Fall 2006
Wealth Discrimination
Con Law II 1

Differential Wealth Transfers


Progressive & Regressive Taxes
Benefits programs
Uniform Transfers w/ Disparate Impact


Fees charged for exercise of fund. rights
 Poll taxes, abortions, criminal defense, marriage
Fees charged for exercise of non-fund rights
 Education, other health care
Fall 2006 Con Law II 2

General Rule: No positive DP rights

Failure to fund exercise of DP FR
Exceptions - Specific const’l guarantees

Right to Trial Counsel – Griffin v. Illinois (1963)


 6 th Am: “In all criminal prosecutions, the accused shall enjoy … Assistance of Counsel for his defense”
Right to Appel. Counsel –
Discretionary Appeals –
Douglas v. Cal (1963)
Ross v. Moffitt (1974)
 Unnecessary to protect constitutional integrity of criminal process
Fall 2006 Con Law II 3

Access to Civil Proceedings

Boddie v. Conn (1971)
 Filing fee in divorce case (constitutes deprivation)
 Would state also have to provide free counsel?


 Combination of wealth discrim and FR to marriage
US v. Kras (1973)
 Refuses to extend Boddie
 Bankruptcy does not stand in same shoes as divorce


Not a fundamental right
State doesn’t have monopoly in this area
Orttwein v. Schwab (1973)
 Same as Kras
Fall 2006 Con Law II 4

Dandridge v. Williams
(1970)
Facts:

Differential amount of AFDC (welfare) per child
Precepts


No DP right to welfare (positive right)
Can’t discriminate in welfare grants:
 Along suspect class lines (e.g., race, but not wealth)
 If welfare is an EP fund. right
 If burdens some other DP or EP fund. right
Claim:

Burdens the fund. right to procreate
Fall 2006 Con Law II 5

San Antonio v. Rodriguez
(1973)
Disparate Impact

Different per pupil school expenditures
Edgewood ISD Alamo Heights
96% minority 19% minority
Avg property value
$5,960/pupil
Avg property value
$49,000/pupil
Local exp.= $26/pupil Local exp.= $333/pupil
Total = $356/pupil Total = $594/pupil
Fall 2006 Con Law II 6

San Antonio v. Rodriguez
(1973)
Disparate Impact


Different per pupil school expenditures
Falls along wealth and race grounds
 Wealth Discrimination

Purposeful but not suspect class
 Race Discrimination

Suspect class but not purposeful
Fundamental right


Intentionally discriminatory in exercise of education
Is this an EP fundamental right?
Fall 2006 Con Law II 7

San Antonio v. Rodriguez
(1973)
Free Education as fundamental right

Textualist arguments?
 Broad textualism (penumbralism) – essential to exercise of all other constitutional rights



Originalism?
 Not provided historicalliy
Dynamic (evolving constitution)
 Although a fundamental right in most other countries (and states), Court rejects approach
Non-Interpretivist
 Essential to a system of ordered liberty?
Fall 2006 Con Law II 8

Plyler v. Doe
(1982)
Standard of Review


Fall 2006
Suspect Class?
 Their status is not a “constitutional irrelevancy”
 Undocumented children are “special members of this underclass”
 Not suspect, or even quasi-suspect, but almost
Fundamental right to an education
 Not fundamental (for EP purposes), but supremely important
 Education plays a “fundamental role”
 Nature of the burden imposed (means employed)
 total denial, not just diminished quality
Con Law II 9

Plyler v. Doe
(1982)
Standard of Review

Introducing “rational basis with bite”
ENDS

Conservation of scarce resources ($$)
MEANS
(classification)

Undocumented aliens denied public education
FIT
(how well does this classification serve state interest)

Relegating members of work force to illiteracy can hardly be in the state’s economic interest
 Poor fit
Fall 2006 Con Law II 10

Plyler v. Doe
(1982)
Standard of Review

Introducing “rational basis with bite”
ENDS

Deterring Illegal Immigration
Is this a permissible state objective?
MEANS
(classification)

Undocumented aliens denied public education
FIT
(how well does this classification serve state interest)

Illegal immigration is in pursuit of economic opportunity, not education, health care, etc.
 Poor fit.
Fall 2006 Con Law II 11