Constitutional Law II Outline

Procedural Due Process: the procedures the government must follow when it takes away a
persons life, liberty or property. (Notice && right be heard)
Questions to ask for Analysis
1. Whos doing the depriving? (Looking for a state actor here)
a. 10th Amendment: No state shall deprive a citizen of their life, liberty, or property
without due process of law
2. Is there a Deprivation? (Is a liberty (substantive right) or property interest (NOT defined
by the Constitution; look to some independent source [K, statutory entitlement, etc] for
this) being taken away?) Social Security (disability---considered property interest)
3. How much process is due? (Finesse Testsometimes you need a little, sometimes you
need a lot; the greater the interest, the greater the process; depends upon the liberty or
property interest is at stake) This is the balancing test applied.

Substantive Due Process: whether the government has an adequate reason for taking away a
persons life, liberty or property. Just taking about dry water.
Liberty: freedom right
Two due process clauses:
- 5th amendment (applies against the federal government)
- 14th amendment (against states)
14th amendment adopted in 1868
Rational Basis: reasonably related and neither arbitrary nor discriminatory (capricious,
erratic) reasonable minds differ
Amendment 14 section 1
1. Citizenship born or naturalized
2. P & I of national citizens
a. Federal Government
b. National Character
c. Constitution
d. Laws
3. Due Process Clause (doesnt use the word citizens, applies to persons which includes
aliens) life, liberty, or property
4. Equal Protection
Lawrence v. Texas fundamentally protected liberty interest to engage in consensual sexual
relationship
Barron v. Baltimore
1

S.Ct. decided the first 10 amendments were expressed in general terms and therefore
would only apply to the federal government
o States have their own constitutions
o Constitution can only limit states when expressly stated
o Never overruled
Slaughterhouse cases
First time the S.Ct. interpreted the Bill of Rights and determined that it only protects the
rights we have by being a citizen of the U.S., not a citizen of states
o Bill of rights are common law and therefore do not owe their existence to the
constitution
o Privileges and Immunities National Citizenship Test: those that owe their
existence to the federal government, its national character, its constitution or its
laws
o Never overruled
Selective incorporation: incorporated nearly every right of the Bill of Rights and up to the 14th
amendment:
- Not incorporated:
o 3rd amendment solider quartered in a home
o 5th amendment right to a grand jury indictment
o 7th amendment right to a jury in a civil trial
o 8th amendment excessive fines
LOCHNER ERA
Allgeyer v. Louisiana
Louisiana attempts to stop out of state companies from enjoying contracts with Louisiana
residents.
o S.Ct. determined unconstitutional because Liberty of Contract
o Decision based on the freedom to contract
It is unconstitutional for the government to interfere with ones LIBERTY to contract under the
due process clause.
The word liberty in the Due Process Clause of the 14th Amendment interpreted to include
economic liberties
Lochner v. New York (Judicial Deference to Legislative Choices in this Era)
NY attempted to limit the number of hours that bakers could work. NY claims police
powers for health and safety reasons
o S.Ct. determined unconstitutional because of Liberty to Contract
th
Both 5 and 14th Amendments Due Process Clause assume Liberty to K.
No legitimate Police power, unconstitutional as to Liberty of K.
Legitimate police power would allow for interference with ones freedom to K. (Ct
decision)

Coppage v. Kansas
Kansas says it is illegal to require employees to agree not to join a union as a condition of
employment
o S.Ct. determined this is not allowed because of the freedom to contract
It is outside the scope of state police power to prohibit employment contracts that bar
workers from joining a union.
Muller v. Oregon
Brandeis brief attempted to set the maximum hours that women could work. The State
justified as a valid police power.
o S.Ct. upholds the statute to protect woman
Valid police power to protect women from overworking
Adkins v. Childrens Hospital
This case deals with an Act by Congress that set a minimum wage for women and
children to balance an unequal bargaining power.
o Ct determines this is arbitrary because it has nothing to do with the type of work
or the persons skills
o Ct determines unconstitutional
o Case brought under the 5th amendment Due Process Clause
o OVERRULED by West Coast Hotel v. Parrish
Weaver v. Palmer Bros. Co.
Shoddy material used and a statute prohibits the use
o No evidence showing any health or safety hazard
o Statute is arbitrary and unreasonable
Violates the due process clause of the 14th Amendment because buyers should be free to
choose what kind of materials they want to purchase.

Any time the state tried to interfere with a K, presumption against

Violation of Substantive Due Process Rights, the only acceptable state claim was for
safety, health, moral, or general welfare
Nebbia v. New York
NY set a minimum and maximum for the price of milk
o Ct determines that under the freedom of contract this is OK
o This act prevents ruthless competition
o Milk is an essential part of the diet
o Rational Basis: reasonable relationship and not arbitrary or discriminatory
Stands for the proposition that it bears a Minimal Causal Connection with the minimum and
maximum of the sale of milk, thus not arbitrary
3

SECTION RECAP:
No exclusive definition for liberty in the 14th Amendment
Ideological interpretation of the substantive due process
The right you got was right to K
This substantive due process was going to change
The Ct changed w/ FDR and the New Deal

1937-Now
ECONOMIC SUBSTANTIVE DUE PROCESS
West Coast Hotel v. Parrish
State of Washington set the minimum wage for women. The state claimed that protecting
women is in the publics interest.
o Case brought under the 14th amendment due process clause
o S.Ct. used rational basis to determine the minimum wage law is constitutional
o As long as reasonable minds differ it will be upheld
Must show that its arbitrary and capricious and basically we ALL agree
for it not to be rational
o This case overruled Adkins case
A state can set the minimum wage for women
Struck down Lochner
3 NEW themes:
1. States can act to further any purpose not forbidden by the Const. (10th Amend)
2. States not limited to using JUST police powers
3. States may use any way that is reasonable to achieve their ends
United States v. Carolene Products Co. 1938
Congress passed the Filled Milk Act which prohibited milk being sold and shipped
through interstate commerce that was compounded with any fat or oil other than milk
fact.
o Congress relies on their commerce power
o Footnote 4 is very importantsee page 627-628 of textbook
Paves the way for higher judicial scrutiny
o Ct uses rational basis to uphold the legislation (any basis to uphold the legislation
and it will be upheld)
o Economic Liberties are not fundamental; receive Rational Basis Review
Williamson v. Lee Optical of Oklahoma Inc.
State law prohibited any person from fitting or duplicating lenses unless a licensed
ophthalmologist.

o The day is gone when this Court uses the Due Process Clause of the 14th
amendment to strike down state laws, regulatory of business and industrial
conditions, because they may be unwise, improvident, or out of harmony with a
particular school of thought.
o People should resort to the polls, not to the courts
o Ct. determines the law is OK and if people want change then they should vote for
change
o Ct used rational basis
State Action!!!
BMW of North America, Inc. v. Gore
Gore sued over his BMW being repainted before being sold for full price. Settlement of
$4mil punitive damages involving only $4,000 actual damages. The punitive was reduced
to $2mil. Issue is whether the punitive damages are grossly excessive.
o Ct. used this test to determine punitive award is grossly excessive:
The degree of reprehensibility (HOW BAD WAS IT?)
The disparity between the harm or potential harm and the punitive damage
award (RATIO)
The difference between the remedy and the civil penalties authorized or
imposed in comparable cases (AWARD COMPARED TO CIVIL
PENALTIES)
o Ratio of 500 to 1 raise a suspicious judicial eyebrow
o Transcends the constitutional limit
A person can sue for punitive damages, but they must be limited to the damages suffered.
State Farm Mutual Automobile Insurance Co. v. Campbell
Award of $145 Mil punitive and $1 Mil compensatory damages
o S.Ct. used BMW guideposts to reach a decision
o 145 to 1 ratio
o Single digit multipliers are more likely to comport with due process (1 to 9 max)
o Punishment must be reasonable and proportionate
o Grossly excessive under the due process clause
Philip Morris U.S.A. v. Williams
Williams died after smoking for most of his life; his widow sued. The jury awarded $79.5
Mil in punitive damages designed to punish the company for its actions against smokers
who were not part of the suit.
o S.Ct. determined you cant punish for others, only the plaintiff in the case
o Such an award would amount to a taking without due process
o Single digit award is constitutional, double maybe
The Contracts Clause:
- History: preventing states from passing laws that could end obligations after
Revolutionary war
5

Limits regulations on existing contracts, but not future contracts

Level of review: Rational Basis
No Federal Contracts Clauseonly applies to States
State/Local Govt may interfere with private Ks, only if actions are reasonably and
narrowly tailored to serve legitimate and important govt interest.
Analysis:
1. Substantial Impairment
2. Sig end, legit public purpose
3. Conditions reasonably related to mtg public purpose
Home Building & Loan Assn. v. Blaisdell
Minnesota Mortgage Moratorium Law allowed people more time/postpone foreclosure
sales during economic emergency times.
o State used a reserved power
o Ct. determined that mortgages were not abolished but simply delayed
o This is a temporary measure and the obligation remains therefore it does not
violate the Contracts Clause.
o Ct. determined that an emergency existed, legislation was addressed to a
legitimate end, relief was justified, the length of time for relief was not
unreasonable and legislation was temporary.
o Degree of Impairment was not considered substantial; delayed obligation, rather
than abolishing it; interest to society itself, individualized protection; no benefit to
the state, help to citizens
Energy Reserves Group, Inc. v. Kansas Power and Light Co.
Kansas adopted a law that provided the price to be paid for natural gas under a contract
could not be increased because of the prices set by federal authorities. The state law
prevented the natural gas producer from charging higher prices that it was entitled to
under the contract.
o In order to determine whether this law violates the Contracts Clause, 3 step test:
Does this amount to a substantial impairment?
Is there a significant and legitimate public purpose?
Are the conditions reasonably related to meeting the public purpose?
o Ct. determines Kansas did not violate the Contracts Clause
o Significant public interest, protecting consumers, no per say state interest
Allied Structural Steel Co. v. Spannaus
Minnesota created a pension law that interfered with Allieds pension structure.
o Ct. determined that the state law operated as a substantial impairment on the
contractual relationship.
o Due to the severe impact, the State law is unconstitutional under the Contracts
Clause.
o K was in place before the law was created, cannot come up with pension act to
force payment
United States Trust Co. v. New Jersey
6

In 1962 NY & NJ prohibited toll revenues to subsidize the rail service for the purpose of
ensuring the tolls covered the bondholders. Once the energy crisis hit, both NY & NJ
repealed the laws to allow the tolls to support the rail service.
o Ct. determined that the Contracts Clause prohibits the repeal of the 1962 covenant
o If a State could reduce its financial obligations whenever it wanted to spend the
money for what it regarded as an important public purpose, the Contracts Clause
would provide no protection at all.
o When the govt interferes with govt K, high standard (strict scrutiny)
o Bondholders had expectations of the bonds and what was expected of their K
o Difference: unlike the previous cases , no PUBLIC interest at stake, only
beneficiary is state, where bondholders are jeopardized.
The Takings Clause (5th Amendment):
- Limitation on the federal government
- 1st right incorporated from the Bill of Rights
- Private property, taken, for public use, and has paid just compensation
Purpose is to provide assurance that the govt will not take property from some to give to others
Spreading Loss to avoid individuals having to bear the cost of particular public good, which
should be for everyone to bear.
Has a taking occurred? Requirements
1) Two types:
Physical Taking: occurs when the government confiscates or physically occupies property.
Regulatory Taking: occurs when the governments regulation leaves no reasonably
economically viable use of the property.
2) For a Public Use or Purpose
Analysis:
Private property
Taken (physical, occupying, regulation)
Public use (Public Purpose Requirement)
Just compensation (Reasonable Value for the property)
Loretto v. Teleprompter Manhattan CATV Corp.
NY law provided that landlords had to allow cable television operators to install cable on
their property. NY believed cable to be important and it gave tenants a choice.
o Ct. determined that the cable running on the building is a taking because of the
permanent physical attachment and the government authorized it by creating a
law requiring landlords to allow the attachment.
o Regardless of the extent of the occupation, just compensation must be paid
Pennsylvania Coal Co. v. Mahon
PA statute prevented the mining of coal under a property in such a way as to remove the
supports and cause a subsidence of the surface of their house. State claims act is designed
to protect the safety and the surface of the property.
7

o Ct. determines the general rule is that just because there is a regulation does not
amount to a taking, however if it goes too far it will be recognized as a taking &
the govt must pay just compensation.
o Consider the extent of the taking
Miller v. Schoene
NOT a taking
Cedar Rust Act- allows the killing of cedar trees in order to protect the apple trees.
Apple orchards were important to the economy
Public Interest involved in the trees and Economy
o Ct. determines this is the only practicable method to control the disease, the
choice is unavoidable and therefore not a taking this does not go too far.
Ad Hoc Test: 1) economic impact of the regulation on the claimant; 2) the extent to which the
regulation has interfered with investment-backed expectations; and 3) the character of the
government action.
Penn Central Transportation Co. v. New York City
NY established historic landmark law that is designed to preserve historical landmarks.
Case involved Grand Central Station, owners of Grand Central wanted to build on top of
the building, but the historic landmark would not allow. The court applied the Ad Hoc
Test.
o Ct. determined that economic value is not effected, not a complete prohibition
and no physical invasion.
o Any regulation that amounts to anywhere between no effect and total effect is
subject to the following factors:
(1) the economic impact of the regulation on the claimant
(2) the extent to which the regulation interferes with expectations
(3) the character of the governmental action.
o Not a taking
Lucas v. South Carolina Coastal Council
Lucas bought beachfront property with the intention of building on it. Two years after
purchase S.C. enacted the Beachfront Management act that barred Lucas from building
on the land.
o Ct. determined the act left Lucas with no economically viable use, therefore it
was a taking that resulted in compensation.
o Taking = total deprivation of the economic use of the property.
The Govt does have a right to take private property but the owner MUST be properly
compensated
Where there is no economically viable use, it is a taking

Nollan v. California Coastal Commn. (ZONING ORDINANCE)

CA limited building on a beachfront on the owners granting the public an easement to

cross the property for beach access.
o Ct. determined taking because of easement and the condition does not relate to
the government purpose.
o The land use regulation is extortion.
The condition MUST relate to the govt purpose.
*Strong presumptions in favor of zoning ordinances
Dolan v. City of Tigard (ZONING ORDINANCE)
Dolan wanted to expand her store and the city conditioned the expansion on dedicating a
portion of the property to provide adequate storm drainage and a pedestrian and bike
path.
o Cannot use the conditioning of the property to obtain an easement
o Ct. determines Roughly Proportionate is the proper test for the 5th amendment.
The condition placed on the development must relate to the development.
Stricter than rational basis
There must be some proportionality between the condition and the impact
on the proposed development
Palazzolo v. Rhode Island
Palazzolo bought land under a corporation name in 1959; he attempted to build on the
land several times and was prevented by the state. In 1978, the corporate charter was
revoked, transferring title solely to Palazzolo. Again attempts were made to build on the
land. In 1971, Rhode Island enacted legislation calling Palazzolos land a coastal
wetland. Palazzolo sued for a taking because of the complete bar of building on his land.
Inverse condemnation proceedinggovt takes the property, but fails to pay just
compensation for the loss of value
o Time does not lessen the burden of the taking and therefore even an owner who
takes title of the property after a government regulation can still claim the taking.
o The property was not a total taking because it retained 6% of its total
development value and Palazzolo can still build on the property.
Koontz v. St. Johns River Water Management District
Conditions, whether precedent or subsequent, are unconstitutional
Would have been a taking, but nothing was ever seized
Remanded to the state court to assess damages that may be available
Nolan/Dolan requirements should also be applied here.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
Lake Tahoe imposed a 32 month moratorium on development to formulate a
comprehensive land use plan.
o Ct. weighs the fairness and justice interests and determines the 32 month
moratorium is not a taking.
Hawaii Housing Authority v. Midkiff
9

Hawaii enacted legislation to break the oligopoly of land ownership by creating the HHA
which enables the HHA to condemn and seize the properties.
o Ct. discusses public use; calling it well-nigh conclusive (meaning all but) gives
deference to the legislature.
o Any conceivable justification and it is permissible
o The act is constitutional because the landowners are compensated and it is for
public use.
Kelo v. City of New London
New London condemned private residences in order to use their property as part of a
planned economic development.
o Ct. determines economic revival is public use
o Any conceivable public use will be allowed
o Used Midkiff and Berman to hold that a taking is for public use so long as the
govt acts out of a reasonable belief that the taking will benefit the public.
The court gives unlimited discretion as far as the determination of eminent domain in finding
there is a public purpose.
Brown v. Legal Foundation of Washington
Interest from client funds in a lawyers trust account automatically became the property
of the Legal Foundation of Washington because the State enacted a program for trust
accounts.
o Ct determines that the money is not payable to the client and therefore no taking
and no compensation is required.
o Just compensation is measured in terms of what the owner has lost, not what the
taker has gained
Equal Protection
14th amendment: No state shall no explicit statement for the federal government, but the S.Ct.
has interpreted the 5th amendment Due Process clause to apply EP to the federal government
Due Process clause measures the constitutionality of
Framework for EP Analysis:
General Issue: Can the govt ID an important objective for its discrimination?
Questions to ask: 1) What is the governments classification? 1a) Is it discriminatory on its face?
1b) Or is it neutral but has a discriminatory effect? (Discriminatory impact is not enough, must
show a discriminatory purpose)
Race, national origin and sometimes alienage= suspect classification= strict scrutiny
- Burden of proof is on the government
- Strict Scrutiny: 1) compelling/overriding governmental interest; 2) means chosen is
narrowly tailored/least restrictive or no other way
Gender, non-marital children= intermediate scrutiny
- Burden of proof is on the government
10

Intermediate Scrutiny: 1) important governmental interest; 2) substantially related to that

interest
All other classifications= rational basis
- Burden of proof is on the party who is attacking
- Rational Basis: 1) no legitimate governmental interest; 2) not rationally related
o Legitimate governmental interest= any governmental interest
o If reasonable minds can differ it will be constitutional
o Strong presumption in favor of the government
o Unconstitutional if arbitrary & capricious
Meaningful Rational Basis (falls between rational basis and intermediate scrutiny): Rational
Basis with a bite
Over-inclusive vs. under-inclusive (simply either is not enough to render unconstitutional)
- Over-inclusive means it contains more than necessary;
- Under-inclusive means it doesnt include everyone; law does not apply to ALL
individuals who are similar to those whom the law applies

Colorado adopted an amendment to prevent discrimination statues from protecting people

on the basis of sexual orientation.
o Immediate objective was to repeal existing statues, regulations, etc.
o Amendment withdrew from homosexuals, no one else
o Nullified specific legal protections for homosexuals in all transactions
o Operated to repeal laws and policies that provided specific protections for
homosexuals
o Imposes special disability on this class
o Had the peculiar property of imposing a broad and undifferentiated disability on a
single named group, an exceptional and invalid form of legislation
o Sheer breadth so discontinuous with its reasons offered for it that the amendment
seems inexplicable by anything but animus toward the class it affects; it lacks a
rational relationship to legitimate state interests.
o Ct. determined no rational reason other than harming homosexuals
The only purpose was to make them unequal
Bowers v. Hardwick determined sexual orientation to be rational basis
level of review
United States Railroad Retirement Board v. Fritz
Retirement act created different categories for retirement benefits, eliminating some from
receiving windfall benefits. class sought declaratory judgment that the Act was
unconstitutional under the Due Process clause of the 5th amendment because it
irrationally distinguished between classes of beneficiaries.
o Sup. Ct. determined Congress had a plausible reason for creating the categories
and therefore under rational basis, no violation.
Railway Express Agency, Inc. v. New York
11

NY enacted an advertising statute that prohibited advertising on vehicles unless the

vehicle was part of the company, i.e. no mobile billboards.
o NY claimed this statute was to prevent distractions to drivers
o Ct. determined that statute was constitutional under rational basis because NY had
a reason for creating the statute

New York City Transit Authority v. Beazer

TA will not allow anyone who uses methadone to work for the TA. This rule is a blanket
prohibition on any drug user, including methadone (designed to get the person off drugs).
o Ct. used rational basis level of review and even though it is overinclusive the TA
has a reason to exclude (high rate of relapse); therefore constitutional.
U.S. Dept. of Agriculture v. Moreno
1964 Food stamp act excludes people from the program who have an unrelated
individual living in the household.
o Amendment created to prevent hippies from participating, stop people from
abusing the system and prevent unstable households.
o Not enough to be a legitimate interest and therefore does not pass rational basis
o No relation to the policy for food stamps
City of Cleburne, Texas v. Cleburne Living Center, Inc.
Texas has a requirement for a special use permit in order to open a mental retardation
home. Cleburne was denied the permit.
o Ct. determines mental retardation does not amount to a suspect class and therefore
rational basis level of review.
o Ct. says that this would open the flood gates if this class was made to be a special
class, everyone would be suspect class.
o Ct. determines unconstitutional even under rational basis because irrational
prejudice no justified reason.
Classifications based on race- suspect classifications
Dred Scott v. Sanford
Dred Scott was a slave that was taken from a slave state to a free state. Scott sued for
freedom.
o Ct. rules that Dred Scott is not a citizen, property only and therefore not entitled
to sue.
o This case made the Missouri Compromise unconstitutional. Under the constitution
slavery is protected property.
o Never expressly overruled, but overruled by the 14th amendment
1865: 13th amendment freed slaves
1868: 14th amendment created EP, overruled Dred Scott

12

Classifications based on race are a suspect classification regardless of benefit or disadvantage

and therefore Strict Scrutiny applies
Demonstration existence of a race or national origin classification:
o On its face
o Discriminatory administration/impact (also requires proof of discr. purpose)

Korematsu v. United States

During WWII, exclusion order required all persons of Japanese ancestry to leave the
military area of the Western U.S. Korematsu was convicted of violating the order.
o Ct. upholds the law because it is impossible to separate and it was a time of war.
o Ct. gives deference to the military to determine what is best during a time of
emergency/war.
o Compelling interest: National Security
o Strict Scrutiny application articulated: All legal restrictions which curtail the civil
rights of a single racial group are immediately suspect. (pg 757)
o Dissent: Calls it legalization of racism; says no racial discrimination is
justifiable; race, and not emergency alone led to the exclusion order.
o Jackson Dissent: Supreme Court should not decide whether military make
reasonable judgment
Loving v. Virginia
Virginia statute made inter-racial marriages between whites and blacks illegal. State
claimed the purpose was to keep racial integrity and prevent corruption of blood, the
obliteration of racial pride.
o Trial judge opinion: God created us differently, and separated us; He did not
intend for the races to mix
o Ct. determines no overriding purpose
o Statute not neutrally applied (applies only to whites & blacks)
o Under EP & fundamental right to marry this violates the due process clause and is
therefore unconstitutional
Palmore v. Sidoti
White mother divorces white father, they had a child together and the mother retained
custody. The mother then started dating a black man, he moved in. The father fights
custody because he doesnt want the child to live with a black man.
o S.Ct. determines that custody cannot be denied based solely on private biases and
possible injuries based upon racial reasons.
o S.Ct. determines the trial court used racial prejudice and therefore says its
unconstitutional.

Plessy v. Ferguson
Louisiana act provided for separate railway cars for whites and colored races. Plessy, 7/8
white, 1/8 black took a vacant seat in the white section of the train, He was ordered to

13

vacate the car, and upon his refusal, he was ejected by a police officer and taken to jail.
Charged with violation of this act.
o Case is key as constitutionalizing separate but equal under the 14th amendment
o State chose to separate for safety reasons
o Found that this was within the states exercise of their police powers
o Dissent: Called for color blind constitution; predicted that this decision would
be as infamous as the Dred Scott case;
Brown v. Board of Education
Case deals with segregated schools. Five cases consolidated into this opinion
o Ct. determines separate but equal has no place in the education system.
o Used social sciences to make decision
o Unanimous Decision
Brown I 1954
This involves cases from three states, African Americans seeking public schools without
segregation. Separate but equal in school is unconstitutional under EP.
This case mandated the dismantling of segregated school system.
Shift from dual to unitary schools
1.
2.
3.
4.
5.

Primary Responsibility of implementing Brown is with the School Board

Federal courts: Equitable Jurisdiction
as soon as practicable
with all deliberate speed
Objective is to eliminate state imposed segregation

Brown II- 1955 (fully implemented in 1969)

School authorities are charged with complying with the mandate of this decision.
Equitable Remedies are available when legal damages will not make the party whole.
o $ is not enough (legal damages)
o Ct. determines that school authorities must make a prompt reasonable start,
as soon as practicable with all deliberate speed.
School board has the B/P of showing they are making a good faith
effort.
Ct. knows it will not be an overnight change
o Ct. determines that a dual school system violates the constitution and we must
dismantle
Swann v. Charlotte Mecklenburg Board of Education
Busing used as a means to integrate with an objective to eliminate state supported
segregation.
o Ct. discusses de jure segregation (segregation by operation of law) and de facto
(segregation by practice)

14

o Ct. says its powers will go as far as need be to correct the wrong, they will and
can do whatever is necessary to end segregation. Eliminate all vestiges of
segregation.
o Remedial Tools (problem areas) to integrate:
1) racial quotas- starting point only, although not favored
2) single-race schools- NOT per se unconstitutional, but strong
presumption against
3) altering attendance zones- this is ok and non-discriminatory
4) busing transportation is ok
Proving de jure segregation: MUST show segregation w/in school district resulted from
deliberate decisions made by school board
Milliken v. Bradley
Detroit is racially segregated on its own. The African Americans live in the city and the
Whites live in the suburbs. Detroit wanted to bus kids from the suburbs to the city and
kids from the city to the suburbs in order to break up the segregation.
o Ct. determines that the city is de jure segregation but the suburbs are de facto.
o You cant force a remedy on a district that has never violated the constitution.
o Ct. says inter-district relief is appropriate, cannot mix de jure and de facto.
De jure can be corrected by court because there is a constitutional
violation.
De facto cannot be fixed or corrected by a court because there is no
constitutional violation.
Board of Education of Oklahoma City Public Schools v. Dowell
Case involves the finger plan, plan designed to end segregation.
o Dowell Two Prong Test: 1) good faith compliance by school board to meet
desegregation decree and 2) the vestiges of past discrimination had been
eliminated to the extent practicable.
Freeman v. Pitts
Federal desegregation orders will end when its complied with, even if other orders for
desegregation remain in place.
o Ct. held that once one aspect of desegregation is completed, the court will no
longer have the ability to control because it has been complied with. This applies
even if other aspects of desegregation are still being attempted.
Missouri v. Jenkins
Kansas City was ordered to desegregate. The court ruled the efforts made by Missouri for
desegregating were impermissible.
o The district court attempted to attract non-minority students from outside the
district to attend to decrease the segregation.
Ct. ruled this is impermissible because the students outside of the district
were not under the desegregation order.
o S.Ct. ruled that the district court lacked authority to increase the teacher salaries
15

District Court believed an increase in salaries would promote

desegregation but S.Ct. determined not a necessary remedy.
o Disparity in test scores was not enough to continue a desegregation order.
Ct. determined equal opportunity does not mean equal results.
Parents Involved in Community Schools v. Seattle School District. No. 1
Seattle voluntarily adopted student assignment plans. The school would choose where a
student attended school based solely on the students race. The parents of the students
that were denied admittance to a school based solely on race brought suit.
o Ct. determined that once a school is no longer under a court order the school will
be treated as though there was never desegregation.
o Ct. determined the plan is in violation of the constitution under Strict Scrutiny.
Johnson v. California
This case involved segregating prisoners based on race.
o Ct. does not decide the EP issue but remands and requires Strict Scrutiny be
applied in determining.
Washington v. Davis
This case involved a written police exam that had the effect of preventing a
disproportionate amount of African Americans from becoming members of the police
force.
o Ct. states that a law neutral on its face with discriminatory effects is not enough,
there must be discriminatory intent.
o Disproportionate impact is relevant, but not enough to invoke the Strict Scrutiny
standard of review.
Under rational basis you must show the purpose of the rule if the statute is
neutral on its face.
McCleskey v. Kemp
This case involved a challenge to the death penalty statute of GA. The record showed that
the death penalty was disproportionately sought and applied to African Americans.
o Ct. rules that you must show the decision maker continued to use the statute
because of not in spite of.
Awareness is not enough
City of Mobile v. Bolden
City Commission of three members is elected from the voters of the entire city at large.
The city was predominately white, which resulted in an all-white committee; however 1/3
of the city is African American.
o Even though there has never been an African American elected, it is not enough
to show discriminatory purpose.
o Ct. rules that a law neutral on its face must have a discriminatory purpose to
violate the constitution.
Rogers v. Lodge
16

Similar to Mobile v. Bolden. The court determined that this was a violation because in
1982 the amendments to the voting rights act eliminated the need to show a
discriminatory purpose when challenging an election system as being racially
discriminatory.
Palmer v. Thompson
Jackson Mississippi responded to a desegregation order by closing its public swimming
pools rather than desegregating them.
o There is not enough evidence to show that Jacksons decision to close its public
swimming pools was racially motivated.
o The States decision is neutral on its face and therefore no evidence of a violation
of EP.
Personnel Administrator of Massachusetts v. Feeney
This case involved a veterans preference statute. The problem is that 98% of veterans are
men so it has the effect of discriminating against women.
o Ct. rules that the statute is neutral on its face and that there is no intent to
discriminate.
o Test: not in spite of but because of
Neutral on its face then must show they discriminate because of

Village of Arlington Heights v. Metro

Petitioner wanted to rezone land to build low to moderate income housing but the request
was denied.
o Ct. determined that if it is neutral on its face but there is a stark pattern and the
only way to explain is through discrimination.
o Ct. needs to look at other evidence:
The historical background of the decision
Departures from normal procedural sequence
Substantive departures if the factors usually considered important by the
decision maker strongly favor a decision contrary to the one reached
The legislative or administrative history
o Ct. still determines lack of evidence to show a discriminatory purpose behind and
therefore constitutional
Yick Wo v. Hopkins (pg.798)
Chinese laundry case citys ordinance required laundries to be located in brick or stone
buildings unless a wavier is obtained. The petitioner alleged that over 200 petitions by Chinese
individuals seeking a waiver had been denied but ONE requested by a non-Chinese individual
was granted.
- Ct. determined STARK PATTERN because the administration was so exclusively
directed against a particular class of persons as to warrant and require the conclusion
that whatever the intent of the ordinance is so unequal and oppressive as to amount to
a practical denial by the state of the equal protection of the laws.

17

Gomillion v. Lightfoot
This case involved a citys drawing of the voting districts to exclude blacks from participating
in the citys elections. The city drew the district to be a 28 sided figure and all but 4-5 of the
400 blacks were drawn outside of the district with no whites being excluded.
- Ct. determined that the conclusion would be irresistible, tantamount for all practical
purposes to a mathematical demonstration, that the legislation is solely concerned with
segregating white and colored voters by fencing negro citizens out of town to deprive
them of their pre-existing municipal vote.

Preemptory Challenges- given to parties to use at their discretion

- Race or Gender cannot be the base of the challenge
Batson v. Kentucky three part test:
1. Defendant establishes prime facie case
2. Burden shifts to prosecutor to provide neutral reasons
3. Judge determines whether the neutral reasons are legitimate
In a criminal prosecution, equal protection clause prohibits prosecutors from using race as a
reason to exclude jurors
- In Edmonson, the court held the race cannot be used in civil cases
- Georgia v. McCollum held that criminal defendants cannot use race as a basis for
eliminating jurors
- J.E.B. v. Alabama held that Gender cannot be used a basis on either side for juror
exclusion.
Affirmative Action

Regents of the University of California v. Bakke***

100 seats to enter medical school; 16 set aside for minority seats which left 84 available
for any competition. This case represents racial classification on its face. In a 5-4 decision
without a majority opinion ruled that race may be used as one factor in admissions to
benefit minorities and enhance diversity.
o 4 justices: Stevens, Burger, Stewart and Rehnquist ruled that race should never
be a factor
o 1 justice: PowellEP= Strict Scrutiny when involving Race
o 4 justices: Brennan, Marshall, White and Blackmun are liberal ruling that EP=
Intermediate Scrutiny
o Within the confines of higher education, diversity is a compelling governmental
interest
Bakke said:
o Race means race
o Strict Scrutiny applies
Compelling govtl interest
Least restrictive/No Reasonable Alternative
o Race can be a factor; not the SOLE factor (Race-neutral alt must be included)
18

o Interests: correcting past discrimination && diversity

Fullilove v. Klutznick
S.Ct. again considered affirmative action but did not decide a majority opinion as to the
level of scrutiny
United States v. Paradise
Plurality opinion ruled that Strict Scrutiny was the level of review
Wygant v. Jackson Board of Education
This case involved faculty diversity of teachers. The school board was attempting to
diversify and was laying off white teachers even though they had more seniority than
some black teachers in order to prove diversity.
o Ct. ruled this was an impermissible affirmative action plan
o Plurality opinion: legitimate interests were not narrowly tailored (intermediate
level of review)
Richmond v. J.A. Croson Co.
Minority Business Utilization Plan was designed to increase minority business. The plan
required all city construction projects must be subcontracted to at least 30% minority
businesses.
o Ct. ruled that racial preference must be for remedial purposes and there is no
evidence of past discrimination in this case.
o Majority of the court even with plurality opinion determined Strict Scrutiny is the
level of review

Metro Broadcasting, Inc. v. Federal Communications Commission

Case decided a year after Croson in which the S.Ct. held that a congressionally approved
affirmative action plan only needs to be Intermediate Scrutiny
o Overruled by Adardand

Adardand Constructors, Inc. v. Pena

This case overruled Metro after a major change in S.Ct. In a majority opinion the court
ruled that all racial classifications, imposed by whatever federal, state or local
government actor, must be analyzed by a reviewing court under Strict Scrutiny.
o Racial classifications must serve a compelling governmental interest and must be
narrowly tailored to further that interest.
Grutter v. Bollinger
University of Michigan law school used a race conscious admittance program. The
admissions office considered many factors but race is taken into account.
o Ct. ruled Strict Scrutiny is the level of review.

19

o
o
o
o
o

The compelling interest is diversity (under Bakke this is a compelling

interest).
Race is not the only factor in determining, it is just one factor.
Ct. ruled that there was no possibility for the motive for the classification was
illegitimate racial prejudice or stereotype.
Ct. rules this narrowly tailored use of racial classification was sufficient to
achieve the compelling governmental interest and therefore is constitutional.
ALL racial factors receive strict scrutiny
Must not unduly burden non-members
Should be of a limited time; not open-ended (logical end to taking race into
consideration at all)

Gratz v. Bollinger
This case involved University of Michigans use of racial preferences in the
undergraduate admissions process. The college assigned points to each factor considered,
most factors are worth 5 points but race is worth 20. School stated the interest was
diversity.
o Ct. ruled that race cannot be sole factor or a predominant factor.
Not a narrowly tailored approach and therefore unconstitutional.
Fisher v. UT Austin
Found that the lower court did not apply strict scrutiny; remanded to the lower court for
correct application
Shaw v. Reno
When race is used as a predominate factor to draw district lines, strict scrutiny must be
applied.
o One way to show race is a predominate factor is if the district is a bizarre shape.
o Ct. rules that if the only interest is complying with voting rights that is not
enough.
Race must be the controlling factor
Easley v. Cromartie
Plaintiff must show a facially neutral law is unexplainable on grounds other than race.
o To determine if race is a predominate factor:
The districts shape
The splitting of towns and counties
High African American voting population
Gender Classifications
- Immutable characteristic (visible)
Reed v. Reed
This case was the first time the Supreme Court invalidated a gender classification. This
case involved estates where a male was preferred over a female.

20

o Rational Basis review was applied: a 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 similarly
circumstanced shall be treated alike.
Frontiero v. Richardson
Case involving a female member of the uniformed services to claim her male spouse as a
dependent; such benefits would automatically be given to a male, the female has a burden
to prove that her spouse is a dependent.
o Plurality opinion- gender based should be suspect class
o Ct. used Strict Scrutiny to rule this was unconstitutional
Stanton v. Stanton
Ct declared unconstitutional a Utah law that required parents to support their female
children until age 18, but their male children be supported until age 21. Ct declared the
law unconstitutional under any testcompelling state interest, or rational basis or
something in between.
Craig v. Boren
Oklahoma statute allowed females to purchase beer at age 18, but required males to be
21. The state claimed the interest was in safety.
o Ct. ruled that there must be an important governmental interest and it must be
substantially related to that interest to classify on the basis of gender.
Mid-level/Intermediate level of review
United States v. Virginia
Virginia Military Institute is an all-male school to produce citizen-soldiers; this case
was brought because women wanted to join VMI.
o Ct rules that Virginia has shown no exceedingly persuasive justification for
excluding all women from VMI.
Intermediate Scrutiny
Unconstitutional
Geduldig v. Aiello
Pregnancy or any disability related to pregnancy was not covered by the disability
insurance offered by California.
o Ct. used Rational Basis review and finds no discrimination because men cant get
pregnant and state has a legitimate interest in maintaining the insurance program.
This is an underinclusive program because not all disabilities are covered
Congress overruled the Ct by creating the Pregnancy Discrimination Act.
o Ct. says there is no risk from which men are protected and women are not and
there is no risk from which women are protected and men are not.
Orr v. Orr

21

Alabama alimony statutes provide that husbands, but not wives, may be required to pay
alimony upon divorce. State used a justification of helping needy women and to
remediate past discrimination.
o Ct used intermediate scrutiny and determined that needy is an important
governmental interest but it is not substantially related because needy males could
not get help.
There is no reason not to have a gender neutral statute
Mississippi University for Women v. Hogan
All female nursing school barred men from entering. University claims past
discrimination and this would disrupt the female students.
o Ct. said no past discrimination because nursing is 90% women and men are able
to audit to therefore it would not disrupt women if they were able to enroll.
o Ct. used intermediate scrutiny and defined exceedingly persuasive justification:
The burden is met only by showing at least the classification serves important
governmental objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives.
Michael M. v. Superior Court of Sonoma County
State statute makes statutory rape only a crime for men. Statutory rape is sex with a
minor (consensual or not). The state claims the important interest is to prevent
illegitimate teenage pregnancies.
o Ct. rules this is permissible because it is sufficiently related to equalize the
deterrents on the sexes.
o Ct says a gender neutral statute would frustrate its purpose because females would
not report the crime for fear of criminal prosecution.
Rational basis review because women can get pregnant and men cannot.
Rostker v. Goldberg
Military Selective Service Act only requires males to register for the draft.
Women are not permitted to participate in combat and therefore should not have to
register.
o Ct. gives great weight to Congress and the Military in determining.
Purpose of the SS is to have combat ready and since Congress determined
women are prohibited from combat, they cannot be combat ready and
therefore only males can.
o Ct. rules that Congress acted within the constitution and the SS act does not
violate.

Califano v. Webster
The Social Security Act allows women to get a slightly higher monthly payment to
remedy longstanding disparate treatment of women. Women are economically
disadvantaged by men.
o Ct. uses intermediate scrutiny and finds this constitutional because of the past
disparity.
22

Nruyen v. Immigration & Naturalization Service

Court allows a difference in INS rules favoring mothers over fathers because of the
greater certainty as to the identity of the mother as compared to the father and the greater
opportunity that mothers have in establishing a relationship with their children.
o Majority uses intermediate scrutiny to find constitutional
Alienage Classifications
1) Equal protection or 2) preemption
Questions to ask:
1) Who is doing the classification? - Level of review depends on federal or state
2) Documented or undocumented alien? (Documented are legally in the country)
3) Does the classification deal with social/welfare benefits, political processes or the inherent
right of citizens to be governed by citizens?-Social welfare= strict scrutiny
Graham v. Richardson
State conditioned welfare benefits on alienage (citizenship)
o Ct. ruled this violated the constitution and used strict scrutiny because the injured
were documented
Under the questions to ask: 1) state, 2) legal resident and 3) social welfare
Both over and under inclusion
Foley v. Connelie
NY State has a statute that does not allow people on the police force unless they are a
citizen.
o Ct used rational basis turning to political process as a reason for the statute
o State has the power to exclude aliens from participating in democratic institutions
o Citizens have inherent rights that aliens do not:
Right to vote
Right to seek office
Jury service
TEST: Non-elective positions that formulate execution, formulation, or
review (interpretation) of broad public policy will be held to RATIONAL
BASIS Standard of Review!
Ambach v. Norwick
NY education law forbids certification as a public school teacher to any person who
is not a US citizen, unless that person has manifested an intention to apply for
citizenship. This case involves two people who do not want to become a U.S. citizen but
want to teach.
o Ct. used rational basis to determine the NY statute is permissible.
Teachers set examples for students, they have influence over our children
and we have an interest in choosing who teaches our children.
Plyer v. Doe
23

Texas denied undocumented school-age children from free public education.

o Ct. used rational basis to determine that this is impermissible.
We cannot punish the children because of the status of their parents
Independent Federal Admin Agency---no deference; Foley Test applies; Strict Scrutiny
Executive and Legislative Govt Branch---broad deference applied; No application here;
Rational Basis
Non-marital Children
-intermediate scrutiny
Types: Age, Wealth, Disability, Sexual Orientation
Clark v. Jeter
S.Ct. declared unconstitutional a state law that required a non-martial child to establish
paternity within six years of birth in order to seek support from his or her father.
o The Court ruled that intermediate scrutiny is used for discriminatory
classifications based on illegitimacy.
We do not punish the child
Levy v. Louisiana
S.Ct. declared unconstitutional a state law that prevented non-martial children from suing
under a wrongful death statute for losses because of a mothers death.
o Legitimacy or Illegitimacy of birth has no relation to the nature of the wrong
allegedly inflicted on the mother.
Lalli v. Lalli
S.Ct. upheld a state law that provided that a non-martial child could inherit from his or
her father only if paternity was established during the fathers lifetime.
o State has an important interest in preventing fraud and that requiring paternity to
be established during the lifetime was substantially related.
Intermediate Scrutiny
Other types of Discrimination: Rational Basis Review
Massachusetts Board of Retirement v. Murgia
State law required police officers to retire at age 50.
o Ct. uses rational basis to determine this is valid
There is no fundamental right to work for the government
No special class for aging/ everyone ages
Legitimate state interest in safety and it is rationally related to that purpose
This is overinclusive but it does not make it invalid
Discrimination based on Disability: Rational basis is used but the American Disabilities Act
broadly prohibits discrimination
Wealth Discrimination: Rational basis

24

Discrimination based on Sexual Orientation: See Romer v. Evans = rational basis

Fundamental Rights
Defined: a right that is deeply rooted in our nations history and traditions
-key to these rights is LIBERTY
Court determines fundamental rights:
1) Traditionally recognized
2) History
3) Deeply embedded moral consensus that exists in society
4) So rooted in our traditions and conscience of our people as to be ranked as fundamental.
Zablocki v. Redhail
Statute prevented marriage if back child support is owed. The state asserted its interests
were to have an opportunity to counsel the applicant on fulfilling his obligations and to
ensure the welfare of the child.
o The Court determined the State interests were legitimate but they were unrelated
and not the least restrictive means to fulfill the states purpose.
o Marriage is a fundamental right and the state has other ways in place to meet the
States objectives without denying a fundamental right.
o The Court used intermediate scrutiny to rule this statute unconstitutional
sufficiently important state interest that is closely tailored
Stanley v. Illinois
Unwed fathers lost custody of their children if the mother died. The children became
wards of the state.
o Court determined this is impermissible. There is a right to conceive and raise
ones children.
The Ct. determines fathers have an interest.
States reason for this was a presumption that if the fathers did not care
enough to marry, they wouldnt care for the children.
Lehr v. Robinson
Case involved a non-martial father who had not supported his two-year old child and had
not registered his parental interest in a state registry.
o The S. Ct. ruled that the state could terminate his parental rights without notice or
a hearing.
Distinguished Stanley because in that case the father was active in the
childs life. Here, a simple biological link does not merit constitutional
protection.
Michael H. v. Gerald D.
California has a statute that provides a conclusive presumption that if a child is born
while the husband is living with the wife and the husband is not sterile or impotent, then
the child is that of the husband.

25

o Ct determines this presumption does not violate a fundamental right and is

therefore permissible.
o State may create an irrebuttable presumption that a married womans husband is
the father of her children
Moore v. City of East Cleveland, Ohio
Ordinance limits occupancy of a home to members of a single family. In this case, the
grandmother lived with her son, grandson and another grandson from another son.
o Ct rules this ordinance as violating the fundamental right of family. The citys
reasons for the ordinance may be legitimate but they only marginally are met with
this ordinance.
o Constitution protects the sanctity of family because it is deeply rooted in our
history and tradition.
Meyer v. Nebraska
This case involved a teacher that unlawfully taught the German language to a child 10
years of age.
o The Ct. determined that parents have a right to raise their child and to choose how
to educate them. However, a statute that makes it a crime to teach a child any
language other than the English language violates the Due Process clause.
o Learning a foreign language is not injurious to the health, morals or understanding
of the ordinary child.
Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary
Oregon created an act that required children from 8 to 16 years of age to attend only a
public school. It made it a crime for a child to attend private school.
o Ct. stated that parents have rights over their childrens care, custody and control
and therefore have the right to send them to private school if they choose.
Troxel v. Granville
Washington enacted a code that permits any person to petition the court for visitation
rights at any time and authorizes the court to grant the visitation whenever visitation is
in the best interest of the child.
o One of the oldest liberty interests recognized by the court is a parents
fundamental right in the care, custody and control of their children.
o Court holds the statute is much too broad and infringes on a parents rights and
therefore is unconstitutional.
Buck v. Bell
This case involved the involuntary sterilization of a mentally disabled woman. The court
upheld the sterilization. Justice Holmes said three generations of imbeciles are enough.
o Overruled by Skinner v. Oklahoma
Skinner v. Oklahoma
Oklahoma had a statute that would sterilize habitual criminals.

26

o Court overruled Buck v. Bell and stated that the right to procreate is a
fundamental right.
Court also says Marriage is a fundamental right
Court uses Strict Scrutiny for a fundamental right
Decided on the grounds of Equal Protection

Griswold v. Connecticut
Statute makes it a crime to provide birth control and for anyone to use birth control.
o Court recognizes the implicit right to privacy because of the intimate relationship
between husband and wife
o ONLY applies to marital relationships
o Statute is unconstitutional
o Privacy is not specifically expressed in the constitution
Implied by the 4th amendment, first amendment right of association, 3rd
amendment and the 5th amendment.
zone of privacy is created by several fundamental rights
Rights can be regulated but not completely banned
Eisenstadt v. Baird
Contraception was given to unmarried students, the statute treated married and single
people differently.
o Court applies right to privacy to individuals, married or single and declares this
statute unconstitutional.
Rational basis
Carey v. Population Services International
NY made it a crime for anyone other than a licensed pharmacist to distribute
contraceptives to anyone over the age of 15, to distribute contraceptives to a minor under
the age of 16 or to advertise contraceptives.
o Court used Strict Scrutiny and said compelling is the key.
Unduly restricted access to birth control and interfered with the right to
control procreation.
Roe v. Wade
Abortion rights
o Court determines that the womans right to choose stems from privacy interests
but the state also has an interest in safety.
o Court rules that abortion rights break down by trimester:
1st trimester (0 to 3 months) it is up to the mother and the doctor
(ABSOLUTE)
2nd trimester (3-6 months) state may regulate for mothers health (there IS
a compelling interest here)
3rd trimester-Post Viability (6-9 months) state has an interest in the life of
the fetus except for the mothers life or safety.

27

Planned Parenthood v. Casey

Deals with abortion rights
o Court reaffirmed Roes essential holding that a woman has the right to choose but
abandoned the trimester approach.
Court changes to viability/pre-viability reqt
About 23 weeks or 5 months (viable)
State may not place an undue burden pre-viability
Rules that unduly burdensome is the rule (cannot provide a substantial
obstacle in the womans right to choose pre-viability)
State has an interest in the potential life of the fetus
State has the power to restrict abortions after the fetus is
viable, unless the mothers life or health is in danger
o State may regulate at ANY POINT but cannot provide an undue burden
State has a legitimate interest from the beginning of the pregnancy in
protecting the health of the woman and the life of the fetus that may
become a child.
Reasoned Judgment
Gonzales v. Carhart
Partial birth abortion (at any time during pregnancy) banned by Congress
o Court determines that the ban does not place an undue burden.
City of Akron v. Akron Center for Reproductive Health, Inc.
This case was decided before Casey, it involves a 24 hour waiting period from the time a
woman signs the consent form before the abortion can be performed.
o The court ruled the 24 hour waiting period unconstitutional HOWEVER, this
issue was revisited in Casey and determined not to be an undue burden. Casey
also established that informed consent is not an undue burden.
Maher v. Roe
Medicaid limited paying for abortions unless they are medically necessary. Medicaid will
pay for childbirth.
o The Court determined that this is a policy choice left to the legislature.
o The right to choose is a fundamental right, but there is no right to have the
government pay for the abortion.
Court ruled that indigency is not a suspect class.
Appropriate forum is the legislature.
Never required to use govt money for abortions!
Planned Parenthood v. Danforth
Missouri law required that a husband give his written consent for his spouse to obtain an
abortion.
o Court ruled that this would give the husband a complete veto power.
o Woman has more with this decision because she is the one carrying the child for
the nine months and it is her body therefore the court weighs the decision more in
the womans favor.
28

o Court declared the required consent of the husband unconstitutional.

Planned Parenthood v. Danforth
Statute required that a married woman seeking an abortion must sign a statement that she
notified her spouse.
o Court determines that this is an undue burden (places a substantial obstacle in the
way of the womans right to choose).
Bellotti v. Baird
This case was decided before Casey and deals with a minors ability to obtain an abortion
without parental consent. This is a plurality opinion.
o Court determined that childrens rights are not the same as adults:
Children are vulnerable
Difficulty in making critical decisions
Parental role in child rearing
o State can require parental notice/consent but there must exist an alternative
Alternative is the judicial bypass (going before a judge)
Child goes before a judge and the court determines if the child is
mature enough to decide or if the abortion is in the best interest of
the child
Jacobson v. Massachusetts
S.Ct. upheld a law that required vaccinations because the government has a compelling
interest in stopping the spread of communicable diseases.
Washington v. Harper
Ct. determined that prisoners have a right to be free from involuntary administered
antipsychotic drugs. However this right to be free is protected by providing notice and a
hearing to challenge the decision to administer the drugs.
Cruzan v. Director, Missouri Dept. of Health
This case is similar to Terry Shivo. A womans parents wanted to stop her artificial
feeding and hydration equipment because it was apparent that she had virtually no chance
of recovering her cognitive abilities.
o Incompetent person is unable to make an informed choice.
o The burden is on the family to prove by clear and convincing evidence of what
the patients wishes would be regarding her life sustaining equipment.
Washington v. Glucksberg
Washington law prohibits aiding or causing a suicide. (Physician assisted suicide case)
o Court applied the rational basis standard to determine that the ban on suicide does
not violate the constitution.
o Due Process (KNOW FOR EXAM)
Specifically protects those ll and liberties which are deeply rooted in this
Nations history and tradition, and implicit in the concept of ordered

29

liberty such that neither liberty nor justice would exist if they were
sacrificed.
We require in substantive-due process cases a careful description of the
asserted fundamental liberty interest. Our Nations history, legal
traditions, and practices thus provide the crucial guideposts for
responsible decision making, that direct and restrain our exposition of the
Due Process Clause.
o Right to privacy DOES NOT include physician-assisted death
Vacco v. Quill
NY makes it a crime to commit or attempt suicide but patients may refuse lifesaving
treatment.
o Court determines that NY has valid and important public interests that satisfy the
rational basis analysis.
Everyone regardless of physical condition, is entitled, if competent, to
refuse unwanted lifesaving medical treatment; no one is permitted to assist
a suicide. doesnt discriminate
-

\
Whalen v. Roe
NY requires certain prescription drugs be written on triplicate form in order to maintain a
record of those drugs. NY claims an interest in regulating controlled substances.
o Court determines that NYs interest outweighs the privacy interest claimed to be
violated by the statute.
o Court validates the statute and holds it constitutional.
Saenz v. Roe
This case involved CA attempting to limit the amount of welfare benefits a new citizen
receives. CA states that a citizen who has not lived in CA for at least a year is entitled to
the welfare benefits that the person would have had in the state they lived in prior to
moving. Once the year is up, they are entitled to the higher CA benefits.
o Court states that citizens have a fundamental right to travel.
Strict Scrutiny
Shapiro v. Thompson: struck down a residency requirement
o Court says the right to travel:
Protects the rights of a citizen of one state to enter and leave another state
The right to be treated as a welcome visitor rather than an unfriendly alien
when temporarily present in the second state
For those travelers who elect to become permanent residents, to be treated
like other citizens of that state.
o Right to travel (Interstate, not International):
Ingress/egress
Inherent nature of our federal system
Articles of confederation
Commerce Clause of the Constitution (one nation)
30

Welcome Visitor
Article IV, sec 2 substantial/substantial test
Intermediate scrutiny
No discrimination
Right of new citizens to be treated like other citizens
14th amendment citizenship clause
Citizen of the U.S. is also a citizen of the state in which they reside
o Court strikes down CA residency requirement for the welfare benefits
Court has upheld residency requirements for in-state tuition and divorces
No fundamental right to international travel
Right to Vote
- Amendments: 15th (Denial on basis of RACE), 19th, 24th and 26th
- 14th amendment makes the right to vote a fundamental right
Reapportionment by the legislature is NOT a political question and therefore the Court can
decide.
- Congressional Reapportionment is HOR in Congress, legislative reapportionment is done
by the state legislature
- Reapportionment is always a state legislative function
Harper v. Virginia State Board of Elections
Virginia has a poll tax requiring voters to pay a small fee to cast their vote.
o Ct. says right to vote is fundamental so Strict Scrutiny is applied
The poll tax infringes on the right to vote and therefore is unconstitutional
Reynolds v. Sims
60 years since the last apportionment of the Alabama legislature.
o Ct determines that mal-apportionment violates equal protection.
o The Ct determines that districts should be apportioned to the population 1 person
= 1 vote
o Legislature must make an honest, good faith effort to draw a district of
equal population as is practicable.
Take the total # of votes and divide by the # of districts
Ex. 100 seats with a populations of 100,000
100,000/100 = 1,000 per district
After lines are drawn, count the population
o Determine the one that exceeds by the most and the one
that is under by the least
Take the difference between the most and the
least and that gives the variation %/.
Wesberry v. Sanders
1 person 1 vote applies to legislature, congressional seats, local govt officials, special
purpose govt unit,
o Dilution/reapportionment 1 person, 1 vote applies to HOR
31

Equal or same population

5.9% for HOR is not close enough
Only those minute variations in the quest for absolute voter
equality

Who has the duty to reapportion the state legislature? Entire state legislature
Who reapportions Congress (HOR)? State legislature draws congressional districts
o Ct. determined that below 9.6% for state legislature is honest/good faith effort and
therefore constitutional
o Above 16.4% is presumptively invalid
Kramer v. Union Free School District
Statue limiting the right to vote unless a person owned property or are parents of a child
enrolled in the school.
o Statute is over-inclusive and under-inclusive
o Ct. determines this statute violates the fundamental right to vote even if it is a
limited purpose election.
Salyer Land Co. v. Tulare Lake Basis Water Storage District
This case represents the EXCEPTION to the 1 person, 1 vote
o Special purpose government unit that disproportionally affects some more than
others, then you can have voting on some other basis than the 1 person, 1 vote and
it is constitutionally permissible.
Ball v. James
Arizona reclaimed water districts director are elected by voters but limits voter eligibility
to landowners and apportions voting power according to the amount of land a voter owns.
o Court rules the exception to the one person, one vote applies
o Limited purpose local government unit that disproportionately affects (exception)
Crawford v. Marion County Election Board
This case was decided 3-3-3 plurality opinion. Marion County requires a photo ID to
vote. The state interests are to deter fraud, modernize the election and to increase voter
confidence.
o Ct determines that requiring a photo ID is not a substantial burden on a persons
fundamental right to vote
The photo ID is provided for free
There are exceptions for religious reasons, etc. to accommodate.
Bush v. Gore

Shelby County, Alabama v. Holder

Dissent--- the decision here is the enumerated power of Congress (15th Amendment 6) to enact
legislation to enforce the provisions of Article 3
32

McCullough v. Maryland----end-means test

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection

Analysis
1. STRICT SCRUTINY (The government must show that the challenged classification serves
a compelling state interest and that the classification is necessary to serve that interest.):
A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community"
exception, in which case only rational basis scrutiny will be applied).
B. Classifications Burdening Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental
2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification
serves an important state interest and that the classification is at least substantially related
to serving that interest.):
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy
3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The government need only show that the
challenged classification is rationally related to serving a legitimate state interest.)
Minimum scrutiny applies to all classifications other than those listed above, although some
Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis
test") involving some weighing of the state's interest may be applied in cases, for example,
involving classifications that disadvantage mentally retarded people, homosexuals, or
innocent children of illegal aliens.

33