Constitutional Law II:
Second Review
Professor Morrison
Spring 2006
Subjects Covered
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Equal Protection
State Action
Congressional Enforcement
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Equal Protection
Equal Protection
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Provided by 14th Amendment
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Applies against “state action” (see below)
Parallel doctrine limits federal government
under 5th Amendment, but probably not as
strong
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All laws classify (discriminate)
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Every law classifies between those
covered by the law and those not
covered
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In some cases classification is more
obvious
Question is whether the classification
has a sufficient justification to pass
constitutional scrutiny
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Three basic tests
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Strict scrutiny
Intermediate scrutiny
Basic scrutiny
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Strict Scrutiny
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Applies to classifications based on race
Brown v. Board of Education
Also applies to some classifications based on
alienage In re Griffiths
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But not to those involving exercise of political
rights or public office Foley v. Connelly
Or on some federal actions Hampton v. Mow Sun
Wong; Matthews v. Diaz
Also applies to some cases involving
fundamental rights (see below)
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Strict scrutiny
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Law must have
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Compelling public purpose
No less burdensome means (more
recently: “must be narrowly tailored”)
Burden is on state to demonstrate this
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Intermediate scrutiny
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Applies to gender discrimination Craig
v. Boren
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Intermediate scrutiny
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Law must have
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Important governmental purpose
Be substantially related to it Craig v. Boren
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More recently: “exceedingly persuasive
justification” U.S. v. Virginia
Burden is on state to demonstrate this
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Basic scrutiny
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Applies in all other cases Railway
Express v. New York
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Basic scrutiny
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Law must have
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A legitimate public purpose
Rational relationship to it
Burden is on challenger to demonstrate
this
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Other suspect (or semisuspect) classes
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Alienage (see above)
Legitimacy
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Other classifications are not
suspect
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Age
Wealth
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Fundamental rights
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Also invoke strict scrutiny
Political rights (ballot access, voting,
equal representation)
Access to the courts
Family rights (right to marry, etc.)
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Are these tests fixed steps or
a flexible incline?
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Are these pigeonholed standards, or is
there a flexible standard?
Effect on democratic institutions
Problem cases (don’t fit nicely):
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Alienage (see above)
Illegitimacy—”heightened scrutiny”
Cases like Cleburne v. Cleburne Living
Center
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Invoking higher levels of
scrutiny
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Show discrimination on the face of the law
Purpose to discriminate
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Yick Wo v. Hopkins
Washington v. Davis
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Mere disparate impact is not enough
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Keyes v. School District
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Distinguish constitutional and statutory claims
Facts can establish discriminatory purpose
Note evolution of standards
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Remedies
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To create (restore) proper relationship
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If racial discrimination case, can include remedies
that seek to offset that wrong, even if based on
race. Swann v. Charlotte-Mecklenberg
Cannot involve orders against additional entities
not party to the discrimination. Milliken v. Bradley
When effects of prior discrimination have been
corrected, injunction can be ended. Board of Ed.
of Oklahoma City v. Dowell
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Affirmative action
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In education, diversity may be a
sufficiently compelling public interest
Gratz
But the action must still be “narrowly
tailored” Grutter
In other areas, the compelling interest
may be harder to show Croson,
Adarand
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State action
State action
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14th amendment says “No state shall …”
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Only limit is on states and their agents and
instrumentalities
Private persons (and companies) not
limited by 14th amendment unless they are
agents of the state
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Private parties can be limited by other laws
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Typical state action
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The state itself
A state agency
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E.g., a state university
A unit of local government created by
the state
An employee of one of the above,
acting on its behalf
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State action: public function
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Public function Marsh v. Alabama
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Including primary elections Terry v. Adams
But not shopping centers Lloyd v. Tanner
And not privately-owned public utilities
Jackson v. Metropolitan Edison
Function must be one that ONLY the
state can perform
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State action:
Symbotic relationship
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“Symbotic relationship” Burton v.
Wilmington Parking Authority
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State action:
State enforcement of claims
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State enforcement of restrictive covenants
is not permitted Shelley v. Kraemer
But private action pursuant to law is
allowed Contrast Evans v. Abney and
Newton v. Abney
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State action:
State enforcement of claims
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Similarly under due process:
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Use of state agency to enforce a claim
(e.g., repossession) requires due process
Lugar v. Edmonson Oil
But private action (e.g., sale of goods for
failure to pay storage charges) does not
Flagg Bros. v. Brooks
Distinguish a sheriff and a “repo man”
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State action: Receipt of public
money not enough

The mere fact that a party receives
state funds is not enough, by itself, to
create state action. Rendell Baker v.
Kohn
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Congressional Enforcement of
Civil Rights
“Enforcement clauses” of 13th
14th and 15th amendments
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Congress is given power “to enforce”
13th, 14th, and 15th amendments
Laws sometimes enacted under these
provisions but sometimes under other
authority
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Reason: 14th amendment doesn’t reach
private action, so Congress seeks other
authority, e.g., commerce clause
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13th Amendment
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Prohibits slavery
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Interpreted to include power to eliminate
“badges and incidents of slavery”
Federal laws enacted under it may thus
reach private actors. Jones v. Alfred Mayer
Co.
But only applies to racial discrimination
(because of its association with slavery)
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14th Amendment

State action requirement limits its
usefulness
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Private action must be reached through
Commerce Clause, 13th Amendment, or
otherwise
Can apply to all denials of equal
protection and due process
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Enforcement of the 14th
Amendment
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Congressional action must be
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Proportional
Congruent
City of Boerne v. Flores; U.S. v. Morrison
Congress must enforce, not define, the
right
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Other enforcement clauses
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15th Amendment.
v. Morgan
19th Amendment.
23rd Amendment.
24th Amendment.
26th Amendment.
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Voting. Katzenbach
Women’s suffrage.
Voting in D.C.
Poll tax
Voting age of 18.
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11th Amendment
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Text prohibits suits in U.S. courts
against a State, if brought by residents
of other States or of foreign countries
By extension, also prohibits suits in U.S.
courts against States, if brought by
citizens of that State. Hans v. Louisiana
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11th Amendment
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Precludes suits in federal court against a
State under the Constitution or under federal
laws enacted under the powers granted in the
text of the Constitution itself.
Also prevents Congress from creating a cause
of action in state court. Alden v. Maine.
Also prevents administrative adjudication.
Federal Maritime Comm’n v. South Carolina
Ports Authority
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11th Amendment
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Does not preclude—
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Use of federal law as a defense in a suit
brought by the state
Appeal of a state case to federal court
Suit against an officer or employee, or
against an entity created by the State Ex
parte Young
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Suits against cities, counties, etc.
Suits against the Attorney-General, etc.
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11th Amendment
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Also does not preclude suits under
amendments after it; or under statutes
enacted under authority granted by those
amendments
So—
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Cannot sue State if statute enacted under
Commerce Clause
Can sue State if enacted under 14th Amendment
Can sue State officials, subject to limitations
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Minnesota law
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Minnesota has waived its sovereign
immunity (and the protection of the 11th
Amendment) with respect to—
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Age Discrimination in Employment Act
Fair Labor Standards Act
Family and Medical Leave Act
Americans with Disabilities Act
Minn.Stat. sec. 1.05
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