Closius_ConLaw_CL2APP_Spr_42116587554855458554555555555584512.pptx

LEGAL PHILOSOPHY – REJECTING THE FRUITS
1. NATURAL LAW – GOD OR STATE OF NATURE –
UNENUNCIATED RIGHTS – MANY. FREDDIE KRUGER.
2. LEGAL POSITIVISM – LAW IS EXPRESSION OF WILL
OF SOVEREIGN. WRITING AND INTENT.
3. LEGAL REALISM – SUBJECTIVE BIAS. SUBSET OF
LEGAL POSITIVISM.
4. LEGAL PROCESS – NEUTRAL PRINCIPLES,
CONSISTENCY, LOGIC, PRECEDENT. HATED REALISM
5. CRITICAL LEGAL STUDIES – BEYOND REALISM –
INTO SYSTEMIC BIAS. COOPTED. MARXIST
OVERTONES. CRITICAL RACE, CRITICAL FEMINIST,
ETC.

ALREADY SEEN COMMERCE CLAUSE USED FOR CIVIL
RIGHTS BUT THAT IS THE END OF THE STORY.
1. 13TH AMENDMENT – 1865 CONGRESS ENFORCES
A. INCLUDES PRIVATE
B. SUBSTANCE LIMITED = SLAVERY
A. “NO STATE” – NEED STATE ACTION.
B. SUBSTANCE BROAD
A. GOVERNMENT ELECTIONS
B. SUBSTANCE NARROW – VOTING.

GENERAL
1. 13 AND 15 SPECIFICALLY RACE – 14 RACE + MUCH
MORE.
2. PRIVATE ACTIVITY = 13TH AMEND OR COMMERCE
CLAUSE.
3. SELF-EXECUTING v STATUTORY BASIS. 13, 14 AND
15 ARE ALL BOTH.
CIVIL RIGHTS STATUTES - 813
1. 1981 - CONTRACT SAME AS WHITES
2. 1982 - REAL AND PERSONAL PROPERTY AS WHITES

3. 1983 - under color of … (state law), deprives any
citizen or person in jurisdiction of any right, privilege
or immunity secured by Constitution or laws.
14TH AMENDMENT HISTORY (NATURAL LAW
INFLUENCE)
PRIVILEGES AND IMMUNITIES – 1873 (end)
OLD SUBSTANTIVE DP – 1873 – 1937
EQUAL PROTECTION - 1941 - PRESENT
NEW SUBSTANTIVE DP – 1973 - PRESENT

CIVIL RIGHTS CASES (1883 – 814)
BLACKS EXCLUDED FROM HOTELS, THEATERS AND
RAILROADS. 814 – STATUTE – SIMILAR TO MODERN
STATUTE.
BRADLEY
1. 14TH AMENDMENT LIMITED TO STATE ACTION.
CONGRESS CAN ONLY LEGISLATE ON CORRECTING
STATE LAW. IF INDIVIDUAL ACTS WRONGFULLY,
REMEDY IS AT STATE LAW 815.
2. NO ASSERTION STATUTE = COMMERCE CLAUSE

3. 13 AMENDMENT - REACHES PRIVATE
ACTIVITY AND CAN REACH ALL BADGES AND
INCIDENTS OF SLAVERY. 816.
4. THIS DISCRIMINATION IS NOT A BADGE OR
INCIDENT OF SLAVERY. MERE CITIZEN AND NOT
SPECIAL FAVORITE OF THE LAW.
HARLAN 1 (D)
BADGE AND INCIDENT COVERS THIS –
ELIMINATION OF SLAVERY = REMOVE ALL
DISCRIMINATION BASED ON RACE.

BARRON v BALTIMORE (1833 – 426)
BARRON SUED CITY FOR RUINING HIS WHARF.
CLAIMED VIOLATED 5TH AMENDMENT - NO
PUBLIC TAKING WITHOUT JUST COMPENSATION.
MARSHALL
CONSTITUTION DECLARES POWER OF FEDERAL
GOVERNMENT. LIMITATIONS EXPRESSED
THEREIN ON FEDS. NO SUCH RESTRICTIONS
APPLY TO STATES UNLESS EXPLICIT.
CONVENTIONS CONCERNED WITH FEDS.

THIRTEENTH AMENDMENT
JONES v ALFRED MAYER CO. (1968 – 843)
843 – FN – 1982. P ALLEGED D HAD REFUSED
TO SELL BECAUSE HE WAS BLACK.
STEWART
1. STATUTE BANS ALL DESCRIMINATION –
PUBLIC OR PRIVATE. VALID UNDER 13TH
AMENDMENT. CONGRESSIONAL INTENT AT
TIME OF PASSAGE.

2. 844 - QUOTE. CONGRESS CAN ELIMINATE
BADGES AND INCIDENTS OF SLAVERY.
CONGRESS ONLY NEEDS A RATIONAL BASIS FOR
DETERMINING IF RELATED TO SLAVERY.
3. 844 - FAMOUS QUOTE. OVERRULES RESULT
IN CIVIL RIGHTS CASES.
HARLAN (D)
STATUTE AS WRITTEN NOT MEANT TO REACH
PRIVATE ACTIVITY – GOVERNMENT ACTION
IMPLIED IN WORD RIGHT.

IS JONES AN IMPORTANT CASE ?
WHAT IF SELLER DOESN’T GIVE REASON ?
IS 13TH AMENDMENT LIMITED TO AFRICAN-
AMERICANS ?
SULLIVAN v LITTLE HUNTING PARK (1969 – 845)
HOMEOWNERS ASSOCIATION OPERATED
COMMUNITY PARK. MEMBER WHO RENTED COULD
ASSIGN SHARE . SULLIVAN LEASES TO FREEMAN
(BLACK). BOARD REFUSED TO APPROVE. SULLIVAN
EJECTED FOR PROTESTING.

DOUGLAS
1. CAN SUE UNDER 1982 – INTERFERES WITH
ABILITY TO LEASE.
2. NOT A PRIVATE SOCIAL CLUB
RUNYON v MCCARY (1976 - 845)
1981 PROHIBITS PRIVATE COMMERIALLY
OPERATED NON SECTARIAN SCHOOLS FROM
DISCRIMINATING.

1. FIRST AMENDMENT RIGHT TO HAVE SCHOOLS
THAT BELIEVE IN SEGRAGATION BUT NOT TO
PRACTICE IT.
2. NOT PRIVATE – PUBLIC ADVERTISING FOR
STUDENTS.
14TH AMENDMENT – THE STATE ACTION DOCTRINE
CIVIL RIGHTS CASES ESTABLISHED PRINCIPLE. HERE
TRYING TO INCLUDE PRIVATE INDIVIDUAL WITHIN
14TH AMENDMENT REQUIREMENTS ON GROUNDS
EQUIVALENT TO STATE. WHY LESS IMPORTANT IN
2016 ?

TWO DIFFERENT LINES OF ANALYSIS:
1. PUBLIC FUNCTION – PRIVATE ACTING LIKE STATE.
2. NEXUS, CONTACTS, ENCOURAGEMENT OR
AUTHORIZATION - RELATIONSHIP BETWEEN PRIVATE
DISCRIMINATOR AND STATE.
PUBLIC FUNCTION
MARSH v ALABAMA (1946 - 818)
PRIVATE TOWN ARRESTED JEHOVAH’S WITNESS FOR
TRESPASS. D CLAIMED FIRST AMEND. TOWN
ANSWER ?

BLACK
1. NO QUESTION FIRST AMENDMENT APPLIES IF AN
ORDINARY TOWN (GOVERNMENT).
2. NOT LIKE A PRIVATE HOME. OPERATED PRIMARILY
TO BENEFIT PUBLIC AND OPERATION = PUBLIC
FUNCTION.
COULD ENFORCEMENT OF TRESPASS LAWS BE STATE
ACTION ?
TENNESSEE ERNIE

EVANS v NEWTON (1966 - 819)
PARK IN MACON – WILL OF SENATOR BACON IN 1911.
WHITES ONLY. AFTER BROWN, CITY RESIGNS AS
TRUSTEE AND PRIVATE TRUSTEES CONTINUE.
DOUGLAS
1. NO CHANGE IN MUNICIPAL MAINTENANCE AND
CONTROL.
2. PARK TRADITIONALLY SERVES COMMUNITY – LIKE
FIRE OR POLICE. LIKE COMPANY TOWN,
PREDOMINIATE CHARACTER AND PURPOSE = MUNI

AMALGAMATED FOOD UNION v LOGAN VALLEY (1968
- 819)
PRIVATELY OWNED MALL IS A STATE ACTOR FOR
PICKETING PURPOSES (FIRST AMENDMENT).
A CHANGE OF DIRECTION
JACKSON v METROPOLITAN EDISON (1974 - 820)
PRIVATE UTILITY LICENSED AND REGULATED BY STATE.
CUT OFF POWER FOR NON PAYMENT
ARGUMENT FOR MRS. JACKSON ?

1. ONLY STATE ACTION IF PRIVATE EXERCISING
POWERS TRADITIONALLY EXCLUSIVELY RESERVED TO
THE STATE.
MARSHALL DISSENT – STATE PROVIDES OR HEAVILY
REGULATES PRIVATE.
HUDGENS v NLRB (1976 - 819)
PRIVATE MALL NOT A STATE ACTOR. LOGAN VALLEY
IS OVERRULED.
FLAGG BROTHERS v BROOKS (1978 - 820)
ENFORCING A WAREHOUSEMEN’S LIEN UNDER UCC

ONLY IF TRADITIONALLY EXCLUSIVELY RESERVED TO
STATE - EDUCATION, FIRE, POLICE AND TAX (AND
COMPANY TOWN). ESSENTIALLY 2016 RULE FOR
PUBLIC FUNCTION.
CONTACTS, NEXUS, ENCOURAGE, AUTHORIZE
SHELLY v KRAMER (1948 - 821)
RESTICTIVE COVENANT. WHITE SELLS TO BLACK –
NEIGHBORS SUE TO ENFORCE. INJUNCTIVE RELIEF
AND DIVESTING TITLE
ARGUMENT FOR NEIGHBORS ?

1. AGREEMENTS DON’T PER SE VIOLATE 14TH
AMENDMENT AS LONG AS EFFECTUATED BY
VOLUNTARY ADHERENCE.
2. ACTION OF STATE COURTS AND JUDICIAL OFFICERS
= STATE ACTION. FREE TO ACQUIRE TITLE IF STATE
COURT HAD NOT INTERFERED.
UNDER SHELLEY, CAN BLACKS SUE WHITES IF THEY
REFUSE TO SELL BECAUSE OF COVENANT ?
BROAD READING OF SHELLEY WOULD DRAMATICALLY
EXPAND REACH OF STATE ACTION – ANY COURT
ENFORCEMENT WOULD BE STATE ACTION.

BURTON v WILMINGTON PARKING AUTHORITY (1961
- 824)
COFFEE SHOP IS LESSEE IN STATE OWNED PARKING
GARAGE.
1. NEED RENTALS TO PAY BONDS.
2. 824-825 - QUOTE. RELATIONSHIP. DEGREE OF
STATE INVOLVEMENT.
3. STATE COULD HAVE PUT INTO CONTRACT THAT
SHOP COULD NOT DISCRIMINATE

REITMAN v MULKEY (1967 - 826)
STATE FAIR HOUSING STATUTE. THEN CALIFORNIA
CONSTITUTION AMENDED TO SAY CAN DECLINE TO
SELL OR RENT TO ANYONE – OWNER’S DISCRETION.
P SUED UNDER STATUTE, D COUNTERED UNDER
STATE CONST. P COUNTERED THAT CONST VIOLATES
14TH AMEND
1. CONSTITUTIONAL AMENDMENT ENCOURAGED
DISCRIMINATION AND MADE STATE A PARTNER.
2. NOT JUST REPEAL OF STATUTE – IN CONSTITUTION
ITSELF. AUTHORIZATION OF RACIAL DISCRIMINATION
BY STATE. WHEN CAN YOU REPEAL ?

CHANGE DIRECTION
EVANS v ABNEY (1970 - 823)
AFTER EVANS v NEWTON, GA S.CT. HELD IMPOSSIBLE
TO FULFILL DECEDENT’S WISHES – PARK REVERTS TO
HEIRS. P WANTED “CY PRES” TO KEEP AS PARK.
1. HARSHNESS COMES FROM SENATOR NOT STATE.
2. LOSS OF PARK SHARED BY BLACKS AND WHITES
3. CONSTITUTION DOESN’T MANDATE A CERTAIN
ANSWER ON QUESTION OF INTENT.

MOOSE LODGE v IRVIS (1972 - 825)
CLUB REFUSED SERVICE TO A MEMBER’S BLACK
GUEST. ARGUMENTS ?
1. 826 - STATE MUST HAVE SIGNIFICANTLY
INVOLVED ITSELF WITH INVIDIOUS
DISCRIMINATION. NO FOSTER OR
ENCOURAGEMENT HERE.
2. NOT BURTON – NOT SAME SYMBIOTIC
RELATIONSHIP.

JACKSON v METROPOLITAN EDISON (1974 - 828)
TURNED OFF SERVICE FOR NON PAYMENT
1. 828 - QUOTE. SUFFICIENTLY CLOSE NEXUS.
2. P – STATE GRANTED MONOPOLY, APPROVAL OF
POLICY MANUAL, AND EXTENSIVE REGULATION. NO
– 829 - NOT ENOUGH.
MARSHALL (D)
830 – QUOTE. ARE THERE DIFFERENT STANDARDS
FOR RACIAL DISCRIMINATION THAN OTHER 14 ?

BLUM v YARETSKY (1982 - 831)
MEDICAID PATIENTS IN NURSING HOME.
DISCHARGE OR TRANSFER WITH NO HEARING.
1. EXTENSIVE REGULATION AND FINANCIAL
RELATIONSHIP BETWEEN PRIVATE OWNERS AND
STATE NOT ENOUGH.
2. 831 - COERCIVE POWER OR SIGNIFICANT
ENCOURAGEMENT. MERE APPROVAL NOT
ENOUGH.

RENDELL-BAKER v KOHN (1982 – 831)
PUBLIC SCHOOLS SENT MALADJUSTED STUDENTS TO
PRIVATE SCHOOL. STAFF MEMBER FIRED WITH NO
HEARING.
1. CONTACTS – NO - FUNDING AND REGULATION NOT
ENOUGH.
2. PUBLIC FUNCTION – NO – NOT EXCLUSIVE
PROVINCE OF STATE.
WHAT ABOUT FLAGG LIST ?

LUGAR v EDMONSON OIL (1982 - 833)
EDMONSON GOT PREJUDGEMENT ATTACHMENT.
HELD FOR 1 MONTH THAN DISMISSED. LUGAR SUED
– 1983 – DEPRIVATION OF PROPERTY WITHOUT DP.
IS THIS SHELLY OR EVANS/FLAGG ?
834- JOINT PARTICIPATION TO SEIZE PROPERTY IS
ENOUGH TO MAKE STATE ACTION. STATE HAS
CREATED EX PARTE SYSTEM WHICH ALLOWS SEIZURE.

EDMONSON v LEESVILLE CONCRETE (1991 - 834)
CIVIL LITIGANT USED PRE EMPTORY CHALLENGES IN
JURY SELECTION TO ELIMINATE ON RACE. STATE
ACTION
834 – GOVERNENT CONTROLS LITIGATION AND PRE
EMPTORY/JURY SELECTION SYSTEM.
QUINTESSENTIAL GOVERNMENT.
DESHANEY v WINNEBAGO COUNTY (1989 - 832)
SOCIAL SERVICES LEFT CUSTODY WITH DAD DESPITE
REPEATED INCIDENTS OF ABUSE. BRAIN DAMAGE.
NOT IN CUSTODY – NO RIGHT TO AID. PRIVATE.

BRENTWOOD v TENNESSEE SECONDARY (2001 – 835)
STATE ATHLETIC ASSOICIATION WITH PUBLIC (84%)
AND PRIVATE SCHOOLS = STATE ACTOR.
BUT NCAA NOT – NCAA v TARKANIAN.
HANDOUT – CL 9
15TH AMENDMENT AND STATE ACTION – THE WHITE
PRIMARY CASES (819)
ALL WHITE PRIMARY FROM PRIVATE GROUP (STATE
CONVENTION) – STILL VIOLATES 15TH AMEND.

PRIMARY IS, BY STATE LAW, PART OF ELECTION
PROCESS.
CHASING TEXAS:
1. STATE LAW EXCLUDES FROM PRIMARIES
2. STATE ALLOWS PARTY EXECUTIVE COMMITTEE TO
QUALIFY VOTERS.
3. PARTY CONVENTION
4. PRE-PRIMARY ELECTION OF THE JAYBIRD CLUB.
INCORPORATION
DISTINGUISH PROCEDURAL DP (MANNER BY WHICH
GOVERNMENT TAKES EG HEARING) WITH
SUBSTANTIVE DP (GRANTS RIGHTS EG PRIVACY)

DO FIRST 8 AMENDMENTS APPLY TO STATES ? ON
FACE – NO – BARRON v BALTIMORE. DOES THE
PASSAGE OF 14TH AMENDMENT CHANGE (LIFE,
LIBERTY OR PROPERTY WITHOUT DP) ?
APPLYING THE 14TH AMENDMENT TO STATES
THROUGH BOTH PROCEDURAL AND SUBSTANTIVE DP
= INCORPORATION.
CARDOZO, FRANKFURTER AND HARLAN – NATURAL
LAW. DP = FUNDAMENTAL PRINCIPLES OF LIBERTY
AND JUSTICE. FUNDAMENTAL = TRADITIONS AND
HISTORY OF ANGLO-AMERICAN JUSTICE. EVEN IF
VIOLATION OF 4TH AMEND, CONVICT IF TRIAL WAS
OVERALL FAIR. CONSER CRIMINAL, LIBERAL (?) CIVIL.

BLACK AND DOUGLAS. DP = FIRST 8 AMENDMENTS.
TOTAL INCORPORATION. NOT FUNDAMENTAL
FAIRNESS. APPLY TO STATES SAME AS FEDERAL.
LIBERAL CRIMINAL, CONSERVATIVE (?) CIVIL.
BLACK THOUGHT HARLAN TOO SUBJECTIVE.
HARLAN THOUGHT BLACK IGNORED FEDERALISM
(STATES = LABORATORIES) AND DIVERSITY WILL
CAUSE WATERING DOWN.
MAJORITY ADOPTS HARLAN’S FUNDAMENTAL
FAIRNESS LANGUAGE AND THEN, IN A SERIES OF
CASES, FOUND MOST OF 1 – 8 AMENDMENTS TO BE
PART OF FF. NEVER SAID TOTAL INCORPORATION.

PALKO v CONNECTICUT (1937 - 447)
CT ALLOWS STATE TO APPEAL IN CRIMINAL. D
CONVICTED OF 2ND DEGREE – SET ASIDE. CONVICTED
OF 1ST DEGREE IN NEW TRIAL. D – VIOLATES DOUBLE
JEOPARDY (5 AMEND).
IF FEDERAL TRIAL, CLEAR 5TH AMEND VIOLATION.
447 - QUOTE. NO VIOLATION HERE – JUST TRYING TO
GET FAIR TRIAL. (OVERRULED BY BENTON v
MARYLAND).

ADAMSON v CALIFORNIA (1947 - 448)
PROSECUTOR COMMENTED ON D NOT TAKING
STAND.
STATE OBLIGATED TO GIVE FAIR TRIAL. UNWILLING
TO SAY THIS ISN’T FAIR.
BLACK (D) – NATURAL LAW AND FF DEGRADES COURT
AND GIVES TOO MUCH POWER TO USSC.
FRANFURTER (C) - 449 - QUOTE.
ROCHIN - 449 – SUBJECTIVITY. IS BLACK LESS SO ?
HISTORY = SCIENCE ?

IN 1960’S, WARREN COURT KEEPS HARLAN
LANGUAGE BUT LOOKS TO 1-8 AMENDMENTS.
DUNCAN v LOUISIANA (1968 - 450)
D = BATTERY – 2 YEAR MAX + $ 300. D WANTED JURY
BUT STATE LAW ONLY CAPITAL OR HARD LABOR. D
GOT 60 DAYS AND $ 150.
450 - INCORPORATED ALREADY.
451 - FUNDAMENTAL TO AMERICAN SCHEME, NOT
JUST ANY FAIR SYSTEM.

BLACK – 451-452 - SHOULD HAVE BEEN IN
PRIVILEGES AND IMMUNITIES CLAUSE.
HARLAN (D) – BLACK MORE PHILOSOPHICALLY
CONSISTENT THAN WHAT USSC HAS DONE.
453 - 454 – CRIMINAL - ALL IN EXCEPT GRAND JURY
(5) AND EXCESSIVE BAIL (8). CIVIL – NO 3
AMENDMENT (QUARTERING) OR JURY TRIALS IN
CIVIL (7) OR EXCESSIVE FINES (8).
WILLIAMS v FLORIDA (1970 - 453)
6 PERSON JURY OK FOR BOTH FEDERAL AND STATE
UNDER 6TH. HARLAN – WATERING DOWN.

DISTRICT OF COLUMBIA v HELLER (2008 - 454)
DC EFFECTIVELY BANNED HANDGUNS. DC =
FEDERAL. INVALID – 5 – 4.
SCALIA
1. INDIVIDUAL RIGHT NOT COLLECTIVE. NOT
CONNECTED TO MILITIA SERVICE.
2. ARMS HAS SAME MEANING NOW AS 1789.
3. TYRANTS TOOK AWAY WEAPONS. PREEXISTING.
4. RIGHT OF SELF DEFENSE AND HUNTING.

5. NOT ANY WEAPON FOR ANY PURPOSE.
SOME REGULATION CLEARLY ALLOWED. HERE –
TOTAL SUPPRESSION = BAN. INCLUDES HOME.
STEVENS (D)
1. HISTORY = MILITIA. NOTHING ABOUT
LEGISLATURE REGULATING CIVILIAN USE.
2. FF DIDN’T CARE ABOUT LIMITING
HANDGUNS IN HIGH CRIME URBAN AREAS. CAN
STILL HAVE RIFLE AND SHOTGUN.

MCDONALD v CHICAGO (2010 - 457)
CITY ORDINANCE EFFECTIVELY BANS ALL HANDGUNS.
4 – 1- 4.
ALITO (ROBERTS, SCALIA AND KENNEDY)
1. 457 – TEST. SELF DEFENSE – PROTECT HOME AND
FAMILY. BLACKSTONE. FUNDAMENTAL.
2. SOUTHERN STATES TOOK GUNS FROM BLACKS.
3. OTHER COUNTRIES IRRELEVANT – AMERICAN
JURISPRUDENCE.

SCALIA – C – DOESN’T LIKE SUBSTANTIVE DP BUT
ACCEPTS INCORPORATION.
THOMAS – C – DON’T LIKE INCORPORATION
THROUGH DP. SHOULD REVERSE SLAUGHTERHOUSE
CASES AND RELY ON PRIVILEGES AND IMMUNITIES
CLAUSE.
STEVENS – D – GUNS HAVE AMBIVALENT RELATION
TO LIBERTY. NO RIGHT TO GUN OF CHOICE. OTHER
COUNTRIES. STATES HAVE HISTORY OF REGULATION.
BREYER (GINSBURG, SOTOMAYOR) D
1. SHOULD NOT INCORPORATE 2ND AMENDMENT

2. 462-463 - FACTORS FOR INCORPORATION.
LEGISLATURES BETTER – ALL STATES WITH
REGULATIONS.
3. BOTH SIDES ARGUING PROTECT LIVES.
PRIVILEGES AND IMMUNITIES
SLAUGHTER-HOUSE CASES (1873 - 433)
LOUISIANA GIVES MONOPOLY TO 1 CORPORATION
FOR CATTLE AND LIVESTOCK SLAUGHTERING IN NEW
ORLEANS. ALSO PRESCRIBED RATES. P = OUT OF
WORK BUTCHERS. ARGUMENTS FOR P ?

ARGUMENTS:
1. 13TH AMENDMENT – TAKING AWAY LIVELIHOOD =
INVOLUNTARY SERVITUDE.
2. 14TH AMENDMENT, PRIVILEGES AND IMMUNITIES
OF FEDERAL CITIZENSHIP = FULL NATURAL LAW =
RIGHT TO AN OCCUPATION.
MILLER
1. POLICE POWER INCLUDES REGULATION.
2. NOT 13TH – INTENDED TO ABOLISH AFRICAN
SLAVERY

14th AMENDMENT – P AND I CLAUSE
3. AFTER WAR, BLACKS HAD NO PATERNAL
PROTECTION AND NO TRULY EQUAL STATUS. 14 AND
15 TO EQUALIZE TREATMENT FOR BLACKS.
4. REVERSES DRED SCOTT – ALL PERSONS BORN
HERE CITIZENS. BUT DUAL CITIZENS – P AND I AS
CITIZEN OF US.
5. 434 - 435 - ART 4, SEC 2 P AND I – FUNDAMENTAL
RIGHTS RECOGNIZED BY STATES. HOWEVER YOU
GRANT YOUR OWN CITIZENS MUST GRANT TO
CITIZENS OF OTHER STATES IN YOUR BORDERS.

6. 435 – QUOTE. WAS 14TH AMENDMENT TO
CHANGE RELATIONSHIP BETWEEN FEDERAL AND
STATE ? NO.
7. WHAT IS MEANING OF P AND I ? 436 – LIST. -
TWINING v NEW JERSEY (439),
FIELD + 3 (D)
436 – QUOTE – VAIN AND IDLE.
SLAUGHTER-HOUSE AND NATURAL LAW ?
SLAUGHTER HOUSE 1873
CIVIL RIGHTS – 1883 PLESSY v FERGUSON 1896

SAENZ v ROE (1999 – 440)
CALIF CAPPED WELFARE FOR FIRST 12 MONTHS AT
FORMER STATE MAXIMUM. CONGRESS REAFFIRMS
STATES RIGHT TO DO SO.
STEVENS
1. 441 - 3 COMPONENTS OF RIGHT TO TRAVEL.1 AND
2 = ART 4, SEC 2. 14TH A = FEDERAL CITIZENSHIP +
RIGHT TO BECOME CITIZEN OF ANOTHER STATE.
2. NO LENGTH OR PRIOR STATE OF RESIDENCE
3. BONA FIDE RESIDENT – CAN’T DETER POOR

4. NOT LIKE DIVORCE OR COLLEGE – BENEFITS USED
IN CALIF, NOT TRANSPORTABLE.
5. CONGRESS CAN’T AUTHORIZE 14TH AMEND
VIOLATION. 14TH AMEND GIVES RIGHT TO CHOOSE
TO BE CITIZEN OF ANY STATE.
REHNQUIST (D)
NOT TRAVELLING ONCE MOVE. CAN PRESERVE
RESOURCES FOR IN STATE
THOMAS (D)
WELFARE NOT FUNDAMENTAL RIGHT. SLAUGHTER-
HOUSE WRONGLY DECIDED .

SLAUGHTER HOUSE CASES ELIMINATE P AND I
CLAUSE AS VECHICLE FOR NATURAL LAW. GO TO
NEXT CLAUSE – DUE PROCESS
1. PROCEDURAL – MEANS OR PROCESS – CRIMINAL
OR CIVIL (HEARING).
2. SUBSTANTIVE
A. DEFINE LIBERTY ? (NATURAL LAW)
B. HOW MUCH IS DUE ? (TEST)
OLD SUBSTANTIVE DUE PROCESS
UNENUNCIATED (NON-INTERPRETIVIST) v
ENUNCIATED (INTERPRETIVIST)

SOCIAL DARWINISM v SOCIALISM – WHAT IS PROPER
ROLE OF GOVERNMENT ?
DEFINE LIBERTY = RIGHTS. ALLGEYER – 471 AND
MEYER - 492– QUOTE.
LOCHNER v NY (1905 – 471)
NY LABOR LAW PROHIBITED BAKERS FROM MORE
THAN 10 HOURS PER DAY AND 60 HOURS PER WEEK.
WHY DID NY PASS THIS STATUTE ?

1. LIBERTY CLEARLY INCLUDES RIGHT TO CONTRACT.
2. 473 – MEANS/END TEST (MCCULLOCH – 81).
3. LABOR LAW - BEYOND THE POWER OF
GOVERNMENT – INAPPRORIATE PURPOSE.
WHY NOT A PROPER PURPOSE ?
4. PUBLIC HEALTH – VALID PURPOSE BUT MEANS OF
EFFECTUATING NOT RATIONAL. COVERS BATHROOMS
PER WORKER, TOILET PAPER. HERE – NO EVIDENCE
OF BREAD BETTER OR WORKER MORE HEALTHY IF
LESS HOURS. NOT REALLY A HEALTH ORDINANCE.

LOCHNER DUE PROCESS TEST:
1. DEFINITION OF RIGHT (INCLUDED IN WORD LIBERTY)
– NATURAL LAW – BROAD (ALLGEYER 471 AND MEYER
492)
2. TEST (DEFINITION OF DUE)
A. PURPOSE (END) – LEGITIMATE OR
APPROPRIATE (NARROW)
B. MEANS – RATIONALLY RELATED TO
PURPOSE (NARROW)
C. PRESUMPTION – STATUTE INVALID

HARLAN (D)
475 - TEST. SAME WORDS, DIFFERENT APPLICATION.
IF REASONABLE DIFFERENCE OF OPINION, STATUTE
VALID.
HOLMES (D) 476 – SPENCER QUOTE. 476 –
DOMINANT OPINION QUOTE.
LOCHNER DOMINATED CASES UNTIL 1937 – USED TO
INVALIDATE ANY FINANCIAL REFORM FROM STATE
LEGISLATURES .
AT SAME TIME, COMMERCE CL STOPS CONGRESS
AND UNIONS ILLEGAL UNDER ANTITRUST LAWS.

THEN POLITICAL FIGHT OF 1937 AND THE SWITCH IN
TIME THAT SAVED THE NINE.
WEST COAST HOTEL v PARRISH (1937 – 483)
MINIMUM WAGE FOR WOMEN. D – FREEDOM TO
CONTRACT.
483 - QUOTE
484 - QUOTE. DIFFERENT TONE.
POST – 1937
1. SUBSTANTIVE DP – DISFAVORED AS SYSTEM

TURN TEST ON IT’S HEAD – FORMERLY TOUGH TEST
NOW BECAME THE LANGUAGE OF DEFERENCE –
LEGITIMATE PURPOSE AND STATUTE HAVING
RATIONAL RELATION TO PURPOSE (STAT VALID).
USSC DISTASTE FOR ECONOMIC MATTERS. DEFER TO
LEGISLATURES.
US v CAROLINE PRODUCTS (1938 – 485)
485 - PRESUMPTION AND DEFERENCE.
WILLIAMSON v LEE OPTICAL (1955 – 486)
486 – OKLAHOMA STATUTE WHO CAN FIT GLASSES.
487 - QUOTE

REVIVAL OF SUBSTANTIVE DP (NEW)
GROWTH OF EQUAL PROTECTION BETWEEN 1941
AND 1971. APPLIED BASIC EP TEST TO SUBST DP.
1971 – END OF WARREN COURT – BLACK AND
HARLAN DIE WITHIN MONTHS OF EACH OTHER.
OLD CASES THAT SURVIVED:
MEYER v NEBRASKA (1923 – 492)
INVALIDATES NEBRASKA STATUTE WHICH SAID CAN’T
TEACH SUBJECT IN NON-ENGLISH;CAN’T TEACH NON-
DEAD LANGUAGE BEFORE 8TH GRADE.

PIERCE v SOCIETY OF SISTERS (1925 – 492)
OREGON STATUTE SAYING MUST GO TO PUBLIC
SCHOOL BETWEEN 8 AND 15 YEARS OLD.
SKINNER v OKLAHOMA (1942 – 492)
OKLAHOMA MANDATORY STERILIZATION AFTER 3RD
FELONY.
493 - QUOTE. ACTUALLY BEGINNING OF EQUAL
PROTECTION BUT NOW SEEN AS MORE SUBSTANTIVE
DP. RIGHTS = SDP.

GRISWOLD v CONNECTICUT (1965 – 493)
CONNECTICUT STATUTE BANNING USE OF
CONTRACEPTIVES AND GIVING AID OR COUNSEL
LINE UP THE OPINIONS BY LEGAL PHILOSOPHY

HARLAN GOLDBERG DOUGLAS BLACK
WHITE BRENNAN MARSHALL STEWART
WARREN
SDP 9TH AMEND PENUMBRAS NOT IN
INCORP INCORP 1 – 8
DOUGLAS
1. 493 – QUOTE - NOT SDP.
2. 494 – QUOTE – PENUMBRAS
3. 494 - QUOTE.

GOLDBERG (C)
495 - QUOTE.
HARLAN (C)
495 – 496 - QUOTE.
497 - QUOTE.
BLACK (D)
498 – 499 - QUOTE.
ONCE GRISWOLD DECIDED, IS ROE v WADE
INEVITABLE ?

EISENSTADT v BAIRD (1972 – 501)
D THREW CAN OF FOAM INTO CROWD. CHARGED
WITH DISTRIBUTION.
501 - QUOTE. PRIVACY EXTENDED TO SINGLES.
CAN’T DISCOURAGE PREMARITAL SEX BY MAKING
PREGNANCY THE PUNISHMENT.
ROE v WADE (1973 – 503)
TEXAS STATUTE MAKING ABORTION ILLEGAL UNLESS
NECESSARY TO SAVE LIFE OF THE MOTHER. CAN’T AID

BLACKMUN BEGINS WITH MANY PAGES OF HISTORY –
STARTING WITH ABORTION IN THE PERSIAN EMPIRE.
WHY ?
SUBSTANTIVE DP ANALYSIS – MOTHER
WHAT IS THE DEFINITION AND CHARACTERIZATION
OF THE RIGHT ? HOW DOES IT FIT UNDER THE WORD
LIBERTY ?
WHAT IS THE TEST ? HOW DOES THAT FIT UNDER
THE WORD DUE ?
WHAT ARE THE STATE PURPOSES ? HOW DO YOU
KNOW ?

1. 503-504 - QUOTE. SDP. FUNDAMENTAL.
WOMAN’S DECISION TO TERMINATE.
2. NO RIGHT IS ABSOLUTE. TEST FOR
FUNDAMENTAL = COMPELLING PURPOSE AND
STATUTE IS NECESSARY TO THE
ACCOMPLISHMENT OF SAID PURPOSE.
3. MATERNAL HEALTH. SATISFIES COMPELLING
AT END OF FIRST TRIMESTER. BUT NO BAN,
JUST REGULATION (EG HOSPITAL) AFTER FIRST
TRIMESTER.

4. POTENTIAL LIFE. SATISFIES COMPELLING AT
VIABILITY - WHEN FETUS CAN LIVE OUTSIDE THE
WOMB. CURRENTLY END OF SECOND TRIMESTER.
STATE CAN BAN.
5. 505 - SUMMARY. DOCTOR ? EXCEPTION FOR LIFE
OR HEALTH OF MOM ?
POLITICAL OPINION ?
WHY NOT POTENTIAL LIFE SOONER ?
MEDICAL KNOWLEDGE – SAFER LATER BUT VIABLE
EARLIER ? COLLISON COURSE ?

FETUS = PERSON UNDER 14TH AMENDMENT
1. 504 – NO. NO CASE HOLDING. ALL RIGHTS SEEM
TO BE PREMISED ON LIVE BIRTH AND AFTER
(POSTNATAL).
2. 504 – FN 1 – TEXAS DOESN’T BELIEVE.
STEWART C
506 – SUBSTANTIVE DP – ACCEPTED.
REHNQUIST (WHITE) D
506-507 – OBJECTS TO COMPELLING TEST GRAFTED
FROM EQUAL PROTECTION.

DEFINITION OF THE RIGHT (HISTORY) = TEST
FUNDAMENTAL RIGHT = COMPELLING PURPOSE
AND NECESSARY TO ACCOMPLISHMENT OF
(ONLY WAY TO ACHIEVE PURPOSE) PRESUME
STATUTE INVALID
MERE LIBERTY = LEGITIMATE OR APPROPRIATE
PURPOSE AND RATIONAL RELATION
(CONCEIVABLE WAY TO ACHIEVE PURPOSE)
PRESUME STATUTE VALID

PLANNED PARENTHOOD v DANFORTH (1976 - 510)
INVALIDATED SPOUSAL AND PARENTAL CONSENT (AT
LEAST IN FIRST TRIMESTER). VALIDATED PARENTAL
NOTICE AND LATER CONSENT WITH JUDICIAL BY PASS
(AFFIRMED IN BELLOTTI v BAIRD)
MAHER v ROE (1977 - 511) AND HARRIS v MCRAE
(1980 - 512) FUNDING CHILDBIRTH BUT NOT
ABORTION NOT A BURDEN TO ABORTION. MAHER
MAY HAVE BEEN LIMITED TO NOT MEDICALLY
NECESSARY – HARRIS COVERS ALL FEDERAL
FUNDING. ROE DOES NOT GIVE RIGHT TO $$$.

AKRON v AKRON CENTER (1983 - 510)
INVALIDATED HOSPITAL AFTER FIRST TRIMESTER,
INFORMATION ABOUT FETAL DEVELOPMENT
(PICTURES – BEYOND WRITTEN CONSENT) AND 24
HOUR WAITING PERIOD.
WEBSTER v REPRODUCTIVE SERVICES (1989 - 514)
STATE CAN BAN PUBLIC EMPLOYEES FROM
PERFORMING ABORTIONS IN PUBLIC HOSPITALS.
PLANNED PARENTHOOD v CASEY (1992 - 515)
HEADNOTE MESS

515 – NEW SDP LANGUAGE
516-517 - ROE NOT UNWORKABLE; MEDICAL
ADVANCES
518 – ROE AFFIRMED. UNDUE BURDEN.
519 – 5 POINT SUMMARY
1. 24 HOUR WAITING AND INFORMATION VALID IF
TRUTHFUL AND NOT MISLEADING OR COERCIVE.
2. SPOUSAL NOTIFICATION – INVALID
3. PARENTAL NOTIFICATION VALID JUDICIAL BYPASS

STEVENS C – SERIOUS PROBLEMS IF OVERRULE
BLACKMUN C – STILL LIKES ROE FRAMEWORK
REHNQUIST + 3 D – OVERRULE ROE. POLITICAL
AGENDA.
WHAT HAPPENS IF ROE OVERRULED ?
GAY RIGHTS AND OTHER NEW SUBST DP RIGHTS
BOWERS v HARDWICK (1986 – 536)
536 – NO FUNDAMENTAL RIGHT HERE. HISTORY OF
WESTERN CIV FILLED WITH ANTI SODOMY STATUTES

BLACKMUN + 3 – FUNDAMENTAL PART OF LIFE AND
SELF-IDENTITY.
LAWRENCE v TEXAS (2003 - 538)
538 - BROAD DEFINITION OF LIBERTY
538 - COPS INVESTIGATING WEAPONS DISTURBANCE.
DEVIANT SEXUAL CONDUCT STATUTE. ADULT,
PRIVATE, CONSENSUAL
1. 539 – DEFINITION OF SELF.
2. HISTORY AGAINST NONPROCREATIVE SEX NOT
HOMSEXUALS.

3. NO HISTORY OF ENFORCING THIS AGAINST
CONSENTING ADULTS IN PRIVATE. STILL TRUE
4. 541 – ANOTHER DEFINITION OF LIBERTY.
5. 542 – OVERRULE BOWERS AS AFFRONT TO
HOMOSEXUAL PERSONS.
6. 542 - NOT INVOLVED IN THIS CASE.
O’CONNOR C AND D
1. WILL NOT OVERRULE BOWERS
2. INVALIDATE STATUTE ON EQUAL PROTECTION

SCALIA + 2 D
1. STATUTES BASED ON A MAJORITY VIEW THAT
SOMETHING IS IMMORAL ARE VALID. LEGITIMATE
AND RATIONAL RELATION.
2. AN “EMERGING AWARENESS’ IS NOT DEEPLY
ROOTED IN THE NATION’S HISTORY AND TRADITION.
5 – 4 REVERSAL OF 5 -4 DECISION ?
WHAT IS LEVEL OF SCRUTINY ? COMPELLING ?
INTERNATIONAL LAW ?
ADOPTION ? MARRIAGE ?

US v WINDSOR (2013 - S 25)
25 - DOMA. NY – REGISTERED AS DOMESTIC
PARTNERS. MARRIED IN CANADA – NY RECOGNIZED.
DENIED MARITAL EXEMPTION FROM ESTATE TAX.
1. NY NOW ALLOWS SAME SEX MARRIAGE.
2. DOMA WIDESPREAD IMPACT. FEDERAL
GOVERNMENT TRADITIONALLY LEFT TO STATES.
3. MORE THAN JUST $$$. PERSONAL INTIMACY.
4. DOMA INJURES CLASS NY SEEKS TO PROTECT.

5. VIOLATES SDP AND EQUAL PROTECTION.
INTERFERES WITH EQUAL DIGNITY ON A MORAL
DISAPPROVAL BASIS. DOMA WRITES INEQUALITY
INTO NATIONAL LAW. VALIDLY MARRIED FOR STATE,
NOT FOR FEDERAL. HUMILIATES CHILDREN ADOPTED
BY GAYS.
6. DISPARAGE AND INJURE IN PERSONHOOD AND
DIGNITY.
IS THIS A GOOD OPINION ?
ROBERTS D – NEED FOR UNIFORMITY ADOPTING
UNQUESTION DEFINITION. STATES CAN BAN.

SCALIA (ROBERTS + THOMAS) D
1. RATIONAL RELATION TEST. ALLOWED TO LEGISLATE
ON MORALITY.
2. UNIFORMITY NEEDED. OPINION LABELS PEOPLE
WHO DISAGREE AS ENEMY OF HUMAN DECENCY.
ALITO D
NO ONE KNOWS RAMIFICATIONS OF SAME SEX
MARRIAGE. CONST SILENT – SHOULD BE LEGISLATIVE
TWO VIEWS OF MARRIAGE – CONSTITUTION
DOESN’T ENDORSE EITHER.

HOLLINGSWORTH v PERRY (2013 - S6)
USSC HELD NO STANDING – NO USSC ON
MERITS. BUT
CALIF SC HELD IN 2008 THAT DENYING
MARRIAGE TO SAME SEX COUPLES VIOLATED
CALIF CONSTITUTION. THEN PROPOSITION 8
PASSED – MARRIAGE = MAN AND WOMAN. DC
AND NINTH CIRCUIT HELD PROPOSITION 8
UNCONSTITUTIONAL UNDER FEDERAL
CONSTITUTION.

OBERGEFELL V HODGES (2015 – S40)
CAN’T BE SURVIVING SPOUSE ON DEATH CERT.;
ONLY OPPOSITE MARRIED AND SINGLE CAN
ADOPT; MARRIED BUT LIVE IN STATE WHERE
ILLEGAL.
KENNEDY
1. HISTORY – CONCEPTS OF MARRIAGE CHANGE
FREQUENTLY.
2. RECENT HISTORY (1993) MORE TOLERANCE

3. S43 - FUNDAMENTAL = PERSONAL CHOICES
CENTRAL TO INDIVIDUAL DIGNITY AND AUTONOMY,
INCLUDING INTIMATE THAT DEFINE PERSONAL
IDENTITY AND BELIEFS.
4. RIGHT TO MARRY FUNDAMENTAL:
A. INDIVIDUAL AUTONOMY
B. UNIQUE UNION
C. SAFEGUARD CHILDREN
D. HISTORY = KEYSTONE OF SOCIAL ORDER
5. S45 – BENEFITS. DENIAL DEMEANS GAYS.
STATE SUPPORT FOR THE STIGMA.
6. EQUAL PROTECTION ALSO SUPPORTS

7. LEGISLATURE CAN’T ABRIDGE FUNDAMENTAL
RIGHTS.
8. RELIGIOUS BELIEFS STILL VALID – JUST CAN’T
PRACTICE THEM.
SCALIA, ROBERTS, THOMAS AND ALITO (D)
1. USURPING RIGHTFUL LEGISLATIVE ISSUE. NAKED
JUDICIAL POWER BY 5 LAWYERS. USSC NOT
REPRESENTATIVE OF POPULATION.
2. SOCIAL POLICY AND FAIRNESS NOT FOR USSC
3. NOT MADE CRIMINAL. NOT PENALIZING

4. S50 – QUOTE ON SPENSER
5. MARGINALIZE MANY DEEPLY HELD RELIGIOUS
VIEWS.
IS MARRIAGE DIFFERENT FROM CRIMINAL LAW
(ANTI-SODOMY) ?
550 – NO RIGHT TO HAIR, COMPUTER INFO.
SOME RIGHTS TO TREATMENT WHEN INVOLUNTARILY
CONFINED.
RIGHT TO FAMILY LIVING (GRANDMOTHER –
GRANDSON)

DEATH
CRUZAN v MISSOURI (1990 – 550)
26 YEAR OLD IN VEGETATIVE COMA AFTER CAR
ACCIDENT. PARENTS AS GUARDIANS WANT TURN
OFF. GUARDIAN AD LITEM AND TC AGREED –
MISSOURI SUPREME COURT REVERSED.
1. 551 – COMPETENT PERSON HAS RIGHT TO REFUSE
TREATMENT. THEREFORE INCOMPETENT CAN ASSERT
BY SURROGATE. BUT STATE CAN REQUIRE PROOF.
MISSOURI HERE WANTS CLEAR AND CONVINCING.
CONSTITUTIONAL. JUST CONVERSATION WITH
ROOMMATE. CAN’T SAY ONLY IN WRITING.

DISSENT – NO REAL STATE INTEREST HERE.
PRESERVATION OF LIFE NOT ENOUGH.
WASHINGTON v GLUCKSBERG (1997 – 553)
DOES A STATE STATUTE CRIMINALIZING
ASSISTED SUICIDE VIOLATE SUBSTANTIVE DP ?
1. 553 - HISTORY. ANGLO-AMERICAN AGAINST
FOR 700 YEARS. VOTERS REJECTED HERE.
2. A STEP FURTHER THAN CRUZAN – NOT JUST
REJECT TREATMENT.

3. 554 – 555 – QUOTES. NOT FUNDAMENTAL –
LEGITIMATE AND RATIONAL RELATION.
STATE INTERESTS:
1. PRESERVATION OF LIFE
2. ETHICS OF DOCTOR
3. VULNERABLE GROUPS – POOR, ELDERLY
4. FEAR OF EUTHANASIA.
O’CONNOR – 556 - DOCTORS CAN OVERPRESCRIBE
PAIN MEDICATION.
VACCO v QUILL (1997 – 560) – NOT VIOLATION OF EP
TO ALLOW REFUSAL OF LIFE SAVING AND NOT ALLOW
ASSISTED SUICIDE. CL 10

PROCEDURAL DUE PROCESS
CON LAW = CIVIL; CONSTITUTIONAL CRIMINAL
PROCEDURE = CRIMINAL CONTEXT.
TERMINATION OF WELFARE BENEFITS,
EMPLOYMENT, SCHOOL
SUSPENSION/EXPULSION, PRISONER RIGHTS = IS
A HEARING REQUIRED ?
PROBLEMS WITH HEARING (WHY DOES
MANAGEMENT HATE THEM) ? $$$ AND DELAY

GOLDBERG v KELLY (1970 – 495)
HIGH WATER MARK OF LIBERAL LAW –
TERMINATION OF WELFARE = HEARING BEFORE.
STATUTORY ENTITLEMENT = NEW WEALTH.
2016 – IS THERE A PROPERTY INTEREST ? MUCH
MORE NARROW THAN GOLDBERG.
NO PROPERTY IN DISMISSAL OF TEACHER,
FEDERAL CIVIL SERVICE, POLICEMAN OR
ENFORCEMENT OF RESTRAINING ORDER.
PRIMARILY DEFINED BY STATE LAW.

HOW MUCH PROCESS DUE ?
MATTHEWS v ELDRIDGE (1976 – 566)
BALANCING TEST – NOT ALWAYS REQUIRE A FULL
HEARING. 566 – FACTORS - EG NO HEARING FOR
CORPORAL PUNISHMENT IN SCHOOL (567).
488 – 491 - PUNITIVE DAMAGES SUBJECT TO
PROCEDURAL DP – NO FAIR NOTICE TO D.
BMW v GORE – GROSSLY EXCESSIVE (CAR PAINT JOB
OF $ 4,000 – PUNITIVE OF $ 2,000,000)
CAMPBELL – COMPS OF $ 1,000,000, PUNIS OF $ 145.
FEW AWARDS BEYOND A SINGLE DIGIT RATIO

PHILIP MORRIS – CAN’T PUNISH FOR DAMAGE TO
NON-PARTIES (EG DECEDENT’S FAMILY).
KERRY V DIN (2015 – S53)
IS THERE A RIGHT FOR A CITIZEN TO LIVE WITH HER
SPOUSE IN US ? OR BE GIVEN REASON FOR
DEPORTATION ?
SCALIA + 2 = NO RIGHT TO THIS REGULATION
KENNEDY + 1 = TERRORIST ACTIVITIES ENOUGH
BREYER +3 (D) = FAMILY CENTRAL – MUST PROVIDE A
FACTUAL BASIS FOR DECISION

3 CASES THAT LIMITED 14 AMEND. CIVIL RIGHTS:
1. SLAUGHTER HOUSE CASES (1873)(NO P&I)
2. CIVIL RIGHTS CASES (1883)(NO PRIVATE - STATE)
3. PLESSY v FERGUSON (1896)(SEP BUT EQ VALID)
14TH AMENDMENT:
1. PRIVILEGES AND IMMUNITIES – 1873
2. OLD SUBSTANTIVE DP – 1883 – 1937
3. EQUAL PROTECTION – 1942 ---
4. NEW SUBSTANTIVE DP – 1973 ---

CAROLINE PRODUCTS FOOTNOTE 4 (485)
NO DEFERENCE TO LEGISLATION IF :
1. SPECIFIC PROHIBITION OF CONSTITUTION
LIKE FIRST 10 AMENDMENTS (INCORPORATION)
2. RESTRICTING POLITICAL PROCESS WHICH
BRINGS ABOUT REPEAL (POLITICAL QUESTION)
3. DIRECTED AT PARTICULAR RELIGIOUS AND
RACIAL MINORITIES – DISCRETE AND INSULAR
(EQUAL PROTECTION)

EQUAL PROTECTION
SLAUGHTERHOUSE CUTS OFF P AND I. WEST
COAST HOTEL ENDS OLD SUBSTANTIVE DP. IN
ORDER TO IMPLEMENT CAROLINE PRODUCTS
FOOTNOTE, EQUAL PROTECTION.
SUBSTANTIVE DUE PROCESS GRANTS RIGHTS.
EQUAL PROTECTION EXAMINES
CLASSIFICATIONS – TREATING SIMILAR PEOPLE
IN A DISSIMILAR MANNER, USUALLY WHEN
GRANTING OR DENYING A PRIVILEGE OR
BESTOWING OR DENYING A BENEFIT.

HOW DO LEGISLATURES WORK ?
CLASSIFICATIONS – DRAW LINES – SOME
REASONABLE, SOME NOT.
STATE LAW – MUST BE 16 YEARS AND 6
MONTHS TO APPLY FOR DRIVER’S LICENSE.
WHY ?
WHY NOT IF YOU CAN PASS THE TEST, YOU CAN
GET A LICENSE ?

REASONS FOR CLASSIFICATIONS :
1. COST – MOST WITH THE TRAIT.
2. DISTRUST OF ADMINISTRATIVE DISCRETION.
3. VARIOUS INTEREST GROUPS LOBBYING FOR
EXCEPTIONS.
STATE OF MARYLAND SAYS NO MORE VOTING – ALL
APPOINTED. P = SUBSTANTIVE DP.
STATE OF MARYLAND SAYS ONLY WHITES CAN VOTE.
P = EQUAL PROTECTION.
GAY RIGHTS BOTH – HOW ?

STATE LAW – NO WOMEN BARTENDERS. SOME
WOMEN COULD – OVERINCLUSIVE. SOME MALES
COULDN’T – UNDERINCLUSIVE.
MALES ALCOHOL AT 21, WOMEN AT 18. IF PRIVACY,
SUBSTANTIVE DP. IF 19 YEAR OLD MALE P,
CHALLENGE IS EQUAL PROTECTION.
SUSPECT CLASS COMPELLING PURPOSE
NECESSARY TO ACCOMP
INTERMEDIATE IMPORTANT PURPOSE
SUBSTANTIALLY RELATED
MERE CLASS LEGITMATE PURPOSE
RATIONALLY RELATED

RATIONAL RELATION (MINIMUM SCRUTINY)
REA v NY (1949 – 603)
NYC ORDINANCE – NO ADS ON VECHICLES BUT
CAN PUT OWN BUSINESS NOTICES ON DELIVERY
TRUCK. REA – 1900 TRUCKS IN NYC – SELLS
ADVERTISING UNCONNECTED WITH ITS OWN
BUSINESS.
ARGUMENTS FOR P ?

PRACTICAL CONSIDERATIONS – NYC DOESN’T HAVE
TO ELIMINATE ALL AT ONE TIME.
JACKSON C
1. DP PREVENTS GOVERNMENT FROM LEGISLATING
IN A SUBJECT AREA. EQ MORE A QUESTION OF
FOCUS AND REDRAFTING.
2. 605 – REAL DIFFERENCE BETWEEN SELF INTEREST
AND DOING FOR HIRE.
WITH REGARDS TO THE PURPOSE ?
THIS IS DEFERENCE – RATIONAL RELATION TEST.

WILLIAMSON v LEE – STEPS OK
NEW ORLEANS v DUKE – 8 YEARS PUSHCART
VENDORS OK.
ANIMUS OR RATIONAL RELATION WITH BITE
DEPT AGRICULTURE v MORENO – INVALID EVEN HERE
IF NO RELATION TO PURPOSE.
ALLEGHENY COAL – TAXED AT 8 TO 35 TIMES HIGHER
THAN COMPS INVALID
TOWN OF WILLOBROOK v OLECH – CITY REQUIRED 33
FOOT EASEMENT BUT ONLY 15 EVERYONE ELSE.
INVALID.

US RAILROAD RETIREMENT BOARD v FRITZ (1980 –
610)
1974 CHANGED RxR RETIREMENT TO ELIMINATE
WINDFALL BENEFITS – 2 PENSIONS. GRANDFATHER
CLAUSE – CAN STILL GET 2 IF:
1. ALREADY RETIRED OR
2. QUALIFIED, BUT NOT YET RETIRED, IF STILL
WORKING FOR RR IN 1974.
WHO ARE THE P’S ?
WHAT ARE THE PURPOSES UNDERLYING THE STATUTE
? DO THE MAJORITY AND DISSENT AGREE ?

P = 10 YEARS WORKING FOR RR BUT NOT YET
RETIRED AND NOT WORKING RR IN 1974.
MAJORITY PURPOSES = SOUND FINANCIAL
BASIS AND PRESERVE MOST EQUITABLE CLAIMS
DISSENT PURPOSES = SOUND FINANCIAL BASIS
AND PRESERVE ALL EQUITABLE CLAIMS.
REHNQUIST
1. SOCIAL AND ECONOMIC BENEFITS =
DEFERENCE.

2. 611 – PLAUSIBLE REASONS QUOTE.
STEVENS C
611 - QUOTE – DON’T NEED ACTUAL PURPOSE.
BRENNAN D
1. 612 AND 613. QUOTES ON PURPOSE.
2. 613 - BIG QUOTE. SEE MAJORITY ON 611
DISAGREE WITH FINDINGS OF THE DISTRICT
COURT. DIDN’T READ THE STATUTE.

EQUAL PROTECTION – HEIGHTENED SCRUTINY
STRAUDER v W. VIRGINIA (1880 – 616)
STATE LAW SAYS ONLY WHITES ON JURY – D
CONVICTED OF MURDER
NOT ENTITLED TO A JURY OF YOUR CHOICE, BUT
RACE EXCLUDED BY LAW. 616 - 617 – QUOTE.
1883 – CIVIL RIGHTS CASES – FEDERAL STATUTE
BANNING PRIVATE DISCRIMINATION INVALID –
NO STATE ACTION. REMEDY IS STATE LAW.

PLESSY v FERGUSON (1896 – 617)
LOUISIANA PROVIDES FOR SEPARATE BUT EQUAL
ACCOMODATIONS FOR WHITE AND COLORED
RAILWAY PASSENGERS. PLESSY – 7/8 WHITE. KICKED
OUT OF WHITE CAR.
WHAT IS THE STATE’S PURPOSE ?
DOES PLESSY OVERRULE STRAUDER ?
WHAT IF WHITE WANTED TO SIT IN COLORED CAR ?
1. 617 – QUOTE – IN THE NATURE OF THINGS.

2. STRAUDER WAS POLITICAL NOT SOCIAL.
SCHOOLS, THEATERS AND RAILROADS DIFFERENT
FROM JURY SELECTION.
3. 618 A - QUOTE – NO STAMP OF INFERIORITY.
4. 618 B - QUOTE – POLICE POWER MUST BE
REASONABLE. LOOK TO ESTABLISHED USEAGES,
CUSTOMS AND TRADITIONS.
HARLAN 1 D
618 - QUOTES. AS PERNICIOUS AS DRED SCOTT.

MISSOURI v CANADA (1938 – 619) – MISSOURI PAYS
BLACKS TO ATTEND OUT OF STATE LAW SCHOOL. NO
– ALTERNATIVE MUST BE IN STATE.
SWEATT v PAINTER (1950 – 620) TEXAS LAW SCHOOL
MUST ADMIT BLACKS. DON’T ACCEPT NEW ALL
BLACK LAW SCHOOL AS EQUAL.
BROWN v BOARD OF EDUCATION(1954 – 620)
KANSAS, SOUTH CAROLINA, VIRGINIA AND
DELAWARE. ON BEHALF OF MINOR BLACKS – DENIED
ADMISSION UNDER STATE LAWS REQUIRING
SEGREGATION BY RACE (SEPARATE BUT EQUAL)

DO YOU TAKE CASE FOR THE STATE ?
WHAT IS DIFFERENT ABOUT THE OPINION ?
HOW DOES THE COURT KNOW THAT SEPARATE
BUT EQUAL IS A MARK OF INFERIORITY ?
DOES IT MATTER THAT HISTORY OF 14
AMENDMENT PROBABLY DID ALLOW ?
WHAT IS THE HOLDING OF BROWN ?

1. HISTORY INCONCLUSIVE. PUBLIC EDUCATION
ITSELF NOT WIDESPREAD. MUST CONSIDER PLACE
OF EDUCATION IN MODERN US.
2. 622 - QUESTION AND QUOTES.
623-624 - APPLIED PER CURIAM TO OTHER SETTINGS
BOLLING v SHARPE (1954 - 623)
INCORPORATE EQUAL PROTECTION INTO 5TH
AMENDMENT. 623 - UNTHINKABLE QUOTE.
626 - BROWN NOT NEUTRAL PRINCIPLES

LOVING v VIRGINIA (1967 - 631)
FIRST FULL DECISION SINCE BROWN – 13 YEARS.
ARGUMENTS FOR VIRGINIA ?
AFFECTS EQUALLY AND SOCIOLOGIST REPORT.
POTENTIAL SUBSTANTIVE DP ARGUMENT ?
633 – FOOTNOTE - STATUTE.
1. PURPOSE OF 14TH AMENDMENT TO ELIMINATE
RACIAL DISCRIMINATION.
2. 632-633 – QUOTE. MOST RIGID SCRUTINY

PALMORE v SIDOTI (1984 - 633)
FLORIDA COURT – PARENTS DIVORCED, CUSTODY TO
MOM. SHE COHABITS WITH BLACK MAN. DAD SUES
(3 AND ½ YEAR OLD). NO ISSUE OF LOVE FOR CHILD,
CARE OR ABILITY OF MOM. SOLELY ON LIFESTYLE.
ARGUMENT OF DAD ?
1. 633 - QUOTE. COMPELLING INTEREST TEST.
2. BEST INTERESTS OF CHILD DOESN’T OVERCOME.
CAN’T GIVE EFFECT TO PRIVATE BIAS.

JOHNSON v CALIFORNIA (2005 - 635)
SEGREGATE FOR FIRST 60 DAYS BY RACE. TRY TO
STOP GANG VIOLENCE.
O’CONNOR
1. NO DEFENSE OF BURDEN EQUALLY.
2. COMPELLING AND NARROWLY TAILORED.
NARROWLY TAILORED NOT SATISFIED HERE.
THOMAS AND SCALIA D
LESS CONSTITUTIONAL RIGHTS – RATIONAL RELATION

KOREMATU v US (1944 - 636)
D EXCLUDED FROM MILITARY AREA. 636 - EXECUTIVE
ORDER.
1. 636 – MOST RIGID SCRUTINY COMPELLING AND
NARROWLY TAILORED EDITED OUT.
2. WARTIME EMERGENCY SATISFIES.
DISSENT
1. RACIAL GUILT
2. OTHER WAYS TO CHECK LOYALTY.
3. USSC SHOULD HAVE DENIED CERT IF AFFIRM.

PURPOSEFUL DISCRIMINATION: THE SOPHISTICATION
OF RACISM
BROWN DEALT WITH THE LEGALITY OF ON THE FACE
DISCRIMINATION. AS IT BECAME CLEAR THAT WAS
ILLEGAL, QUESTION BECAME HOW FAR WILL YOU
PURSUE RACISM AS IT GETS HIDDEN.
14TH AMENDMENT NOT LIMITED TO STATUTES – ALL
STATE ACTIVITIES.
DISTINGUISH: NON-RACIST GOOD FAITH BELIEF IN
COUNTERVAILING POLICY V RACIAL PURPOSE
CLEVERLY DISGUISED.

REALITY: PEOPLE LIE – THEY DON’T BREAK DOWN.
TYPES OF DISCRIMINATION:
1. ON FACE OF THE LAW
2. NEUTRAL ON FACE, BUT DISCRIMINATION IN
ADMINISTRATION.
3. NEUTRAL ON FACE AND ADMINISTRATION BUT
EFFECTS ONE RACE DISPROPORTIONATELY (IMPACT):
A) ADOPTED WITH RACIAL MOTIVE OR PURPOSE
B) NEUTRAL MOTIVE OR PURPOSE – OTHER
FACTORS

A, B, C1 – DEJURE VIOLATION
C2 - DE FACTO NO VIOLATION
YICK WO v HOPKINS (1896 - 640)
LAUNDRIES IN BRICK OR STONE EXCEPT IF
WAIVER FROM BOARD. 320 LAUNDRIES – 310
IN WOOD. WHITE GET WAIVER 79 OUT OF 80,
CHINESE 0 FOR 230.
640-641 - QUOTE. OUTRAGEOUS STATISTICS.

641- 642
GOMILLION – CAN’T REDRAW TUSKEGEE SO ALL
BUT 4 BLACK VOTERS REMOVED, 0 WHITES.
GRIFFIN – CAN’T CLOSE PUBLIC SCHOOLS –
AVOIDING DESEGREGATION NOT
CONSTITUTIONAL PURPOSE. CAN’T GIVE
GRANTS TO WHITES FOR PRIVATE.
PALMER – CLOSING SWIMMING POOLS IN
JACKSON VALID – EFFECTS BOTH RACES EQUALLY

WASHINGTON v DAVIS (1976 - 643)
QUALIFYING TEST FOR DC POLICE = FEDERAL CIVIL
SERVICE TEST. NEED 40 OF 80 ON TEST 21 (ALSO
PHYSICAL AND HIGH SCHOOL GRAD).
STIPULATED – 1) % OF BLACK COPS, WHILE
SUBSTANTIAL, NOT PROPORTIONATE AND 2) 4 TIMES
AS MANY BLACKS FAIL TEST AS WHITES.
CITY’S REASON FOR BLACK FAILURE ?
IS TEST JOB RELATED ?
HOW DO YOU PHRASE THE REAL ISSUE ?

IF BOTH PARTIES INNOCENT, WHO WINS ?
WHITE:
1. BASED ON 14TH AMENDMENT, IMPACT NOT
ENOUGH – NEED INTENT OR PURPOSE. 644
2. 644 - NOT NECESSARILY ON FACE – YICK WO AND
IMPLIED FROM FACTORS.
3. 644 – WHEN PRIMA FACIE ESTABLISHED, BURDEN
TO D TO REBUT PRESUMPTION – NEUTRAL PURPOSE

STEVENS C
646 - PROVING INTENT HARD
ARLINGTON HEIGHTS v METRO HOUSING (1977 - 646)
1. RACE A MOTIVATING FACTOR
2. ADMINISTRATIVE – RARE, STARK STATISTICS
3. FACTORS
4. BURDEN SHIFTING.
649 - VOTING = ZIMMER FACTORS – ELECTION,
DECISIONS ALLOCATING RESOURCES

HUNTER v UNDERWOOD (1985 - 649)
ALABAMA CONSTITUTIONAL CONVENTION OF 1901 –
PURPOSE TO DISENFRANCHISE BLACKS. NO VOTE IF
CRIME OF MORAL TURPITUDE. CRIMES MORE OFTEN
DONE BY BLACKS.
D – 80 YEARS PURPOSE HAS CHANGED.
1. ORIGINAL INTENT AND STILL HAVING
DISCRIMINATORY INTENT = MOTIVATING FACTOR.
BURDEN SHIFTS TO STATE. INCLUDING WHITES
DOESN’T SATISFY BURDEN.

DO YOU PERMIT LITIGATORS TO MAKE UP PURPOSE ?
WASHINGTON v DAVIS AND CASE LAW RULES ONLY
ON USSC INTERPRETING SELF EXECUTING 14TH A.
TITLE VII PURSUANT TO COMMERCE CLAUSE POWER
– CAN MAKE IMPACT ALONE A VIOLATION.
IF STATUTE PURSUANT TO SEC 5 OF 14TH
AMENDMENT, QUESTION IS CAN CONGRESS BAN
MORE THAN USSC ON SELF-EXECUTING ?
HANDOUT CL11

SCHOOL DESEGREGATION
BROWN II (1955 - 627)
627 - BURDEN OF DELAY ON SCHOOL DISTRICT
627 – QUOTE – ALL DELIBERATE SPEED
EYES ON PRIZE – VIDEO
USSC DID NOT ISSUE FULL OPINION UNTIL GREEN IN
1968. GOOD STRATEGY ? BURDEN DISTRICT COURTS
CONSISTENTLY UNDERESTIMATED WHITE
RESISITANCE. WHY IN 1954 ?
SCHOOL BOARD (USUALLY ELECTED). ATTENDANCE
ZONES FOR ELEMENTARY, MIDDLE AND HIGH SCHOOL

GREEN V COUNTY SCH BD (1968 - 628)
RURAL SOUTH
FREEDOM OF CHOICE PLAN – NO WHITE MOVED TO
BLACK – 85% OF BLACK STILL IN ALL BLACK.
628 – QUOTE.
RURAL – EVERYONE ALREADY BUSING. INSIST ON
GEOGRAPHIC ZONING, CHANGE BUS ROUTES AND
PROBLEM LARGELY SOLVED.

SWANN v CHARLOTTE MECKLENBURG (1971 - 511)
URBAN SOUTH
GEOGRAPHIC ZONING AND FREE TRANSFERS. HALF
OF BLACK STUDENTS IN FORMERLY ALL WHITE, BUT
50% IN ALL BLACK SCHOOLS.
WHAT IS A SCHOOL BOARD’S OBLIGATION AFTER
BROWN ?
WHAT ARE THE ARGUMENTS FOR THE BOARD ?

BOARD:
1. STATUTES CLEAN
2. GOOD FAITH – AFFIRMATIVE STEPS TO
INTEGRATE.
3. REMAINING SEGREGATION FROM HOUSING –
NOT SCHOOL BOARD.
4. NEIGHBORHOOD SCHOOLS VALUABLE.

1. INTEGRATION MADE HARDER BY
RESIDENTIAL CHANGES.
2. ONCE UNREMEDIED VIOLATION, DC
EQUITABLE POWERS BROAD. ONE RACE
SCHOOLS EVIDENCE. RACIAL QUOTA,
ATTENDANCE ZONE ALTERATIONS AND BUSING
ALL ALLOWABLE DURING INTERIM PERIOD.
3. UNITARY SNAPSHOT. IF RESEGREGATE, NO
DUTY TO FIX ONCE UNITARY.

KEYES v SCHOOL DISTRICT (1973 – 629)
URBAN NORTH
DENVER – NO HISTORY OF SEGREGATION BY STATUTE.
BUT EFFECTIVELY SO BY ATTENDANCE ZONES,
SCHOOL SITE SELECTION, FACULTY ASSIGNMENTS,
NEIGHBORHOOD SCHOOL POLICY, ETC.
1. CAN FIND PURPOSE (USUALLY PRE-1954) EVEN
WITHOUT LEGISLATIVELY MANDATED DUAL.
2. FINDINGS AS TO PART OF THE DISTRICT = ENTIRE
DISTRICT IN VIOLATION. EQUITABLE REMEDIES (BUS)

REHNQUIST QUOTE – 629 – DIFFERENCE BETWEEN
DISESTABLISH AND MIXING.
WHITE FLIGHT - WHO IS RESPONSIBLE FOR THE
CREATION OF THE SUBURBS ?
SHOULD THE GOVERNMENT TELL PEOPLE THEY
CAN’T MOVE ?
MILLIKEN v BRADLEY (1974 – 629) HUGE 5 – 4
CITY IS ONE DISTRICT – SUBURBS INDEPENDENT
DISTRICT. BLACKS CONCENTRATED IN CITY. DE JURE
IN CITY. DC – CAN’T REMEDY WITHIN CITY – ORDER
INCLUDED SUBURBAN DISTRICTS.

NO PRE 1954 DISCRIMINATION IN SUBURBS – DIDN’T
EXIST. NOTHING ABOVE BELTWAY PRE – 1965.
ARGUMENT FOR THE CITY ?
1. 629 – ABSENT AN INTER DISTRICT VIOLATION
THERE IS NO BASIS FOR AN INTER DISTRICT REMEDY.
DISSENT – POLITICAL DECISION BASED ON FAR
ENOUGH. STATE DRAWS LINE – STATE CAN REMEDY.
WHO PAYS ? MISSOURI v JENKINS (1990 – 630) –
PLAN REQUIRES $ 450,000,000. DC CAN’T LEVY
TAXES BUT CAN ORDER BOARD TO DO SO AND
ENJOIN STATE LAWS THAT PROHIBIT.

OKLAHOMA CITY v DOWELL (1990 – 630) – FEDERAL
COURTS TEMPORARY. ONCE DECLARED UNITARY
(GOOD FAITH COMPLIANCE AND PAST
DISCRIMINATION ELIMINATED), SHOULD BE
RETURNED TO LOCAL CONTROL.
HANDOUT CL12
BENIGN USE (AFFIRMATIVE ACTION)
REMEDY HISTORY OF DISCRIMINATION v NO PENALTY
IF YOU HAVEN’T DONE SOMETHING WRONG.
UNIV OF CALIF REGENTS v BAKKE (1978 – 650)
WHAT ARE THE SPLITS ON USSC ?
WHAT ARE THE STATE PURPOSES ?
HOW DO YOU DEFINE MERIT ?

DAVIS MEDICAL SCHOOL PROVIDES FOR 16 PLACES
FOR MINORITIES FOR EVERY 100 STUDENTS. 16
MUST BE DISADVANTAGED. MINORITIES IN 16 HAD
LOWER CREDENTIALS (MCAT AND UGPA) THAN
BAKKE.
POWELL - COMPELLING TEST, CAN CONSIDER
RACE BUT QUOTA VIOLATES NECESSARY TEST.
BRENNAN + 3 = INTERMEDIATE TEST, REMEDYING
PAST SOCIETAL DISCRIMINATION OK.
STEVENS + 3 = CLEAR VIOLATION OF TITLE VI. RACE
CANNOT BE A FACTOR. IF 14TH A, THEN COMPELLING

STATE PURPOSES (652):
1. REMEDY DEFICIENCY IN MEDICAL SCHOOLS AND
PROFESSION
2. REMEDY EFFECTS OF SOCIETAL DISCRIMIN.
3. MORE DOCS IN MINORITY COMMUNITIES
4. ETHNICALLY DIVERSE STUDENT BODY
POWELL
1. TITLE VI = EQ PROTECTION STANDARDS.
2. IF BASED ON RACE, STRICT SCRUTINY. NOT LESS IF
HELPING MINORITY. 651 - QUOTE.

2. NOT ALWAYS CLEAR IF HELPING – CAN REINFORCE
STEROTYPES. INEQUITY OF MAKING SOMEONE
REMEDY DISCRIMINATION NOT OF HIS OWN
MAKING. COMPELLING TEST – 652.
3. RACE BASED IS OK IF SPECIFIC FINDING OF PAST
DISCRIMINATION AND USED AS REMEDY.
4. PURPOSES:
A. CAN’T JUST SAY REMEDYING PAST SOCIETAL.
FINDING BY APPROPRIATE BODY, NOT JUST FACULTY.
B. NO PROOF MINORITY GRADS WILL WORK IN
INNER CITY – STEROTYPE.
C. ACADEMIC FREEDOM AND VALUE OF DIVERSITY
= COMPELLING PURPOSE.

5. BUT A QUOTA SYSTEM DOES NOT SATISFY
THE NECESSARY TO THE ACCOMPLISHMENT OF
STANDARD. RACE CAN BE A FACTOR, NOT THE
SOLE DETERMINANT. HARVARD. EVIL IS LACK
OF INDIVIDUALIZED ATTENTION.
BRENNAN + 3
1. GIVEN PAST, CAN’T SAY COLOR BLIND NOW.
2. NO SUSPECT CLASS HERE – NO TRADITIONAL
INDICIA OF SUSPECTNESS AND NO STIGMA
BASED ON RACIAL INFERIORITY.

3. 654 – INTERMEDIATE SCRUTINY –
IMPORTANT PURPOSE AND SUBSTANTIALLY
RELATED (FROM GENDER CASES).
4. REMEDYING PAST SOCIETAL DISCRIMINATION
SATISFIES. VOLUNTARY COMPLIANCE IS BETTER.
SOUND BASIS FOR BELIEF.
5. 656 - MARSHALL QUOTE – 200 YEARS.
STEVENS + 3
CAN’T DISCRIMINATE ON BASIS OF RACE

NO PAST DISCRIMINATION AT DAVIS.
IS PROBLEM THE NUMBER 16 ?
GOOD/BAD DECISION ?
FULLILOVE v KLUTZNICK (1980 – 659)
10 % OF FEDERAL PUBLIC WORKS PROJECT
FUNDS MUST BE GIVEN TO BUSINESS OWNED
BY CERTAIN MINORITY GROUPS.

BURGER + 2
DEFER TO CONGRESS – REMEDIAL. OUT CLAUSE IF
CAN’T FIND ENOUGH MINORITY.
MARSHALL + 2
SATISFIES INTERMEDIATE STANDARD
STEWART + 1
ALL ARE INVALID
STEVENS – CONGRESS TOO PERFUNCTORY

WYGANT v JACKSON BD OF ED (1985 – 658)
BOARD AND UNION PUT IN CBA – IF LAYOFFS, ONLY
LAYOFFS AFRICAN-AMERICAN TEACHERS IN % OF
TOTAL TEACHERS EMPLOYED.
WHAT DOES THIS PROVISION IGNORE ?
DC AND COFA – VALID – REMEDY SOCIETAL
DISRIMINATION AND PROVIDE ROLE MODELS
POWELL + 3
1. STRICT SCRUTINY APPLIES TO ALL BASED ON RACE.

1. SOCIETAL DISCRIMINATION DOESN’T SATISFY.
ONLY IF REMEDYING PAST DISCRIMINATION BY
INSTITUTION.
2. ROLE MODEL LIMITLESS. IDEA THAT BLACK
STUDENTS NEED BLACK TEACHERS = PLESSY.
3. LAYOFF DIFFERENT FROM HIRING – MORE HARM
TO THE INDIVIDUAL.
WHITE
CAN’T FIRE WHITES WHEN NONE OF BLACKS VICTIMS
OF DISCRIMINATION BY BOARD.

O’CONNOR
1. GENERALLY WANT VOLUNTARY COMPLIANCE.
2. SOCIETAL DISCRIMINATION DOESN’T SATISFY
3. IF PROTECTING HIRING IS PURPOSE, NOT
NECESSARY TO ACCOMPLISHMENT OF.
MARSHALL + 3 D
1. HIRING MEANINGLESS IF EVISERATED BY
LAYOFFS.
2. ASSUMPTION THAT SENORITY IS PROTECTED.

STEVENS D
ECONOMY CAUSING LAYOFFS, NOT BOARD.
INTEGRATED FACULTY PROVIDES ACADEMIC
BENEFITS.
CAN YOU DO SAME FOR MATH/SCIENCE TEACHERS ?
COLLECTIVE BARGAINING PROCESS ?
RICHMOND v CROSON (1989 – 660)
30% MUST GO TO MBE. ANYWHERE IN US – BLACK,
SPANISH, ORIENTAL, AMERICAN INDIAN, ESKIMO.
ONLY 4.7% = MBE. 41% OF THOSE IN 5 STATES.

O’CONNOR
1. FULLILOVE DOESN’T CONTROL – STATE DIFFERENT
FROM CONGRESS (SEC 5 OF 14TH A).
2. STRICT SCRUTINY. 5 OF 9 ON COUNCIL BLACK –
THIS IS BLACK HELPING BLACK.
3. PURPOSE TOO GENERALIZED HERE. 30% MADE UP
– NOT TIED TO INJURY. ESKIMO ???
SCALIA
ONLY OK IF SPECIFICALLY IDENTIFIED VICTIMS OF
PAST DISRIMINATION

MARSHALL + 3 D
RICHMOND KNOWS RACISM. PLAN IS TAILORED.
STATES DIFFERENT THAN CONGRESS ?
METRO BROADCASTING v FCC (1990 – 665)
FCC – MINORITY OWNERSHIP A PLUS IN AWARDING
NEW STATION OWNERSHIP. MUCH CONGRESSIONAL
DELIBERATION – FEW MINORITY OWNED STATIONS.
BRENNAN
INTERMEDIATE SCRUTINY. BURDEN SLIGHT

O’CONNOR + 3 D
NO DEFERENCE TO CONGRESS – NOT 14TH A.
ADARAND CONSTRUCTION v PENA (1995 – 663)
GENERAL CONTRACTOR ON HIGHWAY PROJECT.
ADARAND LOW BID FOR GUARDRAIL WORK.
GIVES TO GONZALEZ – RECEIVED ADDITIONAL
COMPENSATION IF USED BUSINESS OWNED BY
SOCIALLY AND ECONOMICALLY
DISADVANTAGED. WOULD HAVE GIVEN TO
ADARAND EXCEPT FOR PAYMENT.

O’CONNOR
1. METRO BROADCASTING OVERRULED – ALL RACE =
COMPELLING AND NARROWLY TAILORED.
2. CONGRESS TREATED IN SAME MANNER AS STATES.
SCALIA C
NO DEBTOR OR CREDITOR RACE.
THOMAS C
GOOD MOTIVATION DOESN’T SAVE. BADGE OF
INFERIORITY.

STEVES D
FIRST TIME EVER INVALIDATING CONGRESSIONAL
AFFIRMATIVE ACTION. QUESTION IS HOW TO
REMEDY WHEN COUNTRY DIDN’T EMBRACE ONE
RACE THEORY FOR MOST OF ITS EXISTENCE.
GRUTTER v BOLLINGER (2003 – 669)
MICHIGAN LAW SCHOOL. RACE AS A FACTOR.
DIVERSITY ENRICHES EVERYONE’S EDUCATION.
BROADLY DEFINED BUT SPECIAL EMPHASIS ON
AFRICAN AMERICAN, HISPANIC AND NATIVE
AMERICAN. CRITICAL MASS. P = 3.8, 161

O’CONNOR
1. 670-671 – ALL GET STRICT SCRUTINY. BUT
PURPOSE OF EDUCATIONAL BENEFITS FROM
DIVERSE STUDENT BODY SATISFIES. DEFER TO
UNIVERSITY.
2. CRITICAL MASS NOT QUOTA. 671 –
CLASSROOM BENEFITS TO DIVERSTIY.
3. INDIVIDUAL EVALUATION. RACE JUST A PLUS
FACTOR. MANY WAYS TO CONTRIBUTE TO
DIVERSITY – RACE JUST ONE.

SCALIA D
DECISION GIVES NO GUIDANCE FOR FUTURE.
THOMAS D
1. 575 FN – DIVERSITY AT ELITES DOESN’T REALLY
MATTER.
2. NOT REALLY ON MERIT – MANY EXCEPTIONS
3. DEMEANS MINORITIES WHO WOULD HAVE
GOTTEN IN WITHOUT PLUS FACTOR.

REHNQUIST D
INDIVIDUAL APPROACH A FRAUD. 677 - % OF
MINORITIES IN ADMITTED CLASS = % OF
MINORITIES IN APPLICANT POOL.
GRATZ v BOLLINGER (2003 – 677)
MICHIGAN COLLEGE OF LITERATURE, ARTS AND
SCIENCE. NEED 100 POINTS – GOT 20 IF YOU
WERE A MEMBER OF 3 RACIAL GROUPS.
UNIVERSITY ADMITTED VIRTUALLY ALL
QUALIFIED APPLICANTS FROM THIS GROUP.

REHNQUIST
1. NOT NARROWLY TAILORED – NOT INDIVIDUAL
ASSESSMENT – AUTOMATIC 20.
2. PRACTICALITY DOESN’T MATTER TO
CONSTITUTIONALITY.
SOUTER D
1. 20 POINTS FOR – ATHLETES, PROVOST
DISCRETION, SOCIOECONOMIC DISADVANTAGE.
GINSBURG D – OFFICAL DISCRIM. STILL AFFECTING
QUALITY OF EDUCATION. NO RESERVED SPOTS.

673 - O’CONNOR SAYS WON’T BE NEEDED IN 25
YEARS. REALLY ?
GRUTER AND GRATZ REAFFIRM BAKKE ?
WHY DO UNIVERSITIES ONLY CARE ABOUT RACIAL
DIVERSITY ?
PARENTS INVOLVED v SEATTLE (2007 – 688)
SEATTLE – NEVER DUAL AND NO INTEGRATION
ORDER. STUDENTS RANK HS. FIRST PREFERNCE TO
SIBLINGS – THEN RACIAL BALANCE IF NOT WITHIN 10
% OF 41% WHITE DISTRICT PERCENTAGE.

JEFFERSON COUNTY KY – DUAL BUT PRONOUNCED
UNITARY IN 2000. ALL NON MAGNETS MUST BE 15 –
50 % BLACK. 4 -1 – 4.
ROBERTS
1. STRICT SCRUTINY. ONLY 2 SATISFY – REMEDY PAST
INTENTIONAL DISCRIMINATION AND DIVERSITY IN
HIGHER ED. NEITHER HERE.
2. RACIAL BALANCING NOT NARROWLY TAILORED.
NOT INDIVIDUALIZED.
3. 691 - % NOT TIED TO PEDAGOGICAL VALUE. NO
PROOF THESE NUMBERS IMPROVE LEARNING.

KENNEDY C
DON’T WANT TO TELL SCHOOL BOARDS RACE NOT
IMPORTANT. PROBLEM IS GOVERNMENT DEFINING
RACE. SMALL NUMBERS MEAN SOMETHING ELSE
WOULD WORK. 694 – PERMISSIBLE THINGS.
BREYER + 3
1. DEFER TO SCHOOL BOARD’S LOCAL KNOWLEDGE.
NOT EXCLUDING HERE.
2. VOLUNTARY TO A CERTAIN EXTENT. NO STIGMA.
NOT A QUOTA.

FISHER v U OF TEXAS (2013 – S55)
TEXAS ADOPTED 10% PLAN – SUCCESSFUL. FILLS
MOST OF THE CLASS. FOR OTHERS, ACADEMIC INDEX
AND PERSONAL ACHIEVEMENT INDEX. FOR LATTER,
RACE (HISPANIC AND AFRICAN AMERICAN ONLY) IS A
FACTOR. THAT IS THE ISSUE.
KENNEDY
1. ACCEPT ACADEMIC DIVERSITY SATISFIES
COMPELLING. DEFER TO UNIVERSITY ON BENEFITS.
2. NO DEFER ON NARROWLY TAILORED.

3. MUST SHOW THAT RACE NEUTRAL WOULD NOT WORK.
EACH APPLICANT AS AN INDIVIDUAL NOT DEFINED BY
RACE. UNIVERSITY MUST HAVE MADE A GOOD FAITH
CONSIDERATION OF RACE NEUTRAL.
4. REMAND TO DC – THEY DEFERRED.
THOMAS C – OVERRULE GRUTTER.
GINSBURG D – LIKE HARVARD PLAN IN BAKKE. TRUTH IS
EVEN TOP 10% MOTIVATED BY RACIAL CONCERNS.
5TH CIR FOR UNIVERSITY ON REMAND. IN FRONT OF USSC
2016 TERM.
HANDOUT CL13.

OTHER CLASSIFICATIONS
GENDER DISCRIMINATION
GOESAERT v CLEARY (1948 - 712) – OK FOR
MICHIGAN TO BAN WOMEN FROM BEING
BARTENDERS. WHY BANNING ?
REED v REED (1971 - 712) – IDAHO PROBATE LAW
PREFERS MEN OVER WOMEN AS ADMINISTRTRIX.
INVALIDATED UNDER DEFERENTIAL STANDARD.
FRONTIERO v RICHARDSON (1973 - 713)

ARMED FORCES – WOMEN PRESUMED DEPENDENT
SPOUSE, MEN MUST PROVE IT. P = FEMALE SOLDIER.
4 VOTES FOR STRICT SCRUTINY – 713-714 - QUOTES.
CRAIG v BOREN (1976 - 715)
OKLAHOMA PROHIBITS SALE FO 3.2% BEER TO MALES
UNDER 21 AND WOMEN UNDER 18. 715 – PURPOSE
= TRAFFIC SAFETY.
BRENNAN
1. 715 – INTERMED = IMPORTANT, SUBSTANTIALLY

REHNQUIST D
718 – DOESN’T LIKE NEW STANDARD.
MISSISSIPPI UNIV FOR WOMEN v HOGAN (1982 -
719)
719 - INTERMEDIATE STANDARD. MALE STUDENT
MUST BE ADMITTED TO NURSING.
UNITED STATES v VIRGINIA (1996 - 722)
VMI – ADVERSATIVE MODEL – CITIZEN/SOLDIER.
NEVER RESPONDED TO WOMEN APPLICANTS.

1. 723 – INTEMEDIATE STANDARD. VIRGINIA –
A) SINGLE SEX = DIVERSITY
B) UNIQUE EDUCATION – WOMEN NOT FIT
2. VMI NEVER MENTIONED DIVERSITY IN ANY OF ITS
MATERIALS. WON’T LET LITIGATORS MAKE UP.
3. MOST WOMEN DON’T WANT – MOST MEN DON’T
EITHER. DC BASED ON STEREOTYPES. NO PROOF
WOMEN CAN’T HANDLE ADVERSATIVE.
4. CHANGE NEVER AS BAD AS FEARED.
5. VWIL NOT AN EQUAL ALTERNATIVE.

REHNQUIST C – NO EXCEEDINGLY PURSUASIVE.
STATE DONE NOTHING SINCE HOGAN. VMIL
NOT EQUAL.
SCALIA D
727-728 - PASSES INTERMEDIATE SCRUTINY.
HISTORY AND NOT GOOD FOR WOMEN.
WOMEN NOT DISCRETE AND INSULAR
MINORITY. PRIVATE SCHOOL WORRIED – IF
ACCEPT GOVERNMENT FUND, SINGLE SEX ? LET
LEGISLATURES AND MARKETS CHANGE.

GEDULDIG v AIELLO (1974 – 731)
CALIFORNIA EXCLUDED PREGNANCY FROM
DISABILITY INSURANCE.
VALID UNDER DEFERENTIAL STANDARD. NOT
GENDER DISCRIMINATION – JUST DIDN’T COVER ALL
MEDICAL EXPENSES.
PREGNANCY DISABILITY ACT – COMMERCE CLAUSE
MICHAEL M v SUPERIOR COURT (1981 – 731)
STATUTORY RAPE LAW ONLY MEN LIABLE FOR
PROSECUTION. GIRL 16.

REHNQUIST
1. INTERMEDIATE SCRUTINY BUT NOT WHEN
STATUTE REFLECTS REAL DIFFERENCES BETWEEN
MEN AND WOMEN. 732 - QUOTE.
2. STRONG INTEREST IN PREVENTING TEENAGE
PREGNANCIES. 732 – FN2 - DOESN’T MATTER IF
FORMERLY HAD IMPERMISSIBLE PURPOSE.
3. GENDER NEUTRAL CAN’T BE ENFORCED
BECAUSE GIRLS WON’T REPORT. GIRLS
DETERRED BY PREGNANCY – BOYS = JAIL.

ROSTKER v GOLDBERG (1981 – 734)
MALES MUST REGISTER FOR DRAFT, WOMEN NO.
REHNQUIST
1. RAISING AND SUPPORTING ARMIES MEETS
IMPORTANT PURPOSE.
2. FOR COMBAT. SINCE WOMEN ARE STATUTORILY
EXCLUDED, NO NEED TO REGISTER.
3. MUCH DEBATE – NOT BY PRODUCT OF
TRADITIONAL THINKING.

4. 80,000 NON COMBAT SPOTS – CONGRESS CAN
CONCLUDE NOT WORTH IT.
MARSHALL + 2 D
EXCLUDING WOMEN DOESN’T MAKE MILITARY MORE
EFFECTIVE – FAILS SUBSTANTIALLY RELATES PART OF
TEST.
NGUYEN v INS (2001 – 736)
OUT OF WEDLOCK CHILD BORN OVERSEAS TREATED
DIFFERENTLY IF MOTHER OR FATHER WAS NON-
CITIZEN. IF MOTHER CITIZEN, AUTOMATIC. IF DAD,
MUST MEET 3 CONDITIONS - 736

KENNEDY
1. 736 - STATE PURPOSES: BIOLOGICAL FACT
AND ACTUAL RELATIONSHIP.
2. REAL DIFFERENCE – MOTHER MUST BE
PRESENT AT BIRTH, DAD NOT.
O’CONNOR + 3 D
STEROTYPED THINKING. FAILS SUBSTANTIALLY
RELATED TEST. DNA PROVES BIOLOGICAL.
RELATIONSHIP IS INVALID.

GENDER AFFRIMATIVE ACTION
BENIGN OR NOT = INTERMEDIATE
SOME INVALIDATED AS IRRATIONAL – ORR
V ORR (742) – ALIMONY ON NEED, NOT
GENDER. ALREADY HAVE HEARINGS.
SOCIAL SECURITY SURVIVOR’S BENEFITS
NO BUT RETIREMENT FORMULA OK.

ALIENAGE
GRAHAM v RICHARDSON (1971 – 757)
STATES DENY WELFARE TO NON-CITIZENS.
SUSPECT CLASS AND FEDERAL, NOT STATE,
POWER.
SUGARMAN v DOUGALL (1973 – 757)
SUSPECT CLASS BUT CAN EXCLUDE IF BASIC TO
POLITICAL COMMUNITY – 757-758 – QUOTE.

FOLEY – NY STATE TROOPERS = BASIC.
NORWICH – ELEMENTARY AND HS TEACHERS =
BASIC.
BERNAL – NOTARY PUBLIC = NOT BASIC.
PREEMPTION MORE APPROPRIATE THAN EQUAL
PROTECTION.
HAMPTON v MOW SUN WONG (1976 – 760)
FEDERAL REGULATION BARRING ALIENS FROM CIVIL
SERVICE
DEFER BUT DUE PROCESS LIMITS – 760.

CLEBURNE v CLEBURNE LIVING CENTER (1985 – 761)
DENIED USE OF HOME FOR MENTALLY RETARDED. 13
RESIDENTS – 4 BEDROOMS – CONSTANT
SUPERVISION.
WHITE
1. 762 II – EQUAL PROTECTION REVIEW.
2. MENTALLY DISABLED HAVE SPECIAL NEEDS.
RECENT LAWS SHOW POLITICAL PROCESS IS
PROTECTING. HARD TO DISGUISH FROM AGE. 763 -

3. NO PERMIT REQUIRED FOR ANY OTHER MULTIPLE
UNITS. CAN’T SINGLE OUT.
4. STATE PURPOSES:
A. NEGATIVE ATTITUDE OF NEIGHBORS NOT
LEGITIMATE PURPOSE.
B. THREAT FROM JUNIOR HIGH NOT VALID.
C. FLOOD PLAIN – WOULD APPLY TO ALL.
D. ADMIT DENSITY SATISFIED FOR ALL OTHER
MARSHALL C
CLEARLY NOT SAME DEFERENTIAL STANDARD AS
WOULD BE APPLIED TO ECONOMICS.

MASSACHUSETTS RETIREMENT BD V MURGIA
(1976 – 766)
MUST RETIRE FROM STATE POLICE AT 50. 766 - NOT
DISCRETE AND INSULAR MINORITY. VALID UNDER
2015 – CAN YOU HAVE MANDATORY RETIREMENT
AGE ? AARP AND COMM CL STAT
JAMES v VALTIERRA (1971 – 766) – CALIF CAN
REQUIRE REFERENDUM BEFORE ANY LOW INCOME
HOUSING. DISSENT – WEALTH = SUSPECT. SAN
ANTONIO v RODRIGUEZ MORE IMPORTANT ON
WEALTH.

SEXUAL ORIENTATION
ROMER v EVANS (1996 – 746)
746- COLORADO PASSES AMENDMENT 2 –
CAN’T ADOPT OR ENFORCE ANYTHING GIVING
HOMOSEXUALS PROTECTED OR MINORITY
STATUS.
KENNEDY
1. DOESN’T MAKE EQUAL – REPEALS EXISTING
AND PROHIBITS FUTURE ADOPTION.

2. 747 – COLORADO HAS AN EXTENSIVE LIST OF
PROTECTED STATUS.
3. 748 - MOST CLASSIFICATIONS GET
DEFERENTIAL STATUS – THIS DOESN’T PASS
LEGITIMATE/RATIONAL RELATION TEST.
4. 749 - QUOTE – NOT RELATED TO ANYTHING
LEGITIMATE.
SCALIA + 2 D
1. 750 - TOLERANT COLORADANS

2. IF BOWERS IS VALID AND CAN CRIMINALIZE ,
HOW CAN THIS BE INVALID ?
3. CAN PRESERVE TRADITIONAL MORAL
VALUES. POWERFUL MINORITY THAT CAN
PROTECT ITSELF IN POLITICAL PROCESS.
LAWRENCE, WINDSOR AND HOLLINGSWORTH
ALL UNDER SUBSTANTIVE DP BUT ALL MENTION
EQUAL PROTECTION ALSO.
REMEMBER STATE CONSTITUTIONS CAN GRANT
MORE RIGHTS THAN FEDERAL, JUST NOT LESS.

FUNDAMENTAL RIGHTS AND REFUSALS TO EXPAND
EQUAL PROTECTION
MOST OF THIS LINE OF CASES EXPLAINABLE BY
PERIOD FROM 1960 – 1973 WHEN SUBSTANTIVE DUE
PROCESS DISFAVORED. USSC CREATED A RIGHTS
SUBSECTION OF EQUAL PROTECTION. STILL VALID
BUT NOT EXPANDED.
1. VOTING AND ACCESS TO BALLOTS
HARPER v VIRGINIA BD OF ELECTIONS (1966 – 769)
INVALIDATED POLL TAX – VOTING = FUNDAMENTAL
POLITICAL RIGHT. WEALTH IRRELEVANT IN VOTING
INTELLIGENTLY.

KRAMER v UNION FREE SCHOOL DISTRICT (1969 –
770). INVALIDATED LAW ONLY VOTE IN SCHOOL
ELECTIONS IF OWNED TAXABLE REAL PROPERTY OR
KIDS IN SCHOOL.
2. ACCESS TO COURTS
GRIFFEN v ILLINOIS (1956 – 786) ILLINOIS REQUIRED
TRANSCRIPTS ON APPEAL OF CRIMINAL CONVICTION
BUT WOULDN’T PAY FOR THEM. NO $$$, NO APPEAL.
INVALID – STATE MUST PAY IF REQUIRE.
DOUGLAS v CALIFORNIA (1963 – 787) – STATE MUST
PAY FOR ATTORNEY ON FIRST APPEAL AS OF RIGHT IN
CRIMINAL CONTEXT.

BODDIE v CONN (1971 – 790) STATE MUST GRANT
DIVORCE EVEN IF CAN’T PAY THE $ 60 FILING FEE.
US v KRAS (1973 – 790) STATE DOESN’T HAVE TO PAY
BANKRUPTCY FEE. MARRIAGE = FUNDAMENTAL.
3. RIGHT TO TRAVEL
SHAPIRO v THOMPSON (1969 – 443) STATE MAY NOT
DENY WELFARE UNTIL RESIDENT FOR 1 YEAR.
2015 – THIS IS SAENZ v ROE AND 14TH AMENDMENT
PRIVILEGES AND IMMUNITIES CLAUSE.
2015 – ALL 3 RIGHTS NEVER OVERRULED. VALID.

MLB v SLJ (1996 – 792)
MISSISSIPPI TERMINATED P’S
PARENTAL RIGHTS FOREVER. SHE
WANTED TO APPEAL – STATE
REQUIRED $ 2,357.36 IN FEES. SHE IS
INDIGENT. STATE DISMISSED.
GINSBURG
1. GRIFFIN, DOUGLAS FOR CRIMINAL.

CIVIL TO DATE ONLY BODDIE.
2. HERE, CIVIL BUT CRIMINAL LIKE. EQUAL PRO
AND SUBST DP. IMPORTANT INTEREST
IRRETRIVEABLY DESTROYED. NARROW
EXCEPTION FOR HERE. STATE MUST PAY.
THOMAS +3 D
OPEN THE DOOR FOR CIVIL. SHOULD OVERRULE
GRIFFIN. STATE MAKES WEALTH DISTINCTIONS
ALL THE TIME.

DANDRIDGE v WILLIAMS (1970 – 797) WELFARE
FAIRNESS IS NOT A FUNDAMENTAL RIGHT.
SOCIAL AND ECONOMIC = DEFERENCE.
LINDSEY v NORMET (1972 – 798) HOUSING IS
NOT A FUNDAMENTAL RIGHT.
SAN ANTONIO v RODRIGUEZ (1973 – 800)
TEXAS FUNDS SCHOOL DISTRICTS BASED ON
PROPERTY TAX. POOR P TAXED AT 1.05% = $26
PER PUPIL. RICH AT .85% = $333 PER. WITH FED
AND STATE, $356 AND $594.

WHAT ARE P’S ARGUMENTS ?
WHICH IS THE STRONGER ONE ?
WHAT WOULD THE IMPLICATIONS BE IF P WON
?
CAN YOU DEVISE A MORE EQUITABLE SYSTEM
OF FUNDING PUBLIC SCHOOLS ?

IS WEALTH A SUSPECT CLASS ?
1. 801 – INDICIA OF SUSPECTNESS. POOREST
FAMILIES NOT NECESSARILY IN POOREST DISTRICTS.
NOT AN ABSOLUTE DEPRIVATION. 800 FN1 -
DIFFERENT IF DEFINED CLASS BEING TOTALLY DENIED
AN EDUCATION – DIFFERENT. NO – PROPOSED CLASS
IS AMORPHOUS AND ILL DEFINED.
IS EDUCATION A FUNDAMENTAL RIGHT ?
1. 801 – NOT IMPORTANCE OF SERVICE – IS IT
IMPLICITLY OR EXPLICITLY FOUND IN CONSTITUTION ?
P = FREE SPEECH AND VOTING. NO – NOT EFFECTIVE
SPEECH OR VOTING.DIFFERENT IF DENIED MINIMUM.

2. LEGITMATE/RATIONAL RELATION. 802 - QUOTE.
EXISTENCE OF SOME INEQUALTIY NOT BASIS FOR
INVALIDATING. NOT COMPELLING TEST HERE. A
MESS IF WE OVERTURN.
WHITE D
PART OF THE PROBLEM IS THAT TEXAS LIMITS % OF
TAX – POOR DISTRICT CAN’T TAX ITSELF MORE EVEN
IF IT WANTED TO DO SO. MAX HERE
MARSHALL D IMPORTANT
1. FUNDAMENTAL CLEARLY NOT LIMITED TO FOUND
IN CONSTITUTION. 805 - SPECTRUM QUOTE

2. 805 AND 805 FN 1 – CLOSE TO FREE SPEECH AND
VOTE.
3. CREATES INTERMEDIATE SCRUTINY. BALANCING.
PLYLER v DOE (1982 – 807)
TEXAS STATUTE WITHHOLD SCHOOL DISTRICT FUNDS
FOR EDUCATING CHILDREN NOT LEGALLY ADMITTED
INTO US. ALSO AUTHORIZED DISTRICT TO DENY
ENROLLMENT TO SUCH CHILDREN. P = MEXICAN
ORIGIN, CAN’T PROVE LEGAL ENTRY.

BRENNAN
1. EQUAL PROTECTION APPLIES TO ANYONE WITHIN
JURISDICTION. TEXAS – ILLEGALS AREN’T REALLY
HERE. NO – ANY PERSON PHYSICALLY IN US GETS DP
AND EP – DON’T ASK HOW HERE.
2. INDICIA OF SUSPECTNESS: (EDITED OUT)
A. CLASSIFICATION REFLECTS DEEP SEATED
PREJUDICE
B. IRRELEVANT TO PROPER GOALS
C. GROUP HISTORICALLY POLITICALLY POWERLESS
COMMAND JUDICIAL PROTECTION FROM MAJ.
807 – FN 1 - CAN’T BE VOLUNTARY – CAN’T JOIN
SUSPECT CLASS.

3. NOT SUSPECT HERE – PARENTS CHOSE ILLEGAL
ENTRY. BUT LESS FORCE ON CHILDREN – NO REAL
CHOICE.
4. 808 – PERMANENT SUBCLASS. 808 - QUOTE –
SUBSTANTIAL GOAL. INTERMEDIATE SCRUTINY.
BLACKMUN C
COMPLETE DENIAL
POWELL C
INTERMEDIATE GOOD. SUBCLASS OF ILLITERATES
MAY NOT BE EVEN LEGITMATE/RR.

BURGER + 3 D
1. 809 - QUOTE. NOT TO PROVIDE LEADERSHIP
WHEN POLITICAL PROCESS IS “SLOW”. SOUND
POLICY REASONS AGAINST DOESN’T MEAN
UNCONSTITUTIONAL.
2. LEGIT/RR. CAN LIMIT FINITE RESOURCES TO
LEGAL. NOT IRRATIONAL.
3. DON’T LIKE QUASI-SUSPECT.

CONGRESSIONAL POWER TO INTERPRET THE 14TH
AMENDMENT
CITY OF BOERNE v FLORES (1997 – 859)
RFRA LEGISLATIVELY OVERRULED USSC CASE OREGON
v SMITH II. RESTORE COMPELLING TEST FOR
NEUTRAL LAW WHICH INCIDENTALLY IMPACTS
RELIGION. PURSUANT TO SEC 5 OF 14TH AMEND.
KENNEDY
1. CONGRESS CLEARLY HAS POWER TO ENFORCE OR
REMEDY 14TH A RIGHTS – INCLUDING FREE EXERCISE

2. ENFORCE/REMEDY v SUBSTANTIVE
INTERPRETATION.
3. DIFFERENCE DETERMINED BY CONGRUENCE
AND PROPORTIONALITY. 861 - QUOTE.
4. 862 - QUOTE. CONGRESS CAN’T MAKE
SUBSTANTIVE INTERPRETATION, ONLY USSC.
CONST SHOULDN’T CHANGE WITH MAJORITY.
CONGRESS CAN’T EXPAND EITHER.
5. 863 - QUOTE. CHANGING LAW – NOT
REMEDYING ANYTHING.

865-866 – IS CONGRESS LIMITED TO RIGHTS
PREVIOUSLY DECLARED BY USSC ? IF NEW, SHOULD
BE SOME FACT FINDING OF VIOLATIONS RELATED TO
PREVIOUS RIGHT GRANTED BY USSC.
SEC 5 OF 14TH AMENDMENT MATTERS BECAUSE OF
SEMINOLE TRIBE AND 11TH AMENDMENT STATE
IMMUNITY TO BEING SUED UNDER COMMERCE
CLAUSE LEGISLATION.
FLORIDA PREPAID v COLLEGE SAVINGS (1999 – 868)
CONGRESS MADE STATES LIABLE FOR PATENT
INFRINGEMENT SUITS IN FEDERAL COURT

1. CONGRESS INDENTIFIED NO PATTERN OF
INFRINGEMENT BY STATES. ALSO DIDN’T SHOW NO
REMEDY IN STATE COURT (WAIVE SOVERIGN
IMMUNITY).
2. OUT OF PROPORTION – DIDN’T LIMIT TO WHERE
NO REMEDY IN STATE COURT AND DIDN’T LIMIT TO
CERTAIN TYPE OF PATENT INFRIGEMENT CASE.
INVALID.
US v MORRISON (2000 – 869)
VAWA. VIRGINIA TECH STUDENT RAPED BY 2
FOOTBALL PLAYERS. SCHOOL MINIMUM – SHE
BRINGS CIVIL SUIT. ALREADY SEEN NO C CL POWER.

1. DESPITE RECORD OF BIAS IN STATE ENFORCEMENT,
NO CONGRUENCE OR PROPORTIONALITY HERE –
A. APPLIES TO INDIVIDUALS, NOT STATES.
B. APPLIES TO ALL STATES, NOT JUST BIASED.
BREYER + 1 D
CONGRESS DOESN’T HAVE TO SHOW EVERY STATE TO
BIND THE NATION.
KIMEL (2000 – 872) – SUING STATE FOR AGE
DISCRIMINATION UNDER FEDERAL STATUTE.
1. AGE DEFERENTIAL SCRUTINY IN USSC – MURGIA
2. C CL BASED STATUTE DOESN’T REACH STATES
3. NO CONGRUENCE AND PROPORTION UNDER 14TH

SHELBY COUNTY v HOLDER (2013 - S 39)
VOTING RIGHTS ACT EXTENDED ANOTHER 25 YEARS.
SOME STATES MUST GET FEDERAL PERMISSION
BEFORE ENACTING ANY LAWS RELATING TO VOTING.
ROBERTS
1. VOTING RIGHTS ACT INCREDIBLY SUCCESFUL. BUT
DATA 35 YEARS OLD.
2. 40 - HISTORY OF ACT. COVERED JURISDICTIONS -
EXPANDED. BAN TEST AND DEVICES. ADDED
LANGUAGE DISCRIMINATION. INTENDED TO BE
TEMPORARY IN 1965 – EXTENDED 25 YEARS IN 2006.

3. STATES REGULATE ELECTIONS. EQUAL
SOVEREIGNTY. APPLIES TO 9 STATES AND SEVERAL
COUNTIES IN OTHER STATES.
4. MUCH HAS CHANGED IN 50 YEARS. STILL RACIAL
BIAS BUT MUCH ELIMINATED. ACT HASN’T
CHANGED. BASED ON DECADES OLD DATA AND
ERADICATED PRACTICES. DOESN’T TAKE INTO
ACCOUNT CURRENT POLITICAL CONDITIONS.
5. CONGRESS DID DO MODERN FACT FINDING BUT
THAT PLAYED NO ROLE IN THE SHAPING OF THE
STATUTORY REMEDIES. CONGRESS SHOULD HAVE
UPDATED THE COVERAGE FORMULA. ONLY THAT
INVALID.

THOMAS C
ALL SEC 5 OF VOTING RIGHTS ACT INVALID.
GINSBURG + 3 D
1. DOOMED BY ITS SUCCESS. CONGRESS HAS
VOLUMINOUS RECORD (15,000 PAGES) OF CURRENT
DISCRIMINATION. NOTHING HAS WORKED BUT THE
REMEDIES IN THE ACT.
2. OVERWHELMING VOTES IN HOUSE (390 – 33) AND
SENATE (98 – 0 ).

3. LEGITIMATE FEAR GAINS WILL BE LOST
WITHOUT DETERRENT EFFECT OF STATUTE. WE
SHOULD DEFER TO CONGRESS – HEIGHT OF ITS
14TH AND 15TH AMENDMENT POWERS IN
VOTING.
4. NOT ONLY MEANS, JUST A RATIONAL ONE.
CURRENT EVIDENCE PRECLEARANCE STILL
BLOCKING DISCRIMINATORY PRACTICES.
COVERED JURISDICTIONS STILL RACIALLY
POLARIZED.

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