Exam Outline

13 amendment: o section 1 o section 2 th 14 amendment o section 1 o section 5 o core purpose of the 14th amendment was to do away with all governmentally imposed discrimination based on race th 15 amendment o section 1 o secton 2 Articles I, II, and III created and empowered federal government First 8 amendments deal with federal government and lot of em are expressely protected 9th amendment: there are other rights too. Just cause you dont see an expressed right in previous 8 amendments doesnt mean that there are no other rights SDP: A right that was affected o In the same case, some people will have fundamental rights and some wont o It usually takes 3 or more fundamental rights for the penumbras rights anaylsis to come in question o Is the right at stake representing, basic values implicit in the concept of ordered liberty? PDP: issue is not that right is diminished or denied but how the process leadinf up to deprivationl the consitutional defensibility of the process provided by government notice and hearing. 14th amendment defines proper defendant o Constituion requires procedures not mandated by the stte law but by the constitutiuon. How much/quality of due process is determined by the federal constitution o One cannot have property interest in expectancy o In an examination, we dont know if there is a property interest because one needs to know the state law to know that. o Discuss doctrines of powers of separation. They are relevant in alienage cases o Talk about standing without injury there is no standing o Look also very briefly in Obama care case Proper Defendant: o Amendment 1-8 federal defense, o 14th state govt including subdivisions, o 15th all government. o The only amendment that allows a claim against private defendant is 13th amendment Statutory claim:
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o 42 USC 1983: If you prevail in a constitutional claim, usually youll get a declaratory or injunctive judgment but nearly always when you prevail in a constitutional claim, youll likely have and prevail in a 42 usc 1983 claim o 42 USC 1983: gives money to the plaintiff o 42 USC 1986 or 1988: Gives money to the plaintiffs lawyer fees (legislation passed by congress pursuant to 14th Amendment, 5) o so complaint is at least two counts: 1st for deprivation of 14th amendment due process 2nd for remedy given by 42 USC 1983 and prayer for relief from attorney fees equal protection: o how should court ascertain the legislative purpose/means connection? Consider: The statute itself Legislative history Contemporaneous facts The defense at the time of the act The defense at the time of defense o mentally ill and mentally retarded: former could be involuntarily committed only on showing beyond reasonable doubt and relatives excluded whereas later could be committed on mere clear & convincing standard including by relatives presentment of evidence Note that Court says even the standard of rationality . Must find some footing in the realities of the subject addressed by the legislation o Argument that professor likes: just cause a statute is in existence for ages that doesnt mean it is relevant. These sort of cases dont have statute of limitations, just cause someone didnt oppose it doesnt mean that it is correct o Private discrimination is out of the reach of 14th Amendment and courts cant do anything to give effect to that private discrimination under 14th amendment o National origin does not get as strict scrutiny as race, its tad bit less o When applying scrutiny: courts views actions at time they were taken, not with benefit of hindsight o Flood gates argument: court says this will open floodgates. Attorney should respond: a narrow rule. The only precedent you have set is a very narrow precedent o De jure: no requriement o De facto: no requirement but in fact that has the consequence of discriminating o Segragating in education at least high school and below is unconstituonal o Remedy: as with any equity case, the nature of the violation determines the scope of the remedy.

Judicial powers may be exercised only on the basis of constitutional violation. Remedial...when the schools default, the courts powers become plenary. o An act does not violate EP merely because the act has dispropotinoate impact. Discriminatory intent has to be proved o Alienage: citizen v. non-citizen General rule: distinctions based on alienage are to be subjected to strict scrutiny Exceptions: a different rule applies when state functions are so bound up with operation of the state as a governmental entity as to permit (excluding aliens from the). persons holding (1) state (2) elective or important (3) nonelective (4)executive, (5)legislative, and (6) judicial positions, for officers who (7)participate directly in the (8)formulation, (9)execution, or (10)review of broad (11)public policy perform functions that go to the heart of representative (democracy) government o rectifying past discrimination against women is an important purpose Exam tips: o to get more points on exam: say that on the other CB identified earlier, it will not get anymore scrutiny than what I have done on my analysis and will apply to other CB. And write a sentence or so on each basis you did not analyze. o in exam, you have to put all the classificatory basis for the plaintiff to argue and say that you are picking one which has more ground for more than minimal scrutiny

I. IDENTIFY THE PARTIES. The parties complaining are the plaintiffs. Is the defendant proper? 1. Must be a proper defendant under the 14th Amendment; a. Can sue the state as a state; or b. Performing a public function as in it is traditionally AND exclusively a public function; c. Sufficiently entangled with the state; d. Fostered and encouraged by the state (the act the private party did, that the Plaintiff is complaining about, was REQUIRED by the state). e. When president is the defendant, to figure out if his actions are legitimate, you look at article 1, congress article2 and state and local government, you look at the police power 2. Note: For the purposes of this class, the plaintiff always has the burden of proof

II. PROCEDURAL DUE PROCESS: (1) must be given notice of an action before that action becomes effective; and (2) must have an opportunity to be heard in a hearing. 1. How does one spot a procedural due process issue? At time 1, someone has something. At time 2, it is diminished by an act of government. 2. Is it life, liberty or property? How many does it have to be to have a procedural due process claim? a. What is life? It is the opposite of death. Procedural due process cases which implicate a life procedural due process claim relate to euthanasia cases, death penalty, abortion, suicide, etc. (immediate life saving assistance it would be a life interest otherwise no) b. What is property? Property interests are not created by the Constitution. Property rights are created and their dimensions are defined by existing rules. Understandings that stem from an independent source such as state law, regulations or understandings, contracts and deals that secure certain benefits and that support claims of entitlement to those benefits. i. Who makes a property interest? The state ii. Except for 5th amendment takings clause case c. What is liberty? Broad term including a lot more then freedom of being locked up. i. Constitution: if it is a right in amendments 1-8, then it is an expressed liberty interest ii. Generally, it is court-decided federal law 1. There may be state law decisions that define liberty above and beyond federal law iii. Reputation: mere damages to reputation do not implicate liberty but damage plus tangible injury can iv. Liberty = freedom from restraint v. For exam answer: if the federal case law has defined this right as a liberty interest figure out what this shit means vi. Reputation is a liberty claim but mere damage to reputation is not a constitutional claim; it must be accompanied by tangible injury. 3. Is there a legitimate claim of entitlement? To what Procedural Due Process? Must be connected with notice or hearing. A legitimate claim of entitlement is If yes, then go to C. a. A person must clearly have more than an abstract need or desireit must be more of a unilateral expectation of it (must be a bilateral expectationmeeting of the minds). A benefit is not a protected entitlement if government officials may grant or deny it in their discretion. i. Defendant must have contributed to plaintiffs understanding of that expectation b. How can you prove entitlement? Constitution, laws, contracts, rules, even oral agreements if it can be proven. c. Historically the guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty or property. Where a government officials act causing injury is merely negligent, no procedure for compensation is constitutionally required.

4. What kind of process is due? (Mathews v. Eldridge) Three factors: a. Private interest that is at stake by the officials action: what is at stake for the plaintiff on the facts? Example: money, life if asking for life-saving assistance, food, right to speak, religious solicitation. b. The governments (defendant) interest in not providing additional or substitute hearing and/or notice; what is the states interest in providing only the notice and hearing provided? The court looks to the burdens imposed on the government by requiring the procedures (time, money, etc.). This is a factual answer. An example would be safety. What chance of a better or different decision is there with more hearing or notice compared with the costs? c. What is the risk of erroneous deprivation (the states making a mistake) with lesser Notice and Hearing? If the defendant did more or better notice &/or hearing what is the probability that the outcome would be different such that the defendant would not be making a mistake? i. The risk of erroneous deprivation is the risk that they have made the wrong decision because they did not give more notice or hearing. Whats that risk? ii. Probability assessment: for example: ban the homeless people but allow religious organizations to make solicitations. III. SUBSTANTIVE DUE PROCESS 1. Who is the plaintiff and who is the defendant? 2. What is the right/matter at stake? It is the right of X to do or not to do X . a. Just right = matching your claim based on the law. Example: gay couple wants to marry. Instead of saying that my client wants the right to gay marriage = not cool. Rather say my client wants the right to marry. Something like that 3. State that determining right with precision is very important to whether fundamental right or not 4. To determine whether it is a fundamental right, one must look to the following factors: a. Is it expressed in the constitution? b. Is it deeply rooted in the traditions and collective conscious of our people? c. The 9th amendment: it states that the rights enumerated do not comprise all rights. d. Is it within the penumbra of expressed rights? It is the zone of fundamentally protected rights beyond those merely stated? e. Does one just know that the right is fundamental it is so obvious? f. Is it in the same order and magnitude as recognized (fundamental) rights? Example: If the right of Mr. Skinner a sex offender has a fundamental right not to get sterilized, the certainly a 10 year old has the right to a good education. Recently the court in 5/4 decisions rejected this rule. g. Natural law the basic principles inherent in nature that is discoverable by man.

i. Natural law = refers to ultimate right and wrong that transcend particular notions and cultures and are true for all people at all times. Whatever its source, natural laws content is discovered by reason. ii. Moral merits of the case h. Is it implicit in the concept of ordered liberty? Casey case; the concept of social contract. i. Wisely apply great rules of federalism and separation of powers i. Is it one of those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men? This has to do with order, not mere happiness, but the orderly pursuit of happiness. If my happiness causes disorder, this rule doesnt protect it. The word essential makes this rule particularly hard to satisfy. j. Whatever is at stake is virtually a means of survival. an economic necessity. It is a necessity in the real world. k. Is it a decision we should leave to the legislature? Does the infringement constitute infringement of a legislative judgment (or an act) alien to our traditions and shared notions of fairness? This test asks whether the plaintiff asking us to substitute our judgment for that of the legislature on a matter where it seems fair and traditionally the case that the judgment should be made by the legislature. 5. Is the right fundamental or not fundamental? Based on the above, by some of these tests, the right is _____ by others it is not. a. To the extent that the right is not a fundamental right then its infringement is subject to minimal scrutiny. i. Is the purpose legitimate? ii. Are the means rational to accomplish the purpose? b. To the extent that it is fundamental then: i. It must be ascertained whether the state statute places an undue burden upon the exercise of that fundamental right. A finding of an undue burden has the purpose or effect of placing a substantial obstacle in the path of a person exercising a fundamental right. If no undue burden, must analyze under minimal scrutiny (analyzed under a). If there is a finding of undue burden, it is subject to strict scrutiny. a. Casey: this case gave the test of undue burden but it did not clarify what an undue burden is. ii. Purpose must be compelling. iii. The means must be necessary. IV. EQUAL PROTECTION: people who are similarly situated will be treated similarly AND people are not similarly situated will not be treated similarly 1. Establish the classificatory basis: the equal protection clause is only implicated when government makes a classification. Its not implicated where the government merely decides which of two classes a particular person falls into. 2. Is the act of which the plaintiff complains of is facially discriminatory? It is only facially discriminatory when it is written down.

a. If yes, then this satisfies the proof of classificatory basis b. If no, must determine intentional classificatory basis (plaintiffs burden) 3. If the act is not facially discriminatory, intent must be established: Given that this is not facial discrimination, the plaintiffs first burden is to prove classificatory intent. Plaintiff must show defendant had discriminatory: purpose, design or intent. Intent means that the challenged act was adopted in part by the defendant because of ___________ not merely in spite of _________; more than awareness or foreseeability. How to prove the requisite intent to discriminate (Arlington heights factor): a. The impact of official action, is the critical starting point for two reasons (1) standing (matter of law); and (2) power of coming out of the starting gate (matter of fact). b. Specific sequence of events leading up to the challenged act. c. Departures from normal procedures d. Departures from normal substantive standards. e. Historical background of the decision (isnt this #2 pretty much) f. Legislative/administrative history a more specific subset of #2 and 5 (has to do with documents, meeting reports, etc.). g. Remarks of decision makers if but only if enough of those remarks exist to impute the statement of the speakers to the intent of the body (go to rules required for the body to act). (Statement of 1 of 27 members of county board does not impute discrimination). Did a majority of those present make the racial remarks? Then you can use the evidence of the sum. 4. To the extent that intent can be determined, the level of scrutiny must then be determined. (Gender is intermediate, race is strict). a. Indicia of suspectness: i. Expressly protected in the constitution: directed at a particular group expressly protected by the Constitution (religious, national or racial group) ii. Discrete: easily identifiable. iii. Insular: is a person isolated. Is this characteristic isolating? When the insularly is exclusionary and involuntary, then the court is really concerned. iv. Minority: mathematical measure. It is a proportion of 100%. The smaller the number in the group, the less power they will be able to wield. There is strength in numbers. v. Political Powerlessness because cannot vote. The right to vote gets high scrutiny only for age (18 or so) and citizenship and convicted status. vi. Political powerlessness because there is no political clout. (Dont have the mental capacity to vote). Homeless people, no, because no address to register. This is how effective is the voice of this group in the political process; how effective is the groups political power? Need money to have high clout. vii. Historically discriminated against. What is the presumption by the court? The more historical discrimination, the more likely there might

be current discrimination or vestiges of it therefore the higher the scrutiny. History equals 200 or more years. The court makes a distraction between the length and depth of that discrimination. viii. Practical Effect: What is the practical result of the policy/statute/etc.? Less women will be hired, etc. ix. Gross stereotype: example, women are always dependent on men. x. Immutable: cannot change it. It is a characteristic determined by birth that cannot be changed. xi. Relationship to the ability: The less ability the classificatory group has the more suspect. The question this variable asks is whether the ability to do what? That which the challenged act denies. xii. Congressional action/inaction: The fact that congress has determined something it is easier for the court to move in the same direction giving deference to the legislature. (This relates to separation of powers). If congress has moved towards protecting against a class, the court can move towards a stricter standard of scrutiny. Congress has manifested an increasing sensitivity to X based classifications. xiii. Amorphous: it is hard to determine who is in and who is not in the class. The smaller and the more non-amorphous the class is, the more suspect we are. b. Always compare to race, which is strict scrutiny c. Always compare to gender, which receives intermediate scrutiny d. Other: alienage, illegitimacy strict, age, handicap, Minimal 5. Mention comparison to race&/or gender 6. Conclude tentative level of scrutiny 7. Identify possible reasons for modifying level: This exists when the state is trying to rectify past discrimination. If there is a modification, the level of scrutiny is decreased. (Is it minimal? Figure this shit out) 8. Apply/conclude whether above apply and what level to use 9. Do purpose and means analysis: a. If the court is only using minimal scrutiny, the purpose has to simply be legitimate. The means to accomplish the purpose has to be a rational relationship. Rational relationship between purpose and means. Presumes constitutionality to the max. b. If the level of scrutiny is strict, the purpose has to be compelling. Compelling purposes are: saving life and national security and wartime. Nothing else is a compelling interest. There is a huge divide between very important and compelling. The means must therefore be necessary to accomplish the purpose. If there is another way to do it that is less prejudicial, then it is unconstitutional. c. If the level of scrutiny is intermediate, the purpose has to be important and the means have to substantially relate or accomplish that purpose. 10. Final conclusion: constitutional or not? 11. Mention anything else that might be equal protection

V. CONGRESSIONAL POWER (under section 2 and 5 of the 13, 14 and 15th amendments). 1. 13th amendment: outlaws slavery; there is no state action requirement so race discrimination by private actors is remediable. 2. 15th amendment: prohibits racial discrimination in voting; state action requirement. 3. 14th amendment: Congress can have the power under section 5 of the 14th amendment. When Congress seeks to remedy or prevent unconstitutional discrimination, 5 authorizes it to enact prophylactic legislation to carry out the basic objectives of the Equal Protection Clause. a. Identify the constitutional right that the congressional statute sought to enforce. Most basic is always: enforce the 14th Amendments command that all persons similarly situated should be treated alike. It could be more specific like, a right to a fair trial, etc. b. Does the statute validly enforce these constitutional rights? This must be judged according to the history. Is there congressional record signifying the discrimination? c. Is the statute an appropriate response to the history and pattern of unequal treatment? This depends on if it congruent and proportional. If there is a pattern and record of historical discrimination there is congruence with the subject of section 1. If there legislation is plainly adopted to serve that purpose then it is also proportional. SPEECH (multiple choice): For every right expressed in the bill of rights is the counter to speak or to listen, to advertise or to receive the advertisement, etc. (these are reciprocal rights). 1. Commercial Speech: Speech proposing a commercial transaction; speech that is related solely to the economic interests of the speaker and its audience. There is a four part analysis: a. Is the speech protected by the first amendment? i. Only if not fraudulent, misleading, truthful ii. But mere puffery in advertising is allowed b. Is the governmental interest in limiting the speech substantial? c. Does the challenged regulation directly advance the asserted governmental interest? (Purpose looks more like intermediate scrutiny, it has to be substantial) d. Is the governmental restriction broader/ more extensive than necessary to directly advance the substantial governmental interest? (The means look more strict, but not exactly strict scrutiny). 2. Speech on Governmental Property: To extent public property is the locus of political expression, it (the expression) cannot be regulated because of the content of the speech though the government may impose reasonable time, place and manner restrictions

Government cannot regulate the content of political speech but it can regulate the time, place and manner of that speech provided this regulation is reasonable. Example: no speech in a public park in a residential area between 11 p.m. and 8 a.m. This is reasonable. How do we know? It allows ample time for speech at other times. b. Analysis: i. Is the regulation content based or not content based? Example, no leaflets in this town. This is not content based, it does not distinguish based on content. How do you know if the regulation is or is not content based? If it applies as a function of the message of the speech. ii. If it is content based, then it is subject to strict scrutiny, there must be (1) a compelling interest; and (2) the means must be necessary. iii. If it is not content based, regulation is permitted if it permits reasonable time, place and manner. 3. Non-Economic Speech of Governmental Employees: governmental employees do not have the same first amendment speech rights that the rest of us have because in the case of governmental employees the court balances the employers interest in the safe and efficient operation of the workplace (the employer is the government) against the employees speech rights. a. The court distinguishes two kinds of speech by governmental employees: as a citizen on matters of public concern or not. If the employee spoke as a citizen on matters of public concern, then the speech is protected under the first amendment. b. Do determine what kind of speech the court used the following pre-Garzetti factors: i. Timing of the employees speech; ii. The place of the employees speech; iii. The content the employees speech; and iv. The context of the employees speech. RELIGION 1. For all religion cases, the court says, what is religion? It is a sincerely held belief that occupies in the mind or part of the believer a place akin to the belief in a tenant of religion by a traditional believers religion. a. Cases that define religion all come out of conscientious objection. b. Two ways in which a case can arise: (1) when government is favoring religion; and (2) when government is interfering with someones exercising religion. c. To have standing under Religion (1) challenge an act that favored religion; and (2) point to a specific constitutional limitation that prohibited the act.

a.