Law of the 14th Amendment: Crum Outline
Part I: Introduction
Const. Interpretation/the Reconstruction Amendments, Drafting and Ratification of the
Reconstruction Amendments.
Reconstruction Amds. Limited - Slaughter-House Cases (1873)/Civil Rights Cases. (PP.
467-74, 889-95)
Slaughter-House Cases (1873)
 This was the first look at the reconstruction amendments by the Supreme Court –
legitimizing the ratification process.
 Louisiana creates monopoly for slaughter houses for the purposes of safety and
sanitation, granting a monopoly to the Crescent City Livestock Landing & SlaughterHouse Co. The LA legislature required all butchers to rent space from the company and
conduct all butchering activities on the premises. New Orleans butchers bring suit on a
number of issues, but most importantly the P or I clause, claiming a right to practice
one’s trade.
 Rule: SCOTUS significantly narrows the P or I clause in Slaughter-house cases. The P or
I clause only protects fundamental rights of national citizenship. (IE: Navigable waters,
travel, habeas corpus) Slaughter-house effectively dead-lettered the P or I clause as a
mode of protecting rights  Responsibility falls on due process clause.
 Holding (Justice Miller): The court rejects the invocation of the P or I clause to protect
one’s chosen trade.
 Dissent (Justice Field): Claims P or I has been rendered a redundancy.
 Justice Thomas would revive P or I: The words of the clause suggest that it clearly
protects rights from state interference.
Civil Rights Cases (1883): The Requirement of State Action
 The court invalidated the Civil Rights Act of 1875 in The Civil Rights Cases, which
attempted to ban racial discrimination in public accommodations.
 13th Amd can be used for both state and private action, & Congress can pass laws
“necessary and proper for abolishing all badges and incidents of slavery”
 Rule/Holding (Justice Bradley): Under the EP clause of 14th Amd, Congress may only
prohibit discrimination by state actors, not private individuals. 14A applies only to the
government, not to private conduct.
 Side note: Anti-discrimination principles in accommodations are now found under the
commerce clause, ie Heart of Atlanta/Ollie’s BBQ)
 Dissent (Justice Harlan): Public accommodations are effectively state actors, they are
charged with duties to the public and thus subject to regulation. Discrimination in this
context is a result of badge and incident of slavery, and should be regulated under 13A.
Combine citizenship clause (anti-discrimination rationale) with section 5 of 14A and you
can regulate private conduct.
Law of the 14th Amendment: Crum Outline
The Anti-Canon: Dred Scott, Plessy, Lochner, Korematsu. (PP. 462-67, 688-91, 507-21, 70812)
Dred Scott v. Sandford (1857)
 Dred Scott, a slave, brings suit for his freedom, arguing that he was free given his time
spent in the free states of Illinois and territory of Wisconsin, as part of the Missouri
Compromise. The decision accelerates the onset of the Civil War, and is eventually
overturned by the 13th/14th Amendments.
 Anti-Canon Rule/Holding (Taney): Distinguishing between ‘persons’ and ‘citizens’,
Taney and a 6 Justice majority hold that Africans brought to the US and held as slaves, as
well as their descendants (slave or free), are not considered citizens of the US and are not
entitled to the protections and rights of the Constitution. Taney claims that the original
meaning/intent of the founders is such that the constitution implicitly endorses slavery.
Scott does not have standing to bring suit. Jurisdiction holding should have ended the
case here. Taney holds that a “perpetual and impassable barrier was intended to be
erected between the white race and the one which they had reduced to slavery.”
 Also: Invalidates the MO Compromise by saying it is unconstitutional, given that the
Territories clause only applies to land held at the founding, and the fed gov’t cannot take
property (in this case slaves) without compensation.
 Dissent (Curtis): Five states gave African Americans citizenship at the founding, and the
constitution does not contradict this in any way. MO Compromise is valid – Slavery is a
‘positive’ law that Congress can abolish if it wishes. Would have held that Scott was free
having passed into Illinois, and that diversity of citizenship satisfies jurisdiction
requirement. Enslavement of his parents has no bearing on his right to sue. Dred Scott is
entitled to the privileges of national citizenship.
Plessy v. Ferguson (1896)
 SCOTUS sustains Louisiana law that requires ‘equal but separate accommodations’ for
‘white’ and ‘colored’ railroad passengers. “separate, but equal facilities.”
 Anti-Canon Rule/Holding (Brown): Segregated public accommodations on the basis of
race do not violate the EP clause of 14A, so long as they are separate but equal. Court
reasons that while purpose of 14A is to promote equality of all races, it cannot have been
intended to abolish all distinctions based on color. The court holds that equality does not
imply inferiority, and addresses the ‘assumption of the inferiority of blacks/attempt to
stigmatize them’ claim pertaining to the law: “We consider the underlying fallacy of the
plaintiff’s argument to consist in the assumption that the enforced separation of the two
races stamps the colored race with a badge of inferiority. If this be so, it is not by reason
of anything found in the act, but solely because the colored race chooses to put that
construction on it.”
 Court draws on Reconstruction-era distinctions between civil, political, and social rights.
Public accommodations (railroads) are considered social rights.
 Further draws on “established usages, customs, and traditions of the people” and
“preservation of the public peace and good order”. (Analogizes school desegregation and
laws banning inter-racial marriage.
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Dissent (Justice Harlan): “In view of the Constitution, in the eye of the law, there is in
this country no superior, dominant, ruling class of citizens. There is no caste here. Our
Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
Endorses something of an anti-subordination rationale, and invokes Dred Scott,
suggesting this decision will be as large as mistake as that one: “But every one knows that
the law had its origin in the purpose, not so much to exclude white persons from railroad
cars occupied by blacks, as to exclude colored people from coaches assigned to white
persons.”
Harlan stance on social equality, not quite as progressive: Believed that it would not be
achieved.
Approvingly references that Chinese immigrants could not become citizens.
Legally sanctions the Southern shift to segregation in the Jim Crow era.
Korematsu v. United States (1944)
 Court upholds US internment policy, employing embryonic form of “strict scrutiny” for
racial classification. (Here, the state of war/evidence of disloyalty justified internment.
First articulates requirement of strict scrutiny for discrim. based on race/nat. origin.
 Anti-Canon Holding/Rule (Justice Black): Although legal restrictions which restrict
the civil rights of a single racial group are automatically suspect, it does not follow that
all such restrictions are automatically unconstitutional. The court affirms the lower
court/conviction under civilian exclusion order no. 34/EO 9066.
 Justice Black: “All legal restrictions where curtail the civil rights of a single racial
group are immediately suspect. That is not to say that all such restrictions are
unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.
Pressing public necessity may sometimes justify the existence of such restrictions; racial
antagonism never can.”
 Dissent (Justice Jackson): “A judicial construction of the due process clause that will
sustain this order is a far more subtle blow to liberty than the promulgation of the order
itself.” Jackson urges restraint here, warning of dangerous precedent carrying over to the
broader civil field of law from a specific, urgent, military context.
 In 1984, Korematsu’s conviction was overturned after it was revealed the federal govt.
had lied about the threat posed by Japanese Americans during WW2. In Trump v. Hawaii,
SCOTUS said that Korematsu had been “overruled in the court of history, and—to be
clear—has no place in law under the Constitution.
Lochner v. New York (1905)
 Natural Law rationale: SCOTUS declares unconstitutional a NY law that set a maximum
number of hours that a baker could work to no more than 60 hours/week on due process
clause grounds, stating an interference in the freedom of contract.
 Anti-Canon Rule/Holding (Peckham): Maximum work hours law invalid on
substantive due process grounds. The general right of an employer to make a contract in
relation to his business is part of the liberty of the individual protected by the 14A. The
right to purchase and sell labor is encompassed by these protections. The court may
enshrine unenumerated rights through substantive due process, and courts can inquire
into the motives of legislatures in passing laws. Endorses a laissez faire economic theory.
Law of the 14th Amendment: Crum Outline
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Court explains that govt. can regulate freedom of contract pursuant to its police powers,
and those that relate to safety, health, morals, and general welfare of the public.
Maximum hours is not a labor regulation: No reasonable grounds to regulate the liberty
of contract between workers and employees (means-ends test)
Maximum hours is not a health regulation: Hours is of no public concern, bc no effect on
clean bread. Linkage between hours worked vs. health is too attenuated to have a “direct
relation” and “substantial effect”.
Dissent (Harlan): Harlan advocates deference to legislature, cites common law labor
regulations as being judged by arbitrary/irrational standard. Liberty of contract exists, but
subject to reasonable police power. Cites health evidence/studies.
Dissent (Holmes): The reasoning of the court is anti-democratic. “The 14th Amendment
does not enact Mr. Herbert Spencer’s Social Statics.” Cannot read an economic theory
into the 14A.
Wyatt M: Lochner is based.
Part II: The Equal Protection Clause
Tiers of Scrutiny
 Strict: The law must be “narrowly tailored” to achieve a “compelling governmental
interest”
 Intermediate: The law must be “substantially related” to an important governmental
interest”
 Rational basis: The law must be “rationally related” to a “legitimate governmental
interest”
o After swift and Adarand: All racial classifications receive strict scrutiny.
o Level of Government making classification doesn’t matter.
Brown and its Aftermath: (PP. 691-703)
Theories of brown:
 Anti-Classification or Color-Blindness: Racial classifications are inherently suspect,
harkens back to Harlan’s famous line about a “color-blind Constitution.”
 Anti-Subordination or Caste: Racial classifications are suspect when they establish social
hierarchies and stigmatize a group. Would permit classifications that purport to benefit
previously disadvantage groups, also harkens back to Harlan.
 White Supremacy: The exclusion of AA from the political process means that segregation
is a tool for maintaining White supremacy.
 Integration/Anti-Balkanization: Integration produces better outcomes in education which
will later accrue to other areas, building more cohesive society.
Missouri ex rel. Gaines v. Canada (1938) (run up to brown)
 MO offers to pay for Black law student to attend out-of-state school, but SCOTUS orders
plaintiff’s admission to the University of MO Law School. Denied admission on basis of
race. Chief Justice Hughes’s maj. Opinion concludes that the state is obligated to furnish
Gaines “within its borders facilities for legal education substantially equal to those which
Law of the 14th Amendment: Crum Outline
the state there offered for persons of the white race, whether or not other negroes sought
the same opportunity.”
Sweatt v. Painter (1950) (run up to brown)
 Texas had recently established an all-black law school but the Court ordered the black
plaintiff to be admitted to UT. Court notes the new school was not equal on measurable
factors (funding, courses, faculty) and intangible factors (prestige, networking, etc).
 Chief Justice Vinson: “no substantial equality in the educational opportunities offered
white and negro law students by the State. In terms of number of the faculty, variety of
courses and opportunity for specialization, size of the student body, scope of the library,
availability of law review and similar activities, the University of Texas Law School is
superior.
 Further: Notes that isolation from other people’s, the rest of the legal profession, renders
a school ineffective.
Bolling v. Sharpe (1954)
 Companion case to Brown: While there is no explicit provision in constitution that says
fed cannot deny EP of the laws, Bolling ‘reverse incorporates’ the EP clause to the
federal government through the DP clause of 5th Amendment. Court interprets the
5th amendment as having an implicit requirement for equal protection.
 EP analysis under 5A and 14A are the same – Although EP applies to the fed through
judicial interpretation, and to state/local govts. through 14A.
 Segregation in DC public schools is stricken down.
Brown v. Board of Education [Brown I] (1954) (Overruling Plessy)
 Rule/Holding (Chief Justice Warren, joined unanimously): Segregation of students in
public schools violates the EP clause of 14A, because “separate educational facilities are
inherently unequal.”
 The Court states identifies the importance of education specifically as “perhaps the most
important function of state and local governments.” Highlighting the “importance of
education to our democratic society.” It is the very foundation of good citizenship. Thus,
such an opportunity, “where the state has undertaken to provide it, is a right which must
be made available to all on equal terms.”
 Court writes something reminiscent of a 13A opinion, citing a “feeling of inferiority” that
may “affect their hearts and minds in a way unlikely ever to be undone.”
 The court speaks in one voice here, with all justices joining.
Brown II (1955)
 Adequate compliance with the Court’s previous holding that discrimination in public
education is unconstitutional requires public schools to desegregate “with all deliberate
speed.”
 Schools sought relief/time/explanations of specific requirements for desegregation.
Law of the 14th Amendment: Crum Outline
Facial Classifications and Intentional Discrimination: Loving/Washington v. Davis (PP.
703-08, 712-19)
McLaughlin v. Florida (1964)
 Court invalidates a criminal adultery and fornication statute prohibiting cohabitation by
interracial unmarried couples.
 Holding (Justice White): We deal here with a classification based upon the race of the
participants, which must be viewed in light of the historical fact that the central purpose
of the 14A was to eliminate racial discrimination emanating from official sources in the
States. This strong policy renders racial classifications ‘constitutionally suspect’ and
subject to the ‘most rigid scrutiny,’ and ‘in most circumstances irrelevant’ to any
constitutionally acceptable legislative purpose.’
 This is invidious discrimination forbidden by EP.
Loving v. Virginia (1967)
 Double-Barreled holding (Justice Warren): SCOTUS invalidates interracial
marriage bans on Due Process and Equal Protection grounds.
 “There can be no question but that Virginia’s miscegenation statutes rest solely upon
distinctions drawn according to race. The statutes proscribe generally accepted
conduct if engaged in by members of different races… There can be no doubt that
restricting the freedom to marry solely because of racial classifications violates the
central meaning of the Equal Protection Clause.”
 “The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men. Marriage is one of the
‘basic civil rights of man,’ fundamental to our very existence and survival.” and
“surely… deprives all the State’s citizens of liberty without due process of law.”
 “The clear and central purpose of the 14th Amendment was to eliminate all official
state sources of invidious racial discrimination of the States.”
 “Because we reject the notion that the mere ‘equal application’ of a statute
containing racial classifications is enough to remove the classifications from the 14th
Amendment’s proscription of all invidious racial discriminations, we do not accept
the State’s contention that these statutes should be upheld if there is any possible
basis for concluding that they serve a rational purpose.
Washington v. Davis (1976) – Police Officer Tests Case DC
 Challenge to DC metro police department by AA applicants who were rejected for failing
to perform on a written test for verbal ability, vocab, reading, etc. Stats reveal that blacks
failed this test more than whites.
 Holding/Rule (Justice White): Laws that have a discriminatory effect, but are not
adopted to advance a discriminatory purpose, are valid under the 5A due process clause.
This is the discriminatory purpose requirement.
 White: The Motive Based approach: Discriminatory impact “standing alone,… does not
trigger the rule that racial classifications are to be subjected to the strictest scrutiny and
are justifiable only by the weightiest of considerations.” A law is not unconstitutional
solely due to a racially disproportionate impact.
Law of the 14th Amendment: Crum Outline
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Laws neutral on their face will receive greater deference, as the purpose of the 14A is to
root out officially discriminatory conduct on the basis of race.
Court emphasizes that allowing discriminatory impact to suffice as a challenge on its own
“would raise serious questions about, and perhaps invalidate, a whole range of tax,
welfare, public service, regulatory, and licensing statues that may be more burdensome to
the poor and to the average black than to the more affluent white.”
Proving Intentional Discrimination and the Future of Disparate Impact Liability:
Arlington Heights (PP. 719-23/handouts)
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Facial Classifications trigger strict scrutiny under 14A
o Law differentiates or classifies based on race in its text
o Law must be “narrowly tailored” to achieve a “compelling governmental interest”
o Under 15A, simply verboten – Prohibits fed/states abridging a citizen’s vote.
Intentional Discrimination
o Touchstone for equal protection violation
o Arlington Heights provides multi-factor test for proving intent
o Yick Wo is rare example of discriminatory enforcement for how extreme
application was.
Disparate impact
o Sometimes called discriminatory effects/results
o Insufficient alone to establish a constitutional violation (Washington v. Davis)
o Needs Evidence of intent
o Several statutes (title VII, FHA, VRA) adopt a disparate impact standard with
robust causality requirement; gov’t legitimate explanation; alternatives.
o VRA standard is distinct.
Statutory Disparate Impact
o Plaintiffs must make a prima facie showing of disparate impact
o Then D must provide neutral, non discriminatory reason.
o Plaintiffs must then offer a less discriminatory alternative that achieves same
objective.
Arlington Heights v. Metropolitan Housing Corp. (1977) – Reaffirms Davis
 “Official action will not be held unconstitutional solely because it results in a racially
disproportionate impact.”
 Elaborates on the ‘subjects of proper inquiry’ in determining a discriminatory purpose:
o Disparate Impact
o Historical background: if it reveals a series of official actions taken for invidious
purposes.
o Specific Sequence of events leading up to law passage: ie – a sudden change in
policy.
o Procedural and substantive departures from normal rules: If normal procedure
would weigh in favor of a different decision than the one reached.
Law of the 14th Amendment: Crum Outline
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o Legislative/Administrative history: Contemporary statements by members of the
decision-making body, meeting minutes, reports.
Lower Courts have used alternative factors: Foreseeability of impact, knowledge of
impact, availability of less discriminatory means.
If discriminatory intent is a motivating factor, then burden shifts to government to show
policy would have been enacted absent that invidious intent.
Holding (Justice Powell): The denial of the rezoning permit here was not
unconstitutional. Plaintiffs fail to carry their burden of proving both discriminatory intent,
and impact, as none of the factors when applied to the facts raise any alarms. The zone in
question had been designated for single family homes for decades, and the procedures
were entirely ordinary.
THE BROAD STANDARD: In other words, if a law is facially neutral, a challenger must
show a discriminatory purpose and a discriminatory effect. If such proof is provided, the
govt. has the opportunity to demonstrate that it would have taken the same action
regardless of race or national origin. If the court accepts the govt. justification and rejects
the claim of discriminatory purpose, only rational basis is applied. If the court is
convinced that there is a discriminatory purpose, the law is treated as a race or national
origin classification and the law will be invalidated. The formal application of strict
scrutiny is unnecessary bc persuading the Court that the purpose behind the law is
discriminatory forecloses the govt. Ability to show a compelling purpose for it.
Yick Wo v. Hopkins (1886)
 A facially neutral law that is applied in a discriminatory manner on the basis of race or
nationality violates the EP clause of 14A. EP is denied when a law, even if it is facially
neutral, is applied unequally to similarly situated people. Here the SF ordinance appears
neutral but is applied unequally in that the city denied petitions to all but one of the other
laundry operators of Chinese descent, while granting permits to 80 of 81 non Chinese
applicants.
Gomillion v. Lightfoot (1960)
 Finding an inference of discriminatory motive in an extreme example.
 Alabama law redefining the city boundaries of Tuskegee was a device to disenfranchise
blacks in violation of 15A. Using a statistical basis here.
 “The impact of the official action – whether it ‘bears more heavily on one race than
another’ – may provide an important starting point. Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the effect of the state action even
when the governing legislation appears neutral on its face.”
 Thus, one way of proving discriminatory purpose is to show a statistical pattern that can
be explained only by a discriminatory purpose. However, the Court in Arlington Heights
cautioned: “Such cases are rare. Absent a pattern as stark as that in Gomillion or Yick
Wo, impact alone is not determinative, and the Court must look to other evidence.”
Ricci v. DeStefano (2009)
 Court ruled that the New Haven Fire Dept. had violated Title VII of the Civil Rights Act
when it discarded written/oral test results because black firefighters had not performed
Law of the 14th Amendment: Crum Outline
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well enough to qualify for promotions. White/hispanic firefighters sued, alleging
disparate treatment.
Scalia Concern: “As the facts of these cases illustrate, Title VII’s disparate-impact
provisions place a racial thumb on the scales, often requiring employers to evaluate the
racial outcomes of their polices, and to make decisions based on those racial outcomes.”
That type of racial decisionmaking is, as the Court explains, discriminatory.
The city would only be liable if the test was not job related or a necessary business
practice or if a less discriminatory alternative existed. There is no strong basis in evidence
that the firefighter exam was not job related or a necessary business practice, or that a
less discriminatory alternative existed. The firefighter exam does not violate Title VII.
Critiques of Disparate Impact: Injects race into decision-making process, Comes close to
racial quotas/balancing, May require disparate treatment to avoid disparate impact.
Defenses of Disparate Impact: Mechanism for smoking out discriminatory intent, Recognizes
historical background of discrimination, Congress should have leeway to enact prophylactic
laws.
Affirmative Action in the Twentieth Century: Bakke, Adarand (723-42)
Regents of Univ. of California v. Bakke (1978)
 Man is denied admission to UC Davis Medical School
 Plurality holding (Justice Powell): “Racial and ethnic distinctions of any sort are
inherently suspect and thus call for the most exacting judicial examination.” The 16
person set-aside was unconstitutional, but that it was permissible for race to be used as
one factor in admissions decisions to enhance diversity. Holding is 5-4 invalidating setasides, and 5-4 that it’s permissible for universities to use race as a factor in admission to
increase diversity.
 The medical school may consider race as a “plus” in its overall evaluation of an
applicant, but may not make admission decision solely based on race. “The interest of
diversity is compelling in the context of a university’s admissions program.”
 Diversity is a compelling interest in education and universities may use race as a factor to
ensure diversity, but quotas or numerical quantification of benefits is impermissible.
Wygant v. Jackson Board of Education (1986)
 Powell plurality: Applies strict scrutiny, as in Bakke: Held that goal of providing
“minority role models” in order to overcome societal discrimination was not
“compelling,” stating: “This court never has held that societal discrimination alone is
sufficient to justify a racial classification… The role model theory employed by the
District Court has no logical stopping point. It allows the Board to engage in
discriminatory hiring and layoff practices long past the point required by any legitimate
remedial purpose.”
Fullilove v. Klutznick (1980)
 Rejects a facial challenge to a congressional spending program that, absent an
administrative waiver, 10% of federal funds granted for local public works projects must
Law of the 14th Amendment: Crum Outline
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be used by the state or local grantee to procure services from businesses controlled by
members of minority groups. Racial set aside for minority upheld, with on majority
opinion.
“This opinion does not adopt, either expressly or implicitly, the formulas of analysis
articulated in such cases as Bakke.” Upheld to remedy past discrimination.
Richmond v. J.A. Croson Co. (1989)
 Distinguishing from Fullilove (O’Connor): “That Congress may identify and redress
the effects of society-wide discrimination does not mean that the States and their political
subdivision are free to decide that such remedies are appropriate.”
 O’Connor: Strict Scrutiny should be used in evaluating state and local affirmative action
programs. Invalidates Richmond program to set aside 30% of public works money for
minority-owned businesses.
 “Classifications based in race carry a danger of stigmatic harm. Unless they are strictly
reserved for remedial settings, they may in fact promote notions of racial inferiority and
lead to politics of racial hostility.”
 “an amorphous claim that there has been past discrimination in a particular industry
cannot justify use of an unyielding racial quota.”
 Court first holds that strict scrutiny applies to all racial classifications imposed by
state/local governments. (No intermediate scrutiny for ‘benign’ racial classifications.
Adarand Constructors, Inc. v. Pena (1995)
 Extends Croson to the Federal govt, overrules Fullilove.
 Justice O'Connor held that regardless of the motive, strict scrutiny analysis applied to all
race-based classification for both the State and Federal governments. Not the intermediate
scrutiny for benign discrimination as before.
 In 1989, the Dept. of Transportaiton awarded a highway construction contract in
Colorado to Mountain Gravel and Construction Company. Mountain Gravel solicited
bids for a subcontract for guardrails along the highway. The lowest bid was submitted by
Adarand Constructors, with a higher bid being submitted by Gonzales Construction.
However, Gonzales Construction had been certified by the Small Business
Administration as a disadvantaged business and so Mountain Gravel awarded the
subcontract to Gonzales because of financial incentives in the Mountain Gravel's contract
for employing disadvantaged businesses.
 First, the principle of “skepticism” means that all government preference based on racial
or ethnic criteria must be heavily examined. Second, the principle of “consistency” means
that the actual race of the group at issue does not matter for purposes of the scrutiny
afforded racial classifications as all racial classifications must receive the same treatment
under the Equal Protection Clause. Third, the principle of “congruence” means that the
same rules for equal protection analysis under the Fourteenth Amendment should also
guide equal protection analysis under the Fifth Amendment. When taken together, these
precedent principles comprise the rule that all racial classifications, imposed by whatever
federal, state, or local governmental actor, must be analyzed by a reviewing court under
strict scrutiny.
Law of the 14th Amendment: Crum Outline
Affirmative Action at the Turn of the Twenty-First Century: Grutter, Gratz, Fisher (74267)
Grutter v. Bollinger (2003)
 The court upheld the University of Michigan Law School’s affirmative action program,
ruling that colleges/universities have a compelling interest in creative a diverse student
body and that they may use race as one factor, among many, to benefit minorities and
enhance diversity.
 Endorsing Justice Powell: Diversity is a compelling interest in education and universities
may use race as a factor to ensure diversity, but quotas or numerical quantification of
benefits is impermissible.
 The “benefits of diversity are substantial” and diversity “promotes cross-racial
understanding, helps to break down racial stereotypes, and enables students to better
understand persons of different races.”
 Training ground for our Nation’s leaders: governorships, House of Reps, Senate.
 Goal of “critical mass” is not a quota. Narrow tailoring does not require the exhaustion of
EVERY means available other than that adopted.
Gratz v. Bollinger (2003)
 Invalidates UMich undergrad system that added 20 points to applications for minority
students “solely” because of their race, on the grounds that it is not narrowly tailored to
meet the strict scrutiny test.
 Emphasizes Powell’s ‘one of many factors’ conception. A university’s admissions policy
that automatically gives preference to minority students on the basis of race, without
additional individualized consideration, violates the Equal Protection Clause of the
Fourteenth Amendment.
Fisher v. University of Texas at Austin et al. (2016)
 Court upholds UT Austin’s 75%/25% plan, stating that race here was but a “factor of a
factor of a factor” in the holistic-review process.
 Challengers suggestion that the entire class be selected from the 75% portion of the plan
is unpersuasive, as it is but one factor more likely to capture but a single type of
person/characteristic.
Students for Fair Admissions, Inc. v. Harvard (2023)
 Court invalidates Harvard/UNC’s affirmative action plans.
 Diversity goals were ‘not sufficiently coherent’ for strict scrutiny
 Critiqued the colleges’ racial categorizations
 Concluded that the affirmative-action plans were a “negative” factor for Asian American
and White Applicants
 Classroom diversity Rationale relied on stereotypes, and overbroad: ie, grouping together
all Asian students despite an enormous difference in culture. Same with Hispanic.
 No end date for affirmative action plans as discussed in grutter
 it is “hostility to ... race and nationality” “which in the eye of the law is not
 justified.” Yick Wo v. Hopkins
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These decisions reflect the “core purpose” of the Equal Protection Clause:“do[ing] away
with all governmentally imposed discrimination based on race.”
For “[t]he guarantee of equal protection cannot mean one thing when applied to one
individual and something else when applied to a person of another color.”
Respondents have fallen short of satisfying that burden. First, the interests they view as
compelling cannot be subjected to meaningful judicial review: Training future leaders,
preparing graduates for pluralistic society, better educating through diversity, producing
new knowledge from diverse outlooks.
These goals are commendable, but not coherent for the purposes of SS.
We have long held that universities may not operate their admissions programs on the
“belief that minority students always (or even consistently) express some characteristic
minority viewpoint on any issue.
Thomas: This best comports with Harlan-Plessy dissent ie ‘colorblind’ constitution.
Parents Involved in Community Schools v. Seattle School District (200&)
 Public schools may not assign students to schools solely on the basis of race for the
purpose of achieving racial integration, although the use of narrowly-tailored, raceconscious objectives to achieve general diversity in schools is permissible.
 Chief Roberts: “It is well established that when the government distributes burdens or
benefits on the basis of individual racial classifications, that actions is reviewed under
strict scrutiny.”
 There are two government interests that qualify as compelling: the interest of remedying
the effects of past discrimination; and the interest of promoting student body diversity in
the context of higher education upheld in Grutter
 Narrow tailoring requires “serious, good faith consideration of workable race-netural
alternatives.”
 Roberts “The way to stop discriminating on the basis of race is to stop discriminating on
the basis of race.”
 Not governed by Grutter: Diversity in context of higher education.
 Thomas: “But I am quite comfortable in the company I keep. My view of the Constitution
is Justice Harlan’s view in Plessy: ‘Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens.”
Racial Gerrymandering: Shaw, Miller (776-87)
Shaw: If race is predominant, you don’t go to Arlington heights, you go to SS. Things that courts
look at: Bizarre shape (not a touchstone), number of voters moved.
If you’re in a Shaw case: How does strong basis standard of ricci apply? Shaw case: Shown that
race has predominated, in SS framework: Defense is to say ‘we did our homework, thought we
had to draw district to comply w section 2 –
Shaw/vra in tension -
Law of the 14th Amendment: Crum Outline
Shaw v. Reno [Shaw I] (1993)
 Appellants have stated a new claim ‘racial gerrymandering’ upon which relief can be
granted under EP. “Legislation, though race neutral on its face, rationally cannot be
understood as anything other than an effort to separate voters into different districts on
the basis of race, and that the separation lacks sufficient justification.”
 We previously have recognized a significant state interest in eradicating the effects of
past racial discrimination. But the State must have a ‘strong basis in evidence for
concluding that remedial action is necessary.” [Croson]
 Anti-Balkanization rationale
 Critical: If race predominates over traditional redistricting principles, the district
needs to face strict scrutiny.
 This court never has held that race-conscious state decisionmaking is impermissible
in all circumstances. Appellants object to is redistricting legislation that is so
extremely irregular on its face that it rationally can be viewed only as an effort to
segregate the races for purposes of voting, without regard for traditional districting
principles/without sufficiently compelling justification. What
 Defenses to Shaw include ‘politics, not race’ and the strong basis in evidence standard.
 [Gomillion]
Miller v. Johnson (1995)
 “The plaintiff’s burden is to show, either through circumstantial evidence of a district’s
shape and demographics or more direct evidence going to legislative purpose, that race
was the predominant factor motivating the legislature’s decision to place a
significant number of voters within or without a particular district. To make this
showing, a plaintiff must prove that the legislature subordinated traditional raceneutral districting principles, including but not limited to compactness, contiguity,
respect for political subdivisions or communities defined by actual shared interests,
to racial considerations.
 Plan is unconstitutional.
 What is required by VRA 2/5?
Racial Vote Dilution and Section 2 of the VRA: Milligan (handouts)

Racial vote dilution is prohibited by the EP clause and Section 2 of the VRA.
o Ultimate Touchstone is whether voters have equal “opportunity to participate in
the political process and elect candidates of their choice”
 For constitution, you need intent; VRA prohibits discriminatory results

Section 2 claims governed by Gingles factors
o Minority group is residentially segregated
o Minority group is ‘politically cohesive’
o Majority bloc voting ‘usually defeats’ minority’s preferred candidate.
Once Gingles factors are established, courts look to senate factors and rough
proportionality.
If the Gingles factors are satisfied, court weighs the totality of the circumstances:


Law of the 14th Amendment: Crum Outline
o History of official voting-related discrimination in the state or political
subdivision;
o Extent to which voting in the elections of the state or political subdivision is
racially polarized
o Extent to which the state of political subdivision has used voting practices or
procedures that tend to enhance the opportunity for discrimination against the
minority group, such as unusually large election districts, majority vote
requirements, and prohibitions against bullet voting;
o Exclusion of members of the minority group from candidate slating processes,
o Extent to which minority group members bear the effects of discrimination in
areas such as education, employment, and health, which hinder their ability to
participate effectively in the political process;
o Use of overt or subtle racial appeals in political campaigns
o Extent to which minority groups have been elected to public office in jurisdiction
o Responsiveness of elected officials to the minority group concerns
o Whether policy underlying voting regulation is tenuous
o Rough proportionality
Allen v. Milligan (2023)
 Plaintiffs demonstrated a reasonable likelihood of success on their claim that the
districting plan adopted by the state of Alabama for its 2022 congressional elections
likely violated Section 2 of the VRA.
o In White v. Regester, the Court allowed an apportionment scheme where the total variation
o
o
o
o
between the largest and the smallest district was 9.9 percent, though the Court
indicatedthat this was near the maximum allowable deviation.
However, in White v. Regester, the Court found that a multimember district violated equal
protection because it discriminated against Mexican Americans.168 The federal district
court had found that “the multimember district, as designed and operated . . . invidiously
excluded Mexican-Americans from effective participation in political life, specifically in the
election of representatives to the Texas House of Representatives.”169 Without elaboration,
the Court said that it was “not inclined to overturn these findings.
Under section 2 and Gingles, a majority minority district may be necessary when there is
residential segregation and racial bloc voting.
In milligan, the court rejected alabama’s attempt to rewrite section 2 and came close to
affirming its constitutionality .
Kav concurrence portends a future ‘temporal’ challenge.
Sex Discrimination from 1860s to the 1970s: Craig v. Boren (787-97/handouts)
Craig v. Boren (1976)


Oklahoma statute stricken down drawing distinction between men/women for buying
3.2% beer at 18 v. 21. Not substantially related to the achievement of an important
governmental purpose.
Statistics unpersuasive, does not satisfy intermediate scrutiny.
Law of the 14th Amendment: Crum Outline
Reed v. Reed (1971): Purports to apply a rationality standard, fails – rational basis plus
imported?
Frontiero v. Richardson (1973): Plurality endorses SS.
Craig v. Boren: Intermdiate.
Contemporary Sex Discrimination: US v. Virginia (797-824)
US v. Virginia (1996)
 Holding (Justice Ginsburg): Unconstitutional, the exclusion of women by the Virginia
Military Institute (VMI). Intermediate Scrutiny: “parties who seek to defend genderbased government action must demonstrate an exceedingly persuasive justification for
that action… The burden of justification is demanding and it rests entirely on the State.”
 “Must not rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females.”
 Unconstitutional as it is based entirely on gendered stereotypes.
 The state must show “at least that the discriminatory means employed are ‘substantially
related to the achievement of those objectives.” Justification must be genuine, not
hypothesized or invented post hoc in response to litigation.
 School VWIL school for women was not adequate remedy.
 I content this is ‘intermediate +’ standard
Gedulig: Holds that pregnancy-based discrimination is not gender discrimination.
Nguyen & Morales-Santana: Deal with separate provisions of naturalization law but are in
considerable tension. Morales levelled down by making US citizens mothers reside in US longer
for their children to obtain citizenship.
Personnel Administrator of Massachusetts v. Feeney (1979)
 Court upheld veteran’s preference program against an intentional sex discrimination
challenge, as 98% of vets were male.
 To prove a state actor violates EP clause by enacting w/ discriminatory purpose, plaintiff
must show that the decisionmaker selected or reaffirmed a particular course of action at
least in part because of, not merely in spite of, its adverse effects upon an identifiable
group.
Footnote Four and Other Potential Suspect Classes: Alienage, disability, Age: Cleburne.
(825-36)
Tiers of Scrutiny:


Race, ethnicity, national origin, and religion are ‘suspect classifications’ entitled to “strict
scrutiny”
o Narrowly tailored to achieve a compelling govt. interest
Sex (and in some circuits) sexual orientation are ‘semi suspect classifications’ entitled to
intermediate scrutiny.
Law of the 14th Amendment: Crum Outline

o Law must be substantially related to an important governmental interest.
Age/Disability are not suspect classes and thus statutes differentiating on that basis
receive rational basis review.
o Law must be ‘rationally related’ to a legitimate govt. interest.
FN 4 language:
“Nor need we enquire whether similar considerations enter into the review of
statutes directed at particular religious, or national, or racial minorities;
whether prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry.”
Factors that courts have considered in recognizing suspect classifications:
 Trait immutable
 Trait visible
 Whether group is historically discriminated against
 Whether the group has historically lacked effective representation in the past
Graham v. Richardson: Welfare benefits: Court held that’s states could not deny welfare benefits
to noncitizens. Classification based on alienage inherently suspect .
In re Griffiths: Bar admission: Invalidated CT exclusion of resident aliens from law practice.
Non of the asserted state interests sufficiently substantial. High professional standards, nor
protecting client interests in officers of the court.
Sugarman v. Dougall: Civil Service Jobs: Invalidated NY law providing only American citizens
can hold permanent positions in classified civil service jobs.
Foley v. Connelie: NY can bar aliens as state troopers. ‘obliterate all distinctions between
citizens and aliens’
Employ elementary/secondary school teachers aliens who are eligible for citizenship but who
refuse to seek naturalization. Public school teachers come well within the governmental function
principle recognized in Foley.
Bernal v. Fainter: Identified a limit to the public function exception finding that TX barrier to
notaries public.
Medical benefits: Matthews v. Diaz: May condition aliens eligibility for medicare on residency
status. Disparate treatment of aliens and citizens did not demonstrate invidiousness.
Cleburne v. Cleburne living Center, Inc. (1985)
Law of the 14th Amendment: Crum Outline


Mentally disabled (and age for that matter) are not a quasi-suspect class and thus any
legislative regulations affecting their rights are subject to rational basis review and not
intermediate scrutiny.
City denial of permit does though violate EP clause – city arguments are irrelevant/not
compelling: Negative attitudes/bullying from children is speculative, concern for
floodplain would be true anyway, concern about size of home is rejected bc if residents
were not mentally disabled, there’d be no objections.
Mandatory retirement law: Massachusetts Bd. Of Retirement v. Murgai, upheld under rational
basis review.
The Fundamental Interests Strand of Equal Protection: Harper, Rodriguez (PP. 836-40,
874-87)

Court rejects efforts to protect rights to food, shelter, and adequate education under
EP clause.
• In procedural due process cases, courts engage in a two-step
inquiry:
• First, whether there is a constitutionally cognizable property or
liberty interest; and
• Second, whether the afforded process complies with due process
• The Court look to positive law to determine whether a
property interest exists
• The Court has narrowly construed “liberty” interests
• The Mathews balancing test governs what additional
procedural protections, if any, are needed
Harper v. Virginia State Board of Elections (1966)
 Poll taxes are unconstitutional and a denial of equal protection – Strict Scrutiny.
 “Once the franchise is granted to the electorate, lines may not be drawn which are
inconsistent with the EP clause.”
 Douglas: A State violates the EP clause… whenever it makes the affluence of the voter or
payment of any fee an electoral standard. Voter qualifications have no relation to wealth
nor to paying or not paying this or any other tax.”
 “To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to
introduce a capricious or irrelevant factor. The degree of the discrimination is
irrelevant… As a condition of obtaining a ballot, the requirement of fee paying causes an
invidious discrimination that runs afoul of the EP clause.
 “Long ago in [Yick Wo] the Court referred to “the political franchise of voting” as a
fundamental political right, because preservative of all rights”
 As in Lochner: “The Equal Protection Clause is not shackled to the political theory of a
particular era.” [Mr. Herbert Spencer’s social statistics]
Kramer v. Union Free School District No. 15 (1969)
Law of the 14th Amendment: Crum Outline

Law invalidated that restricts voting in school district to those who owned taxable real
property or who had custody of children. Strict scrutiny appropriate. Vote denied to those
otherwise qualified.
San Antonio Independent School Dist. v. Rodriguez (1973)
 Rejects claim that education is a fundamental right. Challenge to TX funding system
through local property taxes.
 Poverty is not a suspect classification, discrimination against the poor need only satisfy
rational basis review.
 Powell: “Education, of course, is not among the rights afforded explicit protection under
our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.
 “[T]he logical limitations on appellees’ nexus theory are difficult to perceive. How, for
instance, is education to be distinguished from the significant personal interests in the
basics of decent food and shelter? Empirical examination might well buttress an
assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective
participants in the political process, and that they derive the least enjoyment from the
benefits of the First Amendment.”6 The Court also noted that the government did not
completely deny an education to students; the challenge was to inequities in funding.7
 Justice Stewart disagrees with fundamental interests thread of EP: Unlike other
provisions of the Const., EP confers no substantive rights and creates no substantive
liberties. The function of EP, rather, is simply to measure the validity of classifications
created by state laws.”
 Justice Marshall advocated for a ‘nexus’ approach to defining fundamental interests. “As
the nexus between the specific constitutional guarantee and the nonconstitutional interest
draws closer, the nonconstitutional interest becomes more fundamental and the degree of
judicial scrutiny applied when the interest is infringed on a discriminatory basis must be
adjusted accordingly.
 Marshall: “Interrelated with constitutional guarantees” Here, education directly conflicts
with childs ability to exercise 1A.
 I think this is kinda dumb.
Plyler v. Doe (1982)


Court invalidates TX exclusion of undocumented immigrants from public schools.
Emphasizes that children lack accountability for their status and denying them education
risked creating a ‘permanent case’ system.

“[a]liens, even aliens whose presence in this country is unlawful, have long been recognized
as‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” 63
Thus, it appears that the Court was using intermediate scrutiny in evaluating the discrimination
against undocumented alien children with regard to education.
Chief Justice Burger said that heightened scrutiny was inappropriate because there was no suspect
classification and there was no fundamental right. The dissent maintained that “[t]he solution to this
seemingly intractable problem is to defer to the political processes, unpalatable as that may be to
some.”68



Downright Psychotic Case, bro.
Law of the 14th Amendment: Crum Outline
Procedural Due Process (636-42)
Goldberg v. Kelly (1970)
 Due Process requires that welfare recipient be afforded ‘an evidentiary hearing before the
termination of benefits.’
 Such benefits are a matter of statutory entitlement for persons qualified to receive them.
Board of Regents v. Roth (1972)
 Court holds that a nontenured teacher hired a Wisconsin state had no constitutional right
to a statement of reasons and a hearing before denial of rehire.
 Stewart: “The range of interests protected by procedural due process is not infinite.”
 He did not have a property interest.
 Court ultimately rejects the bitter with the sweet framework. Rehnquist argued in Arnett
plurality that gov’t could set procedural limits when it extends benefits.
Arnett v. Kennedy (1974)
 Decision rejecting a non probationary federal civil service employee’s claim to a full
hearing prior to dismissal. Governing fed law prescribe grounds for removal, and
procedures.
 Holding: No denial of due process here because the govt provided a pretermination
review and a post termination hearing. There IS a property interest though!
 Rehnquist: “where the grant of a substantive right is inextricably intertwined with the limitations
on the procedures which are to be employed in determining that right, a litigant in the position of
appellee must take the bitter with the sweet.”
Cleveland Board of Education v. Loudermill (1985)




Due process is satisfied if govt. provides a fired employee both an informal
pretermination proceeding where it was possible to respond to charges and then a later
post termination hearing.
The due process clause provides that certain substantive rights, life, liberty, and property,
cannot be deprived except pursuant to constitutionally adequate procedures.
The Court reaffirmed, as discussed below in §7.3.2, that there is a property interest only if there is an
entitlement. The Court said that a “benefit is not a protected entitlement if government officials may
grant or deny it in their discretion.”21The Court explained that police always have discretion as to how
to enforce a law and prosecutors always have discretion as to whether to initiate a criminal action.
Thus, the Court concluded that there is not a property interest for purposes of due process. Moreover,
the Court noted that “it is by no means clear that an individual entitlement to enforcement of a
restraining order could constitute a ‘property’ interest for purposes of the Due Process Clause. Such a
right would not, of course, resemble any traditional conception of property.” 22 The bottom line is that it
does not matter whether the claim is called substantive or procedural due process, or whether the law is
written in mandatory or discretionary terms. The government generally has no duty to provide
protection from private inflicted harms. Only if the government literally creates the danger or a person
is in government custody, is there any constitutional duty for the government to provide protection.
State and local governments may create duties and remedies under their law, but they do not exist
under the Constitution.
No DP clause have a property interest in police enforcement of restraining order.
Law of the 14th Amendment: Crum Outline
Paul v. Davis (1976)



However, just a few years later, in Paul v. Davis, the Court held that harm to reputation, by itself, is
not a deprivation of liberty.125 In Paul, the Louisville, Kentucky, chief of police circulated a flyer of
those “known” to have committed shoplifting. The individual whose picture and name was included
objected saying that his reputation, a liberty interest, was denied without any due process. The
Supreme Court, however, disagreed and held that an “interest in reputation alone . . . is neither
liberty nor property guaranteed against state deprivation without due process of law.” 126
The Court emphasized that liberty interests are created either by the Bill of Rights or by state law.
The Court explained that in addition to the provisions of the Bill of Rights that are incorporated into
the due process clause of the Fourteenth Amendment, liberty and property “interests attain this
constitutional status by virtue of the fact that they have been initially recognized and protected by
state law.”127 In other words, in deciding if there is a liberty interest, the Court is to look at the
positive law and not base its decision on a conclusion about the importance of the interest to the
individual.
Rehnquist fear: 14A as a “font of tort law to be superimposed upon whatever systems
may already be administered by the States.”
Kerry v. Din (2015)
 Alleged deprivation of a constitutional right to live in US with spouse after denial of visa
app. There is no such right. State has not attempted to forbid a marriage.
What Process is Due?
Once there is a constitutionally protected property/liberty interest, the next question is whether
the process was constitutionally sufficient.
Mathews v. Eldridge (1976)
 Court holds that pretermination evidentiary hearings were not required in the context of
disability benefits.
 Powell: “Due process is flexible and calls for such procedural protections as the
particular situation demands.”
 Three distinct factors:
o Private interest being affected
o Risk of erroneous deprivation of such interest through the procedures used;
o Govt. interest, taking into account additional burden of more procedures.
What are the elements of a fair hearing?
• An impartial decision maker
• Notice of the proposed action
• An opportunity to respond (written or oral)
• The right to call witnesses and have decision based on record evidence
• The right to counsel
• The creation of a record/transcript
• A statement of reasons explaining the decision
• Open to the public
• Judicial Review
Law of the 14th Amendment: Crum Outline
Substantive Due Process and Right to Privacy and to Choose an Abortion: Griswold/Roe
(531-52)
Court often gives weight to democratic process – this is a thumb on the scale.
If we find unenumerated liberty interest protected, do we apply SS? Messy… Obergefell? No.
Roe? Some say yes.. but trimester? Griswold? Lawrence/Obergefell… reasons given are
insufficient. It’s messy, make this clear. Applies greater weight, but not operationalized.
Meyer v. Nebraska (1923)
 Read liberty broadly to reverse conviction of a teacher for teaching German and thus
violating state law prohibiting the teaching of foreign languages to young children.
 Nebraska law “materially” interfered with the calling of modern language teachers, with
the opportunities of pupils to acquire knowledge, and with the power of parents to control
the education of their own.”
Pierce v. Society of Sisters (1925)
 Law prohibiting private and parochial school education unconstitutional. Infringes on
right of parents to control the upbringing of their children and thus impermissibly
violated the liberty guaranteed under the due process clause of 14A.
Buck v. Bell (1927)
 Holmes: Upheld Court judgment ordering a feeble minded woman committed to state
mental institution, sterilized, at 18. “Principle that sustains compulsory vaccinations is
broad enough to cover cutting the Fallopian tubes.”
Skinner v. Oklahoma (1942)
 Invalidated forced sterilization law for certain criminal defendants on EP grounds.
 Douglas: Compulsory sterilization laws in general should be held to SS.
Griswold v. Connecticut (1965)
 “Marital Zone of Privacy” Penumbra of BOR – Douglas: Privacy is a fundamental right.
REJECTS idea that it is protected under DP clause.
 Douglas Reasoning: Instead, Douglas found that privacy was implicit in many of the
specific provisions of the Bill of Rights, such as the First, Third, Fourth, and Fifth
Amendments. Douglas declared: “The foregoing cases suggest that specific guarantees in
the Bill of Rights have penumbras, formed by emanations from those guarantees that help
give them life and substance. Various guarantees create zones of privacy. . . . We have
had many controversies over these penumbral rights of privacy and repose. These cases
bear witness that the right of privacy which presses for recognition here is a legitimate
one.”
 Endorses Pierce/Meyer, Rejects Lochner.
 Concurrence (Goldberg): 9A says there are unenumerated rights, liberty protects personal
fundamental rights.
 Concurrence (Harlan): Rejects Penumbras, focuses on 14A. Asks if right is implicit in
ordered liberty, deeply rooted in history/tradition.
Law of the 14th Amendment: Crum Outline

Rejects right to privacy, accuses majority of Lochnerizing.
The Supreme Court usually looks first to see whether the right is a fundamental right by
examining whether it is deeply rooted in American history and traditions. If the right is not a
fundamental right, the court applies a rational basis test if the violation of the right can be
rationally related to a legitimate government purpose, the law is then held valid. If the court
establishes that the right being violated is a fundamental right, it applies strict scrutiny and asks
whether the law is necessary to achieve a compelling governmental interest and whether the law
is narrowly tailored to address that interest.
Eisenstadt v. Baird (1972): expands right to privacy of contraception from marriage to
individual
Roe v. Wade (1973)
 Blackmun majority opinion: Applies heightened scrutiny test, showing there is a
fundamental right at issue
 Rule: Constitutional right to terminate pregnancy so government cannot restrict abortions
prior to viability. Regulations on abortion subject to strict scrutiny.
 Blackmun: Privacy found in 14A, 9A: Right to privacy covers decision to terminate
pregnancy bc of potential harm to woman. Not an absolute right.
 Trimester framework: First – No restrictions. Second: Can’t outlaw but may regulate in
ways reasonably related to maternal health. Third: Abortions may be prohibited except
for life of mother.
 Stewart: Endorse substantive due process
 White: Accuses of judicial activism.
 Rehnquist: Not privacy, this is a transaction.
Webster v. Reproductive Health Services (1989): upheld MO law barring state employees
from performing abortions & using public facilities to do so.
Rust v. Sullivan (1991): upheld restriction on abortion counseling by any group receiving
federal funds
Harris v. McRae (1980): upheld Hyde Amendment’s ban on federal funding for abortions, even
when medically necessary (except in cases of rape, incest, mother’s life endangered) because
existence of Constitutional right ≠ affirmative duty of government to subsidize right.
Bellotti v. Baird (I, 1976 and II, 1979): state can involve parent in minor’s abortion decision
only if it also provided a judicial bypass procedure.
Planned Parenthood v. Casey (1992)
Law of the 14th Amendment: Crum Outline





States cannot place an undue burden on abortion access (not trimester framework)
Court affirms Roe while evaluating PA law not even about abortion, but about 24 hour
waiting period (upheld), requiring physicians to inform women about availability of info
about fetus (upheld), creating requirements for reporting/record-keeping (upheld), and
requiring spousal notifications (unconstitutional).
The plurality opinion stated that it was upholding what it called the "essential holding" of
Roe. The essential holding consisted of three parts: (1) Women had the right to have an
abortion prior to viability and to do so without undue interference from the State; (2) the
State could restrict the abortion procedure post-viability, so long as the law contained
exceptions for pregnancies which endangered the woman's life or health; and (3) the State
had legitimate interests from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child.[12] The plurality asserted that the
fundamental right to abortion was grounded in the Due Process Clause of the Fourteenth
Amendment, and the plurality reiterated what the Court said in Eisenstadt v. Baird: "If
the right of privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child."
Undue burden is “shorthand for… a state regulation that has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable
fetus.”
‘a state measure designed to persuade her to choose childbirth over abortion will be
upheld if reasonably related to that goal’
Gonzalez v. Carhart (2007)





Holding: upholds Partial Birth Abortion Act of 2003 which banned “intact dilation and
extraction” methods of abortion because not an undue burden
Kenndy: Law’s challengers fail to show procedure will prohibit vast majority of dilation
& extraction abortions
Other common alternative methods still exist
Doctor has no right to choose abortion method he/she prefers
Deference: Congress found method disturbingly similar to killing of newborn infant &
wanting to ensure so grave a choice is well-informed
Overruling of Abortion (Dobbs) 474-80, 565-78
Pre-Dobbs Cases:
In Whole Women’s Health v. Hellerstadt (2016), the Court addressed a Texas law that:
• Required doctors to have admitting privileges to a hospital within a 30-mile radius
• Required clinics to have the same standards as an ambulatory surgical center
• In invalidating the Texas law, the Hellerstadt Court looked at both the law’s costs and
benefits in applying Casey’s undue burden standard
• Justice Ginsburg’s concurrence focused on the law’s purpose
• In June Medical Services LLC v. Russo (2020), the Court addressed a Louisiana law that
also required doctors to have hospital admitting privileges
• Justice Breyer’s plurality opinion emphasized the similarity to Hellerstadt and the clearerror standard
Law of the 14th Amendment: Crum Outline
of review for the district court’s factual findings
• The Chief’s concurrence in the judgment emphasized the case’s similarity to Hellerstadt
and the
importance of abiding by precedent even when you disagree with it
• The conservatives fractured on numerous grounds (standing, further factual
development) but all joined
Alito’s opinion criticizing the Court for applying Hellerstadt’s balancing test
Dobbs v. Jackson Women’s Health Org
 No right to abortion in constitution, none “deeply rooted in history and tradition” –
rational basis review.
 Thomas wants to revisit Griswold, Obergefell, Lawrence. Majority does not.
 In the introductory statement, Alito, writing for the majority, summarized a constitutional
historical view of abortion rights, saying, "The Constitution makes no reference to
abortion, and no such right is implicitly protected by any constitutional provision."[166]
 Alito based his argument on the criterion from Washington v. Glucksberg (1997) that a
right must be "deeply rooted" in the nation's history.
 That provision [the Due Process Clause of the Fourteenth Amendment] has been held to
guarantee some rights that are not mentioned in the Constitution, but any such right must
be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of
ordered liberty."
 "abortion couldn't be constitutionally protected. Until the latter part of the 20th century,
such a right was entirely unknown in American law. Indeed, when the Fourteenth
Amendment was adopted, three quarters of the States made abortion a crime at all stages
of pregnancy."
Saenz v. Roe (1999)
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Finally, in Saenz v. Roe, the Court declared unconstitutional a California law that limited welfare
benefits for new residents in a state to the level of the state that they moved from for their first year
of residence.53 As explained above, the Court said that the privileges or immunities clause protects
the right of a new resident in the state to be treated the same as longer term residents.
Cannot limit the benefits of families residing in a state for less than twelve months.
Euthanasia: Cruzan, Glucksberg (624-35)
Cruzan v. Director, MO Dept. of Health
 The Court upheld Missouri’s “clear and convincing evidence” standard
for a guardian seeking to terminate assisted nutrition and hydration of a patient in a
persistent vegetative state
o Competent adults have a constitutional right to refuse medical care under liberty
of the due process clause.
o State may require clear and convincing evidence that a person wanted treatment
terminated before it is cut off. State important interest in protecting life.
o State may prevent family members from terminating treatment for another.
Law of the 14th Amendment: Crum Outline
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Does not articulate level of scrutiny to be used in evaluating governmental regulation of
refusing medical treatment.
Washington v. Glucksberg (1997)
 Court articulates two part test for substantive due process
o Court asks “whether right is ‘deeply rooted in this nation’s history and tradition’
or ‘implicit in the concept of ordered liberty’
o Second, Court must provide a ‘description of the asserted fundamental liberty
interest
 Here, no constitutionally cognizable liberty interest in assisted suicide, Court engaged in
a deeply historical analysis of whether the right was fundamental.
 Glucksberg was viewed as touchstone for substantive due process.
d
Vacco v. Quill
 Prohibition of physician assisted suicide does not violate equal protection clause.
 Rehnquist: It neither discriminates against suspect class, nor violates fundamental rights
under Glucksberg. Law is neutral on its face, too.
Sexual Orientation/Dignity: Bowers, Romer, Lawrence (585-606)
Difference b/t animus/discriminatory intent: Animus=largely in this class, gay rights cases,
also saw in Cleburne, (rational basis w/ bite)… Arlington heights/discrim intent is a more
searching inquiry… then you ask would the same policy have been enacted. Animus is different
when justifiactions offered appear to be moral disapproval. Animus is a test where Windsor does
give a sense of animus. Purpose and effect. Cleburn/Romer relevant as well.
How court frames A2 in romer: Taking away of protection for sexual orientation: Majority
focuses on disability/extra hurdles to get orientation protected. Scalia frames as this is an extra
benefit.
Bowers v. Hardwick (1986)
 Court upholds Georgia ban on homosexual sodomy between consenting adults. Court
narrows its inquiry to the aforementioned.
 Decision relies on SDP: Court declines to extend Pierce, Meyer, Loving, Griswold and
Roe to Same sex relationships.
 Court looks to history, finds sodomy laws were not forbidden by 14A
 Upheld on rational basis, concluding that ‘morality alone’ is sufficient.
 Burger “ancient roots” in “judeo Christian moral and ethical standards”
Romer v. Evans (1996)
 Colorado repeals anti-discrimination ordinances. First time court invalidates based on
sexual orientation, though under rational basis. Invalidates Bowers ‘morality’ standard.
Law of the 14th Amendment: Crum Outline
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Kennedy added that the law is based on animus, and does not make sexual orientation a
suspect class: "[I]f 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."
Scalia, bitter with sweet approach: "If it is rational to criminalize the conduct, surely it is
rational to deny special favor and protection to those with a self-avowed tendency or
desire to engage in the conduct."
Lawrence v. Texas (2003)
 Court invalidates TX ban on same-sex sodomy on substantive due process grounds. May
not prohibit private consensual sexual activity between consenting adults of the same sex.
 Overturns Bowers – Privacy/Due Process, NOT Equal protection, does not articulate
fundamental right.
 O’connor advocates EP rationale.
 Scalia: Majority’s reasoning calls into question fornication, bigamy, adultery, incest,
bestiality, and obscenity. Appropriate place is LEGISLATURE, not the court.
Same Sex Marriage: Windsor, Obergefell (607-24)
Obergefell v. Hodges (2015) – Car crash of an opinion by kennedy
• Rule: Court invalidated bans on same sex marriage under both DPC and EPC
o History: marriage has evolved – shift away from coverture
o Core to individual autonomy, Building off Lawrence, marriage is of signal importance to
couples,
Marriage is important to families and children, citing state laws that allow same-sex
couples to adopt, Marriage is integral to our society, citing laws that provide benefits to
married couples
o Emphasizes the concept of “dignity”
o EPC: Fundamental, Individual autonomy and DPC: Denial of right disrespects and
demeans same sex. Imprecise rationale, no tiers of scrutiny, are interwoven, did not use
tiers of scrutiny
• Dissent (Scalia): Court Is acting as super-legislature, justices are unrepresentative
• Dissent (Roberts): This is Lochner, historical conception of marriage, need to use tiers of
scrutiny
• Dissent (Thomas): DPC is limited to physical restraints, this is not procedural right
US v. Windsor (2013)
Law of the 14th Amendment: Crum Outline
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DOMA definition of marriage as between one man + one woman violates 14AM
EPC/DPC (applied to federal government by bolling v. sharpe)
Kennedy: View of marriage changed, Section 3 DOMA oversteps governmental power
into states rights. Creates two-tier systems of marriage. Doesn’t specific scrutiny.
Equality under 14A prohibits bare congressional desire to harm a politically unpopular
group”
Disfavors couples, makes marriages unstable, stigmatizes children, economic burdens.
Roberts: Rational basis
Scalia: Judicial activism, defer to legislature.
Gender Identity Discrimination: Handouts
In Skrmetti (2023), the Sixth Circuit upheld Tennessee’s (and Kentucky’s) ban on genderaffirming care for minors
• The Sixth Circuit rejected plaintiffs’ substantive due process argument on the
grounds that even adults do not have a constitutional right to certain medical
treatments
• The Sixth Circuit held that the law is not subject to intermediate scrutiny because
it does not classify based on sex and because transgender status is not a suspect
class
• The Sixth Circuit upheld the law on rational-basis review and declined to make an
alternative finding RE intermediate scrutiny
Second Amendment/Rejection of Tiers of Scrutiny 487-505
• In Heller (2008), the Court held that the Second Amendment protects an individual’s
right to own a gun in their home for self protection
• But Heller’s holding had important limits:
• “The Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes, such as short-barreled shotguns”
• “Our opinion should not be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools or government buildings.”
McDonald v. City of Chicago (2010)
Incorporates 2A against states through DPC.
 Second amendment individual right to bear arms applies to the states.
 Self defense has historical and protected origins
 BOR intended to extend to individuals.
 Liberty
 History/tradition: Fundamental rights of englishment.
 Thomas; More straightforward is P and I, would be included as right of American
citizenship. Overturn slaughterhouse.
Everything has been incorporated against states except 3rd amendment, 5th, 7th.
Bruen (2022)
Law of the 14th Amendment: Crum Outline
Concept of liquidation: Appears outside Bruen, outside bill of rights, reconstruction As: If
ambiguity in text, immediate post ratification practice sheds light. Madison opposed creation of
national bank. Madison lost that fight.
Unclear when Constitution created whether federal courts created: BC lower federal courts were
created, that’s evidence we may need to have lower courts.
How does 2A history/tradition fit in rest of course? Not well. Interesting similarities between
history/tradition in bruen/sub due process. But different bc bruen is protecting enumerated right,
whereas SDP is a test used to find unenumerated rights. Also: Bruen is intriguing bc lower fed
courts have coalesced around notion that core violations get SS and this was totally changed.
Concern that the court will start throwing out other tests.
Heller/Mcdonald deal with outliers and say that’s obviously within core of 2A. Builds in Bruen
by saying let’s add analogical reasoning.
Bruen: Does plain text of 2A cover it? If so, analogical.
The Bruen Court adopted a new standard based on analogical reasoning:
• “When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. ... The government must
demonstrate that the regulation is consistent with this Nation’s historical tradition
of firearm regulation.
 The Second and Fourteenth Amendments protect an individual's right to carry a handgun
for self-defense outside the home. New York’s proper-cause requirement violates the
Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear arms.
 "When the Second Amendment's plain text covers an individual's conduct [here the right
to bear arms], the Constitution presumptively protects that conduct. The government
must then justify its regulation by demonstrating that it is consistent with the Nation's
historical tradition of firearm regulation. Only then may a court conclude that the
individual's conduct falls outside the Second Amendment's "'unqualified command.'"