Constitutional Law Outline

I.

The Federal Judicial Power a. Requires cases and Controversies i. Standing: is the issue of whether P is the proper party to bring a matter to the court for adjudication. 1. Injury: P must allege and prove that he or she has been injured or imminently will be injured. a. P may only assert injuries that they personally have suffered. b. Ps seeking injunctive or declaratory relief must show a likelihood of future harm. Los Angeles v. Lions. c. P who has the actual harm (monetary) has the best standing on the exam. 2. Causation and Redressability: P must allege and prove that D caused the injury so that a favorable court decision is likely to remedy the injury; no advisory opinions. 3. No Third Party Standing: P cannot assert claims for others, of third parties, who are not before the court. a. Exception: third party standing is allowed if there is a close relationship between P and the injured third party (i.e. Dr./Patient relationship to attack abortion laws). b. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights. c. Exception: Associational Standing- an organization may sue for its members, (i)if the members would have standing to sue, (ii) the interests are germane to the organizations purpose, and (iii) neither the clam nor relief requires participation of individual members. 4. No generalized grievances: P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. The test will be obvious when it says that grievant is suing as citizen or taxpayer. a. Exception: Taxpayers have standing to challenge government expenditures pursuant to federal statutes as violating the Establishment Clause. ii. Ripeness: Ripeness is the question of whether a federal court may grant per-enforcement review of a statute or regulation. 1. The hardship that will be suffered without pre-enforcement review.

2. The fitness of the issue and the record for judicial review. Does court have everything to properly decide the issue? iii. Mootness: If events after the filing of a lawsuit end Ps injury, the case must be dismissed as moot. There must be a live controversy. 1. Exception: wrong capable of repetition but evading review (i.e. Roe v. Wade-pregnant women who want abortion no longer pregnant when case is decided). 2. Exception: voluntary cessation (if D voluntarily halts the offended practice but is free to resume it at any time). 3. Exception: class action suits (class action will not be dismissed as long as one member of the class has an ongoing injury). iv. The political question doctrine: the political question doctrine refers to constitutional violations that the federal courts will not adjudicate. 1. The republican form of government clause-these are issues that are left to the elected government, thus not enforceable by courts. 2. Challenges to the Presidents conduct of foreign policy 3. Challenges to the impeachment and removal process 4. Challenges to partisan gerrymandering. b. Supreme Court Review i. Virtually all cases come to the Supreme court by writ of certiorari. 1. All cases from state courts come to the Supreme Court by writ of certiorari. 2. All cases from US courts of appeals come to Supreme Court by write of cert. 3. Appeals exists for decisions of three-judge federal district courts. 4. The Supreme Court has original and exclusive jurisdiction for suits between state governments. ii. Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a US Court of Appeals, or of a three-judge federal district court. iii. For Supreme Court to review a state court decision, there must not be an independent and adequate state law ground for decision. If a state court decision rests on two grounds, one of state law and one of federal law, if the Supreme Courts reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. c. Lower Federal Court Review i. Federal courts (and state courts) may not hear suits against state governments. 1. The principle of sovereign immunity a. 11th amendment bars suits against states in federal court. State name cant be named in a federal suit.

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b. Sovereign immunity bars suits against states in state courts or federal agencies. 2. Exceptions: States may be sued only under the following circumstances a. State can waive/consent to be sued. b. States may be sued pursuant to federal laws under 14th amendment (limit on state sovereignty). Congress cannot authorize suits against states under other constitutional provisions. c. The federal government may sue state governments. d. Bankruptcy proceedings. 3. Suits against state officers are allowed when state officers may be sued for injury relief; state officers may be sued for money damages to be paid out of their own pockets (personally liable); state officers may not be sued if it is the state treasury that will be paying retroactive damages. ii. Abstention: Federal courts may not enjoin pending state court proceedings. The Federal Legislative Power a. Congresss authority to act i. There must be express or implied Congressional power (no general police power unless to military, Indian reservations, federal lands and territories, or D.C.). ii. The necessary and proper clause-any means not prohibited by constitution. iii. The taxing/spending power and commerce power 1. Congress may tax and spend for the general welfare. 2. The Commerce Power a. Congress may regulate the channels of interstate commerce. b. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce. c. Congress may regulate economic activities that have a substantial effect on interstate commerce. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impactMorrison). iv. The Tenth Amendment as a limit on Congressional powers. The 10th Amendment states that all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people. 1. Congress cannot compel state regulatory or legislative action. Note: congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program.

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2. Congress may prohibit harmful commercial activity by state governments. v. Congress power under section 5 of the 14th Amendment. Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying constitutional violations. b. Delegation of Powers i. No limit exists on Congress ability to delegate legislative power. ii. Legislative vetos and line-item vetos are unconstitutional. For congress to act, there always must be bicameralism (house and senate) and presentment (giving bill to President to sign or veto). The president must sign or veto the bill in its entirety. iii. Congress may not delegate executive power to itself or its officers. Federal Executive Power a. Foreign Policy i. Treaties: agreements between US and foreign country that are negotiated by the President and are effective when ratified by Senate. 1. Treaties prevail over conflicting state law. 2. If a treaty conflicts with a federal statute, the one adopted last in time controls. 3. If a treaty conflicts with the constitution, it is invalid. ii. Executive agreements: 1. Definition: an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation. 2. Executive agreements can be used for any purpose 3. Executive agreement prevail over conflicting state laws, but never over conflicting federal laws or the Constitution. iii. The president has broad powers as commander-in-chief to use American troops in foreign countries. b. Domestic Affairs i. The appointment and removal power 1. The appointment power a. The president appoints ambassadors, federal judges and officers of the US. b. Congress may vest the appointment of inferior officers in the president, the heads of departments or the lower federal courts. c. Congress may not give itself or its officers the appointment power. 2. The removal power. Unless removal is limited by statute, the President may fire any executive branch office.

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v. IV.

a. For congress to limit removal, it must be an office where independence from the president is desirable and b. Congress cannot prohibit removal; it can limit removal to where there is good cause. Impeachment and removal: The president, vice president, federal judges and officers of US can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors. 1. Impeachment does not remove a person from office. 2. Impeachment by House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote. The President has absolute immunity to civil suits for money damages for any actions while in office. However, the president does not have immunity for actions that occurred prior to taking office. The president has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests. President has the power to pardon those accused or convicted of federal crimes.

Federalism a. Preemption: The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. i. Express preemption ii. Implied preemption: 1. If federal and state laws are mutually exclusive, federal law preempts state law (state law can set standards stricter than federal law unless it is prohibited by congress). 2. If state law impedes the achievement of a federal objective, federal law preempts state law. 3. If congress evidences a clear intent to preempt state law, federal law preempts state law. iii. States may not tax or regulate federal government activity (intergovernmental immunity). b. The dormant commerce clause and privileges and immunities clause of Article IV. i. Definitions 1. Dormant Commerce Clause (negative implications of the commerce clause)-unconstitutional if undue burden on interstate commerce; limits state action. 2. Privileges and immunities clause of article IV-no state may deny citizens of other states of the privileges and immunities it accords its own citizens.

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3. The Privileges or immunities clause of the 14th amendmentalways a wrong answer unless the question involves the right to travel. ii. Does the state law discriminate out-of-staters? iii. Anaysis if the law does not discriminate 1. The privileges and immunities clause of Article IV does not apply. 2. If the law burdens interstate commerce, it violates the dormant commerce clause if its burden outweighs its benefits. iv. Analysis if the law discriminates against out-of staters: 1. If law burdens interstate commerce, it violates the dormant commerce clause unless its necessary to achieve an important government purpose. a. Exception: congressional approval b. Exception: Market participant exception-a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned business. 2. If the law discriminates out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose. a. The law must discriminate against out-of-staters. b. The discrimination must be with regard to civil liberties or important economic activities. c. Corporations and aliens cannot use the privileges and immunities clause. d. The discrimination must be necessary to achieve an important government purpose. c. State taxation of interstate commerce i. States may not use their tax systems to help in-state businesses ii. A state may only tad activities if there is a substantial nexus to the state iii. State taxation of interstate businesses must be fairly apportioned. d. Full faith and credit. Courts in one state must give full faith and credit to judgments of courts in another state, so long as: i. The court that rendered the judgment had jurisdiction over the parties and subject matter, ii. Judgment was on the merits iii. Judgment is final. The Structure of the Constitutions Protection of Individual Liberties a. Is there government action? i. The constitution applies only to government action. Private conduct need not comply with the constitution.

ii. Congress, by statute, may apply constitutional norms to private conduct. 1. The 13th amendment can be used to prohibit private race discrimination. 2. The commerce power can be used to apply constitutional norms to private conduct. 3. Congress cannot use section 5 of the 14th amendment to regulate private behavior. iii. Exceptions: situations where private conduct must comply with the constitution: 1. Public function exception-the constitution applies if a private entity is performing tasks traditionally, exclusively done by the governmentMarsh. 2. The entanglement exception-the constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Key examples: a. Courts cannot enforce racially restrictive covenants. b. There is state action when the government leases premises to a restaurant that racially discriminates. c. There is state action when a state provides books to schools that racially discriminate (acting to encourage discrimination). d. There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech (government subsidy is insufficient for finding a state action). e. There is no state action when NCAA (private entity) orders the suspension of a basketball coach at a state university. f. There is state action when a private entity regulates interscholastic sports within a state (operates in one state). g. There is not state action when a private club with a liquor license from the state racially discriminates. b. The Application of the Bill of Rights i. The Bill of Rights applies directly only to the federal government. ii. The bill of rights is applied to state and local governments through its incorporation in the due process clause of the 14th amendment. Except: 1. The Third Amendment right not to have a soldier quartered in a persons home. 2. The fifth amendment right to grand jury indictment in criminal cases. 3. Seventh amendment right to jury trial in civil cases. 4. The eight amendment right against excessive fines. c. Levels of Scrutiny

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i. Rational Basis Test 1. Means-rationally related 2. Ends-legitimate conceivable purpose 3. No least restrictive alternative analysis 4. Burden of proof on challenger ii. Intermediate Scrutiny 1. Means-substantially related (narrowly tailored) 2. Ends-important actual purpose 3. No least restrictive alternative analysis 4. Burden of proof on government iii. Strict Scrutiny 1. Means-necessary 2. Ends-compelling actual purpose 3. Needs the least restrictive alternative analysis. 4. Burden of proof on government Individual Rights a. Definitions i. Procedural Due Process ii. Substantive Due Process iii. Equal Protection-whether govts difference in the treatment of people are adequately justified. b. Procedural Due Process: i. Has there been a deprivation of life, liberty, or property? 1. Definitions a. Deprivation of liberty: loss of significant freedom provided by the constitution or statute; harm to reputation by itself is not depravation of liberty. i. Requires notice and hearing; unless child, which only requires a neutral fact finder. ii. Prisoners almost always lose on deprivation of liberty interests. b. Deprivation of property: there is an entitlement (reasonable expectation to continue receipt of a benefit) and that entitlement is not fulfilled. 2. Government negligence is not sufficient for depravation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist. However, in emergency situations, the government is liable under due process only if its conduct shocks the conscience. 3. Generally, the governments failure to protect people from privately inflicted harms does not deny due process. ii. What procedures are requires? 1. The test: Balance

a. The importance of the interest of the individual-the more important the interest, the more important the procedures. b. The ability of additional procedures to increase the accuracy of the fact-finding-the more procedures will lead to better and accurate decisions. c. The governments interests-usually efficiency. 2. Examples: a. Before welfare terminated, notice and hearing required. b. SS disability benefits terminated, only post termination hearing. c. Student disciplined by public school, notice of charges and opportunity to explain (no-trial). Corporal punishment in schools requires no due process. d. Termination of custody to child, notice and hearing. e. Punitive damages require instructions to jury and judicial review. Grossly excessive PD violate DP. f. American citizen held as enemy combatant must be given DP (notice, representation by lawyer, hearing). g. Except in exigent circumstances, prejudgment attachment or govt seizure of assets should be given notice and hearing. h. Govt may seize property if used in a criminal activity even though property belongs to innocent owner. c. Economic liberties i. Only a rational basis test is used for laws affecting economic rights. The constitution provides only minimal protection for economic liberties. ii. The takings clause. The government may take private property for public use if it provides just compensation. 1. Is there a taking? a. Possessory taking-govt confiscation or physical occupation of property is a taking. b. Regulatory taking-govt regulation is a taking if it leaves no reasonable economically viable use of property. c. Note: govt conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.

d. Note: a property owner ma bring a takings challenge to regulations that existed at the time the property was acquired. e. Note: temporarily denying an owner use of property is not a taking so long as the govts action is reasonable. 2. Is it for public use? a. If not for public use. Govt will have to give property back. b. Public use-so long as govt acts with reasonable belief that taking will benefit public. 3. Is just compensation paid? a. Measured in terms of loss to the owner. Gain to taker is irrelevant. iii. The contracts clause-No state shall impair the obligations of contracts. 1. Appplies only to state or local interference with existing contracts. 2. State or local interference with private contracts must meet intermediate scrutiny. a. Does the legislation substantially impair partys rights under an existing contract? If so, is the law reasonably and narrowly tailored of promoting an important and legitimate public interests. 3. State or local interference with govt contracts must meet strict scrutiny. 4. An ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. iv. Privacy is a fundamental right protected under substantive due process 1. Right to marry 2. Right to procreate 3. Right to custody of ones children; state may create irrebuttable presumption that married womans husband is father of her child. 4. The right to keep family (related) together. 5. Right to control upbringing of ones children. 6. Right to purchase and use contraceptives 7. Right to abortion a. Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. i. Requirement for 24 hour waiting period for abortions is not an undue burden.

ii. A requirement that abortions be performed by licensed physicians is not an undue burden. iii. The prohibition of partial birth abortions is not an undue burden. iv. After viability, states may prohibit abortions unless necessary to protect the womans life or health. b. The government has no duty to subsidiez abortions or provide abortions in public hospitals. c. Spousal consent and notification laws are unconstitutional. d. Parental notice and consent laws for unmarried minors-a state may require parental notice and or consent for an unmarried minors abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minors best interests or that she is mature enough to decide for herself. 8. The right to privacy protects a right to engage in private consensual homosexual activity. 9. The right to refuse medical treatment a. Competent adults have right to refuse medical treatment, even life-saving treatment. b. A state may require clear and convincing evidence that a person wanted treatement terminated before it ended. c. A state may prevent family members from terminating treatment for another. 10. There is no constitutional right to physician-assisted death. v. Second amendment right to bear arms-right of individuals to have guns in homes for sake of security. Applies to state and local governments. Court has not set level of scrutiny. vi. Right to travel 1. Laws that prevent people from moving into a state must meet strict scrutiny. 2. Durational residency requirements must meet strict scrutiny. 3. Restrictions on foreign travel need meet only the rational basis test. vii. Right to vote 1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations on the electoral process to prevent fraud only need be on balance desireable.

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2. One-person-one-vote must be met for all state and local elections. 3. At-large elections are constitutional unless there is proof of a discriminatory purpose. 4. The use of race in drawing election district lines must meet strict scrutiny. 5. Counting uncounted votes without standards in a presidential election violates equal protection viii. There is no fundamental right to education. Equal Protection a. An approach to equal protection questions: i. What is the classification? ii. What level of scrutiny should be applied? iii. Does this law meet the level of scrutiny? b. Constitutional provisions concerning equal protection i. The equal protection clause of 14th amendment applies only to state and local governments. ii. Equal protection is applied to federal government through EP clause of 5th amendment. c. Classification based on race and national origin i. Strict scrutiny used ii. How is the existence of a racial classification proven? 1. The classification exists on face of the law. 2. If the law is facially neutral, proving racial classiication requires demonstrating both discriminatory impact and discriminatory intent. iii. How should racial classifications benefitting minorities be treated? 1. Strict scrutiny is applied. 2. Numerical set-asides require clear proof of past discrimination. 3. Educational institutions may use race as one factor in admissions decisions to help minorities. Colleges have an interest in diverse student body. 4. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met. d. Gender classifications i. Intermediate scrutiny used. Discrimination will be allowed if there is an exceedingly persuasive justification ii. How is the existence of a gender classification proven? 1. The classification exists on the face of the law. 2. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent. iii. How should gender classifications benefiting women be treated? 1. Gender classifications benefiting women that are based on role stereotypes will not be allowed.

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2. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. e. Alienage classifications i. Generally strict scrutiny is used. ii. Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. iii. Only a rational basis test is used for congressional discrimination against aliens. iv. It appears that intermediate scrutiny is used for discrimination against undocumented alien children. f. Discrimination against non-marital children i. Intermidate scrutiny is used. ii. Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional. g. Rational basis review is used for all other types of discrimnation under the Constitution. i. Age discrimination ii. Disability discrimination iii. Wealth discrimination iv. Economic regulations v. Sexual orientation discrimination The First Amendment a. Free speech methodology i. Content based v. Content-neutral restrictions 1. Content based restrictions on speech generally must meet strict scrutiny. Two type of content based laws: a. Subject matter restrictions (application of the law depends on the topic of the message). b. Viewpoint restrictions (application of the law depends on the ideology of the message). 2. Content neutral laws burdening speech generally need only meet intermediate scrutiny. ii. Prior restraints 1. Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. 2. The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review. iii. Vagueness and overbreadth

1. Vagueness-a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. 2. Overbreadth-A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. 3. Fighting words laws are unconstitutionally vague and overbroad. iv. Symbolic Speech-the govt can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the governments purpose. 1. Flag burning is constitutionally protected 2. Draft card burning is not protected speech. 3. Nude dancing not protected speech. 4. Burning a cross is protected unless done with intent to threaten. 5. Contribution limits on election campaigns are constitutional. Expenditure limits are unconstitutional. v. Anonymous speech is protected. vi. Speech by the government cannot be challenged as violating the 1st amendment. b. What speech is unprotected or less protected by the 1st amendment? i. Incitement of illegal activity-govt may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality. ii. Obscentiy and sexually-oriented speech 1. Test a. The material must appeal to the prurient interest. b. The material must be patently offensive under the law prohibiting obscenity. c. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. 2. The govt may use zoning ordinances to regulate the location of adult bookstores and movie theaters. 3. Child pornography may be completely banned, even if not obscene (to be child pornography, children must be used in production of the material). 4. The government may not punish private possession of obscene materials; but the govt may punish for possession of child pornography. 5. The government may seize the assets of businesses convicted of violating obscenity laws. 6. Profane and indecent speech is generally protected by the first amendment

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a. Exception: over the broadcast media b. Exception: in schools Commercial speech 1. Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment. 2. The commercial speech that inherently risks deception can be prohibited. a. The government may prevent professionals from advertising or practicing under a trade name. b. The government may prohibit attorney, in-person solicitation of clients for profit. c. The government may not prohibit accountants from in-person solicitation of clients for profit. 3. Other commercial speech can be regulated if intermediate scrutiny is met. 4. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative. Defamation 1. If the P is a public official or running for public office, the P can recover for defamation by proving falsity of statement and actual malice. 2. If P is a public figure, P can recover for defamation by proving falsity of the statement and actual malice. 3. If the P is a private figure and the matter is of public concern, that sate may allow P to recover for defamation by proving falsity and negligence by D. However, P may recover presumed or punitive damages only by showing actual malice. 4. If P is a private figure and the matter is not of public concern, P can recover presumed or punitive damages without showing actual malice. Privacy 1. The government cannot creat liability for the truthful reporting of information that was lawfully obtained from the government. 2. Liability is now allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance. 3. The government may limits its dissemination of information to protect privacy. Speech by government employees on the job in the performance of their duties is not protected by the 1st amendment. Other government restrictions based on the content of speech must meet strict scrutiny.

c. What places are available for speech? i. Public forums-government properties that the government is constirtutionally required to make available for speech 1. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. 2. Regulations must be a time, place, or manner regulation that serves an important government prupose and leaves open adequate alternative places for communication. 3. Government regulation of public forums need not use the least restrictive alternative. 4. City official cannot have discretion to set permit fees for public demonstrations. ii. Designated public forums-government properties that government could close to speech, but choses to open to speech. The same rules apply as to public forums. iii. Limited public forums-government properties that are limited to certain groups or dedicated to the discussion of only some subjects. The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral. iv. Non-public forums-government properties that the government constitutionally can and does close to speech. The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. (military bases, airports [govt can prohibit solitication of money but not distribution of literature], post-offices including their sidewalks). v. There is no first amendment right of access to private property for speech purposes. d. Freedom of Association i. Laws that prohibit or punish group members must meet strict scrutiny. To punish membership in a group it must be proven that the person: 1. Actively affiliated with the group; 2. Knowing of its illegal activities; and 3. With the specific intent of furthering those illegal activities. ii. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny. iii. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association of expressive activity. e. Freedom of Religion i. The free exercise clause 1. The free exercise clause cannot be used to challenge a neutral law of general applicability. 2. The government may not deny benefits to individuals who quit their jobs for religious reasons. ii. The establishment clause

1. The test: (i) there must be a secular purpose for the law, (ii) the effect must neither advance nor inhibit religion, and (iii) there must not be excessive entanglement with religion. 2. The government cannot discriminate against religious speech or among religions unless strict scrutiny is met. 3. Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have same access to school facilities as nonreligious groups. 4. The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools. f. Chimerisnki-echmerinsky@law.uci.edu.

Con Law Essay: I. Due Process: Under 14th amendment, a staty may not deprive a person of life, liberty, or property without due process of law. It has two components; procedural due process and substantive due process. Procedural due process gurantees that a persons life, liberty, or property shall not be taken without adequate procedures. Substantive due process requires that the govts deprivation of a persons life, liberty or property be justified by a sufficient purpose. a. Procedural due process: must have life liberty or property interest. Loss of freedom of choice is not enough. Neither is a mere expectancy to create a property interest. There must be some created right to have the property interest. b. Substantive due process: if a government rule affects a fundamental right (right of travel, privacy, and voting and first amendment rights), due process requires rule to be necessary to promote a compelling interest. Rules affecting other interests are valid under substantive due process as long as they are rationally related to a legitimate government interest. Equal protection: 14th amendment provides that a state may not deprive a person of the equal protection of the law. The standard of determining whether government action that classifies people violates equal protection depdns on the nature of the right involved and the basis of the classification. If a fundamental right or suspect classification (e.g. race, national origin) is involves, the action will be upheld only if it is necessary to achieve a compelling interest. If a quasi-suspect class (e.g. gender) is involved, the action will be upheld if it substantially relates to an important government interest. In all other cases, the action will be upheld as long as it is rationally related to a legitimate government interest. Public Forum: under the first amendment, the government generally cannot prevent speech or regulate the content of speech unless the prior restraint is necessary to serve a compelling interest. However, the government can place restrictions on the conduct aspects of speech. As to public forums (places generally open to speech) the govt may impose content neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest. As to nonpublic forums, the government may impose time, place, and manner restrictions that are viewpoint neutral and reasonably related to a legitimate government interest.

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