Constitutional Law

Constitutional Law POWERS OF THE FEDERAL GOVERNMENT The Judicial Power Limitations on Exercise of Federal Jurisdiction o If a fact pattern puts you in a federal court think, am I properly there o Whether a case is justiciable depends on whether or not there is a case or controversy (constitutional requirement) o There are also other limitations on federal court jurisdiction (1) No advisory opinions there must be specific present harm or threat of specific future harm Need a real fight against adverse parties, where the judgment will bind them Ex: statute giving courts permission to review something, but then delegating the power to overrule to someone in the executive branch this is impermissible, and should be dismissed as essentially an advisory opinion Can hear actions for declaratory relief if there is an actual dispute between parties having adverse legal interests (must show that they have engaged in or wish to engage in specific conduct and that the challenged action poses a real and immediate danger to their interest Federal courts wont determine the constitutionality of a statute if its never been enforced and there is no real fear that it will be (2) Ripeness not entitled to review of a statute or regulation before its enforcement unless P will suffer some harm or immediate threat of harm P must allege actual harm or the immediate threat of harm Has the fight actually begun (we want a bleeding plaintiff) Ex: cant challenge a proposed statute its not ripe Ex: Dead Letter Statute anyone accused at looking at anothers wife will be hanged; law on the book has never been enforced and theres no threat of enforcement, so theres no ripeness; if prosecutor moved to enforce the statute that would change the situation (would show an indication that its a viable statute) Test Tip: if you see a flamboyantly unconstitutional statute and the question asks for the governments best argument look for grounds like this that has nothing to do with the merits (3) Mootness real controversy must exist at all stages of review, if the matter has already been resolved the case will be dismissed as moot Case comes too late its over; case will be dismissed as moot unless its live at all stages of pendency Ex: equal protection claim by someone who didnt qualify for law school admission program for minorities; case went to SC but plaintiff was admitted to the program and in his last quarter by the time the case got to the SC dismissed as moot (P got all it wanted by the passage of time; all the court could have done for it 4 Ways Out: o (1) Controversies capable of repetition, but evading review where the injury is capable of repetition to that plaintiff and b/c of the nature of the problem it will inevitably be over by the time you work thru the appellate process Classical example of this case was Roe v. Wade

Constitutional Law

Natural inherent time limit + plaintiff can find self in same situation again o (2) If the claim is brought as a class action and the issue remains alive as to at least one member of the identified class o (3) Collateral consequences byproduct or continuing effects of the litigation Ex: minor conviction, with 30 days in jail there would be collateral consequences b/c of the record which is a byproduct of the wrong against him o (4) Where D unilaterally decides to stop the illegal behave (the voluntary cessation of illegal activity) there has to be no reasonable likelihood that the D could return to its old ways Ex: polluting corporation shut down but maintained its certificate of operation (4) Standing to be in FC P bringing the case has to have standing General Rules: 3 requirements to have standing to be in FC o (i) P has to suffer an injury in fact P must show that it has been or will be directly and personally injured by the allegedly unlawful government action, which affects its rights under the Constitution or federal law Can be just about anything but not mere ideological harm Dont have standing to challenge because you dont like it o (ii) Causation factual has the harm suffered by the P been caused by the D Causal connection between the injury and the conduct complained of Is it fairly traceable to something the government did o (iii) Redressability can the court do something to remedy your harm Decision in Ps favor must be capable of eliminating its grievance Ex: A didnt get a license, injury in fact caused by the government, A could sue to get the license, but if it asked to prevent B from getting it it doesnt redress As injury Special Rules: o Associations and Organizations Will have standing to redress there own rights if standing requirements have been met To so on behalf of members: (associational standing) (i) At least one member has to have standing (an injury in fact to members that gives them the right to sue on their own behalf); (ii) The injury is related or germane to the organizations purpose; and (iii) The relief that the organization is looking for has to be such that we dont need the presence of the individual members (individual member participation in the law suit isn't required) o Third Party Standing Generally, claimant cant assert rights of another to obtain standing; want the 3P to be there themselves but relax this rule in certain circumstances (Ps in court raising the rights of other Ps)

Constitutional Law

If the party in court has him or herself suffered some sort of injury and theres some sort of special relationship between it and the absent party, and theres some sort of hindrance to that other party Claimant w/ standing in their own right may also assert the rights of a 3P if: (a) its difficult for the 3P to assert its own rights, OR (b) a special relationship exists between the claimant and the 3P Ex: abortions doctors have been allowed to assert claims on the behalf of patient o Citizen Standing there is no such thing Federal statutes may confer upon citizens standing to sue, but its only conferred to injured citizens (Congressional Conferral of Standing) People w/ statutory standing must meet standing requirements Congress doesnt have the power to eliminate the case or controversy requirement and so cannot grant standing to someone w/o an injury P may have standing to enforce a statute if it is within the zone of interests Congress meant to protect o Taxpayer Standing Not where TP is suing for something that effects their own taxes (TP has standing to litigate its own tax bill but generally has no standing to challenge government expenditures) Here, talking about when someone goes to court basing standing on their TP status alone Doesnt matter that whats being challenged is grossly unconstitutional Exception: you can have TP standing if challenging a taxing or spending statute of congress and youre challenging saying it exceeds a specific constitutional limit on taxes or spending very narrowly interpreted Only one thats ever been recognized as a limit is the establishment clause Ex: challenge to property conveyed to a religious organization was not challengeable b/c Congress was acting under its property power when giving the property away Ex: challenge to CIA practice of going to Congress and asking for money w/o saying what its for, relying on provision requiring an accounting (specific limit on taxing and spending) the court said it didnt count Ex: Congress gives a jet to a minister cannot challenge b/c it is property o Legislatures Have no standing to sue for legislation that past against their wishes no standing to challenge laws by virtue of membership No standing to challenge line-item veto act (was later ruled unconstitutional when case was brought be someone who lost money b/c of it) Other Standing Issues: situations which may effect whether you are in federal court Adequate and Independent State Grounds when can the SC review state court judgments (permissibility)

Constitutional Law

Fundamental Doctrine: the SC of the US does not have general supervisory authority over state court judgments, they can only look at SC will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds (even if federal issues are involved) Requirements: o (i) Has to involve a matter of federal law o (ii) Has to be a final judgment o (iii) Has to be from the highest court you could have gotten a judgment from in the state o (iv) Has to be no independent and adequate state ground on which it was based Independence rely completely on state law (not based on federal case interpretations of identical federal provisions) Adequate if no matter what the SC would rule on the federal question, the outcome would remain the same (fully dispositive of the case) Ex: state court rules that picketing statute violates the state and federal constitution the SC cant review b/c the outcome will stay the same no matter what the SC says; if the state said it was ok under both the state and federal constitution the SC could review it, b/c if they decided it violated 1A the outcome would not be the same Ex: where SC says something is ok under the constitutional, but a state court says its not under state law Abstention the federal court could hear a case, but tells it to go to the state courts When will it do this: o Constitutional challenge to a state law where the meaning of the state law is unclear or unsettled go to state courts first and find out what it means (done out of comity) o Where a matter is already pending before a state tribunal, unless the state is acting in bad faith, it ought to be finished in the state system o FCs wont enjoin pending state criminal proceeding except in cases of proven harassment or prosecutions taken in bad faith (and in some cases pending state administrative or civil proceedings involving an important state interest) Ex: Texas oil company case appeal Political Question Doctrine There are some questions the federal courts wont hear or decide b/c the question is constitutionally committed to the another branch (the political branches) or the court feels that it is not competent to answer the question (issues inherently incapable of judicial resolution) Test: rarely the correct answer Political Questions (comprehensive list) o Actions brought under the republican form of government clause o Presidents conduct of foreign policy o Impeachment procedures (up to the senate to decide) o The seating of delegates at national political convention o The election requirements for congress (age, residency, or vote requirements) o Procedure for amending the constitution

Constitutional Law

Nonpolitical Questions: legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications The 11th Amendment Prohibits federal courts from hearing a private partys or foreign governments claims against a state government (actions in which state is named as a party or will have to pay retroactive damages) o Provision favors states from being sued in FCs (an immunity) says judicial power of FCs should not extend to o A private party cant sue a state in federal court unless the state expressly consents (unmistakably clear) or Congress passes legislation clearing says that a private party can sue a state in federal court and it is enforcing equal protection rights (can remove 11A immunity as to actions created under 14A) o Plaintiff must be a citizen and the defendant must be a state for 11A to apply o Protection doesnt apply to a subdivision of the state o Doesnt apply in federal BR courts Actions that can be brought against state officers: o (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if it will require prospective payment from the state; and o (ii) actions for damage against an officer personally (even if it is for something that was done on the job and the state may indemnify) Ex: state refuses to pay minimum wage to empes cannot sue for back pay under 11A Suing in State Court: may still attempt to sue state in state court and 11A alone is not a bar to that type of lawsuit, however states may raise a claim of sovereign immunity in their own state court o SC has held that the doctrine of sovereign immunity bars suits against a state government in state court, unless the defendant state consents o Congress cannot prevent this (unless its to enforce under the 14th amendment) b/c of general principals of federalism though not 11A Consent will erase all of this but it has to be unmistakably clear and wont be implied

Powers of The Congress Every exercise of federal power must be traced to the Constitution Congress has specific powers and not general police power all the rest of the powers are left to the states under 10A Can exercise enumerated and auxiliary (N/P) powers Enumerated and Implied Powers o Admiralty o Citizenship o Postal o Copyright and Patents o Bankruptcy o Federal Property o Etc. o Spending Power o War and Related Powers

Constitutional Law

Test Notes: o If question asks for the strongest basis and theres a specific power that applies chose that it is just an easy question o Testable Powers Interstate Commerce Power to Tax and Spend for the General Welfare 13A, 14A, 15A These powers are all amplified by the Necessary and Proper Clause can take all actions convenient and useful to the powers that are granted Wrong Test Answers: o Federal police power o General welfare power o Separation of powers (not a source of power for C to enact a law) o Necessary and proper clause standing alone The Commerce Power o The chief way that commerce regulates o Congress may regulate purely local, intrastate activities, if the activities Congress is regulating, by themselves or along with others, could have a substantial impact on interstate commerce Ex: the amount of wheat a farmer can grow on its own farm; racial discrimination in hotels and restaurants; loansharking done purely at the local level o Reach is not unlimited Cant use the power to tell a state to make something illegal under state law, even if the subject is something that Congress can regulate under federal law Cant commandeer local law enforcement Can tell states what to do (pay minimum wage, etc.), but this is different Congress cant say we have this federal law and want your state officials to enforce it; can tell states what to do to comply with federal law Cant regulate if it doesn't involve instrumentalities of IC, things actually in IC, or commercial activity Too attenuated, need something more commercial or economic Ex: possession of a gun w/in x yards from a school, gender based violence both have no economic connection o Other ways to get states to do their bidding Regulate states directly if theres a commerce clause hook Can threaten the states w/ preemption Can in effect bribe the states under the Spending Power The Taxing Power o As long as it raises revenue it is an ok exercise of the taxing power (courts used to try to prevent Congress from regulating thru taxes, but no longer cares if it does this) The Spending Power o Power to tax and spend for the general welfare o The general welfare is anything Congress wants could be to dig up rocks on the moon o Congress determines whats good for the general welfare no matter how ridiculous o Ex: condition money for roads on setting maximum speed limit; Congress has conditioned assistance for roads on adopting certain traffic rules (such as right on red) this is acceptable o Rules for Conditioning Spending Has to be enacted for GW (anything Congress wants) Doesnt otherwise violate individual liberties Condition has to be reasonably related to the reason the money is given (but this is easy federal highway money has been conditioned on raising the drinking age to 21)

Constitutional Law

Has to be clear to the state that there is a quid pro quo involved (otherwise the condition wont be enforced against them)

13/14/15 o 13A outlaws slavery no matter who is doing it (no government or state action is required) Congress has the power to enforce these provisions and in so doing can reach all the badges and incidents of slavery (ex: it can pass legislation related to discrimination based on race and those laws can be directed toward private persons) o 14A repository of many constitutional rights and gives Congress the power to enforce but that power is limited to laws directed at governments Power is to enforce not to make up new protections can remedy things that would be a violation according to what the SC says would be a violation Ex: Can Congress ban the use of literacy tests yes b/c it could reasonably conclude that it could be used as a device to discriminate on the base of race and ethnicity in voting which would be a violation of 14A Broad law making all state and local governments accommodate and allow for religious practices law was so broad as to really be a new protection (not congruent and proportionate) and not just enforcement o 15A protects right to vote against racial discrimination and allows Congress to legislate to protect this Delegation of Congressional Powers o Congress often delegates it legislative authority to the executive branch courts used to try to monitor but gave up o Now Congress can delegate as broadly as it wants as long as it provides some intelligible principle Examples of permissible delegations of power Power to prevent all unreasonable restraints on trade To regulate securities o Nondelegable All power to exercise eminent domain All power to spend money o If agency is within the scope of the powers it has been granted it is within their power to do it even if its retarded o The Legislative Veto unconstitutional; if Congress doesnt like what comes out at the end it has to go thru the process cant short cut around it Congressional Immunities o Under the Speech and Debate clause, cant be sued for aspects of legislative process

Executive Powers Domestic Powers o Power to enforce and carry out the laws of Congress Absent that, have narrow power to act if: (a) there is an emergency, and (b) the Congress hasnt negated the power to act President is also bound to carry out the laws of Congress o Line-item veto is unconstitutional o P has exclusive power to pardon for federal crimes and Congress cant do jack about it, no matter how ridiculously the president is behaving o Power to appoint and approve executive branch officials people who take action by and on behalf of the federal government Key point here is what Congress may or may not do May never directly appoint or approve EB officials

Constitutional Law

As to principle offices the President appoints w/ the advice and consent of the senate (ambassadors, judges, cabinet heads) As to inferior offices Congress can vest the appoint w/ the President, in department heads or in the judiciary, but can never directly appoint itself o Ex: Congress creates a 6 person commission, given authority to take action by and on behalf of the government Congress may not appoint any of the members Removal: o Congress could provide a limit to what President can do, but they cant substantially impair the presidents ability to carry out the constitution (ex: cant prevent President from removing the SOS other than for cause) o Cant give officials it is allowed to hire and fire executive duties would violate SOPs Foreign and War Powers o Congress: Power to declare war, and Control over the budget o President: Once war is declared, makes the battlefield decisions; Inherent authority to repel invasion of the US and To take emergency action to protect the lives and property of US o Foreign Affairs President can operate w/ or w/o Congressional direction in speaking When talk turns to action some sort of Congressional is need before can enter agreements Treaties need 2/3 senate approval Executive Agreement dont need approval but if Congress objects it is invalid Constitution Federal Statutes/Treaties (last in time) Executive Agreements State Laws Executive Immunity o In office Presumptive privilege not to disclose confidential communications If there is a specific important need against only a generalized presidential need for confidentiality privilege can be overcome (but court has to be careful w/ the info) Absolute immunity for civil damages for any presidential acts (broadly interpreted) Not immune if it happened before becoming president Impeachment (the bringing of charges) o President, VP, and all civil officers of the US are subject to o Grounds: treason, bribery, high crimes, and misdemeanors o Process Articles of Invocation (House simple majority) Conviction and Removal (Senate 2/3rd)

The Federal System State and local govts have a police power, so we look for limitations on what they can do rather than sources of power Express limits on state power and inherent federal powers limit what states may do w/ police power o States cant coin money, cant enter compact w/o congressional approval, cant go to war w/o congressional approval

Constitutional Law

Cant do things that are inherently federal: conduct foreign relations, create citizenship requirements, etc. Doctrine of Supremacy of Federal Law o Fact pattern: will be given state/local law on the subject and a federal law on the subject o Rules: If congress is acting constitutionally in an area federal is supreme over state law and will beat it out If FL by express terms, tells states to stay out of an area it has to stay (would be inconsistent w/ FL) If FL doesnt say anything when will FL operate to force SL out If SL is inconsistent w/ FL it is impliedly preempted If FL is so extensive that theres no room for SL in the area the FL occupies the field (like a full elevator statute w/ comprehensive solution to a particular problem, SL is ousted even if the statute doesnt say it is) Ex: FL: CRs can garnish no more than 50% of wages state couldnt allow 60% but could limit it to no more that 40% - not preempted b/c its complementary (to objective) Tip: rule that FL prevails over SL should be followed even if SL came first, the SL is from its constitution and the FL is stupid or insignificant - bottom line if there are 2 laws and you cant comply w/ both, the federal law wins no matter what Intergovernmental Immunities o FG can regulate, sue and tax the states, but the states cant do the same to the FG (w/o its consent) Privileges and Immunities o Article 4 P/Is citizens of each state shall enjoy all the P/Is of citizens of the federal states o P/Is cant discriminate against out of state citizens (not corporations, or aliens, or non-residents) w/ respect to P/Is Include: commercial activities, contractual , civil liberties State cant require residency for bar admission right to engage in commercial activity Cant limit only the amount of fish out of state people catch Cant require private employers to hire certain portion of in state residents BUT states can require state residency for state employees Recreational, tuition, can reserve granting of govt benefits and subsidies to citizens Possible to overcome prohibition when there is a problem . State Regulation of Interstate Commerce o Congress has the power to act but has not (otherwise it would be a preemption issue) if the state enacts a rule that effects commerce is that ok o Dormant or Negative Commerce Clause ~ (Congress is sleeping) states can regulate or pass laws effecting commercial or business activity unless the law discriminates against IC or unreasonably burdens it Strongest argument to strike a law under this that it discriminates and that it does so to gain an economic advantage over another (economic protectionism) this is per se invalid and the reason we gave Congress the commerce power to begin with Ex: state statute requiring all metal mined in the state can only be shipped out as processed cant do that Discrimination for health safety and public welfare will still be invalid unless the state proves that it had no reasonable nondiscriminatory ways for dealing w/ what the problem was (hard to satisfy but not impossible) Cannot ban out of state garbage didnt show reasonable nondiscriminatory ways to preserve land fill space (recycle) Milk bottling statute other ways of ensuring supply would be safe o

Constitutional Law

Ban on importation of fish carrying live parasites not contained in the state waters, and the state showed it had no way of testing so it was allowed Where law applies to both in and out of state it could be struck down if it unreasonably burdens commerce (balancing test that favors state law) if there is large negative impact (materially and significant obstruction) and marginal state benefit it may be struck down Can require milk to be packaged in certain materials (cardboard) Arizona limit on the number of train cars wasnt discriminatory but the court said it was an unreasonable burden would have to reconfigure trains going into and out of the state, go around the state, or comply w/ the Arizona law nation wide; assistance to health and safety was marginal Exceptions to Limitations: Congressional approval if it tells the state it can do it, it can (even if the SC told the state it couldnt the day before) Market Participant Doctrine if the state isn't regulating the activities of others but is instead buying and selling goods on its own account it is a market participant in the market and the negative commerce clause doesnt apply at all (can discriminate and unreasonably burden) o Ex: state built a cement plant , state purchasing can favor local goods, o Watch out for downstream effects can sell on a discriminatory basis but when conditioning may slide back into being a regulator and then the negative commerce clause does apply Direct subsidies can favor state residents 21st Amendment restoration of state power to control sale, transportation, .. of liquor o State can be as unreasonable as it wants but cant discriminate against interstate commerce (10% tax on in state produced but 20% for out) Orienting Analysis o (1) See if there is a federal law in the picture it could authorize or oust o (2) If not one ask if it is discriminatory if yes would be struck down unless o (3) Next ask if it unreasonably burdens if yes it will be struck down unless State Taxes o To be valid as a tax on interstate activity (1) It cant be discriminatory (2) The thing to be taxed must have a substantial nexus Sales tax can only apply where sale takes place otherwise have to call it a use tax Property taxes can apply to instrumentalities of IC but theres got to be sufficient connection Prop taxes (ad valorem) cant be levied on things just passing thru connection to insignificant Doing business taxes seller has to be present someway in the state mere phone or mail solicitation is not present for the purpose of A tax must not be unreasonably burdensome flat taxes are unreasonably burdensome must apportion taxes to the amount of business done in the state

INDIVIDUAL LIBERTIES AND RIGHTS Bill of Rights 14th Amendment DPC usually used to review a law that limits the liberty of all persons to engage in some activity EPC usually used when law limits liberty or rights of some but not others

10

Constitutional Law

EPC of 14A prohibits state dilution of the right to vote by malapportionment of electoral districts. This rule applies to electoral districts for local governmental bodies as well as for the state legislature. When a local government establishes voting districts for the election of representatives, it must establish districts that do not have a significant variance in the number of person in each district.

State Action When is it that the government is acting? o Ex: private club doesnt allow you in b/c youre black sue in federal court and you will lose o State actor even though violating rules of employment o Harder cases where it looks like a private entity is acting The Public Function Doctrine performing activities traditionally and exclusively performed by a government (narrowly limited) Ex: where a municipality was privatized; conduct of public office; exercise of eminent domain Involvement cases where the government and private entity are acting together in a joint venture (each getting benefits from each other), or when the government commands, encourages, or approves of the behavior Even where points of interconnection are substantial it wont necessarily be state action Mere fact that activity is regulated, licensed, or subsidized is not enough to make state action Examples of State Action: Conduct of jury preemption Prohibiting a sale between private parties Contract Clause No state may not by legislation substantially impair the obligation Applies to contracts that have already been created state cannot through legislation retroactively impair Sometimes it will be allowed though . Ex Post Facto Laws Congress and state and local governments may not 3 Types of EPFLs o (1) Make criminal an act that was not criminal when it was committed o (2) Increase the punishment for the crime after it was committed o (3) Reduce the evidence needed for conviction after the crime was committed These types of provisions can be made but must be prospectively Bills of Attainder Prohibit legislation that inflicts punishment on named individuals or identified groups of people Can be criminal or civil Procedural Due Process Does not apply when acting by legislation (you get DP through the legislative process) Rules .. Ask two questions: Is there a deprivation of a life, liberty, or property interest that will count? o Deprivation intentional, not just negligence
11

Constitutional Law

Life duh Liberty Physical liberty Jail, Involuntary confinement, Revocation of parole, Further deprivations w/in jail (atypical ones) Lose of Rights (statutory or constitutional) Ex: to maintain a relationship w/ your children Mere injury to ones reputation is not a liberty interest Ex: womans name put on a list of alcoholics that leave their families, court agreed that she had a right to be before being branded Ex: known shoplifters list guys boss saw it and told him about it; guy demanded notice and opportunity to be heard this was just injury to reputation in the other case the lose of the right to buy alcohol was a loss of right Property Physical property Govt benefits may count if you have an entitlement to continue them; not just applying for them Govt empt you have an entitlement to continue in your job if the govt sets it up that way look for signaling words: civil service, continuing, tenor versus at will, probationary, temporary Ex: state university says can get tenor after 6 years, Bob is told to leave after 3 no entitlement therefore no property interest but what is the strongest argument that Bob is entitled to notice and a hearing oral promise from the President of the university would create an entitlement If yes, what process is due? o Minimally we says PDP requires notice of some kind and opportunity to be heard o If a hearing usually say it should come before the deprivation but the timing can vary Ex: cop taken off the job w/ a hearing after ward to determine if it was proper; this was ok b/c it was a cop charged w/ a crime and the balance of interest favored the government o This is an ad hoc determination but there are factors that will apply Look at the nature of the interest involved the more important it is the more the protection Look at the value of the current procedures to come out w/ an accurate result Ex: NY took away welfare telling persons they were ineligible but if they thought they were they could write a letter and send it in The governments interest in maintaining its current procedure Usually devalued if interest is to save money If for health and safety it will be heavier weighed Access to courts by indigents under what circumstances might we require the govt waive a court fee for a poor person o Depends on if it involves denial of a fundamental (constitutional) right Bankruptcy no To invoke divorce proceedings yes o Extends to transcript fees for appeals In a criminal case yes Where court takes a child from a parent yes The Takings Clause o If your property is taken for a public use the government as to pay Private Property any property govt doesnt yet own o o
12

Constitutional Law

Public Use anything public wants to do w/ it Just Compensation market value at the time of the taking What is it a taking? Any time a govt diminishes the value of your property no (you may have been screwed but you havent been taken) Anytime there is a physical taking of your property (physical occupation) is always a taking Temporary uses parking on your land during construction have to pay you Regulatory Taking Regulating the way you can use your property in a way that amounts to a taking Usually will be upheld but can have situations where the govt goes too far Examples: Grand Central Station government won, they couldnt add to the top of the building b/c it was a historic preservation SC said it wasnt a taking there remained an economically viable use for the property and the regulation was reasonable under the purpose South Carolina v. Lucas guy bought two lots on the cost, where he planned to build 2 residents and sell for profit, govt said it was an environmentally sensitive area and that nothing could be done there b/c it left no viable econ use it amounted to a taking Conditional Permits When can govt require that you give up your rights to prop in this context There must be a rough proportionality between the conditions and the harms caused by the use Ex: woman had a hardware store; was allowed to expand but said she had to make a bike path and make a greenway to absorb run off water and dedicate it to be a public park this was too much

Substantive Provisions P/Is of national citizenship under 14A almost meaningless and almost always a wrong answer o Slaughter House Cases effectively read this provision out of the constitution by defining the P/Is so narrowly o Gives you those rights that are To travel the high seas, not be assaulted by an officer, Protects rights as citizens of state Equal Protection and Due Process of the Law o DPC of 5A courts have read an EP component into this FG is violating the EP component of the DPC of the 5A For states go to 14A o Must know the test the courts apply in these situation test answer must be stated correctly in the language used o Strict Scrutiny government must prove law is necessary to achieve a compelling interest o Intermediate government must show law substantially serves an important interest o Rational Basis plaintiff must prove the law has no rational basis Equal Protection o Triggered when the govt is treating some people differently than others o Most of the time will be ok, b/c only be subject to rational basis scrutiny o When govt discriminates on certain basis we apply something more stringent o How do you know on what basis a law is discriminating Look at the law itself if it intentionally discriminates on its face

13

Constitutional Law

Neutrally written law intentionally discriminatorily applied in a discriminatory manner (Wik Yo have to operate laundry mat in stone building, whites were given exceptions while Asians were denied) Distinguish law that merely has a discriminatory/disparate impact Discriminatory motive Invidious Categories Race Strict scrutiny strictly applied Ex: jail race riot case, temporary separation of races compelling justification of restoring order and narrowly tailored to apply only until order being restored this is pretty much the only time its been ok (survived strict scrutiny) Court ordered integration remedy has to be tailored Voluntary affirmative action still SS, but application means that govt entity involved had discriminated in the past and that the program put in place was tailored to make up for that past discrimination o Ex: city set-aside program for contracts no E of past discrimination + too broadly shaped Can use race as a factor but not quota public universities can take it into account as part of overall process Alienage discriminating against somebody cause theyre not a citizen of the US Standard depends on which level of govt is acting o The Congress mere rational basis (P would have to show there is no rational basis for the discrimination) no one has ever prevailed o States judged by SS (states cant use citizenship as a requirement to be admitted to the bar, to work in private employment, to ) Need a compelling justification mere money saving is not enough Exception may requirement US citizenship to hold certain government policy making positions includes public school teachers (not: notary public) Legitimacy Intermediate / mid-level scrutiny must substantially further an important interest Being born to unmarried parents Modern cases these have mostly been swept away cause there really aren't good reasons except in intestacy case can require that connection w/ parent be established during its life time (reasonable procedures to follow to establish connection) Congress in immigrant context, legit gets RB Gender Intermediate scrutiny Most forms have not survived, b/c ordinarily the reason for different treatment aren't enough Stereotypical assumptions made for administrative convenience dont cut it Two areas where it has been upheld o Bona fide AA plans if govt can show its making up for past discrimination it can be upheld, but cant just be an after the fact justification Ex: nursing school for women didnt cut it o Real difference cases statutory rape cases and draft registration cases Draft registration at the time, the background that women were not eligible for combat was not contested and since they were not

14

Constitutional Law

eligible it is important for Congress to be able to identify those who could be put in field in emergency Statutory Rape justify based on wanting to prevent unwanted teenage pregnancy; females have natural deterrent, males need one

All other classifications Intelligence, wealth, age will all be judged under rational basis Almost will always be upheld but in some case it has not o Permit denial for home for retards no other reason o Sexual orientation Romer only basis for rule was discriminating which isn't cool Fundamental (Substantive) Rights: o Bill of rights + implied rights the court will read into the constitution under SDP (and under EP a little bit too) o Govt intrudes into our liberty all the time but we look at them under rational basis so whatever o 5 Fundamentals: privacy, political/voting, travel, 1A, ? Rights of Privacy Right to marry and divorce o Protected against substantial or unreasonable burdens or interferences Right to use contraceptives o FR to buy contraceptive o Married people have the right to use them in private Right to terminate a pregnancy o Prior to viability govt may not impose any undue burden on womens choice to .. UB substantial obstacle (not everything that increases cost or briefly delays) Can require informed consent or waiting period Can require parental permission for unemancipated minors but must allow judicial bypass Can refuse to fund (constitutional right to travel but govt doesnt have to give you bus money) o After viability govt can regulate and prohibit but there must always be an exception for mothers life or significant health interest Right to enjoy obscenity in your home o Right to possess (not sell, transport, o Cannot involve children Family-Type Interests o Right to raise children as you see fit State can step in if unfit (but must show thats the case o Right to maintain relationship w/ your children o Right to live together as a (traditional blood) family Ex: ordinance limiting people who can live together to ones related by blood or marriage can be justified under RBR to prevent overcrowding doesn't matter that it is over broad o Right for adult to refuse unwanted medical care Balancing test though generally, a competent adult person can say they no longer want medical care even if refusing that medical care will hasten the end of their life No right to allow you to kill yourself o No FR to engage in private consensual sexual activity

15

Constitutional Law

RB can be to preserve morals Political Right to vote o Reasonable limitations are ok 50 day residency requirement, narrow water context-property requirement, felons, literacy No poll taxes, long residency requirements Right to have your vote counted equally w/ others o In S&L elections, must have equal apportionment (EP guarantee) o Federal elections HOR elected by the people, must have apportionment o Senate 2 per state constitution says so o Gerrymandering 2 kinds Racial Intent to dilute the vote of minority voters SS To enhance the vote of minority voters still SS If predominant purpose is drawn so as to achieve racial Gerrymander look at the shape and whats covered Political If you arrange a district to obtain a political result and you lock out the other party on a permit basis it could be a violation Access to the ballot can be reasonable limitations Interstate Travel Severe burdens imposed on person wanting to move to another state o Usually durational requirements on necessity of life benefits Once living in the other state cant have fixed permit distinctions ex: Alaska payments based on how long youve been there cant have this Interstate P/I Clause Art. IV, Sec. 2: prohibits discrimination by a state against nonresidents when the discrimination involves fundamental right for the purpose of this clause FRs include important commercial activities (such as the pursuit of livelihood) or civil liberties this includes employment

Freedoms of Speech and Assembly Regulations o Content forbid communication of specific ideas to regulate govt must have compelling reason o Conduct of conduct associated w/ speaking Restrictions on all regulations of speech o Overbroad regulation is facially invalid if it punishes a substantial amount of protected speech in relation to its plainly legitimate sweep unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected speech Facially Invalid cant be enforced against anyone not even a person engaging in an activity thats not constitutionally protected If regulation is not substantially overbroad, it can be enforced against persons engaging in activities that aren't constitutionally protected Ex: no nudity in drive-ins is overbroad; nudity obscenity Ex: no 1A speech in airports overbroad o Void for Vagueness Doctrine a criminal law or regulation that doesnt give persons reasonable notice of what is prohibited may violate the DPC ~ principle is applied somewhat strictly when 1A activity is involved

16

Constitutional Law

Discretion Given regulations cant give officials broad discretion over speech issues; there must be defined standards for applying the law If licensing officials are given unbridled discretion, a statute is void on its face (speakers dont even need to apply for a permit) If licensing statute includes standards, a speaker may not ignore it; must seek permit and if denied, then challenge denial on 1A grounds If executive officer is given power to give permits w/o criteria that is content neutral Examples o Permit 24hrs in advance first come first serve OK o Where official is allowed to chose based on public interest NO o Permission to put a newspaper vending machine based on what mayor things is reasonable - NO Scope of Speech o Freedom includes freedom not to speak Govt generally cant require people to salute the flag or display messages they disagree with But, may tax people and use the revenue to express a message w/ which they disagree People cant be compelled to subsidize private messages w/ which they disagree (ex: lawyers can be compelled to pay bar fees, but cant be compelled to pay sums to such private associations that will be used to support political views or candidates whom they dont endorse) o Exception University Activity Fees can require public university students to pay even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral o Symbolic Speech freedom can extend to symbolic acts undertaken to communicate an idea the govt may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary Ex: live free or die on license plate cannot force to carry around a message w/ which you disagree there must be a compelling reason Being forced to associate w/ a message is content control Symbolic speech control of conduct will only be content control if it is associated w/ the message Ex: destroying draft card govt didnt care why you were doing; govt wasnt aiming at the message Funding v. Regulation Congress has > leeway when funding speech o It may selectively fund programs it believes to be in the public interest while denying funding to alternative programs o Viewpoint restrictions generally aren't allowed when the govt funds private speech o

Regulation of Conduct Associated w/ Speech Time, Place, and Manner Restrictions Highest dividend subsection!!! A valid TPM control has to be neutral on its face and as applied o Ex: banning demonstrations in a given building versus banning political demonstrations in a particular building the later focuses on message and is therefore content control Also must leave open other opportunities to get out message Law must serve a significant state interest anything you can say w/ a strait face to a judge Ex: during two week fair, literature handed out, must be handed out from a fixed location both w/in fair grounds this is fine Public Forums and Designated Public Forums

17

Constitutional Law

Public Forum = public property that has historically been open to speech related activities (e.g., streets sidewalks, and public parks or property the govt has opened up to public expression) o Designated or Limited Public Forum = public property that hasnt historically been open to speechrelated activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (e.g., school rooms open for afterschool use) o Rule: the govt may regulate speech in public forums and designated public forums w/ reasonable time, place, and manner regulations that: (i) Are content neutral (ii) Are narrowly tailored to serve a significant (important) government interest; and (iii) Leave open alternative channels of communication o Note: Almost every legitimate governmental interest satisfies the significant/important standard A reg that meets the time, place, and manner requirements could still be invalid if overbroad, vague, or gives unfettered discretion o Injunctions against speech in public forums (treated differently from generally applicable laws) If content based, must be necessary to achieve a compelling interest If content neutral, must burden no more speech than is necessary to achieve a significant government interest Nonpublic Forums - one of three special context areas where government has > latitude to regulate content and time, place, and manner of expression o Nonpublic forums jails, schools, military bases, government workplaces, telephone poles, internal sidewalks of government property, teacher mailboxes o Def. = government owned forums not historically linked w/ speech and assembly and not held open for speech activities, such as military bases, schools while classes are in session, governmental workplaces, etc. o Rule: regulations are valid if they are: (i) Viewpoint neutral; and (ii) Reasonably related to a legitimate governmental purpose o When non-public forums are opened to public speech cannot engage in view point discrimination

Unprotected Speech Regulation Based on Content Content Restrictions must be narrowly tailored to achieve a compelling government interest o The govt has a compelling interest in categories of speech deemed unprotected speech under 1A Flag desecration statute NO No campaigning w/in 100 feet of the poll on election day this was upheld under strict scrutiny Political campaign expenditures are speech Contributions here the govt has been able to show compelling justification Categories of Unprotected Speech o Categories of speech that get their own special rules w/ respect to content control o (1) Inciting Imminent Lawless Action speech can be burdened if it creates a clear and present danger of imminent lawless action Must show that: (i) (Speaker knows) imminent illegal conduct is likely (in the context), and (ii) The speaker intended to cause it (use words aimed at inciting the behavior) Speech must be the trigger of the action Cant control mere advocacy Hecklers Veto need o (2) Fighting Words speech can be burdened if it constitutes fighting words

18

Constitutional Law

Fighting Words = personally abusive words that are likely to incite immediate physical retaliation in an average person (merely annoying or offensive words are insufficient) Have not been found in modern cases will invariably be found vague or overbroad Cant be designed to punish only certain viewpoints (e.g., proscribing only FWs that insult on the basis of race, religion, or gender) True Threats are not protected SC has upheld a statute banning cross-burning when carried out w/ the intent to intimidate Practical Matter statutes that attempt to punish fighting words are usually vague or overbroad (on exam: should generally be regarded as invalid) (3) Obscenity obscene speech isn't protected Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person (The Miller Test) (i) Appeals to the prurient interest in sex, using a community standard; (ii) Is patently offensive and an affront to contemporary community standards; and (iii) Lacks serious value (literary, artistic, political, or scientific), using national reasonable person standard It has to be sexy make you itch and long w/ desire, has to be specifically defined and sickening, and no serious value (4 Ss is when you have obscenity) o Nudity and pornographic material is not alone obscene Note: appeal to the prurient interest and offensiveness are judged by contemporary community standards (local or statewide, not necessarily national standards), while value is judged on a national reasonable person basis States may adopt specific definitions of obscenity to apply to materials sold to minors, but may not prohibit the sale and distribution of material to adults merely b/c it is inappropriate for children Govt may prohibit sale or distribution of visual depictions of sexual conduct involving minors, even when it wouldnt otherwise be found obscene (to protect minors from exploitation) But, may not bar visual materials that only appear to depict minor engaged in sexually explicit conduct, but in fact uses young-looking adults or computer generated images Land Use Regulations may limit the location or size of adult entertainment establishments if the regulation is designed to reduce secondary effects of such businesses (e.g., rise in crime rates or decline in property values) but regulations may not ban such establishments altogether Liquor Regulation states have broad power and laws relating to this power that affect free speech rights generally wont be set aside unless theyre irrational Private possession of obscene material in the home cannot be punished (unless its kiddie porn); this protection doesnt extend outside the home (4) Defamatory Speech can be burdened If about a public official or public figure or involves a public concern, 1A requires the P to prove all the elements of defamation plus falsity and some degree of fault 1A may also play a role in certain privacy actions (5) Some Commercial Speech Generally afforded 1A protection if truthful afforded less protection than other speech Govt may regulate false, deceiving, and misleading commercial speech (advertising) or commercial speech that advocates illegal activity (or something) Otherwise it gets hefty, but not strict, scrutiny Test: watch out for total bans these will be struck down b/c you can probably have more tailored means (ex: post office ban of condom ads via the mail no go)

19

Constitutional Law

May be burdened if it proposes unlawful activity or is misleading or fraudulent Any other regulation of commercial speech will be upheld only if it: (i) Serves a substantial government interest; (ii) Directly advances that interest; and (iii) Is narrowly tailored to serve that interest Narrowly Tailored = doesnt have to be the least restrictive means of accomplishing the legislative goal there just must be a reasonable fit between the goal and the means chose SC has never upheld a complete ban on truthful advertising of a lawful product b/c such a restriction is not narrowly tailored (a complete ban on advertising of tobacco products probably will be an unconstitutional infringement on freedom of speech) Standard for testing the validity of commercial speech regulations is more stringent than the rational basis test (when speech regulated concerns lawful material and is not misleading or fraudulent)

Prior Restraints (rarely allowed) On test: if asked for strongest argument look for this b/c it is so strongly disfavored Prevent speech before it occurs (rather than punish it afterwards) Govt has a heavy burden in justifying must show some special societal harm will otherwise result o To be valid, a system for prior restraint must provide the following procedural safeguards: (i) The standards must be narrowly drawn, reasonable, and definite; (ii) Injunction must promptly be sought; and (iii) There must be prompt and final determination of the validity of the restraint o Number of cases, especially in the area of movie censorship, require the government bear the burden of proving that the speech involved is unprotected Valid Prohibiting publishing of troop movement in times of war Enforcing contractual prepublication review of CIA agents writings Invalid Prohibiting publication of the Pentagon Papers b/c it might have an effect on the Vietnam War Prohibiting grand jury witness from ever disclosing testimony

Obscenity Cases o Seizures of Books and Films When of a single book or film, may be made w/ a warrant based on PC, but if the item is available for sale to the public, a police officer may purchase a book or film to use as E w/o a warrant Large-scale seizures must be preceded by a full scale adversary hearing and a judicial determination of obscenity o Movie Censorship Time delays incident to censorship are less burdensome on movies than on other forms of expression Govt established censorship boards may therefore screen movies before they are released, as long as procedural safeguards are followed o Burden of Govt when a content-based, prior restraint of speech is adopted, the govt has the burden of proving that the restriction is narrowly tailored (i.e., the least restrictive alternative) to accomplish its goal

Freedom of the Press Generally no > 1A freedom than private individuals (so above discussed concepts apply) States can pass shield laws but those are statutory

20

Constitutional Law

No right to reply for readers would violate papers 1A right Right to publish truthful information regarding a matter of public concern o Can be restricted only by a sanction thats narrowly tailored to further an interest of the highest order 1A guarantees the public and press a right to attend criminal (and probably civil) trials o Right may be outweighed by an overriding interest stated in the TJs findings (e.g., protecting kid victims of sex offenses) o Right includes the right to be present at vior dire and any other pretrial proceedings unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value Members of press may be required to testify before grand juries 1A doesnt give journalists the right to interview specified prisoners of their choice or to inspect prison grounds Press and broadcasting companies can be subjected to general business regulations or taxes but cant be targeted for special regulations or taxes o Tax or regulation impacting on the press or a subpart of the press cannot be based on the content of the publication (e.g., a tax exemption cant be given to medical journals) absent a compelling justification Radio and television broadcasting may be more closely regulated than the press o Viewers and listeners have the paramount right to receive information of public concern (over broadcasters right to broadcast what it pleases) o Paramount right allows govt to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airways o Fairness Doctrine 1A doesnt require broadcasters to accept political advertisements But a radio station may be constitutionally required to offer free broadcasting time to certain individuals (e.g., opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast) Cable Television Regulation generally subject to review standard somewhere between strict scrutiny and less critical review given to broadcast media o Content-neutral intermediate scrutiny o Content-based strict scrutiny Internet Regulation gets strict scrutiny

FREEDOM OF ASSOCIATION AND BELIEF Nature of the Right Not mentioned but implied from the rights that are explicitly noted The govt may neither prohibit politically unpopular groups nor unduly burden a persons right to belong to such groups Infringements may be justified by a compelling state interest, unrelated to the suppression of ideas, if the infringements are the least restrictive means of protecting the government interest involved Electoral Process Regulations of might impact freedoms of speech, assembly, and association If restriction on 1A activity is severe, strict scrutiny is applied If restriction is reasonable and nondiscriminatory, it will generally be upheld Examples o Invalid regulations: (1) Prohibiting party form endorsing or opposing candidates in a primary (2) Regulating party selection of delegates to national convention (3) Prohibiting any campaigning on election day (involves core political speech and is overbroad)

21

Constitutional Law

(4) Requiring political parties to allow nonparty members to vote in parties primary elections (5) Prohibiting judicial candidates from announcing their views on disputed legal and political issues o Valid Regulations: (1) Requiring number of signatures to get on the ballot (2) Enforcing a party rule requiring voters to be registered w/ a political party to vote in the partys primary (3) Requiring a voter to be registered in a political party or as an independent to vote in the partys primary (i.e., prohibiting persons registered in one major political party from voting in the others) (4) Prohibiting campaign activity w/in 100 feet of polling place (narrowly tailored) (5) Prohibiting individuals from appearing on the ballot as the candidate of more than one party Limits on Contributions subject to intermediate scrutiny must be closely drawn to match a sufficiently important interest o May limit amount of money a person, group, or corporation can contribute to a political candidate to prevent corruption or avoid the appearance thereof o May not limit the amount of money that may be spent to support or oppose a ballot reform, and there is an exception for groups or corporations formed specifically to participate in the political debate May not limit the amount a candidate or group spends on a political campaign Regulation of core political speech will be upheld only if it passes muster under strict scrutiny (distinguish: regulation of the process surrounding an election)

Bar Membership and Public Employment Speech of public employees is one of the three areas where the government has more latitude Restraints on Conduct two tests for when a govt empr seeks to fire an empe or otherwise terminate relationship for speech-related conduct (application depends on whether the speech involved is a matter of public concern) o If a matter of public concern is involved, carefully balance empes rights as a citizen to comment on a matter of public concern against govts interest as an empr in efficient performance of public service o Otherwise, give a wide degree of deference to the govt emprs judgment concerning whether the speech was disruptive Ex: comment re threat on Regans life where boss automatically fired that wasnt acceptable b/c no inquiry was made Official Duty Exception: govt empr may punish a public empes speech whenever the speech is made pursuant to empes official duties, even if it touches on a matter of public concern Fed govt may prohibit federal executive branch empes from taking part in political campaigns o Provision banning govt empes from accepting an honorarium for making speeches, writing articles, or making appearances violates 1A when applied to rank and file empes (rule deters speech w/in a broad category of expression by a massive number of potential speakers, and thus can be justified only if the govt can show that the empes and potential audiences rights are outweighed by the necessary impact the speech would have on actual operation of the government o Public empe may not be hired, fired, promoted, transferred, etc., based on party affiliation except as to policymaking positions, where party affiliation is relevant

22

Constitutional Law

Standards for conduct must not be vague (e.g., prohibition against treasonable or seditious utterings is vague) Loyalty Oaths govt may require empes to take loyalty oaths as long as theyre not overbroad or vague o Cant prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine (over breadth) o Requiring to support the Constitution and to oppose unlawful overthrow is valid o Requiring to support the flag is invalid (b/c refusal to salute on religious grounds might conflict w/) Disclosure of Associations may not force disclosure of every organizational membership in exchange for empt or other benefit; may only inquire into those activities that are relevant to the empt or benefit sought (person can exercise 5A right if the disclosure would be incriminating) In Schools o May enforce standards of decency in discourse (478 US 675 look at after the bar) o In classroom setting o Out of class can prohibit speech if it

FREEDOM OF RELIGION 1A prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Amendment Free Exercise Clause Prohibits govt from punishing someone on the basis of religious beliefs o Govt may deny benefits to or impose a burden on someone based on religious belief if there is a compelling interest (SC has never found an interest compelling enough to justify this action) o Ex: clause forbids: (a) State govts from requiring office holders or empes to take a religious oath (b) States from excluding clerics from holding public office (c) Courts from declaring a religious belief to be false o Religious Belief = SC hasnt defined what constitutes a RB Doesnt need to come from an organized religion or involve a supreme being An asserted RB has never been held to be not religious for 1A purposes General Conduct Regulation No Religious Exemptions Required o FEC cant be used to challenge government regulation unless the regulation was specifically designed to interfere w/ religion o FEC doesnt require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct (i.e., a law that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him form complying w/ the law) Exceptions: Unemployment Compensation Cases: a state cant refuse to grant unempt benefits to persons who quit their jobs for religious reasons (i.e., work or conditions of work conflict w/ tenets of the workers religion) worker need not belong to a formal religious organization as long as belief is sincere Right of Amish Not to Educate Children: SC has granted the Amish an exemption from a law requiring compulsory school attendance until age 16, based of the FEC and the fundamental right to educate ones children Summary: the FEC prohibits govt interference w/ religious beliefs, but it generally doesnt prohibit regulation of conduct. If the action regulates general conduct including religious conduct it is valid (the only exceptions to this rule pertain to unempt compensation and Amish kids) The Establishment Clause

23

Constitutional Law

Prohibits laws respecting the establishment of religion Sect Preference: if a regulation or action includes a preference for one religious sect over another, it is invalid unless it is narrowly tailored to promote a compelling interest (its unlikely the govt could ever have a compelling interest in preferring one religious group) No Sect Preference: valid under the EC if it: o (i) Has a secular purpose; o (ii) Has a primary effect that neither advance nor inhibits religion; and o (iii) Does not produce excessive government entanglement w/ religion o Accommodation of religion by an exemption from a state statute that forbids emprs from discriminating on the basis of religion provided to established religions that employ persons to engage in nonprofit activities, is a permissible government purpose and has only an incidental effect of advancing religion o Cases Unconnected to Financial Aid or Education: good rule of thumb a law favoring or burdening religion or a specific religious group will be invalid, but a law favoring or burdening a large segment of society that happens to include religious groups will be upheld (e.g., exempting traditional religions from registration requirements vs. Sunday closing laws) o Cases Involving Financial Benefits to Religious Institutions: three-part test is applied w/ stricter scrutiny when government financial aid is going to religiously affiliated grade or high school than when it goes to another type of religious institution Recipient-Based Aid: may give aid to a defined class of persons as long as the class is defined w/o reference to religion or religious criteria - program will be valid even if most recipients use it to attend a religiously affiliated school Aid to Colleges and Hospitals: will be upheld as long as the government program requires the aid to be used for nonreligious purposes and the recipient so agrees Aid to Grade Schools and High Schools: usually found to have a secular purpose, but may fail other parts of the test (ex: if the program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be stricken for excessive government entanglement) o Religious Activities in Public Schools: school sponsored religious activity is invalid, but school accommodation of religion is valid + if members of public and private organizations are allowed to use property when schools arent in session, cant deny a religious organization permission to use the property for meetings merely b/c religious topics will be discussed Establishment Clause Cases Valid Invalid

Nonfinancial Aid and Education Cases Legislatures empt of a chaplain Delegation of zoning power to religious organization Granting religious organizations exemptions from Requirement that all emprs grant all workers their empt discrimination laws where contrary to the Sabbath day off organizations beliefs Christmas display that includes religious symbols and Christmas display of only religious symbols non-religious symbols Ten commandment display when purpose is not Ten Commandment display w/ predominately predominantly religious religious purpose Recipient-Based Aid Tax credits for parents of all students for educational Tax credits only to parents of private school students expenses for educational expenses Tuition vouchers for poor students that can be used a participating public and private schools Aid to Religious Grade and High Schools

24

Constitutional Law

Reimbursement to private schools for compiling state- Reimbursement to private schools for writing required data or administering standardized achievement tests achievement tests Providing govt empes to test private school students Providing private schools w/ teachers, or money to for health or learning problems and the provide on-site pay teachers, or secular classes auxiliary services, such as remedial education guidance, or job counseling Exemption from property tax for religious, charitable, Tax exemption only for religious associations or and educational property activities Transportation to and from school for all students Providing all students w/ state-approved textbooks or lending religiously neutral instructional material to private as well as public schools Religious Activities in Public Schools Ending classes early to allow students to attend offEnding classes early to give voluntary in-school school religious classes religious classes Allowing religious student groups to meet in unused Prayer, Bible reading, or posting Ten classrooms as any other student group Commandments in classrooms or at school football games Requiring that creation science be taught

Content-Based Restrictions

Strict Scrutiny

Content-Neutral Restrictions

Intermediate Scrutiny

Must show: (i) That the regulation is necessary to serve a compelling state interest, and (ii) That it is narrowly drawn to achieve that end Will be upheld if: (i) They advance important interests unrelated to the suppression of speech, and (ii) They do not burden substantially more speech than necessary to further those interests

Time, Place, and Manner Regulations Public Forums Must be: (i) Content neutral (ii) Narrowly tailored to serve a significant government interest (may not burden more speech than is necessary to further the significant government interest), and (iii) Leave open alternative channels of communication Nonpublic Will be upheld if: Forums (i) Viewpoint neutral and (ii) Reasonably related to a legitimate government purpose

25

Constitutional Law

26

Constitutional Law

27