Constitutional Law II

PHASE I
California Law Review- The Equal Protection of the Laws
• Equality before the 14th amendment:
○ Declaration of Independence – “all men are created equal”
○ Constitution is a basis for equality – democratic structure
 Only for men w/ property
 No mention of women
 Slaves = fraction of person
• Are the founders of Constitution immoral bc they approved of slavery in the Constitution?
○ Morality is set in place and time
○ Constitution was compromise
• Equal protection of law explicitly given by 14th amendment EP and DP clauses
○ Intended to interfere w/ the power of the states
• Always a need to classify and all laws have this problem
• American concern with liberty over equality is reflected in the DP and EP clauses of the 14th Amendment.
• EP is growing in importance
• EP was designed to impose upon the states a positive duty to supply protection to all persons in the enjoyment of
their natural and inalienable rights-- life liberty and property-- and to do so equally.
• No state "shall deny to any person within its jurisdiction the equal protection of the laws"
○ Demand for fair/equal enforcement of laws and to express the demand that the law itself be equal
○ "the equal protection of the laws is a pledge of the protection of equal laws" J. Matthews, YickWo
Equal Protection and Classification
• There is a point which the demand for equality confronts the right to classify
• Paradox-- equal protection of laws is a "pledge of the protection of equal laws" but laws may classify. The very
idea of classification is that of inequality.
• Court tackles the paradox by taking the middle course -- doctrine of reasonable classification
Reasonable Classification
• A reasonable classification is one which includes all who are similarly situated and none who are not
• Must look beyond the classification to the purpose of the law.
• Purpose of the law may be either the elimination of a public "mischief" or the achievement of some positive
public good.
• Dealing with the relation of two classes to each other.
○ 5 possible relationships bw the class defined by the trait and the class defined by the mischief.

All T's are M's and all M's are T's
No T's are M's
All T's are M's but some M's are not "under-inclusive" all included in the class are tainted with the
T's
All M's are T's but some T's are not
M's
Some T's are M's; Some T's are not
M's; and some M's are not T's
Perfectly reasonable bc all classification in the law coincides
completely with the class of those similarly situated
Perfectly unreasonable bc no member of the class defined in the law
is tainted with the mischief at which the law aims.
mischief but there are others also tainted whom the classification
does not include :. Prima facie violation of the EP req of RC
"over-inclusive" bc imposes burden on a wider range of individuals
than are included in the class of those tainted with the mischief at
which the law aims. Reach out to innocent bystander.
Under-inclusive and over-inclusive at the same time. Can be
challenged separately on both grounds.

• The ct has recognized difficulties under which the legislatures operate and it has refused to strike down

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 indiscriminately all legislation embodying the classificatory inequality here under consideration
• 2 practical considerations in determining when/how far departures from ideal standards of classification are
justified 1) raises admin q's, 2) raises political q's.
• Pressure group theory-- a law is properly the result of pressures exerted by competing interests.
○ Impossible to ignore this situation
• Legislative submission to political pressure does not constitute a fair reason for failure to extend the operation of a
law to those similarly situated whom it leaves untouched.
Forbidden classification
• Suggests the possibility that there are some traits which can never be made the basis of a constitutional
classification.
• Possible parallel bw EP and DP classes
• Problem of determining which traits to treat as forbidden.
Suspect classification
• Loose category. Rigid scrutiny applied.
• Content at any particular time will depend upon the area in which the principle of equality is struggling agst the
recurring forms of claims to special and unequal status-- whether along racial, religious, economic, or even
political lines.
Discriminatory legislation
• EPC has been used by cts chiefly as a basis for the criticism of legislative classification.
• Prohibition agst discriminatory leg is a demand for purity of motive.
• Const barrier agst leg motives of hate, prejudice, vengeance, hostility, or, alternatively, of favoritism, partiality.
• Consideration of motive is complicated by the fact that it is possible for a law which is the expression of a
forbidden motive to be a good law.
• 3 situations which call the doctrine of forbidden motives into operation:
○ Situation in which a law employs a suspect classification
○ Situation in which the purpose or end of a law is "narrowly" formulated
○ Case of under-inclusive classifications (not all are overthrown but ct must satisfy that there is "no fair
reason for the law which would not req with equal force its extension to those untouched"
Substantive equal protection
• Decided judicial preference for the EPC carried to the extent of subsuming traditional DP argument under it.
• In restrictive covenant cases, ct not only reads DP arguments into EPC but goes out of its way to use the EPC in
preference to DP.
The work of the Court
• The judicial task
○ To the conscientious legislator, the EPC is a demand that, as he promulgates laws, the classifications he
creates be reasonably related to the purpose of the law.
○ Functional separation theory-- assumption that the judicial task differs radically from the legislative task,
and that for the judiciary to address itself to the same questions that the legislature has answered is an
invasion of the leg function by the cts
○ Theory of checks-- reqs that the ct reconsider the same qs that the leg has already considered.
○ 1st phase of judicial task -- identify the law's purpose.
○ Then, under the discriminatory legislation doctrine, make a judgment as to the purity of leg motive and,
under substantive EP, det the legitimacy of the end.
○ Then judge the reasonableness of a classification.
○ Judicial task, with respect to the classification, is to det which of the 5 possible relationships bw the
classifying trait and the purpose exists.
○ Final phase of the judicial task thus is a det of the actual relationship bw the class defined in the law and the
class defined by the purpose, and the application of the rules and considerations developed in Section I of
the paper.
• Judicial performance
○ Cts aware of its own remoteness/lack of familiarity with local problems.
○ Classification is dependent on the peculiar needs and specific difficulties of the community.
○ Alienage classifications aren't always nullified. Group of cases in which they have been sustained, though
not always after a full examination of the EP req.
○ The judicially asserted basis in these cases is "some special interest" on the part of the state or its citizen
populations

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 ○ Justification of special treatment of aliens rests upon two distinct grounds: (1) special status of citizens in
relation to political rights and public proprietary interests and (2) belief in the existence of alienage-linked
traits- chiefly disloyalty.
• In political organization, the demand is not so much for the removal of gov't restraints-- although this is
involved-- as for positive gov't action to provide equal treatment for minority groups, parties, or organizations
whose rights are too easily sacrificed or ignored in periods of popular hysteria.
Notes:
• Mischief and Traits: relation to purpose
○ “all wearing pink get A’s” – under inclusive
○ “no computers in class ever!” (bc of someone looking at porn) – overinclusive
• Rational basis review is almost always deferential – they don’t have to be perfect in making or enforcing laws
• When discrimination of classes and individuals, there is actual purpose review for rational basis
• Purpose of legislation – first thing to look for in legislation analysis
○ Plain meaning
○ Legislative history
○ Make it up – something that makes sense, what could they have meant in writing this
• Rational basis – do the means meet the ends?
• Courts prefer rational basis over strict scrutiny
• Lochner – found right to contract a substantive due process right… it in effect hamstringed the states so they
couldn’t write any legislation that trampled on individual’s right economically.
• Skinner v. OK – man convicted of 3 crimes of theft should be sterilized; court struck down law and gave the due
process/fundamental right to procreate
• Heightened scrutiny – relatively recent development; evolved over time and didn’t come w/ 14th amendment

Conditional Liberty: The Flag Salute Before Gobitis and Barnette

• Judge Brown was over formalistic and did not pay attention to the First Amendment. He was strict and dogmatic.
• Judge Brown did not pay attention to the spirit of the law either – did not abide by fairness and justice
• Judges:
○ Apply the law
○ Support justice
○ Make sure the trial is fair
• The religious beliefs of the parents was at issue
• How else could we challenge Judge Brown’s ruling?
○ Right to privacy – can bring up kids however you want
○ Ex. Meyer v. Nebraska – can’t teach kids German (no rational basis for legislation)
○ Ex. Pearce v. Society of Sisters – cannot go to private school; as long as private school is adequate, then
parents can send their kids wherever they want.
• In 1940 the Supreme Court heard arguments in the first case re: the right of children to refuse to salute the
American Flag in public schools (Minersville School District v. Gobitis – upheld flag salute requirement)
○ Barnett – did not uphold the flag salute requirement
• 15 years earlier the same issues were being discussed in the Superior Court of Whatcom County, Wash.
• Both cases re: kids w/ strong religious beliefs instilled by their parents refused to salute the flag
• HISTORY OF THE FLAG SALUTE:
○ Ceremony to salute the flag began in 1892 by Youth's Companion magazine to "stimulate patriotism in the
schools
○ American Legion convinced lawmakers in several states to pass bills making pledge of allegiance
mandatory in public schools.
• AMERICANISM:
○ As leading proponent of Americanism, American Legion lead a nationwide effort to strengthen patriotism
in American (1920s)
○ Associations in support were: KKK, Daughters and Sons of the American Revolution, Veterans of Foreign
Wars
• RUSSELL TREMAIN
○ Russell's dad approached school officials in the first week of school requesting son be allowed to refrain
from saluting the flag

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 ○ Russ's father explained that his family didn't believe in saluting the flag bc flag was symbol of "militarism
and war" and was "contrary to the teaching of the Bible and true Christianity.
○ School followed Section 47777 of Wash. State School Law and said Russ had to participate at least once a
week.
○ Monday following Russ did not go to school and truant officer told he would not be attending school bc
religious beliefs prevented him from saluting the flag.
○ One week later case reached Superior Court in Whatcom County where Judge Brown found Russ's dad
guilty and imposed $25 fine.
○ Russ still didn't return to school and parents never intended to send him to school.
○ Charged again with contributing to the delinquency of a minor, Judge Brown opened the court room to the
public bc "great public interest and question of policy at stake."
○ Dad said he could not accept the charge or ruling in the court bc he did not believe in a court beyond that
found in heaven. (Dad did not provide logical reason to court of why son would not attend school for this
reason.)
○ Russ was taken from home and placed in county detention center where he would be kept until dad and
mom would agree to send Russ to school and allow him to salute the flag.
○ Mom and Dad refused to concede.
○ Court moved Russ to Seattle and parents moved to be closer to him
○ May 20, 1926 -- parents notified that Russ would be put up for permanent adoption
• 9 months of protest from parents
• Judge decided not right for Russ to live without parents
○ Parents refused to appear at court hearing bc they still did not recognize the authority of the court
• THE AMERICAN CIVIL LIBERTIES UNION
○ One week before the adoption hearing ACLU contacted Tremains regarding case
○ Wanted to get Vanderveer to act on behalf of the Tremains and protest the adoption
○ The Tremains, through the Elijah Voice Society responded that they did not want the representation.
○ Vanderveer never protested in court (not enough time and no cooperation from parents)
○ ACLU decided to pursue the case w/out the Tremains help in 2 pronged attack
 Media
 Courts
○ Wanted to appeal Judge Brown's decision as unconstitutional violation of religious freedom, and habeas
corpus claim would seek to determine if Russ were being unlawfully deprived of his liberties by being
removed from parents.
 Both coursed would be difficult without parents consent
○ During later meeting, Judge Brown agreed to modify the order and return Russ to his home if the
Tremains would send him to a public or private school that was satisfactory to local authorities
○ Compromise collapsed 2 weeks later bc no public school would take Russ if he refused to salute the flag
and parents were unwilling to send him to private YMCA school where he was allowed bc they saw it as
concession that they were unwilling to make
○ Last ditch effort = TAXPAYER SUIT!
 Claiming that his or her taxes had been misspent by supporting Russ's confinements.
 Bc Russ had been sent to Children's Home by a judge in an official court proceeding for legal
reasons, he could not be considered a taxpayer burden.
○ Nov. 28, 1927 Russ was returned home with one stipulation: Russ must attend school.
• WHY NOT RUSSELL?
○ 5 major factors prevented Tremain case from becoming Supreme Court tests for religious and speech
freedoms:
 Authorities' strict adherence to the letter of the law
• On a whole did not like the Tremains for what they considered to be anti-patriotic actions
and poor parenting
• Judge Brown had more than one reason for opening up court room to public:
○ To make an example of Tremains
○ Imposed strict requirements on Russ's parents for his return home
• In Judge Brown's view he had to uphold the law as written
• To him no distinction could be made between breaking law for reasons of delinquency
and breaking law for reasons of religious conviction
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  Influence of Elijah Voice Society on the Tremian family (cult-like)
• From beginning of controversy members of Society were present at the Tremains side
• Even if Tremains wanted to compromise the Society was constantly there to hold their
rigid stance
 Overwhelming public sentiment against the Tremains and the ACLU
• Public opinion was against family and ACLU
• ACLU, bc of stance, was branded as communist red or at leas pink
• ACLU just emerged from internal conflict re: whether to use courts to fight for rights
(refocused civil rights efforts on legal system after winning Sup. Ct. victory in Gitlow v.
NY in 1925)
 ACLU's belated intervention in the case as well as its lack of authority in legal proceedings
 Refusal of Russ's parents to fight for their own rights in court

United States v. Carolene Products Co.

304 U.S. 144 (1938)
CLASS NOTES:
• 2 types of rational basis:
○ Deferential – where it suffices that the legislature has a purpose that is rational.
○ Actual purpose review – where the court is more searching. The state has a purpose and let’s find out if
this legislation is rationally related to the purpose
CONSTITUTIONAL TOPICS:
• Commerce Clause (U.S. Const. art. I, § 8, cl. 3)
• Interstate Commerce
• Fifth Amendment (Due Process)
RULE: The Filled Milk Act of 1923 is constitutional for it is within the scope of the Commerce Clause, U.S. Const. art. I,
§ 8, cl. 3, and the Fifth Amendment.
FACTS:
• Filled Milk is milk that has had butter fat removed and results in undernourishment if used a dietary supplement.
• Congress enacted the Filled Milk Act of 1923, which declared “filled milk” is an “adulterated article of food,
injurious to the public health,” and that “its sale constitutes a fraud upon the public.”
• The Act prohibited any person to shill “filled milk” in interstate commerce.
PROCEDURE: The United States appealed the decision from the United States District Court for the Southern District of
Illinois which ruled in favor of Carolene Products Co. holding that an indictment which charged a violation of the Filled
Milk Act, 21 U.S.C.S. §§ 61-63, was beyond the scope of the Commerce Clause (U.S. Const. art. I, § 8, cl. 3) and a
violation of Carolene’s Fifth Amendment due process.
ISSUE: Whether the Filled Milk Act of 1923 falls within the scope of the Commerce Clause (U.S. Const. art. I, § 8, cl. 3)
and the Fifth Amendment’s due process clause?
RATIONALE: The Court reversed the judgment for appellee corporation, because Congress had the power, under the
Commerce Clause, to prohibit the shipment of adulterated milk in interstate commerce. The legislative exercise of such
power did not violate respondent's right to due process under the Fifth Amendment where Congress had a rational basis
for enacting the legislation.
• Pg 763: “regulatory legislation affecting ordinary commercial transactions is not to be pronounced
unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to
preclude the assumption that it rests upon some rationale basis.” (regulatory legislation is constitutional unless
there lacks a rational basis for its existence)
CASE NOTES:
• WHEN A STATUTE MAY BE CHALLENGED:
○ Pg 763: “the constitutionality of a statute predicated upon the existence of a particular state of facts
may be challenged by showing to the court those facts ceased to exist”
○ Pg: 763: “the constitutionality of a statute, valid on its face, may be assailed [challenged] by proof of facts
tending to show that the statute as applied to a particular article is without support from other o the class as
to be without reason for the prohibition.”
• HYPOTHETICAL SITUATIONS:
1. At trial, appellee presents expert witnesses who testify that filled milk is just as nourishing as pure milk.
No one contradicts this testimony.
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 ○ I believe the statute can be challenged because the old facts cease to exist.
2. At trial, appellee presents expert witnesses who testify that his filled milk is just as nourishing as pure milk.
No one contradicts this testimony.
○ I believe the statute can be challenged because the old facts cease to exist.
3. At trial, appellee demonstrates that his product is packaged in a container that conspicuously states: “Filled
Milk. Not as Nourshing as Pure Milk. But Cheaper.”
○ I believe the statute cannot be challenged because it is “injurious to public health.”
4. Suppose Congress had enacted the measure without express legislative findings, and that at trial appellee
presents expert witnesses who testify that filled milk is ust as nourishing as pure milk.
○ IDK
Similar Cases:
• WILLIAMSON V. LEE OPTICAL OF OKLAHOMA [348 U.S. 483 (1955)]  The Supreme Court strikes down a challenge to
a statute that made it unlawful for an optician (glasses lens maker) to fit or duplicate lenses without a prescription
holding that, [Pg: 764] “the day is gone when this Court uses the Due Process Clause to strike down state laws,
regulatory of business and individual conditions, because they may be unwise, improvident, or out of harmony
with a particular school of thought.”
• FERGUSON V. SKRUPA [372 U.S. 726 (1963)]  The Supreme Court strikes down a challenge to a statute that made
it unlawful for any person to engage in the business of debt adjusting except as incident to ‘the lawful practice of
law,’ holding that, [Pg: 765] “States ‘have power to legislate against what are found to be injurious practices in
their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal
constitutional prohibition”…relief does not lie with the court but the body constituted to pass laws for the State of
Kansas.
FOOTNOTE 4: WHY IS THERE A “PRESUMPTION OF CONSTITUTIONALITY” WHEN THE COURT REVIEWS ECONOMIC LEGISLATION?
• In Carolene Products, Justice Stone made reference that statutes affecting the first ten amendments and those that
restrict political process may need to be subjected to more exacting judicial scrutiny than most other types of
legislation…even though the Court does not need to decide that at the current time
• He may have brought this up to ensure that future challenges to statues regulating areas important areas (i.e. first
ten amendments) have some form of historical judicial support for stricter judicial review.
• Heightened scrutiny – something more than rational basis
○ Intermediate or strict scrutiny
• “Discreet, insular minority”  Madison talked about factionalism and problems w/ it. If factions join together
and gang up on smaller factions it is counter productive to democracy.
• Recognizes that the small minority groups need to be protected in the democratic process.

McCulloch v. Maryland – main case for deferential rational basis review; bank chartering case; cannot tax the national
bank in Maryland.

Strict Scrutiny → Regulation that is narrowly tailored to meet a compelling governmental interest

Introduction:
• The best-established case for heightened judicial review is for classifications based on race.
• Although the application of “strict scrutiny” to racial classification is now taken as one of the cornerstones of
equal protection doctrine, it was not until ten years after Brown v. Board of Education, that the Supreme Court
“both articulated and applied a more rigorous review of standard to racial classifications” in McLaughlin v.
Florida. 379 U.S. 184 (1964).

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Decisions that led the Court to articulate the requirement of strict scrutiny for racial classifications:
• Strauder v. West Virginia
• Korematsu v.United States
• Loving v.Virginia

Strauder v. West Virginia

100S. 303 (1880)
14th Amendment
14th gives all persons the right to protection from unfriendly race-based legislation
RULE: Any law that expressly denies a person the right to participate as jurors in the administration of the law bc
of race is unconstitutional.
FACTS: (Black defendant v. State gov’t)
• Strauder (D), a black man, was convicted of murder before an all-white jury in a WV trial ct.
• West Virginia (P), by means of a race statute, limited jury service to “white male persons who are twenty-one
years of age and who are citizens of this State.”
• Strauder claimed that his conviction by a jury chosen pursuant to this provision violated the 14th amendment.
PROCEDURE:
• Certification to US Sup Ct of a WV Sup Ct decision upholding a race-based jury selection statute.
ISSUE: Is it a violation of the Const to allow only white persons to sit on a jury, meaning that a non-white defendant has
no possibility of having a racially similar person on the jury? (YES)
• Whether by the Constitution and laws of the United States, every citizen of the United States has a right to a trial
of an indictment against him by a jury selected and impaneled without discrimination against his race or color?
• Whether all persons of a man’s race or color may be excluded by law from sitting on a jury, solely because of
their race or color, so that by no possibility can any man of the indicted man’s color may sit upon the Jury?
HOLDING: The WV statute limiting jury service to white males who are 21 and who are citizens of this State is
unconstitutional for it violates the 14th amendment bc it aims to discriminate on a basis of race.
RATIONALE:
• Purpose of the 14th is to provide all races, particularly blacks, with civil rights that white Americans have always
enjoyed.
• Similarly, its purpose is to provide non-whites the protections of the federal gov’t whenever it should be denied
them by the states, meaning states have no power to withhold from non-whites equal protection under the law.
• Here, the WV (P) law which excludes non-whites from jury service denies these individuals the right to
participate in the admin of the law, and is :. Unconstitutional under the 14th.
• This is not to say that a state may not prescribe qualifications of its jurors, and in doing so make some
discriminations. It simply cannot base one of those discriminations on race.
• Pg 524: “The law in the States shall be the same for the black as for the white”
• Pg 524: “The 14th Amendment…was designed to assure the colored race the enjoyment of all the civil rights that
under the law are enjoyed by white persons, and to give that race the protection of the general government, in that
enjoyment, whenever it should be denied by the States.”
• Pg 525: “It is not easy to comprehend how it can be said that while every white man is entitled to a trial by jury
selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a
Negro is not”…they are equally protected by the law.”
ANALYSIS:
• 1st post-14th case that stands for the proposition that persons of all races are guaranteed equality in the realm of
civil rights
• Congress  fed protection necessary bc of the possibility that states might attempt to permit race-based
distinctions under state law.
• Clarifies  Any legislation that implies inferiority of non-whites, or which takes a step toward reducing non-
whites to a subservient condition is unconstitutional
○ Some qualifications:
 Strauder doesn’t grant upon criminal Ds the right to have persons of their own race on their jury.
Rather, simply holds that persons of that race cannot be excluded from the jury selection process
on race grounds.
 Strauder also doesn’t req a conviction to be overturned bc it is handed down by an all-white jury,
so long as non-whites are not excluded from the process
• The Ct here states that one permissible discrimination agst jury service is gender  clearly, no longer good law!
NOTES:
• Opinion says African Americans were “mere children”
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 Korematsu v. United States
323 U.S. 214 (1944)
Executive Order No. 9066
War Powers of Congress & the Executive
Racial antagonism and bias can never justify race-based classifications or exclusions
RULE: All legal restrictions which curtail the civil rights of a single racial group are immediately suspect and must
be subjected to a high level of scrutiny.
FACTS: (Japanese American v. Military)
• 2/19/42, Roosevelt issued Executive Order No. 9066 gave military commanders the power to “prescribe military
areas which any or all persons may be excluded, and with respect to which, the right of any person to enter,
remain in, or leave shall be subect to whatever restrictions [the Military] Commander may impose in his
discretion.”
• 3/21/42, Congress enacted legislation making it a crime to violate an order issued by a military commander
pursuant to this authority.
• 5/3/42, an order, made under the above authority, was issued which required all persons of Japanese descent
living along the West Coast to vacate their homes and report to Assembly Centers, many of these were later
shipped to Relocation Centers.
• Korematsu, a U.S. citizen of unchallenged loyalty, but of Japanese descent, was tried and convicted under the
3/21 legislation for remaining in his home contrary to the exclusion order issued on 5/3.
PROCEDURE:
• Korematsu, an American citizen of Japanese descent, was convicted in the United States district court
• Certiorari was granted to the United States Court of Appeals for the Ninth Circuit.
• Certification to the US Sup Ct of an appeal of the conviction of a man of Japanese descent for refusing to leave
his home at the order of a military commander.
ISSUE: Can military exigencies justify race-based exclusions? (YES)
• Whether the exclusion orders by military commanders excluding Japanese Americans from the West Coast are
within the scope of the war power of Congress and the Executive?
HOLDING: Cannot conclude that it was beyond the war power of Congress and the Executive to exclude Korematsu (D)
and others of Japanese descent from their homes on the West Coast. (Constitutional, Korematsu’s conviction upheld.)
RATIONALE:
• All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. This doesn’t
necessarily mean they are unconstitutional, but that they must be subjected to a higher level of scrutiny.
• Pressing public necessity may justify such restrictions, racial bias and antagonism never can.
• Excluding a person from his home is a serious deprivation of liberty, and nothing short of apprehension by the
proper military authorities of the gravest imminent danger to public safety can constitutionally justify such
action.
• But exclusion from a threatened area has a definite relat to the prevention of espionage and sabotage, and the
military authorities on the West Coast concluded that exclusion was necessary to defend our shores.
• Majority excluded are loyal, but evidence that some who aren’t loyal, det who they are isn’t immediately possible,
thus exclusion of the whole group is imperative.
• Yes, hardship is caused by this, but (pg 527) “Hardships are a part of war” and when our shores are threatened,
power to protect must be commensurate with the threatened danger.
• Not a case of racial antagonism, rather a case of military necessity.
○ Explicitly concerning Korematsu’s detention  (pg 527) “Korematsu was not excluded from the Military
Area because of hostility to him or his race. He was excluded because we are at war with the Japanese
Empire, because the properly constituted military authorities feared an invasion of our West Coast and
felt constrained to take proper security measures…we cannot say there actions were unjustified.”
• Cannot now, in hindsight, say that at the time these actions were unnecessary and unjustified.
○ Pg 527: “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is
always heavier.”
○ Pg 527: “Compulsory exclusion of large groups of citizens from their homes, except under circumstances
of firest emergency and peril, is in consistent with our basic governmental institutions. But when under
conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be
commensurate with the threatened danger.”
DISSENTS:

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(Justice Murphy)  Key Themes: Racism, Limiting Military Discretion, Individual disloyalty does not apply to Group)
• Exclusion should not be upheld because it (pg 527) “goes over “the very brink of constitutional power” and falls
into the ugly abyss of racism.”
• While it’s true that in times of war great deference must be paid to military leaders, “…it is essential that there be
definite limits to military discretion, especially where martial law has not been declared.”
• Here, the exclusion of all persons with Japanese blood bears no reasonable relation to the gov’ts interest in
combating sabotage and espionage. Were it true that all excluded could reasonably be considered dangerous,
things might be different. But clearly, vast majority posed no danger to the US.
○ (pg 528) “…to infer that examples of individuals disloyalty group disloyalty and justify discriminatory
actions against the entire group is to deny that under our system of law individual guilt is the sole basis
for deprivation of rights
• A military decision based on misinformation, half truths, insinuations should not have been given the great weight
that this decision has been given by the majority.
(Justice Jackson) Key Themes: Racism by judicial approval
• Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of
Japanese descent. But a judicial construction of the due process clause that will sustain this order is a far more
subtle blow to liberty than the promulgation of the order itself.
• Once a judicial opinion rationalizes such an order to show that it conforms to the Const, or rather rationalizes the
Const to show that the const sanctions such an order, the Ct has for all time validated the principle of racial
discrimination.
• I would hold that a civil ct cannot be made to enforce an order which violates the Const, even if it is a reasonable
exercise of military authority. Cts must abide by the Const, or they cease to be civil cts and become instruments
of military power.
• Pg 529: “…once a judicial opinion rationalizes such an [military exclusory] order to show that it conforms to the
Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the
Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting
American citizens.”
ANALYSIS:
• One of the 1st of a line of cases standing for the proposition that any race-based classification/exclusion is
“immediately suspect” and is therefore subject to heightened scrutiny.
• Stood for the proposition that only a very significant and narrowly tailored gov’t interst can withstand the level of
scrutiny applied in these cases.
• Here, ct decided that the war power and exigencies of war created just such an exception to the general rule 
racial bias would not.
• Hindsight was not taken into account, meaning that even if what appear to be exigent circumstances turn out not
to be just that, a race based exclusion will nevertheless be upheld.

Loving v. Virginia
388 U.S. 1 (1967)
Equal Protection Clause
Due Process Clause
Equal application of statutes that contain race based classifications is not enough
to save the statutes from strict scrutiny under equal protection.
RULE: Laws that classify on the basis of race are reviewed under equal protection with strict scrutiny and will not
be upheld unless they are necessary to accomplish some permissible state objective.
FACTS: (Interracial couple v. State)
• Interracial couple got married in D.C. and returned home to VA. In VA, convicted of violating the state’s ban on
miscegenation (a mixing of the races) Sentenced to one year in jail, TC suspended on the condition that the
couple leave the state and not return together for 25 years.
• The Lovings challenged their conviction under a Virginia statute making it a felony for “any white person [to]
intermarry with a colored person”…and vice-versa
• State argued the statute was necessary to prevent the creation of “a mongrel breed of citizens,” and “the
obliteration of racial pride.”
• Only restricts white people outside of their race… does not restrict other races from marrying outside their race
PROCEDURE: Appellants, (interracial couple) appeal from state ct criminal conviction.
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 • Review of a judgment from the Sup Ct of Appeals of VA which held that Va. Code Ann. §§ 20-58 and 20-59,
which were adopted by to prevent marriages bw persons solely on the basis of racial classifications, did not
violate the Equal Protection and Due Process Clauses of U.S. Const. amend. XIV.
• Reversed ruling of the lower ct.
ISSUE: Does a statute that criminalizes interracial marriage violate equal protection, even if it punishes both the white
and non-white partner equally? (YES)
• Equal Protection and Due Process Clauses of the 14th
HOLDING: Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby
ending all race-based legal restriction on marriage in the United States.
RATIONALE:
• VA (P) argues  miscegenation statutes punish both the white and the Negro participant of an interracial
marriage the same, the statutes don’t constitute an invidious discrimination based on race, despite their reliance on
racial classifications (ct rejects this)
• Reject VA’s contention that stats containing racial classifications should be upheld if there is any possible basis
that they serve a rational purpose.
• Equal application does not immunize a statute from the very heavy burden of justification that the 14th has
traditionally required of state statutes drawn according to race.
○ Pg 530: “…we reject that the mere “equal application” of a statute containing racial classifications is
enough to remove that classifications from the 14th Amendment’s prescription.
• Also reject VA’s argument that the framers of the 14th didn’t intend to make anti-miscegenation laws
unconstitutional as long as both white and negro participants are equally punished.
• Clear and central purpose of the 14th was to eliminate all official state sources of invidious racial discrimination.
And VA’s miscegenation statutes are based upon racial distinctions: They proscribe generally accepted conduct if
engaged in by members of different races.
• Racial classifications are subjected to most rigid scrutiny and cannot be upheld unless they are necessary to the
accomplishment of some permissible state objective other than racial discrimination (14th was meant to
eliminate). Here, racial classifications serve no legitimate function other than invidious racial
discrimination.
○ Pg 530: “…if [miscegenation statutes] are ever to be upheld, they must be shown to be necessary to the
accomplishment of some permissible state objective, independent of the racial discrimination which it
was the object of the 14th Amendment to eliminate.”
• There can be no doubt that restricting the freedom to marry solely bc of racial classifications violates the central
meaning of equal protection
CONCURRENCE: (Stewart)
• It is simply not possible for a state law to be valid under our Const which makes the criminality of an act depend
on the race of the actor.

ANALYSIS:
• EP here means more than blacks and whites get equal punishment for same crime.
• The fact that the statute involves a racial classification (which triggers a presumption of unconstitutionality)
probably goes a long way to explain this decision which came about despite the fact that at the time the 14th was
adopted, the practice of interracial marriage was generally not accepted (thus, most of those who wrote/voted for
the 14th probably didn’t mean to make the miscegenation statutes unconst).
• This statute may have also failed the rational review test.
○ Problem  legislative purpose behind the statute. Purpose was to preserve the white race.
○ By late 60s, this was not generally accepted as a legitimate state purpose.
• Decision is testament to the flexibility that the Const gives to the law and it gives legitimacy to the proposition
that the law can and should be able to change over time as the values/morals of society change.
NOTES:
• What if law was to restrict everyone from marrying outside the race
○ Still no good – everyone has a due process right to marry whoever
○ Inappropriate purpose – doesn’t matter if everyone is restricted
• Fact there is due process right to marry, any classification of this right is inappropriate.
• Brown “desegregated us” – why then did it take 13 years to get rid of these kinds of statutes limiting who white
people could marry
• Segregation grew as the formal avoidance of sex between the races

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Strict Scrutiny → Regulation that is narrowly tailored to meet a compelling governmental interest
It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill
of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment;
or when the government action involves the use of a "suspect classification" such as race or national origin that may
render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to
United States v. Carolene Products.

Class Notes:
• Missouri Compromise – political in nature. States as they were, either free or slave, could remain…
○ An agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States
Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in
the former Louisiana Territory north of the parallel 36°30' north except within the boundaries of the
proposed state of Missouri.

Note 4. Judicial Support for Slavery

• It may seem that courts should have done more to combat the evils of slavery.
• Judicial review in the pre civil war period quite frequently over turned political decisions intended to limit slavery
• Prigg v. PA – struck down PA statute that made it a crime to forcibly remove blacks from the state for the purpose
of causing them to be enslaved. Court explained that article IV section 2 contemplates the existence of a positive,
unqualified right on the part of the owner of the slave, which no state law or reg can in any way qualify, reg,
control, or restrain. It implicitly vested Congress w/ the power to assist owners in securing the return of escaped
slaves (Fugitive Slave Act), that this national power was exclusive, and that any state laws reg the means by
which slaves were to be delivered up were unconstitutional.
• Decision left intact the power of both free states and the national gov to limit the growth of slavery by freeing
slaves brought into free areas.

Dred Scott v. Sandford

60 U.S. (19 How.) 393 (1857)
Congress has no authority to prohibit slavery.
RULE: Slaves are not “citizens” within the meaning of the Constitution, states cannot grant to a slave the right of
citizenship in the US, and under the Constitution, Congress cannot prohibit a citizen from owning slaves in a
territory in which slavery is permitted.
FACTS: (slave v. slave owner)
• Dred Scott (P), admittedly once a slave, brought an action in trespass in the Circuit Court of the US for the
District of Missouri agst John Sandford (D), his owner and a citizen of NY.
• In 1834, Scott was taken by a former owner to Illinois, a free state, where he lived for two years.
• Two years later, Scott and his owner moved to Minnesota, then part of the Louisiana Territory, a land in which
Congress had prohibited slavery.
• In 1838, they returned to Missouri, where Scott was sold to Sandford.
• Scott brought suit seeking his freedom on the ground that he became free when he and his master lived in a free
state and free territory.
• Sandford, not wanting to lose his slave, argued that Scott was not free, and if he was, that he was not a citizen of
Missouri and the court therefore lacked diversity of citizenship.
PROCEDURE:
• Circuit court ruled for Scott (P), Sandford (D) appealed.
• Certification to the US Sup Ct of a circuit court decision permitting a black slave to bring a suit for his freedom in
federal court.
ISSUE: Are slaves citizens of the US, and if not, can living in a free state make them citizens? (NO, NO.)
HOLDING: (J. Taney) Slaves are not citizens of the US under the meaning given that term by the Constitution, and were
11
never intended to be included in the body of citizens. Therefore, slaves cannot claim any of the rights and privileges
which the Constitution provides to citizens.
RATIONALE:
• At time Const was enacted, slaves were considered subordinate and inferior class of beings who had no rights and
privileges except for those which the gov’t might choose to grant them.
• This being the law, it is not the place of this Ct to decide whether this is good or bad policy, or whether it creates
an injustice  that is the duty of the legislature.
• This court is simply charged with interpreting the Const according to its true intent and meaning at the time it was
adopted, and that intent says nothing about slaves becoming free.
• In addressing the issues that have arisen in this case, we must not confound the rights of citizenship which a State
may confer within its own limits, and the rights of citizenship as a member of the Union.
• Under the Const, Congress, and not the states, have the right to det who can become a US Citizen. Consequently,
no state can by naturalizing an alien grant him the rights and privileges secured by citizens under a federal gov’t.
• Therefore, Scott is not a citizen of the US or of the state of Missouri, and as such cannot sue in federal
court.
• Scott also seeks his freedom on the ground that he, for a period of 4 years, lived in a slavery-free territory.
However, under the Const, and act of Congress which deprives a citizen of his property merely bc he came
himself or brought his property into a particular territory cannot be permitted under due process of law. Nor is
there an exception to this rule for slave property.
• Therefore, an act of Congress prohibiting the owning of slaves in the Louisiana Territory is not warranted by the
Constitution as it would deprive slave owners of the right to own their property.
• Congress simply cannot take away the right to own slaves in this manner.
• Here, living in a free territory did not give Dred Scott his freedom.
ANALYSIS:
• Enduring principles:
○ Ct skirts the issue of slavery injustice by stating that in a context of judicial review, it is not the place of
the court to shape public policy, but simply to interpret the Constitution “according to its true intent and
meaning when it was adopted.” Thus, the Ct states an important and enduring point of federal law in the
arena of separation of powers  (1) It is not the duty of the Courts to make the law, but to interpret
those laws made by Congress in light of the controlling guidance of the Constitution.
○ The court also addresses the naturalization of non-citizens in a way that is still the accepted law today. It
is not up to the state to decide who can become a citizen of the US and how, but that power is solely
within the province of Congress. (2) Only Congress can det the rules for becoming and staying a
citizen of the US.
○ (3) Ct here gave more weight to the 5th amendment than to Article I when it indirectly declared that the
right to own property trumps Congressional power to det issues of naturalization by means of freeing
slaves.
• Social K Theory (John Locke) → underpinning of the Constitution. Declaring blacks are not citizens ignore the
social K theory.
• Who accords citizenship? Not the power of the state to say who is a citizen… it is the job of Congress under the
Constitution.
• Essentially det that Missouri Compromise was unconstitutional. (Marbury v. Madison)

Dred Scott and Power of Judicial Review

• Sup Ct first asserted the power to invalidade acts of Congress in Marbury.
• Second assertion of this power was 54 yrs later in Scott v. Sandford – det Missouri Compromise unconstitutional.
• The court unnecessarily and unwisely reached out to decide an issue not properly presented
○ Opinion part 1 – scott wasn’t citizen of Missouri, ct below therefore lacked jurisdiction.
○ Part 2 – seems like it didn’t even need to be discussed
• Decision as racist in premises and morally obtuse in result:
• The ct unwisely assumed it could finally resolve a divisive political issue by taking it “out of politics”
• The problem was not that the ct attempted to impose a solution to the slavery problem, but that it attempted to
impose the wrong solution
○ Failed to solve the problem and exacerbated sectional tensions.
Reconstruction and Retreat
• Paradox → in order to enforce limitations on gov’t power, it is necessary to create some countervailing gov’t
power. If prohibition is to be legally enforceable, then some other branch of gov’t must be invested with the
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 power to enforce it.
• Failure of framers to protect individual rights from state gov’t stemmed from the view that the most serious threat
to individual liberty came from the federal gov’t, and that the states could be relied on to “afford complete
security against invasions of the public liberty by the national authorities”
• Reconstruction occurred right after the Civil War
• Reconstruction amendments = compromises after the war, and imposition of lofty ideals
Work of the Reconstruction Congress
• Laid groundwork for the expansion of fed authority by enacting 13th, 14th, 15th
• 13th → prohibited slavery/involuntary servitude
• 14th → “Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens
of each State all privileges and immunities of citizens in the several States, and to all persons in the several States
equal protection in rights of life, liberty, and property.”
• 15th → prohibited the US and any state from denying or abridging the right to vote on account of race, color, or
previous condition of servitude. Congress power to enforce this provision by appropriate legislation.
○ Enforcement Act → criminal penalties to interference with the right to vote.
○ KKK Act → criminally punished conspiracies to deprive a class of equal protection of the laws.
○ Public accommodations law → inns, pub conveyances, theaters, and other places of pub amusement to
admit all persons regardless of race, color, or previous condition of servitude.
• Reconstruction Amendments
○ New source of fed power to protect newly freed slaves
○ Also more general rejection of the traditional theory that state gov’ts would serve to protect individual
liberties?
The Judicial reaction
• Slaughter-House cases → Sup Ct assess impact of the Reconstruction Amendments.
○ Ct rejected a 13th and 14th amendment attack on a Louisiana statute granting to a single co. a right to
engage in the slaughterhouse business. Creation of a monopoly.
• 14th amendment claim – privileges and immunities clause (“no state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the US”)
• Could have used the clause to get rid of monopolies and tracks nicely with Human Rights issues
• Not used today… doesn’t really get used for anything.
• P = white businessman
○ “one pervading purpose” of the amendments was “the freedom of the slave race, the security and firm est
of that freedom, and the protection for the newly-made freeman and citizen from the oppressions of those
who had formerly exercised unlimited dominon over him.
○ Ct said it did not follow from this purpose that the framers of the amendments intended to transfer general
responsibility for protection of civil rights from the states to the federal gov’t
• Federalism and protection of the newly freed slaves
○ Ct has continued to be quite deferential to political outcomes when “ordinary social and economic
legislation” is challenged under the 14th. On the other hand, ct said federal protection was available when
the states singled out blacks for discriminatory treatment.
• US v. Cruikshank – Grant Parish massacre, the bloddiest racial conflict in Louisiana history. Republicans
succeeded in gaining control of parish courthouse and were attacked by old time Ku Klux Klan. After they
surrendered, they were mutilated. 14th doesn’t apply to the rights of one citizen against the other.
Judicial invalidation of civil rights legislation
• Ct’s narrow interpretation of the Reconstruction amendments would eventually undermine fed efforts to protect
newly freed slaves
• Reese → fed crim prosecution agst 2 KY elections inspectors, charged with refusing permit a black man to vote.
D’s charged with violating two of the voting rights sections of the 1870 Enforcement Act, but bc relevant sections
were not expressly limited to racially motivated actions, ct held that they exceeded Congress’s power under the
15th and prosecution couldn’t proceed.
• Civil Rights Cases → most damaging judicial attack on Reconstruction legislation
○ ct invalidated the public accommodations sections of the 1875 CRA. Ct denied that either the 13th or 14th
conferred on Congress the power to prohibit private discrimination in public accommodations
○ in all those cases where the const seeks to protect the rights of the citizen agst discriminative and unjust
laws of the State, it is not individual offenses, but abrogation and denial of rights which it denounces, and
for which it clothes the Congress with power to provide a remedy.
○ 13th and 14th amendment only deal with power of the state, not Congress or the federal gov
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 ○ Does not reach individual conduct either.
○ Congress can get around and used to assert the Commerce Clause to legislate re: individual rights
• Ex. Morrison – Women’s Rights legislation; and Lopez
• 13th → absolute that slaver/involuntary servitude abolished. Ct empowered to pass all laws necessary and proper
for abolishing all badges and incidents of slavery→ ISSUE: is discriminatory refusal to serve a black man in a
public accommodation such a badge or incident??
• Cases where racial discrimination affected federal rights, ct upheld Reconstruction legislation.

Plessy v. Ferguson
163 U.S. 537 (1896)
Separate but equal
Distinction bw social and political rights
Laws requiring the separation of races in public accommodations are
constitutional so long as they are reasonable exercises of a state’s police power.
RULE: While the 14th was undoubtedly enacted to enforce the absolute equality of the races, it was not intended to
abolish distinctions based on color, or to enforce social equality or a commingling of the races.
FACTS: (person of black descent v. Louisiana judge)
• 1890→ a Louisiana statute required RR companies to provide white and non-white passengers with “equal but
separate accommodations” (i.e., requiring a separation of the races). Under the statute, passengers using facilities
not designated for their race were made criminally liable.
• Plessy (D), who professed to be 7/8 Caucasian, was prosecuted under the statute after refusing to leave a portion
of the train reserved for whites.
• RR didn’t want fed reg to det the sep. but =; they wanted to do it themselves when there was demand to fill the
separate cars.
• This was a test case bc Plessy told the conductor that he was 1/8 black. Otherwise no one would have known.
PROCEDURE:
• The Louisiana Supreme Court upheld the constitutionality of the statute upon Plessy’s challenge.
• Certification to the US Sup Ct of a Louisiana Sup Ct decision upholding a statute aimed at segregating RR
accommodations.
ISSUE: Do laws requiring the separation of different races in public accommodations violate the 14th? (NO)
HOLDING: NO
RATIONALE:
• 14th requires and enforces absolute equality among the races, but it could not have been intended to abolish
distinctions based on color, or to enforce social equality, or a commingling of the races upon terms unsatisfactory
to either.
• Laws permitting and requiring a separation of the races in places in which blacks and whites are likely to come
into contact do not imply inferiority of either race and do not result in a violation of the 14th.
• Most common instance → segregation of schools, generally accepted proper exercise of state leg/ police powers.
• Plessy suggests that this same argument will justify all sorts of foolish rules to keep blacks and whites separate →
ct replied that every exercise of police power must be reasonable, and extend only to such laws as are enacted in
good faith for the promotion of the public good, and not for annoyance/oppression of a particular class.
• Determine reasonableness→ leg is at liberty to act with reference to the est usages, customs, and traditions of the
people, with a view to the promotion of their comfort, and the preservation of the public peace and good order.
• Under this standard, we cannot say the law at issue here is unreasonable.
• Plessy’s argument is based on the assumption that the separation of the two races means colored people are
inferior. This is not true.
• Plessy also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured
by blacks except by a forced commingling of the races. This is also not true, as leg will not abolish people’s
feelings toward the races.
• If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If
one race be inferior to the other socially, the Const cannot put them on the same plane.
• Legislation is powerless to eradicate the differences between the races.
DISSENT: (Harlan)
• In the view of the Const/eye of the law, there is in this country no superior, dominant, ruling class of citizens. No
caste here. Our Const is color-blind, and neither knows nor tolerates classes among citizens.
• In respect of civil rights, all citizens are equal before the law.
• The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as

14
 guaranteed by the supreme law of the land are involved.
• Racist -
ANALYSIS:
• Up until Plessy, US Sup Ct skirted around the issue of ‘separate but equal’ under the law.
• Here, ct adopted separate but equal standard and applied it in a manner that upheld separation.
• Standards for det whether separation is proper:
○ Purported purpose of the separation had to serve a gov’t interest other than making one race inferior to
another—inferiority not to be tolerated under the “equal” portion of the test.
○ There had to be a reasonable exercise of a state’s police power.
○ Great discretion had to be given to the legislature in det what would promote the preservation of public
peace and good order.
• Here, the ct, while professing that there was no inequality among the races, still held that separation would
promote public welfare.
• Thus, it’s clear that at the end of the 19th century, the Ct still displayed some lack of respect for equality among
the races.
• With respect to majority opinion, note a significant reliance on the segregation of schools—the Ct feels that since
school segregation was alive and well at the time of this decision, there should be no reason to disallow
segregation in other public accommodations.
• Segregation is no longer the law → Harlan’s dissent contained a prophetic statement that separate but equal would
not last. “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the
decision made by this tribunal in the Dred Scott Case. The present decision, it may well be apprehended, will
only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens.
• Plessy proposition – states decide what is equal and what is not
• Civil Rights Cases Proposition – states have authority to determine what is equal and what is not.
• Plessy and Civil Rights cases are consistent.

• Equality → does it mean applying law equally to all, or that the law has to make opportunities for all people
equal?
• 2 important questions that come from Plessy:
○ Who gets to decide equality under the 14th amendment? It is for the Court to decide.
○ How is this to be implemented? The “how” is usually left up to the legislature… which makes this
decision ironic. “separate but equal”

Separate but Equal

• Plessy itself doesn’t req equality of separate facilities
• 3 yrs later, equality problem addressed in Cumming v. Board of Edu.
• Mc Cabe → OK stat req RRs provide sep but = coaches and authorized rr to have other facilities on trains to be
used exclusively by one race but not the other. But didn’t require facilities be provided for both races. Ct found
state argument without merit. Individual entitled to equal protection of the law, can complain here that he didn’t
get it.
• Berea College → the college, a private institution, was convicted under a statute making it a crime to operate a
school where persons of the white and negro races are both received as pupils for instruction. Court affirmed
conviction, but on grounds that college was corp that did not have all rights of individuals.
• Buchanan → the court held that a statute prohibiting whites from occupying a residence in a block where a
majority of houses were occupied by blacks, and vice versa, violated the 14th amendment.

Unit 4

Attack on Jim Crow

• Reconstruction amendments intent  rights of newly freed slaves protected by fed legislative action authorized
by the new sources of congressional power in the amendments.
○ Intent frustrated  (1) Court’s adherence to an older version of federalism, (2) collapse of political
consensus supporting civil rights legislation.
• Consequence of invalidation of Recon leg  when meaningful reform finally came, it was the courts, rather than
Congress, that provided the motion for change
• 1938-1960 courts stood largely along in articulating and enforcing law of race discrimination.
NAACP’s Legal Strategy
15
 • Garland Fund Garland didn’t accept father’s estate, gave to est a foundation for support of liberal and radical
causes. Committee reccommeded tht it finance a campaign to give Southern Negro const rights
• No single strategy to end discrimination rather attacked the targets of opportunity
Road to Brown
• Gaines  Missouri law req separate edu for whites and blacks. U of Missouri operated a Law school, parallel
institution for blacks (Lincoln University) did not. Missouri statute authorized arrangement of attendance of black
residents at institutions in neighboring states to pay reasonable tuition for attendance when no black in-state
facility was available. Ct said— the basic consideration is the opportunities Missiour furnishes to whites and
denies to negroes solely on color grounds. The state officials should be left free to make their own determinations
of equality as long as they acted in good faith and their determinations were reasonable.
• McCabe principle  held that the constitutional right is an individual one.
• Difficulty finding a principled way for courts to evaluate the quality of different facilities, but also bc the tak of
performing evaluation, in the context of thousands of separate facilities each of which had countless different
variables to compare, was unmanageable.
• Sipuel v. Board of Regents  petitioner applied to only in state law school and denied admission based on her
race. Court reaffirmed Gaines and held that the state was constitutionally obligated to provide the petitioner with
equal legal education.
• Fisher v. Hurst  Court, over 2 dissents, denied relief. Noted tat “the petition for certiorari in [Sipuel] did not
present the issue whether a state might nto satisfy equal protection clause of the 14th by est a separate school for
negroes
• Sweatt v. Painter  held that the facility was not equal and Sweatt could not be denied admission to the white
school . (restrictions not equal)

• McLaurin v. Oklahoma State Regents  state admitted petitioner to the previously all white University of
Oklahoma Dept. of Education but she had to sit in a special seat reserved for blacks, special seats in lunch,
library. Ct held the restrictions were unconst bc they impaired and inhibited his ability to study, engage in
discussions, and exchange views with other students, and, in general, to learn his profession. (restrictions not
“unequal” but affected ability to study)

Brown v. Board of Education

[Brown I—The Constitutional Ruling]
Separate but Equal doctrine is DEAD.
Overrules Plessy’s “Separate but Equal”
RULE: Separate but equal facilities in public education are inherently unequal and therefore violate equal
protection.
FACTS: (student v. school)
• Consolidated action
• Negro students (P) in four states were denied admission to schools attended by white students under state laws
requiring or permitting segregation. In most of the cases, the courts below denied relief, citing the “separate but
equal” doctrine of Plessy v. Ferguson.
• Students (P) argue that segregated schools are not “equal” and cannot be made “equal” and thus the segregation
laws deprive them of equal protection
• P sued to get daughter in school close to their house
PROCEDURE:
• Ct below found that the Negro and white schools are equal or nearly equal in terms of buildings, curricula,
qualifications and salaries of teachers, and other “tangible” factors
• Appeal from state court decisions upholding school segregation laws as constitutional.
• Reversed LC decision.
ISSUE: Does forced segregation of public schools violate equal protection? [YES]
HOLDING: In the field of public education the doctrine of “separate but equal” has no place. Separate educational
facilities are inherently unequal and school segregation violates equal protection.
RATIONALE:
• Parties discussed history of adoption of the 14th. Ct finds that historical sources are inconclusive evidence as to
what framers meant when enacting the 14th in regard to racial segregation. Some wanted 14th to be broad and all-
encompassing, while others wanted it limited in scope.

16
 •Bc there was little/no public education in 1868, and negroes were almost never educated, it’s not surprising that
there should be so little in the history of the 14th relating to its intended effect on public education.
• Here, ct wanted to look beyond “tangible” factors discussed by the ct below. Focus instead on the effect of
segregation itself on public education. Consider education in light of its present development and place in modern
America.
○ Education perhaps most important function of state and local gov’t as well as the foundation of good
citizenship and the principle instrument in awakening the child to cultural values, preparing him for later
professional training, and helping him adjust normally to his environment.
○ Where the state has undertaken to provide such an opportunity, it is a right that must be available to all on
equal terms.
• Sub-issue  Does segregation in public schools solely on basis of race, even though facilities and other
“tangible” factors may be equal, deprive the children of the minority group of educational opportunities? [YES]
• Intangible factors make separate education an unequal education. Separating solely on race generates a
feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to
be undone. Effects motivation of children to learn.
• Legally sanctioned segregation retards educational and mental development of Negro children and deprives
them of some of the benefits they would receive in a racially integrated school.
ANALYSIS:
• Despite language in Brown purporting to limit its scope to public education, principle has consistently been
applied to contexts other than public education, declaring that legally mandated segregation is always unconst.
• Cts decision in Brown has often been understood and criticized for resting upon empirical social science data
rather than upon legal principles.
• Some suggest the ct did not properly understand the history of the 14th.
• Although the framers of the amendment may have understood that it should not apply to make segregation
unconstitutional, it has been argued that the framers were aware that they were writing a Constitution, and as
such, specifically drafted the amendment to allow for growth and change.
• Thus, it’s quite possible that the framers of the amendment did leave open the possibility that it could be applied
to end segregation at some future date.
• Stresses the importance of education to live in our society
• Left criticism of opinion = Brown does not allow for the fact that separate is never equal; dismantled separate
w/out ever ensuring equal.

Note: Justifications and Explanations for Brown

• Arguments the court made in Brown:
○ Legislative history of the equal protection clause is consistent w/ outlawing segregated educations
 Court doesn’t assert that Framers of 14th Amendment specifically intended to outlaw segregated
education
 Reconstruction Congress expressly permitted D.C. schools to remain segregated
 Spectators at Congress listening to Congress debate the amendment were segregated by race
 Bolling v. Sharpe – decided on same day of Brown court unanimously held school segregation in
D.C. unconstitutional. Since 14th only applies to states the court could not rely on the equal
protection clause. Court stated that the discrimination may be so unjustifiable as to violate the
due process clause of the 5th.
○ “Today, education is perhaps the most important function of state and local governments”
 Decision rested on the finding that segregation in public schools resulted in harmful,
discriminatory, effects on Negro children
 Must now be inferred though, that all segregation legislation is invalid since it rests on an
impermissible basis of classification
○ “To separate minority children from others of similar age and qualifications solely bc of their race
generates a feeling of inferiority as to their status in the community that may affect their hearts and minds
in a way unlikely ever to be undone.”
○ “Segregation w/ the sanction of law has a tendency to retard the educational and mental development of
Negro children.”
 Brown’s reliance on empirical social science data to support this conclusion has been the subject
17
 of continuing controversy.
 Court erred in relying upon the social science data
 Missouri v. Jenkins – segregation of schools would be unconstitutional whether or not the
students felt stigmatized. As long as students are classified based on race it violates the
Constitution.
• Alternative rationales and explanations: Denial by the state of freedom to associate
• Initial Brown opinion did not answer the remedy question.

SWEATT v. PAINTER et al.*

339 U.S. 629 (1950)
14TH AMENDMENT (DUE PROCESS & EQUAL PROTECTION)
RULE: A public institution of higher learning cannot provide different treatment to a student solely because of
his/her race as doing so deprived the student of his/her Fourteenth Amendment rights of Due Process.
FACTS:
• Petitioner filed application for admission to the University of Texas Law School for Feb. 1946 term → rejected
solely because he is a Negro.
• At that time of this case, there was no law school in Texas which admitted Negroes (separate but equal might be
okay, but the state did not provide one; we have state action)
• Authorized university officials had failed to produce equal facilities adopted, but they said they were working to
open a law school for Negroes.
• The school for negroes opened during the appeal of the case and petitioner refused to enroll.
• The court found that the new school offered petitioner 'privileges, advantages, and opportunities for the study of
law substantially equivalent to those offered by the State to white students at the University of Texas,' (they
denied mandamus on this ground)
PROCEDURE:
• After being denied admission to the school] petitioner brought this suit for mandamus against the appropriate
school officials to compel his admission.
• State trial court recognized that the action of the State in denying petitioner the opportunity to gain a legal
education while granting it to others deprived him of the equal protection of the laws guaranteed by the
Fourteenth Amendment.
• The court did not grant the relief requested, however, but continued the case for six months to allow the State to
supply substantially equal facilities. (separate but equal)
ISSUE: To what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to
distinguish between students of different races in professional and graduate education in a state university?
• Important note: Broader issues have been urged for our consideration, but we adhere to the principle of deciding
constitutional questions only in the context of the particular case before the Court
RATIONALE:
• The Supreme Court overturned the decision of the lower courts denying mandamus on the ground that the
facilities were not equal.
• The Negro Law School lacked an independent faculty or library.
• The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to
maintain their offices at the University of Texas while teaching at both institutions.
• Few of the 10,000 volumes ordered for the library had arrived; there was no full-time librarian.
• The school lacked accreditation.
• Pg 2: we cannot find substantial equality in the educational opportunities offered white and Negro law students by
the State.
• Things that are difficult to achieve an objective equality:
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 ○ reputation of the faculty
○ experience of the administration,
○ position and influence of the alumni, standing in the community
○ Traditions and prestige.
• It would be difficult to have a white student claim his denial to the Negro Law School was a violation of the 14th,
for it is important to note:
• Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.
• This means that equal protection can never be achieved by failing to recognize the inequalities that exist.
Analysis:
• With regards to Plessy:
○ Court would not affirm Plessy's holding and support of separate but equal, b/c it was impossible for the
state to have a separate facility with regards to higher education. (It is impossible to achieve equality
when an institution has gained a reputation over the years.
○ This court would also not reject Plessy. They did not want to overturn Plessy, but provided the narrowest
holding possible to ensure the "separate but equal" doctrine was upheld, but could be avoided in specific
circumstances.

McLAURIN v. OKLAHOMA
339 U.S. 637 (1950)
14TH AMENDMENT (DUE PROCESS & EQUAL PROTECTION)
RULE: A public institution of higher learning cannot provide different treatment to a student solely because of
his/her race as doing so deprived the student of his/her Fourteenth Amendment rights of Due Process.
FACTS:
• Appellant is a Negro citizen of Oklahoma.
• Applied for admission to the University of Oklahoma in order to pursue studies and courses leading to a
Doctorate in Education
• He already has a Master's Degree
• Originally denied admission because of Oklahoma statutes, 70 Okl.Stat. (1941) §§ 455, 456, 457, which made it a
misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or
taught.
• Oklahoma legislature amended these statutes to permit the admission of Negroes to institutions of higher learning
attended by white students, in cases where such institutions offered courses not available in the Negro schools.
• The courses must 'shall be given at such colleges or institutions of higher education upon a segregated basis.
• Appellant was admitted to the University of Oklahoma Graduate School.
• Requirements of his admission:
• He was required to sit apart at a designated desk in an anteroom adjoining the classroom;
• To sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading
room
• To sit at a designated table and to eat at a different time from the other students in the school cafeteria.
PROCEDURE:
• Appellant filed a complaint requesting injunctive relief, alleging that the action of the school authorities and the
statutes upon which their action was based were unconstitutional and deprived him of the equal protection of the
laws.
• A statutory three-judge District Court held, 87 F.Supp. 526, that the State had a constitutional duty to provide him
with the education he sought as soon as it provided that education for applicants of any other group. It further held
that to the extent the Oklahoma statutes denied him admission they were unconstitutional and void. (They denied
the injunction so they could address the constitutional issue.
ISSUE: Whether a state may, after admitting a student to graduate instruction in its state university, afford him different
treatment from other students solely because of his race?
HOLDING: the conditions under which this appellant is required to receive his education deprive him of his personal and
present right to equal protection of the laws. 14th Amendment precludes differences in treatment by state based upon race.

RATIONALE:
• Pg 2: "[The] education and development [of those students who the appellant will teach after earning the
19
 advanced degree] will necessarily suffer to the extent that his training is unequal to that of his classmates.
• Pg 2: "State imposed restrictions which produce such inequalities [in facilities, access to education, and quality of
education] cannot be sustained.
• Individual discrimination is significantly different than state-sponsored discrimination
• Pg 2: "There is a vast difference - a Constitutional difference - between restrictions imposed by the state which
prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state
presents no such bar."
• EQUAL PROTECTION OF THE LAWS IS A MAOR RESON FOR OVERTURNING THE DECISION OF
THE LOWER COURTS:
• Pg 3: "The conditions under which this appellant is required to receive his education deprive him of his personal
and present right to the equal protection of the laws."

Brown v. Board of Education

[Brown II, The Implementation Decision]
349 US 294 (1955)
Lower cts are given jurisdiction to see that the court’s order
in Brown I is carried out deliberately but with all possible speed.
RULE: Due to varying local conditions, the lower cts shall be responsible for overseeing the implementation of
Brown, which may not be practical to implement immediately, but nonetheless shall take place w/deliberate speed.
FACTS: (student v. school)
• In Brown I, the ct declared that separate educational facilities for negro and white school children violated equal
protection.
• The court, recognizing the nation-wide importance of the decision as well as the wide disparities in local
conditions, placed the case back on the docket for briefing and argument as to the question of appropriate relief.
PROCEDURE: Rehearing of the case on the question of relief to be granted for a constitutional violation.
ISSUE: What is the appropriate relief to be given the Negro students (P) for the schools’ (D) violation of their equal
protection rights?
HOLDING:
RATIONALE:
• All state and local provisions requiring or permitting discrimination in public education must yield to Brown I
decision.
• School authorities are to have primary responsibility for implementing these solutions, and the cts will have to
consider whether the action of school authorities constitutes a good faith implementation of governing
constitutional principles.
• Therefore, remand these cases to the courts that originally heard them. The courts will be guided by equitable
principles in overseeing the implementation.
• Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for
adjusting and reconciling public and private needs.
• There may be many obstacles to overcome in the transition to school systems operating in accordance to Brown I,
and cts of equity may properly take into account the public interest in eliminating such obstacles.
• However, it should go without saying that the vitality of these const principles cannot yield simply bc of
disagreement with them. The cts will require that the schools (D) make a prompt and reasonable start toward full
compliance with Brown I, and may allow addt’l time to carry out the ruling effectively.
• The burden shall be on the schools (D) to prove that such addt’l time is necessary.
• During the transition to integrated schools, the cts shall retain jurisdiction in these cases. These cases are
remanded to the lower courts to take such proceedings and enter such orders and decrees consistent with this
opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all
deliberate speed the parties to these cases.
ANALYSIS:
• Drives home the point  the const is not a self-executing document. The const prescribes no punishment for its
violation. Thus the question of what to do when the ct finds a const violation occurs in some instances.
• In this case, it seems obvious that the court was ordering integration of the schools. However, the court seems to
recognize the widespread resistance that its order would generate. The court also recognizes that some places
would be more resistant than others, and thus allows the local courts to deal with each case individually.
• In light of what we now know what actually happened, consider whether it would have been more effective ahd
the court simply declared how the order should be enforced.
• We now know that, as the court suspected, there was widespread resistance to school integration. We also know
that some states declared that they would simply refuse integration, and also engaged in prolonged litigation in the
20
 lower courts to stall or prevent integration.
•Had the court simply stated, in no uncertain terms, that integration would occur and ordered enforceable method
and deadline, it’s possible that the resistance may not have been as significant or as effective.
NOTES:
• 20 years after Brown the country is as much segregated as it was before.

Arguments against Brown II & “all deliberate speed”

• If segregation is unconstitutional, the Court cannot legitimately tolerate continued segregation.
• Brown II needlessly encouraged white resistance to desegregation by failing to demand an immediate remedy.
○ Pg 482: There was an extended period of “massive resistance” during which there was virtually no actual
desegregation in the South.
• Brown II overstated the administrative difficulties of desegregation.
○ By allowing “all deliberate speed” to end desegregation, the Court gave administrations an outlet to slow
the process by saying it was faced with “challenges and difficulties.”
• The Court Acted unwisely in remitting the task of enforcement and elucidation (clearing up) of Brown 1 to the
lower federal courts.
○ Lower Courts had difficulty dealing with compromise and there was a great strategy to evade a rule (i.e.
desegregation).

The Initial Response to Brown

• Initially met with defiance and evasion in the South.
○ The “Southern Manifesto” declaring the illegitimacy of Brown
○ Closing public schools
○ Local laws imposing laws which placed students in schools based on nonracial criteria.
○ “Freedom of Choice” plans that had kids going to their original schools unless they applied for transfer
• Two Unanticipated consequences to the South’s resistance
○ Mobilization of national political support for desegregation.
○ The great length needed to impose desegregation remedies helped influence the way in which the 14th was
interpreted.
• Early Judicial Response
○ Some courts upheld pupil placement, freedom of choice, and grade-year plans (OTHERS STUCK
THESE PLANS DOWN)
○ Judicial attitude ranged from caution to outright hostility.
○ One Court said that, “the Constitution…does not require integration. It merely forbids the use of
governmental power to enforce segregation.”
 This means that schools cannot deny any person on account of race which the state maintains…
but can find other means to reject students from entering.
○ Pg 484: Supreme Court only intervened once in this early time in the case of Cooper v. Aaron
 9 black kids were scheduled to enroll in an all-white school, but the Arkansas Governor ordered
the National Guard to block their entry.
 President Eisenhower sent troops to enforce feral law to desegregate
 Supreme Court reversed a decision of lower courts to stop the desegregation process because of
“extreme public hostility.
• “the constitutional rights of respondents are not to be sacrificed or yielded to the violence
and disorder which have followed upon the actions of the Governor and Legislature.
Law and order are not here to be preserved by depriving the Negro children of their
constitutional rights.”

The End of Deliberate Speed

• Pg 485: Renewed interest in the pace of school desegregation coincided with the reemergence of an effective
political coalition supporting black equality for the first time since Reconstruction.
○ Title IV authorized the Attorney General to institute desegregation suits in the name of the United
States, thereby ending the need to rely on individual lawsuits by private plaintiffs.
 Guidelines imposed by the Department of Health, Education, and Welfare (pursuant to Title VI)
• Attendance zones could not be drawn to “maintain what is essentially a dual school
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 structure
• The freedom of choice plans would be scrutinized with special care and judged by
whether minority group students have in fact transferred from segregated schools.
 These guidelines resulted in an increased number of southern black children attending
desegregated schools (2.3% in ’64 to 12.5 in ’66)

Busing and the Problem of race-conscious remedies (Pg 487)

• In Swann v. Charlotte-Mecklenburg the court endorsed the busing of students outside their neighborhoods as “one
tool of school desegregation.”
○ The court warned that “Absent a constitutional violation there would be no basis for judicially ordering
assignment of students on a racial basis.”
 This means that not every school must meet a specific racial composition.
○ Three principles in Swann that were guides to later school desegregation cases:
 Constitutional violations stemmed from purposeful state manipulation of schools racial
composition
 The scope of judicial power was limited by the scope of the constitutional violation
 Once a school district achieved “unitary” status, judicial intervention should cease.

Modern Limits on the Duty to Desegregate

• White Flight
○ Effective desegregation requires as a starting point the presence of both white and minority students
within the pool of students being assigned to schools.
○ As the proportion of blacks students within a particular school increased, white students might abandon
the school with increasing velocity.
○ Courts rejected the support for “free transfer plans” which said that they prevented whites from leaving
the system (white flight)
• Inter-district relief
○ To justify inter-district relief, it must be shown that racially discriminatory acts of the state or local school
districts, or of a single school district have been a substantial cause of interdistrict segregation.
○ Detroit case: A city of black schools with all-white schools in surrounding suburban districts.
 Milliken v. Bradley – court held that fed courts lack the power to impose interdistrict remedies
for school segregation absent an interdistrict violation of interdistrict effects
 Milliken II - Court rejected the notion that desegregation remedies were limited to pupil
assignment and held that a district judge could order the expenditure of state funds for remedial
education as part of an effort to place victims of unconstitutional conduct in the position they
would have enjoyed but for the violation.
• Does this return to “separate but equal”
• I think this is a way to remedy situations in which it would be an unreasonable burden to
bus kids back and forth to create a racial percentage in each school
• These funds would be allowed to ensure the same education is received in each school, so
that areas that are predominantly black have the same education as predominantly white
schools.
• Modern “freedom of choice” plans
○ United States v. Fordice (Pg 495)
 Private citizens and the United States brought suit against the state, seeking to force the state to
dismantle its dual system by changing admissions requirement (usually stricter in white schools)
and to provide more programs to traditionally black schools.
• The Supreme Court held that the mere fact that “college attendance is by choice and not
by assignment does not mean that a race-neutral admissions policy cures the
constitutional violation of a dual system (black and white schools)
○ This decision meant that the state could not “leave in place policies rooted in its
prior officially-segregated system that serve to maintain the racial identifiably of
its universities if those policies can practicably be eliminated without eroding
sound educational policies.
Jenkins v. Missouri – at issue was a salary increases for instructional and non-instructional staff w/in the school district
(magnet schools). Unconstitutional. (pg. 494)

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 Swann v. Charlotte-Mecklenburg
402 U.S. 1 (1971)
(Court believes this decision will help achieve the end of desegregation sought in Green.)
[In 1968 the Warren Court ruled in Green v. County School Board that freedom of choice plans were insufficient
to eliminate segregation, thus it was necessary to take proactive steps to integrate schools.]
School bussing case
RULE:
FACTS:
• The Charlotte-Mecklenburg school system is the 43d largest in the Nation
• As of June 1969 there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools
within the city of Charlotte.
• Two-thirds of those 21,000-approximately 14,000 Negro students-attended 21 schools which were either totally
Negro or more than 99% Negro.
○ These numbers are the results of a desegregation plan approved by the District Court
○ Plan 1 – The Board Plan
 Close 7 schools and reassign their students
 Creates a single athletic league, eliminated the previously racial basis of the school bus system,
provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into
an optional majority-to-minority transfer system.
 Percentages of Negro student distribution on Page 2 of the case.
○ Plan 2 – The Finger Plan
 Same as the Board Plan but required that an additional 300 Negro students be transported from
the Negro residential area of the city to the nearly all-white Independence High School.
 Plan also placed more focus on zoning and the creation of “Satelitte zones” (black students
assigned to junior high schools), and the reassigning of students in elementary schools to ensue
the black population ranged from 9 -36% of the system’s 76 elementary schools.
PROCEDURE:
• Petitioner filed a motion for further relief under a school desegregation order, which the district court granted,
adopting a new desegregation plan.
• The United States Court of Appeals for the Fourth Circuit affirmed in part, but vacated in part and remanded.
• The Court granted certiorari, reinstating the district court's order pending further proceedings.
• On August 7, 1970, the district court ordered that a revised plan stay in effect.
ISSUE: What is the scope of the duty of school authorities and district courts in implementing Brown I and the mandate
to eliminate dual systems and establish unitary systems at once?
• Pg 10 of the case:
1. To what extent racial balance or racial quotas may be used as an implement in a remedial order to
correct a previously segregated system;
2. Whether every all-Negro and all-white school must be eliminated as an indispensable part of a
remedial process of desegregation;
3. What the limits are, if any, on the rearrangement of school districts and attendance zones, as are
medial measure; and
4. What the limits are, if any, on the use of transportation facilities to correct state-enforced racial school
segregation.
HOLDING: Busing was an appropriate remedy for the problem of racial imbalance among schools, even where the
imbalance resulted from the selection of students based on geographic proximity to the school rather than from deliberate
assignment based on race.
ANALYSIS:
Rationale for ensuring “one-race” schools are limited and not the result of discrimination
• Pg 12: Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates
the continued existence of some schools that are all or predominately of one race, they have the burden of
showing that such school assignments are genuinely nondiscriminatory
• Pg 12: No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved;
but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a
school authority's compliance with its constitutional duty warrants a presumption against schools that are
23
 substantially disproportionate in their racial composition.
○ Basically this means that, there is a basic presumption against schools that have an extreme
disporportion of racial composition that they are violating the constitutional rights of a class of
citizens (namely black students)
• Pg 13: Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates
the continued existence of some schools that are all or predominately of one race, they have the burden of
showing that such school assignments are genuinely nondiscriminatory.
○ In order to keep schools mostly 1 race in a desegregated system…the burden is on the schools
administrators to prove that the racial composition is not the result of past or present
discriminatory action.
Remedial Altering of Attendance Zones
• Pg 13: Absent a constitutional violation there would be no basis for judicially ordering assignment of students on
a racial basis.
○ Busing would not be appropriate nor any other means of reassignment of students if there is no
constitutional violation.
○ The current state and existence of dual systems requires this inconvenient and administratively
awkward practice as a corrective measure in the interim
Transportation of Students
• Pg 15: The District Court's conclusion that assignment of children to the school nearest their home serving their
grade would not produce an effective dismantling of the dual system is supported by the record.
○ Busing to the nearest school didn’t kill the dual system; in order to create one system the busing
cannot be limited to the nearest school.
• Pg 15: An objection to transportation of students may have validity when the time or distance of travel is so great
as to either risk the health of the children or significantly impinge on the educational process.
○ Although the goal of ending the dual system is primary, busing cannot place great risk upon students (i.e.
too long of rides, long distances, nothing to infringe on the education of students)
NOTES:
• Should we treat de facto and de jure segregation the same? The North was de facto segregated (more
segregation than the South)
• Critics say that this case read like a legislative record… although, the Supreme Court is only approving the
lower court’s analysis of 2 different school districting plans.

Parents Involved in Community Schools v. Seattle School District No. 1

127 S. Ct. 2736

RULE: Prohibits assigning students to public schools solely for the purpose of achieving racial integration and
declined to recognize racial balancing as a compelling state interest.
FACTS:
• The Seattle School District allowed students to apply to any high school in the District.
• Certain schools often became oversubscribed when too many students chose them as their first choice
○ Place of residence and availability of space were considered in choice designation and selection
• The District used a system of tiebreakers to decide which students would be admitted to the popular schools.
○ The second most important tiebreaker was a racial factor intended to maintain racial diversity.
○ If the racial demographics of any school's student body deviated by more than a predetermined number of
percentage points from those of Seattle's total student population (approximately 40% white and 60%
non-white), the racial tiebreaker went into effect.
○ At a particular school either whites or non-whites could be favored for admission depending on which
race would bring the racial balance closer to the goal.
○ No distinction was made between various categories of non-whites; Asian-Americans, Latinos, Native
Americans, and African-Americans were all treated solely as "non-white" for purposes of the tiebreaker.
PROCEDURE: In separate cases, petitioners, a parents' association and the parent of a student, brought actions against
respondent public school districts, challenging the districts' plans which relied upon racial classifications in making school
assignments. Upon grants of writs of certiorari, the association and the parent appealed the judgments of the U.S. Courts
of Appeals for the Sixth and Ninth Circuits which upheld the plans.
In depth:
• Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker
24
 violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of
1964 and Washington state law.
• A federal District Court dismissed the suit, upholding the tiebreaker.
• On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed,
○ en banc rehearing the court affirmed the lower court decision on the grounds that it was
narrowly tailored because:
 1) the District did not employ quotas,
 2) the District had considered race-neutral alternatives,
 3) the plan caused no undue harm to races,
 4) the plan had an ending point.
ISSUE: Whether the student assignment plan of Seattle Public Schools and Jefferson County Public Schools (which is
based on race and the promotion of racial balancing) serves a compelling state interest?
HOLDING: The student assignment plan of Seattle Public Schools and Jefferson County Public Schools does not meet
the narrowly tailored and compelling interest requirements for a race-based assignment plan because it is used only to
achieve "racial balance." Public schools may not use race as the sole determining factor for assigning students to schools.
Race-conscious objectives to achieve diverse school environment may be acceptable.
ANALYSIS:
Majority Opinion
• Roberts stated that strict scrutiny was necessary to analyze any racial classification that arose under the
Constitution.
• Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz
v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and
must be "narrowly tailored" to that interest.
• This case is more similar to Gratz, in which the Court invalidated a program that solely used race as a factor.
• Other factors besides race that can be used to achieve compelling state interest, the school’s plan did not attempt
to use any other of these mechanisms
○ This makes the plans constitutionally flawed because they are not narrowly tailored.
○ Racial balancing (which uses demographic quotas) cannot be a compelling state interest.
Plurality opinion (Written by Chief Justice Roberts)
• The Schools at issue contend that a racially diverse environment is beneficial for education and they submit this
as the reason why they consider race alone in their school assignments.
○ This interest is not compelling and that the use of race for this goal is not narrowly tailored, it is instead
used for racial balancing, which is unconstitutional.
• "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
○ Justice Bryer is incorrect in his dissent saying that Grutter is overruled by this decision.
○ Roberts believes he greatly exaggerates the consequences of the decision of this case
• Diverse education is only a compelling gov interest in higher education and not k-12.
Concurrence (Written by Justice Thomas)
• "If our history has taught us anything it has taught us to beware of elites bearing racial theories."
○ His argument is rooted in the fact that black students do not need a white student next to them to
effectively learn and these quotas are discriminatory in nature.
○ In a footnote the Justice added a personal mention of Justice Breyer: “Justice Breyer’s good intentions,
which I do not doubt, have the shelf life of Justice Breyer’s tenure.
Concurrence (Written by Justice Kennedy – Page 134 of Packet)
(MOST OF THE HOLDING STEMS FROM THIS OPINION)
• The goal of obtaining a diverse student body is a compelling state interest.
○ "Diversity, depending on its meaning and definition, is a compelling educational goal a school district
may pursue. "
• Race conscious mechanisms can be used by school districts to further the goal of diversity (a position rejected by
the plurality)
○ "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people
have equal opportunity regardless of their race."
• "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and
expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse
student population. Race may be one component of that diversity, but other demographic factors, plus special
talents and needs, should also be considered."
○ This highlights Kennedy’s argument that he does not want to regress back to dual systems and that
25
 racial considerations should be given to prevent that and avoid the problem in Swann.
• FINAL KENNEDY HOLDING
○ THE school districts did not narrowly tailor the use of race to achieve the compelling interests in
the case, AND the districts could have achieved the same goal through less racially charged means.
• Kennedy faults the dissent for ignoring the "presumptive invalidity of a State's use of racial classifications to
differentiate its treatment of individuals."
Dissent (Written by Justice Stevens – Page 139 of packet)
• Accused the plurality of misusing and misapplying previous Supreme Court precedents including Brown v. Board
of Education.
○ “A cruel irony that Robert’s use Brown”
○ “No Member of the Court that I joined in 1975 would have agreed to today’s decision”
○ Believes this decision overturns Swann
Dissent (Written by Justice Breyer – Page 140 of packet)
• This decision goes against Brown and all other efforts by the Court which have “repreatdly required, permitted,
and encouraged local authorities to undertake.

Rational Basis vs. Strict Scrutiny:

• Can’t we say that the structure of strict scrutiny is the same as rational basis.
• First identify the purpose in both and see if it is a legitimate gov interest
• Discriminatorily designed leg and benign legislation – is there really a difference?
• Do facially neutral laws ensure equality?
• Was Brown effective? On any level?
• What does equality mean?
• Group based and individual based rights… what is the problem w/ each
○ Black = group based
○ White = individual based

Unit 6

Discriminatory Intent
• Impermissible gov purpose

26
 • Korematsu – there was valid gov interest (national security), but there was no evaluation of the means used to
protect the country.
• Facially neutral statutes – doesn’t solve legal or social problems
• Hunter v. Erickson- Akron, OH passed ordinance to get rid racial discrimination in real estate transactions
○ City charter was amended to enact rules that req legislative revote when it has been det that the legislation
is facially discriminatory
○ This is asking one branch of gov to make decisions about its own actions – no check on power
○ It is also allowing discrimination

Washington v. Davis
426 U.S. 229 (1976)
Laws that have a disparate impact on minorities do not automatically violate Equal Protection.
RULE: An otherwise neutral official action is not unconst merely bc it has a disproportionate racial impact, unless
the P can demonstrate purposeful discriminatory intent.
FACTS: (D.C. Police v. Rejected Applicants)
• D.C. Metro Police Dept (D) gave a civil service test to all applicants who wanted to work as police officers. The
written test measured verbal ability, vocabulary, reading and comprehension. It was the same test used
nationwide throughout the federal civil service.
• Rejected applicants (P) were black applicants who took and failed the test. Brought suit alleging that the test was
discriminatory in effect, but they did not allege that this discrimination was purposeful.
PROCEDURE:
• The district ct below found that a higher percentage of blacks than whites failed the test and that the test had not
been est as a reliable predictor of future job performance. However, the examination was given rational basis
review and found to be reasonably related to the req of the police-recruit-training program. The DC also found
that the test not designed or operated to discriminate agst black applicants. DC upheld the use of the test.
• Ct of Appeals reversed, holding that disparate racial impact alone was sufficient to est a constitutional violation.
• Appeal from a Ct of Appeal’s det that an official admin action did not violate EP.
ISSUE: Is disparate racial impact alone enough to est a violation of Equal Protection? [NO]
HOLDING: The D.C.’s (D) test is neutral on its face and rationally may be said to serve a purpose that Gov’t is
constitutionally empowered to pursue
RATIONALE:
• While central purpose of equal protection is to protect agst official race-based discrimination, we never held that
official acts that don’t have discriminatory purpose violate the Const solely bc they have racially disproportionate
impact.
○ For example while it is unconst to have laws that exclude jurors on the basis of their race, we have
never said that all predominately black and predominately white schools in a community does not alone
violate EP. Our school segregation cases have adhered to the principle that invidious quality of a law
claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.
• It is true that disproportionate racial impact may be relevant to the equal protection analysis. An invidious
discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact that the law
bears more heavily on one race than another. However, standing alone, disparate impact on a racial group does
not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by
the weightiest of considerations.
• We cannot understand how a law that est a racially neutral qualification for employment is nevertheless racially
discriminatory and denies equal protection simply bc a greater proportion of Negroes fail to qualify than members
of other racial or ethnic groups.
• It is untenable that the Const prevents the Gov’t from seeking modestly to upgrade the communicative abilities of
its employees, especially where, as here, the job requires a special ability to communicate orally and in writing.
• To hold that an otherwise racially neutral statute will be invalid merely bc it disadvantages one racial group more
than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range
of tax, welfare, public service, regulatory, and licensing stats that may be more burdensome to the poor and to the
average black than to the more affluent white.
CONCURRENCE: (Stevens—agrees on a ground narrower than the ct decides)
• Often, most probative evidence of intent = objective evidence of what actually happened rather than evidence
describing the subjective state of mind of the actor.
• Unrealistic to expect the victim to uncover the actual subjective intent of the decision-maker, and it is unwise to
27
 invalidate otherwise legitimate action simply bc an improper motive affected the deliberation of a participant in
the decision making process.
• Line bw discriminatory purpose and discriminatory impact is not nearly as bright or critical as the reader of the
opinion may assume.
• Disparate impact is not unconstitutional in this case bc:
○ Test serves neutral and legitimate purpose of req all applicants to meet a minimum standard of literacy
○ Same test is used throughout the federal civil service.
• Applicants here represent a small % of persons who have taken the test; minimal probative value in assessing
neutrality of the test.
ANALYSIS:
• 1st time  ct made clear that disparate racial impact alone wouldn’t violate EP
• Significant  allows discriminatory intent to be inferred from the totality of circ—including disparate impact.
• Ct can use circumstantial evidence to find discriminatory intent.
• Later in Arlington, ct saw that sometimes the effect of a seemingly neutral law on one race could be so
overwhelming that there could be no reasonable explanation other than racially discriminatory intent—such was
the case in Yick Wo and Gomillion.
• Disproportionate impact—law that affects members of one race more than members of another race, w/o further
proof of discriminatory purpose in enacting the law, will not be considered racial classification that triggers SS.
• Invidious racial discrimination—discrimination born out of animus or the sheer desire to harm on the basis of race
will trigger SS.
• A lot of work for the P to prove a discriminatory intent of the regulations when they are racially neutral.
Notes:
• After Washington v. Davis, courts must determine whether a classification that disadvantages a racial minority
must first determine whether it constitutes a racial classification.
○ Strict scrutinty will be applied in cases where the classification draws racial lines or because t is
motivated by a racial purpose
• A strict scrutiny test asks whether the legislature intended to disadvantage a minority group, or whether they are
seeking to achieve some permissible goal.
• Only legislation which is a narrowly tailored fit to an overriding government interest will pass the strict scrutiny
test.
○ Rational basis review will be applied when the classification is non-race specific, despite the
disproportionate impact on the minority group.
• Some argue the fact that a piece of legislation or classification effect minority groups disproportionately is mere
chance.
• This argument fails to consider situations that are arguably designed to be against a group, while treating the
group the same (i.e. having a written admissions tests which both blind and nonblind have to take without any
assitance…and the highest scores are admitted)

Village of Arlington Heights v. Metropolitan Housing Development Corp.

429 U.S. 252 (1977)
A disproportionate impact is not necessarily an EP violation
RULE: An EPC violation requires proof of intentional or purposeful discrimination.
FACTS: (Municipality v. Housing Developer)
• Arlington Heights is suburb of Chicago with a low % of minority residents.
• MHDC (P) planned to use federal financing to develop townhouse units for low-income tenants in the Village of
Arlington Heights (D). It applied to D to rezone the area from single-family to multiple-family classification.
• A public hearing drew sharp criticism from many village residents concerned with the “social issue” of

28
 introducing racially integrated housing in the Village.
• Other critics stressed the economic impact the rezoning would have on existing single-family properties in the
area and the existing policy requiring multiple-family dwellings to serve as “buffers” bw single-family properties
and commercial or manufacturing districts.
• When the Village (D) denied the app, MHDC (P) brought suit, alleging the decision was racially discriminatory.
PROCEDURE:
• Certiorari to review an undisclosed appellate decision
ISSUE: Does a state decision having a disproportionate impact on one racial group violate the EPC absent proof of a
discriminatory purpose? [NO]
HOLDING: State action is not unconstitutional solely bc it has a racially disproportionate impact. Instead, and EPC
violation requires proof of intentional or purposeful discrimination.
• Such proof need not show that discrimination is the dominant or primary purpose for state action, rather it suffices
that a discriminatory purpose is a motivating factor in the decision.
RATIONALE:
• The disparate effect of the decision on one race is an important starting point in considering the State’s purpose,
but other evidence must be considered.
• The historical background of the decision and the sequence of earlier decisions are important circumstantial
factors that may demonstrate a discriminatory purpose.
• Here, the Village’s (D) decision undoubtedly has a disproportionate effect on racial minorities, but there is little
addt’l evidence to demonstrate that the decision was motivated by a discriminatory purpose.
• The area at issue had long been zoned for single-family use, and the request sought to alter that est purpose.
• Bc the village’s (D) decision is justifiable by the reasons underlying its initial zoning design, MHDC (P)
failed to demonstrate a discriminatory purpose.
ANALYSIS:
• In ruling that an invidious discriminatory purpose is req to est a const violation, the ct does not say that a gov’t
may not consider racial implications of its decision.
• It's often incumbent upon a gov’t to weigh the effects of its decisions on a particular group of people to ensure
that its decision is appropriate.
• However, bc gov’ts often have other considerations, economic or otherwise, to support their decisions, it appears
that a pretextual reason for justifying a discriminatory purpose can easily be contrived such that racial
discrimination appears not to be a motivating factor in the decision.
• This is more a differing classes of people case than race case – although there is a high correlation between
minority and low income individuals.
• NO strict scrutiny bc it is class based not race based.

Rogers v. Lodge
458 U.S. 613 (1982)
Discriminatory at-large voting schemes are unconstitutional.
RULE: At-large voting schemes and multimember districts violate the 14th when they are motivated by a
discriminatory purpose.
FACTS: (County official v. Black voter)
• Burke County, GA, included a 53% black pop, but white residents constituted a majority of the voting pop bc of
the average age of black residents. The Burke County Board of Commissioners consisted of 5 members elected in
at-large elections to govern the county.
• No black person had ever been elected to the Board.
• P brought suit in fed ct challenging the at-large voting scheme as unconstitutional
PROCEDURE:
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 • The DC det that the system in Burke County was maintained to dilute minority voting strength in violation of 14th.
• Certiorari to review an undisclosed appellate decision.
ISSUE: Is an at-large voting scheme designed to dilute minority voting power unconstitutional? [YES]
HOLDING:
• At-large voting systems and multimember districts minimize minority voting power by pooling majority votes
throughout the entire political district to elect representatives for the entire district.
• Single-member districts, however, divide a political unit into separate voting districts so that minority voters in
concentrated area may constitute a political majority and elect a representative to represent their interests.
• While multimember districts are not unconst per se, they violate the 14th when they are “conceived or operated as
purposeful devices to further racial discrimination.”
RATIONALE:
• Election history in Burke  demonstrate a disproportionate impact on the county’s black population.
○ Blacks long rep the majority, but distinct minority of registered voters. Never been elected for position
on the Board despite campaigning.
○ Voting has been largely on racial lines, allowing white candidates to ignore the interests of black citizens
w/o political consequence.
• A racially disproportionate impact, however, is insufficient to est a const violation absent addt’l evidence of a
discriminatory purpose.
• The DC found evidence of past discrimination excluding blacks from political process and educational sys as
relevant to the present intent to discriminate agst black citizens. Further, evidence demonstrated that the policy
decisions of elected commissioners were unresponsive and insensitive to the needs of black community.
• Although the statute providing for at-large election is “neutral in origin,” it “has been subverted to invidious
purposes.: The at-large voting scheme violates the 14th.
DISSENT:
(Powell)
• “The Ct’s decision today relies heavily on the capacity of the fed dist. cts.—essentially free from any standards
propounded by this Court—to det whether at-large voting systems are ‘being maintained for the invidious of
diluting the voting strength of the black population.’ Fed cts thus are invited to engage in deeply subjective
inquiries into the motivations of local officials in structuring local gov’ts.”
(Stevens)
• If the at-large sys is otherwise valid, the intent of those who created the system in years past has no bearing on the
intent of those who currently implement it. In declaring the state’s at-large voting sys unconst, the majority
somehow derives intentional discrimination by the current legislators from the apparent intentional discrimination
of those serving in the distant past. Yet, the majority identifies no present state action amounting to
discrimination nor any person who harbors such a discriminatory intent. The subjective intents of legislators are
often difficult to est, but the Ct should not question their motives based on the actions of their predecessors when
const issues are at stake.
ANALYSIS:
• In Veith v. Jubelirer, the Sup Ct est that political gerrymandering—the est. of voting districts to minimize the
voting strength of opposition parties—is not justiciable bc no manageable standard exists for evaluating their
constitutionality. Apparently, if the same redistricting plan not only minimizes political strength, but also
minority voting strength, the case is justiciable.
• At-large voting systems are not considered by the court to be necessarily unconstitutional.
NOTES:
• Personnel Administrator of Massachusetts v. Feeney
○ This is a case about how veterans got first consideration for state civil service positions
○ The court determined that "Discriminatory purpose" [implies] more than intent as volition or intent as
awareness of consequences."
 This means that even if the legislature is aware of the effects on a specific classification, that will
not constitute "discriminatory purpose."
• Yick Wo v. Hopkins
○ 200 plus Chinese nationals operated laundry services in building that were not made of brick
○ A law was passed banning the operation of laundry services in building not made of brick
○ All petitions by Chinese citizens were denied, but one non-Chinese petition was granted
○ The Court held that whatever the intent of this legislation, this law amounts to a pratical denial by

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 the State of [equal] protection of the laws.
 The law was administered in a discriminatory fashion, which may have been unintended by the
drafters.
• Gomillion v. Lightfoot – gerrymandering/disenfranchisement
○ An Alabama statute altered the shape of a district to a 28-sided figure, removing almost 100% of the city's
400 black voters…yet no excluding a single white voter.
○ The Court held that if the allegations were true, "the legislation is solely concerned with
segregating white and colored voters by fencing Negro citizens out of town so as to deprive them the
pre-existing municipal vote."
• Hunter v. Underwood
○ The Court held that a provision of the Alabama Constitution which disenfranchised all persons
convicted of crimes of moral turpitude was invalid because it was largely motivated by the desire to
disenfranchise blacks.
○ The crimes on the list were picked because the drafters thought blacks were likely to be convicted of
those crimes.
• Hernandez v. New York -
○ A decision by the United States Supreme Court, which held that a prosecutor may dismiss jurors who are
bilingual in Spanish and English from juries that will consider Spanish-language testimony.
○ If the strikes against jurors were based on the uncertainty that the bilingual speakers would accept the
official Spanish translation, that "they were not strikes because of race, and therefore did not violate the
Equal Protection Clause."
• Rice v. Cayetano
○ Hawaii's denial of the right to vote in OHA trustee elections based on ancestry violates the Fifteenth
Amendment.
○ The majority argued that "Simply because a class defined by ancestry does not include all members of the
race does not suffice to make the classification race neutral."
○ This case and Hernandez are both about “proxies” and characteristics that define or are particular to a
specific race. Is this consistent w/ Hernandez?
• Palmer v. Thompson
○ The city council closed the municipal swimming pools after court-ordered integration
○ The court held the closing did not violate the equal protection clause
 "No case in this Court has held legislative act may violate equal protection solely because of the
motivations of the men who voted for it."
 It is difficult to ascertain the motivation that lie behind a legislative enactment
 Invalidating a law for bad motivations would allow the law to be re-passed by having the
legislature record other motivations in the legislative record.
○ Palmer & Washington v. Davis suggest that a facially neutrals statute is subject to enhanced review only
when it has both a discriminatory purpose and a disproportionate impact.
○ Casebook author has difficulty seeing how this case doesn't produce a disproportionate racial impact, and
how this decision is consistent with Brown.
 I think it is consistent because it clearly affects everyone's access to the pools. These pools were
clearly accessible to whites prior to the closing, and now they are not.
○ If you can come up with another permissible purpose then the court will take that and not look deeper to
find racial discrimination

Non-race specific restructuring of the political process

• Hunter v. Erickson
○ The Court permitted the government generally to "restructure the political process to place obstacles in
the path of everyone seeking to secure the benefits of governmental action.
○ This case was used to invalidate a school initiative which required students t tend schools not nearest or
next nearest to their place of residence in the case of Washington v. Seattle School District No. 1
 The initiative "burdens all future attempts to integrate Washington schools in districts throughout
the State, by lodging decision-making authority over the question at a new and remote level of
government."
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 • James v. Valtierra
○ The Court upheld legislation which prohibited state entities from constructing low-rent housing projects
unless approved by a majority of those voting in a community election.
 The legislation "[required] referendum approval for any low-rent public hosuing project, not only
for projects which will be occupied by a racial minority. And the record would not support any
claim that a law seemingly neutral on its face is in fact aimed at a racial minority."

Distinctive Problems in the Administration of Criminal Justice

• Applying the equal protection clause to claims of racial discrimination in the criminal ustice system poses may of
the general problems associated with equal protection law in particularly scute form, especially with respect to
determining whether facially neutral practices in fact reflect a discriminator purpose.
• When jury selection procedure sare challenged as racially discriminatory, the court has been relatively receptive
to arguments based on disportionate effects, at least as a device for shifting burden of proof to the states.
• Castaneda v. Partida
○ "In order to show an equal protection violation hs occurred the defendant must show tht the procedure
employed resulted in substantial underrepresentation of his race or of the identifiable groups to which he
belonfs.
 Step 1: Establish the group is one that is a recognizable distinct class, signled out for different
treatment under the laws, as written or as applied.
 Step 2: The degree of under-representation must be proved by comparing the proportion
of the group in the total population to the proportion called to serve as jurors.
 Step 3: The selection procedure that is susceptible of ause r is not racially neutral
supports the presumption of discrimination raised by the statistical showing
○ PROVING ALL 3 MAKES A PRIMA FACIE CASE AND THE BURDEN SHIFTS TO THE STATE.

McCleskey v. Kemp
481 U.S. 279 (1987)
When there is no discriminatory purpose behind a law, the fact that one race is subjected to
punishment under that law more often than another is not enough to strike that law down as unconstitutional.
RULE: The D who alleges an EP violation has the burden of proving the existence of purposeful discrimination.
FACTS: (Convicted Murderer v. State Employee)
• McCleskey (D), a black man, was convicted in a GA ct of murdering a white person—sentenced to death.
• Following conviction, he filed a habeas corpus petition alleging that GA’s capital punishment scheme was
administered in an unfair manner.
• D argued  (1) the scheme was admin in a manner that discriminated agst him personally, and (2) that it
discriminated agst non-whites, both in violation of the EPC.
• D provided the ct with a statistical study which had examined over 2,000 capital murder cases occurring in GA in
the 1970s. Concluded that Ds who killed whites were 4.3x as likely as those killing non-whites to receive a death
sentence. Also, black Ds convicted of killing white victims had the greatest likelihood of receiving death
sentence. [Baldus Study]

PROCEDURE:
• DC found the study flawed and dismissed McC’s (D) habeas petition.
• Appellate ct found the study was valid, but decided that it did not provide enough evidence to demonstrate
discriminatory intent in the administration of the capital punishment statute.
• McCleskey appealed.
• Certification to the US Sup Ct of an appellate ct decision upholding the validity of GA’s capital sentencing stat in
the face of an EP challenge.
ISSUE: Can a facially-neutral death penalty law be struck down simply bc one race is being put to death more often than
another? [NO]
HOLDING: Law upheld.
RATIONALE:
• D who alleges an EP violation has burden of proving the existence of purposeful discrimination.
• Here, D must prove that those making the decision in his case acted with discriminatory purpose. He offers no

32
 such evidence.
• In the past, this ct has accepted statistics as proof of discriminatory intent in certain limited contexts. Capital
punishment is different from those limited contexts.
○ In capital cases, the death sentence is imposed by a properly constituted jury according to constitutionally
developed principles.
○ The state had no opportunity to rebut the study D offers in support of his claim.
• Here, absent stronger proof, it is unnecessary to seek such a rebuttal bc a legitimate and unchallenged explanation
for the decision is apparent from the record: McCleskey committed an act for which the US Const and GA laws
permit imposition of the death penalty.
• Before we infer that discretion was abused, we would req exceptionally clear proof—here proof not provided.
• D argues—study proves State as a whole acted with discriminatory purpose in adopting the stat and allowing it to
remain in force despite its allegedly discriminatory application. But, hee, discriminatory purpose implies that the
GA state leg selected a particular course of action bc of its adverse effects upon an identifiable group.
○ For this to succeed, D would have to prove that the GA Leg enacted the capital punishment stat to further
a racially discriminatory purpose, and there is no evidence to support this proposition.
○ Further, the fact that there is a lack of predictability in these decisions, and sometimes a difficulty in
explaining why a particular decision was reached, is not enough to say that the stat is unconst.
○ Discretion is fundamental to our criminal processes, and a capital punishment system that did not allow
for discretion would be alien to any notion of criminal justice
• Two addt’l concerns inform our decision here:
○ If we accepted D’s claim that racial bias has impermissibly tainted the capital sentencing decision, we
could soon be faced with similar claims as to other types of penalty.
 The claim that his sentence rests on the irrelevant factor of race could be extended to apply to
claims based on unexplained discrepancies that correlate to membership in other minority groups.
 The Const doesn’t req that a state eliminate any demonstrable disparity that correlates with a
potentially relevant factor in order to operate a criminal justice system that includes capital
punishment.
○ D’s arguments are better presented to the legislature. It is only the Court’s duty to det whether the laws in
place are applied consistently with the Const. Here, GA law was so applied.
DISSENT: (Brennan)
• Sentencing data presented, the GA criminal system’s history of racial bias, and past experience all counsel that
GA has provided insufficient assurance of the heightened rationality we have req in order to take a human life.
• Further reliance on race in imposing capital punishment is antithetical to the very rationale for granting sentencing
discretion. Additionally, the Ct’s fears that ruling for McCleskey would open the door to widespread challenges to
all aspects of criminal sentencing is repugnant to deeply rooted conceptions of fairness, and its argument that
there will result a usurpation of the leg’s role is untenable.
ANALYSIS:
• This case stands for the proposition that the EPC prohibits the gov’t from engaging in action deliberately
undertaken to injure racial minorities.
• This includes using a person’s race to det whether to arrest, prosecute, or execute a particular person.
• Bc the Ct found no such intent in this case, it upheld the stat.
• This case also stands for the proposition that legislation not facially aimed at racial minorities will not be held to
as high a standard of scrutiny as legislation directly aimed at racial minorities
• Thus, here, deference was given to GA’s legislature to det the logistics of the state’s capital punishment scheme.
• Further stands for the proposition that, under such a scheme of giving deference to the legislature, statistical proof
alone is not generally enough to prove the unconst selective enforcement of a law that is facially race-neutral, at
least in the case of the death penalty.
• Moreover, in that same vein, statistical evidence is not enough to show that the law was applied unfairly to a
particular P. Thus, the ct decided that the statistical evidence presented was not enough to support either of D’s
two claims (unfairness to blacks generally and him in particular).
• This case also demonstrates the difficulty of proving discriminatory purpose on the part of a rule-making body—
something D was unable to do.

NOTES:
Racial Disparities in Investigating, Charging, and Sentencing
• A common problem (involving the Equal Protection Clause) is when the legislature is pursing a neutral aim but,
in doing so, is selectively indifferent to the welfare of certain groups.
33
Questions of Stereotypes and statistical validity
• United States v. Armstrong
○ An African American was charged with distributing "crack cocaine
○ He argues that the government was unfairly targeting members of his race
 The Court held "to establish a discriminatory effect in a race case, the claimant must show that
similarly situated individuals of a different race were not prosecuted.
 Court rejected statistics showing the percentage of members arrested for particular crimes.
The Imposition of Strict Scrutiny
• University of California v. Bakke
○ A case concerning the constitutionality of a program designed to increase minority enrollment at the
University of California at Davis medical school.
○ 16 of 100 seats were set aside for specific minority groups, which suffered from economic or educational
depreviation.
 4 Justices would have used an "intermediate scrutiny"
• The purpose of remedying the continuing effects of prior discrimination was legitimate
and sufficiently important to satisfy a test between rational basis and strict scrutiny.
 4 other Justices thought the program violated title VI of the 1964 Civil Rights Act, and therefore
would not have reached a constitutional argument level.
 Justice Powell
• Controlled the judgment by arguing that "all racial classifications --- including those
supposedly benefiting racial minorities --- were suspect and should be subject to strict
scrutiny.
• Although the university's interest in a diverse student body did justify some sue of racial
criteria in admission decisions, it did not justify Davis's rigid two-track system under
which non-minority applicants were precluded from competing for certain seats.
• Fullilove v. Klutznick
○ In this case the Court considered an affirmative action program created on the federal level in the context
of public contracting.
○ The Public Works Employment Act of 1977 was at issue, because the act required that (absent an
administrative waiver) 10% of the funds granted for projects had to be used to procure services or
supplies from "minority business enterprises."
 The opinion of the Court emphasized the narrowness of the program
• The compelling government interest was to eradicate the continuing effects of past
discrimination identified by Congress.
• Richmond v. J.A. Croson Co.
○ This case identified that state and local affirmative action programs should be subject to strict scrutiny.
○ Richmon, VA adopted a program like that in Fullilove but required at least 30% of the amount of the
contract to minority business enterprises.
○ The program was rejected by the Court.
○ Justice O'Connor
 Remedying the city's past unconstitutional discrimination might serve a compelling state purpose,
but remedying the effects of "past societal discrimination" could not service as a compelling state
interest.
 The past "cannot justify a rigid racial quota in the awarding of public contracts." (Just like it
cannot be used in schools)
 With respect to the plan being narrowly tailored:
• "There does not appear to have been any consideration of the use of race-neutral means to
increase minority business participation in city contracting.
• IT WAS NOT NARROWLY TAILORED…there were other options to explore.

Unit 7
The imposition of Strict Scrutiny
• Regents of University of California v. Bakke—Sup Ct’s first sustained encounter with affirmative action
○ Issue— constitutionality of a program designed to increase minority enrollment at med school
○ Facts— 16/100 seats set aside for members of specified minority groups found by a committee to have
suffered from economic or educational deprivation
34
 ○ 4 justices would have used “intermediate” level of scrutiny (somewhere bw rational basis test and strict
scrutiny) and upheld bc the purpose of remedying the continuing effects of prior discrimination was
legitimate and sufficiently important to satisfy the test.
○ 4 other justices thought the program violated title VI of the 1964 CRA and wouldn’t have reached its
constitutionality.
○ Held—(Powell) All racial classifications were suspect and should be subject to SS. The state’s
“legitimate and substantial” interest in remedying prior discrimination did not justify the program bc there
had been no prior judicial, admin, or leg findings of such discrimination. University’s interest a diverse
student body did justify some use of racial criteria in admissions, it did not justify Davis’s rigid, two-track
system under which non-minority applicants were precluded from competing for certain seats.
○ Powell opinion is most important – left open the possibility that diversity can be a compelling gov
interest for universities to use in admissions.
○ Quotas are out bc they take maj people out of the running for a certain number of seats. (Quotas out;
diversity is fine)
• Fullilove v. Klutznick
○ Ct considered an affirmative action program created on the fed level in the context of public contracting.
○ Issue— provision of the Public Works Employment Act—req 10% funding to build public facilities had
to be used to procure services or supplies from “minority business enterprises”
○ Held— Upheld the program as constitutional, but no opinion attracted the votes of a majority of justices.
○ Concurrence: Powell—“racial classifications must be assessed under the most stringent level of review bc
immutable characteristics, which bear no relation to the individual merit or need are irrelevant to almost
every gov’t decision.”
○ Burger emphasized the narrowness of this holding
• City of Richmond v. Croson
○ Facts—set-aside program in the awarding of municipal contracts. Richmond, Virginia, with a black
population of just over 50 percent had set a 30 percent goal in the awarding of city construction contracts,
based on its findings that local, state, and national patterns of discrimination had resulted in all but
complete lack of access for minority-owned businesses.
○ Held—State and local affirmative action programs should be subject to strict scrutiny. United States
Supreme Court held that the city council of Richmond's minority set-aside program, giving preference to
minority business enterprises (MBE) in the awarding of municipal contracts, was unconstitutional under
the Equal Protection Clause. The court found that the city failed to identify both the need for remedial
action and that other non-discriminatory remedies would be insufficient.
○ Rationale— city has failed to demonstrate a compelling interest in apportioning public contracting
opportunities on the basis of race. To accept Richmond's claim that past societal discrimination alone can
serve as the basis for rigid racial preferences would be to open the door to competing claims for "remedial
relief" for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is
irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences
based on inherently unmeasurable claims of past wrongs
○ The city’s past discrimination could be a compelling interest but not society’s discrimination…
• Washington v. Davis - An otherwise neutral official action is not unconst merely bc it has a disproportionate
racial impact, unless the P can demonstrate purposeful discriminatory intent.

Adarand Constructors, Inc. v. Pena

515 U.S. 200 (1995)
All racial classifications, imposed by a governmental actor,
must be analyzed under strict scrutiny.
“Consistency—Congruence—Skepticism”
RULE: All racial classifications must be narrowly tailored to further a compelling governmental interest.
FACTS: (Subcontractor v. Fed gov’t)
• A branch of the US Dept. of Transportation (D) awarded a highway construction project to Mountain Gravel and
Construction Co. Mountain then solicited bids from subcontractors for the guardrail portion of the project.
• Adarand (P) submitted the low bid. Gonzalez Construction Co. also submitted a bid.
• The K bw the Gov’t (D) and Mountain provided that Mountain would receive addt’l compensation if it hired subs
that were certified as small businesses controlled by “socially and economically disadvantaged individuals.”

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 ○ Gonzalez is certified as such a business. Adarand (P) is not.
• Mountain awarded the subcontract to Gonzalez, but would have awarded it to P if it had not been for the addt’l
payment it received by hiring Gonzalez instead.
• Fed Gov’t (D) req’s in most fed agency Ks a subcontracting clause similar to the one in the K with Mountain.
• The clause states that “the contractor shall presume that socially and economically disadvantaged individuals
include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities,
or any other individual found to be disadvantaged by the Small Business Admin. Pursuant to §8(a) of the Small
Business Act.”
• Adarand (P) claims  that the presumption discriminates on the basis of race in violation of the 5th Amendment
obligation not to deny anyone equal protection
PROCEDURE:
ISSUE: Are federal racial classifications subject to strict scrutiny review? [YES]
HOLDING: (O’Connor) The 14th req’s strict scrutiny of all race-based actions imposed by a gov’t actor.
• When evaluating fed congress made race-based legislation it is also strict scrutiny.
RATIONALE:
• With Croson, this ct agreed that the 14th req’s strict scrutiny of all race-based action by state and local gov’ts.
○ Cases thru Croson est 3 general propositions with respect to gov’t racial classifications:
1. Skepticism—skeptical of race-based classifications and subject them to a most searching exam
2. Consistency—all racial classifications reviewable under EP must be strictly scrutinized
regardless of the race of those who are burdened or benefitted by the classification
3. Congruence—EP in the 5th is the same as that under the 14th.
○ Propositions  Any person, whatever race, has the right to demand that any gov’t actor justify any racial
classification subjecting that person to unequal treatment under strictest judicial scrutiny.
○ 3 propositions derive from the basic principle that the Const protects individuals, not groups.
○ Thus, follows that all race-based classifications be subjected to detailed judicial inquiry to ensure that the
personal right to EP of the laws has not been infringed.
• Bc racial characteristics seldom are a relevant basis for disparate treatment, and bc racial classifications are
potentially so harmful to the entire body politic, it is especially imp that the reasons for any classification be
clearly identified and unquestionably legitimate.
• We think that req strict scrutiny is the best way to ensure that the cts will consistently give racial classifications
that kind of detailed examination, both as to ends and as to means.
• All racial classifications, imposed by whatever federal, state, or local gov’t actor, must be analyzed by a
reviewing ct under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored
measures that further compelling gov’t interests.
• Under §5 of 14th amendment Congress gets the power to enforce the 14th amendment. Also to ensure that
Congress and not the courts had the power to enforce the 14th. The court ignores §5.
CONCURRENCES:
(Scalia)
• Join opinion of the Ct except insofar as it may be inconsistent with my view that gov’t can never have a
compelling interest in discriminating on the basis of race in order to make up for past racial discrimination.
• Under our Const, there can be no such thing as a creditor or a debtor race inconsistent with the Const’s focus on
the individual.
(Thomas)
• Strict scrutiny applies to all gov’t classifications based on race. Contrary to the suggestion of the dissents, there is
no racial paternalism exception to the principal of EP. The paternalism that appears to lie at the heart of the
program here is at war with the principle of inherent equality that underlies and infuses our Const.
• The principle of EP recognizes that racial classifications are ultimately destructive to the individual and to society.
• So called “benign” discrimination teaches the majority that minorities cannot compete without the patronizing
indulgence of the majority, and will inevitably engender attitudes of superiority and resentment.
• These programs stamp minorities w/ a badge of inferiority and promote a mindset of entitlement and dependency.
(Stevens)
• Opinion on 3 principles  Skepticism is a good principle of law and commonsense.
• The problem with the Court’s version of consistency is that it assumes there is no diff bw the majority imposing a
burden upon the members of a minority race and the decision by the majority to provide benefit to certain
members of that minority. This is untenable.
• An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally
different from a subsidy that enables a relatively small group of newcomers to enter that market.
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 • “Consistency” does not justify treating differences as though they were similarities.
• We can tell the diff bw “invidious” and “benign” discrimination. Therefore, we need not treat dissimilar race-
based classifications as though they were similar.
• Also, Ct’s concern with consistency is difficult to square with the diff standards for racial and gender
discrimination. As the law now stands, the gov’t can more easily enact affirmative actions programs to remedy
discrimination agst women (reviewed under intermediate scrutiny) than it can enact affirmative action programs
to remedy discrimination agst Blacks—even though the primary purpose of EPC was to end discrimination agst
former slaves.
• Has an issue with the Ct’s concept of congruence bc it ignores the difference bw a decision of Congress and a
decision by a State or municipality.
• Federal affirmative action programs represent the will of our entire nation’s elected representatives, whereas a
state or local program may have an impact on nonresident entities who played no part in the decision to enact it.
• Congressional deliberations about a matter as important as affirmative action should be accorded greater
deference than those of a State or municipality.
DISSENT: (Ginsburg)
• See no reason for the Ct to have interfered in the way it did here. Agree with Stevens that we owe deference to
Congress’ institutional competence and constitutional authority to overcome historic racial subjugation.
• Divisions in this case should not obscure the Ct’s recognition of the persistence of racial inequality and of
Congress’ authority to act affirmatively to end discrimination and its lingering effects.
• Given history and consequences of discrimination, Congress can conclude that a carefully designed affirmative
action program may help to realize, finally, the “equal protection of the laws” that the 14th has promised since
1868.
• The ct properly calls for searching review in order to ferret out classifications in reality malign, but masquerading
as benign. However, this does not mean that reviewing cts need review all benign racial classifications by a
standard that is strict in theory and fatal in fact.
• Would not disturb programs challenged in this case, would leave their improvement to the political branches. See
today’s decision as one that allows precedent to evolve, still to be informed by and responsive to changing
conditions.
ANALYSIS:
• Significance This case is about federal racial preferences.
• Here is an expansion of Croson to apply to actions of a federal gov’t.
• Thus, all race-based classifications of fed agencies will also need to be reviewed under SS.
• Bc of O’Connor’s notion of congruence, same standards apply to all levels of gov’t.
• O’Connor’s opinion stressed that strict scrutiny should not necessarily be fatal, and, instructing lower ct on
remand, emphasized that they should consider whether race-neutral measures would not have been successful.
• Definitions:
○ Consistency—all race based classifications should get the same standard of review—strict scrutiny—
regardless of who they purport to disadvantage/benefit
○ Congruence—the fed. gov’t has the same duty not to discriminate on basis of race as do state/local gov’ts
○ Skepticism—the Ct is skeptical that any race-based classification is narrowly tailored to serve a
compelling purpose, and therefore must be given the most searching examination.
NOTES:
• Can you really distinguish bw benign and invidious classification?
• Color-blind: is our CON this? Should it be?
• Reverse discrimination: do these claims have the same force
• Arguments for and against SS:
○ Living constitution vs. original constitution interpretation of Equal Protection Clause
○ Ease for courts to always use SS, instead of differentiating what scrutiny to use in each case
○ Courts make distinctions all the time and should be able to differentiate
○ SS is more evaluating and will catch those statutes not narrowly tailored to the stated purpose
○ The CON does not talk about standards of review

Note: The Constitutionality of “Benign” Racial Classifications

• Adaran and Croson est that “benign” racial classifications, like those that harm racial minorities  SS.
• Level of Scrutiny for Classifications that benefit racial minorities

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 ○ Text and original intent—14th silent on heightened review for racial classifications contained in
affirmative action measures. Reconstruction statutes had specific purpose of benefiting newly freed
slaves, but also a sense in which the amendment was designed to restrict judicial power. Members of the
Recon. Congress feared that Sup Ct would invalidate the 1866 CRA and adopt the 14th so as to avoid that
result.
○ Race consciousness—Issue is whether affirmative action measures merit SS bc of the “basic principle that
the 5th and 14th protect persons, not groups.” Perhaps special dangers associated with group
generalizations based on race.
○ History—Issue whether the fact that whites have not suffered from history of discrimination justify a
lower standard of review for statutes disadvantaging them?
○ Political process—Issue is whether the fact that whites have “adequate” political power justify a lower
level of scrutiny when laws disadvantage them?
○ Innocent victims—Sometimes argued that “benign” discrimination should be SS bc it disadvantages
individuals on the basis of immutable characteristics when those individuals are not themselves
responsible for the evil to be corrected. In a remedial context, innocent victims will be disadvantaged by
their race whether or not an affirmative action program is adopted.
 The ct has approved affirmative action only as precise penance for the specific sins of racism as
gov’t, union, or employer has committed in the past. Invites claims that nonsinners—white
workers innocent of their bosses’ past discrimination—should not pay for the sins of others of
their own race [Fullilove], nor should nonvictims benefit from their sacrifice.
○ Identifying affirmative action—If race-based classifications were subject to a lower standard of review bc
they were affirmative action measures, courts would have to det what “counts” as affirmative action.
 Metro Broadcasting v. FCC—Ct upheld FCC policies that gave a preference to minority-owned
companies in competition for new broadcast licenses and permitted sales of existing licenses to
minority-owned companies under circumstances where other sales would be precluded.
• Justifications for Affirmative Action
○ Under SS that Adarand and Croson require “Benign” classifications will be upheld only if they are
narrowly tailored to achieve a compelling gov’t interest.
○ Issue: What is compelling?

• Empirical Questions
○ Issues—Opponent/proponents of Affirmative action may disagree about whether it helps/hurts intended
beneficiaries, whether it increases/decreases racial antagonism, and whether “colorblind” regime
eliminates or perpetuates discrimination.
○ Evidence that AA produces self-derogating effects is mixed and largely depends on how the program is
described and implemented.
○ Effects on non-beneficiaries is more troublesome—
 Researchers have found serious bases for concern that preferential forms of AA might reinforce
subtle negative expectancies relating to members of beneficiary groups.
○ Negative effects can be mitigated (to some degree) by programs that take into account both the “merit”
and group membership, by emphasizing a pattern of discrimination agst the group in describing the
programs, and by avoiding numerical quotas.
○ Color-blind approach unlikely to eliminate discrimination—nothing in this approach to nondiscrimination
provides social decision makers with tools req to recognize or correct for biases of this sort. (Inevitable
that one race encountering and American of another race will notice racial attributes in initially
categorizing the person perceived). Only the application of deliberate, controlled, corrective processes
can prevent stereotypes and subtle ingroup priming valances from biasing interpersonal judgment.

Grutter v. Bollinger
539 U.S. 306 (2003)
Educational Diversity = Compelling state interest
RULE: Racial classifications must be narrowly tailored to achieving a compelling state interest.
FACTS:
• University of Michigan Law School (D)’s admissions policy req school officials to consider the grades, personal
statements, personal recommendations, and other scholastic criteria in accepting candidates for school admission.

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 • The policy also emphasized the inclusion of candidates from racial or ethnic groups historically victimized by
discrimination to foster racial and ethnic diversity in the student body. (to obtain a “critical mass” – the right
number of diversity w/out setting a “quota”)
○ More flexible standard; only a goal and not a set number
○ Changes from year to year depending on applicants
○ No guaranteed spots for anyone
○ Are we playing games w/ terminology? Are critical mass and quota really different?
• Grutter (P), a WHITE candidate, brought suit when her application was denied bc the school’s policy relied upon
race in violation of EPC.
PROCEDURE: Certiorari to review an undisclosed appellate decision
ISSUE: May a law school use race as a factor in student admissions? [YES]
HOLDING: D’s admissions policy survives strict scrutiny; it strives for educational and social diversity to enhance the
educational benefits to its students. The Ct will defer to the D’s educational assessment developed from its expertise in
such matters.
RATIONALE:
• Under Regents of the University of California v. Bakke, student body diversity serves a compelling state interest
that can justify the use of race in the admissions process. (endorses Powell’s opinion in Bakke)
• To withstand a Const challenge, however, race-based admissions policy must be narrowly tailored to achieve that
compelling state interest.
• Racial diversity exposes students to diff perspectives to which they may otherwise not be exposed and strengthens
classroom discussion of imp legal and social issues.
• With law schools in particular, university grads move on to assume high-ranking positions in business and gov’t,
for which a diverse education serves the interests of many Americans.
• To be narrowly tailored to its compelling interest, a law school may not use an applicant’s race to meet
predetermined quota, but may use race as a “plus” when admitting an otherwise eligible applicant.
• While the policy strives for an undefined mass of minority students, resort to some numerical calculation does
not convert an admissions policy into a quota system.
• The D does not use a mechanical formula for admitting successful applicants, but instead uses a highly
individualized review of the student’s accomplishments to det his or her acceptance.
• While race is a factor, so too are such diversity characteristics as fluency in several languages and unique life
experiences that may contribute to the educational culture.
• The D as considered various race-neutral admissions alternatives, but in the end those alternatives would sacrifice
racial diversity, academic quality, or both.
• Court gave deference to the school board in their findings
• Court looks at higher education institutions as academic freedom. Free from political push…
• Sunset Clause: Hopefully AA will not be needed in 25 years – but this is an arbitrary number
• Cited to Amici (GM, 3M, and army) – stressed leadership needs
CONCURRENCE: (Ginsburg)
• Despite values and ideals of equal opportunity, minority children continue to receive substandard educations in
comparison to their nonminority peers. Some minority students are nonetheless able to meet the educational
criteria demanded of colleges and universities
• As the educational opportunities for minority students continue to improve, one may hope that affirmative action
programs, including race-based admissions policies, will be largely unnecessary.
DISSENT:
(Rehnquist)
• Although D claims to achieve racial diversity in its student body, its policy is not narrowly tailored to achieving
this result. Of the minority students admitted to the University over a 5-year span, most have been Black.
• If racial diversity is the goal, the admissions policy fails by excluding other minority groups, such as Native
Americans and Hispanics.
• Bc the policy in practice serves mainly to ensure the admission of Black applicants, it is a naked attempt at
unconst racial balancing.
(Kennedy)
• If race-conscious admissions policies are to survive a true strict scrutiny standard, the Ct may not defer to the
views of the university to det proper educational objectives.
• Institutional deference deprives the educational sys of the opportunity for “new and fairer ways to ensure
individual consideration”
DISSENT IN PART:

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(Scalia)
• Goals of multiculturalism and cross-racial understanding, while laudable aims, are not educational but rather
societal. They are lessons of life that go untested in law school curriculums. Same lessons as taught to Boy
Scouts and corporate settings.
• While such aims may make good citizens, the Ct’s decision fails to reach a clear const conclusion to the issue,
making future challenges certain.
(Thomas)
• Under strict-scrutiny analysis, the desire for racial diversity and improved education are not compelling state
interests that justify a policy of racial discrimination.
• The goal of having an elite law school is not a pressing public necessity. Even if it were, the D has failed to
demonstrate a cognizable interest worthy of constitutional protection. Bc few of the Law School’s (D) graduates
remain in the state to practice law, the enhanced educational setting allegedly resulting from racial diversity does
little to advance the interests of Michigan residents. Moreover, the University (D) views is misguided when other
reasonably contrary views call them into question.
• By implementing a race-conscious admissions policy, the D satisfies its desire for an aesthetically pleasing
student body to enable it to claim elite status, but does a disservice to those students admitted bc of their race.
• Many of those students are admitted with dreams of obtaining a law degree from a prestigious school only to find
failure in the face of competition among the student body.
• Yet, had these students attended a less-elite school with other students of like caliber, their legal education may
very well be enhanced and their successes more easily achieved.
ANALYSIS:
• Opponents of affirmative action programs taking race, gender, or other personal characteristic into account often
question whether they achieve their intended objectives.
• Although affirmative action generally seeks to afford opportunities that may have traditionally been denied to a
specific class of individuals in order to diminish the effects discrimination has historically had on these
individuals, some may argue that by conferring special benefits on account of an individual’s race or gender, such
programs actually compound the problem by identifying the individual’s beliefs and viewpoints by their physical
characteristics.
• A focus on life experiences arguably provides more diversity than one’s physical attributes.
NOTES:
• Compelling state interest test—gov’ts interest in the law is balanced agst the individual’s Const right to be free
of the law. Only if the gov’ts interest is strong enough will the law be upheld.
○ Used most commonly in Equal protection analysis when the disputed law reqs strict scrutiny
• Strict scrutiny—standard applied to suspect classification (i.e. race) in equal-protection analysis and to
fundamental rights (i.e. voting rights) in due-process analysis. Under SS, the state must est that it has a
compelling state interest that justifies and necessitates the law in question.

Note: The Contemporary Application of Strict Scrutiny

• What counts as a compelling interest?
○ Grutter—diversity in a higher education—particularly in the law schools—constitutes a state interest.
 Shift: Ct abandons retrospective, remedial justification for affirmative action in favor of a
prospective, diversity-based rationale.
○ Bakke—Powell thought of AA as a transition, a short-term departure from the ideal of color-blindness
justified only by pressing necessity. Crafted an approach designed both to permit AA and to constrain it.
Allow racial preferences in higher education while preserving grounds for objecting to them. Say “yes”
now while implying “no” later. Diversity put the justification for racial preferences squarely on
improving the educational experience of all students, rather than helping a favored few.
• Who decides what counts as a compelling interest?
○ Grutter deferred to the law school’s determination that diversity constitutes a compelling interest!
 Problem is, what if another state concluded that diversity is not a weighty interest?
 CA in Proposition 209 forbids using race in admissions to state institutions of higher education.
• Role of race in the admissions process
○ Grutter—Ct here placed great weight on the fact the law school was using a “holistic” admissions
process.
○ Croson and Adarand involved competitive bidding where anonymity is easy to achieve

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 ○ In higher education, school may decide that a variety of factors beyond standardized test scores and GPAs
will enhance its various missions. Might even take into account other factors in the absence of racial
considerations. Reasons for this are “pluralist” and “republican” (i.e. children of alumni preferences).
• What counts as narrow tailoring?
○ Grutter court rejected the idea that race-neutral means are always more narrowly tailored than race-
conscious programs. Scalia and Thomas criticize this majority by noting that the law school could
achieve racial diversity quite easily if it simply abandoned reliance on selection criteria that have a
differential impact.

Gratz v. Bollinger
539 U.S. 244 (2003)
Companion case to Grutter, clarified the tailoring inquiry
FACTS:
• The University of Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee
admission. The University gave "underrepresented" ethnic groups, including African-Americans, Hispanics, and
Native Americans, an automatic 20-point bonus on this scale, while a perfect SAT score was worth only 12
points.
• Point system was supplemented by the review of some applications by an Admissions Review Committee.
ISSUE: Regarding the University of Michigan undergraduate affirmative action admissions policy.
HOLDING: (6–3 decision) The university's point system was too mechanistic and therefore unconstitutional.
RATIONALE:
• Powell’s opinion in Bakke emphasized importance of considering each particular applicant as an individual,
assessing all qualities they possess, and evaluating that individual’s ability to contribute to the unique setting of
higher education.
• University’s automatic distribution of 20 points has the effect of making ‘the factor of race…decisive’ for
virtually every minimally qualified underrepresented minority applicant.
• Little comfort under SS analysis that the review committee can look at apps individually, and ignore the points
‘once the application is flagged’
• In Bakke, it was clear that a university can afford diversity factors diff weights. But, the selection index, b setting
up automatic, predetermined point allocations for soft variables ensures that the diversity contributions of
applicants cannot be individually assessed.
DISSENT:
(Thomas)
• The plan here…lets all applicants compete for all places and values an applicant’s offerings for any place not
solely on the grounds of race.
• Hard to isee what is inappropriate in assigning some stated value to a relevant characteristic. …The college
simply does b a numbered scale what the law school accomplishes in its ‘holistic review’; the distinction does not
imply that applicants to the undergrad college are denied individualized consideration or a fair chance to compete
on the basis of all the various merits their applications may disclose.
(Ginsburg)
• Need to hasten “the stain [removal] of generations of racial oppression, still visible in our society”
• “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action
program is preferable to achieving similar numbers thru winks, nods, and disguises.”

Note: The “Special” Case of Indigenous People

• Rice v. Cayetano – Stevens summarized current state of law:
○ Court recognized both plenary power of Congress over affairs of native Americans and fiduciary
character of special fed relationship w/ descendants of those once sovereign peoples
○ Plenary power has been exercised to provide a fed duty over these people of special care and protection
○ Has gone past practical and encompassed protection of cultural values
○ As long as the special treatment can be tied rationally to fulfillment of Congress’ unique obligations
towards the Indians, such leg judgments will not be disturbed.

Rice v. Cayetano
528 U.S. 495 (2000)
FACTS:
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 • Petitioner was a citizen of Hawaii and a descendant of pre-annexation residents of the islands.
• He was neither "native Hawaiian" nor "Hawaiian" as defined by the statute.
• Petitioner applied to vote in the elections for Office of Hawaiian Affairs (OHA) trustees.
• To register to vote for the office of trustee he was required to attest that he was Hawaiian and desired to vote.
• Petitioner marked through the words "am also Hawaiian and," then checked the form "yes."
• His application was denied.
PROCEDURE:
ISSUE:
HOLDING: (7-2)
• Court assumed, w/out deciding, he substantive activities of OHA were constitutional
• Method by which trustees who administered OHA were elected violated the 15th amendment bc the franchise was
limited to descendants of people inhabiting the Islands in 1778.
RATIONALE:
• Kennedy rejected analogy to statutes dealing w/ American Indians
• “If a non-Indian lacks right to vote in tribunal elections, it is for the reason that such elections are the internal
affair of a quasi-sovereign.
• The OHA elections, by contrast, are the affair of the State of Hawaii.
DISSENT (Stevens):
• Leg targeting the native Hawaiians must be evaluated according to the same understanding of equal protection
that his Court has long applied to the Indians on the continental US: that “special treatment…be tied rationally to
the fulfillment of Congress’ unique obligation” toward the native people.

Note: A Comparative Perspective

• India → multicultural democracy w/ history of class and religious divisions
○ Before Independence in 1948, British frequently distributed benefits based on membership in ethnic or
communal groups
○ Original India Constitution sharply restricted these practices
○ However, another nonjusticiable provisions provides that the “State shall promote w/ special care the
educational and economic interests of the weaker sections of people, and in particular, of the scheduled
castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation
○ 1951 India Supreme Court invalidated state program that allocated seats in medical and engineering
colleges on basis of caste and religion
○ w/in 2 months of decision, it had been reversed by a series of constitutional amendments
○ 1975 – India Sup. Ct. held that in some contexts affirmative action was req by the equality req rather than
being in tension w / it
• If US followed the India model of directing affirmative action against caste-like structures it would result in:
○ Reduction in number of persons eligible for affirmative action even if number of groups was expanded
somewhat beyond the 4 communities listed: black, Hispanic, native American, asian
○ Indian approach creates artificial groups using cultural, social, and economic factors
 Groups that intermarries freely w/ other groups not eligible
 Group be significantly below average in education to be eligible
 Mix of socio-economic factors indicative of continuing effects of past discrimination

Note: The Special Problem of Facially Neutral but Race-Specific Voting Districts
• Cases establish that when districts are purposely constructed to reduce the voting power of minorities, plans are
unconstitutional
• § 2 and 5 of Voting Rights Act of 1965 goes further than CON, prohibits use of districting plans that result in
dilution of minority voting strength regardless of gov’s motivation in adopting it
• Shaw v. Reno –
○ P challenged constitutionality of state reapportionment plan that included one “majority-minority” district
with that court characterized as a dramatically irregular shape
○ (5-4) court held that Ps had stated a cognizable claim
○ P argues that deliberate segregation of voters into separate districts on basis of race violated their CON
right to participate in a “color-blind” electoral process
○ Court made clear that not suggesting race-conscious districting was impermissible in all circumstances

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 ○ Held that districting unconstitutional when though neutral on its face it rationally cannot be understood as
anything other than effort to sep voters into different districts on basis of race and sep lacks sufficient
justification
○ Reapportionment is one area in which appearances do matter
○ Strict scrutiny used
• Brown- racial segregation generated feeling of inferiority
• Loving – ban on interracial marriage designed to maintain white supremacy
• Affirmative Action Cases – Ps denied possibility of competing are harmed by that denial
• US v. Hays – Held that Ps living w/in district subject to racial gerrymandering have standing to contest the
districting, but Ps outside district lack standing unless they can show personally subject to racial classification
• Shaw v. Hunt –
○ Ps object to use of race not bc of adverse consequences they have suffered, but bc state’s failure to obey
CON command to leg in color-blind manner conveyed message to voters across state that there are 2
black districts and 10 white districts
○ This claim does not implicate equal protection clause
• Sinkfield v. Kelley –
○ Ps lived in several majority white state leg districts adjacent to deliberately created maj black leg districts
○ Challenged maj white districts they lived in
○ Court directed lower court to dismiss the case – Ps did not prove or allege they were assigned to the
district as a direct result of racial classification

• Miller v. Johnson- race was predominant factor motivating the drawing of 11th dist.
○ Court elaborated on what P would have to show to trigger strict scrutiny
○ Here, GA redrew congressional dist to create 2 additional maj-black dist.
○ Court held cannot, absent extraordinary justification, segregate citizens on basis of race in public parks,
etc. and it follows you can’t in voting dist
○ Shape is relevant not bc bizarreness is a necessary element of a constitutional wrong or threshold req of
proof, but bc it may be persuasive circumstantial evidence that race was dominant and controlling
rationale in drawing dist lines
○ P’s burden: show either through circumstantial evidence of dist’s shape and demographics or more direct
evidence going to leg purpose, that race was predominant factor motivating placement of lines
• Note: Alington Heights test → proof that decision of village was motivated by racially discriminatory purpose
would have shifted to D.
• Easley v. Cromartie – revisited NC redistricting (from Shaw)
○ Challenge to redrawn version of NC’s 12th dist
○ Court held that dist court had erred in finding that race, rather than politics, drove the leg’s districting
decision
○ Draws distinction between race as a motivation and the predominant factor
○ Party challenging the leg drawn boundaries must show at least that leg could have achieved its legitimate
political objectives in alternative ways that are comparably consistent w/ traditional districting principles.
○ Dissent: the court here erred in looking at all the evidence again and weighing it… not the trier of fact
 Only question this court should have decided was whether the DC’s finding of racial
predominance was clearly erroneous.
 Satisfied that DC’s finding was permissible, even if not compelled by the record.
• Redistricting cases suggest there is definitely more than one kind of strict scrutiny
• Theory of strict scrutiny yielded to the need of an electoral system that is equally open to members of minority
groups.
• Compelling State Interests:
○ Bush v. Vera –
 Compliance with the Voting Rights Act: assumed w/out deciding, that compliance w/ the act was
such a compelling state interest
 Court found that act did not req a state to create, on predominantly racial lines, a dist that is not
reasonably compact.

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  Remedying the effects of prior discrimination was a compelling gov interest → only a compelling
interest when there is specific, identified discrimination and when the state has a strong bias in
evidence to conclude that remedial action is necessary.
○ Shaw v. Hunt – acknowledged that state’s interest in remedying the effects of past discrimination may in
the proper case justify a gov’s use of racial distinctions.

Johnson v. California
543 U.S. 499 (2005)
RULE:
FACTS:
• The California Department of Corrections (CDC) had an “unwritten policy” of assigning inmates to cells on the
basis of race for up to 60 days each time a prisoner entered a new correction facility
○ The basis for the view was that such segregation prevented violence caused by racial gangs.
PROCEDURE:
• Court of appeals held the policy’s constitutionality should be reviewed under the deferential standard
○ The Standard: Whether a regulation that burdens a prisoner’s fundamental rights is “reasonably related”
to a “legitimate penological (preventing crime) interests.”
○ 9th Circuit upheld California’s policy
ISSUE: Which constitutional standard should be applied to an “unwritten policy” to assign inmates by race? [STRICT
SCRUTINY  Remand to lower courts to determine if this racial segregation policy is narrowly tailors to a compelling
government interest.]

HOLDING:
• “All racial classifications [imposed by government] must be analyzed by a reviewing court under strict scrutiny.”
• “We have insisted strict scrutiny in every context, even for so-called ‘benign’ racial classifications
○ The case of Turner which the CDC relies on, has only been used to address the following:
 First Amendment challenges to prison regulations
• Restriction to freedom on association
• Limits to inmate correspondence
• Restrictions on inmates’ access to courts
• Restrictions on receipt of subscription publications
• Work rules limiting prisoners’ attendance at religious services
 Due process claims
 Restrictions on the right to marry
DISSENT: (Thomas)
• “The Constitution has always demanded less within prison walls
○ This means that courts have decided to keep a broad hands-off attitude toward problems of prison
administration
• California’s policy is constitutional for the following reasons [which are in accordance with Turner]
○ CDC’s policy is reasonably related to a legitimate interest in preventing crime
○ Alternative means of exercising the restricted right remain open to inmates
○ Racially integrating double cells might negatively impact prison inmates, staff, and administrations
○ There are no “obvious, easy” alternatives to the CDC policy
 It is possible this policy may pass a strict scrutiny
NOTES:
• Grutter reveals the Court’s ambivalence over the project of constitutionally mandated equity.
○ The case sanctions voluntary inclusion efforts, but requires all such efforts to run the expensive gauntlet
of strict scrutiny.
○ Narrowly read  Grutter encourages but does not require minority inclusion in the nation’s elite public
universities.
• Does not require universities to eliminate de facto segregation, b/c it may result from the usual and customary
admissions criteria.

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Unit 8 Heightened Scrutiny: Gender

Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender

The Early Cases

• Bradwell v. Illinois-- right to practice law was not a privilege or immunity of national citizenship and therefore
was not protected by the 14th.
• Slaughter House Cases—“a law which prohibits a large class from adopting a lawful [employment deprives]
them of liberty as well as property w/o due process of law.
• Minor v. Happersett—women were persons and citizens w/in the 14th but held that the right to vote wasn’t a
privilege of US citizenship and women could be denied the franchise
• Breedlove v. Suttles – supreme court upheld imposition of poll tax on men only: in view of burdens necessarily
born by them for the preservations of the race, the state reasonably may exempt women from poll taxes. Women
were only exempt if they did not register to vote.
• Muller v. Oregon—upheld an Oregon stat prohibiting the employment of women in factories for more than
10hrs/day. (distinguished earlier decision in Lochner). Inherent diff bw two sexes justified limitations on
women’s right to contract
• Lochner v. NY—held that liberty of K implicit in DPC prohibited similar restriction on the workable hours of
bakers
• Adkins v. Children’s Hospital—invalidating min wage leg for women on substantive DP grounds
• Goesaert v. Cleary—upheld a MI stat prohibiting women from working as bartender unless she was the
wife/daughter of a bar’s male owner.
• Hoyt v. Florida—upheld as “rational” a jury selection system excluding women who did not affirmatively
indicate a desire to serve.

The road to Intermediate Scrutiny

• Early 1970s, ct became receptive to const attacks on gender classifications.

Reed v. Reed
404 U.S. 71 (1971)
• First case in which the Supreme Court directly challenged the issue of discrimination against females to the extent
of declaring a state law invalid; with Stanton the Court solidified this stance. Together the cases helped usher in
an era of increased attention to equal protection for women under the Fourteenth Amendment.
• Proceedings on separate petitions by mother and father of decedent for administration of decedent's estate. The
Idaho Supreme Court, 93 Idaho 511, 465 P.2d 635, reversed order of the District Court of the Fourth

45
 Judicial District and reinstated original order of the probate court which named the father administrator of the
estate. The mother appealed.
• Holding: The Supreme Court, Mr. Chief Justice Burger, held that Idaho statute which provides that as between
persons equally qualified to administer estates males must be preferred to females, is based solely on a
discrimination prohibited by and is violative of the equal protection clause of the Fourteenth Amendment.
• Reversed and remanded.
• First case that directly applied the Equal Protection Clause to gender discrimination.

Frontiero v. Richardson
411 U.S. 677 (1973)
• Suit was brought by a married woman air force officer and her husband against the Secretary of Defense seeking
declaratory and injunctive relief against enforcement of federal statutes governing quarters' allowance and
medical benefits for members of the uniformed services.
• Procedure: The Three-Judge United States District Court for the Middle District of Alabama, 341 F.Supp.
201, denied relief, and plaintiffs appealed. Mr. Justice Brennan announced the judgment of the Supreme Court
and delivered an opinion, in which Mr. Justice Douglas, Mr. Justice White and Mr. Justice Marshall joined
• Holding: Classifications based upon sex are inherently suspect and must be subjected to strict judicial scrutiny,
and that statutes providing, solely for administrative convenience, that spouses of male members of the uniformed
services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits,
but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their
support, violate due process clause of the Fifth Amendment insofar as they require a female member to
prove dependency of her husband.
• Ruling: Reversed.
• Did not apply strict scrutiny here, 5 of the justices in the plurality outright protested use of it.

Note: From Reed to Craig v. Boren—Evolution and Doctrinal Confusion

• Stanley v. Illinois— Petitioner, an unwed father whose children, on the mother's death, were declared state wards
and placed in guardianship, attacked the Illinois statutory scheme as violative of equal protection. Under that
scheme, the children of unmarried fathers, upon the death of the mother, are declared dependents without any
hearing on parental fitness and without proof of neglect, though such hearing and proof are required before the
State assumes custody of children of married or divorced parents and unmarried mothers.
○ Held: Under the Due Process Clause of the Fourteenth Amendment petitioner was entitled to a hearing on
his fitness as a parent before his children were taken from him.
○ Rationale: (a) The fact that petitioner can apply for adoption or for custody and control of his children
does not bar his attack on the dependency proceeding. (b) The State cannot, consistently with due process
requirements, merely presume that unmarried fathers in general, and petitioner, in particular, are
unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized
proof. See Bell v. Burson. The denial to unwed fathers of the hearing on fitness accorded to all other
parents whose custody of their children is challenged by the State constitutes a denial of equal protection
of the laws., Reversed and remanded.
○ Arguments can be made that this case was decided using rational basis plus… but they didn’t really say
what they were using in the decision.
• Cleveland Board of Education v. LeFleur-- found that overly restrictive maternity leave regulations in public
schools violate the Due Process Clause of the Fifth Amendment and the Fourteenth Amendment. This decision
which unequivocally struck down mandatory maternity leave rules was a late coming triumph for the women's
rights movement. DP clause did not permit a “conclusive presumption that pregnant women were medically unfit
to teach.
• Weinberger v. Salfi—the court sharply restricted use of “comclusive presumption” technique for attacking
statutory classifications.
• Taylor v. Louisiana-- ct distinguished Hoyt and held that the exclusion of women from jury service deprived the
D of his 6th amendment right to a fair and impartial jury.
• Ballard v. US—ct held that a fed ct’s exclusion of female potential jurors in a state where women were eligible as
a matter of state law to serve violated the 6th.
• Weinberger v. Wiesenfeld-- 1975 Supreme Court decision, the court decided that Social Security provisions
restricting survivor's rights to widows, not widowers, were unconstitutional gender distinctions. Ct used EP
analysis to strike down a section of the Social Security Act entitling a widowed mother, but not a widowed father,
to benefits based on earnings of a deceased spouse.

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 ○ Gender classifications based on “archaic and overbroad generalizations” were unconstitutional.
• Stanton v. Stanton— UT state stat req parents to support male children til 21 but females only til 18. Court held
that this distinction violated the EPC, was not rational, and that it denied women equal protection under the law.
Stanton v. Stanton followed Reed v. Reed (1971) in applying the standard of rationality to questions of
preference for males.
• Kahn v. Shevin-- Facts: Since 1885 Fl has provided some form of statutory exemption from property tax for
widows, but not widowers. Kahn, a widower, applied for the exemption. Issue(s): Whether a Fl Statute that
classifies on the basis of gender and provides favorable treatment for women while excluding men violates the
14th? Holding: classifications designed to remedy past discrimination against women were upheld when
addressing benign discrimination.
• Schlesinger v. Ballard— ct sustained fed stat granting women in the navy a longer period in which to achieve
mandatory promotion than men. Ct reasoned that distinction, unlike Frontiero and Reed, was not based on
archaic and overbroad generalizations, rather it reflected the demonstrable fact that male and female line officers
are not similarly situated with respect to opportunities for professional service.
• Geduldig v. Aiello—Ct rejected an attack on Cali’s disability insurance program that excluded pregnancy-related
disabilities from coverage. Held—insurance limitation was justified by the state’s legitimate interest in
maintaining the self-supporting nature of its insurance program. Ct said it didn’t exclude anyone from benefit
eligibility bc of gender but merely removes one physical condition—pregnancy—from the list of compensable
disabilities. “pregnant persons” Dissent, Brennan (smartly!) recognized that only women could possibly suffer
this disability.

Craig v. Boren
429 U.S. 190 (1976)
A gender based classification must have a substantial
relation to achieving an important governmental objective.
First case to apply heightened review—Gender classification
RULE: Statutes which discriminate based upon one’s sex violate EP if they create a gender-based classification
that is not substantially related to an important gov’t objective.
FACTS:
• An Oklahoma statute prohibited the sale of 3.2% beer to males under 21 and to females under 18.
• 2% of males bw 18 and 20 had been arrested for DUI and only 0.18% of females in same age group were arrested
for DUI.
PROCEDURE:
• DC found that the reason for the different treatment of males and females was traffic safety.
ISSUE: Does a stat violate EP when it treats male and females in the same age group differently based on gender? [YES]
HOLDING: The differences bw males and females with respect to the purchase of 3.2% beer does not warrant the
differential in age drawn by the Oklahoma statute. This gender-based differential is a denial of EP to males aged 18-20.

RATIONALE:
• Precedent—to withstand EP challenge, classifications by gender must serve important gov’t objectives and must
be substantially related to achievement of those objectives.
• Admin ease and convenience are not sufficiently important objectives to justify gender-based classifications.
• Gender cannot serve as a proxy for other, more germane bases of classification
• The statistical evidence offered by the state (P) does not support the conclusion that the gender-based distinction
serves the objective of enhancing traffic safety closely enough to withstand an EP challenge.
• While the diff bw 0.18% and 2.0% may have statistical significance, it can hardly form the basis for employment
of a gender line as a classifying devise.
• Prior cases have consistently rejected the use of sex as a decision making factor even on far more predictive
empirical relationships than this.
• Moreover, the statistical evidence has its own problems. The very social stereotypes that caused the Oklahoma
Legislature to pass the challenged law are likely to distort the accuracy of these comparative statistics so that
young men who drink and drive are arrested while young women are “chivalrously” escorted home. In addition,
none of the statistics measures the dangerousness of a 3.2% beer (which the Oklahoma legislature considered to
be non-intoxicating) as opposed to alcohol generally. The showing offered by the state (P) does not satisfy us that
sex represents a legitimate, accurate proxy for the regulation of drinking and driving.

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 • Moreover, considering that the statute only prohibits the sale of 3.2% beer to the young men and not its
consumption by them, the relationship bw gender and traffic safety becomes far too tenuous to satisfy the
requirement that the gender-based difference be substantially related to achievement of the statutory objective.
CONCURRENCE
(Powell)
• Thinks that the Ct reads our precedent more broadly than it should, but admits that we examine gender-based
classifications more critically than is ordinarily the case when “fundamental rights” and “suspect classifications”
are not present.
• Decision should turn on whether the state has adopted a means that bears a “fair and substantial relation” to its
objective.
• Thinks that statistics generally support the classification, but not persuaded by these facts and the inference fairly
drawn from them justify this classification based on a 3 year age differential bw the sexes, and especially one that
is so easily circumvented as to be virtually meaningless.
• The gender-based classification does not bear a fair and substantial relation to the object of the legislation.

(Stevens)
• “two-tiered” system of analysis of EP claims is nothing more than a method of explaining decisions that apply a
single standard in a relatively consistent fashion.
• Classification here is objectionable bc it is based on an accident at birth. To the extent it reflects any real physical
diff bw males and females, it is actually perverse (bc males can drink more before driving ability is impaired).
• The state’s justification of traffic safety is not totally irrational, but it sis difficult to believe that the stat was
actually intended to cope with the problem of traffic safety—it has only minimal effect on access to a not-very-
intoxicating beverage and does not prohibit its consumption.
• The law is unlikely to affect the future behavior of the troublesome 2% or law abiding 98%. Sins of the 2%
should not be visited upon the remaining 98%.
DISSENT: (Rehnquist) The gender based difference is not irrational
• Object on 2 grounds:
• (1) Ct’s conclusion that men who challenge a gender-based classification may invoke a more stringent review
than most other types of classifications.
• (2) Ct’s enunciation of a new standard, w/o citation to any source that gender-based classifications must be
substantially related to important gov’t objectives.
• The law here need only pass a rational review analysis, and that it is constitutional under that analysis.
• Before today, no decision has ever applied to an elevated level of scrutiny agst statutory discrimination that is
harmful to males, and the court should not have done so today.
• Ct’s standard of review—requiring a substantial relation to an important gov’t objective—comes out of thin air.
It invites subjective judicial preferences or prejudices masquerading as judicial judgments.
• Traditional rational basis scrutiny was warranted. Legs are entitled to great deference in their fact-finding
capacity. Statistics suggest a clear difference bw drinking and driving habits of young men and women, and the
difference is enough that the legislature could reasonably conclude that young males pose a far greater drunk-
driving hazard than females.
ANALYSIS:
• Importance here is the test that it promulgates.
• New level of scrutiny in equal protection.
• New test for gender-based classifications is that they must be “substantially related” to the achievement of
“important” governmental objectives.
• Some say that this standard is vague and amorphous, but maybe they are bc they are intended to be a true middle
ground,a nd that gender-based cases are supposed to be upheld sometimes and struck down other times.
• Intermediate scrutiny is not meant to be the black and white standard that rational (almost always upholding) and
strict scrutiny (almost always striking down) are.
• In applying intermediate scrutiny, the ct examines the actual purpose that the legislature had when it enacted the
challenged statute—not merely some hypothetical purpose that the leg mighthve had.
• Here, the ct found that the classification was based on stereotypical notions about the behavior of young men and
women. Ct examined the leg purpose and found the important goal of traffic safety was not achieved by the
gender-based classification.
• Intermediate-scrutiny  gender-based classifications are examined by intermediate scrutiny, there the
classification must be substantially related to achieving an important governmental function.

Note: Heightened Scrutiny for Gender Classifications?

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 • Since Craig, the ct has not been consistent in articulating an appropriate standard of review in gender
discrimination cases.
• Arguments for heightened scrutiny
○ Slaughter-house cases—Miller said 14th pervading purpose was freedom of the slave race, security and
firm est of that freedom, and protection from oppressions of those who had formerly exercised unlimited
dominion.
• Arguments by analogy
○ Framers didn’t intend, in writing the 14th, to ban discrimination based on gender.
○ But in both the trait is “immutable and highly visible” and lends itself to a sys of thought dominated by
stereotype which automatically consigns an individual to a category often implying inferiority.
○ “synthetic approach” says to read the 14th against the backdrop of the struggle to attain women’s suffrage,
which culminated in the 19th amendment.
• Mississippi University for Women v. Hogan—skeptical attitude toward gender classification is designed to
ensure that gov’t action is “determined thru reasoned analysis rather than thru the mechanical application of
traditional, often inaccurate assertions about the proper roles of men and women.
○ Ruled that Mississippi University for Women's single sex admissions policy violated the Fourteenth
amendment's equal protection clause.
○ Is this case comparable to Sweat and the denial of a black man into an accredited law school?
○ Think about sameness/difference construct in reference to gender
• Loving v.Virginia—ct invalidated a VA stat prohibiting cross-racial marriages.
Archaic and Overbroad Generalizations versus “Real” Differences
• Ct has attempted to assimilate the analysis of gender discrimination into its basic EP methodology.
• Thus it has looked (with heightened scrutiny) to see whether a law/policy treats men and women differently. If it
does, it has asked whether the diff in treatment corresponds to a relevant diff bw genders.
• Some argue differences are “natural” “inevitable” but others say that the Ct’s insistence on “facial” or “formal”
equality has harmed women by ignoring important diff b/w genders. Still others say the preoccupation with
“sameness” and “difference” is diversionary and the ct should instead focus on fundamental power imbalances bw
the genders.

United States v. Virginia

518 U.S. 515 (1996)
Gender based distinctions must show “exceedingly persuasive justification”
Burden on the state
RULE: State military schools offering boot-camp style training may not exclude women, even if they offer separate
women-only programs, unless they demonstrate an “exceedingly persuasive justification.”
FACTS:
• Virginia (D) operated Virginia Military Institute (D), a prestigious military college open to males only. VMI’s
regimen was known for physical rigor, Spartan accommodations, and abusive training comparable to boot camp.
• The U.S. (P) sued Virginia (D) VMI (D), alleging its men-only admissions policy violated the EPC.
PROCEDURE:
• At trial, the DC found for VMI (D), finding that opening VMI (D) to women would require changing some
aspects of VMI’s (D) distinctive method, which would impinge on the state interest in diversity in public
education.
• US (P) appealed
• On appeal, ct REVERSED holding that neither the goal of producing citizen soldiers nor VMI’s methodology is
inherently unsuitable for women, and remanded to the DC to fashion a remedy.
○ Virginia proposed a parallel program for women, without VMI’s (D) abusive training, based at an
academically inferior women’s college.
• The DC approved this remedial plan, and the COA affirmed
• US appeals again
ISSUE: May a state military school exclude women from boot-camp style training, and instead offer a different women-
only program? [NO]
HOLDING: VA’s policy of prohibiting women from enrolling in the state-run VA Military Institute violated EPC.
• State military schools offering boot-camp style training may not exclude women, even if they offer separate
women-only programs, unless they demonstrate an “exceedingly persuasive justification.”

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 • Virginia has shown no “exceedingly persuasive justification” for excluding all women from VMI’s (D) citizen-
soldier training, and thus violated the 14th’s EPC. Also, reverse the proposed remedy of a separate program for
women, which does not provide equal opportunity.
RATIONALE:
• VA couldn’t rely on putative benefits of single-sex education to justify exclusion of women from VMI bc there
was no showing of a state policy evenhandedly to advance diverse educational options.
• Parties seeking to defend gender-based gov’t action must demonstrate an “exceedingly persuasive justification”
• Burden of justification rests entirely on the State. State must show at least that the classification serves
“important gov’t objectives” and that the discriminatory means employed are “substantially related to” achieving
those objectives.
• The justification must be genuine, not hypothesized or invented afterwards, and cannot rely on overbroad
generalizations about the different talents, capacities, or preferences of males and females.
• The heightened review standard does not make sex a proscribed classification. However, while archaic and
supposed “inherent differences” are no longer acceptable as grounds for classification, enduring physical
differences bw men and women are valid grounds.
○ “Inherent differences” cannot be used to justify artificial constraints on individual’s opportunity.
○ Sex classifications may be used to compensate women “for particular economic disabilities they have
suffered” and “to promote equal employment opportunity” but not to create or perpetuate the legal, social,
and economic inferiority of woman.
• Here, Virginia (D) has shown no “exceedingly persuasive justification” for excluding all women from VMI’s
citizen training soldier training, and thus violated the 14th’s EPC.
• Virginia argues 2 justifications for VMI’s exclusion of women:
○ Women can’t handle it – adversarial method used instead of cooperative method. (tear you down)
○ That single-sex education provides important educational benefits, and the option should exist
○ That VMI’s method would have to be modified were VMI to admit women.
 Precedents hold that “benign” justifications proffered to defend categorical exclusions will not be
accepted automatically unless the state enacted the exclusion for that purpose.
• Here, Virginia (D) has not shown VMI’s (D) policy was actually est to diversify educational opportunities. As for
Virginia’s contention that admitting women would require VMI to change its program radically, we find that
some women would choose VMI’s current method, and be capable of meeting VMI’s current physical standards.
• The notion that admitting women would downgrade VMI’s stature and quality is a self-fulfilling pretext, like
those historically used to deny women rights and opportunities, and cannot rank as “exceedingly persuasive.”
• States which choose to retain exclusionary policies must propose a remedy “directly addressed and related to” the
violation.
• Here, Virginia’s proposed women’s program offers no opportunity to experience the rigorous military training for
which VMI is known, instead offering a “cooperative method” emphasizing self-esteem.
• Virginia argues these methodological differences are justified based on women’s different learning needs, but we
find Virginia (D) has not proven why VMI’s method is unsuitable pedagogically for women, or even why it is
suitable for most men, and we believe this to be a pretext. The women’s program is a pale shadow, inferior in
myriad respects.
CONCURRENCE: (Rehnquist)
• Agree with majority holding that VMI’s all male admissions policy violates EPC, and that the proposed women’s
program does not remedy that violation.
• Disagree with the majority’s analysis. Proper standard is that “classifications by gender must serve important
governmental objectives and must be substantially related to achieving those objectives” per Craig v. Boren.
• Should use the traditional standard for intermediate scrutiny.
• Majority adheres to this standard, but also introduced the “exceedingly persuasive justification” standard, which
adds uncertainty.
• An adequate remedy might be for Virginia to demonstrate that its interest in educating both men and women
separately in single-sex environments, by creating institutions which offer different features but are of the same
overall caliber.
DISSENT: (Scalia)
• Ct closes a proud Virginia institution, rejects the factual findings of 2 courts below, sweeps aside precedent, and
ignores the Constitution’s history, which takes no sides in this educational debate.
• Claims this court used counter-majoritarian preferences of society’s law trained elite and ignores any benefits that
do exist from single-sex education.
ANALYSIS:
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 • Under Craig v. Boren, Sup. Ct held that gov’t gender-based classifications subject to “intermediate” scrutiny,
menaing the classification must be “substantially related” to achieving an “important gov’t function.
• In Virginia, the ct does not specifically overrule that standard, but now requires “exceedingly persuasive
justification” which sounds like a higher standard resting somewhere bw intermediate and strict scrutiny
• However, the opinion doesn’t define the “exceedingly persuasive” standard as necessarily different from the
“intermediate scrutiny” standard, so it is unclear whether Virginia actually imposes a different measure.
• Also notable is the Court’s policy that, even if there is a rational or legitimate basis for the distinction, the policy
must have actually been implemented on that basis, and not other considerations (i.e. if the policy was originally
undertaken for illegitimate reasons, but it also has legitimate effects/reasons, it is still unconstitutional).
• Finally, the Ct’s harsh condemnation of VMI’s proffered rationale suggests Ginsburg believes it to be Pretextual,
and takes personal offense.
• Separate facilities for women are not acceptable: different instructors, curriculum, funding,
• Can’t make conclusive categorization under the constitutional
• Intermediate scrutiny – significant gov interest that is substantially related to law.

Note: “Real” Differences and Formal Equality

• Issue—extent to which the cause of gender equality is advanced by insisting on formally equal treatment
• Sometimes, women can be vulnerable to the standards created for men
• J.E.B. v. Alabama—case concerned constitutionally of the state’s use of gender-based peremptory challenges in a
trial to det whether the D was the father of a child and extent of his child support obligations. Held—gender-
based peremptory challenges were unconstitutional “even if a measure of truth can be found in some of the gender
stereotypes used to justify gender-based peremptory challenges, that fact was irrelevant. EPC reqs that state
actors look beyond the surface before making judgments about people that are likely to stigmatize as well as to
perpetuate historical patterns of discrimination. O’Connor Concurrence: “To say that gender makes no
difference as a matter of law is not to say it doesn’t make a difference in fact”
• In other cases, mostly before Virginia, the Court has shown some willingness to allow accommodation for the
supposed “real differences” bw men and women
• Rostker v. Goldberg—ct upheld a statute req men, but not women, to register for the draft. Congressional
decision should be understood in light of the fact that registration was intended as a prelude to a draft in a time of
nat’l emergency. Women as a group are not eligible for combat.
• Parham v. Hughes—upholding statute permitting the mother, but not the father, for of an illegitimate child to sue
for wrongful death of the child when the father had not formally legitimated the child.
• Kirchberg v. Feenstra—striking down a stat giving a husband unilateral auth to dispose of jointly owned prop
w/o wife’s consent
• Caban v. Mohammed—strike down stat that req the consent of the mom, but not father, for adoption of a child
born out of wedlock.
• Lehr v. Robertson—upholding NY stat permitting adoption of a nonmarital child w/o notice to the biological
father unless the father registered his intent to claim paternity with a “putative father’s registry” or had met certain
other stat criteria such as living openly w the child.

Nguyen v. Immigration and Naturalization Service

533 U.S. 53 (2001)
• Lawful permanent United States resident, who had been born out of wedlock in Vietnam, and his United States
citizen father appealed decision of Board of Immigration Appeals (BIA) ordering resident's deportation.
• The United States Court of Appeals for the Fifth Circuit, Carl E. Stewart, Circuit Judge, 208 F.3d 528,
entered order dismissing appeal. Certiorari was granted.
• The Supreme Court, Justice Kennedy, held that statute making it more difficult for child born abroad and out of
wedlock to one United States parent to claim citizenship through that parent if citizen parent was father did not
violate equal protection guarantee of the Fifth Amendment. Affirmed.
• P = child molester and that is why he might be deported.
• Court discusses automatic relationship that is established by giving birth that the father does not have. (archaic)
• Dissent: now we can figure out who the father is… now they are in the same position. Scientific establishment of
fatherhood.
• Differences in majority are biological
• Why is it relevant if you have a relationship with your American citizen parent for purposes of citizenship?
• Majority applies heightened scrutiny (assume it is intermediate)

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Note: The Relevance of “Real Differences”
• Argument—diff bw genders not only are socially constructed but also serve to reinforce male domination.
• With regard to “naturalness” of gender differences, consider the possibility that current constitutional doctrine
does not deal adequately with “people for whom gender and anatomical birth sex in some way diverge”
• “difference” itself may be socially constructed. Another argument says there are significant diff bw sexes and
law’s insistence on formal equality in the face of these differences leads to male domination.
• Nevada Dept of Human Resources v. Hibbs—issue was whether sec. 5 of the 14th provided congress with the
power to authorize private suits for damages agst state govt’s under FMLA. Act authorized 12 weeks unpaid
leave to care for a spouse, child, parent with serious med condition. Ct upheld the stat. Court permitted
Congress’s power under sec. 5 of 14th here.
• Might we be better off with a virtual per se rule prohibiting gender classification??
• Might not always be clear which group is being benefited and which injured by a law that treats men/women diff.

Califano v. Goldfarb
430 U.S. 199 (1977)
• A widower applied for social security survivors’ benefits after death of his wife. His application was denied on
ground that he had not been receiving at least one-half support from his wife when she died.
• The Three-Judge Court of the Eastern District of New York held that provision of Social Security Act denying
benefits to widower was invalid, 396 F.Supp. 308, and Secretary of Health, Education, and Welfare appealed.
• The United States Supreme Court, Mr. Justice Brennan, held that gender-based distinction between widows and
widowers, and gender-based discrimination against covered female wage earners, whereby Social Security Act
survivors benefits are payable to her widower only if he was receiving at least half of his support from her, thus
depriving female wage earners of same protection for their spouses, while such benefits based on earnings of a
deceased husband covered by the Act are payable to his widow regardless of dependency, violates due process
and equal protection. Affirmed.

Califano v. Webster
430 U.S. 313 (1977)
• Male recipient of old-age insurance benefits under the Social Security Act filed suit challenging the
constitutionality of Act provision under which a female wage earner, in respect to the formula utilized in
computing benefits, could exclude from the computation of her ‘average monthly wage’ three more lower earning
years than a similarly situated male wage earner.
• The United States District Court for the Eastern District of New York, 413 F.Supp. 127, entered judgment in
favor of claimant, and an appeal was taken by the Secretary of Health, Education, and Welfare.
• The Supreme Court held that the Social Security Act provision allowing women, who as such have been
unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of
their retirement benefit works directly to remedy some part of the effect of past discrimination and is not
unconstitutional; furthermore, the fact that Congress changed its mind in 1972 and equalized the treatment of men
and women did not constitute an admission by Congress that its previous policy was invidiously discriminatory,
nor did the failure to make the 1972 amendment retroactive constitute discrimination on the basis of date of birth.
Reversed.
• Both this case and the one before focused on the harm to the woman wage earner.
• Are these cases over sympathetic to women?

Note: The Problem of “Benign” Gender Classifications

• Can equality ever be fully served with gender neutral statutes?
• Wengler v Druggists Mutual Ins. Co—ct invalidated a portion of Missiouri’s workers’ compensation statute
under which a widower of a deceased worker was entitled to death benefits only if he was mentally or physically
incapacitated from wage earning or proved actual dependence on his wife’s earnings. In contrast, a widow was
automatically entitled to death benefits w/o having to demonstrate dependence. The ct argued that the challenged
statute discriminated against BOTH men and women, but the discrimination fell short of the Craig test.
• Affirmative action for women-- ct seems to have taken view that AA measures disadvantaging men are subject
to intermediate scrutiny, and that remedying disparities bw men and women, at least if caused by prior
discrimination, qualifies as an “important gov’t objective” for purposes of the test.
○ Maybe gender affirmative action measures should also be subject to strict scrutiny but this result is also
deeply problematic, since it would leave laws disadvantaging women subject to a lower level of review
than laws benefiting them.

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The Irrelevant Constitution?
Note: The Current Relevance of Constitutional Law
• Equal rights amendment (1972)—rights shall not be abridged on account of sex, congress shall have the power to
enforce provisions, take effect 2 yrs after ratification date.
• Became stalled and eventually forgotten?
• Declining importance of conlaw—recent years, ct seems to have lost interest in the constitutional status of gender.

Michael M. v. Sonoma County Superior Court

450 U.S. 464 (1981)
FACTS: petitioner, a 17 year old male was convicted under the stat for having intercourse w/ a 16 yr old female.
• When defendant was just over 17 years old, he was charged in a criminal complaint in state court with violating
Cal. Penal Code § 261.5 for having unlawful sexual intercourse with a female under the age of 18.
• Section 261.5 made men alone criminally liable for the act of sexual intercourse.
PROCEDURE:
• Contending that the statute unlawfully discriminated against men, defendant filed a motion to set aside the
information and complaint. The state courts denied the motion.
• On certiorari, the U.S. Supreme Court rejected defendant's contention that § 261.5 violated the Equal Protection
Clause of the Fourteenth Amendment.
ISSUE:
HOLDING: Upheld California’s stat rape law making men, but not women, criminally liable for acts of sexual
intercourse involving a female under 18.
RATIONALE:
• Upheld a statute defining statutory rape as “an act of sexual intercourse accomplishe with a female not the
wife of the perpetrator, where the female is under 18.
• Purpose of stat was to prevent illegitimate pregnancies and the state had a strong interest in preventing
such pregnancies.
• Specifically, the Court ruled that the State had a strong, legitimate interest in preventing illegitimate pregnancies
because of the social and economic problems such pregnancies caused it and the woman to suffer.
• The Court further held that the statute was sufficiently related to that state interest to pass constitutional muster.
• Moreover, the statute was not overbroad in its application to prepubescent females who could not become
pregnant.
• The statute did not impermissibly discriminate between the genders by punishing only the male when both parties
were under the age of 18.
CONCURRENCE:
(Stewart)
• While detrimental gender classifications by gov often violate the CON, they do not always do so
• There are reasons that there are differences bw males and females that the CON necessarily recognizes
• Most basic difference: female can become pregnant as result of sex, males cannot
• EP does not mean that physiological differences between men and women must be disregarded.
DISSENT:
(Brennan)
• CA still has burden of showing that there are fewer teenage pregnancies under it’s gender-based statutory rape
law than there would be if the law were gender neutral.
• State did not show that this law applying to both sexes, although hard to enforce, would not be effective.
(Stevens)
• local custom and belief – rather than stat laws of venerable but doubtful ancestry – will det the volume of sexual
activity among unmarried teenagers.
• A ruke that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the CON
req that the sovereign must govern impartially.

ANALYSIS:
• Are women a discrete insular minority? Sheer numbers women are not minority, but historically our nation has
been dominated by men. More a reference to political power than numbers.
• Should gender receive heightened scrutiny? Should gender be treated like race?

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Unit 9 Equal Protection Methodology

Problem of Sexual Orientation

ISSUE: Should laws/policies that discriminate on the basis of sexual orientation be strictly scrutinized???
• How to define the protected class??

Note: The Nature of the Class at Issue

• Status v. acts as the basis for classification—how we define the class of ppl who might raise EP challenges?
○ Acts—ppl who engage in
 Lawrence v. Texas—Sup Ct held that DPC of the 14th prohibits states from criminalizing private,
noncommercial consensual sexual intimacy bw 2 adults of the same sex. Struck down TX statute
that had criminalized oral/anal sex only bw individuals of the same sex.
 “analogical crisis” regulation of particular acts of gays v. regulation of people who are defined
not so much by what they do at home, but by who they are in the public sphere.
 State cannot make it a crime to “be gay” bc 8th amendment protects. So they state that wants to
express disapproval of gays must instead craft a law that makes it a crime to engage in behavior.
○ Desires—ppl who have a desire or propensity to engage in
 Equality Foundation of Greater Cincinnati v. Cincinnati—no law can successfully be drafted
that is calculated to burden or penalize an unidentifiable class of ppl whose identity is defined by
subjective and unapparent characteristics such as innate desires, drives, thoughts. Ppl having
homosexual “orientation” simply do not, as such comprise an identifiable class. Bc homosexuals
generally are not identifiable “on sight”…they cannot constitute a suspect class.
 Personnel Administrator of Mass v. Feeny—even if it is technically impossible to legislate agst
wholly internal mental states, laws prohibiting conduct might be enacted “because of” rather than
“in spite of” their disproportionate impact on people who have those mental states. Laws
regulating acts would be subject to SS only if they were enacted bc of antipathy toward ppl with a
particular mental state.
• The significance of immutability
○ Plyler v. Doe—Ct rejected the claim that illegal aliens constitute a suspect class in part bc “unlike most of
the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this
country, is the product of voluntary action.”
○ The Sup Ct has never explicitly addressed the question what level of scrutiny should apply to distinctions
on the basis of sexual orientation.
○ Rowland v. Mad River Local School District—high school guidance counselor lost job for discussing her
bisexuality with fellow employees. COA held that neither Rowland’s right to free speech under 1st nor
her right to EP had been violated. US Sup Ct refused to reconsider; Brennan’s Dissent stated that the ct is
wrong to not hear the case—discrimination agst homo/bisexuals based solely on their sexual preferences
raises significant questions under EP analysis. 1st, homosexuals are a significant and insular minority and
have been object of sustained hostility. 2nd, discrimination on sexual preference has been found by many
cts to infringe various fundamental const rights such as the rights to privacy or freedom of expression.
Because determination of the appropriate constitutional analysis to apply in such a case continues to
puzzle lower courts and because this Court has never addressed the issues presented, I would grant
certiorari

Romer v. Evans
517 U.S. 620 (1996)
A state cannot deem a class of persons a stranger to its laws
RULE: A law which nullifies all other laws which protect homosexuals could not possibly have been adopted for
any purpose except the bare desire to discriminate agst homosexuals, and therefore does not pass a rational-basis
equal protection review.
FACTS: (Homosexuals v. Colorado)

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 • Many cities in CO had passed ordinances banning discrimination agst ppl bc of their sexual orientation in areas
such as housing, employment, education, public accommodations, and health and welfare services.
• In direct opposition to these ordinances, the ppl of CO in a popular referendum adopted a measure known as
Amendment 2 which amended the CO constitution.
• Amendment 2 prohibits the enactment or enforcement of any law designed to protect homosexuals agst
discrimination on account of their sexual orientation.
• Thus, A2 does more than just repeal the already-existing anti-discrimination stats. A2 prohibits all leg, exec, or
jud action at any level of state or local gov’t that is designated to protect homosexuals.
• Sup Ct of CO found that A2 violates EP bc it infringes upon the fundamental right of gays and lesbians to
participate in the political process and, therefore, A2 is subject to strict scrutiny and must be narrowly tailored to
serve compelling gov’t interests.
PROCEDURE:
• Since CO (D) could not make a showing to survive SS, the State Supreme Ct found the law unconst.
• Appeal from a state supreme ct ruling that the state’s const amendment violated EP under the fed Const.
• Here—Sup Ct affirms, but under a diff rationale.
ISSUE: Do prohibiting laws that protect homosexuals from discrimination, violate EP? [YES]
HOLDING: A2 classifies homosexuals for the sole purpose of making them unequal, and a state cannot deem a class of
persons a stranger to its laws.
RATIONALE:
• The EPC works to insure the law’s neutrality where the rights of persons are at stake.
• Colorado (D) claims that A2 does no more than deny special rights to homosexuals. However, this claim isn’t
convincing. A2 withdraws from homosexuals and no others the right to protection from discrimination.
• The laws of CO (D) set forth an extensive catalogue of traits that cannot be the basis for discrimination, including
age, military status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental
disability – and in recent times, sexual orientation.
• A2 denies to homosexuals the same protections that are extended to other groups and nullifies existing protections
at all levels of gov’t—executive decrees, judicial orders, and legislative acts.
• Homosexuals are denied the protections that are taken for granted by most citizens of CO, who either already
have them or do not need them, against exclusion from an almost limitless number of transactions and endeavors
that constitute ordinary civic life in a free society.
• A legislative classification that neither burdens a fundamental right nor targets a specific class will be upheld so
long as it bears some rational relation to a legitimate end.
• A2 fails even this conventional inquiry.
• A2 disqualifies an entire class of persons from the right to seek protection from the law. A law declaring that in
general it shall be more difficult for one group of citizens than for all others to seek aid from the gov’t is itself a
denial of EP of the laws in the most literal sense.
• A law must bear a rational relation to a legit gov’t purpose and a bare desire to harm a politically unpopular
group cannot constitute a legitimate gov’t interest.
• CO argues—2 justifications for A2: (1) to enforce freedom of association for those with a personal or religious
objection to homosexuality, and (2) to conserve resources to fight other forms of discrimination.
• [REJECTS] A2 is so broad that these justifications cannot possibly be the reason for adoption of A2.
• At the beginning of gender discrimination jurisprudence it started as rational basis as well.
• Brings up counter-majoritarian views as well.
• Main issue/point – political rights equality.

DISSENT: (Scalia)
• A2 is nothing more than a modest attempt by CO’s to preserve traditional sexual mores agst the efforts of a
politically powerful minority. They should be able to do so thru normal democratic means w/o their efforts being
frustrated by unrepresentative members of this elite institution.
• A2 prohibits special treatment of homosexuals and nothing more.
• Under A2, homosexuals may not obtain preferential treatment w/o amending the state constitution.
• Cts have recently held statutes that criminalize homosexual conduct are constitutional—Bowers v. Hardwick—
and if it is constitutional to make homosexual conduct a crime, then it is constitutional to adopt a measure that
does not even disfavor homosexuality, but merely prohibits the gov’t from bestowing special protections on
homosexual conduct.

55
 •If it is rational to criminalize conduct, then it surely is rational to deny special protections to those who engage in
that conduct.
• A2 does not reflect “animus” towards homosexuals—the ppl of CO simply expressed their moral disapproval.
• The Ct’s contention that homosexuals are a politically unpopular group is preposterous—enormous support
• A2 entirely reasonably provision that does not even disfavor homosexuals in any substantive sense, but merely
denies the preferential treatment.
• Sees it has acts, not a political status classification.
• The court has mistaken a Kulturkampf for a fit of spite.
ANALYSIS:
• Ct purports to use rational review while striking down a law that probably could have withstood rational review.
• Ct claims A2 was based on nothing but an impermissible desire to discriminate agst homosexuals.
• The standard for upholding a law under rational review is whether the proponent can think of any plausible reason
why the law might be legitimate. The claim that A2 would protect the freedom of association of landlords and
employers should have been enough under rational review to sustain A2 agst an EP challenge.
• Cts criticisms of A2’s considerable over- and under-inclusiveness seems to be empty bc rational review will
tolerate considerable over- and under-inclusiveness in law.
• Ct rests mostly on its argument that the classification in A2 deems an entire class of ppl to be a stranger to its
laws, however this argument ignores the traditional 3-tier framework for EP challenges. And is logically
questionable bc even under A2, all the laws of general applicability still apply to homosexuals.

Note: The Meaning of Romer

• Baselines again
○ Ct claims decision guarantees for homosexuals only “equal” and not “special” protection.
○ Under modern conditions, the baseline is a general right to be free from discrimination.
• Justice Scalia’s dissent
○ Majority and dissenting opinions each accuse other of departing from a position of state neutrality in this
conflict. Majority disclaims effort to give homosexuals “special” rights and claims CO has failed to treat
them “equally.” Dissent accuses majority of siding with homosexuals agst their adversaries.

Note: More Targeted Laws Discriminating on the Basis of Sexual Orientation

• Sodomy laws
○ Lawrence v. Texas—Sup Ct held that laws criminalizing private, consensual sex bw two adults of the
same sex violate DPC. Overruled Bowers v. Hardwick.
 O’Connor Concurrence—embraced an EPC basis for striking down the TX stat. Didn’t argue for
SS, rather concluded law failed even to serve a legitimate state interest… “moral disapproval of
this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational
basis review under EPC.” Ct. is touchy about finding new fundamental rights…that’s why she
relied on EP instead of DP. She thinks this law is correct in so far as it deals w/ acts and not
status, but concurs bc it doesn’t apply equally to everyone.
 There is a fundamental right to be able to choose who you engage in sexual activity w/
 This is like equal protection discussion re: fundamental right
 DP relevance to EP → in equal protection there is a substantive component of what you are
talking about
○ Bowers v. Hardwick—upheld GA law criminalizing all oral or anal sex as applied to homosexual acts.
• Don’t ask, don’t tell
○ Military long-standing policy of excluding homosexuals from serving. Clinton said intended to change
this. Political uproar ensued  fed stat created.
○ Fed Statute 10 USC 654—
 No const right to serve
 Critical elements in combat compatibility is unit cohesion
 Military life is different; restrictions on behavior that wouldn’t be acceptable in civilian society.
 Living conditions often characterized by forced intimacy, no privacy
 Prohibition agst homosexual conduct continues to be necessary in military service.
○ Members should be separated if it was found…
 Engaged in/attempted to engage in homo conduct or acts
 They stated they were homo or bisexual or words to that effect
 Have married/attempted to marry same sex.
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 ○ Palmore v. Sidoti—Sup Ct held that cts could not take into account in child custody cases, the potential
prejudices that would be suffered by a white child if custody were granted to a parent who had
subsequently entered into an interracial marriage. The “reality of private biases and possibly injury they
might inflict” were not “permissible considerations” and the law couldn’t give them effect.
• Same sex marriage
○ Do laws that restrict marriage to opposite-sex violate EPC?
○ Baehr v. Lawin—HI Sup Ct held that existing restriction on marriage violated the EPC of the state const
unless it could show that excluding same-sex couples served a compelling state interest.
○ Baehr v. Miike—ct held that no such interest existed and enjoined the state from banning same-sex
marriages.
○ Baker v. Vermont—Ps challenged restrictions on the rights of same sex couples to benefits of marriage.
VT Sup Ct held that restrictions were inconsistent with this provision, but declined to require same-sex
marriages. Left to legislature to det what to do civil unions that provide virtually all rights and
privileges of marriage.
○ Goodridge v. Dept of Public Health— took up the issue: since civil unions and marriages have identical
legal consequences, what state interest justifies reserving the term “marriage’ for opposite-sex?? Sup Ct
concluded Massachusetts’s restriction of marriage to opposite-sex couples did not satisfy rationality
review.
 Rejected state’s argument that prohibition of same-sex marriage reflected a permissible judgment
that marriage was fundamentally concerned with procreation
 Rejected state’s argument that restricting was to “ensure optimal setting for child rearing”
 Perez v. Sharp – Sup. Ct. of Ca held that prohibition against interracial marriage violated the due
process and equality guarantees of 14th amendment
○ Should SS apply to homosexuals?
 Immutable characteristics
 History of discrimination
 Discrete and insular minority

Note: Strict Scrutiny for Discrimination Based on Sexual Orientation

• Romer and rational basis review
• Strict scrutiny—indicia of suspectness
○ Many argue that the history of hatred agst homosexuals and disability imposed on them does not justify
SS like race and disability and even gender—which are all morally neutral
• Strict scrutiny—discrimination on the basis of sexual orientation as a species of gender discrimination
○ State v. Walsh—law applies equally to men and women bc it prohibits both men and women from
engaging in sexual activity with members of their own sex. Thus, there is no denial of EP on that basis.
○ Loving v. Virgina— statute invalidated, ct held it embodied race discrimination. Ct’s view that a facially
neutral prohibition agst miscegenation supported a system of white supremacy.
• The court’s role
○ There are arguments for treating homosexuals as a suspect class
○ Also arguments for why ct should avoid involvement in this area.

Other Candidates for Heightened Scrutiny

Alienage – legal aliens
• Heightened scrutiny is the appropriate judicial response to efforts by the majority to exclude certain groups from
the political community.
• But many agree that we don’t need to show equal concern/respect for the well-being of everyone
• US v. Verdugo-Urquidez—4th amendment protection agst unreasonable search and seizures does not apply to
search of property owned by nonresident alien in foreign country.
• General agreement that gov’t has some power to define boundaries of the political community within our
territorial limits.

Sugarman v. Dougall
413 U.S. 634 (1973)
The EPC protects aliens as well as citizens
RULE: Classifications based on alienage are subject to close judicial scrutiny (heightened scrutiny).
FACTS:
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 • NY passed a statute that excluded aliens from employment in all gov’t civil service positions that were filled by
means of a competitive examination. The position from which aliens were excluded included the “full range of
work tasks…from the menial to the policy making.”
• The exclusion did not apply to any higher offices in state executive depts. Nor did it apply to elected positions
and offices filled by means of legislative or governor appointment.
PROCEDURE:
• Certification to the US Sup Ct of a DC decision holding unconstitutional a NY (D) stat excluding aliens from
certain employment.
ISSUE: Does the Const permit a flat statutory prohibition agst gov’t employment of aliens in the competitive classified
civil service? [NO]
HOLDING:
RATIONALE: seems like rational basis, but also identify aliens as a suspect class which denotes heightened scrutiny.
• Aliens are entitled to the shelter of EPC.
• NY (D) argues that the statute in question does not violate the EPC bc it “establishes a generic classification
reflecting the special requirements of public employment in the career civil service.”
• NY (D) argues that bc the civil servant participates directly in the formulation and execution of gov’t policy, the
state has an interest in hiring an employee of undivided loyalty for such positions.
• Ct This justification does not make sense when put into context. NY’s (D) broad prohibition of the
employment of aliens applies to many positions with respect to which the State’s proffered justification has little,
if any, relationship.
• At the same time, the prohibition has no application at all to other positions that would seem naturally to fit within
the asserted purpose.
• Standard of review statutes that treat aliens differently from citizens requires a greater degree of precision than is
shown in this instance.
• Graham v. Richardson Rule: Classifications based on alienage are subject to close judicial scrutiny. Aliens are
a discrete insular minority.
• Applying this rule to NY’s (D) statute, we find that it does not withstand the requisite level of scrutiny.
• Recognize that states have an interest in limiting participation in gov’t to those who are within the basic
conception of a political community. States also have an interest in defining this community. But to do so with
discrimination agst aliens, the State must employ means precisely drawn in light of the acknowledged purpose.
• The NY (D) statute is neither narrowly confined nor precise in its application, and as such its flat ban on the
employment of aliens in positions that have little, if any, relation to the state’s legitimate interests cannot
withstand scrutiny under the 14th.
• This is not to say that, on the basis of an individualized determination, an alien may not be refused or discharged
from public employment, even on the basis of non-citizenship, if the refusal to hire, or the discharge rests on
legitimate state interests that relate to qualifications for a particular position or to the characteristics of the
employee. Additionally, do not hold that a state may not, in an appropriately defined class of positions, require
citizenship as a qualification for office. Nor will we say that it is unconst to put a narrowly-defined restriction on
the employment of non-citizens, for alienage itself is a factor that reasonably could be employed in defining the
political community.
DISSENT: (Rehnquist)
• Majority hold an alien is not really diff from a citizen, and any leg classification on the basis of alienage is
inherently suspect.
• EPC contains no language concerning “inherently suspect classifications.” The principle purpose if the 14th
drafters was to prohibit the states from invidiously discriminating by reason of race.
• But there is no lang used in the 14th or any historical evidence as to the intent of the Framers which would suggest
to the slightest degree that it is intended to render alienage a “suspect” classification, or that it was designed in
any way to protect discrete and insular
• minorities.
• In holding as it does, the Ct fails to mention the fact that the Const itself recognizes a basic diff bw citizens and
aliens
• Finally, it is not irrational to assume that aliens as a class are not familiar with how we expect gov’t to be run.
• An alien who grew up in a country in which, for example, bribery or self dealing is not rejected to the degree that
it is here, or in which fewer if any checks existed on administrative abuses, could rationally be thought not to be
able to deal with the public in the same way that one familiar with our gov’t would.
ANALYSIS:
• Sugarman stands for the proposition that the cts exercise a stringent degree of judicial scrutiny in det whether a
classification based on alienage is related to a legitimate political end.
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 • In this case, there was no such relationship as the statute only granted an arbitrary economic preference to
citizens, and thus the statute was struck down.
• An important aspect of this decision in general, and the opinion in particular, is what the Ct did not hold.
○ The Ct notes that it did not hold that an alien may not be refused, or discharged from, public employment,
even on the basis of non-citizenship, if the refusal to hire or discharge rests on legitimate state interests
that relate to qualifications of a particular position or to the characteristics of the employee.
○ Nor did the court hold that a state may not, in an appropriately defined class of gov’t positions, make
citizenship a requirement for employment.
○ Finally, the ct also did not hold that non-citizens have a right to vote in state or fed elections.
• In sum, this is a fairly narrow decision that applies primarily to exclusions from civil service in general, and not
more narrow exclusions.

Note: Strict Scrutiny for Classifications Based on Alienage—Defining the Political Community
• History of discrimination
• Alien as an immutable characteristic
○ Is this reason why we req SS?
○ Nyquist v. Mauclet—under NY law, applicant for state higher education financial assistance must be a
US citizen, made an app for citizenship, or must submit statement affirming intent to apply for citizenship
as soon as qualified to do so. Ct invalidated the law—statute is directed at aliens and only aliens are
harmed by it. The fact that the stat is not an absolute bar does not mean that it does not discriminate agst
the class.
• Aliens as a “discrete” and “insular” minority
○ US v. Carolene Products—Are aliens members of a “discrete and insular minority” hampered by the kind
of prejudice “which tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities?”
 Justice Stone suggested that SS might be appropriate for laws that “restrict those political
processes which can ordinarily be expected to bring about repeal of undesirable legislation.”
• Alienage and the political community
○ In re Griffiths—(same day as Sugarman) the ct held that a state could not constitutionally exclude aliens
from membership in the bar.
○ But in a series of subsequent cases, ct has upheld a number of state restrictions on employment of aliens
on the theory that positions involve the formulation or execution of broad public policy and may therefore
be limited to members of the political community.
 Foley v. Connelie—uphold prohibition of aliens serving on state police force
 Ambach v. Norwick—uphold citizenship req for public school teachers

 Cabell v. Chavez-Salido—uphold citizenship req for probation officer

• Economic vs. political – we r not going to let the state infringe on the rights of aliens in a
purely economic way, but if it is political then it is part of the enumerated powers of the
fed government
• As long as they are permitted to be here they are entitled to EP
• Do these arguments contrast w/ Carolene Products??
○ Bernal v. Fainter—invalidated citizenship req for notaries public.

Note: Alienage and Federal Preemption – look to who is making the law or limitation in this section!
The federal cases
• Matthews v. Diaz—ct upheld a federal statute limiting participation in a federal medical insurance program to
citizens and aliens who had continuously resided in the US for five years and had been admitted for permanent
residence. Bc congress has provided some welfare benefits for citizens does not req it to provide like benefits for
all aliens. It is up to the sovereign to determine immigrant affairs. The court is deferential to Congress (maybe not
so much to the states though in other cases) → Stemming from this case Congress has all the power to do
whatever they want regarding aliens as long as it doesn’t abridge fundamental rights.
• Graham v. Richardson—consistent with Diaz analysis. EP analysis
• Reno v. American Arab Anti Discrimination Committee—in general, aliens cannot challenge deportations on the
ground that they are being selectively prosecuted.
• Hampton v. Mow Sun Wong—ct invalidated a Civil Service Commission policy excluding aliens from most civil
service jobs. Ct acknowledged that there may be an overriding national interest which justify selective federal
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 legislation that would be unacceptable for an individual state. Held—imposition of a citizenship req by the Civil
Service Commission violated DP. As long as Congress would have made this decision based on some rational
reason such as national security or interest, then it probably would have been allowed, but here it was not
Congress and it wasn’t for a rational reason.
The state cases
• Toll v. Moreno—Ct considered a state policy denying in-state status to nonimmigrant aliens for purposes of
qualifying for tuition reductions at state universities. Held the state policy unconstitutional under the supremacy
clause. State regulation not congressionally sanctioned that discriminates agst aliens lawfully admitted is
impermissible if it imposes addt’l burdens not contemplated by Congress. When states bleed over into the areas
of Congress, the Sup Ct. will probably invalidate those state regulations.
• Nyquest v. Mauclet-- State sought to justify its citizenship req for higher education financial assistance on the
ground that it encouraged naturalization and ensured a “degree of national affinity” But the ct rejected this goal as
“not a permissible one for a State. Control over immigration and naturalization…exclusively federal gov’t…”

Wealth Classifications
• Late 50s and 60s, ct repeatedly suggested that classifications based on indigency were suspect.
• More recently, ct has shown increasing reluctance to strictly scrutinize state practices withholding benefits bc of
inability to pay for them.
• Maher v. Roe—every denial of welfare to an indigent creates a wealth classification as compared to non-indigents
who are able to pay for the desired goods or services. But this court has never held that financial need alone
identifies a suspect class for purposes of EP analysis.
• Can we argue poverty as a class deserving of SS?
○ Not an immutable trait
○ Discrete insular minority – no significant political voice
○ Wealth can be proxy for race
○ How do we define who is poor?
○ Washington v. Davis – even if legislation has disparate impact it is not unconstitutional unless it is
intended to be that way to discriminate.
○ Past discrimination against the poor in many respects

Note: Uncertain Protection for the Poor

• Facial discrimination
○ Edwards v. California—ct invalidated a statute barring the brining of indigents into the state.
 A man’s mere property status, w/o more, cannot be used by a state to test, qualify, or limit his
rights as a citizen of the US. Indigence, by itself is neither a source of rights nor a basis for
denying them. The mere state of being without funds is a neutral fact—const an irrelevance.
• Heightened scrutiny for “de facto” wealth classifications
○ Today, more common to see statutes that create de facto wealth classifications either by charging money
for some gov’t service/benefit or by failing to subsidize some activity that can be engaged in only if one
has the money to purchase it in private markets (i.e. exclusion abortion from Medicaid coverage).
○ Late 50s, line of cases suggest de facto wealth classifications were const suspect.
○ Ct hinted strict judicial scrutiny might be appropriate when the state failed to provide the poor with
“necessities”
○ No holding during this time est that it was unconst as a general matter for the state to deny services or
benefits to those who could not pay for them.
○ Ct never suggested that absolute equality was req so long as the poor were not denied minimal benefits.
○ State had an affirmative const obligation to guarantee subsistence to those in need
• The Court’s retreat from heightened scrutiny
○ 1970s—ct veered from earlier suggestions that wealth classifications were never suspect; unwilling to
extend these holdings
○ Ross v. Moffitt—refused to extend Douglas principle to require counsel in discretionary appeals beyond a
first appeal of right.

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 ○ US v. Kras—held there is no general EP principle barring the imposition of filing fees in ordinary civil
litigation, even when they prevent the indigent from securing access to the cts.
○ Dandridge v. Williams—ct turned aside EP challenge to MD’s practice of imposing upper limit on size of
grants under its Aid to Families with Dependent Children Program regardless of the size of the family.
States don’t have limitless funds and the court used rational basis for review.
○ Lindsey v. Normet—ct rejected a const challenge to Oregon’s summary eviction procedures. Assurance
of adequate housing and definition of L-T relationships are legislative, not judicial, functions.
○ San Antonio School District v. Rodriguez—children located in districts with more valuable property
benefited from higher expenditures than children in districts with less valuable property, even though both
districts made the same tax effort. Ct rejected the claim, applying low level scrutiny, upheld the system.
 EPC doesn’t req absolute equality or precisely equal advantages
○ Kadrmas v. Dickinson Public Schools—ct rejected EP attack agst decision of a public school system to
charge a fee for bus service to and from the schools
• Continued protection for the poor?
○ Williams v. Illinois—criminal D cannot be imprisoned for a period beyond the statutory maximum for the
offense for failure to pay a fine
○ Bullock v. Carter—ct extended the scope of franchise cases to invalidate filing fee reqs for candidates
that effectively excluded the poor.
○ Although the ct has shown increasing reluctance to treat the poor as a “suspect” class for EP purposes, it
has sometimes reached the same result thru doctrinal routes.
○ Some cases have extended rights to the poor thru DP analysis.
 MLB v. SLJ—using DP and EP analysis to hold that the state may not condition appeals form
decrees terminating parental rights on the parent’s ability to pay record prep fees.
 Ake v. Oklahoma—DP req the state to pay for psych assistance of counsel on first appeal of
right.
 Bodie v. Connecticut—holding unconst on DP grounds the imposition of ct fees preventing an
indigent from securing a divorce.

Note: Wealth Discrimination and the Problem of Affirmative Rights

• Facial discrimination
○ How do we define the poor as a suspect class? Concept of poverty is inherently relative and is usually
associated with particular goods to which the “poor” are denied access.
○ Fuller v. Oregon—ct sustained an Oregon statute requiring convicted Ds who escaped indigency to repay
the state for the cost of their defense.
○ James v. Strange—recoupment provision violates EP when none of exemptions provided generally for
other judgment debtors are available to indigent Ds
○ Rinaldi v. Yeager—recoupment provision violates EP when limited to Ds confined to state institutions.
• “De facto” wealth classifications and the Washington v. Davis problem
○ MLB v. SLJ—state relied on Washington v. Davis to defend its req that litigants pay record prep fees
before appealing from decisions terminating parental rights.
○ James v. Valtierra—state const amendment provided no low rent housing project should be developed by
a state body until the project was approved by a majority of those voting at a community election. Ps
argue that it violated EP bc other public programs weren’t subject to mandatory referendum provisions,
and they relied on Hunter. Ct upheld the stat. [Like the Hunter v. Erickson case where there was a fair
housing ordinance → here the ordinance was not permissible bc of race classification] Here, stat upheld
bc it was not race, it was wealth classification.
• “De facto” wealth discrimination and the efficient allocation of scarce resources
○ Charging for a gov’t service—might not differential treatment be justified by state desire to allocate scare
resources efficiently?
 Usually regard as fairest/most efficient arrangement to require each consumer to pay full market
price of what he consumes, limiting consumption to income.

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 ○ Draper v. Washington—it defies common sense to think that a moneyed D faced with long-term
imprisonment and advised by counsel that he has substantial grounds for appeal will choose not to appeal
merely to save the cost of a transcript.
○ Smith v. Robbins—?
• The Constitution and affirmative rights
○ Explain wealth cases in terms of a more general principle of const construction under which the Const is
seen primarily as a limitation on gov’t power and not as an affirmative guarantee agst conditions for
which gov’t is not responsible.
○ Issue is the reasonableness of the state’s failure to remove natural disabilities
○ EPC doesn’t impose on States an affirmative duty to lift handicaps flowing from differences in economic
circumstance. Nor does it impose an affirmative obligation to compensate for unequal outcomes
produced by a facially neutral gov’t policy.
○ State action doctrine—Const in general protects individuals from state invasions of their rights and does
not confer a right to affirmative gov’t intervention to remedy privately imposed deprivations
○ Harris v. McRae—ct upheld constitutionality of the so-called Hyde Amendment prohibiting virtually all
fed funding for abortions under the Medicaid program. Freedom of choice doesn’t translate into a const
entitlement to financial resources to avail her of the full range of protected choices. Refusal to fund
protected activities cannot be equated with imposition of a “penalty” on that activity.

Other Disadvantaged Groups

City of Cleburne v. Cleburne Living Center

473 U.S. 432 (1985)
• Proposed operator of group home for the mentally retarded and others brought suit challenging validity of zoning
ordinance excluding such group homes from permitted uses in zoning district in question.
• The home was supposed to be in a residential neighborhood across the street from the school, and in fact some of
the children in the home were attending that school.
• City said they didn’t want the home across the street from the school bc they didn’t want normal kids around it
• State’s argument → (1) didn’t want them around the school, and (2) they wanted to protect the mentally
handicapped.
• The United States District Court for the Northern District of Texas, Robert W. Porter, J., entered judgment
denying relief, and an appeal was taken.
• The Court of Appeals for the Fifth Circuit, 726 F.2d 191, affirmed in part, and reversed and remanded in part.
• After rehearing was denied, 735 F.2d 832, certiorari was granted.
• The Supreme Court, Justice White, held that: (1) mental retardation is not a quasi-suspect classification calling
for a more exacting standard of judicial review than is normally accorded to economic and social legislation, but
(2) requiring a special use permit for proposed group home for the mentally retarded violated equal protection
clause in that requirement, in absence of any rational basis in record for believing that group home would pose
any special threat to city's legitimate interests, appeared to rest on an irrational prejudice against mentally
retarded.
• Used Rational Basis Plus review
• Affirmed in part and vacated in part.
• Should we use SS? Yes, bc they have been historically discriminated against, but court does not see it that way.

Note: Evaluating the Claims of other Disadvantaged Groups

• Mentally retarded as a suspect class
○ Tennessee v. Lane—ct rejected a const attack on Title II of the ADA 1990 which prohibits qualified
persons with disabilities from being “excluded from participation or denied the benefits of the services,
programs or activities of a public entity” as applied to physically disabled individuals who claimed that
their disabilities prevented them from gaining access to state courthouses. Found that ADA was a
permissible congressional effort to enforce the access of courts guaranteed by DP of law.
○ Board of Trustees of the Univ. of Alabama v. Garrett— held that: (1) states are not required by the
Fourteenth Amendment to make special accommodations for the disabled, so long as their actions
towards such individuals are rational; (2) the legislative record of the ADA fails to show that Congress
identified a pattern of irrational state discrimination in employment against the disabled, and thus did not
support abrogation of the states' Eleventh Amendment immunity from suits for money damages under
Title I of the ADA; (3) Congress' § 5 enforcement authority under the Fourteenth Amendment is
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 appropriately exercised only in response to state transgressions, and not constitutional violations by units
of local governments; and (4) in any event, the rights and remedies created by the ADA against the states
raised concerns as to congruence and proportionality, supporting determination that Congress did not
validly abrogate the states' immunity.
• Other potentially suspect classifications
○ Ct has invalidated a number of stats disadvantaging non-marital children, but ct has refused to elevate
discrimination agst this group to “suspect” status, it has at least on one occasion elevated it above RBR.
○ Court has awarded a heightened scrutiny though…
 Levy v. Louisiana—invalidating statute that excluded non-marital children from coverage of
wrongful death statute.
 Weber v. Aetna Causalty & Surety Co.—exclusion from workers comp invalidated.
○ Massachusetts Board of Retirement v. Murgia—ct rejected the argument that the aged were entitled to
special judicial solicitude.
○ Vance v. Bradley—using RBR to uphold fed law req Foreign Service personnel to retire at 60.
• The relevance of suspectness
• Are the scrutinies consistent? Internally? W/ each other?
• Are they applied consistently? The same way each time?
• EP and DP are not that different.

Unite 10 Implied Fundamental Rights

Theories of Constitutional Interpretation

• Difference bw DP and EP – law review article from beginning of class discusses this
• Interpretation of the CON:

Originalism
• Embodies the view that judges deciding constitutional issues should confine themselves to enforcing norms that
were stated or clearly implicit in the Constitution, as it was understood by those who ratified it.
○ Critics argue that the task of interpretation authorizes courts to make particular judgments not foreseen
by, or even contrary to, those of the Constitution's ratifies.
• Reasonable doubt as to whether the "original intent of the framers" support decisions outlawing racial
segregation; right to privacy; affording women the right to vote; protecting commercial, libelous, and sexually
explicitly speech; ad applying the bill of rights to speech.
• Soft originalists believe that the original understanding is important not for particular answers to particular
questions but in order to get a general sense of purposes and aspirations.
○ Most justices are (at least some of the time) soft originalists
○ Scalia and Thomas have been the most consistent advocates of hard originalism.
• This theory of thought promotes democratic values because it ensures that judicial judgments can be traced to
democratic judgments and also that it promotes values associated with the rule of law, because it ensures what
Justice Scalia describes as a "rock-hard, unchanging" Constitution
• Scalia argues that an originalist "at least knows what he is looking for: the original meaning of the text"
• Problems with originlism
○ In deciding on the original understaning, who count?
 Only those who drafted the provision?
 Those who voted against it?
○ What is the relevant psychological state?

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  Are we interested in what legislator expected the provision to do?
○ What combination of individual intentions is controlling?
○ Are we interested in abstract or concrete intentions?
• A lot of people think this view is of judicial restraint and sticking directly to the words of the constitution
• No 2 justices interpret the constitution in the same way and are not consistent in themselves from case to case.
Natural Law
• The concept of a "higher law" and protecting "natural rights" and taking precedence over ordinary positive law as
a matter of political obligation, was widely shared and deeply felt.
• Based on general morals and general views of right and wrong that human beings have in them
• What reflects natural law? Hard to write down in words bc everyone’s view of natural law is a little different.
• Framers took note of the natural law and presumed it would be read into the constitution.
Moral Arguments and the search for "integrity"
• Government should serve not only what we conceive from time to time to be our immediate material needs but
also certain enduring values.
• Dworkin's theory of interpretation
○ To simplify a complex account, asks judges to provide the best constructive account of existing legal
materials by putting constitutional text, and constitutional precedents, in the best possible lights
○ Two major obligations
 To fit the exisiting legal materials and to "justify" them by making them sensible and good rather
than senseless and bad.
 They have obligations to constitutional text and history, but they also have an obligation to make
the system fair and just rather than the opposite.
Tradition
• The relevant past for purposes of constitutional law, thus, is to be found not only in the intentions of those who
drafted and ratified the document but in the entirety of out history.
Common law and Consensus
• Constitutional law is a common law process in which judgments emerge from particular cases rather than from
text or history.
• The Court's task is to ascertain the conventional moralisty and to covert moral principles into legal ones by
connecting them with the bod of constitutional law.
Representation-reinforcement
• The trick task is to devise a way of protecting minorities from majority tyranny that is not a flagrant contradiction
of the principle of majority rule.
Non-originalists rarely believe that judges should entirely abandon the original understanding and they almost always
believe that the text is controlling.

What is the difference bw state and nation citizenship?

Slaughter House Cases

83 U.S. 36 (1873)
RULE:
• The 13th & 14th amendments are to be read narrowly to apply only to former slaves and African Americans
• Province of the states to protect individual rights and not the national government.
FACTS: (butchers v. State of La)
• In 1869, La enacted a law that chartered a corp. and granted to it a 25-year monopoly to maintain slaughterhouses
and stockyards in an area that included the city of New Orleans
• The primary purpose of the law was to remove noxious slaughterhouses from the more densely populated part of
the city
• Butchers not included in the monopoly claimed that the law deprived them of the right to exercise their trade
• The claim was that the law created an "involuntary servitude" in violation of the 13th Amendment, and it
violated the 14th Amendments by abridging the privileges and immunities of the citizens of the United
States, by denying equal protection and by depriving them of their property without due process.
PROCEDURE: highest state court sustained the law, and the Supreme Court granted cert
ISSUE: Do the 13th & 14th Amendments make the procedural guarantees of the Bill of Rights applicable to the states?
HOLDING: NO → The 13th & 14th Amendments are to be read narrowly to apply to only former slaves and African-
Americans
RATIONALE:

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 • The 13th & 14th do not make procedural guarantees of the Bill of Rights applicable to the states.
• 3 post-Civil War amendments were enacted to abolish and remedy the effects of African slavery in this country
• 13th forbids all shades and conditions of African slavery.
• It should not be read broadly to prohibit all servitudes, but only involuntary individual servitudes.
• 14th was to protect those freedoms extended to the newly-free man from oppressions of bad white men, who
adopted state legislation that curtailed the former slaves’ rights to the pursuit of life, liberty and property.
• If the privileges and immunities clause was intended to protect state citizens against state legislative power, it
would have been expressly stated in this fashion.
• Finding the Louisiana law unconstitutional would mean the court became a perpetual censor upon all legislation
of the states, on the civil rights of their own citizens.
• No such results were intended by the Congress which proposed these amendments
• our holding does not eviscerate the privileges and immunities clause
• There are indeed privileges and immunities of the citizens of the US, including the care and protection of the fed
gov over a citizen’s life when on the high seas or w/in the jurisdiction of a foreign gov.
• w/ respect to the DP argument, we have never seen any construction of those provisions that would bring La’s
restraint w/in the meaning of the provision.
• And we doubt very much that any state action that did not directly discriminate against the Negroes as a class
would ever be held to violate the 14th amendment’s EP provision
• The EP provision was clearly intended to remedy the emergency of states enacting discriminatory leg against
former slaves.
• Affirmed.
DISSENT:
(Field)
• The question presented, whether the recent amendment protect the citizens of the US against the deprivation of
their common rights by State leg, is one of gravest importance
• Majority’s holding renders the 14th amendment’s privileges and immunities clause a vain and idle enactment, as
states were already precluded from interfering w/ the general privileges and immunities belonging to citizens of
the US
• I think that the amendment assumes the states shall not abridge the natural and inalienable rights which belong to
all citizens
• The privileges and immunities designated are those which of right belong to the citizens of all free govs, including
the right to pursue lawful employment
• Article IV, Sec. 2 of the CON protects citizens of one state against hostile and discriminating leg of other states
• The 14th amendment extends the protection to every citizen against hostile and discriminating against the citizen
and in favor of others, whether they reside in the same or different states
• La’s law violates the right of free labor and should be declared unconstitutional.
(Bradley)
• 14th amendment was intended to provide security against the violation by the states of the fundamental rights of
the citizen
• Any law which establishes a sheer monopoly, depriving citizens of the privilege of pursuing lawful employment,
does abridge the privileges of those citizens, and does deprive them of liberty and property w/out due process of
law
• Such a law also deprives them of EP protection of the laws
• It is futile to argue that none but persons of the African race are intended beneficiaries of this provision
ANALYSIS:
• This case reflects an important debate regarding the purpose and extent of the 13th and 14th amendments
• The amendments were passed in response to slavery and the problems inherent in emancipation
• In particular, the amendments sought to thwart the “black codes” of several states that perpetuated racial
discrimination
• According to the majority, the amendments should be limited to remedy such discrimination, while the dissenting
justices adopt a broader interpretation
• In order to understand the majority position, it is important to remember that this case arose immediately after the
end of the Civil War and the post-war amendment
• The majority’s narrow reading is based on this historical timeframe
• The dissents’ broad readings find support in the general, sweeping language of the amendments
• The language of the 14th amendment, in particular, is not limited to the problems of race or the previous condition
of servitude

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 • The amendment’s general language eventually prompted widespread adoption of the broad reading urged by the
dissent in this case
• Until the mid-1930s the DP clause was read to impose substantive limits on state economic regulation
• In more recent times, the clause has been read to uphold substantive rights, including the right to privacy
• In general, the 14th amendment now is read to make most of the Bill of Rights’ procedural and substantive
guarantees applicable to the states
• The privileges and immunities clause, on the other hand, remains limited to only a few rights of national
citizenship. – it is now basically useless.
• Section 5 of the 14th amendment gives Congress the right to ensure these rights through legislation
• 14th amendment was supposed to shift authority from the state to national government to protect individual rights.
• Based on the right to work.

Alternative Interpretations
• One of the chief's main objects that the 14th Amendment's first section was intended to accomplish was to make
the Bill of Rights applicable to the states. Adamson v. California

Incorporation Controversy
• Barron v. Baltimore - The court held that the rights guaranteed in the first eight amendments do not apply to the
states.

Barron v. Mayor and City Council of Baltimore

32 U.S. (7 Pet.) 243 (1833)
Facts:
• Barron believed that municipal street construction by the City had diverted the flow of streams which caused silt
deposits in front of his wharf.
• This made the water too shallow for boats to moor up which caused his business to cease.
Issue(s): Whether the protections of 5th Amend of the U.S. Const. apply to the citizens agasint the actions of state
government?
Holding: The Just Compensation provision of the 5th is intended solely as a limit on the exercise of power by the federal
government, and not applicable to the legislation of the states.
Procedure: Barron sued City of Baltimore. Cnty Ct granted verdict for Barron $45K. State Circuit Ct reversed. Writ of
Error U.S. S.Ct. C: No jurisdiction over the case.
Rule(s): 5th Amendment just compensation clause does not apply to the states
Rationale:
• The U.S. Const was established by the people of the U.S. for themselves, for their government, and not for the
government of the individual states.
• Each state enacted their own constitution to provide specific limitations and restrictions on its own governments.
• The powers conferred under the federal constitution were to be exercised by that government.
• Any limitations granted therein are not limitation on distinct state governments.
• The 5th Amend. must be understood as a general limit on the power of the general government, and not
applicable to the states. Had the framers intended such a result, they would have included that intentions
• Pl's A: The state court failed to protect P's property under the Fifth Amendment's Just Compensation Clause
(cannot take private property for public use without just compensation)
Analysis:
• At the time and using the original intent of the framers, this case was properly decided because the framer's
believed that CITIZEN CONTROL OVER STATE GOVERNMENT is embodied in the state government.

Murray v. Hoboken Land & Improvement Co. 59 U.S. 272 (1856)

• The words "due process of law" were undoubtedly intended to convey the same meaning as the words, "by the
law of land" in the Magna Charta.
• There is no description of those processes which it was intended to allow or forbid.
• Must look to the common and statute law of England
○ To determine which processes have been unsuited to their civil and political condition by having been
acted on by them after the settlement of this country.

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Twining v. New Jersey, 211 U.S. 78 (1908)
• The main issue was whether "The Supreme Court weighed whether the trial judge's instructions violated the Fifth
Amendment privilege against self‐incrimination and, if so, whether that provision was incorporated by the
Fourteenth Amendment against state action."
○ The instruction was that the jury might draw an unfavorable inference against the defendant from their
failure to testify.
• The New Jersey courts did not violate their own interpretation of that self-incrimination privilege and,
consequently, the "exemption from compulsory self‐incrimination in the courts of the States is not secured by any
part of the Federal Constitution"
○ It is not a fundamental right in the due process of law.

Palko v. Connecticut, 302 U.S. 319 (1937)

• a United States Supreme Court case concerning the incorporation of the Fifth Amendment
protection against double jeopardy.
• Facts:
○ In 1935, Frank Palko, a Connecticut resident, broke into a local music store and stole a radio,
proceeded to flee on foot, and when cornered by law enforcement, killed two police officers and made his
escape.
○ Palko was charged with first-degree murder but was instead convicted of the lesser offense of
second-degree murder and given a sentence of life imprisonment.
○ Prosecutors appealed per Connecticut law and won a new trial, in which Palko was found guilty of
first-degree murder and sentenced to death.
○ Palko appealed, arguing that the Fifth Amendment protection against double jeopardy applied to state
governments through the Due Process Clause of the Fourteenth Amendment.
○ The court had previously held in the Slaughterhouse cases that the protections of the Bill of
Rights should not be applied to the states under the Privileges or Immunities clause, but Palko
held that since the infringed right fell under a due process protection, Connecticut still acted in violation
of the Fourteenth Amendment.
• Holding:
○ Due Process Clause only protected those rights that were "of the very essence of a scheme of ordered
liberty," and that the court should therefore gradually incorporate the Bill of Rights onto the States as
justiciable violations arose, based on whether the infringed right met that test.
○ Applying this subjective case-by-case approach (selective incorporation) the Court upheld Palko's
conviction on the basis that the Double Jeopardy protection was not "essential to a fundamental scheme of
ordered liberty." The case was decided by an 8-1 vote

Adamson v. California, 332 U.S. 46 (1947)

• A United States Supreme Court case regarding the incorporation of the Fifth Amendment of the
Bill of Rights into States.
• Justice Black's dissent: TOTAL INCORPORTATION
○ the Fourteenth Amendment should be read as guaranteeing that "no state could deprive its citizens
of the privileges and protections of the Bill of Rights."
○ Black believed that the framers of the Constitution had intended for the Bill of Rights to apply to all
citizens and advocated applying all of the Bill of Rights to the states.
○ If the choice must be between the selective process of [ Palko v. Connecticut ] applying some of the
Bill of Rights to the States or the Twining rule applying none of them, I would choose the Palko
selective process. But rather than accept either of these choices, I would follow what I believe was
the original purpose of the Fourteenth Amendment- to extend to all of the people of the nation the
complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions,
of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a
written Constitution.
• Justice Frankfurter's concurring opinion: Attack against total incorporation
○ The Fourteenth Amendment could not and was not intended to apply all of these rights to states
without limitations.

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 ○ To suggest that such a limitation on immunity can be drawn out of "due process" in its protection of
ultimate decency in a civilized society is to suggest that the Due Process Clause fastened fetters of
unreason upon the States
○ while Adamson's rights may have been violated had the case been tried in federal court, the rights
guaranteed under the Fifth Amendment did not extend to state courts based on the due process
clause of the Fourteenth Amendment
○ The Court also found that while the Fourteenth Amendment guaranteed all rights under the first ten
amendments to people under the federal government, the Fourteenth Amendment did not guarantee
all of these rights to defendants under the individual state governments
Duncan v. Louisana, 391 U.S. 145
Facts:
• Duncan, an African American, was driving in Louisiana when he noticed his cousins in an altercation with some
white teens.
• His cousins had moved to an all white school. One of the white boys alleged that Duncan slapped him while
leaving the scene and Duncan was charged with assault and battery.
• The African Americans testified that Duncan had not slapped one of the boys, but had merely touched him.
• The Louisiana Court denied a jury trial, because under the Louisana Constitution individuals were only
guaranteed jury trials in cases in which, "capital punishment or imprisonment at hard labor..." may have been
imposed.
Rule: The 6th Amendment right to jury trial is applicable to the states via the 14th Amendment due process clause

Rationale:
• The test for determining whether a right extended by the 5th and 6th Amendments with respect to federal criminal
proceedings is alsop protected against state action by the 14th Amendment has been phrased in avariety of ways in
opinions of this Court.
• Trial by jury in criminal cases is fundamental to the American scheme of justice.

Lochner v. NY (1905)
High court frowns on state's attempt to set max hours limit for bakery employees
RULE -- legislation enacted using a state's police powers that interferes with an individual's right to contract must
directly relate to the goal of protecting public health or safety and must have an appropriate and legitimate end.
FACTS:
• State of NY (D) passed law limiting the number of hrs an employee of a bakery may work to no more than 60 hrs
per week or 10 hrs per day.
○ Employer cannot demand it
○ Employee cannot agree to it
• Lochner (P), the owner of a bakery, was convicted of violating the statute (misdemeanor) for allowing his
employees to exceed the max hrs limit.
• Lochner appealed his conviction.
PROCEDURE: appeal from conviction by state court for violating max hrs labor act.
ISSUE: is a state law setting max hrs employees can work in a given field a valid and reasonable exercise of that state's
police powers?
HOLDING: NO ---> statute infringes upon the right to contract enjoyed by both the bakery owner and employees.
[meddlesome interference with the right of the individual]
• Right to make a contract in relation to one's business is protected by 14th amendment
• State has the power though to limit the ability of its citizens to make certain kinds of contracts, and if restriction is
a valid exercise of state's police powers, 14th amendment offers no protection.
• The courts have to determine which right prevails: right of state to exercise police powers or right of citizens to
contract as they see fit
• Holden v. Hardy -- right of Utah to restrict number of hrs worked by miners as valid exercise of police powers.
• Upheld b/c of the kind of work being done, characteristics of which made it reasonable to restrict the max hrs a
man could spend working in mine.
• There is a limit to exercise of state's police power -- otherwise the 14th amendment would be superfluous.
• Police power must be more than a pretext.
• When it is claimed that the state's exercise of police power infringes a protected liberty the court must decide
whether the law is fair, reasonable and appropriate.
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 • Here, there is no reasonable ground for interfering with an individual's liberty by setting the hrs that individual
may work simply b/c it is in a bakery. Rule does not involve the safety, morals, or the general welfare of the
public.
• If you can't show the number of hours related to the health or safety of people then it is overstepping authority of
state legislature.
• Bakers are not in a class of people that need to be protected.
• The police powers may not be used as a pretext for passing laws, and it is the duty of this court to intervene when
the legislature oversteps its bounds.
• Looking at times this case was decided the court wanted to make sure that newly emancipated slaves had the right
to K their work or property.
• In Slaughterhouse, only a short time before this the court decided that the states can regulate work, but now they
are saying they can’t regulate…this decision comes from natural law.
• Court did actual purpose review in the rational basis test…they saw the enforcement of health and safety was only
used as a pretext to interfere w/ personal liberty.
DISPOSITION: reversed
DISSENT (Holmes):
• Majority imposes its own view of the nation's economic policy, that of laissez-faire, on NY state.
• Constitution not meant to be a tool by which courts impose and/or favor an economic theory of any kind
• Rather, a law should be struck down when it can be said that a rational and fair man necessarily would admit that
the law proposed would infringe fundamental principals that have been understood by the traditions of our people
and our law.
• It is not for the court to strike down a law for infringing on an economic policy that the nation itself has not
adopted.
• 14th amendment is not meant to prevent the natural outcome of a dominant opinion, by perverting the word
"liberty"
• b/c reasonable men of rational minds could not find this law to be unreasonable, would uphold it.
• This decision should be reserved for the legislature
DISSENT (Harlan):
• By striking down the law the majority overlooks that this law reflects the belief by the people of NY that bakers
who work more than 60 hrs a week or 10 hrs a day are subject to health hazards by virtue of their labor. --
breathed in flour all day long.
• Strongly disagree that the law was passed as a mere pretext of protecting the public's health.
• Would uphold b/c there is no evidence that it is plainly inconsistent with the constitution.
• Bakers need protection.
NOTES:
• This case began the substantive due process era of the Supreme Court (Lochner era)
• Era where the court applied a heightened strict scrutiny test to determine whether a law infringed upon an
economic liberty
• Lochner test was extremely stringent in 2 ways:
○ Required a very close "fit" between the statute and its objectives.
○ Only certain legislative objectives were acceptable. Health and safety was allowed, but readjustment of
economic power or economic resources was not
• Most clearly defined that we are due a substantive due process right
• By imposing due process right by the court, the court is usurping the power of the legislature.
• In the Lochner era, it was a actual purpose review for almost all of these cases and the court actually acted in a
legislative manner.
• First case that is clear in its assertion, but it wasn’t the first to suggest this.
• Demise of Lochner happened in the New Deal era.
• Do we have the due process right to K today?
○ We have a right to K today, but it is limited to police power regulation by the state
○ Concept of pulling fundamental law out of natural law started with this case, and still survives today even
though this case is dead.

Nebbia v. NY
The New York Legislature passed a Milk Control Law that established a Milk Control Board with the power to fix
minimum and maximum retail prices charged by stores to consumers for milk. Defendant was a storekeeper who was
found to have sold milk for less than the price fixed by the Board's order. Defendant asserted that the statute and order

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violated the equal protection clause and the due process clause of the Fourteenth Amendment. The Court held that the
contention that discrimination deprived defendant of equal protection was not well founded because there was no showing
that the order placed him at a disadvantage or affected him adversely. As the dairy industry was one subject to regulation
in the public interest, there was no constitutional principle barring the state from correcting existing deficiencies by
legislation fixing prices. In light of the fact that the board's order was not unreasonable or arbitrary and that constitutional
due process protections did not prohibit the state from fixing the selling price of milk, defendant's conviction was
appropriate.

West Coast Hotel Co. v. Parrish

A female employee filed an action for back wages under the Washington Minimum Wages for Women Act. The Supreme
Court held that the Act did not violate the Due Process Clause of the Fourteenth Amendment because it was a valid
exercise of the state's police power to protect the health and safety of women. The Court reasoned that the state had a valid
interest in the wages paid to women because their support would fall on the state if women were not paid adequate wages.
The Court specifically overruled a case relied on by the employer which held that minimum wages laws for women were
an unconstitutional burden on the right to contract. The Court reasoned that the case could not stand because employers
and employees did not stand on equal footing in the contract process, and the state's interest in the protection of women
was valid. The Court held that equal protection was not violated because there was no doctrinal requirement that required
the legislation to be couched in all-embracing terms. The Act was directed at a social position unique to women, so the
Act did not constitute arbitrary discrimination.

Unit 11 Fundamental Rights and Equal Protection

Fundamental Interests and the EP Clause

• 2 basic models of equal protection analysis – (1) focuses on classification based on race or other “suspect” criteria
[TEST = varying forms of SS], and (2) focuses on classifications in the economic and social realm that do not
involve “suspect” criteria [TEST = highly deferential rational basis]
• QUESTION: should the degree of scrutiny vary not only w/ the suspectness of criterion on which classification is
based but also w/ the importance or fundamentality of that interest that is distributed or affected unequally?
• Buck v. Bell – the Court upheld a Va statute authorizing the sterilization of inmates of state institutions who were
found, after a hearing, to be afflicted w/ a hereditary form of insanity or imbecility. J. Holmes wrote: “it is better
for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of
imbeciles are enough.

Skinner v. Oklahoma
316 U.S. 535 (1942)
The guarantee of EP of the law is a pledge of the protection of equal laws
RULE: When the law lays an unequal hand on those who have committed intrinsically the same equality of offense
and puts extra punishment on one and not the other, it has made an invidious discrimination.
FACTS:
• During the 30s and 40s, Oklahoma had on its books the Habitual Criminal Sterilization Act. That Act permitted
the Atty Gen of the State to initiate proceedings agst habitual criminals that would render the criminal person
sexually sterile
• Any person designated as a habitual criminal and who could be rendered sexually sterile without detriment to his
or her general health, was a candidate for the process.
• The Act directed that men were to be rendered sterile by vasectomy, and females by salpingectomy. It also
provided that “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or
political offenses, shall not come or be considered within the terms of this Act.”
• 1926, Skinner (D) was convicted of stealing chickens, and in 1929 and 1934 he was convicted of robbery with a
firearm. 1936—Atty Gen instituted sterilization proceedings agst him.
• No white collar felonies, but all felonies committed 3 or more times.
PROCEDURE:
• The Sup Ct of Oklahoma affirmed a lower ct judgment agst Skinner (D) directing the performance of vasectomy.
• Skinner (D) appealed.
• Certification to the US Sup Ct of an OK Sup Ct decision affirming an order mandating sterilization.
ISSUE: Can a law that provides a very different punishment for those who have committed intrinsically the same quality
of offense withstand judicial scrutiny? [NO]

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RAITONALE:
• While a number of justifications—cruel and unusual punishment— for striking down this Act have been put forth,
we strike this act on a different ground. The act in question fails to meet the reqs of EPC of the 14th.
• There are a number of inequalities in this act that req us to strike it down
○ The fact that it does apply to larceny but not to embezzlement. Both involve taking money from another
and both are felonies, yet only one subjects to sterilization. A thief could 3x take money from another
and be subject to sterilization, while an employee could 3x take the money from his employer and not be
subject to sterilization. True regardless of the habitual nature of the employee’s embezzlement.
• Even though past case law reqs that we give deference to leg decisions, and use the EPC as “the usual last resort
of const arguments,” the instant legislation must be struck down.
• We are dealing with legislation that involves one of the basic civil rights of man—marriage and procreation.
• The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects.
• There is no redemption for the individual whom the law touches, as any experiment which the State conducts is to
his irreparable injury and deprivation of liberty.
• Emphasize view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest
unwittingly, or otherwise, invidious discriminations are made agst groups or types of individuals in violation of
the const guarantee of equal and just laws.
• When the law lays an unequal hand on those who have committed intrinsically the same equality of offense and
sterilizes one and not the other, it has made an invidious discrimination.
• OK (P) makes no attempt to say that he who commits larceny by trespass has biologically inheritable traits which
he who commits embezzlement lacks. We have not the slightest basis for inferring that the line has any
significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the
law has marked bw those two offenses.
• In terms of fines and imprisonment, the penalties for each are the same. Only when it comes to sterilization are
the pains and penalties different.
• The EPC would be a formula of empty words if such conspicuously artificial lines could be drawn.
CONCURRENCE: (Stone)
• Concur in the result but don’t think we should use EPC to get here. The rel question is whether the wholesale
condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that
his isn’t the type of case which would justify resort to it, satisfies the demands of DP.
• A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present bc
some or even many merit condemnation, is lacking in the first principles of DP.
• The state is called on to sacrifice no permissible end when it is req’d to reach its objective by a reasonable and
just procedure adequate to safeguard rights of the individual which concededly the Constitution protects.
ANALYSIS:
• Landmark case—
○ (1) in finding that some rights deserve special judicial protection from the legislative process, Skinner
helps to est the basis for fundamental rights analysis under the EPC—it was one of the first cases to point
out there exist some fundamental interests that the gov’t cannot take away w/o meeting a very significant
burden.
○ (2) Also holds that procreation is a right deserving of special const significance—a fundamental interest
or right.
• Putting these two ideas together, in this case the Court held that the fundamental right of procreation deserves
special judicial protection to the degree of strict scrutiny analysis.
• This case has also been cited as support for the proposition that the gov’t cannot control a person’s right to decide
what should be done with his/her reproductive capabilities. Teamed with Roe v. Wade to support a woman’s
right to abortion under the guise of a woman’s right to decide how her reproductive capabilities will be utilized.
• On the flip side, it’s important to note that while OK sterilization law was held unconstitutional, the Ct never said
that involuntary sterilization is per se unconstitutional. It simply held that laws which subject a particular class to
sterilizations must serve a compelling gov’t interest sufficient to justify the classification.
• Procreation is an implied fundamental right under the CON
• Almost always cited for DP right to procreate even though, it is decided on an EP basis

Note: The Fundamental “Right to Have Offspring”

• Court in Skinner did not address 3 objections to the CON of the Act that did not involve EP clause.
○ (1) Act cannot be sustained as an exercise of the police power, in view of state of scientific authorities
respecting inheritability of criminal traits

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 ○ (2) DP is lacking bc, under this Act, unlike act upheld in Buck v. Bell D is given no opp to be heard on the
issue as to whether he is the probable potential parent of socially undesirable offspring
○ (3) Act is penal in character and that the sterilization provided for is cruel and unusual punishment.
• Court in Skinner was moved to recognize the fundamental personal character of a right to reproductive autonomy
in part bc of fear about the invidious and potentially genocidal way in which gov control over reproductive
matters might be exercised if the choice of whether or when to beget a child were to be transferred from the
individual to the state.

Voting
• Carolene Products (Footnote 4) – Stone suggested that there may be a narrower scope for operation of the
presumption of constitutionality when leg restricts those political processes which can ordinarily be expected to
bring about repeal of undesirable leg. He offered restrictions on right to vote as specific example.
• No fundamental right to vote bc the CON says that states have the right to regulate it.
• We have come to understand that we now have a fundamental right to vote thanks to the amendments over the
years
• Important for the states still to be able to regulate who gets to vote bc it is such a huge admin task and it is
important that only people interested in that election for the right reasons should get to vote.
Denial of the Right to Vote
• Original CON left it to the states to det qualifications of voters for both national and state elections.
• 14th amendment did not directly prohibit discrimination in voting, but §2 provided for a reduction in
representation in the House of Reps in proportion to the number of “male inhabitants in the state, being 21, and
citizens of the US” who were not permitted to vote.
• 15th amendment → right of citizens to vote shall not be abridged on account of race, color or previous condition of
servitude.
• 19th amendment → right to vote shall not be denied on account of sex
• 24th amendment → right to vote for president, vice-president, or members of Congress shall not be denied by
reason of failure to pay a poll tax or other tax.
• 26th amendment → right of any citizen 18 years of age and older to vote shall not be denied or abridged on
account of age.
• Breedlove v. Suttles – court unanimously upheld a Ga stat req the payment of $1 poll tax as a precondition of
voting.
• Lassiter v. Northampton County Board of Elections – court unanimously upheld a NC stat providing that to be
eligible to vote an individual must be able to read and write any section of the state constitution in the English
language. Court said in our society where newspapers, periodicals, books, and other printed matter canvass and
debate campaign issues, a state might conclude that only those who are literate should exercise the franchise.
• Reynolds v. Simms – a decision involving dilution of the right to vote, court observed: the right of suffrage is a
fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free
and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the
right of citizens to vote must be carefully and meticulously scrutinized.

Harper v. Virginia State Board of Elections

383 U.S. 663 (1966)
Poll taxes as a precondition for voting are unconstitutional.
RULE: Voter wealth or the payment of any fee cannot be made a precondition for voting.
FACTS:
• Virginia (D) charged all residents over 21 a $1.50 poll tax as a precondition for voting.
• Harper (P) sued, alleging that the poll tax violated EP.
PROCEDURE:
• DC dismissed the suit, following a 1937 Sup Ct decision, Breedlove v. Suttles [upholding a GA poll tax].
• Appeal from dismissal in EP challenge to poll tax
ISSUE: May a state impose a poll tax as a condition of voting? [NO]
HOLDING: Voter wealth or payment of any fee cannot be made a precondition for voting.
RAITONALE:
• Once the right to vote has been granted to the electorate, state may not draw lines which are inconsistent w/ EP.
• Whenever the affluence of the voter or payment of any fee are used to det who is eligible to vote, EP is violated.

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 • The right to a free and unencumbered vote is fundamental, especially bc that right is preservative of all other basic
political rights.
• Thus, restrictions on the right to vote must be closely scrutinized and carefully confined.
• Like race, wealth has nothing to do with a voter’s ability to participate intelligently in the electoral process.
• Poll tax constitutes an invidious discrimination that runs afoul of EP.
• Ideas about what kinds of equal treatment are req by EP are not fixed; rather, they change over time.
• EP reqs that the right to vote be unburdened. To the extent that Breedlove sanctioned the use of poll taxes as a
prerequisite for voting, it is overruled
DISSENT:
(Black)
• Poll taxes are rationally related to both a state’s desire to collect revenue and its belief that such taxes separate out
those voters who are not truly interested in furthering the state’s welfare when they vote.
• No invidious purpose here.
(Harlan)
• This poll tax is rationally based on Virginia’s (D) interest in weeding out those who do not care enough about
civic affairs to pay the tax. The majority is basing its ruling on modern notions about what makes good policy.
ANALYSIS:
• Ruling here based on two modes of analyses:
○ Fundamental rights
○ Suspect classifications
• Ct noted that classifications based on wealth, like those based on race, are traditionally disfavored.
• The fundamental rights analysis, however, has been the one followed by the court in its subsequent decisions on
voting rights and restrictions on the franchise.
• Harper marked one of the early Sup Ct interventions into voting schemes: Before the 1960s, the ct had been more
deferential to State regulations regarding voter qualifications. One reason for that deference was the Const itself,
which expressly delegated to the states the power to est their own qualifications for voting in both state and
federal elections.
• That Const provision was pointed out by the dissenters in Harper, who argued that the majority was going beyond
text to make new law based entirely on its own policy preferences.
• Poll taxes are rational bc they help with admin fees, but this case was decided under SS bc of the basis of a
fundamental right making it a SS standard.

Doctrine:
• Equal Protection Classifications:
○ Rational basis – rationally related to a legitimate gov purpose or the ends (means ends rationality)
 Deferential
 W/ Bite or Plus – form of heightened scrutiny that looks to see if the purpose claimed is actually
met
 Applicable to: economic, social, everything else not mentioned below
○ Intermediate Scrutiny – an important gov interest must be met by substantial relation by the leg
 Illegitimacy
 Gender
 Occasionally wealth (not called intermediate scrutiny)
 Candidates: sexuality, age
○ Strict Scrutiny – leg must be narrowly tailored to meet a compelling gov interest
 Race
 Alienage
 Fundamental rights (implied or express)

Note: Is the Right to Vote “Fundamental”?

• Why are these cases so inconsistent?
• Reynolds v. Sims – in his dissenting opinion J. Harlan argued that EP clause was never intended to inhibit the
states in setting the qualifications for voting. He emphasized several factors:
○ §2 of 14th expressly recognizes the power of the states to deny the right to vote and expressly provides a
remedy for such denial – a proportionate reduction in their representation in Congress
○ Debates on the amendment reflected the power of a state to withhold the right to vote

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 ○ Adoption of the 15th, which guarantees right to vote to blacks, only 2 years after the adoption of 14th
demonstrates that the framers of the 14th did not intend it to guarantee the right to vote.

• Bush v. Gore – Supreme Court in 5-4 decision held that the failure of FL court to specify the standards for det
which votes would count violated the EP clause. Thus, recount could not proceed.
○ “when the state legislatures vests the right to vote for president in its people, the right to vote as the
legislature has prescribed is fundamental, and one source of its fundamental nature lies in the equal
weight accorded to each vote and the equal dignity owed to each voter”
○ under the electoral college system, the private individuals constitutional right to vote in a presidential
election depends upon the state legislatures use of statewide process to choose the members of the
electoral college-A2.1, thus currently not federal constitutional right s to vote for electors for Pres of US
○ although history now favors the appointment of electoral college members by the citizens, states do hold
the power to the members without a public vote
○ McPherson v. Blacker: state legislatures have power to select the manner for appointing electors,
which indeed was the manner used by state legislatures for years after framing of our CON
○ once a state enfranchises its citizens with the right to vote (A2), however, that right becomes fundamental,
and the state must afford equal weight to each vote by all citizens
○ similarly, equal protection requires that a state choosing to later disenfranchise its citizens must to do so
on equal grounds so as to value each person’s vote equally (equal protection applies to manner of
exercise)
○ Harper v. Virginia Elections: state may not by arbitrary and disparate treatment- value one persons
vote over that of another
○ by ordering a manual recount, the Florida supreme court determined that the intent of the voters must be
discerned even though the voting machines were unable to record their votes
○ no standard has been established to ensure that the method employed to discern the intent of the voter
satisfies the equal protection clause – does not satisfy the non-arbitrary treatment
○ here, Florida counties utilized different standards on recount to determine what constitutes a legal vote to
be counted in the certified vote totals
○ Example- monitor in Miami Dade county witnessed 3 board members apply diff standards in defining a
legal vote
○ the Florida Supreme court failed to establish appropriate guidelines and standards to be applied statewide
○ furthermore, the Florida recount procedure calls for a manual examination of under-votes- those ballots
that were insufficiently marked for detection by voting machines- but makes no provision for the
examination of over votes- those ballots that were unrecognizable b/c more than one vote was registered
by the machine
○ in allowing under-votes to count while excluding over-votes the courts procedure treats one citizen’s
erroneous vote over another, although the intent of each voter may be equally discernable
○ accordingly what constituted the legal vote of a citizen in one country does not apply in a neighboring
county, and equal protection has not been preserved by the recount procedure

Kramer v. Union Free School District

395 U.S. 621
Participation in school district elections may not be limited
to property owners and parents within the district.
RULE: It’s a violation of EP to restrict voting in school district elections to parents and property owners or lessor.
FACTS:
• NY law provided that in certain school districts, residents could vote in school district elections only if they
owned or leased taxable real property within the district or had children enrolled in the local public schools.
• Kramer (P), a 31yr old stock broker and resident of District #15 (D) who lived with his parents, challenged this
voting restriction on EP grounds.

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 • NY (D) argued that it had a legitimate interest in limiting school district elections to those primarily interested in
those elections, and that, at any rate, the offices being voted on could have been filled through appointment if the
legislature had wished.
PROCEDURE: Appeal from judgment in EP challenge to voting restrictions
ISSUE: May a state restrict the voting in school district elections to parents and property owners? [NO]
HOLDING: It is a violation of EP to restrict the voting in school district elections to parents and property owners/lessors.
RAITONALE:
• Restrictions on the franchise must be examined with strict scrutiny to ensure that they are necessary to promote a
compelling state interest. →bc court considers voting is a fundamental right (not expressly said though)
• Assuming that the asserted interest in limiting these elections to those primarily interested in them is legitimate, it
is still clear that the means chosen to accomplish that goal are not precisely tailored enough to survive SS.
• For example  ppl such as Kramer (P), who pay taxes in the district and have an interest in the local schools, are
excluded from the district elections, while ppl who simply rent property in the area an may not be affected by the
district’s decisions are allowed to vote.
• The fact that school district elections were not req at all and the offices could have been filled thru appointments
is irrelevant. Once the right to vote has been granted to the public, states may not regulate eligibility for the vote
in ways that are inconsistent with EP.
DISSENT: (Stewart)
• Only rationality review should apply to this law, and the restriction here is clearly rationally related to the
legitimate objective asserted by the state.
ANALYSIS:
• Majority attempted to explain why SS is justified in cases involving restrictions on the right to vote.
• C.J. Warren noted that rational basis review and its presumption of constitutionality are based on basic
assumptions about the way the American democratic process works.
• When laws are passed by legs, it is assumed that the laws are the product of a process that has included all the ppl
and is thus representative of a given constituency.
• Rationality review takes this process into account and starts from the presumption that a challenge law is const.
• In a case where the right to vote and participate in the democratic process is itself at issue, there can be no such
presumption, bc laws restricting the right to vote directly challenge basic assumptions about the way the system
works.
• Is this a sound justification for the use of SS in voting rights cases? The dissenters didn’t think so, arguing that
rationality review is all that is req.

Note: Kramer and Its Progeny

• Cipriano v. City of Houma – (decided on same day as Kramer) court invalidated a La law permitting only
property-owning taxpayers to vote whether to issue municipal utility bonds. Court emphasized that the revenue
bonds were to be paid entirely from the operation of the utilities, and that they therefore did not especially burden
the owners of real property.
• Phoenix v. Kolodziejski – court invalidated an AZ law permitting only property-owning taxpayers to vote
whether to issue general obligation bonds. Court observed that nonproperty owners had a substantial interest in
the services and facilities financed by the bonds, and the differences bw interest of property owners and
nonproperty owners were therefore not sufficiently substantial to justify excluding the latter from the franchise.
• Salyer Land Co. v. Tulare Lake Basin Water Storage District – court upheld CA stat permitting only landowners
to vote in water storage district elections and allocating votes in proportion to the assessed valuation of the land.
○ Main purpose of districts was to provide water for farming.
○ Districts’ project costs were assessed against the land in proportion to the benefits received
○ Emphasizing that district does not exercise what might be thought of as normal gov authority, the court
held that the SS demanded in Kramer, Cipriano, and Kolodziejski was inapplicable to the dist by reason
of special limited purpose and of disproportionate effect of its activities in landowners as a group.
○ Franchise restriction was constitutional bc it was not wholly irrelevant to achievement of legitimate
objective.
○ If someone has an articulable interest and are being denied the vote then it is looked at through SS and
invalidated.
• Ball v. James – court extended Salyer and upheld a one acre-one vote scheme for voting for directors of a large
water reclamation district in AZ.
○ Financed water reclamation by selling electricity to several hundred thousand residents.

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 ○ District cannot enact any laws governing the conduct of citizens, nor does it administer such normal
functions of gov as maintenance of streets, operation of schools, or sanitation, health, and welfare
services.
○ Relationship bw nonvoting residents and the dist was essentially that bw consumers and a business
enterprise from which they buy.
• Dunn v. Blumstein – court expressly reaffirmed the states’ power to limit the franchise to bona fide residents but
invalidated a TN stat conditioning eligibility to vote on one year’s residence in the state and 3 months in the
county.
○ Bc durational residence req curtail the fundamental interest in voting, they are unconstitutional unless the
state can demonstrate that they are necessary to promote a compelling gov interest.
○ TN argued: (1) to insure purity of the ballot box by protecting against fraud and (2) assure a
knowledgeable voter.
• Martson v. Lewis and Burns v. Fortson – court upheld 50-day durational residence req, noting that the 50-day
period was necessary to serve the states important interest in accurate voter lists.
• McDonald v. Board of Election Commissioners – court upheld an Illinois stat that granted absentee ballots to
some classes of persons but not to unsentenced inmates awaiting trial. Concluded that it was not the right to vote
at stake here but a claimed right to receive absentee ballots and thus applied the traditional standards of the EP
review and sustained the stat.
• O’Brien v. Skinner – court invalidated a NY stat that did not provide absentee ballots to persons in jail awaiting
trial. Court explained that since the stat provided absentee ballots to persons absent from their homes county,
those held in jail in a county other than their residence could vote, but persons confined for the same reason in the
county of their residence are completely denied the ballot. Distinction was wholly arbitrary
• Richardson v. Ramirez – court upheld a CA law that denied the vote to convicted felons, even if they had
completed their sentences and paroles.
○ Court adopted an originalist approach here and concluded that the exclusion of felons from the vote has
an affirmative sanction that was not present in the case of the other restrictions on the franchise
invalidated in the Harper/Kramer line of cases.
○ Dissent (Marshall) - §2 was not intended and should not be construed to be a limitation on the other
sections of the 14th amendment and that under SS the blanket disenfranchisement of ex-felons cannot
stand.
• Rosario v. Rockefeller – court upheld NY stat req voters to register their party affiliation at least 30 days before a
general election in order to be eligible to vote in the next party primary, which may be as many as 11 months
later. Law did not completely disenfranchise voters but merely imposed a time deadline and their inability to vote
was caused by their own failure to take timely steps to effect their enrollment. Law furthered important state goal
of inhibiting party raiding.
• Kusper v. Pontikes – court distinguished Rosario and invalidated an Illinois stat that prohibited any person from
voting in the primary election of a political party if he has voted in the primary of any other party within the
preceding 23 months. Concluded that such a scheme substantially restricts an Illinois voter’s freedom to change
party affiliation and is not the least drastic means of attaining the state’s objectives.

Dilution of the “Right to Vote”

• Until 1962, the Court held that legislative districting controversies were non-justiciable.
• Colegrove v. Green – court declined to consider a claim that an Illinois law unconstitutionally prescribed
congressional districts that were not approximately equal in population.
• Baker v. Carr – involved a claim that the apportionment of TN General Assembly violated the appellant’s rights
under the EP clause by virtue of the debasement of their votes. Court held that a justiciable cause of action is
stated upon which appellants would be entitled t appropriate relief.

Reynolds v. Sims
377 U.S. 533 (1964)

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 EP reqs “one-person-one-vote” for state legislative elections.
RULE:
• A state must structure its elections and its state legislature so that its citizens are equally represented
according to population.
• Suffrage is fundamental
FACTS:
• Although Alabama’s Constitution req’d legislative rep based on population and decennial reapportionment, it still
utilized (in the 1960s) a districting scheme based upon its 1900 census to elect its state legislatures.
• The voting scheme did not change over time to reflect the increase of population in the districts. Districts that had
an increase in population (proportionate to other districts) did not have a corresponding increase in representation.
• A lower fed ct found this scheme and two other schemes proposed by the state leg to be a violation of EP.
PROCEDURE:
• On appeal to the Sup Ct upholding a lower fed ct’s finding that Alabama’s districting scheme violated its citizens’
right to EP.
ISSUE: Must a state elect and apportion its own legislature according to population? [YES]
HOLDING: (Warren) EP reqs that the seats in both houses of a bicameral legislature (such as Alabama’s) must be
apportioned on a population basis. Any divergence from the population standard must be based on legitimate
consideration of implementing rational state policy.
RATIONALE:
• Two recent cases—Gray v. Sanders (striking down a GA county sys used to elect statewide officers), and
Wesberry v. Sanders (striking down GA’s congressional districting statute)—although not directly on point,
provide the background for the issue here of state legislative apportionment.
• Gray est that in respect to statewide elections voters are to be treated equally and voters cannot be classified
(constitutionally) on the basis of where they live.
• Wesberry est that the fundamental principle of representative gov’t is equal representation for equal numbers of
ppl without regard to race, sex, economic status, or place of residence w/in a State.
• A determinative factor in analyzing whether Alabama’s districting scheme constitutes invidious discrimination
inviolation of its citizens’ EP rights is the fact that the right to vote is an individual right and personal in nature.
• The right to vote is a fundamental matter in a free and democratic society. This right preserves our other basic
civil and political rights, and any infringement of the right of citizens to vote must be carefully and meticulously
scrutinized.
• If Alabama’s law prohibited its citizens from voting there would be no doubt that the scheme would be unconst.
• If its scheme counted some votes two, five, or ten times more than other votes, this too, would be unconst.
• Alabama’s districting scheme which gives the same # of reps to unequal numbers of constituents is identical in
effect and violates its citizen’s right to EP.
• EP guarantees the opportunity for equal participation by all voters in the election of state legislators.
• Alabama’s scheme weighs some votes more than others based upon where the voters live w/in the State. It
thereby dilutes some of its citizens’ votes. This dilution based on place of residence impairs basic const rights
under the 14th just as much as invidious discrimination based upon factors such as race or economic status.
• Factors of history, area, or economic or other sorts of group interests, are not sufficient reasons for a State to
deviate from apportioning its legislature according to its population.
• Vote dilution by residential proxy is inappropriate.
DISSENT:
(Harlan)
• The majority fails to take into account the legislative history of the 14th as it relates to the matter at hand. That
history reveals that neither those who proposed nor those who ratified the 14th believed that EP limited the power
of the States to apportion their legs as they saw fit.
• The majority declares it unconst for a State to give consideration to any of the following in est leg districts:
history, economic or other sorts of croup interests, area, geographical considerations, a desire to ensure effective
rep for sparsely settled areas, availability of citizens to their reps, theories of bicameralism, occupation, an attempt
to balance urban and rural power, the preference of a majority of voters in the State.
• There is no practical, theoretical, nor constitutional principle which req’s these factors to be disregarded by a State
when it attempts to put together a scheme which best represents the varying interests of its people.
• Why can’t we district by cohesive interest? As long as its rational…
(Stewart)
• There isn’t only one theory of representative gov’t. Representative gov’t is a process of accommodating group
interests thru democratic institutional arrangements. As long as a State’s apportionment plan reasonably achieves,

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 in light of the State’s own characteristics, effective and balanced representation of all substantial interests, without
sacrificing the principle of effective majority rule, that plan cannot be considered irrational
• EP demands two basic attributes of any plan: (1) it demands that in light of the State’s own characteristics and
needs, the plan must be a rational one. (2) it demands that the plan must be such as not to permit the systematic
frustration of the will of a majority of the electorate of the State.
• Other than these attributes, there is nothing in the Constitution that prevents a State from choosing the way it
elects its legislature that it thinks is best suited to the interests of the ppl.
ANALYSIS:
• A state may apportion reps in order to avoid giving larger counties an undue amt of power over the whole state.
• There are often mathematical variations in relation to the % of votes to the elected official.
• Over time, ct began to apply a more relaxed standard and upheld in one case a max deviation of 9.9% and an
average deviation of 2%. The ct found that the deviation was not large enough even to req the State to justify the
variance.
• In another case, the ct allowed Wyoming to permit a representative for a county which under the strict one-
person-one-vote standard wasn’t large enough in population to qualify for a representative.

Note: Reynolds and Its Progeny – we understand that legislation is difficult and not easy to make everything equal when
people are moving around. We just want the leg to do the best it can and it should be as close as possible.
• Lucas v. Forty-Fourth General Assembly – CO scheme apportioned only one of two houses on basis of
population and was approved in 1962 by statewide referendum in which voters specifically rejected a plan to
apportion both Houses on basis of population. Court held the scheme invalid: an individual’s constitutionally
protected right to cast an equally weighted vote cannot be denied even by a vote of a majority, if it fails to
measure up to the EP clause.
• Gordon v. Lance – court upheld a WV law prohibiting political subdivisions from incurring bonded indebtedness
w/out approval of 60% of voters in referendum election. Court concluded that so long as such provisions don’t
discriminate against or authorize discrimination against any identifiable class they do not violate the EP Clause.
• Lockport v. Citizens for Community Action – scheme where the legislature prohibited a new county charter from
being adopted unless it was approved by majorities of the voters who live in the cities within the county, and
those who live outside the cities. Court upheld scheme and reasoned that the EP principals applicable in gauging
the fairness of an election involving the choice of legislative reps are of limited relevance in analyzing the
propriety of recognizing distinctive voter interests in a single-shot referendum. Court concluded that differing
interest of city and noncity voters in the adoption of new county charter were sufficient to justify scheme.
• Avery v. Midland County – court extended Reynolds to subunits of state gov. Midland County Commissioners
Court consisted of 5 commissioners, one elected at large, and one from each of 4 districts. One district had 67,000
residents and the other 3 had less than 1,000 each. Noting that commissioners had jurisdiction over tax rates court
rejected argument that their jobs were insufficiently legislative to req their election to conform to the principle of
one person, one vote.
• Hadley v. Junior College District – court extended Avery to junior college district where one district had 60% of
population. Court explained that district’s powers to run the schools, taxes, and issue bonds were general enough
and had sufficient impact throughout the district to req equal apportionment.
• Wesberry v. Sanders – court held that provision of A.1§2 that US reps be chosen by the people of the several
states means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as
another’s. Court invalidated Ga districting scheme w/ a max % deviation of more than 140%.
• Kirkpatrick v. Preisler – court held that no variance from absolute equality could be justified as de minimus.
• Karcher v. Daggett – court reaffirmed Kirkpatrick and explained that states must come as nearly as practicable to
population equality. Burger dissented and concluded that if Kirkptrick req the invalidation of a districting plan w/
a max % deviation of only 0.7% then it was time to reconsider it.
• Mahan v. Howell – court upheld a Va legislative districting plan w/ a max % deviation of 16.4%. Court explained
that more flexibility was constitutionally permissible w/ respect to state legislative reapportionment bc of interest
in normal functioning of state and local gov. Deviations satisfied goal of substantial equality of population and
were justified by state’s policy maintaining integrity of political division lines.
• Gaffney v. Cummings and White v. Regester – court recognized a category of minor deviations that req no
justification at all. Upheld state legislative districting plans w/ max % deviation of 9.9 and 7.8%. In subsequent
cases court concluded that anything under 10% falls in category of minor deviations.
○ Challengers of districting plan maintained that even if plan satisfied one person one vote req of Reynolds
it was still invidiously discriminatory bc it was admittedly drawn to achieve a rough approximation of
state-wide political strengths of Dem and Repub parties.

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 ○ Court held that political fairness principle was not unconstitutional.

City of Mobile v. Bolden

446 U.S. 55 (1980)
The EPC does not protect particular political groups from electoral defeat
RULE: The EPC does not require proportionate representation as an imperative of political organization
FACTS: (City Gov’t v. Representative of African-American citizens)
• Beginning in 1911, a city commission consisting of 3 commissioners has governed the city of Mobile (D), AL.
• Under the structure in place, the 3 commissioners were chosen by residents of 3 separate districts. This method
was used by thousands of municipalities.
• Despite the fact that Mobile (D) has a substantial black population, no black person had ever been elected to the
commission at the time Bolden’s (P) suit was filed.
• Bolden (P) filed suit seeking change in the voting system on the ground that the at-large electoral system
unconstitutionally diluted the voting power of Mobile’s (D) black residents.
PROCEDURE:
• Certification to the US Sup Ct of a class action lawsuit agst City of Mobile (D) regarding the city’s voting
practices for city gov’t positions.
ISSUE: Are at-large voting systems per se unconstitutional? [No]
HOLDING:
RAITONALE:
• While a winner-take-all voting system may have a tendency to submerge minorities, multi-member legislative
districts are not unconstitutional per se.
• Rather, they are invalid only if their purpose is invidious to minimize or cancel out the voting potential of racial or
ethnic minorities. In other words, a P must prove the disputed plan was conceived or operated as a purposeful
device to further racial discrimination.
• Only where there is purposeful discrimination can there be a violation of EPC, and in this case there is no
evidence of such a purposeful device to further racial discrimination.
• Now, we turn to Marshall’s dissenting opinion—His theory seems to be that every political group, or at least
every such group that is a minority, has a fed const right to elect candidates in proportion to its numbers.
Moreover, a political group’s right to have its candidates elected is said to be a fundamental interest, the
infringement of which may be est w/o proof that a State has acted w/ the purpose of impairing a person’s access to
the political process. Marshall believes that the right infringed in the present case is the right to have a black
person elected to the city commission. Whatever appeal this may have, this is not the law.
• The EPC doesn’t require proportionate representation as an imperative of political organization.
• It is true that a law that impinges upon a fundamental right is presumptively unconstitutional.
• It’s also true that the EPC confers a substantive right to participate in elections on an equal basis with other
qualified voters.
• However, this right to EP in the electoral process does not protect any political group, however defined, from
electoral defeat.
• In Reynolds v. Sims we held that a voter’s right to have an equally effective voice in the election of reps is
impaired where representation is not apportioned substantially on a population basis, which the dissent believes to
support its theory. The dissent is wrong.
• “One person one vote” principle is not violated here, as the dissent’s conclusion that political groups themselves
have an independent constitutional claim to representation is a far cry from our holding in Reynolds.
CONCURRENCE:
(Blackmun)
• Agree that here, findings of the DC support an inference of purposeful discrimination.
• Concur in the judgment reversal bc think that the relief afforded by the DC (a change in the form of city gov’t)
was not commensurate with the sound exercise of judicial discretion.
• DC should have considered alternative remedial orders that would have maintained some of the basic elements of
the commission system.
(Stevens)
• Fundamental distinction bw state action that inhibits an individual’s right to vote and state action that affects the
political strength of various groups that compete for leadership in a democratically governed community. That
distinction divides vote dilution practices into 2 categories, each of which is gov’d by a diff const consideration.
• (1) Practices that deny individuals access to the ballot not case here.

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 • (2) This case questions a political sys that treats all individuals as equals but adversely affects the political
strength of a racially identifiable group. (Can sub any other group with “racially identifiable group”)
• Whatever the standard for identifying an unconstitutional gerrymander may be, it must apply equally to all forms
of political gerrymandering.
• The standard in governing such actions cannot condemn every adverse impact on one or more political groups
without spawning more dilution litigation than the judiciary can manage. A political decision that affects group
voting rights may be valid even if it can be proved that irrational or invidious factors have played some part in its
enactment or retention.
• A political decision that is supported by valid and articulable justifications cannot be invalid simply bc some
participants in the decision-making processes were motivated by a purpose to disadvantage the minority. The
decision to retain the commission form of gov’t in Mobile (D) is such a decision.
DISSENT:
(Brennan)
• The proof of discriminatory impact is sufficient in these cases.
• Even accepting the pluralities premise that discriminatory purpose must be shown, the burden has been met.
(White)
• Findings of DC amply support an inference of purposeful discrimination.
(Marshall) – Each person is entitled to one effective vote.
• Plurality holds that “only if there is purposeful discrimination can there be a violation of the EPC of the 14th”
which is plainly overbroad in that it fails to distinguish bw two distinct lines if EP decisions: those involving
suspect classifications and those involving fundamental rights.
• Under EPC, if a classification impinges upon a fundamental right, SS is req, regardless of whether the
infringement was intentional.
• Fundamental right to equal electoral participation that encompasses protection agst vote dilution.
• Proof of discrim purpose is, therefore, not req to support a claim of vote dilution.
• Further the majority mischaracterizes my views. I don’t think that there exists a const req of proportional rep for
all groups. In this case, however, there is ample evidence of the discriminatory effect of the current system on
blacks in Mobile (D), which reqs that a change take place.
• Finally, common law foreseeability presumption should be applied here. Bc the foreseeable disproportionate
impact of the current voting sys was so severe, Mobile (D) should have been req to bear the burden of showing
that it refused to modify the districting schemes in spite of, not because of their severe discriminatory effect.
ANALYSIS:
• Clarifies the law of vote dilution. Under the one-person-one-vote principle, the law reqs that all votes be treated
equally, meaning that one vote cannot carry more weight than another. Thus, a person’s right to vote cannot be
diluted.
• Decision makes clear that the law is diff when applied to diff groups of persons.
• While a person’s vote cannot be diluted, this opinion makes it clear that there is nothing wrong with vote dilution
when it occurs under a non-discriminatory scheme. Here, ct held that the outcome was not unconst so long as it
was not the result of invidious discrimination.
• Ct also makes clear that proportionate representation is not required, meaning if 1/3 of citizens ina particular city
are black, and the other 2/3 are white, there is no req for 2 white and 1 black commissioner. If the opposite were
true, empowering gov’t leaders would be nearly impossible.
• Every group would be able to demand equal representation of their views by the means of choosing one or more
candidates to represent them. Such a system isn’t plausible.
• Under the court’s analysis majority rule s conceptualized as an individual right deserving the strongest protection,
whereas minority representation is conceptualized as a group right that will not be vindicated without proof of
invidious discrimination.

Note: Vote Dilution and the Interests of Groups

• Court will invalidate a gerrymandering or multimember district plan if it is adopted or retained for the purpose of
minimizing the relative voting strength of African Americans.
• Rogers v. Lodge – invalidating an at-large system bc it was maintained for a racially discriminatory purpose
• Gomillion v. Lightfoot – invalidating a districting plan bc the lines were drawn w/ racially discriminatory purpose
• United Jewish Organizations v. Carey – NY redrew district lines in Brooklyn in order to maintain black
representation in state legislature. To achieve this, the redistrict divided the local Hasidic community into several
districts thus assuring that each district had a substantial nonwhite majority. Court upheld plan.

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 ○ Court concluded that Constitution did not prohibit the use of race in this manner where the redistricting
was authorized by the voting rights act and percentage of districts in county w/ substantial nonwhite
majorities did not exceed the percentage of pop of the county that was nonwhite.
○ In concurrence, White states that the use of race was permissible here bc it represented no racial slur or
stigma w/ respect to whites or any other race and did not minimize or unfairly cancel out whites voting
strength
○ Burger dissented bc Constitution mandates reapportionment along racially neutral party lines.
○ Consistency – this districting was permitted bc it did not disenfranchise any person or group of persons
○ Consistency – no invidious or specifically intended to discriminate against white or other voters
○ Benign classification view – this is permissible only if they meet a compelling governmental interest (SS)
○ Why was this race classification treated differently? Here doctrinally the court is concentrating on voting,
not on racial classification
• Stevens elaborated on his Bolden concurrence in Karcher v. Daggett → In evaluating equal protection challenges
to districting plans, I would consider whether the plan has a significant adverse impact on an identifiable political
group, whether the plan has objective indicia of irregularity, and then, whether the state is able to produce
convincing evidence that the plan nevertheless serves neutral, legitimate interests of the community as a whole.

Davis v. Bandemer
478 U.S. 109 (1986)
Divided ct hears political gerrymandering issue
RULE: (1) Cts will review political gerrymandering controversies. (2) In order to prove-up a violation of EP both
intentional discrimination agst an identifiable political group and an actual discriminatory effect on that group
must be proved.
FACTS: (not stated v. not stated)
• 1981, the Republican-controlled Indiana legislature passed a reapportionment plan which provided for state senate
and house districts of substantially equal population.
• After the 1st election held under the plan (in 1982) Democrats claimed that by using a mix of single and
multimembered districts and gerrymandering district lines, the plan substantially understated Democratic voting
strength.
• In the 1982 election, the Democrats received 51.9% of the total house vote and 53.1% of the total senate vote, yet
won only 43 of the 100 house seats and only 13 of the 25 senate seats.
• According to the dissent, the plan was created in a private committee (of all Repubs) with the aid of a computer
program which dealt mainly with the political make-up of the districts. The plan was revealed 2 days before the
close of the legislative session and 2 days later both houses adopted it.
PROCEDURE:
• On appeal, the Sup Ct which reversed the DC’s finding that Indiana’s reapportionment plan violated EP.
ISSUE:
• (1) is the mere lack of proportional representation sufficient to prove unconst discrimination? [No]
• (2) Is political gerrymandering a proper matter for det by a ct? [Yes]
HOLDING:
RATONALE:
• Reverse the DC’s finding that Indiana’s apportionment law unconst diluted votes of Indiana Democrats.
• The political question doctrine does no bar us from deciding if Indiana’s apportionment law unconst diluted the
votes of Indiana Democrats.
• The question then is whether the DC erred in holding that the P’s alleged and proved a violation of EP. In order
to prove such a claim both intentional discrimination agst an identifiable political group and an actual
discriminatory effect on that group must be proved.
• However, the DC did not use a sufficiently strict standard by which to measure the effects of Indiana’s law.
• If the law challenged here (actually) had discriminatory effect on Democrats, record would support a finding that
the discrimination was intentional.
• Thus, decline to overturn the DC’s finding of discriminatory intent as clearly erroneous. Don’t accept, however,
the DC’s legal and factual bases for finding Indiana’s law created a sufficiently adverse effect on the P’s
constitutionally protected rights to set forth a violation of EP. Reject DC’s holding that any interference with an
opportunity to elect a rep of one’s choice would be sufficient to allege an EP violation, unless justified by some
acceptable state interest that the state would be req to demonstrate.
• This low standard of review would invite attack on all or almost all reapportionment stats. A single election
doesn’t provide sufficient inquiry into the effect of reapportionment law.
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 • Unconst discrim occurs only when electoral sys is arranged in a manner that will consistently degrade a voter’s or
a group of voter’s influence on the political process as a whole. EP violated only where the electoral sys
substantially disadvantages certain voters in their opportunity to influence the political process.
• Mere lack of proportional rep isn’t sufficient to prove unconst discrimination when it’s alleged in statewide
political gerrymandering.
• Ppl who voted for the losing candidate are rep by the winner and have the same opportunity to influence that
candidate as other voters in the district. No proof winner will ignore interests of the ppl who didn’t vote him.
CONCURRENCE: (O’Connor)
• Concur in the judgment only reversing the lower ct. Political gerrymandering is not a justiciable issue.
• This is not, and the plurality does not provide, a manageable standard from which cts can determine the issues of
political gerrymandering.
• Political question doctrine
DISSENT: (Powell and Stevens)
• Concurred that the issue of political gerrymandering was justiciable
• Issue is more than whether a group’s votes have been diluted. Question here is whether a state legislature violates
EP by adopting a redistricting plan solely to preserve the power of the dominant political party, when the plan
follows the doctrine of one-person-one-vote, but ignores all other neutral factors relevant to the fairness of
redistricting.
• Proof of both intentional discrim and actual discrim must be shown before partisan political gerrymandering will
be found unconst.
• 2 definitions of gerrymandering: (1) the unconst def—is the deliberate and arbitrary distortion of district
boundaries and population for partisan or political purposes. (2) Gerrymandering is also used loosely to describe
a common practice of the party in power to choose the redistricting plan that gives it an advantage at the polls.
• To distinguish the diff, the question must focus on whether boundaries have been distorted deliberately and
arbitrarily to achieve illegitimate ends.
• To sustain a claim of pol gerrymandering, proof should be offered of the following factors: the shape of the voting
districts, adherence to est political subdivision boundaries, nature of the legislative procedures used to adopt the
reapportionment, the leg history of the new law.
ANALYSIS:
• No clear cut standard here. The only matter that received a majority of the votes was that the DC should be
reversed.
• White—thought bc the DC didn’t use a strict enough standard
• O’Connor—didn’t think the ct should be addressing the matter at all.
• Powell—believed that the standard should req proof of several factors that play a part in creating districting plans
with boundaries that have been “distorted deliberately and arbitrarily to achieve illegitimate ends.” Suggests
sufficient evidence to find a const violation as there was “uncontradicted proof that certain key districts were
grotesquely gerrymandered to enhance the election prospect of Republican candidates.
NOTES:
• First concern re drawing districting lines is “one-person one-vote” – put same number of people in each district
• Then make sure the lines are not for racial reasons, then what if dems are separated? This is much harder to do
equally than one would think.

Denial of “Access to the Ballot”

Williams v. Rhodes:
• The Ohio American Independent Party and the Socialist Labor Party both brought suit to challenge the validity of
a series of election laws, as applied to them, on the ground that they denied plaintiffs and the voters who might
wish to vote for them the equal protection of the laws, guaranteed against state abridgment by the Equal
Protection Clause of U.S. Const. amend. XIV.
○ Political parties had to receive 10% of vote in prior gubernatorial election to automatically qualify for
next presidential election.
○ Otherwise the party had to file petitions to be included 9 months before the election.
○ Purpose was to ensure the 2 party system bc it was stable, etc. (Ct. disagrees)
• The district court ruled that the restrictive Ohio election laws unconstitutional but refused to grant the plaintiffs
the full relief they had sought.
• Both parties appealed.

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 • The Court affirmed the district court's judgment with reference to the Socialist Labor Party and did not require
that party on the ballot.
• The Court modified the judgment regarding the Ohio American Independent Party and granted that party the right
to have its name printed on the ballot.
• The Court held that defendants had failed to show any "compelling interest" that would justify imposing heavy
burdens on the right to vote and to associate.
• The totality of the Ohio restrictive laws imposed a burden on voting and associational rights, which the court held
was invidious discrimination in violation of the Equal Protection Clause.

Note: Williams and Its Progeny

• Jenness v. Forston – court unanimously upheld Ga law providing that any political organization whose candidate
received 20% of vote at most recent gubernatorial or presidential election automatically qualified for the ballot,
but that nominee of any other political organization must file a petition 5 months before the election signed by at
least 5% of those eligible voters at last election for office he is seeking. Different than Williams bc these are less
onerous and doable
• American Party of TX v. White – court upheld TX law providing that candidates of major parties could gain
access to the ballot by being nominated in primary election, but that minor parties could obtain ballot access only
by holding nominating conventions and obtaining signatures totaling at least 1% of persons voting the last
preceding gubernatorial election. Being a candidate is not a fundamental right, but voting is.
○ Why are we not using SS has we have in the past?
○ Competing gov right to vote and the state interest in the process to vote
○ State gets to dictate the process of voting still.
• Illinois state Board of Elections v. Socialist Workers Party – invalidating a state stat that had the effect of req
more signatures to qualify for access to the ballot in Chicago elections than in statewide elections.
• Munro v. Socialist Workers Party – upheld state law that prevented minor party candidates from appearing on the
general election ballot unless they received at least 1% of votes cast in a blanket primary at which registered
voters could vote for any candidate, irrespective of the candidate’s political party affiliation.
• Lubin v. Panish – court invalidated as applied to indigents a CA law requiring payment of filing fee of 2% annual
salary for the office sought. The goal of keeping ballots manageable is important but must be achieved by a means
that does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s equal
important interest in the continued availability of political opp. Court made this a wealth-based classification case
using the term indigency, but it also excluded the middle-class person as well bc it was a lot of money just to run.
It gives an extra bump to those that were wealthy.
• Storer v. Brown – court upheld CA stat forbidding a ballot position to an independent candidate who had a
registered affiliation with a political party at any time w/in 1 year prior to immediately preceding the primary
election. Court concluded that it furthered the state’s compelling interest in the stability of its political system.
• Tashjian v. Republican Party – court distinguished Storer and invalidated Connecticut stat req voters in any party
primary to be registered members of that party. Republican party who had adopted a party rule permitting
independents to vote in its primary, challenged the provision. Court held that the party’s det of the boundaries of
its own association, and of the structure which best allows it to pursue its political goals, is protected by the CON.
• Clements v. Fashing – court upheld 2 provisions of the TX constitution. §19 provides that certain public officials
shall not be eligible to the legislature until the expiration of their current term in office. §65 provides that certain
public officials who run for any other state or federal office must automatically resign their current position.
○ Court noted that they never held candidacy as a fundamental right.
○ The inquiry is whether the challenged restriction unfairly or unnecessarily burdens the availability of
political opportunity.
• Anderson v. Celebrezze – court invalidated an OH law req independent candidates to file their nominating
petitions in mid-March in order to qualify for the ballot in the Nov election. Majority relied on the 1st amendment
and not EP clause. Court concluded that OH’s interests in voter education, equal treatment for partisan and
independent candidates, and political stability were either illegitimate or too remotely related to the early filing
deadline to justify such a substantial barrier to independent candidates.
• Issue of party politics – parties should define who gets to vote for them, but there should be freedom to vote for
whoever you want.

League of United Latin American Citizens v. Perry:

• Following the 2000 census, a court-ordered redistricting plan was implemented in Texas for seats in the United
States House of Representatives.
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 • The House and Senate of TX could not agree on a redistricting plan and someone sued… the court imposed a plan
for them that largely favored republicans.
• In 2003, after Republicans gained control of the Texas Legislature, a new redistricting map was passed.
Appellants argued that the mid-decade redistricting was an unconstitutional partisan gerrymander and that
changes to particular districts violated the Voting Rights Act, the First Amendment, and the Equal Protection
Clause.
• Dems argued that it was done for the sole purpose to decrease the power of the Dems.
• The Court rejected appellants' challenge to the plan as a whole, but did not reach agreement as to whether a
reliable test for gerrymander might exist.
• However, changes to a Latino-majority district, which were designed to protect an incumbent, constituted vote
dilution in violation of 42 U.S.C.S. § 1973(b).
• Creation of a new, non-compact Latino-majority district did not compensate for the dismantling of the former
compact district, and the absence of the former district undermined the progress of a racial group that had been
subject to significant voting-related discrimination.
• The Court upheld the district court's decision that changes to another district did not unlawfully dilute African-
American voting strength.
• The district court's judgment that the redrawing of the Latino-majority district did not violate the Voting Rights
Act was reversed, and the district court's judgment on appellants' constitutional claims regarding that district was
vacated.
• The district court's judgment was otherwise affirmed. The cases were remanded for further proceedings.
• Wasn’t overwhelming party gerrymandering and it was det that the impact was one that couldn’t be det by one
election. The court even acknowledged that they knew the purpose of the Republicans was not right, but couldn’t
make the decision right there based on proof.
• Partisan aims could not guide every line drawn.

Discernible Standard for Voting Rights: there is barely a discernible standard in this area of law, but there is not
necessarily a problem with this. Some areas of law are a larger priority to have legal standards to ensure equality.

Unit 12 – Travel, Poverty, & Education

Travel

Shapiro v. Thompson
394 U.S. 618 (1969)
State residency requirements which infringe upon
“fundamental” rights violate EP
RULE: Under EP a state may not grant or deny welfare benefits to its residents based upon the amt of time the
residents have lived within its borders.
FACTS: (Conn. Official v. indigent)
• PA, CT, and D.C. had laws which denied welfare assistance to residents who had not lived within their
jurisdictions (states) for at least one year immediately prior to their application for assistance.
PROCEDURE:
• Lower fed cts found these laws unconstitutional.
• On appeal to the Supreme Ct affirming (multiple) lower fed ct findings that a State one-year residency
requirements for attaining welfare benefits was unconstitutional.
ISSUE: May a state impose a one-year residency requirement on its residents before permitting them to apply for state
benefits? [No]
HOLDING: The waiting period clearly violates EP.
RATIONALE:
• This requirement creates two classes of ppl indistinguishable except for the amt of time they lived w/in the state.
• Class not within the state for a year are denied welfare benefits which may be the ony means they have to to
obtain the very means to subsist.
• Stats don’t provide any justifiable reasons for imposing the residency distinction bw recipients of state welfare.
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 • States argue—waiting period is permissible bc (1) protective devise to ensure fiscal integrity of state public
assistance programs, (2) even if the state isn’t allowed to deter all indigents, its permissible to deter those who
would enter only to obtain larger benefits, (3) its an attempt to dist bw new and old residents on the basis of the
contribution they have made to the community thru the payment of taxes, (4) it serves certain admin and related
gov’ t objectives.
• Since the classification here touches upon the fundamental right to travel, SS is the appropriate standard.
• Any classification which serves to penalize the exercise of a const right must be necessary to promote a
compelling gov’t interest, otherwise it is unconstitutional. Fundamental right to travel thus SS.
• Nature of our Union and the const concepts of personal liberty unite to req all citizens are free to travel thru the
states uninhibited by stats, rules, or regs that unreasonably burden or restrict this movement.
• As to States’ arguments, (1) and (2), there is no doubt this waiting period is suited to discourage influx of poor.
Purpose of inhibiting migration of needy persons is constitutionally impermissible. A state cannot preserve fiscal
integrity by invidious distinctions bw classes of its citizens. As to (3), EP prohibits state from apportioning any of
its resources based upon tax contributions of citizens. As to (4), evidence doesn’t support, therefore ct concludes
that the state do not use and do not need to one-year waiting restriction to facilitate budget predictability or to
predict the number of ppl who will req assistance.
• The true unequal protection of this limitation is the unequal protection bw similarly situated people living in the
same area; classified based on time of arrival.
DISSENT:
(Warren)
• The real issue is whether Congress had the power to impose minimum residency requirements and if it exercised
the power constitutionally.
(Harlan)
• “Compelling interest” standard has two branches: (1) reqs classification based upon ‘suspect’ criteria and any
infringement thereon reqs compelling interests. (2) subjects a stat classification which affects a ‘fundamental
right’ to the ‘compelling interest’ standard regardless of the basis of the classification.
• When a classification based upon the exercise of rights guaranteed agst state infringement by the Const, then
there’s no need to resort to EP. Infringement may be invalidated under DP.
• If the matter here were reviewed under traditional EP standard, I would find the state law valid. The proper
standard for the “fundamental” right to travel should be regarded as having its source in DP.
• The question is then whether the gov’t interests served by residency reqs outweigh the burden imposed upon the
right to travel. The balance favors finding the state law constitutional.
ANALYSIS:
• The issue is that when states create classifications which serve to penalize the exercise of a fundamental right, SS
is the proper standard of review.
• Why wasn’t this treated as a dormant commerce clause case? The states are stepping into the fed gov’s power to
regulate interstate commerce and this regulation would impede this.
• The court may have been trying to make a political statement re: welfare. Hot topic at this time.

Saenz v. Roe— Reaffirmed Shapiro on new grounds and invalidated a CA law imposing durational residence
requirements by limiting welfare benefits during recipient’s first year of residence. CA amended its welfare program by
limiting new residents to the benefits they would have received in the state of prior residence. Held—change violated the
privileges or immunities clause of the 14th.
• Right to travel: (1) enter and leave a state, (2) treated as a welcomed visitor when temp present, (3) if choose to
become permanent, right to be treated like other citizens of that state—(3) is at issue here.
• Ct said it was illegitimate to defend classifications by a purpose to deter welfare applicants from migration to CA
—impermissible purpose. Also impermissible is the prospect of saving $10.9 million annually.
• Dissent—right to travel isn’t implicated bc anyone who has finished the journey is no longer traveling. CA
provision is a reasonable bona fide residence req. legitimate effort to ensure services are enjoyed only by state’s
residents. Original meaning of privileges or immunities clause is quite limited, improper extension here.
• Purpose – trying to prevent people on welfare from moving to the state to save money
• Treating similarly situated people differently under the law – no rational basis here
• Could have been det under the dormant commerce clause bc a state is discriminating on the basis of state
citizenship

Note: The Right to Travel as a “Fundamental Interest”

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 • Crandall v. Nevada—Ct invalidated a state law imposition capitation tax of $1 on “every person leaving the state
by any vehicle engaged in transporting passengers for hire.” Rationale—we are one people, one common
country and right to pass and re-pass thru every part of it w/o interruption
• Edwards v. California—relying on the commerce clause, ct invalidated a state stat prohibiting any person from
“bringing into the state any indigent person who is not a resident of the state”

Note: “Penalizing” the Right to Travel

• Impermissible purposes  Shapiro distinguished bw two types of state purposes: (1) those that are
“constitutionally impermissible” and (2) those that are permissible but insufficient to satisfy the “compelling”
interest standard.
• Zobel v. Williams—Ct held that an Alaska statute distributing income derived from natural resources to adult
citizens in varying amts depending on length of residents in the state violated EPC. Ct cited Shapiro, and
dismissed state’s objective of rewarding citizens for past contributions as “not a legitimate state purpose.” It treats
similarly situated people in the state differently.
○ Concurrence—prior contributions neither inherently invidious nor irrational, but here plans treat new
residents less favorably than longer term residents. Inequality conflicts with const purpose of maintaining
a Union rather than a “league of states.” Invalid mainly bc Alaska hasn’t shown new residents are the
source of any evil or that there’s a “substantial relationship” bw evil and discrimination agst noncitizens.
○ Concurrence—length of residents has only the most tenuous relation to the actual service of individuals to
the state. Past contribution rationale provides too little to provide a rational predicate for discrimination
on length of residence.
○ What is it about the right to travel? Our history of unionization of the collection of the states makes it
very important to allow travel bw the states. Cannot limit bw the states then we wouldn’t be the “United”
States

• Hooper v. Bernalillo County Assessor -- Ct held that New Mexico stat granting a special tax exemption to
Vietnam vets who were NM residents before 5/8/76 violated EPC. Ct distinguished Shapiro and other cases that
involved waiting periods, whereas here NM statute creates ‘fixed, permanent distinctions bw classes of
concededly bona fide residents’ based on when they arrived.
○ Statute here suffers same constitutional flaw as Zobel.
○ State may not favor est residents over new based on the view that it’s ‘taking care of its own’ bc
newcomers become the state’s ‘own’ and cannot be discriminated agst solely on the basis of arrival.
○ Consistent w/ dormant commerce clause
• Attorney General of NY v. Soto-Lopez—Ct invalidated a NY stat – granting an employment preference to
resident veterans who resided in NY at time they entered the service – on “right to travel” grounds. Appelles
were long time NY residents, they were denied bc weren’t residents at time joined service.
○ The right to migrate protects residents of a State from being disadvantaged or treated diff bc of timing.
○ Concurrence—statute should be invalidated under the rational basis test.
○ Consistent w/ dormant commerce clause.
• In Shapiro, the ct invoked SS bc the durational residence requirements penalized the right to travel.
• Usual penalty cases:
○ Existence of a condition on eligibility for a state’s program make a person worse of w/ respect to the
const right in question than if there were no program at all
○ State withholds an otherwise available benefit from an individual unless she forgoes a constitutional right.
• Dunn v. Blumstein—Ct held that Tennessee one-year residence requirement for voting violated the EPC. Strict
equal protection scrutiny both bc the req interfered with “fundamental” right to vote and bc it “penalized” the
“fundamental” right to travel.
○ TN argued that durational residence reqs neither seek to nor actually do deter travel
○ Here, laws force person to chose bw travel and right to vote. Absent compelling state interest, State may
not burden the right to travel in this way.
○ Shouldn’t have to decide what right you want more…state should protect both.
• Memorial Hospital v. Maricopa County—Ct held that an AZ statute req a year’s residence in a county as a
condition to receiving nonemergency medical care at county expense violated the EPC. The req penalizes
indigents from exercising right to migrate and unless shown to be necessary to promote a compelling gov’t
interest, is unconstitutional; here state’s justification wasn’t compelling. Ct stated that it is ironic that the state req
to keep them on welfare yet could deny him medical care, both being ‘a basis necessity of life.’

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 • Sosna v. Iowa—Ct upheld one-year residence req for bringing a divorce action agst a nonresident. Reason:
Appellant wasn’t irretrievably foreclosed from obtaining some part of what she sought. While the req delayed
access to the cts, but by fulfilling the req she could ultimately obtain her goal of divorce.
○ Reasonably justified on ground other than purely budgetary concerns or admin convenience; (1) divorce
decrees affect property rights and children (2) furthers the State’s parallel interests both in avoiding
meddling in matters that a diff state has paramount interest.
• Supreme Ct NH v. Piper—one-year residency req for admittance to the bar violates privileges and immunities
clause of art IV section 2.
• Vlandis v. Kline—one year residency req for reduced tuition at a state university—invalidating under DPC as an
unconst “irrebuttable presumption”
• Jones v. Helms—upholding statute making it a misdemeanor for parent to abandon dependent child, felony for
parent to leave state after abandonment.
• McCarthy v. Philadelphia Civil Service Comm.—Ct upheld dismissal of fire dept employee terminated bc he
moved to NJ violating the req that city employees be residents of Philly.
• Martinez v. Bynum—Ct upheld a bona fide residence req for attending a state’s public schools. Bona fide
residence req furthers substantial state interest in assuring services for residents are enjoyed only by them.
• New Hampshire v. Piper—bona fide residence req for admission to bar violates privileges immunities clause
• Sup Ct VA v. Friedman—same as Piper
• United Building & Construction Trades Council v. Mayor of Camden—ordinance req at least 40% employees
of contractors on city projects to be city residents may violate privileges and immunities clause (PIC)
• Hicklin v. Orbeck—Alaska stat req private employers to grant hiring preferences to Alaska residents violates PIC.
• Baldwin v. Fish & Game Comm.—upholding agst a PIC and EP attack a req that nonresidents pay higher fees
than residents for hunting licenses.
Welfare
• Shapiro ct saw that durational residence reqs for welfare affect “ability of families to obtain means to subsist”
• After Shapiro, many cts maintained that welfare constituted a “fundamental” interest for EPC review purposes.
• Some suggest welfare, like voting, is a fundamental interest bc it’s “the preservation of all rights”

Dandridge v. Williams—Ct upheld a provisions of Maryland’s Aid to Families w Dependant Children program that
granted most eligible families their computed “standard of need,” but imposed a max monthly grant of $250/family
regardless of family size or computed need. Regulation resulted in some disparity in grants to largest AFDC families.
• State doesn’t violate EPC merely bc classifications are imperfect; only needs some “reasonable basis” (rational
basis)
• EPC doesn’t req a state to choose bw attacking every aspect of a problem or not attacking it at all. Enough that the
State’s action be rationally based and free from invidious discrimination.
• Dissent—“mere rationality” cases used by majority involved business interests, not vital interests of powerless
minorities. This ct has recognized that when a benefit is necessary to sustain life, stricter const standards are
applied to the deprivation of that benefit—Shapiro. Here, impact is too great and supposed interests too attenuated

Note: Dandridge and the Judicial Role in Welfare context

• Dandridge plaintiff isn’t asking gov’t to leave him alone, rather to give him something.
• Const is ordinarily thought of as creating limitations on gov’t rather than as est affirmative rights.
• Procreation  should Dandridge ct subject the regulation to SS bc it imposed a penalty on the fundamental
interest of procreation?
• Since Dandridge, cts generally adhere to view that rational basis review is appropriate standard for evaluation of
welfare classifications.
• Califano v. Boles—ct upheld provision of Social Security Act (SSA) restricting “mothers’ insurance benefits” to
widows and divorced wives of wage earners.
• Jefferson v. Hackney—upheld provision of a state welfare program authorizing payment of a lower percentage of
need to recipients of AFDC than to recipients of other forms of categorical welfare assistance
• Richardson v. Belcher—upheld provision of SSA reducing disability benefits for amts received from worker’s
compensation but not for amts received from private insurance
• Lindsey v. Normet—upheld a state’s summary “forcible entry and wrongful detainer” procedures for the eviction
of tenants after alleged nonpayment of rent. Ct rejected claim that need for shelter are fundamental interests.
Applied rational basis review and found no const defect in the fact that eviction actions are more summary than
other litigation—unique L/T relationship justify special stat treatment.

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 • Collins v. Texas—ct rejected claim to gov’t protection. Collins, municipal employee died of asphyxia (manhole
in sewer line) and his widow sued that her husband had a const right to be free from unreasonable risk of harm
and deliberate official indifference to employee safety. Ct said no const violation here—no DPC violation.
• US Dept of Agri v. Moreno—ct invalidated provision of the Food Stamp Act excluding from participation a
household that contained an unrelated individual. The gov’t said this was rationally related to the legitimate gov’t
interest in minimizing fraud bc households with unrelated members are more likely to contain ppl who abuse the
program by fraudulently failing to report sources of income. Ct rejected this, not rationally related to fraud
prevention.
• Roosevelt’s Second Bill of Rights—said true individual freedom can’t exist w/o economic security and
independence. This provided new basis of security that could be est for all by creating ‘rights’ (i.e. job, earn
enough for food, clothing, recreation, right farmers to sell prods, business men to trade, decent home, medical
care and health, protection from economic fears of old age, illness, accident, unemployment). Roosevelt didn’t’
argue that the Const should be amended or that it should be ct enforced. He wanted legislative implementation.

Education

San Antonio Independent School District v. Rodriguez

411 U.S. 1 (1973)
Education is not a fundamental interest for EP purposes.
RULE: Even though the system of financing education by collecting taxes on property in the school district leads to
some disparity in spending per pupil across districts, it is not an irrational way for a state to fund education.
FACTS: (Local gov’t v. Poor families)
• Public education in TX is funded mainly thru property taxes assessed by local school districts. Since property
taxes vary bw districts and the property in some districts is more valuable than others, this system of funding
produced substantial interdistrict disparities in per-pupil expenditures.
• Parents of children in the Englewood school district in San Antonio metropolitan area, sued on behalf of the
children of poor families residing in districts having a low property tax base.
• P argues – discrimination on a wealth based classification; pure students are getting a lesser education bc of the
state funding classifications.
• Implicit issue w/ race discrimination
PROCEDURE: Appeal from decision finding a violation of EP
ISSUE: Does the public education funding system violate EP bc it spends less per pupil on students who live in poor
districts? [No]
HOLDING: The TX interdistrict disparities are the product of a system that is neither irrational nor invidiously
discriminatory. Thus the plan satisfies the rational review standard.
RATIONALE: [no suspect class here]
• Must det if the TX system of financing public education operates to disadvantage some suspect class or impinges
upon some fundamental right that is explicitly or implicitly protected by the Const. If yes SS is required. If not
 examine to det if it rationally furthers some legitimate, articulated state purpose.
• Here—neither a suspect class nor a fundamental interest.
• It’s not a case of discrimination based on wealth. (1) There is no reason to believe that the poorest families are
necessarily clustered in the poorest school districts, and (2) children here have suffered no absolute deprivation of
education.
• It is arguable whether the quality of an education depends on the money expended for that education. Where
wealth is involved, EP doesn’t req absolute equality or precisely equal advantages.
• Cannot find that ppl living in poor school districts comprise a suspect class—no traditional indicia of suspectness:
class isnt’ saddled w/ such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated
to such a position of political powerlessness as to command extraordinary protection from the majoritarian
political process.
• Question of whether the financing system impermissibly interferes with the exercise of a fundamental right. Ct
must assess whether there is a right to education explicitly or implicitly in the Const NO.
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 • P’s claim – that education is fundamental bc its essential to the exercise of 1st Amendment freedoms and to
intelligent utilization of the right to vote – fails bc the Const has never guaranteed the citizenry the most effective
speech or the most informed electoral choice.
• Also, bc there isn’t total deprivation of education, the system provides each child with an opportunity to acquire
the basic minimal skills necessary for the enjoyment of the rights of speech and full participation in the political
process.
• Unlike cases where applied SS, here the gov’t isn’t depriving anyone of anything. The system to finance public
education was implemented to extend public education.
• Since there is no basis to apply heightened scrutiny, examine the financing system under rational review—
whether the state action rationally furthers a legitimate state purpose or interest.
• Some inequality in the manner in which a state may finance the education of its children is not a sufficient basis
for striking down the entire financing system.
• The financing of public education is something we have traditionally left to discretion of state legs
CONCURRENCE: (Stewart)
• Unlike other provisions of the Const, EP confers no substantive rights and creates no substantive liberties. The
function of EP is simply to measure the validity of classifications created by state laws. In refusing to invalidate
the TX sys of financing its public schools, the ct applies with thoughtfulness and understanding the basic
principles of EP.
DISSENT:
(White)
• Req the state to est only that unequal treatment is in furtherance of a permissible goal, w/o also req the state to
show that the means chosen to effectuate that goal are rationally related to its achievement, makes EP an empty
gesture.
(Marshall) – focuses on the nature of the standard of review; court is all over the place even with a specific standard
• Ct should scrutinize a particular classification based on the const and societal importance of the interest adversely
affected and the recognized invidiousness of the basis upon which the particular classification is drawn.
• Only if we protect a related interest from state discrimination can we ultimately assure the protection of the const
guarantee itself.
• Education directly affects the ability of a child to exercise his right of free speech and to participate in the
electoral franchise. As to wealth-based classification, don’t agree that we have always req that the poor suffer an
absolute deprivation of some benefit before we subject the classification to SS review. We have generally gauged
invidiousness of wealth based discrimination classifications with an awareness of the importance of the interests
being affected and the relevance of personal wealth to those interests.
• Discrimination on the basis of group wealth in this case also calls for careful judicial scrutiny. Those
disadvantaged by a lack of group wealth, unlike a lack of personal wealth, have no control over the factor that is
disadvantaging them.
• Importance of issue at hand—any substantial degree of scrutiny reveals that the State has selected means wholly
inappropriate to secure its purported interest in assuring its school districts local fiscal control.
ANALYSIS:
• Significance of this decision is that it defines what makes something a fundamental right.
• It is not the importance of the right that makes it fundamental. Rather, a right is fundamental if it is guaranteed
by the constitution either explicitly or implicitly.
• Education is not explicitly guaranteed in the Const.
• Ct doesn’t explicitly say what qualifies an interest as implicitly guaranteed, it suggests that there is an implied
guarantee if the right bears a peculiarly close relationship to other rights and liberties accorded protection under
the Const.
• Majority—education isn’t so closely related to the 1st amend rights or to the right to vote that it is fundamental.
○ Fenton – education is closely related to voting; everyone has to go to school
○ Compulsory education – is almost necessary to exercise the other liberties or rights guaranteed in the
constitution.
○ NO fundamental right to education
• Here, no deprivation of education, just a disparity in spending.
• Majority opinion here confuses more than it clarifies.
• Grutter and Grtaz – heavy reliance on relationship bw education, right to citizenship, and ability to exercise 1st
amendment rights. Support that university is a valid objective of state government.

Note: The Rodriguez Formulation

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 • Two critical disagreements:
○ Ct confined “fundamental interests” to only those rights that are “explicitly or implicitly protected by the
Const” whereas J. Marshall offered a “nexus” approach, focusing on the “extent to which const protected
rights are dependent on interests not mentioned in the Const.”
○ Ct adhered to two-tiered theory of EP review whereas J. Marshall offered a sliding-scale approach.
• If education were a “fundamental” interest, problems in judicial assessment of what kind of education, and how
much education a person is entitled to receive.
• School financing scheme upheld in Rodriguez treats individuals diff depending on where they live in the state
• Papasan v. Allain—Facts: While Mississippi was still a territory, Congress reserved plots of land w/in each
township for public schools, but failed to reserve lands in northern Mississippi which Chickasaws then held. Cong
sought to remedy by vesting certain lands in the state for the use of schools within the Chickasaw Cessation but
the state sold the lands and invested proceeds in RRs. Today school districts in most of the stat get ~$75/pupil
from reserved lands located w/in their borders, but Chickasaw Cessation schools get compensation for lost lands
of only $0.63/pupil. Claim: disparity violated EPC. COA affirmed TC’s dismissal of the claim, but the Sup Ct
reversed. Ct found it unnecessary to det whether such a denial would infringe on a fundamental right and trigger
SS. Ct ruled that LC erred in holding that Rodriguez compelled dismissal. Remanded to consider whether EPC
permitted state to dist income unequally among school districts.
○ Dissent—income from lands accounted for only 1.5% of all funding for the schools and such de minimus
variations in funding were insufficient to est an EPC violation.
• Ct attempted to add a measure of certainty to EP jurispurudence and withdraw from the arguably “subjective”
enterprise of selecting “fundamental” interests.
• Since Rodriguez, Although the Ct has continued to enforce “fundamental” interest analysis in the areas of
procreation, voting, access to cts, and travel, it has essentially frozen the list of “fundamental” interests and
maintained its two-tier approach.
○ But not entirely… see Plyler v. Doe

Plyler v. Doe
457 U.S. 202 (1982)
The state must have a substantial justification to enact a classification
that deprives an interest as important as education to all of the members of a group.
Opposite outcome as San Antonio v. Rodriguez
RULE: If the State (D) is to deny a discrete group of innocent children the free public education that it offers
other children residing within its borders, that denial must be justified by a showing that it furthers some
substantial state interest.
FACTS: (State gov’t v. Illegal immigrant school children)
• TX legislature passed a law allowing school districts to deny enrollment in their public schools to children who
were illegal immigrants (P).
• The Tyler Independent School District req undocumented children (P) to pay a full tuition fee in order to enroll in
its public schools. Suit brought on behalf of these children.
• Complete denial of education here, as opposed to below par education offered in Rodriguez
PROCEDURE: Appeal from lower ct’s finding that a state law violated EP.
ISSUE: Does denying illegal immigrant school children (D) free public education violate EP? [Yes]
HOLDING:
RATIONALE:
• Problem is to det which standard of review (rational review, intermediate scrutiny, or SS) is appropriate here.
• The law in question penalizes children for their immigration status—something they have no control over.
• Difficult to conceive of a rational justification for penalizing these children (P) for their presence in the US.
Penalizing children for parents’ misconduct does not comport with fundamental conceptions of justice.
• Moreover, education is more that just another gov’t “benefit” bc it plays a fundamental role in maintaining the
fabric of society.
• Cannot ignore significant social costs borne by our nation when select groups are denied the means to absorb the
values and skills upo which our societal order rests.
• Undocumented aliens are not a suspect class and education isn’t a fundamental right, however the TX law
imposes a lifetime of hardship on a discrete class of children who are not accountable for their disabling status.
• Discrimination contained here can hardly be considered rational unless it furthers some substantial state goal.

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 • There is no discernible fed interest that could be claimed as a rational basis for Texas (D) to deny undocumented
children (P) an education.
• Const grants special power to Congress in immigration, in the absence of any contrary indication fairly
discernible in the present legislative record,we perceive no national policy that supports the State denying these
children an education.
• State (D) has not come forward with any substantial state interest that will be furthered by denying these children
(P) an education.
• State argues—
○ (1) It wants to preserve limited financial resources for education of lawful residents  [ct rejects – State
must do more than justify a classification with a concise expression of an intention to discriminate.]
○ (2) Trying to protect itself from influx of illegal immigrants  [ct rejects – charging tuition to
undocumented children is a ludicrously ineffectual attempt to stem the tide of illegal immigration.]
○ (3) Claims undocumented children are appropriately singled out for exclusion bc special burdens they
impose on the State’s ability to provide high quality public education  [ct rejects – the record doesn’t
support this. Undocumented children are indistinguishable from legally resident alien children]
○ (4) Illegal immigrants are less likely to stay in TX than other children wnad will not put their education to
work for the benefit of the state [ct rejects – even if this were a legitimate interest, there’s no guarantee
that any child in a TX school will remain in TX]
• It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation
of a subclass of illiterates w/in our boundaries. If the State is to deny a discrete group of innocent children the
free public education that it offers children residing w/in its borders, denial must be justified by showing that it
furthers some substantial state interest. No such showing was made here.
• Is alienage a suspect classification? Only in economic benefit contexts. In issues of sovereignty they are not a
suspect class.
○ Federal authority as opposed to state authority distinguishes bw suspect class and not
○ The Exec and Leg branches of fed gov have explicit authority over aliens; judiciary tends to be deferential
here
• Close to Marshall’s approach in Rodriguez
CONCURRENCE:
(Blackmun)
• Nature of the interest is crucial to the proper resolution of this case. When state denies education to some, it
invariably creates class distinctions of a type fundamentally inconsistent with principles of EP.
• Children denied an education are placed at a permanent disadvantage. An uneducated child is denied even the
opportunity to achieve.
• Classifications involving complete denial of education are unique among classifications that deny gov’t benefits.
Education classifications strike at the heart of EP values bc the State creates permanent class distinctions.
• Given the extraordinary nature of the interest involved, the classification here demands something more than mere
rational basis review. The classification is fatally imprecise.
(Powell)
• Innocent children under this law would be denied education only bc of the acts of their parents.
• Our review is thus properly heightened.
• These children have been singled out for lifelong penalty and stigma. Classification that threatens to create a
permanent underclass of future citizens and residents cannot be reconciled with the fundamental purposes of the
14th.
• In these unique circumstances, the Ct properly may req that the State’s (D) interests be substantial and that the
means bear a fair and substantial relation to these interests.
DISSENT: (Burger)
• We trespass on the assigned function of the political branches when we assume a policy making role as the ct
does today. Once we det that illegal aliens are not a suspect class and education is nto a fundamental right, we
should focus on det whether the leg classification bears a rational relationship to a legitimate state purpose.
• It’s simply not irrational for a state to conclude that it has diff responsibilities toward ppl who are illegally in the
country and those who are legally present. The fed gov’t has seen fit to exclude illegal immigrants from
numerous social welfare programs. This supports the rationality of the State’s purpose of preserving limited
resources for the education of the legal residents of TX.
• The fact that there are sound policy arguments agst the State’s choice doesn’t render it unconstitutional.
ANALYSIS:

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 • Unique case bc applies heightened scrutiny even though there is no suspect classification or fundamental interest
involved.
• Ct finds that illegal alienage is not a suspect class, nor is education a fundamental interest.
• The fact that children are here thru no fault of their own is the factor that makes this classification especially hard.
• Also, education has a special place in our society.
• Distinguish from Rodriguez bc there is a total deprivation of education.
• Look at in conjunction w/ other alienage decisions…
• How do we know when there is a fundamental right?
○ Look to the constitution for identification (not all of the expressed fundamental rights are on the CON; i.e.
contracts and Lochner)
○ Natural law

Note: Plyler and the EPC

• Martinez v. Bynum—ct upheld a TX stat that authorized local school districts to deny tuition-free admission to
public schools to minors who live apart from their parents or guardians and whose presence in the district is for
the primary purpose of attending free public schools.
○ Challenged bona fide residence req implicates no “suspect” classification, doesn’t burden or penalize the
constitutional right of interstate travel, and the “service” denied to nonresidents is not a fundamental right
protected by the Const. The stat furthers the substantial state interest in assuring that educational services
provided for its residents are enjoyed only by residents. Req thus satisfies Const standards.
• Kadrmas v. Dickinson Public Schools—upheld a program whereby North Dakota permitted local school boards
to assess a user fee for transporting students to/from public schools. Appellants relied on Plyler and contended
that the fee which couldn’t exceed the estimated cost of providing the service, unconst deprived those who
couldn’t afford to pay it of minimum access to education. Ct explained that it had not extended Plyler beyond its
unique circumstances and Plyler didn’t govern here bc children weren’t penalized by the gov’t for their parent’s
illegal conduct. Ct saw no reason to suppose that this user fee will promote the creation and perpetuation of a
sub-class of illiterates. Const doesn’t req state to provide bus service at all, it surely doesn’t req it to provide free
service to anyone.
○ Dissent—to the extent a law places discriminatory barriers bw indigents and the basic tools and
opportunities that might enable them to rise, exacting scrutiny should be applied.
• Weber v. Aetna Casualty & Surety Co.—dissent: “relationship of the fundamental personal right analysis to the
const guarantee of EP of the law is approximately the same as that of ‘freedom of contract’ to the const guarantee
that no person shall be deprived of life, liberty, or property without the DP of law.”

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Unit 13: The Return of Substantive Due Process (Modern)

Modern Substantive Due Process: Privacy, Personhood, and Family

• Meyer v. Nebraska – court invalidated a state law prohibiting the teaching of any modern language other than
English in any public or private grammar school.
○ Liberty guaranteed by due process clause of 14th denotes not merely freedom from bodily restraint but
also the right of the individual to K, engage in any common occupations of life, acquire useful
knowledge, marry, establish home and bring up kids, to worship God according to dictates of own
conscience, and generally enjoy those privileges long recognized at common law as essential to orderly
pursuit of happiness by free men.
○ Liberty may not be interfered w/ by leg action which is arbitrary or w/out reasonable relation to some
purpose w/in the competency of state to effect
○ Individuals have certain fundamental rights that must be respected
○ Here, no emergency has arisen which renders knowledge of a child of some foreign language other than
English so clearly harmful as to justify its infringement of the right long freely enjoyed.
• Pierce v. Society of Sisters – court invalidated a state statute req students to attend public rather than private
schools. Court held that stat unreasonably interfered w/ the liberty of the parents and guardians to direct the
upbringing and education of children under their control.

The Right of Privacy

Griswold v. Connecticut
381 U.S. 479 (1965)
A broad const right of privacy protects intimate aspects of personal life from gov’t intrusion
RULE: A right of personal privacy emanates from the penumbras of the Bill of Rights, and it cannot be invaded
absent a showing that the legislation is necessary to accomplish a compelling state interest.
FACTS: (Planned parenthood director v. State)
• Griswold (D) was the director of Planned Parenthood League of Conn. He provided info, instruction, and medical
advice to married persons as to the means of preventing conception.
• One Conn. statute at issue prohibited the use of contraceptive devices. Another statute made it illegal to abet or
counsel another person to commit any offense.
• Griswold (D) was convicted under this accessory statute for counseling individuals to violate the contraception
law. He challenged the conviction on the ground that the accessory statute violated an implied privacy provision
in the DPC of the 14th.
• State interests: (1) prevent children from outside the marriage and (2) moral turpitude
PROCEDURE:
• The state appellate cts affirmed the conviction, and the Sup Ct granted certiorari.
ISSUE: Is there a constitutional right of privacy which is protected from gov’t intrusion? [YES]
HOLDING: There is a constitutional right of privacy which is protected from gov’t intrusion.
RATIONALE:
• We don’t sit as a super-legislature to det the propriety of laws that touch economic problems, business affairs, or
social conditions. However, the Connecticut (P) law operates directly on an intimate relation of husband and wife
and their counselor’s role in one aspect of that relation.
• Several fundamental rights are constitutionally protected even though they are not expressly mentioned in the Bill
of Rights. These include the right to educate one’s child in the school of the parent’s choice; the right to study
language in a private school; and the freedom to associate.
• The 1st Amend and other amendments in the Bill of Rights contain penumbras which create zones of privacy.
• Here, concerns a relationship lying w/in the zone of privacy created by several fundamental const guarantees.
• Conn’s (P) law seeks to achieve its goals by means of having a maximum destructive impact upon the marital
relationship. The law sweeps unnecessarily broadly and thereby invades an area of protected freedoms.

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 • Is this Lochner all over again? Aren’t individual rights really about the battle of power bw the courts and
legislatures? Who gets to tell you what rights you have?

CONCURRENCES:
(Goldberg)
• Agree that the concept of liberty protects those personal rights that are fundamental, it’s not confined to the
specific terms of the Bill of Rights. Liberty embraces right of marital privacy, although that’s not listed in Const.
• Finds support in the 9th, which reveals that Framers believed there are addt’l fundamental rights, protected from
gov’t infringement, which aren’t listed in the Bill of Rights.
• Allowing fund right of marital privacy to be infringed by the State would ignore and give no effect to the 9th.
• Cts must rely on traditions and the collective public conscience in det which rights are fundamental. These
fundamental rights bay not be abridged by simply showing that a reg stat has some rational relat to effectuation of
a proper state purpose. Rather, the State may prevail only upon showing a compelling interest, and the law must
be necessary to accomplish that interest.
• Conn (P) has not, and cannot, meet this strict test. Conn’s (P) purported purpose for the law, in preventing extra-
marital relations, can be served by a more discriminately tailored stat, which doesn’t sweep unnecessarily broadly.
(Harlan)
• Agree with result, cannot join Ct’s opinion that the DPC of the 14th doesn’t touch this Conn (P) statute unless the
enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
• Proper inquiry is whether the stat infringes DPC bc it violates basic values implicit in concept of ordered liberty.
• Conn’s (P) contraception stat is an intolerable and unjustified invasion of privacy in the conduct of the most
intimate concerns of an individual’s life.
• In order to be constitutional, the stat must pass a strict scrutiny analysis.
• Conn (P) does not even suggest a justification for the intrusive means it has chosen to effectuate its policy.
(White)
• Conn (P) stat deprives married couples of liberty w/o DP. The stat bears a substantial burden of justification
when attacked under the 14th. An examination of the justification can’t be acoided, however, by saying that the
stat invades a protected area of privacy.
• Such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not
arbitrary and capricious in application, are not invalid.
• Conn (P) contends the statute serves the State’s policy agst all forms of promiscuous or illicit sexual relationships.
• I fail to see how the ban on contraceptives by married couples reinforces the State’s ban on illicit sexual
relationships. At most, the broad ban is of marginal utility to the declared objective. Nothing in the record
justifies the sweeping scope of the stat.
DISSENTS:
(Black)
• Thinks this law is offensive like the majority but he doesn’t join in their conclusion.
• Gov’t has a right to invade privacy unless prohibited by some specific const provision.
• Concurrences that rely on the 9th and DP merely use diff words to claim the power to invalidate any legislative act
which the judges find irrational, unreasonable, or offensive. The power to make such decisions is legislative.
• The 9th was passed to assure the people that the Const was intended to limit the Federal Gov’t to the powers
expressly or implicitly granted.
• Reject the philosophy that this Ct has a duty to keep the Const in tune with the times. Subjective considerations
of “natural justice” are dangerous, whether used to enforce the Ct’s view about personal or economic rights.
• Conn’s law is not forbidden by the Const as it was written.
(Stewart)
• Thinks this is a silly law, but we are asked not to evaluate whether the law is unwise, rather we are asked to hold
that it violates the Const—can’t say it does. Nothing in the Bill of Rights to invalidate the Conn (P) law. To say
the 9th has anything to do with this case is to abandon history.
• The ct fails to identify any fundamental const guarantee which can be used to invalidate this law.
ANALYSIS:
• Important attempt by the Sup Ct to read a broad right of personal privacy into the const.
• Ct experienced considerable difficulty in defining a precise Const basis for invalidating an obviously absurd law.
• Biggest problem perhaps is the lack of any clear delineation of the scope of the const right to privacy.
• Penumbra—partially-darkened area outside of a shadow; an area bw complete shadow and complete illumination.

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 • 9th amendment - “The enumeration in the constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
Note: Griswold and the Right to Privacy
• No explicit general right to privacy in constitution
• Court’s use of privacy was at least partly an effort to overcome the specter of Lochner, which relied on DP clause
• Eisenstadt v. Baird – court (6-1) held that Massachusetts stat prohibiting the distribution of any drug or device to
unmarried persons for the prevention of conception violated the EP clause bc it provided dissimilar treatment for
married and unmarried persons.
○ Purporting to apply traditional rational basis review, court held that none of interest asserted in defense of
statute was sufficient to justify the challenged classification.
 (1) Court concluded that deterrence of premarital sex could not reasonably be regarded as
purpose of law
 (2) Court rejected contention that classification was designed to serve the health needs of the
community by regulating the distribution of potentially harmful articles.
 (3) Court rejected argument that stat could be sustained on moral grounds as a prohibition on
contraception
○ Rights must be the same for married and unmarried persons alike; rights are to individuals not groups.
○ If under Griswold distribution of contraceptives to married persons cannot be prohibited, a ban on
distribution to unmarried person would be equally impermissible.
○ Much easier decision here, but was more controversial than Griswold.
• Carey v. Population Services International – court (7-2) invalidated NY law prohibiting any person other than a
licensed pharmacist to distribute contraceptives. Teaching of Griswold is that the constitution protects individual
decisions in matters of childbearing from unjustified intrusion by the state. Restrictions on distribution of
contraceptives clearly burden freedom to make such decisions. Challenged law may be justified only by a
compelling state interest and must be narrowly drawn to express only the legitimate state interests at stake.

Abortion
Roe v. Wade
410 U.S. 113
Ct est trimester framework for abortion laws, upholding pregnant
woman’s const right of privacy and autonomy.
RULE: The 14th supplies a broad right of privacy and personal autonomy, entitling a pregnant woman to terminate
her pregnancy but also enabling state regulation of abortion at various stages of the pregnancy.
FACTS: (pregnant woman v. Dallas County. D.A.)
• Jane Roe (P), a pregnant single woman, challenged a TX abortion law, which made it a crime to procure an
abortion except for the purpose of saving the life of the mother.
• Roe (P) contended that the law improperly invaded the Const right of a pregnant woman to choose to terminate
her pregnancy.
• TX (D) argued that the fetus is a person, and that life begins at conception.
PROCEDURE:
• The District Ct granted declaratory relief to Roe (P), holding the law unconstitutional under the 9th.
• Sup Ct granted certiorari reviewing an order granting declaratory relief to pregnant women and holding abortion
law unconstitutional.
ISSUE: Does a pregnant woman have a const right to terminate her pregnancy in its early stages? [YES]
HOLDING: A pregnant woman has a const right to terminate her pregnancy in its early stages, even which the abortion
is not necessary to save the woman’s life.
RATIONALE:
• Right of privacy is fundamental, stems from the 14th’s concept of personal liberty, and is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy.
• Don’t agree with TX (D) that the unborn should be recognized as persons so that TX (P) may override the right of
a pregnant woman. On the other hand, we don’t’ agree that the right is absolute and that she is entitled to
terminate her pregnancy at whatever time she alone chooses.
• Some state regulation is appropriate. At some point in the pregnancy, the state’s interest in safeguarding the
health of pregnant women, in maintaining medical standards, and in protecting potential life, become sufficiently
compelling to sustain regulation of the factors governing the abortion decision.
• By the end of the 1st trimester, the health of the mother becomes a compelling issue, and at this point, the State
may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and
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 protection of maternal health. Prior to this compelling point, the attending physician and his patient are free to
det, w/o state regulation, that the pregnancy should be terminated. At a later point in the pregnancy, the interest in
potential life becomes compelling.
• This compelling point is at viability, when the fetus is potentially able to live outside the mother’s womb, albeit
with artificial aid.
• If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the mother.
• Measured agst these standards, the TX (D) law sweeps too broadly and cannot survive the const attack.
CONCURRENCE:
(Stewart)
• Liberty protected by DP covers more than freedoms explicitly named in the Bill of Rights. We have previously
upheld the right of an individual to be free from unwarranted gov’t intrusion into matters so fundamentally
affecting a person as the decision whether to bear a child.
• That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. The TX
(D) abortion statute infringes that right directly.
• The question becomes whether the state interests can survive the particularly careful scrutiny that the 14th reqs.
• State interests asserted by TX (D) are legitimate but can’t support broad abridgment of personal liberty imposed.
(Douglas)
• 14th concept of liberty includes freedom of choice in basic decisions of one’s life respecting marriage, divorce,
procreation, contraception, and the education and upbringing of children.
• These fundamental rights are subject to some control by the police power. Voluntary abortion at any time and
place regardless of medical standards would impinge on a rightful concern of society.
• The concern includes the woman’s health, and also the life of the fetus.
DISSENTS:
(White)
• Nothing in the language or history of the Const to support the Ct’s judgment. Ct simply fashions a new right for
pregnant mothers. Upshot is that the ppl and legislatures of the states are const disentitled to weigh the relative
importance of the continued existence of the fetus agst the possible impacts on the mother.
• The ct’s approach is an improvident and extravagant exercise of the power of judicial review. The issue is
sensitive and should be left with the ppl.
(Rehnquist)
• Difficulty concluding that the right of privacy is involved here. An abortion is not “private” in the ordinary use of
the word. Nor is the privacy which the Ct finds here even a distant relative of the 4th Amend freedom from
searches and seizures. If the ct means privacy to be a form of liberty protected by the 14th, there is no doubt that
similar claims have been upheld.
• But that liberty is not guaranteed absolutely agst deprivation, but only agst deprivation w/o DP.
• The traditional test is whether or not the challenged law has a rational relation to a valid state objective.
• The ct’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify and
understand. The decision to break the pregnancy into three terms and to outline permissible State restrictions
partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th.
• When the 14th was adopted, there were at least 36 laws limiting abortion. The only conclusion is that the drafters
did not intend to have the 14th withdraw from the States the power to legislate with respect to this matter.
ANALYSIS:
• Case one of most imp ‘right of privacy’ decisions, and one of the more controversial holdings in modern times.
• Majority finds right of privacy very broad, encompassing woman’s right to abort pregnancy.
• This right can be defeated—as can all fundamental rights—upon a showing of compelling state interests.
• Two relevant state interests: protecting woman’s health, and protecting the potential human life.
• Political underpinnings – wealthy people had no problem getting one, but poor people went to back alley
abortionists
• Under pinning for the “right to die” cases
• State interest in police power vs. the individual rights perspective that people have the right for bodily integrity
• Court is criticized for giving too much guidance to the states here (gets away from ideals of federalism)
• State for lengthy period of time only recognized a life only once it was born…then we switched.

Planned Parenthood of Southeastern PA v. Casey

505 U.S. 833 (1992)
Sup Ct reaffirms Roe v. Wade while trashing the trimester framework.

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RULE: The essential holding of Roe v. Wade remains valid, although the trimester framework and SS approach
are replaced by an undue burden test.
FACTS: (Family planning association v. PA state official)
• PA Abortion Control Act of 1982 imposed several restrictions on abortions. The Act required a woman seeking
an abortion to be provided with certain information 24 hours prior to the abortion to be provided with certain
information; required the woman to give her informed consent; mandated that a minor could not obtain an
abortion w/o the informed consent of her parents; required a married woman to notify her husband of her intended
abortion; and imposed reporting requirements on facilities that provided abortion services.
• The Act exempted compliance with the regulations only in the event of a medical emergency.
• Planned Parenthood of Southeastern Pa. (P) challenged the const of the Act, seeking declaratory injunctive relief.
PROCEDURE:
• Dist. Ct held that all of the provisions at issue were unconst.
• COA reversed, upholding all the provisions except for the husband notification req.
• Sup Ct granted certiorari to det whether the central holding of Roe v. Wade should be retained and applied to
invalidate PA’s Act.
ISSUE: (1) Should the essential holding of Roe v. Wade be retained and reaffirmed? [YES] (2) Should Roe’s trimester
framework be replaced by an undue burden standard? [YES]
HOLDING: The essential holding of Roe v. Wade should be retained and reaffirmed, and the trimester framework should
be replaced by an undue burden standard. Only spousal notification was deemed unconstitutional.
RATIONALE:
• Although some find abortion morally offensive, our obligation is to define the liberty of all, not to mandate our
own moral code. Our reservations are outweighed by the explication of individual liberty combined with the
force of stare decisis.
• Several considerations guide the stare decisis analysis and lead to the det that Roe shouldn’t be overturned: (a)
although controversial, Roe hasn’t proven unworkable, (b) Roe has caused reliance by ppl, who have organized
intimate relationships and made choices in reliance on the availability of abortion, such that repudiating the
decision would cause great hardship, (c) No const law development has left Roe behind as a mere survivor of
obsolete const thinking, and (d) although time has overtaken some of Roe’s factual assumptions, with techno
advances making abortions safer later in pregnancy and advancing viability to an earlier point, these facts go only
to the scheme of time limits and have no bearing on Roe’s central holding.
• Moreover, cases as intensely divisive as Roe carry special considerations, and overruling Roe would overtax the
country’s belief in the Ct’s good faith and would cause profound and unnecessary damage to the Ct’s legitimacy.
• Imperative to adhere to the essence of the original Roe decision.
(2)
• don’t consider the trimester framework to be part of the essential holding of Roe, and the framework isn’t
necessary to ensure that the woman’s right exists only in theory. Trimester framework is flawed, as it
misconceives the nature of the pregnant woman’s interest, and it undervalues the State’s interest in potential life.
• Only state regulations that impose an undue burden on a woman’s right to choose are unconstitutional. An undue
burden exists if law’s purpose or effect is to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.
• NEW STANDARD: As long as it doesn’t create an undue burden, a State may take measures to ensure that the
woman’s choice is informed, and it may enact regulations to further the health and safety of the woman seeking
the abortion.
• But our adoption of the undue burden analysis doesn’t disturb central holdings of Roe: a state may not prohibit
any woman from deciding to terminate her pregnancy before viability; and subsequently to viability the State may
proscribe abortion except where necessary, in appropriate medical judgment, for the preservation of life or health
of the mother.
• 24-hour wait and informed consent req is not an undue burden on the right to decide to terminate a pregnancy bc
it facilitates the wise exercise of that right. The husband notification, however, is an undue burden as it often acts
as a substantial obstacle to a woman’s choice, and is repugnant to our present understanding of marriage.
• A state may req a minor to obtain informed consent of parents, although the State must also provide an adequate
judicial bypass procedure. With respect to facility reporting reqs, we uphold provisions bc they relate to health
and don’t impose a substantial obstacle to woman’s choice.
CONCURRENCE and DISSENT:
(Stevens)
• Agree with stare decisis analysis, as cost of overruling Roe would be enormous. Disagree with dismantling of
trimester framework. It is not a contradiction to realize that the State may have a legitimate interest in potential
human life and, at the same time, to conclude that the interest does not justify the regulation of abortion before
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 viability. State may take steps to ensure a woman’s choice is informed, but serious questions arise when State
attempts to persuade her to choose childbirth over abortion.
• 24 hr wait period—no evidence delay benefits women or is necessary to convey relevant info.
• State cannot further its interest in potential life by simply wearing down the ability of the pregnant woman to
exercise her const right.
• Counseling provisions create undue burden and don’t serve a useful purpose.
(Blackmun)
• Right to reproductive choice is entitled to the full protection afforded by our previous cases. Const reqs that
abortion restrictions be subjected to the strictest of scrutiny. State restrictions on abortion violate a woman’s right
to privacy by infringing on her right to bodily integrity and by depriving her of the right to make critical choices
about reproduction and family planning.
• Restrictions implicate const guarantees of gender equality, conscripting a woman’s body to State’s service.
• SS standard should stand, along with the trimester framework, instead of the undue burden standard.
(Rehnquist)
• Roe was wrongly decided and can/should be overruled consistently with our traditional approach to stare decisis.
Roe ct was mistaken in classifying a woman’s right to terminate her pregnancy as a fundamental right that could b
abridged only if it withstood SS.
• Principles of stare decisis don’t req any portion of Roe be kept intact. In the end the joint opinion’s stare decisis
argument is based on the general assertions about the nation’s psyche, and on the fact that Roe is so intensely
divisive that it should not be overruled. This is a novel principle and under it, once the ct has ruled on a divisive
issue, it is prevented from overruling that decision even if it was incorrect.
• In addition, the joint opinion’s “undue burden” standard is no more workable than the trimester framework.
• States should be allowed to regulate abortion procedures in ways rationally related to leg state interests.
• Spousal notification req rationally furthers leg state interests in protecting the interests of the father and in
protecting the potential life of the fetus.
(Scalia)
• Power of woman to abort her unborn child is not a liberty protected by the Const. Const says nothing about it,
and the longstanding traditions of American society have permitted it to be legally proscribed.
• Joint opinion presents an undefined “undue burden” standard that invites a district judge to assert his personal
preferences about abortion, and its reliance on stare decisis is contrived at best.
• Roe nourished, rather than resolved, the nat’l debate on abortion. It created a new class of abortion consumers
and proponents, inflamed national politics, and kept the Ct in the business of acting as umpires to the abortion
controversy.
• Appalled by the Ct’s suggestion that the decision whether to stand by an erroneous const decision must be
influenced by substantial public opposition to the decision, and I disagree that overruling Roe would subvert the
Ct’s legitimacy.
• In any event, the suggestion that we would decide a case diff from the way we would otherwise have in order to
show we can stand firm agst public disapproval is frightening. Roe should be overruled, bc it wasn’t correctly
decided and hasn’t succeeded in producing a settled body of law.
ANALYSIS:
• Compare to Lochner line of cases and eventual overturning – look t society and how we should best get to a
particular point.

Stenberg v. Carhart
530 U.S. 914 (2000)
Law criminalizing partial birth abortion is unconst.
RULE: A law banning partial birth abortion creates an undue burden on a woman’s right to obtain an abortion.
FACTS: (Nebraska Atty Gen. v. Dr.)
• Neb law banned partial birth abortion unless the procedure was necessary to save the life of the mother.
• Statute defined “partial birth abortion” as an abortion in which the live fetus is partially delivered vaginally and
then killed before the delivery is completed.
• Violation of the law was a felony, carrying prison term of up to 20 years, a fine of up to $25,000, and revocation
of a doctor’s license to practice medicine in Neb.
PROCEDURE:

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 • The 8th circuit COA found the stat unconst.
• Certification of 8th circuit COA decision finding law banning partial birth abortions unconst.
ISSUE: Does law banning partial birth abortions place an undue burden on a woman’s right to obtain an abortion? [YES]
HOLDING:
RATIONALE:
• Abortions in the US general background:
○ 90% abortions in US are during 1st trimester and by vacuum aspiration, low mortality rates.
○ 10% abortions in US are during 2nd trimester. 95% of these are thru dilation and evacuation – cervix is
dilated and the fetus might not be removed intact. After 15 weeks of gestation, dismemberment may
occur. D&E involves some risks, but its safer than induced labor, the next safest mid-second trimester
procedure. After 16 weeks, doctors often perform an “intact D&E” where dr collapses the fetus’s skull
and extracts the entire fetus thru the cervix. When fetus is breech, doctor pulls the fetus’ body thru
cervix, collapses the skull, and extracts the fetus—D&X. D&X is beneficial for nonviable fetuses and for
women with uterine scars or for women whom induction of labor would be dangerous.
• The Nebraska law is unconst for two reasons:
○ (1) lacks any exception for the preservation of the mother’s health, as req in Casey. The law does not
further an interest in the “potentiality of human life” bc it regulates only a method of abortion. Neb’s
interest in “showing concern for the life of the unborn” is irrelevant to the application of a “health”
requirement. [undue burden]
 A state may promote, but not endanger, a woman’s health when it regulates abortion methods.
 Some evidence in TC level showed D&X sometimes to be safest procedure. By not allowing a
woman to have a D&X abortion, the Neb law forces women to use riskier methods of abortion,
thereby endangering their health.
○ (2) the statute’s lang is too broad. A D&E abortion may fall w/in the law’s def of partial birth abortion.
Thus, if Neb intended to ban only D&X, the stat’s lang is too broad. [undue burden]
• The state atty general (P) argues that the statute bans abortions where a “substantial portion” of the fetus is
brought thru the cervix, and this means the fetus’ body. However, this interpretation conflicts with the statute’s
lang and we reject it.
• Bc the stat may punish doctors who use the D&E procedure, such doctors may fear prosecution. This creates an
undue burden upon a woman’s right to choose to have an abortion, and is therefore unconst.
CONCURRENCE:
(Stevens)
• All methods of abortion discussed here are equally gruesome. Neb’s claim that one form of abortion is more akin
to infanticide or that banning one but not the other furthers a legitimate interest is irrational.
(O’Connor)
• The Neb law is unconst bc it lacks an exception where the banned procedure is necessary to preserve the mother’s
health. It is also unconst bc it palces an undue burden on a woman’s right to obtain an abortion by banning D&E
abortions. If the statute were limited to D&X procedure and included an exception for the mother’s life and
health, the question here would be very different.
(Ginsburg)
• The law is unconst bc it creates a substantial obstacle in thepath of a woman seeking an abortion. Burden is
undue if its only purpose is as a vehicle for legislators to express their hostility to const rights.

DISSENT:
(Scalia)
• In keeping with Casey holding, I disagree with what the majority considers an “undue burden.” Whether a burden
is undue should not be based on factual inquiry or legal reasoning. It is a value judgment based on how much one
respects the life of a partially delivered fetus and a woman’s freedom to kill it.
• The question at issue is whether the Neb law goes too far in limiting abortion.
• The Const is silent on this issue, and the ct should return it to the States to decide.
(Kennedy)
• The majority’s description of the abortion methods at issue is cold and clinical. D&E procedure tears the fetus
apart and the fetus lives short period then dies. In D&X, (very explicit about fetus dying). Nebraska has a
legitimate state interest in banning this procedure. Ned has the right to declare a moral diff bw the two
procedures.

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 • Neb could conclude that D&X presents a greater disrespect for life and a greater risk to the medical profession
and to society. Also, allowing drs to decide whether a D&X is necessary to preserve the mother’s health gives
doctors the right to veto the State’s judgment that the procedure shouldn’t be performed.
• Following Casey does not mean that doctors must always decide the relative safety of a particular procedure.
• Moreover, while D&X may sometimes be less risky than other procedures, other procedures are available and
safe
• However, cts are not able to evaluate the worth of particular procedures. State legs are better able to decide.
• The ct reqs Neb to meet unattainable standards of statutory draftsmanship, when the commonsense understanding
is that the statute covers only the D&X procedure.
(Thomas)
• The Casey standard has no legitimate const basis. Even assuming that Casey merits adherence, the Ct’s decision
is extraordinary. The majority disregards the principle that stats that are susceptible to a narrowing construction
should not be struck down. It is doubtful that Neb’s statute applies to ordinary D&E abortions. Neb has a valid
interest in prohibiting a procedure that approaches infanticide. A nurse’s testimony on the procedure is sufficient
authority for Neb’s view.
• With respect to the health req, the ct reqs a State to conclusively est that an abortion procedure is no safer than
other procedures before the State can regulate it. Prohibiting a partial birth abortion w/o a health exception does
not create a barrier to any woman’s ability to obtain an abortion, and if it did create an obstacle, the obstacle
would not affect a sufficient number of women.
• Any increased health risk from banning partial birth abortions is minimal. In fact, some evidence suggests that
partial birth abortions increase health risks relative to other procedures. The Casey opinion repeatedly reassured
us that abortions can be regulated. Under Casey, Neb’s law should easily pass const muster.

Gonzales v. Carhart
127 S. Ct. 1610 (2007)
RULE:
FACTS:
• Attach on Partial-Birth Abortion Ban Act of 2003 which regulates proscribes, with exceptions or qualifications,
performing the intact procedures.
• Congress wrote this statute – usually not the role of Congress; traditionally a state power. They used the
commerce clause to justify this bc people would travel around to get what they wanted…
• Included exception for mother’s health reasons
PROCEDURE:
• Petitioner, the United States Attorney General, sought certiorari review of judgments from the United States
Courts of Appeals for the Eighth and Ninth Circuits affirming district court rulings in favor of respondents,
abortion doctors and abortion advocacy groups.
• The rulings found the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C.S. § 1531, unconstitutional on its face
and enjoined petitioner from enforcing the Act.
ISSUE: Is the Partial-Birth Abortion Ban Act of 2003 constitutional?
HOLDING: Act should be sustained against the objections lodged by broad, facial attack brought against it.
RATIONALE:
• The Court applied the Casey standard, which included the central premise that the Government had a legitimate,
substantial interest in preserving and promoting fetal life.
• The Court concluded that this premise would be repudiated if it affirmed the judgments.
• The Court held that the Act, on its face, was not void for vagueness and did not impose an undue burden from any
overbreadth.
• The Court rejected respondents' contention that the scope of the Act was indefinite.
• The Act clearly proscribed performing only the intact dilation and evacuation procedure.
• Further, the Act's scienter requirement narrowed the scope of the Act's prohibition and limited prosecutorial
discretion.
• The restrictions on second-trimester abortions were not too broad because the Act provided specific anatomical
landmarks and included an overt-act requirement.
• The Court also held that the Act's failure to allow the banned procedure's use where necessary for the mother's
health did not have the effect of imposing an unconstitutional burden of the abortion right because safe medical
options were available.
• The Court found that the proper means to consider exceptions was by as-applied rather than facial challenges.

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 ○ This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-
defined instances a particular condition has occurred or is likely to occur in which the procedure
prohibited by the act must be used.
○ In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a
facial attack.
• Court assumed these principles:
○ Before viability, a state may not prohibit any woman from making the ultimate decision to terminate her
pregnancy
○ May not impose on this right an undue burden, which would exist if leg places substantial obstacle in the
path of the woman.
• Unlike the stat language in Stenberg that prohibited the delivery of a “substantial portion” of the fetus – where a
doctor might question how much of the fetus is a substantial portion – the Act defines the line bw potentially
criminal conduct on the one hand and lawful abortion on the other.
• Just as the Act’s anatomical landmarks provide doctors with objective standards, they also establish minimal
guidelines to govern law enforcement.
CONCURRENCE: (Thomas and Scalia)
• Court’s opinion accurately applies current jurisprudence
• Writes separately to reiterate view that the court’s abortion jurisprudence has no basis in the constitution, and also
notes that whether the act constitutes a permissible exercise of Congress’s power under the Commerce Clause is
not before the court.
DISSENT: (Ginsburg, Stevens, Souter, Breyer)
• Of signal importance here, the Casey court stated w/ unmistakable clarity that state regulation of access to
abortion procedures, even after viability, must protect the health of the woman.
• For the first time since Roe the court blesses a prohibition with no exception safeguarding a woman’s health.
• Court upholds an act that surely would not survive under the close scrutiny that previously attended state-decreed
limitations on a woman’s reproductive choices.
NOTES: (Carhart Cases together)
• Relationships bw patients and doctors – vast majority of women who seek late term abortions need to do so for
medical reasons
• Graphic nature of these decisions is purely political
• During the 7 years bw the cases O’Connor resigned. She was a swing vote in these situations

Due Process Rights:

• How would you argue that something new is a fundamental right?
○ Historical
○ Tie into one of enumerated rights in the CON and it is necessary for realization of those enumerated
rights
○ Analogy to other identified fundamental rights
• These are just techniques; not guarantees
○ Look at whether gov has affirmative action to take in it or to leave the individual alone
○ Social contexts; politics
○ Each argument in any given case is internally consistent (topically)
PHASE II
Unit 14: Freedom of Speech
• Free speech has never been considered absolute
• Obscenity – our views have changed over time
• Censorship and prior restraint used to be widely acceptable
• Refuge of the 1st amendment is political
• The state has a greater interest in some sorts of speech than other forms of speech

Introduction
• 1st Amendment – “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress of grievances”
• Elrod v. Burns – Court has consistently held that abridging and the freedom of speech require interpretation, and
that restraints on free expression may be permitted for appropriate reasons.
Note: The History of Free Expression
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 • 3 forms of restraint were most commonly used in English history: (1) licensing of press, (2) doctrine of
constructive treason, and (3) law of seditious libel.
• Although colonial America was the scene of extraordinary diversity of opinion on religion, politics, social
structure, and other subjects, each community tended to be a tight little island clutching its own respective
orthodoxy and eager to banish or extra-legally punish unwelcome dissidents.
• Zenger Trial: Formal legal restraints in expression were relatively rare. Most famous seditious libel case
involved the prosecution of John Peter Zenger in NY in 1735. Zenger, publisher of NY Weekly Journal was
charged w/ seditious libel by Governor General of NY, whom he had criticized. Zenger argued unsuccessfully to
the judge that the truth of the libel should be an absolute defense. The jury, responding to the popularity of
Zenger’s cause, disregarded the judge’s instructions and returned a verdict of not guilty.
• Primary dispute regarding the 1st amendment is over whether the framers intended to adopt the Blackstonian view
– that freedom of speech consists entirely in the freedom from prior restraint – or whether they intended some
broader meaning.
• Sedition Act of 1798: first serious challenge to freedom of expression in US. US was on verge of war w/ Franc,
and many ideas generated by the French Revolution aroused fear and hostility in segments of US population.
Political and philosophical debated raged bw Federalists (in power) and Republicans. Federalists enacted the
Sedition Act which prohibited the publication of: false, scandalous, and malicious writing against the gov, w/
intent to defame them… Provided further that truth would be a good defense and that malicious intent was an
element of the crime.
○ Only vigorously enforced against Republican Party
○ Supreme Court never ruled on it and expired on its own on March 3, 1801.
Note: The Philosophy of Free Expression
• Abrams v. US (dissent) – search for truth rationale for protection of free expression ersts on the premise of the
“marketplace of ideas”
• Rationales for the protection of free expression:
○ Search for truth (marketplace of ideas) – all ideas should be out there to find the best of them
 Problems: the good ideas don’t always surface
○ Self-governance (all we need is universal suffrage to ensure free speech; your vote is your voice)
○ Self-fulfillment/autonomy
○ Checking abuse of power by public officials
○ Tolerant society
Note: Organization
• The first amendment’s guarantee of free speech, press, assembly, and petition are structured in accord w/ 2
distinctions that have played a central role in the court’s analysis:
○ (1) distinction bw content-based and content-neutral restrictions
 Content-based: restriction bc of message
 Content-neutral: restrict w/out regard to message

○ (2) distinction w/in the realm of content-based restrictions bw high and low value expression
 Court has long adhered to the view that there are certain categories of expression that do not
appreciably further the values underlying the 1st amendment
 Ex. Obscenity, commercial advertising, false statements of fact

Schenck v. US
249 U.S. 47
(Holmes’ unanimous opinion gives birth to the “Clear and Present Danger” test)
RULE: The Constitution permits the punishment of speech when the words are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent.
SUMMARY:
• An anti-conscription activist was charged for violating the Espionage Act when he circulated leaflets intended to
hinder US’s conscription efforts during a time of war.
• 1917 Espionage Act – Federal Legislation punishing certain acts of hindrance against the US during WWI
• Freedom of Speech – 1st amendment’s concept of speaking freely without the threat of government punishment.
FACTS:
• Schenck was indicted on 3 counts for acts he committed while the US was engaged in WWI
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 ○ Conspiracy to cause insubordination by circulating anti-conscription leaflets
○ Conspiracy to use the postal service in such a way to violate the 1917 Espionage Act
○ Unlawful use of the mail systems in violation of the Act.
• The Circular Schenck was passing out states that the Conscription Act violated principles of the 13th Amendment.
○ Implied the draft was despotism in its worse form (comparing draftees to convicts)
○ The draft was a wrong against humanity in the interest of Wall Street’s chosen few
• However, the leaflet called for only peaceful measures such as petition for the repeal of the Act.
• The backside of the circular was entitled “Assert Your Rights” and declared it to be a constitutional right and duty
of citizens to assert their opposition to the draft.
○ “You must do your share to maintain the rights of the people of the country”
○ Keeping silent would be assisting a conspiracy of cunning politicians and a mercenary capitalist press.
• Schenck argued 1st Amendment as a defense, but was convicted on all 3 counts…appealed to Supreme
Court…SC affirms
ISSUE:
• Does the Constitution permit punishment of speech where the words re used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent? [YES]
RATIONALE:
• Schenck would not have sent the document unless he intended it to have some effect
• The Court does not see what effect could be expected on persons subject to the draft except to influence them to
obstruct the draft.
• The Court admits that in many places and ordinary times the opinions stated in the circular would have been
within Schenck’s constitutional rights
○ However, the character of every act depends on the circumstances in which it is done
○ The most stringent protection of free speech would not protect a man to falsely shout “FIRE” in a theatre,
thus causing panic.
• THE TEST IN THIS CASE
○ Whether the words, considering all the circumstances, are of such a nature as to create a “clear and
present danger” that they will bring about substantive evils that the gov is entitled to prevent.
• During wartimes, words permitted in peacetime may be such a hindrance to our nation’s efforts that those words
cannot be protected as a constitutional right.
• The Espionage Act punishes conspiracies to obstruct as well as actual obstruction, and if the words, its tendency
and the intent with which it is done are the same, there are no grounds for saying that success alone warrants
making the act a crime.
ANALYSIS:
• This case dealt with one of the ore difficult applications of limiting speech –limiting political speech
• The clear and present danger test provided only a modest protection of speech.
• The application of the test resembled the analysis used in determining criminal attempt in which punishment rests
on how close the actions came near the substantive offense.
• The Court believed that Schneck’s criticisms (in the unpredictable circumstances of war) presented a clear and
immediate danger of hindering the military’s conscription efforts.
• The difficult balance and possibly overstretching analogy is the comparison by Holmes of political speech and
shouting “FIRE” in a theatre.
○ Shouting “FIRE” embraces a statement of fact, while political speech contains opinions and expressions.
○ Expressions and opinions of a political nature are cherished by the values of our representative
government.
○ Punishment of legitimate political dissent threatens the freedoms embodied in a free government and
factors political tyrannies.
• The red scare was going on during this time.
• Same context as the PATRIOT Act today.
• Our founding was a rebellion against the government so to limit speech against the gov is hypocritical.

Abrams v. US
250 US 616
(Holmes’ famous Abrams dissent attempts to give the clear and present danger test teeth by calling for genuine)

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RULE: Punishment under the Espionage Act is constitutional where the individuals intend to produce an outcome
that obstructs the US in its prosecution of the war.
SUMMARY: Russian immigrants were convicted for distributing leaflets urging a general strike at munitions factories in
an effort to prevent the use of munitions against Russian revolutionaries.
FACTS:
• After the Russian Revolution of 1917, the controlling revolutionary government signed a peace treaty with
German.
• The overthrown Czarist government of Russia and the US had been allies in the war against Germany.
• In 1918, the US dispatched military forces to the Soviet Union.
• Perceiving this move as an attempt to defeat the Russian revolution, the Abrams defendants, being Russian
immigrants, produced and distributed thousands of leaflets in New York encouraging workers in munitions
factories to strike and stop the manufacturing of weapons.
• Under a new amendment to the Espionage Act, the Russian immigrants were convicted of intending to encourage
resistance to the US, and conspiring to curtail the production of ammunition necessary for executing that war
against Germany.
• The Abrams defendants appealed.
ISSUE:
• Does the First Amendment protect individuals who act with intent to produce an outcome that indirectly obstructs
the United Stated in its protection of the war? [NO]
RATIONALE: (Clarke, J.)
• Punishment under the Espionage Act is constitutional where the individuals intend to produce an outcome that
obstructs the US in its prosecution of the war.
• The Abrams defendants, self-described “revolutionists” and “anarchists,” must have intended the results which
their acts were likely to produce, even if it was not their primary purpose.
• Their intent and goal was to assist the Russian revolution.
• But the means of stopping the production of ammunition, which is evident from the widely dispersed articles,
would necessarily defeat the war efforts of the US.
• The plain purpose of the leaflets was to excite sedition, riots and revolution in the US at volatile time of war
defeating all of the US’s military objectives in Europe.
DISSENT: (Holmes, J.) – Changes application of the “clear and present danger” test to one of real and intentional danger
• The majority’s conviction of the Abrams defendant are not supported by the Russian immigrants’ publication of
two leaflets as they assert.
• The first leaflet intimates that German militarism and American capitalism has secretly combined to crush the
working class enlightenment occurring in Russia.
• It adds, “It is absurd to call us pro-German. We hate and despise German militarism more than do you
hypocritical tyrants.”
• The other leaflet invites Russian emigrants in munitions factories to stroke.
• It asserts that bullets that the workers produce will not only be used to murder Germans but also in Russia fighting
for freedom.
• It is clear that the leaflets, mainly the second, do urge the curtailment of production of materials necessary for the
war, as prohibited in the Espionage Act.
• However, under the Act, there must be a showing of“intent by such curtailment to cripple or hinder the US in the
prosecution of the war with Germany.”
• No such intent is proved. In finding the requisite intent of this statute, the court should interpret the words strictly
and accurately, not the commonly used “knowledge of result” test.
• That is, a deed is not done with intent to produce the commonly used “knowledge of result” test.
○ That is, a deed is not done with intent to produce a consequence unless the consequence is the aim of the
deed.
○ For example, if a patriot advocated the curtailment of plane production because he thought it was
wasteful, and it clearly would hinder war efforts, the patriot’s conduct should be no crime.
• More importantly, Congress may constitutionally restrict speech that creates a clear and present danger of
immediate evil or intent to bring about substantive evils.
• The only object of the leaflet is to help Russia and stop American intervention against the Revolution, not to
impede the US conflict against Germany.
• Only in emergencies of immediate danger may Congress sweep expressions and opinions from the free market.
• Has to be a real and intentional danger.
• A question of fact and degree

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ANALYSIS:
• In contrast to the other Espionage Act Schenck, Frohwerk, and Debs, Holmes’ application of the clear and present
danger test promoted the protection of speech to the extent that a genuine immediacy of a danger or an intent to
bring it about must be present.
• Holmes’ dissent in Abrams marked the first time the clear and present danger test generated a dissent.
• He noted that the principles of the clear and present danger test do not change, though, in application, the
immediacy of danger may be more likely during a time of war.
• In this case, Holmes’ concluded that despite wartime tensions, the Abrams defendants’ circular did not present an
immediate danger.
• Justice Hand believed that the clear and present danger test was unworkable, and that the freedom of speech
should not rest on guesses about the future impact of words.
• Hand believed the determination of punishable speech should rest on a more feasible and concrete analysis;
particularly that Congress may punish speech only where the word are directly an incitement.

Gitlow v. New York

268 US 652
The Clear and Present danger test does not apply to a state law
that directly prohibits a certain type of speech
RULE: The clear and present danger test does not apply to state laws where the state legislature has determined,
in the constitutional exercise of its police powers; that certain kinds of utterances involve such danger of
substantive evil that they may be punished.
SUMMARY: A socialist produced and distributed a Manifest which advocated the overthrowing of the US government
in violation of New York’s anarchy law.
FACTS:
• As a member of the Left Wing Section of the Socialist Party in New York, Gitlow acted on a board in charge of
adopting a “Manifesto.
• He was also in charge of printing and publication of the Left’s official organ, The Revolutionary Age, which
contained the Manifesto.
• The Manifesto advocated the mobilization of the proletariat in accomplishing a Communist Revolution in the US.
• Gitlow further called for mass industrial and political strikes in order to overthrow the present US government and
replace it with Socialist government for the proletariats.
• Gitlow was charged with violation of NY’s criminal anarchy law, which prohibited the advocacy of
overthrowing the government by force or violence.
• Punishment under the law included advocating anarchy by “word of mouth,” which included printing, publishing
or knowingly circulating material hereby proscribed.
• Gitlow was charged on two counts: printing and circulating.
• The jury was instructed that in order to convict Gitlow they were required to find that the Manifesto accomplished
the teaching, advising, and advocacy or employing such unlawful acts for the purpose of overthrowing the
government.
○ Gitlow objected the instructions saying it lacked the requirement that the Manifesto call for immediate
acts against the government.
• Gitlow’s argument that the mere utterance of anarchy without proof of incitement was rejected.
ISSUE:
• Does the clear and present danger test apply to state laws where the state legislative body has determined, in the
constitutional exercise of its police powers, that a certain kind of utterances involved such danger of substantive
evil that they may be punished?
RATIONALE: (Sanford)
• NY’s anarchy law does not penalize publications of abstract discussion having no quality if incitement to any
concrete action.
• It prohibits language advocating the overthrow of the organized government by unlawful means.
• The Manifesto is clearly no statement of abstract doctrine, but instead a call for a revolution through means which
necessarily imply force and violence.
○ It advocates and urges in fervent language revolutionary mass action to overthrow and destroy organized
parliamentary government.
○ It states, “The communists International calls the proletariat of the world to the final struggle.”
 These words are direct incitement.

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 ○ We assume that the 14th Amendment protections of due process encompasses freedom of speech
protections provided by the 1st Amendment, but this protection does not confer an absolute right to speak
without responsibility. (Nor does it deny the primary right of the State to self-preservation)
• A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and
destructive conflagration. (The state cannot reasonably be expected to weigh every utterance on a jeweler’s scale)
• It cannot be said that this statute is arbitrary or unreasonable
• We disagree that the clear and present danger test is applicable here
○ When the legislative body has determined generally, in the constitutional exercise of its discretion, that
utterances of a certain kind involve such danger of substantive evil that they may be punished, the
question whether any specific utterance coming within the prohibited class is likely, in and of itself, to
bring about the substantive evil, is not open to consideration.
• It is sufficient that the statue itself be constitutional and that the use of the language comes within its prohibition.
DISSENT: (Holmes)
• If the protections of the DP clause encompass the 1st Amendment’s freedom of speech, then the clear and present
test should apply.
• Here, there was no present danger of an attempt to overthrow the government.
• The majority declares the Manifesto an incitement.
• Every idea is an incitement.
• It offers itself for belief, and if believed, it may be acted upon. The present discourse had no chance of igniting a
present conflagration.
• If the publication of this document had been laid as an attempt to induce an uprising against government at once
and not at some indefinite time in future it would have presented a different question.
ANALYSIS:
• The statute from which Gitlow was convicted became very common during the “Red Scare” era.
• From the conclusion of WWI and the Russian Revolution to the 1930’s, this era was characterized by
antiradicalism in the form of mass deportations and state laws prohibiting the advocacy of criminal anarchy and
syndicalism.
• In reviewing conviction under these statutes, the Supreme Court had trouble in deciding whether to apply the
clear and present danger test because the state legislature in directly proscribing a certain type of speech has
already determined that the speech is a serious threat to the state.
• This differs from convictions under the Espionage Act in that the freedom of speech issue arose only after it was
argued that certain types of speech constituted attempt or conspiracy.
• The Gitlow court opted to defer to the state legislature in not applying the clear and present danger test.
• A great disadvantage to the court’s decision was a lack of uniformity in the protection of US citizens’ freedom of
speech.
• Circumstances surrounding an individual’s speech would be applied to the local statute protection of one federal
clear and present danger test.
• Thus, a speaker in New York may find less protection to her freedom to speak by the 14th Amendment than a
writer in California.
• And where a statute did not require immediate harm, then the Supreme Court, in reviewing a conviction, would
not investigate the existence of an immediate danger.
• According to the court, only where the statue prohibits certain acts and not directly would the clear and present
danger test apply.
• This decision extended the 14th amendment to the states regarding free speech

Whitney v. California
274 US 357
(Justice Brandeis’ concurrence acts as a dissent in endorsing the clear and present danger test)
RULE: A state may, in the exercise of its police powers, punish utterances inimical to the public welfare as inciting
crime, disturbing the public peace, or threatening the unlawful overthrow of organized governments.
SUMMARY: A member and organizer of a radical communist party was convicted under a criminal syndicalism statute
even though she did not intend for the group to use violent and unlawful tactics.
FACTS:
• In 1919, Anita Whitney attended a national convention of the Socialist Party.
• The convention split between radicals and moderates.
• The radicals, including Whitney, formed the Communist Labor Party (CLP).
• Later that year, Whitney participated as a delegate as a convention called to organize a California unit of the CLP.

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 • As a member of the resolutions committee, she supported a moderate resolution proposing the achievement of the
CLP’s goals through traditional political processes.
• The proposal was defeated in favor of a more militant program.
• Nevertheless, Whitney remained a member though she did not intend that the CLP of California be an instrument
of violence.
• For the foregoing actions, Whitney was convicted under the Criminal Syndicalism Act of California.
• The charge was that she helped organize and knowingly became a member of an association organized to
advocate, teach and aid criminal syndicalism.
• Although Whitney admits to the charges, she argues that her conviction violates due process because she could
not have known that the CLP would become radical and she did not intend it to be violent, as evinced by her
support of the moderate platform.
• Her defense was rejected and she was convicted.
ISSUE:
• May a state punish a person for knowingly joining and assisting the organization of an association which utilizes
unlawful and violent means to advance its causes without violating the constitutional protections?
RATIONALE: (Sanford)
• Applied the “clear and present danger” test, but a much softer standard. More favorable to gov.
• TEST: A state may, in the exercise of its police powers, punish utterances inimical to the public welfare as
inciting crime, disturbing the public peace, or threatening the unlawful overthrow of organized governments.
• Whitney’s contention, although presented as a constitutional challenge to the Act, is that she did not knowingly
join and assist the organization of the CLP.
• This is a question of fact and is not under review of this Court.
• The Act is not repugnant to the due process clause as a restraint of the rights of free speech, assembly and
association.
• As set forth by Gitlow, a state may punish utterances that incite crime, disturb the public peace, or threaten the
unlawful overthrow of organized governments.
• Great weight is given to legislative determinations.
• Here, the violations of combining with others in an association for concerted unlawful efforts is similar to
criminal conspiracy.
• Both involve greater dangers than single isolated incidents.
• We cannot find that the Act is an unreasonable or arbitrary exercise of the police power.
DISSENT: (Brandeis)
• Unlike conspiracy, the present crime of joining or assisting the formation of a society for teaching syndicalism
presents no immediate danger.
• The right to free speech and freedom of assembly are constitutionally protected rights which may not be abridged
by the states.
• A state may only restrict these rights when it is necessary to protect the state from serious injury, and such a
restriction is not necessary unless speech would produce, or is intended to produce, a clear and imminent danger
of some substantive evil which the State may seek to prevent. (Schenck)
• It is the legislature’s role to initially determine whether danger exists which calls for a particular protective
measure.
• But where a stature is valid only where the danger exists, enactment of the legislation cannot alone establish the
statute’s validity.
• Court’s may strike down legislation here there is a denial of liberty.
• There is yet to be a court determined standard for what constitutes a clear and present danger, wand what degree
of evil is sufficiently substantial to justify the abridgment of free speech and assembly.
• To justify suppression of free speech there must be reasonable ground to fear that serious evil will imminently
result if free speech is practiced.
• No danger flowing from speech can be deemed clear and present unless the incidence of the evil is so imminent
that it may befall before there is opportunity for full discussion.
• Only emergency can justify repression.
• A police measure may be unconstitutional merely because the remedy s unduly harsh or oppressive.
• Miss Whitney complained that the Act violated the Constitution, but she did not claim it was void because there
was no clear and present danger of serious evil.
○ I am unable to assent with the majority in ruling that assembling with a political party, formed to advocate
proletarian revolutions by mass action at some future time is not protected by the 14th Amendment.
○ However, there was evidence in the present case pointing to the existence of a conspiracy.

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 • The founders did not fear change, nor should we.
• Philosophy of tying free speech w/ political structure.
• Persuasion principle – some presumption that everyone is on equal footing, but this is not the case
ANALYSIS:
• Dissent is the most important component of the case.
• This dissent is similar to that of Justice Holmes’ in Schenck. (Expounding the value of free speech as essential to
our democratic government).
• Holmes and Brandeis keep the clear and present danger test alive with the dissents.
• Brandeis was essentially giving praise to Holmes’ theory of the free market of the ideas as a means to combat bad
and immoral ideas as opposed to fear and enforced silence.
• He further noted that a state statute prohibiting a certain type of speech does not alone establish the constitutional
validity of the statute.
• Instead, it should be viewed as a rebuttable presumption which is to be determined by the court in applying the
clear and present danger test.
• In comparison to Holmes’, Brandeis clarifies what type of circumstances constitute clear and present danger.
○ Speech may be imminently dangerous if its existence poses a threat before it can be combated with
opposing debate.
○ The danger must be serious and not trivial.
• The Act in this case stemmed from the “Red Scare” but was different from Gitlow.
○ Instead of directly prohibiting a certain type of speech, the California statute limited a freedom to
assemble by any individual who helped organize or knowingly became a member of a group which was
organized to advocate, teach, and ald criminal syndicalism.
• Brandeis also cited the freedom of association in his concurrence as a reason which could have been argued to
invalidate the act.

Dennis v. US
NOTES:
• The test as applied in Abrams, the ruling here is contrary to it. (Black dissenting)

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Note: Dennis and the Communist “Conspiracy”
• Landmark Communications, Inc. v. Va – (court’s present position on deference issue); deference to leg finding
cannot limit judicial inquiry when 1st amendment rights are at stake. A leg declaration does not preclude enquiry
into the question whether, at the time and under the circumstances, the conditions existed which are essential t
validity under the Fed Constitution. A legislature appropriately inquires into a may declare the reasons impelling
leg action but the judicial function commands analysis of whether the specific conduct charged falls w/in the
reach of the stat and if so whether the leg is consonant w/ the constitution.
• Barenblatt v. US – upholding a contempt citation of a witness before a congressional investigating committee
who refused to answer questions about his past and present membership on the communist party
• Gibson v. Fla. Legislative Investigating Committee – invalidating a contempt citation of a witness before a state
leg investigating committee who refused to answer questions about whether certain identified members of the
communist party were members of the NAACP.

Unit 15 The “Modern” 1st Amendment

Prior Restraint
• The doctrine of prior restraint can be traced to the early English licensing systems, under which all printing
presses and printers were licensed by the state. These systems prevented any publishing of books or pamphlets
w/o prior approval of a gov’t censor.
• Starting in 1965, right of the press to be free from licensing restrictions began to achieve the status of a common
law right.
• The ct has steadfastly held that there is a special presumption under the 1st agst the use of prior restraints
• The doctrine of prior restraint is concerned with the permissible means of restricting speech. A prior restraint
may thus be invalidated even if the particular expression at issue could const be restricted by some other means,
such as subsequent political prosecution.
• Primarily deals with press and preventing info from coming out that might be harmful.

Lovell v. Griffin
303 U.S. 444 (1938)
Ordinance enforcing prior restraints on publication ruled unconstitutional.
RULE: An ordinance prohibiting the distribution of literature of any kind at any time, at any place, and in any
manner w/o a permit from the City Manager is invalid on its face.
FACTS: (Jehovah’s witness v. City)
• Lovell (D) was convicted of the violation of an ordinance prohibiting distribution of any written material w/o the
permission of the city manager.
• Lovell (D) was distributing a pamphlet and magazine in the nature of religious tracts, setting forth the gospel of
the “Kingdom of Jehovah.” Lovell (D) did not apply for a permit and does not deny the violation.
• Lovell (D) was subsequently sentenced to imprisonment for fifty days for defaulting on the payment of a $50 fine.
PROCEDURE: Appeal from the lower ct’s judgment agst the D.
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ISSUE: Is an ordinance prohibiting the distribution of literature of any kind at any time, at any place, and in any manner
w/o a permit from the City Manager valid? [NO]
HOLDING:
RATIONALE:
• The ordinance in its broad sweep prohibits the distribution of literature of any kind, and the ordinance is also
comprehensive with respect to the method of distribution.
• There is no restriction in its application with respect to time or place, and it is not limited to ways which might be
regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation
of the inhabitants, or the misuse or littering of the streets.
• We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character
is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.
• As the ordinance is void on its face, it was not necessary for Lovell (D) to seek a permit under it.
• She was entitled to contest its validity in answer to the charge against her. Reversed.
ANALYSIS:
• The doctrine of prior restraint is concerned with the permissible means of restricting speech, similarly to the
vagueness and over breadth concepts.
• Thus, a prior restraint may be invalid if the particular expression at issue could be restrained constitutionally by
some other means, such as a subsequent criminal prosecution.
• This seems odd, however, for whether it be punishment for a criminal violation or punishment for violation of a
prior restraint, the end result is the same: the expression is restricted.
• Prior restraint—any prohibition on a publication before it is published.
• Purpose of leg – decrease littering and keep people from bothering the public. If this purpose was accepted by the
court, then this leg would have been rational.
• The fact that it was decided by an administrator whether a permit was granted was part of the problem here. It
seemed more like a monarchy in this respect and not a democracy.
• No guidance was given as to what is permissible speech and what is not.

Note: Licensing as Prior Restraint

Standardless Licensing
• The rule agst standardless licensing serves the function of flushing out bad motives by est a safeguard agst admin
action based on the content of expression.
• City of Lakewood v. Plain Dealer Publishing Co.—ct applied Lovell principle, invalided an ordinance that gave
a mayor standardless discretion to grant or deny permits to place news racks on public property. Ct said evils of
standardless licensing can be effectively alleviated only thru a facial challenge.
○ Could also promote the practice that those submitting writings will play into what the mayor would want
to here.
○ This is essentially “self censorship”
○ Where the Mayor makes these decisions, it is a forced self censorship of sorts and not your choice
depending on context.
• Are permit fees valid?
○ We could analogize to poll fees and say they aren’t allowed there, why should fees curb your right under
the 1st to free speech.
○ Fees could weed out those that aren’t serious about what they want to speak about.
○ Fenton – admin fees are permissible and beyond that they are okay as long as there on guidelines. There
is some form of balancing going on here and free speech is not absolute.
• Why is subsequent punishment more preferable than prior restraint?
○ With subsequent punishment someone as actually done something to break the law
○ With prior restraint though, the punishment is speculative.
○ Differences bw prior restraint and subsequent punishment (pg. 1155):
 PR brings complex gov machinery; more administrative
 SP the language already reached the marketplace
 PR is more in favor of gov suppression of speech than fostering free speech.
○ PR might be bad in most cases, but might be necessary in certain situations
• After Lovell, the Ct has repeatedly held that a state “cannot vest restraining control over the right to speak in an
admin official where there are no appropriate standards to guide his action.
• Thomas v. Chicago Park District—permit scheme that the official “may” deny permit only in certain clearly
specified circumstances. The word “may” does not render the scheme “standardless” bc on this theory, every law
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 regulating expression contains a const flaw, since it merely permits, but does not require, prosecution. Was not
subject to Freedman scheme bc it only allowed for time, place and manner regulations.
Licensing with Standards
Objections to Licensing
• Freedman v. Maryland— still good law
○ Appellant, in violation of a state motion picture censorship statute, exhibited a film, conceded by the state
not to be obscene or otherwise violative of the statutory standards, without first submitting it to the State
Board of Censors for review.
○ Ct held the statute invalid on its face bc the administration of the censorship system “presents peculiar
dangers to constitutionally protected speech.” The Maryland scheme did not meet the procedural
safeguards.
○ A noncriminal process which requires the prior submission of a film to a censor avoids constitutional
infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a
censorship system.
○ Safeguards/Standard: (1) burden of proving the film is unprotected expression must rest on the censor; (2)
while state may req advance submission of all films, the req cannot be admin in a manner that which
would lend an effect of finality to the censor’s determination whether a film constitutes protected
expression.
○ Administrators are not prosecutors…

Near v. Minnesota
283 U.S. 697 (1931)
Prior restraints on the press are presumptively unconstitutional.
RULE: One of the chief purposes of the constitutional guarantee of freedom of the press is the prevention of
impositions of prior restraint on the press.
FACTS: (Newspaper v. State gov’t)
• A Minnesota law was enacted to authorize the “abatement” as a public nuisance, of any “malicious, scandalous
and defamatory newspaper, or other periodical.”
• Minnesota (P) sought to abate the publication of The Saturday Press which had published articles stating that “a
Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing
officers and agencies were not energetically performing their duties.”
• The newspaper (D) specifically targeted the Minneapolis Chief of Police.
• The trial ct abated The Saturday Press (D) and permanently enjoined it from publishing “any publication
whatsoever which is a malicious, scandalous or defamatory newspaper.”
• The newspaper (D) appealed the decision.
PROCEDURE: Certification to US Sup Ct of a suit seeking to abate further publication of a newspaper bc of its content.
ISSUE: Can a state restrict the publication of “malicious, scandalous and defamatory” material in a newspaper w/o
violating the 1st guarantee of freedom of the press? [NO]
HOLDING:
RATIONALE:
• The ability to criticize the gov is at the core of the 1st amendment and here the police chief is a gov official. The
speech here is fulfilling a political function. [THE SEARCH FOR TRUTH]
• In determining the extent of constitutional protection guaranteed to be given to the press, it has been generally, if
not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints on publication
• As Blackstone wrote, “The liberty of the press is indeed essential to the nature of a free state; but this consists in
laying no previous restraints upon publications, and not in freedom from censure for criminal matter when
published.”
• The protection even as to previous restraint is not absolutely unlimited, but the limitation has been recognized
only in exceptional cases. This case is not one of those cases!
• The fact that for approx 150 yrs, there has been almost an entire absence of attempts to impose previous restraints
on publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such
restraints would violate const rights.
• Additionally, public officers defamed in the press have the protection of libel laws, and the remedies made
available under those laws, a solution better than restrictions on the press.
• In this case, the statute in question cannot be justified by reason of the fact that the publisher is permitted to show,
before injunction issues, that the matter to be published is true and is published with good motives and for
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 justifiable ends. If this can be done, and required of publishers, then the legislature would have the machinery for
determining in the complete exercise of its discretion what are justifiable ends and restrain publication
accordingly. This would be a step toward censorship, and as such, the statute is an infringement on freedom of
press. Reversed.
DISSENT: Butler
• The Minnesota stat doesn’t operate as a previous restraint on publication within the proper meaning of the phrase.
• It doesn’t authorize admin control in advance such as was formerly exercised by the licensors and censors of
England, but prescribes a remedy to be enforced by a suit in equity.
• In this case, there was previous publication made in the course of the businessof regularly producing malicious,
scandalous, and defamatory periodicals.
• The business and publications unquestionably constitute an abuse of the right of free press. There is no question
of the power of the State to denounce such transgressions. The restraint authorized is only in respect of
continuing to do what has been duly adjudged to constitute a nuisance.
ANALYSIS:
• Near is important in that it firmly entrenched in modern jurisprudence the doctrine of prior restraint.
• The opinion points out that there are very few exceptions that allow the gov’t to impose prior restraints on
publication. The Ct did list 3 exceptional cases that might permit the gov’t to impose prior restraint, but those
exceptions were narrow and the ct held that this case didn’t fit w/in any of the 3.
• This case presents the idea that there exists a very heavy presumption agst the constitutional validity of prior
restraints, and a similarly heavy burden that must be met for a prior restraint to be upheld.
• Finally, there is some disagreement bw the majority and dissents on the application of prior restraint doctrine.
○ Dissent felt that there was no prior restraint in this case bc there was no advanced control of the press, but
only an abuse of the right of free press and a prescribed remedy for such abuse.
○ Majority disagreed and their view has taken hold as the law.

Note: Injunction as Prior Restraint

• It’s been suggested that injunctions are especially threatening to free speech bc they are more likely than criminal
statutes to be obeyed.
• It has been argued that injunctions have a special “mystique” causing individuals to accord them an unusually
high degree of respect, and that injunctions are more likely to be obeyed bc they are more likely to be enforced.
• They are directed at specific individuals, thus increasing the probability that violations will be detected, and
violations may be viewed as a direct affront to the issuing judge’s authority, thus increasing the likelihood that
violations will be punished.
• But punishments for violations of injunctions are typically less severe than those for violations of criminal
statutes, thus reducing potential costs of violation.
• It’s been suggested that the critical feature of injunctions, making them far more likely to be obeyed than criminal
statutes, and thus appropriately rendering them prior restraints, is the rule, applicable to injunctions generally, that
an injunction “must be obeyed until it is set aside, and that persons subject to it who disobey it may not defend
agst the ensuing charge of criminal contempt on the ground that the order was erroneous or even unconst.
• Thus, if a person’s planned expression is prohibited under statute thinks the stat is invalid may elect to gamble
and speak in defiance of it, assuming that he will be able to show its unconstitutionality.
• An individual confronted with an injunction has no such option, bc under the collateral bar rule, persons subject
to an injunctive order issued by a ct with jurisdiction are expected to obey that decree until it’s modified or
reversed, even if they have proper grounds to object to the order. Even if it is found that what you did is
constitutional you will still be in contempt of court if you don’t obey the temporary injunction. GTE Sylvania v.
Consumers Union.
• This rule derives from the notion that “respect for the judicial process is a small price to pay for the civilizing
hand of law” is applicable even to injunctions directed agst expression.
• Walker v. City of Birmingham—stat tc convicted 8 black ministers of criminal contempt for leading mass street
parades in violation of a T.R.O. enjoining them from participating in such parades w/o first obtaining a permit as
req by a city ordinance. The ct invoking the collateral bar rule, upheld the convictions without passing on the
constitutionality of the injunction.
• Collateral bar rule—the state in effect orders the enjoined individual to delay his speech unless and until a ct
lifts the injunction, whether or not the injunction itself is const permissible.
• Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations—Commission found that Pgh Press had
violated a city ordinance by displaying “help wanted” advertisements in its daily newspaper under headings
designating job preference by sex. Commission thus issued an order prohibiting the paper from carrying sex-

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 designated ads in the future. Ct upheld the order and explained that a criminal stat cast in such terms would be
const permissible. Reasoned that they had never held all injunctions are impermissible and the present order
doesn’t endanger arguably protected speech. Equal Protection concerns of state were allowed.

• Madsen v. Women’s Health Centers, Inc.—ct held that an injunction prohibiting particular named individuals
from demonstrating w/in 36ft of an abortion clinic was not a “prior restraint” bc the injunction was issued “not bc
of the content of their expression” but “bc of their prior unlawful conduct” in earlier demonstrations. Content
neutral injunctions are not “prior restraints” but that they nonetheless should be tested by more “rigorous”
standards than other forms of content-neutral restrictions bc injunctions “carry greater risks of censorship and
discriminatory application than do general ordinances.”

Note: The Road to Bradenburg

• Yates v. US—ct adopted a narrow interpretation of the Smith Act to avoid constitutional doubts and overturned
the convictions of several members of the Communist party for conspiracy to violate the act.
○ Doesn’t overrule the clear and present danger test.
○ The essential distinction is that those to whom the advocacy is addressed must be urged to do something,
now or in the future, rather than merely to believe in something.
○ Dominant theme of Yates was that the ct had historically recognized an essential distinction bw express
advocacy of unlawful action on one hand and advocacy of abstract doctrine or general discussion of
policies and ideas on the other.
○ Harlan reinterprets Dennis and uses Gitlow to get to his determination. Makes mention of the
freewheeling applications of the test in Dennis.
○ Presumed that Congress meant to avoid Constitutional danger zones.
• Kingsley Int’l Pictures Corp. v. Regents of NY—ct held unconst a NY stat prohibiting the issuance of a license to
exhibit non-obscene motion pictures that “portray ‘acts of sexual immorality as desirable, acceptable, or proper
patterns of behavior.’” State applied the stat to deny a license to a film bc its theme was that adultery was
permissible. Ct said the state was attempting to prevent the film bc it advocates an idea, yet the 1st Amend’s basic
guarantee is of freedom to advocate ideas. The state is going agst a constitutionally protected liberty. Ct
explained that advocacy of conduct proscribed by law is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate advocacy would be immediately acted upon.
• Bond v. Floyd—ct held that the GA House of Reps couldn’t const refuse to seat Bond (black rep), a duly elected
rep, bc of his statements and statements to which he subscribed, criticizing the policy of the fed gov’t in Vietnam
and the operation of the selective service system. Ct concluded that Bond could not have been convicted for his
statements consistently with the 1st Amend. He spoke with sympathy toward draft dodgers. Court cites Yates; he
couldn’t have been convicted independently for his actions.
• Scales v. US—ct revisited the constitutional status of membership in “subversive” organizations. Ct maintained
that a blanket prohibition of knowing membership in organizations “having both legal and illegal aims” might
pose a “real danger that the political expression or association would be impaired.” Ct interpreted the Smith Act
as making membership unlawful only if the individual was an ‘active’ member and not merely a ‘nominal,
passive, inactive or purely technical member, with knowledge of the illegal advocacy, and with the specific intent
to further the organizations illegal ends. Basically, punish only active members who specifically intended to
bring about the overthrow of gov’t as speedily as circumstances would permit. Req intent and overt act.

Bradenburg v. Ohio
395 U.S. 444 (1969)
Only that speech which is directed to producing and is likely to incite
imminent lawlessness may be restricted by gov’t action
RULE: Constitutional guarantees of free speech and free press will not permit a state to forbid or proscribe
advocacy of the use of force or of a violation of the law unless such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.
FACTS: (KKK leader v. Ohio)
• Bradenburg (D) was convicted under the Ohio Criminal Syndicalism statute, which prohibits one from advocating
the duty and necessity of using crime, violence, and terrorism to accomplish political reform, and the teaching of
the doctrines of criminal syndicalism.

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 • Bradenburg (D) was fined $1000 and sentenced to one to ten years in prison for his crime. The conviction
stemmed from Bradenburg’s (D) activities at a Ku Klux Klan rally, parts of which were televised locally in Ohio
and on a national network.
• The prosecution’s case rested on the films taken by the tv cameraman, Bradenburg’s (D) activities at the rally, and
testimony identifying Bradenburg (D) as the one who invited the reporter to attend.
• Bradenburg’s activities included burning of a cross and making a speech in which he stated that “if our President,
our Congress, and our Sup Ct continue to suppress the white, Caucasian race, it’s possible that there might have to
be some vengeance taken.”
• At one point during the rally, Bradenburg (D) also stated “Personally, I believe the nigger should be returned to
Africa, the Jew to Israel.”
• Bradenburg (D) appealed his conviction to the Sup Ct.
PROCEDURE:
• Appeal to the US Sup Ct of a conviction under the Ohio Criminal Syndicalism statute for advocating the duty and
necessity of overthrowing the gov’t.
ISSUE: Under the 1st, should the states be permitted to restrict speech that advocates violent overthrow of the gov’t when
that speech constitutes teaching but not preparation (i.e. the speech is not likely to incite lawless action)? [NO]
HOLDING:
RATIONALE:
• In Whitney this ct upheld a statute similar to the Ohio’s Criminal Syndicalism Statute on the ground that, w/o
more, advocacy of violence as a means of effecting political and economic changes involves such a danger to the
security of the country that the gov’t may outlaw it  Recently been discredited and is no longer the law.
(overrules Whitney)
• Under current 1st Amend jurisprudence, guarantees of free speech and free press will not permit a state to forbid
or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action.
• Indeed, the mere teaching of a necessity for resort to violence is not the same as preparing a group for violent
action and then inciting it to action  A statute that fails to draw this distinction violates the 1st
• Here, Ohio’s law cannot be sustained. It punishes teaching and advocating violent overthrow, as well as
assembling groups for the purpose of teaching or advocating violent overthrow, w/o making a distinction bw
advocacy and incitement to imminent lawless action.
• Here, the speech wasn’t about incitement of imminent lawless actions, which is req for state to prohibit speech.
• As such, the statute falls w/in the condemnation of the 1st. Reversed.
CONCURRENCE:
Black
• Agree with Douglas that the ‘clear and present danger’ doctrine should have no place in the interpretation of the
1st. Join with the majority opinion which simply cites Dennis and does not indicate any agreement with the ‘clear
and present danger’ doctrine on which that case purported to rely.
Douglas
• Doubts the ‘clear and present danger’ test has any place in 1st Amend jurisprudence during times of war, and is
certain that it has no such place in times of peace. Simply no place for it, regardless of how it is interpreted.
• Indeed, great misgivings arise when one closely looks at how that test has been applied in the past.
• True line b/w what is permissible and not subject to control and what may be made impermissible and subject to
regulation is the line bw ideas and overt acts.
• Here, the speech is accompanied by action, and as such was properly restricted.
ANALYSIS:
• This case represents the current state of law in the context of advocacy of criminal, violent, or terrorist acts and
the restriction of such speech under the 1st.
• Brandenburg interpreted as requiring 3 elements for speech advocating criminal conduct to be suppressed:
1. Express advocacy of law violation
2. Advocacy that calls for immediate violation of the law
3. Immediate violation of the law must be likely to occur
• This is a change from law under Dennis in that an immediacy and immanency requirement is re-read into the law
—there must be an imminent danger of criminality or violence.
• Thus, the focus is moved in Bradenburg and placed on the likelihood that the words will produce immediate
lawless action
• Bradenburg also changes 1st Amend law in that it expressly overrules Whitney and does not apply, or even
mention, the ‘clear and present danger’ test that Black and Douglas despised so much.

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 • Bradenburg makes clear distinction bw teaching or advocating the use of force to overthrow the gov’t, and
inciting or producing imminent lawless action.
• The ct made clear that stats which don’t make the distinction are unconst, and approx 20 states at the time has
nonconforming stats  Thus, Bradenburg required a number of states to change existing laws to conform with
the test set forth in this case.
• Bradenburg provides broader support for the lawfulness of speech that strongly advocates violent overthrow—
broader than was available under prior decisions.

Note: The Bradenburg Formulation

• See 3 elements above
• Bradenburg appears by implication to accord absolute protection to the speaker so long as he doesn’t use express
words of incitement.
• Ct has adhered to Bradenburg
• Hess v. Indiana—ct reversed conviction of a guy in an antiwar demonstration and said, since there was no
evidence that his words were intended to produce, and likely to produce imminent disorder, they couldn’t
constitutionally be punished on the ground that they had a tendency to led to violence.
• NAACP v. Claiborne Hardware Co.—ct considered a NAACP sponsored boycott of white merchants in
Claiborne County. An NAACP official stated in a public speech that he would break the neck of those who went
to allegedly racist stores. US Sup Ct reversed a state ct decision (which held the boycott unlawful and held
organizers liable for damage resulting from it) and held that the man’s speech was protected under Brandenburg
standards. Here, acts of violence occurred weeks/months after the speech.
• Herceg v. Hustler Magazine, Inc.—14 yr old had magazine article on autoerotic asphyxiation. Ct invalidated a
civil jury verdict agst Hustler bc Bradenburg wasn’t satisfied.
• Olivia N. v. Nat’l Broadcasting Co.—Ct held that even though a tv movie which described a form of rape used by
teenage boys on a 9 yr old girl, after seeing the movie, the rule in Bradenburg immunized NBC bc no intent to
injure could be shown.
• Rice v. Paladin Enterprises—ct held that Bradenburg doesn’t control a situation in which a book describes a how
to conduct a contact murder and X killed Y in this manner, and Y’s survivors sued the publisher. Bradenburg
doesn’t control and the publisher could be held liable bc it “had intended…that the publication would be used by
criminals to execute the crime of murder for hire.”

Unit 16 – First Amendment (continued)

False Statements of Fact

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 • Sup Ct has long maintained that “under the 1st amendment there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries bit on the
competition of other ideas.” Gertz v. Robert Welch, Inc.
• Gov may not restrict the expression of an idea or opinion bc if its determination that the idea or opinion is false
• Problems of false statement of facts arise in context of defamation
• Chaplinsky – court expressly included libel within the class of utterances that are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.
• Beauharnais v. Illinois – a decade later court announces that libelous utterances are not within the area of
constitutionally protected speech and accordingly that no one would contend that they may be punished only upon
a showing of clear and present danger.

New York Times Co. v. Sullivan

376 U.S. 254 (1964)
Actual malice is required if a public official is to recover damages in a defamation lawsuit.
RULE: A public official cannot recover damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with actual malice—that is with knowledge that it was false or with reckless
disregard of whether it was false or not.
FACTS: (Newspaper v. Police Commissioner)
• March 1960, the Committee to Defend Martin Luther King and another civil rights group published a full page ad
in the New York Times (D) charging that “an unprecedented wave of terror” was suppressing African-Americans
engaged in non-violent civil rights demonstrations in the south.
• Sullivan (P), Montgomery’s police commissioner, sued the NYT (D) and several signers of the ad for libel.
• Sullivan (P) objected to the claim that truckloads of police armed with guns and teargas assaulted protesters on
the Alabama State College Campus. He also objected to statements to the affect that MLK had been assaulted
and arrested seven times. [MLK was arrested less than this and other info regarding circumstances of the arrests
of others was false]
• Sullivan (P) was awarded a judgment of $500,000 despite offering no proof that he suffered any pecuniary loss,
and the NYT (D) appealed.
PROCEDURE: Cert to the US Sup Ct of a $500,000 judgment award to the P in libel suit.
ISSUE: Can a publication or a member of the public be liable in damages for speaking out agst the actions of a public
official? [YES]
HOLDING: A publication or member of the public may be held liable for damages for speaking out agst the actions of a
public official, but the official has a high burden of proof that it must meet in order to collect damages in a defamation suit
related to his official conduct.
RATIONALE:
• This ct in the past has stated that the Const doesn’t protect libelous publications, but none of the prior decisions
has dealt with criticisms of public officials in their official conduct.
• Indeed the Const has a profound commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, even if that means there will be unpleasant attacks on the gov’t and public officials.
• Here, the ad is an expression of grievance and protest on a public issue, and is therefore entitled to const
protection. It is true that there are some false statements in the ad, but the speech doesn’t forfeit its const
protection simply bc some statements are erroneous or false.
• Our interpretations of 1st Amend guarantees have consistently refused to recognize an exception for any test of
truth, and especially one that puts the burden of proving truth on the speaker.
• If free expression is to survive, it must be given the breathing space of protection for erroneous statements. To
rule otherwise by permitting the Alabama law to exact huge penalties agst the press would be to suppress free
speech and those who would criticize the public officials. It would be unfair to req ppl to suppress all views that
they couldn’t conclusively prove in ct.
• Thus, the Const reqs that in order for public officials to recover damages for defamation relating to their official
conduct, they must be able to prove that the allegedly defamatory statements were made with actual malice.
• Here, no proof of actual malice. Additionally, the ad did not mention Sullivan (P) by name and the evidence
provided to the jury does not support a finding that the statements were in fact made about or concerning Sullivan.
• It would be improper to hold those who criticize gov’t operations liable for defamation to those responsible for
those operations. On these grounds, the decision of the AL Sup Ct is reversed.
• Ct minimizes the dignity and reputation issues with libel. This highlights the flaws and inherent characteristics of
the marketplace of ideas theory.

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 • Political decision – we are supposed to be able to hold our gov officials responsible for their actions. When we are
talking about public officials, the point of the 1st amendment, you have to prove actual malice.
• Might be different case if this rule was applied to the personal life of the police commissioner…not so much
today though.
• The censorial power is in the people over the gov…not the gov over the people. [Madison]
CONCURRENCE:
Black
• 1st and 14th completely prohibit a state from exercising power to award damages to public officials agst critics of
their official conduct. However, malice, even as defined by the majority, is an abstract concept that is difficult to
prove/disprove, and is therefore not a good standard.
• Simply, the decision of the AL Sup Ct should be reversed bc the Ds had an absolute const right to publish the ad
containing their criticism of the Montgomery agencies and officials.
Goldberg
• The Const permits an absolute, unconditional privilege to criticize the official conduct of public officials, but does
not protect defamatory statements aimed agst the private conduct of public officials or private citizens.
ANALYSIS:
• Very important case—1st to set forth the actual malice standard for judging commentary made about public
officials, a standard which significantly changed libel law.
• Ct reqs that public officials, in order to recover damages for libel, must prove that the speaker of the defamatory
words spoke or printed actual malice (i.e. with knowledge that the statement was false or with reckless disregard
of whether it was false or not).
• Significant bc places a hard burden on public officials—they can’t simply prove that defamatory statements were
made and have damages inferred.
• An opposite decision would have stifled free discussion and debate, which ct states are critical.
• This decision protects the idea that ppl should be able to speak their minds and share their opinions w/o fear that
those statements need to be so supported by tangible evidence that they could be proven true in ct.
• State libel laws must protect free speech as req by the 1st Amend.
• This case is about the money…that is why the court talks about how many times the NY Times was sued for libel.
They would censor themselves if they had to pay for all those lawsuits if the standard was different.
• Actual malice was extended to matters of public concern after this case.
• This extreme position of this court is a kind of subsidy to the marketplace of ideas to keep it going.

Note: The Central Meaning of New York Times v. Sullivan

• Dun & Bradstreet v. Greenmoss Builders (White concurring) – view of NY Times v. Sullivan: instead of
escalating the P’s burden of proof to an almost impossible level, the court could have achieved its goal by
limiting the recoverable damages to a level that would not unduly threaten the press. In this way, both the 1st
amendment and reputational interests would have been far better off.
• Milkovich v. Lorain Journal Co. – a statement must be provable as false before there can be liability
• Harte-Hanks Communications v. Connaughton – neither failure to comply with professional standards nor
publication of falsehood in order to increase profits is in itself sufficient to establish actual malice, but purposeful
avoidance of the truth may be sufficient.
• Philadelphia Newspapers, Inc. v. Hepps – the P must bear the burden of proving that the statements at issue are
false.
• Monitor Patriot Co. v. Roy – a charge of criminal conduct, no matter how remote in time or place, can never be
irrelevant to an official’s or a candidate’s fitness for office for purposes of application of New York Times
• St. Amant v. Thompson – failure to investigate or otherwise seek corroboration prior to publication is not
reckless disregard for the truth unless the publisher acts with a high degree of awareness of probable falsity.
• Garrison v. Louisiana – first amendment does not absolutely prohibit criminal prosecution for libel even of
public officials, but New York Times standard applies
• Most important question remaining after New York Times was whether the privilege it recognized governed only
libel of public officials or whether it extended to libel of other persons as well.

Speech that Discloses Confidential Information

Landmark Communications v. Virginia

435 U.S. 829 (1978)

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RULE: Clear and Present Danger Test requires a court to make its own inquiry into the imminence and
magnitude of the danger said to flow from the particular utterances and then to balance the character of the evil,
as well as its likelihood, against the need for free and unfettered expression.
FACTS:
• Virginian Pilot, a Landmark newspaper, accurately reported that the Va Judicial Inquiry and Review Commission
was contemplating an investigation of a particular state court judge.
• As a result of this disclosure, Landmark was convicted of violating a state statute prohibiting any person to
divulge info regarding confidential matters pending before the commission.
• State argued → disclosure of confidential info about pending investigations would create a clear and present
danger to the effective operation of the commission by chilling the willingness of individuals to file complaints
and by subjecting judges and the judicial system generally to unfavorable publicity arising out of possibly
unwarranted charges.
PROCEDURE:
ISSUE: Court emphasized that the question is whether these interests are sufficient to justify the encroachment on 1st
amendment guarantees which the imposition of criminal sanctions entails.
HOLDING: Statute was unconstitutional as applied.
RATIONALE:
• Clear and Present Danger Test → properly applied, the test requires a court to make its own inquiry into the
imminence and magnitude of the danger said to flow from the particular utterances and then to balance the
character of the evil, as well as its likelihood, against the need for free and unfettered expression.
• Commission has offered little more than assertion and conjecture to support its claim that w/out criminal
sanctions the objectives of the statutory scheme would be seriously undermined
• Much of the risk here can be eliminated through careful internal procedures, such as prohibiting participants in
commission proceedings from divulging confidential info.
ANALYSIS:
• The court has held that there is no mechanical application of the clear and present danger test.
• Rape shield laws: State interest – to ensure rapists are not running around the town
• Shield of minor names in juvenile offenses: state has an interest in protecting children and helping them grow up
to be good citizens.

Note: Landmark and the Problem of Confidentiality

• Since Landmark the court has consistently held that a state may not restrict the publication of truthful confidential
information absent a state interest of the highest order.

Nebraska Press Association v. Stuart

427 U.S. 539 (1976)
RULE:
FACTS:
• Respondent state district judge, acting out of a legitimate concern in an effort to protect an accused's right to a fair
trial, entered an order restraining petitioners, members of the press, from publishing accounts of confessions made
by the accused or facts strongly implicative of the accused in a widely reported murder of six persons. [GAG
ORDER]
• D argues – 6th amendment right to fair trial (which is in conflict with the 1st amendment right to free speech)
• Petitioners filed an application for certiorari.
• The Court granted certiorari to decide whether the order violated the constitutional guarantee of freedom of the
press.
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PROCEDURE: The Court granted petitioners, members of the press, certiorari to review a judgment of the Supreme
Court of Nebraska, which upheld a district court's order, as modified, that prohibited petitioners from publishing accounts
of facts implicative of the accused in a widely reported murder.
ISSUE:
• Whether the trial court had erred in seeing the possibility of real danger to the D’s rights
• Whether the means employed were foreclosed by another provision of the constitution
• Whether, on the facts of this case, the gravity of the evil, discounted by its improbability, justifies such invasion
of free speech as is necessary to avoid the danger
HOLDING: The Court reversed, holding that the order was invalid because the barriers to prior restraint were not passed.
RATIONALE:
• Although the trial judge was justified in concluding that there would be intense pre-trial publicity and that it might
impair the accused's right to a fair trial, the trial judge did not determine whether other measures, besides prior
restraint, would have sufficed.
• In addition, prior restraint on publication was not a workable method of protecting the accused's right to a fair trial
because the events took place in a community of 850 people.
• The lower court could not restrain an entire community.
• It is the judge’s responsibility to protect the rights of the accused. Don’t impede the free speech right of the press
• 3 considerations are: (1) publicity might impair the D’s right to a fair trial, (2) other alternative methods, and (3)
whether prior restraint would actually help.
CONCURRENCE (Brennan):
• The right to a fair trial by a jury of one’s peers is unquestionably one of the most precious and sacred safeguards
enshrined in the Bill of Rights.
• I would hold however that resort to prior restraints is a constitutionally impermissible method of enforcing that
right
• At least in the context of prior restraints on publication, the decision of what, when, and how to publish is for
editors, not judges.
ANALYSIS:

New York Times Co. v. U.S.

[The Pentagon Papers Case]
403 U.S. 713 (1971)
Prior restraints on expression are presumptively unconstitutional.
RULE: Prior restraints on expression are presumptively unconstitutional, and will only be permitted when the
gov’t meets the heavy burden of showing that the restraint is justified.
FACTS: (Newspaper v. Federal Gov’t)
• June 1971, the NYT (D) and the Washington Post began publishing portions of a secret Department of Defense
study, known as the “Pentagon Papers.”
• The study reviewed in great detail the formulation of American policy toward Indochina, including military
operations and diplomatic negotiations.
• The US (P), claiming that publication would interfere with nat’l security, undermine the diplomatic process, and
prolong the Vietnam War, sought to enjoin the newspapers from further publications of portions of the report.
• The district courts in both cases, as well as the court of appeals in the Washington Post case, held that the US (P)
had not met its burden.

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 • The court of appeals in the NYT (D) case disagreed. A stay of publication was entered pending the outcome of
the cases.
PROCEDURE: Cert to the US Sup Ct of a 2nd Circuit COA decision enjoining the publication of certain gov’t papers.
ISSUE: Does the possibility that publication will negatively affect nat’l security justify a prior restraint on expression?
[NO, not usually]
HOLDING:
RATIONALE:
• Any system of prior restraints of expression comes to this Ct bearing a heavy presumption agst its const validity.
• The US(P) thus carries a heavy burden of showing justification for the enforcement of such a restraint.
• We agree with they NYT (D) that the US (P) has not met its burden, and therefore we reverse the decision of the
2nd Circuit COA and affirm the decisions of the other 3 courts. The stays entered are vacated.
CONCURRENCE:
Black
• Injunction agst the papers = flagrant violation of the 1st. It’s unfortunate that some members of the ct feel that the
publication of news may sometimes be enjoined. Such a holding would make shambles of the 1st.
• The 1st protects the press so that the secrets of gov’t might be made known to the ppl. Only a free and
unrestrained press can effectively expose deception in gov’t.
• To find that the US (P) can halt publication of news would generally wipe out the 1st.
Douglas
• 1st Amend leaves no room for gov’t restraint of press. Moreover, no stat exists to bar the publication by the press
of the material which the NYT (D) seeks to publish.
• Congress chose not to preclude publication of this type of material in the Espionage Act, and the executive branch
has no inherent power in this arena.
• These disclosures of info may have a significant impact on the Nation, but that isn’t a basis for sanctioning prior
restraint of the press.
• Though the US claims that it has inherent powers to obtain an injunction to protect nat’l security, this ct has
repudiated that idea in no uncertain terms. These papers are highly relevant to the nat’l debate on Vietnam.
• Open debate is vital to US’s health and the 1st protects that debate, injunctions issued in this case violate the 1st.
Brennan
• Error that has pervaded these cases from outset was the granting of any injunctive relief to begin with.
• Except for a narrow class of cases in which the 1st’s ban may be overridden bc the nation is at war, the 1st tolerates
absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward
consequences may result.
• The US (P) has simply not proved that the publication will inevitably, directly and immediately cause a disastrous
result tantamount to war.
• We are not at war so what is the big deal?
Stewart
• A press that is alert, aware, and free will serve the ppl more in the arena of nat’l security than restraint.
• Additionally, I can’t say that the disclosure of any of the docs in question will surely result in direct, immediate,
and irreparable damage to our Nation and its people. As such, join with judgment of the ct.
White
• While the executive branch bears the responsibility for the conduct of foreign affairs and for nat’l security, the
power doesn’t authorize remedies that will have a sweeping potential for inhibiting publications by the press.
• However, while the US (P), bc of the hefty burden required, may not be able to justify a prior restraint, it can
proceed by other means, such as a conviction for criminal publication.
• Congress has authorized such protections, but it hasn’t authorized the injunction sought today.
• Potential criminal sanctions will deter irresponsible actions by the press.
Marshall
• The real issue here is whether this ct or the Congress has the power to make law.
• In some situations, it may be appropriate for this ct to act as an aid to the executive branch to prevent the
publication of material damaging to “nat’l security” whatever that phrase means.
• It would, however, be inconsistent with the concept of separation of powers for this Ct to use its power to prevent
behavior that Congress has specifically declined to prohibit.
• It would be equally wrong if, when the executive branch had adequate authority granted by Congress to protect
“nat’l security” it chose instead to invoke the power of the Court to enjoin the threatened conduct.
• We are faced today with a situation where Congress has refused to grant the executive branch with broad power to
protect the Nation from disclosure of damaging secrets, and thus we cannot allow the injunction agst publication
to continue.
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DISSENT:
Harlan
• This case presents difficult and complicated issued of fact, law, and judgment, and the time that has been
available for addressing these issues has been wholly inadequate.
• It is plain that the scope of the gov't’in the field of foreign affairs is very narrowly restricted. The very nature of
executive decisions as to foreign policy is political, not judicial.
• Such decisions are wholly confided by the Const in the political depts. and should only be undertaken by those
directly responsible to the ppl whose welfare they advance or imperil.
• They are decisions of a kind for which the judiciary has neither aptitude, facilities, nor responsibility, and which
has long been held not subject to judicial intrusion or inquiry.
• The decisions of the executive branch should be given more deference than they are given today.
• Without further hearings in each case conducted under the appropriate ground rules, I would continue the
restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point that
courts cannot act responsibly in matters of such national importance as those involved here.
Blackmun
• 1st Amend is but one part of the Const, and 1st absolutism has never commanded the majority of this ct. We need
a weighing, on properly developed standards, of the broad right of the press to print and of the narrow right of the
gov’t to prevent printing.
• No such standards exist, and the parties disagree on what they should be. I would remand these cases to be
developed further.
• The dissenting opinion in the lower ct stated that if published, these papers would clearly result in the death of
soldiers, destruction of alliances, increased difficulty in negotiation, and inability of diplomats to negotiate. If
these things happen as a result of the Ct’s action today, the ppl will know where fault lies.
Burger
• I generally agree with Harlan and Blackmun, though in the present situation I am not prepared to reach the merits
of the case. These cases have been conducted in unseemly haste so that we literally don’t know what we are
acting on.
• As such the T.R.O.s should be extended pending a full trial on the merits of the cases.
ANALYSIS:
• Case demonstrates true difficulty the gov’t faces in justifying prior restraints on expression of speech.
• Doctrine of prior restraint, as applied to issues of nat’l security, is still not fully developed as no concrete rule has
been set forth by the Ct.
• All that is provided in this area is a general agreement by all 9 justices on 2 major themes:
○ There is a heavy presumption of unconstitutionality that attaches to any system of prior restraint
○ Any gov’t entity attempting to justify a prior restraint carries a heavy burden of proof.
• At this time there were many “Nixon privileges” happening (like Bush today) where the executive gave itself all
kind of extra power.
• Political question doctrine was danced around in this case, but never explicitly stated. [Harlan]
• Was the court really playing fast and loose with national security?
• Should we be deferential to the exec branch when they say that national security is at issue? Like the court was in
Korematsu?
• Should the gov (as your employer) be able to control what you can or cannot say?

Note: Nebraska Press, the Pentagon Papers, and Snepp

• Bartnicki v. Vopper – court held that fed and state antiwiretap statutes cannot constitutionally be applied to a
radio station that broadcasts the tape of an unlawfully intercepted telephone call, where the subject of the call was
a matter of public concern and the broadcaster did not participate directly in the unlawful wiretap, even though the
broadcaster knew that the material had been obtained unlawfully.
• Snepp v. US – Snepp, a former CIA agent, published a book about certain CIA activities in South Vietnam in
violation of an express condition of his employment K w/ the CIA in which he promised not to publish any
information or material relating to the agency, its activities, or intelligence activities generally, either during or
after the term if his employment, w/out specific prior approval of the agency.
○ The court (6-3) held that Snepp breached the fiduciary obligation and that the proceeds of his breach are
impressed with a constructive trust.
○ Court explained that gov has a compelling interest in protecting both the secrecy of info important to our
national security and the appearance of confidentiality so essential to the effective operation of our
foreign intelligence service.

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 ○ Agreement Snepp signed was a reasonable means for protecting this vital interest
• Gentile v. State Bar of Nevada – court held that although he state may not restrict speech by the press about
pending criminal cases w/out meeting the clear and present danger standard, it may restrict speech by an attorney
about pending cases if the attorney knows or reasonably should know that the speech will have a substantial
likelihood of materially prejudicing the proceeding.
• Bickel Comment (pg. 1138) – balance bw power and security, privacy and public…Attorney speech may be
restricted by the judge. Should also restrict yourself.

Note: The Progressive Controversy

• US v. The Progressive, Inc. -
○ Feb. 1979, Morland, a freelance writer, completed an article for the Progressive Magazine titled: “The H-
Bomb Secret – How we got it, why we’re telling it”
○ Used only info contained in public records and interviews of scientists
○ Progressive delivered a copy to the Dept. of Energy requesting verification of its technical accuracy and
the DOE concluded that even though the article only used publicly available info, the Atomic Energy Act
req it to be classified as restricted data and requested that they not publish it.
○ Progressive informed DOE that it planned to publish the article w/out alteration
○ March 8 – US filed suit in fed court seeking to enjoin publication of restricted date maintaining that suit
was authorized under AEA bc “restricted data” was defined as including any data concerning design,
manufacture, or utilization of atomic weapons with reason to believe such data will be utilized to injure
the US or to secure an advantage to any foreign nation
○ March 9 – court issued temporary restraining order against publication of article
○ March 26 – court held hearing on issuance of preliminary injunction.
○ Court found that at least some of the info in the article may not have been in the public domain and
granted preliminary injunction.
○ Court noted that although he purpose of the article was to alert the people of this country to the false
illusion of security created gov’s futile efforts of secrecy…it found no plausible reason why the public
needs to know the technical details about H-bombs
○ Court distinguished the Pentagon Papers case by:
 The info disclosed in that case involved historical data relating to events that occurred some 3 –
20 years previously
 No cogent arguments were advanced nu the gov in that case as to why the article affected national
security except that publication might cause some embarrassment to the US
 There was no specific statutory authorization of the injunction in that case.
○ The case against the Progressive was dismissed on Oct. 1, 1979 while pending in US Ct. of Appeals bc
similar info concerning the construction of the H-Bomb was published independently by others.
• Haig v. Agee – the court upheld the revocation of Agee’s passport bc he engaged in activities abroad that caused
serious damage to the national security. As a former CIA agent he engaged in activity to expose other CIA agents
to drive them out of countries where they were working. His actions were clearly not protected by the 1st
amendment… Although he did not expressly incite anyone to commit murder there was evidence that his
disclosures resulted in episodes of violence against the persons and organizations identified.
• Arms Export Control Act – authorizes compilation of a list of items that may not be exported without a license
from the State Dept. This includes not only physical objects but also info that can be used or adapted for use in the
production, operation, or maintenance of the armaments listed on any technology which advances the state of the
art or establishes a new art in any area of significant military applicability. Export of technical data is defined to
apply to disclosure to foreign national in the US, including disclosure through participation in symposia.

Note: Terrorism and the First Amendment

• In 1976, Attorney General Levi promulgated a series of guidelines that sharply curtailed the FBI’s authority to
infiltrate or investigate political and religious organizations.
• 1983 – AG Smith issued a new and less restrictive set of guidelines which provided that a domestic
security/terrorism investigation may be initiated when facts or circumstances reasonably indicate that 2 or more
persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part
through activities that involve force or violence and a violation of the criminal laws of the US.
• May 2002 – AG Ashcroft granted FBI broad new authority to monitor political rallies, religious services, and
internet chat rooms for indications of terrorist activity, and to search commercial databases that maintain detailed

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 info on consumers such as theur magazine subscriptions, book purchases, charitable contributions, and travel
itineraries. The only limit is that it be for the purpose of detecting or preventing terrorist activities.

Note: Dangerous Ideas and Information – Final Thoughts

• The court has not upheld a direct prohibition of speech bc it might induce readers or listeners to engage in
criminal activity since Dennis, and it has not upheld a direct prohibition of speech for this reason in the absence
of express advocacy of crime since the Espionage Act cases following WWI.

Unit 17: Public Forum doctrine and (un)equal access, pp. 1304-13, 1319-22, 1325-40

Speech on Public Property: The Public Forum

• Struthers—city could const punish those who call at a home in defiance of the previously expressed will of the
occupant
• Lloyd Corp. v. Tanner—Ct has accepted view that in most circumstances, an uninvited guest may not exercise
general rights of free speech on privately owned property bc it would be an unwarranted infringement on property
rights to req them to yield to the exercise of 1st Amend rights.
• Public forum theory evolved along two lines: (1) governing streets and parks, and (2) governing all other publicly
owned property

The Public Forum: Streets and Parks

Davis v. Massachusetts (U.S. 1897)

Commonwealth v. Davis (lower ct—1895)
(Holmes/White)
FACTS: Davis, a preacher, was convicted under a city ordinance that forbade any public address on any publically owned
property except in accordance with a permit from the mayor. Davis argued the ordinance infringed on his Free Speech
PROCEDURE: The lower ct said that the ordinance was directed at the modes in which the Boston Common may be
used. Holmes said that the legislature may exercise control over the use which the public may make of the Common. On
appeal the Sup Ct affirmed.
HOLDING: White embraced Holmes view  Const doesn’t create a personal right in the citizen to use public property
in defiance of the Const and laws of the State. The state possessed the power absolutely to prohibit the exercise of 1st
Amend right on public property simply by asserting prerogatives traditionally associated with the private ownership of
land. Basically, the ct resorted to common law concepts of property.
NOTES:
• This case is not about free speech it is about property and activity.
• Equates the state’s right over its property to a private property owner
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Hague v. Cio (U.S. 1939)
FACTS: Ct considered the constitutionality of a municipal ordinance forbidding all public meetings in the streets and
other public places w/o a permit. City maintained ordinance was constitutional under Davis.
HOLDING: (Roberts) Rejected the city’s contention. Streets and parks have been held in trust for the use of the public
for purposes of assembly, communication, discussion, and are part of the privileges, immunities, rights, and liberties of
citizens. This is a privilege that is relative and must be exercised in subordination to general comfort, convenience, and
with peace and good order. It cannot, in the guise of regulation, be abridged or denied.
NOTES:
• Interesting that Roberts here accepted the underlying premise of the Holmes-White position in Davis the public
forum issue must be defined by common law property rights.
• Roberts adapted this to his own advantage and used common law property notions of adverse possession and
public trust to conclude that public places are subject to a “1st Amendment Easement” and since these forums
have been used since time immemorial for purposes of speech and assembly, the Const now reqs their continued
use for these purposes must not be abridged or denied.
• Implication—although streets, parks and similar public places might be ‘public fora,’ publicly owned prop that
can’t satisfy the “time out of mind” (time immemorial – as long as you can remember) requirement remains
subject to Davis.
• Three goals of Public Forum Doctrine:
1. Ensure access to wide array of ppl
2. Allow access to specific people and specific institutions with whom the speaker has a complaint
3. Increases likelihood ppl generally will be exposed to a wide variety of ppl and views
• 2 different property types identified: There are some public places that you expect to be able to speak freely
(parks), but there are also those places that you don’t expect to be able to speak freely (court room).
• this ordinance an conviction was allowed bc this guy was a communist…not stated in the case though.

Schneider v. State (U.S. 1939) eight months after Hague

HOLDING: A city’s interest in keeping the streets clean is insufficient to justify a municipal ordinance prohibiting the
distribution of leaflets on public property.
NOTES:
• Jamison v. Texas—Impact of Schneider made clear here. Ct followed Schneider and invalidated a city ordinance
prohibiting dissemination of leaflets. City relied on Davis to say it had a right to prohibit use of streets for
communication of ideas, but the Ct directly rejected the City’s argument.
• Leaflet distribution in public places as a method of communication may cause littering and annoyance to a
majority of the ppl addressed, but the constitutional balance of Schneider was struck in favor of keeping the
public forum open.
• Operative theory of the Ct, at least concerning leaflets, is that the right to use the streets as a public forum cannot
be prohibited and can be regulated only for weighty reasons.
• Hague/Schneider theory holds Prop rights of the state don’t permit the state absolutely to exclude expression
from public property that has been used “time out of mind” for speech purposes, it doesn’t mean that gov’t
property rights are irrelevant. Content-neutral restrictions governing streets and parks should be tested by more
lenient standards of justification than content neutral restrictions that don’t implicate the prop rights of the state.
• When you are talking about free speech in the public forum, the scale will be tipped in favor of the free speech

Note: Regulating the Public Forum

• US v. Grace—(US 1983) signs near a courthouse
○ Ct invalidated fed stat that prohibited any person to display signs on sidewalks surrounding the Sup Ct.
Public sidewalks are public forums and the gov’ts ability to restrict them is very limited.
○ Held—statute here couldn’t be justified as a means to maintain proper order and decorum bc a total ban
not necessary to achieve these ends.
○ Gov’t can enforce reasonable time/place/manner only if the restrictions are content-neutral and are
narrowly tailored to serve a significant gov’t interest, and leave open ample alternative channels of
communication.
○ Gov’t may absolutely prohibit particular expression only if the prohibition is “narrowly drawn to
accomplish a compelling gov’t interest.”
• Grayned v. Rockford—(US 1972) noise near a school
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 ○ 200 demonstrators marched on public sidewalk 100 ft near a public school to protest the school’s racial
policies. Appellant convicted of violating a city noise ordinance that prohibited a person on public or
private grounds adjacent to a school building to disturb the peace when class is in session.
○ Held—Affirmed the lower ct, and said activity may be prohibited if it materially disrupts class work.
Here, the anti-noise ordinance is narrowly tailored to further Rockford’s compelling interest in an
undisrupted school session.
○ Ordinance is consistent with the 1st and 14th amendment.
○ It is neutral and only a time, place, manner restriction
• Frisby v. Shultz—(US 1988) picketing near a home
○ Group varying in size (11-40) protested in an orderly manner outside the house of an abortion doctor on
six occasions. After this, the town enacted an ordinance that prohibited residential picketing that focuses
on a particular residence.
○ Held—Ct upheld the ordinance as constitutional bc it left open ample alternative channels of
communications and was narrowly tailored to serve a significant gov’t interest. Protesters were still free
to march door-to-door and leaflet as long as they didn’t focus on one home. As far as privacy of the
home, the ordinance was narrowly tailored bc the evil of targeted residential picketing and presence of an
unwelcomed visitor is created by the medium of expression here.
○ Picketing is usually about the message to the public, not directed at the private residence on one person
• Clark v. Community for Creative Non-violence—(US 1983) sleeping in a park
○ Nat’l Park Service permitted CCNV to create a tent city to demonstrate the plight of the homeless,
however demonstrators were prohibited from sleeping overnight in the tents, per a regulation that
prohibited camping in the parks.
○ Held—Ct upheld the regulation as a reasonable time, place, manner restriction. CCNV wasn’t prevented
from demonstrating in other ways, and the content-neutral regulation narrowly focused on the gov’t
substantial interest in maintaining the parks in an attractive/intact condition.
• Ward v. Rock against Racism—(US 1989) noise in a park
○ Held—Ct upheld a NYC regulation req the use of city-provided sound systems and technicians for
concerts in Central Park. City desired to control noise levels and avoid undue intrusion into other
adjacent areas. Gov’t has a substantial interest in protecting its citizens from unwelcome noise, and the
regulation leaves open ample alternative channels of communication.
• Madsen v. Women’s Health Center, Inc.—(US 1994) demonstrating near an abortion clinic
○ State ct issued a new injunction prohibiting the petitioners from demonstrating w/in 36 ft of the clinic,
making excessive noise, exhibiting images observable by those inside the clinic, approaching patients,
and demonstrating w/in 300ft of the residence of any of the clinic’s employees.
○ Held—Ct upheld the 36ft buffer zone as a reasonable way to protect clinic access and the restriction on
excessive noise bc it’s important near medical facilities. Ct invalidated the restriction on exhibiting
images bc the clinic can just close its curtains. Also invalidated the injunction from approaching ppl
approaching the clinic absent evidence of fighting words or threats. Invalidated provision enjoining
demonstrations w/in 300ft of the residences of employees bc this zone is much larger than the zone
upheld in Frisby.
○ Speech zone which gets into property rights
• Schneck v. Pro-Choice Network of Western NY—(US 1997) demonstrating near an abortion clinic
○ Several abortion clinics in upstate NY subjected to a series of large-scale blockages, interfering with
patients attempting to enter the clinics. Fed ct issued an injunction agst 50 ppl and 3 organizations which
prohibited them from demonstrating within ‘fixed buffer zones’ (doorways, parking lot, driveways) as
well as prohibiting them from demonstrating in ‘floating buffer zones’ (15ft of a person or car)
○ Held—Ct upheld the fixed buffer zones as necessary in light of the prior conduct of the protestors. Ct
invalidated the floating buffer zones bc they effectively prevent protesters from communicating a
message from a normal conversational distance or handing leaflets to ppl entering/leaving on sidewalks.
• Hill v. Colorado—(2000) demonstrating near an abortion clinic
○ Held—upheld a CO stat that makes it unlawful for any person w/in 100ft of a health care facility to
“knowingly approach” within 8ft of another person, without that person’s consent, in order to pass “a
leaflet or handbill to, display a sign, or engage in oral protest, education or counseling..” No one has the
right to press even ‘good’ ideas on an unwilling recipient. The statute is a valid time/place/manner
regulation bc it serves gov’t interests that are significant and legitimate and is narrowly tailored to serve
those interests and leaves open ample alternative channels for communication.
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 • Capitol Square Review and Advisory Board v. Pinette—(US 1995) unattended structures
○ Ct strongly suggested but didn’t decide that a ban on all unattended displays might be const. Such a
display creates a far greater intrusion on gov’t property and interferes with the gov’ts ability to
differentiate its own message from those of private individuals
○ Does this decision bring us full circle to Dennis?

Note: Devices for Regulating the Public Forum

Licensing
• Cox v. New Hampshire—(US 1941) A group of Jehovah’s Witnesses convicted of violating a state stat
prohibiting “parade or procession” on a public street w/o prior permit. Ct affirmed convictions on the ground that
regulation of streets for parades is a traditional exercise of control by local gov’t. Ct emphasized that the state ct
had stressed that the licensing board wasn’t vested with arbitrary power ad that discretion must be exercised free
from unfair discrimination. Ct said it is impossible to say that the limited authority conferred by the licensing
provisions contravened any const right.
○ Licensing stat provided every licensee shall pay in advance a fee ranging from nominal- $300, turning on
the size of the parade met the expense incident to admin of the Act and to maintain public order. This is
not contrary to the Const to charge a fee for the purpose here.
• Watchtower Bible & Tract Society v. Village of Stratton—(US 2002) City claimed that if the city could use a
time/place/manner based licensing scheme for individuals who want to parade on streets, it can use the same
shceme for ppl who want to go door-to-door and speak with homeowners and dist lit. Ct held this scheme unconst
and said that the effect on ‘spontaneous speech’ rendered ordinance unconst. But, ct indicated that such a scheme
if limited to commercial activities and solicitation of funds might not be invalid.

Fees
• Murdock v Pennsylvania—(US 1943) Ct held that the state may not impose a flat license tax as a condition to the
pursuit of activities whose enjoyment is guaranteed by the 1st where the tax isn’t a nominal fee imposed as a
regulatory measure to defray the expenses of policing the activities in question. Might be able to charge in
accordance with the nature of the speech…
• Forsyth County, GA v The Nationalist Movement—(US 1992) Ct invalidated a municipal ordinance that
authorized permit fees for parades, demonstrations, marches, etc. up to a max of $1000 based on anticipated
expense necessary to maintain order. Fee would depend on administrator’s measure of likely hostility, thus those
wishing to express unpopular views may have to pay more. Speech cannot be financially burdened simply bc it
might offend a hostile mob and regulations that permit gov’t to discriminate on basis of content are unconst.
Disclosure
• Talley v. California—(US 1960) A handbill distributor protesting employment discrim was prosecuted for
violating a Los Angeles ordinance prohibiting any person to distribute any hand-bill which doesn’t have the
producer(s)’s name and address printed on it. Ct held ordinance invalid—identification req would tend to restrict
freedom to distribute info and thereby freedom of expression. Identification might deter peaceful discussions.
• McIntrye v. Ohio Elections Commission—(US 1995) Ct invalidated a state stat prohibition the dist of campaign
literature doesn’t contain the name and address of the person issuing the literature.
• Buckley v. American Const Law Foundation—(US 1999) invalidating a state law req petition circulars to wear a
badge identifying them by name.
• Having to put your name on leaflets is complete contravention of free speech.
• Buckley v. Valeo – supreme court validated disclosure of name when you make a campaign contribution

The Public Forum: Other Publicly Owned Property

International Society for Krishna Consciousness v. Lee (US 1992)

FACTS: Port Authority of NY and NJ owns 3 major airports in NYC and forbids repetitive solicitation of money and
repetitive sale or distribution of certain merchandise. The regulation governs only the terminal buildings, not the
sidewalks outside of them.
HOLDING: Ct upheld the ban on solicitation but invalidated the ban on the sale or distribution of literature.
• Solicitation—airport terminals are not traditional public for a bc it cannot fairly be said that terminals has a
principal purpose of promoting the free exchange of ideas. Thus, prohibition of solicitation need only satisfy a req

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 of reasonableness, easily satisfied here bc solicitation impedes the normal flow of traffic and delays are costly.
Also reasonable bc they can solicit on the sidewalks outside terminals and reach most airport users there.
○ Dissent—4 judges said airport terminals are public fora. Ct’s failure to recognize the possibility that new
types of gov’t property may be appropriate forums for speech will lead to a serious curtailment of our
expressive activity. Airport has important physical similarities to a street and expressive activity is
compatible with uses of airports.
• Sale/dist of literature—Ban on the sale/dist of literature violated the 1st Amend. Ban was invalid bc “the right to
distribute flyers and literature lies at the heart of liberties guaranteed by the 1st.
○ Concurrence—leafleting does not necessarily entail the same kinds of problems presented by face-to-
face solicitation.
○ Dissent—like solicitation, leafleting can cause congestion. Leafleting is even worse than solicitation
insofar as leafleting may produce litter, thereby creating an eyesore, safety hazard, and clean-up for staff.
NOTES:
• Can we make a distinction bw soliciting and leafleting? The court makes some false distinctions.
• Fenton – there is really no difference. But it is a plurality opinion and no one is really agreeing on anything.
• Balance and tension issues about what speech can be restricted by the state.
• Content neutrality, time/place/manner, gov interest – standards for regulation of speech.

Note: Modern Public Forum Doctrine

Deference to regulators
• By employing low levels of scrutiny, the Court assumes regulatory decision making is generally trustworthy.
• Ct fails to recognize that officials often have strong incentive to over-regulate:
○ Tendency of forum regulators to be disproportionately sensitive to threats of disruption.
○ Forum regulators tend to be particularly sensitive toward protecting public services when the
communication is controversial or is of interest to only a small segment of the population.
Evaluation
• Dispute over access to nonpublic forum public property turns on conflict bw competing views:
○ 1st Amend reqs gov’t to permit the widest possible opportunity for free expression. Thus, any law that
restricts free expression must be invalidated unless the gov’t interest served by the restriction outweighs
the effect on free expression. [this is what we have today]
○ Traditional means of expression provide ample opportunity for free expression. (tv, radio, paper,
speeches, parades, leaflets, etc.) Access to nonpublic forum might make some speech marginally more
effective, a denial of access to such property poses no real threat to marketplace of ideas. Thus, costs of
such inquiries exceed the benefits.
• Cts recently have embraced 2**

The Public Forum: Unequal Access and the Problem of Content-Neutrality

Police Dept of Chicago v. Mosley
408 U.S. 92 (1972)
A law may not distinguish bw protesters based on the content of their message
RULE: A law may not discriminate by different protesters based on the content of their message without violating
the Equal Protection Clause.
FACTS: (City v. Protester)
• Earl Mosley (P) frequently picketed Jones Commercial High School in Chicago. During school hours, he would
walk the public sidewalk next to the school, carrying a sign that read: “Jones High School practices black
discrimination. Jones High has a black quota.” Mosley (P) was usually alone, and his protests were always
peaceful.
• Unfortunately for Mosley (P), a city ordinance provided that a person commits disorderly conduct when he
pickets on a public way within 150 ft of any school while the school is in session. The ordinance had an
exception for the peaceful picketing of any school involved in a labor dispute.
• Mosley (P) brought an action seeking declaratory and injunctive relief
PROCEDURE: Certification to the US Sup Ct after a lower ct granted Mosley (P) an injunction and declaratory relief.
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ISSUE: Does an ordinance which makes a distinction bw labor picketing and other types of peaceful picketing violate
EPC of the 14th? [YES]
RATIONALE:
• Bc the ordinance treats some picketing diff than others, we analyze this case in terms of the EPC. EP issue is
closely intertwined with 1st Amend issues in that the expressive conduct of picketing is being regulated on the
basis of its content.
• Crucial question in EP cases is whether there is a legitimate public interest suitably furthered by the differential
treatment. The problem with the ordinance here is that it allows certain picketing based on its subject matter.
• Above all else, the 1st means that gov’t cannot restrict expression bc of its message or ideas.
• The gov’t must afford all points of view an equal opportunity to be heard. Once a forum is opened to some
groups, the gov’t may not exclude other groups on the basis of what they intend to say.
• That is not to say there cannot be reasonable time/place/manner restrictions on picketing to further significant
gov’t interests. Competing demands on the same place and keeping order may justify restrictions on picketing.
• Here, however, the restriction is not on time/place/manner, but on content. This is never permitted.
• Chicago (D) argues the ordinance is a device for preventing disruption of school. Chicago (D) itself has
determined that labor picketing is allowed and won’t disrupt school. It cannot now claim that other types of
picketing will disrupt school.
• Chicago’s claim that non-labor picketing is more likely to produce violence than labor-picketing is speculative.
• Some picketing of all types is peaceful, some violent. Violent excesses can be controlled by narrowly drawn
statutes focusing on abuses rather than content. Under the EPC, the ordinance cannot stand. Affirmed.
CONCURRENCE: (Burger)
• Join the ct’s opinion with the reservation that some language used could be misleading. The 1st doesn’t literally
mean that we are guaranteed the right to express any thought free from gov’t censorship. There are qualifications,
such as in Roth v. US (obscenity) and NY Times v. Sullivan (defamation.
ANALYSIS:
• This ordinance wasn’t content-neutral. Thus, subject to strict scrutiny  generally ends with the law being struck
down, as happened here.
• The ct analyzed the case under EP but the analysis is essentially the same under the 1st.
• The gov’t does have an interest in preventing disruption of schools, however this ordinance wasn’t narrowly
tailored to achieve that end. Nor did it attempt to achieve that end in a content-neutral fashion.
• Is this really okay bc it was view point neutral, it only differentiates on subject matter not on the content of the
speech.

Note: Mosley and the “Equality” of Ideas

• Subject matter restrictions seem much less likely than other forms of content-based restrictions to be the product
of gov’t hostility to the ideas suppressed.
• One might argue that subject-matter restrictions are in general less threatening than other sorts of content based
restrictions and, like content-neutral restrictions, need not be subjected to the most stringent standards of review.
• Carey v. Brown—(US 1980) peaceful demonstration outside mayor of Chicago’s home protesting his alleged
failure to support the busing of school children to achieve racial integration. Ct held that the residential picketing
statute was constitutionally indistinguishable from the ordinance invalidated in Mosley. When gov’t regulation
discriminates among speech-related activities in a public forum, the EPC mandates that the legislation be finely
tailored to serve substantial state interests, and the justifications offered for and distinctions it draws must be
carefully scrutinized.
• Widmar v. Vincent—(US 1981) universities and the problem of religious expression. University routinely
permits student groups to meet on university facilities, but adopted a regulation prohibiting the use of university
buildings for “purposes of religious worship/teaching.” Evangelical Christian students challenged the regulation.
Ct invalidated it and stated that campus has many characteristics of public forum. Here the universities created a
forum generally open for use by student groups. To justify discriminatory exclusion based on religious content,
university must show the regulation is necessary to serve a compelling state interest and that it’s narrowly drawn
to achieve that end. Here, University claimed compelling interest to separate church and state. It doesn’t’ follow
that an “equal access” policy would be incompatible with the establishment clause. Not about entanglement, just
give access to all groups.

Lehman v. City of Shaker Heights

418 US 298 (1974)

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 The gov’t may discriminate agst certain subject matter in accepting advertising on a public transit system
as long as its policies are not arbitrary, capricious, or invidious.
RULE: The gov’t, when involved in a commercial venture such as operating a transit system, may prohibit
advertising by political candidates.
FACTS: (Political candidate v. City)
• Lehman (P), a candidate for the office of state rep, sought to advertise his candidacy on car cards in the Shaker
Heights Rapid Transit System operated in the City of Shaker Heights (D).
• Lehman (P) was refused advertising space bc the system did not permit political advertising.
• Ads from cigarette co’s, banks, retail establishments, churches, and civic groups were permitted.
PROCEDURE: Certification to the US Sup Ct after state cts denied Lehman (P) declaratory and injunctive relief.
ISSUE: May the gov’t forbid advertising by political candidates on a city owned transit system? [YES]
• Do we think that the bus is a public forum? Is this a limited public forum?
HOLDING:
RATIONALE:
• Lehman (P) argues the car cards here constitute a public forum which must accept advertising on a
nondiscriminatory basis. [Ct rejects].
• This is not a meeting hall, park, street corner, or other public thoroughfare. The city is engaged in a commercial
venture and must provide convenient and pleasant service to commuters.
• The ad space is part of this commercial venture. In much the same way that a newspaper need not accept all ads,
the City (D) can decide in a reasonable manner what type of ads to accept.
• There is state action here, however, so the policies must not be arbitrary, capricious, or invidious. (only if the state
is operating as a commercial enterprise)
• City (D) allows “purveyors of goods/services saleable in commerce” to purchase ad space on an “equal basis.”
• Requiring political ads could jeopardize revenue, subject users to political propaganda, and create lurking doubgs
about favoritism to political candidates.
• The City’s (D) decision to limit ad space to less controversial commercial and service ads doesn’t violate the 1st.
• Minimizing abuse, the appearance of favoritism, and imposing on a captive audience are reasonable gov’t
objectives advanced by the City (D).
• There is no 1st or 14th violation. Affirmed.
CONCURRENCE: (Douglas)
• The street cars are not public forums such as parks/streets. Some ppl by necessity must use the system.
• Lehman (P) has the right to express his views to those who want to listen, but no right to impose them on a
captive audience. The commuters have a right to be free from forced intrusion on their privacy.
• Commercial ads may be just as offensive and intrusive as political ads. However, we aren’t faced with that prob.
DISSENT: (Brennan)
• We don’t need to decide whether public transit cars must be made available as forums of expression. The City
(D) has already est one by accepting other advertising.
• The City (D) cannot argue that ads in public transit cars are incompatible with the primary function of providing
transportation bc it already allows many ads.
• I don’t agree that in limiting the space to less controversial commercial and public service ads the City (D) has not
created a public forum. Even though it may be afforded less protection than political speech, commercial
advertising is still speech and can convey controversial ideas.
• Once these ads are accepted, the existence of a public forum cannot be denied. To allow bland commercialism
and not political speech is to reverse the traditional priorities of the 1st. The City (D) argues tits commuters are a
captive audience who are forced to endure the ads. This argument loses force bc the City (D) has voluntarily
allowed other ads to be forced on commuters. Furthermore, if commuters are offended by an ad, they can avert
their eyes.
• The line bw ideological and non-ideological speech is impossible to draw. By allowing commercial and public
service ads, the City has opened the door to sometimes controversial speech and determined that it will not
interfere with the system’s primary purpose of transporting ppl. City’s argument ads may suggest favoritism is
also unpersuasive. A disclaimer on the ad could dispel the impression of gov’t endorsement.
ANALYSIS:
• This case highlights some factors the ct will consider when reviewing speech restrictions:
○ Captive audience?  if so, subject matter regulation is more likely to be allowed.
○ Political or commercial?  commercial gets less 1st protection than political.
• This is Davis like

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Note: Lehman and the Limits of Mosley
• In Mosley, laws granting unequal access to gov’t property for speech purposes “must be carefully scrutinized” and
“must be tailored to serve a substantial gov’t interest”
• In Lehman, upheld such a law bc it was not “arbitrary, capricious, or invidious.”
• Greer v. Spock—Base commander of Fort Dix denied the request of a political candidate to make a speech on the
base to discuss election issues with service personnel and their dependents. The candidate argued that the
regulation was invalid bc the ban on civilian access to the base for expressive purposes was not content-neutral.
Ct upheld the regulation and said the business of a military installation is to train soldiers, not to provide a public
forum. No claim that the military authorities discriminated in any way among candidates. In such circumstances,
the ban on partisan political expression was not unconst.

Perry Educators’ Association v. Perry Local Educators’ Association—(US 1983)

FACTS: An interschool mail system to transmit messages among teachers/admins allowed some private organizations to
use the system. PEA was certified as exclusive bargaining rep of the district’s teachers and the school dist and PEA
entered a bargaining agreement granting PEA but no other union access to the mail sys. PLEA, rival union, claimed that
the district’s access policy violated the const.
HOLDING: Ct upheld the policy. Ct said there is a category of public property which is not by tradition or designation a
forum for public communication and the state may reserve such property for its intended purposes so long as the
regulation of speech is reasonable and not an effort to suppress expression merely bc public officials oppose the speaker’s
view. There’s no indication that the school board intended to discourage one view point and advance another.
Differential access provided PEA and PLEA is reasonable bc it is wholly consistent with the district’s legitimate interest
in ‘preserving the property for the use to which it is lawfully dedicated’
DISSENT: In focusing on the public forum issue, the Ct disregards the 1st’s central proscription agst viewpoint
discrimination, in any forum, public or nonpublic. Only reason for PEA to seek an exclusive access policy is to deny its
rivals access to an effective channel of communication. Such viewpoint discrimination can be sustained only if the gov’t
can show that the reg is a precisely drawn means of serving a compelling state interest. State interests here are
insufficient to sustain the challenged policy. The state is given free reign here…
NOTES:
• 1st category - street/parks,
• 2nd category - public property that state has intentionally opened for free expression,
• 3rd category - property that is not tradition forum for public communication (limited public forum)
○ this is what we have here
○ how can we limit…what makes that okay? Isn’t this a form of viewpoint descrimination

Note: Quintessential, Designated, and Nonpublic Forums

• Cornelius v. NAACP Legal Defense & Educational Fund—(US 1985) Ct upheld an Executive Order limiting
participation in the CFC to voluntary, tax-exempt, nonprofit charitable agencies that provide direct health and
welfare services to individuals and expressly excluding legal defense and political advocacy organizations.
○ Ct held (1) that the CFC is a nonpublic forum, (2) the challenged limitation was reasonable bc the
President could reasonably conclude that (a) a dollar spent on providing food/shelter is more beneficial
then spent on litigation, (b) participation of legal defense and pol advocacy groups would generate
controversy and be detrimental to the campaign and workplace, and (c) exclusion of legal defense and pol
advocacy groups would avoid the reality and appearance of gov’t favoritism or entanglement with
particular viewpoints. Ct said restriction was view point neutral.
○ Dissent—ct’s analysis empties the limited public forum concept of meaning.
• Arkansas Educational Television Commission v. Forbes—(US 1998) AETC is a state agency that owns five
noncommercial tv stations. AETC planned debate series bw candidates for fed office and decided to limit
participation to major party candidates and others who had strong popular support. Forbes satisfied the Arkansas
req that he get 2000 signatures to qualify him to appear on the ballot, but AETC still refused to include him in
debates bc he hadn’t generated an appreciable voter support and wasn’t regarded as a serious candidate by the
press. Forbes claimed 1st amend violation in excluding him. Ct rejected his claim, held that the AETC debate was
not a designated public forum and the decision to exclude Forbes was constitutionally permissible bc it was not
based on the speaker’s viewpoint and was “reasonable in light of the purpose of the property” Cable tv station is a
commercial enterprise and thus a limited public forum.

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 • US v. Kokinda—members of a political group set up tables on sidewalk outside a US Post Office to distribute
literature and solicit contributions. Sidewalk is entirely on Post Office prop and is sole means of access to the
building. Respondents convicted of violating a regulation prohibiting any person from soliciting contributions on
postal premises. Ct upheld the regulation. The sidewalk is not a traditional public forum bc the sidewalk here
does not have the characteristics of public sidewalks traditionally open to expressive activity. Limited public
forum.
• Denver Area Educational Telecommunications Consortium, Inc v FCC—In the Cable Act 1994, Congress
authorized local gov’ts to req cable operators to set aside a certain number of channels for public, educational, or
gov’t use, and prohibited operators from exercising any editorial control over the content of programs broadcase
on “public access” channels. Congress then amended this scheme to authorize cable operators to restrict
“indecent” programming on public access channels. Ct here invalidated the provision.
○ Ct debated the issue of whether a public access channel constitutes a “designated public forum”
 Yes—video equivalent of the speaker’s soapbox or the printed leaflet
 No—when the fed gov’t opens cable channels that would otherwise be left in private hands, it
deserves more deference than a rigid application of the public forum doctrine would allow.
 No—cable systems are not public prop.. privately owned and managed
• Cts in Perry, Cornelius, and Forbes sharply distinguish bw speaker-based and viewpoint-based restrictions and, at
least in the nonpublic form context, tested speaker-based restrictions by a standard of reasonableness.

Unit 18: "Indecency" – United States v. Williams, Supp. 238; pp. 1234-56

United States v. Williams

128 S. Ct. 1830 (2008)
RULE: Offers to provide or requests to obtain child porno are categorically excluded from the 1st Amend.
FACTS:
• PROTECT Act made it a crime for any person “knowingly” to “advertise, promote, present, distribute, or
solicit…material…in a manner that reflects the belief, or that’s intended to cause another to believe…the material
is an actual minor engaging in sexually explicit conduct.”
• Also focuses on the belief of possessing it and not just that they actually have it bc it is getting harder to tell what
is virtual and what is real.
• Williams convicted under the Act for making available online 7 pics of actual children ages 5-15.
PROCEDURE:
• Ct of Appeals held the Act unconst overbroad and vague Said Congress could not go further than prohibiting
the knowing sale or distribution of actual child pornography.
• Supreme Ct reversed (here) and rejected the lower ct’s argument
ISSUE:
HOLDING: Offers to provide or requests to obtain child porno are categorically excluded from the 1st Amend.
RATIONALE:
• The stat doesn’t req actual existence of child porn, rather the stat bans collateral speech that introduces such
material into the child-porn distribution network. Thus internet child porn falls w/in the statute.
• This isn’t unconst. Offers to engage in illegal transactions are categorically excluded from 1st protection.
• Offers to deal in illegal products don’t acquire first amendment protection when the offeror is mistaken about the
factual predicate of his offer.
• A crime is committed only when the speaker believes or intends the listener to believe that the subject of the
proposed transaction depicts real children. Simulated child porn will be available so long as it is offered and
sought as such, and not as real child porn.
• There’s no 1st Amend exception from the general principle of crim law that a person attempting to commit a crime
need not be exonerated bc he has a mistaken view of the facts. Vagueness claim also rejected by this ct.
• Earlier case, Ashcroft, dealt w/ real children.
• Makes an analogy to selling drugs: should we be able to get someone under the same law for selling drugs for free
and someone selling them for profit…
CONCURRENCE:
• Stevens was satisfied that in light of the construction the ct gives to the stat, proposing a transaction in such
material would not give rise to crim liability unless the D actually believed or intended to induce another to
believe, that the material in question depicted real children
DISSENT:

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 •We should hold that a transaction in what turns out to be constitutionally protected speech is better understood not
as an incomplete attempt to commit a crime, but as a completed series of intended acts that simply don’t add up to
a crime, owing to the privileged character of the material the parties were in fact about to deal in.
• The ct is going agst the 1st Amend doctrine that tolerates speech restriction not on mere general tendencies of
expression, or private understandings of speakers and listeners, but only after a critical assessment of practical
consequences
• This stat is overbroad bc the virtually made child porno is not hurting anyone, and thus should not be restricted
NOTES:
• Be conscious of the link bw theory and actual occurrence.
• Why isn’t this prohibition extended to pornography in general and the depiction of women?
• Even under strict scrutiny, the court is willing to grant deference to leg when it comes to protecting children
• The actual message here is the harm, and thus virtual child porn should be prohibited as well as the real thing,
even though this is not consistent with the thought of free speech.
• Similar to fighting words in some sense bc they both have the ability to incite other people to action
• This case is easy to decide on the facts, but not easy on theory.

Cohen v. California
403 US 15 (1971)
Offensive speech cannot be regulated in the public arena
unless the speech is likely to incite lawlessness and violence
RULE: Unless it is likely to incite lawlessness and violence, the gov’t cannot restrict speech simply bc it is offensive.
FACTS: (war protestor v. California)
• Cohen (D) was convicted of violating a CA law that prohibited “maliciously and willfully disturbing the peace or
quiet of any neighborhood or person by offensive conduct,” for which he was given 30 days in jail.
• The conviction stemmed from an incident in which Cohen (D) was seen in the Los Angeles County Courthouse
wearing a jacket that said “Fuck the Draft.”
• There were women and children present, and Cohen (D) was arrested. Cohen (D) testified that he wore the jacket
as a means of informing others of his deep anti-Vietnam War sentiments. At no time did Cohen (D) engage in or
threaten to engage in any act of violence. Neither did anyone else, as a result of Cohen’s (D) conduct, engage in
such activity.
• Cohen (D) appealed his conviction and the California Supreme Ct affirmed on the ground that it was foreseeable
that Cohen’s conduct might cause others to commit violent acts agst him in an attempt to remove the jacket.
• This court found, equated with offensive conduct, as it tended to provoke others to acts of violence or in turn to
disturb the peace.
• Cohen (D) appealed to the Supreme Court.
PROCEDURE: Certification to the Sup Ct of an appeal of a conviction for disturbing the peace by engaging in offensive
conduct.
ISSUE: Under the First Amendment, can states suppress speech that contains expletives on the ground that these words
inherently cause a disturbance of the peace? [NO]
HOLDING:
RATIONALE:
• The conviction in this case rests solely on speech, or on the offensiveness of the words presented by Cohen (D),
and not on any separately identifiable conduct. The State certainly lacks the power to punish Cohen (D) for the
underlying content of the message his jacket conveyed, and when there is no showing of intent to incite
disobedience or disruption to the draft, California (P) also may not punish Cohen (D) for asserting his beliefs on
the immorality or foolishness of the draft.
• As Cohen’s (D) conviction rests solely on his exercising his freedom of speech, it can only be justified, if at all, as
a valid regulation of the manner in which he exercised that freedom, and not as a prohibition on the message it
sought to convey.
• This doesn’t end the inquiry, however, bc the First Amendment has never given any individual the power to speak
whenever and wherever he pleases, or to use any form of address in any circumstances that he chooses.
• Though this is true, it is important to note that several issues typically associated with such problems are not
presented here.
○ First, there is nothing in the statute that refers to the preservation of an appropriately decorous atmosphere
in the courthouse—there is nothing that says this speech, acceptable elsewhere, is not allowed in a
courthouse.

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 ○ Second, there is no rule or law that in cases such as this, the gov’t can per se, without anything else,
restrict this type of speech.
○ Third, the words on Cohen’s (D) jacket were not fighting words in the sense that they were directed to
one particular person or group of people—there was no intent on the part of Cohen (D) to provoke a
particular person or group to action.
○ Finally, the fact that there might have been unwilling listeners in the courthouse does not permit the state
to restrict Cohen’s speech—when ppl are in public, they risk confronting speech that they might find
offensive.
• Against this background, there is simply no evidence that Cohen’s (D) actions are likely to incite people to
lawlessness. Finally, in a society such as ours, public debate is healthy and valuable. If the gov’t can forbid
certain words or phrases, they will be stifling ideas, which is, in itself, dangerous. Reversed.
DISSENT:
(Blackmun) Dissent for two reasons: (1) Cohen’s (D) absurd and immature behavior, in my view, was more like conduct
than it was speech; and (2) the case appears to be well within the sphere of Chaplinsky. As such, the Court’s agonizing
over First Amendment values seems misplaced and unnecessary.
(White) Dissented on other grounds.
ANALYSIS:
• As the decision shows, the Supreme Ct feels that public debate and discussion of ideas is healthy, which is why
Cohen’s (D) speech was held to be protected by the First Amendment.
• Indeed, the Court writes that the constitutional right to free expression is powerful medicine in a society such as
ours, as it will ultimately produce a more informed and capable citizenry.
• The Court points out that sometimes this free discussion may appear to create discord and offensive utterance, but
in the end, society will be better off because of it.
• Indeed, it is held, the First Amendment removes potential gov’t restraints on the arena of public discussion,
allowing the ppl to voice their views and be better for it.
• Though the Ct stresses the importance of the gov’t fostering free debate, it does place limits on that freedom to
speak—the ct makes it clear that ppl cannot say anything they want anywhere they want.
• The ct states that in our homes, we have a right to restrict what we hear—freedom of speech does not allow one
person to invade the sanctity of another’s home for the purpose of spreading an offensive or unwanted message.
• The ct also points out the fact that when people go into public, they assume a risk of hearing unwanted and
possibly offensive speech.
• Additionally, this decision makes clear that profanity is not always the same as fighting words. It is only when
profanity is accompanied by an incitement to lawlessness or violence that it can be restricted under the doctrine of
fighting words.
• Up until this case, the court held that the speech that was prohibitive was fighting words and obscenities.
• Can we equate profanity w/ obscenity? The court does not…
• Does the state have an interest in regulating low value speech?
• Is an insult an injury? Depends on a reasonable person standard in a particular situation, absent special knowledge
on the part of the speaker.
• Who gets to regulate speech?? Should it be social custom or should the gov have to step in? Should the social
customs be enforceable through the courts.

Note: Profanity, Cohen, and the Captive Audience

• Arguments concerning profanity  (1) “low” value speech and “low” first amendment value, or (2) “high” first
amendment value?
• Problem of profanity and fighting words are closely related.
○ Cohen—‘fighting words’ was to require unambiguous invitation to a brawl. So ct recognized that
fighting words and profanity problems are analytically distinct
 fighting words typically involve the use of profanity, but it is not essential.
 Fighting words usually involve insults directed personally to the addressee, and the problem of
profanity isn’t so limited.
• Does law restricting profanity in public = a law restricting the public expression of an “offensive” idea, or a law
restricting the use of an “offensive” means of expression?
○ Gov’t efforts to limit speech bc it is offensively noisy don’t implicate the same censorial or heckler’s veto
concerns as gov’t efforts to limit speech bc the ideas are offensive.
○ Restrictions on the use of profanity may affect some speakers more than others

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 ○ Rowan v. Post Office Dept— Ct rejected the argument that an individual has a right to send unwanted
material into the home of another. We are captive audiences often in today’s society. But, a sufficient amt
of individual autonomy must survive to permit every householder to exercise control over unwanted mail.
Homeowner the exclusive and final judge of what will enter his home has the effect of impeding the flow
of ideas that ideally he should consider, but nothing in the Const compels a person to listen to unwanted
communication, especially when “a man’s home is his castle.”
○ Bolger v Youngs Drug—Ct invalidated a fed statute prohibiting mailing of unsolicited ads for
contraceptives. Rationale—recognize interest in allowing addressees to give notice to a mailer that they
wish no further mailings, but cts have never held that gov’t itself can shut off the flow of mailings to
protect those recipients who might be offended. The burden of throwing mail in the trash is an acceptable
burden under the Const.
○ Lehman v City of Shaker Heights—Ct upheld the city policy permitting the display of commercial but
not generally more “controversial” political or public issue ads in the interior of city buses.
○ In the situation, unlike in Cohen, the city could protect the “captive” audience by adopting content-neutral
restrictions banning all speech.
 If a true captive audience exists, the state may protect the sensibilities of unwilling listeners by
banning all speech, regardless of content.

Erznoznik v. Jacksonville—(U.S. 1975)

FACTS: City concedes that the ordinance sweeps far beyond permissible restraints on obscenity and applies to films that
are constitutionally protected, yet argues that nudity visible from a public place may be suppressed as a nuisance. City
also argues police power to protect children, protect unwilling views from seeing profane expression, and that nudity will
distract motorists and cause crashes.
HOLDING: Ct invalidated a city ordinance that declared it a public nuisance for any drive-in movie theater to exhibit any
motion picture “in which the bare buttocks, breasts, pubic areas are shown, if such motion picture is visible from any
public street or place.” Basically says to ‘avert your eyes’
RATIONALE: The ordinance doesn’t protect citizens from all offensive movies, rather singles out only nudity. May
protect privacy by enacting reasonable time/place/manner regulations applicable to all speech. First amendment restricts
when the gov’t attempts to bar some kinds of speech and not others on the grounds that they are more offensive. Limited
privacy interest can’t justify censorship of protected speech on the basis of its content. As far as police power and minors,
the ordinance is overbroad in banning all nudity when clearly some nudity cannot be deemed obscene, even to minors. As
far as crashing motorists, the ordinance is under inclusive bc there is no reason to think that other scenes (i.e. violence)
would be any less distracting to a passing motorist.
DISSENT: It distorts reality to say to a passerby to avert their eyes from an outside screen of a drive-in theater. It’s
reasonable to think this would lead to accidents. Importantly, persons who wish to view these films still can in indoor
theaters and drive-ins with screens shielded from public view.
NOTES:
• This is a content based restriction which is more suspect.
• This restriction is not specific enough, it only prohibits nudity, but it allows extremely violent films which could
be equally troubling.

Fcc v. Pacifica Foundation—(U.S. 1978)

FACTS: At 2pm, a radio station broadcasted Carlin’s 12 min monologue entitled “Filthy Words.”A man who heard the
broadcast while driving with his young son wrote a complaint letter to the commission. Pacifica responded by saying that
the monologue was run during a program about contemporary society’s attitude toward language, and that listeners were
advised of its “sensitive” language before it began. No other complaints were filed.
HOLDING: Ct upheld the commission and FCC order because offensive, indecent material presented over the airwaves
confronts the citizen, not only in the public, but also in the privacy of their own home, where the individual’s right to be
left alone plainly outweighs the First Amendment rights of an intruder.
RATIONALE: Few, if any thoughts that cannot be expressed by the use of less offensive language. FCC’s action had
nothing to do with the substance of Carlin’s political ideas/opinions, rather the Commission objected only to the “way” in
which Carlin expressed those ideas. The holding is narrow (pig in the parlor analogy) the nuisance here may be merely a
right thing in the wrong place. The court said time restrictions are okay…only this type of language late at night when
children are more likely not to be listening.
CONCURRING: Points out that the holding does not prevent willing adults from purchasing Carlin’s record, attending
performances, or reading the transcript of the monologue. The language is degrading to children and when it comes into a
home, people have the right not to be assaulted by uninvited offensive sights and sounds. The result turns on the unique

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characteristics of the broadcast media, combined with society’s right to protect its children from speech generally agreed
to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such speech in their
homes.
DISSENT: The radio can be turned off. Speech that is neither obscene as to youths nor subject to some other legitimate
proscription cannot be suppressed solely to protect the young from ideas/images a leg body things are unsuitable for them.

Sable Communications, Inc. v. FCC—(U.S. 1989)

HOLDING: Ct held unconst a federal statute prohibiting the interstate transmission of “indecent” commercial telephone
messages.
RATIONALE: Ct said telephone communications are different bc they require the caller to take “affirmative steps” to
receive the message. Placing a phone call is not the same as turning on a radio and being taken by surprise. The
prohibition has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for
children to hear.

Reno v. ACL—(U.S. 1997)

HOLDING: Ct invalidated two sections of the Communications Decency Act of 1996 that were designed to protect
minors from “indecent” and “patently offensive” communications on the Internet. Lack of precision was fatal; bc in order
to access potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a const
right to receive and to address to one another. In enacting these provisions, the gov’t was not using the “least restrictive
means” for achieving its goal.
RATIONALE: Ct distinguished Pacifica. The Internet has no comparable history to the radio. The risk of encountering
indecent material on the Internet by accident is remote because a series of affirmative steps is required to access specific
material. The burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted to serve. Sexual expression which is indecent but not
obscene is protected by the First Amendment. Protecting children doesn’t justify an unnecessarily broad suppression of
speech addressed to adults.

Ashcroft v. ACLU—(2004)
FACTS: In response to Reno, Congress enacted the Child Online Protection Act designed to address the const defects the
Ct had identified in the CDA. Criminal penalties for the knowing posting for “commercial purposes” of WWW content
that is “harmful to minors.” (under 17) The Attorney General contended that COPA, by criminalizing commercial
Internet postings which were harmful to minors unless the age of the recipient was verified, served the proper
congressional purpose of protecting minors.
HOLDING: The fed district ct did not abuse its discretion in entering a preliminary injunction agst enforcement of
COPA. Supreme Court held, however, that preliminary injunctive relief was warranted since the Attorney General failed
to rebut the providers' contention that filtering software was a plausible, less restrictive, and available alternative to
accomplish the congressional purpose. The judgment upholding the preliminary injunction against enforcement of COPA
was affirmed
RATIONALE: The district ct had issued the preliminary injunction bc it found that there “are plausible, less restrictive
alternatives to COPA.” The primary alternative is filters, and under this regime, adults w/o children may gain access to
speech they have a right to see w/o having to identify themselves or provide credit card info. Filters may be more
effective than COPA, although it isn’t a perfect solution.
DISSENT: Would subject the Act to “the most exacting scrutiny.” Examinations of the burdens the Act imposes on
protected expression, and the Acts ability to further a compelling interest and proposed less restrictive alternatives
convinces the dissent the ct is wrong. The Act imposes a burden on protected speech that is no more than modest. The
Act doesn’t censor the material it covers. Rather, it requires providers of the ‘harmful to minors’ material to restrict
minors’ access to it by verifying age. Filtering software doesn’t solve the ‘child protection’ problem. Filtering is faulty,
expensive, depends on parents willing to decide where they children will surf the web, and lacks precision. Congress
could reasonably conclude that a system that relies entirely on use of filtering software is not an effective system. Gov
interest is compelling in protecting children from seeing this speech. More important to protect children than it is to
protect adults from having to put identifying info in to access the information.
NOTES:
• This is consistent with the other cases
• There is always new technology and ways for legislation to be written…thus constant cases re this topic.

Note: “Indecent” Expression

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 • Denver Area Educational Telecommunications Consortium, Inc. v. FCC—The Cable Act of 1984 required
cable operators to reserve approx 15% of their channels for commercial lease. It expressly prohibited operators
from exercising any editorial control over content on “leased access” channels. Ct considered several provision of
a prior Act which altered the scheme with respect to “indecent (sexually offensive) programming.” Section 10(a)
authorized cable operators to prohibit “indecent” programming on leased access channels. HOLDING—Ct
upheld the provision. RATIONALE—the permissive nature of the provision coupled with its viewpoint-neutral
application suggests that section 10(a) is a constitutionally permissible way to protect [children]. DISSENT—
Congress singles out one sort of speech for vulnerability to private censorship in a context where it does not
otherwise permit content-based discrimination. In these circumstances, strict-scrutiny applies and 10(a) cannot
survive bc of availability of other means of regulating such expression.
• Blocking v. unblocking—Denver Area—Section 10(b) of the 1992 Cable Act required “indecent programming”
to be segregated into a single channel and to auto block user access and unblock it only on a subscriber’s written
request. The Court invalidated this provision and said this 10(b) significantly differs from 10(a) bc “it does not
simply permit, but requires cable operators to restrict such speech. The written notice requirement might affect
subscribers who fear for their reputations if the list were disclosed. Ct held invalid bc it wasn’t the “least
restrictive alternative” and an obvious alternative was to require those who did ot want to receive such channels to
bear the burden of requesting that they be blocked.
• Scrambling and blocking—The Telecommunications Act of 1996 reqs channels primarily dedicated to sexually-
oriented programming either to “fully scramble” or limit transmission bw 10pm and 6am. Scrambling technology
is imperfect and sometimes the image bleeds through. The purpose of section 505 was to shield children from
“signal bleed” bc technology to “fully” eliminate signal bleed is very expensive so most cable operators limit their
hours instead.
• US v. Playboy Entertainment Group, Inc—Ct invalidated section 505 (above). There is a key difference bw
cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the
capacity to block unwanted channels on a household-by-household basis. The blocking option reduces the
likelihood that traditional First Amendment scrutiny would deprive the Gov’t of all authority to address this sort
of problem. Targeted blocking is less restrictive than banning and the Gov’t cannot ban speech is targeted
blocking is feasible and effective means of furthering its compelling interests. The Gov’t has not shown that
voluntary blocking alternative would be insufficient to secure its objective or that any overriding harm justifies its
intervention.
• Whose interest is protected? The indecency standard imposes on parents views and values of a local majority
regarding what is appropriate for minors. However, there are broad moral differences within this country and in
local communities regarding appropriateness of sex ed and the exposure to sex tinged issues. The best gov’t
regulations of indecent speech are those that facilitate parental control over their children by lowering the barriers
to and costs of such control.
• National Endowment for the Arts v. Finley—ct upheld agst both over-breadth and vagueness challenges a
federal statute that directs the National Endowment for the Arts, in establishing procedures to judge the artistic
merit of grant applications, to take “into consideration general standards of decency.”

Young v. American Mini-theaters—(U.S. 1976)

FACTS: Detroit zoning ordinance said no adult theater may be located w/in 1000 ft of any other “regulated uses” or w/in
500ft of a residential area. City is essentially limiting the number of these entities that can be in towns.
HOLDING: Ct upheld constitutionality of the ordinances on the ground that it would affect property values and attract
undesirable transients and increase crime to place several regulated uses in the same neighborhood.
RATIONALE: Apart from the fact that the ordinance treats adult theaters differently from other theaters and the fact that
the classification is predicated on the content of material shown, the regulation of place where such films may be
exhibited doesn’t offend the 1st Amend. Line is drawn on basis of content w/o violating the gov’ts obligation of neutrality.
City’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect and it must be
allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. This is merely zoning
regulation bc it deals with the character of areas.
CONCURRENCE: Case is an example of innovative land-use regulations that implicate 1st Amend only incidentally and
to a limited extent. Must ask (1) if the ordinance imposes any content limitation on the creators of adult movies or their
ability to make them available to those who desire them, and (2) does it restrict in any significant way the viewing of these
movies by those who desire to see them. [No, and No].
DISSENT: This case doesn’t involve simple zoning ordinances or a content-neutral time/place/manner restriction, or a
regulation of obscene expression or other speech entitled to less than full protection under the 1st. This case involves the
constitutional permissibility of selective interference with protected speech whose content is thought to produce
distasteful effects.
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NOTES: when should we think it is okay that the court just takes the leg word that transients are attracted by these kinds
of theaters and when should we ask for reasons and proof?

City of Renton v. Playtime Theaters—(US 1986)

FACTS: Ordinance at issue prohibited adult motion picture theaters from locating w/in 1000ft of any residential zone,
single or multi family dwelling, church, park, or school.
HOLDING: Ct upheld the ordinance. Ordinance must be tested as a content-neutral restriction.
RATIONALE: because the ordinance is aimed not at the content of the films, but at the secondary effects of such
theaters on surrounding community, it is completely consistent with the definition of content-neutral speech regulations as
those that are justified w/o regard to the content of the regulated speech. Ct rejected the three arguments presented against
the ordinance
DISSENT: Ct was misguided in concluding that the ordinance was ‘content-neutral.’ Bc the ordinance explicitly
discriminates on its face agst certain forms of speech based on content, it must be tested as a content-based restriction.
The ordinance greatly restricts access to lawful speech.

City of Los Angeles v. Alameda Books—(U.S. 2002)

FACTS: LA conducted a study that concluded that concentrations of adult entertainment establishments are associated
with higher crime rates. So it enacted an ordinance prohibiting such establishments w/in 1000 ft of each other or w/in 500
ft of a religious institution, school, or park. City amended ordinance to prohibit more than one adult entertainment
business in the same building. Alameda owned a combined book store and video arcade in the same location, and
challenged the amendment on the ground that there was no evidence that the single location caused higher crime rates.
HOLDING: Lower ct granted SMJ to Alameda, Supreme Ct reversed.
RATIONALE: It was rational for the city to infer that reducing concentration of adult operations in a n-hood wil reduce
crime rates. So LA has sufficiently complied with the evidentiary req in Renton to withstand a motion for summary
judgment.
CONCURRENCE: if the city can decrease crime asso w certain speech by trad exercise of zoning power, and at the
same time leave the quantity and accessibility of the speech substantially undiminished, there is no 1st Amend objection.
The proposition here is supported by the study and common experience, and the ordinance survives a summary judgment.
DISSENT: Bc content-based reg applies to expression by very reason of what is said, it carries a high risk that expressive
limits are imposed for the sake of suppressing a message that is disagreeable to listeners/readers/gov’t. The gov’t here has
not shown that bookstores containing viewing booths increase negative secondary effects and we are left w/o substantial
justification for viewing the restriction as content neutral.

Note: Zoning and Nude Dancing

• Schad v. Borough of Mt. Ephraim—(US 1981) Appellants operated an adult bookstore and installed a coin
operated mechanism allowing a customer to see live dancers behind glass. Convicted of violating a zoning
ordinance prohibiting live entertainment w/in borough. Ct held ordinance as invalid—ordinance prohibition on
all live entertainment was constitutionally overbroad. No evidence that this kind of entertainment was available
in reasonably nearby areas.
• California v. LaRue—(US 1972) Ct upheld as reasonable under the 21st, an admin regulation prohibiting nude
dancing in bars and nightclubs that are licensed to sell liquor bc of admin findings that such performances in such
establishments tend to promote rape and prostitution.
• (more ‘See also cases middle of 1256)
• Barnes v. Glen Theatre, Inc—(US 1991) Ct upheld an Indiana statute prohibiting any person to appear “in a
state of nudity” in any “public place” as applied to establishments that present nude dancing as entertainment.
• Court recognizes that nude dancing is expressive conduct.

Unit 19: "Fighting Words" and Hate Speech – Chaplinsky, 1117-25; Beauharnais, pp. 1256-64; R.A.V. v. City of St. Paul
& Virginia v. Black, pp. 1264-91

Chaplinsky v. New Hampshire

315 U.S. 568 (1942)
Supreme Court announces that certain classes of speech are unprotected by the Constitution
RULE: Use of fighting words, which tend to incite an immediate breach of peace, is of such low social value that its
punishment presents no Constitutional problem.
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FACTS: (Jehovah’s Witness v. State)
• Chaplinsky (D), a Jehovah’s Witness, was distributing literature on the streets of Rochester.
• Several citizens complained to the City Marshal that D was denouncing all religion as a “racket”
• D was warned of the crowd’s growing unrest but was allowed to continue.
• A disturbance eventually ensued, and D was led to the police station.
• While on the way he was confronted by the marshal. D then called the Marshal a “God damned racketeer” and a
“damned fascist,” and accused the gov of Rochester of the same.
• D was subsequently convicted of violating Chapter 378, §2 of the Public Laws of NH which essentially prohibited
face to face insults or offensive remarks.
PROCEDURE: Appeal to the US Sup. Ct. challenging the decision of the Supreme Court of New Hampshire, which
upheld the D’s Superior Court conviction.
ISSUE: May a state prohibit the use of certain words which are likely to cause the breach of the peace? [YES]
HOLDING:
RATIONALE:
• Under the broadest possible reading of the 14th amendment, the right of free speech is not absolute at all times and
under all circumstances.
• There is a narrowly limited class of speech which states may prevent and punish. It includes the obscene, the
profane, the libelous, and the “fighting words” – those which are not essential to the exposition of ideas and are of
such slight social value as a step to the truth that any benefit that may be derived from them is outweighed by the
social interest in order and morality.
• The state court has read the statute to prohibit no more than face-to-face words plainly likely to cause a breach of
the peace by the addressee. Thus construed, the statute is limited in scope and not violative of the constitutional
guarantee of free speech.
• Furthermore, it is obvious that phrases such as “god damn racketeer” and “damned fascist” are likely to cause a
breach of the peace.
• Therefore, the application of the statute to the facts cannot be said to infringe upon the same right. Affirmed.
ANALYSIS:
• The opinion in this case represents a well reasoned extension of the analysis set forth in Cantwell (Supreme Court
reverses D’s conviction for breach of the peace bc the language and manner of his speech were not aimed at
inciting such a breach).
• The court bases its opinion on the “2-level” theory of speech, which provides that speech, depending on its social
value, is either protected or unprotected.
• The court’s rationale provides a workable bright-line type of rule.
• More importantly, what determines the value of speech is not is content, but rather the effect it has or the manner
in which it is communicated.
• Chaplinsky is important for 2 main reasons:
○ As the seminal case establishing the “fighting words” doctrine
○ Proposition that some speech is unprotected by the Constitution and for its listing of classes of
unprotected speech.
• Obscene – in 1st amendment doctrine the word refers to matter which appeals to the prurient interest.
• Goes as far to say that fighting words are not speech and thus not protected by the 1st amendment.
• Clearly recognizes that free speech is not absolute and there is a balance that is necessary

Note: Fighting Words

• Building on dictum in Cantwell, the court in Chaplinsky first fully enunciated what Professor Kalven later termed
the “2-level” theory of speech, under which speech is either “protected” or “unprotected” by the first amendment
according to the court’s assessment of its relative “value.”
• Arguments for proposition that fighting words are of “low” 1st amendment value and therefore unprotected:
○ Fighting words are unprotected bc, as “epithets or personal abuse,” they are intended to inflict harm,
rather than to communicate ideas, and thus are not really “speech” at all.
○ Fighting words are unprotected bc they are “likely to provoke the average person to retaliation, and
thereby cause a breach of the peace.” Thus, the doctrine is merely a straightforward application of the
Holmes/Brandeis version of clear and present danger.
○ Fighting words are unprotected bc they are “no essential part of any exposition of ideas.”

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• Street v. New York – Street, a black, in learning that James Meredith, a civil rights leader, has been shot, burned
an American flag in public. A small crowd gathered, and Street said, “We don’t need no damn flag. If they let
that happen to Meredith we don’t need an American flag.” [Ct. said not “fighting words”]
○ The state argued that Street could constitutionally be convicted for this speech bc of “the possible
tendency of his words to provoke violent retaliation.
○ The court disagreed: we cannot say that his remarks were so inherently inflammatory as to come within
that small class of “fighting words” which are “likely to provoke the average person to retaliation, and
thereby cause a breach of the peace.”
• Cohen v. California – Cohen wore a jacket bearing the words “Fuck the Draft” in a courthouse. He was
convicted under a CA stat prohibiting any person “maliciously and willfully to disturb the peace or quiet of any
neighborhood or person by offensive conduct. The state courts interpreted the phrase “offensive conduct” as
“behavior which has a tendency to provoke other to acts of violence.” Sup. Ct. didn’t think this was fighting
words bc no individual actually or likely to be present could reasonably have regarded the words on appellant’s
jacket as a direct personal insult.
• Gooding v. Wilson – Gooding said to a police officer attempting to restore access to an army induction center
during an antiwar demonstration, “White son of a bitch, I’ll kill you” and “You son of a bitch, I’ll choke you to
death.” He was there after convicted under a Ga. stat prohibiting any person of using in the presence of another
opprobrious words or abusive language, tending to cause a breach of the peace.
○ Court held that the Ga. Law was overbroad and hence unconstitutional on its face bc the state courts had
repeatedly interpreted it as reaching clearly protected expression.
○ Examples of the overbreadth:
 State courts had failed to construe the stat as “limited in application, as in Chaplinsky, to words
that have a direct tendency to cause acts of violence by the person to whom, individually, the
remark is addressed
 State courts had previously interpreted the stat as authorizing conviction even if, bc of
surrounding circumstances, the addressee might not be able at the time of the remark to assault
and beat another, so long as it might still tend to cause a breach of the peace at some future time
○ Court emphasized this went beyond the fighting words doctrine, which reached only utterances tending to
incite an immediate breach of the peace.
• Rosenfeld v. New Jersey; Lewis v. New Orleans; Brown v. Oklahoma (decided as companion cases)
○ Rosenfeld – appellant, in the course of a public school board meeting attended by about 150 people, about
40 of whom were children, used the noun “mother-fucker” on 4 occasions to describe the teachers, the
school board, the town, and the country.
○ Lewis – while the police were engaged in arresting appellant’s son, she called them “god-damn-mother-
fucker police.”
○ Brown – appellant, a member of the Black Panthers, spoke by invitation to a large audience at the
University of Tulsa’s chapel. During the question and answer period, he referred to some police officers
as “mother-fucking fascist pig cops” and to one officer in particular as a “black mother-fucking pig.”
○ Each appellant was convicted under a state law prohibiting, in varying forms, the use of profanity in
public. In each case, the court summarily vacated the judgment and reversed for consideration in light of
Gooding.
○ Dissent (Burger, Blackmun, Rehnquist) → it is barely a century since men in parts of this country carried
guns constantly bc the law did not afford protection. In that setting, the words used in these cases, if
directed toward such an armed civilian, could well have led to death or serious bodily injury. When we
undermine the general belief that the law will give protection against fighting words and profane and
abusive language such as the utterances involved in these cases, we take steps to return to the law of the
jungle.
• Texas v. Johnson – court invalidated a TX stat that prohibited any person to “desecrate” the American flag “in a
way that the actor knows will seriously offend others likely to observe or discover his actions as applied to an
individual who publicly burned the flag in symbolic protest of national policy. Court held that this expressive
conduct did not fall within the fighting words doctrine bc no reasonable onlooker would have regarded the D’s
generalized expression of dissatisfaction with the policies of the fed gov as a direct personal insult or an invitation
to exchange fisticuffs. The most recent flag burning case.
• It has been suggested that the post-Chaplinsky decisions est that the doctrine applies only to the use of insulting
and provocative epithets that describe a particular individual and are addressed specifically to that individual in a
face-to-face encounter.
• The court has not upheld a conviction on the basis of fighting words since Chaplinsky.
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Note: The Skokie Controversy
• In 1997 the Village of Skokie, a northern Chicago suburb, had a population of about 70,000 persons, 40,000 of
whom were Jewish. About 5,000 of the Jewish residents were survivors of Nazi concentration camps.
• In March 1977, Frank Collin, leader of the National Socialist Party of America, informed village officials that the
party intended to hold a peaceable public assembly in Skokie on May 1 to protest the village’s requirement that a
$350,000 insurance bond be posted before the village’s parks could be used for purposes of assembly.
• The assembly would last 20-30 minutes and consist of 30-50 demonstrators marching in single file in front of
village hall wearing uniforms reminiscent of those worn by members of the Nazi party in Germany under Hitler.
They would also wear swastikas and carry signs that said: “White Free Speech” and “Free Speech for the White
Man”
• Village officials filed suit, seeking to enjoin the marchers from wearing their uniforms, etc. bc they would incite
or promote hatred against persons of Jewish faith or ancestry. Complaint alleged that march was a deliberate and
willful attempt to exacerbate the sensitivities of the Jewish population in Skokie and to incite racial and religious
hatred and that the display of the swastika constitutes a symbolic assault against large numbers of the residents of
the village and an incitation to violence and retaliation.
• Trial court granted injunction on April 29 after hearing evidence from village including:
○ 15-18 Jewish organizations and anti-Nazi organizations planned to hold counterdemonstration to protest
the march (12,000-15,000 persons were expected to participate)
○ Many threats of violence, and that, if the march was permitted to occur, “an uncontrollably violent
situation would develop” and “bloodshed would occur.”
○ The display of the swastika was intentional infliction of emotional distress
• National Socialist Party appealed.
• Appellate courts refused to stay the injunction pending appeal, and Ill. Sup. Ct. denied petition for direct,
expedited appeal. Party then sought a stay in the US Sup. Ct., which treated petition as a petition for cert, granted
the writ, and summarily reversed the state court’s denial of the stay.
• In 5-4 decision court characterized the denial of the stay as a final judgment for purposes of our jurisdiction bc it
finally det the merits of petitioners’ claim that the outstanding injunction will deprive them of rights protected by
the 1st amendment during the period if appellate review which, in the normal course, may take a year or more to
complete. If a state seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including
immediate appellate review. Absent such a review, the state must allow a stay.
• On remand, appellate court in July modified the injunction, so as to enjoin the party only from displaying the
swastika.
• Ill. Sup. Ct. held the entire injunction invalid.
• During course of injunction litigation Skokie enacted a series of ordinances designed to block the march.
○ Req $300,000 public liability insurance and $50,000 property damage insurance. (Discussed these types
of ordinances in the “prior restraint” unit. This is different than precious cases discusses bc the village
was using these measures to block the march.)
○ Prohibited dissemination of any material which promotes and incites hatred against persons by reason of
their race, national origin, or religion, and is intended to do so. (Classic content-based restriction)
○ Prohibited anyone to demonstrate on behalf of any political party while wearing a military-style uniform
(doesn’t seem rational and its content-based)
• All 3 ordinances were held to violate the 1st amendment (Collin v. Smith)
• As a last effort, the village requested the Sup. Ct. to stay the ruling of the court of appeals and the court denied the
stay.
• June 22 – Collin cancelled the march and explained that he had used the threat of a march in Skokie as a means to
win the right to demonstrate in Chicago.
• July 9, 1978 party held hour-long rally in Chicago at which 400 riot-helmeted policemen protected the 25 Nazi
demonstrators. 72 arrests happened and some rock and bottle throwing, but no serious violence.
• All of the ordinances introduced by the village were previously upheld by the court.

Hate Speech and Pornography

Beauharnais v. Illinois
343 U.S. 250 (1952)
Criminal Stat which prohibits libels directed at a creed or racial group is constitutional
RULE: A State may prohibit and punish libel of a creed or racial group.
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FACTS: (white supremacist v. state)
• Beauharnais (D), president of the White Circle League, organized the distribution of a leaflet setting forth a
petition calling on the mayor and city council of Chicago “to halt the further encroachment, harassment and
invasion of white people, their property, neighborhoods and persons, by the Negro.” Leaflet called for “one
million self respecting white people in Chicago to unite” and added that, “if persuasion and the need to prevent
the white race from becoming mongrelized by the negro will not unite us, then the aggressions, rapes, robberies,
knives, guns and marijuana of the negro surely will.”
• Attached to the leaflet was an application for membership in the white Circle League.
• As a result of his participation in the distribution of this leaflet, D was convicted under an Illinois statute declaring
it unlawful for any person to distribute any publication that “portrays depravity, criminality, unchastity, or lack of
virtue of a class of citizens, if any race, color, creed or religion to contempt, derision, or obloquy or which is
productive of breach of the peace or riots.”
• At trial, the judge refused to instruct the jury that, in order to convict, they must find that the article complained of
was likely to produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.
• Trial judge also refused to consider D’s offer of proof on the issue of truth, for under Illinois law, the defense of
truth is unavailable in a prosecution for criminal libel unless “the truth of all facts in the utterance be shown
together with good motive for publication” This appeal followed.
PROCEDURE: Appeal from lower court’s criminal conviction of the D.
ISSUE: Can a Stat pass a statute prohibiting and punishing libels directed at designated collectivities and flagrantly
disseminated? [YES]
HOLDING:
RATIONALE:
• The court recognized group libel in this case, which was not recognized before.
• A State may prohibit and punish libel of a creed or racial group.
• No one will dispute that it is libelous to falsely charge another with being a rapist, robber, carrier of knives and
guns, and user of marijuana. This being so, if an utterance directed at an individual may be the object of criminal
sanctions, we cannot deny to a state the power to punish the same utterance directed at a defined group, unless we
can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the state.
• In the face of history and its frequent obligato of extreme racial and religious propaganda, we would deny
experience to say that the Illinois legislature was w/out reason in seeking ways to curb false or malicious
defamation of racial and religious groups, made in public places and by means calculated to have a powerful
emotional impact on those to whom it was presented.
• As to the defense of truth, Illinois in common w/ many states requires a showing not only that the utterance state
the facts, but also that the publication be made “with good motives and for justifiable ends.” Both elements are
necessary if the defense is to prevail.
• Assuming D’s offer of proof directed to a part of the defense was adequate, it did not satisfy the entire
requirement which Illinois could exact.
• Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us
or for the state courts, to consider the issues behind the phrase “clear and present danger.”
• We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack.
Affirmed.
DISSENT:
(Black)
• The court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As
a result of this refined analysis, the Illinois stat emerges labeled a “group libel law.”
• This label may make the court’s holding more palatable for those who sustain it, but the sugarcoating does not
make the censorship less deadly.
• For as “constitutionally recognized” crime has provided for punishment in false, malicious, scurrilous charges
against individuals, not huge assembly, speech and press could be greatly abridged by a practice of meticulously
scrutinizing every editorial, speech, sermon, or other printed matter to extract 2 or 3 naughty words on which to
hang charges of “group libel.”
(Douglas)
• My view is that if in any case other public interests are to override the plain command of the 1st amendment, the
peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of
curbing speech in order to prevent disaster.
ANALYSIS:

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 • Libel of an individual was a common-law crime before the adoption of the constitution, and truth or good motives
was no defense.
• This was subsequently changed by judicial decision, stat or constitution in most states, but nowhere was there any
suggestion that the crime of libel be abolished.
• The court has continued to hold that libelous utterances are “no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.”
• The court is correct in its recognition that it could not be seriously maintained that the 1st amendment was
intended to protect speech that maliciously “portrays depravity, criminality, unchastity, or lack of virtue of a class
of citizens, of any race, color, creed, or religion.”
• This “low” value speech is incompatible with the fundamental commitment to human dignity and equality, and as
such, can be likened to express language of incitement, which has also been held to have “low” 1st amendment
value not worthy of the protections the constitution offers.
• Clear and present danger – standard set to det if one’s 1st amendment rights may be restricted or punished.
• Libel – malicious publication printed for the purpose of defaming another.
• Obloquy – disgrace
• There is a long line of cases that dealt with racial libel – it was considered libelous per se if you called a white
person black or insinuated they were sleeping with a black person.
• Are fighting words the same as libel? Should they be dealt with the same as clear and present danger?
• This case has not been followed since it came down from the court.

Clear and Present Danger Test v. Fighting Words

• Clear and present danger deals with political speech not talking to one particular person
• Fighting words are directed toward one person specifically
• What are the gov’s interests in both of these areas?
• Are fighting words more similar to pornography, obscenity, or libel than it is clear and present danger?

Note: Group Defamation and “Hate Speech”

• Subsequent opinions, such as NY Times and Hustler, have unequivocally held that libel is of low 1st amendment
value only insofar as it consists of false statements of fact. These decisions have thus generally been understood
to pull the rug out from under Beauharnais.
• Treatment of racist speech → should it be different than other forms of speech? Should it be grouped with
pornography, obscenity, or fighting words?
• Should there be a balance bw liberty/autonomy and equality under our laws? Most people focus on autonomy but
it undermines the equality of another person.
• Collin v. Smith – the approach sanctioned in Beauharnais would not pass constitutional muster today.
• Other arguments for libel to constitute “low” value speech:
○ Group libel doctrine is a logical extension of the fighting words doctrine.
○ It operates not by persuasion but by insidiously undermining social attitudes and beliefs, as evidenced by
the experience of Nazi Germany.
○ It cannot seriously be maintained that the 1st amendment was intended to protect speech that maliciously
portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed
or religion. It is incompatible with our fundamental commitment to human dignity and equality.
○ Hate speech causes its victims to curtail their own exercise of free speech rights
○ Leading opponents of free speech in every generation have insisted that the 1st amendment does not fully
protect the right to deny or criticize what their generation regards to be fundamental constitutional values.
• Doe v. University of Michigan – court invalidated as unconstitutionally overbroad a university regulation that
prohibited any person from stigmatizing an individual on the basis of race, religion, gender, or sexual orientation
when the reasonably foreseeable effect may be to interfere with the victim’s academic efforts.
• In 1992, CA enacted a law that prohibits private universities from disciplining students for speech unless public
universities could prohibit the same speech. A state court, relying on RAV v. City of St. Paul concluded that the
Stanford code would violate the 1st amendment if Stanford were a public university and therefore held the code
invalid.

R.A.V. v. City of St. Paul

505 U.S. 377 (1992)
Restrictions on speech based solely on a hostility toward
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 the underlying message of the speech are unconstitutional
RULE: Gov may not regulate speech, including fighting words, based on hostility or favoritism towards the
underlying message expressed.
FACTS: (Teenager v. City Gov)
• On June, 21, 1990, R.A.V. (D), a teenager, allegedly assembled a crudely-made cross out of broken chair legs and
burned it inside the fenced yard of an African-American family that lived across the street from where he was
staying.
• The City of St. Paul (P) sought to prosecute RAV’s actions under the St. Paul Bias-Motivated Crime Ordinance,
which provides that “Whoever places on public or private property a symbol, object, appellation, characterization
or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender
commits disorderly conduct and shall be guilty of a misdemeanor.”
• The city in writing this thought that it fell directly within fighting words and thus they could regulate it.
• RAV sought to have the case dismissed on the ground that the ordinance was substantially over-broad and
impermissibly content-based, and therefore facially invalid under the 1st amendment.
• Trial court granted the motion and dismissed the charges, but the Minn. Sup. Ct. reversed. RAV appealed.
PROCEDURE: certification to the US Sup. Ct. of a Minn. Sup. Ct. reversal of a trial court’s decision to dismiss criminal
charges on the ground that the charging ordinance was impermissibly content-based and over-broad in violation of the 1st
amendment.
ISSUE: Can a stat that restricts offensive speech based on a disapproval of the message contained therein survive 1st
amendment scrutiny? [No]
HOLDING:
RATIONALE:
• Assuming that all of the expression reached by the ordinance is proscribable under the fighting words doctrine,
we must nonetheless conclude that the ordinance is facially unconstitutional bc it prohibits otherwise permitted
speech solely on the basis of the subjects the speech addresses.
• 1st amendment generally prohibits government from proscribing speech bc of disapproval of the ideas expressed.
However there are a few categories of speech for which content based regulation is permissible on the ground that
the speech is of such slight social value that any benefit that may be derived from it is clearly outweighed by the
social interest in order and morality.
• One such category is fighting words. The exclusion of fighting words under the 1st amendment means that, for the
purpose of the 1st amendment, the unprotected features of the words are, despite their verbal character, essentially
non-speech.
• In this case we conclude that, even as narrowly construed by the Minn. Sup. Ct. to apply only to fighting words,
the remaining, unmodified terms make it clear that the ordinance applies only to fighting words that insult, or
provoke violence on the basis of race, color, creed, religion, or gender.
• Displays containing abusive invective, no matter how vicious, are permissible unless they are addressed to one of
the specific disfavored topics – i.e., fighting words can be used to express hostility for other topics w/out violating
the stat.
• The 1st amendment does not permit a city to impose special prohibitions on those speakers who express views on
disfavored topics.
• St. Paul’s ordinance may be narrowly tailored, but an ordinance not limited to the favored topics would have the
same effect w/out discriminating against special topics disfavored by the legislature.
CONCURRENCE:
(White)
• I agree w/ the majority that the judgment of the Minn. Sup. Ct. should be reversed, but that is where it ends.
• This case could easily be decided within the established contours of 1st amendment law by holding that the
ordinance is fatally overbroad in that it criminalizes not only unprotected expression, but protected expression as
well.
• Instead, the majority casts aside long-established 1st amendment doctrine and adopts an untried theory. This court
has long held certain discrete categories of expression to be proscribable based on their content, but now the
majority holds that the 1st amendment protects these narrow categories of expression long held to be undeserving
of 1st amendment protection.
• It is inconsistent to hold that the gov may proscribe an entire category of speech bc of an evil content, but that to
treat a subset of the category differently is to violate the 1st amendment.
• Additionally, the majority legitimates hate speech as a form of public discussion, which is improper.
(Blackmun)

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 • I fear that in deciding as it has, the court has been distracted from its proper mission by the temptation to decide
the issue over “politically correct speech” and “cultural diversity,” neither of which is presented here.
• I do not see the compromise of 1st amendment values in a law that prohibits hoodlums from driving minorities
from their homes by burning crosses on their lawns, but I do see harm in preventing the people of St. Paul from
punishing race-based fighting words that prejudice the community.
• I concur in the judgment, however, bc I agree with Justice White that this particular ordinance reached beyond
fighting words to speech protected by the 1st amendment.
(Stevens)
• While I agree that the St. Paul ordinance is over-broad, I disagree w/ some of the statements made by the majority
and concurring opinions.
• I am particularly troubled by the majority’s conclusion that the ordinance is an unconstitutional content-based
regulation of speech.
• The court establishes a near-absolute ban on content-based regulations of expression and holds that the 1st
amendment prohibits the regulation of fighting words by subject matter. This aspect of the court’s ruling
misunderstands the role and constitutional status of content-based regulations of speech.
• The scope of the 1st amendment is determined by the content of expressive activity, Indeed, whether speech falls
within one of the categories of unprotected or proscribable expression is det, in part, by the speech’s content.
• Further, the court applies the prohibition on content-based regulations to speech that the court had, until today,
considered wholly unprotected. This new absolutism in the prohibition of content-based regulations severely
contorts the fabric of settled 1st amendment law, and gives fighting words more protection than they had before.
• I do not believe that all content-based regulations are equally infirm and are presumptively invalid.
• I would conclude that a more complex and subtle analysis, one that considers the content and context of the
regulated speech, and the nature and scope of the restriction on speech, is necessary. Under such a view, the St.
Paul ordinance would be constitutional.
• The ordinance regulates speech not on viewpoint expressed, but rather on the basis of the harm that it causes, and
even if the ordinance did regulate fighting words based on its subject matter, such a regulation would, in my
opinion, be constitutional.
• Subject matter regulations generally do not raise the same concerns of gov censorship. The ordinance doesn’t
regulate based on viewpoint. The ordinance is even-handed, and does not favor one side of the debate or even
curtail debate.
• It simply bans activity that threatens an individual and by its execution inflicts injury.
• Were it not over-broad, I would vote to uphold it.
ANALYSIS:
• This decision is significant in that it limits the fighting words doctrine. Traditionally fighting words were
considered unprotected by the 1st amendment. However, Justice Scalia’s opinion asserts that even when gov seeks
to regulate a traditionally unprotected category of speech, it may not do so in a content-based manner.
• Thus, the law of fighting words was changed in this case. In a similar vein, this case changes the law in that it
seemingly rejects the previous distinctions bw protected and unprotected categories of speech by invalidating a
stat that proscribed unprotected speech.
• The decision holds that that even when gov is regulating a previously unprotected category of speech, it may not
do so in a manner based on content.
• Outside the theoretical realm, this case is significant in that it invalidated an anti-hate speech law. At the time that
RAV was decided, a number of states had passed laws seeking to curtail racism and other hateful actions against
minorities, women, homosexuals, etc. This case had a significant impact in that it seemingly invalidated these
laws.
• Finally, it is important to note that Scalia, writing for the majority, stated that a law that didn’t restrict punishment
to speech aimed at race, color, creed, religion, or gender, but prohibited fighting words in general, would be
constitutional – an idea that Justice White found absurd.
• Thus he paved the way for restricting anti-race or religion based speech, meaning that ordinances restricting such
speech can be constitutional if properly framed.
• The realities here are different than other cases, bc the conduct actually happened and that family was probably
terrified.
• Some people treat fighting words as conduct and not speech at all. Here, the teenagers were definitely sending a
message to the family, but as fighting words it was not considered speech as referenced in the 1st amendment.

Wisconsin v. Mitchell, 508 U.S. 476 (1993)

FACTS:

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 • After viewing the motion picture Mississippi Burning, in which a white man beat a young black who was praying,
Mitchell, who is black, urged a group of blacks to assault a young white boy who happened to be walking by.
• A jury convicted defendant of aggravated battery, a violation of Wis. Stat. §939.05, 940.19(1m) (1989-90).
• That offense ordinarily carried a maximum sentence of two years' imprisonment under Wis. Stat. §940.19(1m),
939.50(3)(e).
• Because the jury found that defendant had intentionally selected his victim on account of race, the trial court
sentenced defendant to four years' imprisonment under the state penalty-enhancement provision, Wis. Stat.
§939.645(1)(b).
• State’s hate-crime penalty enhancement stat; enhances the max penalty for an offense whenever the D
“intentionally selects the person against whom the crime is committed bc of the race, religion, color, disability,
sexual orientation, national origin, or ancestry of that person.
PROCEDURE:
• Defendant appealed to the state supreme court, which reduced defendant's sentence, holding that the penalty-
enhancement statute was unconstitutionally overbroad because it essentially punished offensive thought.
• The state supreme court reasoned that the evidentiary use of protected speech would have a "chilling effect" on
those who feared the possibility of prosecution for offenses subject to penalty enhancement.
• The Supreme Court of Wisconsin reversed the lower court's upholding of a state penalty-enhancement provision,
Wis. Stat. §939.645(1)(b) (1989-90), in defendant's sentence for racially-motivated aggravated battery, holding
that the statute violated the First Amendment by punishing what the legislature deemed offensive thought because
the legislature could not criminalize bigoted thought with which it disagreed.
• The United States Supreme Court reversed, holding that defendant's First Amendment freedom of speech rights
were not violated by application of the Wisconsin penalty-enhancement provision in sentencing him.
ISSUE: Does the Wisconsin stat violate the 1st amendment?
HOLDING: The Court reversed the lower court's invalidation of the state penalty-enhancement statute, holding that
defendant's First Amendment freedom of speech and association rights were not violated by the application of the penalty-
enhancement sentencing provision, and the statute was not constitutionally overbroad because the claimed First
Amendment "chilling effect" was far more attenuated and speculative than traditional "over-breadth" cases.
RATIONALE:
• A physical assault is not by any stretch of the imagination expressive conduct protected by the 1st amendment.
• Bc the only reason for the enhancement is the D’s discriminatory motive for selecting his victim, Mitchell argues
that the stat violates the 1st amendment by punishing offenders’ bigoted beliefs.
• In Hishon v. King & Spalding we rejected the argument that Title VII infringed employers’ 1st amendment rights
(Title VII makes it unlawful for an employer to discriminate against an employee bc of race, color, religion, sex,
or national origin)
• Nothing in our decision last term in RAV compels different result here, for whereas the ordinance struck down in
RAV was explicitly directed at expression, the stat in this is aimed at conduct unprotected by the 1st amendment.
• Bias-inspired conduct is thought to inflict greater individual and societal harm. For example, according to the
state, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their
victims, and incite community unrest.
• The state’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement
provision over and above mere disagreement with offenders’ beliefs or biases.
ANALYSIS:
• Here, the court decided to focus on the underlying events and not the statute. This case is more similar to RAV
than the court lets on.
• Weren’t these boys trying to make a point? Why isn’t this expression like that in RAV?
• Court was deferential to the legislature here and took their interests at face value.
• Since workers are a captive audience no one questions whether harassment laws are acceptable.

Note: R.A.V. and Mitchell

• The court in RAV held that a content-based distinction within a category of expression that can constitutionally be
restricted violates the 1st amendment.
• Problem with the distinction bw the cross-burner in RAV and the racial beating in Mitchell:
○ Although the cross-burner was prosecuted for his expression, that expression consisted of fighting words,
which are not protected “speech” w/in the meaning of the 1st amendment.
○ The act of beating an individual bc of his race can be a form of expression. After all, the assault does
communicate the D’s views both to the victim and to observers.

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 ○ Consider the harms identified by the court in Mitchell that are said to justify the enhancement
punishment.
• Title VII of the 1964 Civil Rights Act prohibits discrimination in conditions of employment by race, religion,
national origin, and sex. Courts have held that various kinds of harassment at work can be so severe that an
employee effectively suffers from discrimination w/in the meaning of title VII. Such harassment takes 2 forms:
○ Quid pro quo harassment – arises when an employer conditions an individual’s hiring, promotion, or
continued employment on sexual involvement, as when a supervisor tells an employee that he will fire her
unless she has sex w/ him. This is thought of as an explicit threat that is not protected by the 1st
amendment.
○ This one is more complex and may arise when an employer or coworker creates a situation in which the
working environment becomes hostile or abusive.

Virginia v. Black
538 U.S. 343 (2003)
A stat est intent to intimidate from the act of burning a cross violates the 1st amendment
RULE: A state statute banning cross burning w/ intent to intimidate another person is not in itself an
unconstitutional infringement on free expression, but the establishment of criminal intent from the prohibited act
of itself violates the 1st amendment.
FACTS: (Prosecuting Authority v. KKK Member)
• 3 Ds, including Black (D), were separately convicted under a Va. Stat prohibiting the burning of a cross in public
or on another’s property “w/ intent of intimidating any person or group of persons.” The stat provides that the act
of cross burning itself constituted prime facie evidence of intent to intimidate.
• Black was convicted of burning a cross as part of a KKK rally on another’s property, with his consent.
• At his trial, the jury was instructed that Black’s motivations demonstrated his intent. The Jury was further
instructed that it may infer Black’s intent from the act of burning.
• In a separate trial, 2 other Ds who were not Klan members, were convicted under the stat of burning a cross in a
black neighbor’s yard as retaliation for complaints of gunshots near the home. The jury was instructed in that trial
that guilt could be supported by evidence that “the D did a direct act toward the commission of the cross burning”
with “the intent of intimidating any person or group of persons.” After one D pleaded guilty, the other was
convicted of attempted cross burning.
• The 3 cases were consolidated to challenge the constitutionality of the cross-burning stat.
• The Va. Sup. Ct. declared the stat unconstitutional on its face bc it discriminated against expression on the basis
of content and allowed an inference of intent based on the commission of the act.
PROCEDURE: cert to review a decision of the Va. Sup. Ct.
ISSUE: May a state criminally ban cross burning w/ the intent to intimidate a person or group of persons w/out violating
the 1st amendment? [yes]
HOLDING:
RATIONALE:
• While the 1st amendment protects the right of free expression, it does not prevent a state from punishing content of
slight social value that is outweighed by the social interest in order and morality, such as a “true threat.”
Statements made “to communicate a serious expression of intent to commit an act of unlawful violence to a
particular individual or group of individuals” are not protected even if the speaker never intends to carry out the
violence.
• While cross burning has not always been used for the purpose of intimidation, the KKK’s practice of cross
burning as a symbol of white supremacy and minority hatred has created a sense of fear of violence in targeted
victims. The Klan uses the burning cross to symbolically communicate its message, which historically has
involved violence and the threat of violence against others.
• While the Klan may have a targeted class of victims, however, the stat does not. The stat does not penalize
expressions of intimidation motivated only by racial or religious animosity, but targets intimidation of any kind. It
does not regulate the content of a particular expression differently than that of another.
• “The First Amendment permits Va. to outlaw cross burning done with the intent to intimidate bc burning a cross
is a particularly virulent form of intimidation.”
• While the Constitution permits a state cross-burning stat, the Va. stat is unconstitutional on its face bc it allows for
prima facie evidence of intent based on the commission of the act, which strips away the very reasons the 1st
amendment permits such a stat.
• A burning cross does not always indicate the intent to intimidate; it may serve other expressions of the actor’s
views.

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 • The prima facie evidence provision necessarily convicts a D who burns a cross. Bc freedom of expression is
important and the stat makes no distinction bw expression w/ and w/out social value, the stat is unconstitutional
on its face.
• The burden should be on the state to prove your intent instead of another way around. We have 1st amendment
rights that the state has to show we are abusing.
CONCURRENCE: (Stevens)
• Although the stat does not cover threatening by other expressions, cross burning w/ the intent to intimidate is
unprotected by the 1st amendment.
DISSENT: (Thomas)
• Cross burning “almost invariably” means lawlessness and the threat of physical violence. For those not easily
intimidated by the threat of violence, the Klan historically and systematically resorted to physical violence to
serve its purposes.
• Those who enacted the stat clearly understood the distinction bw terrorists threats and racial expression, for the
stat does not target all racial expression, but rather merely the conduct of cross burning directly associated w/
threats of violence.
• Because the stat does not prohibit racial expression, the 1st amendment is not implicated.
• Even under the 1st amendment analysis, however, the permissible inference of intent does not present a
constitutional problem. The inference is rebuttable and the “innocent cross-burner” has the opportunity to
demonstrate his intentions to the jury.
• Moreover, the jury must still find the existence of each element of the offense beyond a reasonable doubt to
support a conviction.

DISSENT IN PART:
(Scalia)
• Prima facie evidence does not unequivocally establish the existence of a fact, but rather shifts the burden to the D
to rebut or contradict such evidence.
• The court surmises that that bc the prima facie evidence provision will result in a conviction of all Ds who choose
not to testify at trial, the stat is facially unconstitutional. Such a choice, however, does not make the stat facially
unconstitutional, for it involves factors unrelated to the language of the stat.
• A D is not necessarily convicted bc his intent in permissible inferred by his actions, but rather may possibly be
convicted depending on his trial strategy.
• A stat cannot be facially overbroad bc of the possible outcome of a D’s defense tactics. “Where a stat regulates
expressive conduct, the scope of the stat does not render it unconstitutional unless its overbreadth is not only real,
but substantial as well, judged in relation to the stat’s plainly legitimate sweep refused.”
(Souter)
• Under RAV v. St. Paul, the gov may not prohibit the use of symbols that are provocative “on the basis of race,
color, creed, religion, or gender.” An exception was created for those gov regulations involving content that
“consists entirely of the very reason the entire class of speech at issue is proscribable.”
• The Court uses this exception to justify the Va. stat’s constitutionality. The exception, however, does not apply to
the cross-burning stat.
○ First, while cross burning may have been legislatively targeted bc of its special power to threaten, it may
also have been targeted bc of legislative disapproval of the white supremacy doctrine.
○ Also, the cross-burning stat is not like laws prohibiting threats to the Presidents. Threats against the
President are prohibited regardless of the message, focusing instead on the special risks and costs
associated with the victim.
○ The cross-burning stat, however, suppresses not only intended intimidation, nut also the message of white
supremacy even when such a message was unintended by the burner.
• The prima facie evidence provision threatens any finding of a high probability that valid expression is suppresses
by diverting the jury’s attention away from evidence if intent and allowing deliberation to be consumed by
ideological discussion of the Klan’s message, not the D’s.
ANALYSIS:
• If the state’s objective in enacting the cross burning stat was the protection of others from the threat of violence,
there appear to be alternatives that are less intrusive on the 1st amendment.
• Simple trespass stats, for example, may criminalize a person who enters another’s property, regardless of the
content of their message while there.
• But Black was punished for burning a cross on another’s property w/ the landowner’s consent. The landowner
was not the target of a threat of violence, yet the stat punishes Black nonetheless.

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Note: Pornography and the Victimization of Women → Is this speech or purely conduct?
• American Booksellers Association v. Hudnut – the court of appeals for the 7th circuit held unconstitutional an
Indianapolis antipornography ordinance similar to the model antipornography law.
○ The court of appeals accepted the factual premises of the ordinance, conceding that depictions of
subordination tend to perpetuate subordination and that the subordinate status of women in turn leads to
affront and lower pay at work, insult and injury at home, battery and rape on the streets.
○ The court of appeals observed however, that other forms of expression (racial bigotry, anti-Semitism,
violence on TV) influence the culture and shape our socialization. Yet, all is protected speech, however
insidious.
○ The court rejected the argument that pornography, as defined in the ordinance, is low value speech:
Indianapolis left out of its definition any reference to literary, artistic, political, or scientific value.
Although the Sup. Ct. sometimes balances the value of speech against the costs of its restriction, it does
this by category of speech and not by the content of particular works.
○ The ordinance here expressly discriminated against a particular viewpoint. Because the ordinance
created an approved point of view it could not be defended as a restriction of only low value speech.
• Barnes v. Glen Theater – the court upheld a public indecency stat, which prohibits any person to appear in a state
of nudity in any public place, as applied to establishments that present nude dancing as entertainment.

Note: “Low” Value Speech – Final Thoughts

Unit 20: Commercial speech – pp. 1186-1208

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

425 U.S. 748 (1976)
Commercial Speech is protected by the 1st Amendment
RULE: Commercial Speech is not wholly devoid of 1st Amendment protection.
• State can restrict in time/place/manner or if the information is false or misleading.
FACTS: (Pharmacist Board v. Drug Comsumers)
• A Va. law prohibited pharmacists from advertising the prices of prescription drugs. The result of the law, as only
pharmacists could dispense prescription drugs, was to prevent the dissemination of price info throughout the state
of Va.
• The lower courts invalidated the law on 1st amendment grounds. Va. Pharmacy (D) appealed on the ground that
the advertisement of prescription drug prices is outside the protection of the 1st amendment bc it is commercial
speech.
• On the other side, the Citizens Consumer Council (P) argued that the 1st amendment entitled them to info
regarding the price of drugs.
PROCEDURE: Certification to the US Sup. Ct. of a lower court ruling invalidating a Va. law banning advertisement of
the price of prescription drugs.
ISSUE: Is speech that does no more than propose a commercial transaction so removed from any exposition of ideas that
it deserves no 1st amendment protection? [NO]
HOLDING:
RATIONALE:
• This court has recently indicated that the notion that commercial speech is unprotected by the 1st amendment is no
longer generally accepted. The fact that money is spent to project speech, or that the advertiser’s interest is purely
economic, does not disqualify speech from 1st amendment protection.
• As to the consumer’s interest in the free flow of commercial info, it is clear that the interest may be as keen, if not
keener, than his or her interest in the day’s most urgent political debate. Generalizing, society can have a strong
interest in the free flow of commercial info.
• 1st amendment protection does not distinguish bw public interest or important commercial speech and the
opposite. It is in the interest of the free enterprise economy, as well as in the interest of the consuming public,
that the free flow of commercial info continue.
• Even if the 1st amendment were thought to be primarily an instrument to enlighten public decision-making in a
democracy, it cannot be said that the free flow of info does not serve that goal.
• In this case, the citizens of Va., particularly the poor, have an interest in the price of prescription drugs. Thus, the
citizens’ interest is high. On the other hand, the advertising ban serves to keep Va.’s citizens in ignorance. It
does not directly affect professional standards in one way or another, and the info that it bans is not in itself
harmful.

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 • Thus, the state’s interest in restricting the speech is low. Though commercial speech can, in certain situations, be
regulated, it cannot be said that it is wholly unprotected, and in this case it would be improper to uphold the law.
Affirmed.
DISSENT: (Rehnquist)
• This case presents a fairly typical 1st amendment problem – that of balancing interest in individual fee speech
against public welfare determinations embodied in a leg enactment.
• In this case, the rights of the Ps seem to be marginal at best. There is mo ideological content to the info which
they seek, and it is freely available to them – they may even publish it if they so desire.
• On the other hand, the societal interest against the promotion of drug use for every ill, real or imaginary, seems to
be extremely strong.
• I do not believe that the 1st amendment mandates the court’s open door policy toward such commercial
advertising.
• As long as the gov has a legitimate interest in regulating the commercial speech, then it is within the power of the
state to do so.

ANALYSIS:
• In 1942, in Valentine v. Chrestensen, the Sup. Ct. stated the rule that speech that was purely commercial
advertising was not entitled to any protection under the 1st amendment. In this case that rule of wholly
abandoned, as the court held that even purely commercial speech is entitled to 1st amendment protection.
• Thus, this case represents an about-face in the law.
• This case is also important in that while there is clearly a right given to speakers to speak, the hearer of speech has
a 1st amendment right to receive info – the people of Va. had a right to hear how much drugs should cost.
• The majority of prior 1st amendment cases had dealt strictly with the right to speak – this is one of the first cases
to address the right to be spoken to, and as such, it is significant.
• It is important to note, however, that commercial speech, the court states, is not wholly unregulable – it can be
regulated in certain situations. Clearly false or misleading advertising can be restricted. Additionally, time, place,
and manner restrictions are also permissible in the realm of commercial speech.
• Everything about commercial speech regulation is content-based.

Note: Virginia Pharmacy and “the Free Flow of Commercial Information”

• Ohralik v. Ohio State Bar (Powell’s opinion) – In rejecting the notion that expression concerning purely
commercial transactions is wholly outside the protection of the 1st amendment, we were careful in Va. Pharmacy
not to discard the commonsense distinction bw speech proposing a commercial transaction and other varieties of
speech. We have afforded commercial speech a limited measure of protection, commensurate with its subordinate
position in the scale of 1st amendment values.
• In Va. Pharmacy the court reaffirmed that the content of the speech, rather than the speaker’s commercial or
profit motivation, is determinative. What matters, in other words, is not whether the speaker is out to make
money, but whether the expression does no more than propose a commercial transaction.
• Bolger v. Youngs Drug Products Corp. – court held that various informational pamphlets dealing w/
contraceptives constituted commercial speech. One of the pamphlets, “Condoms and Human Sexuality,”
specifically referred to a number of Trojan-brand condoms manufactured by Youngs and described the
advantages of each type. Another “Plain Talk about Venereal Disease” discussed condoms w/out any specific
reference to those manufactured by Youngs. Court explained:
○ (1) Mere fact that these pamphlets are conceded to be advertisements clearly does not compel the
conclusion that they are commercial speech.
○ (2) The reference to a specific product does not by itself render the pamphlets commercial speech.
○ (3) The fact that Youngs has an economic motivation for mailing the pamphlets would clearly be
insufficient by itself to turn the materials into commercial speech.
○ Combination of all 3 characteristics provides strong support for the conclusion that the informational
pamphlets are commercial speech.
○ Linking to topic of public interest does not afford it greater protection under the 1st amendment.
○ Referring to a product generically does not remove it from the realm of commercial speech, when the
product has sufficient control of the market…

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Note: Truthful, Nondeceptive Commercial Advertising after Virginia Pharmacy
• Bates v. State Bar of AZ – court invalidated a state court rule prohibiting attorney advertising, as applied to a
newspaper ad stating “DO YOU NEED A LAWYER? Legal Services at Very Reasonable Fees” and listing fees
for a variety of services.
○ Court rejected the state’s argument that attorney advertising of routine services would adversely affect
professionalism and the quality of legal services, stir up unnecessary litigation, increase the overhead
costs of lawyers, cause increased fees, and create difficulties in enforcing the line bw protected and
unprotected advertising.
○ Court concluded (w/out specifying what standard it used) that none of the proffered justifications rises to
the level of an acceptable reason for the suppression of all advertising by attorneys.
• Linmark Assoc. v. Township of Willingboro – court invalidated an ordinance prohibiting the display of “For
Sale” or “Sold” signs on all but model homes. The ordinance was designed to prevent panic selling in a racially
integrated residential community that had recently experienced “white flight” in response to a sharp increase in
the nonwhite proportion of the population.
○ The court recognized the goal of promoting stable, racially integrated housing is vital, but nonetheless
held that the township had failed to est that the ordinance was necessary to achieve this objective.
○ Constitutional defect = township has sought to restrict the free flow of data bc it fears otherwise
homeowners will make decisions inimical to what the town council views as the homeowners’ self-
interest and the corp. interest of the township.
○ If this dissemination can be restricted, then every locality in the country can suppress any facts that reflect
poorly on the locality.
○ Va. Pharmacy denies gov such sweeping power.
• Carey v. Population Services International – court invalidated a prohibition on the advertising of contraceptives
bc the state’s concerns that ads of contraceptive products would be offensive and embarrassing to those exposed
to them, and that permitting them would legitimate sexual activity of young people are classically not
justifications validating the suppression of expression protected by the 1st amendment.

Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557 (1980)
FACTS: the commission permitted electric utilities to engage in institutional and informational advertising (as well as
conservation ads), but, to further the conservation of energy, prohibited such utilities to engage in promotion advertising
designed to stimulate the use of electricity.
ISSUE: Is this regulation constitutional under the 1st amendment?
HOLDING: The regulation is invalid.
RATIONALE:
• The constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed
expression.
• In prior decisions, the court implicitly developed a 4-part analysis for commercial speech cases:
○ Whether the expression is protected by the 1st amendment (commercial speech must concern lawful
activity and not be misleading to be protected) [YES, it is protected]
○ Whether the asserted gov interest is substantial [YES, it is substantial]
○ Whether the regulation directly advances the gov interest [YES]
○ If the gov interest could be served as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive. [too extensive]
• The gov ban is too extensive for 2 reasons:
○ No exception was made for promotional advertising of specific electric products and services that would
increase the use of electricity, but reduce total energy use by diverting demand from less efficient sources.
○ Commission has not demonstrated that its interest in conservation cannot be protected adequately by
more limited regulation of the format and content of Central Hudson’s advertising.
• In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the
complete suppression of Central Hudson’s advertising.
CONCURRENCE: (Blackmun)
• Test now evolved and applied by the court is not consistent with our prior cases and does not provide adequate
protection for truthful nonmisleading, noncoercive speech.
• Even though commercial speech is involved, the commission’s order strikes at the heart of the 1st amendment, for
it is a covert attempt by the state to manipulate the choices of its citizens, not by persuasion or direct regulation,
but by depriving the public of information needed to make a free choice.
DISSENT: (Rehnquist)
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 •NY’s order is essentially an economic regulation to which virtually complete deference should be accorded by
this court, for in terms of constitutional values, the ban on promotional advertising is virtually indistinguishable
from a decision of the commission to raise the price of electricity in order to conserve energy.
ANALYSIS:

Note: Truthful, Nondeceptive Commercial Advertising after Central Hudson

• Board of Trusteesof SUNY v. Fox – court clarified the final part of the Central Hudson standard here.
○ Involved a university regulation that prohibited commercial enterprises from operating in student
dormitories.
○ Although conceding that Central Hudson had stated that gov restrictions upon commercial speech may be
no more broad or no more expansive than necessary to serve its substantial interests, the court here held
that this did not mean that the regulation must be the least restrictive measure that could effectively
protect the gov’s interest.
○ Our decision requires a “fit” bw the leg’s ends and the means chosen to accomplish those ends.
 Reasonable
 In proportion to the interest served
 Narrowly tailored means to achieve desired objective
• Rubin v. Coors Brewing Co. – court invalidated section 205(3)(2) of the Fed Alcohol Admin Act, which
prohibited beer labels from displaying alcohol content. Gov argued that the labeling ban was necessary to prevent
strength wars among brewers who, w/out regulation, would seek to compete in the marketplace based on the
potency of their beer. The court held the law invalid bc although it restricts beer labeling, it does not restrict
statements of alcohol content in beer advertising. Court concluded that this makes no sense if the gov’s true aim is
to suppress strength wars. The means poorly meet the ends in this case. Rational basis plus review here.
• Greater New Orleans Broadcasting Assoc., Inc. v. US – court unanimously invalidated 18 U.S.C. §1304, which
prohibited radio and TV broadcasters from carrying advertisements about privately operated commercial casino
gambling, as applied to broadcast stations located in states where such gambling is legal. Citing Ruben, the court
explained that bc the fed leg exempted advertising for legal tribal casino gambling and state-operated lotteries and
parimutual gambling, it was so pierced by exemptions and inconsistencies that the gov cannot hope to exonerate it
• Fla. Bar v. Went – court upheld a rule of the Fla. bar prohibiting any lawyer to send a written communication to a
prospective client for the purpose of obtaining professional employment if the communication concerns an action
for personal injury arising out of an accident involving the person to whom the communication is addressed or a
relative of that person, unless the accident occurred more than 30 days prior to the mailing of the communication.
Court explained that the rule advances in a direct and material way 2 substantial interests:
○ Protects the privacy and tranquility of personal injury victims against intrusive, unsolicited contact by
lawyers
○ Protects the flagging reputation of Fla. lawyers by preventing them from engaging in conduct that, the bar
maintains is universally regarded as deplorable bc of its intrusion upon the special vulnerability and
private grief of victims and their families.
○ This is a specific time restriction on commercial speech and also content specific, which is allowed more
in the commercial speech context.
○ Have to remember that our starting point for commercial speech was gov is allowed to restrict it in any
way that it wants…we now are moving away from this.
• Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico – court (5-4) upheld a P.R. stat that legalized
certain forms of casino gambling, but prohibited any advertising of casino gambling aimed at the residents of P.R.
The court explained that PR apparently believed that excessive casino gambling among local residents would
produce serious harmful effects similar to those that had motivated the vast majority of the 50 states to prohibit
casino gambling. Court held this was substantial gov interest and declared the law directly advanced that interest,
w/in the meaning of Central Hudson.
○ In response to the argument that, having chosen to legalize casino gambling for residents of PR, the 1st
amendment prohibited the leg from use restrictions on advertising to accomplish its goal.
○ Court reasoned though, that bc the gov could enact a wholesale ban of the underlying conduct it was
permissible for the gov to take the less intrusive step of allowing the conduct, but reducing the demand
through restrictions on advertising.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)

FACTS:

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 • RI statute prohibiting advertising in any manner whatsoever of the price of any alcoholic beverage offered for sale
in the state, except for price tags or signs displayed within the licensed premises and not visible from the street.
• State argues that the price advertising prohibition should be upheld bc it directly advances the state’s substantial
interest in promoting temperance, and bc it is no more extensive than necessary. By not advertising the prices stay
higher and thus people will purchase less.
ISSUE: Is the stat constitutional under the 1st amendment?
HOLDING: NO
RATIONALE:
• When a state prohibits the dissemination of truthful, nonmisleading commercial messages, there is little reason to
depart from the rigorous review that the 1st amendment generally demands.
• Neither the greater objectivity nor the greater hardiness of truthful nonmisleading commercial speech justifies
reviewing its complete suppression with added deference. Bans against truthful, nonmisleading commercial
speech usually rest solely on the offensive assumption that the public will respond irrationally to the truth, The 1st
amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the
gov perceives to be their own good.
• Without evidentiary support we cannot agree with the assertion that the price advertising ban will significantly
advance the state’s interest. Speculation about such matters does not suffice when the state takes aim at accurate
commercial info for paternalistic ends.
• State cannot satisfy the req that its restriction on speech be no more extensive than necessary. It is perfectly
obvious that alternative forms of reg that would not involve any restriction on speech would be more likely to
achieve the state’s goal of promoting temperance.
○ High prices can be maintained by direct regulation or increased taxation
○ Per capita purchase limits
○ Educations campaigns focused on problems w/ drinking
• The court is now persuaded that Posadas clearly erred in concluding that it was up to the leg to choose
suppression over a less speech-restrictive policy. We conclude that a state leg does not have broad discretion to
suppress truthful, nonmisleading info for paternalistic purposes. The reasoning put forth in that case that bc they
can completely ban the conduct they can ban the commercial speech that goes with it is wrong.
• Constitution presumes that attempts to reg speech are more dangerous than attempts to reg conduct.
• Bc RI has failed to carry its heavy burden of justifying its complete ban on price advertising, we conclude that the
leg is unconstitutional.
CONCURRENCE:
(O’Connor)
• Expressly rejected Posadas
(Thomas)
• In cases such as this, in which the gov’s asserted interest is to keep legal users of a product or service ignorant in
order to manipulate their choices in the marketplace, the balancing test adopted by Central Hudson should not be
applied.
• Such an interest is per se illegitimate and can no more justify regulation of commercial speech than it can justify
the reg of noncommercial speech.
ANALYSIS:

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)

FACTS: In 1999, the AG of Mass. Promulgated comprehensive regs governing the advertising and sale of cigarettes,
smokeless tobacco products, and cigars. These regs prohibited outdoor advertising of such products w/in 1000 feet of a
public playground or elementary or secondary school
PROCEDURE: Petitioners (group of cigarette, smokeless tobacco, and cigar manufacturers and retailers) challenged the
constitutionality of these regs.
ISSUE: Is this reg constitutional?
HOLDING: the regs were preempted by fed law with respect to cigarettes, and that they violated the 1st amendment w/
respect to advertising of both cigars and smokeless tobacco products.
RATIONALE:
• The final step of Central Hudson req a reasonable fit bw the means and ends of the reg scheme. This reg does not
meet that standard.
• AG did not calculate the costs associated with the burden on speech imposed by the regs. In some geographical
areas, these regs would constitute nearly a complete ban on the communication of truthful info about the products
to adult consumers. → demonstrates a lack of tailoring.

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 • State’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that
the sale and use of tobacco products by adults is a legal activity.
• AG has failed to show that these regs are not more extensive than necessary to advance the state’s substantial
interest in preventing underage tobacco use.
CONCURRENCE: (Thomas)
• Such an interest is per se illegitimate and can no more justify regulation of commercial speech than it can justify
the reg of noncommercial speech.
• Speech cannot be suppressed solely to protect the young from ideas or images that a leg body thinks unsuitable
for them.
DISSENT: (Stevens)
• Main question is: whether the reg scheme leaves available sufficient alternative avenues of communication.
• Record did not contain sufficient info to enable us to answer that question. Therefore we should remand for trial
on that issue.
ANALYSIS:
• We can compare this legislation to the zoning legislation of the adult theaters…
• The more specific the legislation is the more likely that restriction on commercial speech will be upheld.

Thompson v. Western States Medical Center, 535 U.S. 357 (2002)

FACTS:
• Compounding is typically used to prepare medications that are not commercially available. It is a traditional
component of the practice of pharmacy.
• The Fed, Drug and Cosmetic Act of 1938 prohibits any person to manufacture or sell an “new drug” w/out prior
FDA approval.
• Until early 1990s the FDA essentially left the regulation of drug compounding to the states. In the early 90s,
however, the FDA became increasingly concerned about the practice.
• In 1997 Congress enacted the Food and Drug Admin Modernization Act which expressly exempted compounded
drugs from the FDA’s standard drug approval requirements if, but only if, the providers of thos drugs do not
advertise them.
ISSUE: Is this restriction constitutional?
HOLDING: The court (5-4) held this restriction unconstitutional.
RATIONALE:
• The gov needs a line to distinguish compounded drugs produced on such a small scale that they could not
realistically undergo costly safety and efficacy testing from drugs produced and sold on a large scale that they
could undergo such testing and therefore must do so.
• Gov argues that the FDAMA’s speech related provision provide just such a line bc they use advertising as the
trigger for req FDA approval. They also argue that it is rationally calculated to avoid creating a loophole that
would allow unregulated drug manufacturing to occur under the guise of pharmacy compounding.
• Gov has failed to demonstrate that the speech restrictions are not more extensive than is necessary to serve its
interest. Several non-speech related means of drawing the line might be possible here:
○ Gov could ban use of commercial scale manufacturing for compounding drug products
○ Prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions
○ Cap the amount of any particular compounded drug
• Even if the gov has argued that the FDAMA;s speech-related restrictions were motivated by a fear that advertising
compounded drugs would put people who do not need such drugs at risk by causing them to convince their
doctors to prescribe the drugs anyway.
• This concern amounts to fear that people will make bad decisions if given truthful info and we have previously
rejected this notion.
DISSENT: (Breyer)
• The exemption from testing req inherently creates risk simply by placing untested drugs in the hands of the
consumer.
• The restrictions try to assure that demand is generated doctor-to-patient-to-pharmacist, not pharmacist-to-patient-
to-doctor.
• There is considerable evidence that consumer oriented ads will create strong consumer-driven demand for a
particular drug, and there is strong evidence that doctors will often respond affirmatively to a patient’s request for
a specific drug that the patient has seen advertised.
• This court has not previously held that commercial advertising restrictions automatically violate the 1st
amendment. Rather, the court has applied a more flexible test.

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 •From a constitutional perspective, commercial speech does not warrant application of the court’s strictest speech-
protective tests.
○ Restrictions do not often repress individual self-expression
○ Rarely interfere w/ the functioning of democratic political process
○ Often reflect a democratically determined gov decision to reg a commercial venture in order to protect the
consumer
• Court in my view gives insufficient weight in this case to the gov’s regulatory rational, and too readily assumes
the existence of practical alternatives.
• It applies the commercial speech doctrine too strictly.
ANALYSIS:
• Since VA Pharmacy, some people are wondering why there is still a need to treat commercial speech differently
than other forms of speech
• Commercial speech is disseminated to so many people, it lends itself to more regulation bc of the impact on other
people.
• Gov has interest in companies not misleading people and the ability to regulate commercial speech should be
within the police power of the state

Note: Truthful, Nondeceptive Commercial Advertising after Liquormart, Lorillard, and Thompson
• It would appear that the court now views suppressing commercial speech by reason of its communicative impact
as suspicious, and will test such regulations by the same standards it uses to test similar regulations of
noncommercial speech.

Note: Additional Regulations of Commercial Speech

• City of Cincinnati v. Discovery Network – In 1989, Cincinnati authorized respondent companies to place 62
freestanding news racks on public property for the purpose of distributing free magazines that consisted primarily
of advertisements for respondents’ services. In 1990, motivated by its interest in the safety and attractive
appearance of its streets and sidewalks, Cincinnati revoked respondents’ permits on the ground that the magazines
were commercial handbills whose distribution on public property could be prohibited.
○ The court invalidated the restriction.
○ The critical issue is whether the city has met its burden under Central Hudson and Fox to establish a
reasonable fit bw its legitimate interests and its ban on news racks dispensing commercial handbills.
○ The city’s argument of safety and cleanliness was insufficient for the discrimination against respondents’
use of news racks that are no more harmful than the 1500 to 2000 noncommercial news racks that the city
permits.
○ In this case, the distinction bw commercial and noncommercial speech bears no relationship whatsoever
to the particular interest that the city has asserted. It is therefore an impermissible means of responding to
the city’s admittedly legitimate interests.
○ In the absence of some basis for distinguishing bw newspapers and commercial handbills that is relevant
to an interest asserted by the city, we are unwilling to recognize Cincinnati’s bare assertion that the low
value of commercial speech is a sufficient justification for its selective and categorical ban on news racks
dispensing commercial handbills.
○ Dissent (Rehnquist): one would have thought that the city could have decided to place the burden of its
regulatory scheme on less protected speech w/out running afoul of the 1st amendment.
• Metromedia, Inc. v. San Diego – involved the constitutionality of a San Diego ordinance prohibiting virtually all
outdoor advertising display signs. The ordinance was designed to eliminate hazards to pedestrians and motorists
and to preserve and improve the appearance of the city.
○ Although the court invalidated the ordinance as applied to noncommercial advertising, it sustained the
ordinance as applied to commercial messages.
○ Court explained that the critical question concerned the 3rd of the Central Hudson criteria: Does the
ordinance directly advance gov interests in traffic safety and in the appearance of the city?
○ Although noting there was no evidence in the record to show a connection bw billboards and traffic
safety, the court was reluctant to disagree with the accumulated, common-sense judgments of local
lawmakers that they are real and substantial hazards to traffic safety. Nothing here to suggest that these
judgments are unreasonable.
• The court has repeatedly stated that commercial advertisements offering to enter into unlawful transactions are not
protected by the 1st amendment.

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• Should it be permissible to regulate spam? It is not permissible to completely ban it, but it can be regulated
narrowly.
• Bates – court announced in dictum that the justification for the application of overbreadth analysis applies
weakly, if at all, in the ordinary commercial context, and that the court therefore would not apply the doctrine to
commercial advertising.
• Gertz – there is no constitutional value in false statements of fact.
• Friedman v. Rogers – upholding a state stat prohibiting the practice of optometry under any trade name as a
permissible restriction of misleading advertising.
• Peel v. Attorney Registration & Disciplinary Commission of Ill. – rejecting a state’s claim that it is inherently
misleading for lawyers to hold themselves out as specialists in particular fields.
• Ibanez v. Fla. Dept. of Business and Professional Regulation – rejecting a state’s claim that it is inherently
misleading for an attorney truthfully to advertise that she is also a certified public accountant.
• Zauderer v. Office of Disciplinary Counsel – an attorney advertised in a certain type of case, if there is no
recovery, no legal fees are owed by our clients. The court upheld a disciplinary rule requiring the attorney to
disclose in the advertisement that clients would have to pay costs even if the lawsuits were unsuccessful. Court
explained that bc the extension of 1st amendment protection to commercial speech is justified principally by the
value to consumers of the info such speech provides the state may constitutionally req advertisers to disclose
specific info in their ads if that requirement is reasonable related the state’s interest in preventing deception of
consumers.
• Glickman v. Wileman Brothers & Elliot, Inc.i – the court held that marketing order promulgated by the Secretary
of Agriculture, which assessed respondent producers for the cost of generic advertising of CA tree fruits, did not
violate respondents’ 1st amendment rights, even though respondents objected to the requirement that they pay for
such advertising.
○ Court reasoned that these reg are different than those that implicate the 1st amendment bc it doesn’t
compel the producers to endorse or to finance any political or ideological views.
○ In such circumstances, the court concluded that the wisdom of the overall program is simply a question of
economic policy for Congress and the Executive to resolve.
○ Dissent (Souter): the court was wrong in suggesting that the 1st amendment places no limits on gov’s
power to force one individual to pay for another’s speech, except when the speech in question is
ideological or political in character. Forced payment for commercial speech should be subject to the same
level of judicial scrutiny as any other restriction on commercial speech, whether or not it is ideological or
political in character.
• US v. United Foods – invalidating a fed statute req producers of fresh mushrooms to fund a common advertising
program promoting mushroom sales on the ground that, unlike the situation in Glickman, where the compelled
assessments were ancillary to a comprehensive reg scheme, req in United Foods were not part of such a
comprehensive scheme.

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Unit 21: Establishment Clause

Lemon v. Kurtzman – court identifies 3 tests for det whether a statute violates the establishment clause
• Stat must have a secular legislative purpose
• Principle or primary effect must be one that neither advances nor inhibits religion
• Statute must not foster an excessive government entanglement with religion

The Anticoercion Principle

Lee v. Weisman
505 U.S. 577 (1992)
Including Religious or religion related topics in official public school functions
violates the establishment clause of the First Amendment
Rule: Including religious content in public school functions is coercive in nature and thus violates the First
Amendment
Facts:
• The principal (Lee) of a providence middle school invited a rabbi to give the traditional prayers at the school’s
graduation ceremony.
• The rabbi was informed that his prayers must be nonsectarian.
• During both the invocation and benediction delivered by the rabbi, he referred to “God” and the “Lord” while
asking for the blessings of the graduates, parents, and school officials among others.
• Deborah Weisman, one of the students present for the ceremony, raised an Establishment Clause challenge to the
practice of prayer at the public school ceremony.
Issue: Does the inclusion of general religious content in an official public school function violate the Establishment
Clause of the First Amendment? [YES]
Rationale:
• The key facts in the present case are as follows: State officials direct the performance of a religious exercise at
graduation exercises of a secondary school.
• Even for students who may object to such content the attendance at the event and their participation in the
religious activity is effectively obligatory, despite the assertions of school officials that attendance is voluntary.
• The Constitution, at a minimum, guarantees that government may not coerce support or participation in religion
or its exercise.
• The degree of school involvement here makes it clear that the graduation prayers bore the approval of the State.
• The concerns over subtle coercive pressure are greater in our elementary and secondary’s schools because prayer
exercises in these environments carry a particular risk of indirect coercion.
• It is undeniable that the school district’s supervision and control of graduation ceremonies places public pressure,
in addition to the peer pressure, on students to stand, or at least maintain a respectful silence during such prayers.
• While most people would not view their standing or remaining silent as being equivalent to approval or
participation in prayer, for the dissenter of a young age there may be a reasonable perception that she is being
forced to pray in a manner her conscience does not allow.
• There can be no doubt that for many, if not most, of the students, the act of standing or remaining silent was an
expression of participation in the rabbi’s words.
• This Court does not address whether the same view will apply when the affected citizens are adults.
• Psychological research supports the position that adolescents are keenly susceptible to peer pressure, especially in
social situations. This adds to the subtle coercion by the State and the sum of the two means that students do not
have any real choice whether they attend graduation ceremonies.
• We do not hold that every state action involving religion is invalid because one or a few find it offensive;
○ Offensive alone does not in every case make a violation.
• What we do hold is that the State shall not compel attendance and participation, no matter how indirect or subtle,
in a religious exercise that students do not have any real alternative to avoid.

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Concurrence: (Blackmun)
• The Court today holds that the graduation prayer is unconstitutional because the State “in effect required
participation in a religious exercise.”
• And although it is not necessary to show coercion for a valid Establishment Clause claim, such a showing is
sufficient as an obvious sign government is promoting or endorsing religion.
• As in this case, even subtle pressure diminishes the right of the individual to choose her own beliefs.
• When the government places its imprimatur on any particular religion, it sends a message of intolerance and
exclusion to all who do not share the same beliefs.
Concurrence: (Souter)
• Lee (P) takes the position that the Establishment Clause does not bar the State from sponsoring affirmations of
religious faith that do not coerce support for nor participation in religion.
• While I appreciate some of their arguments in support of this viewpoint, this Court may not adopt that
interpretation without abandoning precedent, something the text of the Clause does not permit in my view.
• Our precedents do not require a showing of coercion to make a successful Establishment Clause claim.
• The First Amendment bars not just laws “respecting an establishment of religion,” but also those “prohibiting the
free exerciser thereof.”
• But a law that coerces nonadherents to “support or participate in any religion or its exercise,” would by definition
violate their right to free exercise.
Dissent: (Scalia, J.)
• With today’s holding the Court has laid waste to a tradition as old as public-school graduation ceremonies
themselves, and a component of an even longer tradition of nonsectarian prayer at public celebrations generally.
• From the advent of this nation, prayer at governmental ceremonies and proclamations has been prominent.
• George Washington included a prayer in his first inaugural address.
• The Congress opens each session with a prayer.
• And this Court’s own sessions open with a prayer.
• The Court would presumably separate graduation invocations and benedictions from other instances of public
prayer on the ground that they involve “psychological coercion.”
• But the Court backs this up with sparse evidence that has no bearing on the present situation and it cannot
disguise the fact that it goes beyond the area of the judiciary’s knowledge.
• This coercion argument is incoherent.
• The assertion that a student who sits in silence has somehow joined or been forced to endorse religion is
ludicrous.
• I believe it is a permissible inference that one who is standing is doing so simply out of respect for others.
• The more prominent error the Court makes is ignoring the history behind the proscription of coercion.
• The framers intended to avoid coercion in the form of forced tithes in support of an official religion, and
mandatory attendance of religious service, back by threat of penalty.
• Voluntary prayer at a graduation ceremony – a one-time event – can hardly be thought to raise the same concerns.
Analysis
• We all attend countless ceremonies in our lives – graduations, weddings, and funerals – where prayers are said as
a matter of course.
• Are we endorsing the religion of the speaker when we stand and bow along with the others in attendance?
Probably not.
• Justice Scalia has a point when he states that a mere showing of respect is all such actions entail.
• Why then does the Court hold that such prayers in the public schools violate the Constitution?
• Young people are clearly more impressionable and susceptible to peer pressure than adults.
• They feel the need to conform to what the larger group is doing, wearing, saying, etc.
• Therein lies the thrust of the majority’s rationale.
• First, children are effectively forced to attend a graduation ceremony.
• Second, they are forced to listen to prayers that may be wholly at odds with their personal beliefs.

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 • Do they rise and bow as the bulk of their peers will do, or do they remain seated as everyone around them stands,
all the while noticing the one or two lone individuals who buck the trend?
• It is this pressure to conform, this coercion as the Court calls it, that is key.
• Just as freedom of expression encompasses the right of non-expression, so too does the freedom of religion
include the right to hold no religious, or differing religious, views.

Note: The Noncoercion Principle

• Walz v. Taz Commission [397 U.S. 664 (1970)]
○ Held constitutional the practice of granting churches exemptions from the property tax.
○ Chief Justice Burger said that the purpose of a property tax exemption is neither the advancement nor the
inhibition of religion.
 The State has not singled out one particular church or even churches as such, rather it has granted
exemption to all houses of worship within a broad class of property owned by nonprofit, quasi-
public corporations [which the state considers] beneficial and stabilizing influences in community
life.
○ The denial of tax exemption would “expand the involvement of government with religion.
○ Aren’t we really favoring the well-established traditional religions that would meet the requirement?
• Engel v. Vitale [370 U.S. 421 (1962)]
○ A public school that allowed those who objected to state-written prayers recited at the beginning of
classes to remain silent or be excused from attendance.
○ The Court said, “When the power, prestige, and financial support of government is placed behind a
particular religious belief, the indirect coercive pressure upon religious minorities to conform to the
prevailing officially approved religion is plain.”
 Justice Stewart would have remanded a similar case for development of the facts involving
coercion.
• If the [religious] exercises were held during the school day, and no equally desirable
alternative were provided by the school authorities, the likelihood that children might be
under at least some psychological compulsion to participate would be great.
• Carter, Parents, Religion, and Schools: Reflections of Pierce, 70 Years Later (1997)
○ If the beginning of the school day with a prayer is unconstitutional because it prefers religion over
nonreligion, then why is not a curriculum devoid of any religious observance unconstitutional because it
prefers non religion over religion.
 If none of the material is religious, children will receive the message that the state deems religion
unimportant.
 The ban on prayer must be intended to help individuals to make up their own minds about what
religions to follow.
• Sante Fe Independent School District v. Doe [530 U.S. 290 (2000)]
○ Held unconstitutional a district’s policy that authorized students to vote, first, whether to allow
invocations at high school football games, and then choose a person to deliver them.
○ (Relying on Board of Regents v. Southworth)
 Concluded that the speech the selected student gave would not be private speech because of the
policy authorizing an election in which a majority would determine to have invocations.
 An invocation at a high school football game violated the principle established in Lee.
 The establishment clause was designed “to remove debate over this kind of issue from
governmental supervision or control.”
 Players & cheerleaders are obligated to attend the game, and therefore the delivery of a religious
invocation would therefore coerce them in the way condemned in Lee.

The Nonendorsement Principle and De Facto Establishments

Lynch v. Donnelly
465 U.S. 668, 104 S.Ct. 1355 (1984)

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 The establishment clause will not permit government action that has as its purpose or effect approval or disapproval of a
particular religion
Instant Facts
• The city of Pawtucket, Rhode Island, set up displays during the Christmas holiday season that included a crèche
with traditional figures from Christianity.
• A citizen challenged the use of city resources to display the crèche.
Rule: Governmental action has either the purpose or the effect of endorsing or disapproving a particular religion is in
violation of the establishment clause.
Procedural Basis: Certification to the U.S. Supreme Court after both the District Court and Circuit Court sustained an
Establishment Clause challenge to the government action.
Facts
• Each year the city of Pawtucket, Rhode Island, and the City’s merchants’ association, in a cooperative effort, erect
a Christmas display during the holidays.
• The display is set up in a park owned by a nonprofit organization and is similar to the hundreds of displays to be
found in towns throughout the nation during the season.
• The Pawtucket display contains many characters and decorations traditionally associated with Christmas, like
Santa Claus’ reindeer and sleigh, candy-striped poles, a Christmas tree, carolers, and the crèche at issue here.
• The crèche has been on display for 40 or more years and includes traditional figures such as the infant Jesus,
Mary and Joseph, angles, and shepherds and kings, ranging in height from 5 inches to 5 feet.
• The present crèche cost the City $1365 and is currently valued at $200.
• The erection and dismantling cost about $20 per annum and there are nominal expenses for lighting the crèche.
• Both the District Court and Circuit Court held that the display of the crèche violates the Establishment Clause.
Decision and Rationale
• This nation’s history is replete with official references to the value and invocation of Divine guidance in the
deliberations and pronouncements of the Founding Fathers and contemporary leaders.
• References to God are present in the celebration of Thanksgiving, our pledge of allegiance, and the motto stamped
on our currency.
• Equally prominent in our history is the evidence of accommodation of all faiths and all forms of religious
expression.
• This history helps explain why the Court has refused to take an absolutist approach to the Establishment Clause.
• Instead we have scrutinized challenged legislation or official conduct to determine if a religious faith is really
being established.
• There is no fixed, per se rule to be applied.
• Instead we use a line drawing approach in which we ask if the law or conduct has a secular purpose, whether its
primary purpose is to advance or inhibit religion, and also what its effect is.
• But we have emphasized our unwillingness to be confirmed by any one rest or criterion in this sensitive area.
• In the instant case the focus must be on the crèche in the context of the Christmas season.
• In doing so we have concluded that the evidence does not support the position that the crèche was included in
order to advocate a particular religious message.
• Indeed, the crèche simply depicts the historical origins of the traditional holiday season.
• This is a legitimate secular purpose.
• In contrast to the District Court’s holding that the primary effect of the crèche is to confer a benefit on religion in
general and upon the Christian faith in particular, we feel that the inclusion of the crèche does not provide any
greater aid than that provided by endorsements previously held not violatative of the Establishment Clause.
• These precedents plainly contemplate that on occasion some advancement of religion will result from government
action.
• Here, whatever benefit there is to any particular religion is purely remote and incidental.
• To decide otherwise would be a stilted over-reaction contrary to our history and our holdings.
• Reversed.
Concurrence: O’Connor
• I write separately to suggest a clarification of our Establishment Clause. Doctrine.
• The proper inquiry under this doctrine is what was the government’s purpose in including the crèche and what
was the actual effect of including it.
• The purpose prong requires us to ask whether the government intends to convey a message of endorsement or
disapproval of religion.
• All that was intended was to celebrate the public holiday through its traditional symbols.
• This is a legitimate purpose.
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 • The effect prong requires that a government practice not have the effect of communication government
endorsement of disapproval of religion.
• It does not matter if the effect is intentional or not.
• The display in question celebrates a public holiday, and no one contends that declaration of that holiday is
understood to be an endorsement of religion.
• For the foregoing reasons, I concur with the Court’s opinion
Dissent (Brennan)
• The City’s inclusion of the crèche in its Christmas display simply does not reflect a “clearly secular purpose.”
• The decision to include it demonstrates that a narrower sectarian purpose lay behind the decision to include a
nativity scene.
• Including it has the primary purpose to put on the government’s stamp of approval.
• When officials participate in or appear to endorse the distinctively religious elements of this otherwise secular
event, they encroach upon the 1st Amendmentfreedoms.
• Pawtucket’s action should be recognized for what it is: a coercive, though perhaps small, step toward establishing
the sectarian preferences of the majority at the expense of the minority.
Analysis:
• The Court sees fit to justify state sponsored religion by referring to the nations traditional Christian roots.
• It asserts that these symbols of Christianity have been present so long as to no longer have any particular religious
connotations in the minds of the country’s citizenry.
• Do we consider those who have recenlt arrived or who are not familiar with these traditions.
○ They may feel the government endorses Christianity and is not supportive of their views.

Note: The Nonendorsement Principle

• County of Allegheny v. American Civil Liberties Union [492 U.S. 573 (1989)]
○ A majority of the Court adopted Justice O’Connor’s “no endorsement” analysis as a general guide in
establishment clauses cases.
○ Shifting minorities on the Court held unconstitutional a freestanding display of a nativity scene on the
main staircase of a county courthouse, but upheld the display of a Jewish menorah placed next to the
city’s Christmas tree and a statement declaring the city’s “salute to liberty.”
○ One majority concluded that the “setting” of the nativity scene, which was the “single endorsement” in
the display, “celebrated Christmas in a way that has the effect of endorsing a patently Christian Message.”
○ Blackmun (writing for himself) concluded that the display of the menorah was permissible.
 “The menorah’s message is not exclusively religious, and it stood next to a Christmas tree and a
sign saluting liberty, with the effect of “creating an ‘overall holiday setting’ that represents both
Christmas and Chanukah—two holidays, not one.”
 The overall message “sends a message of pluralism and freedom to choose one’s own’s beliefs.”
○ Justice Kennedy (joined by Rehnquist, White, and Scalia)
 Rejected the majority’s adoption of the “no endorsement” test, saying that it “reflects an
unjustified hostility toward religion.”
 The Establishment clause “permits government some latitude in recognizing and accommodating
the central role religion plays in society.”

• Capitol Square Review and Advisory Board v. Pinette [ 515 U.S. 753 (1995)]
○ The Court divided over whether, and under what circumstances, an unattended display of privately owned
cross on public property could constitute an unconstitutional endorsement of religion.
 The Ku Klux Klan applied for a permit to display a cross in Capitol Square, the plaza surrounding
Ohio’s Statehouse.
 The square is a public forum that has been used for speeches and demonstrations.
 Before the Klan’s application, unattended displays owned by private parties had been placed on
the square three times (A United Way thermometer, some art festival booths, and a menorah)
 Permitted them to put the cross there
○ Scalia (writing for the plurality)

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  The Constitution prohibited government endorsement of religion, but not “the government’s
neutral treatment of private religious expression.”
 “Giving sectarian religious speech preferential access to a forum close to the seat of government
(or anywhere else for that matter) would violate the Establishment Clause.”
○ O’Connor, Souter, and Breyer (concurring)
 Stressed the importance of having “a sign disclaiming government sponsorship or endorsement”
on the cross.” This removes doubt about the State’s approval of religion.
 To determine whether the State is actually conveying a message of endorsement, courts must
conduct the inquiry “from the perspective of a hypothetical observer who is presumed to possess
a certain level of information that all citizens might not share.”
○ Stevens (dissenting)
 If a reasonable person could perceive a government endorsement of a religion from a private
display, then the State may not allow its property to be used as a forum for that display.
 People will naturally assume that any sign and message on the government property is therefore
endorsed by the government.
• McGowan v. Maryland [366 U.S. 420 (1961)]
○ The Court rejected an establishment clause that challenges the laws requiring that most large-scale
commercial enterprises remain closed on Sundays.
○ Historically, these laws were implemented to promote church attendance.
 “despite the strongly religious origin of these laws, nonreligious arguments for Sunday closing
began to be heard more distinctly.”
 The Constitution does not ban federal or state regulation of conduct whose reason or effect
merely happens to coincide with the tenets of some or all religious.”
• Walz v. Taz Commission [397 U.S. 664 (1970)]
○ Held constitutional the practice of granting churches exemptions from the property tax.
○ Brennan
 “The existence [of religion] from the beginning of the Nation’s life of a practice is a fact of
considerable import in the interpretation of abstract constitutional language.
 The two “secular purposes” for the tax emption:
• Churches (like other exempt groups) “contribute to the well-being of the community in a
variety of nonreligious ways.”
• They “uniquely contribute to the pluralism of American society.”
• Marsh v. Chambers [463 U.S. 783 (1983)]
○ Relied on a “unique history” to uphold the constitutionality of opening legislative sessions with prayers
led by a state-employed chaplain.
 Examined the first Congress’s hiring of a chaplain in 1789, only 3 days before the final
agreement on the language of the 1st amendment.
 Historical evidence sheds light not only on what the draftsmen intended the Establishment Clause
to mean, but also on how they thought the Clause applied to the practice authorized by the First
Congress…their actions revealed their intent.
○ Brennan
 Criticized the Court’s reliance on the actions of the 1st Congress.
 Notes that James Madison, who voted for the bill in the 1st Congress, later said that the practice
was unconstitutional.
• Elk Grove Unified District v. Newdow [124 S. Ct. 2301 (2004)]
○ The Court refused, on standing grounds to consider the merits of a challenge to the constitutionality of the
inclusion of the words ‘under God” in the Pledge of Allegiance.
○ Rehnquist, O’Connor, & Thomas wrote opinions disclosing how they believed the claim should be
rejected on its merits, not on standing.
○ Rehnquist
 Relied on history to show that “our national culture allows public recognition of our Nation’s
religious history and character.”
 The Pledge is merely a declaration of belief in allegiance and loyalty to the United States flag and
the Republic.
 Does not stress any particular God, faith, or church.
○ Thomas
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  It is difficult to see how the phrase does not entail an affirmation that God exists.
 He would override Lee v. Weisman and eliminate its test of “coercion” and replace it with a test
of “legal compulsion”
○ O’Connor
 Relies on the endorsement test, and characterized the phrase in the Pledge as an example of
permissible “ceremonial deism,” although she called it a “close question.
 Ceremonial Deism, which involved “solemnizing an event and recognizing a shared religious
history,” included expressions that had “legitimate nonreligious purposes.”
 Any coercion that persuades an onlooker to participate in an act of ceremonial deism is
inconsequential, as an Establishment Clause matter; matter because such acts are simply not
religious in character.

Note: From Aguilar to Mitchell

 Aguilar v. Felton [473 U.S. 402 (1985)]
○ Invalidated New York’s system for delivering federal financial assistance to educationally deprived
children in low-income areas under Title I of Elementary and Secondary Schools Act of 1965
 The state provided Title I services, including remedial reading and arithmetic classes and
guidance services to parochial school students in their schools.
 Public school employees who volunteered to teach in the parochial schools provided the services.
 The teachers were “directed to avoid involvement with religious activities and to bar religious
materials.
 The administrators were “required to clear the classrooms used by the public school personnel of
all religious symbols.”
○ The court held that the program was unconstitutional because “Publically funded instructors teach classes
composed exclusively of private school students in religiously affiliated private schools.”
○ The efforts of the state to remove the aspects of the teachers state entanglement was found to be what
entangled the state into the religious matter.
• Witters v. Washington Department of Services for the Blind [474 U.S. 481 (1981)]
○ The Court held that the effects branch of the Lemon test was not violated by a statute authorizing payment
to a visually handicapped person for vocational rehabilitation services where the recipient planned to use
the fund to pay his tuition at a Christian college to prepare himself for a career as a minister
○ Central to the analysis was the fact that “the payments were made directly to the student, who transmits it
to the educational institution of his or her choice.”
○ Any aid provided under the program that ultimately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid recipients.
○ Moves one step away from Aguilar bc when it is a choice of the individual to take their state grant and put
it towards the religious school it is okay.

• Zobrest v. Catalina Foothills School District [509 U.S. 1 (1993)]

○ The Court held that the establishment clause would not be violated if a school district paid the salary of a
sign-language interpreter for a deaf student “attending a Roman Catholic high school.”
○ Relying on Muller and Witters, the court held that “government programs that neutrally provide benefits
to a broad class of citizens defined without reference to religion are not readily subject to an
Establishment Clause challenge just because sectarian institutions may also receive an attenuated
financial benefit.
• Rosenberger v. Rectors and Visitors of the University of Virginia [515 U.S. 819 (1995)]
○ The Court held that the university would not violate the establishment clause by providing payments from
a mandatory student activity fee account to printers hired by a student group to print their religious
magazine.
○ “Any benefit to religion is incidental to the government’s provision of secular services for secular
purposes on a religious-neutral basis. Printing is a routine, secular, and recurring attribute of student life.
• Agostini v. Felton [521 U.S. 203 (1997)]
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 ○ OVERRULED AGUILAR
○ The Court would not presume “that the placement of public employees on parochial school grounds
inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic
union between government and religion.”
○ Nor would it assume “that the presence of a public employee on private property creates an impermissible
‘symbolic link’ between government and religion.
○ In addition, the Court said, not “all government aid that directly aids the educational functions of religious
schools is invalid [citing Witters]”
○ Sent gov employee teachers to teach in parochial schools and said that it was the opposite of Aguilar
○ Says that if we follow Aguilar the constitutionality of gov programs would depend on the location of
these programs which would be splitting hairs and unreasonable.
○ Dissent – dissenters are the ones that are burdened in this instance…if you object to the program bc it is
located in a religious building, then you are SOL.
• Mitchell v. Helms [530 U.S. 793 (2000)]
○ Upheld a statute that provided funds for state education agencies to lend computers, software and library
books to nonpublic schools.
○ Thomas (writing for the plurality), proposed that statutes prohibiting aid to “religious, irreligious, and a
religious” institutions should generally be constitutional because “no one would conclude that any
indoctrination that any particular recipient conducts has been done at the behest of the government.
○ If the government offering the assistance to recipients who provide a broad range of indoctrination, the
government itself is not thought responsible for any particular indoctrination.
○ Prohibition on subsidies should be forgotten bc there is no difference bw direct and indirect aid for
religious institutions.

Zelman v. Simmons-Harris 536 U.S. 639 (2002)

A case decided by the United States Supreme Court which tested the allowance of school vouchers in relation to the
establishment clause of the First Amendment.
Facts:
• In one of its most important establishment clause cases in a decade, a divided Court upheld an Ohio school
voucher plan and removed any constitutional barriers to similar voucher plans in the future.
• The public schools in many of the poorer parts of Cleveland were deemed failures and the legislature enacted the
Pilot Project Scholarship Program in an effort to address the problem.
• The program provided tuition vouchers for up to $2,250 a year to some parents of students in the Cleveland City
School District to attend participating public or private schools in the city and neighboring suburbs; it also
allocated tutorial aid for students who remained in public school.
• The vouchers were distributed to parents according to financial need, and the parents chose where to enroll their
children.
• Because the number of students applying to the program greatly exceeded the number of vouchers available,
recipients were chosen by lottery from among the eligible families.
• In the 1999–2000 school year, 82% of the participating private schools had a religious affiliation; none of the
adjacent suburban public schools joined the program; and 96% of the students receiving vouchers were enrolled
in religiously affiliated schools.
Holding: The Court ruled that the Ohio program did not violate the Establishment Clause of the First Amendment
because it passed a five-part test developed by the Court.
Rationale: The decision was 5-4, with moderate justices Anthony Kennedy and Sandra Day O'Connor and conservative
justices William Rehnquist, Antonin Scalia, and Clarence Thomas in the majority.
• Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must
meet all of the following criteria:
○ The program must have a valid secular purpose,
○ Aid must go to parents and not to the schools,
○ A broad class of beneficiaries must be covered,
○ The program must be neutral with respect to religion, and
○ There must be adequate nonreligious options.
• The court ruled that the Ohio program met the five-part test in that.

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 ○ The valid secular purpose of the program was "providing educational assistance to poor children in a
demonstrably failing public school system"; 2) the vouchers were given to the parents,
○ The "broad class" was all students enrolled in currently failing programs, 4) parents who received
vouchers were not required to enroll in a religious-based school, and
○ 5) There were other public schools in adjoining districts, as well as non-sectarian private schools in the
Cleveland area, available that would accept vouchers.
• Chief Justice Rehnquist, writing for the majority, stated that "The incidental advancement of a religious mission,
or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not
the government, whose role ends with the disbursement of benefits."
○ They found that, in theory, there is no need for parents to use religious schools, and so long as the law
does not especially encourage the use of vouchers for religious schools, the fact that most parents do
choose parochial schools is irrelevant.
○ Indeed, the fact that in this case, the funding was given to the parents to disburse as they chose, whereas
in Lemon v. Kurtzman the funding at question was given directly to the schools, this was a key part of the
Private Choice test. The majority held, therefore, that the intent of the law was the important thing.

Free Exercise –
• Have to look at whether a neutral law effects the free exercise of religion…
• There is a separation bw beliefs and conduct
• You have a right to believe whatever you want and to participate in conduct that supports those beliefs
○ Right to believe is absolute
○ The right to conduct is not

Note: Purpose and Effect in Aid to Nonpublic Education – Benevolent Neutrality

• Locke v. Davey [540 U.S. 712]
○ Upheld against a free exercise challenge against a Washington State program that awarded merit
scholarships to college students, but excluded students pursuing degrees in “devotional theology.”
○ The Court cannot conclude that “the denial of funding for vocational religious instruction alone is
inherently constitutionally suspect.”
○ Scalia dissenting
 Withholding a benefit for some individuals solely on the basis of religion is a violation of the
Free Exercise Clause no less than if it had imposed a special tax.
• Bowen v. Kendrick [487 U.S. 589 (1988)]
○ The Court considered the constitutionality of the Adolescent Family Life Act, which authorizes federal
grants to public and private organizations, including organizations with institutional ties to religious
denominations, for counseling services and research in the area of premarital adolescent sexual relations
and pregnancy.
○ Applying the Lemon standard, the Court held that the act on its face did not violate the establishment
clause.
 It is clear from te face of the statute that the act was motivated primarily, if not entirely, by a
legitimate secular purpose – the elimination or reduction of social and economic problems caused
by teenage sexuality, pregnancy, and parenthood.

Unit 22: The Free Exercise Clause: Required Accomodations

Braunfeld v. Brown366 U.S. 599 (1961)

Holding: The Court held that a Pennsylvania law forbidding the sale of various retail products on Sunday was not an
unconstitutional interference with religion as described in the First Amendment to the United States Constitution.
Facts:
• Abraham Braunfeld and the other appellants were Pennsylvania merchants.
• As Orthodox Jews, the appellants were unable to do business on Friday evening or Saturday.
• They objected to a Pennsylvania law forbidding them from doing business on Sunday, arguing that the law
unfairly discriminated against them by effectively forcing them to remain closed for one more day than competing
Christian merchants.
• State argues that Sunday is just a day of rest, nothing more. To prevent commercial noise on one day.
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Chief Justice Warren wrote the plurality opinion, joined by Justices Black, Clark, and Whittaker.
• Chief Justice Warren first rejected appellants' Establishment Clause and Equal Protection Clause arguments,
ruling that the Court's earlier opinion in Two Guys from Harrison Allentown, Inc., v. McGinley, 366 U.S. 582
(1961) had concluded that the statute at issue did not violate either of those provisions.
• Chief Justice Warren then addressed appellants' remaining argument - that by requiring Orthodox Jewish
merchants to remain closed for one day in addition to their religiously required day of rest, the statute unfairly
burdened existing Orthodox Jews and made it more difficult for the religion to recruit more members, thereby
violating the Free Exercise Clause of the First Amendment to the United States Constitution. Braunfeld, 366 U.S.
at 601-02. Chief Justice Warren reasoned as follows:
○ While originally enacted for religious purposes, the so-called "Sunday Closing Laws" had a legitimate
state purpose in providing for the general welfare by establishing a day of rest. Braunfeld, 366 U.S. at
602-03, citing McGowan, 366 U.S. at 437-40.
○ Although the Court had previously held that the Free Exercise Clause prevented the States from passing
laws that forbade the exercise of religion or required citizens to "say or believe anything in conflict with
their religious tenets," states could in some cases regulate conduct, even if that regulation burdened
citizens of a particular religion. Braunfeld, 366 U.S. at 603-05.
• In order to balance the interests at issue, the Court held that:
○ 1. Where the "purpose or effect of a law is to impede the observance of one or all religions or is to
discriminate invidiously between religions, that law is constitutionally invalid even though the burden
may be characterized as being only indirect." Braunfeld, 366 U.S. at 607.
○ 2. However, where "the State regulates conduct by enacting a general law within its power, the purpose
and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden
on religious observance unless the State may accomplish its purpose by means which do not impose such
a burden." Braunfeld, 366 U.S. at 607.
• In the specific case before the Court, the plurality opinion held that the law in question had only an indirect effect,
and that the Court could not conclude that there was any less burdensome means of achieving the State's goals. In
particular, although appellants argued that a law exempting citizens who were required to rest on other days from
the Sunday rest day would be a wiser choice, the Court concluded that there were valid reasons for which a state
might choose a single day of rest. Braunfeld, 366 U.S. at 607-09.
Concurrence/dissent (Brennan)
• Justice Brennan concurred in the plurality opinion to the extent that it held that the Pennsylvania statute did not
violate the Establishment Clause or the Equal Protection Clause, but dissented from the remainder of the opinion,
arguing that the statute should be held unconstitutional under the Free Exercise Clause.
• It is a difficult and unfair position to put people in where you force them to choose between economic concerns or
religion.

NOTES:
• Special speech here (religion)
• Can administrative concerns trump religious issues contained in the first amendment?
• This is a secular law meaning it is a facially neutral law
• Equal protection argument – effects similarly situated people differently.
• The court cannot impede your religion but it does not have an obligation to help you either. As long as it is a
facially neutral law and it does not target any one religion, then it is okay.

Sherbert v. Verner374 U.S. 398 (1963)

Holding: The Free Exercise Clause of the First Amendment required that government demonstrate a compelling
government interest before denying unemployment compensation to someone who was fired because her job conflicted
with her religion.
Facts:
• Adell Sherbert, a member of the Seventh-day Adventist Church, worked as a textile-mill operator.
• Two years after her conversion to that faith, her employer switched from a five-day to a six-day workweek,
including Saturdays.
• Since according to her belief, God in Exodus 20:8-11 forbade working on Saturdays (seventh day is the Sabbath),
she refused to work that day and was fired. Sherbert could not find any other work and applied for unemployment
compensation.

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 • Her claim was denied and the Employment Security Commission's decision was affirmed by a state trial court and
the South Carolina Supreme Court.
• Issue – is she entitled to unemployment benefits when you are fired for not working on your sabath?
Brennan's majority opinion
• Brennan, writing for the majority, stated that denial of Sherbert's unemployment claim represented a substantial
burden upon her.
• Even if that burden took the form of denial of a privilege to unemployment compensation, instead of violating
compensation she was entitled to by right, it still effectively impeded her free exercise of her religion.
• As Brennan wrote, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal
principle of her religious faith effectively penalizes the free exercise of her constitutional liberties."
• Brennan dismissed the claim that his decision violated the Establishment Clause, by establishing the Seventh-day
Adventist religion.
• Finally, the majority opinion did not consider the Equal Protection argument, since it had already ruled in
Sherbert's favor on First Amendment grounds.
Douglas and Stewart's concurring opinions
• Douglas wrote separately to explain that the issue was not the degree of injury to Sherbert, but South Carolina's
denial of unemployment on the basis of her beliefs.
• The issue was not individual action, but government action, and under what basis government could deny
someone benefits.
• Stewart concurred in the result, but not in the majority's reasoning. He did not dismiss the Establishment Clause
issue as the majority did.
• Instead, he identified as a "double-barreled dilemma" between Free Exercise Clause protection of Sherbert's
actions and — as it had been interpreted, wrongly in his view, by the court — Establishment Clause prohibition of
such protection.
• He also disagreed with the majority's claim that a cited precedent, Braunfeld v. Brown, was distinguishable from
Sherbert.
Harlan's dissenting opinion
• Harlan, in a characteristically literal reading of the relevant law, argued that the Commission denied Sherbert
unemployment based on the same reason they might any secular claimant, that she was not "available for work."
• More centrally, he rejected the majority opinion, arguing that the Free Exercise Clause only required neutrality
toward religion in this case, which would not include exempting Sherbert, though the Constitution would permit a
legislature to create such an exemption.
• We shouldn’t treat religious motivation for not showing up to work any different than any other motivation for
being absent.

The Sherbert Test

• The Sherbert Test consists of four criteria that are used to determine if an individual's right to religious free
exercise has been violated by the government.
• The test is as follows:
○ For the individual, the court must determine
 whether the person has a claim involving a sincere religious belief, and
 whether the government action is a substantial burden on the person’s ability to act on that belief.
○ If these two elements are established, then the government must prove
 that it is acting in furtherance of a "compelling state interest," and
 that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Wisconsin v. Yoder406 U.S. 205 (1972)

Facts:
• Three Amish students from three different families stopped attending New Glarus High School in the New
Glarus, Wisconsin school district at the end of the eighth grade, all due to their religious beliefs.
• The three families were represented by Jonas Yoder (one of the fathers involved in the case) when the case went
to trial.
• They were convicted in the Green County Court, and that ruling was upheld in the appeals court.
• Each defendant was fined the sum of 5 dollars. Thereafter the Wisconsin Supreme Court found in Yoder's favor.
• At this point Wisconsin appealed that ruling in the U. S. Supreme Court.

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 • The Amish did not believe in going to court to settle disputes but instead follow the biblical command to "turn the
other cheek."
• Thus, the Amish are at a disadvantage when it comes to defending themselves in courts or before legislative
committees.
• However, a Lutheran minister took an interest in Amish legal difficulties from a religious freedom perspective
and founded The National Committee For Amish Religious Freedom (partly as a result of this case) and then
provided them with legal counsel.
Burger’s Opinion
• The state’s “interest in universal education,” but required that it be balanced “when it impinges on fundamental
rights and interests” to assure that “there is a state interest of sufficient magnitude to override the [free exercise]
interest.”
• Cumpulsory high school education required the Amish “to perform acts undeniably at odds with fundamental
tenets of their religious beliefs” and “[carried] with it a very real threat of undermining the Amish community.”
• The distinction in belief and conduct is of little help here bc the conduct is essential for the realization of that
belief

Note: Problems of Mandatory Accomodation

• Hobbie v. Unemployment Appeals Commission [480 U.S. 136 (1987)]
○ The Court held that “the timing of [the] conversion is immaterial.”
• Frazee v. Illinois Department of Employment Security [489 U.S. 829 (1989)]
○ Applied Sherbert to a person who was not a member of an established religious sect or church that held as
a tenet a prohibition on Sunday work, but who sincerely believed that “as a Christian, he could not work
on ‘the Lord’s Day.’”
Taxation
• United States v. Lee [455 U.S. 252 (1982)]
○ Rejected a claim for a constitutionally required exemption from paying the Social Security tax.
○ Lee was a self-employed farmer and carpenter who did not pay the Social Security tax for his Amish
employees because “the Amish believe it sinful not to provide for their own elderly and therefore are
religiously opposed to the national social security system.”
○ The Court found that the limitation on religious liberty was “essential to accomplish an overriding
governmental interest.”
○ Mandatory participation in the Social Security system was “indispensable to [its] fiscal vitality.”
○ Justice Stevens concurred in the judgment but criticized the Court for overstating the risk that “a myriad
of other claims” would occur.
 Further noted that “if tax exemptions were dispensed on religious grounds, every citizen would
have an economic motivation to join the favored sects [while no] comparable economic
motivation could explain the conduct of the [employee] in Sherbert.
○ No hindrance in their exercise of their own religion and the state tax system.
• Goldman v. Weinberger [475 U.S. 503 (1986)]
○ Rejected a free exercise challenge to an Air Force regulation prohibiting the wearing of headgear while
indoors as applied to an Orthodox Jewish officer who was disciplined for wearing a yarmulke.
○ Court gave deference to military to know to best instill obedience which is important for national security
○ Justice Stevens wrote a concurring opinion that although acknowledging that petitioner presented “an
especially attractive case for an exception” from the regulations.
 Worried about the application of such an exemption to members of other religious groups
wishing to wear turbans, saffron robes, and dreadlocks
 The Air Force has no business drawing distinctions between such persons when it is enforcing
commands of universal application
Prisons
• O’Lone v. Estate of Shabazz [482 U.S. 342 (1987)]
○ Concerned a challenged by Muslim prisoners to a prison policy that prevented them from attending
Jumu’ah, a weekly congregational service mandated by the Koran.
○ Prison regulations, adopted for security reasons, prevented prisoners with respondents’ classification from
being inside the building where the service was held.
○ The Court held that in a prison context alleged infringements on free exercise interests “are judged under
a “reasonableness” test less restrictive than that ordinarily applied to [infringments] of fundamental
constitutional rights.”
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The Concept of burdens: internal government operations
• Bowen v. Roy [476 U.S. 693 (1986)]
○ Rejected religious-based objections to a federal statute requiring applicants for certain welfare benefits to
provide the states with their Social Security numbers and requiring the states to use the numbers in
administering the program.
○ Burger: “Never to our knowledge has the Court interpreted the First Amendment to require the
Government itself to behave in ways that the individual believes will further his or her spiritual
development.
○ The Free Exercise Clause affords an individual protection from certain forms of governmental
compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal
procedures.”
○ We can’t dictate what the gov does or how it runs its programs so they comply with our individual
religious beliefs.
• Lyng v. Northwest Indian Cemetery Protective Association [485 U.S. 439 (1988)]
○ Rejected a free exercise challenge to the Forest Service’s plan to permit timber harvesting and road
construction in part of a national forest that was traditionally used by various Indian Tribes as a sacred
area for religious rituals
○ The Court held that the government did not have to show a compelling need to engage in the relevant
projects.

Employment Division, Dept. of Human Resources v. Smith

(Government Agency) v. (Sacramental Peyote-user)
494 U.S. 872, 110 S.C1. 1595 (1990)
WHEN A GENERALLY APPLICABLE LAW HAS THE INCIDENTAL EFFECT OF BURDENING THE FREE
EXERCISE OF RELIGION THE LAW IS NOT IN VIOLATION OF THE FIRST AMENDMENT
INSTANT FACTS: Alfred Smith and Galen Black were both fired for using peyote, but the state denied them
unemployment benefits.
BLACK LETTER RULE: Generally applicable, religion-neutral laws that have 'the effect of burdening a particular
religious practice need not be justified by a compelling governmental interest.
PROCEDURAL BASIS: Certification to the U.S. Supreme Court after the Oregon Supreme Court granted respondent
Smith the desired relief on remand from the U.S. Supreme Court after initial review.
FACTS
• Oregon law prohibits the possession of peyote, a hallucinogen.
• Respondents Alfred Smith and Galen Black (Smith and Black) (R) were both fired from their jobs with a private
employer because they'd used peyote as part of a religious ceremony of the Native American Church, of which
both are members. [That's a good excuse!]
• When the two applied to the Department of Human Resources' Employment Division (the department) (P) for
unemployment benefits they were denied because they'd lost their jobs due to "misconduct."
• The Oregon Supreme Court determined that Smith's and Black's (R) peyote use was indeed illegal under Oregon
law, but that the ban on sacramental peyote use was invalid under the Free Exercise Clause and therefore the state
could not withhold benefits from individuals due to their exercising constitutionally protected rights.
ISSUE: May the state deny benefits to those whose need for benefits is due to their violation, for religious purposes, of a
generally applicable criminal statute?
DECISION AND RATIONALE
• (Scalia, J.) Yes. Smith and Black (R) rest their claim for relief on prior decisions of this Court that a state may not
condition receipt of unemployment benefits on the willingness to forgo religiously required conduct.
• There is a big difference, however, between those cases and the instant case. In those cases the conduct at issue
was not proscribed by law, whereas here it is.

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 •
At issue here is a generally applicable law that incidentally restricts use of peyote in ceremonies of the Native
American Church.
• Smith and Black (R) would have the Court carve out exemptions to a generally applicable law that is concededly
constitutional as applied to all other non-religious peyote use.
• We do not feel the words "prohibiting the free exercise of religion" of the First Amendment must be given that
meaning.
• This Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the state is free to regulate.
• Indeed, we have consistently held otherwise.
• The only decisions which have held that the First Amendment bars application of a neutral, generally applicable
law to religious practice have involved not just the Free Exercise Clause alone, but have included that clause
along with others such as freedom of speech and of the press.
• The instant case does not include such a hybrid situation.
• Also argued is that even if exemptions from generally applicable criminal laws are not automatically granted to
religiously motivated actors, such instances should be evaluated using the test set forth in Sherbert v. Verner
[Supreme Court ruling that laws restricting freedom of religion must be narrowly tailored to achieve an overriding
governmental interest].
• However, we have never invalidated any state action using this test except the denial of unemployment benefits.
• In other contexts in which the Court has purported to apply the test we have always found it unsatisfied.
• And in recent years the Court has abstained from using the test outside of the unemployment compensation
domain.
• Even if the Court did use the Sherbert test it would not be applied to make exemptions from generally applicable
laws.
• We feel the better way is to hold the test inapplicable to such challenges.
• To use it here today would be to produce a private right to ignore generally applicable laws and this we cannot do.
• We find it inadvisable, also, to require a compelling state interest only when the conduct prohibited is "central" to
the individual's religion.
• Determining such centrality is not something the courts are prepared or equipped to do.
• To take the opposite view could possibly lead to numerous constitutionally required religious exemptions for
almost every law on the books.
• The First Amendment's protection of religious liberty does not require this.
• Just because certain values are protected from government interference by the Bill of Rights does not mean they
are totally removed from the political process.
• Since religious expression is so protected, we can expect that society will be proactive in guarding against any
infringements when enacting legislation as well.
• This is shown by the number of states that have made exceptions for the religiously motivated use of peyote.
• But this does not mean that such exemptions are required by the Constitution.
• It is a simple fact that leaving such accommodation to the political process will disadvantage the less popular
religious practices.
• It goes without saying that such a system is preferable to one in which each conscience is a law unto itself or in
which judges weigh the social importance of all laws against the centrality of all religious beliefs.
• Reversed.
CONCURRENCE
• (O'Connor, J.) Although I do agree with the Court's ruling, I cannot join in the opinion or support the Court's
rationale.
• Today the Court has held that so long as a law is generally applicable, the state may prohibit conduct mandated by
an individual's religious beliefs.
• But no matter if a law is generally applicable or not, if it prohibits certain conduct that happens to be an act of
worship for someone it therefore prohibits that person's free exercise of his religion
• The First Amendment does not distinguish between laws which are generally applicable and laws that target
particular religious practices.
• However, just because someone's right to free practice has been burdened does not mean that person has an
absolute right to relief.
• Instead, we have balanced the compelling interests of the state, and means narrowly tailored to achieve those
interests, with the individual's right to free practice.
• The majority is wrong when it contends that this Court has never used the competing interests framework when
deciding such a case as today's.
• Such a framework is appropriate here and should be applied.
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 • I also take issue with the Court's contention that disfavoring minority religions is an "unavoidable consequence"
under our system of government and that accommodations of such religions must be left to the political process.
• Indeed, such minority religions are precisely why the Free Exercise Clause was included in the Constitution.
• In sum, I would hold that Oregon has presented a sufficiently compelling interest preventing the physical harm
caused by drug use-and uniform application of the criminal prohibition is essential to accomplish this interest.
DISSENT
• (Blackmun, J.) I agree with Justice O'Connor's analysis of the applicable free exercise doctrine.
• I do not, however, agree with her conclusion that exempting Smith and Black (R) from the State's general
criminal prohibition "will unduly interfere with fulfillment of the governmental interest."
• In weighing the two competing interests in this case, it is important to articulate, in precise terms, the state interest
involved.
• It is not the State's broad interest in fighting the "war on drugs" that must be weighed; it is the State's narrow
interest in refusing to make an exception for the religious use of peyote.
• Oregon has not made an attempt to prosecute Smith and Black (R) and it doesn't claim to have made significant
efforts to enforce the law against religious peyote users.
• It is therefore merely an interest in the symbolic preservation of an unenforced law.
• The State also asserts the interest in protecting its citizens from the dangers of illicit drugs.
• Symbolism, for one, cannot suffice as a compelling state interest.
• Nor can the latter interest stand up in light of the fact that many states do allow an exemption for the use of peyote
in religious ceremonies without realizing any of the fears Oregon posits.
• The fear of a flood of other religious exemption claims is also debunked by the foregoing.
• As such, I would let the ruling of the lower court stand.
Analysis:
• The First Amendment states that "Congress shall make no law ... prohibiting the free exercise [of religion]."
• This amendment applies to the states as well through the Due Process Clause of the Fourteenth Amendment.
• The Free Exercise Clause does not say that no law shall be made specifically prohibiting the free exercise of
religion, nor does it say that the clause does not apply to generally applicable laws enacted with no prohibition of
religion in mind.
• The Oregon law at issue quite clearly prohibits the free practice of the Native American Church's religion.
• Why then does Justice Scalia formulate the generally applicable law vs. specifically targeted law dichotomy?
• The history that gave rise to the Free Exercise Clause is that of Europeans persecuted for their religious views.
• The clause was meant to guarantee that such persecution could not happen in the United States; so that followers
of minority religions could worship in peace, free of the fear of being punished for their different beliefs by a
tyrannous majority holding the reigns of political power.
• Yet Justice Scalia flushes all of this history and purpose in a single sentence: "It may fairly be said that leaving
accommodation to the political process will place at a relative disadvantage those religious practices that are not
widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in
which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the
centrality of all religious beliefs."
• RFRA established in response to the Smith decision
• Is peyote symbolic speech?

Note: Should Accommodation Be Required?

• United States v. O’Brien - Held that facially neutral statutes serving important purposes unrelated to suppression
of speech are constitutional if the incidental impact on speech is no greater than necessary.
• Church of the Lukumi Babalu Aye v. City of Hialeah - Invalidated a city’s ban on “ritual slaughter” as applied to
animal sacrifices conducted by the church as part of its practice of the Santeria religion. [FREE EXERCISE]
○ The court found that the background of the ban, and its specific language and exemptions demonstrated
that “suppression of the central element of the Santeria worship service was the object of the ordinances.”
○ The Ordinances did not satisfy the “rigorous scrutiny” required of regulations that are not neutral or of
general application because they were “not drawn in narrow terms of accomplish” the objectives of
protecting animals from inhumane slaughter/avoiding unhealthy methods of disposing animal carcasses.
○ Ordinance meanders around the practice of other acts of animal butchering and thus targets the religion.
○ Also content based restriction on expressive speech (other argument for unconstitutional)

Corporation of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos

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 (Church) v. (Janitor)
'483 U.S. 327, 107 S.Ct. 2862 (1987)
RELIGIOUS ORGANIZATIONS MAY DISCRIMINATE IN EMPLOYMENT
RULE: Allowing religious organizations to discriminate in employment with respect to their secular nonprofit
activities does not violate the Establishment Clause.
PROCEDURE: Certification to the U.S. Supreme Court after a district court sustained the Establishment Clause
challenge to the church's action.
FACTS:
• Amos (P) was a janitor at the Deseret Gymnasium, a nonprofit facility, open to the public, run by the
Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (the "church") (D).
• The church (D) fired Amos (P) because he did not observe the church's standards regarding church attendance,
tithing, and abstinence from coffee, tea, alcohol, and tobacco.
• The church (D) claimed that § 702 of the Civil Rights Act of 1964 exempted religious organizations from Title
VII's [prohibits employers from discriminating on basis of religion] prohibition against employment
discrimination with respect to their secular nonprofit activities.
• Amos (P) claimed that, with respect to the church's secular activities, § 702 violated the Establishment Clause.
The district court held for Amos (P).
• Purpose of exemption from Title VII – religious institutions may discriminate for religious reasons.
ISSUE: Does exempting religious organizations from Title VII's prohibition against employment discrimination with
respect to their secular nonprofit activities violate the Establishment Clause?
RATIONALE: No
• Section 702 of the Civil Rights Act's exemption of religious organizations from Title VII's prohibition against
employment discrimination with respect to their secular nonprofit activities does not violate the Establishment
Clause.
• We analyze the statute under the three-prong test in Lemon v. Kurtzman [establishes three-part test to
determine whether law violates Establishment Clause].
• First, we look at whether the law at issue serves a "secular legislative purpose."
• Here, § 702's secular legislative purpose is to alleviate significant governmental interference with religious
organizations' ability to define and carry out their religious missions.
• It would be a significant burden on religious organizations to require them to predict which of their activities a
court might consider religious or secular.
• Second, the primary effect of the law at issue must neither advance nor inhibit religion.
• While this law may allow churches to advance their religions, it does not permit the government to advance
religion.
• Further, while Amos's (P) freedom of religion was impinged upon, it was the church (D), and not the
government, that required him to change his religion or lose his job.
• The fact that § 702 singles out religious entities for a benefit does not make it unconstitutional.
• The district court's fear of churches' potential power to propagate their doctrines is without merit.
• The case here involves the church's (D) nonprofit activities, not commercial activities.
• Third, § 702 reduces the potential administrative entanglement between government and religion. Reversed.
• It shouldn’t be the church’s burden to show what a religious matter is and what is not.
CONCURRENCE
• (Brennan, J.) I wish to emphasize that § 702's exemption covers all of a religious organization's nonprofit
activities, whether secular or religious.
• A case-by-case determination as to whether an activity is secular or religious would violate religious
organizations' autonomy, result in ongoing government entanglement in religious affairs, and possibly chill
religious activity.
CONCURRENCE
• (O'Connor, J.) The majority is overly deferential to § 702's purported facilitation of religion, and such
deference may ultimately vitiate the Establishment Clause.
• In applying the second prong of the Lemon test, the majority distinguishes between government action which
allows religious organizations to advance religion and government action which directly advances religion.
This distinction is not very enlightening.
• The first step should be to recognize that exempting religious organizations from a generally applicable
administrative burden necessarily has the effect of advancing religion.
• The question is whether, when looked at objectively, the government's purpose is to endorse religion
(unconstitutional) or to accommodate its free exercise (constitutional).
• Because a religious organization's nonprofit activities may be involved in its religious mission, § 702
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 constitutionally accommodates religion rather than unconstitutionally endorses it.
• The question of the constitutionality of § 702's exemption as applied to for-profit activities remains open.
Analysis:
• The Court relies on the three-part Lemon test to determine whether a government action violates the
Establishment Clause.
• The Lemon test has recently fallen into disfavor, as is foreshadowed by Justice O'Connor's concurrence.
• The Court is moving toward analyzing Establishment Clause questions under a single question: Does the
legislation constitute an endorsment of religion? While "accommodating" religion is acceptable, "endorsing"
religion is not.
• Thus, the Court held that §702 accommodates the Mormon religion, but does not endorse it. But what about
Amos's (P) religious beliefs?
• They certainly were not accommodated here. In fact, he was told to become a practicing Mormon or he'd lose
his job.
Notes:

Texas Monthly v. Bullock 489 U.S. 1 (1989)

• It was to test the legality of a Texas Statute that exempted religious publications from paying state sales tax.
• The Court in an opinion written by Justice Brennan overturned the appellate courts decision. The state was
ordered to refund the sales tax paid by "Texas Monthly," with interest.
• Holding: Neither the Free Exercise Clause nor the Establishment Clause prevents Texas from withdrawing its
current exemption for religious publications if it chooses not to expand it to promote some legitimate secular aim.
• Majority Opinion: based their opinion in the establishment clause of the U.S. Constitution which reads
"Congress shall make no law respecting an establishment of religion."
○ As had been decided in earlier cases (Wallace v. Jaffree and Welsh v. United States) not only could
congress not establish a religion, but they could not pass a law with the purpose of advancing religion in
respect to non-religion. Using the Lemon Test from Lemon v. Kurtzman.
○ The lack of a sales tax on religious literature was in effect a subsidy to these religious writers. If the
religious writers did not pay a tax, then a secular writer would have to.
○ This would in essence force tax payers, whether religious or not to pay for a subsidy to religions.
○ They held that had the statute been more broad, including charities for example, then it would have been
constitutional. Brennan recognized the argument of the state that taxing the publications may inhibit their
ability to function to some extent thereby going against the Free Exercise Clause which states continuing
from the above clause "or prohibiting the free exercise thereof."
○ However Brennan argued that if all people were required to pay the tax it did not unduly burden religion
to pay the tax nor "prohibit" them from exercising as they wished.
○ Content based exemption
• Dissenting Opinion (Justice Scalia): Extensively sites Walz v Tax Commission where the justices found a New
York law allowing religions and other non-profit organizations to not pay property tax.
○ Scalia argued that even though it included non-profit organizations they had ruled specifically in favor of
the exemptions for religions stating in Walz "We find it unnecessary to justify the tax exemption of the
social welfare services or 'good works' that some churches perform."
○ He goes on to say that though a tax exemption is similar economically to a subsidy when discussing the
establishment clause they are different as found in Walz.
○ Scalia also recognizes that a line must be drawn between the establishment clause and the free exercise
clause but sees more room between them.
○ He argues that just because a law is not necessary for the free exercise clause does not mean that it is
unconstitutional on establishment grounds.
○ Thirdly, it passes all three prongs of the Lemon test by not overly entangling the church and state.

BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMET [512 U.S. 687 (1994)]
• New York State passed a statute creating a public school district that was coterminous with the boundaries of the
Village of Kiryas Joel.
• Kiryas Joel's entire population consisted of adherents of the Satmar Hasidim, a traditional and insular sect of
orthodox Judaism.
• Most Satmar children attended private religious schools.
• The public school district was established to meet the needs of Satmar children with disabilities that entitled them
to publicly funded special education.
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 • The Supreme Court held that the creation of the school district under these circumstances violated the FIRST
AMENDMENT prohibition on the ESTABLISHMENT OF RELIGION.
• Justice DAVID H. SOUTER'S opinion (for a majority of the Court on some issues and only a plurality on others)
held that New York impermissibly favored religion over non-religion, and one religious group over others, by
drawing district lines explicitly to include members of the Satmar, and only them.
• New York could not constitutionally establish a separate school district to allow the Satmars to avoid educating
their children among those who did not share their cultural practices, especially considering that there was no
assurance in New York law that other culturally or religiously identifiable groups would be afforded a similar
ACCOMMODATION OF RELIGION in the future.
• Dissent – this is the will of the political majority, but if you substitute race into this argument, then Scalia
becomes inconsistent.
• When should accommodations be permitted?
• We are usually more strict on establishment clause than we are on free exercise situations.

Note: When – If Ever – Should Accommodation of Religions of Religion Be Permitted?

• Thorton v. Caldor [472 U.S. 703 (1985)]
○ Held unconstitutional a Connecticut statute providing, “no person who states that a particular day of the
week is observed as his Sabbath may be required by his employer to work on that day.”
○ The statute imposes “an absolute duty to conform business practices to the particular religious practices of
the employee.
○ The State thus commands that Sabbath religious concerns automatically control over all secular interests
at the workplace.
• Trans World Airlines v. Hardison [432 U.S. 63 (1977)]
○ Did not require an employer to adjust its seniority system to allow junior employees to avoid work on
their Sabbaths by displacing senior employees entitled by the system to work on the other days.
○ To allow TWA to bear more than a de minimis cost in
○ Order to give Hardison Saturdays off is an undue hardship.

Free Exercise, Free Speech, and the Right of Expressive Association

• Widmar v. Vincent [454 U.S. 263 (1981)]
○ Invoked the free speech clause to require a state university to make its facilities available to a student
prayer group, just as it would make them available to other groups seeking to use the public forum it
created.”
○ The Court held that a policy of “nondiscriminating against religious speech” would not violate the
establishment clause.
• Lamb’s Chapel v. Center Moriches Union Free School District [508 U.S. 384 (1993)] - Invalidating a school
district’s restriction on the after-hours use of its facilities by religious groups, finding the restriction viewpoint-
based
• Rosenberger v. Rectors and Visitors of the University of Virginia - invalidating a university policy authorizing
payment from the student activites fund for the printing costs of a variety of student publications, but prohibiting
payment for any student publication that “primarily pomotes or manifests a particular belief in or about a deity or
an ultimate reality.”
• Advisory Board v. Pinette [515 U.S. 753 (1995)] - Finding no establishment clause violation in allowing a private
group to display a Latin cross on public property and therefore requiring the board to permit the display.
• Good News Club v. Milford Central School [533 U.S. 98 (2001)] - involving a club that would conduct prayer
meetings and Bible lessions after school hours in a room at a school attended by children from kindergarten
through the twelfth grade.

**Look for overlaps in doctrine and social considerations**

**Spot the issues, lay out the doctrines, and say what the problems were**

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Review Cases

US v. Clary
34 F.3d 709 (1994)
Different sentencing for crack and powder cocaine (100 to 1 ratio)
RULE: For a neutral law to violate EP Clause, P must establish that Congress act with a discriminatory purpose in
enacting the statute, and that Congress selected or reaffirmed a particular course of action “at least in part ‘bc of’
not merely ‘in spite of’ its adverse effects upon an identifiable group.
FACTS:
• US appeals from the sentence imposed upon Clary for possession with intent to distribute cocaine base in
violation of 21 USC §841(b)(1)(A)(iii)
• Clary entered a guilty plea to the charge which called or a 10-year mandatory min sentence.
• After a 4 day hearing district court sentenced Clary to 4 years.
• Court held that the 100 to 1 ratio for crack cocaine to powder cocaine was disproportionate and in violation of the
Equal Protection Clause both generally and as applied, and that the selective prosecution of crack cases on the
basis of race was constitutionally impermissible as applied to Clary
• US argues – these issues have been repeatedly decided and there was no equal protection violation or selective
prosecution of Clary.
• P argued – after the guilty plea but before sentencing, he filed a motion arguing that the 10-year mandatory min
sentence contained in the crack cocaine statute violated his Equal Protection rights guaranteed by the 5th
amendment
• District Court Analysis:
○ Recognized the role that racism has played in criminal punishment in this country since the late 17th
century.
○ African Americans’ anger and frustration led to increased drug traffic and associated violence.
○ Reasoned that although overt racial animus may not have led to Congress’ enactment of the crack statute,
its failure to account for a substantial and foreseeable disparate impact would violate the spirit and letter
of equal protection.
○ Concluded that the statute should be reviewed under strict scrutiny and the rules of Arlington Heights v.
Metro Housing Develop. Corp.
○ Listed 7 factors from Arlington as circumstantial evidence of racially-discriminatory legislative purpose:
 Adverse racial impact
 Historical background
 Specific sequence of events leading up to the decision
 Departure from normal procedure sequence
 Substantive departure from routine decision
 Contemporary statements made by decision makers
 Inevitability or foreseeability of the consequence of the law
○ Congressional Record portrayed crack dealers as unemployed, gang affiliated, gun toting, young black
males
○ Few hearings were held in the House on the enhanced penalties and penalties were arbitrarily doubled
from first provision.
○ Court found the statistical evidence showed both disparate impact and the probability that the subliminal
influence of unconscious racism had permeated federal prosecution throughout the nation.
ISSUE: Is the crack statute unconstitutional bc it violates equal protection rights?
HOLDING: NO
• We are satisfied that both the record before the dist court and the district court’s findings fall short of establishing
that Congress acted with a discriminatory purpose in enacting the statute, and that Congress selected or affirmed a
174
 particular courts of action at least in part bc of and not merely in spite of its adverse effects upon an identifiable
group
• While impact is an important starting point, Arlington Heights made clear that impact alone is not det absent a
pattern as stark as that in Gomillion v. Lightfoot or Yick Wo v. Hopkins.
RATIONALE:
• Case is decided on the basis of past decisions by this court
• US v. Lattimore – Congress clearly had rational motives for creating the distinction bw crack and powder cocaine:
potency of drug, ease by which dealers can carry and distribute, highly addictive, violence accompanies it.
○ Even if neutral law has disproportionate adverse impact on racial minority, it is unconstitutional only if
effect that be traced to discriminatory purpose.
○ Discriminatory purpose – implied that decision maker selected or reaffirmed particular action at least in
part bc of not merely in spite of its adverse effects upon an identifiable group.
• US v. Buckner – dealing w/ the substantive due process challenger to the 100 to 1 ratio and court held that it was
not arbitrary or irrational.
• US v. Maxwell – rejected strict scrutiny argument that was based on the continued enforcement of the statute
rather than its enactment.
NOTES:
• Targeting a community should be viewed as a violation of EP
• The more you target the class of people that use the drug, the more you move toward violation of EP
• First question in these types of situations is whether we have a racially based statute…
• Washington v. Davis – when you have a neutral law, disparate impact alone is not enough; there must also be a
discriminatory race-based intent to violate EP.
• Facially neutral law + disparate impact on a racial minority
• Case applied Arlington – Chicago suburb denied zoning ordinance which disparately impacted poor people.
Purpose of not passing it was to keep wealthier homeowners house value up…evidence of discriminatory
purpose, but not enough to support EP claim.
• When is there enough evidence to assume a discriminatory intent in writing a law? Look at Yick Wo.

Personnel Administrator of MA v. Feeney

422 U.S. 256 (1979)
RULE: When a statute gives preference to a specific group (veterans) that includes both males and females, it
cannot be considered unconst under EPC and 14th bc that statute in fact proves to be more favorable to males.
FACTS:
• MA Veterans stat all veterans who qualify for state civil service positions must be considered for appointment
ahead of any qualifying nonveterans. This operates overwhelmingly to the advantage of males.
○ “Absolute lifetime” preference a most generous hiring pref concerning veterans found among the states.
○ Although the veterans preference doesn’t guarantee a vet will be appointed, it’s obvious that the
preference gives to veterans who achieve passing scores a well-nigh absolute advantage.
• Public policyTraditionally, recognized and justified as a measure designed to reward vets for sacrifice of
military service and ease transition from military to civilian life
• When this litigation commenced, over 98% of the vets in MA were male, 1.8% female and over 25% of the MA
population were veterans.
• P Feeney (not a veteran) alleged that the absolute-preference formula inevitably operates to exclude women
from consideration for the best MA civil service jobs and thus unconst denies them equal protection.
○ Ms. Feeney had 12 year tenure as a public employee. Achieved very high scores consistently, however
didn’t place on the certified eligible list. Bc of the veterans preference, she was placed 6th behind 5 male
vets on the Dental Examiners list. Not certified and a lower scoring veteran was appointed.
PROCEDURE:
• DC found absolute preference has a devastating impact on employment opportunities for women. Goals of the
preference are worthy and legitimate + not enacted with discriminatory purposes. However, exclusionary impact
was severe enough to req MA to further its goals thru a more limited form of preference. Held – unconstitutional.
• Appeal vacated and remanded
• Remand DC concluded the hiring preference is inherently nonneutral (favors a class from which women have trad
been excluded, and that consequences were too inevitable to have been ‘unintended). Unconstitutional.
ISSUE: Whether MA, in granting absolute lifetime preference to veterans, has discriminated agst women in violation of
the EPC and 14th? [NO]

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HOLDING: Constitutional. Law remains a preference for veterans of either sex over nonveterans of either sex, not for
men over women.
RATIONALE:
• States are allowed to classify in some instances, and the 14th and EPC doesn’t completely strip States of this right.
• The basic classification must be rationally based.
• Certain classifications in themselves supply reason to infer antipathy (i.e. race)
• Gender classifications, unlike race, have traditionally been the touchstone for pervasive and subtle discrimination.
• Prior cases signaled no departure from settled rule that the 14th guarantees equal laws, not equal results
• Questions to ask When a statute gender-neutral on its face is challenged on the ground that its effects upon
women are disproportionably adverse, the first question is whether the stat classification is neutral in the sense it’s
not gender-based. If the classification isn’t based on gender, the second question is whether the adverse effect
reflects invidious gender-based discrimination (look at impact to start, but purposeful discrimination “is the
condition that offends the Const”).
• THIS STAT IS CONCEDEDLY NEUTRAL ON ITS FACE.
○ Veteran status is not uniquely male.
○ Although few women benefit from the preference, the nonveteran class is not substantially all female.
○ Distinction is bw veterans and nonveterans, not bw men and women
• Has P shown that a gender-based discriminatory purpose, at least in some measure, shaped the legislation State
intended nothing more than to prefer “veterans” (not male vs. female).
• P’s ultimate argument rests on the presumption that a person intends the natural and foreseeable consequences of
is voluntary actions…The decision to grant a preference to veterans was “intentional.” It cannot be seriously
argued that that the MA Leg could have been unaware that most veterans are men.
• BUT…Discriminatory purpose implies more than intent as volition or as awareness of consequences.
• Nothing in R shows the preference for veterans was originally devised or subsequently re-enacted bc it would
accomplish the collateral goal of keeping women in a stereotypic and predefined place in the MA Civil Service.
CONCURRENCE: (Stevens, White)
• Regardless of the way the question is phrased (overtly or covertly based on gender), the answer is clear due to the
large number of males disadvantaged by the Mass. veterans’ preference which is sufficiently close to the number
of disadvantaged females. Refutes the sex-based benefits argument.
DISSENT: (Marshall, Brennan)
• Thinks that purposeful gender-based discriminatory intent is established here. Also, statutory scheme bears no
substantial relationship to a legitimate gov’t objective, thus cannot withstand scrutiny under EPC.
• That a legislature seeks to advantage one group doesn’t exclude the possibility that it also intends to disadvantage
another.
• The critical constitutional inquiry is whether it had an appreciable role in shaping a given legislative enactment
• Impact on women is undisputed. Although neutral in form, not neutral in application bc foreseeable impact
• Statutory scheme both reflects and perpetuates archaic assumptions about women’s roles which we have
previously held invalid. Choice of a formula that so severely restricts public employment opportunities for women
cannot reasonably be thought to be gender-neutral.
• “mere recitation of a benign, compensatory purpose” cannot of itself insulate legislative classifications from
constitutional scrutiny. Here, Commonwealth has failed to est a sufficient relat bw its objectives and means to
achieve them.
• There is a less discriminatory means to have a preference for veterans.
NOTES:
• Disparate impact on women here bc 98% of MA veterans were men
• Washington v. Davis – if intent of statute was discriminatory then you use strict scrutiny, but if not then it is a
lesser review
• Discriminatory purpose seen bc they had to know that 98% of vets were men, but the other side is that this is a
neutral law that doesn’t discriminate against women, just non-veterans.
• Gender based discrimination = intermediate scrutiny

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 Rostker v. Goldberg
453 U.S. 57 (1981)
Rule: Congress acted well within its constitutional authority to raise and regulate armies and navies when it
authorized the registration of men and not women.
FACTS:
• In 1980, Robert Goldberg challenged the U.S. draft registration policy by bringing suit against Bernard Rostker,
the director of the Selective Service System.
• When Goldberg won in federal court, Rostker appealed to the Supreme Court.
ISSUE: Whether the Military Selective Service Act (50 USC App. § 451et seq.) violates the 5th Amendment to the United
States Constitution I authorizing the President to require the registration of males and not females?
HOLDING: The Act's registration provisions do not violate the Fifth Amendment.
• Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized
the registration of men and not women.
RATIONALE: In a written opinion by Justice William Rehnquist and supported by a 6-3 vote, the Court used the
following rationale:
• "[t]he existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women
from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are
excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore
decided not to register them."
• “Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of
a draft or registration for a draft.”
Constitutional / Other Statutory Powers:
• Congress has the constitutional power to raise and regulate the military
• The President has the power to require the registration of “every male” citizen and male resident aliens between
the ages of 18 and 26.
○ This provision serves no other purpose beyond providing a pool for subsequent induction.
• Congress’ constitutional power is broad in the area of authority over national defense and military affairs
○ The scope of their power is broad, but the lack of competence on the part of the court is marked.
○ This does not mean Congress can disregard the constitution when involved with military affairs, but tests
and limitations may differ because of the military context.
Levels of Scrutiny:
• Simply labeling a legislative decision as “military” on the one hand or “gender based” on the other does not
automatically guide a court to the correct constitutional result.
• The levels of scrutiny the court applies in particular situations and to particular classifications may all to readily
become facile abstractions used to justify a result.
Review of Senate Committee Reports:
• The principle that women should not intentionally and rountinely engage in combat is fundamental, and enjoys
wide support amoung our people.
• It is universally supported by military leaders who have testified before the Committee
• Current law and policy exclude women from being assigned to combat in our military forces, and the Committee
reaffirms this policy.
• The report found that “women should not be intentionally or routinely placed in combat positions in our military
services.”
Due Process Claim:
• Congress’ decision to authorize the registration of only men DOES NOT violate the Due Process Clause.
• The exemption of women is sufficiently and closely related to Congress’ purpose in authorizing registration.
• The fact that Congress and the Executive have decided that women should not serve in combat fully justifies
Congress in not authorizing their registration…
• The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of
superficial equality.
Dissent:
• (White)-- “I perceive little, if any, indication that Congress itself concluded that every position in the military, no
matter how far removed from combat, must be filled with combat-ready men.”
• (Marshall)--“the Government must show that registering women would substantially impede its efforts to prepare
for such a draft.”
NOTES:

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 • What is not asked here? The court assumes that the exclusion of women from combat positions is constitutional.
• Should have asked whether it is constitutional to treat women different in combat positions. This question was
not before the court, but really is the basis for the controversy here.
• Equal rights amendment in 1980 – failed repeatedly bc of the fear of women being req for combat positions.
• Starting point—important how to phrase the issue in front of the court (Michael M – became to be about
pregnancy and not the act or assault involved in statutory rape)
• EP—women and gays in combat positions…
• Craig test— Statutes which discriminate based upon one’s sex violate EP if they create a gender-based
classification that is not substantially related to an important gov’t objective. (first case to apply intermediate
scrutiny for gender based discrimination)

Dothard v. Rawlinson
433 U.S. 321 (1977)
FACTS:
• Women were excluded from being security guards in a male max security prison
• State purpose—to protect female guards
PROCEDURE:
ISSUE:
HOLDING:
RATIONALE:
CONCURRENCE:
• Perfectly fine to discriminate by physical characteristics bc of the importance of looking intimidating when being
a security guard.
• This method would be closer to the purpose behind the discrimination than just precluding women
NOTES:

Ambach v. Norwick
441 U.S. 68 (1979)
RULE:
FACTS: (NY Commissioner of Education v. two non-citizens)
• Susan Norwick was a British subject who moved to the United States in 1965 and married a U.S. citizen.
• Tara Dachinger, a Finnish subject, came to America in 1966and also married a U.S. citizen.
• Although both met the educational reqs for certification, they consistently refused to apply for citizenship.
• Norwick and Dachinger each applied for a teaching certificate covering nursery school through sixth grade. When
their applications were denied, they sued in the district court.
• Appellant’s claims— Norwick and Dachinger should not receive permanent certification as public school teachers
because they are not citizens and do not wish to become citizens.
PROCEDURE:
• The Norwick case reached the distinct district court in 1976. Applying the "close juridical scrutiny" standard of
Graham v. Richardson, the district court declared that New York had violated the Equal Protection Clause. The
New York law, it stated, was too broadly written, since it excluded all aliens from all public school teaching jobs.
• New York appealed this decision to the U.S. Supreme Court. In a 5-4 decision, it reversed the district court and
declared the New York law constitutional.
ISSUE:
HOLDING: New York may deny public school teaching positions to those aliens that refuse to apply for citizenship.
RATIONALE:
• A state may bar aliens from government positions with a high degree of responsibility and discretion.
• New York law normally denied certification as a public school teacher to noncitizens, unless they declared their
intention to acquire citizenship.
• The Fifth and Fourteenth Amendments guarantee all "persons" due process of law and equal protection.
○ The Supreme Court thus has ruled that residents enjoy these rights, whether they be citizens or aliens.
○ However, the Court has tended to grant some leeway to the federal government, which has paramount
authority over aliens.
○ Aliens are entitled to the procedural protections of the Fifth Amendment, but the federal government has
the authority to deny welfare benefits to aliens and to exclude them from civil service jobs.

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 • The Court has upheld stricter standards against the states. In Graham v. Richardson (1971), the Court declared
that state laws discriminating against aliens would be subject to its "strict scrutiny." Aliens form a discrete and
politically powerless minority. Laws applying exclusively to aliens must be confined within narrow boundaries.
• Only Citizens Can Perform Basic Tasks of Government:
○ In cases involving aliens  Ct had permitted states to bar aliens from state employment under certain
circumstances. States may practice forms of discrimination that are forbidden to individuals. "The
distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to
the definition and government of a state."
○ In particular, aliens might be forbidden those jobs that require a high degree of responsibility and
discretion in the fulfillment of a basic governmental obligation.
 For example, a state might bar aliens from the police force, a group charged with performing the
most fundamental task of government. In all such cases, the state needed only to show "some
rational relationship" between the discrimination and a valid state interest.
○ Like policemen, teachers exercise great discretion in performing a basic task of government. Teachers
have direct, often unsupervised, day-to-day contact with students. They act as role models for students,
"exerting a subtle but important influence over their perceptions and values." They influence attitudes
toward "government, the political process, and a citizen's social responsibility."
• They want to teach, but don’t want to be Americans: New York's ban on aliens, Justice Powell continued,
bears a rational relationship to the state's interest in educating future citizens. The law bars only those aliens who
have refused to apply for United States citizenship. Such persons have deliberately chosen to focus their "primary
duty and loyalty" on a foreign country and not on the United States.
DISSENT: (Blackmun)
• Blackmun argued that the New York law did not meet the majority's own test.
• New York had not demonstrated a "rational relationship" between the law and the state's interest in education.
• For example, New York did not care whether teachers in private schools were citizens. The state even permitted
aliens to sit on certain local school boards.
• The New York restriction, Blackmun declared, "sweeps indiscriminately" and without precision. It irrationally
implies that it is better "to employ a poor citizen teacher than an excellent resident alien teacher." Take, said
Blackmun, the example of Spanish language teachers. Why deny this job to a resident alien "who may have lived
for 20 years in the culture of Spain or Latin America?"
• The majority had argued that--in addition to teaching facts--teachers molded a student's values. This emphasis on
values also was inconsistent with earlier decisions, Blackmun concluded. For example, the Court allowed aliens
to become attorneys, and lawyers are officers of every court in which they practice.
NOTES:
• Fed gov is the default regulator of aliens
• Education is not a fundamental right (Rodriguez) – but Brown said that education is the greatest governmental
function to prepare children to participate in a democratic government.
• Plyler v. Doe – can’t stop illegal alien children from going to school
• RB – high gov function
• SS – not related to high gov function and all people who live and work in this society should be able to have the
benefits.
• Regulation by the fed gov or permissive reg by the state
• If it is permissive for the state to regulate it is RB
• If the state is not generally allowed to regulate, it is an EP clause analysis and SS

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