. California (1927): again, State has outlawed actual speech acts, and jury found clear & present danger; Sup. Ct. upheld based on deference to legislature. a. Holmes/Brandeis Concurrence Justifications for Free Speech: i. Development of political truth necessary for democracy to work. ii. Marketplace of Ideas remedy for bad speech is more speech. b. Justifications used to argue for Ct. determination (not jury/legislature) of danger thru Hand test (B>PL). Danger must truly be imminent (P - probability), and reason for prohibtion must be weighty (L weight of danger) to outweigh burden (B) on free speech. i. Far from Lochner Ct., which would abstain from balancing/issues of discretion. IV. Realist/New Deal Attack on Constitutional Theory A. The Legal Realist Critique 1. The Realist Critique was part of an overall shift from formalism to modernism, moral relativism, and empiricism in the search for truth. 2. Summary of classical legal theory: a. Common law of tort, contract, and property was supposed to provide a neutral framework within which people could pursue their own ends. b. Thus, Lochner court was performing common law tasks on con law level by protecting the private realm from public interference. i. Legislative interference with freedom of contract resembled interference w/free choice (in common law) through the infliction of duress or fraud. ii. The permissible range of legislative regulation corresponded to the realm in which the common law recognized the absence of free choice. iii. If the common law would enforce a transaction, it was the result of free choice and was therefore immune from legislative interference. E.g., distribution of wealth is result of individual choice, not influence of governmental power. 3. Realist Critique a. As soon as a legal regime is in place, there is no such thing as a private sphere of free choice separate from public power. i. Lochner was not based on neutral assumptions, but instead contained implicit policy judgments.

Neutral comm-law rules actually baseline balancing choices between freedom to act and security from injury, which have distributive consequences for the market. Comm-law judges were really just ratifying the existing matrix for the distribution of privileges and entitlements that create power in some and loss of power in others. E.g., Lochner would say Coca Cola is a protected trademark because its valuable. BUT, it is only valuable because its trademark is protected (by the state). ii. Objective rules were enforced regardless of individual intent and are thus over and under-inclusive they benefit some and burden others. b. Methodological shift from bright-line rules to reasonableness standards. c. No judicial decision (deferring to the legislature) actually is a decision because the private realm is regulated by the law. If no regulation, then there is a legal privilege. d. 3rd party effects: i. These decisions always have 3rd party effects. Therefore, nothing is private because the results of a private decision between A and B have public effects. e. Public precedes private opposite of what the classical theorists thought. i. Public structure/policy decisions existed prior to individual who interacts in a world governed by those regulations. 4. THUS, THE QUESTION OF THE COURSE IS: How do you protect individual (private) rights, given that theres no such thing? 5. FUNDAMENTAL QUESTION: Is it possible to see con law in the contemporary period as an endeavor to protect individual rights from public intrusion? Or are what we call rights just lines that we draw b/t protection of freedom and security from injury? Zero sum game? B. Federalism 1. NRLB v. Jones & Laughlin (1937): involved regulation of unfair labor practices. a. Congress can make econ regulation as long as there is a real and substantial relationship to interstate commerce 2. Wickard v. Fillburn (1942): challenged Congress right to set quotas on wheat that was used for home consumption claimed that this was a local activity. a. Regulation upheld under Aggregation Principle. b. Shift in case from basing decision on Congressional Findings to basing decision on what Congress must have found (regadless of whether actual findings exist). i. In absence of formalist test (local/national distinction), there is pressure to defer to others. 3. Cases show disintegration of boundaries b/t fed and state govts (local/national distinction). C. Contracts Clause (Art. I, 10 Prohibits state law impairing obligation of contracts) 1. Home Building & Loan Assn v. Blaisdell (1934): Great depression MN law allows leniency on mortgage payments. a. State has the power to subvert the K clause in times of emergency. i. How consistent w/ K clause? Constitution must be flexible. Purpose was to preserve the economy. In 1789 you needed to be able to rely on a K. In depression, purpose is served by permitting impairment of a K. ii. Private transactions presuppose a public functioning economy. Represents reversal of the temporal arrangement public precedes private. iii. State power cannot destroy contracts/debts, but can prevent the immediate and literal enforcement of contracts thru temporary restraints, if in the public interest. b. Lochner would have struck down law because no duress and regulation not related to health, safety, morals, or general welfare of the public. D. Regulatory Takings

1. Pennsylvania Coal Co. v. Mahon (1922): Kohler Act prevents mining coal where it would cause subsidence of property. PA Coal, which has right to property that it has sold the surface rights to, sees this is as a taking w/out compensation. a. Can police power be used to take away a contract right? Yes, but Supreme Court applied a balancing test and determined that statute was unconstitutional taking. General rule property may be regulated to a certain extent, but regulation may not go too far. b. Arguably not a very realist decision. The important point is that the court does not categorize, but examines the degree. Holmes simply decides that this is too much. 2. Miller v. Schoene (1928): Cedar trees are infecting apple trees. Law requires cedar tree owners to cut their trees to save the apple orchards. Cedar owners not paid for the value of their trees. Reg upheld not a compensable taking. a. Public welfare policy is always a zero-sum game. Since there is no neutral baseline to analogize property rights, leg. can choose among property rights based on the public interest. b. Even when the judiciary refuses to recognize a property right and leaves it to the private realm, its actually recognizing a privilege for someone to injure someone elses interest w/o paying them. i. Realists expose contradiction: by protecting peoples security in their property you are imposing a duty on other people to respect those rights. E. State Action 1. Shelley v. Kraemer (1948): Ps challeng race-restrictive covenants on homes under 14th. a. Ct. finds covenants violate equal protection. State action is found in the common law enforcement of racially restrivtictive covenants. b. Miller and Shelley indicate that state action is everywhere. In Miller, any failure to legislate is state action through the assignation of rights and priveleges. In Shelley, when the state enforces private arrangements by upholding K, or not recognizing self-help from harm, there is state action. i. Indicates that state action doctrine could not be conceptually limited once public/private distinction of Lochner era disintegrated. ii. Problem: almost every enforcement of a private right depends on public law. However, this argument is the exception. Has only worked for racially restrictive covenants, and not spread to other areas of law too much. F. Due Process 1. Nebbia v. NY (1934): NY milk control board set the price of milk. sold the milk below that price and argued that the state-set price was a violation of his due process rights. a. Lochner Ct. would not have found the necessary relationship b/t the price and public health not direct enough to uphold the law. b. Law is upheld. Lochner structure survives in a diluted form must still look to see if something is within the proper sphere of the legislature. i. BUT, now there is no limit to the proper ends of the legislature b/c everything is in the public interest, i.e., Ct. makes circular argument that business may be regulated if affected w/ public interest, AND business is affected w/ public interest if Congress decides to regulate it. c. Establishes Rational Basis Test for Economic Regulation: means must bear rational relationship (i.e., legislative evaluation of necessity for law must not be arbitrary or capricious) to proper/permissible legislative ends to satisfy requirements of due process. Tremendous deference to legislature. d. Represents the fall of substantive due process strict scrutiny for interference with private contracts by economic regulation. This case overrules Lochner and Coppage. 2. West Coast Hotel v. Parrish (1937): Ct upheld a minimum wage law for women, applying deferential rational basis, overruling Adkins.

a. Trying to deal with inequalities in bargaining power is now ok as a rationale for an econ reg. b. If employers have privilege to employ women without paying decent wage, then law is like a subsidy (Miller v. Schone) to those employers by requiring taxpayers to cover these women through social welfare, i.e., low wages have third party effects public consequences. 3. U.S. v. Carolene Products Co. (1938): Ct. rejected due process argument against Fed Law prohibiting interstate shipment of filled milk. a. Rational Basis Test: There is a presumption of rationality (presumption that facts exist to support the legislative judgment, even if they are not actually cited by legislature) which must be disproved. b. FN#4 See Below. 4. Williamson v. Lee Optical (1955): Court upholds state regulation that optician cannot fit or duplicate lenses w/o a prescription. Court hypothesizes legislatures reasoning even though there is no evidence that that is what motivated them a. Rational Basis Test: As long as there is some evil to be addressed and this is a response to that evil, fit does not need to be perfect. Ends and means need not be logically coherent legislature gets to decide. G. Equal Protection 1. Railway Express Agency v. New York (1949): Equal Protection challenge to NY law prohibiting advertisements on vehicles. Business delivery vehicles can still have their own business ads. a. Ct hypothesizes that the purpose of the statute is public safety. It defers to the legislature and says that under-inclusiveness is ok. i. Highwater mark of extreme deference to the legislature. ii. Illustrates the virtual impossibility of overturning a law under the rational basis test. b. Legislatures may eradicate evils one step at a time. H. Fully Deferential Rational Basis Test: Hypothesize Ends; presume facts for the means; not a problem if means and ends do not fit perfectly; add factor of administrative convenience (i.e., OK for state to deal with one part of an issue at a time); if still troublesome, then multiply all the possible (hypothesized) ends to make the means a perfect fit. I. Deference and the First Amendment 1. Dennis v. United States (1951): U.S. communist leaders convicted for advocating and indoctrinating others in the violent overthrow of the U.S. government. Convictions upheld. a. Clear & Present Danger Test, thru Hand formula: danger must be imminent/likely to happen, AND must look to gravity of danger. b. Gravity is very large, i.e., overthrow of the U.S. government. Clear & Present danger does NOT require a measurement of probability of success or immediacy of success, i.e., the criminals need not succeed or get close. i. Advocacy found to be imminent enough, given its seriousness based on deference to jury decision. c. No longer good law. d. Frankfurter Concur. represents early process theory, i.e., defer to legislative judgment when dealing with policy issues b/c democratic institution has more legitimacy in this area. Seems odd, if Congress is body that may have denied 1st rights in the first place. i. In midst of Communist/Fascist threat to democratic rule, ConLaw coalesces around a defense of democracy (at least a legitimate process if no one has the right answer) without reviewing whether democracy actually exists. V. Postwar Constitutional Theory: Process Theory and the Institutional Solution A. Basic Elements: 1. Democracy is a process people will embrace the idea when arrived at by proper process.

2. A procedural, rather than substantive, theory of justice. Substance is political and procedure is neutral. 3. Substantive decisions should be made by the appropriate institution. 4. Cts attempt to legitimate govt decisions based on the procedures that were used to arrive at them. B. Process Theory Stage I: see Frankfurter concurrence in Dennis, above. C. Process Theory Stage II: 1. Cts should respect institutional decisions only to the degree that procedures made the particular institution the right one to make the decision. 2. Because we defer to legislature on account of its democratic nature, we will have heightened review when legislatures decisions affect those things necessary to maintenance of a democracy. Heightened Scrutiny when (Carolene Products FN#4): a. Legislation, on its face, impacts a particular constitutional provision, e.g., the Bill of Rights (mostly due process issues). b. Legislation burdens the channels of change in the political process e.g., the right to vote (mostly equal protection issues). c. Legislation impacts discrete and insular minorities who are unable to protect themselves through ordinary political processes Ct. engages in representationreinforcement (mostly equal protection issues). 3. Two types of legitimating procedure used by the Court: a. Formalist: has legislature done something affirmatively to censor free speech rights? If not, we presume they exist. b. Functionalist: do people actually enjoy right of free speech? On equal basis? 4. Critique of Process Theory: a. Impossible to distinguish b/t procedure and substance same sort of false dichotomy as private/public distinction in Lochner era. b. Circularity: Court defers to legislature because legislature is better prepared to evaluate matters of fact, value, and degree, BUT in order for Court to evaluate democratic nature of legislature, it must go into these questions. i. I.e., to determine procedural fairness, one either has to be formalist and unconvincing, or one has to engage in a functional review that forces one to engage in the very substantive issues that process theory tries to avoid. VI. The Development of Free Speech Rights A. Background 1. Two-track approach to regulation of speech: a. Content (more protected); and, b. Conduct (less protected). 2. Free speech and process theory: freedom of speech is a precondition of other forms of freedom that is essential to democratic change. 3. Three justifications for protecting freedom of speech: a. A marketplace of ideas leads to truth. b. Essential to self-government and political process therefore, a distinction b/t public and private speech is made and only public speech is protected. c. Promotes individual liberty, autonomy, and self-fulfillment B. Clear & Present Danger 1. Incitement/Subversive Advocacy a. Yates, Scales Court moved away from Dennis and required action, rather than just belief, and person must have active membership in subversive group. b. Brandenburg v. Ohio (1969): Charge against KKK for attempting to overthrow govt. Speech was protected due to lack of likelihood that action would result.

i. New Clear & Present Danger Test: Where advocacy is (1) intended (2) to incite (3) imminent (4) lawless action and (5) is likely to produce such action. Court did not say how serious lawless action would have to be. ii. Formally overrules Whitney. Under this test, there has been virtually no conviction for subversive advocacy upheld since Dennis. iii. Court says it is following Dennis, but in that case, the Court deferred to the legislature, and here the court is not deferring, thus discrediting Dennis. 2. Group Libel a. Beauharnais v. Illinois (1952): Ct. upheld a law applying criminal libel sanctions to speech against groups. Libelous speech not protected by the Constitution. i. Dissenters found this to be punishment for discussion of matters of public concern. ii. This case has virtually no vitality today. C. Warren Courts Pseudo-Categorization and Rights Protection in Free Speech Methodology 1. Fighting Words/ Hostile Audiences: speech that incites violence against the speaker; state regulation to avoid such situations. Hostile Audience differs from fighting words only in that message incites rather than form of message (i.e., need not be in ones face). a. Cantwell (1940): Ct. overturned convicton of Jehovahs witness for breach of peace, finding Cantwells speech (a record he played + language re: organized religion being a racket), while possibly offensive to others, was not a clear and present danger to the public peace. b. Chaplinsky (1942): another JW arrested for breach of the peace, but not based on words to restless crowd, but rather to specific epithets aimed at a police officer that would not arrest the crowd members who had caused the disturbance. i. Resort to personal abuse/epithets is in no way protected by the Constitution not a substantial part of expressing ones views. ii. Ct. categorizes certain types of speech as outside the protection of the 1st amendment, e.g., fighting words words must be likely to cause a fight. Balancing test involved speechs social value or being essential part of exposition of ideas measured against the likelihood of causing problems/violence, disturbing order or morality, states interest in good order. Once the category (fighting words) has been created thru balancing test, next courts will not do the balancing test again, but will simply rule on the category. c. Rosenfeld, Lewis and Brown (1972): Fighting Words came to be understood as those that tend to incite an immediate breach of the peace; also limited to one-onone/face-to-face situations, rather than words directed to a group. d. Cohen v. CA (1971): Cohen convicted of disturbing the peace for wearing fuck the draft coat into court house. SC reversed conviction. i. Court says he is being punished for content of speech (possible reaction thereto), not conduct (walking/wearing coat); ii. Not fighting words, b/c speech must be directed towards person to be fighting words. iii. Not incitement, b/c no intent; iv. Not obscenity b/c its not erotic and has redeeming social value; v. People not captive audience, could have averted their eyes. vi. Thus, since speech not within unprotected category, it is protected. e. Terminiello v. Chicago (1949): Ct reversed breach of peace conviction against speaker (who had angered a crowd due thru denouncing racial groups). f. Feiner (1951): Speaking to angry crowd who asked cop to arrest. Court upheld conviction, says was not arrested for content of his speech, but for reaction of audience. State interest in keeping the peace overrides here. Speaker conduct constituted incitement to riot. [Likely be read narrowly today.]

i. Black dissent: He stated that even had the situation risen to the point of threatening public safety, the police should have first intervened to protect the speaker and his right to speak (affirmative protection of rights). g. Edwards/Cox (1963/65): Civil rights protestors who were peacefully demonstrating. Court says far cry from Feiner situation. Police must control angry crowd where possible rather than arresting speaker. Generalized fear on part of police insufficient for fighting words to apply. h. Forsyth (1992): County reserved right to impose varied fee for additional law enforcement. Court says cannot burden speech by cost, any more than it can be punished or banned. Too much discretion to local authorities. 2. Defamation/Libel a. NY Times v. Sullivan (1964): case arose out of newspaper ad criticizing city official of Montgomery, AL, which contained some untruths. The official won a judgment for $500K in state court under an AL law that awarded monetary damages for libel without proof of intent or identification. Overturned by the Court. i. Test: Criticism of public officials is not defamation unless P proves actual malice; D must have known of falsity, or recklessly disregarded the truth Actual malice = knowledge of falsity or reckless disregard of truth/falsity Burden of proof shifted from defendant to plaintiff Evidentiary standard is heightened from preponderance to clear and convincing Presumed damage are eliminated ii. Erroneous statements must be endured to keep free speech. AL libel law chills free speech because media will fear a suit for false statements or true statement that cannot be proven. iii. Applies to public officials, and has been expanded in some circumstances to public figures. b. Curtis Publishing v. Butts/A.P. v. Walker (1967): extends NY Times to public figures, not just public officials. Libel actions brought by public figures involved in issues in which public has justified and important interest. i. Public Figure has been construed narrowly, requiring more than being well known or simply active in the community. Sometimes focus is on whether P has voluntarily put himself in the spotlight. c. Rosenbloom (1971): Ct. focus on subject matter of statement and not status of P, i.e., discussion of matters of public interest warrants protection, rather than categorizing the Ps status as public or private. i. OVERTURNED next. d. Gertz (1974): NY Times is NOT extended to private figures. Lawyer who had been long active in the community was not a public figure because he had not achieved general public fame or notoriety. i. Rosenbloom overturned. ii. So long as strict liability is not imposed, states may choose their own standard of liability for publishers/broadcasters of defamatory falsehoods injurious to private individuals. iii. Rationale: Private individuals cannot repair reputation through the media, like public officials can; Private persons have not voluntarily exposed themselves to injury. iv. In determining public figure, court looks to (1) extent of fame and (2) whether they were thrust into the spotlight unwillingly or wilingly.

v. Time, Inc. v. Firestone: A wealthy divorcee was not a public figure because she had not played a role in society outside of Palm Beach. vi. Hutchison v. Proxmire: Scientist whose research was discussed was not a public figure because he had not chosen to become a public figure. vii. Wolston v. Reader's Digest Ass'n: Former Soviet agent was not a public figure because his stint in the public eye occurred twenty years prior to claim and he had not chosen to become a public figure. e. Dunn & Bradstreet, Inc. v. Greenmoss Builders (1985): Claim alleged a defamatory credit report stating G had filed for bankruptcy. Sup Ct upheld jury verdict in favor of G, finding no relevant distinction btw institutional media and other forms of communication. i. Powell: emphasized distinction between matters of public and private concern. Reduced value of speech having no public concern should allow presumed and punitive damages even absent a showing of actual malice. P = public figure P = private figure Speech is of public concern Speech is of private concern NY Times standard Gertz standard Dun & Bradstreet deference to common law.

3. Non-Defamation Torts a. IIED i. Hustler v. Falwell (1988): public figure offended by an outrageous magazine parody could not recover for IIED without a showing of actual malice. Holding: No; NY Times applied. Falwell a public figure. Must show that there was a false statement of fact made with actual malice. b. Invasion of Privacy: i. Time, Inc. v. Hill (1967): Family involved in a hostage-taking were depicted in a play. Claim was for "false light" privacy, where a person is portrayed in a false light but reputation is not damaged. Disclosure need not be injurious to reputation, but must invade privacy and be false. Ct. found NY Times standard should apply. c. Disclosure i. Cox Broadcasting v. Cohn (1975): News station published the names of a rape victim. Ct. prohibited restriction of lawfully obtained truthful information Ps daughters name was released (after it was noted in public documents/court records) as having been raped. No liability. Truthful publication cannot invoke liability. d. Protection of Privacy i. Bartnicki v. Vopper (2001): A conversation between two union organizers was tapped in violation of a federal law prohibiting the interception of electronic transmissions. The tape was turned over to a radio station that played it. No liability. If a newspaper lawfully obtains truthful information it cannot be punished for publishing it. e. Appropriation i. Zacchini: Cannonball artists performance aired. The Court held that the Constitution does not protect media when they broadcast a person's act without authorization. 4. Obscenity/Sexually Explicit Expression a. Roth v. U.S. / Alberts v. CA (1957): Roth convicted under fed stat banning mailing of obscenity; Alberts convicted under similar CA state statute. i. Obscenity is not protected speech. Convictions affirmed.

b. c.

d.

e.

f.

g.

Sex and obscenity not the same thing obscenity appeals to prurient interests. ii. Obscenity Test: Whether to the average person, applying contemporary community standards, the dominant theme taken as a whole appeals to the prurient interest. Utterly without redeeming social value. iii. After Roth, the judges cannot agree on a test: Memoirs v. MA: Plurality only. Adds a part to the test that examines whether the material is without value. Stanley v. GA: Court holds that private possession of obscenity cannot be punished. 1st amendment prohibits making possession of obscene materials illegal. Materials found during search of home for bookmaking materials. i. Offended (1) right to receive info and ideas; and, (2) right to be free of govt intrusion, except in limited circumstances. Obscenity laws cannot reach into the private home. ii. Public/Private distinction made to distinguish Roth, which involved public distribution of materials. United States v. Riedel: Person has right to possess obscenity, but does not have right to produce obscenity. Ct. found that Stanley did not overrule Roth. Privacy rights, etc., implicated in Stanley not affected in this case. i. Marshall Concurrence: Stanley test is one of balancing state interests. Reidels distribution process presented significant threat of minors getting the materials. Kingsley Intl Pictures Corp. v. Regents (1959): Ct. overturned NY law proscribing immoral films, for banning movie for advocating idea that adultery could be OK. i. Ct. found this especially important when idea advocated would not operate as incitement to illegal action, i.e., supposed justification for banning obscene materials. Miller v. CA (1973): Miller involved in mass mailing of porn 5 unsolicited such ads sent thru the mail all of which in violation of CAs law for knowingly distributing obscene material. i. The state has a legitimate interest in prohibiting the disbursement of obscene material. State regulation of obscene materials must be limited to those works that depict or describe sexual conduct. ii. New Obscenity Test: (1) Whether the average person, applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest; Local viewpoint standard! (2) Whether the work depicts or describes, in patently offensive way, sexual conduct specifically defined by the applicable state law; and iii. To punish obscenity, states must be specific in defining what it is. (3) Whether the work, taken as a whole, lack serious literary, artistic, political, or scientific value. National viewpoint standard! This is clear from Jenkins v. Georgia, wherein a GA judges finding that "Carnal Knowledge" was obscene got overturned (the movie was nominated for an academy award). Paris Adult Theatre I (1973): GA civil action enjoins theater from showing two allegedly obscene movies. Court upheld conviction, despite warning that the material was obscene. i. The state has a legitimate interest in regulating obscenity. Obscenity is not protected by the First Amendment simply because the obscenity has limited access this does not mean that it does not affect the public.

ii. The liberals and the conservatives have switched compared to Lochner. Liberals arguing that it is wrong for the court to dictate what consenting adults can watch that this is a private concern and ignore the 3rd party/ public interests. Conservatives recognize that there are 3rd party effects from seemingly private interactions. iii. Despite lack of empirical evidence that obscenity adversely affects society, GA legislature could rationally have concluded that such effects exist. h. Jenkins v. GA (1974): Ct. overturned conviction based on Miller standards jury findings of fact (i.e., of obscenity) are not immune from court review. Movie, though dealing with sex, was not patently offensive (movie was Carnal Knowledge, won an academy award. Just because its considered obscene in backwoods ass Georgia doesnt mean its obscene. National standard, bitches). 5. Symbolic Speech a. U.S. v. OBrien (1968): i. Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Supreme Court found the law constitutional on its face and as applied. ii. Holding Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if (1) it is within the constitutional power of the Government, (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." iii. Test for determining when conduct is speech (symbolic speech): Must have intent to convey a particular message; Reasonable people looking at it will understand that a message is being conveyed. iv. Govt Regulation of Symbolic Speech Justified IF: Within govts (state or fed) Const. powers; Furthers an important/substantial govt interest; Govt interest is unrelated to suppression of free expression; If interest IS RELATED to suppression of expression, then govt is regulating content (not conduct), so must determine whether communication is protected or unprotected: If unprotected speech (i.e., part of unprotected categories), rational basis is the test. If protected speech, then test is strict scrutiny, i.e., there must be a compelling state interest (ends) and no less restrictive alternative available (means). If interest UNRELATED to suppression of expression, then balancing test established in OBrien is all thats required, i.e, apply four factor test. Incidental restriction of 1st freedoms is no greater than is essential to furtherance of that interest. This is NOT least restrictive means requirement, but requires close fit btw means and ends (a substantial relationship).

v. Test for regulation of symbolic speech and for any regulation of 1st Amendment speech are basically the same, just in a different order: Is govt interest related to suppression of free expression (i.e., related to content or conduct)? If unrelated, then apply OBrien Test, i.e.: Regulation must be within Constitutional powers; Must further a substantial govt interest; Incidental restriction of 1st Amendment rights must have a substantial relationship to govt interest. If interest IS RELATED to suppression of expression, then govt is regulating content (not conduct), so must determine whether communication is protected or unprotected: If unprotected speech (i.e., part of unprotected categories), rational basis is the test. If protected speech, then test is strict scrutiny, i.e., there must be a compelling state interest (ends) and no less restrictive alternative available (means). vi. Ct. will not strike down otherwise constitutional statute on basis of alleged legislative motive, i.e., legislative motive is irrelevant. This is not good law anymore. Motive becomes a central requirement in equal protection cases!! b. Arcara v. Cloud Books, Inc.: adult bookstore shut down by NY law defining places of prostitution or lewdness as public health nuisances. Sexual acts and solicitations of such were occurring on premises. Bookstore claimed violation of the 1st, as the law had effect of preventing sale of books, etc. that are presumptively protected by 1st. NY Ct. of App. found the law to be impermissibly broad as an incidental restriction on 1st free speech rights (since simple injunction would have worked). i. Ct. reversed. Case did not even warrant less stringent OBrien standard sexual conduct in this case has no element of protected expression. c. Flag Desecration i. Street v. NY (1969): Ct. overturned conviction under anti-flag desecration law in NY. Ct. did not get to issue of flag desecration, finding only that law was impermissibly applied against Streets speech (which did not constitute fighting words or incitement) without addressing his conduct. ii. Smith v. Goguen (1974): Ct. overturned conviction for flag desecration under Mass. law, for wearing flag on his seat of his pants. Stat found to be impermissibly vague no distinct lines to distinguish between criminal and non-criminal conduct. iii. Spence v. Washington (1974): Ct. overturned conviction for improper use of flag on grounds that no one confused his communication (peace symbol attached to flag) with the govts. This put forward the symbolic speech test. iv. Several justices dissent consistently, stating the flag is a unique national symbol (these justices are asinine). v. TX v. Johnson (1989): Johnson convicted of burning flag (publicly). Ct. overturns conviction on 1st grounds. Johnsons conduct is expression, i.e., speech/content. Within powers of government to prevent conduct? YES could regulate fires/pyrotechnic displays for general welfare. Regulation/Govt Interest related to suppression of expression? YES. Ct. found that restriction of expression was based on the content of the expression (disfavor with Reagan/govt), i.e., govt interest in protecting flag

only implicated by message speaker trying to convey by burning it (related to suppression expression). Speech is not unprotected, e.g., not incitement, hostile audience, fighting words. So, strict scrutiny. State interest does NOT justify the conviction under this standard: State attempt to preserve flag as symbol of national unity does NOT justify conviction. E.g., TX would be saying that it is OK to burn flag to properly dispose of it (espousing promotion of the flags symbolic meaning), whereas burning flag to show discontent (disparaging flags meaning) would not be OK. No way to decide which symbols of govt merit such protection beyond personal beliefs, etc, and impose them on the citizenry contrary to 1st Amendment. vi. U.S. v. Eichman (1990): Ct. struck down law enacted in wake of Johnson in 1990. Although more narrowly tailored, the Ct. still found that the govt interest involved was only implicated when the destruction of the flag was used to express an idea counter-active to majority opinion, and thus was not content-neutral. 6. Overbreadth, Vagueness & Prior Restraint: doctrines unique to the 1st Amendment. a. Overbreadth: even if conduct was constitutionally proscribable, if stat would make that conduct criminal also makes other conduct that would be protected criminal, then the statute is overbroad (such that speech is chilled). i. If stat on its face seems to regulate constitutionally permissible expression, then it can be challeneged on its face, even though actual application would be acceptable (constitutional). ii. Primary Justification for Overbreadth: existence of law would chill protected speech. iii. Broadrick: stat prohibited active political campaigning, but would also encompass simply wearing a political pin to work. New Test: Revised overbreadth doctrine to add a substantiality requirement stat will only be struck down as overbroad if it seems incapable of a narrowing construction, AND if it is substantially overbroad in relation to what it may permissibly prohibit. Ct. found the stat to be overbroad, but not substantially so. Possible illegitimate reach of stat not enough to permit overbreadth striking of the law. iv. Ashcroft v. Free Speech Coalition:CPPA prohibited depictions appearing to portray children engaged in sexual acts, but with no actual children involved. Ct. overturned regulation on grounds of substantial overbreadth. Govt may not ban protected speech as a means to protect against unlawful speech. v. Virginia v. Hicks (U.S. 2003): Ct. reversed VA Ct. decision that overturned conviction of man for trespass based on law that allowed police to serve notice to those that were not on grounds of public housing for legitimate business or social reasons and to arrest for trespass if return after such notice. Rarely will overbreadth challenge succeed against law that is not specifically addressed to speech or conduct associated with speech. b. Vagueness i. Law is found unconstitutional for two reasons: As violation of general due process rights b/c there was not sufficient notice that conduct is criminal, thus giving police too much discretion. 1st Amendment Vagueness: prevents regulation of speech that is vague b/c it may chill expression beyond what is consttituionally prohibitable, or simply not give

notice to would-be speakers as to what is being prohibited. Offshoot of due process, but would apply even when criminal rights are not involved. c. Prior Restraint i. Historically, 1st Amendment may have only been directed at prior restraint (seditious libel). Often involves licensing. E.g., State might impose legitimate licensing requirement on speakers. If licensing regime is neuitral and does not give unbridled discretion to administrator, then OK. Lovell: no standards given for distribution of pamphlets ct. struck it down. Freedman: MD prior approval board for films state attempt to control obscenity. Constituional Licensing Scheme: Must be able to be completed over a very brief time period Decisions must be available for independent judicial review (also within short timsespan) State must bear burden of proving film is not protected speech. Thomas v. Chicago Park District (2002): Ct. held that Freedman v. MDs procedural requirements did not apply to a municipal park ordinance requiring a permit before large-scale events. Upheld as valid time, place, manner restriction, and content neutral. No authorization of Park to make judgment on content of speech. Such restrictions must have sufficient standards to guide the park administrator, and render it subject to judicial review. Prior Restraint also dealt with injunction cases: Near v. MN: state stat permitted injunction of periodical that was publishing libelous and scandalous material (which periodical had done repeatedly). Ct. struck down the injunction. NY Times (Pentagon Papers): govt found out papers had been leaked and got an injunction. Sup. Ct. held that govt had failed to meet its burden that publication should be barred as a threat to security. Progressive: How to Make a Nuke article was enjoined and Ct. affirmed as an extraordinary justification for prior restraint. As applied to Pre-trial publicity. Ct. has held (Nebraska) that prior restraint requires heavy justification, and a gag order should be last resort, given other options. Lawyers, judges, etc. can be gagged, though. D. Applying Realist Lessons to Categorization Approach 1. Pornography as Subordination of Women a. Am. Booksellers Assn v. Hudnut (7th Cir. 1985): Indianapolis enacted law defining porn as practice that discriminates against women. Ordinance does not refer to the prurient interest (unlike obscenity laws), to offensiveness of community standards, and makes irrelevant whether work has literary, scientific, artistic or political value. i. Ordinance discriminates on basis of content. Govt has no power to do this may not restrict speech b/c of its message. Clear censorship of content i.e., OK to show naked women to empower, but not OK to subordinate. ii. Ind. argues that 1st does not apply when speech is unanswerable in marketplace of ideas, i.e., the truth has not, and is not likely to come out. Ct. disagrees as too broad

if at some point, govt may define truth and prohibit falsity, then why wait for the speech at all, and just declare the truth? iii. Miller v. Schone argument govt regulates even when it is ostensibly not there, i.e., by protecting free speech of harasser on the street (woman cannot legally respond by stuffing sock down his throat), it is privileging the harasser. Marketplace of Ideas is a sham ideology makes us believe that if govt is kept out, then marketplace is free, but this is not true. 2. Hate Speech a. National Socialist Party v. Skokie (1977): 1st amendment requires strict procedural safeguards, including immediate appellate review. i. Libertarian approach (Cohen) Jews, avert your eyes. ii. What about emotional distress? Why should Nazis be privileged to inflict emotional distress on concentration camp survivors? This could be severe emotional distress. For marketplace of ideas, when govt does not stop Nazis, they privilege te Nazis to inflict ED. Thus, seems bizarre to say that this does not stop the Jews from entering into the marketplace of ideas it seems that this very well could keep Jews at home, not wanting to confront this (again) and add their speech to the marketplace. Similar argument w/re: to porn is there, but much weaker in that no real injury that common law, etc. recognizes like ED. b. RAV v. City of St. Paul (1992): teenagers burned a cross in the yard of a black family. One charge was based on ordinance prohibiting placing of symbol which one knows, or has reason to know, will arouse anger, etc. on basis of race, creed, etc. i. Ct. found this unconstitutional b/c prohibits otherwise permitted speech solely on basis of subjects the speech addresses. ii. Part of the line of cases where categories begin to disintegrate. Ct. treats this as regulation of unprotected speech, and yet law is struck down (as opposed to being held up under normal rational basis). Unprotected categories are not free from 1st amendment review. States regulating in these areas can generally not engage in content discrimination, e.g. limiting one kind of fighting words except that if the content discrimination is related to the very reason that the category of speech is unprotected, the regulation is permissible. Scalias opinion seems to indicate that viewpoint discrimination is never ok. iii. Summary: blurring of rational basis rule for unprotected speech: even regulation of unprotected speech content, like fighting words in RAV, reg cant discriminate within the unprotected category on basis of content b/c that discrimination does not flow from very reason for which fighting words are protected. c. VA v. Black (2003): VA stat that bans burning of cross with intent to intimidate a person or group. i. Unconstitutional in that cross burning is prima facie evidence of intent to intimidate, b/c this basically allows the state to convict for cross burning regardless of intent (i.e., state does not have to prove this). ii. Summary: Ct. falls off idea in flag cases that a particular symbol can get more protection burning cross stands singularly as intimidating symbol. d. Texas v. Johnson? i. In Johnson, a symbol could not be entitled to special protection, but here the cross can be protected, i.e., intimidating people with other symbols would be OK.

ii. Seemingly subject to Scalia critique even if this is regulation of conduct, then this is like regulation of unprotected category of speech, and this seems to single out a particular symbol that cannot be used. iii. Not particularly compatible with RAV possible that political pressures were significant in this decision to explain shift from RAV 3. What remains of categories after RAV? a. Govt may completely proscribe materials falling in an unprotected category (so long as govt acts in content-neutral manner within the category) and may obviously not enact such a total ban on materials not falling within an unprotected category b. Time/Place/Manner restrictions on speech in public forums will be presumptively valid when applied to unprotected categories, but will be subjected to careful review in case of protected categories E. Blurring of the Categories 1. Offensive/Low Value Speech a. Captive Audience i. Rowan v. U.S. Post Office (1970): Ct. upheld law that allowed private person to request that he be taken off certain mailing list that provided ads for material that the person himself found to be erotic or provocative. Mail order business sued. Court said people could get their names off mailing lists even though it was content based (sex stuff they didnt want to get). Court said people have the right to speak but not the right to thrust message on homeowner in private space. Blurring b/c not limited to obscene content, but sexually explicit stuff, therefore regulation of protected content, but Ct. did not apply strict scrutiny. Instead, Ct. applied (out of Cohen) captive audience law privacy issues as a particular weighty problem. ii. Con Ed v. Pub. Service Commn (1980): Court denied ban on ConEd putting inserts into electric bills. Said political speech and subject to highest protection. Easy for people to throw away insert. iii. Bolger v. Youngs Drug (1983): Ct. invalidated fed law that prohibited mailing of unsolicited ads for contraceptives potential to be offended is not enough, especially considering the ease with which one may deposit the offending literature in the trash. Court rejects Rowan rationale. b. Regulation of Sexually Explicit, Non-Obscene Speech i. Erznoznik v. Jacksonville (1975): Ct. found unconsitutional an ordinance prohibiting showing of nudity at drive thru theaters with screens that could be viewed from public streets. State argued this was reg of time, place and manner (which is permissible regulation of conduct, not speech). Ct., on traditional categorization basis, rejected this argument as content-based restriction, i.e., goes to content prong of OBrien?: Is content protected or unprotected? Protected. Therefore, is asserted govt interest compelling? Maybe end may be permissible, but fails means test. Fit is horrible too speculative ii. Schad v. Mt. Ephraim (1981): total ban on displays of nudity is impermissible. Ct. found dancing to be content (expressive activity), for which regulation did not meet test. iii. Young v. Am. Mini Theaters (1976): Detroit ordinance that prohibited certain types of theaters from being in certain areas, and limited the number of such establishments in the same area (dispersal regulation).

Plurality Opinion: Stevens identified the prohibited speech as lower value than core, political speech. Stevens said rigid categories dont work! Should not treat porn with same value as important political speech. 1st A still applies, but analysis is not same. Does reg apply based on content? Appears so only sexually explicit theaters. Looks like Erznoznik (and thus strict scrutiny), but Ct. does not do this. Secondary Effects Rationale: Not that govt officials are trying to lessen access to nudie flicks, but wants to move them around to avoid drop in property value (some empirical evidence to this effect). Perhaps, govt interest must be neutral to content, i.e., anything could bring property values down. iv. Renton v. Playtime Theaters, Inc. (1986): Ct. upheld zoning law that concentrated adult theaters to certain areas, as a time, place, manner restriction. Such restrictions must be designed to serve a substantial govt interest and must not unreasonably limit alternative avenues of communication. Secondary Effects regulation regulating to prevent crime, maintain property value, etc., NOT aimed at banning the particular content. Ct. again claims this is based on conduct, not content, and therefore will apply OBrien and secondary effects rationale. v. L.A. v. Alameda Books: plurality opinion attempted to explain secondary effects regulation govt must establish link between speech and substantial govt interest, but evidence need only be reasonably believed to be relevant. No requirement of empirical evidence to establish effect on such govt interests. vi. Barnes (1991): Ct. held that b/c ban was written in general terms (ban on nudity) this was regulation of conduct as opposed to content, that had incidental effect on free speech. Applied OBrien test siginificant govt interest (protect morals) is there, and regulation leaves ample channels of alternative communication available. Scalia concurrence: state can regulate conduct to protect traditional moral beliefs. Speech isnt even implicated. Analyzed under rational basis. c. Regulation of Offensive or Indecent Speech i. FCC v. Pacifica Foundation (1978): Carlin monologue containing the seven dirty words. FCC tried to regulate this speech so that it would be heard only at times when its less likely that kids would hear it. Ct. allows regulation of protected speech content (Young). This is protected speech as formal matter, but all protected speech should not be protected at the same weight. Opinion brings in a sort of Rowan idea of privacy (warning is not sufficient, unlike a book). Powell Opinion is treated as the majority: Special powers of govt given unique nature of the broadcast medium. Govt has more power over broadcast b/c of lack of warning, potentially adverse exposure to children. ii. Sable Communications (1989) Struck down attempt to regulate dial up porn numbers b/c here, unlike Pacifica, there was a total ban. Also, unlike Pacifica or Rowan, recipient was initiating the call Traditional application of categorization, not blurring. iii. Denver v. SEC (1996): attempts to regulate indecency on cable television. Ct. split entirely. Most justices were for explicit balancing of interests. iv. Reno v. ACLU (1997): govt regulation of indecent/patently offensive content on internet struck down under 1st amendment.

v. Ashcroft v. ACLU (2002): revamped version of law in Reno. Regulations use of community standards to id material that is harmful to minors is not unconstitutional on its face. Community standards need not be defined by a precise geographical area. Govt restriction limited to WWW, not the whole internet (as in Reno). Ct. upholds this law as being more limited in scope, and importantly: Added prong about redeeming serious social value for minors. d. New Unprotected Category Child Porn i. NY v. Ferber (U.S. 1982): NY law prohibited distribution of material depicting children engaged in sex acts, but did not require that material be legally obscene. Ferber convicted, and Sup. Ct. upheld it, finding that (like Chaplinsky) child porn was a category of material outside of 1st protections. Protecting children a compelling state interest. Photo/Film of child sex acts intrinsically related to sexual abuse of children. Ferber argued for Miller obscenity test but Ct. refused (child porn could have value, but that is irrelevant to the abused child). Ct. upheld complete ban and following this case, child porn is unprotected speech. ii. Osborne v. Ohio (U.S. 1990): Stanley held inapplicable to child porn mere possession may be criminalized as aid to enforcement of ban on child porn. iii. Ashcroft v. Free Speech Coalition (U.S. 2002): Sup. Ct. declined to extend Ferber to virtual kiddie porn. State argued that due to better tech, it is hard to tell real from not, and therefore, this would help with enforcement. Ct. did not find law enforcement interest not to be strong enough, and that state interest in protecting children no longer implicated to same extent. e. Commercial Speech i. Partial protection of speech relating to economic transactions that was formerly not protected at all. Calls into question idea of categorization. ii. Virginia Pharmacy Board v. Virginia Citizens Consumer Council (U.S. 1976): VA law prohibiting advertisements for drug prices found to violate 1st Amendment. This case broke the bubble of commercial speech as per se unprotected (protected so far as truthful and not misleading). Rationale: nothing inherently bad about speech; in free market, important as means to disseminate information to the public. iii. Central Hudson Gas v. Public Service Commn (U.S. 1980): prohibition on advertising to stimulate demand for electricity struck down despite state interest in conservation, and regulation directly related to such conservation, there were other less restrictive means of accomplishing goal without affecting 1st amendment concerns. iv. Commercial Speech Test (Central Hudson): (1) Is expression protected by 1st Amendment? Commercial speech must concern lawful activity and not be misleading. If truthful, not misleading, then intermediate scrutiny applies. (2) Is asserted govt interest substantial? If both (1) and (2) are answered in the affirmative, then must determine: (3) Does regulation directly advance the govt interest asserted? (4) Is regulation more extensive than necessary to serve that interest? Applied somewhat loosely not least restrictive alternative.

v. 44 Liquormart v. Rhode Island (U.S. 1996): Supreme Court invalidated law prohibiting off-site advertising of liquor prices. Ct. applied apparently stronger test than Hudson, i.e., if ad is truthful and not misleading, Govt has little area to regulate.

F. Conduct Regulation w/ Incidental Effect on Free Speech 1. Generally a. Government Property v. Private Property i. If conduct is on private property, no public forum analysis necessary just apply TPM test. ii. For government property, ask if court will treat as public forum or not. Public Forum: TPM test applies. Designated Public Forum: TPM test seems to apply. Not Public Forum: rational basis test only. b. Early View: Holmes (1897) govt has all rights of private landowner to forbid public speaking in parks, etc. i. But see Hague v. CIO (1939). Streets and public parks historically public forums government needs compelling reason to restrict access. 2. Time, Place & Manner Regulation (TPM) a. TPM Test: i. Regulation must be content neutral; I.e., govt cant regulate content under guise of regulating "time, place & manner". If content-based, then strict scrutiny. Possible techniques for determining content-based vs. content neutral: consequences/ effects (support in many of TPM cases for looking at the distributive effect of regulation); legislative intent (but see Hill and O'Brien); OR like the flag-burning case, singling out an institution for special protection. ii. Public Forum or Not? If expression in public forum, then: Must be narrowly tailored to significant govt interest; Govt must be pursuing important interest, AND there must NOT be a significantly less intrusive way that government could achieve objective. If expression in non-public forum, then: Regulation need only be rationally related to some legitimate governmental objective, and interference w/ speech is not substantial. iii. Alternative channels of communication must be left open. Non-Public Forum: alternative channels prove interference w/ speech is not substantial. b. Bans on Particular Media: invalid unless serves legitimate state interest, and narrowly tailored (like OBrien, later). i. Schneider v. State (1939): Court invalidated ordinances forbidding the distribution of leaflets to control litter. Effects analysis non-discriminatory on face, but discriminates against poor people in effect, i.e., cannot afford other advertising. Even though your purpose is neutral, there may be an incidental restriction on free speech that is not neutral and thus will be struck down. People must have ample alternative means, which poor people dont in this particular case.

ii. But see, Kovacs v. Cooper (1949): upheld ban on sound trucks that issue loud and raucous noise because this is not a blanket ban. Effect on poor people not considered. Provided medium ban is narrow, it may be OK. c. Invalid Facially" vs. "As Applied": TPM regulation, like any other regulation impinging upon 1st rights, may be attacked as being either "facially" invalid or invalid "as applied." d. Public Forum Doctrine This section is a fucking mess. It needs to be entirely redone. Cases are all wrong and the correct ones are missing. i. Public Forums Traditional Public Forum: streets, parks. NOT: sidewalks (Kokinda), lightposts (Vincent), sign cards on buses (Lehman), mailboxes (Council of Greenburgh Civic Assns.), fundraising event, (Cornelius) (nor designated public forum upheld exclusion of certain groups from Combined Federal Campaign, a fundraising event; plurality decision demonstrates that anything can be called a forum), libraries (American Library Assn) Designated Public Forum: places that govt has decided to open up to broad range of expressive conduct. E.g., places for govt mtgs (school board in school auditorium), school classrooms after hours. Must be generally open to the public without any need for application. Forbes. Same rules as apply to true public forums, EXCEPT govt can change its mind and remove the designation. Limitation on designated public forum could be content discrimination (if seen as based on viewpoint), subject to strict scrutiny, OR could simply be limitation on the forum that makes it limited or designated in the first place (if limitation seen to be w/re: to particular subjects), subject only to rational basis scrutiny. ii. Non-Public Forums Public Places not Traditionally Associated w/ Expression (treated as non-public forum). Complete Ban on Expression: OK in non-public forum (assuming rational basis satisfied). Ban on literature distribution struck down; does not satisfy "rational basis." Krishna Consciousness v. Lee. Ban on Certain Subjects: OK in non-public forum. Ban on particular viewpoint of subject matter NOT valid. Examples of Govt-owned, Non-Public Forums: Airport terminals, jails, military bases, inside of courthouse, school classrooms, govt office buildings, buses (Lehman). e. Injunctions Against Expressive Conduct: where court issues injunction that serves as a kind of TPM restriction, injunction subjected to more stringent review than generallyapplicable statute or regulation of same substance: injunction must "burden no more speech than necessary to serve a significant governmental interest." Madsen v. Womens Health Center, Inc. 3. Access to Private Property: a. Generally, no 1st Amend. right of access to anothers private property. i. No 1st Amend. right to speech in shopping centers. Hudgens v. NLRB (overruling Logan, which held that mall is public forum). But see Pruneyard, below.

ii. Example: State trespass laws may be used to prevent conducting anti-war demonstration/religious campaign at privately-owned shopping center. b. Compelled Access to Private Forum i. WVA State BOE v. Barnett: under 1st free speech, impermissible to require public school students to salute flag and recite pledge of allegiance. ii. Also, Wooly (Ct. struck down NH law requiring auto tags to have slogan live free or die as compelled speech); Tally & McIntyre (Ct. struck down ban on anonymous leaflets (Tally), and ban on anonymous political leaflets (McIntyre)). iii. Pruneyard Shopping Ctr. (1980): private center owner was not being compelled to use his property for speech of others (public place where shop owner could easily distinguish himself views of those seeking signatures). 1st does not require private property owners to make their property available, but if state decides to impose that duty on him, the owner has no correlative constitutional right to deny that. iv. Red Lion (1969): Ct. upheld required access of FCC provision, relying heavily on scarcity of broadcast spectrum as justification. But see Tornillo (1974) (Ct. struck down Fla.s right of reply statute unconstitutional as burden on papers free speech rights content based restriction, b/c only triggered if candidate was criticized). v. Pacific Gas & Electric Co. (1986): Ct. upheld 1st claim against state-compelled access, where state had required private utility to include newletter from group adocating against its policies. vi. Turner Broadcasting System v. FCC (1994) [Turner I]: Ct. rejected argument that provisions of consumer protection act (requiring cable to carry specified number of local access channels) were subject to strict scrutiny. Statute = content-neutral, meant to preserve free TV for Americans w/out cable. Ct. relies on scarcity of broadcast medium and threat to free TV. Preservation of competition was significant govt interest. Proper standard is OBrien intermediate scrutiny test. In Turner II, Ct. affirmed decision for govt, based upon OBrien, and deference to Congress (although Turner I suggested that scarcity of broadcast medium/threat to free TV would have to actually be proven empirically and was not). vii. Hurley (1995): Ct. held privately organized St. Pattys parade need not include, against organizers will, a self-proclaimed gay contingent, finding that a parade was a mode of expression, and that govt may not require organizers to include messages they do not wish to include. Ct. found parade was a private forum. 4. Government Subsidies a. Unconstitutional Conditions (Right of Non-subsidy (TRW) vs. Penalty (LWV)) i. Govt may not condition receipt of benefit on surrender of individuals constitutional rights. ii. Govt may not penalize by witholding of benefit, for exercise of consitutional right. iii. Regan v. TRW: Ct. upheld IRS provision giving tax exempt status to range of groups, but limited tax deductibility to orgs not engaged in lobbying. Found to be govt right to not subsidize (non-subsidy) lobbying efforts not a denial of a benefit based on their exercise of constituional right. If subsidy is used to discriminate invidiously to suppress dangerous ideas (viewpoint discrimination) govt cant use subsidy to censor. iv. League of Women Voters (LWV): reg prohibited grantees of public broadcasting act from editorializing. Struck this down as penalty, b/c impossible for radio staion to segregate its funds.

v. Rust v. Sullivan (1991): Ct. upheld statute forbidding projects receiving federal Title X funds from counselling, referring, encouraging, promoting or advocating abortion. Title X services were segregable. Ps argued impermissible veiwpoint discrimination (b/c doctors could discuss taking pregnancy to term). Ct. disagreed, claiming that doctor may still exercise rights (to discuss abortion) outside scope of Title X project, i.e., Title X project is separable/segregable. Govt may selectively fund a program to encourage certain activities, without need to fund alternative program. Not viewpoint discrimination, simply defines contours of program like distinction in limited public forum (defining forum as one in which abortion may not be subject). vi. Rosenberger v. UVA (1995): UVA guidelines for distributing student fees prohibited use for religious purposes. Ct. invalidated funding limitation as viewpoint discrimination refusal to fund Christian mag impermissible non-subsidy. Is fund a public forum? Ct. recognizes distinction between content discrimination as OK if it preserves the purpose of the limited forum. Here, designated public forum was broadly open (to almost anything), thus, discrimination against religious speech is viewpoint discrimination. Could make argument for other side (like Rust, even though a broad forum, exclusion of religious subjects simply defines the forum). Ct. denies this if govt is speaker (or hiring those to speak on its behalf, as in Rust), then exclusion of particular topic (abortion) is permissible; if govt is simply creating a forum for private individuals to speak, then restriction like those in Rosenberger is more like viewpoint discrimination. vii. NEA v. Finley (1998): Ct. found law, requiring NEA to ensure applications for funding are judged acc. to Am. standards of decency, constitutional on its face. Ct. avoids issue claiming this was simply a suggestion to consider decency, not a requirement. In this situation, govt must make content decisions (what type of art does govt want to fund based on policy issue). NEA grant is not a public forum at all (like Rosenberger) discrimination is part of the basic funding. Ct. did leave open possibility that invidious discrimination might override this. Scalia claims this is clearly viewpoint discrimination the decency requirement was just that a requirement. Problem is that when govt subsidizing, it is free to distinguish between viewpoints, too. Govt may choose to spend as it sees fit. This is NOT a public forum. viii. Legal Services v. Velazquez (2001): legal services lawyers could not rep indigent clients to challenge/amend welfare law. Struck down, although a nonsubsidy, as govt would be funding people to oppose the govt. ix. U.S. v. Am. Library Assn (2003): CIPA argument that req that publicly funded libararies install filters was impermissible penalty/violation of 1st rights Ct. disagrees, finds this a decision to not subsidize porn. VII. Freedom of Religion A. Generally 1. Categorical/Conceptual Divisions: a. Prohibited Aid things govt cant do without violating establishment. b. Permissive Accomodation similar to limited public forum/Pruneyard. c. Mandatory Accomodation things govt must do to accommodate peoples free exercise. 2. Problem: any attempt to not violate est. cl. can be viewed as violation of free exercise cl. a. To extent state refuses to assist religion, more it possibly hampers/prevents free exercise.

3. Traditionally, voluntarism and separatism were values protected by religion clauses. a. Prohibtion on govt endorsement of religion (symbolic or non-symbolic). b. Ban on coercing participation (overlaps with free exercise). 4. Competing value emerging: non-preferentialism (establishment clause not meant to prohibit govt aid to religion, only to prohibit it from preferring one sect over another, or no religion over religion). 5. Religion Defined: must be defined non-religiously basically only requires a deeply held, sincere belief (Seeger (1965); Welsh (1970)). a. Gillette (1971): conscientious objector must oppose all wars, not just the particular war. b. Ct. will NOT decide which sect is right, for instance treated as a non-justiciable matter. Two Tests Under Est. Cl.: o (P. 1475) Three Part Lemon Test: not very important b/c does not mean anything, other than just as mantra the court Legislation must have secular purpose. Principle effect of legislation must not advance/hinder religion. Legislation must not excessively entagle govt with religion. o Past 5 years, Ct. has decided some religion cases without even mouthing the Lemon test, and has applied the Endorsement Test: would reasonable observer would conclude that the govt is endorsing a religion in particular or religion in general.

Establishment - Wallace v. Jafree (1985): invalidated certain AL statutes permitting silent prayer/meditation in public schools. Rehnquist dissent arguing for non-preferentialism (1st intended to prevent natl church, or giving preferential treatment to one church over another, BUT govt may support religion generally). o See also Rosenberger v. Rector (1995). Establishment Financial Aid to Religious Institutions - Everson v. BOE (1947): NJ law allowed school districts to provide bussing for kids going to parochial schools. P argued that this violated the 1st by forcing citizens to pay taxes to support/maintain Catholic faith. State may pay to bus kids to/from parochial school. Blacks discussion of the wall of separation idea of the religion clauses. o NJ cannot support a faith [establishment], nor can it exclude certain religious believers from its public welfare [free exercise]. Analogy of bussing to fire, water, sewage services, i.e., denying these services to the churches would be violative of free exercise state as adversary to religion. o NOTES: Est. Cl. Prohibits, acc. to the court, (see p.1475). Argument is that tax is being used to subsidize the church. State not allowed to hamper someone in exercise of religion, but may not establish, either the inherent tension in the clauses. But, OK if state decided not to provide monies to bus religious school kids, i.e., this would not hamper free exercise. Ct. finds this to be a close issue Line seems to be between background social welfare provided to everyone, which is not violative establishment clause, and expenditures of public money outside of this realm.

Precursors: o Lemon: law held to be an excessive entanglement (salary supplementation for parochial schools, bot only for secular part of teching day). o Hodepodge of cases, in which state is attempting to give some assistance for secular teaching to parochial schools, with court going back and forth on what is or is not permissible. Eventually, these cases found that state could not give aid to parochial schools. Now, state can give more aid to parochial education, without need to parse which funds going to what. Nyquist: tuition rebates and tax deductions (credit, actually that went directly to parents, not schools) for private schools. Basis of Ct.s decision based on 2nd prong of Lemon (violation of this, regardless that credit was for all private schools, not just parochial schools). Tax credit program was, in effect, providing tax dollars directly to parochial education. Mueller v. Allen (1983): Minn. Law allows citizens to deduct certain expenses related to childrens education from income tax, regardless of type of school (public/secular, private/religious, private/secular). o Issue was whether Nyquist was distinguishable Ct. found that it was. Here, this was pure tax deduction (not a credit), reducing taxable income. Ct. finds a big difference between credit and deduction (but not really). Here, same analysis of Nyquist could find the deduction going, eventually, directly to the parochial school. o Ct. applies Lemon test (purpose, effect, entanglement): Tax deduction has secular purpose? Yes. Tax deduction has primary effect of advancing sectarian aims of non-public schools? No. Also important that money goes to parents and not school itself (although, in this regard, Nyquist was similar and was struck down). Important to court that deduction is provided to all parents, not just those in private schools available to a broader spectrum than in Nyquist. Benefits not given directly to school, but rather to individuals, who use benefits, thru own private choice to the school. In this case, rather than looking to the effects (like Nyquist), Ct. will not look to empirical evidence as to where the money goes. Only looking at face of statute for scope, and employ of individual choice. Tax deduction excessively entangle the state with religion? No. Requires somprehensive, discriminating and continuing state surveillance to fail test only thing here is to make sure no deduction for religious instructional books. o Deduction is Constitutional. Affirmed. o Dissenters: this is tax money being used to directly advance parochial schools, i.e., religion. o NOTES: Mueller changed drastically determination of aid to religion former test (de facto/impact), new test (look on the face of the stat for broadness/individual choice). Downfall (at least in substance) of effects test. Zelman v. Simmons-Harris (2002): Ct. found OH program designed to promote educational choices to families in Cleveland not violative of establishment clause. Program provides tuition aid to attend public or private school of choice (voucher program, essentially) for those in failing schools. Not one outside public school joined the program. o Finding that program has secular purpose, Ct. asks whether program advances or inhibits religion?

Everson recognizes that free exercise may require subsidies for parents too poor to make choice between public/private(religious) cases (effects/impact oriented application of constitutional right). Dissenters argued this was unconstitutional under est. cl.

Distinction is between true, private choice and direct aid to religious schools focus on neutrality and private choice. o NOTES: A lot like Mueller had vast effect to give money directly to parochial schools, and parents had to send kids to lower-tuition parochial schools (only ones for which tuition would cover, and where seats where available). Controversial application of Mueller analysis: since the other programs were available (tutoring, etc.), and since money went to parents first, to make their own choice, satisfied Muellers facial test. Direct financial aid to parochial schools (though going thru parents) without condition that money be used for secular purposes. Dissent: no real choice, and a bias toward parochial school. Higher Education - Aid to parochial higher-education institutions have been more easily upheld. o Tilton v. Richardson (1971): upheld fed construction grants to church-related colleges, distinguishing higher education as less liekly to implicate issues of establishment clause. Public Welfare Subsidy Schemes - Walz v. Tax Commn (1970): upheld tax exemption for property used exclusively for religious, educational or charitable purposes. Assimilationist view, that state had granted exemption across a wide spectrum, granting only an indirect benefit to churches. o Mueller approach. - Widmar v. Vincent (1981): rejected state universitys ban on use of facilities for prayer/religious discussion. Equal access does not violate establishment clause. o University not endorsing religion simply by granting access to facilities. - Witters v. Wash. Dept. of Service for Blind (1986): effect prong of Lemon test not violated by law authorizing payment to blindman for vocational rehab services, which he sought to use at Christian college, to become minister/pastor. - Bowen v. Kendrick (1988): law authorizing fed grants for counselling services and research into premarital adolescent sex, made available to public, private orgs (including religious orgs). Ct. rejected prima facie attack and remanded for as-applied challenge (to determine whether religious groups could provide such counselling without indoctrination). o Dissenters claimed there is no way to give family planning advice to assume any separation between such counselling and the religion. - Zobrest v. Catalina Foothills Sch. Dist. (1993): provision of publicly funded sign language interpreter to child in parochial school upheld. o 1st time Ct. upheld public employee assiting in learning even in religious part of classes. o Again, legislationwa sprovided for broad spectrum of people (Mueller). - Rosenberger v. Rectors (1995): the UVA/Wide Aawke case. o Does not violate est. cl., b/c funding given to all groups, and no serious perception that this was speech of the university. o Continued drift from ban on any aid for parochial purpsoes to idea that so long as funding is neutral, then some aid can go directly to religious practices. - Agostini v. Felton (1997): Ps seeking to overturn injunction (imposed pursuant to prior Sup. Ct. case) preventing public school teachers from providing remedial education to disadvantaged children at parochial schools (thru Fed program). Ct. overrules prior case(s) and overturns injunction. o Ct. describes 4 rationales on which prior cases relied, including: (1) public employee working on sectarian grounds is presumed to inculcate religion into work, (2) creates symbolic union of church and state (simply looks like), (3) direct aid to educational function

of sectarian schools is impermissible as financing religious indoctrination, and (4) requires excessive entanglement by state with religion. o Ct. acknowledges that (1), (2) and (3) have been refuted in subsequent cases. o Aid allocated on basis of neutral, secular basis that does not favor/disfavor religion, and made available to religious and secualr institutions does NOT advance religion. o Excessive entanglement look to (1) character of institution benefited, (2) nature of the aid the state provides, and (3) resulting relationship btw govt and religious authority. o NOTES: Assistance, thru Title 1 funds, available to any student (thru schools) for at risk children (poor kids), not just parochial schools. One argument was that by sending public money to teach remedial reading (what they should have been teaching anyway), this freed up money for parochial schools to use for religious indoctrination. o Ct. finds that these kinds of classes would not have necessarily existed in addition to, as opposed to in place of secular subjects they would have had. What has changed with court to allow public school teachers into private/parochial schools? Basically, the case law has evolved Zobrest (pub employee in parochial school does not necessarily mean endorsement); Witters/Rosenberger (aid going to students, not directly to the school). Ct. seems to be saying that so long as aid is neutral and available on a wide basis, aid can go to parochial school. Can secularism be seen as inculcation of religion? I.e., by excluding prayer, etc. from schools, isnt the school endorsing the religion of secularism? I.e., the same discrimination is involved when religious students are looked down upon for religious beliefs? I.e., it appears that the neutral secular humanist tradition is really a protestant tradition. Mitchell v. Helms (2000): plurality decision that upheld provision of publicly funded computers and teaching aids to public and private elementary and secondary schools (including parochial schools). o Thomas: neutrality is whats important. Only test is whether people think that the relgiious activities were attributable to govt (endorsement-type test). o OConnor: applies Agostini. o Souter: NO aid to parochial schools. o NOTES: Again, computers go to parochial schools without condition that computers be used for secular purposes. Indicates test has become much weaker than simply, is govt aiding religion?

October 30, 2003 Establishment Enshrining Official Beliefs - McCollum v. BOE (1948): struck BOEs practice permitting students to attend sectarian classes held in public schools during school hours taught by parochial school instructors. - Zorach v. Clauson (1952): NYC program allowed public school students to be released during school hours to attend religious class outside of school. No public funding used to support program. Challenged as no different from program struck down in McCollum, claiming school authority put behind religious instruction. No child is forced to attend.

o All govt was doing was accomodating those that sought religious training, against argument that this was aiding religion. o Majority called this permissive accomodation: When state encourages or cooperates with religion, this is OK. Today, trhis would probably be seen as improper endorsement. Relied upon tension between establishment and free exercise; i.e., by not allowing this, the state would be hostile to religion. Must be an accomodation; question of degree even giving fire protection to churches is some kind of establishment. School Prayer - Engel v. Vitale (1962): school board reqd that non-denominational prayer be recited daily by each class. Parental objection could overcome this. Ct. struck this practice down. o Very important and heated issue at the time. o Ct. found that est. cl. Did not merely protect against coersion, but also protected against govt participating in a religious act. There is coersion, b/c of setting of school, etc. Point of est. cl. was to keep religion and govt separate. o Stewart Dissent: permitting school prayer was simply accomodating views of its students. - Abington School Dist. v. Schempp (1963): establishment clause prohibits state law/practice form requiring selection/reading of Bible verses and Lords Prayer by strudents in unison. What is primary purpose/effect of enactment? If to advance or inhibit religion, then prohibited by Constituion. o The govt has to be neutral to religion neither favor nor disfvaor. Requiring recitation of lords prayer was violation of that neutrality. - Wallace v. Jafree (1985): law setting aside one minute for prayer/meditation struck down. Law not motivated by any secular purpose, thus violating Lemon test. Problematic was amendment to moment of silence specifically noting prayer as state endorsement of religion. o Even though Ct. claims it will not get into evaluating legislative intent, this case is all about it. Moment of silence could have secular purpose, but legislative/social history defied this interpretation. o If legislative history shows religious purpose, that excludes secular purpose, which is enough. - Lee v. Weisman (1992): schools practice of inviting members of clergy to graduation ceremonies to lead group in prayer deemed to be unconstitutional. o Ct. cited risk of indirect coercion especially considering impressionable school age of objectors. Ability to skip graduation and receive degree elsewhere not enough. Est. Cl. Analysis done without look to aid/endorsement at all only coersion. Psychological pressure (peer pressure) to attend, and to participate in the prayer. o Blackmun, Stevens, OConnor Concurrence: govt coercion not required to prove Establishment Clause violation, but sufficient. Pressure to participate is indication of govt endorsement. Govt must not only refrain from compelling religious practice, but must also not engage in them, so as to avoid conveying message that one religion is preferred. o NOTES: Neutrality not really neutral. Zero sum game of religion clauses i.e., by allowing free expression to some extent, it impinges on establishment. - Santa Fe School Dist. v. Doe (2000): practice of allowing students to vote whether to have religious invocation and who should do it struck down by court, concluding that this was state-sponsored endorsement of religion, inviting/encouraging religion.

Good News Club v. Milford Central School (2001): practice of allowing use of public school facilities for after school prayer group, that was also open to other groups, upheld, finding that prohibiting such conduct would be viewpoint discrimination in a limited public forum.

Religion in Public School Curriculum - Stone v. Graham (1980): struck KY law requiring ten commandments, purchased with private contributions, to be posted in public school classrooms, finding law had no secular prupose. - Epperson v. Arkansas (1968): struck down anti-evolution law, finding that state had selected a particular belief from a particular religious belief. - Edwards v. Aguillard (1987): Lousianas law forbade teaching evolution in public schools w/out accompanying instruction in creationism. No school required to teach either if one taught, so must the other. Law overturned. o Applying Lemon test: no clear secular purpose Acts clear purpose was to provide persuasive advantage to a particular religious doctrine. Unconstitutional endorsement of religion not simply neutral. How? Legislative history (see Scalia dissent below). Apparently favored creation science, by requiring it to be taught, if evolution would be taught. o Scalia dissent would abandon the purpose part of the Lemon test, as impossible to discern what the motivation of a group was. Religious Symbols Outside of Schools - McGowan v. MD (1961): Ct. rejected claim that Sunday-closing laws violated 1st. Ct. found these laws to basically be secualr at this point, despite religious origin. - Marsh v. Chambers (1983): upheld Neb. legislative practice of opening session with a prayer by state-paid chaplain. Lemon test not applied; viewed from historical perspective. o Ct. basically says that long history would not be overturned. o Strong dissents by Brennan, Marshall and Stevens. - Lynch v. Donnelly (1984): Pawtucket, RI erects a Christmas display every year, located in heart of shopping district. Ct. reversed low ct decision finding this violated establishment clause. o Issue is whether, in reality, the display establishes a religion or faith (discussion of threefactor Lemon test). o Again, Court seems to take historical approach to validate display. Scene had really lost its religiousity. o Dissent does not take issue with recognition of Christmas as national holiday nly accomodates the fact that many will not be at work, anyway. A permissive accomodation. Does not have same religious symbolic effect as the nativity scene. Could have said that the holiday was improper endorsement, but did not. Eventually, dissenters want to have a strong est. cl. (prohibiting aid endorsement), but also a strong recognition of rights of people that exercise their religion. - Allegheny Cty. V. ACLU (1989): Ct. found unconstitutional a nativity display at cty. courthouse, while simultaneously upholding display of menorah with Christmas tree (with sign Salute to Liberty) at County bldg down the street. Ct. adopted OConnors no endorsement analysis: govt prohibited from appearing to take a position on questions of religious belief, or making adherence to a religion relevant in any way to someones standing in the community. o Majority expressly disclaimed strict coercion test. - Capitol Square Review Board v. Pinette (1995): free speech required city to permit KKK to erect large cross on public square next to state house. Distinction between public and private speech (free speech right in public forum).

Establishment Clause Link w/ Other Janx - Notion of neutral unregulated economic marketplace (heart of Lochner) plays same role as marketplace of ideas (to legitimate democracy) to legitimate distro of political power. In est. cl. Cases, notion of neutral publi places from which religion has been excluded is to legitimate fairness/openess of public school classrooms. All claim to be neutral and free from exercise of regulatory or social power. - Establishment Clause Critique: very controversial critique of neutrality. Idea thst public place free from religious particularity is critiqued a critique of secular-humanism. - Beginning free exercise cases give view of possibility of affirmative view of govt where rights are formal and empty unless govt makes them meaningful (effects analysis), which is ultimately rejected. o Smith model is emerging model, and polar opposite of effects/affirmative idea. From BML: - Notion of a neutral unregulated free marketplace plays the same role as the neutral marketplace of ideas. - In establishment clause, the idea of neutral public places from which religion has been excluded is supposed to legitimate the... - All share the claim of neutrality. - Critique: o Economics: Free market o Free speech: Marketplace of ideas o Religion: Critique of secular humanism - Free exercise cases are alternative view of constitutional law to the neutrality idea: o Rights are only meaningful if the government protects the ability to exercise those rights. Otherwise rights are formal and empty. o Affirmative rights/ Effects orientated free exercise clause idea runs for a brief period: Begins with Sherbert Ends with Smith. Think back to Barns Revealing because stated in opinion that affirmative rights analysis is rejected in equal protection so rejected in religion area. November 4, 2003 Religion Clauses Free Exercise Review/ Introduction: - Many decisions seem like decisions in free speech area. o Similar speech/ conduct distinction. Distinction is between belief/ conduct. o Belief is absolute, but conduct cannot be. - Will focus on affirmative, de facto, impact, or effects reading that developed in Sherbert and Yoder. Contrast with Smith. Law Discriminating Against Religion Small category of cases that can be shown through face of regulation or through legislative history to discriminate against some religions:

Torcaso v. Watkins (1961): Ct. struck down MD law requiring all public office-holders to declare belief in God. o Struck down as compelling religious exercise. o Could have just as easily been decided under Establishment Clause. McDaniel v. Paty (1978): Ct. invalidated TN law disallowing clergy from being legislators or constitutional convention delegates. Plurality opinion. o Rejection of idea that holding public office was privilege, for which state could attach conditions that may violate the 1st. o Burden on free exercise. Court felt that because it was a burden, then strict scrutiny. Did not survive strict scrutiny. Lukumi (1993): Santeria faith involved sacrifice of live animals. In response to opening of Santeria church, city of Hialeah passed laws prohibiting all religious practices inconsistent with public morals, peace or safety, specifically outlawing sacrificing animals. o Free exercise implicated if law discriminated against some or all religious beliefs or regulates/prohibits conduct b/c taken for religious reasons. o Law was facially discriminatory; and, state health interest could be satisfied by lesser controls and even if state interest were compelling, too over/under-inclusive (not narrowly tailored). o Religious gerrymandering (law as impermissible attempt to target particular religion and its practices) also dealt with under est. cl. Larson v. Valente (1982): MN law imposing registration requirements on some, but not all, religions (only those deriving 50%+ of funds from non-members). Express design of law to burden some religious groups and not others. Establishment clause for favored groups. Free exercise argument for disfavored. Also violated E clause. Law on its face was neutral, but had to purpose. Purpose was to target less popular religious sects. o Notes: Rare and atypical free exercise case. Court found that the statute singled out a specific religious belief because it carved out from reach of statute other "cruel" practices from reach of the statute. Would have been a more difficult case if the statute was written more generally and it was more difficult to determine that it singled out a specific religion. Might have been treated as an Establishment Clause problem because it permitted Kosher butchering. Dissent: Scalia stated that cannot determine the intent of a legislature. Should only examine on its face. Concurred because, on its face, the statute favored one religion.

Neutral Laws Adversely Affecting Religion: - Reynolds v. U.S. (1878): upheld fed law banning polygamy, despite mormon claim that this was his religious duty. o Law may not interfere with belief/opinion, they may with practices. o Mormon claimed that bigamy was a religious practice. o Opinion draws distinction between absolute protection of beliefs v. limited protection of religious conducts or practices.

o Can't allow someone's religious beliefs to exempt them from general law, unless everyone would have individual law unto themselves. This argument is translated into anarchy argument in Smith case. Braunfield v. Brown (1961): challenge to Sunday-closing laws by Orthodox jews rejected. Ct. found the law to be only an indirect economic burden. Previously, under Cantwell, Sunday closing laws were upheld under Establishment clause. Here the argument is brought under Free Exercise clause. o Court rejected idea that Jews were burdened. Were not required to open on Saturday. If burden, indirect economic burden, that didn't trigger any FE interest. If created an exemption from Sunday closing law, secular purpose (if there was one) of law would be defeated. Sherbert v. Verner (1963): appellant discharged from job b/c refused to work on Saturday acc. to religious beliefs, and unable to find other work for same reason. Claim for unemployment barred by law that prohibited such monies going to those who failed, without good cause, to accept suitable work when offered. o Ct. found the law to require impossible choice practice religion and not work, or give up part of religion to make money same effect as a fine for Saturday worship. State interest in avoiding fraudulent claims not sufficient (distinguished Braunfield as being legislatures only way to provide day of rest, whereas here, denial of benefits does not reach this level). Ct. not establishing this particular religion, only requiring that benefits go to people regardless of religious belief. o Notes: Initially looks like Braunfeld. She had an economic burden. It might be argued that if the only exceptions were made for religious reasons, then this would be an E clause problem. Law favoring religion. No justices raise this argument if state excepted out religious practices. This is the category of permissive accommodation. Permissive if not compelled by the FE clause. Court states that she has been put to a cruel dilemma: Practice religion or get benefits. Does the burden come from state or somewhere else? o Could be argued the source is her economic situation, not the state. Then, it is not the state's obligation to rescue her from the economic situation so she can exercise her religion. Analogy to free speech clause where people don't have means to exercise free speech. State there has no obligation to provide. What is radical about this case is that the court is taking S's economic situation into account. Comes close to an affirmative right to free exercise (not totally there because government does not have to outright fund religious exercise). Court requires the government to lift an economic burden that was not caused by the government. Court is employing a de facto or impact test, rather than a de jure test. Regulation has impact of burdening her free exercise clause. Things to take away from case: o De fact or impact test o Approaching an affirmative right o More radically, economic situation is indirectly a result of the state and, therefore, state should be forced to intervene. Previously,

S is free to practice her religion. State is not obligated to pay unemployment benefits. Is there a burden on her FE rights? No burden because burden flows from economic status, which is in private sphere, not state. Yes, burden because impact of withholding the state funding places a burden on her FE rights. Is there a burden triggering heightened scrutiny? If burden, then strict scrutiny (***REVIEW THIS LANGUAGE FROM THE CASE***): o Least restrictive means o Legitimate state interest: Feigning of claims based on FE excuses? No facts presented to this effect.

Upholding Free Exercise Claims Under Sherbert: - Thomas v. Review Board (1981): relied on Sherbert to strike down IN denial of unemployment to Jeh. Witness who quit job at munitions factory b/c of religious objections to war (based on voluntarily leaving job for personal reasons without good cause). o Hobbie: also followed Sherbert upholding unemployment claim. o Frazee: sincere, religious belief enough to obtain unemployment claim despite not being part of established sect. - Wisconsin v. Yoder (1972): D convicted and fined $5 for refusing to send daughter to school after 8th grade based on Amish beliefs. States interest in universal education must be strictly scrutinized when impinges on free exercise requirement must serve state interest compelling enough o override free exercise (an interest of the highest order, not otherwise served). o Law was generally applicable, but impact prevented the Amish from carrying out their religious beliefs. o Burden triggered strict scrutiny: Court did not ask purposes of law in general, but purpose of enforcing this on the Amish specifically. Governmental interest of compulsory attendance to secondary schools was diminished because Amish are productive members of society. Interest was not compelling. o Notable because this opinion of written by a right-leaning justice. Impacts analysis had won the day at the time. Why was the de facto approach applied so thoroughly in the FE context, but rejected in the E clause context only limitedly applied on free speech context? Cases, however, left Sherbert and Yoder standing on their own, except for employment benefits context. o Douglas dissent: Amish should not be in charge of compelling child's interest in keeping with Amish tradition. Rejecting Free Exercise Claims Under Sherbert: - U.S. v. Lee (1982): Amish mans claim to not pay Social Security due to religious belief that it is sinful not to take care fo the elderly, found to be distinguishable from Yoder and denied Lees claim. o Applied strict scrutiny, but found that state interest in soc. sec. overriding necessary for fiscal vitality of the system. Too difficult to accommodate myriad of religious claims and still administer the soc. sec. program.

o Upheld payment of social security tax by Amish man who objected to it on religious grounds. Bob Jones Univ. v. U.S. (1983): free exercise claim challenging denial of tax-exempt status to institutions that practiced racial discrimination based on religious beliefs. o Govt interest in eradicating discrimination in schools overrode free exercise. o Upheld the denial of tax-exempt status to a racist institution. Goldman v. Weinberger (1986): Ct. abandoned strict scrutiny, applied deferential standard to reject free exercise claim for disciplinary action taken against orthodox jew in air force for wearing yarmulke. o Military need not encourage, debate or tolerate protest to extent mandated for civil society. Great deference given to military judgment justifying restriction on rleigious conduct. o Brennan Dissent: must require that stricter standard than subrational-basis deference must give credible explanation how challeneged restriction is going to interfere with military practice. o Rejected a challenge to a military law that forbid the wearing of a yarmulke. Court deferred to military interest. Compelling interest. Olone v. Shabazz (1987): rejected free exercise claim against prison regulations that prevented islamic prisoners from attending a particular service on Fridays. Ct. applied a reasonableness standard, rejecting view that prison must disprove the availability of alternatives. o Rejected free exercise claim by Muslims in prison that prison regulations affected observance of Islam holidays. Bowen v. Roy (1986): rejected free exercise claim that applicants be idd by SSN, as robbing named person would have her spirit robbed. Free exercise of individual does not require govt to change internal policies. o Rejected a claim that identification of food stamp recipients by SS# violated religion. Lyng (1988): free exercise challenge to Forest Services plan to build a road thru and permit timber harvesting in area of natl forest traditionally used by India tribes as sacred areas. o Burden on religious beliefs acknowledged nut not deemed significant enough to warrant strict scrutiny. o Rejected a free exercise claim by Native Americans, stating that Forest Service regulations would disrupt holy site. Didn't apply strict scrutiny. Government action had nothing to do with religion. Simply not a burden on Employment Division, Dept. of Hum. Res. v. Smith (1990): peyote use prohibited in Oregon, for religious or any other purpose. o Issue: does free exercise clause permit Oregon to deny unemployment benefits to persons dismissed from their jobs b/c of religiously inspired peyote use (which was made criminal)? NO. o If prohibiting exercise of religion is not purpose of the tax, but merely incidental effect of a generally applicable law, the 1st has not been offended. o Sherbert limited to unemployment compensation cases. o Notes: Prior to this case, court either followed Sherbert or Yoder in the employment benefits context or just decided that there was not a burden on the FE of claimant's religion. Was the application of criminal prohibition on peyote use burdensome to S's FE of religious practice? How can you tell if a burden and, therefore, to apply strict scrutiny? If not strict scrutiny, then rational basis. Scalia's concurrence in Barnes case:

THIS IS THE LAW: Generally applicable law with incidental effect on FE rights, will not trigger heightened scrutinyonly rational basis. If incidental effect on general law, then no heightened scrutiny. This would stop effects orientated constitutional doctrine. He has also done this equal protect, free speech, and now in free exercise clause. FN 4, 1454(?): Links Smith to Equal Protection idea. Also puts forward, anarchy argument. Permissive rather than compulsory argument. FE clause does not compel state to provide exemption. If state wanted to exempt, it could without violation of E clause. This is a conservative process theory argument. A little tension in his approach: o States that case would come out differently if the purpose of the law was to stop religious practice. But he has said previously that you cannot determine religious purposes. o This would only allow the court to look at the face of the statute. So if there was nothing on the face of the statute. O'Connor: Continuing embracing Sherbert/ Yoder impact test. Connects this to free speech, where O'Brien balancing test would apply where general law had incidental effect on free speech rights. Believes in strict scrutiny. Concurs because government's interest in enforcing drug laws outweighs FE. Dissenters: Agree with O'Connor that Sherbert/ Yoder, but think that the government's interest in enforcing drug laws does not outweigh FE of S. This case stands diametrically opposed to Sherbert. Does not overrule Sherbertstill applies in employment context where government makes determination... (he wasn't clear on this point). After Smith: If singling out, FE violation, then strict scrutiny. Sherbert/ Yoder. If not singling out/ facially neutral, but purpose is discriminatory, then strict scrutiny. No case, but clear from Smith dissent/ concurrence If not singling out/ facially neutral, but purpose is not discriminatory, then rational basis. Smith. City of Boerne v. Flores (1997): Congress lacks authority to enact stat applying Sherbert rather than Smith standard to claims of religious exemption from generally applicable laws. o Held that Congress lacked the authority to apply the Sherbert rather than Smith standard. o Congress cannot establish substantive requirements of 14th Amendment as applicable to the states. Also, Congress cannot reverse the decision of federal courts as applied to federal government.

PERMISSIVE ACCOMODATION - Larkin v. Grendels Den Inc. (1982): overturned Mass. law allowing churches and schools to veto liquor licenses to restaurants within 500 feet of the church/school. o Govt may not delegate civic authority to a religious entity. o Delegation of zoning power to religious entity. Violated E clause. - Amos: 1533. Upheld Title VII exemption from religious discrimination for religious organizations. - Title VII, Civil Rights Act: no discrimination on basis of race, gender, religion.

o Estate of Thornton v. Caldor (1985): overturned CT law that required employers to accommodate employees who stated a particular day was his sabbath by not requiring him to work, and not dismissing him for such belief impermissible est. of particular religion. o Corp. of Presiding Bishop v. Amos (1987): mormon fired from janitor job for not being mormon claimed this violated Title VII. Ct. said no religious organizations exception OK, i.e., religious orgs may discriminate on basis of religion in hiring for non-religious jobs. TX Monthly v. Bullock (1989): struck down tax exemption available only to religious publications, as violative of est. cl. b/c not available to similarly situated non-religious groups. o Overturned exemption of religious periodicals from taxes. Singling out. BOE v. Mergens (1990): schools denial of request to form Christian student club violated act which required any school, receiving fed aid and which has limited open forum, to make that forum available regardless of religious, political, philosophical or other content-based distinction. BOE of Kiryas Joel v. Grumet (1994): Ct. invalidated NY law allowing jewish group to establlish pub school district of its own. o Legislature may not accommodate a religious community by allowing it to isolate itself in its own govt district.

Equal Protection Generally: - Themes: o What triggers heightened scrutiny? Suspect classification? o What type of scrutiny is required? - Strauder v. WV (1880): Strauder, black D, convicted of murder by jury from which blacks had been excluded thru state law. Ct. found removal should have been granted (which D requested), and law unconsitutional (which allowed only white males over 21 to serve on jury duty). - Korematsu v. U.S. (1944): Sup. Ct. upheld law excluding Japanese from certain areas of west coast. Law that employs racial distinction is suspect, but not necessarily invalid pressing public necessity may validate such laws (as here WWII fear of espionage). o Expansion of the purposes of 14th Amendment to include all ethnic groups, not just African Americans. Also shows a doctrinal structure. Established strict scrutiny test that has been used in other areas. Because state action based on suspect classification, then strict scrutiny. - McLaughlin v. Fla. (1964): invalidated crim stat prohibiting interracial, married cohabitation. - Palmore v. Sidoti (1984): custody of daughter, upon re-marriage to af-american, taken away from mother. Ct. reversed as decision wholly based on race. Separate But Equal - Plessy v. Ferguson (1896): Ct. sustained sep. but equal per Louisiana law requiring separation of railroad passengers. 14th not intended to promote social equality, as opposed to political equality. - Brown v. BOE (Brown I) (1954): children sought access to white schools, arguing that sep. but equal was not equal, could not be made equal, and thus denied equal protection. Ct. agreed. o Overturns Plessy. o Examine history. Public schools were vastly different at time of Plessy. Unclear of passage of equal protection meant the end of segregation. Inconclusive. o If separate, but equal, isn't that equal protection? Facially neutral law, but ruled on impact of law. In school context, this was not true because schools were shown in a previous line of cases to be unequal. This made separation unequal.

This was shown through inequality with facilities, teachers, etc. o Missouri Grad School Case o Texas Law School Case In Brown, the court stated that education was fundamental (value weighing of interest). Segregated education created a feeling of inferiority in Black children. Relied on psychological data showing thisfamous Doll studies. Separate, but equal not a viable doctrine. Criticism: Court based findings on psychological data could change. Wechsler stated that this was not a principle decision, but an evaluative decision. He argued that only principle is freedom to associate. Flip side is freedom not to associate. Therefore, no neutral way to decide claims of people that want to associate v. those that do not want to associate. Therefore, using process theory, the judiciary should not have decided that case because not able to be reached using principles. Is there a principled reading in Brown? o Badge of inferiority is in the minds of Blacks. Plessy. o A government decision that takes race into account is wrong because race is an arbitrary factors that has no basis for social welfare decisions. o Two readings: Evaluations of fact, degree, and value. Empirical analysis of impact of segregation in social context. Evaluating significance to group affected. Bolling v. Sharpe (1954): decided same day as Brown I, Ct. rejected racial segregation as violative of due process segregation not reasonably related to any proper govt objective, and thus imposes burden on af-american children which is an arbitrary deprivation of liberty. Johnson v. Virginia (1963): no longer open to question that a state may NOT constitutionally require segregation of public facilities. Brown v. BOE (Brown II) (1955): dealt with question of proper relief on basis of decision in Brown I. Ct. decided to remand for each court to decide based on Brown I, and principles of equity to accomplish the goals.

November 5, 2003 Equal Protection Doctrine - (1) Basic Test o Rational Basis - (2) Any basis to trigger heightened scrutiny? o Two branches of Triggers: Govt Action Based on Suspect (Test: Strict Scrutiny) Classifications (e.g., Race) & Quasi-Suspect Classifications (Test: OBrien/Intermediate Scrutiny) (e.g., Gender). Classifications of people. Fundamental Rights Govt Action that Burdens Fundamental Interest or Right Which rights are recognized? Theoretic rationale for choosing such rights/expanding such rights? - (3) How does one know that group is suspect, or right is fundamental?

(4) How do you tell if heightened scrutiny has been triggered? o Intent (govt intended to use racial classification dominant theme) vs. Impact (effect of govt action was racial alternative possibility) o Same as de jure (intent) vs. de facto (impact) distinction. Mirrors question as to whether state action should be required to violate EP. These fundamental questions run thru all of ConLaw, and rooted in civ rights establishment of a state action doctrine. Miller v. Schone/Shelley v. Kraemer Question: whether requirement of govt action before constitutional norms will be applied. Is this still coherent? Does it make sense? Brown v. BOE: o Two alternative interpretations developed: (1) Concerned with impact of public school segregation on black children (emphasized centrality of education and importance to civic involvement + feelings of inferiority engendered by segregation). Impacts Analysis. Judiciary should be invovled in highly anti-formalist inquiry into social reality of the world, i.e., cant determine issues of inferiority abstractly no analytic link between separation and hierarchy, so in Brown, the court looked to empirical evidence of psych, etc. o Problem with this approach from Process Theory I point of view, is that it is inconsistent with judicial method (for decisions of fact, degree, value must apply deference to legislature). o Process II: attempt to rationalize Warren Ct. decisions in areas of race, crim. proc., etc. and legitimate those decisions. Attempt to respond to critique of Wechsler (Brown as value imposition): Heightened scruitiny, or more judicial activism is generally impermissible b/c of Lochner problem, but would be permissible if it works with democratic theory to keep open channels of democratic change (voting rights, etc.), or if it works to assist when there is a burden on discrete or insular minorities that cannot protect themselves thru politics/democratic process. Process II attempted to tie together Warren Ct. decisions, and seems to have captured this, but also imposed a particular interp and excluded alternatives/counter-trends in the Warren Ct. as illegitimate. (2) Segregation is wrong b/c govt acting on basis of race something inherently wrong with this, even if no feelings of inferiority. Color Blindness/Intent Alternative. De Facto Method for Application of Constitutional Norms o Regulations of Conduct w/ Incidental Effect on Free Expression Assumes govt action is not directed to speech, but impact is enough to threaten it. o Free Exercise Clause (Sherbert/Yoder no longer majority after Smith, though 4 would agree with it) o School Desgregation Decisions After Brown In Brown I & II, norm is end to racial segregation.

De Jure vs. De Facto School Desgregation

Green v. Cty. School Board (1968): school district with two schools employed freedom of choice plan to remain eligible for fed money, but this did not lead to any sincere integration most blacks still at historically black school (though some go to white school), and almost none of whites go to black school. o Issue: does Brown/14th require desgregation (elimination of formal racial barriers) or compel integration? Does not compel integration, acc. to Brennan, but does require racially nondiscriminatory school system. Ct. found freedom of choice to be inadequate, and suggested zoning. o NOTES: This is the ultimate effects/impact case. School district originally violated Cosntitution by having segregated schools, by law. What is the remedy for this violation? Must stop requiring segregation by law (striking old law, and replacing with freedom of choice plan apparently solved this problem no more formal segregation). Present effects of past segregation must be remedied, e.g., produced residential segregation. If P could not show causal relation between school segregation and other effects, then school district claims this is not their fault any more (not a result of state action). o Ct. denies this giving affirmative right to unitary, desegregated schools. Right in Brown is right against state caused school segregation if state did not do it, EP challenge fails b/c no de jure segregation. Here, Ct. found that once a de jure violation is established, there is a de facto remedy meaning that if there was ever segergation, then there is an affirmative right to integration (as opposed to negative right against state-sponsored segregation), i.e., district must ensure desegregation. Rehnquist argued against the lack of symmetry between right (de jure) and remedy (de facto). o Two Possible Solutions: Narrow remedy so remedy is only against effects of segregation caused by acts of govt. Change the nature of the right (like in Sherbert, or in Title VII in Griggs), and make it a right against racial disproportionality, whether caused by govt or not. Equal choice program did not embody intent to segregate, but impact was to continue segregation. Swann v. Charlotte-Mecklenburg BOE (1971): Ct. affirmed Dist. Ct. order requiring redrawing of district lines and some busing of children. Remedial plan is to be judged by its effectiveness. o Stands for proposition that once racial segergation shown on de jure basis, Ct. has broad equitable powers to effect the dismantling of segregation.

Northern Desegregation - Different from south where de jure segregation was obvious (a Constiutional violation), and thus remediable. o In North, proving de jure segregation was very difficult many fewer northern jurisdictions had explicit statutes requiring segregation. o Political problem of appearing to be attacking the south but not the North.

Keyes v. School District (1973): Ct. provided guidelines that allowed for district-wide desegregation on basis of purposeful segregation of one section of district. o Ps only able to show de jure segregation in one small area of Denver school system. o Ct. found that once de jure segregation is proved for one small part of district, any other de facto segregation is presumed to be state action a presumption almost impossible to rebut. Rehnquists dissents again: not only adding affirmative right, but exapanding the initial violation. o Powell Concur: argued that evidentiary presumptions being made to effect desegregation; why not drop the pretense of de jure/de facto, and just say that schools must be integrated, according to the constitution. Columbus BOE & Dayton BOE (1979): Ct. affirmed broad desegregation policies to disestablish dual school system in effect. o Once de jure violation proven at some point in time, then every other decision made by school system will have presumption that it was intended. o Ps thus have series of broad evidentiary presumptions if they can prove de jure segregation in any one part at some point. Milliken v. Bradley (1974): o Whether inter-district remedy to effect desegregation was permissible? City had engaged in de jure segregation, but not the suburbs. So, Ct. found that the remedy was to bus each way. Sup. Ct. says that unless can prove an inter-district violation (suburbs engaged in segregation or city segregation had effects in other districts), then no inter-district remedy. Ct. coming to the Rehnquist viewpoint re: symmetry of violation and remedy. Almost impossible to prove the effects portion of Milliken. Other Cases: At some point, since all remedies based on de jure segregation, there would come time when USA achieves unitary school system although segregation might continue, it is no longer traceable to the de jure segregation of the past (state took appropriate steps, and thus any continuing de facto segregation is not remediable by fed courts injunctions dismissed). o Dowell o Freeman o Crawford o Fordyce: application of Brown remedial structure to higgher education structure in Miss. State argued that segregation was result of student choice, and therefore not constitutionally recognizable. Ct. held that higher education held to same standard as others (must prove that intial de jure segregation has been eliminated). Loving v. Virginia (1967): white and black man married in DC, and convicted under miscegenation statute (banning interracial marriage) in Virginia, with sentence suspended if they leave the state. o Summary: At issue was whether stat barring interracial marriage violated the 14th. Ct. found that this was a violation. Equal application of racial classifications not enough to save the stat. o Ct. applies strict scrutiny. Why? Ct. has problem with purpose of statute (to preserve racial integrity), in that it only preserves the white race, not others. Rest of opinion deals with assumption that stat is neutral (i.e., if stat said any interracial marriage is illegal would appear to apply the same to all). Ct. is saying that even if equally applied, strict scrtiny would still be applied b/c statute contains a classification of race, i.e., even if history is actually one

of white supremecist social system, the Ct. here says that there would still be a problem even if no history. Why does racial classification trigger heightened scrutiny, even if the statute is neutral on its face? Insular/Discrete minority that cannot effect political change. Process rationale. Race is irrelevant to any legitimate way of deciding any govt issue (only used as an irrational prejudice). Also a process rationale (gives judiciary power to cleanse legislative process b/c no rational basis for using race as basis for decision-making). o Race is immutable characteristic (cant change), therefore violates principle of evaluating individual on own merits, not as part of a group. When one evaluates people as part of group, there is a danger of stigmatizing individuals (even if classification is purportedly benign). EP Embodies Anti-subordination/Anti-caste Principle o Racial classifications used in Am. history to discriminate against racial minorities. Beyond Loving.category of cases where govt is not explicitly using racial classification, should strict scrutiny still be applied? This is where intent/impact comes up when determining if racial classification has been used. o E.g., even though not explicit, if intent of adoption of standardized test was to keep out racial minorities, then might trigger strict scrutiny.

November 6, 2003 EP (Continued) - School desegregation cases went far towards impact/de facto understanding of EP, but always nominally predicated on de jure violation. o Green aff. duty to desegregate/produce integrated schools. Came close to aff. right that govt produce racially integrated schools. - Should any use of race be trigger for heightened scrutiny, or only those that burden insular minorities? o Doctrinal answer began with Loving Ct. treated stat as neutral, even though not really. Case tells us that mere fact that state is using racial classification triggers strict scrutiny something wrong in principle with using race. Looks like it is taking the color blindness position. o Assuming that is the law after Loving, a couple analyses: Why should mere use of racial classification be problematic? Insular/Discrete minority that cannot effect political change. Process rationale. Race is irrelevant to any legitimate way of deciding any govt issue (only used as an irrational prejudice). Also a process rationale (gives judiciary power to cleanse legislative process b/c no rational basis for using race as basis for decision-making).

o Race is immutable characteristic (cant change), therefore violates principle of evaluating individual on own merits, not as part of a group. When one evaluates people as part of group, there is a danger of stigmatizing individuals (even if classification is purportedly benign). EP Embodies Anti-subordination/Anti-caste Principle Racial classifications used in Am. history to discriminate against racial minorities. - How do you tell if racial classification is being used? o If on the face of law, then no real question. But, for most, it is not explicit. o What test is used to determine this? De Jure Approach If there is purposeful use of racial classification by govt (openly or covertly), Ct. agrees this triggers strict scrutiny. Racial classification attributable to the govt. (could be on the face of the statute, or administrating statute in discriminatory way). De Facto Approach I.e., if govt action appears to be neutral (no explicit use of racial classification), is there a constitutional interest if govt action has disproportional impact? De Jure Racial Classifications - Yick Wo v. Hopkins (1886): San Fran ordinance prohibited operation of laundry biz except in brick or stone bldg w/out permit. All but one non-Chinese applicant received permit; none of Chinese applicants received permit. Yick Wo not given permit, then arrested for running laundry illegally. In habeas proceeding, Ct. found imprisonment unjustified. o Discrimination in the administration of the law (regardless of intent of ordinance as adopted). o Purposeful discrimination inferred from data re: administration of facially neutral law. - Gomillion v. Lightfoot (1960): AL redistricting law found to be device to disenfranchise blacks in violation of 15th. o District lines drawn so haphazardly that only explanation was to dilute black voting strength since that was purpose, strict scrutiny triggered and not satisfied. - Griffin v. Cty. Sch. Board of Pr. Edward Cty. (1964): Ct. found Countys closing of public schools and giving grants to whites to enter private schools to be based on racial grounds/opposition to desegregation. o Closing all pub school is on its face racially neutral. Ct. found reason to close school was to avoid desegregation, which triggered strict scrutiny. - Palmer v. Thompson (1971): Miss. citys closing of public pools not unconstitutional no aff. duty to operate public pools, and not unconstitutional simply b/c of motivation to avoid desegregation. o Neutral to close all public pools, and Ct. will not look into legislative motivation (as improper inquiry of court, thus unable to affect EP analysis). o So some cases found unconstitutional motivation, and Palmer which said no look to motive, and if no racial effect, then no strict scrutiny + de facto school cases. - Griggs: Title VII case Ct. interpreted VII to identify discrimination by race on de facto basis if could prove job selection device had disproportionate racial impact, then this is prima facie case of discrimination, rebuttable by employer if he could show that employment device was job related. o Ct is saying that you cant use employment device wih racial impact, unless truly necessary to weed out those that cannot do the job.

Washington v. Davis (1976): qualifying test (that supposedly tested verbal, communication, etc. ability) issued by DCPD sustained by the Court. Ps claimed test discriminatory in effect by having disproportionate effect on black applicants, but did not argue test had dsicriminatory purpose. Local govts at this time were not governed by Title VII (which would have been a good case under Griggs would fail job relatedness test). o Disproportionate impact, alone and without regard to whether this was evidence of discriminatory purpose, is not enough. I.e., law require de jure analysis to determine if strict scrutiny should be applied. THIS IS THE CURRENT LAW. o Purpose may be inferred from the facts, including effects of legislation. Effect/Impact, alone, does not automatically trigger strict scrutiny. o Why did Ct. reject de facto rationale of Griggs? Palmer overruled to extent that it implies that Ct. will not look into motive/purpose/intent. Slippery slope argument if impact used here, then could be used elsewhere to great (negative) effect. Too far reaching. Also, legal realist critique that such social/political decisions as distribution of wealth cannot be decided by Court, and should be decided by leguslature. If impact analysis used for everything, in the guise of protecting minorities here, you will require judiciary to make decisions that were so controversial. This is the contradiction of process theory. If de facto is way analyze Solution is that judiciary will only do de jure analysis. Progressive. Arlington Heights v. Metro. Housing Corp. (1977): discusses how to prove a de jure violation. Get factors from book. Impact alone is not enough, unless impacvt is so extreme that racial discrimination is only explanation (Yick Wo). Rogers: at large voting district. Even having made decision that de jure is the test, it is not clear tht this makes a lot of difference. If ct. is amenable to finding a de jure violation, then it can use a variety of evidence to find it. o If Dist. Ct. finds intent, Sup. Ct. appears unwilling to overturn this basically unreviewable. Use effects to demonstrate intent. Hunter v. Underwood: disenfrnachisement of those who committed crimes of moral turpitude. Looked like impact test (significant # of blacks disenfranchised by the law). As long as racial animosity was part of motivation for statute, it does not matter that disenfranchised group had multiple racial groups.

Models for Making Sense of EP Doctrine - Integrationism: Idea that racial classifications should be suspect fits within ideology of racial justice. Still identifying racism acc. to color blindness principle, but de facto approach is way to flush out improper use of racial classifications. o Thinking about people in terms of color, is a sign of prejudice/stereotype - irrational and arbitrary to think that anything turns on race. o Racism is thinking the wrong way about the world. o Solution to racism is to be rational by being colorblind nothing should turn on race. Solution to discrimination is to institute equal treatment regardless of race. Solution to segregation is integration. Idea was that kids would learn to get along in schools (thus accounting for heightened focus on this as opposed to other areas). - Black Nationalism: do not look to impact to flush out racist ideas, but b/c constitutional right should be proprtional racial representation.

o Denounced by enlightened American establishment as reverse racism, flowing from idea that any form of racial consciousness is racism made sense form integrationist ideology. o Nationalists actually associated desegregation with keeping the black culture down, to the point of destroying it. o Problem of racism is a power status the problem is who controls the schools, not that there is actual racial separation. Malcolm X. There is no a-racial norm (as described by integrationists). Race consciouness is not problem, but actually a source of community and strength. Solution to social racism is natl recognition of each racial nation to live with resources, etc. Solution to unjust distro of racial power is redistribution thru process of reparations. In our cases, both liberals and conservatives believed in integrationism. Meritocracy becomes racialized.

November 11, 2003 Two Brown Alternatives which prevailed? o Colorblindness Principled/Neutral Approach Prevailing doctrine Affirmative Action cases decided this question. o Impact/Psychological Effects Approach How do we know if a race classsification has been used (use of de jure or de facto ways to identify racial classification)? o De jure has prevailed, though with Title VII or Title IX, de facto determination is enough. Black Nationalism is same idea as critiques of neutral/liberal realm that is open to all (with race, a meritocracy that is free from racial power). Linked to affirmative action. If Nationalist view taken (race consciousness as a positive and a reality), then aff. action has different justification than it does under liberal view that ultimate end is colorblindness (thus, race consciousness only to be used to foster diversity, remedially). Nationalist provides direct justification for aff. action: proportional distro of social benefits by race to further recognition health of diverse racial communtities. o Public/private distinction (Lochner) Socially created by legal decisions No such thing as private unregulated market, free from govt power. o Free Speech Content-wise (hate speech) Attack on idea of neutral marketplace of ideas, once govt kept out of content regulation. Conduct Religion Keeping religion out of schools is environment neutral to religion also criticized. o Internally: exploiting contradiction between est and FEW o Externally: cultural critique that secularism is a religion.

Background o Hunter (1969): city of Akron adopted fair housing ordinance, and voters adopted amendment to city charter that would have prevented any such ordinance Ct. declared amendment that changed political process for fair housing legislation unconstitutional under strict scrutiny.

Constituted racial classification that made it harder for civil rights advocates to pass fair housing legislation. o Washington v. Seattle: Seattle adopted busing plan to integrate schools that went further than Brown. State adopted measure that would not allow city to put child in school oter than one most nearby. Ct. held that this did not satisfy strict scrutiny. Another example of changing political process. Idea that Dissent: no const duty to have bussing to cure de facto segregation (only de jure), thus could not be const violation for state to say it would not go further than federal requirements. o Crawford: CA state court interperted state EP to require remedies for de facto school segregation. State Const. Inititive said nobody in state could be required to particpate in mandatory bussing plan that went further than what fed (Brown) required. Powell says no racial classification just embodied a neighborhood school policy with exception only for those students in schools that were under de jure segregation. Affirmative Action - Until Croson, debate was over whether benign discrimination deserved strict scrutiny. o Croson est. strict scrutiny as standard for malign and benign racial discrimination. - Should diff standard apply to fed govt as opposed to classifications by state? o State/Local benign discrimination received strict; Fed/Congress benign discrimination received intermediate scrutiny. Diff being justified that Congress under 5 power had special institutional competence to do so. Adarand put an end to this strict scrutiny applies to both states and feds. - Questions to Inform Aff. Action Analysis: o What are justification for treating all racial classifications as suspect? o What are the interests and kinds of practices that will survive strict scrutiny? - Regents of Univ. of CA v. Bakke (1978): med school at Davis (CA) allotted 16 of 100 spaces to minorities. Bakke, white, challenged program for being denied admission despite same or better scores, etc. CA Sup. Ct. applied strict scrutiny b/c process involved racial classification. CA argued that goal of integration and training those more willing to serve minority gorups compelling, but found admissions process to be more intrusive than necessary. CA also argued that discrimination against majority (white) cannot be suspect if purpose of discrim. is benign. o Diversity is compelling state interest in context of higher education, but not just racial diversity this may be part of determination, but not sole determination, as here, i.e., though interest is compelling, means of achieving goal is not tailored properly. Thus, Univ. of CA racial quota admissions process violates 14th, affirmed. Banning any consideration of race is overturned. o Powell plurality has been taken to be the holding of this case. o Threshold issue was why there should be heightened scrutiny (when majority is the one being burdened, as opposed to discrete/insular minority being burdened)? Basic process theory justification for strict scrutiny insular/discrete minorities cannot protect themselves from majoritarian process. Is this irrelevant to Powell in determining whether classification is suspect? No relevant, but once race is determined to be suspect classification according to this idea, we do not return to it. Powell says all race classifications are inherently suspect, and Ct.. Why?

o White group is not monolithic, each of which could claim to have been victims of discrimination, and to treat them as such is wrong. Would have to distinguish between them all and determine who needs special protection no principled way to do it. o Powell: EP rights are individual rights, not group rights. Race classifications fail to treat people as individuals. o Dissent argues that if classification is not being used to disadvantage the minority, it shouldnt be as suspect. Powell argues that all race classifications are stigmatizing, even beneficial ones. Hard to tell what is malign or benign. o Powell distinguishes remedial aff. action as taken to respond to particular discrimination. Scalia claim no race class use at all; in remedy cases, not a racial classification being used, btu a remedy being provided to those particularly harmed. So, strict scrutiny applies. Compelling govt interest? o Historic deficit of minorities in medical school? No on its face invalid, b/c actual goal is racial classifcation/consciousness. o Remedying past societal discrimination (more general than that practiced by D or that exists in Ds institutional environment)? No places burden on innocent white people. And, this is an unmanageable argument no limit on this. In order for remedying discrimination within the Ds environment (which could be compelling interest), must show specific findings that such past discrimination existed. o Minorities would be more willing to serve minority medical interests? Even if there were a compeelling interest like this, there was no evidence that more minority doctors would translate into more service to minority communities. o Maintaining a diverse student body? Yes Powell finds this to be a compelling govt interest, but that means of achieving it was not proper. Holding of Bakke as Understood by Later Courts: In educational contex, diversity can be compelling, but cannot be applied in a rigid quota-like way, or in process that separates out tracks (minority and non-minority seats), but must be done according to more individualistic/holistic analysis. What, then justifies Title VII, if all racial classifications are all subject to strict scrutiny? Rt.-wing opponents: if you prohibit discriminating based on sexual orientation, you create special rights for this group, that other groups dont get. Could it pass strict scrutiny? o Congress, under Croson, would have to make findings as to the fact that past discrimination exists.

Powell says Congress already determined that past discrimination existed in this case this special deference no longer applies after Adarand. o Brennan Dissent: argues for itnermediate scrutiny for benign discrimination. Reason for int. scrut.: concerns that require strict scrut. not applicable. Wygant: school system pursued aff. action hiring program to remedy lack of minoritie in schools. When layoffs had to happen, a disproportionate # of minorities would have been laid off. So, adopted race conscious layoff plan, to avoid this. o Ct. struck this down under strict scrutiny: Not remedy justification, b/c no finding that school failed to hire minority in the past. School left with role-model justification, which Court rejected (no proof that this was a compelling govt interest). Fullilove: fed set aside program for awrading govt conteact in which minority business would get certain percentage based on Cong. finding that contracting business, nationally, was rife with discrimination. o Ct. upheld this, on less than strict scrutiny, by deferring to Cong. findings re: need for such remedy. Richmond v. J.A. Croson Co. (1989): minority set-aside program adopted by Richmond, VA w/re: to public construction contracts. Richmond essentially copied fed Congressional findings and program upheld in Fullilove, just changing percentage to reflect general population of the area. o Ct. majority, for first time, said aff. action race classification had to satisfy strict scrutiny. Not a clear case of majority disadvantaging itself (Richmond council majority is black). o EP rights are individual white contractor having bid denied solely on ground of his race. o Applying strict scrutiny: Confusing. Only valid compelling interest, acc. to ct., was remedyng past discrimination, and left out diversity (per Powell/Bakke). Ct. found that Richmond Council did not sufficiently identify any discrimination in contracting in the area (by relying on Congressional findings and statistics), and thus no compelling interest. Findings must be pretty specific, not just general statements by councilpersons. And, findings of Congress could not simply be transposed to Richmond area. Also, plan not narrowly tailored to deal with past discrimination. Too intrusive less intrusive possibilities were not even researched. 30% adoption appeared to be arbitrary. By adopting fed program, included eskimos and inuits, which Richmond probably never had. o Purpose of strict scrutiny to smoke out illegitimate purposes. To make sure benign motives are, in fact, benign. Lack of fit, here, indicates real motiv is not to rmeedy past discrimination, but rather to establish a racial spoils/benefits system. o One liberal element of Croson: It would be permissible to remedy past private discrimination in construction industry even if city of Richmond itself had not been guilty of that discrimination, if it found that it was an unwitting perpetrator of such discrimination. Govt subdivision, eithout judicial finding that provate firms had discriminated, could remedy such discrimination. o Marshall, Brennan, Blackmun Dissent: maj. Opinion has simply disaggregated evidence of racial discrimination, claiming each one individually was insufficient, whereas together they indicate past discrimination.

Marshall (p.782): lists factors that should indicate suspectness: Numerical inferiority; History of purposeful discrimination; o Very controversial case. Metro Broadcasting: Ct. upheld racial preferences in federal distribution of broadcast ownership under intermediate scrutiny on ground of deference to Congresional 5 powers. Substantial interest was diversity in broadcast spectrum. o Ct. deferred to SEC decision that this would increase diversity. Aderand: another set-aside case. o Concurring opinions: Scalia: wrong to think of remedy cases as aff. action rather they are remedying individual victims of discrimination. Wrong to give a remedy to those who have not been particular victims of discrimination. Can be no creditor or debtor race. Thomas: articulate stigmatizing cost of affirmative action benign discrimination creates belief that minorities cannot succeed without help. Somewhat nationalist view looking only to effect on minority community (creates dependent culture). Grutter/Gratz: cases deal with aff. action at U. Michigan. Process at law school considered diversity as one part of admissions to get critical mass of minorities. Critical mass was intended to overcome possibilities of isolation/alienation if very few minorities. Law school system different from college system (which gave a particular, and significant, # of points simply for race). o Under what standard reviewed? Strict scrutiny. Which compelling interests? Educational benefits that flow from diversity. o Law school program upheld; college program struck down compelling interest like with law school, but means not narrowly tailored enough (not flexible and individualized like law school process). Criticism: 20 points is just more particularized way to do exactly what law school is doing. Individualized analysis almost impossible at large college. o Dissent: critical mass berated by Rehnquist b/c stats made it appear that law school had a very firm idea of how many of each racial group would be admitted doesnt look so individual. Percentage of minorities matched up almost exactly with percentage of whole that those minorities made up, e.g., if 20% hispanic applicants, then close to 20% of those would be admitted. Thomas: this kind of program stigmatizes minorities rather than benefits them. Maintaining elite law school is not compelling interest, and that having such academic selectivity cannot mesh with diversity??? Peller: if law school thinks diversity is important, they must do so without racial preferences; only need racial prefs if you want diversity and academic selectivity, but no constitutional right to such selectivity.

November 13, 2003 Syllabus Change (In Written Form on Tuesday) Campaign Finance is pretty much out (G-Pell will lecture): 19: pp. 692-700, 794-99, 804-08, 813-27, 838-48 20: pp. 426-33, 851-62, 508-35 21: pp. 537-55 (one case interesting, but not that relevant focus on doctrinal issues, skim others re: value of precedent), 558-74, 700-710, Supp. 11-20 Last class before Turkey Day.

22: pp. 870-904, SKIM 879-85 23: pp. 940-45, 949-51, 953-55, 1369-78, 1385-87(Final Class) Summary of Affirmative Action o De Jure vs. De facto to Identify whether racial classification has been used (which will trigger heightened scrutiny) Process Theory: same argument about aff. rights/neg. rights applied in free speech w/re: to burdens on discrete/insular minorities. Heightened judicial activism should be triggered regardless of whether state acts affirmatively, or fails to act on behalf of such minorities. Nothing in process theory that says you cannot do effects analysis but usually this would not occur b/c inconcsistent with starting definitions re: competency of the judiciary. Would call into question the social/ecnomic regulation that results in minorities having less welath, power, etc. Would involve judiciary in questions of fact degree and value that it is not supposed to do. o But, judiciary must make these judgments in the race context to legitimate legislature as truly democratic. Not whether state had burdened discrete, insular minorities, but whether they are in fact burdened. Aff. Action is contrversial b/c appears to be a departure form non-discriminatory norms to favor people on basis of race. Appears odd due to application of de jure definition of discrimination. If viewed from de facto side, it would simply look like proper response to discrimination, i.e., rmedying the disproprtional number of minority students at Univ. Michigan. o An application of the anti-discrimination norms???? Discussion of Alternatives to Affirmative Action/Attacks on Affirmative Action o Response to Thomas idea that aff. action inherently stigmatizes? o Black Nationalist Idea has apparently won, i.e., hardly anyone believes that color blindness exists, or even should. Race consciousness is good. o What about aff. action on socioeconmic basis? Left response is that this is not enough race is bigger than wealth; effects racial minorities regardless of economic standing. That this ignores why race was the special ground/exception to meritocracy if whites fail, it is because they failed, but if blacks fail, it could be because of the racial discrimination in the past. Seems to send bad signal that meritocracy had been fair to everyone but black people??? o G-Pell likes rednecks thinks they, among others, have been shat on, and that there never was a true meritocracy for anyone. Rules favor rich people, and race has little to do with it. Link to gender o Many of the gender ideologies are similar to those in race. o Question of whether women should be integrated into the system, or whether there should be true dismantling of gender power. With race, the nationalist persepctive questioned simply admitting minorities to formerly white institutions, as simply repressing the fact that these were still white instiutions.

With gender, there is this same idea, but maybe easier to show, i.e., simply putting women in positions of power does not change the fundamental male nature of the institutions. Thus, a woman succeeding in this world is simply playing the mans game, she has become like a man. Issue of whether the working world ideology of work hard, family less is the nature of work, or is the male manifestation of work tarditionally, men had wives at home to take care of family.

Suspect Classification: Gender\ - Ideologies o Gender-blindness: predominant ideology like color blindness. Gender neutral rules applied to all. o Subordination approach: Polar opposite of gender-blindness, which sees men and women as members of groups that exist in power relation to each other. Thus, objective of antisexism would be to change these power relations. An integrative analysis (women into existing structures) would not necessarily accomplish this goal. A sort of radical approach that contains an analysis, like black nationalist approach, that neutral is really a male ideology/a patriarchy that establishes the truth. o Cultural Feminism: Robin West rejects liberal feminism assumption that men and women are essentially the same minus the ability to bear children. Argues that history of power relations with men, or thru process of ability to bear children, women have developed a whole different culture. Prob with liberal feminism is that it applies male norms to women, and that is discriminatory. Gilligan: women have alternative sense of justice that is empathic and web like, whereas male sense is analytic, disinterested, etc. This other way (female) was discounted in scientific studies by applying only the male norm. o Post-Modern Radical Feminism: gender roles socially constructed, in flux, and constantly in play, changing with time. Courtney Love was spokespersonthe Riot Girrrrls..girl power.not kidding, enough said. - Reed v. Reed (1971): invlaidated law preferencing men over women as administrators of estates under EP challenge, but refused to name gender as suspect classification. Purported to apply rational basis, and found none. o Ct. applies rational basis, but more stringent than normal. Under rational basis, normally, state could have argued past discrimination that it made more sense to presume men would be better qualified for the job. - Frontiero v. Richardson (1973): upheld EP challenge to fed law giving male members of military automatic dependency allowance for wives, but forcing female members to prove husband was dependent. Plurality opinion in support of gender as suspect classification (requiring strict scrutiny). o Brennans Opinion: why should gender be suspect classification justifications/factors? History of sex discrimination; Women also face constinued discrimination. Stereotypical distinctions/archaic assumptions about diffs between men and women; Becomes almost an independent factor in later cases if you can show this, you are far along in proving discrimination. Lack of relevance of sex to contribute to society arbitrary; Immutability of gender. o Was preference/govt action rational?

Seems to be so. It was considered by govt as an administratively expedient measure. BUT, administrative convenience is not sufficient as an important govt objective (heightened scrutiny). Craig v. Boren (1976): OK law provided that 3.2% beer could be purchased by men over 21, but women over 18 denial to 18-20 yr-old men of EP? o Heightened Scrutiny (Intermediate): Classification by gender must serve important govt objectives and be substantially related to achievement of those objectives. Important Govt Objectives: NOT administrative ease. Enhancement of traffic safety (in this case) is allowed. Substantial Relation: NO. Males not allowed to buy the stuff, but could drink it if someone else did, so the relationship seems very tenuous. Seems to be based more like the kind of archaic generalizations condemned by Brennan in Frontiero. Even if the assumptions are correct, govt must show this. o NOTES: Statistics provided by state are tiny samples, but many more males in this age group are arrested for DUI, attempting to justify traffic safety objective. Rehnquist dissents to heightened scrutiny, as not making sense to be applied to males, who are not a discrete, insular minority. Miss. Univ. for Women v. Hogan (1982): sustained male challenge to all-women nursing school policy of excluding men. Applied Craig standard, rejected argument that discrim. was benign/compensatory. o Gender classification requires exceedingly persuasive justification, defined as important interest + substantial relation of means to ends. o NOTES: Idea that nursing suited to women is another archaic stereotype. J.E.B. v. Alabama ex rel T.B. (1994): gender-based peremptory challenges in jury selection held unconstitutional. U.S. v. Virginia (1996): Ct. upheld EP challenge to VMIs all-male admissions policy. o Virginia did not have any other male or female-only institutions. o Applicable Standard: Classification by gender must serve important govt objectives and be substantially related to achievement of those objectives. Such justification must be genuine, and must not rely on overbroad generalizations about different talents, capacities, preferences of males and females. Intermediate Scrutiny, but justification must be exceedingly persuasive. Dissent argues that this appears to be a higgher level of scrutiny than intermediate really is. o VA argued (1) single sex education provides educational benefits and contributes to diversity in educational approach; and, (2) VMI educational method would have to be changed (undermine the very thing that makes VMI special), and women would not be able to handle it as it stands, i.e., a particularly male process. VA argument seemed to rely on a sort of cultural feminism ideal that women would learn better in a more cooperative environment. o Ginsberg did not think that allowing women in would destroy VMI. G-Pell thinks she is wrong, and that men and women bond in very different ways. o Scalia: majority has redefined int. scrutiny as strict scrutiny, and has authorized destruction of VMI that, if required, should have occurred thru the legislature.

November 18, 2003 Summary of Gender Classifications o VMI notable b/c acc. to dissenters, int. scrutiny has been raised higher than previously (issue of exceedingly persuasive language). o VMI doctrinally important b/c Ct. unwilling to hypothesize govt objectives. o Also notable for embrace of requirement that gender classifications be based on archaic presumptions of roles appropriate to gender. o Possible social benefits of having gender-based educational institutions? More rational, less controversial, to argue for female-only institutions prior to making man-oriented argument. If female-only insttitutions are warranted, should male-only institutions be equally protected? Afro-centric schools? If so, then Anglo-only school OK? Or, can it be said that in this circumstance there is no need for symmetry? G-Pell Position: vindicate dissenters argument that there should be a place for singlesex institution in todays culture. Majority looks to an ideal of a single/homogenized education,, that maybe we should remove ourselves from. Discrimination was in not providing single sex education to females, but providing to males, not that single sex institutions necessarily are discriminatory. o Adminstrative convenience is not sufficient objective to allow discrimination. Still important: Is there a gender classification at all? o Thus, when court does not apply heightened scrutiny, this may not be a departure so much as a determination that there was no gender classification. Real Differences Cases o Pheney: Mass law gives vets pref for civil service purposes (big preference) challenged as gender discrimination, b/c vets almost exclusively male. Resulted in civil service with mostly men in high positions, and females mostly in lower class jobs. Acc. to court, no gender discrimination at all, only a de facto effect of using this formally neutral standard for giving job preference. Like gender discrimination has to be de jure to be actionable under EP clause (de jure = specific classification, intent to use specific classification). P argued that Mass. included the de jure discrimination of military into its civil service law, which court rejected. Also argued that legislature had considered this problem and knew of the result, and nevertheless embraced it. Ct. found that fact that legislature knew does not mean they intended the consequences. Not legislative purpose to discriminate against women. o De jure discrimination does not transfer. Geduldig v. Aiello (1974): Ct. held that excluding disability that accompanies normal pregnancy from CA disability insurance system not invidious discrimination under EP clause. o P arued that this was an explicit (de jure) classification, b/c only women can become pregnant, particularly considering male-only conditions (e.g., circumcision, prostate cancer) were covered. Dissent thus argued this is a clear EP gender violation. On Pheney, however, this may appear as a condition classification, not a gender classification. o Could have gone either way. This has mostly been changed by statute.

Michael M. v. Superior Ct. (1981): Ct. upheld statutory rape law which punished male only (not underage female). o Ct. found this to be a gender classification, but not invidious (not based on archaic presumptions) b/c (apply int. scrutiny) objectives (prevent youth pregnancy) substantially related to mean (stat rape law). Adding crim prohibition for males, not females equalizes the deterrent (females deterred by possibility of pregnancy, but not men). o Appears on its face to explicitly burden males, but could also be seen as burdening femals as representing archaic stereotype that women must be protected, and in that it restricts their choice of sexual partners. o Benefit to females? Special protection? Equalizes power of men and women by allowing strict liability as to age of alleged victim, which could provide protection for her, assuming there is a problem of male sexual aggression, particularly with respect to young girls. o It is possible to describe the same reg as benefit or burden, depending on cultural framework. o A liberal approach (Ginsburg in VMI) that looks to gender neutrality, may be controversial in which we think genders are not actually symetrically situated (McKinnon approach males and females are not the same, nor do they have the same power). On gender neutral approach, stat rape would not be possible on a gender basis (i.e. prosecute both boys and girls). In real world situation, law may be empowering the father, not the daughter. o Contrast between gender neutral liberal fem approach vs. gender-nationalist/subordination approach: Subordination thesis assumes gender-neutrality in face of unequal distro of gender power will have effect of empowering men. To correct, must have non-neutral policy. Rostker v. Goldberg (1981): Ct. rejected EP challenge to Selective Service Act which requires registration of males only, not females. o Gender classification definitely involved, but Ct. argues that with repsect to militrary service: Great deference to the military; Men and women not similarly situated (unchallenged predicate that females are excluded from combat duty) and in case of draft, only combat personnel would be necessary. Justified by administrative convenience of not havign to deal with registering twice as many people. Admin. Convenience? o FN p. 676: Rights of Parents of Illegitimate Children o Caban v. Mohammed (1979): invalidated NY law allowing mother, but not father, of illegitimate child to block adoption. Ct. found this based on archaic stereotype that mothers rigths are worth more than fathers. o Parham v. Hughes (1979): rejected sex discrimination attack on GA law denying fathers (but granting to mothers) the right to sue for nonmarital childs wrongful death. Gender classifciation, but Ct. found parties not similarly situated, thus no EP violation. Only father can change legitimacy status of child, so if he wanted to sue, he could adopt. Dissent argues that o Nguyen v. INS (2001): upheld law that treated children born out of wedlock as citizen and non-citizen depending on which parent was father/mother. Administrative convenience of assuming mother would want to have a relationship?

Are illegitimate childs interests being burdened? o Kahn v. Shevin (1974): Ct. applied deferential standard (prior to Craig) to uphold property tax exemption for widows (but not widowers). o Orr. v. Orr (1979): struck down laws authorizing Alabama courts to impose alimony obligations on husbands, but not on wives. Govt Benefits (Gender) o Rectification of past discrimination has been upheld in many of these kinds of cases as a valid objective. Up to argument that this would still pass thru the court so easily.maybe higher scrutiny now for these types of benefits to women. o Weinberger v. Wiesenfeld (1975): invalidated Social Security provision which, when hubbie died, benefits go to wife and kids, but when mommy died, benefits go only to kids. o Califano v. Goldfarb (1977): rejected gender-based distinction in fed benefits program. o Califano v. Webster (1977): sustained, as valid benign classification, social securitys porivisions for computing old age benefits. o Wengler v. Druggists Mutual Ins. Co. (1980): struck down Missouri workers comp law which allowed widow to receive death benefits w/out proof of actual dependence, but not widowers. o Schlesinger v. Ballard (1975): rejected male officers challenge of sex-based distinctions in Navy promotion system. Alienage o Formal Test is strict scrutiny. o Cannot discriminate except where job involves U.S. policy or other important issues of state security, etc. Illegitimacy o Mid 80s Ct. held that illegitimacy is a quasi suspect classification and thus subject to intermediate scrutiny. Poverty/Wealth Classifications (Rational Basis) o Wealth classifications (alone) will NOT trigger heightened scrutiny. o James v. Valtierra (1971): Ct. rejected EP challenge to CA constitutional requirement that low income housing shall not be built by State without approval from local referendum. Not clear this would come out the same way today now, you could argue under Cleburne, etc., that even under rational basis this is invidious discrimination. Mental Retardation (Rational Basis (?)) o Cleburne v. Cleburne Living Center, Inc. (1985): TX city denied permit for group home for mentally retarded; 5th circuit found the MRs are quasi-suspect class; Sup. Ct. found that MRs are not suspect class, thus lesser standard of scrutiny should be applied, but affirmed invalidity of ordinance. P argues for heightened scrutiny: Not race, gender, alienage, etc. Argument in lower ct. is that mentally retarded are quasi-suspect class, and under intermediate scrutiny, this law cannot be upheld b/c same process would have to be applied to other group homes. o MRs as discrete, insular minority history of discrimination against MRs, unable to protect themselves from majoritarian political process, immutable characteristic, subject to archaic stereotypical generalizations as opposed to true analysis. Ct. Discussion: That mentally retarded describes diverse group, and to treat them as one monolithic gorup denies that diversity may be policies that are good for

some but not all. Mentally retarded are in fact different, and thus relevant for govt regulation. Recent legislation suggests attempts to benefit mentally retarded, thus inability to poitically organized does not lock them out of the process (i.e., others are helping them). Slipper slope argument.where does this stop? Age, infirmity, illness.? Rational Basis Legitimate objectives? o Local neighbors dont want them there. o Might be harassed by mean high schoolers. Ordinarily, the Court would defer to legislative judgment as to what might happen, but not in this case. Important Part: Occasionally, even applying rational basis, the Ct. might apply this test with teeth. Somewhere between rational basis and int. scrutiny. Might apply with group that Ct. is unwilling to treat as suspect for all purposes, but is kind of suspect. Ct. applies rational basis rationally related to legitimate govt interest. Marshall/Brennan/Blackmun: this is not rational basis this is heightened scrutiny. Rational basis does not require such searching review of the record. Rational basis (true rational basis) should always apply on a sliding scale: a pragmatic approach: where importance of issue to group rose, less suspectness would be necessary to find violation of EP. Age (Rational Basis) o Mass. Bd. Of Retirement v. Murgia (1976): Ct. applied rational basis in sustaining mandatory retirement law.

[EP Protection/Heightened Scrutiny - Must either be delaing with (1) suspect classification, (2) a fundamental interest, or (3) fit within the three bastard cases including Cleburne, Plyler, and Roemer.] November 20, 2003 Fundamental Interests (Strict Scrutiny) - Triggered not by classification, but by nature of interest being regulated (voting, access to judiciary, travel). o Fundamental under EP doctrine, thus any burdening of those interests triggers strict scrutiny. How do you know if fundamental interest has been burdened? Like Sherbert, Yoder, other subversive cases, these cases represent a de facto/aff rights approach to constitutional theory, i.e., effect will determine if fundamental right burdened. Subtext in these cases is that bases for cases appears to be wealth. Analogous factors in suspect class cases what arguments to treat interest as fundamental? This prong will not be developed in the future, most likely.no more fundamental interests. o Bridge to substantive due process: what is basis for identifying the particular interests noted by the Court? Any principled process, or return to Lochner ideals (value judgments imposed by judges on interp of constitution)?

Denial of Franchise (Strict Scrutiny) o Harper v. VA State Board of Education (1966): VA imposed poll tax on all over age of 21 as precondition to vote. Sup. Ct. found this unconstitutional violation of EP clause under strict scrutiny. Why strict scrutiny? Poor people are almost like a suspect class (traditionally disfavored group, etc.) o Not what is taken from case by future cases. Right to vote is a fundamental interest necessary to preserve other rights. Possible to argue that right to vote was not being denied, i.e., state has right to fix voter qualifications, one of which being ability to pay $1.50. This would be, in effect, an absolute denial of vote only to the indigent. Only thru a de facto analysis of the impact of the fee on particular groups, could one see this as a denial of fundamental right (to vote). o Different from Wash. v. Davis (de jure) approach. No separate const req that state officials be decided on elected basis, nor that other state questions need be voted upon; but, if you decide to have elections, then may not impose poll tax. Holding: Burdens on the right to vote are subject to strict scrutiny. Dissent argues majority is Lochnerizing reading own values into the Constitution. Long tradition of poll tax. o Kramer v. Union Free Sch. Dist. No. 15 (1969): NY law allowed vote on sch. Dist. Board only if they own/lease real property within district or are parents of children enrolled in local public schools. Ct. applied strict scrutiny are means necessary to compelling state interest to strike down law. States wanted to limit vote to those that had particular interest in the schools. Good description of process theory (p. 798). Sch. Boards need not be elected, but if elected, then fixing qualification must satisfy EP. Ct. finds state interest in having interested voters is compelling, but that means are not necessary (over and under-inclusive b/c appellant pays taxes, is interested, but has no vote, whereas an unemployed young person, renting in NYC does get the vote). o Kramer/Harper foundation of right to vote cases. Some cases limit the effect of Harper: in Salyer, it is sometime permissible to limit those who would vote in a limited purpose election. Limited purpose must be established, and special relationship of chosen voters to such limited purpose. Ct. applied only rational basis review in Salyer. o Another group of cases deal with voting in party primaries. Rosario 1973: Ct. upheld lengthy registration timelimit (had to register thirty days before to vote next year) to vote in primaries. Ct. treated this not as burden on right to vote (only imposing a particular duration), and only applied rational basis. Unlike Rosario, the Ct. has struck down state attempts to preserve party integrity by interfering with individual right to switch party affiliation, or in Tashian, state law that required voters to be registered members of party to vote in primary. Vote Dilution: originally, political question doctrine barred judicial review of these issues. Baker v. Carr overturned this idea political question no longer barred review of EP challenge to districting, etc. issues. o Reynolds v. Sims (1964): EP requires that seats in both houses of a bicameral leguslature must be apportioned on a population basis districts must be as close to equally populated as possible.

Right to equal influence on political process. One person, one vote. Controversial considering U.S. senate is not elected on this basis. Right to vote is fundamental, therefore, any burden reviewed as strict scrutiny. Ct. then slides over question of how to tell whether there has been a denial of right to vote. Appears to take an impact/effect approach. I.e., if apportionment is disproportionate, your vote is diluted, which is a burden. Ct. rejects Senate argument, calling it a compromise not embodied within states. Dissent argues that this ignores history whole host of justifications (commonality of interest, political subdivisions, give sparsely populated areas some representation, balance urban/rural power). Also claims no right to vote within states, and being added in thru Lochnerization. Sensical arguments; motivating force of opinion appears to be racial segregation being done thru apportionment. o Since Sims, for Congressional redistricting, the proportion must be very close. For state districting, the court has been much more loose. Gerrymander Cases: involve claims that particular group has been fenced out. o Davis v. Bandemer (1986): Republicans apparently apportioned districts on lines intended to improve their chances in elections; in the elections, the Republicans did actually gain 57% of the seats, while receiving less than %50 of the total votes. Ct. found that P did not make sufficient case for EP violation based on political party gerrymandering. Difference from Sims: redistricting here would have satisfied Sims (all districts have same number of citizens). Proportional, but carved up to guarantee win for Republicans. Ct. found this to be justiciable (if attempt to lock out any identifiable group (no need to be suspect) in this case, the democrats). (1) Must have intent to lock out group. Intent is easy b/c districting is very conscious act. Intent was shown by effect on democrats. (2) Must show effect on the group. o The court finds this effect not properly shown. Ct. seems wary of getting involved, but does not want states to be able to lock out an identifiable group (i.e., creating a discrete and insular minority). o Effect must be long term and continuing, and substantial. Must show not just that group is locked out, but that interests not being addressed by those that are elected. o Very difficult standard. Concurrence: dont like this as invitation to bring more such cases. Dissenters: there is a judicially manageable standard, and this should meet that test. o Bush v. Gore (2000): majority of conservative court embraced an impact analysis in area of vote counting in which this type of analysis had never been applied before. Previously, had to show that all the things that go wrong on election day must be intended. This case establishes that if impact of state vote processing system is to dilute votes (by applying diff standards for some voters and not others), then EP clause violated. A showing that at a precinct, ran out of ballots, so people went home (an impact on the vote), is that sufficient to make out EP claim, even though no intent. Race-Conscious Districting: not much doctrinally in these cases. Deals with Congressional districting under auspices of Voting Rights Act, which essentially takes impact approach to whether racial minorities vote have been diluted. Enforced thru DOJ. o Shaw v. Reno (1993): P claimed that districts gerrymandered to include two balc majority districts, approved by USDOJ.

State argued that this was race-conscious, but approved/demanded by DOJ to comply with VRA. Ct. found racial gerrymandering, to hurt or improve equal racial representation, to be subject to strict scrutiny, but only if race predominated over all other issues in districting. Mere race consciousness does not (unlike other areas of EP) trigger strict scrutiny. o Miller v. Johnson (1995): existence of bizarrely shaped district is not necessary prerequisite for finding of unconstiuttionality under EP clause. Shape is only persuasive as circumstantial evidence of race consciousness. [EXAM: Nutshell on ConLaw = BAD; GOOD = For theory stuff, look at reserve materials (new article on de jure/de facto distinction), for doctrinal stuff Tribe Treatise Am. Const. Law (but, look with critical eye for partisanship/advocacy); Peller available during normal office hours A subversive strand of the warren court jurisprudence.] o Shaw II (1996): strict scrutiny applied, as in Shaw I and Miller, and no compelling interest justified race based delineation. o Bush v. Vera (1996): strict scrutiny applies not because redistricting was race conscious, but rather only if other legitimate districting concerns were subordinated to race race as predominant factor in districting. Plurality opinion. Ballot Access Cases o Williams v. Rhodes: Ct struck down law requiring third parties to get 15% of all voters to get third partys candidate on ballot. o Geness: Ct. upheld 5% requirement for signatures; also diff from Williams b/c no other formalities required. o Bullett: Ct. struck down fee requirements for access to the ballot, as invidious discrimination. State must have less economically burdensome requirement. De facto analysis. Important case.

[Free speech and other textual rights could also be viewed under fundamental rights analysis, but some doctrines are not so easy to assimilate.] Access to Courts o Griffin v. Illinois (1956): Ct. found that Illinois violated EP clause by not providing free transcipts to indigent Ds, effectively precluding them from appellate review (rule required that transcript be provided to appellate court in order to gain review), as discrimination based on wealth. Due Process right to transcripts acknowleged by court? Right could be found under due process fundamentally unfair. Is right to appeal also required under due process? Just like in Kramer, under due process, state need not offer an appeal, but if it does, EP limits the way state can limit access to such a procedure. Here, cannot exclude on basis of wealth. Harlan Dissent: people have wealth due to outside factors; not that state is discriminating, but taking no steps to redistribute wealth. De jure, instead of de facto analysis no de jure discrimination on basis of wealth (i.e., everybody has to pay). o Problem: after fall of Lochner, it is analytically incoherent to assume that socioeconomic status is natural, or pre-governmental, or private.

Economic status is largely influenced by public power/decisions. Since this is all policy, legslature has decided, which fosters Ct.s deference. o This justification of deference makes it hard, when talking about prcess rights (vote) makes it hard to avoid de facto analysis. o Contradiction of process theory: if apply process theory rights on de facto basis, the judiciary would be involved in ordering govt to create distro of wealth so people can enjoy process rights. But, distro of wealth is most controversial o Cant tell if legislature is democratic with. o ????? o Contradiction papered over by institutional competence argument, claiming judiciary cannot do de facto analysis, b/c would involve value questions that judiciary cannot decide. o If only do de jure analysis of rights, repsecting inst. Competence, at cost of failing to legitimate democratic nature of legislature (formal, not substantive legitimacy). o If do de facto, there is possible substantive legitimacy of legislature, but at cost of institutional competence of judiciary. Process and substantive questions have overlapped to answer process questions, must answer substantive questions (e.g., distribution of wealth). Thus, the law here, similarly to Harper, may not be seen as a denial of right to appeal to poor people, unless viewed from a de facto analysis. Creating an affirmative duty on part of state to alleviate different economic statuses (like Sherbert). o Douglas v. CA (1963): state must provide counsel to indigent D for first appeal of right (not discretionary) extended Griffin on same bases. Not a matter of due process, which does not require appeal. Good law, still. Later cases (Ross v. Moffitt (1974)) held that state need not provide counsel for later, discretionary appeals, and only applies in criminal context. State may have filing fees in civil context, unless (Boddie) acces to civil justice involves a fundamental interest. Interest in bankruptcy proceedings (U.S. v. Kras (1973)) did not reach fundamental interest implicated with marriage (Boddie); Ct. upheld fees for indigent. Ortwein v. Schwab (1973): followed Kras, not Boddie, in rejecting attack on $25 fee for filing denial of welfare payments action in appellate court. o Little v. Streater (1981): due process entitles indigent to get state to pay for blood test paternity test = state-initiated, quasi criminal. o MLB v. SLJ (1996): State may not condition appeals from trial court judgments terminating parental rights on advance payment of fee for record preparation. Ct. found this type of action barely distinguishable from criminal action. Similat to Griffin, dealt with right to appeal. Dissent attacks entire line of these cases, claiming de fato analysis is bullshit. November 25, 2003 Right to Travel Generally:

Fundamental right to travel was controversial. More highly controversial was that residency requirements were a burden on the right to travelthis was a highly impact, de facto oriented analysis. Shapiro v. Thompson: o Ct. held there is a fundamental interest/right to travel, AND that right was burdened by state rule denying welfare benefits to those recently moved in to the state (imposed 1 yr. waiting period). In order to see it this way rerquires a de facto analysis denies effective right to travel by deterring those who could not do so without guaranteed ability to gain welfare benefits. Came close to saying there is a Constitutional right to welfare benefits. High water mark of Warren Ct.s de facto analysis of constitutional rights everything after is seen as a retreat from this (Shapiro vs. Washington v. Davis).

Shapiro v. Thompson: CA enacted a law forbade new residents from receiving benefits from the state until they resided in the state for more than one year. The Court applied strict scrutiny because the impinged on the fundamental right of travel. The denial of benefits affected the right to travel from state to state. De facto application of "right to travel." 1. Purported governmental interests: a. Save state money. 2. Shapiro is the highwater mark of de facto analysis. 3. Came close to constitutional right to minimum welfare benefits. 4. Everything after this was a retreat from this analysis. Total opposite was Washington v. Davis. 5. Why highwater mark of de facto? a. De facto part of case was that the court found that there was an actual burden on the right to travel that flowed from the denial of welfare benefits. b. State law acts penalty on the right to travel, like Sherbert.X 6. Still good law in this context. De facto analysis, however, is probably not good law. Other Related Cases: 1. Dunn: Court struck down a one year residency voting requirement. Too much of a burden. Other cases have upheld a 30 day residency requirement. 2. Denial of in-state tuition rates have been upheld, although they could be seen as a burden on the right to travel. 3. Mericova(?): State could not deny non-emergency medical care to new arrivals. Struck down as a penalty to travel. Distinguished from in-state tuition rates because healthcare was such an important interest. Saenz v. Roe: CA law that withheld state benefits to those residing in CA for less than a year, but preserved the level of benefits from the previous state, which was always less than CA's level of benefits. Court applied strict scrutiny. 1. Right to travel: a. Right to move from one state to another b. Right to be treated properly while temporarily traveling to other states c. Right of new resident to receive same benefits as permanent resident of that state. i. Right is ground in the 14 Amendment, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US." 2. Court stated that impact on right was incidental. Classification was the problem. Neither duration of benefits nor the identity of prior residence had any relevance to new citizens need for benefits. 3. Not important for doctrinal purposes. 4. There is a right to travel and welfare scheme was a burden on right to travel. Located this right under privileges and immunities under the 14th Amendment. What was at stake in this case was

the ability to migrate. Under P & I clause, the problem was the distinction between CA residents and newly arrived residents. 5. Seems to be more powerful than Shapiro because it does not require de facto analysis to uphold rights of newly arrived people in a state. Education San Antonio Independent School District v. Rodriguez: TX funding scheme apportioned public school funds to districts based on that districts property tax base. 1. Shapiro was getting close to minimal income, which could be derived from the right to exercise any other constitutional right, until Dandridge (which we didn't have to read). 2. This case represents the culmination of whether rights could be drawn on the basis of wealth. There was a lot of hope that wealth would be considered a suspect classification and education as a fundamental right. 3. Two arguments by appellees: a. Level of education was based on where students lived and the property tax revenues in that district. Argued that wealth was a suspect classification. i. Majority characterizes previous wealth classifications differently, as involving: 1. Poorest citizens are not necessarily clustered around the poorest school districts. a. Classification based on tax base is too amorphous a group. There is not necessarily a correlation between wealth and property taxes. 2. Relative depravation, not absolute depravation of right. a. Here, not deprived of public education. De jure right. b. This leaves open the idea that absolute depravation would be actionable, but see Meyer,McCray. ii. Majority also states that does not have any the indicia of a suspect class: 1. Disability 2. Immutability 3. History of discrimination 4. No inability to participate in majoritarian political process b. Public education is a fundamental right that the regulation infringes. i. Dissent argues that education is tied to free speech, effective speech, and right to vote. ii. Majority concedes the de facto arguments, but states that most effective right is not guaranteed by the Constitution. iii. Majority also seems to close the door on recognition of fundamental rights. 4. Majority ultimately defers to legislature. 5. Rationality review. Survives. 6. Marshall: Categorization approach in equal protection has been a failure that has resulted in formalism. Proposes a sliding scale approach, rather than strict scrutiny or rational basis. Rejecting formalism of categorization approach is beneficial, but this risks the legitimacy of the judiciary because the court would have to balance interests. This harkens back to the de facto interpretation of Brown v. Board. Alternative to the doctrinal categories that exist now. General Notes: 1. Many state constitutions have struck down interdistrict disparities in funding. 2. Many arguments that have been rejected under federal constitutional law have been embraced under state constitutions. 3. Could argue under Cleburne, Romer, and Plyler that

Plyler v. Doe: TX law charged undocumented children of illegal aliens a tuition fee to attend public school. Court struck it down and applied a rationality with teeth. 1. Court found that education was not a fundamental right and that illegal aliens were not a suspect class. 2. Purported governmental interests: a. Discouraging illegal immigration b. Avoiding the burden on public schools c. Maintaining public schools for citizens 3. While education was not a fundamental interest, education is so important that there must be an extremely good reason to do it. Otherwise, a completely irrational thing to do; i.e., no rational basis to deny education to this group. 4. This is NOT intermediate scrutiny, but rationality with teeth.

Revival of Substantive Due Process

Introduction: 1. Unclear arguments made for recognizing new substantive due process rights: a. Right is particularly engrained in American people. i. What is the standard for this? b. Rights that are preservative of other rights. c. Rights implicit in concept of ordered liberty? 2. None of the cases have come up with a natural law approach. 3. Issues: a. What is basis for recognition of these rights? b. How is burden identified? De jure or de facto? i. Clear that there will be no de facto recognition of rights, but some traces of de facto sensitivity. c. Lochner or not? i. Finding rights on basis of judicial discretion. Griswold v. Connecticut: Due Process Clause challenge to a CT law that prohibited use of contraception. 1. Substantive due process was the reason for finding a right to contract in Lochner. a. Recalls critique of subjectivity. b. Also, Peller's alternative critique. 2. Some cases survived the Lochner Era and sprouted revival of substantive due process. a. Meyer (???)State could not prohibit the teaching of German in state public schools. Court held that law violated the teacher's right to follow a calling, student's right to receive education, and parent's right to raise children. b. Pierce (1925)Court struck down a state law that required children to attend public school. Inhibited the rights of parents and guardians to manage upbringing of children. c. SkinnerCourt also struck down a compulsory sterilization law. Right to procreation was fundamental and any infringement would be subject to strict scrutiny (without much analysis). Regulation failed strict scrutiny. i. Buck v. BellSterilization was upheld. "3 generations of imbeciles is enough." 3. Highly controversial cases because of the court's clear inability to find a constitutional basis for the right to use contraceptives. a. Right to privacy of married persons? i. Not just to marriage? 1. However, Eisenstadt and Carey stated that right to use contraceptives was not contained to marriage.

2. EisenstadtBan on the sale of contraceptives to unmarried persons was struck down. Extends right to unmarried persons. 3. CareyStruck down a prohibition on sale of contraceptives to minors. Peller thinks that this would be controversial today. Still good law. Extends right to children. ii. Penumbra emanating out of First Amendment? Explicit constitutional provisions may lead to recognition of other rights. 1. 4th, 5th, and 9th pieced altogether leads to a right to privacy. This right to privacy leads to the rights to use contaceptives. b. Concurrences take other routes... i. Goldberg9th Amendment. ii. HarlanMost palatable opinion. Rights that are implicit in the concept of ordered liberty. Privacy of marriage is within this. Argument is that in order to enforce contraceptive law, state would have to invade the privacy of marital bedroom. Because means would be so intrusive, the prohibition itself has to be unconstitutional. 1. Argument seems limited to marital relationship, however. To him, morality distinguishes other laws such as against homosexuality as being upheld on the basis of morality. Roe v. Wade: 1. Until Lawrence, most controversial post-Lochner decision. 2. Builds on Griswold. Zone of privacy having to do with procreation rights. Zone broad enough to include abortion rights. 3. Fetus? Due process rights only apply to persons under 14th Amendment, therefore no due process rights. a. This avoids the fundamental moral conflict. 4. Compromise opinion a. State has legitimate interest in health of mother and potential life of fetus. b. No regulation during the first trimester. In last trimester, state could outlaw abortion. In middle trimester, the state could regulate abortion procedure in order to ensure the health of the mother. 5. Dissent: Argues that this is Lochnerizing. No recognition for non-textual rights. Should have been left to the legislature. After Roe: Other Arguments 1. Good samaritan argumentCannot force a woman to use her body to assist another. Duty to help is not recognized in the law, e.g., tort law. 2. FeministShould not have been based on a privacy rationale, but on an equality rationale. Based on stereotype of women as childbearers. Cases between Roe and Casey: 1. States tried to deter or limit number of abortions by: a. Informed consent. b. Spousal/ parental consent. c. Procedural requirements. 2. Looked like the court was approving more regulation of abortion in the second trimester. Might have overturned in Webster. Then Casey. 3. Meyer and Harris v. McCray: Abortion funding cases. a. Important for our doctrinal purposes.

b. Like in Rust v. Sullivan, it does not violate right to abort to deny medicaid benefits to abortions, but funding childbirth. Right not an affirmative rightmerely a negative right. c. In Harris, the court does not have to remove obstacles to abortion not of its own creation. Indigency of person is not the creation of the state. d. Typical critique to this would be that the private distribution of wealth is really the result of public policy decisions. Carey: 1. Court goes through a long discussion of stare decisis: a. Court doesn't say that Roe was well grounded in constitutional doctrine. However, defers to stare decisis. b. In other cases when there was a divergence from stare decisis, there was a change in the facts. i. E.g., Plessy. At time racism thought to be in minds of blacks, but this was not true. c. Nothing, however, has changed in the underlying facts related to abortion. 2. Upholds abortion as a fundamental right subject to strict scrutiny. 3. Trimester formulation was done away with. a. Now states interest begins at viability. This has changed because of advances in medical care. Now at 21 weeks. 4. New standardWhether undue burden on right to abort. a. Informed consent is not an undue burden because purpose is not to prevent abortion. b. 24 waiting period was not an undue burden. c. Spousal notification is an undue burden. i. Element of de facto analysis in an otherwise de jure area of law. ii. O'Connor engages in a sociological discussion of problem of mother talking to father. This often results in domestic violence in fact. This is not evident on the face of the statute. d. Parental consent was not undue burden so long as judicial bypasses, so a minor could go to a judge to argue why woman should not have to inform parents. - Court also upheld procedural regulations. December 1, 2003 EXAM: office hours Wed., til 3:30pm, Fri. 1-4pm, Mon. 11-4, Every afternoon next wk. from 1-4 until Friday; also can call when out of town. Revival of Substantive Due Process (Contd) - Issues presented are the same throughout o How to identify what rights are fundamental under sub due process? History & tradition deeply rooted. Implicit in concept of ordered liberty rights necessary to freedom. Casey/Lawrence: revolve around idea of privacy/autonomy right of personhood. Critique: Unless you stick to specific idea of history/tardition, then you repeat evils of Lochner (reading judges preferences into interpretation of constitution). o How to identify burden on these rights? De jure vs. De facto? Abortion: Harris, Mayer, Rust formal/de jure/negative rights interpretation. o Critique of privacy rationale?

Follows legal realist critique of Lochner era what is being idd by court as something private, is in fact not so being influenced by public rules. No so called private decision is private truly, b/c of 3rd party effects E.g., , i.e., in Roe, not simply private decision b/c potential life of fetus is destroyed. E.g., effect on society. b/c of belief fetus is person, thus abortion is immoral, and therefore, are affected by individual decision to abort, in that unhappier for living in society which allows abortion. Another critique by saying abortion is OK, the court is limiting the ability of the community/society to help these people. Or, in context of gay sex, that by allowing it, Ct. is disallowing people from helping those who they view as having a problem even Freud stated that homosexuality was a medical/psychological problem. Seems to be pretty paternalistic, i.e., the idea that the community wants to help these people. Privacy rationale supprts a keep it in the closet ideology, rather than bringing the real issues to the fore, for discussion, i.e., is it a cultural, psychological, medical issue? These questions cannot be asked must simply not think about it. o Peller: no neutral way to resolve these questions. A moral decision has to be made, one side must be right and another wrong, BUT the Sup. Ct. tries to make these decisions supposedly based on some principle. Impossible to find a liberal, neutral principle on which to make all decisions thus left only with making moral decisions. Stenberg v. Carhart: Ct. held that the states prohibition of the partial birth procedure was unconstitutional in that it did not provide exception for saving the mother. New, Fed stat also does not have such a provision.

Family Relationships (Marriage, Extended Family) Loving v. VA: Warrens alternative ground for opinion. o Dicta that marriage is fundamental under due process. Zablocki: prohibtied man forom marriae if child support obligations. o Also suggested right to marry was fund right under sub due process. Moore v. E. Cleveland: application of zoning ordinance that prohibited non-nuclear families from living in certain areas. o Prior to development of Roe, apparently extended notion of protected family relationship to extended family right to choose/organize who was part of the family. Emphasized history/tradition of protecting the family. o Dissent: protection of extended family not rooted history/tardition. Belle Terre: o Moore recognition did not extend to unrelated groups. This remains good law, though decided before Moore. o Rational basis review. Troxel v. Granville (2000): o Sub due process right of parents to decide how to bring up children. Order requiring parent to allow visitation to grandmother violated this right. State could not intrude so long as parent is fit. Michael H. v. Gerald D.: application of CA law that denied vistation rights to biological father of child born to adulterous affair. o Applying hist/tradition analysis, no such thing for recognizing the adulterous parents right.

History/tradition analysis viewed at a very specific level of generality should be most specific level of application that is conceivable. o Brennan Dissent: analysis should be history/tradition of parental rights, more generally. With ability to tell almost exactly who parent is, there is no need for old ideal that adulterous parents have no rights. Right to Die o Cusan: right of patient There is a right to refuse life-saving medical treatment, but in subsequent cases, no right to suicide (or affirmative assistance to do so). o Ct. embraced history/tradition as proper way to identify substantive due process rights.

Sexuality - Bowers v. Hardwick (1986): GA sodomy law upheld by the Ct. o Ct. held that prohib on sodomy as applied to homosexuals was constitutionally permissible, b/c hist/trad does not recognize right to engage in homosexual sodomy. Very controversial. o Sodomy law, on its face, applied to both heterosexual and homosexual sodomy. o Counter-argument rose out of Eisenstadt/Griswold that there was a right to privacy. Ct. found that state does have interest in establishing morality, and given lack of hist/trad, this is sufficient. - Romer v. Evans: CO constitutional amendment #2, which purportedly disallowed special treatment for homosexuals, struck down by the court. o Stands with Cleburne and Plyler, as case that strikes down govt action on basis of rational basis test (rational basis with teeth). Could be used in sexuality case, as Govt classification based on sexual orientation as irrational. o State argued that amendment simply disallowed special treatment. Ct. rejected this, the only reason for singling out sexal orientation for anti-discrimination law was animus against the particular group a flat denial of EP to single group simply based on this animus. State cannot legislate on basis of singling out a group out of animus towards that gorup this does not satisfy rational basis. o Scalia: being protected from discrimination really is granting of special rights, b/c there are many bases of discrimination which are not prohibited. - Lawrence v. Texas: Ct. overruled Bowers, and applied substantive due process to find fundamental right of privacy (personal liberty) had been intruded upon unduly by TX deviate sexual intercourse law, no legitimate state interest to justify the law. - Jaycees: application of anti-gender discrimination laws to this organization. o Ct. - Rotary Club: o Ct held that there was a burden on expressive activity, but the burden satuisfied strict scrutiny, b/c ending gender discrimination was a compelling interest. - Boy Scouts: o Ct. upheld Scouts exclusion of gay scoutmaster on ground that his presence, interfered with rights of the Boy Scouts to take position that they did not approve of homosexuality. Criticized: Cts. assumption that mere presence communicates something the court assumed would be inconsistent with ideological position of Scouts. [Reading for next class: LEAVE OUT 1385-87/1365-69 et seq. (not going to be discussed)]

December 4, 2003 Office Hours: o 12/5: 1-4pm o 12/8: 11-4 o 12/9-12/11: 12-4 o 12/12 et seq.: out of townphone #

Substantive Due Process (Contd) - Sexuality (Contd) o What does Lawrence mean for scope of substantive due process? What right protected in Lawrence? In Bowers, Ct. framed issue as right to engage inhomosexual sodomy. In Lawrence, Ct. looks more towards a general right to privacy, but Ct. leaves this somewhat unclear (very broadly written). Griswold tried to attach right to marriage; Eisenstadt, Roe, Casey tried to tie right to procreation; i.e., traditional relationships. Question was whether this case would recognize a kind of general right to personal autonomy to shape ones life as one chooses. In Moore, people given right to shape family as one sees fit (for extended families, but not for unrelated people (Belle Terre)). Lawrence: right of human association/human autonomy, not tied to traditional relationships/interests, of which sexuality is a part (right to choose with whom to be intimate). Homo sodomy just an aspect of that intimate chosen relationship, acc. to Lawrence. Calls into question other decisions of court (Whalen v. Roe long haired police officer) that call this right into question. Very powerful case/controversial. - Pellers Take on Sub Due Process: o Most controversial type of Const. interp. o If you think Roe/Lawrence result is good, rather than try to show that cases fit wihtin neutral/process approach, examine theories of critics, and argue that process theorist critics approach is also not-neutral. Focusing on de jure/de facto is attempt to exploit latent problem of process theory always two dramatically diff ways to embody/effectuate process theory choices. Thus, controversial to adopt de jure or de facto way to identify burdening of rights. This vindicates Roe and Lawrence b/c no more controversial than a process theory approach. ANY Const. decision will require value judgments about substance. There is no non-controversial approach no truly neutral way to decide cases. o In Lawrence, Scalia argues that legislature ought to be able to make these kinds of moral decisions (rather than the court). State Action Doctrine - Beginnings: o Civil Rights Cases, Lochner, Plessy took substantive approach to rights, then discredited: what Lochner court took as private was actually socially constructed everything is really public, thus govt could regulate b/c all transactions are in public interest.

o Shelley v. Kraemer: any private choice actually depended on state power to back it up (thru enforcement of common law). o Blaisdell: assumed economy was socially constructed, and economy was before society. o Miller v. Schone: even state inaction can be state action, b/c responsible for distribution of power and has thus privileged one over another to do harm. Led to great deference to legislature in economic, social legislation. o 1955-70 Process Theory: appeared that state action would be curtailed state action in anything (even acting informally). o Quest: whether rights that are necessary precondition for self rule (voting, etc.) should be idd as burdened accodring to formal state action doctrine, or should they be identified (legal realist) by court regardless of formal state action? State Action & Process Theory - De facto: affirmative rights to state of affairs seen as rights that are affirmatively upheld. o De facto used previously to not require state action to apply constitutional norms. o State action doctrine, here, to extent it is left behind, is used to affirmatively protect rights, regardless of who burdens them. - De Jure: negative rights of Constiution seen as explicit limits on states. o State action doctrine is used to only to prevent state from limiting rights. - Marsh: Ct. recognized rights as affirmative, which will trump burdens on them, regardless of whether govt burdens or not a de facto approach. Must be able to enjoy rights, not just that state may not deny you those rights. Modern Doctrine Three Doctrines (all still good law, though each severely curtailed, restricting state action to very narrow categories): - Public Function Doctrine o Private actor performing public function. o Marsh: operation of a "company town" is a "public function," and thus is state action, because towns are usually operated by the government. Must balance interest of const rights to be asserted by individual against private owners right. Shopping center cases started on this line, but have been reversed. o White Primary Cases Terry v. Adams (1953): Jaybird organization (completely private, segregated) endorsed/chose candidates for DNC primaries - no formal recognition by the state. In effect, Jaybird candidate ran unopposed in the primary, and always won. Effect of picking candidates would dictate who would appear on state primary ballot b/c of that effect, this group treated as acting as the state under public function doctrine. Fairly extreme. De facto analysis at work here. Involved voting, 15th amendment thus Cts decision influenced by that. o Jackson V. Met Edison (1974): The state regulates all utilities. A private utility cuts off plaintiffs service without notice or a hearing, and this fact is known to the state, which does not object. Held, the utilitys conduct was not state action, because the state merely acquiesced in that conduct, rather than actively participating in it. Argument was that providing such utilities was a public function (making sure everyone has this service). Rejected.

Rejects argument that termination of utility service without notice or opportunity to be heard is not unconstitutional lack of procedural due process because that only applies to government. Rejects argument that state essentially licenses private companies to provide utilities, because provision of utility is not traditionally and exclusively government service. State does not order utility tariff, merely accepts it when filed. If the state merely acquiesces in the private partys discrimination, this wont be enough of a state involvement to convert the private actors conduct into state action. o Flagg Bros. v. Brooks (1978): warehouseman has a warehousemans lien on goods stored with him, to cover unpaid storage charges. He sells the goods pursuant to the warehousemans lien (enforcement of lien thru UCC), and the owner claims that due process was required because the resolution of disputes is a "public function". Held, the warehousemans lien and sale was not a "public function" because the resolution of disputes between private individuals is not traditionally an "exclusively" governmental activity for instance, the parties might have agreed to private arbitration. Court finds that self-help like confiscating goods is long standing tradition UCC merely codifies this, so no state action. Restricts state action to not apply when state authorizes action but does not order / require / initiate the allegedly unconstitutional action. In short, state must compel action, not just authorize / accept it. Rejects argument that procedural due process is required because dispute as regulated by state UCC - peaceful resolution of private disputes as a public function (Stevens Dissent). Symbiotic Relationship/State Involvement o Private and Public so interelated that private acts should be seen as govt acts. o Shelley v. Kraemer: state court involved of enforcement of racially restricted covenant. The state may become responsible for the private partys actions because it commanded, i.e., required, the private party to act in that way. The state enforces a private agreement among neighbors that none will sell his house to a black. Because the state has lent its state judicial enforcement mechanism to this otherwise private contract, the combination of enforcement and private discrimination violates equal protection. o Burton: Racial discrimination of private Wilmington, DE restaurant in municipally owned parking garage. Held, the relation between the restaurant and the publicly-run garage was so close and symbiotic the garage wouldnt have been able to operate viably without rents from the restaurant that the restaurants actions must be imputed to the state, and therefore constitute state action. Restaurant is a state actor because significant entanglement between private actor and government. To determine significant state involvement, must look at the particular facts of each case. State Action state involvement must be significant enough to conclude constitutional norms should apply. Balancing test. Test has been narrowed: not just involvement in general, but must be specific involvement in challeneged decision (whether the state benefits from the unconstitutional action). In Burton, particularly, govt wanted restaurant to make more money, to pay off garage, and restaurant claimed it would go out of business if it integrated.

o Moose Lodge No. 107 v. Irvis (1972): State does not benefit from discrimination by purchasers of state liquor license because licenses, although limited, do not require discrimination. No evidence that simply ability for someone to pay the license fee depends on discrimination. o Blum v.Yaretsky (1982): Although nursing homes get almost all funding from state, alleged due process violations by nursing home not state actions because state did not order patient transfers in question (decision made by private physicians). o Rendell-Baker v. Kohn (1982): Although private school gets almost all money from state sources (referrals of disabled pupils), alleged First Amendment violations not state action because not dictated by state. Govt not significantly involved with the specific decision itself. o If able to argue that agency is actually the government, this will work, too, but narrowed by req that majority of board of directors must be publicly appointed. E.g., Amtrak. Encouragement/Authorization o Govt has encouraged private actor to act. o Reitman v. Mulkey (1967): The voters of California amended their constitution to prohibit the state government from interfering with any private individuals right to discriminate when he sells or leases residential real estate. This amendment immediately results in the repeal of two state Fair Housing statutes. Held, this state-constitutional amendment amounts to governmental "encouragement" of private discrimination. Therefore, the resulting private discrimination will be imputed to the state, and the state constitutional provision violates the 14th Amendment. Involves state in private discrimination because private discriminators now have state constitutional protection that other people dont have. By doing this the state is giving its seal of approval on discrimination. Ps argument is that this not only repeals the anti-discrimination law, but necessitates a constitutional amendment before such laws can be passed again. State argument is that all the amendment does is return to baseline: no state obligation to pass laws forbidding private discrimination, so no problem taking that away. Peller. This is extreme de facto analysis the amendment is facially neutral: permits people to rent to anyone they want: the problem must be that racial minorities will suffer in practice disproportionately. This kind of court analysis of the political / social context of CA at the time is exactly what process theory suggests the courts are not good at. o Jackson, Flagg Bros: not enough that state authorize private individual to make a decision; if decision initiated by private party, and state is simply taking position that it wont do anythign about that decision, then no state action. Extreme formalism/de jure. o USOC: charged by Congress with authority to license name Olympics, and committee refused to license it w/re: to Gay Olympics. Sued for violation of free speech. Constitutional norms do not apply, because no state action (only if Congress itself had directed the group to make the denial). Not enough for govt to authorize, govt must actually compel the particular action being complained of for constitutional norms to apply.