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CONSTITUTIONAL LAW II OUTLINE
Differences among Standards of Review:
Rational Basis
Intermediate
Strict Scrutiny
Necessary (least
restrictive means;
narrowly tailored;
tight fit between
means and ends)
compelling
Means
rationally related
Substantially
related
Ends (government
interest)
Legitimate
Important
Standard of Review Table
Classification
Economic
Standard
Rational Basis
Social
Race
Rational Basis
Strict Scrutiny
Race (Benign Classification)
Strict Scrutiny
Alienage
Strict Scrutiny
Alienage – Public Function
Exception
National origin
Gender
Rational Basis
Illegitimacy
Intermediate
Age
Rational Basis
Mental Disability
Rational Basis (with bite)
Wealth
Rational Basis
Strict Scrutiny
Intermediate
1
Cases to Cite
Williamson v. Lee
Optical; New Orleans v.
Dukes, 427 U.S. 297
(1976)
Korematsu v. United
States, 323 U.S. 214
(1944); Loving v.
Virginia, 388 U.S. 1
(1967)
Adarand Constructors,
Inc. v. Pena, 515 U.S.
200 (1995)
Graham v. Richardson,
403 U.S. 365 (1971)
Sugerman v. Dougall,
413 U.S. 634 (1973)
Craig v. Boren, 429
U.S. 190 (1976)
Clark v. Jeter, 486 U.S.
456 (1988)
Massachusetts Bd. of
Retirement v. Murgia,
427 U.S. 307 (1976)
Cleburne v. Cleburne
Living Center, 473 U.S.
432 (1985)
San Antonio
Independent School
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Sexual Orientation
Rational Basis (with bite)
Dist. v. Rodriguez, 411
U.S. 1 (1973)
Romer v. Evans, 517
U.S. 620 (1996)
Substantive Due Process – Non-Economic Rights
Lochner died because the freedom to contract lacked a textual basis in the constitution.
Substantive Due Process
Source: natural law theory, etc.
Life, liberty and property
Procedural Due Process
Source: 5th & 14th amendments
Fair notice and the right to a hearing
Case
Meyer v. Nebraska, 262 U.S. 390 (1923)
Pierce v. Society of Sisters, 268 U.S. 510
(1925)
Skinner v. Oklahoma, 316 U.S. 535 (1942)
Analysis
Substantive Due Process
Substantive Due Process
Equal Protection
Substantive Due Process is used to protect the following rights:
 Educational choices (Meyer, Pierce)
 Contraception (Griswold – for married couples, Eisenstadt – extended Griswold
to individuals)
 Abortion (Roe v. Wade)
 Family Relationships (Marriage, Parenting) (Loving, Zablocki, Troxel v.
Granville)
 Refusing unwanted medical care (Cruzan)
Substantive Due Process does not create the following rights:
 Homosexual sodomy (Bowers v. Hardwick)
 Suicide (Washington v. Glucksberg)
Fundamental Rights – when a court finds a fundamental right, it applies strict scrutiny
analysis.
Meyer v. Nebraska, 262 U.S. 390 (1923) - Court overturned conviction of a teacher who
taught German, striking down a state law prohibiting the teaching of foreign languages to
young children. Court held that “liberty” included the right to acquire knowledge. It is a
privilege “essential to the orderly pursuit of happiness by free men.” The law interfered
with the calling of teachers, right of students to acquire knowledge, and right of parents
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to control their children’s education. The law lacked “adequate justification” for such
restraints on liberty. Rational basis test.
Importance: The court finds substantive liberty for an individual right. It goes far afield
of Meyer’s rights to the rights of students, right to marry, right to establish a home, etc.
Lochner segues from economic rights to non-economic rights.
Pierce v. Society of Sisters, 268 U.S. 510 (1925) - Court struck down Oregon law
requiring students to attend public schools. Similar language to Meyer about right of
parents to control education. No justification for state imposing these restraints on
education. The child is not a mere creature of the state. Rational basis test.
How Meyer and Pierce are used:
Parents who home school, send their children to unaccredited schools or want to exempt
their children from some medical programs. However, these cases were decided on
rational basis analysis, so they don’t always get the parents their desired result. They
have never been overruled. Distinguish from Lee Optical (case that overruled Lochner)
because this involves a non-economic right – the right of parents to raise their children as
they see fit.
Skinner v. Oklahoma, 316 U.S. 535 (1942) - Oklahoma had law requiring sterilization
after three convictions for a felony involving moral turpitude (except embezzlement).
Court avoided substantive due process and instead used equal protection clause to uphold
a non-enumerated “fundamental liberty.” Equal protection was used because it treated
different kinds of felons differently. While the state can normally exercise its police
powers to create classifications among criminals, here such classifications led to a
permanent disability of a basic civil right. Court makes procreation a fundamental right.
Strict scrutiny test is used because there is a fundamental right.
Importance: For many years after what seemed to be the demise of substantive due
process, Skinner seemed to be the one case that could be called a substantive due process
decision. The court combined due process and equal protection doctrine to create what is
called the “fundamental rights strain of due process analysis.” There was a constitutional
violation because the statute discriminated with respect to a fundamental right. It also
required unequal treatment of similarly situated criminals. The fundamental right of
sexual privacy can be traced to this case.
Griswold v. Connecticut, 381 U.S. 479 (1965) - Connecticut law banning the use of
contraception, even among married couples. Court holds that rights upheld in Meyer and
Pierce come from the 1st amendment. They say this is not a Lochner case. There is a
fundamental right to privacy in the marital relationship.
Douglas majority opinion - The specific guarantees of the Bill of Rights have penumbras
- emanations from guarantees that give substance to the enumerated rights. Penumbras
create zones of privacy and repose. In Meyer and Pierce, the court found, in essence, that
the right to be taught or teach is a penumbra of the first amendment.
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The present case involves the right to privacy created by several constitutional guarantees
(court doesn’t specify which ones). The right to marital privacy is so fundamental that
any law undermining it is repulsive.
Goldberg concurrence - The 9th amendment lends support to the view that the liberty
protected by the 5th and 14th amendments is not restricted to rights specifically
enumerated in the first eight amendments. In order to determine which rights are
fundamental, look to the traditions and collective conscience of the people - common
shared values. Protection of marital privacy is clearly fundamental. A showing of
rationality isn’t enough to uphold a law implicating fundamental rights. State contends
that the law is designed to prevent adultery. Court holds that there are legislative means
of pursuing that goal that aren’t so sweeping. This is strict scrutiny language.
Harlan concurrence - The proper inquiry is into whether the statute infringes the 14th
amendment Due Process clause because it violates basic values “implicit in the concept
of ordered liberty” (Palko). The Due Process clause does not require the Bill of Rights to
give it weight; it has its own weight. Harlan’s dissent in Poe v. Ullman states that “the
full scope of the liberty guaranteed by the Due Process Clause cannot be found in or
limited by the precise terms of the specific guarantees elsewhere provided in the
Constitution.” Liberty “is a rational continuum which, broadly speaking, includes a
freedom from all substantial arbitrary impositions and purposeless restraints...and certain
interests require particularly careful scrutiny of the state needs asserted to justify their
abridgement.”
Eisenstadt v. Baird, 405 U.S. 438 (1972) – extended Griswold to individual right to
contraception.
Roe v. Wade, 410 U.S. 113 (1973)
1st Trimester
No state regulations
2nd Trimester
State regulation for health
of mother
3rd Trimester
State regulation for
potential life of fetus
Blackmun opinion – this case involves a liberty/privacy interest. Strict scrutiny analysis.
The compelling governmental interest varies over the term of the pregnancy, which is
why he used a trimester approach. There is a revival of substantive due process, and
leaves open how far it may go. It also extends Griswold.
State regulations of abortion after Roe v. Wade - usually struck down because the court’s
found they were not reasonably designed to further the state interest in protecting
women’s health. Exceptions: 1) restrictions on minors and, 2) public funding.
States tried to implement:
 Spousal consent ( no good - Planned Parenthood v. Casey)
 One parent consent for unemancipated minors
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



Two parent consent for unemancipated minors
Public funding – there is a liberty interest in abortion, but no government
obligation to finance that right (Maher v. Roe; Harris v. McCrae)
Regulation of practices
Waiting periods (OK- Planned Parenthood v. Casey)
Parental Consent - Parental consent requirements are unconstitutional only if they
unduly burden the right to seek an abortion. As long as there is a judicial bypass option
to parental consent, a parental consent law will stand.
Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti I) & Bellotti v. Baird, 433 U.S. 622
(1979) (Bellotti II) - Parental veto is prohibited. A law permitting a mature minor to
obtain an order permitting the abortion without parental consultation is OK – judicial
bypass. There is a presumption of incompetency that can be rebutted in court.
Public Funding - there is a liberty interest in abortion, but no government obligation to
finance that right
Maher v. Roe, 432 U.S. 464 (1977) - court allowed state to grant Medicare benefits for
childbirth, but not for medically unnecessary abortion. Used rational basis review
because it did not impair the fundamental right to an abortion. Law did not burden access
to abortions. Women were in the same position before and after the legislation.
Harris v. McRae, 448 U.S. 297 (1980) - rejected challenge to Hyde amendment, which
blocked federal funds for even most medically necessary abortions. The existence of a
constitutional right does not create a government obligation to provide funds to make
sure that everyone can exercise that right. The government did not create the obstacle of
indigence, and does not have to pay for citizens to exercise fundamental liberties.
Rust v. Sullivan, 500 U.S. 173 (1991) - allowed restrictions on abortion counseling by
any program receiving federal family planning funds. Court rejected 5th amendment due
process argument. 5th amendment confers no affirmative right to governmental aid to
exercise a right with which the government may not interfere.
Regulation of practices – a regulation is unconstitutional if it places “a significant
obstacle in the path of a woman seeking an abortion.”.
Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (Akron I) – court
invalidated a requirement that abortions after the first trimester be performed in a
hospital, rather than in less expensive outpatient facilities. Also struck down a 24 hour
waiting period because it increases cost, and is thus unduly burdensome. Overturned in
Planned Parenthood v. Casey.
Spousal Consent – Spousal notification laws are unconstitutional in large part because
there are concerns about abusive spouses
Waiting Periods – acceptable if they don’t create an undue burden
Planned Parenthood of Southeastern Pa. V. Casey, 505 U.S. 833 (1992)
Rule: If the purpose of the law is to place a substantial obstacle in the way of a woman
seeking abortion, before viability, there is an undue burden, and strict scrutiny is applied.
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Provision
Informed Consent
24 hour waiting period after information on procedure
Abortionist must be physician
Parental Consent, with judicial bypass option
Facility reporting requirement
Spousal notification
Ruling
OK
OK
OK
OK
OK, if used for statistical
purposes
NO
The state has an interest in fetus and mother all the way through the pregnancy.
Before viability, the state cannot set up undue burdens.
After viability, the state has a right to regulate.
Replaces Roe trimester test with undue burden test. If there is an undue burden, strict
scrutiny test is used.
State regulation of abortion after viability requires exception for preservation of life or
health of the woman.
Stenberg v. Carhart, 530 U.S. 914 (2000) –Nebraska law banning partial birth abortion,
with no exception to preserve the mother’s health. The law was overturned because
Casey requires exceptions for preservation of the life or health of the mother. The law
was overturned because of the mother’s health exception.
FAMILY RELATIONSHIPS
1. There is a fundamental right to marry - found in equal protection (Loving,
Zablocki)
2. Government cannot place intrusive regulations on families – family right found
in substantive due process, through specific references to the history and
traditions of American life (Moore)
There is a fundamental right to marry.
Loving v. Virginia, 388 U.S. 1 (1967) - struck down Virginia law banning interracial
marriage. Case was decided primarily on equal protection grounds, but substantive due
process also played a role. “The freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of happiness by free men.” Such a
right resides with the individual and state cannot infringe it.
Zablocki v. Redhail, 434 U.S. 374 (1978) - struck down a Wisconsin law requiring
parents of children of whom he doesn’t have custody and whom he is required to support,
to obtain court permission before marrying. Court decided the case upon fundamental
rights-equal protection analysis. Marshall wrote that the right to marry was fundamental
and heightened scrutiny analysis applied. In explaining why it was a fundamental right,
he cited Loving and Griswold; it is part of the right to privacy implicit in the Due Process
clause. He noted that reasonable regulations on marriage that do not create significant
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obstacles would be subject to rational basis scrutiny. Purpose of law was to prevent
children becoming wards of the state. There should have been a tighter fit between the
means and the end.
Turner v. Safely, 482 U.S. 78 (1987) - extended Zablocki to right of inmates to marry
without permission of prison authorities. Reasoning was that it is a fundamental right
that exists even in prison. Also held that it even failed on reasonable relationship
grounds, as it had nothing to do with security or rehabilitation matters. Rational basis
test.
**** Moore v. East Cleveland, 431 U.S. 494 (1977) - invalidated zoning ordinance
limiting occupants of a dwelling house to a narrowly defined family. P was a
grandmother who had two grandsons who were cousins living with her. City argued
constitutional right to live together only extends to nuclear family.
Powell plurality opinion held that this was a substantive due process matter as it related
to an intrusive regulation of the family and deserved heightened scrutiny. Reasoning
focused on history, tradition and the basic values of our society.
City interests (overcrowding, traffic/parking) were legitimate, but the regulation has a
tenuous relationship to their solution. Held that Meyer and Pierce covered extended
family relationships as well. He also discussed the history of extended family
households. Brennan and Marshall said that the statute reflected “cultural myopia” and
was insensitive to the economic and emotional needs of many. They noted that extended
family households were especially familiar among blacks.
Belle Terre v. Boraas, 416 U.S. 1 (1974) - Court found no privacy rights in a zoning
regulation barring unrelated groups from a village. Douglas opinion found it was social
and economic regulation, and merited deferential consideration.
Parenting is a fundamental right, deserving of strict scrutiny.
Troxel v. Granville, 530 U.S. 57 (2000) - a court order granting a grandparent visitation
rights violates the mother’s substantive due process right. O’Connor did not define the
scope of this right but found that the court order was unconstitutional because it did not
accord proper weight to the mother’s decision. Court erred in making grandparents’ and
mother’s rights equal.
References to history and tradition have to be as specific as possible
Michael H. v. Gerald D., 491 U.S. 100 (1989) - Court upheld California law that
presumed that a child born to a wife is legitimately the child of that marriage. California
courts rejected Michael H.’s contention that he was father, even though tests showed 98%
likelihood that he was. Scalia plurality opinion analyzed the case in substantive, rather
than procedural, due process terms, and held that for due process protection, a liberty
must be not only fundamental, but also be an interest traditionally protected by our
society. He holds that the relationship of the married couple and the child has been
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traditionally protected against these kinds of claims. References to tradition must be as
specific as possible.
SEXUALITY
Homosexuality: Private homosexual sodomy is not a right protected by the Due Process
clause, and states may constitutionally prohibit such conduct.
Bowers v. Hardwick, 478 U.S. 186 (1986) - Respondent was charged with sodomy in
Georgia. He challenged the constitutionality of the statute. The court upheld the law.
White, writing for majority, says that the privacy cases that we have read so far have no
bearing on the issue of whether homosexuals have a right to engage in sodomy. In
searching for a definition of “fundamental rights” protected by the Constitution, he looks
to Palko (liberties “ implicit in the concept of ordered liberty”) and Moore (liberties
“deeply rooted in this Nation’s history and tradition”). Neither of these formulations
would protect a right to consensual sodomy. He discusses the long history of
criminalization of sodomy. He also rejects notion that such conduct should be out of
reach of the law when conducted in the privacy of the home. He puts forward a parade of
horribles argument, where bars to incest and adultery would thereafter fall.
The court distinguishes this case from those involving family, marriage and procreation.
DEATH
1. There is a liberty interest in refusing medical care
2. That liberty interest is conditioned by the state’s interest in requiring clear and
convincing evidence of an incompetent’s desire (Cruzan)
3. This liberty interest does not extend to a right to suicide (Washington v.
Glucksberg)
There is a constitutionally protected liberty interest in refusing medical care for one’s
self, but the state can require, by clear and convincing evidence, proof of an
incompetent’s desire.
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) - Supreme Court
upheld state’s ability to require family members to prove by clear and convincing
evidence that an incompetent person would desire to order the withdrawal of life
sustaining treatment. Patient was in a vegetative state because of a car accident, with
almost no chance of regaining her cognitive faculties. Parents sought to end life support.
Trial court ruled that state couldn’t interfere with patients “right to liberty.”
Rehnquist wrote that the question is whether the Constitution forbids the state from
requiring that evidence of the incompetent’s wishes be proved by clear and convincing
evidence. Whether it is constitutional depends upon the right that the state is trying to
protect, which in this instance is the protection and preservation of human life. The state
is entitled to guard against abuses in decision-making by family members. A state is
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entitled to decline to make judgments about the patient’s quality of life and assert an
unqualified interest in the protection of human life as weighed against the individual’s
constitutionally protected interest. The clear and convincing standard advances these
interests. An erroneous decision not to terminate only maintains the status quo, and can
be corrected or mitigated by the patient’s natural death or by medical advances. An
erroneous decision to terminate can’t be corrected. He also noted that there is a
constitutionally protected liberty interest in refusing medical care for one’s self.
Washington v. Glucksberg, 521 U.S. 702 (1997) - Court ruled that state prohibition on
assisted suicide does not violate the 14th amendment. Circuit court had ruled that the
Constitution encompasses a Due Process interest in controlling the time and manner of
one’s death, and the assisted suicide ban was unconstitutional as applied to terminally ill
patients who wish to kill themselves with physician-prescribed medications.
Rehnquist majority opinion - describes the long history of legal rejection of suicide and
the fate of modern legislation on physician-assisted suicide to show that generally
American society rejects it. He points out that the Court has protected the right to reject
unwanted medical care (Cruzan) but also points out that the Court has to be very careful
about expanding the range of liberties that are protected by Due Process, because such
declarations circumvent the legislature.
Substantive Due Process analysis requires:
1. Protection for fundamental rights and liberties deeply rooted in the Nation's history
and traditions (Moore).
2. A “careful description” of the asserted fundamental liberty interest.
Question is whether liberty interest includes a right to suicide with a right to assistance in
doing so. Tradition and history say no. Court distinguishes Cruzan by saying that
Cruzan decision was based in part on traditional notion that being subjected to unwanted
medical care was submission to a battery. Right to assisted suicide has never enjoyed
legal protection.
Constitution also requires a rational relationship between the law and legitimate state
interest. That is present here:
1. Unqualified interest in the preservation of human life.
2. Interest in protecting the integrity and ethics of the medical profession.
3. Interest in protecting vulnerable groups from abuse, neglect and mistakes.
4. State may fear that this will lead towards voluntary and involuntary euthanasia.
Rational Basis test.
EQUAL PROTECTION
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Government should treat similarly situated persons evenhandedly, by balancing liberty
and equality.
Suspect Classification – presumption of unconstitutionality. Government bears burden of
proving statute is constitutional.
Areas appropriate for strict scrutiny:
 Presence of “suspect” classification - mainly race classifications, but maybe
wealth and illegitimacy also
 Impact on fundamental rights or interests - voting, criminal appeals, right to
interstate travel. Advocates wanted to expand this list.
New Orleans v. Dukes, 427 U.S. 297 (1976) - equal protection challenge to 1972 New
Orleans law that barred pushcart vendors, but grandfathered in ones who had been there
for eight years. Vendor who had been there for two years brought suit. Court applied
great deference to the statute. They noted that it was strictly an economic regulation
aimed at tourism in the French Quarter, and held that “rational distinctions in economic
regulations can be made with substantially less than mathematical exactitude.”
Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307 (1976) – Court rejected equal
protection challenge to Massachusetts law requiring police to retire at 50. Because it’s an
age classification, rational basis review is applied.
SUSPECT CLASSIFICATIONS – RACE
Any classification based on race, invidious or benign, is suspect, and must be subject to
strict scrutiny.
Strauder v. West Virginia, 100 U.S. 303 (1880) - The aim of 14th amendment was to
protect against discrimination on the basis of race or color. Barring blacks from juries
injures them, marking them as inferior. This is exactly what equal protection is meant to
prevent. Court stated that a ban on white jurors or Irish jurors would also be
unconstitutional. The 14th amendment would allow disqualifications based on gender,
citizenship, land ownership, certain ages, etc.
Korematsu v. United States, 323 U.S. 214 (1944) - all laws curtailing the rights of a
single racial group are suspect, which means that they must be subject to strict scrutiny.
They are not per se unconstitutional. Pressing public necessity may render such a law
constitutional; racial animosity may not.
Loving v. Virginia, 388 U.S. 1 (1967) - Challenge to Virginia criminal ban on interracial
marriage. The statute rests on nothing other than racial distinctions. It proscribes
generally accepted conduct if engaged in by members of different races. Racial
classifications are subject to most rigid scrutiny. To be allowed, they must be necessary
to the achievement of some permissible state objective, independent of the racial
discrimination that the 14th amendment sought to eliminate. Statute also restricts the
freedom to marry that is implicit in equal protection clause.
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Palmore v. Sidoti, 466 U.S. 429 (1984) - court reversed child custody ruling for white
family placing a child with its father, after the mother married a black man. Argument
for ruling was that, despite advances in racial understanding, the child would suffer from
social stigmatization. Chief Justice Burger wrote that the decision had been based
entirely on race because the outcome would have been different if the stepfather were
white. The goal of protecting the best interests of the child is certainly a substantial
governmental interest. Although there is a risk that the child will be subjected to bias and
social harm, those considerations are not sufficient to justify the removal of a young child
from the custody of it natural mother. “The Constitution cannot control such prejudices
but neither can it tolerate them.”
Plessy v. Ferguson, 163 U.S. 537 (1896) – Separate, but equal doctrine. Overruled.
Justice Harlan dissent - the laws were designed to exclude blacks from white cars, not the
other way around. The Constitution is colorblind and regrets that the court is allowing a
state to regulate the enjoyment of civil rights on the basis of race. This decision defeats
the purpose of the post-Civil War amendments. “Our constitution is colorblind, and
neither knows nor tolerates classes among citizens” - also used by opponents of
affirmative action. “The destinies of the races are indissolubly linked together…”
Separate is unequal; segregation is a denial of equal protection.
Brown v. Board of Education (Brown I), 347 U.S. 483 (1954) - Black students challenged
statutes barring them from segregated white schools. Plessy is overruled. The court
holds that the facilities and conditions are, or are going to be, equalized, so that is not a
basis for decision. The inquiry is into the effects of segregation. Important language in
case - Education is perhaps the most important governmental function, and success in
school is essential to success in life. It must be available to all on equal terms. The
question presented is whether segregation solely on the basis on race deprives black
children of equal educational opportunities. The court holds that it does. Segregation
creates a deep feeling of inferiority that may never be undone. Segregation is a denial of
equal protection. For the remedy, court said there would be reargument - took some
breathing space.
This is the case to cite for the proposition that the equal protection provision of the 14th
amendment is implicit in the 5th amendment.
Bolling v. Sharpe, 347 U.S. 497 (1954) - school segregation case from Washington DC.
It was found unconstitutional on 5th amendment due process grounds. Court reads equal
protection provision into liberty interest of the 5th amendment. It is implicit in the 5th
amendment.
Brown v. Board of Education (Brown II), 349 U.S. 294 (1955) - this decision involved
the relief to be accorded out of Brown I. Because there are a number of variable local
situations and interests, the cases are remanded to the federal district courts to find
equitable solutions. Solutions should be based on equity; the decisions are best left at the
local level. However, defendants are ordered to make prompt good-faith efforts to
comply with Brown I. U.S. Attorney-General and six state ones made arguments.
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Carolene Products, Footnote 4 suggested times when a classification might be subject to
heightened scrutiny:
 Discrete and insular minority
 History of discrimination
 Political powerlessness
 Immutable and inalterable characteristic
 In need of protection from the majoritarian political process
Suspect Classifications – Sex
Early cases applied rational review of sex classifications
The court moves towards heightening the standard of review of sex classifications.
Reed v. Reed, 404 U.S. 71 (1971) - appellants urged court to make gender a suspect
classification. The court declined. The court invalidated the law under equal protection
while applying a rationality standard. The statute barred women from becoming
executors of estates, supposedly for the purpose of reducing probate court workload. If
the court were really applying rational basis, it would have upheld the law. It wouldn’t
have looked so closely at the legislative choice if it were. In fact, it applied heightened
scrutiny, but without announcing it.
Administrative convenience is not a legitimate governmental interest when there is a sex
classification.
Frontiero v. Richardson, 411 U.S. 677 (1973) - Court sustained an equal protection
challenge to a federal law giving male armed forces members an automatic dependency
allowance for their wives, but required females to prove that their husbands were
dependents. Brennan’s plurality opinion advocated making gender a suspect
classification, but he fell one vote short of the majority needed to do so. Government
maintained that the law was one of administrative convenience and cost saving.
Government offered no evidence to advance the argument that this position saves money.
Furthermore, a statutory scheme that draws a sharp line between the sexes solely for the
purpose of achieving administrative convenience violates equal protection. Powell
concurred in the judgment, only arguing that it was unnecessary to make sex a suspect
classification, and that the case can be decided on Reed’s test (rational basis with bite).
Sex, like race, is an immutable characteristic. This case is important because there were
four members of the court willing to apply strict scrutiny to a gender classification.
Craig v. Boren, 429 U.S. 190 (1976) - CASE THAT ESTABLISHED INTERMEDIATE
REVIEW AS THE STANDARD FOR SEX CLASSIFICATIONS - challenge to
Oklahoma law allowing sale of 3.2 beer to women over 18, but with an age of 21 for
men. Question is whether this law denies equal protection to males 18-20 years of age.
To survive constitutional challenge based on gender, law must serve important
governmental objectives and be substantially related to achievement of the objectives
(this is intermediate review). Reed is controlling.
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) - Court sustained a
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male applicant’s challenge to state policy of excluding men from MUW. He was a RN
living in the same town in the school, but was denied admission and told he would have
to apply to another coeducational school offering the program elsewhere in the state. He
was not being treated similarly to other similarly situated persons.
O’Connor, for the majority, wrote that such a law must not only satisfy intermediate
scrutiny. If the objective of the statute is to exclude or protect members of one gender
because they are presumed to suffer from an inherent handicap or to be innately inferior,
the objective itself is illegitimate, and thus per se unconstitutional. If the objective is
legitimate, then the court must find a tight fit between the means and the objective.
Very important Principles articulated in this case:
 Equal protection applies not only to women, but to men as well
 Justification must be exceedingly persuasive (not clear if she is elevating the
standard)
 Standard must not be based on archaic and stereotypic notions.
The state argued that the rule was compensatory, to make good for women who had been
disadvantaged. However, most nurses were women, so no compensatory purpose was no
needed - there has been no discrimination against women in nursing. However in
appropriate cases a compensatory purpose might be acceptable. Moreover, men could
audit the classes, but couldn’t enroll and gain a degree.
Gender-based peremptory challenges to jurors are unconstitutional, unless there is an
exceedingly persuasive justification.
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) - court held gender-based
peremptory challenges to jurors unconstitutional. Gender based classifications must have
an “exceedingly persuasive justification “ (intermediate review). Justification offered by
state was the perception that in this case, male jurors may have been more sympathetic to
the male appellant in his child custody case. In the end, an all women jury was
empanelled. The law condemns such stereotypes, so that can’t be a defense.
In opinion written by Blackmun, Court uses heightened scrutiny, and the language of
“exceedingly persuasive justification.” State action can’t be based on stereotypes of what
kind of behavior to expect from men and women.
U.S. v. Virginia, 518 U.S. 515 (1996)
Court describes standard of review for sex classifications:
 There must be an “exceedingly persuasive” justification for the differential
treatment of denial of opportunity for which relief is sought. She speaks of
skeptical scrutiny.
 There is a demanding burden of justification that lies with the state
 The state must show that the challenged classification serves important
governmental objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives.
 Justification must be genuine, not hypothesized or invented in response to
litigation
 Justification must not rely on overbroad generalizations about different talents,
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capacities or preferences of the genders
Geduldig v. Aiello, 417 U.S. 484 (1974) - Exclusion of a disability that accompanies
normal childbirth and pregnancy from California’s disability insurance system did not
constitute invidious discrimination under the equal protection clause. Stewart’s opinion
held that the classification was not based upon gender, and applied a deferential standard
of review. Unless distinctions involving pregnancy can be shown to be a pretext for
discrimination against women, just as with any other physical condition, the state is free
to include or exclude pregnancy on any rational basis. If the plan divides recipients into
two groups, pregnant and not pregnant, then benefits accrue to both genders.
Court divides population into pregnant women and everyone else. Women fall into the
latter class. State said legitimate governmental interest was fiscal integrity. Rational
basis test was applied.
In 1976 a challenge of a private employer’s disability plan was brought on the basis of a
challenge to Title VII. Exclusions of pregnancies from disability plans were held to be
constitutional, i.e. not gender discrimination. In 1978, Congress amended Title VII to
protect pregnant women from discrimination.
Gender classifications may be upheld when the classification is not invidious, but rather
reflects the fact that the genders are not similarly situated in certain circumstances.
Michael M. v. Superior Court, 450 U.S. 464 (1981) - Court upheld California statutory
rape law which punished the male, but not the female, participant in sexual intercourse
when the female was under 18 and not the male’s wife. The challenger was 17 ½ when
he had sex with a girl who was 16 ½. Rehnquist wrote for plurality that legislatures may
not make overbroad generalizations based on sex which are entirely unrelated to any
differences between men and women or which demean the ability or social status of the
affected class. But the court has upheld statutes where the gender classification was not
invidious, but rather reflects that the genders are not similarly situated in certain
circumstances. Even though the statute places a special burden on males, there is nothing
to indicate that men need special protection of the court.
Rostker v. Goldberg, 453 U.S. 57 (1981) - court rejected by 6-3 an equal protection claim
that the Selective Service Act was unconstitutional. Rehnquist for majority wrote that
this case is in the region of Congress’ control over national defense and military affairs,
where their determinations are to receive the greatest deference. The decision to register
only men came after extensive consideration. The exclusion of women was not an
accident. Because the purpose of Selective Service is to collect names in case combat
troops are needed, and because women are excluded by law from combat, Congress
decided not to register them. The exclusion of women is closely associated with
Congress’ purpose in authorizing legislation. Both sexes are not similarly situated, so
this is not invidious discrimination. He says he applies strict scrutiny, but instead applies
mere rationality. See also Korematsu for deference to military/defense rules.
Nguyen v. I.N.S., 121 S.Ct. 2053 (2001) - court upheld a law that treated non marital
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children born to one citizen and one non-citizen differently depending on which parent
was the citizen.
Under 8 U.S.C. § 1409, children with citizen mother are automatically citizens, as long as
the mother as met certain minimal residency requirements. Children with citizen fathers
must meet three requirements:
1. Establishment of paternity by clear and convincing evidence
2. Father’s written promise of financial support
3. Fulfillment before the child’s 18th birthday of formal recognition of paternity
(legitimation, or declaration of paternity under oath, or court decree of paternity).
Kennedy wrote that the distinction between mothers and fathers in the law is based on the
significant differences between relationships to the potential citizen at the time of birth,
and is substantially related to the achievement of two important governmental objectives:
1. Assuring that a parent child relationship exists. The government may choose from
among many possible methods of establishing paternity.
2. Ensuring that the child and citizen-parent have an opportunity to develop a
relationship providing a connection between child and parent, and in turn, the United
States. The child born overseas of a citizen-mother has an inevitable point of contact
with the mother. The same is not necessarily true of a citizen-father. Congress decided
not to rely on DNA because it proves only paternity, not contact during childhood.
Kennedy found an “exceedingly persuasive” fit between the means and the ends. Equal
protection does not forbid Congress to address the problem at hand in a manner specific
to each gender.
Kennedy is very deferential to Congress, probably because they have almost complete
control over immigration. He does not consider alternative, less discriminatory means of
achieving the government’s ends.
Types of Gender Classifications:
Benign - compensatory, trying to protect women, give them an advantage because of
historical discrimination
Invidious - harmful, place women at a disadvantage
Pre-Craig v Boren – rational basis review for gender classification
Kahn v. Shevin, 416 U.S. 351 (1974) - this was two years before Craig mandated
intermediate scrutiny for sex classifications. Court used deferential standard of review to
uphold state property tax exemption for widows, but not widowers. Douglas held that the
law was reasonably designed to cushion the loss for the gender that usually suffers
disproportionately from the loss of a spouse. Laws designed to remedy effects of past
discrimination against women passed muster. This law is held to be constitutional even
though it applies regardless of the wealth of the recipient of the exemption.
Benign classifications have to be carefully tailored, as they may reinforce stereotypes
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Orr v. Orr, 440 U.S. 268 (1979) - Court struck down Alabama law that authorized courts
to impose alimony obligations on husbands, but not wives. Because the law failed to
consider whether the men were more needy than women, it is not narrowly tailored to
help wives who may have suffered discriminatory effects from being married. Brennan
wrote that even “benign” classifications need to be narrowly tailored, as they may carry
risks of reinforcing stereotypes about the proper place of women.
Two concerns of the Court:
Inadequate fit between means and ends
Protective legislation is paternalistic and reinforces stereotypes
Administrative convenience is not an acceptable governmental interest to support a
gender classification
Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980) - struck down a Missouri law
that required widowers to prove actual dependence on wife’s earnings or physical or
mental inability to work to qualify for death benefits. Women didn’t have to prove
dependence. White said it discriminates against both men (because of the burden of
proving incapacity) and women (because benefits payable to her survivor were less than
for a male earner). He rejected the idea that this was a benign classification, and using
Craig standard, found that means did not substantially serve the statutory ends of
providing for needy spouses. State argued the law was needed because more women than
men are dependent on the spouse. This is an administrative convenience argument and is
not allowed.
ALIENAGE
Professor Salomone says these are very confusing cases, as are illegitimacy cases.
Court has to decide if aliens should be considered as a suspect classification, and if so,
they would have to apply strict scrutiny. Do they need the same extraordinary protection
as racial classifications? Go back to Carolene Products, Footnote 4:
 Discrete and insular minority (yes)
 History of discrimination (some for many groups)
 Political powerlessness (yes)
 Immutable and inalterable characteristic (alterable)
Court has developed bifurcated rule:
 Generally will apply strict scrutiny analysis
 Except Dougall exception - important governmental function
Graham v. Richardson, 403 U.S. 365 (1971) - court holds that it is illegal to deny welfare
benefits to aliens. Federal government occupies the field; state policy can’t override
federal policy.
The Dougall “public function” exception to alienage classifications – rational basis
review required
In re Griffiths, 413 U.S. 717 (1973) - decided along with Sugerman v. Dougall, 413 U.S.
634 (1973) - Court announced bifurcated approach to alienage classifications. Some
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heightened scrutiny for alienage classifications, but can permissibly exclude aliens from
jobs involving formulation, execution and review of public policy.
Law enforcement: rational basis review
Foley v. Connelie, 435 U.S. 291 (1978) - Court upholds bar on employment of aliens as
state troopers. They have enormous discretionary power, and are only entitled to rational
basis review when they are subject to an alienage classification. They execute policy that
has a substantial impact on the political community. They are clothed with authority to
exercise broad discretionary powers.
Educators: rational basis review
Ambach v. Norwick, 441 U.S. 68 (1979) - NY law barring aliens from becoming
permanent teachers who could be naturalized but who choose not to become citizens.
Their impact on children who are to learn the values of citizenship as well as the
authority and discretion teachers exercise entitle them only to rational basis review.
LEGITIMACY (Non-marital children)
Professor says these cases make no sense - they are all over the lot.
She skips through all the cases. Bottom line case for this area is Clark v. Jeter, 486 U.S.
456 (1988) - court reaffirms intermediate level review for illegitimacy classifications.
SUSPECT CLASSIFICATIONS – DISABILITY, AGE AND POVERTY
Cleburne v., Cleburne Living Center, 473 U.S. 432 (1985) The court describes the standard of review to apply to disability classifications.
 There is a legitimate state interest in dealing with and caring for the mentally
disabled because they are immutably different. They have a reduced ability to
cope with the world and function in it. Within that community, there is a wide
of range of disability. How they should be treated under the law is a task for
legislators, guided by professionals, and not for the judiciary. Heightened
scrutiny involves substantive judgments about legislative decisions, and when
mental retardation is the classification, the predicate for judicial oversight is
probably not present.
 Because of the wide variations in the abilities and needs of the retarded,
governmental bodies need flexibility and freedom from judicial oversight in
crafting remedial efforts. Laws intended to benefit the retarded may also
seem to harm them. For instance, federal law requires “appropriate
education” not one that is equal in every respect, as that may be beyond their
abilities.
 They are not powerless to attract legislative attention, as the legislative
response to their needs proves.
 If this large and amorphous class were deemed suspect, it would be difficult to
find a principled way of dealing with other groups that have immutable
disabilities, who themselves can‘t mandate desired legislative processes, and
who can claim some degree of prejudice from the public.
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Because mental retardation is a legitimate characteristic to consider when crafting
governmental decisions, and because governments have committed themselves to
assisting the retarded, the Court will not presume that legislative action, even when it
disadvantages the retarded, is invidious or suspect.
Age classifications get rational basis review
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) - Majority applied
rationality standards in sustaining a mandatory retirement law for uniformed state police
officers. Reasons why heightened scrutiny for age classifications was rejected (why
people over fifty are not a suspect class):
1. Those over fifty have not experienced a history of purposeful unequal treatment.
2. They have not been subjected to discrimination on the basis of stereotyped
characteristics.
3. In this case, those affected (over age 50) are not only elderly; the line is drawn at midlife.
4. Those of old age are not a “discrete and insular group.”
5. Those of old age do not need protection from the majoritarian political process.
6. It marks a stage in the life span of all those who live out a normal life span.
The legitimate state interest that the state was trying to advance was the physical
preparedness of the officers. A less intrusive way of doing this might have been to
require yearly physicals, but because the standard is rational basis, the Court does not
even have to inquire into whether this is the least discriminatory means available.
SUSPECT CLASSIFICATIONS: SEXUAL ORIENTATION
Sexual orientation classifications get rational basis with bite
Romer v. Evans, 517 U.S. 620 (1996) - The court used equal protection analysis to
invalidate a Colorado constitutional provision (Amendment 2) that prohibits all action, at
any level of government designed to protect homosexuals (orientation, conduct, practices,
relationships) as a class from discrimination.
State argument defending Amendment 2
The law puts gays and lesbians in the same
place as all other persons. All the law
does is deny homosexuals special rights.
Supreme Court Response
The law withdraws from homosexuals, but
no others, specific legal protection from
injuries caused by discrimination, and it
forbids reinstatement of the laws that it
repeals. It nullifies protections for
homosexuals in private business and bars
against discrimination at every level of
Colorado government.
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The law is intended to protect freedom of
association, in particular the liberties of
landlords or employers who have personal
or religious objections to homosexuality.
The breadth of the amendment is so far
removed from these justifications that the
court doesn’t believe that state. It is a
status-based enactment lacking a factual
context in which one could discern a
relationship to a legitimate state interest.
A state cannot deem a class of persons a
stranger to its laws.
The state wants to conserve resources to
fight discrimination against other groups.
III.
The court applies reasonableness test and find that Amendment 2 fails.
 The amendment imposes a broad and undifferentiated disability on a single named
group. It identifies people by a single trait and then denies them protection across the
board. It disqualifies a group from seeking the protection of the law, and is outside
our constitutional traditions.
 Its sheer breadth is so discontinuous with the reasons offered for it that it seems
inexplicable by anything but animus towards homosexuals. A bare desire to hurt a
group is not a legitimate governmental interest. They were isolating a group and
singling them out for unfavorable treatment; this is an impermissible motive.
DISCRIMINATORY PURPOSE & EFFECT
CASES TO CITE ARE WASHINGTON V. DAVIS AND ARLINGTON HEIGHTS
Is disproportionate discriminatory impact a violation of the equal protection clause? Title
VII of the Civil Rights Act suggests this result.
Governmental action is not unconstitutional solely because it has a racially
disproportionate impact. Same is true of sex classifications.
Unconstitutional purpose may be shown by data regarding the administration of law, not
merely by facially discriminatory language. Even a law with neutral language and
administration may be shown to be de jure discriminatory.
Yick Wo v. Hopkins, 118 U.S. 356 (1886) - San Francisco ordinance prohibited
operating a laundry in anything other than a stone or brick building, without the consent
of the Board of Supervisors. 19 out of 20 non-Chinese applicants were permitted, but
none of 200 Chinese applicants. Yick Wo had operated a laundry for years and was
refused a permit and imprisoned for operating an illegal laundry. This came to the court
as a habeas corpus proceeding. Justice Matthews found discrimination in the
administration of the law. All we have here is data that shows that the administration of
the law was extremely disproportionate in its impact.
Batson v. Kentucky, 476 U.S. 79 (1986) – equal protection forbids challenging potential
jurors solely on the basis of race. This was extended to gender in J.E.B v. Alabama.
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Proving Purposeful Discrimination: Discriminatory Intent v. Discriminatory Impact
“official action will not be held unconstitutional solely because it results in a racially
discriminatory impact.” The plaintiff must prove the existence of invidious racially
discriminatory intent or purpose.
Washington v. Davis, 426 U.S. 229 (1976) - The Court upholds the validity of a language
skills qualifying test administered to police officer applicants in the Washington DC
police department. This is a matter of a law with a neutral purpose but disproportionate
racial consequences. A higher percentage of blacks than whites failed the test. A law or
official act is not unconstitutional solely because it has a racially discriminatory impact.
A statute, otherwise neutral on its face, must not be applied so as to invidiously
discriminate on the basis of race. Systematic exclusion of members of a race is itself
such an unequal application of the law such as to show intentional discrimination.
The central holding of this case is the principle that “official action will not be held
unconstitutional solely because it results in a racially discriminatory impact.” The
plaintiff must prove the existence of invidious racially discriminatory intent or purpose.
Question was whether discriminatory intent had to be proved or was the disproportionate
impact itself was sufficient to make out a prime facie case. Under Title VII, there is a
disproportionate impact standard, but these are distinguished from equal protection cases
where the standard is intent.
When is there discriminatory intent?
 When it is express in the language that there is a racial classification
 Facially neutral, but applied in a extremely discriminatory way (Yick Wo); such a
case must be very stark
 Disparate impact in terms of results – Arlington Heights criteria
When discriminatory intent is proved, burden shifts to government to prove that even
without the intent, things would have come out the same anyway.
Court declines to extend Title VII standard to equal protection claims.
Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977) – This case
reaffirmed the Washington v. Davis principle that “official action will not be held
unconstitutional solely because it results in a racially discriminatory impact.” This case
involved a Chicago suburb that denied a request to rezone certain property from singlefamily to multiple-dwelling. A non-profit developer was trying to build low-income
housing in a largely white suburb.
How to prove the Davis requirement of invidious racially discriminatory intent or
purpose:
 Inquire into such circumstantial and direct evidence of intent as may exist.
 The impact of official action may be a helpful starting point. Sometimes, even
when the legislation appears neutral on its face, a clear pattern, unexplainable
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




except on grounds of race, appears (see Yick Wo and Gomillion). These cases are
easy, but also rare.
The historical background of the decision may be helpful, particularly if there are
a series of invidiously discriminatory actions.
The sequence of events leading up to the decision may shed some light on the
decision maker’s purposes. Here an example would be if it had been zoned for
multiple-dwelling use, but was changed to single-family when they heard of the
developer’s plans.
Departures from the normal procedural sequence might also provide evidence that
improper purposes are at play. Substantive departures may be helpful, as when
factors that are usually important to the decision maker would suggest a different
result to the one reached.
Legislative or administrative history might be important, especially to reveal
statements by decision makers, minutes of meetings, or reports. In extraordinary
circumstances, the members might be called to the stand at trial to testify
concerning the purposes of the official action.
This is not an exhaustive list of possible avenues of proper inquiry.
If there is proof of discriminatory purpose, the law would not be unconstitutional per se.
That fact merely shifts the burden of justification to the government.
The challengers failed in their burden of proving that discriminating purpose was a
motivating factor in their decision. That the decision carried a discriminatory “ultimate
effect” is not pertinent to the constitutional inquiry.
Discriminatory Purpose and Sex Discrimination
Plaintiff must show that the lawmaker intended the discriminatory result, not that it was
merely incidental to the government action, or a foreseeable consequence.
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979) – relied on Davis and
Arlington Heights to reject a sex discrimination challenge to a Massachusetts law
granting “absolute lifetime” preference to veterans for state civil service positions, even
though this would work overwhelmingly to the advantage of males.
This is the inquiry when a gender-neutral statute is challenged on the ground that its
effects upon women are disproportionately adverse to women:
1. Whether the statute is indeed neutral in the sense that it is not gender based.
2. If no, then is the adverse effect invidiously gender-discriminatory?
Feeney argued that the state should have foreseen the discriminatory impact on women
(natural and foreseeable consequences standard). Court refuses to apply this standard.
This case is unusual because the law is by design not neutral. The law overtly prefers
veterans. Unlike Davis, it does not define a job related characteristic. It confers a head
start upon a specifically described, highly deserving group.
Discriminatory purpose requires that the lawmaker set up a consequence not in spite of its
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incidental discriminatory effect, but because of it. Plaintiff must show that the lawmaker
intended the discriminatory result, not that it was merely incidental to the government
action, or a foreseeable consequence.
School Desegregation
School Desegregation after Brown I – in Brown II, the remedy was to send the cases to
the district courts for specific solutions. Most cases stayed at the local level. In first
decade after Brown, the Court ruled affirmatively against segregation only in Cooper v.
Aaron (1958)(parties who were not parties in Brown are still bound by its holding) and
Griffin v. County School Board (1960). The Civil Rights Act of 1964 blocked federal
money to racially discriminatory school districts (Title VI). Title IV allowed the
Department of Justice to sue these school districts. Title IV blocked districts in violation
of Title VI from getting funding. This had a great impact in the following years.
Good-faith efforts to desegregate are not enough; results are the only evidence that
desegregation decisions have been pure They wanted not only desegration, but
successful integration..
Green v. County School Board, 391 U.S. 430 (1968) - Unanimous decision. This was
the first time since Brown II that the Court issued a detailed opinion on the question of
remedies. This opinion, rather than focusing on the purpose and good faith of
desegregation efforts, looked at its effects. Freedom of school choice plans had become
common in the South, and had little impact on segregation. The court shifted from
making the decisional process pure to achievement of the desired result, on the theory
that achieving results was the only evidence that the decisional process had been purified.
Brennan wrote that the question is whether a racially nondiscriminatory school system
has been effectuated, not whether freedom of choice is sufficient for compliance. If there
are reasonably available alternatives that will more speedily create a unitary, nonracial
school system, then freedom of choice is unacceptable. The court was interested in the
results, not the efforts. There is an “affirmative duty” to eliminate racial discrimination
“root and branch.” p. 735. They demanded programs that would work now. No more
delays.
The district courts have extensive power to create equitable solutions to the problem of
non-integration
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)- Unanimous
decision. Desegregation does not require that every school mirror the racial makeup of
the school system. Here, a mathematical formula was a starting point towards shaping a
remedy, rather than an inflexible rule. The plan’s effectiveness is to be judged by its
results. History dictates a presumption against schools that are disproportionately
uniracial. However, they are not unconstitutional per se. In order to achieve a unitary
system, school districts were allowed to use gerrymandering and non-contiguous zoning.
The court is really telling the district courts that they have a lot of discretion to order
district-wide solutions to the problem of de facto non-integration.
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Tailoring principle – the remedy must fit the violation.
Milliken v. Bradley, 418 U.S. 717 (1974) – This is where Court defines the outer
boundaries of bussing at the school district level. No inter-district bussing. Can district
court fashion remedy that is inter-district bussing? No. There was no evidence that the
white suburban districts had acted to create the uniracial black schools in Detroit. They
hadn’t violated the constitution. Tailoring principle – the remedy must fit the violation.
If there is no violation, there is no remedy. The city of Detroit had committed the
violation, and the remedy had to be limited to them. The court can’t bring non-violating
districts into the remedy.
Hills v. Gauntreaux, 425 U.S. 284 (1976) – remedy by a district court in a racially
discriminatory housing case could go beyond city boundaries (distinguished Milliken).
Milliken is not a per se rule against going across municipal boundaries.
BENIGN USE OF RACIAL CRITERIA
Benign purpose – classification designed to aid rather than disadvantage. They are
subject to strict scrutiny analysis.
DeFunis v. Odegaard, 416 U.S. 312 (1974) – By a 5-4 margin the Court dismissed as
moot a case challenging a preferential admissions program in higher education that was
adopted without findings on purposeful past discrimination. Only Justice Douglas
reached the merits, and strongly condemned racial factors in admission programs, while
suggesting the possibility of cultural bias in the normal criteria. He opposed use of racial
classifications for benign purposes and insisted that the 14th amendment should be
applied in a racially neutral way.
Benign racial classifications are subject to strict scrutiny; racial quotas are
unacceptable.
Professor Salomone wrote an article on this case. Regents of Univ. of California v.
Bakke, 438 U.S. 265 (1978) –
The court asked the parties to submit briefs based upon Title VI. Title VI includes all
institutions that receive federal assistance.
Court applies concept of coextensiveness – title VI is coextensive with the 14th
amendment. It may decide the case based on Title VI, but using 14th amendment
analysis. The implications of the case will extend to private institutions receiving federal
funds.
Court ruled that equal protection required that no applicant be rejected because of his race
in favor of a less qualified candidate, no matter what the state interests at stake.
When a classification denies an individual opportunities or benefits enjoyed by others
solely because of his race or ethnic background, it must be regarded as suspect.
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Hopwood v. Texas, 78 F.3d 932 (1996) – Court of Appeals, striking down an affirmative
action plan at the University of Texas Law School, wrote that Powell’s Bakke decision is
not binding precedent because Powell had only his own vote. The diversity interest will
not satisfy strict scrutiny. Diversity is not a valid purpose for carrying out an affirmative
action program. Race cannot be even one consideration.
Fullilove v. Klutznick, 448 U.S. 448 (1980) – Congress can find discrimination and
remedy it with affirmative action. The court will give deference to a Congressional
affirmative action program. This was a 5th amendment equal protection challenge.
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) – Local affirmative action
program found unconstitutional. If the city could be shown to have been a passive
participant in past discrimination that would have been an adequate showing. There was
no tight fit between the means and ends. The benign purpose argument didn’t work
because it would benefit Eskimos who suffered no discrimination. Also because the city
council that enacted the plan was largely black, they would be the ones to benefit. It’s
not really benign because they gave nothing up. There was no showing of discrimination
in the construction industry in Richmond. Just saying there is a benign purpose is not
enough to save the law from a 14th amendment challenge. State and local governments
have to find particularized injuries, and then remedy them. They don’t have as much
latitude as Congress. Since there is absolutely no evidence of past discrimination against
Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the city's
construction industry, the Plan's random inclusion of those groups strongly impugns the
city's claim of remedial motivation. The city said this was administratively convenient,
which is not a legitimate basis for discrimination.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) – Petitioner claimed that the
federal government’s practice of giving general contractors on government projects a
financial incentive to hire “socially and economically disadvantaged people” (code for
racial minorities) violates the equal protection clause of the 5th amendment.
The cases through Croson establish three general propositions regarding race
classifications:
 Skepticism - searching (strict) scrutiny
 Consistency- it doesn’t matter what the race of the burdened or benefited group is
(benign or invidious)
 Congruence – equal protection analysis is the same under the 5th & 14th amendments
(federal v. state government actor)
This leads to the conclusion that strict scrutiny is always the appropriate standard when
there is race-based classification and a government actor. All racial classifications,
whether at the federal, state or local level are subject to strict scrutiny. Requiring strict
scrutiny is the only way to ensure that courts will consistently give racial classifications
the appropriate examination, as to both means and ends. Strict scrutiny is not “fatal in
fact.” Such action is within constitutional constraints when it meets the “narrow
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tailoring” test. In the future there could be narrowly tailored benign racial classifications
that will withstand strict scrutiny. They need to come up with a compelling
governmental interest, and a tighter fit between the means and the ends, including
alternative means of achieving the compelling governmental interest. Will the plan only
last as long as necessary to overcome the effects of past discrimination? Affirmative
action cannot go on and on; there must be an envisioned end, and it must be temporary.
Fundamental Rights – Voting
Districting plans:






The courts want contiguity,
Compactness, and
Respect for political subdivisions or communities defined by actual shared
interests.
The district does not have to be bizarrely shaped to be unconstitutional. That is
only circumstantial evidence.
There’s a presumption of legitimacy of the good faith of the legislature in creating
the districting plan. Burden is on plaintiff to prove otherwise
The plaintiff’s burden is to show, either through circumstantial evidence of the
district’s shape and demographics, or more direct evidence of the legislature’s
purpose, that race was the predominating factor to put a group of voters within or
without a particular district. Plaintiff does this proving that the legislature
subordinated traditional race-neutral districting principles (such as compactness,
contiguity, and respect for political subdivisions or communities defined by actual
shared interests, to racial considerations.
SUMMARY
Standards that court lays down for apportionment cases:
 Race cannot be the predominant factor in drawing district lines.
 Court will use strict scrutiny analysis because this is a race classification.
 They want contiguity, compactness and respect for political subdivisions.
 Lines do not have to be bizarre to be struck down. Bizarreness is not a threshold.
 Burden is on plaintiffs to prove that race was a factor in drawing the district lines,
and that legitimate criteria were subordinated.
Until the 1960s, the courts usually deferred to the states where voting rights were
concerned. After 1962 (Baker v. Carr), the court treated such cases as having
manageable judicial standards. In Baker, the court accepted that there were, and that it
was not just a political question. But in Harper and Reynolds, the court opened the door
to more active supervision.
Reynolds v. Sims, 377 U.S. 533 (1964) - In 1961, M.O. Sims, David J. Vann (Vann v.
Baggett), John McConnell (McConnell v. Baggett), and other voters from Jefferson
County, Alabama, challenged the apportionment of the state legislature. The Alabama
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Constitution prescribed that each county was entitled to at least one representative and
that there were to be as many senatorial districts as there were senators. Population
variance ratios of as great as 41-to-1 existed in the Senate.
In an 8-to-1 decision, the Court upheld the challenge to the Alabama system, holding that
Equal Protection Clause demanded "no less than substantially equal state legislative
representation for all citizens...." Noting that the right to direct representation was "a
bedrock of our political system," the Court held that both houses of bicameral state
legislatures had to be apportioned on a population basis. States were required to "honest
and good faith" efforts to construct districts as nearly of equal population as practicable.
This case establishes the one man one vote principle.
Lucas v 44th General Assembly, 377 U.S. 713 (1964) – challenge to apportionment
scheme was approved by referendum. The court strikes it down saying that the majority
can’t vote to deprive anyone of the full impact of his vote.
Race Conscious Districting
The creation of “majority-minority” districts to try to ensure that blacks will be elected.
This was often pursuant to the Voting Rights Act, which applied to certain states that had
a bad history.
Shaw v. Reno (Shaw I), 509 U.S. 630 (1993) - The Court held that although North
Carolina's reapportionment plan was racially neutral on its face, the resulting district
shape was bizarre enough to suggest that it constituted an effort to separate voters into
different districts based on race. The unusual district, while perhaps created by noble
intentions, seemed to exceed what was reasonably necessary to avoid racial imbalances.
The proper standard of review is strict scrutiny. A state may overcome a claim of racial
gerrymandering by showing that they considered compactness, contiguity, and respect for
political subdivisions. They are not constitutionally required to show these factors, but
they are helpful. A district in which individuals of the same race are joined, but lack
shared geographical and political boundaries bears a resemblance to “political apartheid.”
It presumes that the group has monolithic political beliefs. This is an impermissible
racial stereotype. It also signals to the elected representative from that district that he
represents a racial group and not the entire constituency.
The state’s assertion that it is just trying to comply with the Voting Rights Act is not
sufficient. The constitution is a higher authority.
Miller v., Johnson, 515 U.S. 900 (1995) – the existence of a bizarrely shaped district is
not a prerequisite for a finding of unconstitutionality. Georgia created three majorityblack congressional districts to comply with the voting rights act. White voters in the
district filed suit, claiming the district was racially gerrymandered.
Kennedy wrote for court and held the redistricting unconstitutional, largely on the basis
of Shaw. The shape of the district does not have to be bizarre on its face before there can
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be a constitutional violation. Instead, it is only persuasive circumstantial evidence that
race for its own sake was the legislature’s dominant and controlling rationale in drawing
its district lines.
The standard to be applied to make out a claim after Shaw:
 Although race-based decision-making is inherently suspect, until a claimant
makes a showing sufficient to support that allegation, the good faith of the
legislature will be presumed. They will almost always be aware of racial
demographics, but it does not follow that race predominates in the redistricting
process.
 The plaintiff’s burden is to show, either through circumstantial evidence of the
district’s shape and demographics, or more direct evidence of the legislature’s
purpose, that race was the predominating factor to put a group of voters within or
without a particular district. Plaintiff does this proving that the legislature
subordinated traditional race-neutral districting principles (such as compactness,
contiguity, and respect for political subdivisions or communities defined by actual
shared interests, to racial considerations.
Shaw v. Hunt (Shaw II), 517 U.S. 8199 (1996) – strict scrutiny reaffirmed as standard.
The states can’t hide behind the Voting Rights Act itself as a compelling state interest.
Race is still not a proper classification.
Fundamental Liberties – Civil Litigation (Access to the Courts)
You need:
 Fundamental right, or
 Criminal and Quasi-criminal overtones (paternity)
 Government monopoly
Boddie v. Connecticut, 401 U.S. 371 (1971) – appellants were indigents who sought
divorce actions in the state courts, but claimed they couldn’t afford the $60 filing fees.
They claimed this financial barrier unconstitutionally restricted their access to the courts.
Harlan’s majority agrees, but on due process grounds.
Because the marriage relationship is a “fundamental right” (Griswold) and the state has a
monopoly on the means for dissolving a marriage, due process prohibits a state from
denying citizens access to its court solely because of inability to pay. Absent a
countervailing state interest of overriding significance, persons forced to use the courts to
settle their claims must be given an opportunity to be heard. The requirement that they
resort to the courts is a state-created matter. He limited this holding because this case
involved a fundamental human relationship.
Separate out fundamental rights under due process and fundamental rights under equal
protection!!! They are not the same thing. If there is a fundamental right (due process),
then the state has to provide procedural due process before a citizen can be denied that
right.
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United States v. Kras, 409 U.S. 434 (1973) – An indigent challenged the $50 filing fee
requirement in a voluntary bankruptcy proceeding. Blackmun wrote for the majority
again and said that there is no unlimited right to relief without payment of fees. The
interest in bankruptcy relief did not reach the level of a fundamental right. In Boddie,
government had a monopoly. Government control over debts is not exclusive. Stewart’s
dissent thought the due process rationale equally applicable. Marshall said this involved
a right of access to the courts.
Ortwein v. Schwab, 410 U.S. 656 (1973) – rejected an attack by indigents on Oregon’s
$25 filing fee for judicial review of an administrative denial of welfare benefits. The
interest in welfare benefits has less constitutional significance than marital relationships.
Claim of discrimination against the poor had to fail because welfare payments are in the
area of social and economic welfare, and no suspect classification was involved. All that
the constitution requires is a fair initial hearing.
Little v. Streater, 452 U.S. 1 (1981) – unanimous decision held that due process entitled
an indigent defendant in a paternity action to state-subsidized blood grouping tests.
Burger wrote that that blood tests have unique qualities as a source of exculpatory
evidence, and the state has a prominent role in this type of litigation. Also, in
Connecticut, paternity proceedings had quasi-criminal overtones (more like Griffin).
Therefore, an indigent who has to take on the state and must meet their evidentiary
burden lacks a meaningful opportunity to be heard. The fundamental fairness
requirement of due process is then not met.
M.L.B. v. S.L.J., 519 U.S. 102 (1996) – Mother had parental rights permanently
terminated in a Mississippi Chancery Court. To appeal the state required that she pay
$2,352.36 advance in records fees. Because she couldn’t afford to pay, her appeal was
dismissed. Question presented is whether a state, consistent with the Due Process and
Equal Protection clauses of the 14th amendment, may condition appeals from trial court
decrees terminating parental rights on the affected parent’s ability to pay record
preparation fees. They hold it may not. Ginsburg decides this on equal protection and
due process.
The foundation case is Griffin, which concerned an Illinois law that conditions criminal
appeals on paying for transcripts. Although there is no right to appellate review, once a
state affords that right, it “may not bolt the door to equal justice.” The court has not
broadly extended this to civil cases. It has however set apart cases that involve state
controls or intrusions on family relationships. The court closely scrutinizes the
importance of the governmental interest advanced in defense of the intrusion. The
appellant wants the court to find this kind of action to be barely distinguishable from a
criminal condemnation in view of the magnitude and permanence of the loss she faces.
They court agrees.
Judicial processes decisions:
 Equal Protection – the legitimacy of fencing out would-be appellants solely on the
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
basis of their inability to pay core costs
Due Process – the essential fairness of the state-ordered proceedings anterior to
adverse state action
Here the stakes are greater than mere financial loss.
 Parental status termination is irretrievably destructive of the most fundamental
family relationship. (Similar to Boddie)
 The risk of error is considerable.
 Countervailing state interest is financial (state’s legitimate interest in offsetting
the costs of its court system). Court says in this area, appeals are likely to be few,
and the cost to the state not unduly burdensome.
The state said it was required to collect the fees to pay their costs. Ginsburg says there
are likely to be few of the cases anyway, so it’s not a real issue.
Normally, fee requirements are subject to review only for rationality. But the cases
provide two exceptions:
1. The basic right to participate in political processes as voters and
candidates cannot be limited to those who can pay for a license.
2. Access to judicial processes in cases criminal or quasi-criminal may not
turn on ability to pay.
Because this is a hybrid of a quasi-criminal matter and a family relationship case, more
than rational review is required, although exactly what it is not defined.
Fundamental Rights – No Expansion
Dicta in Shapiro v. Thompson suggested that the court might find fundamental interests
in the “necessities” of life.
Dandridge v. Williams, 397 U.S. 471 (1970) – The court rejected an equal protection
challenge to Maryland’s implementation of the Aid to Families with Dependent Children
program, jointly financed by the state and federal governments. Maryland capped grants
at $250 per month, regardless of family size or computed standard of need.
Stewart wrote that they were being asked to use the 14th amendment to invalidate a social
or economic regulation. To do so would bring the court back to the Lochner era. Such a
law does not violate the constitution because it is imperfect. If the classification has a
reasonable basis it is constitutional.
Lindsey v. Normet, 405 U.S. 56 (1972) – 5-2 decision sustained Oregon’s summary
forcible entry and wrongful detainer procedure for the eviction of payments after alleged
non-payment of rent. White rejected calls for heightened scrutiny should be applied to
the classification and its stated purpose. He rejected the idea that the “need for decent
shelter” and “the right to retain peaceful possession of one’s own home” are fundamental
interests. The constitution does not guarantee housing a particular quality or recognize
the right of a tenant to stay on after the end of a lease without paying rent.
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Education
The proponents of the case wanted a Supreme Court decision to take care of the whole
country. Because of the Rodriguez case, they have had to go through the state courts on
state constitution grounds.
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973)
The appellants challenged local property tax funding of school districts. They were
Mexican-American parents of children in the Edgewood School District in San Antonio,
suing on behalf of poor children residing in districts having a low property tax base. The
state had a “minimum foundation school program” to reduce disparities, but spending
still varied widely on the basis of local property wealth.
This is not wealth discrimination. In those cases, the class discriminated against shared
two characteristics:
 Because of their poverty, they were completely unable to pay for some desired
benefit, and;
 As a consequence, they sustained an absolute deprivation of a meaningful
opportunity to enjoy that benefit.
There is no district wealth discrimination. The district is large, amorphous and diverse,
united only by common residence in districts that happen to have less property wealth
than other districts. They have none of the traditional indicia of suspectness. Professor
Salomone says this is very important to get down: the class is not saddled with such
disabilities or subjected to a history of purposeful unequal treatment, or relegated to such
a position of powerlessness as to command extraordinary protection from the
majoritarian political process.
There is also no absolute deprivation of education. There is no guarantee of equivalent
education. It would be different if all children were charged tuition, and some couldn’t
attend because they couldn’t afford it.
Plyler v. Doe, 457 U.S. 202 (1982) – Texas was withholding money from districts
proportionate to the number of illegal immigrants. The state then charged the students or
kicked them out of school. Local officials were trying to force the state to let the kids in
without penalty.
The court applies a heightened level of scrutiny. They want a substantial state interest.
Wealth becomes a quasi-suspect qualification, and education a quasi-fundamental right.
They never went this far again. The kids can’t change their status, so it is analogous to
illegitimacy.
The court distinguished this case from Rodriguez because there was a total denial of
education. It is cited for the indicia of suspectness (embodies the Rodriguez loophole).
Post Civil War Amendments
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The actions discussed so far have been state actions.
13th amendment (outlaws slavery and forcible servitude) does not have a state action
requirement.
The following cases concern private actions and the role of Congress.
13th amendment:
1. ban on slavery – no state action required
2. Congress may enact laws to enforce this amendment
14th amendment:
1. all people born or naturalized in the United States are citizens. They are
guaranteed:
2. equal protection
3. due process
4. limitation on state action
5. state action requirement
6. not limited to race
7. enforcement provision
15th amendment
1. gave slaves the right to vote
2. right to vote can’t be denied because of race, color or previous condition of
servitude
3. state action requirement
4. limited to race
5. enforcement provision
Current civil provisions – ALL ENACTED PURSUANT TO 13TH TO 15TH
AMENDMENTS:
42 U.S.C. §1981 – everyone on the U.S. has equal rights as enjoyed by white citizens to
make and enforce contracts
42 U.S.C. §1982 - all citizens have the same right to own, purchase, convey, etc. real and
personal property
42 U.S.C. §1983 – no person acting under color of state law can deny any rights,
privileges and immunities secured by the constitution and laws of the United States. You
can sue in law and equity (money damages). This is commonly used (suits against
municipalities and police departments).
42 U.S.C. §1985 – conspiracies to interfere with civil rights
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Civil Rights Act 1964 – power found in commerce clause and the 5th amendment
Civil Rights Cases, 109 U.S. 3 (1883) – This case was brought under the
accommodations provision of the Civil Rights Act of 1875 by blacks who had been
excluded from hotels, theaters and railroads in five states (inc. N.Y.). Statute governed
inns, theaters, public conveyances, amusement parks, etc. Justice Bradley wrote decision
of the court. Congress cannot regulate private action within the states, unless the state is
a party to the discriminatory behavior or has laws that violate the 14th amendment.
Discriminatory behavior may give rise to criminal or civil sanctions according to the laws
of the states in which those actions occur.
The first section of the 14th amendment prohibits certain state actions. The power to
enact this legislation is said to be found in the last section (§5) of the 14th amendment.
The purpose of the enactment clause is to render null and void any state legislation or
actions in violation of the 14th amendment. It does not give Congress the right to
legislate matters over which the states are sovereign.
State argues that these laws seek to abolish the badges and incidents of slavery. Court
simply disagrees.
Harlan dissent –13th amendment rules out not only the institution of slavery, but more
broadly any activity that has a badge or incident of slavery. He saw even private
transportation as serving a public benefit and would bring it under the 14th amendment.
Inns are quasi-public, and amusement parks are licensed by the state.
Interpretation of State Action in the 20th Century
Court developed two approaches:
1. Public function test – private actors performing functions that are usually public
2. Nexus approach – sufficient connection or involvement between the state and the
private activity to bring it under the 14th amendment.
Public Function cases – state action under the 14th amendment. Can private performance
of public functions make the 14th amendment applicable? Look to the nature of the
activity of the private discriminator. Is it state-like? Thrived under the Warren Court.
Burger Court became more reluctant to bring private action under the 14th amendment.
Marsh v. Alabama, 326 U.S. 501 (1946) Company-owned town case
Marsh, a Jehovah’s Witness was arrested for soliciting religious materials on the street.
Convicted under criminal trespass law. Brought a 1st amendment claim. It appears to be
a privately owned town, but has all the indicia of a public town. The court overturns the
conviction.
Black wrote that this was just like a town. A public town couldn’t have outlawed it. The
more open an owner makes his town for public use, the more the owner will be
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constrained by the 14th amendment. When facilities are for the public benefit and since
their operation is essentially a public function it is subject to state regulation.
The court has never gone so far again. It has always distinguished it. However, it has
never been overruled.
Hudgens v. NLRB, 428 U.S. 507 (1976) - Refusal to extend Marsh in a modern shopping
center context.
You would argue that the shopping mall has taken on the role and characteristics of Main
Street or downtown had. However, they are privately owned. Burger court wouldn’t buy
this argument. Union members picketed the common area and parking lot of a mall when
they were in a dispute with a mall merchant. They said it was a 1st amendment issue. To
apply the 1st amendment to state actions, you need to bring your case under the 14th
amendment. You have to sue under the 1st amendment and the 14th amendment. Court
said there was no constitutional violation and no state action. The court was balancing
right to free speech against privacy.
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) - Private owned Utilities. This
takes in public function approach and nexus approach. Petitioner claimed violation of
due process when the privately owned utility turned off her electricity. Utility was stateregulated.
The court distinguished it because this was not a function exclusively reserved to the
state. Public bodies and private companies run utilities.
Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) - Warehouseman’s LienArguing under the 14th amendment, so they needed state action. Complainant found it in
the operation of the U.C.C. as state law, which allowed the sale of the complainant’s
goods. The court rejected that argument, and refused to extend Marsh. Also, there were
other means available to them in the courts.
Nexus cases
Shelley v. Kraemer, 334 U.S. 1 (1948) – this case involves the nexus approach. – Judicial
enforcement of a private agreement. Court finds state action – involved restrictive
covenants for homeowners.
The restrictive covenant forbad the sale of property to blacks. Those interested in
enforcing the covenant sued. White homeowners sued when state courts enforced the
private agreement and prevented them moving in. That was the state action needed under
the 14th amendment.
The covenants were OK because they were private contracts. The court action was
sufficient state action. The logical extension is that every time a state enforced a
discriminatory contract it would become subject to the 14th amendment. The court has
refused to extend this case.
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Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) – symbiotic relationship.
Court finds state action. Actor was the Eagle Coffee Shop, which operated in a parking
building owned by a Delaware state agency. They refused to serve the appellant food and
drink because he was black. Claim was brought under the 14th amendment equal
protection clause.
The Delaware Supreme Court held that Eagle acted in a purely private capacity, so there
was no state action. Also, because it was not an inn, under state law, it had discretion
about whom it had to serve.
The rule announced is that “when a State leases public property in the manner and for the
purpose shown to have been the case here, the prescriptions of the 14th amendment must
be complied with by the lessee as certainly as though they were binding covenants
written into the agreement.”
The U.S. Supreme Court (Clark for the majority) holds that there is state action.
Wilmington Parking Authority was created by the state to provide adequate parking for
the public. Because the parking revenue would not be sufficient to pay for its bonds, they
entered into commercial leases. Eagle signed a 20 year lease in 1957.
This case is an example of a “symbiotic relationship.” It is a mutually beneficial
relationship.
The Authority had no provisions in the lease requiring that the facility be made available
to the general public on a non-discriminator
y basis.
Ways the authority showed the public nature of the building:
 State and national flags flew from mastheads on the roof
 They placed signs around the building indicating its public character
The rule since the Civil Rights cases is that private conduct abridging individual rights
does not offend equal protection if there is no state action.
State arguments why there was no public
action
Only 15% of the total cost of the building
was advanced from public funds
The cost of the facility was allocated 2/5 to
parking and 3/5 to commercial leasing
The main entrance to the restaurant is on
the street, with no access from the garage
Court holding why there was state action
The land and building were publicly owned
The building was dedicated to “public
uses” in performance of the Authority’s
“essential governmental functions”
The costs of land acquisition, construction
and maintenance are defrayed entirely by
donations from the city of Wilmington,
from loans and revenue bonds and from
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Only connection between Eagle and the
Authority is the payment of rent to defray
the expenses of an unprofitable enterprise
Eagle alleged that serving Negros would
hurt business
proceeds of rentals and parking fees out of
which the loand and bonds were payable
The commercial spaces were not on surplus
land but were rather an integral part of the
state plan
The location of the restaurant in the garage
conferred mutual benefits
The profits earned by discrimination are
indispensable elements in the financial
success of a governmental agency
The Authority cannot abdicate its responsibility to enforce the 14th amendment by
arguing that it negotiated its lease in “good faith.” It could have required
nondiscrimination, but failed to.
Eagle and the Authority are so closely intertwined and interdependent that the Authority
can be considered a joint participant in the activity.
The court warns that this is a very fact specific analysis and does not provide a test for
every state leasing arrangement.
Stewart, concurring in the result, would have decided the case more narrowly. Because
Eagle relied on a state law allowing it to exclude those who would be offensive to its
customers, and because they argued the customer would because he is black, the law
clearly violates the 14th amendment.
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) State or government licensing –
Court finds no state action.
Moose Lodge refused to serve a member’s black guest in its dining room. The court
rejected the claim that Moose Lodge’s racial discrimination was unconstitutional because
the state issued them a liquor license.
Rehnquist, writing for a 6-3 majority, holds that equal protection is not violated merely
because the actor receives some government services or is subject to state regulation in
some aspect of the operation. State furnished services include necessities, and to make
that a criterion would destroy the distinctions.
The Rule: To find unconstitutional state actions where there is private discrimination, the
State must have “significantly involved itself with invidious discrimination.”
This is distinguishable from Burton, where there was a “symbiotic relationship” between
lessee and lessor. And while liquor regulations may be detailed in certain regards, they
do not encourage this type of discriminatory behavior.
CBS, Inc. v. Democratic Nat. Comm., 412 U.S. 94 (1973) – the majority sustained the
FCC’s refusal to force broadcasters to accept editorial advertisements. They refused to
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accept ads from anti-war groups, and the FCC wouldn’t force them to. 1st amendment
rights were implicated. There was no symbiotic relationship though. The Warren Court
was pulling back from finding state action.
The Rule: Mere acquiescence in a private action does not convert that action into state
action. It is not enough to have a law on the books authorizing private actions.
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) – Petitioner sued under due
process because after non-payment of her utility bills, she had her utilities turned off.
She claimed she did not have notice, a fair hearing, and an opportunity to pay any
amounts found due.
You don’t have state action merely because:
 A business is subject to state regulation
 The business is subject to extensive and detailed public regulation
There must be “a sufficiently close nexus between the state and the challenged action of
the regulated entity so that the action of the latter may be fairly treated as that of the state
itself.”
Flagg Bros. Inc. v. Brooks, 436 U.S. 149 (1978) – The court rejected the claim that the
warehouseman’s proposed sale was state action because the state authorized and
encouraged it by enacting the UCC.
The state’s mere acquiescence in a private action does not convert that action into state
action.
The court is concerned about the consequences of holding that the passage of a state
statute creates state action. Then, merely by taking a case into court on a property matter,
and being denied relief, you then have state action and a constitutional question.
Lugar Trilogy – all decided in 1982. Court goes in one direction with Blum and RendellBaker, and a different direction in Lugar.
Blum v. Yaretsky, 457 U.S. 991 (1982) – Privately owned nursing homes receiving state
reimbursements for caring for Medicaid patients are not state actors for the purposes of
14th amendment claims.
Medicaid patients claimed they were denied procedural due process rights when they
were transferred to less expensive facilities. These transfers lowered their Medicaid
benefits. The court rejected this argument because the transfers were not commanded by
the state. They turned on the professional judgment of health care providers, using
standards not set up by the state.
The state has to be actually responsible for the action – coercion or strong
encouragement. Mere acquiescence or approval is not sufficient.
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Rendell-Baker v. Kohn, 457 U.S. 830 (1982) – state funding. A private school, receiving
most of its income from public sources, and subject to state regulation, could not be
considered as engaging in state action when it discharges certain employees. Claimants
said they were denied free speech and procedural due process rights. Action brought
under 42 U.S.C. § 1983 (gets them money damages – no person acting under color of
state law can deny you your civil rights). The court held that this school was like a
business that relied mainly on government contracts. Their acts do not become state
actions simply because of their significant or total engagement in performing public
contracts.
The school is merely a private contractor. The state has no direct authority over the
activities of the school itself. This is an important case for private schools and colleges.
Lugar v. Edmondson Oil, 457 U.S. 922 (1982) – The court found state action. A creditor,
pursuant to state law, attached debtor’s property in an ex parte proceeding, alleging that
the debtor might dispose of the property to defeat creditors. The attachment writ was
issued by a state clerk, and was executed by a sheriff. A later judge dismissed the
attachment. A private party’s joint participation with state officials in the seizure of
disputed property is sufficient to make the private party a state actor for 14th amendment
purposes. This is so when the state has created a system whereby state officials will
attach property on the ex parte application of one party to a private dispute.
NCAA v. Tarkanian, 488 U.S. 179 (1988) – The NCAA encouraged UNLV to suspend
Tarkanian. Tarkanian argued that the NCAA deprived him of due process. The court
easily rejected the notion that NCAA was a state actor. Tarkanian argued that the NCAA
should be considered a state actor for encouraging the action of UNLV, which was a state
actor. The court concluded the NCAA and UNLV were actually adversaries. Finally,
UNLV acted under color of NCAA rules, rather than Nevada law.
San Fran. Arts & Athletics v. U.S.O.C., 483 U.S. 522 (1987) – The court held the
U.S.O.C. was not a state actor. Congress had granted the U.S.O.C. the right to prohibit
certain uses of the word “Olympics.” They barred the petitioner from using the name
“Gay Olympic Games.” Petitioner claimed an equal protection violation. The majority
held that the petitioner failed to show that the federal government exerted any influence
over how the U.S.O.C. enforced its decisions.
Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991) – The use by a private
litigant in a civil proceeding of peremptory challenge to exclude jurors on the basis of
race constituted state action for 14th amendment equal protection purposes.
They court used the Lugar approach:
 Did the claimed constitutional deprivation result form the exercise of a right or
privilege having its source in state authority? Yes. Peremptory challenges have
statutory authorization, and they have no importance outside a court of law.
 Must a private litigant, in all fairness, be deemed a government actor? Helpful
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factors include:
 To what extent does the actor rely on government assistance and benefits
(Burton)?
 Is the actor performing a traditional governmental function (Marsh)?
 Is the injury caused aggravated in a unique way by the incidents of
governmental authority (Shelley)?
Here the following factors were dispositive:
 The overt, significant participation of government in the peremptory challenge
system and civil litigation generally
 The pervasive statutory regulation of the jury system
 The active involvement of the judge in voir dire and administering the system
 The jury system is the very embodiment of a traditional governmental function
DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989) – Petitioner was a 6
year old who suffered severe brain damage because of beating by his father. County
social workers noted reports that the father was beating the boy, but took no action to
remove him from the father’s custody. Petitioner claimed the state deprived him of his
liberty in violation of due process.
Rehnquist rejected this argument, writing that due process does require the state to
protect against private actions that deprive citizens of life, liberty and property. It is a
limitation on the state’s power, not a guarantee of a certain level of security.
The court says there could have been an obligation if there were a special relationship
between the state and the child – if they had taken custody of the child.
Brentwood Academy v. Tennessee Secondary School Atheltic Ass’n, 531 U.S. 288
(2001) – the court held a statewide interscholastic athletics association to be a state actor
because of “public entwinement” in its management and control, even though the
association was nominally private under state law.
Here the actor operated only in one state, and 84% of its members were public schools.
These schools had given certain jobs to the association. Also, the employees were
eligible to join the state pension system.
Plenty of indicia of state action, but only decided 5-4.
Sources of Constitutional rights:
14th amendment (due process &
equal protection) & 15th amendment
(voting rights)
13th amendment
Rights implied in the Constitution
State interference - §5 of the 14th amendment
and §2 of the 15th amendment are enforcement
clauses
Private Interference (but limited to racial
discrimination/recently freed slaves); §2 is an
enforcement provision
Not limited to state interference
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Do these provisions grant Congress the power to reach private action?
Congressional Power to Reach Private Action under the 13th Amendment
The 13th amendment has no language limiting its applicability to the states. The courts
have inferred that 13th amendment reaches private conduct. You can sue under §1 of the
amendment when there is a question of slavery and involuntary servitude §2 gives
Congress the power to legislate to enforce the amendment.
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) – THIS IS GOOD LAW AND A
LEADING CASE STILL
Court had to decide the scope and constitutionality of 42 U.S.C. §1982. §1982 forbids
discrimination in the acquisition or conveyance of property, real and personal. Petitioner
filed complaint that respondent refused to sell them a home because they were black.
Lower court held that §1982 only reached private action.
IMPORTANT TIP: Whenever you see a federal statute, ask where Congress got the
power to enact the legislation. 13th amendment was to end slavery and foster universal
freedom.
Held: §1982 bars all racial discrimination, private and public, in the sale or rental of
property, and the statute is a valid exercise of Congress’ power to enforce the 13th
amendment.
The enabling clause of the 13th amendment gave Congress the power to legislate to
abolish all “badges and incidents of slavery in the United States.” §1982 has its origins
in the 1866 Civil Rights Act. They used a rationality standard to review Congress’ right
to enact this legislation. Slavery was replaced by the black codes. Black codes were
replaced by restrictive covenants.
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) – white member of resident
association rented his property to a black family and assigned his share to the tenants,
which would have allowed them to use a community park and playground. The
association stripped the homeowner of his membership when he protested their decision
to refuse to approve the transfer because the tenant was black.
The homeowner and tenant sued under § 1982 for damages and injunctive relief.
Held: This refusal was an interference with the right to lease under § 1982. The
association was not a private social club because it was open to any white person in the
area. It excluded only because of race. White person could sue under § 1982.
Runyon v. McCrary, 427 U.S. 160 (1976) - § 1981 (also derived from the 1866 act)
prohibits private, commercially operated nonsectarian schools from denying admission to
prospective students because they are black, and as applied is constitutional. § 1981
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prohibits discrimination in contracts on the basis of race.
The court held that parents have a right of association to send their children to schools
that believe that segregation is right. The actual practice of segregation is not protected
by the same principle.
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) – tried to have Runyon
overturned. The court ordered rearguments about whether Runyon’s interpretation of §
1981 should be overturned. The court declined on reargument to overturn Runyon, but
only by 5-4.
Whether these post civil war amendments grant Congress the power to not only fashion a
remedy but also establish substantive rights.
States used literacy tests to deny freed slaves the right to vote, as well as character tests,
property qualifications, etc.
Civil Rights Act of 1957 gave attorney-general power to fight these practices.
1965 – Congress enacted Voting Rights Act to give teeth to these efforts and set up
enforcement provisions.
Lassiter v. Northampton County Election Board, 360 U.S. 45 (1959) – court was very
deferential to the states. A NC law required a voter to read and write. Court found it
constitutional under the 14th amendment. States have broad power to determine voting
conditions. These requirements were related to the intelligent use of the vote.
South Carolina v. Katzenbach, 383 U.S. 301 (1966) – Brought under the 15th
amendment. Concerned the remedial powers of congress. Several state laws were
attacked. It was a direct attack on Congressional power to enact the provisions of the
Voting Rights Act. They gave specific remedies where violations were found. Court
held that Congress could remedy violations under § 2 of the 15th amendment. They can
fashion not only general, but also specific remedies.
Katzenbach v. Morgan, 384 U.S. 641 (1966) – VERY IMPORTANT CASE IN
CONSTITUTIONAL LAW. Brennan used an approach that has caused problems more
recently.
The case was brought by registered voters in New York City attacking the Voting Right
Act of 1965 (§6(e) required the franchise for those who had completed 6th grade in a
Puerto Rican school that taught in a language other than English. New York had a law
requiring English-language literacy in order to vote.
Where did Congress get this power? It came from § 5 of the 14th amendment.
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The court makes the literacy test unenforceable. The court says that Congress did all the
work to decide that Puerto Ricans needed this protection. All the court has to do is find a
basis upon which Congress made its decision. The court cites McCullough v. Maryland
and the court’s reliance there on the necessary and proper clause (Art. I, § 8) as a broad
grant of authority to Congress. The 14th & 15th amendments give power to Congress to
exercise its discretion in determining what kind of legislation is needed to enforce the
protections in those amendments. Congress has broad powers to expand rights beyond
enacting remedial legislation. It doesn’t have to wait for the court to identify a violation.
It can’t however dilute those rights. (In Hogan, the nursing school argued they had an
exemption under Title IX. O’Connor disagreed noting that the Congress can’t dilute
rights).
The court actually hypothesizes about Congress’ intent in trying to find a reason to
uphold the law. (Like Lee Optical). “it is enough that we perceive a basis…” “it was
Congress’ prerogative to weigh these competing considerations (even if the court only
speculated as to whether they even did so).”
This is the most deferential form of judicial review you’ll ever see.
Lee Optical and Katzenbach v. Morgan are decided on standards of scrutiny that are even
more deferential than rational basis. This is deferential review. It looks for any basis for
the law, and even hypothesizes about bases.
Congress’ Power – 14th Amendment
City of Boerne v. Flores, 521 U.S. 507 (1997)
A decision by a local zoning authority to deny a church a building permit was challenged
under the Religious Freedom Restoration Act of 1993 (RFRA).
Question: Did Congress exceed its authority when it passed the act?
Held: Yes. The statute exceeds Congress’ power.
Rule: When Congress exercises its 14th amendment, § 5 authority, it must identify
conduct violating the 14th amendments substantive provisions, and the legislation must be
tailored to remedy or prevent such conduct. The legislation must be remedial or
preventative. It cannot breath substance into the 14th amendment!
They sued under this law because it was a neutral law of general applicability. They
didn’t use the Free Exercise Clause because the Smith case created a rational basis test, as
opposed to RFRA’s heightened scrutiny.
Why did Congress pass the act?: Congress passed the act in direct response to the
Supreme Court decision in Oregon v. Smith, where members of an Indian church who
were denied unemployment benefits when they were fired for ingesting peyote as part of
a service. Smith held that neutral, generally applicable laws may be applied to religious
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practices even when not supported by a compelling governmental interest. Smith
prescribed a rational basis test. Smith overruled Sherbert v. Verner, which would have
called for heightened scrutiny – there must be a compelling governmental interest behind
any prohibition that substantially burdens a religious practice.
What did the Act do?: The Act’s stated purposes were to:
1. Restore the Sherbert test
2. Provide a claim or defense to persons whose religious exercise is substantially
burdened by government
The Act prohibits government from “substantially burdening” religious practice, even if
the rule is one of general applicability, unless government can show that the burden:
1. is in furtherance of a compelling governmental interest
2. is the least restrictive means of furthering that governmental interest
The law applied to the federal, state and local governments. To impose these
requirements on the states, Congress relied on the enforcement provision of the 14th
amendment. The parties can’t agree whether they are enforcing equal protection or due
process.
Congress’ power to enforce the Free Exercise Clause through the 14th amendment comes
from Cantwell v. Connecticut (1940). However, Congress has only remedial authority; it
can only enforce the provisions of the 14th amendment. Congress does not have the
power to enforce a right by changing what the right is.
Even if Congress has great latitude to decide where the difference between remedial and
substantive acts lay, that power is not limitless.
THIS IS WHAT YOU HAVE TO REMEMBER FROM THIS CASE: There must be a
congruence and proportionality between the injury to be prevented or remedied and the
means adapted to that end. The legislative history confirms that Congress’ powers under
the 14th amendment were meant to be remedial rather than substantive.
If Congress could define its own powers by altering the meaning of the 14th amendment,
then the constitution become just another law. Separation of powers and federalism also
become meaningless.
Plaintiffs argue that if Congress can prohibit laws with discriminatory effects in order to
prevent racial discrimination under the Equal Protection clause, it can do the same to
promote religious liberty,
The court replies that there must be congruence between the means used and the ends to
be achieved. The record contains no instances in the past 40 years of laws of general
application passed because of religious bigotry. The emphasis was on laws of general
application that place incidental burdens on religion. The act is so out of proportion that
it can only be seen as breathing substance into the 14th amendment.
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Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527
U.S. 627 (1999) – the Court invalidated the Patent and Plant Variety Protection Remedy
Clarification Act, which eliminated state immunity from claims of patent infringement.
Congress cannot abrogate state sovereign immunity when it acts under the Commerce
Clause. However, under 14th amendment § 5 it can.
While the 14th amendment certainly allows abrogation of state sovereignty when there is
appropriate legislation, the legislation must be subjected to City of Boerne review.
What is the conduct at
issue?
State infringement of
patents
The use of sovereign
immunity to deny patent
owners compensation for
invasions of their rights
Congress identified no
pattern of patent
infringement
They also identified no
pattern of constitutional
violations
Congress didn’t consider the availability of state law remedies for patent violations and
hence whether the conduct might have responded to a widespread deprivation of
constitutional rights of the sort Congress has faced when passing § 5 remedial legislation.
They reacted to scattered instances of patent violations that do not necessarily violate the
constitution.
United States v. Morrison, 529 U.S. 598 (2000) – Virginia Tech football players rape
case. Christy Brzonkala sued the men and the school under 42 U.S.C. § 13981, which
provided a federal civil remedy for victims of gender-motivated violence. This statute
was part of the 1994 Violence Against Women Act. The statute provided that anyone
acting under color of authority who deprives another of the right to be free of such crimes
is subject to civil penalties, and injunctive and declaratory relief.
Congress passed this law under what authority? They claimed to pass it pursuant to the
14th amendment § 5 and Article I, § 8. The Court immediately ruled out Article I
authority and proceeded to the 14th amendment.
What is the
conduct at issue?
There is pervasive bias in
state justice systems against
victims of gender-motivated
violence.
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The record shows voluminous
evidence:
 discriminatory stereotypes
result in insufficient
investigation
 inappropriate focus on
victims’ behavior and
credibility
 unacceptably lenient
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punishments
Purpose law
serves:
Enacting a private remedy
remedies the state bias and
deters future discrimination
in state courts
State-sponsored gender discrimination is subject to intermediate review; it must serve
important governmental objectives, and the means must be substantially related to the
achievement of those objectives.
The 14th amendment limits the way in which Congress can attack discrimination. They
can regulate only state action.
The court finds the situation here analogous to that surrounding the Civil Rights Cases,
where the court found no state action in private discrimination in public accommodations.
In both cases there laws on the books that administration of the laws failed to prevent
discriminatory behavior. Plaintiff urges that here there has been gender-based disparate
treatment by state authorities, whereas there was no state action in the Civil Rights Cases.
Even if the plaintiff were correct, the law is invalid because “prophylactic legislation
under § 5 must have a congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end.”
§ 13891 is not aimed at proscribing discrimination by officials that the 14th amendment
might not itself proscribe. It is not directed at a state actor, but at individuals who have
committed criminal acts motivated by gender bias.
 There is no consequence on any state official involved in investigating or
prosecuting the assault, making this different from any § 5 remedies the court has
previously upheld.
 It is also different because it applies generally throughout the country. It isn’t
narrowly tailored to those locales where the problem the law is meant to solve
exists. Congress’ findings do not show that the problem of discrimination against
victims of gender-motivated violence exists in all, or even most, states.
Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) – Court ruled that Congress had
exceeded its 14th amendment remedial authority when it allowed state employees to sue
the states for damages for violations of the Age Discrimination in Employment Act.
Although under the Seminole Tribe line of cases, the 14th amendment is the sole source
of authority to abrogate sovereign immunity, it failed the Boerne test because it lacked
proportionality and congruence.
The substantive requirement the act imposes on the states is disproportionate to any
unconstitutional conduct that could be targeted by the Act. Under the Murgia line of
cases, there need be only a rational basis to age classifications.
The act’s broad restrictions on the use of age as a discriminating factor prohibits more
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practices and decisions than would be likely be held unconstitutional under rational basis
review. This act elevates the standard to heightened scrutiny.


Congress identified no pattern of discriminatory behavior by the states
CONGRUENCE AND PROPORTIONALITY
They identified no discrimination that rose to the level of a constitutional
violation CONGRESSIONAL RECORD
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) – Court
found Congress exceeded its § 5 enforcement authority in providing a money-damages
remedy against state employers for discrimination based on a non-suspect classification.
Title I of the Americans with Disabilities Act allowed state employees to sue the states.
The law could only abrogate the 11th amendment if it was a valid exercise of 14th
amendment power.
Referring back to Cleburne, Rehnquist wrote that all the constitution required here was a
rational relationship between disability classifications and legitimate legislative ends.
Federal actionWhat is the source of their authority?
If it is under 14th amendment § 5, is it remedial? Is there congruence and proportionality?
Is there a record that demonstrates a pattern of discrimination that the state is working
against individuals?
The court relies heavily on its own prior decisions. Where it has used rational basis, it
will not allow Congress to go any further.
FREEDOM OF SPEECH – OVERVIEW
Free speech cases are brought under the 1st and 14th amendments.
Category
Incitement
Fighting Words
Hostile
Definition
A state can proscribe advocacy of the use of
force or of law violation only when such
advocacy:
 Directed at inciting or producing imminent
lawless action, and
 Is likely to incite or produce imminent
lawless action
 These are words that incite a breach of the
peace
 The suppression is justified by the social
interest in order
 The words must be directed face-to-face,
rather than at a group
 An average person standard is applied
The state must balance free speech rights and
45
Case to Cite
Brandenburg v.
Ohio, 395 U.S. 444
(1969)
Chaplinsky v. New
Hampshire, 315
U.S. 568 (1942).
The court has not
upheld another
fighting words
conviction since.
Feiner v. New
6/28/2017
Audience
Group Libel
Emotional
Distress –
Public Figure
False Light
Invasion of
Privacy
the interest in public order. When public order
weighs heavier and the government action is
not aimed at the suppression of ideas, then it
may act against the speaker. (There is a danger
of using the public order pretext to suppress
speech by falsely claiming that the audience
was sufficiently hostile.)
Speech that is derogatory and paints a group in
a negative light is not protected.
Public figures and public officials cannot
recover damages for intentional infliction of
emotional distress without proof of actual
malice.
Speech that is false, although not injurious to
reputation. Plaintiff must prove actual malice.
York, 340 U.S. 315
(1951), but
undercut by
Edwards v. South
Carolina, 372 U.S.
229 (1963)
Beauharnais v.
Illinois, 343 U.S.
250 (1952). This is
probably not good
law since Times v.
Sullivan.
Hustler Magazine
v. Falwell, 485 U.S.
46 (1988)
Time, Inc. v. Hill,
385 U.S. 374
(1967)
First Amendment History
The court didn’t deal with the 1st amendment much until World War I. There it was
incorporated into the 14th amendment liberty interest due process interest. You sue under
the 1st and 14th amendment!
Categorical Approach:
What kind of speech should be protected?
What kind shouldn’t?
Non-protected speech:
 Obscenity
 Bribery
 Libel
 Perjury
 Incitement
 Child pornography
This has the benefits of guiding the general public and the lower courts.
The disadvantage is that it is very rigid and admits of no exceptions.
Lesser protection:
 Commercial speech
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
Sexually explicit, but not obscene, speech
Ad hoc approach:
Balancing interest of speaker against interest of government and society on an ad hoc
basis.
Benefit: Individualized and flexible
Disadvantage: It is very result oriented. It leaves a lot in the hands of lower court judges.
Absolutist approach:
Freedom of speech is absolute.
Content based (content) and content neutral regulation (time, manner and place)
Palko v. Connecticut, 302 U.S. 319 (1937) – protection of speech is a fundamental
liberty.
Three principal values served by free speech:




Advancing knowledge and truth in the marketplace of ideas – when we are
confronted by competing views we can test the truth of our beliefs. Holmes
dissent in Abrams talks about the marketplace of ideas. When they compete the
truth emerges.
Facilitating representative democracy and self-government – free political speech
promotes democratic participation. Public policy is improved. To prevent
government from becoming too deeply entrenched. To prevent government abuse
of power. Provide a safety valve for dissent.
Promoting individual autonomy, self-expression and self-fulfillment – Speech is
valued for its personal intrinsic worth, and how it values the speaker and listeners.
Artistic speech, entertainment, media and advertising are among these.
Negative Theories – How do we insulate ourselves from bad government and the
dangers that accompany government regulation of speech?
Incitement
THE RULE TO USE FOR INCITEMENT: A state can proscribe advocacy of the use of
force or of law violation only when such advocacy:
 is directed to inciting or producing imminent lawless action and
 is likely to produce or incite imminent lawless action.
THE CASE TO CITE FOR INCITEMENT: Brandenburg v. Ohio, 395 U.S. 444 (1969)
THIS IS THE CASE TO CITE FOR INCITEMENT: Brandenburg v. Ohio, 395 U.S. 444
(1969) – per curiam opinion.
The appellant was a KKK member who convicted under the Ohio Syndicalism statute for
“advocating the duty, necessity or propriety of crime, sabotage, violence or unlawful
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methods of terrorism as a means of accomplishing industrial or political reform” and for
assembling with a group formed to teach the doctrines of criminal syndicalism.
The appellant was filmed at a rally saying to the crowd that if the government continues
to suppress the white race, they may have to take revenge. The also announced a march
on Washington, Mississippi and St. Augustine, Florida.
In 1927 the court sustained a similar law from California (Whitney). That ruling has
subsequently been discredited.
THE RULE TO USE FOR INCITEMENT: A state can proscribe advocacy of the use of
force or of law violation only when such advocacy is directed to inciting or producing
imminent lawless action and is likely to produce or incite imminent lawless action.
A law that fails to draw this distinction violates the 1st and 14th amendments. Because the
Ohio fails to make this distinction, it is unconstitutional.
This standard insists that the speech was intended to prod others to immediate lawless
action, and that it was likely to produce that result. Mere advocacy is protected speech.
Hess v. Indiana, 414 U.S. 105 (1973) – The Brandenburg doctrine was used to overturn
the conviction of an anti-war demonstrator for disorderly conduct. After demonstrators
blocked traffic and were moved by police, Hess stated that they would take the street later
(or again). The court held that these words were at worst advocacy of illegal action at
some future indefinite time. These were not words that were likely to cause imminent
disorder; the state could not punish them on the ground that they had “a tendency to lead
to violence.”
NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) – the court set aside a large damage
award against certain participants in an economic boycott of white merchants by black
citizens in a Mississippi county. There was at worst mere advocacy of the use of force or
violence. There was violence weeks and months after some of his 1966 speeches and
none at all after his challenged 1969 speech. When an advocate’s appeals do not incite
lawless action, they must be regarded as protected speech. The threat was not imminent.
The threat was directed at those who didn’t conform to certain behavior in the future.
The Brandenburg test requires incitement to immediate lawless action and that the
incitement be likely to produce that lawless action.
FIGHTING WORDS – we look only at the form of the message.
Rules:
 These are words that incite a breach of the peace
 The suppression is justified by the social interest in order
 The words must be directed face-to-face, rather than at a group
 An average person standard is applied
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THIS IS THE CASE TO CITE FOR THE INCORPORATION OF THE 1ST
AMENDMENT FREE EXERCISE RIGHTS INTO THE 14TH AMENDMENT DUE
PROCESS CLAUSE Cantwell v. Connecticut, 310 U.S. 296 (1940) – Cantwell, a
Jehovah’s Witness was arrested for the common law offense of inciting a breach of the
peace. He was arrested for playing records that contained offensive speeches about other
religions, especially Catholicism. Because there was state action, and this a first
amendment case, this was brought under the 1st and 14th amendments.
Gitlow v. New York (1925) – free speech is within liberty interest.
Emerson v. Board of Education (1947) – Establishment clause incorporated into the 14th
amendment.
Definition of fighting words: “face to face words plainly likely to cause a breach of the
peace by the speaker.” This is measured against the reaction the words are likely to
evoke in the average person.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) – Jehovah’s Witness was convicted
under a statute banning speech that would cause the average hearer to whom they are
directed to fight – “face to face words plainly likely to cause a breach of the peace by the
speaker.”
Appellant handed out literature on the street, drawing a crowd by denouncing all religion
as a racket. A disturbance broke out and Chaplinsky was escorted away by a police
officer. When they encountered a city marshal Chaplinsky demanded that they arrest
those responsible for the disturbance. When the marshal refused, Chaplinsky called him
a racketeer and a fascist, and said the whole government of Rochester, NH were fascists
or agents of fascists.
The court held that those names are likely to provoke the average person to retaliation,
causing a breach of the peace.
Justice Murphy wrote that certain types of speech lack constitutional protection:
CATEGORIZATION
 Lewd – this is now protected, but time, place and manner restrictions are allowed
 Obscene – not protected
 Profane – now protected with limitations
 Libelous – protected, except group libel (Beauharnais)
 Insulting or fighting words – still unprotected, but it has been so narrowed by the
court.
These are words that by their very utterance inflict injury and tend to incite a breach of
the peace. The have no essential part in the exposition of ideas, and have such little
social value as a step to truth that any benefit gained from their protection is outweighed
by the interest in social order and morality. BALANCING – however, this is not
balanced on a case-by-case basis, but is general in nature. Fighting words in general have
little value, so are not a protected category of speech.
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The court has never overruled Chaplinsky, but also has never upheld another fighting
words conviction since.
Gooding v. Wilson, 405 U.S. 518 (1972) – overturned a conviction under Georgia law
providing that any person “who shall, without provocation, use to or of another,
opprobrious words or abusive language, tending to cause a breach of the peace.” The
appellee, was blocking the entrance to an Army building threatened the life of a police
officer. Brennan found the law void on its face because, as interpreted by the Georgia
courts, it swept beyond words that, as in Chaplinsky, “have a direct tendency to cause
acts of violence by the person to whom, individually, the remark is addressed.” This is
the overbreadth doctrine – the state law is capturing too much speech in its net. This
guides the state to more careful language that will yield a law that is constitutional. Here
they decided the case beyond it facts – they looked at the whole law, not limited to its
specific application to these facts.
The court seems to abandon the categorical approach of Chaplinsky for a balancing test.
Profanity also seems to be protected speech when it is part of a political, or high value,
message. One perceiving the speech can avert one’s eyes.
Cohen v. California, 403 U.S. 15 (1971) – the defendant wore a jacket with “Fuck the
Draft” written on the back in the Los Angeles County Courthouse. There were women
and children present. The state court held that this was offensive conduct likely to
provoke others to acts of violence or disturb the peace.
I.
The only conduct sought to be punished is communication. There was
only the speech of the message on his jacket, no other conduct expressive of
particular views. The state cannot punish him for holding the view. The law can
only be justified, if at all, as a valid regulation of the manner in which he
exercised his right to free speech, not to punish the underlying thought.
 The statute was generally applicable throughout the state. He
couldn’t have been on notice that the term “offensive conduct”
created distinctions between certain locations.
 This is not the type of language that can be dealt with more
comprehensively because of its form. It is not obscene because it
has no erotic content.
 The provocative language was not “directed to the person of the
hearer.” It could not be interpreted by any reasonable person there
as a direct personal insult.
 This is not a case of a state regulating speech that intentionally
provokes a group to hostile action. There is no showing that
anyone was violently aroused or that Cohen intended such a result.
 The state claimed that Cohen’s expression was forced upon
unwilling and perhaps sensitive persons. This is not a case of
people being intruded upon in their homes; outside the home we
are often “captive” to objectionable speech. The state must show
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that a substantial privacy interest has been invaded before it can
shut off speech. Anyone who didn’t want to be exposed to
Cohen’s speech could avert their eyes.
I.
The state cannot ban speech simply because there may be violent and lawless
people around who are ready to attack whoever offends their sensibilities.
 The state has no right to try to excise words from the language because
some may be squeamish
 Much language has dual purpose; it expresses the particular as well as
more deeply held, otherwise inexpressible emotions as well.
 One can’t forbid certain words without a substantial risk of suppressing
ideas in the process.
This case seems to signal an abandonment of the categorical approach in favor of a
balancing test. It also seems so say that profanity is protected speech – if you don’t like
profanity, you can avert your eyes.
HOSTILE AUDIENCES – Here the state has oftimes competing interests in protecting the
speaker’s free speech rights, and in preserving the public peace. We look at the form of
the message and the message itself.
Be sure to distinguish hostile audience cases from Chaplinsky, where the words were
face-to-face.
Feiner v. New York, 340 U.S. 315 (1951) – Feiner was convicted of disorderly conduct
after addressing a crowd of about 75 people. He criticized veterans, the president, the
mayor of Syracuse, etc. He also urged blacks to rise up in arms and fight for rights.
There was some pushing and shoving in the crowd. After an onlooker told a policeman
that he would get Feiner out of there if the policeman didn’t do it himself, the policeman
stepped in to prevent a fight. After two requests to stop, Feiner was arrested.
The court held that he wasn’t arrested because of the content of his speech. Instead, the
police were acting on a legitimate interest in protecting the general welfare and
preserving public order. He was arrested because of the reaction that his speech
engendered. When a speaker passes the point of merely expressing opinions and into the
realm of inciting a riot, the police have the power to prevent a breach of the peace. There
was imminent greater disorder coupled with Feiner’s refusal to obey police orders.
FEINER HAS NEVER BEEN OVERRULED, BUT IT HAS BEEN DISTINGUISHED
ON IT FACTS.
Edwards v. South Carolina, 372 U.S. 229 (1963) – 187 black students took to the South
Carolina State House grounds to protest racial discrimination. When a crowd began to
gather, the police ordered the demonstrators to disperse, and arrested them when they did
not. Because there had been no fighting words and no violence by the demonstrators or
onlookers, the court reversed the breach of peace convictions. Because they were
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expressing an unpopular view, they needed protection from the majority.
INJURY TO REPUTATION (GROUP LIBEL) – Speech that is derogatory and paints a
group in a very negative light. This is not protected speech. Beauharnais has not been
overruled, but has been put into question by Times v. Sullivan. Use this case only when
there is nothing else to argue.
Beauharnais v. Illinois, 343 U.S. 250 (1952) – the court upheld an Illinois group libel
law. This is another overbroad statute. Beauharnais was convicted under the law for
circulating a petition that made offensive comments about blacks.
Frankfurter’s majority opinion described a standard of review that was very deferential to
the state legislature. It recounted Illinois’ history of racial strife, and decided that the
Illinois legislature knew best how to deal with language that may have been at the root of
some of these problems. Language that would be libelous if directed against an
individual cannot be protected when directed against the group to which the individual
belongs.
Because (group) libel is not a protected class of speech, there is no need to consider
whether the language poses a “clear and present danger.”
The dissent argues that criminal libel has always been confined to individuals.
The court has never overruled this decision, but its value is questionable after Times v.
Sullivan. In Times, the court wrote that “libel can claim no talismanic immunity from
constitutional limitations.”
Injury to Reputation (Libel)
Defamation Table:
Status
Type of
Speech
Public
Public
Official
concern
Public
Figure (one
who injects
himself
Public
concern
Standard
Type of Damages Available
Defendant
Media
Actual
Actual Malice
(knowledge of
falsity, or reckless
disregard for truth
or falsity)
Actual Malice
Media
52
Actual
Case to cite
New York
Times Co. v.
Sullivan, 376
U.S. 254
(1964)
Curtis
Publishing
Co. v. Butts
and
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into the
public eye
– requires a
volitional
act)
Private
Figure
Private
Figure
Public
concern
Private
Concern
State may choose
any standard
below strict
liability
Media
Common law of
defamation
NonMedia
No Actual Malice:
Actual
Associated
Press v.
Walker, 388
U.S. 130
(1967)
Gertz v.
Robert
Welch, Inc.,
418 U.S. 323
(1974)
Actual Malice:
Actual
Presumed
Punitive
Actual, Dun &
Presumed and Bradstreet,
Punitive Inc. v.
Greenmoss
Builders, 472
U.S. 749
(1985)
Court categorized these cases by:
 Who the plaintiff is (public official, public figure, private figure)
 Who the defendant is (media defendant or non-media defendant)
 Nature of speech (public concern or a private concern)
They then balance the cases between the rights of the parties involved and the public
need for the free flow of information
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) –
The constitution requires that public officials be barred from recovering from a media
defendant regarding:
 a defamatory statement
 relating to his official conduct
 unless he proves that the statement was made with “actual malice”
Actual malice:
 knowledge of falsity, or,
 reckless disregard for its truth or its falsity
Damages available: actual
In this case they find that the Times was, at most, negligent in failing to discover
misstatements, and is constitutionally insufficient to find recklessness. They also find
that because Sullivan was not named in the ad, it was impossible to find that the
statements were “of and concerning” him.
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Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967) –
extended the Times v. Sullivan rule to public figures who are involved in issues in which
the public has a sustained and important interest. In Butts, the Georgia football coach
was accused of fixing a game, and in Walker, a retired general was accused of leading a
violent crowd against desegregation.
Warren wrote that public figures should be held to the same standard as public officials
because of their influential role in ordering society. Public figures also have ready access
to the media to:
 counter criticism of their views and activities
 influence public policy
Public figure is defined here as one who injected himself into the public eye.
a volitional act.
It requires
Damages available: actual
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) – The case rose out of an article about
Elmer Gertz, a well-known lawyer (but a private figure for this case), in which he was
accused of framing a policeman for murder and being a communist.
The new standard for private libel actions against media defendants is:
 As long as the states do not impose strict liability,
 They may define for themselves the standard of liability for a publisher of a
defamatory statement injurious to a private individual
 Damages are available only for actual injury (no presumed or punitive damages)
when liability is not based on actual malice. Actual damages include harm to
reputation and standing in the community, personal humiliation, mental anguish
and suffering
Reasons why private individuals have a more generous standard:
 Private persons have little access to the self-help of the media; they are more
vulnerable to injury
 They had not voluntarily exposes themselves to increased risk of injury from
defamation
Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) – Dun & Bradstreet
erroneously reported that Greenmoss had been in bankruptcy. The court finds there is no
public interest at stake here. The speech was intended solely in the interest of the speaker
and its specific business audience. In the absence of the constitutional importance that
attaches when there is a matter of public concern, when the speech involves matters of
private concern, the heightened protections are lost and punitive and presumed damages
are available even absent a showing of actual malice.
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Damages: Actual, punitive and presumed
INJURY TO REPUTATION (NON-DEFAMATION TORTS)
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) – In a parody of a liquor ad, Hustler was
found liable for intentional infliction of emotional distress below. The Supreme Court
reversed holding that no matter how outrageous, speech about a public figure that is
obviously a parody and could not be mistaken for truth, is protected speech.
The court doesn’t want an “outrageousness” standard because it is unclear how it could
be drawn – there are no standards. Also a juror could impose liability based on very
subjective criteria, such as their taste and views, or their dislike of a certain kind of
expression. To recover in a case like this, the plaintiff must prove that in addition to
intentionally causing emotional distress, the publisher did so with actual malice (Times v.
Sullivan standard). This is really a per se rule of protection for such speech. The more
untruthful the speech, the less likely it is to be believable, so the less likely it is to be
suppressed.
False Light Invasion of Privacy – disclosure invaded privacy, and was false, although not
injurious to reputation. Standard is “actual malice”
Time, Inc. v. Hill, 385 U.S. 374 (1967) – The Hill family had been held hostage by
escaped convicts but were released unharmed. Three years later, Life magazine reported
on a play about the incident that falsely stated there had been violence committed during
the incident. The Hills received $300,000 at trial in a cause of action based on New
York’s right to privacy law. That law held that a newsworthy person could recover when
he was the subject of a report involving material and substantial falsification. The court
held that in such an action the plaintiff must prove
the defendant acted with actual malice.
HATE SPEECH
Cases to cite:
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
Wisconsin v. Mitchell, 508 U.S. 476 (1993)
Harmful or offensive to certain groups who historically had been disempowered. When
the government tries to constrain hate speech, it gives rise to claims under the 1st
amendment.
For removing it from 1st amendment protection:
 It is group libel and not protected by the 1st amendment (Beauharnais, which may
have been undermined in Times v. Sullivan).
 They are fighting words (but it must be one-on-one, and likely to provoke a
brawl).
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

Create a new category called “hate speech.” It has such low social value that it
doesn’t merit the traditional protections afforded by the 1st amendment.
The 14th amendment requires protections against this type of speech. Certain
groups cannot be marginalized in society. It silences people.
Against removing 1st amendment protection:
 1st amendment freedoms are absolute.
 Restrictions would be ineffective because the real underlying problem is racism.
Eliminating the speech will not eliminate the problem.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) – Petitioner was charged with a
misdemeanor under a city statute that barred placing on private property symbols,
objects, etc. that one knows or reasonably could know would cause anger, alarm or
resentment in others on the grounds of race, color, creed or gender. Petitioner burned a
cross on a black family’s lawn.
When the content of speech is proscribed solely because the government has hostility
towards it, that prohibition is unconstitutional.
Argument for Petitioner:
 Statute was overly broad, and
 Impermissibly content-based
 Therefore, unconstitutional under the 1st amendment
Petitioner moved to dismiss. Trial court granted; Minnesota Supreme Court reversed.
U.S. Supreme Court affirms. Scalia writes opinion.
The main thing in this decision is the concept of underinclusiveness. This is a new
concept in 1st amendment jurisprudence.
1. Even if the expression reached under the statute is proscribable as fighting words, the
statute is unconstitutional because it prohibits otherwise permitted speech solely on the
basis of the subjects it addresses.
Content-based regulations are presumptively invalid. However, content-based regulation
of speech has been permitted where the social value of the speech is so slight that any
interest in its protection is outweighed by the societal interest in order and morality
(Chaplinsky). However, such categories are not entirely unprotected by the 1st
amendment. Libel may be proscribed, but not if it is only libel critical of the government.
Speech that is critical of government may be proscribed if it is also obscene though. Also
burning a flag may be punishable under an ordinance banning outdoor fires, but not under
one banning dishonoring the flag.
However, speech prohibitions are not limited by underinclusiveness; there is a “content
discrimination” limitation. Government cannot regulate speech based on hostility or
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favoritism towards it. However, this limitation on government authority is not absolute.
“When the basis for the content discrimination consists entirely of the very reason the
entire class of speech at issue is proscribable, no significant danger of idea or viewpoint
discrimination exists.” The state might ban only the most patently offensive and
lascivious obscenity; it may not prohibit only that obscenity that contains offensive
political messages. You can regulate the extreme without having to regulate lesser
degrees of that category.
Another reason for according differential treatment to even a content-defined subclass of
proscribable speech is that the subclass is associated with particular secondary effects of
the speech. This is a way of saying that it is not really the speech that is being regulated,
it is the harm that results that is being regulated. A state can permit all obscene live
performances except those involving minors. Also, sometimes words can violate laws
against conduct, such as when treason bars telling the nation’s secrets. The test is that
there is no realistic possibility that official suppression of ideas is at foot. There is no
need to identify any neutral basis.
II. The court applies these criteria to the St. Paul law. This statute applies only to
fighting words that insult or provoke to violence on certain bases. If one wishes to use
fighting words to express hostility on other bases, they are not prohibited from doing so
under the statute.
The law also amounts to viewpoint discrimination. Some words would be prohibited to
proponents of all views. But other kinds of fighting words would be available to those
who oppose the proscribed speech. You could say that anti-Catholics are misbegotten,
but not that Catholics are misbegotten.
St. Paul urges that the speech is justified because it is narrowly tailored to serve
compelling governmental interests in protecting rights of members of groups that have
been subject to discrimination. However, the court writes that this statute is not
reasonably necessary to advance this interest. An ordinance not limited to these topics
would have achieved precisely the same beneficial effect. The only interest served is that
of showing the St. Paul city council’s hostility towards certain biases that were singled
out. The constitution forbids exactly that.
Even if cross burning is reprehensible, St. Paul has other sufficient means of dealing with
it without involving the 1st amendment.
White agrees that the statute is unconstitutional but on different grounds. He says that it
is overly broad because, while it bans speech that is not constitutionally protected, it also
bans speech that, though repugnant, is protected.
Wisconsin v. Mitchell, 508 U.S. 476 (1993) – This case limits R.A.V. to viewpoint
selective laws aimed expressly at otherwise unprotected words and symbols. This statute
did not ban any speech outright; it was a penalty enhancing statute. It is based on the
motive behind the crime. The RAV statute was aimed at speech; here it was directed at
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proscribed conduct. A group of blacks carried out a racially motivated vicious gang
assault on a young white boy. The respondent was found guilty of aggravated assault,
which normally carries a two year sentence, but because the jury found that he attacked
the boy because of his race, the maximum sentence was increased to seven years under a
provision that enhances the sentence when the crime is committed because of the victim’s
race, religion, color, disability, sexual orientation, national origin or ancestry. Mitchell
got four years. The Minnesota Supreme Court reversed on the basis of R.A.V., holding
that the statute violates the 1st amendment by punishing what the legislature deems to be
offensive thought.
Rehnquist writes that the statute considers motive in the same way that Title VII does, by
banning discrimination based on certain criteria. Title VII is a permissible contentneutral regulation of conduct.
R.A.V. is distinguishable because the law there was directed at expression. The
Wisconsin law is aimed at conduct unprotected by the 1st amendment. Also, the law
singles out bias crimes because they are thought o inflict greater individual and societal
harm. The desire to address these harms is an adequate reason to allow the penalty
enhancement provision over and above disagreement with the offenders’ beliefs and
biases.
SEXUALLY EXPLICIT SPEECH – OBSCENITY
 Obscenity is unprotected speech; the federal government and the states may freely
regulate it (Beauharnais; Roth).
 The test of whether speech or materials are obscene is whether to the average
person, applying contemporary community standards, the dominant theme of the
material taken as a whole appeals to prurient interest (Roth).
 The permissible scope of such regulation is limited to works that depict or
describe sexual conduct (Miller).
 The work must depict or describe, in a patently offensive way, sexual conduct
specifically defined by the applicable state law (Miller).
 The speech must lack serious literary, artistic, scientific or political value (Miller).
Prurient interest – community standard
Artistic, literary, political or scientific value – national standard
Cases to cite:
Beauharnais v. Illinois, 343 U.S. 250 (1952).
Roth v. United States, Alberts v. California, 354 U.S. 476 (1957)
Miller v. California, 413. U.S. 15 (1973)
Roth v. United States, Alberts v. California, 354 U.S. 476 (1957) – The court sustained
federal and state obscenity laws.
Obscenity is sometimes justified as artistic expression, which goes to self-fulfillment and
self-realization. Laws against obscenity exist to protect morality, children, and women.
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The court accepts the dicta in Beauharnais that obscenity is unprotected speech, and says
that judgment is mirrored in the many state, national and international obscenity laws.
The petitioners argue that the statutes ban thought. They require no showing that the
materials are related to, or create a clear and present danger of, antisocial conduct that are
or may be incited in persons stimulated to such thoughts. The court’s answer is
Beauharnais; this is not constitutionally protected speech, so the statutes can’t violate any
constitutional rights.
Sex and obscenity are distinguished. Obscenity is defined as material that deals with sex
in a manner appealing to prurient interest. The test is whether to the average person,
applying contemporary community standards, the dominant theme of the material taken
as a whole appeals to prurient interest. Speech and materials that address sex, but that are
not obscene, have constitutional protection.
Miller v. California, 413. U.S. 15 (1973) – Miller was convicted of the misdemeanor
offense of knowingly distributing unsolicited obscene advertising material through the
mail.
Stanley, a prior case, held that states have a legitimate interest in prohibiting
dissemination or exhibition of obscene material when the mode of dissemination carries
with it a significant danger of offending the sensibilities of unwilling recipients or of
exposure to juveniles.
Although obscene speech is unprotected by the 1st amendment (Roth), statutes designed
to regulate it must be carefully limited. Here the court announces that the permissible
scope of such regulation is limited to works that depict or describe sexual conduct. State
law must specifically define the conduct. The guidelines are:
a.
Whether the average person, applying contemporary
community standards, would find that the work, taken as a
whole, appeals to the prurient interest (Roth),
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.
Examples of what the state could define for regulation under these standards:
o
Patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or
simulated.
o
Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd
exhibition of the genitals.
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The jury system has to make this system work because of the community standards test.
Whether something is obscene is a question of fact.
Justifications for obscenity regulations:
 Debasement of individual character (paternalistic).
 Offense to unwilling onlookers.
 Inducement of criminal conduct (but there is no requirement of tight causation or
of a clear and present danger that such conduct will result from the consumption
of obscene material).
 Eroding moral standards (governmental endorsement of certain modes of sexual
conduct).
 Harming the social fabric
When does obscene speech have little value?
 Non-political
 Non-cognitive
 Not susceptible to counter-speech
SEXUALLY EXPLICIT SPEECH – CHILD PORNOGRAPHY
 Child pornography is categorically excluded from 1st amendment protection, a la
Chaplinksy. Distribution and mere possession may be prohibited.
 There is no requirement that the material be obscene.
 Any laws prohibiting such material must clearly define the conduct being
proscribed.
Cases to cite:
New York v. Ferber, 458 U.S. 747 (1982)
Osborne v. Ohio, 495 U.S. 103 (1990)
New York v. Ferber, 458 U.S. 747 (1982) – the court unanimously rejected a 1st
amendment challenge to a New York law (Penal Law § 263.15) dealing with child
pornography. Ferber was a bookstore owner convicted of selling two films depicting
young boys masturbating. White wrote the decision, and began by classifying child
pornography as a category of speech outside 1st amendment protection. The New York
statute barred depictions of children engaging in sexual conduct without requiring that it
be obscene.
The court begins by stating that the states have more freedom in proscribing works
depicting sexual acts or lewd displays of genitalia by children than in regulating
obscenity.
1. There is a compelling state interest in safeguarding the physical and psychological well
being of minors.
2. The distribution of materials depicting sexual activity by juveniles is intrinsically
related to the sexual abuse of children in two ways.
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i. The materials produced are a permanent record of their
participation, and the harm is exacerbated by their distribution.
ii. If the production of such material is to be effectively controlled,
then the distribution networks have to be closed.
Ferber urges that the state should ban the distribution of materials that are legally obscene
under the Miller test. However, that standard does not reflect the state’s more compelling
interest is prosecuting those who sexually exploit children. If a child is abused, it doesn’t
matter if the speech has literary, artistic, political or social value.
3. The advertising and selling of child pornography provides an economic motive for the
production of materials that are illegal throughout the country.
4. The value of permitting sexual performances by children is slight, if not de minimis.
5. Classifying child pornography as a material outside 1st amendment protections is
consistent with earlier decisions.
Requirements (adjustments to the Miller standard – it relaxes the requirements when
child pornography is at issue):
 Conduct to be prohibited must be adequately defined by state law.
 The trier of fact does not have to find that the material appeals to the prurient
interest of an average person.
 The sexual conduct portrayed does not have to be done so in a patently offensive
manner.
 The material at issue does not have to be considered as a whole.
Osborne v. Ohio, 495 U.S. 103 (1990) – the mere possession of child pornography can be
unlawful. The same interest in eliminating the distribution chain that was described in
Ferber justifies the criminalization of the possession of child pornography. Osborne
charged the statute was overly broad because it banned all depictions of nudity. The
court sustained the law though, because in its application, it had been limited to instances
where the nudity constituted a lewd exhibition or a graphic focus on the genitals, and
where the person depicted is neither the child nor the ward of the person charged.
Because there were no instructions on lewdness at trial, the conviction was reversed on
due process grounds and remanded.
SEXUALLY EXPLICIT SPEECH (NON-OBSCENE – ZONING, MEDIA, INTERNET)
Zoning
Young v. American Mini Theatres, 427 U.S. 50 (1976) – The court upheld portions of a
Detroit zoning ordinance that differentiated between adult movies theaters and other
movie theaters. The adult theaters claimed that the ordinance was unconstitutional
because it was based on the content of communication that was protected by the 1st
amendment. The city argued that this was a mere zoning law, needed because the
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location of several regulated uses (bars, hotels, cabarets, etc.) in an area caused decreased
property values, increase in crime, and attracted undesirable transients.
The Stevens plurality opinion held that this kind of communication is of lesser value than
core, political speech.
The question whether speech is protected or not by the 1st amendment often depends on
its content. This statute draws a line on the basis of content without violating the
obligation of neutrality in its regulation of protected communication. The locations
where such films may be exhibited is unaffected by their social, political or philosophical
message. No matter what point of view the film takes, it is treated the same under the
statute. The city is regulating the secondary effects of the regulated speech. They said it
was a content-neutral time, place and manner restriction.
The city has presented a record showing a factual basis for the council’s conclusion that
the lines drawn by this statute will be justified by the city’s interest in neighborhood
preservation. It is not for the court to decide on whether the plan will ultimately work.
They accord great deference to the local government’s determinations.
Powell concurred in the result, but on different grounds. He sees this primarily as a
zoning issue, implicating the 1st amendment only to a limited extent. However, because
there are 1st amendment implications, the state must justify its interests that compete with
the 1st amendment interests. A governmental regulation is sufficiently justified, despite
incidental effects on 1st amendment interests
 If it is within the constitutional power of the government
 If it furthers an important or substantial governmental interest
 If the governmental interest is unrelated to the suppression of free expression,
and
 If the incidental restriction on 1st amendment freedoms is no greater than is
essential to the furtherance of that interest.
(test comes from United States v. O’Brien)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) – Here the zoning ordinance
attempted to concentrate adult theaters rather than disperse them.
Rehnquist wrote for the majority that this ordinance was a time, place and manner
regulation. (This was a rejection of the content-based approach of American Mini
Theatres. Instead, it is like Powell’s concurrence in that case). Such regulations are
acceptable when they are content-neutral and are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of
communication.
Even if the statute seems to be aimed at the content of the films shown at adult theaters, it
is actually aimed at the secondary effects of such theaters on the surrounding community.
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More than 5% of the land area of Renton would still be available to the theaters under
this ordinance, albeit at high prices. Rehnquist wrote that if the theaters cannot compete
that real estate market it does not give rise to a 1st amendment violation. There is no right
to 1st amendment speech venues at cheap prices. Stevens, who wrote about secondary
effects in Mini Theatres, signed on this opinion.
Media
 The government may regulate the time, place and manner of indecent, but nonobscene, speech.
 Broadcasting receives the most limited 1st amendment protection because it is so
pervasive, and enters the home
 Regulation of indecent speech must be justified by a compelling governmental
interest, and a showing that the means used are the least restrictive ones available.
Cases to cite:
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989)
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) – WBAI broadcast George Carlin’s
Seven Dirty Words skit in a daytime program about contemporary attitudes towards
language. The FCC claimed that it had the right to channel non-obscene, but patently
offensive, language to times of the day when children are unlikely to hear it. The court
overturned the Court of Appeals, and decided 5-4 that the FCC has the power to regulate
radio broadcasts that are indecent but no obscene.
The statute’s prohibition of censorship did not limit the FCC’s authority to impose
sanctions “on licensees who engage in obscene, indecent, or profane broadcasting.” The
court held that the speech was indecent, and did not have to be obscene to be regulated.
Pacifica argues that all government regulations that depend on the content of speech
violate the 1st amendment. We know that they do not.
The question is whether a broadcast containing patently offensive words about sex and
excretion may be regulated because of its content. It is not enough that society finds the
words offensive. If the words could be said to have political content, then protections
might be required. That is not the case here, and this is the type of language that requires
a lesser degree of protection.
The context of the speech is essential to determining whether the FCC action was
constitutional. Broadcasting has received the most limited 1st amendment protection
because it is so pervasive that it confronts the citizen in his own home, where the right to
privacy outweighs the 1st amendment rights of an intruder. Simply tuning to another
station is not adequate because the offensive intrusion has already taken place. Also,
broadcasting is uniquely available to children. The court did not ban these words from
the airwaves. It was a time, place and manner regulation.
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THIS CASE IS CITED FOR THE POWER OF GOVERNMENT TO REGULATE
INDECENT, ALTHOUGH NOT OBSCENE SPEECH.
Powell, concurring, writes that the court should not categorize speech according to how
much protection it deserves.
Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989) – The court struck down a
federal law placing criminal prohibitions on dial a porn services, initiated by the listener,
that are obscene or indecent. The court struck down the indecency part of the law.
Sexual speech that is less than obscene is protected. The compelling governmental
interest at stake is in keeping children from access to obscenity. However, the solution
was not sufficiently narrowly tailored, as other alternatives like credit card verification,
access codes, etc., were available.
Internet
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) – Challenge to the
Communications Decency Act of 1996. First (indecent transmission) provision prohibits
knowing transmission of obscene or indecent messages to any recipient under 18. The
second (Patently offensive display) provision prohibits the knowing sending or displaying
of patently offensive messages in a manner that is available to a person under 18 years of
age.
The District Court enjoined the government from enforcing both provisions (the indecent
transmission provision insofar as it bans “indecent communications”), while expressly
reserving the government’s right to investigate and prosecute obscenity and child
pornography contained therein. The injunction against enforcement of the patently
offensive display provision is unqualified because it contains no references to obscenity
or child pornography. The Supreme Court affirms.
Because there is no way to verify that recipients of messages are not children, this statute
would unavoidably burden legal speech among adults, without doing so in the least
burdensome way possible. A parent who permitted a child under eighteen to view certain
material could be prosecuted under the statute.
COMMERCIAL SPEECH
 Commercial speech merits a lesser degree of protection
Analysis for commercial speech cases (similar to intermediate level scrutiny):
 Is the speech protected by the 1st amendment? For commercial speech it must:
o Concern lawful activity
o Not be misleading
 Is the asserted governmental interest substantial? If yes to both:
Determine if the regulation directly advances the governmental interest asserted, and is
no more extensive than necessary to serve that interest (This is subject to the Board of
Trustees clarification)
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Cases to cite:
Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
Board of Trustees, State Univ. of New York v. Fox, 492 U.S. 469 (1989)
Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) –
Commercial speech merits some protection, albeit less protection. Also, there is a right
to know, or receive information under the 1st amendment.
Before 1976, most commercial speech lacked 1st amendment protection. Today it has
some protections, and is considered a “low value” category.
THIS CASE PROVIDES THE OPERATIVE LAW ON COMMERCIAL SPEECH!!!
The court has waffled since, but they have stuck with it. Central Hudson Gas v. Public
Service Commission, 447 U.S. 557 (1980) – Gas company challenged a NY PSC
prohibition on advertising designed to stimulate demand for electricity. The ban had
begun during an energy shortage, which had since passed. It allowed only informational
and institutional advertising. The court invalidated the regulation.
Powell opinion:
Analysis for commercial speech cases (similar to intermediate level scrutiny):
 Is the speech protected by the 1st amendment? For commercial speech it must:
o Concern lawful activity
o Not be misleading
 Is the asserted governmental interest substantial? If yes to both:
 Determine if the regulation directly advances the governmental interest asserted,
and is no more extensive than necessary to serve that interest (This is subject to
the Board of Trustees clarification)
 Board of Trustees clarification – There must be a substantial governmental
interest, a reasonable fit between means and ends. It must not be narrowly
tailored, though not necessarily the least restrictive. Board of Trustees, State
Univ. of New York v. Fox, 492 U.S. 469 (1989).
Arguments for Commission:
o The speech concerns lawful activity and is not misleading, but
o The State interest in conserving energy is sufficient to justify suppression of this
advertising. The court agrees this is a substantial interest.
o The state interest is directly advanced by the order
Because the ban also suppresses commercial advertisement that encourages the uses of
forms of energy that are equally efficient or more efficient than other sources, the ban is
more extensive than necessary. The regulation bans speech that does not impair the state
interest in energy conservation.
Blackmun concurrence:
Concurs only in the judgment. He feels the test applied is wrong, and does not
adequately protect commercial speech. The regulation is unconstitutional because it is an
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attempt by the state to manipulate the choices of citizens by depriving them of
information needed to make a free choice about a legal product and service.
Stevens concurrence:
He does not see this as a commercial speech case. Instead he sees it as a curtailment of
discussion about electric energy use.
Rehnquist dissent:
Because this utility is more like a state-controlled enterprise than an ordinary corporation,
the speech is not protected by the 1st amendment. The court also fails to give deference
to the low value of commercial speech.
Board of Trustees, State Univ. of New York v. Fox, 492 U.S. 469 (1989) – the court
clarified that the Central Hudson test does not require that the state means be the least
restrictive alternative. Here the state university ban on commercial enterprises on
campuses had the effect of barring Tupperware parties. Finding that commercial speech
was involved, Scalia used the Central Hudson test. He holds that what is required is a
“reasonable” fit between means and ends. It must be narrowly tailored, but not
necessarily the least restrictive. The governmental goal must be substantial though. The
regulation was upheld. This ruling gives the state more leeway in regulating commercial
speech. There is not heavy scrutiny of the means used as long as the governmental
interest is “substantial.” They don’t ask if these were the least restrictive means
available. State bears the burden of proving that the means are reasonable.
Lorillard Tobacco Co. v. Reilly, 121 S.Ct. 2404 (2001) – The court applied the Central
Hudson test to state tobacco-advertising regulations. The Massachusetts state law in
question banned tobacco-advertising billboards within 1000 feet of a school or
playground, and required point of sale advertising to be at least five feet from the floor.
The court found the billboard regulation was not sufficiently narrowly tailored, and was
expressly preempted by federal law. They found the indoor advertising regulation neither
advances the state interest nor was sufficiently narrowly tailored.
FREEDOM OF SPEECH – STANDARDS
CONTENT-BASED RESTRICTIONS
The critical distinction is between content-based and content-neutral regulations.
Viewpoint restrictions – the paradigm violation of the 1st amendment
Subject matter restrictions – these regulations have attracted strict scrutiny by the courts.
SYMBOLIC SPEECH
When a governmental regulation of symbolic speech is justified:
 It is within the constitutional power of the government
 It furthers an important or substantial governmental interest (sounds like
intermediate level scrutiny)
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

The governmental interest is unrelated to the suppression of free expression
The incidental restriction on alleged 1st amendment freedoms is no greater than is
essential to the furtherance of that interest
United Speech v. O’Brien, 391 U.S. 367 (1968) – O’Brien was convicted under a
criminal statute of burning his draft card. He alleged that he burned it to express his
opinion about the draft and to perhaps win over others to his point of view. The court
held that the law banning burning a draft card is constitutional.
Simply because the law banned destruction of the draft card it does not punish destruction
engaged in to express a view. It also banned private destruction.
O’Brien argues that his act was protected symbolic speech, and that the 1st amendment
addresses all modes of communication of speech by conduct.
When speech and non-speech elements are involved, a sufficiently important
governmental interest can justify incidental limitations on 1st amendment freedoms.
When a governmental regulation of symbolic speech is justified:
 It is within the constitutional power of the government
 It furthers an important or substantial governmental interest (sounds like
intermediate level scrutiny)
 The governmental interest is unrelated to the suppression of free expression
 The incidental restriction on alleged 1st amendment freedoms is no greater than is
essential to the furtherance of that interest
This intermediate scrutiny-type test will apply only when the governmental interest is
unrelated to the suppression of free speech.
FLAG BURNING
Texas v. Johnson, 491 U.S. 397 (1989) – flag burning case in Dallas. He burned a flag in
the course of a demonstration against President Reagan.
First court must determine if the act of flag burning was a communicative act that
implicates the 1st amendment. The question is whether there was intent to convey a
particularized message, and whether observers would have understood that message.
Then, in order to determine if the O’Brien test applies, the court must determine if the
state interest is in the suppression of free expression. Because expression was involved,
the state had to show a compelling interest. State said they wanted to prevent breaches of
the peace, and preserve the flag as a symbol of national unity. Because there had been no
breach of the peace, the court rejected the first argument. While it acknowledged the
second argument, it said that they were banning the message not solely the act. It would
amount to punishment for a message that is disagreeable to the government. Brennan
writes that the appropriate response to disagreeable speech is responsive speech. Salute
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the flag as an answer to flag burning.
United States v. Eichman, 496 U.S. 310 (1980) – Challenge to federal and Washington
state flag burning laws. Here the government argues that the law did not target the
message, but rather the physical integrity of the flag. It prohibited conduct rather than
speech. Court applies strict scrutiny. Court requires compelling interest and least
restrictive means. They overturn the law.
MODERN PUBLIC FORUM DOCTRINE
This focuses not on the nature of speech, but on the nature of the governmental
regulation.
Public forum doctrine – Three categories:
 Traditional public forum – parks, sidewalks and streets (soapbox). Even the
poorest person has access to the public. Open since time immemorial. The courts
will apply a compelling governmental interest test.
 Designated public forum - a specific non-traditional public area the government
chooses to open to the public. Usually not a totally open forum. It is usually a
limited public forum, and the government is free to identify the speakers and
topics, but they cannot discriminate. The courts will apply a compelling
governmental interest test when it is an open forum. When it is a limited public
forum, there can be no viewpoint discrimination.
 Non-public forum – not traditionally open and not designated by government.
Traditional Public Forum
Designated public forum: Open Forum
Designated Public Forum: Limited Public
Forum
Non-Public forum
Compelling governmental interest
Compelling governmental interest
Rational basis test: No Viewpoint
Discrimination
Rational basis test: No Viewpoint
Discrimination
PERRY AND CORNELIUS ARE THE LEADING CASES ON PUBLIC FORUM
DOCTRINE
Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983) – public
forum at issue was teachers’ mailboxes at schools. The court identifies the three types of
forums. When there is a public forum, they impose of a compelling governmental
interest test, but the government can impose time, place and manner regulations, as long
as they are not related to the content of speech. We also had these regs in City of Renton,
Pacifica and American Mini Theatres.
Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788 (1985) – A government
fundraising campaign was deemed to be a public forum. These forums can be
metaphysical. You have to be open to finding them. The court categorizes this as a nonpublic forum.
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How to categorize the forums:
 Government has to have an affirmative policy or practice to open the non-public
forum either generally to the public or on a limited basis.
 Nature of property
 Compatibility with expressive activity
The court gives government enormous discretion outside public forums to decide on
topics and speakers, as long as there is no viewpoint discrimination. Professor Salomone
sees it as an anti-free speech decision.
TIME, PLACE, MANNER RESTRICTIONS
 A content-neutral time, place and manner restriction gets substantial
governmental interest test
 Statute must be narrowly drawn, although not least restrictive.
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) – Demonstrators
wanted to pitch tents and camp in Lafayette Park and the Mall in D.C. to bring attention
to the plight of the homeless. They were given permission, but they couldn’t sleep there.
They could stay in their shantytowns 24 hours a day and feign sleep, but not actually
sleep. The court says this is a content-neutral time, place, manner regulation, which gets
substantial governmental interest, narrowly drawn statute scrutiny, like symbolic speech.
It does not have to be the least restrictive means though. There is deference to the Parks
Service.
Ward v. Rock Against Racism, 491 U.S. 781 (1989) – NYC law required acts performing
at the bandshell in Central Park were required to use city sound system and technicians.
It was a narrowly drawn, content-neutral regulation intended to keep noise levels down.
It does not need to be the least burdensome alternative. This was a place, manner
restriction.
TRANQUILITY, PRIVACY AND REPOSE
Madsen v. Women’s Health Center, Inc. 512 U.S. 753 (1994) – The court held that this
was a content-neutral restriction on demonstrating on public streets outside abortion
clinics.
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) – Court
establishes two types of buffer zones:
 Floating buffer zone – government can’t keep people coming within a certain
distance of people. Burdened more speech than was necessary
 Fixed buffer zones – OK
Hill v. Colorado, 530 U.S. 703 (2000) – court upholds as constitutional a law prohibiting
protestors around a health care center from knowingly approaching within eight feet of
another person to speak or give literature.
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RELIGIOUS SPEECH ON PUBLIC PROPERTY
 Laws were attacked as restrictions on viewpoint expression, rather free exercise.
This was a successful strategy.
 Private religious speech is a form of viewpoint speech, protected by strict scrutiny
Widmar v. Vincent, 454 U.S. 263 (1981) – University of Missouri banned religious
worship in campus facilities. They did allow other expressive purposes in those facilities.
The university said it would violate the establishment clause of the 1st amendment if they
let them use the facilities.
The court (Powell decision) said the government had created an open forum, available to
students. The university violated their freedom of speech and freedom of association.
They used compelling interest test. State said that interest was the establishment clause.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) –
religious group wanted to use school facilities for programs about family values, as nonreligious groups had been allowed to do. The court says that even if it were only a nonpublic forum there was viewpoint discrimination. They dismissed an establishment
clause defense.
Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001) – school wouldn’t let
Christian group use school building after school for bible study, scripture memorization,
singing religious songs. The court agrees this is viewpoint discrimination. They cite
Lamb’s Chapel. Professor Salomone just wrote something on this.
Stevens – kinds of religious speech:
 Religious viewpoints - OK
 Proselytizing – Can bar it because of establishment clause
 Worship - Can bar it because of establishment clause
Private religious speech is a form of viewpoint speech, protected by strict scrutiny
Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995) – the KKK wanted to erect
a cross in a designated public forum. The city said it was a religious display and banned
it. The court said that private religious speech is viewpoint speech, and cannot be barred
by government. It is private speech, but a private group, and cannot be misconstrued as
government speech.
Government can designate topics in a designated public forum (reasonableness test).
However, because the court recognizes religion as viewpoint speech, it must meet strict
scrutiny (compelling governmental interest).
FIRST AMENDMENT ACCESS RIGHTS TO PRIVATE PROPERTY
There is no first amendment right to access private property for the purpose of expressive
conduct. Hudgens v. NLRB is the case to cite.
(These cases were also seen in the state action cases for 14th amendment)
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Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968) – court
relied on Marsh v. Alabama to protect the right of a union to picket a supermarket in a
privately-owned shopping center. BAD LAW
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) – distinguished Logan Valley in holding that
an anti-war demonstrator had no 1st amendment right to distribute handbills in a
shopping center, when the speech had no relation to the functions of the shopping center.
In Logan Valley, they said, the picketing related to the function of the shopping center.
Hudgens v. NLRB, 424 U.S. 507 (1976) – announced that Lloyd overruled Logan Valley.
FIRST AMENDMENT RIGHTS IN PUBLIC SCHOOLS


1st amendment rights apply in the school
Viewpoint discrimination cannot be justified by mere apprehension of disturbance
The school must show that the speech in question would:
 Materially and substantially interfere with the work (requirements of appropriate
discipline) of the school, and
 Impinge on the rights of other students. (Tinker)
 School officials can constrain lewd, indecent and offensive speech in any way
(Bethel)
 When the student speech is school-sponsored, the school can regulate it as long as
it is reasonable and relates to legitimate pedagogical concerns. (Hazelwood)
This case is regarded as the high-water mark for student rights. Everything since this
case has been a retreat, offering more discretion to school officials to regulate which
views are expressed.
This case is still good law, and still the benchmark, but subsequent cases distinguish it.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) –
school barred students from wearing black armbands to protest the Viet Nam War.
Decision by Justice Fortas. This was (symbolic) political speech, which is the most
highly protected type of speech. Teachers and students don’t shed their constitutional
rights at the schoolhouse gate.
1st amendment rights apply in schools. The school here was engaging in impermissible
viewpoint discrimination. Such a bar to speech cannot be justified by mere apprehension
of a disturbance. The school must show that the speech in question would:
 Materially and substantially interfere with the work (requirements of appropriate
discipline) of the school, and
 Impinge on the rights of other students.
Failure to meet this test removed the speech from protection.
Also, the school did not ban the wearing of all symbols of political significance. It was
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limited to this symbol of this particular topic. Students may not be confined to the
expression of opinions that are officially approved. This principle applies throughout the
school day and is not limited to the classroom.
Perhaps a school could ban all symbols on the grounds that it is a content-neutral
regulation, and it is a designated public forum that can be shut down at any time.
The courts are more likely to permit regulations of religious and political speech when
they use time, place and manner regulations.
The safest way for the school is to ban all religious and political speech.
School officials can constrain lewd, indecent and offensive speech in any way
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) – Tinker does not extend
to lewd, indecent, offensive speech by a student, where the punishment is not related to
the expression of any political viewpoint. The school is the vehicle for inculcating
values. This speech is inconsistent with the values of public school education.
When the student speech is school-sponsored, the school can regulate it as long as it is
reasonable and relates to legitimate pedagogical concerns.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) – White majority opinion
holds that a school newspaper is not a traditional or designated public forum, so Tinker
does not govern where a school regulates content. The test is reasonableness. The school
actions must be reasonably related to legitimate pedagogical concerns.
The court distinguishes between toleration of speech (Tinker) and promotion or
sponsorship.
The Tinker question was whether the 1st amendment requires a school to tolerate
particular student speech. The question here is whether it requires schools to promote it.
This concerns school authority over school publications and events that would seem to
bear the school imprimatur. The activities are more like the school curriculum when they
have faculty supervision and are designed to impart particular knowledge and skills.
Faculty has more discretion with this kind of student expression to make sure that the
participants learn the lesson the activity is designed to impart, that the audience isn’t
exposed to inappropriate material, and that the individual views are not erroneously
attributed to the school.
PUBLIC EMPLOYEE SPEECH
How cases typically arise: Government worker, so his employer is a state actor. The
worker has 1st amendment free speech rights. The worker is usually claiming he has
been terminated for exercising free speech rights.
Inquiry: Is the employee:
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

Speaking as a private citizen
On a matter of public concern? (Plenty of protection)


As an employee
On work-related matters (Less protection)
or,
Whether the speech is a matter of public concern depends upon:
 Form
 Content
 Context (Myers v. Connick)


The state’s interest in content-related sanctions was minimal where the employee
is not in a confidential, policymaking or public contact role. (Rankin v.
McPherson)
If the employer reasonably perceived the statement to be private concern speech,
even if the employer is mistaken, he does not violate the constitution if he fires
the employee. (Waters)
Pickering v. Board of Education, 391 U.S. 563 (1968) – the first amendment protects the
right of a teacher to speak as a citizen on a matter of public concern and interest of the
state. There is an important interest in free and public debate to foster informed decisionmaking by the public.
Government employees are in a unique position to understand the workings of
government and to give the public the inside scoop. When the employee speaks as a
private citizen on a matter of public concern, the employee’s interest is weighed against
the state interest in the smooth operation of government.
Statements that directly criticize supervisors or affect relationships with supervisors may
not be as well protected because they may tend to disrupt the government office.
Givhan v. Western Line, 439 U.S. 410 (1979) – extended Pickering to dismissals arising
out of private encounters.
Connick v. Myers, 461 U.S. 138 (1983) – Myers was fired from her job as an A.D.A.
because she distributed a questionnaire to co-workers about morale and working
conditions. She claimed her free speech rights were being violated. In a decision written
by White, the court held that:
When employee expression cannot be fairly considered as relating to any matter
of political, social or other concern to the community, government officials
should enjoy wide latitude in managing their offices, without intrusive oversight
by the judiciary in the name of the 1st amendment.
This rule is about deference to the personnel decisions of governmental agencies. If the
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employee is not commenting as a citizen on a matter of public concern, the federal court
is not the venue for deciding the merits of the agency’s response to the employee’s
conduct.
Is the speech a matter of public concern?
 Form
 Content
 Context
Here there was one question that touched upon matters of public concern – the question
about whether staff felt pressured to work on political campaigns. For this reason the
court must decide whether Connick was justified in firing Myers. Pickering requires a
balancing test; the court looks at the nature of the employee’s expression. Pickering
required consideration of the government’s interest in effectively and efficiently fulfilling
its responsibilities to the public. Myers’ actions were viewed as insubordination that
interfered with the work of the office.
The context is also important. Myers was not engaging in dispassionate research. This
arose from an employment dispute.
In Connick, the comments were made in the office and arose from an employee
grievance. In Pickering, the comments concerned a public matter and were made in a
public forum.
Rankin v. McPherson, 4983 U.S. 378 (1987) – A clerical employee of a county
constable’s office was fired after commenting that she hoped the President Reagan would
be killed. The Marshall opinion held that this was a comment on a matter of public
concern, made during a discussion of Reagan administration policies. In employing the
Pickering balancing test, the court held that the state’s interest in content-related
sanctions was minimal where the employee is not in a confidential, policymaking or
public contact role. He concluded that the statement did not interfere with the effective
functioning of the office, nor was it made in a context that would discredit the office.
Waters v. Churchill, 511 U.S. 661 (1994) – nurse at public hospital fired for criticizing
her supervisor. If the employer reasonably perceived the statement to be private concern
speech, even if the employer is mistaken, he does not violate the constitution if he fires
the employee. The court shows deference to the reasonable perception of a public
employer.
FREEDOM OF SPEECH – INDEPENDENT CONTRACTORS
Board of Commissioners, Wabaunsee Co., v. Umbehr, 518 U.S. 668 (1986) and O’Hare
Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1986) – Pickering applies to
independent contractors.
GOVERNMENT SUBSIDIZED SPEECH
 Government has the freedom to fund whatever viewpoints is wants
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Rust v. Sullivan, 500 U.S. 173 (1991) – government law forbad Title X projects from
referring women for abortions or encouraging abortion. They also had to keep Title X
and non-Title X money separate. The doctors and counselors could engage in pro-choice
but not pro-abortion speech – viewpoint discrimination.
The court ruled that free speech rights were not undermined. The government has the
freedom to fund whatever viewpoints it wants to fund. The doctors and counselors do not
have to participate in the Title X program. The point of the program was not to set up a
forum for private speech. It was set up to advance a view.
This case is distinguishable from the “unconstitutional condition” cases where recipients
are required to give up constitutional rights. Here the recipients of Title X money could
engage in this speech outside the scope of the Title X project, under other funds. It could
even be in the next room. “Unconstitutional condition” cases arise often in school
voucher cases.
Rosenberger v. Rector and Visitors of the University of the State of Virginia, 515 U.S.
819 (1995) – university refused to fund a publication advancing a Christian perspective
on issues. The funding restriction was invalidated as viewpoint discrimination. Religion
is viewpoint (not content or subject matter) – like Lamb’s Chapel, so strict scrutiny is
required!!! The university had created the designated public forum, but wanted to close
off one particular viewpoint (religion). They distinguish Rust by saying that there the
government did not create any type of public forum. They used private speakers to
transmit the government message. Here the government created a designated public
forum, and then closed off a viewpoint.
NEA v. Finley, 524 U.S. 569 (1998) – four performance artists and an artists organization
challenged a requirement that the NEA award grants according to artistic excellence and
merit, accounting for decency standards and respect for diverse beliefs and values.
(These standards could be overbroad and vague.) Respondents argue this is viewpoint
discrimination. The NEA argues that these are guidelines, not requirements. The court
agrees with the NEA, and notes that content-based decisions are intrinsic to arts funding.
There are many reasons to make such choices. Government is acting as a patron, not a
sovereign.
Rosenberger is distinguished because there was a public forum.
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) – ban on LSC funding indigent
clients in challenges of current welfare law. The court found that prohibition to be illegal
viewpoint discrimination because these clients had no other channel for such advocacy.
OVERBREADTH
“A governmental purpose to control or prevent activities constitutionally subject to
regulation may not be achieved by means which sweep unnecessarily broadly and thereby
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invade the area of protected freedoms.” NAACP v. Alabama (1964)




A determination of overbreadth invalidates a law on its face, not merely as
applied. The court does not look at the challenger’s speech as such, it looks at
how it may injure others whose activities are constitutionally protected.
Overbreadth is an exception to rules of standing. Challengers are in effect
allowed to raise the rights of third parties.
A law must be substantially overbroad to fall to overbreadth
As the behavior moves from pure speech towards conduct, the more substantial
the overbreadth must be.
Broadrick v. Oklahoma, 413 U.S. 601 (1973) – the court requires that before a law falls
to overbreadth, the court must determine that the law is substantially overbroad, judged in
relation to the context of the statute as a whole. The court will invalidate statutes for
overbreadth only when the flaw is a substantial concern in the context of the statute as a
whole. This is not a mechanical test, and shows some hesitancy to employ the doctrine.
Overbreadth should be used sparingly. Overbreadth is used where statutes regulate only
spoken words. The more it moves from speech towards conduct, the more the court will
search for overbreadth.
VAGUENESS
The concept of vagueness under the 1st amendment draws on the procedural due process
requirement of adequate notice. A law will be void for vagueness if:
 Persons of common intelligence
 Must guess at its meaning, and
 Differ as to its application
In addition the requirement is aimed at preventing selective enforcement of laws.
Legislatures must set clear guidelines for enforcement and adjudication, in order to
prevent discriminatory and arbitrary treatment.
Statutes that are void for vagueness under the 1st amendment result in facial invalidations
of the statutes in question.
Coates v. Cincinnati, 402 U.S. 611 (1971) – ordinance made it illegal for:
“three or more persons to assemble on any of the sidewalks and there conduct
themselves in a manner annoying to persons passing by.”
The statute is vague because it holds citizens to an unascertainable standard. The
annoying requirement means there is no standard at all.
The statute is overly broad because it authorizes the punishment of conduct
constitutionally protected. The law invites discriminatory enforcement against
unpopular people expressing unpopular views.
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N.E.A. v. Finley, 524 U.S. 569 (1998) – 1st amendment prohibition on vagueness does
not extend to vague conditions on public subsidies of the arts. Because the government is
a patron of the speech involved, and not a sovereign over it, the constitutional
implications are not severe.
PRIOR RESTRAINT
These often come up in licensing schemes and permits schemes or injunctions.
CITE FREEDMAN FOR THE NOTION THAT BEFORE GOVERNMENT CAN PUT
A PRIOR RESTRAINT IN PLACE, IT MUST SET UP PROCEDURAL
SAFEGUARDS
Freedman v. Maryland, 380 U.S. 51 (1965) – the court announced procedural safeguards
designed to obviate the danger of a censorship system. These safeguards have proved
important well beyond obscenity matters.
Before a local censorship board could revoke a book or movie distributor’s license for the
sale or display of obscene materials, or otherwise engage in prior restraint of allegedly
obscene materials, it must:
 Provide the accused a prompt hearing
 Carry the burden of showing that the material is obscene
 Defer to a judicial proceeding for the imposition of a valid final restraint on the
material, and
 Either refrain from making a finding of obscenity, or, as a requirement of law
under the board’s enabling statute or clear judicial mandate, take action on its own
behalf in a court of law to seek an affirmation of its initial finding of obscenity.
Prior Restraint and National Security
PROFESSOR SAYS SHE GAVE US THIS CASE TO ILLUSTRATE THE USE OF
PRIOR RESTRAINT AT AN IMPORTANT MOMENT IN HISTORY
New York Times Co. v. United States [The Pentagon Papers Case], 403 U.S. 713 (1971)
– There was a massive leak of governmental documents on the Viet Nam war, published
while the war was ongoing. The court dismissed temporary restraining orders against the
New York Times and the Washington Post, and refused to enjoin the newspapers from
publishing these classified documents on U.S. policy towards Viet Nam.
There were nine opinions and a 6-3 majority, but the nine agreed on two principles:
 Any system of prior restraint bears a heavy presumption against constitutional
validity.
 The government carries a heavy burden to justify any system of prior restraint.
Black and Douglas
No system of prior restraint is ever appropriate. To hold otherwise would destroy the 1st
amendment. The press is to serve the governed, not the governors. No statute barred
publication. If there was no statute, government had to fall back on its inherent powers.
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Brennan, White, Stewart and Marshall
Prior restraint may be appropriate in some cases, but not here. Brennan wrote that no
prior judicial restraints upon the press predicated upon surmise or conjecture that
unfavorable results would follow. He would allow it during war, but the government
would have to prove that the direct consequence of the publication would be of the
magnitude of a nuclear holocaust. This test is so severe as to be a virtual prohibition.
Stewart would allow prior restraints imposed by the executive to maintain national
security. The government would have to prove that the publication would result in direct,
irreparable and immediate damage to the nation or its people.
Burger, Harlan and Blackmun
Prior restraint was appropriate here.
COMPELLED INDIVIDUAL SPEECH
 Government cannot compel speech that the individual does not believe in
 Government cannot compel us to speak or to carry the government’s ideological
message that one may object to
Minersville School Dist. V. Gobitis, 310 U.S. 586 (1940) – rejected a 1st amendment
challenge to the requirement to salute the flag at school.
PROFESSOR SALOMONE LOVES THIS CASE West Virginia State Board of Ed. V.
Barnette, 319 U.S. 624 (1943) – The court reversed Gobitis. This is a Jehovah’s Witness
case. The rights of free speech and free worship precluded the state from making the flag
salute and pledge of allegiance compulsory. A student’s silence during the pledge and
salute did not create a clear and present danger that could justify compulsion. No state
official can prescribe what shall be orthodox in politics, nationalism, religion or other
matters of opinion or force citizens to confess by word or act their faith within. The
requirement forces people to affirm a belief they do not hold.
The state’s justification that these activities fostered national unity was insufficient. They
can try to achieve that goal by persuasion, not coercion.
Cited for the proposition that government cannot compel us to speak or to carry the
government’s ideological message that one may object to.
Wooley v. Maynard, 430 U.S. 705 (1977) – Jehovah’s Witnesses objected to New
Hampshire license plates that said “Live Free or Die.” The court held that the state was
forcing drivers to carry the state’s ideological message, or they would suffer a penalty.
There was no state interest weighty enough to override the petitioners’ free speech
interest.
COMPELLED SPEECH (ACCESS TO OTHERS)
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557
(1995) – The state may not constitutionally require private individuals who organize a
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parade to include among the marchers a group imparting a message that the organizers do
not wish to convey. The state law in question effectively ordered parade organizers to
alter the expressive content of their parade.
FREEDOM OF ASSOCIATION (OVERVIEW)
The freedom to associate was recognized in NAACP v. Alabama (1958). Individual
rights of expression can be made more effectual by collective action. The freedom of
association is an implied right within the 1st amendment.
Freedom of Association (Denial of Government Benefits)
 Legislation that sanctions membership unaccompanied by specific intent to
further the unlawful goals of the organization or which is not active membership
violates constitutional limitations
Keyishian v. Board of Regents, 385 U.S. 589 (1967) – SUNY professors failed to sign a
document certifying that they were not Communists, and if they were, that they had
advised the university president. The law required removal for treasonable or seditious
acts. The professors can’t know where the line is drawn between seditious and nonseditious acts and utterances under that law. For that reason, the law was
unconstitutionally vague.
As for the non-Communism requirement, public employment cannot be conditioned upon
the surrender of constitutional rights that cannot be abridged by direct government action.
Membership in the Communist Party was not illegal.
Legislation that sanctions membership unaccompanied by specific intent to further the
unlawful goals of the organization or which is not active membership violates
constitutional limitations.
These provisions suffer from unconstitutional overbreadth. They seek to bar employment
for association that may legitimately be proscribed and also for association that may not
be proscribed because of the 1st amendment.
RIGHT NOT TO ASSOCIATE
 There is no right of intimate association. The interest in expressive association is
not absolute; the state must a compelling countervailing interest.
 Clubs may discriminate in membership if they meet standards of:
o Size
o Selectivity
o Seclusion
Roberts v. United States Jaycees, 468 U.S. 609 (1984) – the court rejected a challenge to
a Minnesota anti-discrimination law in places of public accommodation. The Jaycees
argued that the law forcing them to admit women to full membership interfered with their
freedom of association rights. The court held that Minnesota’s compelling interest in
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eradicating discrimination against females justifies the impact of application on the male
members’ right to associate freely. The court also found the law content neutral on its
face and as applied. The restriction of associational liberty was incidental to the state
interest in preventing sex discrimination. There is no right of intimate association. The
interest in expressive association is not absolute; the state must a compelling
countervailing interest.
New York State Club Ass’n. v. City of New York, 487 U.S. 1 (1988) – the court upheld
against a 1st amendment (freedom of association) challenge a law prohibiting racial,
religious or sex discrimination in any club, institution or place of accommodation having
more than 400 members, regularly serves meals and regularly received payment from
nonmembers for services. The court left open the possibility that a club may be able to
show that may be unable to express its viewpoint as effectively, but the clubs challenging
the law were not like that.
Clubs may still discriminate if they meet the Jaycees requirement of:
 Size
 Selectivity
 Seclusion
Boy Scouts of America v. Dale, 530 U.S. 640 (2000) – the Boy Scouts were allowed to
exclude an otherwise qualified scoutmaster because he disclosed his homosexuality.
New Jersey was not allowed to apply its state anti-discrimination law here.
Forced inclusion affects a group’s freedom of expressive association if the presence of
that person affects in a significant way the group’s ability to advocate public or private
viewpoints.
First, the court must determine if the group engages in expressive association. Here the
principal mission of the Scouts was said to be to instill values in young people. The
scoutmasters inculcate the scouts in values expressly and by example. They therefore
engage in expressive activity.
Second, if the group engages in expressive association, the court must determine if the
forced association would significantly affect the group’s ability to advocate public or
private viewpoints. Here, the Scouts teach that homosexuality is not morally straight or
clean, and they do not wish to promote homosexuality as legitimate behavior.
The court grants deference to an association’s view of what would impair its expression.
RELIGION CLAUSES
Over the past 30 years, the court has loosened up on establishment clause (state aid to
religiously affiliated schools) and tightened up on the exercise clause (Smith).
Everson v. Board of Education, 330 U.S. 1 (1947) - Jefferson metaphor – high and
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impregnable wall of separation between church and state. Madison and Jefferson were
active in Virginia and separationist, but these issues were different from those involving
the two prongs of the religion clause. Others believe the government should be neutral;
they should neither favor nor disfavor. Others think there should be complete separation.
Most agree that the framers believed simply that there should be no established church.
Laws That Discriminate Against Religion
 Test: if you can prove a sincerely held religious belief, the state has to show a
compelling governmental interest, and that the law is the least restrictive means
available. This applies even with a facially neutral law of general applicability
that had a disparate impact because of the religious beliefs. A mere philosophical
belief is not sufficient; that is more a matter of personal choice. It must be
grounded in religion, shared by a religious group, and intimately attached to their
day-to-day way of life.
 When there is a facially neutral law of general applicability, they will use rational
basis
Church of the Lukumi Babalu Aye v. City of Hialeah – city had ordinances against using
animals in religious rituals and sacrifices. The ordinance came in when a Santeria church
announced plans to open a building in the city.
If the law discriminated against religious beliefs, then it violates the Free Exercise clause.
Here the ordinance was aimed at Santeria. There were exemptions for the kosher
slaughter of meat. The test to be used is strict scrutiny (compelling governmental
interest). There had to be a burden on sincerely held religious belief, and the government
must show a compelling governmental interest and a solution that is no more restrictive
than necessary.
The city argues its interest in public morals, peace, safety and health. The court found
this was not the most narrowly tailored solution available. There were alternative means.
They could have imposed regulations on how animals are to be treated and slaughtered.
There is clear evidence on the record that this was not a neutral law (Arlington Heights;
Washington v. Davis).
Wisconsin v. Yoder, 406 U.S. 205 (1972) – Yoder, who was Amish, was fined for
refusing to send his child to high school. The Amish believed that salvation requires life
in a churchly community. They were to kept within their own local community, rather
than being subjected to antithetical values. The court overturned the law as an
infringement on Yoder’s free exercise right.
This is a case that gives a ringing affirmation to the rights of a particular religious group.
The desire of the Amish is rooted in a sincerely held religious belief.
Test: if you can prove a sincerely held religious belief, the state has to show a compelling
governmental interest, and that the law is the least restrictive means available. This
applies even with a facially neutral law of general applicability that had a disparate
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impact because of the religious beliefs.
A mere philosophical belief is not sufficient; that is more a matter of personal choice. It
must be grounded in religion, shared by a religious group, and intimately attached to their
day-to-day way of life.
United States v. Lee, 455 U.S. 252 (1982) – Lee was also Amish, and employed
farmhands. He objected to paying FICA because the Amish believe it sinful not to
provide for their elderly. Here the court acknowledged a conflict between Amish beliefs
and the obligations of the social security system, which was a facially neutral law of
general applicability. However, to survive, the system required universal participation.
This was a compelling governmental interest sufficient to warrant a holding the state
restriction justified. STATUTE SURVIVES STRICT SCRUTINY.
Bob Jones University v. the United States, 461 U.S. 574 (1983) – the IRS denied two
universities tax-exempt status because they discriminated on the basis of race in
conformity with their religious beliefs. The court found the very strong public policy of
eliminating racial discrimination to be sufficiently compelling. STATUTE SURVIVES
STRICT SCRUTINY.
Goldman v. Weinberger, 475 U.S. 503 (1986) – Goldman was an orthodox Jew who was
disciplined for wearing his yarmulke on duty. The court simply defers to the government
because this is a military matter. They used a very deferential level of review.
When there is a facially neutral law of general applicability, they will use rational basis
Employment Division v. Smith, 494 U.S. 872 (1990) – people fired from job because of
religious ingestion of peyote in violation of state law and were declined unemployment
benefits because they had been discharged because of conduct. The court didn’t use the
Sherbet test, even though there was a facially neutral law of general applicability. They
used rational basis. Later in Hialeah they reverted to strict scrutiny because there was a
discriminatory law.
The court considered:
 There was illegal activity
 Sherbet was confined to unemployment cases
 Yoder was confined to hybrid cases (free exercise and parental rights involved).
Teacher’s note: Yoder was not really a hybrid case though.
1993 – Religious Freedom Restoration Act – challenged in City of Boerne v. Florida.
Congress was trying to undo Smith by elevating standard of review for religious
classifications.
The Establishment Clause


It prohibits the creation of an official church.
Requiring oaths to a particular faith is unconstitutional
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
1.
2.
3.
Requiring tithes or financial support for a faith would also be unconstitutional
Lemon Test (Lemon v. Kurtzman, 403 U.S. 602 (1971)
Test of Coercion (Lee v. Weisman, 505 U.S. 577 (1992)
Endorsement Test (Lynch v. Donnelly, 465 U.S. 668 (1984)
The court now uses Lemon very selectively. There is no one cognizable standard.
Lemon tripartite test:
 Purpose
 Effect
 Entanglement (political or administrative)
Lemon v. Kurtzman, 403 U.S. 602 (1971) – struck down certain types of financial aid to
public schools. Test for withstanding establishment clause challenge:
 The statute must have a secular legislative purpose
 Its principal or primary effect must be one that neither advances nor inhibits
religion
 The statute must not foster “an excessive government entanglement with religion”
The court relies on it less and less, but has not overruled it.
Engel and Schempp are generally spoken of in one breath (“The School Prayer Cases”).
No non-denominational prayer in schools.
Engel v. Vitale, 370 U.S. 421 (1962) – court struck down a “non-denominational” prayer
that was prepared for public schools in New York State. Justice Black’s opinion held that
this was inconsistent with the Establishment clause. It exerts a coercive pressure on
religious minorities. They don’t buy it as a non-denominational prayer.
No Bible reading in schools.
Abington School Dist. V. Schempp, 374 U.S. 203 (1963) – The establishment clause
prohibits state laws and practices requiring selection and reading at the opening of the
school day from the Bible, and the recitation of the Lord’s Prayer in unison. The court
uses the first two prongs of what would become the Lemon test – purpose (getting
children to pray) and effect (advancing prayer and religion).
Wallace v. Jaffree, 472 U.S. 38 (1985) – the court struck down an Alabama law
authorizing schools to set aside a minute at the start of each day for “meditation or
voluntary prayer.” The court held that the law not motivated by a secular purpose, thus
violating the Lemon test. There was evidence of legislative intent to return prayer to the
classroom. O’Connor, concurring, wrote that not all moments of silence would be
unconstitutional. The question is whether the state endorsed religion.
Here the court focused on purpose (Lemon first prong), looking to legislative intent.
When the practice in question coerces attendees to support religion or participate in a
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religious exercise, there is a violation of the establishment clause. When children are
involved there is the risk of psychological pressure and coercion. They may feel
uncomfortable if they don’t observe the practice.
Cite for Coercion Test
Lee v. Weisman, 505 U.S. 577 (1992) – The city of Providence had a local clergyman
give a benediction at school graduations. A student challenged the practice. The court
wrote that although attendance at the ceremony is not strictly required to graduate, it is
really obligatory. The practice coerces attendees to support or participate in religion or
its exercise, in violation of the establishment clause. In a school setting, there is a
particular risk of indirect coercion.
The only option left to a student who felt coerced would be to participate, in violation of
her conscience, or protest. That is not a tenable choice to impose upon children. A
pervasive concern is that there is great pressure for conformity in such a setting.
When children are involved there is the risk of psychological pressure and coercion.
They may feel uncomfortable if they don’t observe the practice. Would participation
signify affirmance of the religious beliefs espoused, even when those beliefs would be
contrary to the beliefs of the students and their families? Kennedy cited statistics about
adolescents and peer pressure.
Blackmun concurrence – it is not necessary to show coercion for there to be an
establishment clause violation. Government pressure to participate in a religious activity
is an obvious sign of government endorsement of religion. Professor not concerned about
Blackmun.
She says to pay a lot of attention to the Scalia dissent. Scalia sees standing at such an
event as a sign of respect to others, not necessarily as an affirmation of any contrary
beliefs. He also wonders how the coercion doctrine is consistent with civic religion – “In
God We Trust,” Thanksgiving Day, etc. He hates the idea of psychological coercion.
Santa Fe Independent School Dist. V. Doe, 530 U.S. 290 (2000) – student body could
vote for a student speaker to deliver a message before football games. Although the
speaker was not required to deliver a prayer, it was understood that he would do so. This
take place on school property, at a school-sponsored function broadcast over a system
controlled by school officials. Because of this context, the listener will perceive this
message as stamped with the school’s seal of approval. Participation is not voluntary for
band members, football players, cheerleaders, etc. Extracurricular activities are part of
the overall educational program.
Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001) – facts appear above
in religious speech – court said there was viewpoint discrimination. There is no coercion
because students can only attend on a voluntary basis, with the permission of their
parents.
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Religious Symbolism Outside the School Context
Endorsement Test
Lynch v. Donnelly, 465 U.S. 668 (1984) – The court reversed a lower court ruling that
including a crèche in a holiday display in Pawtucket was unconstitutional. The court
holds that there is a long history of official reverence to divine guidance. There is not an
absolutist approach to this issue. Even though the Lemon test is helpful, the court writes,
there is no single test.
Here they focus specifically on the crèche in the context of the Christmas season. The
crèche depicts the historical origins of an event celebrated as a national holiday. The
crèche did not appear on its own, but rather as part of a display with menorahs, snowmen,
etc.
Justice O’Connor concurrence – Endorsement Test: send a message to non-adherents that
they are outsiders and not part of the community, and a message to adherents that they
are insiders. Does the speech have the purpose or effect of endorsing religion? Standard
is reasonable, objective observer. Would he conclude that government is endorsing
religion?
Financial Aid to Institutions
Everson v. Board of Education, 330 U.S. 1 (1947) – This was a challenge to a New
Jersey law that allowed reimbursement of transportation expenses to parents of children
going to non-profit private schools. The court must be careful not to inadvertently
prohibit the state from extending its general state law benefits to all citizens without
regard to their religious beliefs. Here the state does not give money to the schools, or
support them. The aid benefits the child, and is neutral. This decision gives the
metaphor of the wall of separation between church and state.
Mueller v. Allen, 463 U.S. 388 (1983) – Minnesota offered a tax deduction for parents to
defray the costs of educating their children. It applied to public and private school
students.
The court reasons that such a deduction reflects the state’s commitment to an educated
populace. Also, private schools removed some burden from the public schools.
Mueller is a transitional case for the court. They move towards accommodation of
religion. The wall of separation isn’t so impregnable. It brings out the notion of private
educational choice. This notion has carried into subsequent cases on governmental aid to
private schools.
Tilton v. Richardson, 403 U.S. 672 (1971) – the court has found fewer establishment
clause barriers to financial aid to colleges than to elementary and secondary schools.
College students are less impressionable and less susceptible to religious indoctrination.
Religious indoctrination is not a primary purpose of church-related colleges.
Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976) – the court went further and
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allowed direct grants to eligible private colleges, so long as the funds were not used for
sectarian purposes.
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) – court upheld the school
district’s provision of a sign language interpreter to a child attending a Catholic school.
The court held that there was a broad class of beneficiaries and the aid was neutrally
provided, regardless of religion. It benefited the child, not the school.
Professor says this is a very important case. It is the latest case on funding to religious
schools. Study this case more!
Mitchell v. Helms, 530 U.S. 793 (2000) – upheld a federal program that sent money for
computers and other teaching aids to public and non-public schools.
The plurality holds that all you need is neutrality – not favoring one over the other. If the
funding is equally available to public and private schools, regardless of religious
affiliation, then it is OK.
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