CONSTITUTIONAL LAW II
DEAN MCDANIEL
WEEK 1
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The Due Process Clause of the 5th & 14th Amendment guarantees that no person shall be
denied life, liberty, or property without due process of law. Thus, a fair process (a
notice and hearing) is required for a government agency to individually take a person’s
life, liberty, or property.
Procedural Due Process (3-part balancing test)
o (1) Greater the interest you have in the right, the more due process required to
infringe on the right. Importance of the individual’s interest being affected;
AND
o (2) The value of specific procedural safeguards to that interest; AGAINST
o (3) The government interest in fiscal and administrative efficiency.
o NOTE: Only intentional deprivation of life, liberty, or property rights violate the
due process clause. (Negligent deprivation may apply, but it is less than likely)
Substantive Due Process (14th amendment)
o Analysis: → A governmental regulation that infringes upon a fundamental right is
subject to strict scrutiny standard of review, while a governmental regulation that
does NOT infringe upon a fundamental right is subject to the rational basis
standard of review.
o Strict Scrutiny: The government must prove that the regulation is the least
restrictive (narrowly-tailored) means to achieve a compelling government
interest. (affecting one’s fundamental right)
o Rational Basis: The challenger must prove that the regulation is NOT
rationally related to any legitimate government interest. (not affecting a
fundamental right) (included when there is a message about dress code)
o Fundamental Rights: Some rights are so deeply rooted in our nation’s traditions
and history that they are considered fundamental. They include the following:
 The right to interstate travel;
 The right to vote; AND
 The right to privacy, including:
 The right to marry;
 The right of married persons to use contraceptives;
 The right of adults to engage in non-commercial, consensual sex;
 The right of parents to make decisions regarding the care, custody,
and control of their children (including the right to privately
educate a child outside the public school system); AND
 The right of related persons to live together in a single household.
o 4 Questions when analyzing Substantive Due Process:
 Question 1: Is it a fundamental right?
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If no, rational basis test applied
If yes, determine degree of impairment
 (Go to Question 2)
 Question 2: If yes, is the right being substantially impaired?
 If no, rational basis test applied
 If yes, examine government interest
 (Go to Question 3)
 Question 3: If yes, is there a compelling interest to justify
impairment?
 If no, then there is a due process violation.
 If yes, then apply the do means testing
 (Go to Question 4)
 Question 4: If yes, are the means the least restrictive (or narrowly
tailored) necessary to achieve that interest?
 If no, then there is a due process violation
 If yes, there is no due process violation
SDP (Substantive Due Process) Steps
o 1. Identify which govt. Is acting.
o 2. Describe person’s interest that government. has infringed
o 3. Place infringed interest within the constitution
o 4. Ascribe constitutional weight
 Is it lower level or fundamental?
 If fundamental, why? (Deeply rooted in our history and traditions or
inherent in our concept of ordered liberty)
o 5. Set the proper level of scrutiny
o 6. Balance the infringement of the right against the govt interest (fit test) be as
specific as possible
Barron v. Mayor & City Council of Baltimore (1833)
o Holding: The Bill of Rights only apply to the Federal Government.
Slaughter-House Cases (1873)
o First attempt to use the 14th Amendment for the State's through the privileges and
immunities clause.
o Attempt to show the right to pursue occupation.
o Issue: Called upon for the first time to construe the 13th and 14th Amendments.
o Holding: A Louisiana law granting a monopoly to operate slaughterhouses in the
New Orleans area is constitutional.
McDonald v. City of Chicago (2010)
o Petitioners challenged a law enacted by the City of Chicago (respondent) that
prohibited Chicago residents from possessing handguns, claiming that the law
violated the Second and Fourteenth Amendments.
o A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s
scheme of ordered liberty or deeply rooted in the nation’s history and tradition.
o The Second Amendment applies to the states, thereby invalidating Chicago’s law
prohibiting residents from possessing handguns. Under the process of selective
incorporation, a particular Bill of Rights guarantee will apply to the states if it is
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fundamental to the nation’s scheme of ordered liberty or deeply rooted in the
nation’s history and tradition.
Dred Scott v. Sanford (1857)
o Dred Scott tries to invoke privilege of federal court. Federal question jurisdiction.
Federal court under diversity jurisdiction requires one party to be a citizen of one
state suing a citizen of another state. Whether Dred Scott is a citizen of a state.
o Dred Scott was an escaped slave in a free slave. Now that he is in a free state then
he must be a citizen. The court says no—that a slave even, a free person, who has
escaped—he is still property. Property or chattel cannot be a citizen and the law
suit gets tossed out.
o The 14th Amendment didn’t happen until 1868. (Allowing slaves to be freed and
those born in the U.S. to be granted citizenship)
o Article IV, section 2: (Privilege & Immunities Clause)
 This clause allows a citizen of one state to travel to another state and
receive the same treatment as the citizens in that state.
 Includes the right to receive protection from state government; the right to
acquire and possess all kinds of property; the right to sue and defend
actions in court; & the right to receive the same tax treatment as that of the
citizens of the taxing state.
Lochner v. New York (1905)
o The Court found that the 14th Amendment contained the liberty interest in the
liberty to contract.
o **NOTE: “Liberty” in the due process clause is defined as:
 A person who loses significant freedom of action; OR
 A person who is denied freedom provided by the Constitution or a statute.
o **Go to Week 12 section of Con Law I for the Rational Basis Test.
WEEK 2
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Buck v. Bell (1927)
o This is a sterilization case for the mentally insane. The woman (Carrie Buck) was
feeble minded, her mama was feeble minded, her illegitimate mama was feeble
minded so now we have a FUNDAMENTAL RIGHT TO PROCREATION.
Skinner v. Oklahoma (1965)
o Habitual Sterile Act. Can the government sterilize people??
o Defendant was convicted multiple times for stealing chickens. The Act called for
repeat offenders to be sterilized. Defendant argues that the State cannot do that.
 Name that right: THE RIGHT TO REPRODUCE. The Court says that
reproducing violates the civil rights of man. Marriage and procreation are
fundamental rights. They are an emphasis of the law that strict scrutiny
applies in cases like this. 15 years earlier, Buck said this was okay.
Griswold v. Connecticut (1965)
o Connecticut (CT) law had banned the use of any drug, medical device, or other
instrument that prevented conception (a.k.a. pregnancy). The plaintiffs are the
doctors who claim this to be a violation of a fundamental right.
 The Court asks, what right?? Plaintiffs respond, Marital privacy.
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Name that right: MARITAL PRIVACY
Now, has the government substantially impaired this right to be exercised,
and is it fundamental?
 Justice Douglas’s opinion reviews the first 8 Amendments. It makes sense
to look at the unenumerated rights that look like enumerated rights.
 1st Amendment: Freedom of speech (My thinking/my beliefs.
Framers want to stay out of people’s minds).
 2nd Amendment: Protection of the home.
 3rd Amendment: Concern of soldiers not quartered in your home.
Privacy in your own home.
 4th Amendment: Privacy of your personal home.
Douglas finds concern for citizen life to think what you want without government
interference. But, he keeps going. Up to this point, Douglas’ argument was valid.
He uses the word PENUMBRAL (celestial shadow) by saying the Bill of Rights
has PENUMBRAS (celestial shadow) formed by EMANATIONS (light/come
out/give off) of privacy. There is a thing called unenumerated fundamental rights.
 When lawyers talk about penumbral rights, they mean unenumerated
privacy rights.
 Griswold is the basis in case law which expands on marriage. Marriage
is not just the certificate or who you marry, but you also have marital
privacy. Now, married people can use contraceptives but not unmarried
people.
ABORTION (Easy to spot on the exam. Be careful when approaching this subject.)
(NOT SUBSTANTIVE DUE PROCESS & NO SCRUTINY!)
o The right to privacy includes the right of a woman to have an abortion without
interference from the state under certain circumstances. However, normal strict
scrutiny cannot be applied because the state has two compelling interests that
compete: the woman’s health and protecting the fetus that may become a child.
o The Supreme Court has adopted two basic rules:
 (1) Pre-Viability Rule - Before viability (a realistic possibility that the
fetus could survive outside the womb), a state may adopt a regulation
protecting the mother’s health and the life of the fetus if the regulation
does not place an undue burden on the woman’s right to obtain an
abortion.
 (2) Post-Viability Rule - Once the fetus is viable, the state’s interest in the
fetus’s life can override the woman’s right to obtain an abortion, but the
state cannot prohibit the woman from obtaining an abortion if it is
necessary for her health.
o The government has NO obligation to pay for abortions.
Roe v. Wade (1973)
o (The constitution is silent on abortion but) the court decided that the 14th and 9th
amendment protect a woman’s right to decide whether or not to terminate a
pregnancy and the state can regulate once the fetus becomes viable because once
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the fetus becomes viable the state has a compelling interest. The Fundamental
right of a woman to TERMINATE A PREGNANCY was affirmed and has not
been overruled.
o Never has there been a right to an abortion on demand.
o Abortion requires a different substantive due process test because there are
two fundamental interests that are in competition.
 The rights of the unborn-To protect life.
 The interests of the mother.
o
NEVER PUT STRICT SCRUTINY ON AN ABORTION CASE!!
Planned Parenthood v. Casey (1992)
o In 1992, court reaffirmed the essential holding of Roe that a woman has the
right to choose to have an abortion before viability without undue interference
by the state.
o The lynchpin of what life is based on viability. When there is viability, the state
interests kicks in.
 Viability is determined to be when the fetus can survive outside of the
mother without extraordinary measures. Since this was pinned in 1973 the
scale has continually shifted.
 The right to choose to terminate is a fundamental right, but you do not
apply SS you apply Casey. Because the trimester framework is out &
when you look at the pregnancy continuum, viability is what is
important.
o What is considered an undue burden?? Undue Burden test
 Record keeping → No
 24-hour waiting period → No
 Parental notification → No
 Informed consent → No
 Spousal notification → YES
o CASEY ANALYSIS:
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When it comes to abortion still cite 9, 10th and 14th. But apply Casey
 You need to know this case by name. This is an O'Connor opinion.
 Court has found that it is a fundamental right but here instead of
applying strict scrutiny or rational basis, you apply Casey.
 This case gets rid of the trimester and they say that the only point that
matters is the point of viability.
Whole Woman’s Health v. Hellerstedt (2016)
o Kennedy sided with liberals on the court in developing a new twist to the test.
The twist made it more difficult for states to make abortions harder to get. The
court announces that the undue burden test must be clarified.
 i. Going to look at the actual benefit derived from the regulation.
 ii. Benefit = medical outcomes.
 iii. How does regulation benefit medical outcomes? Look at the burden
on a woman (fact driven analysis).
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iv. BURDEN: no abortion clinics in the state. Now, we have a test where
IF HE BURDEN OUTWEIGHS THE BENEFIT, THEN IT IS
UNDUE.
 if a burden on a woman outweighs the benefit to the state (good
medical outcomes) then the burden is undue.
Undue Burden Test → As a Balancing Test
 WHAT IS THE BENEFIT?
 WHAT IS THE BURDEN?
 IF THE BURDEN OUTWEIGHS THE BENEFIT = UNDUE
 ANY BENEFIT? Here, the court says no benefit because
currently the law already says that a clinic must have a
contract with the hospital to admit emergency patients from
a clinic already to be admitted. There is no benefit and this
law only closes down clinics which is the real purpose of
the law.
 Most early term abortions are out-patient or in pill-form. As
to any clinic only doing that, adds nothing. THERE IS NO
BENEFIT.
If you can't argue any benefit, the law will be struck down as undue burden.
WEEK 3
CONSTITUTIONAL PROTECTION FOR FAMILY AUTONOMY
 Loving v. Virginia (1967)
o The Court struck down Virginia law which criminalized interracial marriage
(white person & non-white person).
o The Court thoroughly rejected the argument that equal protection guarantees were
not violated because whites and blacks were treated equally – neither could marry
the other. It recognized this law for what it was – a blatant attempt by the state to
reinforce invidious stereotypes of racial inferiority. (Clear violation of the Equal
Protection Clause)
Right to Marry. The Court has held that the right to marry is an aspect of liberty protected
by the Due Process Clauses of the Constitution.
 Zablocki v. Redhail (1978)
o The Court invalidated, under equal protection, a Wisconsin law that refused to
grant a marriage license to anyone who had minor children whom he or she was
obligated to support, unless there was proof of payment of the child support
obligations.
o How does the Court determine that the right is so important that we are going to
give it strict scrutiny if the government passes a law infringing on the right?
What’s the state's compelling interest? → The protection of kids.
o
The fact that you are married and have to pay higher taxes is not a substantial
impairment.
A state may presume that a child born to a married woman is a child of her marriage.
 Michael H. v. Gerald (1989)
o The Court upheld California law that presumed that a child born to a married
woman is a child of the marriage.
o Michael was the natural father, but Gerald was the husband to the mother. Thus,
the child is the child of Gerald and his wife.
o Justice Scalia reasoned that since Michael had no fundamental parental interest
simply because of genetic parenthood, the state’s interest in protecting marital
relationships was sufficient to override Michael’s low-level liberty interest in
seeing his child.
CONSTITUTIONAL PROTECTION OF SEXUAL ACTIVITY
 Lawrence v. Texas (2003)
o The Court invalidated the application of a Texas anti-sodomy statute to adult
males who had engaged in a consensual sexual act in the privacy of a home.
o The majority said that the liberty protected by the Constitution allows
homosexuals the right to choose to enter relationships in the confines of their
homes and their private lives and retain their dignity as free persons. There is no
fundamental right to this, nor any strict scrutiny applied. Rejects the morality
argument made by the State of Texas. (Overruled Bowers v. Hardwick)
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Obergefell v. Hodges (2015) - Same sex couple
o Obergefell traveled to Maryland to marry his ailing partner who was suffering
from ALS. His partner died in Ohio, the couple’s home state, shortly after they
were married; but, because the laws of Ohio did not allow for same-sex marriage,
Obergefell could not be listed as his partner’s surviving spouse on Obergefell’s
death certificate.
o The Constitution protects personal choices as to marriage, noting the fact that the
Due Process Clause of the Fourteenth Amendment protects liberties which
include “intimate choices.” (including choices about marriage & the right to
marry)
o The Court described the good that marriage does for society, including and the
way in which it “safeguards children and families” within a stable family structure
and protects children from the potential stigma of being in a non-traditional
family not solidified by a marriage.
No Right to Physician-Assisted Suicide
The Due Process Clause of the Fourteenth Amendment does not create or protect a fundamental
liberty interest in assisted suicide. (see note → → → )
 Washington v. Glucksberg (1997)
o The Court unanimously upheld a State of Washington law which criminalizes
assisting a person to commit suicide.
o After concluding that no such fundamental liberty interest existed, the Court
found that Washington’s asserted state interests, including preserving human life
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and avoiding a possible slide toward voluntary and involuntary euthanasia, easily
met the rational-basis test of being legitimate government interests.
The interests that the government has are: preserving human life, the slippery
slope of euthanasia, the Hippocratic oath, etc.
WEEK 4
Equal Protection - 14th Amendment
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The Equal Protection Clause of the 14th Amendment prohibits the government from
denying citizens equal protection of the laws. When the government makes laws that
classify people into groups, the constitutionality of the law will be evaluated according
to the type of classification made (i.e. whether the groups is a suspect classification,
quasi-suspect classification, or other classification).
o State actor (State violation / Cite 14th Amendment) - Cannot deny any person in
its jurisdiction equal protection of the law.
o Federal actor (Federal gov’t violation / Cite 5th Amendment) - “nor be deprived
of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.”
Suspect Classification: Classifications are suspect if they are based on race, ethnicity,
national origin, or alienage (alienage is only suspect if the classification is made by
state law). Here, the STRICT SCRUTINY standard applies. Government must prove that
the regulation is the least restrictive (Narrowly Tailored) means to achieve a
compelling government interest.
o Historically subject to discrimination/historically disadvantage
o Immutable Characteristics
o Lack of political power
o Idea that the distinction is irrelevant to the purpose of the law / State’s interest
o Discrete and Insular
Quasi-Suspect Classification: Classifications are quasi-suspect if they are based on
gender or legitimacy (non-marital children). Here, the INTERMEDIATE SCRUTINY
standard applies. Government must show that the classification is substantially related
to an important government interest.
AFTER determining there is a possible equal protection violation and the classification
involved, you must discuss whether there was intent on the part of the government to
discriminate.
Governmental Intent: For strict or intermediate scrutiny to be applied, there MUST be
intent on the part of the government to discriminate. A discriminatory effect or
disparate impact toward a group of people alone is NOT enough to show governmental
intent. Governmental intent may be shown by:
o A law that is discriminatory on its face;
o A discriminatory application of a facially neutral law; OR
o A discriminatory motive behind a facially neutral law.
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For all other other classifications (a.k.a. Non-Suspect) (e.g., age, disability, and wealth
classifications), the rational basis standard applies. Challenger must then prove that the
regulation is NOT rationally related to any legitimate government interest.
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NOTE: If a law limits liberty of ALL persons to engage in some activity, it is usually a
due process issue. If a law treats a person or class of persons differently from others, it
is usually an equal protection issue.
Equal Protection Analysis
o Which govt is acting and what is the applicable amendment?
o Is the govt actor creating a subordinate class, or discrimination against a class?
 Identify the class
o Is it a suspect class?
o Is there facial discrimination or “as applied” discrimination?
o If there is “as applied” discrimination, provide evidence of:
 Disparate impact
 Intent to discriminate (apply Arlington Heights factors if “as applied”)
o Apply the proper level of scrutiny.
 Strict? Intermediate? Rational Basis?
U.S. Dept of Agriculture v. Moreno (1973)
o FACTS: Jacinta Moreno lived with Ermina Sanchez, who was not related, and
Sanchez's three children. Sanchez provided care to Moreno, who contributed to
household living expenses. Moreno satisfied the income requirements for the
federal food stamp program, but was denied under Section 3 of the Food Stamp
Act of 1964, amended in 1971, which prohibited households with unrelated
members from receiving food stamp benefits. Sanchez's food stamp benefits were
also to be terminated. Moreno and other households who were denied benefits
under Section 3 challenged the statute in the United States District Court for the
District of Columbia. District Court held that Section 3 violated the Due Process
Clause of the 5th Amendment.
o ISSUE: Does Section 3 of the Food Stamp Act of 1964 violate the equal
protection component of the Due Process Clause of the Fifth Amendment?
o ANALYSIS: The interest of Congress was to prevent abuse of the Food Stamp
program. However, the statute did not fulfill Congress' stated purpose of
preventing "hippies" and "hippie communes" from enrolling the food stamp
program. Since the statute "simply does not operate so rationally to further the
prevention of fraud," the distinction between households with related members
and households with unrelated members did not further the state interest and
therefore violated the equal protection component of the Due Process Clause of
the Fifth Amendment.
Korematsu v. United States (1944)
o FACTS: The U.S. Government responded to the Pearl Harbor attack during
WWII by requiring Japanese-Americans to move into relocation camps as a
matter of national security.
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ANALYSIS: The governmental interest was national security. But… Is throwing
112,000 humans and some 65,000 are US citizens and throwing them into
concentration camps the best way to do this? NO! THIS IS NOT THE BEST
WAY TO SECURITY LOYALTY AND SECURITY TO THE USA—THIS IS
COUNTERPRODUCTIVE.
 The Court did not strike this down. It was AWFUL for the SCOTUS to
say they should’ve never gotten involved because it is a political question.
 Race is considered, in the court, it’s a broader group and ‘Caucasian’ may
be race, but ethnicity may be more broad like, ‘Italian,’ ‘Asian,’ or
‘German.’ Jackson says this is a race thing and he wants to know where all
the German internment camps are, where are the Italian internment
camps? Because those are all a part of the WWII axis—so this is all about
race.
Railway Express Agency v. New York (1949)
 ID Class/Group: Who is the targeted group?
 People who want to sell advertising and own trucks
 Is it suspect?
 Immutable characteristics? No, you aren’t born w/ a truck.
 History of political powerlessness? No - states have not been
going after these people for ages. (This is a non-suspect class. Use
rational basis review).
 Burden is on P (challenger). - Show that there is no legitimate
gov’t interest or that the means are crazy.
 State’s interest? Safety. (Court held that the interest was fine).
New Orleans v. Dukes (1976)
 ID Class/Group: Who is the targeted group?
 Pushcart operators
 Is it suspect?
 Immutable characteristics? No, you aren’t born w/ a pushcart.
 History of political powerlessness? No history to apply.
 Burden is on P (challenger) - Show that there is no legitimate gov’t
interest. Non-suspect class; apply rational basis
 State’s interest? State focused on aesthetics. Make things look “nicer.”
The Court said that was fine. Means are rationally related & not insane.
NYC Transit Auth. v. Beazer (1979)
 ID Class/Group: Who is the targeted group?
 Methadone users
 Is it suspect?
 Immutable characteristics? No, they are on methadone.
 History of political powerlessness? No history.
 Burden is on P (challenger) - Non-suspect class; apply rational basis.
Show that there is no legitimate gov’t interest
 State’s interest? Safety. Means are rationally related & not insane.
Brown v. Board of Education I (1954) - pg. 1395 of txtbook
 FACTS: In the states of Kansas, South Carolina, Virginia, Delaware, and
Washington D.C., African American students had been denied admittance to
o
certain public schools based on laws allowing public education to be segregated
by race.
 ISSUE: Does the segregation of public education based solely on race violate the
Equal Protection Clause of the Fourteenth Amendment?
 ANALYSIS: The Supreme Court held that “separate but equal” facilities are
inherently unequal and violate the protections of the Equal Protection Clause of
the Fourteenth Amendment. The Court reasoned that the segregation of public
education based on race instilled a sense of inferiority that had a hugely
detrimental effect on the education and personal growth of African American
children.
Brown v. Board of Education II (1955) - pg. 1405 of txtbook
 FACTS: After the decision in the first case, the Court convened to issue the
directives which would help to implement its newly announced constitutional
principle.
 ISSUE: What means should be used to implement the principles announced in
Brown I ?
 ANALYSIS: The Court held that the problems identified in Brown I required
varied local solutions. Much responsibility is conferred on local school authorities
and the Courts who originally heard the school segregation cases. They were
ordered to implement the principles which the Supreme Court embraced in its first
Brown decision. Warren urged localities to act on the new principles promptly
and to move toward full compliance with them "with all deliberate speed."
WEEK 5
Non-suspect class → RATIONAL BASIS REVIEW
Suspect class → STRICT SCRUTINY REVIEW
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Swann v. Charlotte-Mecklenburg Bd. of Education (1971)
o FACTS: This case was an example of little progress made after the Brown v.
Board of Education decision. The public school in Charlotte-Mecklenburg, North
Carolina had approximately 14,000 black students who attended schools that were
either totally black or more than 99 percent black.
o ISSUE: Were federal courts constitutionally authorized to oversee and produce
remedies for state-imposed segregation?
o ANALYSIS: The Court held that once violations of previous mandates directed at
desegregating schools had occurred, the scope of district courts' equitable powers
to remedy past wrongs were broad and flexible. Four points were made.
 1) remedial plans were to be judged by their effectiveness, and the use of
mathematical ratios or quotas were legitimate "starting points" for
solutions;
 2) predominantly or exclusively black schools required close scrutiny by
courts;
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3) non-contiguous attendance zones, as interim corrective measures, were
within the courts' remedial powers; and
 4) no rigid guidelines could be established concerning busing of students
to particular schools.
Keyes v. School Dist. (1973)
o Denver, CO school system implemented an unconstitutional policy of racial
discrimination by operating a segregated school system.
 Defense argues that although one part of the Denver system was guilty of
segregation, it did not hold that the entire system was segregated as well.
o ISSUE: Did the segregation in Denver involve all of the city's schools and violate
the equal protection clause of the Fourteenth Amendment?
Oklahoma City Bd. of Educ. v. Dowel (1991)
o FACTS: Federal district court issued an injunction ordering the Board of
Education of Oklahoma City to implement the "Finger Plan," which bused black
students to white schools.
 District court withdrew from enforcing the plan and declared “unitary”
racial composition. The Board also passed the Student Reassignment Plan
(SRP), which lessened busing in an effort to reduce travel time for black
students.
o ISSUE: If a federal court deems that an injunction to desegregate schools has
achieved its goals, can that court permanently dissolve the injunction?
o ANALYSIS: The Court says YES! Because federal supervision of local school
systems [has always] been intended as a temporary measure to remedy past
discrimination.
 Racial unity was not sufficiently clear to dissolve the injunction. The
injunction could only be removed by having the school system comply
with the Equal Protection Clause.
Washington v. Davis:
o Involves Test 21 in Washington, DC. Test administered to police officer applicants.
The allegation is that it discriminates against African Americans because it
disproportionality stops African Americans from joining the police force. They have
the statistics here and this is race—so, they are a suspect class.
o Job of a police officer is communication. Proficiency is very important. This test
is there because has nothing to do with discrimination but, the plaintiff has to
establish the As Applied Attack Test elements.
o These lawyers did not have proof of intent to drive this case home.
 Disparate Impact: statistics in case.
 Intent: the lawyers did not show intent.
o This case only stands for establishing the two elements: DISPARATE
IMPACT AND INTENT!
Arlington Heights v. Metro Housing Development:
o Court recognizes that showing intent is a lot to ask. This case goes through all
evidentiary factors to determine if law or policy is intended to discriminate.
o
o
One way to establish INTENT is to show that statistical disparity is so out of
whack, that it is unexplainable on other grounds. You also need to argue that if
statistics are really skewed, it helps you show element two, intent, as well. You
usually won’t win on this. One way to show intent—disparate impact in statistics
is so out of whack.
Five factors used in an Equal Protection Analysis .
 1. Pattern from local action that is unexplainable
 2. Historical background
 3. Specific events leading up to the enactment
 4. Whether there were departures from normal procedures
 5. Legislative or administrative history
AFFIRMATIVE ACTION
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Affirmative action affects two different programs: Higher Education & Employment
IF strict scrutiny applies, how does it survive?? (See chart below)

CA Regents v. Bakke (1978) - Higher Education
o CA Davis Medical School—has 100 students per class and has an athlete program
for minority students. The way they decided to do it (narrowly tailored means)—
state school, 100 students and diversify the student body. They picked a number
and set aside 16 seats for a certain defined ethnic minority group. Never pick a
number.
o All ethnic groups (even white) are a suspect classification and get strict scrutiny.
o ARGUMENTS
 Compelling interest: Argument 1) Cal Davis argues: they are trying to
address societal discrimination against certain minority groups.
Compelling interest to remedy a history of discrimination. When you
spend decades keeping groups down, at some point, you have to provide
opportunities to allow a group in. Trying to address that issue. Argument
2) Cal. Davis is trying to ensure the availability of highly trained highly
trained medical professionals in underserved communities—communities
where there are not a lot of medical treatment available. If we draw
applicants to those communities—they will go back and serve those
communities. Argument 3) that interest is an interest in having a diverse
student body.


First argument, the Court says there might as well be a history of
societal discrimination. But, Cal. Davis is only in control of
themselves, not society. Therefore, no compelling interest shown.
 Second argument, doctors & lawyers come to school to become
part of an elite class. No showing that anyone who gets out of the
community wants to go back. Argument is shot down by the Court
here.
 Third argument, the Court says Cal. Davis might be onto
something there and can’t say no to this. It meets the compelling
interest we are looking for, but not sure under the narrowly tailored
means. For example here . . .
 Narrowly tailored means: Shot down under narrowly
tailored means because they chose a number. This
means ‘best possible,’ why not 50? 70? 12? 25? Where
did 16 come from? Cal. Davis did not have a good answer
for that.
 Without deciding whether diversity is a compelling interest, the court
struck down Cal. Davis affirmative action program as unconstitutional.
Now we have our argument: DIVERSITY IN HIGHER
EDUCATION.
Grutter v. Bollinger (2003) - Higher Education
o A. Preference for minority applications (Michigan Law School Case).
o B. Strict Scrutiny.
o C. Can an affirmative action program survive strict scrutiny? Government
must present a compelling interest.
o D. Diversity in higher education. The amicus briefs were coming from Fortune
500 Companies—not just liberals. These briefs are coming also from the top brass
of the military. These big companies are saying: yes—diversity in higher
education is a compelling interest to get a more diverse population in the office
because these are global companies and other countries haven’t experienced
people just like them. Now, the military is on board with this. The military says:
no military personnel from higher education, but the officer corps will. Sergeants,
Generals, Lieutenant’s, and Officers and the military brass—they say we don’t
have officer corps that haven’t been exposed to diverse areas in places where
people don’t look like them.
o E. The court looks at this and says since we are talking about higher education—
college and up—they buy the argument and they are persuaded. Scalia tried to
get the lawyer to say a number and then the case was done. He was determined to
get the lawyer to say a number.
o F. Applies to undergraduate and law schools.
o G. Scalia: How is a client trying to achieve this diverse student body? The lawyer
says, well, certainly nothing rigid—something flexible. Diverse student body is the
end goal with no quota and we haven’t reached the point with a diverse student body.
SCALIA: How many would that be? Let’s say, out of 100? The lawyer said, oh
Justice Scalia—don’t get silly—no number we just want to reach a number, we just
want to have more diversity—we are trying to reach a certain critical mass. Scalia:
before you say what critical mass means—how many would that be? What

percentage of the class to reach this critical mass? The lawyer said, it’s a feeling.
Critical mass is a point at which someone in an environment, who is a minority,
would feel comfortable with the level of representation with the level of the student
body and not feel as if they are a mere token. Scalia keeps pushing the numbers issue
and the lawyer never gave up—it’s a gut feeling. Periodically, the admissions
committee meets and evaluates where we are with the incoming class and they sit
around and look at the current composition of the class and they talk and get a feel
for where they are at. Do I get the feeling we are at the point where we have reached
critical mass? If we just don’t feel like we are there—with the next two applicants
and one is a minority—we will pick them.
 Compelling Interest: Government has compelling interest in a diverse
student-body so people can understand, respect, and interact with one
another.
 Narrowly tailored means: There is no better way—no number given.
They used critical mass: the point at which minority students feel
comfortable in the educational setting.
o H. No problem with the University of Michigan law school—if you are
any public university in the country—this is how you formulate the
argument.
Fisher v. University of TX (2016) - Higher Education
o Abigail Fisher was a white female who applied for undergraduate
admission to the University of Texas. She was not in the top 10% of her
class, so she competed with the other non-top 10% percent in-state
applicants. The University denied her application, and she sued on a claim
that the University considered race for admission. The University argued
that its use of race was a narrowly tailored means pursuing greater
diversity.
 The District Court & U.S. Court of Appeals (5th Cir.) affirmed.
Fisher appealed.
o Does the Equal Protection Clause permit the consideration of race for
university admissions?
 Yes! But only under strict scrutiny. (See chart above)
o ANALYSIS: The Court held that it was the duty of the reviewing court to
"verify" that the University policy in question was necessary to achieve the
benefits of diversity and that no race-neutral alternative would provide the
same benefits.
WEEK 6

Craig v. Boren (1976) THIS IS THE ASSESMENT¡
o Involves the sale of 3.2 % beer in Oklahoma. Normal beer is 5-8% alcohol. In
Oklahoma, the rule is: females at the age of 18, they can buy this 3.2% beer, but
males have to wait until they’re 21.
o Obvious gender stereotype here. (Women at this age are maturing and when a
male hits 18 they regress—loss of all judgement)
o

To codify in law a gender stereotype like this will get you in trouble. The court
says, “to withstand constitutional challenge they must be substantially related to
objectives…” There are no previous cases that have a standard.
o Because this affects gender….
 This is a quasi-suspect class that gets INTERMEDIATE SCRUTINY.
 INTERMEDIATE SCRUTINY IS ALWAYS THE ANSWER ON
THE BAR WHEN IT COMES TO GENDER!!!! The burden is on
the state.
 Rehnquist makes a dissent. He finds that the case came out of thin air and
that SCOTUS makes the rules.
o Intermediate Scrutiny:
 1. Exceedingly Persuasive Interest: (government has to show this)
THEIR INTEREST IS SAFETY (reduce traffic and other law
enforcement problems).
 2. Substantially related to achieving the interest: (doesn’t mean the
best way but it does mean A GOOD WAY). THEIR WAY TO
ACHIEVE IS MAKE IT ILLEGAL FOR 18 YEAR OLD MALE TO
BUY IT.
o What does the Oklahoma law actually do? Stops males under 21 from
PURCHASING 3.2% beer. It does not make it illegal for an 18-year-old male to
DRINK it. Poorly written law. How long will it take teenagers to figure this out?
IF you are trying to stop 18-year-old boys from drinking beer—this law won’t do
it. You win under the INTERMEDIATE SCRUTINY standard with this law.
U.S. v. VA (1996) - (Virginia Military Institute: VMI)
o VMI is a public university/military institute run by the State. If it wasn’t, then
there would be no issue in the first place. Constitutionally, private schools would
not be a problem here.
o VMI excludes women, so we have litigation here where plaintiffs are women and
the blanket exclusion of women violates the Equal Protection Clause.
o VA is a State → 14th Amendment applied under the EP Clause.
o Because women are excluded, gender is the issue. This is a quasi-suspect
classification and the intermediate scrutiny standard is applied.
 Intermediate Scrutiny:
 Exceedingly Persuasive Interest: (they got off to a bad start) VA
said there are two interests that are exceedingly persuasive: 1) At
the time VMI was founded, the concern was that we have diverse
educational opportunities for would-be colleges for all (Ginsburg
had clerks do research on this factual assertion and what they
discovered was that at the time VMI was founded in VA—women
were not allowed in college at all—no women’s universities or coed universities). Number 1 fails! So, they argue: 2) The interest of
the state is creating good citizen soldiers. The court asks what
this means and does every society need good citizen soldiers?
Judge asks, are you sure? The republic would not exist without
good citizen soldiers and the court says this argument is pretty
good.

Are the Means AT LEAST Substantially Related to Achieving
that Interest: 1) VA says the reason says we exclude women and
have separate school because VMI that only accepts men only uses
the ADVERSATIVE METHOD, which is the break you down
until you are nothing and then they reduce you to ruble—you are
who we want you do be. This is psychologically traumatic. At the
women’s institute (VWIL at Mary Baldwin): they use a
COOPERATIVE METHOD which reinforces self-esteem. 2)
Because the average woman cannot get through this program.
 VMI then starts arguing “Separate, but equal” however that argument falls apart.
 Ginsburg has one more question: Why are you excluding women from VMI?
VA says the average woman cannot get through the program. Ginsburg says: I
agree that the average woman cannot get through this program and
NEITHER CAN THE AVERAGE MAN!
 Scalia dissents saying he is a fan of stare decisis. He believes the Court is
applying more of a strict scrutiny standard.
Mississippi University for Women v. Hogan (1982)
 First case where the court says that not only must the interest be IMPORTANT—
it needs to be EXCEEDINGLY PERSUASIVE. This case discriminates against
men.
 The curriculum at school is primarily a nursing program that excludes men.
Nursing requires that nurturing feel and women are good at that and men can’t do
that.
 Mississippi needs an EXCEEDINGLY PERSUASIVE INTEREST. Theirs is to
create more education opportunities for women to bring more women into the
workforce. O’Connor doesn’t really buy this but at any rate you need to show that
excluding men is a good way to do it. If you want to bring more women into the
professional world—that’s okay, but you don’t need to exclude men to do it. You
aren’t even excluding men—you let them audit your courses. So, what’s going on
here? (Seems like a stupid problem pushed by the school)
 Mississippi shows no link between excluding men and bringing in more women.
WEEK 7

Romer v. Evans (1996) - Sexual Orientation
o Facts: Voters in Colorado adopted Amendment 2 to the Colorado state
constitution that precluded any judicial, legislative, or executive action designed
to protect persons from discrimination based on their "homosexual, lesbian, or
bisexual orientation, conduct, practices or relationships."
o Issue: Did the Amendment deny equal protection for citizens based on their secual
orientation?
o Analysis: Yes. Amendment 2 singled out homosexual and bisexual persons,
imposivng on them a broad disability by denying them the right to seek and
receive specific legal protection from discrimination.
 Justice Kennedy said, "If the constitutional conception of 'equal protection
of the laws' means anything, it must at the very least mean that a bare
desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest."
Ambach v. Norwick (1979) - Alienage
 Facts: New York education statutes forbid the certification of any prospective
teacher who is eligible for United States citizenship, but refuses to seek
naturalization. Ms. Norwick is a British citizen eligible to seek naturalization but
she refused to do so. Her refusal to seek naturalization is the sole requirement for
certification as a teacher that she has not met.
 Issue: Can New York deny teaching certification on the basis of alienage without
violating the Equal Protection Clause?
 Analysis: District Court said no, BUT the Supreme Court said yes!
 Citizenship requirements for public school teachers must bear a rational
relationship to a legitimate state interest.
 Alienage issue → Strict Scrutiny
 A state may exclude “all persons who have not become part of the process
of self-government.” Justice Powell thinks the non-citizen is not loyal to
the USA, but loyal to the country he/she comes from.
 Teachers:
 (1) Educate students about self-government
 (2) Help students understand the citizen’s role in society
 (3) Exercise wide discretion over how course material is taught
 Thus, public-school teaching is a legitimate governmental
function. The citizenship requirement bears a rational
relationship to the state’s legitimate interest in educating future
citizens.
 Dissent: Is it better to employ a poor citizen-teacher over an excellent resident
alien teacher? How about employing a citizen who has never seen Spain or a
Latin American country to teach Spanish and deny a resident alien who has lived
in that culture for over 20 years. The State will know how to select its teachers
responsibly.
Mathews v. Lucas (1976) - Legitimacy (non-marital children)
 Facts: Robert Cuffee lived with Belmira Lucas and had two children: Ruby &
Darin Lucas. They were never married. Nothing to support that Robert
acknowledged in writing that he was the father of the children. After they
separated and Robert died, Belmira filed for social security benefits on behalf of
her children.
 To be entitled to these benefits, the Social Security Act says legitimate
children and some classes of illegitimate children are presumed to be
dependent, and need not submit proof of dependency when applying for
benefits. Other illegitimate children must prove that the deceased was the
child’s parent, and that at the time of death the parent was either living
with or supporting the child. The Lucas children proved that the deceased
was their father, but were denied benefits because they did not prove that
their father was living with or supporting them at the time of his death.
 Analysis: Here, we have a federal actor (U.S. Government) in relation to Social
Security. The 14th Amendment will be incorporated through the 5th Amendment
Due Process clause. Illegitimacy is a suspect classification and subject to strict
scrutiny.
 It was determined that there was a denial of equal protection because it
reflected the view that legitimate children were more entitled to social
security benefit support more than illegitimate children, and was therefore
unsupported by a permissible governmental interest.
Cleburne v. Cleburne Living Center, Inc. (1985) - Mental Impairment
 Facts: The Respondent bought a property from a private owner with the intention
of starting a group home for the mentally retarded. It was expected that 13
persons would reside in the house of 4 bedrooms and 2 baths. Petitioner required
the Respondent to apply for a special use permit and then denied the application
for the establishment of a group home for the mentally retarded in the
community.
 Issue: Is the mentally retarded part of a “quasi-suspect” class subject to a higher
scrutiny under the Equal Protection Clause? Is the special use permit requirement
constitutional?
 Analysis: No, the mentally retarded do not qualify as a suspect or quasi-suspect
class because the lack of history of discrimination and they are not politically
powerless. As a group they have been able to attract the attention of lawmakers on
several issues.
Classification
Suspect class
Scrutiny Level
Ends
Strict
Compelling
government
interest
Race, ethnicity, alienage
(to the state)
Means
Narrowly tailored
*Prof thinks: Sexual
Orientation is part of
Suspect Class.
Burden
The challenger has
to make a prima
facie case, that
there is a suspect
class. If they do
that.
Burden shifts to the
govt to justify, there
use of a class
based
measurement.
Some form of
distinction.
Shifts at hightened
scrutiny once pf
case made
Prof uses-> IntermediateQuasi-suspect class
Gender, illigetimacy of
kids
Non-suspect class
Age, marital status,
sexual orientation,
Intermediate
Scrutiny –
Almost to the
level of Strict.
Rational basis
Important or
significant interest
Legitimate interest
Substantially
related
Bop shifts to the
govt at hightened
scrutiny once pf
case made
Rationally related
in addressing the
problem or the
legitimate interest
Bop not shift
∏ show di/intent
∏ show either no
legit reason or
alienage (federal),
social/economic
legislation
means not
rationally related
WEEK 8 - 9

First Amendment:
o Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.(4) and then (2) -> establishment and
free exercise.

Freedom of Speech - How to Analyze
Definition:

o (1) Is it speech? Requires a message going out. (1) Speaker intends to convey a
message AND (2) it’s understood there is a message, audience receive it.
(Objective and subjective component.) Vital to our democracy.
 Speech is to express beliefs, thoughts, ideas, and emotions
 To opine on unpopular issues free from government censorship
 First amendment of US Constitution protects the rights of individuals to
freedom of religion, speech, press, petition and assembly. Some scholars
group these freedoms under the general term “freedom of expression”
 Types of speech
 Traditional speech
o Verbal or written words, symbols
o Expressive conduct, message conveyed through actions
 What makes it speech?
 Is it verbal/written, symbolic, expressive conduct speech??
 Art may be a form of speech because it is a form of artistic
expression. But the question is to determine what message is it
trying to convey?
 If the activity is not speech, then it is not protected by the First
Amendment. Constitutional analysis ends there.
o (2) Who is the government actor?
 FEDERAL? – Speech protected by the first amendment which applies
directly against the federal government
 STATE?- first amendment has been selectively incorporated to the
states by the 14th Amendment.
o (3) What is the government trying to do? government acting as a regulator,
speaker, educator, employer, or patron?
 Are they regulating speech? Always Strict Scrutiny OR
 Are they regulating the conditions/behavior around speech? Rational
Basis.
 IF GOVERNMENT IS ACTING AS A REGULATOR …
 Is it a content neutral regulation or a content based regulation?

o
Content neutral-> Intermediate scrutiny
 Regulations that apply to all speech regardless of
the message
 Content based -> SS
 Regulations that are based on the subject matter of
the speech of the viewpoint expressed (Specific)
 If govt is trying to regulate protected speech, strict scrutiny
 Protected speech: strict scrutiny
 Trying to prevent/prohibit speech = strict scrutiny
 When can a government interfere with speech?
 Two types of interference
 Content based
 Govt is looking to limit the content
of the speech
 Content neutral
 Govt is looking to limit time, place,
or manner at which the speech
occurs
 Must be a compelling governmental injection and must be
as narrow as possible
 Speech can be regulated if government can show that there
is a non-speech evil (overthrow govt, breach of peace,
criminal activity) which is occurring at the same time with
the speech activity or the regulatable evil happens as a
result of the speech (ex: let’s kill that cop, cop gets killed,
unprotected)
 Whether the incidental restriction on speech is justified by
the govt interest in preventing the non-speech evil
 If govt is trying to regulate behavior that goes along with
speech/unprotected speech, rational basis
 Example: burning draft card … cannot arrest for saying “I don’t
want to fight in the war” but potential basis for stopping the
burning of the card
 Need to decide whether the incidental restriction on speech is
justified by the govt interest in preventing the nonspeech evil.
 Test: Content Neutral regulation-They can regulate speech if they
can show there is a nonspeech evil, such as overthrow government,
some criminal activity in the same time of the speech or regulable
evil happened as a result of speech. CRIMINAL BEHAVIOUR.
 Incidental restrictions on speech must be justified.
 Strict scrutiny or rational basis
 Unprotected speech: rational basis
(4) Is it protected speech or unprotected speech?
 Think of it as Protected speech, unless it falls under one of the categories
of unprotected speech.Speech that seems like it should be unprotected, but
it’s not (IT IS PROTECTED)






o
Offensive speech (Cohen – F word)
Indecent or profane speech
Racist speech/hate speech (RAV – burned cross on neighbor’s
lawn)
False speech (Stolen Valor – wore medals he did not earn)
 Exception: cannot make false speech to government
officials
The government cannot ban offensive, profane, or racist speech
BUT government can try to regulate it in a variety of ways
Unprotected speech (RATIONAL BASIS) A few categories of speech
often described as unprotected can, as a general rule, be heavily regulated
or even completely banned. includes the following:
 (1) Inciting imminent lawless action (a.k.a. IIIA - Inciting
Immediate Illegal Action + Present Ability)
 Speech intended to have effect of producing imminent
illegal action and likely to produce such action
 (2) Fighting words
 (3) Obscenity
 (4) Defamatory speech; AND
 Hostile Audiences is also a category.
 True Threats
 (5) Some commercial speech (more of a less protected speech
rather than unprotected)
 Central Hudson test: (Use for commercial speech)
 (1) whether the speech at issue concerns lawful
activity and is not misleading;
 (2) whether the asserted government interest is
substantial; and, if so,
 (3) whether the regulation directly advances the
governmental interest asserted; and
 (4) whether it is not more extensive than is
necessary to serve that interest.
 Intermediate Scrunity.
(5) Is the regulation vague or substantially overbreath? Any prior restraint?
 Vague = Can’t tell what kind of speech is included in the regulation. The
law is vaugue, you don’t know if it constitutes a violation. -> procedural
due process issue. (too much room for discretion
 Overbreath = Regulation is written so generally that it will include
protected speech as well as unprotected speech.
 Prior Restraints = A regulation of speech that occurs before its expression.
Generally, prior restraints are presumed to be unconstitutional w/ limited
exceptions, including:
 (1) There is a particular harm to be avoided (e.g., restraining a
newspaper from publishing troop movements).

o
(2) Procedural safeguards are provided to the speaker (e.g., the
standards must be narrowly drawn, reasonable, and definite).
(6) Is the government trying to prohibit speech (SS) or channel speech to move its
location (TPM)?
 Content-based? or Content-neutral?
 Content-based (What is being said) APPLY STRICT SCRUNITY
 Content-neutral (How, when, or where it is being said) APPLY
INTERMEDIATE SCRUNITY
 The evenhanded application of a regulation is often indicative of its
neutrality. By contrast, regulations that give government discretion to
decide who gets to speak run the risk of permitting the government to
discriminate against certain speakers for the content of their speech. KEY:
Any attempt to regulate speech must be content neutral; that is the
government may not regulate speech based either on its subject matter or
its viewpoint
Advocacy of Illegal Action
 Schenck v. U.S. (1919)
o Facts: During World War I, socialists Charles Schenck and Elizabeth Baer
distributed leaflets declaring that the draft violated the Thirteenth Amendment
prohibition against involuntary servitude. The leaflets urged the public to disobey
the draft, but advised only peaceful action. Schenck was charged with conspiracy
to violate the Espionage Act of 1917 by attempting to cause insubordination in the
military and to obstruct recruitment. Schenck and Baer were convicted of
violating this law and appealed on the grounds that the statute violated the First
Amendment.
o Issue: Did Schenck's conviction under the Espionage Act for criticizing the draft
violate his First Amendment right to freedom of speech?
o Analysis: Holmes establishes the Clear & Present Danger doctrine. Schenck’s
actions were a clear and present danger to security of the United States. The is
whether the words used are of such a nature as to create a clear and present danger
to bring about the substantive evils that Congress has a right to prevent.
 Note: In Abrams v. the United States (1919), Justice Holmes changed his
tune regarding the First Amendment. The case involved the distribution of
a pamphlet in response to a labor strike. In his dissent, Holmes said that
people needed to be able to share ideas, even in the time of war.
Inciting Imminent Lawless Action (Unprotected Speech)
 Speech can be restricted if it creates a clear and present danger of imminent lawless
action. It must be shown that:
o (1) Imminent illegal conduct is likely; AND (right in the moment)
o (2) The speaker intended to cause it.
 Brandenburg v. Ohio (1969)
o Facts: In a speech at a KKK rally in Ohio, Brandenburg stated at an organizer’s
meeting: “We’re not a revengent organization, but if our President, our Congress,
our Supreme Court, continues to suppress the white, Caucasian race, it’s possible
that there might have to be some revengeance taken.” Brandenburg had called a

reporter with the instruction to attend the rally and record it. He also stated, “We
are marching on Congress July the Fourth, four hundred thousand strong. From
there, we are dividing into two groups, one group to march on St. Augustine,
Florida, the other group to march into Mississippi. Thank you.”
o Issue: Did Ohio's criminal syndicalism law, prohibiting public speech that
advocates various illegal activities, violate Brandenburg's right to free speech as
protected by the First and Fourteenth Amendments?
o Rule of Law: Under the First and Fourteenth Amendments, a state may only
regulate speech that advocates violence if the speech is intended and likely to
incite imminent illegal activity. You have to intend to threat, and likely to
produce such action (effect).
o Analysis: The Court said that the speech did not present an immediate harm to
others, it was not live, it was recorded. It was not imminent. The Court
“…fashioned the principle” that advocacy may not be prohibited “except [where]
directed to inciting or producing imminent lawless action and * * * likely to incite
or produce such action”
Hess v. Indiana (1973)
o The Court found that the following statement by an antiwar protestor: “We’ll take
the fucking street later [or again],”
 It was not addressed to any person or group in particular… and amounted
to nothing more than advocacy of illegal action at some indefinite future
time. (Speech was found to be protected)
Communist Party of Indiana v. Whitcomb (1974)
 The Court invalidated an Indiana statute denying a political party or its candidates
access to the ballot unless the party filed an affidavit that it “does not advocate the
overthrow of local, state or national government by force or violence.”
 The Court found the law furnished access to the ballot “not because the Party
urges others ‘to do something now or in the future [but] merely to believe in
something…’
 The Court found the principle applied not only to attempted denials of public
employment, bar licensing, and tax exemption, but also to ballot access denials.
Obscenity (NOT AN ESSAY QUESTION) –
obscenity limited to works that depict or describe sexual conduct. sexual conduct must be
specifically defined by applicable state of law
 Miller v. California (1973)
o
Facts: Miller, after conducting a mass mailing campaign to advertise the sale of
"adult" material, was convicted of violating a California statute prohibiting the
distribution of obscene material. Some unwilling recipients of Miller's brochures
complained to the police, initiating the legal proceedings.
o  USE TEST
Three-pronged Miller Test

(Speech constitutes obscenity if it describes or depicts sexual conduct that, taken
as a whole, by the average person:)
o
o
o
(1) weather average person applying contemporary community standards
would find that work as a whole appeals to a pruient interest
(2) whether work depicts or describes in a Peyton Lee offensive way
sexual conduct specifically defined by state law
(3) whether work taken as a whole lack serious literary artistic scientific or
political value .
Fighting Words → “Words that lack any real meaning” directed at another that is likely to
provoke a violent response and result in a breach of the peace.
 Elements:
o 1) Are you in someone’s face;
o 2) did you intend to start a fight; and
o 3) do the words lack meaning? If this is not going on—this is not fighting words.
o Courts DON’T apply this unless one person is in another person’s face. So, it’s a
mini version of incitement. Incitement involves more of an audience whereas
FIGHTING WORDS involves ONE ON ONE. The intent has to be to FIGHT.
Speech that is directed to another individual with the intent to start a fight.
 True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out
w/ an intent to intimidate) Did the person say they would shoot or harm someone>
 True threat: (1) serious intention to commit unlawful violence that is (2) directed at an
individual or a group of individuals
 Speech also can be limited if it constitutes fighting words. Fighting words are personally
abusive words that are likely to incite immediate physical retaliation in an average
person. Words that are merely insulting or annoying are not enough.
 The Supreme Court will NOT tolerate fighting words statutes that are designed to punish
only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of
race, religion, or gender)
 Chaplinsky v. New Hampshire
o Fighting words are those which by their very nature inflict injury or tend to
promote an immediate breach of the peace.
o Facts: This guy is arrested for fighting words. Racketeer and fascists have
meaning, and they have political meaning. The most protected speech is political
and the more controversial it is—the more protected it is. Thus, the speech is
protected.
 Cohen v. California Important Case
o Facts: Guy had a jacket that said “FUCK THE DRAFT. STOP THE WAR!” in
the courthouse. He was arrested in the courthouse. CA concedes that he wasn’t
arrested because of the courthouse because CA could have made a
time/place/manner argument. This was not proper decorum for a courtroom. CA
arrested him because he was in public because there are people in public that
should not be reading that word.
 California statute that prohibits "maliciously and willfully disturb[ing] the
peace and quiet of any neighborhood or person [by] offensive conduct."
 Run the 1st Amendment Analysis:
 Is this speech? - Yes, written speech on Cohen’s jacket.
Gov’t actor? - State of California
What is the gov’t trying to do? - Prevent words that maliciously and willfully
disturb the peace & quiet of the public.
 Is this unprotected speech? - No!
 Incitement? NO, because it’s not suggesting anybody do anything.
 Obscenity? NO, because it’s not sexually explicit. While the word “fuck”
has sexual meaning—in context, there is nothing sexual about this.
 Fighting Words? Has meaning and political speech but he isn’t asking
anyone to fight.
 Is the regulation vague or overbroad?
 The Court deemed the regulation to be vague with the term “offensive
conduct.” Offensive conduct was defined as “vulgar language in the
presence of women or children.” Offensive conduct was prohibited in
CA because they believed it would disturb the peace & quiet of the
public.
 Is the government trying to prohibit speech or regulate speech?
 Spoken and written words are not symbolic speech. He wasn’t arrested
for wearing a jacket—he was arrested for words on a jacket.
New York v. Ferber
 In this case, the issue is whether making prosecutors prove the entire MILLER
TEST in child porn cases.
 Whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to
the prurient (excessive, morbid, shameful sexual) interest;
 Whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law, and
 Whether the work, taken as a whole, lacks Serious LITERARY,
ARTISTIC, POLITICAL, or SCIENTIFIC value (SLAPS test)
 SCOTUS looks at those above two and says there isn’t a jury in this country that
wouldn’t say this isn’t outside the norm and patently offensive. They say that the
first two, if talking about child porn, you can instruct the jury to say: You, the
jury, must presume that the first two elements have been met. Now, the
prosecutor only has to demonstrate the third one, SLAPS test.


Time, Place, & Manner Factors → Use when you have government regulating
signs




(1) Must advance a significant government interest = intermediate scrutiny
(2) Must be content-neutral
(3) Must be narrowly tailored
(4) Must leave available ample alternative channels or opportunities for information to
be communicated
SPEECH IN THE PUBLIC FORUM:
Overview: extent of protection for speech on public property may depend on the nature of the
form or place where one speaks. note this forum analysis does not apply to private property



The government has power to regulate the conduct associated with speech, although the
breadth of this power depends on whether the forum involved is a public forum, a
designated public forum, limited public forum, or a nonpublic forum.
Public Forums & Designated Public Forums (IS it a designated forum? As this
question)
o Public Forum: Public property that has historically been open to speech-related
activity. (e.g., streets, sidewalks, and public parks)
o Designated Public Forum: Public property that has NOT historically been open
to speech-related activities but which the government has made open for such
activities on a permanent or limited basis, by practice or policy. (e.g.,
schoolrooms that are open for after-school use by social, civic, or recreation
groups)
o The government may regulate speech in public forums and designated public
forums with reasonable time, place, and manner regulations that:
 (a) Are content-neutral (i.e., are subject matter and viewpoint neutral)
 (b) Are narrowly-tailored to serve an important government interest;
AND
 (c) Leave open alternative channels of communication.
Limited Public Forums and Nonpublic Forums
o Limited Public Forum: Government property that has NOT historically been
linked with speech and assembly but has been opened for specific speech activity
(e.g., school gym opened to host a debate on a particular community issue)
o Nonpublic Forum: Government property that has NOT historically been linked
with speech and assembly and has NOT been opened for specific speech activity
(e.g., military bases, schools while classes are in session, government
workplaces, etc.)
o The government may regulate speech in limited public forums and nonpublic
forums if the regulations are:
 (a) Viewpoint neutral; AND
 (b) Reasonably related to a legitimate government purpose
O’Brien Factors (Gov’t action is okay if:) Test for symbolic speech/expressive conduct




(1) The conduct (not the speech) is regulable by the government
(2) Furthers an important/substantial governmental interest (Intermediate
Scrutiny)
(3) The gov’t interest is unrelated to suppression of speech (Content-neutral)
(4) Any incidental restriction on expression is no greater than essential to further the
governmental interest.

United States v. O’Brien
o Burning Selective Service cards on the steps of the South Boston Courthouse is
considered conduct—is it also speech? Yes, because it was done during a protest.
Message intended: doing it to say something. Message received: I get it.
Message is that he opposed the draft.
o Although the government can't target our speech—it can target our conduct. The
court says they will look at this and only TARGET the CONDUCT its allowed to
regulate and NOT THE SPEECH. The government should not be targeting
speech.
o If you see a fact pattern where both are in play—you can apply
time/place/manner restriction and O’Brien Test. They are essentially the same
test.
o O’Brien Test:
 (1) The conduct (not the speech) is regulable by the government:
Congress made a law saying that you cannot destroy your Selective
Service card. Congress has power to raise armies and navies. This is
regulable by the government.
 (2) Important/substantial governmental interest (intermediate
scrutiny): Gives you your draft number and recording station thus, it's
important.
 (3) Interest is unrelated to suppression of speech: No, not in this case
because that interest (making sure they have a draft number) is not related
to speech. It's unrelated to speech. So, the court concludes it's unrelated to
speech as to the subject matter, making it content neutral. Raising armies
and navies is an important interest.
 (4) Means chosen place on speech a burden “no more restrictive
than necessary” (Sounds like narrowly tailored): Is this a good way
of making sure people retain information that’s on the draft card? The
court concludes that it is.
Texas v. Johnson
 Facts: Johnson was convicted of violating a Texas law that prevented
desecrating the American Flag. The Court first addressed whether Johnson’s
conduct was expressive conduct that allowed him to invoke the First
Amendment and then whether the State’s regulation was related to the
suppression of free expression.
 The way the flag burning statute was drafted took a lot of emotion out of it for
the court. The statute says: venerating and desecrating a public monument,
place of worship or burial, state or national flag – desecrate means: deface,
damage, or physically mistreat in a way the actor knows will seriously offend
one or more persons witnessing the actions. Can’t mistreat a venerated object
that someone now or in the future might find it offensive.
 Flag Burning: is this speech? Its conduct for sure. Government says they were
only targeting the conduct. So, is it speech?
 Burning US Flag in public place: message intended, message received.
Thus it is speech.
 Is this unprotected speech?
 Incitement: No, not advocating anything





Fighting Words: no.
Obscenity: No.
Time/Place/Manner? No
Thus, it is protected speech.
Content Neutral and Time/Place/Manner: No. Because that’s not even at issue
here. This is a DON’T DO THIS issue. Statute doesn’t make it a crime to burn or
destroy objects. Only a crime if knowing that it will offend someone that will see
or discover it.
WEEK 10
FREEDOM OF THE PRESS (MULTIPLE CHOICE)
Main Concept: Certain efforts by the government to suppress speech before it happens are
categorised as prior restraints, presumptively invalid.
Two major Types:
1. Those imposed by requirement for advanced license permit or other approval and.
 Must be an important reason for licensing example to ensure that two
parades don't take place at the same time
 there must be clear standards for reviewing application leaving almost no
discretion to the licensing authority.
 the system of review must include procedural safeguards with prompt
decision made by the government on whether the speech will be allowed.
2. Those imposed by an injunctive order of a court that prohibits future conduct
generally under penalty of contempt.
Prior Restraints = A regulation of speech that occurs before its expression. Generally, prior
restraints are presumed to be unconstitutional w/ limited exceptions, including:
 (1) There is a particular harm to be avoided (e.g., restraining a
newspaper from publishing troop movements).
 (2) Procedural safeguards are provided to the speaker (e.g., the
standards must be narrowly drawn, reasonable, and definite
Prior Restraints (see Freedom of Speech Analysis above - to see what that entails)
Prior restraints are generally disfavored: prior restraints on political speech almost per say
invalid except maybe national security secrets.but prior restraints on commercial speech allowed
under the intermediate scrutiny test. but prior restraints on future distribution of speech already
found to be unprotected likely acceptable.
 Near v. Minnesota (1931)
o Facts: The Saturday Press (Minneapolis newspaper), accused local officials, Jay
Near and Howard Guilford, of being implicated with gangsters. The officials
sought a permanent injunction against The Saturday Press on the grounds that it
violated the Public Nuisance Law because it was malicious, scandalous, and
defamatory. The law provided that any person "engaged in the business" of
regularly publishing or circulating an "obscene, lewd, and lascivious" or a
"malicious, scandalous and defamatory" newspaper or periodical was guilty of a
nuisance, and could be enjoined from further committing or maintaining the
nuisance.
o
o
o
Issue: Does the Minnesota "gag law" violate the free press provision of the First
Amendment?
Holding: Yes.
Analysis: The Court held that the statutory scheme constituted a prior restraint
and hence was invalid under the First Amendment. Generally, prior restraints
are found to be unconstitutional, unless it was meant to avoid a particular
harm or it was provided as a procedural safeguard for the speaker.
 For example (as shown above in Speech analysis)
 Avoiding a particular harm would include:
 Restraining a newspaper from publishing troop movements,
in order to protect military secrets/confidential
information.
 Obscene speech or inciting violence.
 Requiring a permit to use a public area for a parade or
protest to avoid disorderly conduct.
Newsgathering & Public Forums - Protection of Confidential Information
 Branzburg v. Hayes (1972)
o Facts: After observing and interviewing a number of people synthesizing and
using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a
story which appeared in a Louisville newspaper. On two occasions he was called
to testify before state grand juries which were investigating drug crimes.
Branzburg refused to testify and potentially disclose the identities of his
confidential sources.
o Issue: Is the requirement that news reporters appear and testify before state or
federal grand juries an abridgement of the freedoms of speech and press as
guaranteed by the First Amendment?
o (a) Whether a reporter has a privilege. Is that true? Requiring reporters to
disclose confidential information to a grand jury serves a COMPELLING
STATE INTEREST and does not violate the First Amendment. If you are a
reporter, you have NO PRIVILEGE and if subpoenaed to testify, then you
must.
o (b) If there is a reporter's privilege—then we have to define what a reporter is.
o (c) Do we have a privilege? NO, not constitutionally.
 If Congress wants to create one, they can. If a state wants to create one,
they can. There is nothing in the first amendment about a privilege and
whether Congress should pass laws like this.
o (d) If your client is a reporter and gets a subpoena from a reporter—you have to
show up or you will be facing a contempt hearing.
o (e) THERE IS NO REPORTER PRIVILEGE!!!!!
WEEK 11
Special Category: School Speech (K-12) → (from the Week 11 WKSHT)
Another special category under Free Speech, in addition to Commercial Speech, is School
Speech (K-12).
MAIN CONCEPT: When the government acts as an educator government interests may justify
more extensive regulation of speech. -> Government as Educator and Editor *make content
based distinctions when acting as a educator success in regulating the contents of speech


students have free speech rights (Tinker)
but schools may regulate student speech when :
o it is profane indecent or sexually explicit (bethel)
o it disrupts school activities (tinker)
o it is associated with certain school sponsored activities (Hazelwood)
1. There are three pivotal cases for School Speech, what are they?
a. Tinker v. Des Moines (1969)
1. School may regulate speech when such speech: materially disrupts the
class work, involves substantial disorder, invades the rights of others
b. Hazelwood v. Kuhlmeier (1988)
c. Morse v. Frederick (2007) [Only for cases regarding illegal drug use]
Tinker (1969) (KEY CASE)
In the Tinker case, students decided to stage a peaceful protest of the Vietnam War by wearing
black armbands to their public schools. The school announced that students who wore the
armbands must remove them or face suspension. The regulation was challenged up to the U.S.
Supreme Court.
Rule of Law: In a public-school setting, prohibiting an expression of an opinion is
unconstitutional unless there is a specific showing that engaging in the forbidden conduct would
materially and substantially interfere with appropriate discipline in the operation of the school.
Students do not shed their constitutional rights when they enter the schoolhouse door.
Holding: a mere fear or risk of disorder does not justify abridging the strong First Amendment
interest in promoting free and open discourse in American society. There is no showing in the
record that that school officials had reason to anticipate that the wearing of the arm bands would
substantially interfere with the work of the school or impinge upon the rights of other students.
Additionally, school officials did not impose equal restrictions on all expression, as some
students were permitted to wear other types of religious or political symbols. Only students
wearing black arm bands to protest the Vietnam War were suspended, however. This indicates
that the prohibition of expression by school officials is only for certain political opinion. A
prohibition singling out a particular viewpoint is impermissible under the First Amendment.
School officials do not possess total control over their students, and are constrained by the
Constitution. Thus, in the absence of a specific showing of constitutionally valid reasons to
regulate their speech, students are entitled to freedom of expression of their views. The decision
of the district court is reversed.
Bethel School District No. 403 v. Fraser
Rule of Law: Under the First Amendment, school officials may properly punish student speech
with suspension if they determine that speech to be lewd, offensive, or disruptive to the school’s
basic educational mission.
Holding: It is a highly appropriate function of public school education to prohibit the use of
vulgar and offensive terms in public discourse. Additionally, the determination of what manner
of speech in the classroom or in school assembly is inappropriate properly rests with the school
board. Here, Fraser’s inappropriate speech interferes with the school’s purpose of providing an
educational program in self-government. The school board has the constitutional right to
determine that Fraser’s speech is not an example of good citizenship, and to punish him with
suspension. Unlike the sanctions imposed on the students wearing arm bands in Tinker, the
penalties imposed in this case are unrelated to any political viewpoint. The decision of the lower
courts is reversed.
1. Circle the correct option. An important part of the Tinker case was that students’ protest
did not take the form of written and spoken expression, but instead used a symbol. In the
Tinker case, was the respective “symbolic speech” protected by the First Amendment?
Yes
|
No
2. In Tinker, we are given the Substantial Interference Test which says the following:
When we look at what the school is doing, we look at whether there is a material and
substantial risk of interference to schoolwork and discipline.
3. Circle the correct option. In the Tinker case, when the Court applied the Substantial
Interference Test, it held that the silent protest – of wearing black armbands – did not
interfere with the school’s ability to operate normally, and therefore the restriction of
student’s free speech rights was not justified.
True
|
False
Hazelwood (1988)
In this case, the school removed two articles that they deemed inappropriate from the schoolsponsored student paper. The case was heard by the U.S. Supreme Court. School may not
tolerate student speech that is inconsistent with its basic educational mission even though the
government should not censor similar speech outside the school. determination of what matter of
speech in the classroom or in the school assemblies are inappropriate properly rests with the
school board rather than the federal courts .
1. How did the court rule in this case? Did it rule in favour of the school?
The Court ruled in favor of the school. It is found that the school administration has the
right to control the style and content of student speech when it is included in the
school’s expressive activities.
2. Apply the holding from Hazelwood to the following facts: There’s an article that is about
to be released in a student paper about “The Greatness of the KKK.” Can the school redact
that article – if its release could reasonably suggest association and support by the school?
Can the school limit and choose what it would like to associate itself with? Explain.
Yes, it can be in the school’s power to preserve its educational image. The school has a
vested interest in protecting its image and the educational activities of the students.
Therefore, it is not forced to promote the expressions of the students simply because its
sponsors the event or medium used. The school is allowed to consider the emotional
maturity of the audience when choosing to suppress certain forms of speech.
3. According to the Hazelwood decision, what conditions have to exist for a school to
exercise censorship of the student press? How much discretion or scope does a school have?
For a school to exercise censorship of the student press, the speech must have occurred
in a public forum. It that is the case, the school then must have a legitimate interest in
preventing the publication of the articles that it deems inappropriate and that might
appear to have the imprimatur of the school.
Morse (2007)
In this case, we see a school regulation that says nothing can promote illegal drug use. A student
was suspended for unveiling a banner referencing drug use. The drug use is contrary to the
schools mission.
Rule of Law: Under the First Amendment, school officials may prohibit student speech that can
reasonably be interpreted as promoting illegal drug use.
Holding: Ultimately, determinations about when speech is disruptive are properly left to the
school board. The two controlling principles for school regulation are (1) the constitutional rights
of students in public schools are not automatically coextensive with the rights of adults in other
settings and (2) not all cases require that student expression only be suppressed if school officials
reasonably conclude that it will materially and substantially disrupt the work and discipline of
the school. Here, the school has a compelling interest in preventing illegal drug use among
young students. Thus, Morse’s suspension of Frederick for this speech does not violate the First
Amendment. The decision of the court of appeals is reversed.
1. Circle the correct option: The Supreme Court ruled that the regulation is constitutional
and that school officials may censor speech that they reasonably believe encourages illegal
drug use?
True
|
False
Note for Essays: When you see school speech (K-12), you should consider Tinker followed by
Hazelwood. You will need to discuss the third case, Morse, only if you see speech relating to
illegal drug use.
The Application of the First Amendment to Other Areas
Corporations
1.
Circle the correct option: Keeping in mind the holding from Citizens United, Corporations
are not protected by the First Amendment?
True
|
False
2. According to the Court in Citizens United, does the ability of corporations to fund ads
equate to or fall under the purview of free speech?
Yes, corporate political spending is protected by the First Amendment right to free
speech.
3. Citizens United was a landmark case, where the Court gave consideration to giving a
Constitutional Right to a non-human entity. What was the issue, and how did the Court rule
in this case?
The issue was in determining if corporations are entitled to First Amendment rights.
The Court held that corporations have a First Amendment right to free speech because
they are "associations of citizens" and hold the collected rights of the individual citizens
who constitute them.
The Military
1. Circle the correct option: When it comes to troops, the government has wide latitude to
regulate speech, in so far to regulate anything to cover anything that may create harm.
True
|
False
Monuments in a Public Park
 Grove City v. Summum
o Placement of a monument in a public park is a form of government speech and
therefore not subject to scrutiny under the Free Speech Clause of the First
Amendment.
WEEK 12 - 13
RELIGIOUS FREEDOMS
EXAM NOTE! - Looking at the fact pattern and you need to identify what kind it is to see what
test. The court has developed different tests for different types of facts.


Is the government promoting religion? → ESTABLISHMENT! (THREE TESTS
CITE ALL, AND THEN PUT THEN FOCUS ON ENDORSEMENT-american
humanist case. (overall religion)
Is the government interfering? (limiting a practice, focusing on an individual or practice
of a religion, something within the religion. (→ FREE EXERCISE!
Free Exercise Clause
-
-


BEST CASE IS: Employment Division, Department of Human Resources of Oregon
v. Smith
Rule of Law: Under the Free Exercise Clause of the First Amendment, a state may
constitutionally refuse to carve out an exception from its generally applicable criminal
laws for religious practices. KEY: There is a government purpose to regulate conduct,
especially when it doesn’t concern religion. The law itself has to be a neutral of
general applicability. If it is in fact this -> Rational basis because we are talking
about laws the prohibit criminal conduct. Laws that specifically target religious
beliefs or religion conduct are subject two strict scrutiny. but if you have a system
that makes individualized determinations and contains numerous exemptions to the
generally applicable rule decisions to not include religious hardship as an exemption
is subject to strict scrutiny,
Holding: Under this test, governmental actions that substantially burden a religious
practice must be justified by a compelling governmental interest. This test has almost
never been used to invalidate government regulations outside the unemployment
compensation arena, and has never been used to require exemptions from generally
applicable criminal law. It is improper to require the government to show a compelling
state interest when it seeks to abridge conduct that is central to an individual’s religious
practice, as doing so would require the government to make value judgments about the
centrality of religious conduct. Court did not apply strict scrutiny, the law had a secular
purpose drugs are bad, law was merely incidental effect of general applicable and
otherwise valid law.
The Free Exercise Clause prohibits the government from punishing someone on the
basis of his/her religious beliefs or interfering with her exercise of religion. The free
exercise clause as ruled by Scalia for Supreme Court only prohibits government action
which intentionally burdens the exercise of religion it will also apply strict scrutiny if law
burdens free exercise and another intertwined fundamental right.(e.g., it forbids:
o (1) State governments from requiring office holders or employees to take a
religious oath;
o (2) States from excluding clerics from holding public office; AND
o (3) Courts from declaring a religious belief to be false.
Generally two levels of scrutiny: FREE EXERCISE
o Strict scrutiny : Lukumi Test- if religion is targeted government must show a
compelling interest in least restrictive means for a law that impairs free exercise.
o Rational basis test : Smith test - rational basis test applied to any neutral
generally applicable law concerning a matter government is free to regulate even
if exercise is impaired Smith has limited earlier sherberth holding.


-
The Supreme Court has not defined what constitutes religious belief, but it is clear that
religious belief need not come from an organized religion or involve a supreme being.
The court has never held an asserted religious belief to be not religious for 1st
Amendment purposes.
NOTE: The government can deny benefits or impose a restriction on someone based on
his/her religious beliefs so long as there is a compelling interest (i.e., meets strict
scrutiny). However, the Supreme Court has never found an interest so compelling that it
justifies such action.
Contains two concepts:
1. Freedom to believe - absolutely protected
2. freedom to worship to profess one's religion
 worship like expressive conduct often includes both speech and
action.
 government can regulate conduct
conflict arises in three circumstances: government prohibits behavior required by religion
example polygamy laws, government requires conduct example SSI for Amish work on
Saturday or no unemployment benefits. laws burden or make religious observance is too
difficult
Establishment Clause – EC
 The Establishment Clause, along with the Free Exercise Clause, compels the government
to pursue a course of neutrality toward religion.
 KEY POINTS: TO START
o Government/State Actor?
o 14the selectively incorporates the establishment clause of 1st amendment.
o THREE THEORIES: GO THROUGH THEM
o LEMON TEST: Two part
1. Intent to approve or disapprove a religion or relgions generally
2. There is the effect of benefitting or effect of excessive entagliment (court
not clear on this.
3. SAY THIS TEST HAS BEEN DISAVOWED BY SPC APPLY
Bladensburg. (TALK ABOUT IT, it disavows it.)
 Government action challenged under the Establishment Clause will be found invalid,
unless the action:
o (1) Has a secular purpose;
o (2) Has a primary purpose that neither advances nor inhibits religion; AND
o (3) Does NOT produce excessive government entanglement with religion.
o IT WILL VIOLATE LEMON TEST: votes in government indoctrination, defined
its recipients by reference to religion or creates an excessive entanglement
between government and religion. same criteria should be used to determine if a
government funding program constitutes an endorsement of religion.
1. Religious references in public displays-monuments symbols models
displays in ceremonies.
- History: looking at the historic context of the thing does this
particularly have both religious and secular connotations
-




neutrality would eliminating this thing evidence a non neutral
hostility towards religion government can either advanced or
inhibit religion
- Gorsuch expansion: historic principles in general is the test is a
thing whether old or new the kind of thing that we need
traditionally accepted. (lynch van orden)
2. religious accommodation slash exemptions from generally applicable laws
3. subsidies and tax exemptions (waltz and Zelman)
4. religious expression in public schools (Lee v Weisman)
- Neutrality theory is difficult to apply
- coercion is a different analysis than the adult setting because the
school environment is inherently coercive
- historical trade traditions doesn't work well because public schools
are relatively recent invention.
5. regulation of private religious speech (capital square)
6. state interference with internal church affairs
Lemon v. Kurtzman (1971) - This is known as the Lemon Test. However, some recent
cases have simply focused on whether the action is neutral between the religious and
nonreligious when there is no endorsement of a particular religion. Very important case:
Rule of Law: Direct state funding of religious-school teachers' salaries and instructional
materials results in excessive government entanglement in religion and violates the
Establishment Clause.
1. First, the government’s action must have a secular legislative purpose. ->
non religious purpose.
2. Second, the government’s action must not have the primary effect of either
advancing or inhibiting religion.
3. Third, the government’s action must not result in excessive government
involvement with religion. Whether entanglement is excessive involves an
examination of the character and purposes of the institutions that are
benefited, the nature of the aid that the state provides, and the resulting
relationship between the government and the religious authority. If any of
the three prongs are violated, the government’s action is deemed
unconstitutional under the Establishment Clause.
If we have an Establishment issue, → it involves aid/display/school
Fact Pattern One: Government Aid! (when government has an aid program—money
or materials going to religions intuitions) - LEMON TEST
o Strict separation of government & religion. Use this test if government aid is
being given to religious institutions.
o Government action must have a secular purpose, and as a result of the law, the
primary effect neither advances nor inhibits religion. (see EC above ↑)
o The government should not write checks directly to churches for purely
religious activities.
Fact Pattern Two: (religious displays on public properties—only public property, not
front yard or church). Nativity scene on public property. There are viewers but no
recipients. Can’t apply Lemon here because there is no recipient or no audit. -
ENDORSEMENT TEST government should not discriminate between religions. And
must be neutral towards religion AKA neutrality theory. MAIN CASE: Lynch V
Donnelly
 Rule of Law: A public display erected in conjunction with a religious
holiday does not violate the First Amendment Establishment Clause if it
only indirectly or incidentally advances religion.
 Holding: the display included both secular and religious displays and
symbols – Cant consider the holiday without the religion.
o Endorsement Test:
 (1) Has a secular purpose -> non religious purpose.
 Does the government intend to convey a message of endorsement
or disapproval of religion? (Objective question)
 (2) Would non-participants feel left out or alienated?
 A reasonable person viewing the entire display would conclude
that the government has taken sides with regards to religion, then
it’s out. On the other hand, if a reasonable person is looking at the
whole display that it’s no big deal, then it’s okay. Would a
Reasonable observer understand the effect of the law or practice as
conveying the symbolic endorsement or disapproval of religion.
(Subjective question)fact to convey endorsement or disapproval
regardless of intent -> Unconsitutional
Fact Pattern Three: (public schools—when you hear schools: look at fact pattern
three—emphasis on coercion. But, you can still look at other things). COERCION TEST!
Government should not coerce people to engage in religious activities
 Coercion Test: → (Same as the Endorsement Test)
 (1) Has a secular purpose (Non-religious purpose)
 (2) Endorsement → Show support for, look at the display as a whole.
Fact Pattern Four: Accommodation/equality theory AND COERCION TEST
TOGETHER/
 Courts should recognize the importance of religion and accommodate its
presence, unless the
1. government establishes a church,
2. coerces church participation, or
3. favors one religion over another, or favoiring, a commercial
business over religion. Ex. Restricting a church not a bar.
 MAIN CASE: Lee v Weisman: generally accepted view but not clearly articulated
in the form of a rule is that something less than actual legal compulsion suffices.
 Holding: Under the Establishment Clause of the First Amendment, the
government may not invite clergy to deliver prayers at a public school graduation
ceremony.
o peer pressure to conform -Lee case
o strong desire to be involved in social events – Santa fe

Zelman v. Simmons-Harris (2002) - Applies w/ Fact Pattern 1 - Lemon Test
o

Creating a voucher program is problematic. If they give money to schools there is
auditing and that’s bad. The government gives vouchers to parents and they
decide where it will go. Now, it’s not the government's choice and it’s a
Strawman’s transaction and parents decide where to spend the money.
o Now, in an audit, there is no trace of the government funds to do anything with
religion in school—because it's directly with the parents. No entanglement here!
o A good way to avoid excessive entanglement is to not let the government give the
money directly to the school.
American Humanist v. American Legion (2019) - Applies w/ Fact Pattern 2 – Bye Bye
Lemon Hello - Endorsement Test
o Facts: A 40-foot tall cross is the subject of litigation that stands in a memorial
park in Bladensburg, MD to honor veterans. Several non-Christians expressed
offense at the cross, which allegedly amounts to governmental affiliation with
Christianity.
o Footnote 16: well we do not attempt to provide in authoritive taxonomy of the
dozens of Establishment Clause cases that the court has decided since everson
most can be divided into 6 rough categories. religious references or imagery in
public monuments symbols model displays and ceremonies. religious
accommodations and exemptions from generally applicable laws. subsidies and
tax exemptions. religious expression in public schools. regulation or private
religious speech. state in France with internal church affairs. a final miscellaneous
category
o Holding: The Bladensburg Cross does not violate the Establishment Clause.
o Analysis: The Court explained that although the cross originated as a Christian
symbol, it has also taken on a secular meaning. In particular, the cross became
a symbol of World War I as evidenced by its use in the present controversy. The
Lemon test, which the Court first articulated in 1971 as a way to discern
Establishment Clause violations, does not serve its intended purpose, particularly
as applied to religious symbols or monuments. Thus, when the question arises
whether to keep a religious monument in place (as opposed to a question whether
to put up a new one), there should be a presumption that the monument is
constitutional.
 Applying this presumption rather than the Lemon test, the Court found the
Bladensburg Cross does not violate the Establishment Clause because it
has historical importance beyond its admittedly Christian symbolism.
Allegheny County v. ACLU (1989) - Accommodation/Equality Test
 Facts: City permitted a roman catholic organization to display a creche on the
grand staircase of its courthouse and an 18-foot Chanukah menorah outside of the
office building. The creche contained a banner which proclaimed "Gloria in
Excelsis Deo!" ("Glory to God in the Highest!”), together with a plaque that said,
"This Display Donated by the Holy Name Society." The menorah was owned by a
Jewish religious organization and was erected next to a 45-foot christmas tree.
 Issue: Did the display of a creche and menorah have the effect of endorsing
religion?
 Holding: The creche had the effect of endorsing religion, but not the menorah.


Analysis: The display of the menorah in its particular setting was a visual symbol
for a holiday with a secular dimension. As for the creche, petitioners sent an
unmistakable message that it supported and promoted the Christian praise to God
that was the creche's religious message, and therefore held that the display of the
creche was unconstitutional
Accomodation/Equality Theory: Court should recognize the importance of
religion and accommodate its presence, unless the government establishes a
church, coerces church participation, or favors one religion over another.
Freedom of Association - Not found in the U.S. Constitution *Unenumerated Implied)

The right not to speak the right to associate and the right to not associate.

Freedom of Association protects the rights to form or participate in any group, gathering,
club, or organization without government interference. However, the government may
infringe upon this right if they can satisfy strict scrutiny.
Public Employment: A person may only be punished or deprived of public
employment based on association if that individual:
o (1) Is an active member of a subversive organization;
o (2) Has knowledge of the organization’s illegal activity; AND
o (3) Has a specific intent to further those illegal objectives.




To spot Freedom of Association, there is a statute that triggers non-discrimination. Unlike
equal protection where a statute triggers discrimination.
Two types of associations = Expressive & Intimate
Expressive Associations: The type of organization that exists to spread a certain
idea/religion/philosophy, then you are free to exclude people who do not believe that
belief system. The court says it might be mean— but the first amendment protects mean.
The freedom to associate for expressive purposes -to exchange information advocate
ideas - it is a First Amendment right. A corollary to this right is the freedom not to
associate with others or their ideas which can also be seen as a freedom not to speak these
rights are given special constitutional protection but are not absolute .-They are private
associations.
o Factors:
 Persuade outsiders to believe in the organization’s message; or
 Inculcate its own membership with certain values.
o 3 elements → Burden to satisfy an expressive association
 1. The state must articulate compelling interest
 2. Interest must be unrelated to the suppression of ideas
 3. No significantly less restrictive means of achieving state interests
o Example: NRA (National Rifle Association)
o WestVa State BD of Ed v Barnette: compulsory flag salute refused by public
school students. they cannot be forced to salute the flag. Rule of Law: A state may
not compel individuals to engage in involuntary expression.
o
Wooley: no force you to carry a sign license plate expressing a political view
 Business Associations: if associating for business or commercial reasons, no
fundamental constitutional issue is being advanced, so Gov’t can regulate if rationally
related to legit gov’t interests (rational basis).
 Personal (intimate) Associations: Fundamental right to intimate associations as
protected as the basic element of personal liberty, our liberty to enter into and maintain
intimate human relationships.
o Is association “intimate enough” to bring within constitutional protections:
 Relatively small groups
 High degree of selectivity in decisions to begin & maintain affiliation
 Seclusion from others.
Is there seclusion from others in key areas? (i.e. decision-making)
Roberts v United States Jayces:
Rule of Law: A state may prohibit a private organization from excluding members on the basis
of gender upon a showing of a compelling interest in preventing gender-based discrimination
that outweighs competing First Amendment interests in upholding the freedom of association.