Download Con Law Outline

Con Law Outline
I.
Intro to Individual Rights under the Constitution
A.
Theories on Constitutional Interpretation
1.
Originalism
a.
The Ct is justified in protecting constitutional rights only if they are
clearly stated in the text or intended by the framers.
b.
Desire to limit unelected judges in a democratic society.
c.
If the Const is silent, it is up to the leg., not the cts to decide the law.
Const can only evolve by amendments.
2.
Non-Originalists
a.
Ct should have substantial discretion in determining the meaning of the
Const.
b.
The Const. evolves by interpretation and not only by amendments to
meet the needs of a society that is advancing technologically and
morally.
3.
Second Amendment Example
a.
U.S. v. Emerson (N.D. Texas 1999)
1.
In Texas when a restraining order was granted in automatically
included a ban on bearing arms. Emerson claimed that this
interfered w/ his 2nd Amend rights.
2.
Does the 2nd Amend cover an individual right to bear arms apart
from a well regulated militia.
3.
Textual Analysis: supports the individual right b/c the Amend’s
independent clause (“the right of the people to keep and bear
Arms, shall not be infringed”) is not qualified by the subordinate
clause (“a well regulated Militia, being necessary to the security
of a free State”).
4.
Historical Analysis: England and the colonies supported an
individual right to bear arms as a potential check against tyranny.
However, only white men who were allowed in the militia had
arms.
5.
Structural Analysis: 2nd Amend placement w/in the Bill of Rights
supports individual right concept.
6.
A law-abiding citizen’s rights can’t be abridged by a boilerplate
state ct divorce order.
7.
Social Policy/ Consequential/ Prudential Argument: what are the
consequences of this Amend? High death rates from guns.
b.
U.S. v. Miller (U.S. 1939): The Ct did not specifically answer if the right
to bear arms is a collective or individual right, however it did state that it
can be regulated.
c.
Ethos- who we are and how we make decisions (often contradictory:
majoritarian v. individual dignity).
4.
Majority and splinter opinions
a.
5+ = “the opinion of the Ct.”
b.
<5 = “an opinion of the Ct.”
c.
“The judgment of the Ct.” – who won and who lost, regardless of
reasoning.
B.
The Structure and Sources of Civil Rights & Civil Liberties
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1.
2.
The U.S. Const – Selected Provisions
a.
Art. I, secs. 9-10; Art. III, secs 2-3; Art. IV, secs 2; Art. V; Art. VI;
Amends. I-IX, XIII-XV, XIX, XXIV, XXVI.
b.
Const. primarily addresses what the fed govt can and cannot do; mostly
not designed to restrict state govts.
Application of the Bill of Rights to the States & Incorporation
a.
Barron v. Mayor and City Council of Baltimore (1833)
1.
∏ sued the City for making his wharf useless when it diverted
the flow of streams in violation of the 5th Amend guarantee that
prop will not be taken w/o just compensation.
2.
The amends were intended as limitations solely on the exercise of
power by the U.S. Govt and are not applicable to the leg of the
states.
b.
Slaughter House Cases (1873)
1.
Louisiana created a slaughterhouse monopoly to which several
butchers who were not included objected claiming it violated the
14th Amend Privileges and Immunities Clause of national
citizenship and equal protection and due process of law.
2.
The 14th Amend protects the privileges and immunities of
national, not state, citizenship, and neither the EP, DP, nor P&I
Clauses of that Amend may be used to interfere w/ state control
of the privileges and immunities of state citizenship.
3.
Louisiana cannot be prevent under the 14th Amen from exercising
its police power (to promote public health in slaughterhouses) to
define particular p&i of its citizens.
c.
Incorporation
1.
Originally, the Bill of Rights was designed just to apply to the fed.
govt. It was expanded to states/municipals after the Civil War to
protect former slaves from state denial of fed rights.
2.
Selective Incorp- one at a time incorp rights until almost all of the
Bill of Rights was incorp.
3.
Didn’t Incorp:
a.
3rd Amend right not to have soldiers quartered in a
person’s home.
b.
5th Amend right to a grand jury in criminal cases.
c.
7th Amend right to a jury trial in civil cases.
d.
8th Amend prohibition of excess fines.
d.
Saenz v. Roe (1999)
1.
Calif. enacted a statute limiting the max 1st yr welfare benefits
available to newly arrived residents. It was challenged under the
14th Amend P&I Clause.
2.
Violates the fundamental right to travel by denying newly-arrived
citizens the same p&i enjoyed by other citizens in the same state.
3.
The 14th Amend states that the citizens of each state shall be
entitled to all p&i of citizens of the several states.
4.
The Citizenship Clause of the 14th Amend protects all citizens’
right to choose to be citizens of the state wherein they reside.
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Since the law discriminates against some of the state’s citizens it
requires strict scrutiny and the legitimate state interest in saving
money does not justify discriminating among equally eligible
citizens.
Application of the Constitution to Private Conduct
a.
State Action
1.
State Action Doctrine- the Const applies to govt at all levels (fed,
state, and local), and to the actions of govt officers at all levels,
however, it does not apply to private entities or actors, unless the
govt is somehow involved.
2.
The Civil Rights Cases (1883)
a.
Congress passed the Civil Rights Act under the 13th and
14th Amend. prohibiting private citizens from excluding
other citizens from inns, public transportation, etc. based
on race.
b.
Civil rights guaranteed by the Const. cannot be impaired
by the wrongful acts of individuals unless such acts are
sanctioned or authorized by the govt. Congress cannot
prohibit private discrimination under the 13th or 14th
Amend.
c.
Dissent: To deny a citizen equal participation due to race
is a vestige of slavery sufficient to invoke the 13th Amend.
d.
Govt can enact laws that require that private conduct meet
the same standards that the Const. requires of the govt
(independent from the Const.).
b.
Exceptions
1.
Public Functions
a.
A private entity must comply w/ the Const. if it’s
performing a task that has been traditionally exclusively
done by the govt.
b.
Marsh v. Alabama (1946)
1.
Town is owned by a private corp that does not
allow the distribution of religious literature on the
streets. Woman sues for violation of 1st and 14th
Amend rights.
2.
Running a town is generally done by a govt entity.
The more a prop owner opens up his prop for use
by the public, the more his rights become
circumscribed by Const and statutory rights of
those who use it.
3.
If town had been a municipality, it would be clear
that a conviction under a municipal ordinance for
distributing religious literature in the streets would
be unconst. Private ownership does not allow it to
deprive citizens of fundamental rights.
c.
Jackson v. Metropolitan Edison (1974)
1.
Private co that provides electricity terminated ∏
electric service for no-payment, and she claimed
5.
3.
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2.
3.
4.
5.
2.
that this was a state action which deprived her of
her prop w/o DP.
The mere fact that a business is subject to detailed
and extensive state regulation does not covert its
action into state action. Nor does the fact that it
enjoys a partial monopoly.
The actions of the business do affect the public
interest, but that alone does not make it a state
action.
The state public utilities commission’s approval of
Metropolitan’s tariff merely constituted a finding
that it termination procedure was permissible
under state law.
Dissent: State authorization and approval of
“private” conduct supports a finding of state
action.
Entanglement
a.
Private conduct must comply w/ the Const. if the govt has
authorized, encouraged, or facilitated the unconst.
conduct. Either the govt must cease its involvement w/
the private actor or the private entity must comply w/ the
Const.
b.
Shelley v. Kraemer (1948)
1.
Group of homeowners agree not to sell their
houses to non-whites for 50 yrs. A house is sold
to a black family and other homeowners sue to
enforce the discriminatory K.
2.
Judicial enforcement of this covenant is
considered state action for 14th Amend purposes.
3.
Could be extended to include any party who seeks
to judicially enforce a K. Oddball case that is very
narrowly construed.
c.
Edmonson v. Leesville Concrete Co. (1991)
1.
Private litigants in a civil suit use their preemptory
challenges to strike jurors based on race.
2.
Lugar Test: A private party will be held to be a
state actor if:
a.
The right of privilege exercised has its
source in state power, and
b.
Whether the private party could fairly be
described as a state actor:
1.
The extent to which the actor relies
on govt asst. and benefits.
2.
Whether the actor is performing a
traditional govt’l function.
3.
Whether the injury caused is
aggravated in a unique way by the
incidents of govt’l authority.
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3.
d.
e.
f.
Here the first part is met b/c the right involved is
part of the judicial system. As to the second factor,
a party to a lawsuit relies on state machinery and
the injury he may cause would be carried out
through govt’l authority.
Burton v. Wilmington Parking Authority (1961)
1.
Restaurant rented its place from the govt and
didn’t serve blacks.
2.
The govt and the restaurant were interdependent:
govt needed restaurant for $ and restaurant needed
govt for parking.
Moose Lodge v. IRVIS (1972)
1.
The Lodge had a state-issued liquor license and
would not serve blacks.
2.
Merely granting a liquor license to a private club
which engages in discrimination is not sufficient
state action to invoke the 14th Amend.
3.
Dissent: Where a state grants a limited resource to
a racially discriminatory private group it is
encouraging and fostering racial discrimination.
Brentwood Academy v. Tenn. Secondary Sch. (2001)
1.
Whether a statewide assoc. incorp. to regulate
interscholastic athletic comp. among public and
private high schools may be regarded as engaging
in state action when it enforces a rule against a
member school.
2.
The nominally private character of the Assoc. is
overborne by the pervasive entwinement of public
institutions and public officials in its composition
and workings, and there is no substantial reason to
claim unfairness in applying const. standards to it.
84% of its members are public shools.
II.
Equal Protection
A.
Equal Protection Methodology
Levels of Scrutiny
Means
Least restrictive
End
Burden
Rational Basis
Reasonably/rationally related
No
Legitimate
Challenger
-disability, economic, social, orientation
Intermediate Scrutiny Substantially related
Probably not
Important
Govt
-gender, legitimacy
Strict Scrutiny
Necessary
Yes
Compelling Govt
-race, ethnicity, national origin, aliens, fundamental rights
1.
Applies to States and Fed govt equally
a.
States: 14th Amend.
b.
Federal: 5th Amend (EP taken from DP).
2.
Originally was created after the Civil War and applied only to Blacks. It was
expanded to other groups beginning in the 1960s.
3.
Framework for EP Analysis
a.
What is the Classification?
b.
What is the Appropriate Level of Scrutiny?
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B.
c.
Does the Govt Action Meet the Level of Scrutiny?
Rational Basis Review
1.
Steps
a.
First, look at the end: Is there a legitimate purpose?
b.
Then, is the means reasonable to get to that end?
-Look for over and under inclusiveness. If it’s arbitrary, it will fail.
c.
Govt usually prevails under this test. “With bite” means the ∏ won.
2.
Legitimate Purpose
a.
At the least, the govt has a legitimate purpose if it advances a traditional
police purpose: protecting safety, public health, or public morals.
Virtually any goal that is not forbidden by the Const. will be deemed
sufficient to meet rational basis.
b.
Romer v. Evans (1996)
1.
Colorado Const was amended to prohibit laws that extended
special protection to homosexuals. Prevented liberal cities from
giving special protection to homosexuals. Discriminated against
homosexuals and some voters (liberals) whose vote will not
count; minority voters will be engulfed into the majority.
2.
Possible legitimate purposes: state claims it wants to make
homosexuals equal, but ct finds that it is just born out of
animosity. This law works to bar homosexuals from the
protection that other have; does not put homosexuals on equal
footing in purpose or effect.
3.
Desire to harm a politically unpopular group is not a legitimate
govt interest. Legitimate seems to be anything that isn’t animus.
4.
Justice Kennedy, who gave the majority opinion seems to put the
burden on the govt to prove legitimate purpose.
5.
Scalia Dissent: Purpose it preserve traditional sexual mores and
to prevent preferential treatment. You call it animus, but it’s
really just our culture (like laws against polygamy).
c.
Does the Legitimate Purpose need to be Actual or is a Conceivable
Purpose Enough?
1.
Govt only need identify some conceivable legitimate purpose,
regardless of whether that was its actual motivation.
2.
U.S. Railroad Retirement Board v. Fritz (1980): Where there are
plausible reasons for Congress’ action, our inquiry is at an end. It
is constitutionally irrelevant whether this reasoning in fact
underlay the legislative decision.
2.
Reasonable Relationship
a.
Underinclusiveness: Railway Express Agency v. N.Y. (1949)
1.
Law prohibited advertising on vehicles, except business vehicles
engaged in the owner’s work. Underinclusive b/c it does not
eliminate all distracting advertising?
2.
City claims the purpose is to eliminate distractions to drivers and
pedestrians. Ct finds that local authorities may have concluded
that those who advertise their own products do not present the
same traffic problem in view of the nature and extent of their
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III.
advertising. No EP requirement that all evils of the same genus
be eradicated or none at all.
b.
Overinclusive: N.Y. City Transit Authority v. Beazer (1979)
1.
The TA excluded all methadone users from employment.
Methadone users argue that it is overinclusive since only 25% go
back to drug or alcohol abuse.
2.
Even though the rule is broader than necessary to exclude only
unemployable methadone users, this is a personnel matter that’s
not protected by the EPC.
c.
Arbitrary and Unreasonable Laws
1.
U.S. Dept. of Agriculture v. Moreno (1973)
a.
Fed. law denied food stamps to any household containing
an individual unrelated to any other member of the
household.
b.
Govt’s state purpose was to prevent food stamp fraud.
However, leg. history show that it was discriminatory
intent toward “hippies.”
c.
This is not a rational way to prevent fraud- there is
nothing in the record to tie this category to fraud.
d.
It is overinclusive b/c not all unrelated people living in a
household will commit fraud w/ food stamps. It is
underinclusive b/c there are others who will commit fraud
that do not fall in this class.
2.
City of Cleburne, Texas v. Cleburne Living Center (1985)
a.
City denied a permit to the Living Center to build a home
for the mentally retarded.
b.
Why is it okay for the city to have extra-stringent
requirements for a home for the mentally retarded? City
says:
1.
Neighbors don’t want it. Shelley v. Kreamer- govt
(cts) can’t enforce discrimination/segregation.
2.
Would be in a flood plain- it would be okay to but
a nursing home, pre-school, etc. there, so this is
grossly under inclusive.
3.
Jr. High students might taunt the retarded- there
are already mentally retarded students that go to
the school.
c.
Heightened Scrutiny Factors:
1.
Historical discrimination.
2.
Politically Powerless- can they address
discrimination.
-If there’s leg. protecting them, it weakens this
argument.
3.
Immutable Characteristic- can’t change it.
d.
Ct finds that there is no heightened scrutiny b/c there’s leg.
to address the discrimination of the disabled. However,
the ordinance is irrational and doesn’t pass rational basis.
Equal Protection: Racial Classifications
A.
Before the Civil War Amendments & Strict Scrutiny Framework
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Orig. Const. contained the right to have slaves. The 13th Amend specifically
banned slavery, but freed slaves had no protection. The 14th Amend extended
EP to freed slaves.
2.
Dred Scott v. Sandford (1856)
a.
Scott was owned by Sandford, who moved them into a free state,
Missouri. Sandford died and Scott sought to sue his estate for his
freedom. He won at the Missouri trial ct., but lost at the Missouri
Supreme Ct. Scott sues in fed ct as a citizen of Missouri, under diversity
jurisdiction.
b.
Ct says he does not have juris b/c he is not a “citizen” to bring diversity
juris. The founding fathers wrote the Const for Negroes to not be free.
c.
Under an Orig Interpretation approach: when the Const was written there
were no free Negroes, so they can only be seen as prop under the Const.
d.
Ct says even if they had juris, this would violate slaves owners const
right to prop under the 14th Amend.
Facial Classifications
1.
Disadvantage: Korematsu v. U.S. (1944)
a.
Still good law. Only facial, racially discriminatory that is still good law.
b
Facially discriminated against those of Japanese ancestry during WWII,
however didn’t apply to Germans or Italians.
c.
Order that prohibited persons of Japanese ancestry from prescribed
military areas on the West Coast. Were basically the entire western
states, so they had to go to an internment camp.
d.
There was a facial classification, so strict (rigid) scrutiny is applied.
e.
“Pressing public necessity may sometimes justify the existence of such
restrictions; racial antagonism never can”- compelling interest. National
Security is a compelling interest, and this is necessary to further this
interest.
f.
Apprehension by the proper military authorities of the gravest imminent
danger to the public safety can justify the curtailment of the civil rights
of a single racial group.
g.
Murphy’s Dissent: Is this the least restrictive alternative? Just those who
actual posed a threat could have been detained (no Germans, etc.). It is
essential that there be definite limits to military discretion, especially
where martial law has not been declared. No reasonable relation b/w the
group characteristics of Japanese-Americans and the dangers of invasion,
sabotage, and espionage.
h.
It is over and underinclusive. Over: detained children and the elderly.
Under: didn’t detain those of ancestry from other enemy groups, or those
on the East Coast. Military report says that the immediacy of war does
not allow use to do a better job (don’t have time to sort out just those
who are threats).
i.
Jackson’s Dissent: I can’t constitutionally endorse these actions.
j.
Robert’s Dissent: Procedural Due Process- need some form of individual
review.
2.
Burdening Both Whites & Minorities
a.
Loving v. Virginia (1967)
1.
B.
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1.
3.
Racial Classification: Virginia law prohibits whites from
marrying a non-white person. State claims it’s not discriminatory
b/c it affects both races.
2.
The mere “equal application” of a statute containing racial
classifications is not enough to remove the classifications from
the 14th Amend’s proscription of all invidious racial
discriminations.
3.
Lovings are a black man and white woman prosecuted in Virginia
after being married in D.C.
4.
Ethos- who are we, what are our values? Ct looks at what other
states are doing.
5.
Naim: State’s legitimate purposes were “to preserve the racial
integrity of its citizens,” and to prevent “the corruption of blood.”
6.
Ct says that white supremacy is not a legitimate reason. The fact
that the statute prohibits only interracial marriages involving
white persons indicates that its aim is to maintain white
supremacy (invidious discrimination).
b.
Palmore v. Sidoti (1984)
1.
White couple has a child and get a divorce. She gets custody of
the child. When she marries a black man, her ex fights for
custody arguing that the child will be stigmatized by a racist
society.
2.
The child may be stigmatized, but the ct will not support and
affirm racist attitudes. There may be real consequences, but the
ct won’t perpetuate it.
Segregation
a.
Plessy v. Ferguson (1896)
1.
Plessy was convicted under a state law which provided for
“separate but equal” railroad accommodations for whites and
blacks. Plessy claimed that segregation violated the 13th and 14th
Amend (EP) b/c it stigmatized blacks and stamped them w/ a
badge of inferiority.
2.
Social v. Political Equality: Justice Brown says the intent of the
14th Amend was to provide access to political institutions, not
social equality. The 14th Amend was to enforce absolute equality
of the two races before the law, but it could not have been
intended to abolish distinctions based upon color, or to enforce
social, as distinguished for political, equality, or a commingling
of the two races upon terms unsatisfactory to either.
3.
This is a valid exercise of the state’s police powers: to preserve
order and public peace.
4.
Dissent: The statute interferes w/ the personal freedom of
individuals to freely associate w/ others. The Const is about
being color-blind and this law was about subordinating blacks.
b.
“Separate but Equal” was often challenged in legal education cases,
where it was argued that the separate black facilities were not equal.
c.
Brown v. Board of Education (1954)
1.
Chief Justice Vinson died and Earl Warren (former Republican
Governor of Calif.) was appoint the Chief Justice by Eisenhower.
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2.
C.
Black children were denied access to public schools attended by
white children under laws permitting segregation according to
race.
3.
Diff than other attacks on separate but equal b/c it focuses on the
inherit inequality in separation even if the facilities are equal (this
overturns Plessy)- only applies it to education.
4.
As to Const intent discussed in Plessy, Warren says that
education is part of a diff world now- education has become more
important, even compulsory in some states.
5.
“To separate children from others of similar age and
qualifications solely b/c of their race generate a feeling of
inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.”
6.
Focuses on social science of damage separate does to minority
children- told you’re not as good, don’t do as good. One can
argue that Congress is in a better position to go through studies,
etc.
d.
Now: how far should cts go to ensure integration?
Facially Neutral laws with Discriminatory Impact
1.
Washington v. Davis (1976)
a.
Classification: those who pass Test-21 are eligible for employment w/
the police dept., while those who fail are not. Blacks fail the test at a
much higher rate.
b.
A law or official governmental practice must have a “discriminatory
purpose,” not merely a disproportionate effect on one race, in order to
constitute “invidious discrimination” under the 5th or 14th Amend.
However, the disproportionate impact may be relevant as evidence of a
discriminatory purpose.
c.
If not facially racially discriminatory, to get strict scrutiny, must show:
1.
Disparate impact, and
2.
Some sort of governmental intent.
d.
Dissent: At a minimum, the police dept. should have been required to
prove that Test-21 either measured job-related skills or predicted job
performance.
e.
If disparate impact was recognized, all sorts of laws could be challenged.
There’s no evidence that this test relates to job performance. After this
case, disparate impact claims shifted to Title VII, which recognizes racial
disparate impact to prove racial discrimination, but damages are limited.
2.
McCleskey v. Kemp (1987)
a.
Study shows that blacks who kill whites are more likely to get the death
penalty. Black death row inmate sues the discriminatory process.
b.
Ct says only guaranteed individual, not group justice. Have to show
individual discriminatory intent. Disparities in sentencing are inevitable.
EPC is concerned w/ stopping discriminatory acts by the govt, not in
bringing about equal results.
c.
Ct didn’t deny the pattern shown by the study, but said we need to see
discrimination in this case (impact and intent).
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d.
D.
Brennan Dissent: Georgia capital sentencing system itself provides
opportunities for racial considerations in sentencing (i.e. no list given to
the jury of aggravating and mitigating factors).
3.
City of Mobil v. Bolden (1980)
a.
Negro voters claim that at-large elections discriminate b/c town is
predominately white. Governed by the EP and the 15th Amend that
ensures the right to vote.
b.
Gomillion v. Lightfoot held that a racially motivated gerrymander of
municipal boundaries stated a claim under the 15th Amend. It was so
obvious that intent was racially motivated.
c.
Need impact plus intent. Blacks have right to vote- no evidence of
discrimination.
d.
Dissent: intent can be inferred. 35% of the population is black, but no
blacks have been elected to the Mobile City Commission.
4.
Palmer v. Thompson (1971)
a.
Rather than integrate, the city closes down public pools.
b.
The city does not have a duty to operate swimming pools and the closure
affected all races equally. Evidence supported the city contention that
they could not operate pools safely and economically on an integrated
basis.
5.
Personnel Administrator of Mass. v. Feeney (1979)
a.
Mass. provided that all veterans who qualify for state civil service
positions must be considered ahead of any non-veteran. A female denied
advancement pursuant to the veteran preference, challenged the law as
discriminating against women in violation of the EPC.
b.
It is not enough to show the govt took action w/ knowledge of the
discriminatory consequence, must show that the govt desired to
discriminate. Must show that decision maker made decision “b/c of,”
not merely “in spite of” its adverse effects.
Affirmative Action based on Race
1.
Regents of the University of Calif. v. Bakke (1978)
a.
Judgment announced by Powell b/c he was in the middle of the opinions.
Davis can still use race in admissions, but not the system they had.
b.
Davis had 100 slots for admission to its medical school, of which it set
aside 16 sets fro minorities only. Bakke sued b/c he believed that he
would have been admitted had he been able to compete for all 100 seats.
c.
This is a facial racial classification, but does it deserve strict scrutiny?
d.
Powell applied a “stringent” examination, but there was no majority as to
the level of scrutiny to apply. The EPC prohibits discrimination
regardless of race (minorities and whites). In order to justify the use of a
suspect classification, it must be established that the state’s purpose is
both constitutionally permissible and substantial and that the
classification is necessary to accomplish its purpose.
e.
Government’s Purposes:
1.
Remedy Past Discrimination- explicit use of laws used to
disadvantage a group based on their race (i.e. you can’t study at a
medical school.
-Powell says that quotas are discriminatory and against the Const.
2.
Countering the Effects of Societal Discrimination
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2.
3.
-There is no evidence that Davis has specifically discriminated
against minorities (proven, specific, intentional past
discrimination may have justified such a remedy).
3.
Increase Drs to Serve in Undeserved Communities
-This is a compelling state interest, but there is no evidence that
this will be accomplished by admitting minority students.
4.
Diverse Student Body- improve ed. experience for everyone.
-Ct finds that this is a compelling reason.
f.
Powell says that quotas are unconstitutional, but the “Harvard” system is
aloud, which allows race to be considered, but not more important than
anything else.
g.
Brennan writes an opinion that concurs and dissents: race can be taken
into account, but quotas should be allowed.
h.
Marshall writes a separate opinion stressing that remedying past
discrimination is what the Const. is for.
i.
Stevens says it should not be decided on Const ground, but under the
Civil Rights Act.
Richmond v. J.A. Croson Co. (1989)
a.
City Council passed a plan to recognize specific minority groups that
required general contractors on city construction projects to subcontract
at least 30% of the K amount to minority-owned businesses.
b.
Classificationrace
1.
Harmful (exclusionary)- strict scrutiny?
2.
Benign (inclusionary)- intermediate?
c.
City argues that it is attempting to remedy various forms of past
discrimination in the contracting industry. Can’t decide to remedy
societal discrimination- need specific incidents of discrimination. If you
have an amorphous end, can’t be narrowly tailored.
d.
State or local govts are limited to redressing discrimination that occurs in
its jurisdiction and must identify such discrimination w/ specificity.
e.
O’Connor essential uses strict scrutiny to invalidate this, but says that
affirmative action could be justified if narrowed.
f.
Stevens concurring: A govt decision that is based on racial classification
should be allowed if it prevents discrimination in the future, not only if it
remedies past discrimination.
g.
Scalia Dissent: State and local govts may not discriminate on the basis of
race to remedy past wrongs.
h.
Marshall Dissent: Strict scrutiny should be applied only to measures that
are racist in nature, not those that remedy past discrimination.
Adarand Constructors, Inc. v. Pena (1995)
a.
∏, a white contractor, submitted a low bid. However, the general
contractor signed a Hispanic-owned co. b/c of a congressionally created
program that awarded contractors bonus monies for hiring minorityowned business.
b.
Ct applies strict scrutiny to overrule Metro. All racial classifications
require strict scrutiny, but not fatal in fact. Remands to use the correct
scrutiny.
Con Law Outline 12
c.
IV.
Scalia concurring: govt can never have a compelling interest to remedy
past discrimination. Just one race in the eyes of govt.
d.
Dissent: we think about purposes and motives and should be able to
distinguish b/w affirmative and negative motivation.
4.
Grutter v. Bollinger (2003)
a.
The U of Mich. law school has an admission policy that focuses on
academic ability coupled w/ a flexible assessment of applicants’ talents,
experiences, and potential “to contribute to the learning of those around
them.” A white woman is denied admissions and sues claiming that this
policy violates EP.
b.
Must be narrowly tailored to further a compelling govt interest.
c.
The school justifies its use of race by the interest in obtaining “the
educational benefits that flow from a diverse student body.” Ct finds
that this a compelling interest.
d.
It is narrowly tailored b/c it is “flexible enough to consider all pertinent
elements of diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consideration,
although not necessarily according them the same weight.”
e.
Basically need some sort of individual determination.
f.
Thomas and Scalia partial dissent: Is there a compelling interest to
elitism? The school could just lower its standards. If this is a
compelling interest, anything is.
5.
Gratz v. Bollinger (2003)
a.
Under U. of Mich. undergraduate admission policy an applicant was
entitled to 20 points if a racial minority.
b.
Giving 20 pts to underrepresented minorities solely b/c of race, is not
narrowly tailored to achieve the interest in educational diversity. There
is no individualized consideration and race becomes a decisive factor.
Equal Protection: Gender and Other Classifications
A.
The Level of Scrutiny for Gender Classifications
1.
Frontiero v. Richardson (1973)
a.
A statute provides that servicemen’s wives are automatically eligible for
benefits as dependents while servicewomen must demonstrate that their
husbands are dependent on them before they are eligible for the benefits.
b.
Classifications based upon sex, like those based upon race, alienage, or
national origin are inherently suspect and must be subjected to strict
scrutiny.
c.
U.S. has a long history of sex discrimination. Women (like blacks) still
face pervasive discrimination in education, employment, and politics. It
is an immutable characteristic.
d.
Applying intermediate scrutiny, the govt’s purpose of administrative
convenience was not compelling. Govt did not show that this
assumption was cheaper and easier.
e.
Stewart Concurrence: Should have been decided on rational basis of
Reed.
2.
Craig v. Boren (1976)
a.
Under Oklahoma statute, men 18-20 could not buy beer, but women
could. This action was brought against the state by bartenders.
Con Law Outline 13
b.
B.
C.
Govt states that its interest is traffic safety and offers evidence that there
are more dangers associated w/ men in this age group drinking.
However, only 2% more males are associated w/ traffic arrests and ct
says this is not sufficient to est. a compelling interest.
3.
U.S. v. Virginia (1996)
a.
Virginia Military Institute (VMI) is an elite public school that creates
“citizens soldiers,” but does not allow women. When this is challenged
based on EP, Virginia created the Virginia Women’s Institute for
Leadership (VWIL), however it does not use the adversative method
(endurance of immense stress).
b.
Gender based classifications must meet heightened scrutiny. Ct states
that govt action must demonstrate an “exceedingly persuasive
justification” for that action. This seems like more than intermediate
scrutiny.
c.
Govt describes two purposes:
1.
Better education (diversity in types of education, including
monosex) –Ct doesn’t buy.
2.
Adversative Method can’t be taught to women. –Not for most
women, but if they want to do it you must let them.
d.
Can have classifications that perpetuate equality for women, but not ones
that are discriminatory.
Proving the Existence of a Gender Classification
Geduldig v. Aiello (1974)
1.
California’s disability ins. system excluded disabilities resulting from normal
pregnancies and birth. Women w/ pregnancy-related disabilities challenged the
exclusion as violating the EPC.
2.
Not every disabling condition is covered under the program. Calif. does not on
the face of the program discriminate w/ respect to the persons or groups eligible
under the program, it has merely chose not to insure certain risks.
3.
Calif. interest in maintaining a self-supporting ins. program is a legitimate one,
and provides a non-invidious basis for the state’s decision not to create a more
comprehensive program.
4.
The exclusion’s distinction is not based on sex but on pregnancy (those who
don’t have pregnancy-related disabilities are both men and women).
Affirmative Action Based on Gender
1.
Gender Classifications Based on Role Stereotypes
a.
Orr v. Orr (1979)
1.
A requirement that only husbands pay alimony discriminates on
the basis of sex and therefore must serve important govt
objectives and must be substantially related to achieving those
objectives.
2.
The goal of helping needy spouses and compensating women for
past discrimination during marriage are legitimate goals, but the
law is insubstantially related to those objectives b/c Alabama
already requires individual hearings to determine need, etc.
Needy males could be helped out as well.
b.
Miss. U. for Women v. Hogan (1982)
Con Law Outline 14
1.
2.
The University typically barred men from enrolling. Hogan
applied for admission to the nursing program and was denied
simply b/c of his gender. He sued for violation of the EPC.
2.
Intermediate scrutiny must be used in analyzing discrimination
against men, as well as women. The govt. objective must
necessitate the statute.
3.
The state’s purpose was to compensate for past discriminatory
practices against women. However, over 90% of the nursing
profession is female.
4.
The contention that the admitting men would tend to adversely
affect the women is undermined by the practice of allowing men
to audit classes.
c.
Michael M. v. Superior Ct of Sonoma County (1981)
1.
Calif. penal code prohibited sex w/ a female under 18, but not w/
a male under 18.
2.
The leg. purpose for the statute was to prevent teenage
pregnancies. The leg. concern is entitled to great deference. The
state has a strong interest in preventing such pregnancies. Young
men and women are not similarly situated w/ respect to the
problems inherent in sexual intercourse.
3.
Brennan Dissent: There’s no reason why a gender-neutral law
would not serve the objectives of the law. In fact, would be a
greater deterrent to sexual intercourse.
4.
Stevens Dissent: The fact the female has a greater risk from sex is
more reason to apply the law against her.
d.
Rostker v. Goldberg (1981)
1.
Congress has a legitimate reason for limiting draft registration to
women- only men are eligible for combat.
2.
Ct generally gives deference to Congress and the Pres. in matters
of national security.
Gender Classifications Benefiting Women
a.
Califano v. Webster (1977)
1.
Social Security Act allows women to eliminate additional lowearning yrs from calculation of their retirement benefits.
2.
Govt has an important objective of reducing disparity in
economic condition b/w men and women. Allowing women,
who have been unfairly hindered from earning as much as men,
to eliminate additional low-earning yrs works directly to remedy
some part of the effect of past discrimination.
b.
Nguyen v. Immigration and Naturalization Service (2001)
1.
For citizenship for a child born outside of the U.S. where the
father is a U.S. citizen and the mother is not, paternity must be
acknowledged or established. However, there is no such
requirement if the mother is a U.S. citizen.
2.
The majority applies intermediate scrutiny and finds that 2
important govt interests are served: (1) assuring a biological
parent-child relationship exists (w/ the mother this is verifiable
by the birth), and (2) assuring the opportunity for a real
meaningful relationship.
Con Law Outline 15
Dissent: Wants there to be an “exceedingly persuasive
justification” for the gender classification. Must be shown that
these are the “actual” leg. purposes.
Alienage Classifications
1.
Aliens are protected from discrimination b/c the EPC explicitly says that no
“person” shall be denied EP of the laws- does not mention the word “citizen.”
The general rule is that strict scrutiny is applied, however there are several
exceptions.
2.
Graham v. Richardson (1971)
a.
Welfare benefits were challenged under the EPC b/c they limited
benefits to U.S. citizens.
b.
Resident aliens as well as U.S. citizens are protected under the EPC and
any violation must be justified by a “compelling” state interest.
c.
A state’s desire to preserve limited welfare benefits for its own citizens is
unreasonable and inadequate, since resident aliens contribute to state
revenue.
Exceptions: Classification Governed by Rational Basis
1.
Alienage classifications related to self-government and the democratic process.
a.
Foley v. Connelie (1978)
1.
A N.Y. statute required that police officers be American Citizens.
2.
This does not violate the EPC. Restraints imposes on aliens are
not inherently invalid or suspect. States have the power to
exclude aliens from participating in its political institutions and
rational basis review is enough.
3.
B/c police officers participate in executing policy and enforcing
laws, and are invested w/ substantial discretionary powers, the
police function is one where citizenship bears a rational
relationship.
4.
Dissent: Police officers execute policy to the extent that other
public employees do. Should be limited to setting, not carrying
out public policy.
b.
Ambach v. Norwick (1979)
1.
N.Y. did not allow aliens to become elementary and secondary
public school teachers.
2.
Some state functions are so bound up w/ the operation of the state
as a governmental entity as to permit the exclusion from those
function s of all persons who have not become part of the process
of self-govt.
3.
Although aliens are a suspect class, the standard to justify is
lowered to rational basis when a governmental function is
involved.
4.
Teachers have an obligation to promote civic virtue and the state
has an interest in furthering this.
2.
Congressionally Approved Discrimination: Rational basis where the
discrimination is the result of a federal law.
3.
Undocumented Aliens and EP
Plyler v. Doe (1982)
a.
Texas law prohibited state funds to educate undocumented aliens.
3.
D.
E.
Con Law Outline 16
b.
IV.
Texas justification: (1) it was designed to protect the state from an influx
of illegal immigrants, (2) it would relieve some of the special burdens
which educating undocumented aliens imposes on the educational
system, and (3) it would relieve the state of the burden of educating
children who are less likely to remain in the state and contribute than
other children.
c.
Standard of Review: undocumented aliens are not a suspect class and
there is not fundamental right to education. Must be rationally related to
a substantial state interest.
d.
This statute does not advance the interests asserted by the state. Denying
children who are not responsible for their status an education will
stigmatize them w/ illiteracy and they will not be able to participate in
civic institutions. The cost to our nation will be greater than providing
them and education.
e.
Dissent: Can’t be said that law is irrational.
4.
Other Types of Discrimination that Receive Ration Basis Review
a.
Age Classifications
b.
Wealth Discrimination
c.
Sexual Orientation
Fundamental Rights
A.
Introduction and Analytical Framework
1.
Strict scrutiny applies when a fundamental right is being infringed upon. Don’t
care about the classification, care that some people don’t have access to
something so fundamental.
2.
If a law denies a right to everyone, the DP would be the best grounds, but if a
law denies a right to some, while allowing it to others, the discrimination
challenged under EP.
3.
Substantive v. Procedural Due Process
a.
Substantive- the govt must justify an infringement by showing that its
action is sufficiently related to an adequate justification.
b.
Procedural- when the govt takes away a person’s life, liberty, or prop it
must provide adequate procedures.
4.
Analytical Framework
a.
Is there a fundamental right?
1.
Originalism- limits rights to those stated in the text or intended
by the framers.
2.
Moderate Originalism- judiciary should implement the framers’
general intent, but not necessarily their specific views.
3.
Non-Originalism- it’s permissible for the ct to protect
fundamental rights that are not enumerated in the Const or
intended by the drafters.
b.
Is the constitutional right infringed? Is the burden sufficient enough?
c.
Is there sufficient justification for the government’s infringement of a
right? Compelling interest?
d.
Is the mean’s sufficiently related to the purpose (ends)? Is it necessary
to achieve the objective/least restrictive means?
B.
Constitutional Protection for a Right to Education
1.
See Plyler v. Doe
2.
San Antonio Independent Sch. Dist. v. Rodriguez (1973)
Con Law Outline 17
∏ brought this action on behalf of school children throughout Texas
who are members of minority groups or who are poor and reside in
school districts having a low prop tax base.
b.
Do school finance systems based upon differing prop tax rates in diff
school districts violate EP?
c.
A group is not denied a right; they just receive a lower quality of it. EP
does not require absolute equality or precisely equal advantages.
d.
∏ argued that edu is a fundamental right b/c it is necessary to practice
other fundamental rights (voting, free speech, etc.). Ct finds that it is not
fundamental b/c it is not explicitly guaranteed in the Const. and there is
no basis for finding it to be implicitly guaranteed.
e.
Ct finds that poor people are not a suspect class- none of the traditional
characteristics exist.
f.
Brennan Dissent: A right is fundamental not only if it is explicitly or
implicitly in the Const, but also if it is important in effectuating
constitutionally guaranteed rights.
3.
State Constitutional Cases
a.
Edgewood Independent Sch. Dist. v. Kirby (printed) (1989)
1.
Disparities in edu districts is challenged under the Texas Const.
which states, “…it shall be the duty of the Leg of the State to est.
and make suitable provision for the support and maintenance of
an efficient system of public free schools.”
2.
There is a fundamental right to edu in Texas. Efficient means
causing effects, producing results, actively operative, not inactive,
slack or incapable, characterized by energetic and useful activity.
3.
Ct says it’s unconst., but it’s up to the Leg. on how to fix it.
b.
Serrano v. Priest (printed) (1976)
1.
Disparities in edu overturned under Calif Const. guaranteeing EP.
2.
Ct interprets Calif Const. to ensure more EP than the Fed Const.
Constitutional Protection for Family Autonomy
1.
The Constitutional Right to Marry
a.
Loving v. Virginia (1967)
1.
Virginia law prohibited white people from marrying outside of
their race.
2.
In addition to EP analysis the ct applies a DP analysis that says
that marriage is a fundamental right entitled to strict scrutiny.
3.
Law burdens marriage by limiting choice.
4.
The 14th Amend requires that the freedom of choice to marry not
be restricted by invidious racial discriminations. What about
non-invidious discrimination, like requiring permission to marry
for those under 18?
b.
Zablocki v. Redhail (1978)
1.
Wisconsin statute required that any resident having minor issue
not in his custody and which he is under an obligation to support
by any ct order or judgment get a ct order before he could marry.
2.
When a statutory classification significantly interferes w/ the
exercise of a fundamental right, such as the rt to marry, it must
pass strict scrutiny.
a.
C.
Con Law Outline 18
3.
V.
Two interests are asserted: (1) permission-to-marry proceedings
furnish an opportunity to counsel the applicant as to the necessity
of fulfilling child support, and (2) welfare of the child is
protected.
4.
These interests unnecessarily impinge on the rt to marry b/c it
merely prevents applicant from getting married w/o gaining
anything for the child and the state already has other means for
exacting compliance w/ support obligations.
2.
Protection for Sexual Orientation
a.
Bowers v. Hardwick
1.
Georgia statute made sodomy illegal and two men were arrested
under it.
2.
Is there a fundamental right to privacy that extends to sexual
intercourse b/w homosexuals? No.
b.
Lawrence v. Texas (2003)
1.
Texas statute made sodomy b/w same sex partners illegal.
2.
Not decided on EP (gender discrimination), but DP right to
privacy. The Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life of
the individual.
3.
O’Connor Concurs: She was in the Bowers court, so she must
distinguish. She says she would decide the case on EP b/c the
law singles out parties based on gender. Laws can’t differ as to
hetero and homosexuals.
c.
Goodridge v. Dept. of Public Health (2003)
1.
Struck down a law that prohibited same-sex marriage as against
the Mass. Const.
2.
Ct proceeds as if there is a right to marriage. Ct says there are
DP and EP issues, but doesn’t decide on which one to decide on.
3.
Ct states that the marriage ban does not even meet the rational
basis test.
4.
The right to marry means little if it does not include the right to
marry the person of one’s choice, subject to appropriate gov’t
restrictions in the interests of public health, safety and welfare
(from Perez and Loving).
5.
Concurrence: this is gender discrimination - if I was a man I
could marry Martha.
6.
Dissent: anyone can get married, although not to anyone you
want.
7.
Cordy Dissent: you are changing the definition of marriage.
8.
Differs from Loving where the purpose was white supremacy.
There is no invidious purpose on gender in this case.
The First Amendment: Freedom of Expression
A.
Introduction: Speech as a Fundamental Right
1.
1.
1st Amend.: “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Govt for a redress of grievances.”
2.
Despite the use of “shall” it is not absolute.
Con Law Outline 19
There are times when conduct can be “speech,” such as wearing an arm band to
graduation to protest a war.
4.
Impossible to go back to a strictly originalist approach to the 1st Amend. What
the forefathers did does not tell us much. Seditious- encouraging or enticing
someone to overthrow the govt.
5.
Why Free Speech is a Fundamental Right:
a.
Self-Governance: crucial in a democracy.
b.
Discovering Truth: truth is most likely to emerge from the class of ideas.
-“Marketplace of Ideas” is criticized that those w/ money control the
marketplace. Clash of free speech and equality.
c.
Advancing Autonomy: “to engage voluntarily in a speech act is to
engage in self-definition of expression”
-Rather than a means to an ends, it is of itself “self-expression” and
integral to a free society.
d.
Promoting Tolerance: tolerance is a basic value in our society and
protecting unpopular or distasteful speech is itself an act of tolerance.
Methodology
1.
Content-Based v. Content-Neutral
a.
The govt cannot regulate speech based on its content. The govt cannot
restrict expression b/c of its message, its ideas, its subject matter, or its
content. Content-based regulations are presumptively invalid. Strict
Scrutiny is generally used for content-based restrictions, while
intermediate scrutiny is used for content-neutral laws.
b.
Turner Broadcasting System v. Fed. Communications Com. (1994)
1.
The Cable Television Consumer Protection and Competition Act
of 1992 required cable systems to devote a portion of their
channels to local broadcast television stations.
2.
∏ argued that the must-carry rule regulates cable speech in two
respects: (1) the rules reduce the number of channels over which
cable operators exercise unfettered control, and (2) they render it
more difficult for cable programmers to compete for carriage on
the limited channels remaining.
3.
Strict Scrutiny  Content v. Intermediate Scrutiny  Neutral
Burden on Speech
4.
Is this must-carry rule content neutral? Justice Kennedy states
that the rule places no burden on the content of speech. The
govt’s important interest (threat to the economic health of local
broadcasting) meets the burden on content-neutral speech. There
is no adequate alternative available.
5.
O’Connor Concur in part and Dissent in part: The rule favors
local broadcasters over cable programmers. The statute is not
narrowly tailored to serve a substantial interest in preventing
anticompetitive conduct.
c.
Boos v. Barry (1988)
1.
D.C. code prohibits the display of a sign w/in 500 ft. of a foreign
embassy if the sign brings such foreign govt. into “public
disrepute.”
3.
B.
Con Law Outline 20
2.
2.
Govt. contended that the statute was not content based b/c the
govt. was not itself selecting b/w viewpoints; the permissible
message on a picket sign is determined solely by the policies of a
foreign govt.
3.
The govt. has determined that an entire category of speech, signs
critical of foreign govts is not permitted. Because this regulates
speech due to its potential primary impact, we conclude it must
be considered content-based.
4.
Strict Scrutiny: protecting the dignity of foreign diplomatic
personnel is not a compelling governmental interest.
5.
Purpose of the law: statute aimed at the ideas- the affect of the
communication, which leads toward content-based.
6.
Didn’t bring up issues of national security.
d.
Simon & Schuster v. N.Y. State crime Victims Board (1991)
1.
N.Y. passed a restriction that would take proceeds from criminals
who wrote about their crimes (inspired by Son of Sam).
2.
This was a content specific restriction that required strict scrutiny.
Ct says that there is a compelling govt interest to protect victims
and not allow criminals to profit from their crimes, but that it is
not narrowly tailored.
3.
This law is overinclusive and some stuff will never get written,
such as some of the works by Martin Luther King, Jr., St.
Augustine, Thoreau, Jesse Jackson, and Malcolm X.
e.
City of Renton v. Playtime Theatres, Inc. (1986)
1.
Adult theatres could not be set up w/in 1,000 ft. of certain public
and private facilities. Argued that this limits free speech.
2.
Is it content-neutral? City argued that it was “time, place, and
manner” restriction. The business being restricted are those
defined by their content.
3.
Ct finds that this is not content-based b/c purpose of the
ordinance was to prevent the secondary effects of the blight
associated w/ adult theaters, not the content of the films.
4.
Dissent: Limitations on the location of a movie theater are based
exclusively on the content of the films shown there.
5.
Ct seems to see speech that verges on obscenity as contentneutral.
f.
U.S. v. American Library Assoc., Inc. (2003)
1.
The Children’s Internet Protection Act (CIPA) required libraries
to install software to block adult images in order to receive
federal funding.
2.
Overinclusive- often blocks non-obscene/pornographic material.
Majority points out that patron can get the site unblocked.
3.
This is an inherently content sensitive situation b/c libraries
naturally have to make decision on what books to have. Ct
doesn’t want to apply strict scrutiny to this type of action (not a
public form). ALA and dissent make the argument that the
Internet is like a public form where all the info is already there
and govt is choosing what to remove.
Prior Restraint
Con Law Outline 21
a.
b.
c.
d.
e.
Prior Restraint is an administrative system or a judicial order (i.e.
injunction that you can’t march- not just violation of a law, but also in
contempt of ct.) that prevents speech from occurring. Presumptively
unconst.
Collateral Bar Rule- a person violating an unconst. law may not be
punished, but a person violating an unconst. prior restraint generally may
be punished. A ct order must be obeyed until it’s set aside, and persons
subject to the order who disobey it may not defend against the ensuing
charge of criminal contempt on the ground that the order was erroneous.
Near v. State of Minn. (1931)
1.
Minn. law does not allow publication of “malicious, scandalous
and defamatory” periodicals. Law allows for an injunction
against such publications.
2.
Prior restraint on the rt to publish would destroy freedom of the
press (truth is not a requirement). A person can publish anything
so long as he is prepared to respond in damages for that which is
improper, mischievous, or illegal.
3.
Prior restraint will only be tolerated in exceptional circumstances,
such as treats to national security or the incitement to acts of
violence or overthrow by force of an orderly govt.
NY Times v. U.S. (1971)
1.
The Times gets a hold of classified military documents regarding
the Vietnam War.
2.
Any system of prior restraint of expression comes to this Ct
bearing a heavy presumption against its constitutional validity.
3.
6-3 let the articles be published and suit can be brought afterward.
4.
Black and Douglas: History and lang of the 1st Amend support
the view that the press must be left free to publish news,
whatever the source w/o censorship.
5.
Brennan: Only allowed if proof of imperiling safety.
6.
Stewart and White: Exec. Govt. should not have all the power to
decide what info. can be known.
7.
Dissent of Harlan and Blackmun: Justices can’t even read the
papers in the short time, how can they make a decision.
Nebraska Press Assoc. v. Stuart (1976)
1.
Attorneys in a murder trial request a gag order, so that the jury
pool is not tainted. The trial ct restricted the press in 5 areas.
2.
Compelling state interest is the guarantee of a fair trial (6th
Amend.).
3.
Prior restraint on freedom of the press may be used only where
less inhibiting measures to protect the rt to a fair trial are
unavailable. SC says that while this may influence the jury pool,
there were other things that could be done to ensure an impartial
jury (least restrictive):
a.
Change venue.
b.
Postponement of trial to let public attention subside.
c.
Screen out those w/ fixed opinions.
d.
Clear instructions.
Con Law Outline 22
Prior restraint probably won’t work anyway b/c in such a small
town rumors will spread.
5.
Test: Nothing else works and this will work. Nothing has
actually passed this test.
f.
Alexander v. U.S. (1993)
1.
A porn dealer was convicted under a RICO law and obscenity.
All of his merchandise related to the RICO crime (obscene and
non-obscene- part of the enterprise) was confiscated and
destroyed. Alexander claims this is a violation of Free Speech.
2.
This is not a prior restraint, but a subsequent punishment (did not
forbid expression before it occurred). RICO is blind to the
content. Nothing says that he can’t sell porn in the future, just
not any related to this enterprise.
3.
These laws have been challenged on Due Process and Cruel and
Unusual Punishment.
Unprotected and Less Protected Speech
1.
Expressive Conduct
a.
Act as speech: (1) intent to convey a specific message, and (2) there is a
substantial likelihood that the message would be understood by those
who view it.
b.
U.S. v. O’Brien (1968)
1.
O’Brien burnt his draft card in a demonstration against the
Vietnam War. He was arrested in violation of a law prohibiting
the destruction of draft cards.
2.
Important govt interest:
a.
Proof of registering for the draft.
b.
Certificates facilitate communication b/w registrants and
local boards.
c.
Continual reminders that the registrant must notify his
local board of any change of address, etc.
d.
To prevent it from being used for deceptive purposes.
3.
Must determine whether the attempted regulation of the nonspeech element also impermissibly inhibits the speech aspect. An
incidental restriction of speech can be justified where the govt
can show a substantial interest in furthering a const power which
is not directed at the suppression of speech.
4.
Ct found that the statute necessary and proper to carry out a vital
govt interest.
c.
Texas v. Johnson (1989)
1.
Johnson was arrested after burning a U.S. flag while at a political
protest against the Reagan administration’s policies on nuclear
war, under a Texas law.
2.
Expressive Conduct? Yes. Is there a compelling state interest?
No. There was no public unrest. Not justified as protecting the
integrity of the flag.
3.
Dissent: The flag is a unique symbol of our national heritage and
deserves special protection. Johnson’s acts had a tendency to
incite a breach of the peace.
d.
Buckley v. Valeo (1976)
4.
C.
Con Law Outline 23
1.
2.
Campaign contribution limitations were challenged as an unconst
violation of their 1st Amend rights of freedom of expression and
association.
2.
A limitation on contribution entails only a marginal restriction on
the contributor’s ability to engage in free communication, but a
restriction on the amount of money a person or group can spend
on political communication reduces the quantity of expression,
which cannot be upheld.
3.
Reporting and disclosure requirements are upheld by the
compelling govt interest in deterring corruption.
Incitement of Illegal Activity
a.
Clear and Present Danger Test
1.
Schenck v. U.S. (1919)
a.
During a time of war, Schenck mailed circulars to draftees
to influence them to obstruct the carrying out of the draft.
b.
The question is whether the words are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the
substantive evils that Congress has a right to prevent.
c.
It is a question of proximity and degrees. During war,
things that could be said during peaceful times may be
such a hindrance to the war effort that they will not be
permitted.
2.
Frohwerk v. U.S. (1919)
a.
Frohwerk published a paper that was critical of the U.S.
involvement in WWI in violation of the Espionage Act.
b.
His conviction was upheld b/c the ct was unable to
determine the desired result of various articles or if it
would influence masses of people.
3.
Abrams v. U.S. (1919)
a.
During WWI, the U.S. sent forces to Russia following the
overthrow of the Czarist govt as part of an operation
against Germany. Russian immigrants in the U.S.
circulated literature advocating a general strike in
ammunition plants to hinder U.S. effort. The immigrants
were charged under the Espionage Act for inciting actions
that hindered the U.S. war effort.
b.
Limited Speech:
1.
Danger  seriousness (clear and present)
2.
Imminent
3.
Incitement
4.
Intent  action v. advocating
c.
The U.S. may restrict speech that has the intended effect
of hindering the U.S. in a war effort by means of riots and
sedition.
d.
Holmes Dissent: Seems to say that these ideas are so
ridiculous that there is no need to restrict it.
b.
Reasonableness Approach
1.
Gitlow v. NY (1925)
Con Law Outline 24
a.
3.
Gitlow was convicted under a NY act for printing articles
that advocated the accomplishment of a Communist
revolution.
b.
Under its police powers, a state may forbid speech if it
has a tendency to result in action that’s dangerous to
public security, even though it presents no “clear and
present danger.”
c.
Test: A state can reasonably restrict speech if it has a
tendency to result in action that is dangerous to public
security.
d.
Holmes Dissent: Every idea is an incitement, but there
must be imminent danger.
2.
Whitney v. Calif. (1927)
a.
Whitney was a member of radical communist party. He
was arrested at a convention in violation of the Calif.
Criminal Syndicalism Act, which held it unlawful to
organize a group that advocated unlawful acts of violence
as a means of effecting change.
b.
A state may in the exercise of its police power, punish
abuses of freedom of speech where such utterances are
inimical to public welfare as tending to incite crime,
disturb the peace, or endanger organized govt through
violent overthrow.
c.
Every presumption is to be indulged in favor of the
validity of the statute, and it may not be declared unconst.
unless it is an arbitrary or unreasonable attempt to
exercise the authority vested in the state.
c.
Risk Formula Approach: where an offense is specified by a statute in
nonspeech or nonpress terms, a conviction relying upon speech or press
as evidence of violation may be sustained only when the speech of
publication created a clear and present danger of attempting or
accomplishing the prohibited crime.
d.
Brandenburg Test: The constitutional guarantees of freedom of speech
and freedom of press do not permit a state to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action
and is likely to produce or incite such action. Ct tries to draw line b/w
advocacy (thoughts) and incitement (action).
Fighting Words/Hate Speech
a.
Chaplinsky v. New Hampshire (1942)
1.
Chaplinsky was a Jehovah’s Witness who was distributing info
on the streets and called a marshal a “God damned fascist.”
2.
By allowing certain things to be said you will illicit such a violent
response that it should not be allowed.
3.
Govt may limit such words whose very utterance inflict injury or
tend to incite immediate breach of the peace.
4.
Can limit words that the ct does not see as useful: lewd and
obscene, profane, libelous, and insulting or fighting words.
b.
Gooding v. Wilson (1972)
Con Law Outline 25
1.
4.
A Georgia statute make is illegal to use opprobrious (disgraceful)
and abusive lang.
2.
Speech can only be limited in w/in narrowly limited classes, and
this statute limits words w/ a greater reach than “fighting” words.
The statute is too broad in the words that it limits.
c.
R.A.V. v. City of St. Paul, Minn. (1992)
1.
Fighting words that are not constitutional b/c they are
impermissibly content-based. Limits a certain kind of speech
(what is obscenity?).
2.
Statute criminalizes placing a symbol or object on prop that the
person knows will arouse anger, alarm, or resentment in others on
the basis of race, color, creed, religion, or gender (cross burning).
3.
This statute was found to be unconst. b/c it only limited speech
directed toward particular groups (i.e. doesn’t discuss age or
sexual orientation).
d.
Virginia v. Black (2003)
1.
Statute prohibits cross burning w/ the intent to intimidate and
there is a presumption of intent to intimidate when a cross is
burned. ∆ must rebut this presumption.
2.
The prima facie presumption ignores all of the contextual factors
that are necessary to decide whether a particular cross burning is
intended to intimidate. The 1st Amend does not permit such a
shortcut.
Sexually Oriented Speech/Obscenity
a.
Obscenity is not protected speech. Anything that has to do w/ kids, even
if not obscene, is heavily regulated. Other sexual oriented speech may
be regulated (i.e. zoning for adult shops).
b.
Catharine MacKinnon and Andrea Dworkin
1.
Pornography is a form of sex discrimination that violates the EPC.
2.
Depiction of women in subordination can be restricted b/c 1st
Amend is countered by EPC.
c.
Roth v. U.S. (1957)
1.
Obscenity is not protected under the 1st Amend b/c it has no
socially redeeming value and it appeals to prurient interest
(lustful thoughts).
2.
Limits what people can think- prurient interests are subjective.
3.
Dissent (Douglas and Black): consistently argue that there is
nothing wrong w/ prurient interests and limiting it goes against
the 1st Amend.
d.
Paris Adult Theatre v. Slaton (1973)
1.
Two movie theaters which showed adult films to those 21 or over
were enjoined under an obscenity statute.
2.
A state can forbid the dissemination of obscene material to
consenting adults in order to preserve the quality of the
community and to prevent the possibility of resulting antisocial
behavior.
e.
Miller v. Calif. (1973)
1.
Ct attempts to define obscenity: Works which, taken as a whole,
appeal to the prurient interest in sex, which portray sexual
Con Law Outline 26
D.
conduct in a patently offensive way, and which, taken as a whole,
do not have serious literary, artistic, political, or scientific value.
2.
Guidelines:
a.
Whether “the average person, applying contemporary
community standards” would find that the work, taken as
a whole, appeals to the prurient interest
b.
Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law, and
c.
Whether the work, taken as a whole, lacks serious literary ,
artistic, political, or scientific value.
2.
Local community standards may define these terms.
5.
Commercial Speech
a.
Valentine v. Christensen (1942): Orig. there was no 1st Amend protection
to commercial speech.
b.
Vir. State Board of Pharmacy v. Vir. Citizens Consumer Council (1976)
1.
Pharmacists were prevented from advertising prescription drugs
under Virginia law.
2.
Blackmun decides that this is an infringement on the 1st Amend.
b/c this is useful info that would help consumers make economic
choices (drug prices vary from $2.59 to $6 depending on outlet).
Freedom of speech extends to the recipients as well as the source
of the speech.
3.
Commercial speech is not protected if false or deceptive and may
be limited as to time, place, and manner.
4.
Rehnquist Dissent: We will have drug co. pushing drugs through
advertising. These are advertisements- not the core of “speech.”
Only should have to pass rational basis.
c.
Commercial Speech is a separate category. What is Commercial Speech?
Product being promoted, proposes a commercial transaction, economic
motive, etc.
d.
Central Hudson Test (similar to intermediate scrutiny):
1.
Is the speech advertising illegal activities or false or deceptive
advertising which are unprotected by the 1st Amend.?
2.
Is the govt’s restriction justified by a substantial govt interest?
3.
Does the law directly advance the govt’s interest?
4.
Is the reg of speech no more extensive than necessary to achieve
the govt’s interest? –not least restrictive.
Places Available for Speech: Public, Limited & Non-Public Forms
1.
Intro
a.
Deals w/ when and where a person can get on their soapbox. Generally,
no 1st Amend rights on private prop.
b.
Public Prop:
1.
Traditional Public Form- generally have a right to speech activity
there (may be limited by T, P, & M).
2.
Limited/Designated Forms- govt has converted prop into a public
form and can’t limit who may speak, but doesn’t have to stay a
public form (i.e. classroom open to certain student groups, must
be open to all).
Con Law Outline 27
3.
VI.
Non-Public Forms- speech may be limited (i.e. military, prisons,
schools).
c.
The govt may regulate speech in public forums when:
1.
The regulation must be content neutral unless the govt can justify
a content-bases restriction by meeting strict scrutiny.
2.
It must be a reasonable time, place, or manner restriction that
serves an important govt interest and leaves open adequate
alternative places for speech.
3.
A licensing or permit system for the use of public forums must
serve an important purpose, give clear criteria to the licensing
authority that leaves almost no discretion, and provide procedural
safeguards such as requirement for prompt determination of
license request and judicial review of license denials.
d.
Police Dept. of Chicago v. Mosely (1972)
1.
Ordinance outlaws picketing near a school, except peaceful labor
picketing.
2.
Impermissible picketing is not in terms of time, place, and
manner, but in terms of subject matter (not content-neutral).
3.
The ordinance is not Const. under EP b/c there is a fundamental
1st Amend right being abridged. Strict scrutiny b/c there is 1st
Amend right and there is differential treatment based on content.
4.
If it didn’t allow any picketing, regardless of content, it would
probably be const. as TP&M.
e.
Hill et al v. Colorado (2000)
1.
Colorado statute did not allow person to “knowingly approach”
w/in 8 ft. of another person w/o their consent “for purpose of
passing a leaflet, displaying a sign, educating, counseling or
engaging in oral protest” at a health care facility.
2.
Mostly aimed at anti-abortion protesters. However, statute is
neutral on its face b/c limits any kind of protester. “Educating
and counseling” verges on content.
3.
A statute may be upheld as a valid t,p,&m reg. where it serves
govt interests that are significant and legitimate, the restrictions
are content-neutral, and the statute is narrowly tailored to serve
such interests, leaving open ample alternative channels for
communication.
4.
Ct weighs free speech interests w/ the interests of patients access
to health care facilities. Willing v. unwilling audience.
5.
Scalia Dissent: Looks at leg. intent to say that it was directed at
pro-lifers.
f.
Ward v. Rock Against Racism (1989)
1.
Bands playing in the Bandshell in Central Park were required to
use sound amplification equipment and a sound technician
provided by the City.
2.
Ct says this is a valid t,p,m restriction which need not be least
restrictive alternative, so long as the restrictions are content
neutral, narrowly tailored to serve a significant govt interest, and
it leaves open ample alternative channels for communication.
The First Amendment: Freedom of Association
Con Law Outline 28
A.
B.
C.
D.
Introduction
1.
Is there a right to association? This is not an enumerated right, but “freedom to
engage is assoc. for the advancement of beliefs and ideas is an inseparable
aspect of the ‘liberty’ assured by the DPC of the 14th Amend, which embraces
freedom of speech.”
2.
If you’re going to express yourself, part of that includes the ability to influence
others. One of the ways to amplify your message is through assoc.
3.
You have the right to assoc., unless you have specific intent to engage in
unlawful activity. Can’t assoc. to advance expression that is illegal.
Laws Prohibiting and Punishing Membership: The Ct has held that the govt may punish
membership only if it proves that a person actively affiliated w/ a group, knowing of its
illegal objectives, and w/ the specific intent to further those objectives.
Laws Requiring Disclosure of Membership
1.
NAACP v. State of Alabama, ex rel. Patterson (1958)
a.
There was a ct order requiring the NAACP to hand over their Alabama
membership list. They agreed to hand over info regarding their
employees and those who hold official positions, but not their general
membership list b/c it would lead to reprisals against the members and
hinder the rt to assoc.
b.
There would be severe predictable consequences (economic reprisal, loss
of employment, and threat of physical coercion) at this time if it was
known that you were a member of the NAACP and the govt would
effectively “chill” membership, so must meet strict scrutiny.
c.
Privacy of its members is here so related to the rt of members to assoc
freely w/ others in so doing as to come w/in the protection of the 14th
Amend. Alabama fell short of showing a controlling justification for the
deterrent effect on the free enjoyment of the rt of assoc which disclosure
of membership lists is likely to have.
2.
Campaign Finance Disclosure:
a.
An exception where the rt of assoc must be disclosed b/c there is a
compelling govt interest to prevent corruption and the public needs to
know where the candidates get alliances.
b.
Exception: where there’s reason to believe that the disclosure will chill
contributions to minor party or candidate.
Compelled Association
1.
Abood v. Detroit Board of Ed. (1977)
a.
All govt employees had to pay a union fee, regardless of whether or not
they were members.
b.
Employees must pay for administrative costs, even if they don’t support
the ideological causes. No one would pay for the union if they could just
benefit w/o paying.
c.
Employees don’t have to pay for activities that go beyond collective
bargaining activities. Hard line to draw.
d.
If you are a member, you have no choice where your dues go.
2.
Board of Regents of the U. of Wisc. v. Southworth (2000)
a.
Students do not want to pay a mandatory fee that supports student
organization, which in part engage in political or ideological speech.
b.
Wisc. argues that the extracurricular activities are essential to education.
You’re paying for your ed. and this is part of it.
Con Law Outline 29
c.
VII.
Content does not come from the University, but the students themselves.
This content neutrality allows the University to have this program.
d.
Case was remanded as to how money was distributed – majority voted
on it. This allows the majority expression to rule, instead of giving
money equally to every group.
E.
Laws Prohibiting Discrimination
1.
Deals w/ private entities that are confronted w/ a law which does not allow them
to discriminate. Groups claim that freedom of assoc. protects their right to
discriminate and exclude whoever they want. Technically as a private party,
they can do what they want, except…
2.
Roberts v. U.S. Jaycees (1984)
a.
The Jaycees were an all male organization. One of the branches began to
let women in and they were going to be dissolved by the National Org.
b.
The right to associate for expressive purposes may be limited by
regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas that cannot be achieved through means significantly
less restrictive of associational freedoms.
c.
The states compelling interest is prohibiting and correcting injustices
based on sexual discrimination. No less restrictive means was shown to
exist by the Jaycees.
d.
The purpose of the organization is to promote personal development of
young men. It is argued that by allowing women to vote in the
organization the purpose may change. Ct says that it is not against the
organization’s interests to admit women.
e.
Association Test:
1.
Continuum of private, personal assoc. (who your going to marry)
to instrumental (public) assoc.- less protection as more public.
Look at how selective the group is in who it allows in.
2.
Who is this organization? Is this going to affect their purpose?
3.
Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Group of Boston (1995)
a.
The Irish Gay group wanted to join the annual St. Patrick’s Day parade.
The private org. running the parade would not allow them to march.
b.
Private citizens organizing a parade may not be forced to include groups
whose message they don’t wish to convey. A parade is a form of
expressive speech protected by the 1st Amend.
4.
Boy Scouts of Am. v. Dale (2000)
a.
A group may constitutionally exclude an unwanted person if forced
inclusion would infringe the group’s freedom of expressive assoc. by
affecting in a significant way the group’s ability to advocate public or
private viewpoints.
b.
If a group is engaged in expressive association, it must then be
determined whether the forced inclusion would significantly affect the
group’s ability to advocate public or private viewpoints.
c.
Ct reads the Boy Scout’s oath “to keep myself physically strong,
mentally awake, and morally straight” to be contradicted by
homosexuality and would be burdened by inclusion.
First Amendment: Freedom of Religion
A.
Introduction: What is Religion?
Con Law Outline 30
1.
B.
Establishment Clause and Free Exercise Clause: Same definition for religion in
both clauses. On one side the govt protects free exercise of religion, but does
this advance religion in violation of the Establishment Clause.
2.
Religion
a.
Must be a sincerely held belief.
b.
Which plays a role which occupies the space of religion (i.e. ethics,
philosophy).
c.
Don’t need to follow established rule of a sect.
3.
U.S. v. Seeger (1965)
a.
Seeger claimed that he was conscientiously opposed to participation in
war by reason of his religion, even though he does not necessarily
believe in God.
b.
The test of belief “in relation to a Supreme Being” is whether a given
belief that is sincere and meaningful occupies a place in the life of its
possessor parallel to that filled by the orthodox belief in God of one who
clearly qualifies for the exemption.
4.
U.S. v. Ballard (1944)
a.
Ballard claims that if you send him money he can cure you w/
supernatural powers.
b.
Govt can’t question whether or not Ballard can actually heal people.
Persons may believe what they cannot prove, and do not have to prove
their religious beliefs.
c.
Ct cannot question truth of religious beliefs. Fraud will fall on the issue
of if the belief is sincere.
The Free Exercise Clause
1.
Sherbert v. Verner (1963)
a.
∏ was discharged by her employer b/c she refused to work on her
Sabbath. She was then denied unemployment benefits.
b.
Test:
1.
Is there a burden on religion?
2.
If yes, is there a compelling govt interest?
c.
Dissent: govt is basically endorsing religion by making exceptions from
laws.
2.
Employment Division, Dept. of Human Resources v. Smith (1990)
a.
Two people were fired for using peyote as part of a religious ceremony.
They were then denied unemployment benefits b/c they were discharged
for “misconduct.”
b.
Test: Is it generally applied and facially neutral? If not, must pass strict
scrutiny.
c.
Religious belief v. religious conduct. Conduct will not be afforded as
much protection as beliefs.
d.
Ct said we don’t even have to apply strict scrutiny when the burden is on
conduct and the law is neutral on its face (benign purpose- applies
generally).
e.
Didn’t overrule Sherbert, but there’s little of it left.
3.
Other cases
a.
Co-mingling of races is against our religion. Govt has a compelling
interest in promoting racial equality.
Con Law Outline 31
Amish didn’t want to pay SSI. Ct again had a compelling interest.
However, Amish did not have to follow compulsory school laws. Ct did
not find a compelling govt interest to overcome this.
c.
Lyng v. Northwest: while it may not be compelling that the govt put the
road in the particular place, it is compelling to give deference to the govt.
4.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
a.
Law prevented killing animals for non-consumption purposes. This
interfered w/ the Santeria religion
b.
Face of the statute applied to all people, however, used words like
“sacrifice.” Ct says it’s clear that the motivation of the law was to
prevent practices of the Santeria religion.
c.
Neutral and generally applicable laws need not meet a higher level of
scrutiny. However, the restrictions on these practices were b/c of
religion. While this was not clear on the face of the statute, it’s clear
from the expressed concerns of residents and council members that it
was not neutral or generally applicable. Practically the only conduct
prohibited by the ordinances is that exercised by the Santeria religion.
d.
The statutes in no way promoted the legitimate concerns of public
morals, peace, or safety.
The Establishment Clause
1.
Theories of the Establishment Clause
a.
Strict Separation- to the greatest extent possible govt and religion should
be separated.
b.
Neutrality Theory/Endorsement Test
1.
The govt must be neutral towards religion; the govt cannot favor
religion over secularism or one religion over others.
2.
Symbolic Endorsement Tests
a.
from the perspective of a hypothetical observer who is
presumed to possess a certain level of info that all citizens
might not share.
b.
If a reasonable person could perceive a govt endorsement
of religion from a private display, then the State may not
allow its prop to be used as a forum for that display.
c.
Accommodation- the ct should recognize the importance of religion in
society and accommodate its presence in govt; the govt violates the
Establishment Clause only if it literally establishes a church or coerces
religious participation.
2.
Theories Applied
a.
County of Allegheny v. Am. Civil Liberties Union (1989)
1.
The County permitted the erection of a nativity scene, a menorah,
a Christmas tree, and a sign stating “Salute Liberty” on public
prop.
2.
Religious symbols may not be on public prop if they have the
effect of promoting religion. Whether a symbol promotes
religion depends on its context. Many of symbols promote
religion as well as culture and secularism, which is permissible to
dilute any religious overtones to conclude that it is permissible
under the Est. Clause.
b.
The Pledge Cases
b.
C.
Con Law Outline 32
3.
1.
Indoctrination? –unlike money, it’s repeated every day.
2.
Is it establishing religion? Is this really religion?
c.
Govt Discrimination among Religions: well est. that govt cannot favor
one religion over others.
d.
Lemon v. Kurtzman (1971)
1.
Statutes provided financial support to nonpublic elementary
schools.
2.
Lemon Test (any one alone will violate the Est. Clause):
a.
The statute must have a secular leg. purpose.
b.
Its principal or primary effect must be one that neither
advances nor inhibits religion.
c.
The statute must not foster “an excessive govt
entanglement w/ religion.”
3.
In order to determine whether govt entanglement w/ religion is
excessive, we must examine the character and purposes of the
institutions that are benefited, the nature and aid the State
provides, and the resulting relationship b/w the govt and the
religious authority.
4.
Church-related schools are benefited by financial support of the
State, leaving the State entangled in the details of administration
of the same schools.
Govt Aid to Parochial Schools
a.
Agostini v. Felton (1997)
1.
Public school teachers may go into private school to provide
education w/o violating the Est. Clause.
2.
Justice O’Connor seems to create a new test that aid to parochial
schools is unconst. if: (1) the govt participates in indoctrinating
religion, or (2) if the govt discriminates among religions, or (3) if
there is excessive govt entanglement w/ religion.
b.
Mitchell v. Helms (2000)
1.
Split opinion where the Ct only has a plurality (4) to lend
equipment to both public and private schools.
2.
The Ct considered the following criteria: (1) whether the statute
results in govt. indoctrination; (2) whether the statute defines its
recipients by reference to religion; and (3) whether the statute
creates an excessive govt entanglement.
3.
Okay if generally providing for education and available to all
school, even if it might in some way be used for religious
purposes.
4.
O’Connor Concurrence: w/hold vote from plurality b/c it goes
too far in allowing govt aid.
5.
Souter Dissent: The Ct is going too far toward. This
entanglement goes toward establishing religion.
c.
Zelman v. Simmon-Harris (2002)
1.
In Cleveland, money was given to families to send children to
private schools (vouchers). This tuition subsidy was challenged
under the Est. Clause b/c 96% of schools the money went to were
parochial schools.
Con Law Outline 33
2.
3.
4.
The Ct (5 Justices) said that this does not violate the Est. Clause
the money does not go directly to the school, but to parents who
can make a decision to go to any private school. Kids could go to
Magnet or Community schools, or other private non-parochial
schools, or stay at regular public school and get money for tutor.
“Any aid that ultimately flows to religious institutions does so
only as a result of the genuinely independent and private choices
of aid recipients.”
Problems: forcing support of religious institutions by tax-payers.
Con Law Outline 34