Constitutional Law II Outline
I.
Implied Fundamental Rights
A. Theories of Constitutional Construction – “Originalism” and
“Nonoriginalism”
1. The terms of the debate
a. “Originalism embodies the view that judges deciding constitutional
issues should confine themselves to enforcing norms that are stated or
clearly implicit in the Constitution as it was understood by those who
ratified it.”-785-6
b. “Nonoriginalism reflects the view that the task of interpretation
authorizes courts to make particular judgments not foreseen by or
even contrary to those of the Constitution’s ratifiers. Nonoriginalists
almost always accept the view that the text of the Constitution is
binding.”
c. “Interpretivists are frequently thought to argue that courts must rely
on value judgments ‘within’ the Constitution; noninterpretivists say
that courts must or can look ‘outside’ the document.”—786
2. The nature and stakes of the debate
a. “Hard originalists believe that the meaning of the Constitution should
be settled by asking the framers and ratifiers some very particular
questions.”—786
b. “Soft originalists believe that the original understanding is important
not for particular answers to particular questions, but in order to get a
general sense of purposes and aspirations.”—786
i.
“Of recent members of the Court, Justices Thomas and Scalia
have been the most consistent advocates of hard originalism.
c. There are two strands in the argument for originalism. First, it is
argued that the framers and ratifiers did not intend to permit courts to
invalidate legislation for reasons other than those set out by them.
d. Second, it is argued that nonoriginalism, or use of extratextual norms,
is objectionable because it accords excessive power to unelected
judges. This latter view assumes that in the U.S. system, basic
decisions are made by those subject to the constraints of the electoral
process. If judges invalidate laws because of extratextual norms, they
are acting in a way inconsistent with the basic premise of electoral
accountability.”—787
3. An argument for originalism
a. In Bork’s Neutral Principles and Some First Amendment Problems, he
argues that “the Court’s power is legitimate only if it has [a] valid
theory, derived from the Constitution, of the respective spheres of
majority and minority freedom.”—787
b. “the choice of ‘fundamental values’ by the Court cannot be justified,
[for where] constitutional materials do not clearly specify the value to
be preferred, there is no principled way to prefer any claimed human
value to any other.”—788
c. In The Tempting of America, Bork argues that “when the Court,
without warrant in the Constitution, strikes down a democratically
produced statute, that act substitutes the will of a majority of nine
lawyers for the will of the people. That is what is always involved
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when constitutional adjudication proceeds by a concern for results
rather than by concern for reasoning from original
understanding….”—788
d. “Legal reasoning, which is rooted in a concern for legitimate process
rather than preferred results, is an instrument designed to restrict
judges to their proper role in a constitutional democracy.”—788
e. “Yet legal reasoning must begin with a body of rules or principles or
major premises that are independent of the judge’s preferences. That
[is] impossible under any philosophy of judging other than the view
that the original understanding of the Constitution is the exclusive
source for those exterior principles.”—788
4. Arguments against originalism
a. Several questions may be asked of an originalist:
i.
Who counts?
ii.
What is the relevant psychological state?
iii.
What combination of individual intentions is controlling?
iv.
Are we interested in abstract or concrete intentions?—788
b. Tushnet, in Following the Rules Laid Down: A Critique of
Interpretivism and Neutral Principles, argues that “[The] hermeneutic
tradition tells us that we cannot understand the acts of those in the past
without entering into their mental world.”—789
5. Nonoriginalist approaches
a. Natural Law
i.
In Grey’s Do We Have an Unwritten Constitution, he argues
that “For the generation that framed the Constitution, the
concept of a ‘higher law,’ protecting ‘natural rights,’ and
taking precedence over ordinary positive law as a matter of
political obligation, was widely shared and deeply felt.”—789
ii.
He goes on: “it was generally recognized that written
constitutions could not completely codify the higher law. Thus
in the framing of the original American constitutions it was
widely accepted that there remained unwritten but still binding
principles of higher law.”—790
b. Moral Philosophy
c. Tradition
d. The Common Law and Consensus
i.
In Wellington’s Common Law Rules and Constitutional
Double Standards: Some Notes on Adjudication, he argues that
“Unlike the moral philosopher, the court is required to assert
ours. [The] Court’s task is to ascertain [the] conventional
morality and to convert [moral] principle[s] into [legal ones] by
connecting [them] with the body of constitutional law.”—791
e. Representation-reinforcement
i.
Ely, in ? argues that “The tricky task [is to devise] a way [of]
protecting minorities from majority tyranny that is not a
flagrant contradiction of the principle of majority [rule]. [To
accomplish this task,] the Constitution [is] overwhelmingly
concerned [with] procedural fairness [and] with ensuring broad
participation in the processes [of] government.”—792
ii.
“Under this view, decisions that depart from the original
understanding or that look outside the four corners of the
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document are justifiable when they promote representation, but
not if they recognize or create fundamental rights unrelated to
representation.”—792
6. Arguments Against Nonoriginalism
a. Natural Law
i. Ely argues that “’[A]ll theories of natural law have a singular
vagueness which is both an advantage and disadvantage in the
application of the theories.’ The advantage [is] that you can invoke
natural law to support anything you want. The disadvantage is that
everybody understands that.”—792
b. Moral Philosophy
i.
Ely, again, argues that “[There] simply does not exist a method
of moral philosophy.”—792
c. Tradition
i.
Ely said that “’[I]f the Constitution protects only interests
which comport with traditional values, the persons most likely
to be penalized for their way of life will be those least likely to
receive judicial protection,’ and that flips the point of the
[Constitution] exactly upside down.”—793
d. Consensus
i.
Ely said that “[The problem with the] idea that society’s
]widely shared values’ should give content to the [Constitution
is] that that consensus is not reliably discoverable, at least not
by the courts.”—793
e. Representation-reinforcement
7. Concluding Thoughts
a. “Some originalists believe in an active judicial role in invalidating
statutes; others do not.”—794
b. “Nonoriginalists rarely believe that judges should entirely abandon the
original understanding, and they almost always believe that the text is
controlling. Often they merely characterize the original understanding
broadly (as containing general concepts rather than particular
conceptions) or emphasize the existence of new or unforeseen
circumstances. Originalists often treat interpretation as a complex
matter and acknowledge (for example) that changed circumstances are
relevant to interpretation. For this reason, originalists are often
comfortable with Brown v. Board of Education and with a relatively
broad approach to the first amendment.”—794
II.
The Incorporation Controversy
Barron v. Mayor & City Council of Baltimore—1833
Issue: Whether construction initiated by a municipality that adversely affects the wharf
owned by a private individual, is a violation of the 5th Amendment guaranty that private
property shall not be “taken for public use, without just compensation”? NO
Rule: “We are of opinion that the [just compensation] provision in the Fifth amendment
[is] intended solely as a limitation on the exercise of power by the government of the
United States, and is not applicable to legislation of the states.”-806
Murray v. Hoboken Land & Improvement Co.—1856
Issue: “To what principles, then, are we to resort to ascertain whether [a particular
process] is due process?”
Rule: “[We] must look to those settled usages and modes of proceeding existing in the
common and statute law of England, before the emigration of our ancestors, and which
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are shown not to have been unsuited to their civil and political condition by having been
acted on by them after the settlement of this country.”—806
Twining v. New Jersey—1908
Issue: “Whether the exemption from self-incrimination is [a] fundamental principle of
liberty and justice which inheres in the very idea of free government and is the
inalienable right of a citizen of such a government”? NO
Rule: “[It] is possible that some of the personal rights safeguarded by the first eight
amendments against National action may also be safeguarded against state action,
because a denial of them would be a denial of due process of law. [If] this is so, it is not
because those rights are enumerated in the first eight Amendments, but because they are
of such a nature that they are included in the conception of due process of law.”-807
Palko v. Connecticut—1937
Issue: Whether a Connecticut statute that permits the State to appeal in criminal cases is a
violation of the double jeopardy provision of the 5th Amendment right to due process? No
Rule: “The right to trial by jury and the immunity from prosecution except as the result
of an indictment may have value and importance. Even so, they are not of the very
essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of
justice so rooted in the tradition and conscience of our people as to be ranked as
‘fundamental.’”-807
Adamson v. California—1947
Issue: Whether permitting the prosecution to comment on the D’s failure to take the stand
is a constitutional violation of the D’s 14th Amendment privilege against selfincrimination? NO
Justice Black’s Dissenting Opinion (Total Incorporation Doctrine): “I fear to see the
consequences of the Court’s practice of substituting its own concepts of decency and
fundamental justice for the language of the Bill of Rights as its point of departure in
interpreting and enforcing the Bill of Rights. I would follow what I believe was the
original purpose of the fourteenth Amendment – to extend to all the people of the nation
the complete protection of the Bill of Rights.”-809
A. The Black/Frankfurter Debate
1. Fundamental fairness
a. “For about fifteen years after Adamson, the Court continued to employ
the ‘fundamental fairness’ approach to due process.”—810
Duncan v. Louisiana—1968
Issue: Whether the 6th Amendment right to trial by jury is incorporated in the 14th
Amendment right to due process in state criminal prosecutions? YES
Rule: “Because we believe that trial by jury in criminal cases is fundamental to the
American scheme of justice, we hold that the Fourteenth Amendment guarantees a right
of jury trial in all criminal cases which – were they to be tried in a federal court – would
come within the Sixth Amendment’s guarantee.”—811
B. Incorporation Since Duncan
1. The Current Scope of Incorporation
a. “Although the Court has never embraced Justice Black’s total
incorporation theory, it has used selective incorporation to make
almost all the specific guarantees of the bill of rights applicable to the
states.”—811
b. “The only provisions of the first eight amendments that have not been
incorporated are the second and third amendments, the fifth
amendment’s requirement of grand jury indictment, and the seventh
amendment.”—811
2. Incorporation “jot-for-jot”
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a. “by the 1960’s the Court had reached the conclusion that the
guarantees of the bill of rights that were ‘selectively’ incorporated in
the due process clause of the fourteenth amendment should apply to
the states in precisely the same manner as they applied to the federal
government.”—812
3. Evaluation
III.
Substantive Due Process: The Protection of Economic Interests and the Problem
of “Redistribution”
A. The Road to Lochner
1. Lochner’s antecedents
a. Munn v. Illinois—Court held that an Illinois law fixing the maximum
charges for grain-storage warehouses did not violate the Due Process
clause, even though “such statutes may violate due process” under
“some circumstances.”—815
i. The critical inquiry is whether the private property is “affected
with a public interest,” and the “businesses regulated in Munn were
clearly ‘affected with a public interest,’ for they had a ‘virtual
monopoly’ on the storage of grain bound from the Midwest to
national and international markets.”—815
b. Railroad Commission Cases—Court sustained state regulation of
railroad rates, but emphasized the fact that “the State cannot require a
railroad corporation to carry persons or property without reward;
neither can it do that which in law amounts to a taking of private
property for public use without just compensation, or without due
process of law.”—816
c. Santa Clara County v. Southern Pacific Railroad—Court held that
“corporations were ‘persons’ within the meaning of the due process
clause of the fourteenth amendment, thus opening the door for direct
challenges to regulations by corporations.”—816
d. Mugler v. Kansas—Court held that a state statute that authorized a
commission to set final and unreviewable railroad rates was
unconstitutional.—816
i. This case represents the first time that the Court relied directly on
the Due Process clause to invalidate a state economic regulation.
e. Allgeyer v. Louisiana—“Court invalidated a state statute that
prohibited any person from issuing insurance on property in the state
with companies that had not been admitted to do business in the
state.”—816
i. The court said “The liberty mentioned in [the due process clause]
means not only the right of the citizen to be free from the mere
physical restraint of his person … but … the right of the citizen to
be free in the enjoyment of all his faculties; to be free to use them
in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or
avocation, and for that purpose to enter into all contracts which
may be proper, necessary and essential to his carrying out to a
successful conclusion the purposes mentioned above.”—817
Lochner v. New York-1905
Issues: Does §110 of Article 8, Chapter 415 of the laws of 1897 which prohibits the
wrongful and unlawful requirement that an employee work more than 10 hours per day
violate the 14th amendment right of freedom to contract?-YES
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Is it within the rights of a state to enact legislation that restricts the freedom to contract as
guaranteed by the 14th amendment?-NO
Does restricting the number of hours worked in a day represent an example of a “police
power” through which the court is maintaining the health of the general public?-NO
Rule: “[T]he freedom of master and employee to contract with each other in relation
to their employment [cannot] be prohibited or interfered with, without violating the
Federal Constitution.”—820
2. Summary
a. “Objections to the Lochner decision generally fall into two camps.
Some are institutional and emphasize that the Court overstepped its
bounds in relation to the legislature.”—828
b. “Other objections are substantive, in the sense that they have less to do
with the role of the Court and more to do with the particular ideas at
work in Lochner about the appropriate role of government. Here, the
problem is that the Court attempted to vindicate, as a matter of
constitutional law, a laissez-faire conception of the role of government
that could not be sustained.”—828
B. The Lochner Era
1. Maximum hour legislation
a. Muller v. Oregon—Court upheld a statute prohibiting the employment of
women in laundries over 10 hours per day; Court distinguished Lochner
on the ground that “’woman’s physical structure’ placed her at a
disadvantage in the ‘struggle for subsistence’ and legislation to protect
women was thus ‘necessary to secure a real equality of right.’”—830
b. Bunting v. Oregon—Court upheld a statute establishing a maximum 10
hour day for factory workers of both sexes.
2. Yellow dog contracts
a. Adair v. United States and Coppage v. Kansas—Court invalidated federal
and state legislation forbidding employers to require employees to agree
not to join a union.
3. Minimum wages
a. Adkins v. Children’s Hospital—Court invalidated a law establishing
minimum wages for women.
4. Price regulation
a. After Munn, the Court “Initially adopted a broad definition of ‘affected
with a public interest’ and thus upheld a wide range of laws regulating
prices. … Thereafter, the Court increasingly narrowed the Munn standard
and thus invalidated laws regulating prices with regard to such matters as
gasoline.”
5. Business entry
a. New State Ice Co v. Liebmann—“Court invalidated a law prohibiting any
person to manufacture ice without first obtaining a certificate of
convenience and necessity.” –831
6. The Demise of Lochner
a. “[T]he Court’s decisions in the Lochner era were often inconsistent. The
unifying theme seemed to be in the Court’s perception of the ‘real’ reason
for the regulation.”—831
b. “By the mid-1930’s, the Court was prepared to abandon Lochner. This
was due to changes in the composition of the Court, internal tensions in
the doctrine, an attack on the market ordering as a product of law and as
sometimes inefficient and unjust, increasing judicial and academic
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criticism, and, perhaps most important, the economic realities of the
Depression, which seemed to undermine Lochner’s central premises.”
Nebbia v. New York-1934
Issue: Whether a State may establish minimum and maximum retail prices for milk in
order to protect the livelihood of dairy producers?-YES
Rule of Law: “[Price] control, like any other form of regulation, is unconstitutional only
if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is
free to adopt, and hence an unnecessary and unwarranted interference with individual
liberty.”—832
West Coast Hotel Co. v. Parrish -1937
Issue: Whether a State may establish a minimum wage law for women?—YES
Rule of Law: A State may establish a minimum wage law for women.
7. The end of an era
a. Lincoln Federal Union v. Northwestern Iron & Metal Co.—Court upheld
a state right to work law that prohibited closed shops. “The Court
explained that it had abandoned ‘the Allgeyer-Lochner-Adair-Coppage
constitutional doctrine’ and returned ‘to the earlier constitutional principle
that states have power to legislate against what are found to be injurious
practices in their internal commercial and business affairs, so long as
their laws do not run afoul of some specific constitutional prohibition.”
U.S. v. Carolene Products Co.-1938
Facts: Whether Congress may enact a statute that prohibits the interstate trade of ‘filled
milk’ for reasons of health and consumer protection?-YES
Rule of Law: “[By] their very nature such inquiries, where the legislative judgment
is drawn in question, must be restricted to the issue whether any state of facts either
known or which could reasonably be assumed affords support for it.”—836
Williamson v. Lee Optical of Oklahoma-1955
Facts: Whether a State may enact a statute that requires an optician to use a prescription
from an ophthalmologist or optometrist before fitting or duplicating eyeglass lenses?-Yes
Rule of Law: “[T]he law need not be in every respect logically consistent with its
aims to be constitutional. It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legislative measure was a rational
way to correct it.”—837
Ferguson v. Skrupa-1963
Facts: Whether a State may outlaw the business of debt adjusting, “except as incident to
the ‘lawful practice of law’”?-YES
Rule of Law: “[It] is settled that States ‘have power to legislate against what are
found to be injurious practices in their internal commercial and business affairs, so
long as their laws do not run afoul of some specific federal constitutional
prohibition.’”—838
IV.
Modern Substantive Due Process: Privacy, Personhood, and Family
A. In Meyer v. Nebraska, the “Court invalidated a state law prohibiting the
teaching of any modern language other than English in any public or private
grammar school.”—941
B. The Court went on to say that “the individual has certain fundamental rights
which must be respected. [Here, no] emergency has arisen which renders
knowledge of a child of some language other than English so clearly harmful
as to justify [its] infringement of the right long freely enjoyed.”—941
C. The Right of Privacy
Griswold v. Connecticut—1965
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Issue: Whether a State may prohibit the use of all contraceptive devices by imposing
criminal penalties on those found to have distributed or provided information pertaining
to contraception to married couples? NO
Rule: “[A] governmental purpose to control or prevent activities constitutionally subject
to state regulation may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.”—943
1. Griswold and the Right of Privacy
a. “The problem, in short, is that there is no constitutional basis for a
privacy right – unless privacy is thought part of ‘liberty,’ a theory that
raises problems of its own.”—951
2. The Ninth Amendment
a. “The ninth and tenth amendments are complementary: the ninth deals
with rights ‘retained by the people,’ the tenth with powers ‘reserved’
to the states or the people. [Madison] made clear that the retained
rights [constitute] an area in which the ‘Government ought not to act.’
This means, in my judgment, that the courts have not been empowered
to enforce the retained rights. [Rather, in] ‘retaining’ the
unenumerated rights, the people reserved to themselves power to add
to or subtract from the rights enumerated in the Constitution by the
process of amendment. [If] this be deemed supererogatory, be it
remembered that according to Madison the ninth amendment itself was
‘inserted merely for greater caution.’”—952
b. “Since Griswold, various justices have alluded to the ninth
amendment, but without offering a comprehensive theory of precisely
what unenumerated rights it protects.”—953
3. The reach of Griswold: the unmarried
a. Eisenstadt v. Baird—Court held that a Mass. statute “prohibiting the
distribution of any drug or device to unmarried persons for the
prevention of conception violated the equal protection clause because
it provided dissimilar treatment for married and unmarried persons.”
4. The reach of Griswold: access to contraceptives
a. Carey v. Population Services International—Court invalidated a N.Y.
law “prohibiting any person other than a licensed pharmacist to
distribute contraceptives.”—955
D. Abortion
Roe v. Wade—1973
Issue: Whether the right to an abortion is constitutionally protected under the Fourteenth
Amendment’s concept of personal liberty and privacy? YES
Rule: “For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
woman’s attending physician.
For the stage subsequent to approximately the end of the first trimester, the State, in
promoting its interest in the health of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health.
For the stage subsequent to viability, the State in promoting its interest in the potentiality
of human life may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or health of
the mother.”—959
E. Family and Other “Privacy” Interests
Moore v. City of East Cleveland—1977
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Issue: Whether a city ordinance that restricts certain members of a family from living
together in “any dwelling unit” violates the due process clause of the 14th? YES
Rule: “[When] government intrudes on choices concerning family living arrangements,
this Court must examine carefully the importance of the governmental interests advanced
and the extent to which they are served by the challenged regulation.”-1017
“The Constitution protects the sanctity of the family precisely because the institution of
the family is deeply rooted in this Nation’s history and tradition.”-1018
F. The Limits of Privacy
Bowers v. Hardwick—1986
Issue: Whether a Georgia statute prohibiting sodomy unconstitutionally violates a
fundamental right to homosexual sodomy? NO
Rule: The right to engage in homosexual sodomy is not fundamental, and is therefore not
protected by the 14th Amendment prohibition against the deprivation of life, liberty, or
property without due process of law.
G. The Right to Die
Cruzan v. Director, Missouri Department of Health—1990
Issue: Whether Missouri may require clear and convincing evidence of an incompetent’s
wish to die in order to terminate life support? YES
Rule: There is no violation of Due Process where a State requires clear and convincing
evidence of an incompetent’s wish to die before terminating life support, rather than
deferring to the family’s wishes.
V.
Procedural Due Process
A. Liberty and Property Interests
1. “Before Goldberg v. Kelly … the Court defined liberty and property
interests by reference to the common law.”-1048
2. “the clause was inapplicable if government denied an individual some
public benefit—employment, welfare, or some other advantageous
opportunity.”-1048
3. “[Advantageous] relations with the government were mere ‘privileges’ or
‘gratuities,’ not legally protected rights.”-1048
4. “The original framework was a natural outgrowth of a libertarian
conception of government based on principles of laissez-faire. That
conception, associated with Lochner, would inevitably come under
assault, like Lochner itself, with the growth of the regulatory state and the
protection of interests foreign to the common law.”-1048
5. “In Reich’s view, it was necessary to create a ‘new property’ that would
attach the traditional procedural safeguards to these benefits in order to
furnish in the modern era the same kind of security promoted by ‘old
property’ under a common law regime. The idea was that without such
safeguards, those dependent on governmental benefits would be subject to
the arbitrary will of public officials.”-1049
6. “In Goldberg, the Court held that a welfare recipient’s interest in
continued receipt of welfare benefits was a ‘statutory entitlement’ that
amounted to ‘property’ within the meaning of the due process clause.”
Board of Regents of State Colleges v. Roth—1972
Issue: Whether the failure to provide some form of procedural hearing after terminating a
college professor without tenure constitutes a violation of the professor’s procedural due
process where there was no formal guarantee that he will be rehired? NO
Rule: A violation of procedural due process with respect to property requires some
entitlement or interest in the property.
Perry v. Sindermann—1972
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Issue: Whether the failure to provide some form of procedural hearing after terminating a
college professor without tenure constitutes a violation of the professor’s procedural due
process where there was no formal guarantee that he will be rehired? NO
Rule: However, “absence of such an explicit contractual provision may not always
foreclose the possibility that a teacher has a ‘property’ interest in re-employment.”-1051
Cleveland Board of Education v. Loudermill—1985
Issue: Whether the failure to provide some form of procedural hearing either before or
after terminating a public employee who can be discharged only for cause constitutes a
violation of the 14th Amendment right to procedural due process? YES
Rule: “While the legislature may elect not to confer a property interest in [public]
employment, it may not constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards.”-1052
7. Defining ‘Liberty’ and ‘Property’
a. Statutory entitlements
i.
“Under Roth, interests are defined by reference to positive
law.”-1054
ii.
“We might term this approach one of ‘statutory entitlement,’
or, following Reich, supra, ‘new property.’”-1054
iii.
“Simon claims that the ‘new property’ approach creates two
paradoxes: First, its understanding has ‘curiously conservative
and anti-redistributive implications’ because its reliance on
principles of vested rights may prevent government action
intended to reallocate property rights; second, ‘while it was
clearly designed to legitimate the expansion of the welfare
state, it proceeded by portraying the state as a menace’ because
it rested on fear of arbitrary governance.”-1055
iv.
“The due process clause itself distinguishes ‘life, liberty and
property’ from ‘due process.’”-1055
v.
“A contrary ‘theory could end judicial enforcement of the due
process clause.”-1055
vi.
“Such a view makes it pointless for the framers to have
specified life, liberty, and property: there would be no need to
mention any protected substantive interests if the clauses
intended to establish a right to due process without regard to
the substantive interest at stake.”1056
b. Property and liberty interests apart from positive law
i.
“The Supreme Court has generally been reluctant to define
‘property’ or ‘liberty’ interests by reference to the importance
of the interest at issue; even a ‘grievous loss’ may not be
enough. In some cases, … the Court has concluded that a
‘liberty’ interest is at issue even though there is no positive
protection of the sort required in Roth.”-1056
ii.
“Note that all of these cases involve variations on ‘old
property’ – government infringements on private autonomy as
understood at common law.”-1056
iii.
“The requirement of a statutory entitlement limits the judicial
inquiry without requiring comparisons among, for example,
welfare benefits, employment, and parole revocatoin.”-1056
iv.
“Unless courts implied a ‘for cause’ provision, it is hard to see
what the participants in the hearing would discuss; there would
be nothing to adjudicate. Procedural safeguards make little
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sense without substantive rights to adjudicate; in cases with ‘at
will’ provisions, like Roth, there is no state-created substantive
right, and there is no constitutional right to be discharged from
employment without cause.”-1056
c. Statutory Entitlements and Natural Liberty
i.
Property: state-created rights
A. Goss v. Lopez—“Court found a property interest because state
law provided that students may be suspended only for
‘misconduct.’ In the Court’s view, this provision created
‘legitimate claims of entitlement to a public education.”-1057
B. The Court went on to say that “Ohio may not withdraw that
right on grounds of misconduct, absent fundamentally fair
procedures to determine whether the misconduct has
occurred.”-1057
C. Logan v. Zimmerman Bush Co.—“involved a state statute
prohibiting discrimination on the basis of handicap and
providing that within 120 days of the filing of a charge of
unlawful discrimination, the state fair employment practices
commission ‘shall convene a factfinding conference.”-1057
D. “The Court held that the state-created right to redress of
unlawful discrimination amounted to a property interest, and
that under state law, that right was to be ‘assessed under what
is, in essence, a ‘for cause’ standard, based upon the
substantiality of the evidence.’”-1057
E. Paul v. Davis—“The Court concluded that reputation, standing
alone, was not a constitutionally protected liberty interest. The
Court acknowledged that in conjunction with some other
injury—such as a failure to rehire or a deprivation of a right to
purchase liquor, … an injury to reputation would trigger the
due process clause.”-1057
F. Meachum v. Fano—The Court ‘found no constitutionally
protected interest in a transfer of prisoners from a mediumsecurity prison to a maximum-security prison on the basis of
the prisoners’ alleged responsibility for committing arson.”
G. The Court said: “[The] determining factor is the nature of the
interest involved rather than its weight.”-1058
H. Further, “[Confinement] in any of the State’s institutions is
within the normal limits or range of custody which the
conviction has authorized the State to impose.”-1058
I. Dissenting, Justice Stevens said that “neither the bill of Rights
nor the laws of sovereign states create the liberty which the
Due Process Clause protects. [I] had thought it self-evident
that all men were endowed by their Creator with liberty, as one
of the cardinal unalienable rights. It is that basic freedom
which the Due Process Clause protects, rather than the
particular rights or privileges conferred by specific laws or
regulations.”-1058
J. Vitek v. Jones—“The Court held that the due process clause
was triggered, distinguishing Meachum in two ways. First the
state statute at issue allowed a transfer only upon a finding by a
designated physician or psychologist that the prisoner ‘suffers
12
from a mental disease or defect’ and ‘cannot be given treatment
in that facility.’ The prisoner therefore had a liberty interest
under Arnett. Second, the Court held that the prisoner ‘retained
a residuum of liberty that would be infringed by a transfer to a
mental hospital.’ The Court pointed to the stigmatic
consequences of involuntary commitment to a mental hospital,
the possibility of compelled treatment in the form of mandatory
behavior modification programs, and the increased limitations
on freedom of action.”-1058
K. Greenholtz v. Inmates—Court “held that without a statutory
entitlement, there is no constitutionally protected interest in a
denial of parole. The Court acknowledged that a revocation of
parole would trigger the due process clause, but found a
distinction between rescinding a benefit already conferred and
refusing to grant a benefit in the first instance.”-1058
L. Board of Pardons v. Allen—“the Court held that Montana’s
parole statute established a sufficient expectancy of release to
create a liberty interest.”-1058
M. Sandin v. Conner—“the Court held that there was no due
process violation when a prisoner was not permitted to present
witnesses during a disciplinary hearing in which he was
sentenced to disciplinary segregation for misconduct. The
Court emphasized that judges should avoid involvement in ‘the
ordinary incidents of prison life.”-1059
N. Further, the Court said that “the due process clause would not
be triggered unless it presented ‘a dramatic departure from the
basic conditions’ of the sentence.”-1059
d. Concluding Thoughts
i.
“In defining liberty and property interests, the Court has had
three principal options. First, it could have continued to define
protected interests by reference to the common law. Such an
approach would deny procedural protection for all statutory
interests by adhering to the preexisting framework…. Second,
the Court could have defined protected interests in a functional
way, by looking to their importance…. Third, it could have
chosen, as it did, the current course—offering procedural
protection only to statutes that create ‘entitlements.’”-1059
B. What Process is due?
Mathews v. Eldridge—1976
Issue: Whether state agencies violate the 14th Amendment right to procedural due process
when terminating disability benefits without a formal hearing? NO
Rule: “All that is necessary is that the procedures be tailored, in light of the decision to
be made, to ‘the capacities and circumstances of those who are to be heard,’ [Goldberg],
to insure that they are given a meaningful opportunity to present their case.”-1063
“our prior decisions indicate that identification of the specific dictates of due process
generally requires consideration of three distinct factors: First, the private interest that
will be affected by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.”-1060
1.
2.
3.
4.
C.
13
Balancing Tests and the Due Process Clause
a. The Mathews Court “adopted a three-part ‘test,’ sometimes called one of
balancing or ‘cost-benefit’ analysis, that has played an important role in
constitutional law.”-1064
The Problem of Timing
a. “The traditional rule has been that a postdeprivation remedy is
insufficient. In general, government must afford procedural
safeguards before it harms someone.”-1066
b. Brock v. Roadway Express, Inc.—“the Court considered the converse of
the problem posed by Arnett and Loudermill—that is, the kind of process
that is due before an employer can be forced to reinstate a discharged
worker.”-1066
c. “[A] plurality of the Court held that the Constitution did not require an
evidentiary hearing and an opportunity to cross-examine witnesses before
the government ordered temporary reinstatement.”-1067
d. “The plurality went on to hold, however, that the procedures would satisfy
this reliability standard only if the employer received notice of the
employee’s allegations, notice of the substance of the relevant supporting
evidence, an opportunity to submit a written response, and an opportunity
to meet with the investigator and present statements from rebuttal
witnesses.”-1067
How Formal?
a. ”Goldberg v. Kelly required a trial-type hearing before termination of
welfare benefits, including a number of features: a right to present oral
evidence, a right to confront and cross-examine witnesses, a right to
counsel, a statement by the arbiter of reasons and of the evidence relied
on, and a right to an impartial decisionmaker.”-1067
State Remedies as Due Process
a. “Sometimes the Court has held that state tort remedies may sometimes
provide all the process that is constitutionally ‘due.’-1068
b. Ingraham v. Wright—“The Court held that the interest in avoiding
‘paddling’ was constitutionally protected liberty, but concluded that an
after-the fact state tort remedy provided sufficient procedural
safeguards.”-1068
The (Dead) Irrebuttable Presumption Doctrine
1. “For a period, the Court combined principles of procedural due process
and equal protection in the ‘irrebuttable presumption doctrine,’ in
accordance with which decisions according to rule were sometimes
unconstitutional. Cleveland Board of Education v. LaFleur … was the
leading case. At issue was a school board regulation requiring pregnant
school teachers to take an unpaid maternity leave four to five months
before the expected birth. The Court invalidated the regulation on the
ground that it created ‘a conclusive presumption that every pregnant
teacher who teaches the fifth or sixth month of pregnancy is physically
incapable of continuing.”-1069
2. “Weinberger v. Salfi—“seems to have marked the demise of the doctrine.
The case involved a constitutional attack on a requirement of the Social
Security Act that, in order to receive benefits as a spouse of a wage earner,
one must have been married to the wage earner for at least nine months
prior to his death…. Applying traditional rationality review, the Court
upheld the rule.”-1070
14
D. Procedural Due Process and ‘Legislative’ Determinations
1. “The due process clause does not mean that, before passing laws,
Congress must hear those who will be affected.”-1071
2. Bi-Metallic Investment Co. v. State Board of Equalization—“involved an
attempt to prevent the Denver Board of Equalization and the Colorado Tax
Commission from increasing the valuation of all taxable property in
Denver without affording a hearing. The Court held that no hearing was
required.”-1071
3. The Court’s reasoning “contains two points: Processes of representation
are a sufficient guarantee of legitimacy, thus serving the same ends as a
hearing; and it would be impracticable to require a hearing for
determinations that affect large numbers of people.”-1071
North American Cold Storage Co. v. City of Chicago—1908
Issue: Whether the absence of a hearing or notice prior to the seizure and destruction of
food allegedly unfit for consumption under a city ordinance constitutes a violation of the
14th Amendment right to procedural due process? NO
Rule: “We are of opinion … that provision for a hearing before seizure and
condemnation and destruction of food which is unwholesome and unfit for use, is not
necessary.”-6
“If a party cannot get his hearing in advance of the seizure and destruction he has the
right to have it afterward, which right may be claimed upon the trial in an action brought
for the destruction of his property, and in that action those who destroyed it can only
successfully defend if the jury shall find the fact of unwholesomeness as claimed by
them.”-6
VI.
Judicial Review, Democracy, and Some Notes on Interpretation
A. “Because they are subject to electoral control, Congress and the President are
generally regarded as more accountable to the citizenry than federal judges,
who have life tenure. In these circumstances, the existence of judicial review
gives rise to a ‘countermajoritarian difficulty.’”-37
B. United States v. Butler—The Court said: “It is sometimes said that the court
assumes a power to overrule or control the action of the people’s
representatives. This is a misconception. [When] an act of Congress is
appropriately challenged in the courts as not conforming to the constitutional
mandate the judicial branch of the Government has only one duty, -- to lay the
article of the Constitution which is invoked beside the statute which is
challenged and to decide whether the latter squares with the former.”-38
C. “Suppose circumstances have changed dramatically since the framers wrote.
How does one understand the framers’ ‘intent’ with respect to (i) a new
problem or (ii) an old problem in dramatically changed circumstances?”-41
D. “There is general agreement that the text of the Constitution is binding on
courts. But what constraints does it impose?”-43
E. “Sometimes the scope of a provision is determined in part by reference to
tradition and the Court’s own precedents.”-44
F. “An open-ended constitutional provision might be given content by referring
to prevailing morality or to some form of consensus.”-44
G. “A separate effort to respond to the countermajoritarian difficulty suggests
that in reality, there is no such difficulty, since the role of the court is to
promote, rather than to undermine, democracy, properly understood. This
effort in turn takes several forms.”-45
VII. Equality and the Constitution
A. Race and the Constitution
15
1. Slavery and the Constitution
a. “Three provisions in the original constitution recognize and arguably
legitimate slavery. Article I, section 9 prohibits Congress from
outlawing the slave trade until 1808. Article I, section 2 requires
apportionment of legislators on the basis of the ‘whole number of free
persons’ in each state and ‘three fifths of all other persons.’ Article
IV, section 2, clause 3 requires states to ‘[deliver] up’ escaped slaves
and prohibits states from discharging them.”-496
State v. Post—1845
Issue: Whether, under the constitution and laws of the State of New Jersey, slavery has
been abolished? NO
Rule: None.
b. Constitutional Attacks on Slavery
i.
Post and the problem of judicial power
ii.
Constitutional attacks on slavery
A. Alvan Stewart, the abolitionist lawyer who argued Post,
“claimed that slavery deprived slaves of life, liberty, and
property in violation of the due process clause of the fifth
amendment, that it deprived New Jersey of a republican form
of government in violation of article IV, that it violated the
preamble of the Constitution, and that it violated the Treaty of
Ghent, which outlawed the slave trade…. The Court
apparently thought these arguments too flimsy to merit a
response.”-500
iii.
Judicial Support for Slavery
A. “Most of the federal litigation centered on the fugitive slave
clause, article IV, section 2, which required the return of
escaped slaves.”-500
B. Prigg v. Pennsylvania—1842—“The Court … held
unconstitutional a Pennsylvania statute prohibiting any person
from removing blacks from the state by force or violence with
the intention of detaining them as slaves. The Court explained
that article IV, section 2 ‘contemplates the existence of a
positive, unqualified right on the part of the owner of the slave,
which no state law or regulation can in any way qualify,
regulate, control, or restrain.’”-500
C. “The Court further held that article IV, section 2 implicitly
vested Congress with the power to assist owners in securing the
return of escaped slaves, that Congress had exercised that
power by enacting the Fugitive Slave Act of 1793, that this
national power was exclusive, and that any state laws
regulating the means by which slaves were to be delivered up
were unconstitutional.”-501
Dred Scott v. Sandford—1857
Issue: Whether “the class of persons described in the plea in abatement compose a
portion of this people, and are constituent members of this sovereignty?” NO
Whether “Congress was authorized to pass this law under any of the power granted to it
by the Constitution”? NO
Whether a slave of African descent can become a citizen of a State or of the United States
by residing in free territory, thus being entitled to all of the privileges, rights, and
immunities guaranteed by the United States Constitution? NO
16
Holding: “We think they are not, and that they are not included, and were not intended to
be included, under the word ‘citizens’ in the Constitution, and can therefore claim none
of the rights and privileges which that instrument provides for and secures to citizens of
the United States.”-502
“[I]t is the opinion of the court that the act of Congress which prohibited a citizen from
holding and owning property of this kind in the territory of the United States north of the
line therein mentioned, is not warranted by the Constitution, and is therefore void; and
that neither Dred Scott himself, nor any of his family, were made free by being carried
into this territory; even if they had been carried there by the owner, with the intention of
becoming a permanent resident.”-504
Rule: African slaves were not intended to be included as citizens in the words of the U.S.
Constitution, and therefore cannot be accorded the right to become citizens.
2. Reconstruction and Retreat
a. “Although the first eight amendments to the Constitution protected
individual rights against federal intrusion, the Supreme Court held in
1833 that they did not limit state power. See Barron v. Mayor City
Council of Baltimore—1833
b. “By the close of the Civil War, it was clear that this strategy required
some modification. The southern states could not be depended on to
protect the rights of the newly freed slaves, and it could hardly be
maintained that the main threat to those rights came from the federal
government.”-506
3. The Work of the Reconstruction Congress
a. “On December 31, 1865, the thirteenth amendment became part of the
Constitution. The amendment ratified and extended President
Lincoln’s Emancipation Proclamation by prohibiting slavery and
involuntary servitude throughout the United States.”-506
b. “The bonds of slavery were quickly replaced by ‘Black Codes’ in
many southern states.”-506
c. “Congress attempted to make the thirteenth amendment effective
against the challenge posed by the Black Codes through enactment of
the Civil Rights Act of 1866. Passed over President Johnson’s veto,
the act declared that ‘all persons born in the United States and not
subject to any foreign power, excluding Indians not taxed,’ were
citizens of the United States. Such citizens were granted the same
right to make and enforce contracts, sue, give evidence, acquire
property and ‘to full and equal benefit of all laws and proceedings for
the security of person and property as is enjoyed by white citizens.’
Moreover, all citizens were to be ‘subject to like punishment, pains,
and penalties, and to none other, any law, statute, ordinance, regulation
or custom to the contrary notwithstanding.”-507
d. “on February 13 and 26, 1866, Congressman Bingham introduced the
first version of what was to become the fourteenth amendment. It
stated that ‘[t]he Congress shall have the power to make all laws which
shall be necessary and proper to secure to the citizens of each State all
privileges and immunities of citizens in the several States, and to all
persons in the several States equal protection in the rights of life,
liberty, and property.”-507 “The amendment was ratified on July 28,
1868.”-507
e. “Two years later, on March 30, 1870, Congress added the last of the
Reconstruction amendments, which prohibited both the United States
17
and any state from denying or abridging the right to vote on account of
race, color, or previous condition of servitude.”-507
f. “In 1870, Congress reenacted the 1866 Civil Rights Act and added
criminal penalties for deprivation of rights under the law. In the same
year, Congress passed the Enforcement Act, which attached criminal
penalties to interference with the right to vote and made it a felony to
conspire to injure, oppress, threaten, or intimidate any citizen with the
intent to prevent or hinder the free exercise of any right granted by the
Constitution or laws of the United States. One year later Congress
enacted the Ku Klux Klan Act, which criminally punished conspiracies
to deprive a class of persons of equal protection of the laws and
created civil liability for state officials who deprived persons of federal
rights under the color of state laws. Finally in 1875 Congress enacted
a sweeping public accommodations law requiring all inns, public
conveyances, theaters, and other places of public amusement to admit
all persons regardless of race, color, or previous condition of
servitude.”-508
4. The Judicial Reaction
a. The Slaughter House Cases and the reassertion of federalism
constraints
i.
“The Supreme Court’s first opportunity to assess the impact of
the Reconstruction amendments came in the Slaughter House
Cases … in which the Court rejected a thirteenth and
fourteenth amendment attack on a Louisiana statute granting to
a single company the right to engage in the slaughterhouse
business within an area including the City of New Orleans.”
ii.
“The Court emphasized that it did not follow from this purpose
that the framers of the amendments intended to transfer general
responsibility for protection of civil rights from the states to the
federal government. Such a broad reading of the amendments
would ‘degrade the State governments by subjecting them to
the control of Congress, in the exercise of powers heretofore
universally conceded to them of the most ordinary and
fundamental character’ and ‘radically [change] the whole
theory of the relations of the State and Federal governments to
each other and both of these governments to the people.”-508
b. Federalism and protection of the newly freed slaves
i.
“on the one hand, the fourteenth amendment privileges and
immunities clause has never recovered from the narrow reading
it received in Slaughter House and remains virtually a dead
letter, although the modern Court’s expansive reading of the
equal protection and due process clauses has largely mooted
the issue.”-509
ii.
“the Court relied on the fourteenth amendment to reverse the
murder conviction of a black tried before a jury from which
members of his race were excluded by law. The Court was
careful to note that the fourteenth amendment erected no
general barrier against discrimination in jury selection.”-509
c. Judicial invalidation of civil rights legislation
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
18
“the Court’s narrow interpretation of the Reconstruction
amendments would eventually obstruct federal efforts to
protect newly freed slaves.”-509
United States v. Reese—1875—This case involved “a federal
criminal prosecution against two Kentucky municipal elections
inspectors who were charged with refusing to permit a black to
vote. The defendants were charged with violating two of the
voting rights sections of the 1870 Enforcement Act. Because
the relevant sections of the act were not expressly limited to
actions that were racially motivated, the Court held that they
exceeded Congress’s power under the fifteenth amendment,
and that the prosecution therefore could not proceed.”-509
United States v. Cruikshank—1875—The Court reversed the
convictions of 3 defendants charged with violating the
Enforcement Act. The Court held that because “there was no
claim that the blacks had assembled to petition the federal
government, the prosecution had not alleged that the rights of
national citizenship were violated, and punishment of the
killings therefore exceeded Congress’s power under the
fourteenth amendment. Nor could the prosecution proceed on
the theory that the due process rights of blacks were violated,
since ‘the fourteenth amendment prohibits a State from
depriving any person of life, liberty, or property, without due
process of law; but this adds nothing to the rights of one citizen
as against another.’”-510
United States v. Harris—1882—“the Court reached a similar
result with respect to the criminal conspiracy sections of the Ku
Klux Klan Act of 1871. The Court held that, because the
fourteenth amendment did not reach purely private conduct,
Congress lacked the power to punish members of a lynch mob
who had seized prisoners held by a state deputy sheriff.”-510
The Civil Rights Cases—1883—The Court invalidated the
public accommodation sections of the 1875 Civil Rights Act.
“The Court … denied that either the thirteenth or the fourteenth
amendment conferred on Congress the power to prohibit
private discrimination in public accommodations.”-510
“The Court held that ‘[t]he first section of the Fourteenth
Amendment [is] prohibitory in its character, and prohibitory
upon the States. [It] is State action of a particular character
that is prohibited. Individual invasion of individual rights is
not the subject matter of the amendment.”-510
“In the Court’s view, ‘an individual cannot deprive a man of
his [rights]; he may, by force or fraud, interfere with the
enjoyment of the right in a particular case; [but] unless
protected in these wrongful acts by some shield of State law or
State authority, he cannot destroy or injure the right; he will
only render himself amenable to satisfaction or punishment.’”
“In cases where racial discrimination affected federal rights,
the Court upheld Reconstruction legislation.”-511
Ex parte Yarbrough—1884—“the Court sustained a conviction
of a private individual under the Ku Klux Klan Act of 1871 for
19
using violence against blacks voting in a congressional
election.”-511
x.
Logan v. United States—1892—“the Court held that Congress
had the power to punish conspiracies to injure persons in
custody of a U.S. marshal.”-511
xi.
J. Williamson, The Crucible of Race—“Radicalism appeared in
strength in 1889 and spread rapidly through the South. The
core of the Radical mentality was the concept that Negroes,
freed from the restraining influences of slavery, were rapidly
‘retrogressing’ toward their natural state of bestiality…. The
assault upon idealized Southern womanhood by the ‘n*&&$@
beast’ was the keen cutting edge of Radicalism…. Two of the
tools used to reduce and, hence, to manage blacks were
disenfranchisement and segregation….”-512
Plessy v. Ferguson—1896
Issue: Whether the Louisiana statute of 1890, that provided for “equal but separate
accommodations” on passenger trains is in violation of the 14th Amendment, which
prohibits the “making or enforcing [of] any law which shall abridge the privileges or
immunities of citizens of the United States”? NO
Whether the Louisiana statute of 1890, that provided for “equal but separate
accommodations” on passenger trains is in violation of the 13th Amendment, which
abolished slavery? NO
Whether “the statute of Louisiana is a reasonable regulation…”? YES
Rule: States are free to enact legislation for which there is a reasonable justification.
“In determining the question of reasonableness, it is at liberty to act with reference
to the established usages, customs, and traditions of the people, and with a view to
the promotion of their comfort, and the preservation of the public peace and good
order.”-513
5. Separate but Equal
a. Equality of separate facilities
i.
Cumming v. Board of Education—1899—Petitioners were
black taxpayers and parents challenging their tax assessment on
the ground that the money was used to support a whites only
high school. “In an opinion by Justice Harlan, … the Court
rejected the challenge. The basis for and scope of the Court’s
holding are not altogether clear. The Court thought it
significant that ‘the substantial relief asked is an injunction that
would either impair the efficiency of the high school provided
for white children or compel the Board to close it.’”-516
ii.
“The Court made clear … that local authorities were to be
accorded substantial discretion in allocating funds between
white and black facilities, and that ‘any interference on the part
of Federal authority with the management of such schools
cannot be justified except in the case of a clear and
unmistakable disregard of rights secured by the supreme law of
the land.’”-516
iii.
McCabe v. Atchison, Topeka & Santa Fe Railway—1914—In
this case, an Oklahoma statute required railroads to provide
separate but equal coach facilities, and authorized railroads to
haul only white only cars. “The state justified this latter
provision on the ground that the minimal black demand for
20
sleeping and dining facilities made it impractical to haul
separate cars for this purpose. The Court found this argument
‘without merit’… [and found that] It is the individual who is
entitled to the equal protection of the laws, and if he is
denied by a common carrier, acting in the matter under the
authority of a state law, a facility of convenience in the course
of his journey which under substantially the same
circumstances is furnished to another traveler, he may properly
complain that his constitutional privilege has been invaded.”
iv.
Berea College v. Kentucky—1908—“The college, a private
institution, was convicted under a statute making it a crime to
operate a school ‘where persons of the white and negro races
are both received as pupils for instruction.’ The Court affirmed
the conviction, but on the ground that the college was a
corporation that did not have all the rights of individuals.”-517
v.
Buchanan v. Warley—1917—“the Court held that a statute
prohibiting whites from occupying a residence in a block
where the majority of houses were occupied by blacks, and
vice versa, violated the fourteenth amendment.”-517
vi.
“the Court believed that ‘such legislation must have its
limitations,’ and that these legitimate objectives could not ‘be
accomplished by laws or ordinances which deny rights created
or protected by the Federal Constitution.’ The Court
distinguished Plessy and Berea College: ‘In none of them was
he denied the right to use, control, or dispose of his property, as
in this case.’”-517
6. The Attack on Jim Crow
a. “From 1938, when the NAACP won its first Supreme Court victory in
a school desegregation case, until the 1960’s, when a political
consensus favoring civil rights again emerged, the courts stood
virtually alone in articulating and enforcing the law of race
discrimination.”-518
Missouri Ex Rel. Gaines v. Canada—1938
Issue: Whether a state that legally requires separate education for blacks and whites may
overcome the apparent inequality by authorizing funding for black students to attend out
of state schools that will admit a black law student? NO
Rule: “Here, petitioner’s right was a personal one. It was as an individual that he was
entitled to the equal protection of the laws, and the State was bound to furnish him within
its borders facilities for legal education substantially equal to those which the State there
afforded for persons of the white race, whether or not other negroes sought the same
opportunity.”-520
7. Separate but Equal Between Gaines and Brown
a. Cumming v. Board of Education—“The Court argued that state
officials should be left free to make their own determinations of
equality as long as they acted in good faith and their determinations
were reasonable.”-521
b. “The Gaines majority, however, assumed without discussion that it
must make a de novo determination of equality.”-521
c. The Court decided 3 school desegregation cases between Gaines and
Brown:
21
i.
Sipuel v. Board of Regents—1948—“petitioner applied to the
only state law school and was denied admission because of her
race. In a unanimous, four-paragraph per curiam opinion
issued only four days after oral argument, the Court reaffirmed
Gaines and held that the state was constitutionally obliged to
provide her with an equal legal education.”-521 On remand,
the lower court permitted the state to establish an all black
school as an option, petitioner sought mandamus in the
Supreme Court, and in Fisher v. Hurst—1948, the Court denied
relief. The Court “noted that ‘the petition for certiorari in
[Sipuel] did not present the issue whether a state might not
satisfy the equal protection clause of the Fourteenth
Amendment by establishing a separate school for Negroes.’”
ii.
Sweatt v. Painter—1950—“the Court did what it had declined
to do in Fisher – order the admission of a black student to a
white school…. The Court held that the facility [hastily built
to accommodate only blacks] was not in fact equal, and that
Sweatt therefore could not be denied admission to the white
school.”-522
iii.
McLaurin v. Oklahoma—1950—“In McLaurin, the state, under
the pressure of litigation, admitted petitioner to the previously
all-white University of Oklahoma Department of Education.
However, McLaurin was made to sit in a special seat in the
classroom reserved for blacks, could not eat with other students
in the cafeteria, and was given a special table in the library….
The Court held the restrictions unconstitutional because they
‘[impaired] and [inhibited] his ability to study, to engage in
discussions and exchange views with other students, and, in
general, to learn his profession.’”-523
Brown v. Board of Education of Topeka (Brown I)—1954
Issue: Whether the segregation of children in public schools on the basis of race, despite
apparent equality of physical, tangible factors, deprives the minority children of equal
educational opportunities? YES
Rule: Separate educational facilities are inherently unequal.
d. Justifications and Explanations for Brown
i.
The legislative history of the equal protection clause is
consistent with the position that segregated education is
unconstitutional
A. “In Bolling v. Sharpe (1954), … the Court unanimously held
school segregation in the District of Columbia unconstitutional.
Since the fourteenth amendment applies only to the states, the
Court could not rely on the equal protection clause…. [t]he
Court held that ‘discrimination may be so unjustifiable as to be
violative of [the due process clause of the Fifth Amendment].
Moreover, ‘in view of our decision that the Constitution
prohibits the States from maintaining racially segregated public
schools, it would be unthinkable that the same Constitution
would impose a lesser duty on the Federal Government.”-526
A. “In a series of terse per curiam opinions handed down in
the years immediately after Brown, the Court held
unconstitutional segregation in a wide variety of other
22
public facilities. See, e.g., Gayle v. Browder, … (buses);
Holmes v. City of Atlanta, … (municipal golf courses);
Mayor of Baltimore v. Dawson, … (public beaches and
bathhouses).”-526
ii.
“to separate [minority] children from others of similar age and
qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.”
A. “In Bolling, the Court observed that ‘segregation in public
education is not reasonably related to any proper
governmental objective, and thus it imposes on Negro
children [a] burden that constitutes an arbitrary deprivation
of their liberty.”-527
iii.
“Segregation with the sanction of law [has] a tendency to
[retard] the educational and mental development of Negro
children.”
A. “it appears that [virtually everyone who has examined the
question now agrees that the Court erred [in relying upon the
social science data]. The proffered evidence was
methodologically unsound.”-527
B. Justice Thomas, in Jenkins v. Missouri (1995), stated:
“whether state actors have engaged in intentional
discrimination—[is] the critical inquiry for ascertaining
violations of the Equal Protection Clause.”-527
C. Thomas went on: “Regardless of the relative quality of the
schools, segregation violated the Constitution because the State
classified students based on their race…. ‘Racial isolation’
itself is not a harm; only state enforced segregation is.”-528
Brown v. Board of Education of Topeka (Brown II)—1955
Issue: How are the nondiscriminatory procedures to be implemented in the school
systems affected by the prior judgment?
Holding: “The schools are to “admit to public schools on a racially nondiscriminatory
basis with all deliberate speed the parties to these cases.”
e. All Deliberate Speed
i.
“Brown II was followed by an extended period of ‘massive
resistance’ during which there was virtually no actual
desegregation in the South.”-532
ii.
Burt, Brown’s Reflection—“In the two Brown decisions, the
Justices [proclaimed] the racial caste system immoral but did
not purport to force this judgment on others; instead, they
appealed to others’ legal and moral capacities to reach
independent judgments and at the same time emphatically
urged them to reach the same conclusion regarding the evil
caste system. This was not a preference for expediency over
principle—it was exactly the opposite.”-532
f. Southern Desegregation
i.
Tokenism and massive resistance
A. “most southern members of Congress signed the ‘Southern
Manifesto’ asserting the illegitimacy of Brown and the right of
the states to ignore the decision.”-533
B.
ii.
A.
B.
C.
iii.
A.
B.
C.
D.
23
“A few communities took the extreme measure of closing their
public schools altogether to avoid desegregation.”-533
The early judicial response
“In one widely quoted opinion written shortly after Brown, a
district court held that Brown did not require ‘the states [to]
mix persons of different races in the schools. [What] it has
decided [is] that a state may not deny any person on account of
race the right to attend any school that it maintains.”-534
“Overall, the pace of desegregation was painfully slow.”
Cooper v. Aaron—This case involved efforts to integrate
Central High School in Little Rock Arkansas. Governor
Orville Faubus sought to prevent the 9 Black children from
enrolling. President Eisenhower dispatched troops to enforce
federal law. In February, after the children had been attending
for just over half the year, the school board sought permission
to terminate the desegregation plan because of extreme public
hostility. “[T]he Supreme Court affirmed the court of appeals
and ordered desegregation to proceed. The Court held that ‘the
constitutional rights of respondents are not to be sacrificed or
yielded to the violence and disorder which have followed upon
the actions of the Governor and Legislature. [Law] and order
are not here to be preserved by depriving the Negro children of
their constitutional rights.”-534
The end of deliberate speed
“It was not until the early 1960s that the Court began to
intervene more effectively and systematically to oversee the
desegregation process.”-535
Watson v. Memphis—This case involved segregated municipal
recreation facilities. “The Court held the Brown II ‘all
deliberate speed’ formulation inapplicable to such facilities and
ordered immediate desegregation. Moreover, the Court hinted
that its tolerance for ‘deliberate speed’ in the school context
might be coming to an end.”-535
Goss v. Board of Education—“the Court invalidated a school
desegregation plan under which students were permitted the
option of ‘one way transfers’ from schools where they were in
a racial minority to those where they enjoyed majority status….
But it stopped short of questioning ‘freedom of choice’ plans
permitting transfers without regard to race, noting that they
posed ‘an entirely different case’ because students ‘could then
at their option [choose], entirely free of any imposed racial
considerations, to remain in the school of their zone or to
transfer to another.’”-535
Griffin v. County School Board—The Court considered the
issue of school closings to avoid integration. “the Court
conceded that a state is not always constitutionally required to
provide the same services to citizens in different communities.
Nonetheless, the closing of Prince Edward schools while other
state schools remained open violated the equal protection
clause…. ‘Whatever nonracial grounds might support a State’s
allowing a county to abandon public schools, the object must
24
be a constitutional one, and grounds of race and opposition to
desegregation do not qualify as constitutional.”-536
E. Also in that case, “the Supreme Court … held that the Court
also had the power to order the reopening of the schools, even
if no tuition benefits were provided.”-536
F. Palmer v. Thompson—“the Court upheld the decision of the
Jackson, Mississippi, City Council to close its municipal
swimming pools after they were ordered desegregated.”-536
G. Bush v. Orleans Parish School Board—“the Supreme Court
summarily affirmed the invalidation of a Louisiana statute
authorizing the governor to close any school ordered to
integrate…. More important, the laws struck down in Bush
were part of an elaborate package of legislation through which
Louisiana sought to maintain public education on a segregated
basis, not to end public education.”-536
H. The Civil Rights Act of 1964 “prohibited racial discrimination
in places of public accommodation, [and] the act also had
important provisions dealing with school desegregation. Title
IV authorized the Attorney General to institute desegregation
suits in the name of the United States, thereby ending the need
to rely on individual lawsuits by private plaintiffs. More
significantly, Title VI established a parallel desegregation
mechanism that avoided the necessity of lawsuits altogether.
Racial discrimination was prohibited in any program receiving
federal financial assistance, and federal agencies were
authorized to issue regulations enforcing this prohibition and to
terminate funding upon noncompliance. Pursuant to this
authority, the Department of Health, Education, and Welfare
promulgated … revised guidelines … [that] provided, inter
alia, that attendance zones could not be drawn to ‘maintain
what is essentially a dual school structure,’ and that freedom of
choice plans would be ‘[scrutinized] with special care’ and
judged by whether ‘minority group students have in fact
transferred from segregated schools.’”-537
I. Green v. County School Board—“the Court invalidated a
‘freedom of choice’ plan that the district had adopted to avoid
loss of federal funds. The district had only two schools, one of
which had been all black and the other all white prior to
Brown…. [e]ach pupil was required to choose between the two
schools on entering first and eighth grades…. After the plan
had been in effect for three years, 85 percent of the black
children and none of the white children were attending the
black school…. A unanimous Court held that this freedom of
choice plan could not ‘be accepted as a sufficient step to
‘effectuate a transition’ to a unitary school system….
[f]reedom of choice had to be judged by its effectiveness as a
means to achieve a unitary school system. The ultimate test
was whether ‘the plan [promises] realistically to convert
promptly to a system without a ‘white’ school and a ‘Negro’
school, but just schools.’”-538
Swann v. Charlotte-Mecklenburg Board of Education—1971
25
Issue: Whether mathematical ratios may be used in assessing the need for and the form of remedial
measures for desegregation?
Whether the gerrymandering of school districts represents a permissible remedy to achieve
desegregation?
Whether the busing of students represents a permissible remedy to achieve
desegregation?
Holding: The use of mathematical ratios is permissible as “a starting point in the process of shaping a
remedy, rather than [as] an inflexible requirement.”-539
“The pairing, clustering, and grouping of schools and the creation of districts that ‘are neither
compact nor contiguous’ were permissible means of achieving desegregation.”-540
“’[the] scope of permissible transportation of students as [part] of a remedial decree [by]
the nature of the problem [cannot] be defined with precision.’ On the other hand, the
Court upheld the use of bus transportation ‘as one tool of school desegregation.’ On the
other, it noted that [an] objection to transportation of students may have validity when the
time or distance of travel is so great as to either risk the health of the children or
significantly impinge on the educational process.’”-540
Rule: “Judicial powers may be exercised only on the basis of a constitutional violation. Remedial
judicial authority does not put judges automatically in the shoes of school authorities whose powers
are plenary.”-539
“the nature of the violation determines the scope of the remedy.”-539
“in a system with a history of segregation the need for remedial criteria of sufficient
specificity to assure a school authority’s compliance with its constitutional duty warrants
a presumption against schools that are substantially disproportionate in their racial
composition.”-539
Capacchione v. Charlotte-Mecklenburg Schs.—1999
Issue: Whether “the Defendant CMS has … creat[ed] a ‘unitary school system,’” thus
precluding the future application of the desegregation order originally enforced and
affirmed in Swann?
Holding: Yes. “[T]he Court is convinced that CMS, to the extent reasonably practicable,
has complied with the thirty year old desegregation order in good faith; that racial
imbalances existing in schools today are no longer vestiges of the dual system; and that it
is unlikely that the school board will return to an intentionally segregative system. For
the reasons set forth below, the Court finds that CMS has achieved unitary status in all
respects and therefore dissolves the desegregation order. The Court also finds that certain
CMS student assignment practices went beyond constitutionally permissible bounds.
Finally, to the extent that the continued use of certain race based policies would violate
the commands of the Equal Protection Clause absent a remedial purpose, such practices
by CMS are hereinafter prohibited.”-4
g. Swann and the Collapse of Southern Resistance
i. “A process oriented view insists merely that school boards make
assignments on a basis other than race. A result oriented view
insists that school boards make assignments on a basis that in fact
produces integration.”-541
iii.
Davis v. School Commissioners of Mobile County—“the Court
was even more emphatic in endorsing result oriented remedies:
‘[Neighborhood schools are not] per se adequate to meet the
remedial responsibilities of local boards. [A] district court may
and should consider the use of all available techniques
including restructuring of attendance zones and both
contiguous and noncontiguous attendance zones. The measure
of any desegregation plan is its effectivness.”-541
26
iv.
North Carolina State Board of Education v. Swann—“the
Court struck down a North Carolina statute providing that no
student shall be assigned or compelled to attend any school on
account of race or for the purpose of creating a balance or ratio
of race. The Court held that this requirement, ‘against the
background of segregation, would render illusory the promise
of [Brown]. [To] forbid, at this state, all assignments made on
the basis of race would deprive school authorities of the one
tool absolutely essential to fulfillment of their constitutional
obligation to eliminate existing dual school systems.”-541
h. Swann as the end of an era
i. Northern Desegregation
Keyes v. School District No. 1, Denver, Colo.—1973
Issue: Whether the existence of segregative school board action in a significant portion
of the school board system is sufficient to permit broader remedial measures extending to
areas of the school district not originally questioned? YES
Rule: “proof of unlawful segregation in a substantial portion of a district [is] sufficient to support a
finding of the existence of a dual school system.”-543
“Moreover, even if the effect of discriminatory action in a part of the system was isolated, it might
still serve as the evidentiary predicate for systemwide relief. This was so because ‘a finding of
intentionally segregative school board actions in a meaningful portion of a school system, creates [a]
prima facie case of unlawful segregative design on the part of school authorities, and shifts to those
authorities the burden of proving that other segregated schools within the system are not also the
result of intentionally segregative actions.”-543
“plaintiffs [bear] the burden of establishing that segregated schools had been brought
about or maintained by intentional state action. However, once such a showing [is]made
with regard to a substantial portion of the system, plaintiffs need not bear the additional
burden of showing deliberate segregation as to each school within the school system.”
j. The end of an era
i.
“modern school desegregation cases have primarily concerned
the limits on the equitable power of district courts and the
evidentiary predicate necessary for formerly segregated
systems to establish ‘unitary’ status. At the same time, the
modern Court has used the rhetoric of Brown to attack race
specific ‘affirmative action’ programs allegedly designed to
enhance the education, employment prospects, and political
power of African Americans.”-546
k. Modern Limits on the Duty to Desegregate
i.
“When President Nixon assumed office, the Justice Department
for the first time since 1954 intervened on behalf of a southern
school board to seek additional time for desegregation.
Although the Supreme Court emphatically rejected the request,
… the episode nonetheless marked a significant turning point
away from the alliance that produced change in the 1960s.”
ii.
“After Swann, Congress enacted legislation purporting to limit
the use of busing as a remedy for desegregation. The
Education Amendments of 1972, 20 U.S.C. §§ 1651-1656,
prohibited the appropriation of federal funds for transportation
of students to achieve racial balance. Moreover, federal
agencies were prohibited from requiring states to use funds for
this purpose unless constitutionally required…. In 1974,
27
Congress went further and prohibited any ‘court, department,
or agency of the United States [from ordering] transportation of
any student to a school other than the school closest or next
closest to his place of residence which provides the appropriate
grade level, and type of education for such student. Equal
Education Opportunities Act of 1974, 20 U.S.C. § 1714.”
iii.
“courts interpreted the 1972 legislation as applicable only to
efforts to remedy de facto segregation.”-547
l. White Flight
i.
“In many jurisdictions, large numbers of white students
abandoned public education, leaving the schools as segregated
as ever.”-548
m. The Court’s Response
i.
“In Monroe v. Board of Commissioners, … the school board
defended its ‘free transfer’ plan on the ground that it was
necessary to prevent whites from leaving the system altogether.
A unanimous Court rejected the argument, citing Brown II for
the proposition that ‘the vitality of these constitutional
principles cannot be allowed to yield simply because of
disagreement with them.”-548
ii.
“Whether justified or not, the Court … began to restrict the
scope of constitutionally mandated desegregation.”-548
n. Interdistrict Relief
i.
Milliken v. Bradley—“the Court held that federal courts lack
the power to impose interdistrict remedies for school
segregation absent an interdistrict violation or interdistrict
effects. After a lengthy trial, the district court found that the
Detroit schools had been deliberately segregated, and that any
Detroit only remedy ‘would make the Detroit school system
more identifiably black [thereby] increasing the flight of whites
from the city and the system.’ Consequently, the court ordered
a desegregation plan encompassing fifty three suburban school
districts surrounding Detroit. The court of appeals affirmed
after noting that ‘any less comprehensive [solution would]
result in an all black school system immediately surrounded by
practically all white suburban school systems, with an
overwhelmingly white majority population in the local
metropolitan area…. The Court rejected the ‘notion that school
district lines may be casually ignored or treated as a mere
administrative convenience…. To justify interdistrict relief, ‘it
must be shown that racially discriminatory acts of the state or
local school districts, or of a single school district have been a
substantial cause of interdistrict segregation…. But without an
interdistrict violation and interdistrict effect, there is no
constitutional wrong calling for an interdistrict remedy.’”-549
ii.
“In a dissenting opinion that was joined by Justices Douglas,
Brennan, and White, Justice Marshall complained that the
Court had rendered the district judge ‘powerless to require the
State to remedy its constitutional violation in any meaningful
fashion. Ironically purporting to base its result on the principle
that the scope of the remedy in a desegregation case should be
28
determined by the nature and extent of the constitutional
violation, the Court’s answer is to provide no remedy at all for
the violation proved in this case, thereby guaranteeing that
Negro children in Detroit will receive the same separate and
inherently unequal education in the future as they have been
unconstitutionally afforded in the past.’”-549
iii.
Hills v. Gautreaux—“a unanimous Court affirmed the power of
a district judge to order the U.S. Department of Housing and
Urban Development to take action outside the Chicago city
limits to remedy discriminatory site selection for public
housing that had occurred only within Chicago…. The district
court’s decree in Milliken I was impermissible ‘not because it
envisioned relief against a wrongdoer extending beyond the
city in which the violation occurred but because it
contemplated a judicial decree restructuring the operation of
local governmental entities that were not implicated in any
constitutional violation.”-550
o. Intradistrict remediation
i.
“In Milliken v. Bradley (Milliken II), the Supreme Court …
rejected the notion that desegregation remedies were limited to
pupil assignment and held that a district judge could order the
expenditure of state funds for remedial education as part of an
effort to return victims of unconstitutional conduct to the
position that they would have enjoyed but for the violation.”
ii.
Missouri v. Jenkins—“a district judge ordered a sweeping
remedy designed to create ‘magnet schools’ that would attract
white children into the district. In order to fund the program,
the court ordered that the property tax levy within the school
district be raised by almost 100 percent for the next fiscal
year…. [t]he Supreme Court limited its review to the
legitimacy of the judicially imposed tax increase and assumed
without deciding that the underlying remedy was within the
district court’s powers…. [t]he Court … held that the district
judge had abused his discretion by ordering the tax increase.
The Court went on to hold, however, that the Court could order
a local government body to raise its own taxes, even in excess
of the limit set by state law.”-550
iii.
In Jenkins II, the Court “substantially restricted the power of
district courts to order Milliken II type remedies. At issue was
a district court order mandating salary increases for
instructional and non-instructional staff within the school
district.”-550
iv.
The Court, in denying enforcement of the order, said the
“District Court has devised a remedy to accomplish indirectly
what it admittedly lacks the remedial authority to mandate
directly: the interdistrict transfer of students.”-551
p. Re-segregation and ‘unitary’ status
i.
“In Pasadena Board of Education v. Spangler, … the Court …
disapproved a lower court order requiring annual readjustments
of school boundary lines to ensure that no school had a
majority of minority pupils.” The Court said, in essence, that
29
“once the district implemented a racially neutral student
assignment plan, the district court’s remedial powers were
exhausted.”-552
ii.
Board of Education of Oklahoma City Public Schools v.
Dowell—The Court held “A finding by the District Court that
the Oklahoma City School District was being operated in
compliance with the commands of the Equal Protection Clause
and that it was unlikely that the school board would return to
its former ways, would be a finding that the purposes of the
desegregation litigation had been fully achieved. No additional
showing of ‘grievous wrong evoked by new and unforeseen
conditions’ is required of the school board.”-553
iii.
Freeman v. Pitts—The Court “held that ‘federal courts have
the authority to relinquish supervision and control of school
districts in incremental stages, before full compliance has been
achieved in every area of school operations.’”-553
iv.
Further, the Court held that “Upon a finding that a school
system subject to a court supervised desegregation plan is in
compliance in some, but not all areas, the court in appropriate
cases may return control to the school system in those areas
where compliance has been achieved, limiting further judicial
supervision to operations that are not yet in full compliance
with the court decree.”-554
q. Modern ‘freedom of choice’
i.
Bazemore v. Friday—Prior to 1965, the North Carolina
Agricultural Extension Service operated racially segregated 4H and Homemaker Clubs. In response to the 1964 Civil Rights
Act, the Service discontinued its segregated club policy and
opened any club to any otherwise eligible person. The
petitioners filed suit “seeking to compel the service to take
affirmative measures designed to integrate the clubs. The
district court denied relief after finding that any racial
imbalance was the result of a wholly voluntary choice by
private individuals, and the Supreme Court affirmed.”-555
ii.
United States v. Fordice—Mississippi’s public university
system was segregated by law. By the mid-1980s, more than
99% of the state’s white students were enrolled in one of four
universities. 71% of Black students were enrolled in one of
three other universities, where the racial composition was 9299% Black. In spite of these statistics, the district court refused
to grant relief. “The Supreme Court … reversed. The Court
held that the fact that ‘college attendance is by choice and not
by assignment does not mean that a race neutral admissions
policy cures the constitutional violation of a dual system.’”-555
iii.
The Court went on to hold that “although the fact that ‘an
institution is predominantly white or black does not in itself
make out a constitutional violation,’ the state could not ‘leave
in place policies rooted in its prior officially segregated system
that serve to maintain the racial identifiability of its universities
if those policies can practicably be eliminated without eroding
sound educational policies.”-556
30
r. Affirmative action and remediation outside the educational context
i.
Washington v. Davis—“the Court rejected a challenge to a
qualifying test administered to applicants for positions as
District of Columbia police officers…. [t]he Court … read
Brown and its progeny as supporting the view ‘that the
invidious quality of a law claimed to be racially discriminatory
must ultimately be traced to a racially discriminatory
purpose.”-557
ii.
Washington suggests that the government is not
constitutionally required to engage in race conscious
remediation outside the context of education.”-557
iii.
City of Richmond v. J.A. Croson, Co.—“the Court rejected the
claim that a program setting aside 30 percent of city
subcontracts for ‘Minority Business Enterprises’ was justified
as a means to remedy prior school segregation.”-557
s. Final thoughts on school desegregation and the efficacy of judicial
review
i.
“Segregation remains most intense in large northern cities,
where desegregation was never accomplished. As of 1992,
half the minority students in northeastern schools attended
schools that were over 90 percent minority…. [e]ven in
schools that are formally integrated, the interracial contact
envisioned by Brown has frequently not materialized. Thus, a
significant percentage of blacks attending integrated schools
are assigned to segregated, or substantially segregated,
classrooms…. Indeed, ‘tracking’ schemes and assignment of
black children to special education programs in
disproportionate numbers may have aggravated the sense of
inferiority Brown was designed to combat.”-559
ii.
“Black children are three times more likely than white children
to be placed in classes for the educable mentally retarded and
only one half as likely to be in classes for the gifted and
talented. In high schools, black students are suspended about
three times more often than whites…. The average reading
level of minority seventeen year olds is only slightly higher
than that of white thirteen year olds.”-560
VIII. Equal Protection Methodology: Rational Basis Review
New York City Transit Authority v. Beazer—1979
Issue: Whether the N.Y. Transit Authority’s personnel policy denying employment to all
methadone users constitutes a 14th Amendment violation of Equal Protection Under the
Law? NO
Rule: Where an employer possesses a rational basis for denying employment to classes
of people, such decision will not be questioned, as the “Constitution does not authorize a
federal court to interfere in that policy decision.”-563
A. The Structure of Equal Protection Review
1. The normative appeal of equality
a. Heckler v. Mathews—“Congress amended the Social Security Act to
extend certain benefits to women, but not to men. Concerned that the
courts might invalidate the law on equal protection grounds, Congress
also included a provision stating that, if the law were invalidated,
31
neither men nor women would get the benefit. The Court upheld the
right of a man to challenge the provision.”-567
B. The Means/Ends Nexus
1. “To survive equal protection attack, the different treatment of two classes
of persons must be justified by a relevant difference between them.”-567
2. “A classification is ‘overinclusive’ if it disadvantages some people who
do not in fact threaten the state’s interest. It is ‘underinclusive’ if some
people are not disadvantaged even though they threaten the state’s
interest.”-568
3. “It seems clear therefore that the permissibility of a legislative
generalization must turn on the cost of the generalization as compared to
the cost of a more individualized judgment.”-568
IX.
The Problem of Judicial Review
A. “assessing the validity of statutes subject to equal protection attack.”-570
1. F.S. Royster Guano Co. v. Virginia—The Court said “the classification
must be reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object of the
legislation, so that all persons in similar circumstances shall be treated
alike.”-570
2. New Orleans v Dukes—“the equal protection clause is satisfied so long as
the classification is ‘rationally related to a legitimate state interest.’”-570
3. McGowan v Maryland—“the Court said that ‘the constitutional safeguard
is offended only if the classification rests on grounds wholly irrelevant to
the achievement of the State’s objective…. A statutory discrimination
will not be set aside if any state of facts reasonably may be conceived to
justify it.”-570
Railway Express Agency v. New York—1949
Issue: Whether a N.Y. traffic regulation prohibiting the operation of strictly ‘advertising
vehicles,’ but permitting advertising on delivery vehicles, violates the Equal Protection
Clause? NO
Rule: “It is no requirement of equal protection that all evils of the same genus be
eradicated or none at all.”-571
Williamson v. Lee Optical—1955
Issue: Whether a State may enact a statute that requires an optician to use a prescription
from an ophthalmologist or optometrist before fitting or duplicating eyeglass lenses? Yes
Rule: “[T]he law need not be in every respect logically consistent with its aims to be
constitutional. It is enough that there is an evil at hand for correction, and that it might be
thought that the particular legislative measure was a rational way to correct it.”—837
“Evils in the same field may be of different dimensions and proportions, requiring
different remedies…. The legislature may select one phase of one field and apply a
remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes
not further than the invidious dicrimination.”-572
Minnesota v. Clover Leaf Creamery Co.—1981
Issue: Whether Minnesota may lawfully prohibit the sale of milk in plastic, nonreturnable, nonrefillable containers, but permit such sale in paperboard milk cartons? Yes
Rule: “Where there was evidence before the legislature reasonably supporting the classification,
litigants may not procure invalidation of the legislation merely by tendering evidence in court that the
legislature was mistaken.”-573
“In equal protection analysis, this Court will assume that the objectives articulated by the
legislature are actual purposes of the statute, unless an examination of the circumstances
forces us to conclude that they could not have been a goal of the legislation.”-573 n. 7
32
B. Deferential Review – Abdication or Self Restraint?
1. Evaluating the means/ends nexus: the problem of fact
a. “Whether a particular means is ‘rationally related’ to the legislature’s
ends frequently turns on the answers to antecedent questions of fact.”
2. Evaluating the means/end nexus: the problem of value
a. Bowens v. Owens—“Congress’ adjustments of this complex system of
entitlements necessarily create distinctions among categories of
beneficiaries, a result that could be avoided only by making sweeping
changes in the Act instead of incremental ones. A constitutional rule
that would invalidate Congress’ attempts to proceed cautiously in
awarding increased benefits might deter Congress from making any
increases at all.”-575
b. Marshall, in a dissenting opinion, said: “However under [equal
protection principles] even legislative classifications that result from
compromise must bear at least a rational relationship to a legitimate
state purpose.”-575
c. The DeFunis Case and the Constitutionality of Preferential Treatment
of Racial Minorities—“The real ‘justification’ for most legislation is
simply that it is the product of the constitutionally created political
process of our society.”-576
3. The controversy over nondeferential low level review
a. “The Court has generally been extremely deferential to legislative
judgments when utilizing low level scrutiny. It would be a mistake,
however, to assume that such scrutiny inevitably leads to validation of
the legislative scheme.”-577
City of Cleburne v. Cleburne Living Center—1985
Issue: Whether a city zoning ordinance requiring special permits for group homes for the
mentally retarded, but not for hospitals, homes for the elderly, etc., violates the Equal
Protection Clause? YES
Rule: “To withstand equal protection review, legislation that distinguishes between the
mentally retarded and others must be rationally related to a legitimate governmental
purpose.”-577
U.S. Railroad Retirement Board v. Fritz—1980
Issue: Whether “Congress achieved its purpose in a patently arbitrary or irrational way”
in denying dual benefits to future railroad workers who would have received such
benefits before the 1974 Act? NO
Rule: “Where, as here, there are plausible reasons for Congress’ action, our inquiry is at
an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact
underlay the legislative decision,’ … because this Court has never insisted that a
legislative body articulate its reasons for enacting a statute. This is particularly true
where the legislature must necessarily engage in a process of line drawing.”-580
4. Equal Protection as a Tautology
a. Mental retardation and the rational basis test
i.
Heller v. Doe—“the Court in a five to four decision rejected an
equal protection attack against Kentucky statutes that allowed
for involuntary commitment for the mentally retarded on the
basis of clear and convincing evidence, while mandating a
‘beyond a reasonable doubt’ standard for involuntary
commitment based on mental illness…. [t]he Court held that
Kentucky might rationally conclude that a higher standard of
proof was necessary for mental illness because it was more
33
difficult to diagnose. A higher burden of proof therefore
tended ‘to equalize the risks of an erroneous determination that
the subject of a commitment proceeding has the condition in
question.’”-584
b. Fritz and the effort to escape the tautology
i.
“Two possibilities suggest themselves. First, some statutes
might be invalidated on the theory that, even though they
promote the purpose the legislature actually had, that purpose
is illegitimate…. Second, even if the legislature’s purpose is
legitimate, statutes might nonetheless be invalidated if they are
judged on the basis of that actual purpose rather than on the
basis of post hoc justifications.”-585
U.S. Department of Agriculture v. Moreno—1973
Issue: Whether a 1971 amendment to the Food Stamp Act of 1964 that excludes from the
program households in which one person is unrelated to any other person constitutes a 5th
Amendment violation of the equal protection clause? YES
Rule: “if the constitutional conception of ‘equal protection of the laws’ means anything,
it must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest….”-586
Lyng v. International Union….—1988
Issue: Whether a 1981 amendment to the Food Stamp Act of 1964 that excludes
households with a striking family member or prevents them from receiving an increase in
benefits violates the equal protection clause? NO
Rule: “Congress need not draw a statutory classification to the satisfaction of the most
sharp eyed observers in order to meet the limitations that the Constitution imposes in this
setting.”
C. “Actual Purpose” Review
1. Justifications for ‘actual purpose’ review
2. The state of the law
a. “Justice Rehnquist’s opinion for the Court in Fritz flatly rejects the
notion that the Court should investigate the actual purpose motivating
the legislature. Yet Justice Rehnquist has also insisted that the Court
should not strictly scrutinize a facially neutral statute that has the
effect of disadvantaging a racial minority unless the challenger can
prove that the legislature intended to produce this effect.”-591
b. Nordlinger v. Hahn—“the Court suggested that … it was receptive to
measuring a statute against the legislature’s actual purpose. The case
concerned a portion of the California Constitution, as amended by
Proposition 13, which capped property taxes for current owners at 1
percent of the property’s assessed value as of the 1975-1976 year, with
small annual adjustments for inflation. In contrast, newly purchased
property was assessed at its value at the time of purchase. This
scheme meant that new owners were required to pay dramatically
higher taxes, even though their land might be less valuable than land
owned by pre-1975 purchasers.”-592
c. “Justice Blackmun … rejected an equal protection challenge to these
disparities. Applying rational basis review, the Court held that the
scheme rationally furthered the state’s interest in preserving the
continuity and stability of local neighborhoods and in protecting the
reliance interests of existing owners.”-592
d.
e.
f.
g.
34
Allegheny Pittsburgh Coal Co. v. Webster County—“the Court held
that the equal protection clause invalidated the practice of a county tax
assessor who assessed recently purchased property on the basis of its
purchase price, while making only minor modifications in the
assessments of property that had not been recently sold.”-592
Federal Communications Commission v. Beach Communications,
Inc.—“In the Communications Policy Act of 1984, Congress exempted
from otherwise applicable regulation cable facilities that served
buildings under common ownership or management, so long as they
provided services without using public rights of way. Respondents,
who provided satellite master antenna service to a complex of
buildings that were not under common ownership, claimed that there
was no rational basis for the distinction, and that it therefore violated
the equal protection component of the fifth amendment’s due process
clause.”-593
i.
“the Court emphatically rejected this challenge: ‘In areas of
social and economic policy, a statutory classification that
neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably
conceivable state of facts that could provide rational basis
for the classification.… Because we never require a
legislature to articulate its reasons for enacting a statute, it is
entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually
motivated the legislature.’”-593
ii.
In Justice Stevens’ concurring opinion, he says: “Judicial
review under the ‘conceivable set of facts’ test is tantamount to
no review at all…. In my view, when the actual rationale for
the legislative classification is unclear, we should inquire
whether the classification is rationally related to ‘a legitimate
purpose that we may reasonably presume to have motivated an
impartial legislature.’”-593
Trimble v. Gordon.—In Justice Rehnquist’s dissenting opinion, he
pointed out that “under actual purpose review, ‘litigants who wish to
succeed in invalidating a law [must] have a certain schizophrenia if
they are to be successful in their advocacy: They must first convince
this Court that the legislature had a particular purpose in mind in
enacting the law, and then convince it that the law was not at all suited
to the accomplishment of that purpose.”-594
Schweiker v. Wilson—In Justice Powell’s dissenting opinion, he said
that “In my view, the Court should receive with some skepticism post
hoc hypotheses about legislative purpose, unsupported by the
legislative history. When no indication of legislative purpose appears
other than the current position of [an executive officer,] the Court
should require that the classification bear a ‘fair and substantial
relation’ to the asserted purpose…. This marginally more
demanding scrutiny indirectly would test the plausibility of the
tendered purpose and preserve equal protection review as something
more than ‘a mere tautological recognition of the fact that Congress
did what it intended to do.’”-594
35
I.
Equal Protection Methodology: Heightened Scrutiny and the Problem of Race
A. Race-Specific Classifications that Expressly Disadvantage Racial Minorities
Strauder v. West Virginia—1879
Issue: Whether by the Constitution and laws of the United States, every citizen of the
United States has a right to a trial of an indictment against him by a jury selected and
impanelled without discrimination against his race or color”? YES
Rule: The 14th Amendment provides for “immunity from inequality of legal protection,
either for life, liberty, or property. Any State action that denies this immunity to a
colored man is in conflict with the Constitution.”
Korematsu v. United States—1944
Issue: Whether a military order issued pursuant to an Executive Order requiring all
citizens of Japanese descent to leave their homes and report to “Assembly Centers”
violates the Equal Protection Clause of the 5th Amendment? NO
Rule: “all legal restrictions which curtail the civil rights of a single racial group are immediately
suspect…. 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….”
Military orders issued pursuant to valid Executive Orders that specifically require
individual racial or ethnic groups to leave their homes and report to “Assembly Centers”
are constitutionally valid so long as such orders are also issued pursuant to “pressing
public necessity.”
1. Justifications for Special Scrutiny of Racial Classifications
a. “In 1984, a federal district court overturned Korematsu’s
conviction on the ground that the government had ‘knowingly
withheld information from the courts when they were considering
the critical question of military necessity….’ Four years later,
Congress enacted legislation acknowledging ‘the fundamental
injustice’ of the evacuation and providing for restitution for
individuals forced to leave their homes.”-601
2. Defects in the political process make it especially likely that racial
classifications will be based on ‘hostility’ or inaccurate stereotypes
a. “famous footnote 4 [in United States v. Carolene Products], in
which Justice Stone, writing for the Court, intimated that a more
stringent standard of review might apply to statutes ‘directed at
particular religious or national or racial minorities.’ Justice
Stone argued that stricter review might be appropriate in such
cases because ‘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.’ It followed that ‘correspondingly more
searching judicial inquiry’ was appropriate.”-603
3. The Nature of Special Scrutiny
a. “Palmore v. Sidoti—“The case arose from a custody battle
between Palmore and Sidoti (who were both white) following their
divorce. Originally the trial court awarded custody of the couple’s
three year old daughter to the mother. When the mother remarried
a black man, however, the court determined that the best interests
of the child required that the father be awarded custody. The trial
court ruled that, ‘despite the strides that have been made in
bettering relations between the races in this country, it is inevitable
that [the child] will, if allowed to remain in her present situation
[suffer] from the social stigmatization that is sure to come.’ A
36
unanimous Supreme Court reversed…. [t]he Court … held that the
‘reality of private biases and possible injury they might inflict’
were not ‘permissible considerations. [Private] biases may be
outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.”-610
B. Non-Race Specific Classifications that Disadvantage Racial Minorities
Washington v. Davis—1976
Issue: Whether a written personnel test for police officers that disproportionately limits
the number of Black applicants, but is otherwise neutral on its face, is a violation of the
Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981, and the D.C. Code? NO
Rule: Simply because one group is disproportionately affected, a neutral policy cannot be
automatically construed as discriminatory.
“our cases have not embraced the proposition that a law or other official act, without
regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely
because it has a racially disproportionate impact.”-611
“A statute, otherwise neutral on its face, must not be applied so as invidiously to
discriminate on the basis of race…. Necessarily, an invidious discriminatory purpose
may often be inferred from the totality of the relevant facts, including the fact, if it is true,
that the law bears more heavily on one race than another.”-611
“we have not held that a law, neutral on its face and serving ends otherwise within the
power of government to pursue, is invalid under the Equal Protection Clause simply
because it may affect a greater proportion of one race than of another.”-611
“Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious
racial discrimination forbidden by the Constitution. Standing alone, it 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….”-612
1. Rational basis review of non-race specific classifications
a. Some preliminary questions.
i. “After Washington v. Davis, a court confronted with a
classification that disadvantages a racial minority must first
determine whether it is race specific. If it is, either because it
explicitly draws racial lines or because it is motivated by a racial
purpose, the court will use strict scrutiny and probably invalidate
it. If the classification is non race specific, the court will use
rational basis review despite its disproportionate impact on the
minority group.”-613
b. Disproportionate impact and the theory of passive government
i. “The strict scrutiny doctrine holds that only a showing of a close
fit and an overriding governmental interest can overcome the
inference that the classification was motivated by a desire to harm
the minority.”-616
2. Heightened scrutiny for improperly motivated classifications
a. “Discriminatory administration
1. Yick Wo v. Hopkins—“petitioner was convicted of violating a
local ordinance prohibiting operation of a laundry not located
in a brick or stone building without the consent of the board of
supervisors. He alleged that he and more than 200 other
Chinese nationals had petitioned the board of supervisors for
consent, but that all of the petitions were denied, whereas all
but one of the petitions filed by non-Chinese were granted.
The Court unanimously reversed Yick Wo’s conviction. The
37
Court held that ‘the facts shown establish an administration
directed so exclusively against a particular class of persons as
to warrant and require the conclusion, that, whatever may have
been the intent of the ordinance as adopted, they are applied by
the public authorities charged with their administration, and
thus representing the State itself, with a mind so unequal and
oppressive as to amount to a practical denial by the State of
[equal] protection of the laws.”-617
2. Batson v. Kentucky—“the Court extended these cases to the use
of peremptory challenges by prosecutors to remove individual
jurors on the basis of race. In an opinion by Justice Powell, the
Court held that ‘the Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account of
their race or on the assumption that black jurors as a group will
be unable impartially to consider the State’s case against a
black defendant.’”-617
3. Gomillion v. Lightfoot—“An Alabama statute altered the shape
of the City of Tuskegee from a square to an ‘uncouth twentyeight sided figure.’ Petitioners alleged that the new boundary
lines removed from the city all but four or five of the 400 black
voters, while not removing a single white voter. The Court
held that, if these allegations were proved, the statute infringed
on the right of blacks to vote in violation of the fifteenth
amendment.”-619
4. Hunter v Underwood—“A provision of the Alabama
Constitution, adopted in 1901, disfranchised all persons
convicted of crimes of moral turpitude. A unanimous Court, in
an opinion by Justice Rehnquist, invalidated the provision
because it was partially motivated by the desire to disfranchise
blacks.”-619
5. Palmer v Thompson—“a city council closed municipal
swimming pools following court-ordered integration…. The
Court held that the closing did not violate the equal protection
clause. After observing that ‘no case in this Court has held that
a legislative act may violate equal protection solely because of
the motivations of the men who voted for it,’ the Court
advanced several reasons why investigation of purpose was
improper: ‘First, it is extremely difficult for a court to ascertain
the motivation, or collection of different motivations, that lie
behind a legislative enactment. [Furthermore], there is an
element of futility in a judicial attempt to invalidate a law
because of the bad motives of its supporters. If the law is
struck down for this reason, rather than because of its facial
content or effect, it would presumably be valid as soon as the
legislature or relevant governing body re-passed it for different
reasons.’”-619
b. ‘Discretionary’ decisions
1. Swain v. Alabama—“the defendant claimed that he was denied
equal protection when the prosecutor used his peremptory
challenges to remove all blacks from the jury pool. The Court
held that, even if the prosecutor removed the jurors because of
38
their race, an equal protection claim had not been made out.
‘The essential nature of the peremptory challenge is that it is
one exercised without a reason stated, without inquiry and
without being subject to the court’s control. [To] subject the
prosecutor’s challenge in any particular case to the demands
and traditional standards of the Equal Protection Clause would
entail a radical change in the nature and operation of the
challenge.”-620
2. Mayor of Philadelphia v. Educational Equality League—
“respondents alleged that the Mayor had violated the equal
protection clause by discriminating against blacks in
appointments to the nine-member Educational Nominating
Panel, a body with statutory responsibility for submitting
nominees for the school board to the Mayor. The Court …
labeled the Mayor’s appointment power as ‘discretionary’ and
expressed concern that ‘judicial oversight of discretionary
appointments may interfere with the ability of an elected
official to respond to the mandate of his constituency.’”-620
3. Davis v. Passman—“Davis, a deputy administrative assistant to
Congressman Passman, brought a constitutionally based action
against Passman after he fired her because she was a woman.
The Court held that Davis had asserted a constitutionally
protected right that could be judicially enforced if Passman’s
conduct was not protected by the speech or debate clause of
Article I, section 6….”-621
4. Mt. Healthy City School District Board of Education v.
Doyle—“The district court found that Doyle was not rehired as
a teacher because he had engaged in conduct protected by the
first amendment. Although accepting these findings of fact,
the Supreme Court held that it did not necessarily follow that
he was entitled to reinstatement and back pay.”-621
Village of Arlington Heights v. Metropolitan Housing Development Corp.—1977
Issue: Whether the racially discriminatory impact of the denial of a zoning request is
sufficient, in and of itself, to constitute an equal protection violation? NO
Rule: “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.”-622
There must be a discriminatory purpose behind a decision in order to render it invalid
under the 14th Amendment.
McClesky v. Kemp—1987
Issue: Whether statistically significant evidence of a racially disproportionate death
sentence rate is sufficient to constitute the denial of a Black convicted murderer’s “equal
protection of the laws” in violation of the Equal Protection Clause of the Fourteenth
Amendment? NO
Whether statistically significant evidence of a racially disproportionate death sentence
rate is sufficient to constitute the “cruel and unusual punishment” of a Black convicted
murderer in violation of the Eighth Amendment? NO
Rule: “As legislatures necessarily have wide discretion in the choice of criminal laws and
penalties, and as there were legitimate reasons for the Georgia Legislature to adopt and
maintain capital punishment … we will not infer a discriminatory purpose on the part of
the State of Georgia.”
39
“[A] defendant who alleges an equal protection violation has the burden of proving
‘the existence of purposeful discrimination.’” Whitus v. Georgia. S.Ct.
“Because McCleskey’s sentence was imposed under Georgia sentencing procedures that
focus discretion ‘on the particularized nature of the crime and the particularized
characteristics of the individual defendant,’ … we lawfully may presume that
McCleskey’s death sentence was not ‘wantonly and freakishly’ imposed, … and thus that
the sentence is not disproportionate within any recognized meaning under the Eighth
Amendment.”
c. Note: The Definition of Discriminatory Purpose—The problem of
selective insensitivity
1. “The more common problem arises when the legislature is
pursuing a neutral aim, but, in doing so, is selectively
indifferent to the welfare of certain groups. Thus, the question
the McClesky Court should have asked is not whether
Georgia’s capital punishment scheme was designed to harm
African Americans, but rather whether the legislature would
have been as willing to inflict the death penalty if most of the
law’s victims had been white.”-629
2. Personnel Administrator v. Feeney—“Under Massachusetts
law, all veterans who qualified for state civil service positions
had to be considered for appointment ahead of any qualifying
non-veterans. The preference operated overwhelmingly to the
advantage of males. In an opinion by Justice Stewart, the
Court upheld the preference against equal protection attack.
The Court held that the purpose of the law was not to exclude
women.”-629
A. The Court said that “’discriminatory purpose’ implies more
than intent as volition or intent as awareness of
consequences. It implies 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.”-629
d. Classifications that describe racial minorities
1. Hernandez v. New York—“Hernandez claimed that the
prosecutor at his criminal trial had used peremptory challenges
to exclude Latinos from the jury. The prosecutor told the trial
judge that the challenges were based on his fear that the
challenged bilingual jurors would have difficulty following
only the official interpreter for Spanish-speaking witnesses
rather than their own understanding of the testimony. The trial
court rejected the defendant’s claim, and the Supreme Court, in
an opinion by Justice Kennedy, affirmed. According to the
Court, this was a disparate impact case and therefore governed
by Washington v. Davis.”-630
A. The Court said: “While the prosecutor’s criterion might
well result in the disproportionate removal of prospective
Latino jurors, that disproportionate impact does not turn the
prosecutor’s actions into a per se violation of the Equal
Protection Clause…. It may well be, for certain ethnic
groups, and in some communities, that proficiency in a
40
particular language, like skin color, should be treated as a
surrogate for race under equal protection analysis.”-631
B. Justice Stevens, joined by Justice Marshall, said that “By
definition … a prima facie case is one that is established by
the requisite proof of invidious intent. Unless the
prosecutor comes forward with an explanation for his
peremptories that is sufficient to rebut that prima facie
case, no additional evidence of racial animus is required to
establish an equal protection violation.”-631
e. The problem of proof
1. “there appears to be a sharp distinction between a ‘purpose’
and an ‘effects’ test for the constitutionality of facially neutral
statutes that disproportionately disadvantage racial
minorities.”-631
2. The jury cases
A. “When jury selection procedures are challenged as racially
discriminatory, the Court has been receptive to arguments
based on effect alone, at least as a device for shifting the
burden of proof to the state.”-632
B. Castaneda v. Partida—The Court held that “In order to
show that an equal protection violation has occurred the
defendant must show that the procedure employed resulted
in substantial under-representation of his race or of the
identifiable groups to which he belongs. The first step is to
establish that the group is one that is a recognizable,
distinct class, singled out for different treatment under the
laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the
proportion of the group in the total population to the
proportion called to serve as jurors, over a significant
period of time. Finally, a selection procedure that is
susceptible of abuse or is not racially neutral supports the
presumption of discrimination raised by the statistical
showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie
case of discriminatory purpose, and the burden then shifts
to the State to rebut that case.”-632
3. The vote-dilution cases
A. Mobile v. Bolden—“Plaintiffs argues that the at large,
winner take all system unconstitutionally discriminated
against black voters, who were consistently outvoted by the
white majority. The district court agreed and ordered
imposition of a mayor-city council form of government,
with council members elected from single-member
districts. The Supreme Court reversed, but no opinion
attracted a majority of the justices.”-633
B. “Although acknowledging that effect ‘may provide an
important starting point,’ Justice Stewart emphasized that,
‘where the character of a law is readily explainable on
grounds apart from race, as would nearly always be true
where, as here, an entire system of local governance is
41
brought into question, disproportionate impact alone cannot
be decisive.”-633
C. “Past discrimination cannot, in the manner of original sin,
condemn government action that is not itself unlawful.”
D. Rogers v. Lodge—This case “concerned an equal protection
attack on an at large voting system that effectively
submerged the black minority of voters…. The district
court struck down the system of at large elections, holding
that the system had a racially neutral purpose when
adopted, but was maintained for the purpose of diluting
black voting strength. This time the Court affirmed in an
opinion written by Justice White, one of the Mobile
dissenters. The Court emphasized that it was not
abandoning the Mobile requirement of proof of
discriminatory purpose in vote-dilution cases.”-633
E. Miller v Johnson—“At issue was the constitutionality of a
Georgia congressional redistricting plan. Under the 1965
Voting Rights Act, Georgia was required to submit the plan
to the Justice Department for preclearance to assure that it
was not racially discriminatory. After two previous plans
had been rejected, Georgia enacted a plan that included
three districts with a majority of African American voters.
One of these districts, challenged in this litigation,
connected African American populations in Atlanta,
Augusta, and Savannah with a thin land bridge extending
through rural sections of the state…. In a five to four
decision authored by Justice Kennedy, the Court affirmed a
lower court holding that the district was unconstitutional.”
F. The Court in that case quoted from Shaw v. Reno, which
provided that: “The plaintiff’s burden is to show, either
through circumstantial evidence of a district’s shape and
demographics or more 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 race
neutral districting principles, including but not limited to
compactness, contiguity, respect for political subdivisions
or communities defined by actual shared interests, to racial
considerations.”-635
3. Race-Specific Classifications That are Facially Neutral
Loving v. Virginia—1967
Issue: Whether a Virginia statute that was designed to prevent intermarriage solely on the
basis of racial classification violates the Equal Protection and Due Process Clauses of the
Fourteenth Amendment? YES
Rule: “The clear and central purpose of the Fourteenth Amendment was to eliminate all
official state sources of invidious (arbitrary, irrational, and not related to any legitimate
purpose) racial discrimination in the States.”
“At the very least, the Equal Protection Clause demands that racial classifications,
especially suspect in criminal statutes, be subjected to the “most rigid scrutiny.””
42
“If they are ever to be upheld, they must be shown to be necessary to the accomplishment
of some permissible state objective, independent of the racial discrimination which it was
the object of the Fourteenth Amendment to eliminate.”
Washington v. Seattle School District No. 1—1982
Issue: Whether “an elected local school board may use the Fourteenth Amendment to
defend its program of busing for integration from attack by the State”? YES
Holding: “In our view, Initiative 350 must fall because it does ‘not attempt to allocate
governmental power on the basis of any general principle.’ Hunter v. Erickson. Instead,
it uses the racial nature of an issue to define the governmental decisionmaking structure,
and thus imposes substantial and unique burdens on racial minorities.”-639
Rule: “The political majority may generally restructure the political process to place obstacles in the
path of everyone seeking to secure the benefits of governmental action. But a different analysis is
required when the State allocates governmental power non-neutrally, by explicitly using the racial
nature of a decision to determine the decisionmaking process. State action of this kind, the Court said,
‘places special burdens on racial minorities within the governmental process….”-639
“when the political process or the decisionmaking mechanism used to address racially
conscious legislation—and only such legislation—is singled out for peculiar and
disadvantageous treatment, the governmental action plainly ‘rests on ‘distinctions based
on race.’’”-641
Crawford v. Board of Education—1982
Issue: Whether a statewide referendum resulting in a state constitutional amendment
limiting the power of the California state courts to order mandatory pupil assignment or
transportation in the absence of a federal court finding of a violation of equal protection
violates the equal protection clause? NO
Holding: “We agree with the California Court of Appeal in rejecting the contention that
once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never
recede. We reject an interpretation of the Fourteenth Amendment so destructive of a
State’s democratic processes and of its ability to experiment….”-643
a. Note: Strict Scrutiny for “Neutral” Race-Specific
Classifications
1. Why Strict Scrutiny?
A. Palmore v. Sidoti--“Classifying persons according to
their race is more likely to reflect prejudice than
legitimate public concerns; the race, not the person,
dictates the category.”-645
B. James v Valtierra—“the Court upheld a provision of
the California Constitution prohibiting state entities
from constructing low-rent housing projects unless
approved by a majority of those voting in a community
election. The Court held that the provision was not a
racial classification, since it ‘required referendum
approval for any low-rent public housing project, not
only for projects which will be occupied by a racial
minority.”-646
Regents of the University of California v. Bakke—1978
Issue: Whether a “special admissions program” that maintains lower standards for
minority applicants to a medical school, and sets aside admissions slots exclusively for
minority applicants who are accepted through the program “den[ies] … the equal
protection of the laws” to a white applicant who would have been accepted under the
lower standards, thus violating the equal protection clause of the Fourteenth Amendment?
YES
43
Whether a “special admissions program” that maintains lower standards for minority
applicants to a medical school, and sets aside admissions slots exclusively for minority
applicants who are accepted through the program causes a white applicant who would
have been accepted under the lower standards to “be subjected to discrimination under
any program or activity receiving Federal financial assistance” in violation of Title VI of
the Civil Rights Act of 1964? YES
Whether a “special admissions program” that maintains lower standards for minority
applicants to a medical school, and sets aside admissions slots exclusively for minority
applicants who are accepted through the program provides “No special privileges or
immunities … [to] any citizen, or class of citizens” in violation of Article I, § 21 of the
California State Constitution? YES
Rule: “Preferring members of any one group for no other reason other than race or ethnic
origin is discrimination for its own sake. This the Constitution forbids.”
We assume, only for the purposes of this case, that respondent has a right of action under
Title VI.” “Title VI must be held to proscribe only those racial classifications that would
violate the Equal Protection Clause or the Fifth Amendment.”
C. Fullilove v. Klutznick—“At issue was a provision of the
Public Works Employment Act of 1977, which
provided federal financial assistance to state and local
governments to build public facilities. The act required
that, absent an administrative waiver, 10 percent of the
funds granted for the projects had to be used to procure
services or supplies from ‘minority business
enterprises’ (MBE’s)—defined as businesses owned or
controlled by ‘citizens of the United States who are
Negroes; Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts.’ On this occasion, the Court
upheld the program, but once again, no opinion
attracted the votes of a majority of the justices…. Here,
the program was constitutional, albeit reaching the
outer limits of congressional authority. In reaching this
conclusion, the plurality relied in part on the limited
duration of the program, on Congress’s unique
authority to devise remedial measures for racial
discrimination, on the fact that no nonminority
contractor was severely injured by the program, and on
the fact that a waiver provision permitted deviation
from the 10 percent requirement in cases where the
increased costs of nonminority contractors could be
shown not to be caused by prior discrimination…. In a
concurring opinion, Justice Powell repeated his view
that ‘racial classifications must be assessed under the
most stringent level of review because immutable
characteristics, which bear no relation to individual
merit or need, are irrelevant to almost every
governmental decision….’ In a dissenting opinion
joined by Justice Rehnquist, Justice Stewart asserted
that ‘under our Constitution, the government may never
act to the detriment of a person solely because of that
person’s race.’”-650
2. The Pre-Croson Compromise
44
A. “On the one hand, the Court made plain that the
voluntary use by government employers of raceconscious ‘goals’ or ‘timetables’ designed to remedy
prior discrimination was not per se unconstitutional. It
was also permissible for these race conscious measures
to provide for ‘class wide’ relief, and there was no
requirement that they be limited to ‘making whole’ the
actual victims of prior discriminatory acts. Moreover,
court ordered affirmative action plans (directed at either
public or private entities) to remedy violations of the
Constitution or of the statutory mandate against
employment discrimination were also not per se
unconstitutional…. On the other hand, the Court
repeatedly recognized that race conscious remedies
pose potentially serious constitutional problems and
must therefore be carefully scrutinized.”-651
City of Richmond v. J.A. Croson Co.—1989
Issue: Whether a local law requiring a minority business set-aside of 30% in subcontracts
for construction “den[ies] … the equal protection of the laws“ to white subcontractors in
violation of the Equal Protection Clause of the 14th Amendment? YES
Rule: Racial quotas in state or local legislation may only be used to remedy prior
discrimination; such prior discrimination must be identified with particularity, and the
legislation must be “narrowly tailored” to remedy such discrimination.
Adarand Constructors, Inc. v. Peña—1995
Issue: Whether federal statutes that award financial incentives to contractors who hire
subcontractors that are “small business concerns owned and controlled by socially and
economically disadvantaged individuals” deprive white subcontractors of their “life,
liberty, or property, without due process of law” in violation of the Equal Protection
provision of the Fifth Amendment? YES
Rule: “[A]ll racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other
words, such classifications are constitutional only if they are narrowly tailored measures
that further compelling governmental interests.”
X.
Dilution of the “Right to Vote”
Reynolds v. Sims—1964
Issue: Whether a State’s failure to reapportion the seats in its legislature is
unconstitutional? YES
Rule: “A predominant consideration in determining whether a State’s legislative apportionment
scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection
Clause is that the rights allegedly impaired are individual in nature…. [a]ny alleged infringement of
the right of citizens to vote must be carefully and meticulously scrutinized.”-857
“we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by
all voters in the election of state legislators.”-857
“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in
both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated,
an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a
substantial fashion diluted when compared with votes of citizens living in other parts of the State.”
“So long as the divergences from a strict population standard are based on legitimate
considerations incident to the effectuation of a rational state policy, some deviations from
the equal population principle are constitutionally permissible but neither history alone,
45
nor economic or other sorts of group interests, are permissible factors in attempting to
justify disparities from population based representation.”-858
A. Reynolds and its progeny
1. Popularly mandated mal-apportionment
a. Lucas v. Forty-Fourth General Assembly—“The Colorado scheme,
which apportioned only one of the two houses on the basis of
population, had been approved in 1962 by a statewide referendum in
which the voters specifically rejected a plan to apportion both houses
on the basis of population. Nonetheless, the Court held the scheme
invalid: ‘An individual’s constitutionally protected right to case an
equally weighted vote cannot be denied even by a vote of a majority of
a State’s electorate, if the apportionment scheme fails to measure up to
the requirements of the Equal Protection Clause. A citizen’s
constitutional rights can hardly be infringed simply because a majority
of the people choose that it be.”-862
2. Supermajorities
a. Gordon v. Lance—“the Court upheld a West Virginia law prohibiting
political subdivisions from incurring bonded indebtedness without the
approval of 60 percent of the voters in a referendum election. The
Court explained…. ‘The Constitution itself provides that a simple
majority vote is insufficient on some issues. We conclude that so long
as such provisions do not discriminate against or authorize
discrimination against any identifiable class they do not violate the
Equal Protection Clause.’”-862
3. Local government units
a. Avery v. Midland County—“the Court extended Reynolds to sub-units
of state government.”-863
b. Hadley v. Junior College District—“the Court extended Avery to a
junior college district consisting of eight districts, where one district
with 60 percent of the population was authorized to elect only 50
percent of the junior college district’s trustees.”-863
4. Permissible deviations from ‘one person, one vote’
a. Congressional districting
1. Wesberry v. Sanders—“the Court held that the provision of article
I, section 2 that United States representatives ‘be chosen ‘by the
People of the several States’ means that as nearly as practicable
one man’s vote in a congressional election is to be worth as much
as another’s.’”-863
b. State districting
City of Mobile v. Bolden—1980
Issue: Whether an “at large electoral system” in which all residents of the city, rather
than residents divided up between three districts, vote for three city commissioners who
maintain all executive, legislative, and administrative power violates the equal protection
clause? NO
Holding: “the evidence falls far short of showing that the appellants ‘conceived or
operated a purposeful device to further racial discrimination.’”-865
Rule: “A plaintiff … must prove that the disputed plan was ‘conceived or operated’ as a
purposeful device to further racial discrimination.”-865
B. Vote dilution and the interests of groups
1. A ‘Fundamental interest’ in ‘proportional’ representation?
2. A ‘fundamental’ interest in ‘fair’ representation?
46
3. Discriminatory purpose
a. United Jewish Organizations v. Carey—“New York withdrew district
lines in Brooklyn in order to maintain black representation in the state
legislature. To achieve this result, the redistrict divided the local
Hassidic community into several districts, thus assuring that each
district had a substantial nonwhite majority. The Court upheld the
plan. Justice White, joined by Justices Brennan, Blackmun, and
Stevens, concluded that the Constitution did not prohibit the use of
race in this manner where the redistricting was authorized by the
Voting Rights Act and the percentage of districts in the county with
substantial nonwhite majorities did not exceed the percentage of the
population of the county that was nonwhite.”-873
Davis v. Bandemer—1986
Issue: Whether “a state legislature violates the Equal Protection Clause by adopting a
redistricting plan designed solely to preserve the power of the dominant political party,
when the plan follows the doctrine of ‘one person, one vote’ but ignores all other neutral
factors relevant to the fairness of redistricting”? NO
Holding: “we hold that political gerrymandering cases are properly justiciable under the
Equal Protection Clause. We also conclude, however, that a threshold showing of
discriminatory vote dilution is required for a prima facie case of an equal protection
violation. In this case, the findings made by the District Court of an adverse effect on the
appellees do not surmount the threshold requirement.”-877
Rule: “We agree with the District Court that in order to succeed the plaintiffs were required to prove
both intentional discrimination against an identifiable political group and an actual discriminatory
effect on that group.”-875
“As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide
political gerrymandering, the mere lack of proportional representation will not be sufficient to prove
unconstitutional discrimination. Unconstitutional discrimination occurs only when the electoral
system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence
on the political process as a whole.”-876
“An equal protection violation may be found only where the electoral system substantially
disadvantages certain voters in their opportunity to influence the political process effectively. In this
context, such a finding of unconstitutionality must be supported by evidence of continued frustration
of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to
influence the political process.”-876
“Relying on a single election to prove unconstitutional discrimination is unsatisfactory.”
Shaw v. Reno—1993
Issue: Whether “appellants have stated a cognizable claim” where they are challenging
the General Assembly of North Carolina’s creation of a majority Black congressional
district on the ground that such district constitutes “an unconstitutional racial
gerrymander”? YES
Holding: “we hold only that appellants have stated a claim under the Equal Protection Clause by
alleging that the North Carolina General Assembly adopted a reapportionment scheme so irrational
on its face that it can be understood only as an effort to segregate voters into separate voting districts
because of their race, and that the separation lacks sufficient justification.”-882
Rule: “we conclude that a plaintiff challenging a reapportionment statute under the Equal
Protection Clause may state a claim by alleging that the 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.”-881
Miller v. Johnson—1995
47
Issue: Whether “Georgia’s new Eleventh District gives rise to a valid equal protection
claim under the principles announced in Shaw, and, if so, whether it can be sustained
nonetheless as narrowly tailored to serve a compelling governmental interest”? YES. No.
Rule: “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 race neutral
districting principles, including but not limited to compactness, contiguity, respect for
political subdivisions or communities defined by actual shared interests, to racial
considerations. Where these or other race neutral considerations are the basis for
redistricting legislation, and are not subordinated to race, a state can ‘defeat a claim that a
district has been gerrymandered on racial lines.”-887
XI.
Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender
A. The early cases
1. Bradwell v. Illinois—“the Court rejected an attack on Illinois’ refusal to
license a woman to practice law. In an opinion by Justice Miller, the
author of the Slaughter-House Cases, the Court held that the right to
practice law was not a privilege or immunity of national citizenship and
therefore was not protected by the fourteenth amendment.”-697
a. In a concurring opinion, Justice Bradley asserted that: “The harmony,
not to say identity, of interests and views which belong or should
belong to the family institution, is repugnant to the idea of a woman
adopting a distinct and independent career from that of her
husband….”-697
2. Minor v. Happersett—“the Court acknowledged that women were
‘persons’ and ‘citizens’ within the meaning of the fourteenth amendment,
but held that the right to vote was not a privilege of U.S. citizenship, and
that women could therefore be denied the franchise.”-698
3. Muller v Oregon—“the Court upheld an Oregon statute prohibiting the
employment of women in factories for more than ten hours per day…. In
Muller, the Court maintained that ‘the inherent difference between the two
sexes’ justified limitations on a woman’s right to contract.”-698
4. “In Goesaert v. Cleary, … the Court, in an opinion by Justice Frankfurter,
held that a Michigan statute prohibiting a woman from working as a
bartender unless she was the wife or daughter of a male owner did not
violate the equal protection clause….”-698
5. “The Court, in Hoyt v. Florida … upheld as ‘rational’ a jury selection
system excluding women who did not affirmatively indicate a desire to
serve.”-699
B. The road to intermediate scrutiny
1. Reed v. Reed—“An Idaho statute established a hierarchy of persons
entitled to administer the estate of a decedent who died intestate (e.g., (1)
parent, (2) child, (3) sibling, etc.). The statute provided further that, when
two or more persons were of the same entitlement class, preference should
be given to the male…. In a terse opinion, a unanimous Court held that
this preference violated the equal protection clause. Chief Justice Burger,
writing for the Court, characterized the issue as ‘whether a difference in
the sex of competing applicants [bears] a rational relationship to a state
objective that is sought to be advanced by the operation of [the statute].’
Although recognizing that the objective of reducing the workload of
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probate courts by eliminating one class of contests was legitimate, the
Court maintained that the means used to achieve that objective – that is, a
gender classification – was ‘the very kind of arbitrary legislative choice
forbidden by the Equal Protection Clause.’”-699
2. Frontiero v Richardson—“Under federal law, a male member of the
uniformed services could automatically claim his spouse as a dependent,
thereby receiving greater quarters allowance and medical benefits.
However, a female member of the uniformed services could claim
comparable benefits only if she demonstrated that her spouse was in fact
dependent on her for over half his support. Although divided as to the
appropriate standard of review, eight members of the Court agreed that
this distinction violated the equal protection component of the fifth
amendment’s due process clause…. Writing for four justices, Justice
Brennan argued that classifications based on gender are inherently suspect
and, like racial classifications, should be subject to close scrutiny.”-699
a. “In a separate opinion joined by Chief Justice Burger and Justice
Blackmun, Justice Powell concurred in the judgment, but expressly
disassociated himself from Justice Brennan’s assertion that
classifications based on sex are suspect.”-701
C. From Reed to Craig –evolution and doctrinal confusion
1. Stanley v. Illinois—The Court “struck down an Illinois statute that
automatically made children of unwed fathers wards of the state on the
death of their mothers. In contrast, unwed mothers could be deprived of
their children only on a showing that they were unfit parents. The Court
held that this scheme deprived fathers of due process of law by erecting a
‘conclusive presumption’ of unfitness.”-701
2. “In Cleveland Board of Education v. LaFleur, … the Court used a similar
technique to invalidate regulations requiring a school teacher to take
maternity leave well before the expected birth date of her child. The Court
held that the due process clause did not permit a ‘conclusive presumption’
that such women were medically unfit to teach.”-701
3. “In Taylor v. Louisiana, … the Court distinguished Hoyt v. Florida, …
and held that the exclusion of women from jury service deprived the
defendant of his sixth amendment right to a fair and impartial jury.”-701
4. “In Weinberger v. Wiesenfeld, … the Court used equal protection analysis
to strike down a section of the Social Security Act entitling a widowed
mother, but not a widowed father, to benefits based on the earnings of the
deceased spouse.”-701
5. “A Utah statute required parents to support their male children until age
twenty-one, but required support of female children only until age
eighteen. In Stanton v. Stanton, … the Court held that this distinction
violated the equal protection clause.”-702
6. “In Kahn v. Shevin, … the Court sustained a Florida statute providing a
property tax exemption for widows, but not widowers. The Court held
that the distinction was justified by the greater financial difficulties
confronting a lone woman.”-702
7. “In Geduldig v. Aiello, … the Court rejected an attack on California’s
disability insurance program that excluded pregnancy related disabilities
from coverage. The Court held that California’s insurance limitation was
justified by the state’s ‘legitimate interest in maintaining the selfsupporting nature of its insurance program.’”-702
49
8. “in Schlesinger v. Ballard, … the Court sustained a federal statute
granting women in the navy a longer period in which to achieve
mandatory promotion than men…. Since women were precluded from
participating in combat and most sea duty, they would ‘not generally have
compiled records of seagoing service comparable to those of male
lieutenants.’”-702
Craig v. Boren—1976
Issue: Whether “the difference between males and females with respect to the purchase
of 3.2% beer warrants the differential in age drawn by the Oklahoma statute,” thus
precluding a violation of the equal protection clause? NO
Holding: “We hold, therefore, that under Reed, Oklahoma’s 3.2% beer statute
invidiously discriminates against males 18-20 years of age….”-705
Rule: “To withstand constitutional challenge, previous cases establish that classifications
by gender must serve important governmental objectives and must be substantially
related to achievement of those objectives.”-703
D. Heightened Scrutiny for Gender Classifications
1. Michael M. v. Superior Court—“the Court upheld California’s statutory
rape law making men, but not women, criminally liable for acts of sexual
intercourse involving a female under age eighteen.”-712
2. Mississippi University for Women v. Hogan--In that case, “Hogan, a man,
claimed that his exclusion from the Mississippi University for Women
school of nursing solely on the basis of gender violated the equal
protection clause. In a five to four decision, the Supreme Court agreed. In
an opinion by Justice O’Connor, the Court recognized that Hogan could
have attended classes in one of Mississippi’s state supported coeducational
nursing programs. But since these programs were a considerable distance
from his home, and since many students at the school of nursing were able
to hold full-time jobs, ‘the policy of denying males the right to obtain
credit toward a baccalaureate degree [imposed] upon Hogan ‘a burden he
would not bear were he female.’”-713
United States v. Virginia—1996
Issue: Whether “Virginia’s exclusion of women from the educational opportunities provided by
VMI—extraordinary opportunities for military training and civilian leadership development—deny to
women ‘capable of all of the individual activities required of VMI cadets,’ the equal protection of the
laws guaranteed by the Fourteenth Amendment?” YES
Whether “if VMI’s ‘unique’ situation—as Virginia’s sole single sex public institution of
higher education—offends the Constitution’s equal protection principle, what is the
remedial requirement?” Admission of female cadets.
Holding: “we conclude that Virginia has shown no ‘exceedingly persuasive justification’ for
excluding all women from the citizen soldier training afforded by VMI. We therefore affirm the
Fourth Circuit’s initial judgment, which held that Virginia had violated the Fourteenth Amendment’s
Equal Protection Clause.”-121
“Because the remedy proffered by Virginia—the Mary Baldwin VWIL program—does
not cure the constitutional violation, i.e., it does not provide equal opportunity, we
reverse the Fourth Circuit’s final judgment in this case.”-713
Rule: “parties who seek to defend gender based government action must demonstrate an
‘exceedingly persuasive justification’ for that action….”-120
“The State must show ‘at least that the [challenged] classification serves ‘important governmental
objectives and that the discriminatory means employed’ are ‘substantially related to the
achievement of those objectives.’ The justification must be genuine, not hypothesized or invented
50
post hoc in response to litigation. And it must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and famales.”-120
“’benign’ justifications proffered in defense of categorical exclusions will not be
accepted automatically; a tenable justification must describe actual state purposes, not
rationalizations for actions in fact differently grounded….”-121
E. Archaic and Overbroad Generalizations versus “Real” Differences
Michael M. v. Sonoma County Superior Court—1981
Issue: Whether “a State may attack the problem of sexual intercourse and teenage
pregnancy directly by prohibiting a male from having sexual intercourse with a minor
female”? YES
Rule: “A legislature may not ‘make overbroad generalizations based on sex which are
entirely unrelated to any differences between men and women or which demean the
ability or social status of the affected class.’ But, … this Court has consistently upheld
statutes where the gender classification is not invidious, but rather realistically reflects
the fact that the sexes are not similarly situated in certain circumstances.”-714
Rostker v. Goldberg—1981
Issue: Whether Congress’s decision to exclude women from registration for the draft
impermissibly violates the equal protection clause of the Fifth Amendment by relying on
gender-based classifications? NO
1. Identifying and defining ‘real differences’
a. “In Parham v. Hughes, … the Court upheld the constitutionality of
a Georgia statute permitting the mother, but not the father, of an
illegitimate child to sue for the wrongful death of the child….
Writing for a plurality, Justice Stewart argued that the statute did
not invidiously discriminate on the basis of gender because
‘mothers and fathers of illegitimate children are not similarly
situated.’”-723
b. Kirchberg v. Feenstra—“A Louisiana statute, which had been
repealed by the time the case reached the Court, gave a husband, as
‘head and master’ of property jointly owned with his wife, the
unilateral right to dispose of such property without his wife’s
consent…. The Court had little difficulty in concluding that the
provision, on its face, constituted impermissible gender
discrimination.”-724
c. Caban v Mohammed—In that case, “the Court struck down a New
York statute that required the consent of the mother, but not the
father, for the adoption of a child born out of wedlock. The Court
rejected the argument that the statute was justified by ‘a
fundamental difference between maternal and paternal relations.’”
d. J.E.B. v. Alabama ex rel.—“The case concerned the
constitutionality of the state’s use of gender based peremptory
challenges in a trial to determine if the defendant was the father of
a child and the extent of his child support obligations…. In an
opinion by Justice Blackmun, the Court held that gender-based
peremptory challenges ere unconstitutional.”-726
F. “Benign” Gender Classifications and Discrimination Against Men
Califano v. Goldfarb—1977
Issue: Whether a federal statute permitting the payment of a widow’s benefit upon the
death of her husband, but requiring a showing that a widower was receiving at least half
of his support from his deceased wife at the time of her death before receiving the same
benefit, violates the Due Process Clause of the Fifth Amendment? YES
51
Holding: “Wiesenfeld … inescapably compels the conclusion reached by the District
Court that the gender based differentiation created by [the statute] – that results in the
efforts of female workers required to pay social security taxes producing less protection
for their spouses than is produced by the efforts of men – is forbidden by the
Constitution, at least when supported by no more substantial justification than ‘archaic
and overbroad’ generalizations,’ [Wiesenfeld], that are more consistent with ‘the role
typing society has long imposed,’ [Stanton], than with contemporary reality….”-731
Rule: “the differential treatment of nondependent widows and widowers results not, as
appellant asserts, from a deliberate congressional intention to remedy the arguably greater
needs of the former, but rather from an intention to aid the dependent spouses of deceased
wage earners, coupled with a presumption that wives are usually dependent. We held in
Frontiero, and again in Wiesenfeld, and therefore hold again here, that such assumptions
do not suffice to justify a gender based discrimination in the distribution of employment
related benefits.”-733
Califano v. Webster—1977
Issue: Whether a federal statute permitting women to receive higher monthly old age
benefits violates the equal protection clause of the 5th Amendment due process clause? no
Rule: “the classification ‘must serve important governmental objectives and must be
substantially related to achievement of those objectives….’ ‘reduction of the disparity in
economic condition between men and women caused by the long history of
discrimination against women has been recognized as such an important governmental
objective.’”-736
1. The problem of ‘benign’ gender classifications
a. Discrimination against men
1. Wengler v. Druggists Mutual Insurance Co.—“the Court
invalidated a portion of Missouri’s workers’ compensation
statute under which a widower of a deceased worker was
entitled to death benefits only if he was mentally or physically
incapacitated from wage earning or proved actual dependence
on his wife’s earnings. In contrast, a widow was automatically
entitled to death benefits without having to demonstrate
dependence.”-737
A. “In the body of the opinion, the Court argued that the
challenged statute discriminated against both men and
women. Women were harmed because ‘the benefits that
the working woman can expect to be paid to her spouse in
the case of her work related death are less than those
payable to the spouse of the deceased male wage earner.’
Men were also discriminated against because ‘the surviving
male spouse must prove his incapacity or dependency and
is guaranteed a weekly benefit for life or until
remarriage.’”-738
b. Affirmative action for women
1. “The Court seems to have taken the view that ‘affirmative
action’ measures disadvantaging men are subject to
intermediate scrutiny, and that remedying disparities between
men and women, at least if caused by prior discrimination,
qualifies as an ‘important government objective’ for purposes
of that test.”-739
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2. “The Court now insists that in the racial context, affirmative
action statutes are subject to the same strict scrutiny as statutes
disadvantaging racial minorities.”-740
3. Actual purpose
4. Stereotyping and stigmatization
5. Classifications ‘in fact’ penalizing women
6. The overinclusion problem
A. Orr v. Orr—“Alabama’s alimony statute provided that
husbands, but not wives, could be required to pay alimony
upon divorce. The state justified this distinction in part on
the ground that it served the goal of compensating women
for past discrimination during marriage that left them
unprepared to fend for themselves in the working world
after divorce. The Court rejected this argument and
invalidated the statute. It once again acknowledged the
importance of helping women in economic need and
compensating them for the effects of past discrimination.
But these goals did not justify the classification employed
by the statute….”-741
c. ‘Affirmative Action’
XII. Equal Protection Methodology: Other Candidates for Heightened Scrutiny
A. Alienage
1. “One way to think about heightened scrutiny for suspect classifications is
that it is the appropriate judicial response to efforts by the majority to
exclude certain groups from the political community.”-743
Sugarman v. Dougall—1973
Issue: Whether “New York’s flat statutory prohibition against the employment of aliens
in the competitive classified civil service is constitutionally valid”? NO
Holding: ”We hold only that a flat ban on the employment of aliens in positions that
have little, if any, relation to a State’s legitimate interest, cannot withstand scrutiny under
the Fourteenth Amendment.”-746
Rule: “In Graham v. Richardson, … we observed that aliens as a class ‘are a prime example of a
‘discrete and insular’ minority … and that classifications based on alienage are ‘subject to close
judicial scrutiny.’”-745
“in seeking to achieve this substantial purpose, with discrimination against aliens, the
means the State employs must be precisely drawn in light of the acknowledged
purpose.”-746
2. Strict scrutiny for aliens – defining the political community
a. History of discrimination
b. Alienage as an immutable characteristic
1. Nyquist v. Mauclet—“Under New York law, an applicant for state
higher education financial assistance must be a U.S. citizen, must
have made application for citizenship, or, if not qualified for
citizenship, must submit a statement affirming an intent to apply
for U.S. citizenship as soon as qualified to do so. The state argued
that this statute need not be strictly scrutinized because it did not
discriminate against aliens as such, but only against those aliens
unwilling to apply for citizenship. In a five to four decision, the
Court rejected this argument and invalidated the law. Justice
Blackmun delivered the opinion of the Court: ‘The important
points are that the statute is directed at aliens and that only aliens
53
are harmed by it. The fact that the statute is not an absolute bar
does not mean that it does not discriminate against the class.’”-748
2. Plyler v. Doe—“the Court invalidated a Texas policy of refusing to
provide free public education to illegally present alien children.
The Court rejected the assertion that illegal aliens are a suspect
class. ‘Unlike most of the classifications that we have recognized
as suspect, entry into this class, by virtue of entry into this country,
is the product of voluntary action. Indeed, entry into the class is
itself a crime.’ But, although ‘persuasive arguments support the
view that a State may withhold its beneficence from those whose
very presence within the United States is the product of their own
unlawful conduct,’ these arguments ‘do not apply with the same
force to classifications imposing disabilities on the minor children
of such illegal entrants.’”-749
c. Aliens as a ‘discrete’ and ‘insular’ minority
d. Alienage and the political community
1. “In In re Griffiths, … the Court held that a state could not
constitutionally exclude aliens from membership in the bar.
However, in a series of subsequent cases the Court has upheld a
number of state restrictions on employment of aliens on the theory
that the positions involve the formulation or execution of broad
public policy and may therefore be limited to members of the
political community.”-750
2. “In Cabell v. Chavez-Salido, the Court acknowledged that the
alienage decisions ‘have not formed an unwavering line over the
years. But to say that the decisions do not fall into a neat pattern is
not to say that they fall into no pattern.”-751
A. “How does one separate the ‘economic’ and ‘sovereign’
functions of government? In Cabell, the Court set out a two
pronged test: ‘First, the specificity of the classification will be
examined: a classification that is substantially overinclusive
or underinclusive tends to undercut the governmental claim
that the classification serves legitimate political ends.
Second, even if the classification is sufficiently tailored, it
may be applied in the particular case only to ‘persons holding
state elective or important nonelective executive, legislative,
and judicial positions,’ those officers who ‘participate directly
in the formulation, execution, or review of broad public
policy’ and hence ‘perform functions that go to the heart of
representative government.’”-751
3. Alienage and federal preemption
a. The federal cases
1. “In Matthews v. Diaz, … a unanimous Court upheld a federal
statute limiting participation in a federal medical insurance
program to citizens and aliens who had continuously resided in the
United States for five years and had been admitted for permanent
residence…. ‘Neither the overnight visitor, the unfriendly agent of
a hostile foreign power, the resident diplomat, nor the illegal
entrant, can advance even a colorable constitutional claim to a
share in the bounty that a conscientious sovereign makes available
to its own citizens and some of its guests.’”-752
54
2. Hampton v. Mow Sun Wong—“the Court invalidated a Civil
Service Commission policy excluding aliens from most civil
service jobs. The Court … acknowledged that ‘there may be
overriding national interests which justify selective federal
legislation that would be unacceptable for an individual State. The
paramount federal power over immigration and naturalization
forecloses a simple extension of the holding in Sugarman.’
Nonetheless, the Court held that imposition of a citizenship
requirement by the Civil Service Commission violated due
process.”-753
b. The state cases
1. “In Toll v. Moreno, … the Court considered a state policy denying
in-state status to nonimmigrant aliens for purposes of qualifying
for tuition reductions at state universities. Without reaching the
equal protection question, the Court held the state policy
unconstitutional under the supremacy clause…. ‘[s]tate regulation
not congressionally sanctioned that discriminates against aliens
lawfully admitted to the country is impermissible if it imposes
additional burdens not contemplated by Congress.’”-754
B. Wealth Classifications
1. “More recently, however, the Court has shown increasing reluctance to
strictly scrutinize state practices withholding benefits because of inability
to pay for them.”-755
2. Maher v. Roe—“An indigent woman desiring an abortion does not come
within the limited category of disadvantaged classes so recognized by our
cases. Nor does the fact that the impact of the regulation falls upon those
who cannot pay lead to a different conclusion. In a sense, every denial of
welfare to an indigent creates a wealth classification as compared to
nonindigents who are able to pay for the desired goods or services. But
this Court has never held that financial need alone identifies a suspect
class for purposes of equal protection analysis.”-755
3. Facial discrimination
a. “In Edwards v. California, the Court invalidated a California statute
barring the bringing of indigents into the state. Although the Court
relied solely on the commerce clause to invalidate a statute, it
suggested in passing that it would not accept stereotypical judgments
about the poor as justifications for laws disadvantaging them….”-755
4. Heightened scrutiny for ‘de facto’ wealth classifications
5. The Court’s retreat from heightened scrutiny
6. Continued protection for the poor?
a. “Finally, although the Court has shown increasing reluctance to treat
the poor as a ‘suspect’ class for equal protection purposes, it has
sometimes reached the same result through other doctrinal routes.
Recall, for example, United States Department of Agriculture v.
Moreno, … where the Court utilized rational basis review to invalidate
a law disqualifying from the federal food stamp program unrelated
individuals who lived together. Similarly, some cases have extended
rights to the poor through due process analysis.”-758
7. Wealth discrimination and the problem of affirmative rights
a. Facial discrimination
55
1. Fuller v. Oregon—“the Court sustained an Oregon statute
requiring convicted defendants who escaped indigency to repay the
state for the cost of their defense….”-760
8. “De facto’ wealth classifications and the Washington v. Davis problem
a. James v. Valtierra—“An amendment to the state’s constitution
provided that no low rent housing project should be developed,
constructed, or acquired in any manner by a state public body until the
project was approved by a majority of those voting at a community
election. Plaintiffs argued that this amendment violated the equal
protection clause because other public programs were not subject to
the mandatory referendum provision. They relied on Hunter v.
Erickson, … where the Court invalidated a city charter provision
requiring referendum approval for statutes prohibiting racial
discrimination in housing. In rejecting plaintiffs’ argument and
upholding the statute, the Court distinguished Hunter: ‘a lawmaking
procedure that ‘disadvantages’ a particular group does not always deny
equal protection. Under any such holding, presumably a State would
not be able to require referendums on any subject unless referendums
were required on all, because they would always disadvantage some
group.’”-761
9. “De facto’ wealth discrimination and the efficient allocation of scarce
resources
10. The Constitution and affirmative rights
a. Harris v. McRae—“the Court upheld the constitutionality of the so
called Hyde Amendment prohibiting virtually all federal funding for
abortions under the Medicaid program. The Court acknowledged that
the Constitution protected a woman’s freedom of choice regarding
abortions. But in its view, ‘it simply did not follow that a woman’s
freedom of choice carries with it a constitutional entitlement to
financial resources to avail herself of the full range of protected
choices.’”-764
XIII. Content Neutral Restrictions: Limitations on the Means of Communication and
the Problem of Content Neutrality
A. “Content neutral restrictions limit expression without regard to its content….
Such restrictions encompass a broad spectrum of limitations on expressive
activity, ranging from a prohibition on the use of loudspeakers, to a ban on
billboards, to a limitation on campaign contributions, to a prohibition on the
mutilation of draft cards.”-1323
B. General Principles
Schneider v. State—1939
Issue: Whether a city ordinance prohibiting the distribution of leaflets “in any street or
way” violates the First Amendment right to free speech? YES
Holding: “We are of opinion that the purpose to keep the streets clean and of good
appearance is insufficient to justify an ordinance which prohibits a person rightfully on a
public street from handing literature to one willing to receive it.”-1324
Rule: “So long as legislation [designed to keep streets open and available for movement
of people] does not abridge the constitutional liberty of one rightfully upon the street to
impart information through speech or the distribution of literature, it may lawfully
regulate the conduct of those using the streets.”-1324
Martin v. City of Struthers—1943
56
Issue: Whether a city ordinance prohibiting any person “to ring the door bell or otherwise
summon the inmate of any residence for the purpose of distributing handbills” violates
the First Amendment right to free speech? YES
Rule: “Freedom to distribute information to every citizen whenever he desires to
receive it is so clearly vital to the preservation of a free society that, putting aside
reasonable police and health regulations of time and manner of distribution, it must
be fully preserved.”-1325
Kovacs v. Cooper—1949
Issue: Whether a city ordinance prohibiting any person to use any sound truck or other
instrument that emits ‘loud and raucous noises’ on any public street violates the First
Amendment right to free speech? NO
Rule: “We think it is a permissible exercise of legislative discretion to bar sound trucks,
amplified to a loud and raucous volume, from the public ways of municipalities.”-1326
Metromedia, Inc. v. San Diego—1981
Issue: Whether a city ordinance prohibiting the display of all outdoor advertising display
signs violates the First Amendment freedom of speech? YES
Rule: A complete ban on all outdoor advertising display signs constitutes a content
neutral violation of the First Amendment.
City of Ladue v. Gilleo—1994
Issue: Whether a city ordinance prohibiting the display of signs on homeowners’
property violates the First Amendment right to free speech? YES
Rule: A complete ban on the display of signs by homeowners is overinclusive and in
violation of the First Amendment.
1. The Search for Principles
2. The Meaning of ‘Content Neutrality’
a. Communicative impact
b. Secondary effects
1. Renton--“the Court characterized a zoning ordinance that
restricted the location of movie theaters that exhibit movies
emphasizing ‘specified sexual activities’ as ‘content neutral’
because it was defended not in terms of the communicative
impact of the restricted expression, but in terms of ‘the
secondary effects of such theaters on the surrounding
community.’”-1332
2. Boos v. Barry-“the Court invalidated a federal statute
prohibiting the display of any sign within 500 feet of a foreign
embassy if the sign tends to bring that foreign government into
‘public disrepute.’”-1332
A. In a concurring opinion, Justice Brennan stated: “the root
problem is that Renton relies on the dubious proposition
that a statute which on its face discriminates based on the
content of speech aims not at content but at some secondary
effect that does not itself affect the operation of the
statute.”-1332
3. City of Cincinnati v. Discovery Network—“the Court
invalidated a prohibition on the use of newsracks on public
property for the distribution of commercial handbills.
Although the ordinance on its face distinguished between
commercial and noncommercial publications, the city argued
that the challenged prohibition was content neutral ‘because the
city’s interests in safety and esthetics are entirely unrelated to
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the content of the publications.’ The Court … rejected this
argument: ‘The argument is unpersuasive because the very
basis for the regulation is the difference in content between
ordinary newspapers and commercial speech…. In contrast to
the speech at issue in Renton, there are no secondary effects
attributable to newsracks containing commercial handbills that
distinguish them from the newsracks Cincinnati permits to
remain on its sidewalks.’”-1333
c. Impermissible motive
d. Content differential effects
e. Speaker based restrictions
1. Madsen v. Women’s Health Center, Inc.—“the Court held that
such an injunction [prohibiting specifically named antiabortion
protestors from demonstrating near an abortion clinic], issued
after the specifically named petitioners had previously violated
a narrower order enjoining them from blocking access to the
clinic, was content neutral….”-1334
C. Speech on Public Property: The Public Forum
1. “the Court has accepted the view that in most circumstances, ‘an uninvited
guest may [not] exercise general rights of free speech on property
privately owned,’ for it ‘would be an unwarranted infringement of
property rights to require them to yield to the exercise of First Amendment
rights.’”-1334
2. “Public forum theory has evolved along two separate, but related, lines –
one governing streets and parks, the other governing all other publicly
owned property.”-1334
3. The public forum: streets and parks
Commonwealth v. Davis—1895
Issue: Whether a city ordinance prohibiting ‘any public address’ on any publicly owned
property ‘except in accordance with a permit from the mayor’ violates the First
Amendment right to free speech? NO
Rule: “as representative of the public, the legislature may and does exercise control over
the use which the public may make of such places, and for the Legislature absolutely or
conditionally to forbid public speaking in a highway or public park is no more an
infringement of the rights of a member of the public than for the owner of a private house
to forbid it in his house.”-1335
Hague v. CIO—1939
Issue: Whether a city ordinance prohibiting all public meetings in the streets and other
public places without a permit violates the First Amendment right to free speech? YES
a. Schneider v. State—“the Court held that a city’s interest in keeping
‘the streets clean and of good appearance’ was ‘insufficient’ to justify
a municipal ordinance prohibiting the distribution of leaflets on public
property.”-1336
b. Jamison v. Texas—“The Court … invalidated a city ordinance
prohibiting the dissemination of leaflets….”-1336
4. Regulating the public forum
a. Signs near a courthouse
1. “In United States v. Grace, … the Court invalidated a federal
statute prohibiting any person to display on the public sidewalks
surrounding the Supreme Court building ‘any flag, banner, or
device designed to bring into public notice any party, organization,
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or movement….’ ‘the government may enforce reasonable time,
place, and manner restrictions’ in public forums only if ‘the
restrictions ‘are content neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication,’ and it may absolutely prohibit ‘a
particular type of expression’ only if the prohibition is ‘narrowly
drawn to accomplish a compelling governmental interest.’”-1338
b. Noise near a school
1. “In Grayned v. Rockford, … approximately 200 demonstrators
marched on a public sidewalk about 100 feet from a public high
school to protest the school’s racial policies. Appellant, a
participant in the demonstration, was convicted of violating a
Rockford ordinance prohibiting any ‘person, while on public or
private grounds adjacent to any building in which a school or any
class thereof is in session, to make any noise or diversion which
disturbs or tends to disturb the peace or good order of such school.’
The Court, in an eight to one decision, affirmed the conviction….
In this case, the Court held that the ‘anti-noise’ ordinance ‘is
narrowly tailored to further Rockford’s compelling interest in
having an undisrupted school session conducive to the students’
learning’; ‘punishes only conduct which disrupts or is about to
disrupt normal school activities’; requires that the ‘decision be
made on an individualized basis’; and ‘gives no license to punish
anyone because of what he is saying.’ The Court concluded that
‘such a reasonable regulation is not inconsistent with the First and
Fourteenth Amendments.’”-1338
c. Picketing near a home
1. “In Frisby v. Shultz, … a group varying in size from eleven to forty
people picketed in protest on six occasions within one month on
the public street outside the residence of a doctor who performed
abortions. The picketing was orderly and peaceful. Thereafter, the
town enacted an ordinance that prohibited residential picketing that
focuses on and takes place in front of a particular residence. The
Court, in a six to three decision, upheld the ordinance…. [t]he
Court … concluded that the ordinance was constitutional because
it left ‘open ample alternative channels of communication’ and was
‘narrowly tailored to serve a significant government interest.’ The
Court found the first requirement ‘readily’ satisfied because the
ordinance left protestors free to march, proselytize door to door,
leaflet, and even picket in a manner that did not focus exclusively
on a particular residence…. As to the second requirement, the
Court observed that ‘privacy of the home is of the highest order in
a free and civilized society….’ The Court thus concluded that the
ordinance was ‘narrowly tailored’ because ‘the evil of targeted
residential picketing, ‘the very presence of an unwelcome visitor at
the home,’ is ‘created by the medium of expression itself.’ Justices
Brennan, Marshall, and Stevens dissented.”-1339
d. Sleeping in a park
1. “In Clark v. Community for Creative Non-Violence, … the
National Park Service permitted CCNV to erect symbolic tent
cities, consisting of between twenty and forty tents, in Lafayette
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Park and on the Mall in Washington, D.C., for the purpose of
conducting a round the clock demonstration designed to dramatize
the plight of the homeless. Pursuant to a National Park Service
regulation prohibiting ‘camping’ in these parks, however, the Park
Service prohibited CCNV demonstrators from sleeping overnight
in the tents. The Court assumed arguendo ‘that overnight sleeping
in connection with the demonstration is expressive conduct
protected by the First Amendment,’ but upheld the regulation as a
‘reasonable time, place, and manner restriction.’ The Court
emphasized that the regulation is ‘content neutral,’ that it does not
prevent CCNV from demonstrating the ‘plight of the homeless in
other ways,’ and that it ‘narrowly focuses on the Government’s
substantial interest in maintaining the parks in an attractive and
intact condition.’”-1339
e. Noise in a park
1. Ward v. Rock against Racism—“the Court upheld a New York
City regulation requiring the use of city provided sound systems
and technicians for concerts in the Bandshell in Central Park. The
principal justification for the regulation was the city’s desire to
control noise levels to avoid undue intrusion into other areas of the
park and adjacent residential areas. The Court held that
government clearly ‘has a substantial interest in protecting its
citizens from unwelcome noise,’ and that the regulation clearly
leaves ‘open ample alternative channels of communication.’”-1339
f. Demonstrating near an abortion clinic
1. Madsen v. Women’s Health Center, Inc.—“The Court upheld the
thirty six foot buffer zone around the clinic primarily because the
original injunction, which had established no such buffer zone,
‘did not succeed in protecting access to the clinic….’ The Court
also upheld the restriction on excessive noise because noise
‘control is particularly important around hospitals and medical
facilities….’ On the other hand, the Court invalidated the
restriction on exhibiting ‘images observable’ to patients within the
clinic…. The Court also invalidated that portion of the injunction
that prohibited petitioners from ‘approaching any person seeking
services of the clinic ‘unless such person indicates a desire to
communicate’ in an area within 300 feet of the clinic….’ Finally,
the Court invalidated the provision enjoining petitioners from
demonstrating within 300 feet of the residences of clinic staff….
Justice Scalia, joined by Justices Kennedy and Thomas, dissented
from the upholding of the thirty six foot buffer zone and the
restriction against excessive noise near the clinic. Justice Stevens
dissented from the invalidation of the restriction on ‘physically
approaching’ clients within 300 feet of the clinic without their
consent.”-1341
g. Unattended structures
1. Capitol Square Review and Advisory Board v. Pinette—“the Court
strongly suggested, but did not decide, that ‘a ban on all
unattended displays’ might be constitutional. As Justice Stevens
explained in a separate opinion, such a display ‘creates a far
greater intrusion on government property and interferes with the
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Government’s ability to differentiate its own message from those
of private individuals.’”-1341
5. Devices for regulating the public forum
a. Licensing
1. “In Cox v. New Hampshire, … a group of Jehovah’s witnesses
were convicted of violating a state statute prohibiting any ‘parade
or procession’ upon a public street without first obtaining a permit.
The Court, in a unanimous decision, affirmed the convictions.
Chief Justice Hughes, speaking for the Court, explained that ‘as
regulation of the use of the streets for parades and processions is a
traditional exercise of control by local government, the question in
a particular case is whether that control is exerted so as not to deny
or unwarrantedly abridge the right of assembly and the
opportunities for the communication of [thought] immemorially
associated with resort to public places.’ The Court emphasized
that the state court had ‘construed the statute’ as authorizing ‘the
licensing authority’ to take into account only ‘considerations of
time, place and manner so as to conserve the public
convenience….’ Moreover, the Court emphasized that the state
court had stressed that ‘the licensing board was not vested with
arbitrary power [and] that its discretion must be [exercised] ‘free
[from] unfair discrimination.’ The Court concluded that under this
construction of the statute, it is ‘impossible to say that the limited
authority conferred by the licensing provisions [contravened] any
constitutional right.’”-1341
b. Fees
1. Murdock v. Pennsylvania—“the Court held that the state may not
impose a ‘flat license tax as a condition to the pursuit of activities
whose enjoyment is guaranteed by the First Amendment’ where
the tax ‘is not a nominal fee imposed as a regulatory measure to
defray the expenses of policing the activities in question.’”-1342
2. Forsyth County, Georgia v. The Nationalist Movement—“the
Court invalidated a municipal ordinance that authorized permit
fees for parades, demonstrations, marches, and similar activities,
up to a maximum of $1,000, based in part on the anticipated
expense necessary to maintain the public order…. The Court
announced that speech ‘cannot be financially burdened, any more
than it can be punished or banned, simply because it might offend
a hostile mob,’ and that ‘regulations which permit the government
to discriminate on the basis of the content of the message cannot be
tolerated under the First Amendment.’”-1343
D. The public forum: other publicly owned property
Adderley v. Florida—1966
Issue: Whether a State statute “declaring unlawful ‘every trespass upon the property of
another, committed with a malicious and mischievous intent’” violates the First
Amendment when applied to a peaceful civil rights demonstration outside of a county jail
in which political prisoners are held? NO
Rule: “The State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated.”-1344
1. “No less than a private owner of property”?
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a. “In Grayned v. Rockford, … the Court, although upholding the
anti-noise ordinance as a reasonable time, place, and manner
regulation, offered the following analysis of the public forum
issue: ‘The nature of a place, ‘the pattern of its normal activities,
dictate the kinds of regulations of time, place, and manner that are
reasonable.’ The crucial question is whether the manner of
expression is basically incompatible with the normal activity of a
particular place at a particular time. Our cases make clear that in
assessing the reasonableness of a regulation, we must weigh
heavily the fact that communication is involved; the regulation
must be narrowly tailored to further the State’s legitimate
interest.’”-1345
Greer v. Spock—1976
Issue: Whether a U.S. military base regulation prohibiting “demonstrations, picketing,
sit-ins, protest marches, political speeches and similar activities … ” violates the First
Amendment right to freedom of speech when applied to deny access to a political
candidate who wishes to speak with military personnel on election issues, while the base
does permit civilians access to paved roads and unrestricted areas? NO
Rule: “The State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated.”-1346—Adderley
Heffron v. International Society for Krishna Consciousness—1981
Issue: Whether a State Fair rule prohibiting “the sale or distribution of any merchandise,
including printed or written material, except from a booth rented from the state” violates
the First Amendment freedom of speech when it is applied to deny a religious group
access to the fairgrounds for the purposes of distributing literature? NO
Holding: “given the ‘threat to the State’s interest in crowd control if all organizations could move
freely about the fairgrounds distributing and selling literature and soliciting funds at will, the State’s
interest in confining distribution, selling, and fund solicitation activities to fixed locations is sufficient
to satisfy the requirement that a place or manner restriction must serve a substantial state interest.’”
“we cannot agree that Rule 6.05 is an unnecessary regulation because the State could
protect its interests by less restrictive means, such as limiting the number of solicitors, or
putting more narrowly drawn restrictions on the location and movement of distributors
and solicitors,’ for ‘it is quite improbable that such alternative means would deal
adequately with the problem.’”-1347
Rule: “in assessing ‘the significance of the governmental interest,’ [the Court] must
consider the ‘nature and function of the particular forum involved….’ [For a Rule to be
a valid place and manner restriction], ‘it must be clear that alternative forums for
the expression [exist] despite the effects of the Rule.”-1347
U.S. Postal Service v. Council of Greenburgh Civic Associations—1981
Issue: Whether a federal statute prohibiting “the deposit of unstamped ‘mailable matter’
in a letter box approved by the U.S. Postal Service” violates the First Amendment
freedom of speech as applied to a civic association accustomed to delivering its messages
by placing unstamped notices in the letter boxes of private homes? NO
Rule: “property owned or controlled by the government which is not a public forum may
be subject to a prohibition of speech, leafleting, picketing, or other forms of
communication without running afoul of the First Amendment. Admittedly, the
government must act reasonably in imposing such restrictions.”-1348
Members of the City Council of Los Angeles v. Taxpayers for Vincent—1984
Issue: Whether a city ordinance “prohibiting the posting of signs on public property”
violates the First Amendment freedom of speech when applied to political campaigners
tying campaign signs to public utility poles? NO
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Rule: “the state may curtail speech in a content-neutral manner if the restriction
‘furthers an important or substantial governmental interest and if the restriction on
free speech is no greater than is essential to the furtherance of that interst.’”-1349
United States v. Kokinda—1990
Issue: Whether a federal regulation “prohibiting any person from soliciting contributions
‘on postal premises’ violates the First Amendment freedom of speech as applied to a
political advocacy group that set up a table for the purpose of distributing literature and
soliciting contributions on the sidewalk near a United States Post Office building? NO
Rule: “the regulation must be analyzed under the standards set forth for nonpublic fora: it
must be reasonable and ‘not an effort to suppress expression merely because public
officials oppose the speaker’s view.’”-1350
International Society for Krishna Consciousness v. Lee—1992
Issue: Whether the prohibition of any and all solicitation or distribution of merchandise
or literature in airports violates the First Amendment freedom of speech as applied to a
religious organization seeking to distribute literature? No and Yes.
Rule: Where the location of the prohibition does not have as a principal purpose
“promoting the free exchange of ideas,” “the prohibition of solicitation ‘need only
satisfy a requirement of reasonableness….”-1351
XIV. Overbreadth, Vagueness, and prior restraint
A. Overbreadth and vagueness
Gooding v. Wilson—1972
Issue: Whether a State statute imposing a criminal penalty on ‘Any person who shall,
without provocation, use to or of another, and in his presence [opprobrious] words or
abusive language, tending to cause a breach of the peace [shall] be guilty of a
misdemeanor’ constitutes an overbroad and overly vague violation of the First
Amendment? YES
Rule: “The constitutional guarantees of freedom of speech forbid the States to punish the
use of words or language not within ‘narrowly limited classes of speech.’ Statutes must
be carefully drawn or be authoritatively construed to punish only unprotected speech
and not be susceptible of application to protected expression. ‘Because First
Amendment freedoms need breathing space to survive, government may regulate in the
area only with narrow specificity.’”-1173
1. Note: overbreadth
a. The nature of overbreadth
1. “The traditional ‘as applied’ mode of judicial review tests the
constitutionality of legislation as it is applied to particular facts
on a case by case basis.”-1176
2. “The first amendment overbreadth doctrine, on the other hand,
tests the constitutionality of legislation in terms of its potential
applications.”-1176
3. “That an individual defendant’s own speech could
constitutionally be restricted under a more narrowly drawn
statute is irrelevant.”-1176
b. Justifications and criticisms of overbreadth
c. The problem of narrowing construction
1. Osborne v. Ohio—“the Court upheld a child pornography
statute as construed by the state supreme court on appeal in the
same case. Although the statute, as written, was
unconstitutionally overbroad, the Court held that it was saved
from invalidation by the state supreme court’s narrowing
construction, and that the statute, as construed, could ‘be
63
applied to conduct occurring prior to the construction, provided
such application affords fair warning to the defendant.’ In
Osborne, the Court concluded that the statute afforded ‘fair
warning’ because the defendant ‘would not [have been]
surprised to learn that his possession of the photographs at
issue constituted a crime.’ Nonetheless, the Court held that the
defendant’s conviction violated due process because the jury
had not been instructed in accord with the state supreme court’s
subsequent narrowing construction of the law.”-1177
d. Broadrick: requiring ‘substantial’ overbreadth
1. Broadrick v. Oklahoma—“the Court, in a five to four decision,
expressly adopted such a limitation. Broadrick involved a state
law restricting the political activities of civil servants…. The
plaintiffs conceded that the state could constitutionally prohibit
civil servants from doing what they had done – solicit funds for
political candidates. They argued, however, that the law was
unconstitutionally overbroad because it attempted also to
prohibit civil servants from engaging in such relatively
innocuous and thus constitutionally protected activities as
displaying political bumper stickers and buttons.”-1178
A. “The Court, in an opinion by Justice White, observed that
under the overbreadth doctrine, litigants ‘are permitted to
challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction
or assumption that the statute’s very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression.’”-1178
B. “the Court concluded, ‘we believe that the overbreadth of a
statute must not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate
sweep.’ Applying that standard to the statute in Broadrick,
the Court concluded that, because the statute ‘regulates a
substantial spectrum of conduct that is manifestly subject to
state regulation,’ it ‘is not substantially overbroad and
whatever overbreadth may exist should thus be cured
through case by case analysis of the fact situations to which
its sanctions, assertedly, may not be applied.’”-1178
e. The impact of Broadrick
1. “In Los Angeles City Council v. Taxpayers for Vincent, … the
Court [said]: ‘The concept of ‘substantial overbreadth’ is not
readily reduced to an exact definition. It is clear, however, that
the mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible
to an overbreadth challenge. On the contrary, there must be a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of
parties not before the Court for it to be facially challenged on
overbreadth grounds.’”-1179
2. “In Houston v. Hill, … the Court invalidated as substantially
overbroad an ordinance prohibiting any person to ‘assault,
strike or in any manner oppose, molest, abuse or interrupt any
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policeman in the execution of his duty.’ Although conceding
that some speech directed at police officers can be made
criminal, the Court justified its decision on the ground that ‘the
First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.’”-1179
3. “In Board of Airport Commissioners of Los Angeles v. Jews for
Jesus, Inc., … the Court invalidated as substantially overbroad
a regulation prohibiting any person ‘to engage in First
Amendment activities within the Central Terminal Area at Los
Angeles International Airport.’ The regulation was challenged
by a group of individuals who had been prevented by the
regulation from distributing literature on a pedestrian walkway
in the airport. Without deciding whether this conduct was
constitutionally protected, the Court held the regulation facially
void because the regulation ‘prohibits even talking or reading,
or the wearing of campaign buttons or symbolic clothing. We
think it obvious that such a sweeping ban cannot be
justified.’”-1180
4. “In New York v. Ferber, … the Court upheld a child
pornography statute, which prohibits any person to produce,
exhibit, or sell any material depicting any ‘performance’ by a
child under the age of sixteen that includes ‘actual or simulated
sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of
the genitals.’ The Court rejected the state court’s conclusion
that the statute was substantially overbroad ‘because it would
forbid the distribution of material with serious literary,
scientific or educational value ranging from medical textbooks
to pictorials in National Geographic.’ The Court explained that
these applications of the statute would not ‘amount to more
than a tiny fraction of the materials within the statute’s reach’
and should thus be dealt with ‘through case by case analysis.’”
f. Partial invalidation
1. “In Brockett v. Spokane Arcades, Inc., … the Court held a
Washington obscenity statute unconstitutional because its
definition of obscenity was too broad. Without deciding
whether the statute was substantially overbroad, however, the
Court declined to invalidate the law on its face: ‘where, as
here, the parties challenging the statute are those who desire to
engage in protected speech that the overbroad statute purports
to punish, there is no want of a proper party to challenge the
statute and it may forthwith be declared invalid to the extent it
reaches too far, but otherwise left intact.’”-1180
2. Note: vagueness
a. The danger of vagueness
1. “As a matter of due process, a law is void on its face if it is
so vague that persons ‘of common intelligence must
necessarily guess at its meaning and differ as to its
application.’ Connally v. General Construction Co…. A
law that fails to define clearly the conduct it proscribes
‘may trap the innocent by not providing fair warning’ and
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may in practical effect impermissibly delegate ‘basic policy
matters to policemen, judges and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.’ Grayned v.
Rockford.”-1181
b. How ‘vague’ is too vague?
1. “A Massachusetts statute provides that any person who
‘publicly mutilates, tramples upon, defaces or treats
contemptuously the flag of the United States’ shall be
guilty of a misdemeanor. In Smith v. Goguen, … the Court
invalidated the statute because nonceremonial use of the
flag ‘for adornment or to attract attention’ has become
common, and the statutory prohibition on treating the flag
‘contemptuously’ failed ‘to draw reasonably clear lines
between the kinds of nonceremonial treatment that are
criminal and those that are not.’”-1182
c. Vagueness and overbreadth
d. Vagueness and standing
1. “When a law is overbroad, or at least substantially
overbroad, an individual may assert its unconstitutionality,
even if his own expression is unprotected.”-1182
B. Prior Restraint
1. “The doctrine of prior restraint has its roots in the sixteenth and
seventeenth century English licensing systems under which all printing
presses and printers were licensed by the state and no book or pamphlet
could lawfully be published without the prior approval of a government
censor.”-1183
Lovell v. Griffin—1938
Issue: Whether a city ordinance imposing a criminal penalty upon any person for the
distribution of “literature of any kind, whether said articles are being delivered free, or
whether the same are being sold…” without first obtaining a permit from the City
Manager constitutes a violation of the First Amendment by requiring a prior restraint?yes
Holding: “We think that the ordinance is invalid on its face. Whatever the motive which
induced its adoption, its character is such that it strikes at the very foundation of the
freedom of the press by subjecting it to license and censorship.”-1184
2. Note: licensing as prior restraint
a. Standardless licensing
1. “In City of Lakewood v. Plain Dealer Publishing Co., … the Court
applied the Lovell principle to invalidate an ordinance that gave a
mayor standardless discretion to grant or deny permits to place
newsracks on public property. The Court explained that the evils
of standardless licensing ‘can be effectively alleviated only
through a facial challenge’: ‘Only standards limiting the licensor’s
discretion will eliminate this danger by adding an element of
certainty to fatal self censorship. And only a facial challenge can
effectively test the statute for these standards. Second, the absence
of express standards makes it difficult to distinguish, ‘as applied,’
between a licensor’s legitimate denial of a permit and its
illegitimate abuse of censorial power.’”-1185
2. “Following Lovell, the Court has repeatedly held that a state
‘cannot vest restraining control over the right to speak in an
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administrative official where there are no appropriate standards to
guide his action.’”-1185
b. Standardless licensing of expressive acts that are not themselves
protected by the first amendment
1. “The Court held that Lovell applies whenever a standardless
licensing scheme has ‘a close enough nexus to expression, or to
conduct commonly associated with expression, to pose a real and
substantial threat of the censorship risks’ associated with this form
of prior restraint. Applying that standard, the Court held that the
City of Lakewood ordinance was subject to ‘facial,’ rather than ‘as
applied,’ review because it was ‘directed narrowly and specifically
at expression or conduct commonly associated with expression: the
circulation of newspapers.’”-1186
c. Licensing with standards
d. The objections to licensing
e. The Freedman case: procedural safeguards
1. “In Freedman v. Maryland, … appellant, in violation of a state
motion picture censorship statute, exhibited a film, conceded by
the state not to be obscene or otherwise violative of the statutory
standards, without first submitting it to the State Board of Censors
to review. In a unanimous decision, the Court, speaking through
Justice Brennan, held the statute invalid. At the outset, the Court
emphasized that the statute was unconstitutional not because it
might ‘prevent even the first showing of a film whose exhibition
may legitimately be the subject of an obscenity prosecution,’ but
rather because the administration of the censorship system
‘presents peculiar dangers to constitutionally protected speech.’”
A. “The Court thus concluded that ‘a noncriminal process which
requires the prior submission of a film to a censor avoids
constitutional infirmity only if it takes place under procedural
safeguards designed to obviate the dangers of a censorship
system.’”-1187
f. The Freedman safeguards
1. FW/PBS, Inc. v. City of Dallas—“the Court divided sharply on the
applicability of Freedman to a comprehensive licensing scheme for
‘sexually oriented businesses,’ such as adult bookstores, adult
movie theaters, and escort agencies, because ‘the licensing
authority focused on such matters as health and building code
inspections’ rather than on ‘direct censorship of particular
expressive material.’”-1189
g. Licensing and standing
1. Poulos v. New Hampshire—“where a licensing scheme is
constitutional on its face, an individual whose permit application is
unconstitutionally denied must seek judicial relief and cannot
defend against a subsequent criminal prosecution by asserting the
invalidity of the permit denial.”-1189
Near v. Minnesota—1931
Issue: Whether a State statute providing for the abatement, as a public nuisance, of a
‘malicious, scandalous and defamatory newspaper, magazine or other periodical’
constitutes a violation of the First Amendment freedom of the press? YES
67
Holding: “we hold the statute, so far as it authorized the proceedings in this action [to] be
an infringement of the liberty of the press guaranteed by the Fourteenth Amendment.”
3. Note: injunction as prior restraint
a. Injunctions, criminal prosecutions, and licensing
b. Injunctions: are they too effective?
c. The collateral bar rule
1. “under the ‘collateral bar’ rule, ‘persons subject to an injunctive
order issued by a court with jurisdiction are expected to obey that
decree until it is modified or reversed, even if they have proper
grounds to object the order.’”-1192
2. Walker v. City of Birmingham—“a state trial court convicted eight
black ministers of criminal contempt for leading mass street
parades in violation of a temporary restraining order enjoining
them from participating in such parades without first obtaining a
permit as required by a city ordinance. The Court, invoking the
collateral bar rule, upheld the contempt convictions without
passing on the constitutionality of the injunction.”-1193
d. Limits on the collateral bar rule
e. When is an injunction not a prior restraint?
1. “In Pittsburgh Press Co. v. Pittsburgh Commission on Human
Relations, … the commission, after a hearing, found that the
Pittsburgh Press had violated a city ordinance by displaying ‘help
wanted’ advertisements in its daily newspaper under headings
designating job preference by sex. The commission therefore
issued an order prohibiting the newspaper from carrying sex
designated ads in the future. In upholding the order, the Court
explained that a criminal statute cast in such terms would be
constitutionally permissible….”-1195
f. Forfeiture as prior restraint
1. “In Alexander v. United States, … petitioner, the owner of more
than a dozen stores and theaters dealing in sexually explicit
materials, was convicted of violating federal obscenity laws and
the Racketeer Influenced and Corrupt Organizations Act (RICO).
In addition to sentencing petitioner to a prison term of six years
and a fine of $100,000, the trial court ordered the forfeiture under
RICO of all of petitioner’s businesses because they had ‘been used
to conduct his racketeering enterprise.’ Petitioner claimed that the
forfeiture of his non-obscene, constitutionally protected books and
movies constituted an impermissible prior restraint. The Court, in
an opinion by Chief Justice Rehnquist, disagreed….”-1196