Constitutional Law II Outline PDF

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Constitutional Law II Outline

1) Procedural Due Process   

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Two Due Process Clauses – 5th Amendment (federal gov’t) and 14 th Amendment (State gov’t) The Due Process Clause is picking up what the Privileges and Immunities Clause cannot carry Substantive Due Process: where a law limits the liberty of all persons to engage in some activity, a due process question o Unenumerated Rights  Economic Substantive Due Process Rights  Ex: the right to enter into a contract for labor  Fundamental Substantive Due Process Rights  Rational Basis Review (RBR) o Means-Ends analysis o Is there a legitimate government interest? o Does the means sufficiently fit the ends? o Rational basis review tolerates us making up another gov’t interest later on, even though it was not an interest initially o Rational Basis Review is the constitutional default for equal protection claims  Anytime you’re not at intermediate or strict scrutiny, you go with rational basis review o Ex: At rational basis review saving money, administrative efficiency, are reasons often stated by the gov’t for action, and are a valid rational end o Lee Optical v. Williamson States have the authority to regulate/police power It is an issue when the State’s police power is going too far and violating people’s rights o Means and Ends:  How closely do the means constitute the ends? Means Cap on bakers’ hours  

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Ends Public safety, Baker safety & health, Morals

The Court is measuring the distance between the Ends and the Means Are the means close or far to the ends? Can they be?  How far apart can the means and ends be to justify the ends? How can we measure this distance (economic substantive due process)?

 Muller (1908) o The ends and means are closer here o Oregon enacted a law that limited women to ten hours of work in factories and laundries. o The constitutionality of the law was upheld by the state supreme court. Meyer (1923) o Facts: Respondent, the state of Nebraska, made it illegal to teach any class in a non-English language, to teach any non-English language to a pupil prior to the ninth grade and set fines and jail time for any individual violating the statute. A teacher did teach a student in the German language o Rule: The right of parental control also extends to the type of education children receive. o “mere knowledge of the German language cannot be reasonably regarded as harmful.” As such, it is difficult to ascertain why the Respondent should so influence the educational opportunities of the children of the State and interfere with parental choice of educational experiences. o Still good law today o Illustrates equal treatment if both "economic" and "personal" liberties under the Due Process Clause o Fundamental rights case

2) Equal Protection 

14th Amendment – 3 rd Provision: "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws."

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Generally: prohibits, without sufficient reason, a state from treating similarly situated people differently. Equal Protection applies to the states through the 14 th Amendment Equal Protection Clause and to the federal gov’t through the 5th Amendment Due Process Clause (Bolling)

A. Race Discrimination 

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De Jure: segregation in law. The law says the schools should be segregated by race o Race based decisions to overcome the legacy of de jure segregation; unitary status - way to overcome de jure segregation o Ex: bussing black kids to white schools and white kids to black schools De Jure > District Court (race-based desegregation) > Unitary Statis > De Facto > District Court (race-based desegregation, not allowed b/c it’s from de facto this time, history for this court started a new at de facto desegregation) o De Jure segregation is automatically subjected to strict scrutiny and likely to fail  De Facto is not  Can use these to overcome De Jure segregation, the gov't's own prior illegal race-based program  Can use this form as a race-based problem that is narrowly tailored…, also the problem/program needs to pass strict scrutiny (Brown II decision)  Remedial affirmative action program  Need to show why this DOES satisfy strict scrutiny  Overcoming of the gov't's prior illegal race-based program is a compelling gov't interest The gov't means, use race-based desegregation orders, is a necessary use of race to complete a gov't interest to overcome the gov'ts prior de jure discrimination The gov't can use race as a means to undo the gov'ts prior illegal discrimination = racial discrimination can be necessarily tailored to satisfy a gov't action to undo de jure (undoing illegal gov't action) Race based means can NEVER necessarily tailor to satisfy gov't action to undo de facto How to overcome the de factor part? (these to focus on race without saying it/race neutral) Desegregate on the basis of income, build tax/financial incentives that do not say race, rezoning communities, charter schools/schools of choice De Facto: segregation in fact o Schools were segregated mostly b/c people in the US sort themselves out by race in housing patterns, so white communities tend to send their kids to white schools and black communities send their kids to black schools When the gov’t implements legislation causing race discrimination, look to the below categories to see what the discrimination falls into: a) Harm: harming someone or a group of people b/c of their race – race on its face) b) Help: helping someone or a group of people b/c of their race (Affirmative Action) – race on its face c) Symmetrical: Discriminating one race & discriminating another of same thing. (Loving v. Virginia = white people cannot marry black people, & black people cannot marry white people, Plessy v. Ferguson) – race on its face d) Discriminatory Impact: a gov’t action on its face, but has an impact on race discrimination – not race on its face (Washington v. Davis, Arlington Heights)  Washington v. Davis o A higher percentage of black applicants than white applicants failed a qualifying test administered by the District of Columbia Police Department. Some of the unsuccessful black applicants claimed these effects constituted unconstitutional discrimination against them. o Proof of a disproportionate impact is not enough, standing alone, to ground a finding that a law amounts to unconstitutional discrimination. o a court confronted with a law that has a disproportionate effect on a racial minority, must first determine if the law is race specific. If it is, either because the law is facially discriminatory or because the law was motivated by a racial discriminatory purpose, the law will probably be invalidated under the strict scrutiny standard of review. If the law is non-race specific, the court will apply the rational basis standard of review, regardless of the law’s impact on racial minorities.  Arlington Heights o The Metropolitan Housing Development Corporation (Respondent) applied to the Village of Arlington Heights (Petitioner) for rezoning of a 15-acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied, and Respondent sued for injunctive and declaratory relief,

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claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the 14th Amendment and the Fair Housing Act of 1968 o Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. o In cases without some evidence of racially discriminatory intent, the mere fact that the decision of a governmental agency affects race will not be enough to show a violation of the 14th Amendment’s Due Process Clause.  Neutral gov’t policy that is not racial on its face  Where gov't administers racially neutral test, that says nothing about race, where white people perform higher then black people  Plaintiff bears the ultimate burden of proof  Plaintiff needs to show gov't action is intentional racially discrimination and then after gov't argue  What do we do to get to strict scrutiny, as a plaintiff? (Burden shifting process) (anytime there is not facially racial segregation) i. Plaintiff bears the burden of proof to can show circumstantial evidence of racial intent ii. Gov't bears the burden of proof to show that they would have made the same decision or taken the same action anyways (gov't can be showing up to 49% of their action is discriminatory and it still is not racial discrimination) iii. Plaintiff bears the burden of proof to show that gov't action is pretext for racial discrimination o Steps 1 & 3 will be done at the same time by the plaintiff  Intent needs to be shown  Argument (under Arlington Heights) for disparate impact case/arguments  Plaintiff: i. strict scrutiny - gov't action fails ii. Alt: Rational Basis Review, gov't action fails  Gov’t: i. Rational Basis Review - why we should win (Lee Optical) ii. In alternative, even if the P gets to strict scrutiny, gov't wins (incredibly difficult argument to make but have to do it) Brown I (Separate but Equal) o Separate but equal is unconstitutional o Overturned Plessy v. Ferguson o Segregated schools are inherently unequal o Legislation here would fall into HARM category and when applying the strict scrutiny test, there is no reasonable gov't interest o Race discrimination is unconstitutional o Gov't discrimination by race that harms a group, is unconstitutional o Labeling people by race leading to the disadvantage of one of the races o Any racial label is automatically suspect (hurt, help, etc.)  If the gov't action says race on its face, its strict scrutiny

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Bolling (Race Discrimination by the Federal Gov’t) o Segregation in schools in D.C. by the federal gov’t o Equal protection applies exactly the same as it applies to the federal gov't as it does to the states. o Equal protection under 5th Amendment is the same as 14th o The concepts of equal protection and due process, both stemming from the American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, SCOUTS do not imply that the two are always interchangeable phrases. But discrimination may be so unjustifiable as to violate due process.

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Brown II - Desegregation o SCOTUS held that racial discrimination in public education is unconstitutional. o After this case, the district court orders cross district bussing as an example, a Delaware case, the district court is actually violating the equal protection clause by bussing black kids to white neighborhoods and white kids to black neighborhoods. This is RACIAL LABELLING & unconstitutional

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In fashioning and effectuating decrees, which require varied solutions, the courts will be guided by equitable principles. Authorizing District courts for desegregation  Desegregation orders themselves can be race based or race neutral  Race based, have to meet strict scrutiny, but can meet strict scrutiny if they can overcome de jure segregation o Can use race-based desegregation measures after De jure segregation  If it was de facto, the gov't can NOT use race-based measures to be desegregated.

Loving v. Virginia (Interracial Marriage) o The Lovings were charged with violating Virginia's ban on interracial marriage and sentenced to 1 year in jail o The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or a black person to intermarry with a white person. o Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause. o The court is worried about the "classification of race" most o Hypo, Intentional Racial Discrimination: Gang violence is occurring in prisons. segregating prisons based on gang affiliation, but it ends up being Asian cell block, black cell block, white sell block, Latino cell block.  Gov't argument that this does not violate equal protection:  There is no other way to achieve the compelling gov't interest of safety within the prisons  Gov't says discriminating by race for a good reason but still has to satisfy strict scrutiny o Whenever there is facial racial discrimination, you get strict scrutiny o Symmetrical o Equal protection problem, b/c any racial labeling will get strict scrutiny

B. Affirmative Action – Race Discrimination  

Affirmative action is the process of a business or governmental agency in which it gives special rights of hiring or advancement to ethnic minorities to make up for past discrimination against that minority. Private employers who receive no public funding are not required to adopt affirmative action policies. Affirmative action policies are enforced by the entities adopting them if they are voluntary, while affirmative action policies required by government mandates can be enforced through the legal system.

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Grutter (2003) - example of higher-education affirmative action o The Court used strict scrutiny to determine the Equal Protection Clause did not prohibit a narrowly tailored use of race in admissions decisions to further a schools compelling interest in obtaining the educational benefits that flow from diversity.

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Fisher II (UT Case) – example of higher-education affirmative action o Fisher, a white female, applied for admission UT but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every Texas graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued UT and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the 14 th Amendment. The district court held that UT’s admissions process was constitutional, and was affirmed o But the appellate court erred by not applying the strict scrutiny standard to UT’s admission policies.

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Adarand Constructors (1995) – remedial affirmative action - employment o Petitioner, a low bidder on a federal contract, was denied the contract b/c a preference was given to minority business entities. Petitioner sued, claiming violation of equal protection rights. Lower federal courts rejected the claim, relying upon precedent which subjected equal protection claims to intermediate scrutiny. o All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. o Court says federal gov't is subject to the same strict scrutiny test as the state or local gov'ts

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Gov't can use race based remedial affirmative action to get rid of their race-based discrimination Program passes strict scrutiny if it is necessary to overcome its own prior race-based discrimination Will look at the market, for corporations.  How much of the market is made up of racial minorities? Remedial affirmative action attempts to remedy discrimination. There are two possibilities: o First, a remedial affirmative action program can be designed simply to put an end to an existing discriminatory practice, and create, possibly for the first time in a particular setting, a truly nondiscriminatory playing field. o Second, a remedial affirmative action program can attempt to compensate for past discrimination and the effects of that discrimination. Regents of the University of California v. Bakke – higher-education affirmative action o Wants diversity in the classroom o Can use diversity in admissions category but cannot use quotas or numbers, but can use race as one of many factors of holistic standards of review for each individual candidate to achieve diversity in higher education Three general propositions w/ respect to governmental and racial classifications: 1. Skepticism: any preference based on racial/ethnic criteria must receive a most searching examination 2. Consistency: the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification 3. Congruence: equal protection analysis in the 5th Amendment area is the same under the 14th Amendment o These three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny

C. Sex, Sexual Orientation, and Disability Discrimination and Intermediate Scrutiny   

A classification that’s neutral on its face, but has a disparate impact, gets rational basis out of the gate. If the plaintiff can show that it does, then it gets intermediate scrutiny At intermediate scrutiny, use Craig and VMI, to make analogous and distinctions Difference between sex and race discrimination o The gov't can use affirmative action, sex-based programs, to remedy general societal discrimination

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Frontiero (1973) o By statute, a serviceman may claim his wife as a dependent for purposes of qualifying for increased quarters, medical and dental benefits, and other increased support. o However, a servicewoman may claim her husband as a dependent only if he is dependent on her for more than half of his support. The Petitioner, Frontiero, alleges that this policy denies her the equal protection of laws afforded by the 5th Amendment o Gender-based classifications, like racial classifications, must pass strict scrutiny. o If you argue with Frontiero analysis, then there will be a higher level of review and scrutiny o Found that the sex-based classification was unconstitutional o Sex is a suspect classification  b/c its immutable  Sex doesn’t matter like race doesn’t matter  Sex has no bearing on a job and what not o History lack of political power of the disadvantaged group o Current lack of political power of the disadvantaged group o How have the disadvantaged group been harmed?

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Craig (1976) o Oklahoma prohibited the sale of 3.2% alcohol beer to men under the age of 21 and women under the age of 18. Suit was brought against the State, alleging the law violated the Equal Protection clause of the 14 th Amendment.

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Statutory classifications that distinguish between males and females are subject to scrutiny under the equal protection clause. To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Argument for Intermediate Scrutiny  Does it deal w/ Romantic paternalism or sex-based stereotypes, it is likely to fail intermediate scrutiny

VMI (1996) o A female high school student filed a complaint w/ the Attorney General against VMI and Virginia alleging that VMI's exclusively male admission policy violated the Equal Protection Clause of the 14 th Amendment o Gender-based classifications of the government can be defended only by exceedingly persuasive justifications. o The State must show that its classification serves important governmental objectives and that the means employed are substantially related to those objectives. o The justification must be genuine, not hypothesized. o And it must not rely on over-broad generalizations about the differences between males and females.

D. Other Discrimination 

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Frontiero – for establishing heightened review o Sex based discrimination case  Not very helpful for sex based o Helpful when we do not know the classification o Name the factors ...