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Monday, March 4, 2002 (Class 22) (Assignment 20)

• Why should a court that has concluded that it is not so good at policing boundaries, that has concluded that law and legal reasoning has not been good at coming up with clear answers, be responsible for protecting speech?
• Constitutional dilemma is not whether free speech is a good idea, but whether judiciary should be responsible for deciding?
• For first hundred years, Supreme Court never heard a first amendment case, even though congress did pass laws restricting speech, e.g., Alien and Sedition Act.

Shenck v. United States

[249 U.S. 47]

• First important first amendment cases came during World War I and red scare/Bolshevik? Revolution.
• Espionage Act of 1917: Holmes comes up with clear and present danger test. War makes a difference--what can be said during peace time may be prohibited during war. Circumstances matter.

Debs v. United States

[249 U.S. 211] 1919 United States Supreme Court

• Debs speech glorifying socialism and workers still interferes with war efforts

Abrams v. United States

[250 U.S. 616] 1919 United States Supreme Court

• Abrams is not well known, not as 'dangerous'. Holmes' dissent finds Abrams' speech doesn't constitute clear and present danger.
• Holmes adds sense of immediacy, looks at probability that speech will actually bring about evil.
• First the first time Holmes uses test, not as justification for conviction, but as an attempt to exculpate defendant. Congress can limit speech only when there is a clear and present danger.
• Speech in Abrams deals with Bolshevik revolution, rather than Debs' speech which dealt with war with Germany.

Gitlow v. People of New York

[268 U.S. 652] 1925 United States Supreme Court

• Incorporation of first amendment into fourteenth amendment
• Holmes Dissent: in some way consistent with dissent in Lochner--give people their way in competition of ideas.
• Holmes doesn't take into account 'fair fight' in battle of ideas.
• Sets Court as arbiter of clear and present danger.
• Still retains claim that evil must be remote or else speech can be prohibited.
• Could be analogous to Carolene Products footnote 4 -- protection of minorities. All of these cases were brought against ideological minorities (socialists) and frequently against ethnic minorities.
• Brandeis' dissent in Whitney: false ideas may become doctrine in absence of free speech.
• Brandeis is concerned about majoritarian tendencies, which may suppress individuals and harm democracy. Sense of individual freedom that we don't see in Holmes' dissents. Birthplace of 1960's idea of free speech.
• Brandeis' view has incipent libertarianism.
• Why is freedom of speech specifically protected but not other freedoms (e.g., freedom not to eat doughnuts)?
• Until 1920's, Supreme Court has still never found for individual; these views are all dissents. But in following years, Court cites more frequently to dissents, as if they were majority opinions.
• Next round of 1st amendment cases came during McCarthy? Era and second red scare, 1940's and 1950's.

Dennis et al. v. United States

[341 U.S. 494] 1951 United States Supreme Court (mat47)

• Leader of Communist Party of United States
• Majority opinion: even though chance of danger occurring is very small, harm itself is very great, thus conviction can stand.
• Can discuss Marx and Lenin as long as intent is not to provoke evil.

Wednesday, March 5, 2002 (Class 23) (Assignment 20)

• Trend in first amendment jurisprudence in first half of century of increasing lip service toward first amendment protection, even if Court is not generally finding for individuals.
• Trends in Holmes and Brandeis dissents:
  • Holmes 'free marketplace of ideas', necessity to proper functioning of political system, clear and present danger test. Focus on body politic. We need free speech because then we can assume that majorities can benefit from contest of ideas. Closely connected with political speech.
  • Brandeis, while not disagreeing with Holmes, has more libertarian conception. Not only is free speech a prerequisite to individual liberty it also part of individual liberty. Not only concerned about truth and marketplace of ideas, but also concerned about individual's rights to say what they want to say,as a component of liberty. Not necessarily limited to political speech.

Brandenburg v. Ohio

[395 U.S. 444] 1969 United States Supreme Court (mat57)

• Defendant, leader of Ku Klux Klan, convicted under state's syndicalism law prohibiting advocating violence, challenges conviction on frirst amendment grounds and wins.
• Court overturns defendant's conviction--first case so far where Court has found for individual against the State.
• Speech needed to be intended to incite. (element of intent, which was referred to in Dennis).
• Also needs to be likelihood of harm. (Dennis used 'gravity of evil' and the 'likelihood').
• Question now is whether imminent unlawfulness will occur (rather than whether people will eventually be persuaded by speaker's arguments).
• Case puts together prior pro-speech standards, establishing a very strong free speech standard.
• Explicitly overrules Whitney case, sets current standard.
• Court has been very supportive of Civil Rights Movement; by setting standard that allows Ku Klux Klan speech, justifies protection of Civil Rights speech as well.
• Although it doesn't specifically overrule Dennis, this standard overrules that set in Dennis.
• Issue is not necessarily judiciary's ability to set limits on speech, but rather legislature's, since speech in question here was prohibited by State Statute.
• Incorporation of first amendment is so assumed that court doesn't even need to address the issue of whether state is subject to first amendment.

Court has moved away from protecting just speech qua speech into speech qua communication--i.e., flag burning, commercial advertising for political candidates.

If United States threatened media with prosecution for airing bin Laden's speech, how would Supreme Court rule? How should they rule?

• Government argues that airing speech facilitates bin Laden's communication with his troops.
• Would court use Brandenburg standard, or go back to Dennis standard?
• National security issues.

Review Problem II

• First question: is Bay State College a state actor?
  • Brentwood: School used to be state college, funding comes from state. Court gives great weight as to whether the institution is nominally private or public. But nominally private institutions may be found to be state actors under Brentwood when they are so entwined with the state. Several facts here similar to Brentwood.
  • Rendall-Baker: State does not have influence or control over school--state did not compel particular action at issue. No evidence that State required school to pass this particular issue. No State Regulation of school, not directly funded by State. Much less funding for Bay State than school got in Rendall-Baker, where it was not found to be state actor. Higher education is not exclusive state function (even primary education was not exclusive under Rendall-Baker).
  • Unlike in Brentwood, legislative change was not just 'wink-and-nod' or symbolic. Bay State is in different position than it was prior to privatization.
• Need to make arguments on both sides of state action, then analyze first amendment issue.

Will do 5-10 minutes on first amendment on Friday, then will do Korematsu case and Loving v. Virginia.

Wednesday, March 7, 2002 (Class 24) (Assignments 20-21)

• Monday, March 11, 2002: Assignment 23, Group 6
• Wednesday, March 13, 2002: Assignment 24 (p927-953), Group 19
• Friday, March 15, 2002: Assignment 24 (p953-973, 973-978, and supplement), Group 20

• TA: Rachelle Wills
  • Phone: 617-347-1395
  • Office Hours: Tuesday, 3:30-4:30pm, Thursday, 3:30-4:30pm (in commons).
  • E-mail: r.wills@neu.edu

Review Problem II

• First question to think about is State Action.
• Assuming there is State Action, would new policy violate the first amendment?
  • Brandenberg standard: advocacy is protected, except when it is directed to inciting or producing imminent action (or is likely to produce).
  • Rule prohibits joining organization, not just speech, which Court has always found to be protected activity. Dennis suggests that anyone who talks about communist ideas is not subject to Smith Act.
  • Not content neutral restriction.
  • Passes test: given facts, recent riots, imminency standard is met here.
  • Fails to meet Brandenberg test: riot was isolated event, not likely to recur.
  • Statute is potentially overbroad, makes presumption of intent on part of all students in organizations. Intent needs to be associated with individuals. (i.e., students might have joined for letter-writing campaign, mailing list, etc..)
• On exam, would need to examine language of rule carefully. Look at Brandenberg test, can look at Dennis to argue that gravity standard still exists. Need to be careful with language and text.

We've seen relationship between Court's standing on civil liberties has relationship with nation's sense of security. Speech has not been only right to be threatened in times of war. In addition to ideological minorities being targeted, racial, ethnic, and religious minorities have been targeted as well.

Korematsu v. United States

[323 U.S. 214] 1944 United States Supreme Court (cb810)

• Following Pearl Harbor, heightened fear around Japanese-Americans. Order was issued to inter Japanese-Americans on the West Coast.
• Korematsu was son of Japanese-born citizens, but born in the United States and thus a citizen of the United States.
• Case is not affirmative challenge of statute, rather appeal from criminal conviction.
• Korematsu claims statute is beyond Congress' war power, also violates 'equal protection' clause -- but fifth amendment doesn't necessarily have equal protection, so must rely on due process (later Supreme Court does 'reverse incorporation', including equal protection in fifth amendment).
• Justice Black's Opinion
  • Curtailing civil rights of single racial group are immediately suspect--echoes footnote from Caroline Products that maybe presumption of constitutionality should not be made in case of rights of minorities.
• People sometimes argue that race merits heightened scrutiny because it is immutable.
• All statutes create ephemeral 'categories'--every law applies to some people, creates category that are transient for that law.
• Might want to specifically scrutinize regulation that effects 'sticky' categories--categories that are used over and over again.
• Sticky categories that persist throughout law: gender and age. Maybe these are the ones that might be used inappropriately.
• Other 'immutable' categories: left-handedness, fingerprints, etc.. Do these warrant strict scrutiny?
• After saying that these classifications are immediately suspect, Justice Black upholds regulation.
• Jackson's dissent: Supreme Court can throw out conviction, since it can't look into military operations. In times of war, Court's hands are tied, but they shouldn't make bad constitutional law. Non-doctrinal pragmatism.
• Murphy: Military action was unconstitutional, should be overruled.

Monday, March 11, 2002 (Class 25) (Assignments 21-22)

• Equal protection clause of 14th amendment: what does it mean to discriminate? What is equality?
  • Laws that use race (facially classify on basis of race, as was case in Korematsu)
  • Laws that aim to disadvantage one race
  • Laws that on their face disadvantage one race
  • Laws that lead to unequal outcomes (but say nothing on their face--disparate impact)

Loving v. Virginia

[388 U.S. 1] 1967 United States Supreme Court (cb801)

• Challenge of racial miscegenation statute. Couple was married in DC and returned to Virginia where they were prosecuted for miscegenation.
• Statue fits into first category (uses race) and aims to disadvantage one race, although on its face does not disadvantage one race, unless we take into account multiracial factors (i.e., law does not penalize blacks for intermarrying with other races other than whites).
• Justice Warren, writing for court, finds invidious racial intent in statute. White supremacy/racial attitudes will never constitute legitimate state ends, and this can be the only possible justification for the miscegenation statute.
• Clearest part of holding: law does not need to disadvantage one race on its face in order to trigger strict scrutiny.
• State claims marriage is within its police power under the tenth amendment, Warren responds that tenth amendment is not superceded by fourteenth amendment. State can only do what is in its police power as long as it is not prohibited by fourteenth amendment.
• Marriage and liberty: recalls Lochner opinion, where Court refers to something not explicitly included in the Constitution as fundamental to liberty--i.e., being able to work as many hours as you want.
• What triggers strict scrutiny? Do you use strict scrutiny to determine whether to apply strict scrutiny?
• Right to Marriage conception: individual right, prevents any one person the right to marry whomever they want. Due process emphasis.
• Equal protection mode--different narrative. Story about treatment of group.
• But why strict scrutiny? Are laws that categorize by race alone sufficient to trigger strict scrutiny? Although racial categorizations in law are problematic, Warren can't ignore context of white supremacy and disadvantaging on one race that is present in statute.
• When court uses strict (or rigid) scrutiny, it starts to put itself in the position of the legislature and ask whether the law is necessary to achieve a permissible state objective. No longer deferential, no longer asks could a reasonable legislature think this was necessary to achieve a permissible state objective.

Washington v. Davis

[426 U.S. 229] 1976 United States Supreme Court (cb851)

• Plaintiff claims police test leads to unequal racial treatment and thus should be struck down as violating equal protection.
• Claim seems to fit into category of "laws that lead to unequal treatment" rather than laws that aim to disadvantage one race or laws that on their face disadvantage one race.
• Argument for plaintiffs under Loving: the fact that law was aiming to disadvantage one race was part of a more general phenomenon of laws that maintain social racial hierarchy. Warren was not particularly concerned with subjective intent in Loving so much as result.
• Justice White: if a law is facially neutral there must be discriminatory purpose to trigger strict scrutiny.
• Every law will have disparate impact. People are not identically situated--there are always winners and losers. Cannot strike down law simply because there is a statistically determinable difference based on any number of categories, including race.
• Courts would have to second-guess legislature about every law (under White's view) since there is always a disparate impact.
• Thus, if claim is only disparate impact, review standard will be rational basis. But disparate impact coupled with aim to disadvantage one race will trigger strict scrutiny.
• Problem with not allowing for disparate impact is that it invites 'clever racism'.
• How do you know if you have aim to disadvantage one race without strict scrutiny?
• Holding seems to assume that status quo is acceptable.
• Won't address systemic injustice/differential pattern. Different schools, etc., lead to different ability to pass police test. Disparities thus replicate themselves.
• Puts focus on defendant rather than plaintiff--intent of person who framed law rather than effect on people.
• Stevens concurrence: rather than looking at state of mind, look at consequences of act. Statute has as its intent, its impact.

Washington v. Davis raises several questions:

• What is intent?
• How do you prove it? Particularly with respect to collective bodies, such as legislatures.

Village of Arlington Heights

• Claim was that zoning was racially discriminatory. Problem is how to determine racially motivated intent--who's intent do we examine?
• What if some members of zoning board had racial intent and other members did not?
• Court looks to see if any 'red flags' are raised by some change made by governing body.
• What if discrimination has always been present?

Start on Wednesday with Feeny and then move to affirmative action cases.

Wednesday, March 13, 2002 (Class 26) (Assignment 22)

• While strict scrutiny many not necessarily lead to law being overturned, rational basis test almost inevitable leads to law being upheld.
• Racial classification and some indication of racial intent--strict scrutiny will be triggered.
• Racial intent alone can trigger strict scrutiny.
• Disparate impact alone leads to rational basis review.
• Racial classification alone--??
• Two types of equal protection typically arise:
  • State actor does something with clear racial motivation. e.g., sheriff is racist and beats up suspect because of suspect's race. Constitutional torts--easier case.
  • Harder issue: intent of policies, ordinances, statutes. What is intent of law made up by multiple actors?
• Arlington Heights notion of intent is not clear meaning of words--rather calls into question extratextual evidence (rejecting Justice Stevens' notion of intent). Wants to look at what steps the zoning commissioners took in making their decision, what was said at meetings, etc..
• Arlington Heights also assumes status quo is okay (sounds like Lochner).
• Arlington Heights won't look at frenzy in town--only intent of legislators.

Personnel Administrator of Massachusetts v. Feeney

[442 U.S. 256] 1979 United States Supreme Court (cb856)

• Massachusetts statute giving preference to war veterans in employment challenged on basis of gender discrimination.
• Extremely few female war veterans--thus statute constituted enormous preference to male for civil service positions. Thus this meant that most sought after positions were filled with men.
• Court finds that if decision was made 'in spite of' rather than 'because of' discriminatory effect, then law is okay.
• Problem: how do you determine whether the right intent was in place? How do you determine whether statute triggers strict scrutiny or not?
• Comes close to specific intent required in some criminal actions.
• All legislation create categories and favor certain groups. But can we find some cases where impact is so disparate and so entrenched, that court can act in these cases?

United States v. Clary

[34 F.3d 709] 1994 8th Circuit Court of Appeals (cb873)

• Defendant, convicted for crack cocaine possession, challenges conviction of equal protection since penalty for crack is much higher than cocaine, resulting in harsher penalties for many black drug possessors than white drug possessors.
• Challenge is actually under 5th amendment, since this is federal case.
• Sentencing guidelines don't say anything about race.
• Court finds rational basis for sentencing, thus is deferential to legislature's action.
• Need to find intent in order to ratchet up to strict scrutiny.
• Strict scrutiny: has to be necessary for compelling state objective. Almost 'death to legislation'.
• Since standard is so strict, court may not want to use it, thus sets bar for strict scrutiny so high.

McCleskey? v. Kemp

[481 U.S. 279] 1987 United States Supreme Court (cb884)

• McCleskey? is African-American man, convicted of killing white victim, sentenced to death in Georgia.
• Claims he was denied equal protection under 14th amendment, since statistically people who kill white victims are much more likely to get death sentence than people who kill black victims. Also more likely to be sentenced to death if you are black.
• Strongest evidence: Baldus study.
• Problem: study shows lots of correlation, but can't show causation. McCleskey? hasn't shown racial discrimination in his particular case.
• Furthermore, no evidence that legislature enacted or maintained death penalty because of racial purpose (not despite). No way to prove thot legislature enacted death penalty to value white lives over black lives.
• Also, can't discover people's motives, particularly jury.
• Also, many individuals involved, too many intentions--legislators, thousands of jurors, district attorneys, etc..
• McCleskey? argues that he has empirical proof of discrimination, even if intent can't be discovered.
• Blackmun's Dissent: should look at acts of prosecutors. Also, look at history of Georgia capital sentencing process. Used to be facially discriminating statutes, racist comments on record, etc.. Current system builds on that history. Could be distinguished from Feeney or Clary in that historical link is much clearer.
• Problem is collective decision making to determine intent under equal protection standard.

• Very individualized treatment of racism--penalizes individual racist actors, rather than systemic racism.
• Leaves us with sense that intent is the overriding concern in equal protection claims.

Affirmative Action

• What about racial classification alone?
• First attempts at government assistance to erase racism was done by courts in remedial orders to desegregate schools.
• Simply erasing Jim Crow laws didn't, by itself, fix anything.
• In Brown doesn't talk just about categorization, but about actual practice of segregated education. Brown didn't simply say 'don't use a racial classification' but rather that the schools must integrate.
• Subsequently, executive branch adopted term affirmative action. Starts to say that employers receiving federal money need to take affirmative steps, under Title VI of the Civil Rights Act.
• First case where Supreme Court deals with constitutionality of affirmative action outside of context of continuing remedial order was Bakke (1978), dealing with admission to the University of Califorina Medical School.
• Bakke has no clear majority opinion.
  • Four justices argued that where Medical School uses race as a criteria, court should use intermediate scrutiny--something in between rational basis and strict scrutiny.
  • Intermediate scrutiny seems to resemble dormant commerce clause test--some sort of balancing test.
  • Four justices argued that policy violated Title VI of the Civil Rights Act, thus don't need to reach constitution.
  • Justice Powell wrote 'tie-breaker'--but was only person agreeing with himself. State can consider race as factor, but cannot use rigid numerical quotas.
  • No justice argued that law should be given 'rational basis' review.
• A few years later, Court reviewed Federal Minority Set Aside Program.
• Law was 'complete mess' when Croson was decided.

Friday, March 15, 2002 (Class 27) (Assignment 22)

• Next Week's Schedule
  • Monday, March 18, 2002: Assignment 25 (including problem), group 23
  • Wednesday, March 20, 2002: Assignment 26, group 5
  • Friday, March 22, 2002: Assignment 27, group 7

City of Richmond v. J.A. Croson Co.

[488 U.S. 469] 1989 United States Supreme Court (cb927)

• City of Richmond adopted Minority Business Utilization plan, which sets aside 30% of subcontracting for Minority Business Enterprises.
• Richmond statute was quite similar to statute upheld in Fullilove v. Klutznick, ostensibly Richmond City Council was trying to write statute that would be constitutional.
• Richmond argues case should not be treated with strict scrutiny because its intent is to remedy past forms of discrimination.
• Three different ways to think about intent:
  • 'Race on the mind'
  • To harm
  • To help
• Feeney seems to state that problem is harmful intent--did not find intent to harm women in veteran's statute.
• If harmful intent is benchmark of strict scrutiny, then Richmond's statute should not be subject to strict scrutiny.
• O'Connor calls for strict scrutiny, 'heightened review', of Richmond's statute, in section 3a. Officially four justices sign on to this section, but Scalia's concurrence seems to also support strict scrutiny standard.
• Why strict scrutiny?
  • Can't determine whether intent is benign or harmful without strict scrutiny. (could of course make the same argument for strict scrutiny in case of disparate impact).
  • Different from other racial classifications in that you can foresee, predictably, that disadvantage goes to whites.
  • Can't trust the legislature with respect to race issues, court must scrutinize these decisions, O'Connor seems to find basis in equal protection clause for judiciary's role.
• Marshall's dissent: reason to distrust legislature is when it acts in a certain way--when it follows historical patterns of discrimination.
• O'Connor: race is 'too hot to handle'. Will inevitably be stigmatizing, trigger animosity, in a way that other categorizations won't. Decontextualizing argument, doesn't try to bring into play historical circumstances of 14th amendment.
• Especially important to apply strict scrutiny when States taking racial action vs. congress--making this argument under 14th amendment since 14th amendment limits states, but mostly to distinguish Fullilove where nearly identical statute was upheld. Ironic in contrast to O'Connor in New York v. United States strongly advocating for states (saying federal government can't commandeer states).
• Kennedy's justification for strict scrutiny:
  • Strict scrutiny will operate in a manner consistent with imperative of race neutrality
• Once strict scrutiny is applied, what follows?
  • O'Connor allows for racial categorization when it 'remedies unconstitutional past discrimination by state actor'.
  • Social discrimination is not violation of constitution, cannot be remedied by state.
  • i.e., if court of law could have issued injunction with race-conscious remedy, then state can take that action without court order.
  • Needs to be prima facie case of constitutional violation.
• Not enough evidence that Richmond itself committed discrimination in contracting.
• Possibility that blacks are not chosing to become subcontractors.
• Are there are any race-neutral alternatives?
• Need to tie remedy quite tightly with unconstitutional act in the past.
• Almost sense that individual victims need to be compensated.

Metro Broadcasting v. FCC

[497 U.S. 547] 1990 United States Supreme Court (cb951)

• Justice Brennan's opinion holds federal government racial categories to intermediate scrut. No one is actually advocating for rational basis test for racial categories.
• Compare Brennan's argument to his discussion in Katzenbach v. Morgan--congress has extraordinary remedial power--implicitly overruled in City of Boerne v. Flores.

Adarand Constructors v. Pena

[515 U.S. 200] 1995 United States Supreme Court (c953)

• Federal subcontracting provision gave additional payment to prime contractors who use minority business enterprises for subcontracts. Suit brought under 5th amendment, reverse incorporation of 14th amendment equal protection.
• O'Connor: 'jot-for-jot' incorporation. 14th amendment equal protection should be same as 5th amendment.
• Congruence -- same application of equal protection. (similar to congruence in City of Boerne where section 5 must be proportional to section 1 of 14th amendment--congress' power is limited to power 1).
• Skepticism -- strict scrutiny. Race is always suspect.
• Consistency -- races must be treated the same. Biracial conception.
• When race-based action is necessary to further compelling interest, can still be constitutional if it is narrowly tailored. Wants to challenge notion that strict scrutiny is fatal.
• Dissent is willing to admit that racial-based classifications can survive strict scrutiny, thus could find 'majority holding' that strict scrutiny is not fatal.
• Thomas' concurrence: all government classifications based on race are paternalistic. Inherently stigmatizing.
• Should judiciary be discussing whether affirmative action is stigmatizing or helpful?

On Monday, start with questions:

• Look at Boerne and Morrison, then look at Adarand, ask:
  • Is there anything congress can do under section 5?
  • What happens when congress tries to provide remedy for suspect vs. non-suspect class?
  • Race neutral remedies and Washington v. Davis--can a State or Federal Government see a problem and intend to use a race-neutral remedy?

Monday, March 18, 2002 (Class 28) (Assignment 25)

• What can Congress do under Section 5 of 14th amendment?
• Adarand congruence rule: same restrictions apply to States and Federal government.
• But Section 5 gives congress the power to remedy violations of Section 1.
• If State passes 'doughnut-maker protection act', Court will apply Rational Basis test--Williamson v. Lee Optical, Carolene Products. Statute would probably pass constitutional muster in this case.
• Congress could not pass such a law under Section 5 of 14th amendment--Congress is limited to passing laws that remedy acts that would have been unconstitutional--City of Boerne and United States v. Morrison.
• If Congress acts to remedy non-suspect category, cannot show that it is remedying past violation of section 1, but if it acts on suspect category (i.e., race) will be subject strict scrutiny.
• Combination of Boerne and Adarand extremely limiting to Congress' power.
• Little attention to originalism in affirmative action decisions. Hard to argue that framers intended to ban racial categories in legislation.
• Separation of powers issue: seems like now Supreme Court finds discrimination and then Congress has to (or can) remedy it.

Hopwood v. State of Texas

[78 F.3d 932] 1996 5th Circuit Court of Appeals (cb973)

• Review of Texas Law School's affirmative action program that made it easier for African-Americans and Mexican-Americans to gain admission.
• By the time case gets to Court, school has changed system, although still applies ethnic/race-conscious system.
• School argues that Croson doesn't apply, because this is more about valuing diversity. Croson is only justified by remediation, not by the claim that the product will be different.
• Bakke suggests that diversity was a compelling interest. 5th Circuit found that diversity is not a compelling interest. Courts are split on the issue--11th circuit has agreed with 5th circuit. Eastern District of Michigan is split amongst itself.
• Courts still apply strict scrutiny to educational affirmative action programs, but may differ on whether measures pass scrutiny.
• Court's rationale for striking down rule: Texas Law School system doesn't actually help people who were discriminated against--they are all old now.
• Implication that non-racial rules with similar effects are still constitutional. I.e., Boston Latin limiting private school admissions.
• Race neutral remedies, however, seem to conflict with Washington v. Davis doctrine that invidious discrimination is still unconstitutional.

Review Problem III

• Majority population of kids in schools are minorites. Majority of faculty is white. Mayor proposes new ordination that 50% of new faculty hires will be reserved for graduates of schools with appropriate credentials, set to expire when 50% of faculty are graduates of school system.
• First question: is there State Action?
  • Yes, assume there is because City is State Actor for 14th amendment.
• Is there a facial racial classification?
  • No, appears to be facially neutral as to race.
• Is there a disparate impact?
• Is there a racial intent?
  • If not, then subject rule to rational basis test.
  • Who is actor? Whose intent do we look at?
  • Chair of local branch of Rainbow Coalition may not be part of actor's intent, but who she influences might. What if politicians respond out of fear--is that impermissible?
  • Is measure being taken because of or in spite of racial effect?
  • What is racial intent? Is intent equivalent to intentionally harmful or also desire to help?
  • Feeney seems to have concept of malevolence. Croson seems to say that race-neutral policies might be permissible even if it effects race-conscious ends. Adarand, however, suggests no racial intent is permissible.
• Plaintiff will have burden of showing racial intent, since result is disparate impact.
• Assuming racial intent is proved, then subject rule to strict scrutiny. What do you get under strict scrutiny and rational basis analysis?

First 15 minutes on Wednesday on Problem III, then will cover move to gender.

Preparation for Wednesday, March 19, 2002 Class (not in class notes)

Myra Bradwell Case

(cb330-332)

• Bradwell challenging Illinois law prohibiting women from practicing law.
• Bradwell argues right to labor fundamental to pursuit of happiness, analogized between race and gender.
• Court finds no link between citizenship and right to practice law, thus no privileges and immunities.
• Slaughterhouse Cases: license to practice law is State power, not transferred to federal government.
• Bradley/Swayne?/Field? concurrence: natural law-type explanation, women have duty to family, natural proclivity.
• 'Separate Spheres' ideology of late 19th century, obligations of each sex.

Frontiero v. Richardson

[441 U.S. 677] 1973 United States Supreme Court (cb988)

• 8-1 Decision:
  • Majority opinion, drafted by Brennan, joined by Douglas, White, Marshall.
  • Concurrence in judgment: Stewart.
  • Concurrence: Powell, joined by Burger, Blackmun.
  • Dissent: Rehnquist.
• Military benefits allow wife to be dependant regardless; husband is only dependent if it is proved.
• 5th amendment procedural due process claim: female is required to demonstrate dependency while male is not.
• Substantive claim: similarly situated female doesn't get same benefits.
• No legislative record. But District Court seems to apply rational basis test; since 99% of uniformed service is male and wives are usually dependent, maybe wanted to save administrative expense and manpower by only making females prove dependency.
• But why not look at possibility of removing requirement for women?
• Court agrees that sex classifications should be subject to 'close judicial scrutiny'.
  • Cites Reed v. Reed for support of scrutiny: Idaho statute provided that males would get preference to be appointed estate administrator. Violated the Equal Protection Clause of 14th amendment.
  • Rational basis argument: reasonable to reduce workload on courts. Men are more conversant with business. Idaho legislature might have reasonably concluded that men are better qualified.
  • Court departed from 'traditional' rational-basis test, instead said that this sort of arbitrary legislative choice is forbidden by constitution.
  • Historical sexism, similar limitations to slavery, current lack of female representation in government.
  • Sex is immutable and also bears no relation to individual ability; treats people as group rather than individuals.
  • Congressional intent to redress sexism--evidence of problem.
  • Thus, apply stricter scrutiny. Then--scheme is invalid.
• Applies sex as sole criteria, serves purpose of administrative convenience.
• Administrative convenience does not outweigh due process.
• Government's evidence as to cost-savings is not even very convincing to court.
• Powell's concurrence: decide on basis of Reed v. Reed, don't use strict scrutiny, particularly since ERA is up for amendment, issue should be decided 'democratically'.
• Rehnquist's Dissent: agrees with district court, seems to want rational basis test.
• Standard fluctuated until Craig v. Boren [429 U.S. 190] in 1976 where court adopted intermediate scrutiny: 'must serve important governmental objectives and must be substantially related to achievement of those objectives.'

• cb998-999 Text and History: 14th amendment framers intent was not to change status of married women, although did seem to benefit single women.
• cb999-1001 Reasoning from Race: Differences between racial and gender discrimination. Gender--role differentiation. Paternalistic rather than disdainful.
• cb1001 Sylvia Law: Only categorical sex-based difference is capacity to reproduce.
• cb1002-1003 Richard Wasserstrom: Gender is more central than race to identity, more complex in social signification, more invidious. People are willing to admit to sexism but not racism.
• cb1003-1005 John Ely: Discriminatory process is passed; hard to argue for substantive discrimination that is entwined in society because gender stereotypes are widely attacked and publicized.
• cb1005 Reva Siegel: Women's progress is (falsely) perceived as customary/consensual, not legal struggles liek civil rights.
• cb1005-1007 Catharine MacKinnon?: contradiction between 'equality' and 'difference' of sexes. Treating like cases alike may contribute to subordination, since it ignores differences. Argues for 'domination' analysis.

United States v. Virginia

[518 U.S. 515] 1996 United States Supreme Court (cb1025)

• 7-1 decision.
  • Majority Opinion, drafted by Ginsburg.
  • Thomas absent.
  • Concurrence in judgment: Rehnquist.
  • Dissent: Scalia.
• United States suing Commonwealth of Virginia and VMI, alleging violation of equal protection of 14th amendment by only admitting men.
• Ginsburg: I. VMI produces leaders; nothing inherently unsuitable to women.
• II.
  • A. 'Rat line' 'dyke system' 'adversative model' etc.. Women have no opportunity anywhere to gain benefits of system.
  • B. District Court: Although VMI could have 10% women, which would benefit program some, it would also eliminate 'diversity' of having single-sex schol, and force modifications in program. Court of Appeals: diversity must not just favor one gender. Virginia can: admit women; establish a parallel institution; or abandon state support.
  • C. VWIL at Mary Baldwin, different, task force found VMI model 'wholly inappropriate'
  • D. District Court approved plan, different means to same end. Court of Appeals affirmed.
• IV.
  • Gender categories must demonstrate "exceedingly persuasive justification." Burden is on state. Must serve important governmental objectives and be substantially related to achievement of objectives.
  • Since 1971 Reed v. Reed Court has recognized equal protection applies to gender.
  • Inherent differences do exist, but cannot be used to create or perpetuate inferiority.
  • Virginia has shown no exceedingly persuasive justification; remedy does not fix; therefore court reverses.
• V.
  • A. 'Diversity' explanation is pretextual--look to history of single-sex schooling. Also, how can one institution that does not effect others give effect to state policy of diversity?
  • B. Court does not belive Virginia's argument that drastic changes would be needed that would ruin VMI. Looks to history, again, to show skepticism. Also, education does not need to serve all women, just as it currently is not appropriate for all men. Must look at individuals, not broad generalizations of gender.
• VI.
  • A. VWIL response uses same stereotypes that Court complains of, thus is no remedy. Doesn't capture 'essential' elements of VMI.
  • B. VWIL does not confer benefits of VMI--alumni, prestige, etc.. Recalls Univerity of Texas' attempt to set up segregated Law School in Sweatt v. Painter [339 U.S. 629] (1950).
• VII.
  • Decision fits in with history of constitution in extending rights/protections to people previously ignored.
• Rehnquist's Concurrence
• I.
  • Doesn't like "exceedingly persuasive justification" -- was supposed to be description of test, not the test itself.
  • Court should not look to history before 14th amendment and before Equal Protection was applied to women. State should have opportunity to reconsider and come up with new justifications then.
  • Institution that received equal resources for women might be constitutional, even though it wouldn't have network of connections of VMI.
• II.
  • Constitutional violation is not exclusion of women but failure to provide comparable (or any) institution for women.
• Scalia's Dissent
• Objects to court's subverting democracy, counter-majoritarian 'elitist' tendencies. First Amendment allows for speech to change these issues.
• I.
  • Court has no basis for striking down time-honored practices; should not ratchet up equal rights values.
  • Change in military academies occurred because 'the people' wanted it
• II.
  • Accuses court of using strict scrutiny, says better test would be rational basis in keeping with Carolene Products, women are not "discrete and insular minority" nor is there problem with political process. Let voters change this if they want.
• III.
  • A. Explains why single sex school is substantially related to State's important educational interests.
  • Private institutions include four all-female and one all-male college, suggesting that private sector is helping for females. (??)
  • B. Changes would be substantial (??), also absence of analogue is irrelevant under Hogan.
• IV.
  • A. Strict scrutiny is now indistiguishable from intermediate scrutiny, decision is very broad.
  • B. Concern about private institutions losing charitable tax status.
  • 'Code of gentleman', melodramatic finish.

Mississippi University for Women v. Hogan

[458 U.S. 718] 1982 United States Supreme Court (cb1044)

• MUW all women's school, Joe Hogan was registered nurse without bachelor's degree, was denied admission by gender.
• Majority Opinion, O'Connor:
  • Exceedingly persuasive justification, important governmental objectives/substantially related, fixed notions are invalid. Must make sure statutory objective does not reflect archaic stereotypes.
  • State argues school is educational affirmative action.
  • No evidence of past discrimination in nursing, though.
  • Fact that men can audit reveals that presence of men is not adverse.
• Dissent, Powell joined by Rehnquist:
  • That male had to 'travel'--inconvenience--is not sufficient harm to justify overturning school.
  • Diversity of options, choice of single-sex school are important.
  • Not even this court wants strict scrutiny.
• Other dissents: Burger, Blackmun.

Vorcheimer v. School District of Philadelphia

[430 U.S. 703] 1977 United States Supreme Court (cb1048)

• Separate equal facilities did not violate constitution
• Dissent analogized to Plessy v. Ferguson.

Newberg v. Board of Public Education

[26 Pa. D. & C. 3rd 682] 1983 (cb1049)

• Second challenge to Philadelphia seperate sex schools--found policy to be unconstitutional because of unequal facilities.

Wednesday, March 20, 2002 (Class 29) (Assignments 25-26)

Review Problem #3 Continued

• Issue of whether or not you could establish the intent to discriminate on the basis of race sufficient to get to strict scrutiny.
• Statute is facially neutral on basis of race, potentially disparate impact.
• Some evidence that statute would be enacted with a race-conscious goal in mind.
• Once we figure out what intent means, still have to ask whose intent?
• If we determine there is sufficient racial intent to trigger strict scrutiny, how to analyze under strict scrutiny?
• What is compelling state purpose?
  • Remediation--count dissenting votes as well as majority who agrees with remediation, this could be compelling state purpose (not joined by Scalia or Thomas).
  • Diversity is generally not compelling state interest, unclear. Hopwood says no. Bakke said yes but Powell was only vote that believed that.
• Is education a compelling state interest?
• Could argue for remediation?
  • Need to show that city discriminated against these particular victims.
  • Remedy may not be good fit to problem because we are not now giving jobs to teachers to people who previously didn't get the jobs.
  • Not strong enough evidence of discrimination by schools. No court ruling showing discrimination. No evidence that past state action was unconstitutional.
  • Will be difficult to show past racial intent, might only be able to show disparate impact.
• May see current actor's intent in racial terms, while we don't see past disparate impact as motivated by racial intent.
• Other issue: problems under Commerce Clause and Privileges and Immunities Clause. Discriminates against residents of other states.
• Is this fundamental to interstate harmony? Look to Piper for horizontal federalism issued.

• Focus will now shift to gender. Analagous questions: What is discrimination? What is equal protection? What does constitution do about it?

Frontiero v. Richardson

[411 U.S. 677] 1973 United States Supreme Court (cb988)

• Federal Statute that gives automatic benefits to female partners of male soldiers but not vice-versa.
• What if court applies rational basis test?
  • District Court found rational basis for policy. Reasonable argument can be made that policy passes test since most soldiers are men, most of their partners are dependent, etc..
• Should we use heightened scrutiny test?
  • Reed struck down gender-discriminatory law, claiming it was applying a rational basis test but seeming to apply a higher standard.
  • Gender may be overbroad classification. But all classifications are overbroad.
• Could argue that women are political minorities even if they aren't 'actual' minorities, thus are not sufficiently represented in political process.
• John Ely argues that women have equal vote, they can change the situation if they want.
• Social inequality, however, could obstruct achievement of political equality.
• Maybe reason women haven't changed situation is they don't all want situation to change.

Will do VMI case on Friday.

• Next Week's Schedule
  • Monday, March 25, 2002: Review Problem 1, 9:30am Room 10
  • Monday, March 25, 2002: Assignment 28, Group 6
  • Wednesday, March 27, 2002: Assignment 29, Group 10
  • Friday, March 29, 2002: Assigmnet 30, Group 15
  • Con Law Review: Wednesday, March 27, 1-2pm in Moot Courtroom (Room 10). Review problem available today.

Frontiero v. Richardson

[441 U.S. 677] 1973 United States Supreme Court (cb988)

• Why protect gender if it is immutable?
• Many other characteristics are also immutable, but not protected.
• Should people experience discrimination over something they have no control over?
• On the other hand, because differences are immutable, differences are 'real', 'essential', and thus it is no irrational to treat different people differently.
• 14th amendment was clearly not written with gender discrimination in mind.
• Gender, like race, keeps appearing as categorization--this is what 14th amendment is about.
• Text of 14th amendment section 1 is gender neutral--section 2, on the other hand, explicitly mentions male citizens. Thus could conclude that section 1 was meant to apply to gender or at least to keep that possibility open.
• Powell's Concurrence: ERA is being considered by legislature. This could be considered politically more legitimate basis; could be less effective for gender rights in the long run for court to decide rather than democratic process.
• Ultimately, majority decides on standard in Craig v. Boren [429 U.S. 190] 1976 United States Supreme Court: intermediate scrutiny. Standard is 'important' rather than 'compelling'; and 'substantially related' rather than 'necessary' (or 'rationally' in rational basis test).

United States v. Virginia (the VMI Case)

[518 U.S. 515] 1996 United States Supreme Court (cb1025)

• Woman wants to enroll in VMI, which has been all male since 1830's. Denied along with 347 other inquiries from women seeking admission.
• Ginsburg's opinion: defendants need to show exceedingly persuasive justification. Puts burden on the state. Interesting since intermediate scrutiny could come down either way.
• Seems closer to strict scrutiny because of burden--burden is often outcome-determinative.
• Can't argue about 'diversity' of educational options: VMI was not set up to be diverse. This battle has already been lost with respect to University of Virginia which was all male.
• Rehnquist's Concurrence: wouldn't look back to original history of VMI; it's okay to come up with diversity reason after single-sex education becomes unconstitutional.
• Would allow separate facilities if they are more 'equal'--resources are too inequitable.
• Would it be okay if Virginia set up two entirely 'equal' but separate law schools for men and women?
• (see other notes above)

Personnel Administrator of Massachusetts v. Feeney

[442 U.S. 256] 1979 United States Supreme Court (cb1053)

• Why is Feeney disparate impact? Why isn't it an explicit gender classification?
  • If classification were 'people who liked to play with trucks as children', there might be some disparate impact but due to social discrimination rather than being due to legal discrimination, since membership in the male was restricted to males by law.

Geduldig v. Aiello

[417 U.S. 484] 1974 United States Supreme Court (cb1065)

• California excluded disabilities incident to normal pregnancies from insurance scheme.
• Court upheld scheme on 'rational basis' test, holding that this was just a disparate impact case, not a gender-based classification.
• Not all women are pregnant, not all women can be pregnant, thus this is not a gender-based classification.

Think about birth control v. Viagra insurance coverage for monday.

Monday, March 25, 2002 (Class 31) (Assignments 27-28)

• Geduldig held that pregnancy discrimination is not gender discrimination. Feeney: preference for veterans is not gender discrimination.
• Most gender discrimination cases are not decided by United States Supreme Court, most are lower court decisions, such as Hynson:

Hynson v. City of Chester Legal Department

[864 F.2d 1026] 1988 3rd Circuit Court of Appeals (cb1060)

• Decedent of victim of domestic violence claiming unconstitutional gender discrimination because police give less serious attention to domestic disputes as other sorts of crime.
• Court finds this is just 'disparate impact', thus not gender-based discrimination.
• No policy that uses gender-explicit term.

Michael M. v. Superior Court of Sonoma County

[450 U.S. 464] 1981 United States Supreme Court (cb1089)

• Challenge of California's statutory rape act, which only applies to males who have intercourse with underage females.
• Supreme Court of California found statute was discriminatory on the basis of gender, applied strict scrutiny, upheld conviction and statute.
• Supreme Court affirms California Supreme Court's judgment, but does not apply strict scrutiny standard.
• Rehnquist says 'apply rational basis with a sharper focus' not strict scrutiny, does not use 'exceedingy persuasive' language that majority used in VMI case.
• Discussion of intent comes very close to rational basis test. Not really concerned with whether a particular justification was the actual reason a legislature made a decision.
• In Geduldig, court found pregnancy wasn't equivalent with gender, thus statute was constitutional. In Michael M., statute referred explicitly to gender, but because gender is linked to capacity to become pregnant, it is thus legitimate for state to differentiate between men and women on this basis.
• Michael M. seems to be the opposite of Hynson: Hynson gender-neutral statute was not found unconstitutional even though victims were women; in Michael M. gender-explicit statute is supposed to protect women adn is found also constitutional.

Tuan Anh Nguyen v. INS

[121 S.Ct. 2053] 2001 United States Supreme Court (sp103)

• Nguyen's mother is Vietnamese, father is American. Arrested for sexual assault on minor, INS began deportation proceedings, claiming that Nguyen was not a citizen since statutory provision requires mother to be citizen if you are born outside of country. More requirements if father is US citizen but not mother, including establishing paternity before child turns 18.
• Statue includes explicit gender classification, court uses 'intermediate scrutiny' standard.
• Kennedy finds governmental interests are important and the means are substantially related to the achievement of those objectives.
• Scrutiny is weaker than VMI case; because women and men different with respect to childbirth, they can be treated differently.
• In VMI none of State of Virginia's arguments have to do with pregnancy, instead have to do with physiological gender differences.
• Gender neutral terms would be 'hollow' neutrality, would have same disparate impact. Neutral language can also mask discrimination. Somewhat at odds with Geduldig where language was not gender-specific but had gender disparate effect.
• Explicit gender classifications and disparate impact policies seem to be upheld when based on differences relating to ability to give birth; unlike race discrimination which would not be upheld even if based on 'physiological' differences.

• Birth Control vs. Viagra coverage issue
  • 'Hollow neutrality' argument from Kennedy's opinion in Nguyen.
• Equal protection law seems to get really caught up and has a lot of problems with gender issues--hard to find a 'baseline'
• 'Consistency' has almost always been applied with respect to gender; even Justices who routinely reject 'consistency' doctrine with respect to race still apply it to gender.

• Difficulty with 'reverse discrimination': sometimes hard to determine who is being hurt (e.g., Frontiero.)

Kahn v. Shevin

[416 U.S. 351] 1974 United States Supreme Court (cb1114)

• Challenging tax exemption for widows but not widowers.
• Court upheld statute because of women's traditional economic dependency on men.

Schlesinger v. Ballard

[416 U.S. 496] 1975 United States Supreme Court (cb1114)

• Challege of Navy practice which made it easier for women to stay in service without promotion than men.
• Court upheld classification against challenge saying it was directly related to outweighing disadvantages women have in Navy (can't participate in battle).
• Decided after Frontiero, where plurality endorsed heightened scrutiny.

Wednesday, March 27, 2002 (Class 32) (Assignments 28-29)

• Arguments for applying heightened scrutiny to cases where men are discriminated against
  • Same stereotypes may underly these cases, could continue to perpetuate these stereotypes and possibly stigmatize women.
• Hypothetical: fire department is overwhelming white men. Has two tests: written test which disproportionately disqualifies people of color, and physical strength test which disproportionately disqualifies women. Department decides to lower standars for people of color and women on respective tests, in order to diversify firefighting force.
• For racial classification, court would apply strict scrutiny.
• For gender classification, intermediate scrutiny. (same standard of review applied in Hogan as in VMI, even though gender being discriminated against is different in each).
• Strict scrutiny: would have to be compelling state interest to remedy past racial injustice committed by fire department (i.e., under Croson would have to be past constitutional violation). If there is no evidence of prior discrimination, hard to establish. Disparate impact will not be sufficient to justify race explicit remedy. Even if past discrimination is discovered, must be a 'tight fit' between remedy and violation.
• Intermediate scrutiny: must be important state interest. O'Connor in Hogan: in limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened. Does not actually have to be people who were disproportionately burdened--could be 'members of sex'. Suggests that past discrimination does not necessarily in and of itself have to be unconstitutional.
• Under intermediate scrutiny, could argue that past strength test discriminated against women.
• Thus, easier to justify affirmative action on gender than on race, emerging from consistency. Since racial minorities have been the most clearly disadvantaged historically, strict scrutiny applies, thus affirmative action is usually impermissible. Women, who have perhaps been less disadvantaged, are easier to benefit.
• Unclear whether diversity would ever consistute a compelling state interest for race.
• Advantages to consistency doctrine: more predictable, gives clear norms, appears to be less political.
• Both race and gender doctrines are problematic on issues of multi-racial and non-binary gender statuses.
• Other classifications that are included in heightened scrutiny: national origin, religion. Possible illegitimacy and alienage (for intermediate scrutiny). Note that alienage is very different from immigration issues.
• What about other classifications?

City of Cleburne, Texas v. Cleburne Living Center

[473 U.S. 432] 1985 United States Supreme Court (cb1119)

• CLC purchased group home for mentally retarded, City decides to require special use permit and then denies permit to CLC.
• 5th Circuit Circuit Court of Appeals reversed District Court, holding that mental retardation is a quasi-suspect classification, triggering intermediate scrutiny, which city could not pass.
• Justice White's opinion: mental retardation does not trigger heightened scrutiny. Says people who are mentally retarded 'really are different'. But--mentally retarded people's differences are immutable. In other cases, we have said that differential treatment should not be justified by differences people can't do anything about and which are not just social constructs. Flip side of immutability argument being used in this case.
• Legislature is addressing issues of mentally retarded, hence they are not 'discrete and insular minorities'--i.e., they're not politically powerless anymore, thus court doesn't need to protect them. But, again, this wouldn't be valid with other forms of discrimination: simply because Civil Rights Act was passed does not mean court no longer needs to apply strict scrutiny to racial discrimination.
• Marshall's dissent points out that in this case classification is actually disenfranchised--mentally retarded can't vote.
• Consistency -- if strict scrutiny were applied, then legislature would not have flexibility to pass legislation beneficial to mentally retarded people.
• White also argues that it is hard to figure out who is in the class and where to draw the lines, there is spectrum of disabilities. This doesn't seem to be a problem for race/gender issues, however.

Start on Friday with next question: if there is no heightened scrutiny, what does White do with case? Then move on to Garrett. Compare with Adarand.

Friday, March 29, 2002 (Class 33) (Assignments 29-30)

• Next week's schedule:
  • Monday, April 1, 2002: Assignment #31 Group #19
  • Wednesday, April 3, 2002: Assignment #32 Group #20
  • Friday, April 5, 2002: Assignment #33 (Casebook Only) Group #23

City of Cleburne, Texas v. Cleburne Living Center

[473 U.S. 432] 1985 United States Supreme Court (cb1119)

• Group home for mentally disabled people, denied zoning permit by city, although apparently any other similar use would have gotten permit.
• Court does not hold that mentally disabled people are suspect class, but says that zoning ordinance can be struck down on rational basis test.
• Two possible readings:
  • Court is taking first step towards 'semi-suspect' classification for mentally disabled people.
  • Rational basis test will act as 'rubber stamp' except where there might be animus--then rational basis test will be a little harder.
• Sense that legislature might be in better place to decide about these sorts of issues.

Board of Trustees of the University of Alabama v. Garrett

[531 U.S. 356] 2000 United States Supreme Court (sp45)

• Issue: can congress abrogate the 11th amendment with respect to Title I of the American with Disabilities Act?
• Congress cannot abrogate State's immunity under Commerce Clause; must be done under Section 5 of the 14th amendment.
• Plaintiffs have been discharged ostensibly because of their disabilites.
• Under Section 5: is legislation congruent and proportional to section 1? And does discrimination in question fall into section 1?
• Rehnquist holds that disabled people are not suspect class, only subject to rational basis review.
• ADA Title I: employers need to make reasonable accommodations to known disabilities.
• Really disparate impact case: if employer has several steps to entrance and no ramp. No discriminatory intent, just impact. Reasonable accommodations are thus remedying something which is not a constitutional violation.
• Under this interpretation, it may not make much of a difference if someone is in suspect classification status.
• Under Cleburne, argument for rational basis test is that sometimes legislature needs to have the leeway to make special provisions for disabled people, since they 'really' are different. In Garrett, doctrine is turned upside down to limit legislature from remedying the problem in the first place. I.e.: disabled people can't be suspect class, because then they would be subject to strict scrutiny, and legislature couldn't act to benefit them; however, since Congress is not acting under 14th amendment section 5, then they can't abrogate sovereign immunity of 11th amendment.
• How are reasonable accommodations similar to and different from affirmative action?
  • Reasonable accommodations generally act on individual-by-individual basis, whereas affirmative action is entire program. On the other hand, reasonable accommodations can be system-wide, i.e., MBTA accessibility.
  • Reasonable accommodations generally not perceived as 'zero sum game' the ay affirmative action is--i.e., doesn't always seem to 'hurt' the majority as much.
• On the other hand, hard to bring reverse discrimination cases under ADA, since only rational basis test will be applied.
• Thus: group that 14th amendment was most designed to protect (racial minorities) is the hardest to legislate remedies for.

Equal Protection for Other Classifications: Sexual Orientation

• Arguments for and against sexual orientation as suspect classification:
  • History of discrimination
  • May be immutable--but not as obvious as gender or race. But immutability can work both ways--could mean people really are different.
  • Sexual orientation, like gender, may not be useful proxy for anything, thus never rational to discriminate.
  • Could be rational to distinguish between homosexuals and heterosexual, since they choose to act differently.
  • Issue of status vs. conduct.
  • Court likes to elevate classifications that it believes are dichotomous: to the extent that we believe there is a spectrum of sexual orientation, may not fit into suspect classifications.
  • Are gays and lesbians discrete and insular minorities?
  • Argument for sexual orientation being classified with gender. See Baehr v. Lewin [852 P.2d 44] 1993 Hawaii Supreme Court (cb1313), interpreting Hawaii's constitution, which treats gender as suspect class, finding prohibition on gay marriage to be unconstitutional (later overturned by referendum).
  • If we let too many groups being suspect classification status, are we diminishing power of status?
  • Once a group becomes suspect classification, can no longer use affirmative action as well--consistency issue.
• In Romer, Court did not address this question as to whether sexual orientation should be suspect classification, instead uses rational basis. For Monday: since rational basis test was applied, why was amendment 2 found to be unconstitutional?

Monday, April 1, 2002 (Class 34) (Assignments 30-31)

Romer v. Evans

[116 S. Ct. 1620] 1996 United States Supreme Court (cb1259)

• Sexual orientation is not a suspect classification for the purposes of this case.
• Challenge to amendment to Colorado constitution which prohibited the state or local government from providing anti-discrimination protection to gays and lesbians. Cannot be challenged in Colorado, but supremacy clause allows challenging state constitution under federal constitution.
• Since sexual orientation is not suspect classification, Court would apply rational basis test to an equal protection claim on discrimination on basis of sexual orientation, thus giving great deference to legislature.
• If school denies hiring on basis of homosexuality, no equal protection claim under rational basis test.
• If people lobby for law prohibiting discrimination against gays, law ends up losing by one vote. No equal protection claim, though: hard to prove state action; still not suspect classification; can't show discriminatory intent on part of legislature.
• So what's different when State passes law preventing legislature from passing antidiscrimination law? Isn't this the same effect as the two hypotheticals above?
  • Much harder to make change when you need to change constitution. Hint of Carolene Products footnote 4--discreet and insular minority (although not suspect classification) is disadvantaged in political process.
• Is Romer inching us towards a higher level of scrutiny for sexual orientation discrimination?
• If there is a higher standard, when and why does it apply?
  • Because it deals with sexual orientation?
  • Because it deals with state constitution?
    • Perhaps linked to effect on democratic process--stops one group, as a group, from going to state house to lobby for legislation.
  • Animus issue--Kennedy can't see that there is not malicious intent, because it is so broad and such a high level of generality. Maybe if you pass laws whose only basis is animus, then that is irrational.
• Are we redefining rational to mean any reason except hatred? Without respect to class?
• On the other hand, if a state fails to pass legislation or fails to act, hard to believe that Court would invalidate result, even though it might still be motivated by animus.
• Constitutional amendment in question suggests that there is a 'sticky' classification--i.e., that it may be creating caste, and thus troubling.
• Unclear exactly what Romer means, under majority opinion.
• Scalia's dissent: Amendment is not discrimination, just puts groups on equal footing.
• Operates with baseline assumption of rational basis.
• Ten years earlier, Supreme Court upheld statute making homosexuality a crime in Bowers v. Hardwick, why can't amendment do less than criminalizing by removing barriers to discrimination?
• State could prohibit anti-discrimination measures being taken to protect illegal drug users, for example, why is that different?
• Perhaps court's opinion actually undermines Bowers--particularly if Scalia's dissent relies heavily on Bowers.
• Kulturkampf argument: there is a big social argument/debate going on, the court should not impose its values on popular will. Very similar to argument in VMI case. Profoundly anti-democratic'.
• What values need to be uniform across all states, and what can states decide by themselves?
• Issue of discrimination claims being 'diluted' by too many protected classifications. Would it be unconstitutional to add all sorts of protections, thereby diluting the suspect classifications?

• Under Carolene Products and Lee Optical, Court read equal protection against protecting against classification rather than protecting certain activities. When Bill of Rights was incorporated into 14th amendment, activities began to be protected. Illustrates how incorporation is form of substantive due process.

Skinner v. Oklahoma

[316 U.S. 535] 1942 United States Supreme Court (cb1133)

• State law mandating sterilizing for certain types of felons but not others, roughly along 'class' lines.
• Classification itself (white collar vs. other crimes) is not objectionable, but using this distinction for sterilization is irrational. Similar to Romer: not that you can never use classification, nor that the classification will usually be subject to scrutiny (like gender), but something about the activity (sterilization) which is unconstitutional.

Griswold v. Connecticut

[381 U.S. 479] 1965 United States Supreme Court (cb1134)

• Planned parenthood clinic in Connecticut, in violation of criminal statute that fined people for aiding in distributing birth control.
• Statute facially doesn't have any classification, only regulates conduct'.
• Could argue that women will be most effected by statute, since they are the ones who will get pregnant. Thus there is a disparate impact.
• Also disparate impact on the poor. Upper and middle class people would drive to New York to get contraception.
• Also discriminates against teenagers, who can't leave the state as easily.
• Douglas' (Majority) Opinion: Constitution does not need to spell out every protection people have. Reading the Constitution and especially the Bill of Rights, there is a general sense that Constitution protects privacy.
• Similar to Marbury v. Madison: altogether you get a 'picture' that judicial review makes sense. Federalism cases similar rely on 'flavor' of constitution--not actually in 10th amendment, but rather overall sense of constitution.

• For Wednesday, what other approaches could be used? How do you actually determine content in these approaches?

Wednesday, April 3, 2002 (Class 35) (Assignment 32)

Griswold v. Connecticut

[381 U.S. 479] 1965 United States Supreme Court (cb1134)

• Should there be any unenumerated rights? Should the Constitution be read as protecting the right of an individual to engage in activity that is not explicitly sanctioned in the Constitution?
• How do we interpret the constitution to determine the content of unenumerated rights?
• What are they unenumerated rights?
• In Griswold v. Connecticut, Justice Douglas reads the Constitution similarly to Justice Marshall in Marbury v. Madison--no explicit mention anywhere in the text, but some sort of overall sense from the way the document fits together in context, that suggests protection of privacy rights. Penumbral approach.
  • Allows for living or evolving Constitution.
  • Problems: engages in 'picking and choosing' from portions of text. Major federalism problems. Lots of leaps from 'quartering of soldiers' to 'use of contraceptives'.
• Goldberg's Concurrence: Relies on 9th amendment as a canon of interpretation. Often criticized for misinterpretting 9th amendment.
  • 9th amendment suggests that there are other rights not mentioned in he Constitution. Used as canon of interpretation--reminds us not to read the bill of rights to imply exclusion of other rights.
  • Federalism problem here, too, because 9th amendment was not intended to be used against the States. Acts as a 'contra-Carolene Products footnote 4' argument.
  • Unenumerated rights that are fundamental to our traditional/collective conscience should be protected.
• Harlan's Concurrence (relying on dissent in earlier review of this statue): 14th amendment substantive due process. Let's not pretend this has anything to do with 'quartering of soldiers', instead this is a case of applying 14th amendment against the states.
  • No 'magic formula' for determining due process, court has to struggle it out to figure out substantive due process.
• Black, Stewar Dissent: Claims court is Lochnerizing. Doesn't matter which approach you use, what you're really doing is substituting judiciary's judgment for that of the people.
  • Where Constitution is not clear, decision should be left to politics.
• Penumbral approach seems best suited for capturing idea of individual autonomy--recall Brandeis' opinion in Whitney: free speech is not just political right, but also part of individual right to self-expression.
• Cultural norms were changing--why not just let norms work themselves out in politics? 48 states allowed birth control, other two would probably follow. Connecticut wasn't enforcing this law, except against Planned Parenthood.
• Underlying church and state issue, but no one made establishment clause argument. Is political acceptance of moral teaching by the church impermissible because of church and state separation?
• Catholic Church's strength in Massachusetts, for example, might be reason we don't have capital punishment--so is this violation of establishment clause?
• When asking, why is it fundamental, we may need to ask, what is it?
  • Decision to procreate
  • Right to be left alone in the bedroom
  • Doctor/Patient? Relationship
  • Marriage Relationship

Eisenstadt v. Baird

[405 U.S. 438] 1972 United States Supreme Court (cb1145)

• In case you thought Griswold was about marriage (as suggested by the text of the opinion), in this case Boston University was distributing contraception but not only to married couples.
• Planned Parenthood won--Griswold is now applied to unmarried people as well.
• Griswold wasn't about marriages, it was about individuals. Can't treat married people differently from unmarried people.
• Unmarried people, however, are not suspect classification.
• Similar to Romer in that Court is using Equal Protection, without finding suspect classification. Denying access to fundamental right to one group and giving it to another group. Of course, court imposed the access to the fundamental right to begin with.
• Similar to post-Brown cases, too, in that subsequent cases just applied precedent in Brown without having to re-explain it.

Village of Belle Terre v. Boraas

[416 U.S. 1] 1974 United States Supreme Court (cb1155)

• Six unrelated college students wanted to live in one-family dwelling, prohibited by local ordinance.
• Justice Douglas found there was no fundamental right to live in group dwelling arrangement, upheld ordinance.

Moore v. City of East Cleveland

[431 U.S. 494] 1977 United States Supreme Court (cb1156)

• In this case, grandmother was living with her grandson and nephew, but prohibited under local ordinance's definition of single family.
• Court struck down this ordinance. Preserving 'sancitity of family', even if it is broadening definition of family somewhat.
• Some discriminatory impact (although not mentioned in opinion): along wealth lines, race lines, and divorce status.
• Is the distinction between Moore and Belle Terre case of court itself defining family, part of what it is saying the state cannot do?

• Are fundamental rights 'fundamental' or are they really 'majoritarian'? Is the court only upholding the rights when only a few towns don't allow them?
• Should the court weigh the rationality of the ordinance against other interests? This certainly moves away from rational basis test. Looks more like Cleburne Living Center case--already heightened standard of review.
• Possible natural law explanation--is natural law part of tradition? Is it appropriate to use natural law? (see Dred Scott and Lochner.)

Friday, April 5, 2002 (Class 36) (Assignment 32)

• Next Week's Schedule
  • Monday, April 8, 2002: Research Problem #2 9:30am Room 10
  • Monday, April 8, 2002: Supplement for Assignment #33, Assignment for #34, Group #5
  • Wednesday, April 10, 2002: Supplement 139-150, Group #6
  • Thursday, April 11, 2002: Con. Law Review Session, 4:15-5:15pm Room 94
  • Friday, April 12, 2002: Assignment #35, Group #7

• Although Loving v. Virginia seemed to be about equal protection, Warren's opinion mentions marriage as fundamental right.
• How do we determined fundamental rights? Is the zoning ordinance in East Cleveland unconstitutional because it's out of line with other jurisdictions?
• Why shouldn't Virginia and East Cleveland be able to decide for themselves what is family?

Michael H. v. Gerald D.

[491 U.S. 110] 1989 United States Supreme Court (cb1157)

• Biological father suing for visitation rights with daughter who was result of extra-marital affair, which were denied by California Statute.
• Michael claims procedural due process, since he wasn't able to present evidence as to his paternity, and is being treated as if he is not the father.
• Scalia's response: California defines father differently--biological fathers are not fathers if child was born while woman is in marriage to someone else. Doesn't matter what evidence Michael presents.
• Second claim: deprivation of liberty without substantive due process under 5th amendment.
• Scalia allows for liberty to be defined beyond physical confinement, but Court must be very careful in extending definition.
• Looks to historical tradition to determine what things really constitute liberty.
• Harlan: tradition is something that 'move with the times' ws. Scalia's characterization which is more static.
• Scalia: resolution of different traditions should not be played out in court.
• Footnote f (joined only by Rehnquist): use narrowest possible interpretation of tradition--this is about rights of adulterous fathers, not about parental rights in general.
• Narrow interpretation, however, prevents juidiciary from addressing unjust exceptions to generally held traditional values.
• If we don't use the narrowest possible interpretation, then what do we use?
• Assumes one tradition, however. In multicultural society, however, whose tradition do we use?
• Brennan's Dissent, on the other hand, relies on case law. Seems to assume, almost implicitly, that Michael H. is in some sense a real father. Assumes that biology is incredibly important to analysis, not just legal definition.
• Why should court and not states decide these questions?

Roe v. Wade

[410 U.S. 113] 1973 United States Supreme Court (cb1172)

• Is there anything distinct about abortion?
• Once Griswold and Eisenstadt were decided, it was clear that abortion was going to come up in Court soon.
• Blackmun's opinion: Starts with very long history of abortion.
• Can't find tradition of right to abortion--under Scalia's conception, this would mean it is not a protected right. Blackmun uses it in the opposite way, however, to find that there is no tradition of prohibition on abortion.
• Looks at State's Rationale: State did not make moral argument. Argues that law was to protect fetuses, and protect the health of women.
• Question, then, is what is the standard we are going to apply?
• Relies on 14th amendment--goes with Harlan, not Douglas. Griswold talked about marriage and tradition, but what is basis in this decision?
• Looks at Doctor-Patient relationship. But why does health have to be essentialized?
• Problem in Roe that was not present in Griswold: here you have an already existing fetus; there is obviously biological difference between preventing conception and ending pregnancy, because now there is an 'interest' on 'the other side'.
• Fetuses have never been people in the history of the United States under 14th amendment--they were never counted in census, etc..
• But why is preventing abortion not compelling state interest just because fetuses have never been protected under 14th amendment?

Focus on Casey for Monday.

Monday, April 8, 2002 (Class 37) (Assignment 33)

• Research Paper 2 has been returned, available with Jan McNew?.
• Research Paper 3 due next Tuesday.

Roe v. Wade

(continued)

[410 U.S. 113] 1973 United States Supreme Court (cb1172)

• Is the right to have an abortion/decision to terminate protection a liberty protected by the due process clause?
• Even if it is, does the state have a compelling state interest to prohibit exercise of that right?
• Blackmun finds the right to have an abortion is a part of due process, relies on Griswold line of cases. Does not draw from history or tradition, but does show that history is not necessarily opposed to it.
• No detailed discussion of compelling state interest in abortion cases (unlike privacy, birth control cases).
• Maybe it doesn't matter what compelling state interest is, if strict scrutiny is fatal in fact. But jumps from finding protecting fetus is not compelling state interest in second trimester, but becomes compelling state interest in third trimester.
• Protecting woman's health is always compelling state interest, however, which allows state to regulate process in first two trimesters.
• Court may have seen trimester framework as a compromise that would settle the issue, but decision hardly had that effect.
• Like Brown v. Board of Education, was met by significant resistance from the States.
• Court responded to resistance by articulating right in broader, more emphatic terms, between 1973-1980.
• Decisions post-Roe continued to broaden abortion rights, perhaps started to turn around at Webster.
• One exception was that court always allowed minors to be treated differently.

Planned Parenthood of Southeastern Pennsylvania v. Casey

[505 U.S. 833] 1992 United States Supreme Court (cb1202)

• Provisions of Pennsylvania challenged:
  • Consent requirement for minors
  • Consent requirement for wife
  • Reporting requirements
  • 24 hour waiting period
  • Requirement to read materials, be informed of 'gestational age', etc..
• Focus on spousal consent and 24 hour waiting period, since they most significantly limit actual ability to get abortion.
• Stevens and Blackmun find 24 hour waiting period unconstitutional.
• O'Connor, Kennedy, Souter, Stevens and Blackmun find spousal consent unconstitutional.
• Rehnquist, Scalia, White, and Thomas find entire statute constitutional, essentially want to overrule Roe in toto. (Rehnquist and White were in dissent in Roe.)
• Only three justices write for modified Roe; four want to overrule Roe, yet joint opinion becomes doctrinal framework.
• Since Casey, Blackmun and White have retired; replaced by Ginsburg and Breyer, generally believed to be in support of upholding Roe.
• Joint Opinion
  • Abortion right arises out of due process clause of 14th amendment.
  • Job of the courts to exercise reasoned judgment. No formula to get answer.
  • Doesn't focus on doctor-patient relationship as in Roe, more concerned with 'woman's ability to choose her destiny'.
  • Can't separate Roe from other privacy cases such as Griswold, Eisenstadt, Carey.
  • Even if justices might not have voted in the same way as Roe court, stare decisis weighs heavily here.
    • Reliance on Roe is substantial.
    • Need to not change back and forth, would undermine court's legitimacy.
    • Nation needs to see court's consistency--odd to admit this, because it may in and of itself undermine court's legitimacy.
    • But, there are politics on both sides of issue--either way they may be seen as 'caving in' to political forces.
    • In the past, when the court overruled major doctrines, 'giving in' to political pressure, it was the right decision: West Coast Hotel (overruling Lochner), Brown v. Board (overruling Plessy).
    • Court reasons that in West Coast Hotel, Brown v. Board, situation was different--facts changed.
    • But, Lochner and Plessy are also famous for their dissents--these ideas were not unknown at the time they were decided. Also, did facts really change that much?
  • Despite stare decisis concerns, court does overrule part of Roe, and wholly overrules case like Akron. Why are some cases so big they can't be overruled, but others aren't? (they don't even really discuss Akron).
  • Court believes there is a core of Roe, which they will keep, even though they overrule the 'periphery'.
  • Core seems to be that woman has the right to have an abortion prior to viability.
  • State can regulate abortion, but cannot place an undue burden on woman's ability to decide to have an abortion. Throws out trimester framework.
  • Court proceeds to apply undue burden analysis to 24 hour waiting period:
    • Waiting period does not present undue burden.
    • Not so concerned with 'in the world' sociological burdens, rather is the state imposing legalistic undue burdens.
  • Analysis of spousal consent provision
    • Look at burden this places on battered women.
    • Even though most women inform their husbands, for those that don't the provision may present substantial obstacle.
  • Contrast between spousal consent and waiting period analysis: court has long history of examining gender discrimination but not class discrimination--which is where respective burdens are felt.
• Blackmun's Concurrence/Dissent?
  • Seeing issue in much more of a gender focus than in Roe
  • Equal protection focus
  • Criticized for being too 'personal', too 'emotional'
• Scalia's Dissent
  • Claims his is more about personal predilection than constitutional issues.
  • Not judiciary's role--should be decided by legislature.
  • By trying to make abortion less political, has in fact made it more political, has become 'litmus test' for Supreme Court justices.
  • Analogizes to Dred Scott: when Court steps in to constitutionalize controversial issues, actually makes it much worse.
  • Criticizes stare decisis component of joint opinion, seems to be 'new' version of stare decisis. Would go back to constitution rather than precedent in deciding this case.
  • Much more critical of joint opinion than of Stevens and Blackmun concurrence: at least Roe framework was not incoherent.
• In Brown, local governments eventually stopped trying to overtly undermine decision (about 15 years), but in Roe thirty years has not brought any reduction in resistance to ruling.
• Would politics of Roe be different if it had been decided under equal protection rather than substantive due process?

Stenberg v. Carhart

[530 U.S. 914] 2000 United States Supreme Court (cb132)

• Regulation prohibiting certain abortion procedure

For Wednesday: five minutes on Carhart:

• What insight does it give us on undue burden standard?
• Can state legislate for no other reason that it detests something?

Then move on to Bowers and Baker v. State. ---

Wednesday, April 10, 2002 (Class 38) (Assignment 34)

Stenberg v. Carhart

[530 U.S. 914] 2000 United States Supreme Court (sp132)

• Statute prohibiting 'partial birth abortion', contained no 'health exception'. Found unconstitutional, in part, because the woman's health may be harmed by having the choice of procedures limited. State had 'life' exception but no 'health' exception.
• Discussion as to whether deference should be given to legislative finding as to health and safety dimensions of procedure; if legislature finds procedure is not more safe, should doctors be able to contradict the legislature?
• Other problem: vagueness--difficult to determine permitted from prohibited procedure.
• What if state corrected vagueness problem and provided health exception for D & X procedure?
• Does the 'intent' of the legislature to limit abortion rights effect result?
• Is fundamental right to have abortion by method of one's own choice, or right to terminate the pregnancy?
• Three Different Rationales for Legislation
  • Paternalism (government acting in 'interest' of individuals it is regulating)
  • Good for Others (John Stuart Mills would say this is where the state can justify action) -- frequently paternalistic arguments are restated under this category
  • Morals (can also be converted into good for others).

Bowers v. Hardwick

[478 U.S. 186] 1986 United States Supreme Court (cb1243)

• Plaintiff and male companion violated Georgia sodomy statute.
• Question: is sodomy prohibition unconstitutional under due process clause of 14th amendment?
• Statute is facially neutral with respect to sexual orientation.
• Justice White narrows issue before the court, however, only to homosexual sodomy (defines issue by status).
• Justice White then shows the history of disapproval of homosexual conduct to suggest that it is not a fundamental right.
• Since this is not a fundamental right, in Justice White's view, he then subjects legislation only to a rational basis test.
• Finds that basis for law is that state finds activity to be immoral; if courts had to strike down all moral legislation, they would be very busy.

Friday, talk about Baker and Dale. Think about Dale not only as a 1st amendment case, but also as public accommodation/anti-discrimination laws as morals laws, and as fundamental rights as expressive rights.

Friday, April 12, 2002 (Class 39) (Assignments 34-35)

• Next Week's Schedule
  • Tuesday, April 16, 2002: Research Problem #3, Room 10
  • Wednesday, April 17, 2002: Assignment #36, Group #10
  • Friday, April 19, 2002: Assignment #37, Group #15

Bowers v. Hardwick

(continued)

[478 U.S. 186] 1986 United States Supreme Court (cb1243)

• In all of these opinions, court is deeply divided--keep this in mind in understanding rulings.
• View of substantive due process that equates fundamental rights with traditional morality.
• Rights that are fundamental seem to be the ones that people would generally have anyway, since they are 'traditional'.
• Could read Romer as saying that legislation motivated by antipathy is irrational.
• Reluctance to go 'too far' with substantive due process; court upholds Roe and Griswold, but don't want to venture into new areas.
• Access to political, civil rights in Romer is different from rights in this case.
• Bowers had effect of disabusing public interest lawyers of idea that progressive work couldn't necessarily be accomplished through the court system--sometimes you end up making 'bad law', as in this case.
• Also raised issues of which court you seek for public interest law--Bowers suggests gay/lesbian rights cases should not be brought before Supreme Court. Also, should you go to Court or Legislatures?

Baker v. State

[744 A.2d 864] 2000 Vermont Supreme Court (sp139)

• Same sex couples who had been together for many years, applied for marriage license from towns and were denied, sought declaratory judgment against state and town that refusal violated both state marriage laws and state constitution.
• Constitution includes 'common benefits' clause: all residents of Vermont are entitled to same benefits, etc., of the law.
• 'Common benefits' clause has some similarities to the equal protection clause, but it has some important differences.
• Issue in Moore and Belle Terre -- who defines what is a family.
• Court does not hold that people have fundamental right to marry--allows marriage to be defined by state legislature.
• Court finds unconstitutional that certain civil and political rights are denied to some individuals.
• Did not decide case on the basis of gender discrimination or sexual orientation discrimination.
• Doesn't have flavor of Griswold cases, which focus on fundamental rights or privacy--decision doesn't address one's 'fundamental right to choose one's partner', etc.. More about 'public rights'.
• Court finds 'status quo' unconstitutional, but doesn't actually mandate remedy, instead instructs legislature to deal with it.
• Under Court's interpretation, options left to legislature:
  • To expand marriage
  • To give benefits to same-sex couples as well
  • Get rid of all benefits of mariage
• Interactions between social movements, the courts, etc..; unclear whether this is a 'victory' or 'defeat' for movement.

• Although states can expand people's rights, what happens when some people's rights interfere with other people's rights?

Boy Scouts of America v. Dale

[530 U.S. 640] 2000 United States Supreme Court (sp145)

• New Jersey passed statutory expansion of rights, public accommodation law that prohibits discrimination on part of sexual orientation.
• Supreme Court held (5-4) that law could not be applied to Boy Scouts of America.
• Boy Scouts claim federal 1st amendment right that conflicts with New Jersey statute.
• Asymmetry of situation: Dale (expelled scout leader) has no constitutional right:
  • Boy Scouts are not state actor.
  • Sexual orientation is not a suspect classification.
• Rehnquist holds that right to associate also includes right to exclude.
• Why is exclusion 1st amendment right?
  • Boy scouts are expressive organization. By forcing Boy Scouts to allow Dale to be a member of the group, New Jersey is changing expression of organization.
• But does 'everything' fall under 1st amendment, then? Can someone's interest in marrying someone of their own gender be covered by their 1st amendment right to express their love in a certain way?

• Does 1st amendment become paradigm for issues of freedom and individual rights in this information age?

Wednesday, April 17, 2002 (Class 40) (Assignments 35)

In Re Quinlan

• First 'right to die' case, discussing whether family could remove life support from woman in irreversible coma.
• Many cases leading up to this, in State Courts, suggesting that right to privacy extended to some degree to being able to control medical care at the end of life.

Cruzan v. Director, Missouri Department of Health

[497 U.S. 261] 1990 United States Supreme Court (cb1326)

• Family wanted to remove feeding tube for woman in permanent vegetative state.
• Supreme Court held there would need to be clear and convincing evidence of woman's intentions before tube could be removed, affirming State Court decision.
• Rehnquist treated case as procedural due process. If there is a right to terminate treatment, it is a right of the individual, not of the family.
• O'Connor has been critical justice for substantive due process cases. In this case, she suggests that the state might be oliged to respect the wishes of the person expressed in living will.

Washington v. Glucksberg

[117 S. Ct. 2258] 1997 United States Supreme Court (cb1340)

• Challenge to Washington statute prohibiting aidig and abetting of suicides.
• Claim that statute violates due process clause of 14th amendment.
• Unanimous decision in judgment, but far from unanimous in decision.
• Rehnquist (opinion of the court)
  • Looks to history, as in Bowers and Michael H., finds no basis for suicide being legal.
  • Applies rational basis test, outlines many interests state has:
    • Interest in protecting life
    • Preventing improper suicide, etc..
  • Doesn't look at prior case law/precedent--just distinguishes Cruzan.
• Souter
  • Focuses on 'slippery slope' theory, hard to draw lines
• O'Connor
  • Agrees that there is no generalized right to commit suicide
  • Doesn't want to foreclose possibility that truly competent person could make this decision--maybe an individual has a right if there is uncontrollable pain--the state may not be able to insist upon one's bearing pain.
  • Ginsburg and Breyer concur with O'Connor.
• Stevens
  • 'No man is an island'. Suicide effects others.
  • Privacy is not pure libertarianism; but is not willing to unequivocally prohibit assisted suicide. Won't buy into Rehnquist's 'static approach'.
• Primary issue is current Oregon case:
  • Pre-emption issue. Drugs used for physician-assisted suicide prohibited by federal government.
  • 10th amendment challenge of Congress's ability to regulate this through commerce clause.
• Souter
  • Instead of a fundamental rights analysis, court should use a balancing test, as Harlan advocated in Poe'.
  • Finds State's interest outweighs individual's in this case, but in certain cases individual's interest could be stronger.
• If we are waiting for more legislatures to decide to allow physician assisted suicide before declaring it a Constitutional right, then what is the point of the Constitutional Right?

Vacco v. Quill

[521 U.S. 793] 1997 United States Supreme Court (cb1354)

• Equal protection companion case to Glucksberg.
• Claim that people who want lethal medication are not being treated equally to people who want to terminate treatment.
• No suspect classification here, however. Thus use rational basis test.
• Eisenstadt: Griswold says contraception is protected, thus heightened scrutiny, here suicide is not protected, thus no heightened scrutiny.
• Glucksberg becomes main opinion--since there is no due process protection, then no heightened scrutiny for equal protection.

• How to fundamental right effect distribution of goods or services? Up until now, fundamental rights have mostly been about right to be left alone. Are there fundamental rights to resources?

Voting Rights

• 15th amendment prohibits denial to voting on the basis of race.
• 19th amendment prohibits denial of voting on the basis of gender.
• 24th amendment prohibits poll tax for elections of federal officers.
• 26th amendment gives 18 years old right to vote.
• All of these amendments say right to vote shall not be abridged... But, is there a right to vote?

Harper v. Virginia Bd. of Elections

[383 U.S. 663] 1966 United States Supreme Court (cb1373)

• Virginia has poll tax for state elections. Not direct violation of 24th amendment, since that only applies to federal elections.
• Court finds tax unconstitutional, which charges people for right to vote.
• Does poll tax act as a wealth qualification?
  • Not an explicit facial wealth qualification, but has a clear disparate impact on wealth.
• Should wealth be a suspect classification?
• Court doesn't find voting to be such a fundamental right that it must always be present, but rather if voting is present at all, the distribution of franchise will be subject to strict scrutiny.
• Voting right is right to something not right to be left alone.

Bush v. Gore

(redux)

• Is there a right to vote for President?
  • No, no right to direct vote.
  • Does this follow from Harper?

Friday, April 19, 2002 (Class 41) (Assignment 36)

• Next Week:
  • Monday, April 22, 2002: (Assignment 38) (Group 19)
  • Wednesday, April 24, 2002: (Assignment 39) (Group 20)
  • Friday, April 26, 2002: Review Problem
• Wednesday, May 1, 2002 1:45pm: Review Session with Parmet (Room 97)

Bush v. Gore

(in light of equal protection)

• Does Bush v. Gore follow from Harper naturally?
• Court finds equal protection when there is a fundamental right and sort of a suspect classification.
• How does Bush v. Gore differ from Harper?
  • Both explicitly and implicitly in Harper, there were 'questionable classifications'. Although wealth is not actually a suspect classification', it is still 'troubling' (similar to Romer, where Court didn't find sexual orientation to be suspect, but still examined).
  • Justices in Bush v. Gore who supported the per curiam are ones who, in most cases, favor going back to history to determine fundamental rights, rather than looking at precedent. But Bush v. Gore does not look at historical nature of voting rights, i.e., don't use Michael H. approach.
  • Per curiam opinion also suggests that this ruling only applies to this case, suggesting that they may not be comfortable with this mode of fundamental rights interpretation.

• Is Government obligated to provide certain rights to people? Positive rights: rights to benefits, goods, and services vs. right to be left alone.

Shapiro v. Thompson

[394 U.S. 618] 1969 United States Supreme Court (cb1505)

• Invalidates statutory provisions which deny welfare to people who have not lived in state for at least one year
• Claim is brought under 5th amendment, since statute is in Washington, D.C., not subject to 14th amendment.
• Problem with Federal Claim: Congress has plenary power over interstate commerce (Privileges and Immunities deals with States).
• Court does not hold that there is a right to welfare.
• How does durational residency requirement violate a right to travel? If D.C. had no welfare system, this would also discourage people from moving to D.C., but would not be unconstitutional.
• Hard to identify doctrine exactly, seems to be something like:
  • Equal protection when you have a fundamental right (which is some 'important thing' (welfare) and 'travel') and a 'sort of suspect classification' (poverty).)
• Unlike California v. Edwards, D.C. did not erect a barrier around the City. Can only be seen as a barrier if you believe that welfare is so important that it deters travel.
• Of course there are many other barriers to travel which are not unconstitutional.
• If this were just about right to travel, why deal with equal protection at all?
• Methodology is very different from substantive due process cases, doesn't ask whether right to travel is historical based right.
• Somehow 'denial of welfare' is like 'penalty for traveling' or 'border tax'.

• Shapiro followed by similar cases, e.g., Memorial Hospital v. Maricopa County. Arizona was only state in the union that didn't participate in medicare, court found Arizona's refusal to pay for indigent medical care violated right to travel.
• Doctrine does not explain, however, what is the 'important thing' that might be protected. Why welfare and health care, but not education and housing?
• Might deter states from experimenting to find the best solution (policy argument).
• Might 'semi-suspect classification' end up worse off because states will only want to provide the minimum support so they don't have to provide it for others.
• Might Court be Lochnerizing?
  • Justices spent first part of their career criticizing substantive due process, which was used previously to undermine social welfare legislation.

Saenz v. Roe

[526 U.S. 489] 1999 United States Supreme Court (cb1518)

• Stevens goes beyond 'right to travel' but focuses more on 'right to be treated equally'.
• Uses privileges and immunities clause of 14th amendment, reconceptualizes Shapiro.
• Fundamental Rights (rights to travel)
  • Implicit in federalism: right to enter and leave a state
  • Rights of privileges of home state when you are in another state (Article 4, Piper v. New Hampshire)
• Shapiro problem persists: when is something 'important' enough to be protected? What are the things the state can differentiate about?

San Antonio School Independent School District v. Rodriguez

[411 U.S. 1] 1973 United States Supreme Court (cb1543)

• Local school system funded based on property taxes. District that had less valuable land was thus getting much less funding, district claimed this violated Equal Protection.
• Is this discrimination on the basis of wealth?
  • Even if wealth were a suspect classification, this isn't a classification on the basis of wealth (according to Powell).
  • Based on real property assessments: there may be poor people living in communities with high property values and vice-versa.
  • Wealth is not a suspect classification anyway.
• Is there a Fundamental Right being infringed upon in an unequal way?
  • Education, like voting, is preservative of other rights--Brown v. Board.
  • Justice Powell holds that, just because it is 'important' doesn't necessarily means it's 'fundamental'. It must be implicit or explicit in Constitution.
• Powell is essentially declaring end of Warren Court Era. There will be no more 'new' rights. Education is not fundamental right.
• Distinction with Michael H.:
  • Look to history when trying to determine meaning of due process clause--Michael H. was about due process clause, not about equal protection.
• Equal Protection Clause will not be used to create 'new' rights; if you want to find a 'new' right, argue it under due process clause, and show how it is rooted in history.

Plyler v. Doe

[457 U.S. 202] 1982 United States Supreme Court (cb1560)

• Given Rodriguez what is Texas doing in Plyler?
• State law denied education to illegal aliens.
• Court will not hold illegal aliens to be suspect classification.
• Education is not a fundamental right.
• Brennan uses rational basis test, but says State needs to show that it is furthering some substantial state interest.
• Holds that statute is irrational, thus unconstitutional.
• Something about 'complete deprivation of education', which seems to trouble the Court more than in Rodriguez.
• Sounds more like rational basis with teeth.

Monday, April 22, 2002 (Class 42) (Assignment 37)

• Review Sessions
  • Tuesday, Room 203, 4:15pm-5:15pm
    • Same problem as last Thursday, re: Cigarette Law
  • Thursday, Room 94, 4:15pm-5:15pm
    • Problem, re: Startford state University

• Plyer: although educational is not a fundamental right, it's not necessarily altogether rational to deprive someone of an education. Majority is not comfortable with absolute deprivation of education.

DeShaney? v. Winnebago County Department of Social Services

[489 U.S. 189] 1989 United States Supreme Court (cb1384)

• Thus far: when government creates a benefit, how do we determine the allocation of that good under equal protection clause?
• DeShaney? raises question under due process clause.
• Joshua DeShaney? was abused by his father, taken out of custody of father temporarily but returned to father for lack of cause for permanent removal.
• Caseworker suspected abuse but did nothing, eventually Joshua is severely disabled for life.
• Mother, plaintiff, suing DSS on theory that Joshua was deprived of 14th amendment right to liberty, fundamental right to live as a health, intact person, by allowing abuse to go on.
• If this were equal protection clause claim, would be: DSS allocates services, has misallocated services by denying Joshua sufficient services.
  • Under Rodriguez, would have to show that Joshua was member of suspect classification, and then discriminatory intent, for heightened scrutiny.
  • If no suspect classification, have to show that Fundamental Right implicit or explicit in Constitution.
  • Rodriguez puts burden back on due process clause to find implicit Fundamental Right--has there been a substantive due process violation?
• Rehnquist finds no due process clause violation:
  • Due process is about limiting government, not compelling government to act.
  • No Michael H. analysis, because question is not about whether bodily integrity or right not to be beaten is fundamental right, because people only have right to protection from Government, not from other individuals. No fundamental right to have government intervene between son and father.
• Case is very intimately connected with State Action--Joshua's mother could not sue father under due process clause.
• Brennan's Dissent: DSS created laws which gave father dominion over child and established DSS as sole protector. There is positive causal action by the state.
• Shelley v. Kraemer (1948) court sees state action implicit in private action.
• Rehnquist doesn't hold that mother has no cause of action, just no Constitutional Claim (may have a tort).
• Idea of state of nature--that Joshua's father's dominion over Joshua is 'natural'. Even though there wa s disputed custody and the state actually granted the father custody.
• Blackmun's Dissent
  • Widely criticized for being too emotional, for appealing to empathy to Joshua.
  • Antebellum analogy: court is not realizing justice, as it refused to find rights for slaves.

Maher v. Roe

[432 U.S. 464] 1977 United States Supreme Court (cb1526)

• No right to care and protection of the State. But we live in world with no 'state of nature' or black-and-white 'default' circumstances.
• Complex interplay between government services provided and rights recognized in Constitution.
• Connecticut Welfare Department limits Medicaid benefits to medically necessary first trimester abortion. DSS must authorize abortion before it is covered.
• Harris v. McRae?: federal prohibition on funding abortions except where life of mother is in danger, rape, incest.
• Plaintiffs claim equal protection for both abortion and child birth; fundamental right to abortion.
• Rodriguez said fundamental rights are those that are explicit or implicit in Constitution.
• Like Harper, claim is that this is an unequal allocation of a fundamental right to have an abortion.
• Powell (Court) Opinion:
  • State doesn't erect barrier that isn't there already.
  • In DeShaney?, Court says there is no fundamental right to protection.
  • Fundamental right is not to have an abortion but for the state not to deprive you of right to have abortion.
  • Woman's inability to pay for abortion is not state action.
  • Now need to ask 'what does it mean to have fundamental right deprived '?
  • State can require that person get abortion from licensed practioner, make abortion very expensive, and then refuse to subsidize.
  • Highly formalistic line between inaction and action.
• Fundamental Rights line of cases has stark libertarian--negative constitution overtone.

Procedural Due Process

• Historically, wealth was held in real property. Caulder v. Bull, Dred Scott: Court found it was a violation of substantive due process to take away liberty. Real property can't be taken without due process of law.
• Charles Reich observed in 1960's: one's wealth is no longer held in real property. Lots of other stuff is source of wealth other than real property.
• Framers believed that independent financial means = independent political rights. Protections of property are protections of political independence going back to magna carta.
• King can seize my property, but I need to have procedure to make sure deprivation of property (substantive rule) is correctly applied.
• Reich argued new sources of wealth needs to be treated like old sources of wealth for procedural due process purposes.

• Start on Wednesday by looking at Supreme Court's understanding of Procedural Due Process.
• What good is Procedural Due Process without Substantive Due Process? What is the relationship between the two?

Wednesday, April 24, 2002 (Class 43) (Assignments 38-39)

• State of nature as hypothetical construct. Problem: we have tendency to think what is traditional and commonplace is natural.
• We tend not to think, for example, that it is the law that gives father custody of his son. Holmes' dissent in Lochner points out this problem.
• West Coast Hotel: state of affairs between employers and employees is not necessarily 'natural'--state gives employers powers over employees, thus minimum wages are not necessarily disrupting state of nature.
• Doughnut a day act: everyone gets a doughnut every day.
  • Advantages some people, disadvantages other
  • Standard of review for this act: rational basis.
  • If you don't like the act, exercise your political rights to fix it.
• What if we now want to abolish the act?
  • Again, rational basis review--Carolene Products.
• If legislature says only member of certain groups gets donuts, and group is discrete and insular minority (racial, religious, ethnic) then general presumption of constitutionality may not be warranted (Justice Stone, Footnote 4).
  • Suspect classification line, certain groups warrant heightened protection.
• What if everyone gets doughnuts, except one person?
  • Procedural due process: the application of law to the individual.
  • Problematic, because in some sense person has no right to doughnut at all--law can be abolished.
  • On the other hand, in footnote 4 terms, if 'catholics' are minority, then lone individual is also 'minority'.
  • What Goldberg v. Kelly attempted to do, building on Charles Reich's insight, is to suggest: even when we're talking about doughnuts, then procedural due process may still apply.

Goldberg v. Kelly

[397 U.S. 254] 1970 United States Supreme Court (cb1400)

• Brennan didn't deal with question of whether welfare was rational, but held that there needs to be some process before welfare is taken away from the individual.
• Footnote: it may be realistic to regard welfare entitlements more like 'property' than 'gratuity'.
• Justice Black's Dissent:
  • Government chose to give away benefit and recipients. Didn't have to create benefit.
• Issue may not be deference to the legislature, but rather about deference to caseworker.
  • Not about substantive due process, rather about making sure the law is being properly applied. Coming from common law tradition of application of law to particular individuals.
• Two problems that procedural due process raises:
  • How much procedure is due?
  • Which benefits are protected?

Matthews v. Eldridge

[424 U.S. 319] 1976 United States Supreme Court (cb1406)

• Determinations of social security/disability benefits. How to determine what process is due for this benefit? No one denies that some process is required.
• How important is benefit?
  • Court asserts that disability benefits are not as important as welfare benefits.
• Next question: what is potential that caseworker will be wrong?
  • Court holds that it is less likely that caseworker will make mistake.
• What is the cost of additional process?

• In series of cases in 1970's, court attempted to define which things would receive procedural due process.

Board of Regents v. Roth

[408 U.S. 564] 1972 United States Supreme Court (cb1409)

• Roth had one year contract with public university, contract was not renewed after one year, sued to require reasons for non-renewal and opportunity for hearing.
• No fundamental right to be state university professor, so how do you decide if process is due?
• Stewart holds that there needs to be 'justifiable claim of entitlement'--deviates from Goldberg.
• Thus, look to state law to see if it gives person mandatory claim of entitlement.
• I.e., what is property? That which is defined by state law as entitlement.
• Under this standard, don't ask if thing is important, just ask if it's entitlement.
• If positive law gives you an entitlement, then you have a right to procedural due process in the application of that entitlement.
• Does not look to constitution for source of procedural due process/property rights.
• 'Life, liberty, or property' from the text. These are protecting by 5th amendment, can ask what framers thought property was.
• Distinction is between property protected by Constitution vs. property protected by good graces of legislature.

• What is liberty?
  • Quoting Myers: Liberty is 'liberties protected by Constitution'.
  • 1st amendment rights, etc..
  • Sometimes used in colloquial sense--fundamental right of movement.

• If the right to property is solely dependent on legislative determination, could the legislature give the right in such a way as to alter or change the process right?
• I.e., can statute define entitlement contingent on a process? 'Do you have to take bitter with the sweet?'

Cleveland Board of Education v. Loudermill

[470 U.S. 532] 1985 United States Supreme Court (cb1412)

• Only give deference to legislative determinations of entitlement, not to legislative determinations of process
• Otherwise there is no role for judicial review of process

• Last question to deal with on Friday: what if entitlement is tied to some liberty interest? I.e., you only get doughnut if you don't read Catcher in the Rye.
• Look at Regan, FCC, Review Problem...

Friday, April 26, 2002 (Class 44) (Assignment 39)

• Review Problems
  • Not a substitute for doing problems on your own
  • Process of putting materials together on your own is best review
  • Dale and Raquel will be doing Question #3, Parmet will be reviewing Question #4 (and then #2).
• Research Problem #3 should be available for pick-up on Monday from Jan McNew?.

• Constitutional law is not so much a set of rules but a conversation, set of questions and way of talking about things.
• How do interpret our basic rules?
• Who interprets our rules? Who has power to make decisions?
• Relationships: individuals and government, federal and state governments, groups of people and government, branches of government.

• Individuals and the State under the 14th amendment
• 14th amendment is most clearly read as 'charter of negative liberty'; 'right to be left alone in the state of nature'.
• Although there might not be fundamental right to something, if something is given in a discriminatory basis, may be subject to strict scrutiny.
• If the government gets into business of statutory entitlement, then process applies. The Constitution says that some process may be given with respect to deprivation of right, because entitlement becomes property under 5th/14th amendment. Property does not come from state of nature but is defined by law.

• Today, question when 'carrots and sticks' come together.
• What good are procedural protections, if government can substantively control access to fundamental rights with entitlements?
• Myer and Roe: government isn't taking away your right to have abortion, just not granting benefit that it has no duty to grant. Question of what is 'baseline' entitlement.

• What about 1st amendment rights vis-a-vis legislative entitlements?
• Willingness on part of Supreme Court to limit government when it comes to 1st amendment.
• In some sense, 1st amendment is epitome of negative right, in other sense, epitome of political right.

Regan v. Taxation With Representation of Washington

[461 U.S. 540] 1983 United States Supreme Court (cb1450)

• Question of 501(c)(3) status--goal of many non-profits (allows them to be tax-exempt and for donations to be tax-deductible).
• Government could eliminate 501(c)(3) status entirely; no fundamental right to not be taxed.
• If Government said 'if you lobby, you will be fined', would be struck down as unconstitutional under 1st amendment.
• Congress forbids 501(c)(3) organizations from lobbying.
• Equal Protection Argument: some organizations can lobby, some can't. E.g., veterans organizations.
  • Rehnquist holds that government can choose who is exempt and who is not; no protected class here, no content regulations on lobbying.
• 1st amendment argument: government is 'buying away' free speech rights.
  • No state of nature right to tax-exemption
  • Not that onerous a condition--can create two affiliated corporate entities, one that lobbies and one that doesn't.
• Depends on whether we see this as an additional benefit not being conferred or a coercive penalty.

• What if government conditioned federally subsidized loans on not criticizing government?
• No fundamental right to education, no education in state of nature.

FCC v. League of Women Voters of California

[468 U.S. 364] 1984 United States Supreme Court (cb1452)

• Government threatens to withhold money if Pacifica station editorializes.
• How does this differ from federal loan condition above?
  • Public Radio station can only exist if publicly funded, thus this completely shuts down station. Education can still occur absent federal loans, in state of nature.
• Government is 'buying a lot more silence' than money they're giving--i.e., can silence station entirely, when it editorializes occasionally.

Rust v. Sullivan

[111 S. Ct. 1759] 1991 United States Supreme Court (cb1457)

• Title X of Public Health Services Act provides funding to family planning services, but forbids recipients to mention abortion as option.
• First claim: undue burden on abortion (Casey).
  • Response: No fundamental right to be given abortion, rather right is to have state interfere with abortion. (Myer v. Roe, Harris v. McRae?).
• Second: infringes on 1st amendment rights. Act allows clinic to talk about anything except abortion.
  • Rehnquist holds that government is not denying free speech but insuring that government funds are being used what they are allocated for.
• Doctor or nurse still has right to do what they want, to talk about abortion. Clinic can separate itself into two entities, one of which can talk about abortion.
• If person wins grant to do scientific research on human genome and instead uses money to do exegesis on legal case, government could take money away since that is not what they were funding.
• On the other hand, this could lead to all fundamental rights being 'bought away'.

Legal Services Corporation v. Velazquez

[531 U.S. 533] 2001 United States Supreme Court (sp151)

• Statute prohibited legal services that received government money from bringing constitutional challenges to welfare regulations.
• Right to counsel is just fundamental negative right--government can't stop you from getting counsel.
• Court holds that speech is 'speech of the client' here, thus restriction constitutes unconstitutional restriction on speech.
• But how is this different from doctor-patient relationship?
• Might this be different from abortion because it is about litigation and access to courts--balance of powers issue. Might also skew infomation that counsel can give to court (almost an Article III problem).
• Hard to distinguish from Rust--why can't government say legal services is the 'regulatory services' office, and that government pays for regulatory litigation, not constitutional litigation.

• Issue of baseline assumption: if there is no constitutional theory of welfare state, hard to find basis for conditional rights cases.

Review Problem IV

Question A: Constitutional Claims of Manufacturer

• FDA is considering revoking Mifepristone's license. Commissioner says drug which shortens life is not effective.
• Procedural due process
  • Is there a life, liberty, or property interest to trigger procedural due process?
  • Property Interest: is here a justifiable claim to entitlement under positive law? (Board of Regents v. Roth)
  • License itself, pursuant to regulation, could be property interest.
  • Alternatively, statute says manufacturer is entitled to license if it is safe and effective. Statutorily-created property interest.
  • Matthews v. Eldridge: is there a risk of error, consequences of mistake.
  • Liberty interests include interests recognized substantively under due process clause.
  • Does this create an undue right on the fundamental right to an abortion?

Question B: Constitutional Claims If Bill Revokes License and Prohibits Sale

• Senator wants to prohibit sale of drug.
• Can no longer make procedural due process argument on property interest.
• Does Congress have authority to pass law? Strong claim under commerce clause.
• Strongest claim: places undue burden on abortion. Does prohibition of RU486 create undue burden on right to have abortion?
• Structurally similar to Carhart partial-birth abortion case.
• Opposing argument: Roe doesn't say state needs to facilitate abortion; women are no worse off than they used to be pre-RU486.

Question C: No Facility That Receives Money Shall Prescribe Mifepristone

• Is this an unconstitutional condition?
• Senator would argue that there is no right to facility funding. If you chose not to accept federal money, you're no worse off than you would be in state of nature.
• Alternatively, this is really penalty--too severe. Like FCC case--facility can't do anything if it prescribes drug.