Legal Philosophy: Rejection of Traditional Frameworks

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.  

DECONSTRUCTION

.

ALREADY SEEN COMMERCE CLAUSE USED FOR CIVIL

RIGHTS BUT THAT IS THE END OF THE STORY.

1.  13

TH

 AMENDMENT – 

1865 

CONGRESS ENFORCES

     A.  INCLUDES PRIVATE – REACH = BROAD

     B.  SUBSTANCE LIMITED = SLAVERY

2.  14

TH

 AMENDMENT – 

1868 

CONGRESS ENFORCES

     A.  “NO STATE” – NEED STATE ACTION.  LIMITED

     B.  SUBSTANCE BROAD

3.  15

TH

 AMENDMENT – 

1870

 CONGRESS ENFORCES

A.  GOVERNMENT ELECTIONS – REACH = LIMITED

      B.  SUBSTANCE NARROW – VOTING.

GENERAL

1.  13 AND 15 SPECIFICALLY RACE – 14 RACE + MUCH

MORE.

2.  PRIVATE ACTIVITY = 13

TH

 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.

14

TH

 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.  

14

TH

 AMENDMENT 

LIMITED TO STATE ACTION.

CONGRESS CAN ONLY LEGISLATE ON CORRECTING

STATE LAW. IF INDIVIDUAL ACTS WRONGFULLY,

REMEDY IS AT STATE LAW 

815

. PROBLEM – 

PLESSY

.

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 5

TH

 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 DISCRIMINATION –

PUBLIC OR PRIVATE.  VALID UNDER 13

TH

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 13

TH

 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.

14

TH

 AMENDMENT – THE STATE ACTION DOCTRINE

CIVIL RIGHTS CASES ESTABLISHED PRINCIPLE.  HERE

TRYING TO INCLUDE PRIVATE INDIVIDUAL WITHIN

14

TH

 AMENDMENT REQUIREMENTS ON GROUNDS

EQUIVALENT TO STATE.  

WHY LESS IMPORTANT IN

2019 ?

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 2019 RULE FOR

PUBLIC FUNCTION.

CONTACTS, NEXUS, ENCOURAGE, AUTHORIZE

SHELLY v KRAMER (1948 - 

821

)

RESTRICTIVE COVENANT.  WHITE SELLS TO BLACK –

NEIGHBORS SUE TO ENFORCE.  INJUNCTIVE RELIEF

AND DIVESTING  TITLE

ARGUMENT FOR NEIGHBORS ?

1.  AGREEMENTS DON’T PER SE VIOLATE 14

TH

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

14

TH

 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 ASSOCIATION WITH PUBLIC (84%)

AND PRIVATE SCHOOLS = STATE ACTOR.

BUT NCAA NOT – NCAA v TARKANIAN.

HANDOUT  – CL 9

15

TH

 AMENDMENT AND STATE ACTION – THE WHITE

PRIMARY CASES (

819

)

ALL WHITE PRIMARY FROM PRIVATE GROUP (STATE

CONVENTION) – STILL VIOLATES 15

TH

 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 14

TH

 AMENDMENT CHANGE (

LIFE,

LIBERTY OR PROPERTY WITHOUT DP

) ?

APPLYING THE 14

TH

 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 4

TH

 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 (MORE STATE

CRIMINAL CASES) 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 2

ND

 DEGREE – SET ASIDE.  CONVICTED

OF 1

ST

 DEGREE IN NEW TRIAL. D – VIOLATES DOUBLE

JEOPARDY (5 AMEND).

IF FEDERAL TRIAL, CLEAR 5

TH

 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 6

TH

.  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 2

ND

 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.  13

TH

 AMENDMENT – TAKING AWAY LIVELIHOOD =

INVOLUNTARY SERVITUDE.

2.  14

TH

 AMENDMENT, PRIVILEGES AND IMMUNITIES

OF FEDERAL CITIZENSHIP = FULL NATURAL LAW =

RIGHT TO AN OCCUPATION.

MILLER

1.  POLICE POWER INCLUDES REGULATION.

2. NOT 13

TH

 – INTENDED TO ABOLISH AFRICAN

SLAVERY

14

th

 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 14

TH

 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.

THEREFORE, AFTER CIVIL WAR, NO SLAVERY BUT …

SLAUGHTER HOUSE 

1873  

(NO FEDERAL P/I)

CIVIL RIGHTS – 

1883 

(13 – NO B/I; 14 = STATE ACTION)

PLESSY v FERGUSON 

1896

 (SEPARATE BUT EQUAL OK)

PRE 1937 

– CONGRESS CAN’T USE COMMERCE CLAUSE

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.  14

TH

 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 14

TH

 AMEND

VIOLATION.  14

TH

 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 

(NOTICE, 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 (FEDERAL AND STATE).

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.

PROCEDURAL AND SUBSTANTIVE DUE PROCESS AND

PUNITIVE DAMAGES LIMITS.  2018 – EXXON V BAKER (2008 –

491

) – ESSENTIALLY A 1 – 1 RATIO BETWEEN PUNITIVE  AND

COMPENSATORY DAMAGES  FOR FEDERAL TORTS (9-1 FOR

STATE TORTS).  ELIMINATES LARGE PUNITIVE DAMAGES

AWARDS - BMW - $ 400 + $ 2 MIL; STATE FARM - $ 1 MIL + $

145 MIL; PHILIP MORRIS - $ 821,000 + $ 79 M

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 8

TH

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 3

RD

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             9

TH

 AMEND     PENUMBRAS    NOT IN

 NL                  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

, 520

)

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

, 520

 - 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

, 522

 - 

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 14

TH

 AMENDMENT

1.  

504

, 521

 – NO.  NO CASE HOLDING.  ALL RIGHTS

SEEM TO BE PREMISED ON LIVE BIRTH AND AFTER

(POSTNATAL).

2.  

504

, 521

 – FN 1

 – TEXAS DOESN’T BELIEVE.

STEWART C

506

, 522

 – SUBSTANTIVE DP – ACCEPTED.

REHNQUIST (WHITE) D

506-507

, 523

 – 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).  

INTERMEDIATE

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 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.  MANY STATES INVOLVED.

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.

WHAT IS DEFINITION OF 

PROPERTY

 ?

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.

2019 – IS THERE A 

PROPERTY

 INTEREST ? MUCH

MORE NARROW THAN GOLDBERG.

NO PROPERTY IN DISMISSAL OF TEACHER (NON-

TENURED), 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.  

SLIDE 56

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 - FEDERAL

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 VISA

DENIAL/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

)

14

TH

 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.  EP 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 – FOOD STAMPS ONLY FOR

RELATED HOUSEHOLDS.  INVALID - 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 (10 YEARS), 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

(AUSTIN) 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 5

TH

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 14

TH

 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.

14

TH

 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 14

TH

 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 - 

647

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 14

TH

 A.

TITLE VII PURSUANT TO 

COMMERCE CLAUSE 

POWER

– CAN MAKE 

IMPACT ALONE 

A VIOLATION.

IF STATUTE PURSUANT TO SEC 5 OF 14

TH

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 ?  1954 – 1968 ?

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 (4) – 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 14

TH

 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 14

TH

 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 14

TH

 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 ?  MICHIGAN

VOTERS REPEAL.

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.

5

TH

 CIR FOR UNIVERSITY ON REMAND.  USSC AFFIRMED (4-

3) IN FISHER II.

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 OF 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 (LEGAL IMMIGRANTS)

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 DISABLED.  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 

-

LEGITIMATE AND RATIONAL RELATION.

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

LEGITIMATE AND RATIONAL RELATION.

2017 – 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 + WEALTH

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. KRAMER = RENTER, NO KIDS

2. 

ACCESS TO COURTS + WEALTH

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 + WEALTH

SHAPIRO v THOMPSON (1969 – 

443

)  STATE MAY NOT

DENY WELFARE UNTIL RESIDENT FOR 1 YEAR.

2018 – THIS IS SAENZ v ROE AND 14

TH

 AMENDMENT

PRIVILEGES AND IMMUNITIES CLAUSE.

2018 – 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

IRRETRIVABLY 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  NOT

A FUNDAMENTAL RIGHT – LESS $$ FOR LARGER

FAMILIES VALID.  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% (MAX) = $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.  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.  WON’T JUDGE 

QUALITY

.

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.

JUDICIAL LIMITS ON RACIAL EQUALITY:

1.  SAN ANTONIO v RODRIGUEZ (1973) 5-4

2.  MILLIKEN v BRADLEY (1974) 5-4

3.  WASHINGTON v DAVIS (1976)  7-2

4.  CALIF REGENTS v BAKKE (1978) 5-4

BETTER TO LEAVE TO LEGISLATURE ?

FEDERAL GOVERNMENT CONTROLLING SOCIAL ISSUES

HANDOUT CL 14

CONGRESSIONAL POWER TO INTERPRET THE 14

TH

AMENDMENT (SECTION 5 – POWER TO 

ENFORCE

)

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 14

TH

 AMEND.

KENNEDY

1.  CONGRESS CLEARLY HAS POWER TO ENFORCE OR

REMEDY 14

TH

 A RIGHTS – INCLUDING FREE EXERCISE

2.  

ENFORCE/REMEDY 

(VALID

)

 v 

SUBSTANTIVE

INTERPRETATION  

(INVALID).

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 14

TH

 AMENDMENT MATTERS BECAUSE OF

SEMINOLE TRIBE AND 11

TH

 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 14

TH

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

14

TH

  AND 15

TH 

AMENDMENT POWERS IN

VOTING.

4.   NOT ONLY MEANS, JUST A RATIONAL ONE.

CURRENT EVIDENCE PRECLEARANCE STILL

BLOCKING DISCRIMINATORY PRACTICES.

COVERED JURISDICTIONS STILL RACIALLY

POLARIZED.