1

Major Issues Checklist

I. Introduction
II. Case or Controversy & Jurisdiction
III. Equal Protection
IV. Substantive Due Process
V. Procedural Due Process
VI. Takings Clause
VII. 1
st
Amendment

2

Component Checklists

Introduction
Case/Controversy & Jurisdiction
Origins
Passive Virtues
Standing
Equal Protection
Rational Basis Review
o Test
o Class
o State Objective/Goal
Strict Scrutiny
o Used for:
Suspect Class
Fundamental Rights
o Test
o Application to Race
o Affirmative Action
o Redistricting
Intermediate Scrutiny
o Test
o Applicability
o Gender
o Sexual Orientation & Same Sex Marriage
Other Groups and Standards of Review
o Aliens
o Wealth Classifications
o Poverty & Rights
o Other Disadvantaged Groups
Mentally retarded
Illegitimate Children
Aged
Substantive Due Process & Fundamental Rights
Basics
Right to Have Children
Right to Vote
o Gerrymandering
o Campaigns
Right to Travel
Miscellaneous
Right to Education
Right to Privacy
Right to Family
Right to Die
Procedural Due Process
General
3

Deprivation of Property
Deprivation of Liberty
o General
o Inmates
o Benefits
o Miscellaneous
Takings Clause
Basics
Zoning Restrictions
Easements
Regulations
Determining if There Has Been a Taking
Takings Generally
1
st
Amendment
Freedom of Speech
o General
o Fighting Words/Hate Speech
o Obscenity
o Content Neutral Restrictions
Freedom of the Press
Establishment Clause
o Court Definition of Religion
o Public Prayer
o Lemon Test

4

Quick Look Outline

Introduction
Origins and Background
Constitutional Interpretation
Amendment Process
Constitution as a democratic/anti-democratic document
Republicanism
Case/Controversy & Jurisdiction
Origins
Passive Virtues
Standing
o Constitutional
o Prudential
o Political Questions
o Timing
Mootness
Ripeness
Equal Protection
Rational Basis Review
o Basic standard for review
o Test:
Is there a state action?
Is there a targeted class?
Is the state action legitimate, i.e. is it reasonably related to its goal?
o Class:
Cant legitimately target due to unpopularity (NYC Transit Authority v. Beazer;
Marino v. USDA)
Court is more sympathetic to classifications based on voluntary characteristics
(NYC Transit Authority v. Beazer)
Court will defer to state action if it is rationally related to its legitimate goal,
even if there is evidence to the contrary WRT discrimination (NYC Transit
Authority v. Beazer)
Can have a class of one
o State objective/goal
Must be legitimate cannot be undertaken to be vindictive
Actual Purpose Review:
There is no equal protection claim against legitimate goals
A statute containing one legitimate goal and several illegitimate goals
will survive rational basis review
Strict Scrutiny
o Used in cases of:
Suspect class race, ethnicity
Non-suspect classes: Drug users, the mentally retarded, LGBT community,
indigents subject to rational basis review
Fundamental rights
o Test:
5

Is there a state action?
Is there a targeted class?
Is the state action legitimate, i.e., does the state have a compelling interest in
its goal?
Means Test: State action must be narrowly tailored to accomplish the state
objective, i.e., it is the only way to accomplish the goal
o Race can be a legitimate classification, but the state must have a compelling interest if
its action is to survive strict scrutiny
o National security is a compelling interest (Korematsu v. US)
o Blatant racism/racial purity is not a compelling interest (Loving v. VA)
o Using race in a custody decision in an effort to avoid stigmatizing the child does not
meet the compelling interest (Palmore v. Sidoti)
o Challenger must show that discrimination is intentional (Washington v. Davis)
o No requirement that discrimination be the sole/primary purpose/action (Village of
Arlington Heights v. Metropolitan Housing District)
o Discriminatory impact, alone, is does not trigger strict scrutiny (Washington v. Davis)
o Criminal Justice
Convictions can be reversed on equal protection grounds if a facially neutral jury
selection statute is applied in a racially discriminatory manner (Casteneda v.
Partida)
There is an equal protection claim if potential jurors are excluded from the jury
pool; defendant must show that he is part of a racial/ethnic group if he does
the prosecutor has the burden of proving that he did not discriminate (Batson v.
KY)
Defendant cannot make an equal protection claim using statistical evidence to
show that his racial group is sentenced in a discriminatory manner (death
penalty entitled to trial, not a particular sentence (McClesky v. Kemp)
Must show that similarly situated persons of a different race are treated
differently; must prove profiling (US v. Armstrong)
o Affirmative Action:
Diversity in higher education is a compelling interest (Regents v. Bakke)
A general history of past discrimination is not sufficient to deny admission to
other groups need specific evidence of past discrimination (Regents v.
Bakke)
Strict quotas are not acceptable (Regents v. Bakke)
Cannot maintain an affirmative action program unless you can show that it
eliminates the effects of past discrimination (Richmond v. Croson)
New York demonstrated specific examples of intentional discrimination, causing
it to redraw voting districts (United Jewish Organizations v. Carey)
Government agency can remedy its past racial discrimination (US v. Paradise)
Government contracts awarded on the basis of socially/economically
disadvantaged status require strict scrutiny social/economic status is a
surrogate for race (Adarand v. Pena)
Strict scrutiny is triggered if a university uses race as in its admissions decisions
(Grutter v. Bollinger)
Race can be one factor of many in an admissions decision not the deciding
factor (Grutter v. Bollinger)
6

Cannot award points for race can be a positive factor, not a deciding factor
(Grutter v. Bollinger)
Diversity not a compelling interest in primary/secondary schools (Parents
Involved v. Schools of Seattle)
Cant fire teachers to maintain a diverse workforce (Wygans v. Jackson)
o Redistricting
Cannot redistrict for solely racial reasons (Shaw v. Reno)
Race can be a factor, just not the only factor; political gerrymandering is OK
(Hunt v. Cromartie)
Intermediate Scrutiny
o Test:
Is there a state action?
Is there a targeted class?
Is the states action legitimate, i.e., is it substantially related to an important
state interest?
o Applies to:
Gender
Sex
Illegitimacy
Sexual orientation
Same sex marriage
o Gender
Method of Analysis for gender-related laws/regulations
Identify the issue is it an equal protection or due process issue?
Does the law/regulation perpetuate archaic stereotypes?
Does the law combat ongoing discrimination?
States cannot favor men over women in the appointment of estate
administrators this is an arbitrary statute that the 14
th
Amendment was
designed to protect against (Reed v. Reed)
Female military personnel cannot be required to provide that they provide more
than 50% of their husbands support to be eligible for benefits at the with
dependents rate if male military personnel are not required to do the same
WRT to their wives court compared gender to race (Frontiero v. Richardson)
Gender is an immutable characteristic more likely to be protected than other
characteristics (Frontiero v. Richardson)
Statutes granting custody to unwed mothers and denying custody to unwed
fathers uses a conclusive presumption of unfitness violates equal protection
(Stanley v. IL)
State cannot require pregnant teachers to go on maternity leave at an
unnecessarily early date in the absence of an important interest this is
actually a Due Process rather than a gender issue (Cleveland Board of Education
v. LaFluer)
State cannot exclude women from juries relies on archaic conceptions of
gender roles; women are sufficiently numerous and distinct from men as to be
necessary from men to be necessary for compliance with the 6
th
Amendments
requirement for a fair community cross-section (Taylor v. LA)
7

Statutes that require parents to support male children until they are 21 and
female children until they are 18 are not valid rely on old notions that are
no longer valid (Stanton v. Stanton)
A statute granting a property tax exemption to widows but not widowers is
constitutional compensates for ongoing discrimination suffered by women in
the workforce (Kalin v. Shevin)
A Navy policy that grants female officers more time to be promoted than male
officers is constitutional policy compensates for ongoing discrimination
resulting from the prohibition against women serving in combat roles
(Schlesinger v. Ballard)
Excluding pregnant women from a state disability insurance program is
constitutional state has an important interest in maintaining a viable
insurance program (Geduldig v. Aiello)
Pregnancy is a condition, not a disability exclusion policy is not gender-based
(Geduldig v. Aiello)
Pregnancy is not immutable its temporary; it is also voluntary; not all women
get pregnant (Greduldig v. Aiello)
Maintaining different age requirements for men and women purchasing beer
triggers heightened scrutiny state action is not substantially related to the
important state interest in traffic safety; statute is based on outdated
stereotypes (Craig v. Boren)
Heightened/intermediate scrutiny is triggered in mattes of gender Gender is
immutable (Craig v. Boren)
Gender classifications must be related to an important state interest cannot
simply perpetuate gender stereotypes (US v. VA)
Controlling citizenship is an important interest Differing rules governing
transmission of citizenship by mothers and transmission of citizenship by fathers
is not a matter of prejudice but of biology (Nguyen v. US)
Statute granting widows survivors benefits based on husbands earnings, while
denying those benefits to widowers (unless they can show that they were
dependent on their wives for more than his support) is invidious
discrimination statute is based on archaic stereotypes (Califano v. Goldfarb)
If congress changes a benefit calculation plan, it is not necessarily an admission
that the previous method, that was more favorable to women, was invidiously
discriminatory (Califano v. Webster)
A benefit calculation plan that favors women may be acceptable if it is
addressing discrimination (Califano v. Webster)
Wengler v. Druggists Mutual: Court invalidated a MO law that provided for a
gender-based payout system for death benefits
Family Medical Leave Act
Federal employees are entitled to 12 weeks of unpaid leave for
childbirth
Leave can be extended for women
Can argue that women have a greater need for physical recovery
Nguyen case mothers have a closer relationship to children than
fathers do
o Sexual Orientation and Same Sex Marriage
14
th
Amendment: Liberty prong covers individual action
8

Court extends this to privacy
Substantive due process refers to conduct, substantive freedom
Criminalization of sodomy is the state regulation of conduct; infringes on the
Due Process Close no suspect or intermediate class; rational basis review
(Lawrence v. TX)
State has no legitimate interest in intruding on the private life of individuals
(Lawrence v. TX)
State cannot seek to regulate the personal relationships of consenting adults
conducted in private (Lawrence v. TX)
Under the equal protection clause, the targeted class does not have to be
outwardly visible (Romer v. Evans)
Gay people are not a suspect or intermediate class (Romer v. Evans)
Targeting gay people because they are unpopular is invidious discrimination
(Romer v. Evans)
Due Process Clause of the 5
th
Amendment enabled a successful challenge to
DOMA (Windsor v. US)
2
nd
Circuit determined that gay people were a quasi-suspect class
intermediate scrutiny
2
nd
Circuits analysis of DOMA challenge
o There is a history of discrimination against the class
o The class is capable of functioning in/contributing to society
o Class has a distinctive characteristic that makes is
discernable/definable characteristic does not have to be
immutable, can simply be distinguishing
o Class is politically powerless
DOMA, which denies federal benefits to lawfully married same sex
couples, was not adequately supported by any permissible federal
interest violated equal protection (rational basis with a bite) (MA v.
HHS)
CA Proposition 8
Passed after a statute banning same-sex marriage was declared
unconstitutional by the State Supreme Court Court invoked a
standard of strict scrutiny
CA Supreme Court did not strike down Prop 8
Federal District Court strikes down Prop 8 and the state refuses to
appeal
9
th
Circuit affirmed the District Court, after private parties took on the
case on behalf of the state
Supreme Court determined that the parties seeking reversal did not
have standing because they could not show injury Court exercised a
passive virtue
Other Groups and Standards of Review
o Aliens and Equal Protection
General Rules
Aliens are not a suspect class status is not immutable, can become
citizens (Phyler v. Doe)
Rational basis review
9

Undocumented aliens are not entitled to the same level of protection as
documented aliens
Federal government can take any action that is not arbitrary and unreasonable
Hospitals are only required to provide emergency care for illegal aliens
Illegal aliens can be denied most state services
The President can authorize military tribunals for non-citizens while requiring
regular courts for citizens
State cannot transfer custody of an illegal aliens child to a potential
adoptive parent Arbitrary, alienage is unrelated to parental fitness
Aliens cannot challenge deportation on equal protection grounds (Reno v.
American-Arab Anti-Defamation Committee)
State can bar aliens from:
Becoming police officers (Foley v. Connelie)
Becoming probation officers (Cabell v. Chavez Salido)
Teaching in public schools (Ambach v. Norwalk)
State cannot bar aliens from:
Becoming notaries (Bernal v. Fainter)
Joining the state bar (In re Griffiths)
State civil service under a blanket policy (Sugarmann v. Dougall)
o Case was subject to strict scrutiny alienage often closely tied
to race
o Statute not narrowly tailored to sensitive/policymaking
decisions
State cannot bar illegal aliens from public education (Phyles v. Doe)
o Subjects children to a lifetime of hardship for their parents
actions
Not rational unless it can further some substantial state goal
Municipalities can withhold business permits from businesses that employ
illegal aliens
Standards of review
Undocumented Aliens Rational Basis
Documented Aliens
o Federal Rational Basis
o State Strict Scrutiny
o Wealth Classifications
Poor are not a suspect class
Theoretically not an immutable characteristic
The history of discrimination against the poor has been private rather
than public
Cases: 1960s Deference toward the poor
Poll taxes have a negative effect on voters by posing a financial bar to
voting Violates the Equal Protection Clause of the 14
th
Amendment
(Harper v. VA)
State does not have to provide an appeal when it does provide an
appeal, it must offer the same advantages to the indigent as it does to
other appellants (Griffin v. IL)
10

State cannot deny an appellant a transcript because of an inability to
pay (Griffin v. IL)
State cannot impose a residency requirement on welfare applicants if
they are otherwise eligible (Shapiro v. Thompson)
Indigents are entitled to a hearing before the state terminates welfare
benefits (Goldberg v. Kelly)
Cases: 1960s-70s Greater hostility toward the poor
There is no equal protection claim against filing fees for ordinary civil
litigants (US v. Kras)
A CA Constitutional requirement that any building project for low
income housing be pre-approved by a popular vote during a referendum
did not violate the Equal Protection Clause (James v. Valitierra)
Plaintiffs challenging equal protection because schools in wealthier
districts are better funded than schools in poorer districts are not
entitled to strict scrutiny (San Antonio v. Rodriguez)
Nothing links better funded school districts to poverty if a student
lives in a school district he wont be turned away (San Antonio v.
Rodriguez)
o Poverty and Rights
Poverty should not prevent access to fundamental rights
Voting
Divorce
Parental rights
o Appellant cannot be barred from appealing a termination of
parental rights through the imposition of a filing fee (MLB v. SLJ)
o Loss of parental rights is loss of a fundamental right (MLB v. SLJ)
There is no right not to be impoverished
States are not required to pay for abortions
States cannot prohibiting indigents from entering the state (Edwards v.
CA)
o Other Disadvantaged Groups
Mentally Retarded
Not a suspect class
Analysis of class
o Unpopular class
o Mental retardation is an immutable characteristic
o Politically powerless class
o But there is good reason to treat this class differently cannot
interact with the rest of society in the same way as others
City denied a permit to a group home; rational basis review denial
was simply a subterfuge to keep the retarded out of the neighborhood
(Cleburne v. Cleburne Living Center)
o Illegitimate Children
South often used illegitimacy as a surrogate for race
No strict scrutiny
No intermediate scrutiny
11

Rational basis with a bite status is not the fault of the illegitimate
child
General:
Struck down a statute barring illegitimate children from claiming a
parents death benefit (Levy v. LA; Glora v. American Guarantee)
Cant exclude illegitimate children from workers compensation benefits
(Weber v. Aetna)
Illegitimate children are entitled to child support
o Aged
Not a suspect class no strict scrutiny
There are however, some statutory protections (ADEA)
Court upheld a foreign service regulation that required retirement at age 60
(Vance v. Bradley)
Substantive Due Process and Fundamental Rights
Basics:
o Fundamental rights
o New test for strict scrutiny
Is there a suspect class or fundamental right that has been implicated?
Is there a compelling state interest?
Is the state action narrowly tailored to the purpose of the action?
Right to Have Children
o Mandatory sterilization was once Constitutional (Buck v. Bell, 1927)
o Later, it became unconstitutional to impose sterilization on those who had committed
multiple crimes of moral turpitude implicates a fundamental right, triggering
strict scrutiny (Skinner v. OK)
Unlike imprisonment, sterilization cannot be reversed (Skinner v. OK)
There is also a right to marry (Skinner v. OK)
Right to Vote
o No originally a fundamental right recognized as a fundamental right in 1964
(Reynolds v. Simms)
o Historically, poll taxes (Breedlove v. Suttles, 1937) and literacy (Lassiter v.
Northampton)
o Poll taxes affected the poor, not a suspect class ; tax did infringe on a fundamental
right No relationship between wealth & ability to understand politics (Harper v. VA)
o Court cannot order a ballot recount without guidance on how to do it results in
different treatment for different voters, violating the Equal Protection Clause (Bush v.
Gore)
o Cannot limit voting in school districts to those who own/lease taxable property or send
children to schools implicates a fundamental right, triggering the Due Process Clause
and strict scrutiny; statute was not narrowly tailored (Kramer v. Free Union School
District)
o Ordinances that limit voting on municipal bonds to property owners are invalid
(Cipriano v. Houma)
o State can restrict the right of felons to vote (Richardson v. Ramirez)
o Water Districts
12

State can limit participation in water district elections to land owners and
apportion votes on the basis of the amount of property owned (Sayler v. Tulare
Basin Water District)
Water storage districts can apportion voting rights on a one acre, one vote
basis (Ball v. Jones)
o Residency Requirements
Imposing a 1 year residency requirement on voters is unreasonable state
must have a compelling interest to survive strict scrutiny (Dunn v. Blumstein)
A 50 day residency requirement is reasonable allows the state to ensure
accuracy of voter rolls (Burns v. Folson)
o Registration Deadlines
State can require voters to register their party affiliation 30 days before a
general election, to prevent party raiding (Rosario v. Rockefeller)
State cannot prevent voters from voting in one partys primary if they had voted
in another partys primary within the preceding 24 months (Kusper v. Pontikes)
o Voter ID: A requirement that voters show a photo ID, ostensibly to prevent voter fraud,
is permissible though it implicates a fundamental right, it does not trigger strict
scrutiny because it does not substantially restrict voters (Crawford v. Marion County)
o Subsidizing Elections: States can subsidize the primary elections of major parties,
without subsidizing the primaries of minor parties (American Party of TX v. White)
o Apportionment
States control apportionment, but the Court can overturn them if they dont
reflect an almost mathematical equality
States have more discretion in electoral districting in state/local elections than
in federal election state/local districting doesnt have to be as precise
(Mahan v. Howell)
One person, one vote rule applies to all elections where the official will
perform a normal governmental function includes junior college trustees
(Hadley v. Junior College District)
One person, one vote does not apply to:
At large elections
Appointed officials
Special purpose government units, e.g., water districts
o Gerrymandering
Political gerrymandering is acceptable, racial gerrymandering is not
The bizarre shape of a district can be seen as evidence of discriminatory
districting (Shaw v. Reno)
Gerrymandering that helps a minority group is as unacceptable as
gerrymandering to harm the group intent is irrelevant (Shaw v. Reno)
Section 4 of the VRA was invalid because it did not rely on current evidence of
discrimination (Shelby v. Holder)
o Campaigns
States may allocate more funds to major parties than to minor parties
States can impose fees on candidates; must have an exception for indigents
States may require supermajorities in referendums (Gordon v. Lance)
Right to Travel
o Not infringements:
Drivers license requirement state has a compelling interest in safety
13

Flight screening
Other forms of travel are available
Safety implicates the right to life
o A statute requiring 1-year residency from welfare applicants (to protect fiscal integrity
of system, enable budgeting, verify residency/prevent fraud) violates the right to travel
and does not survive strict scrutiny (Shapiro v. Thompson)
o Cannot limit welfare benefits for newcomers to the level available in their previous state
limits the right to travel without a compelling state interest (Saenz v. Roe)
o Cannot distribute a state benefit according to length of residence, arguing recognition of
past contributions not a legitimate state purpose (Zobel v. Williams)
o State cannot determine benefits available to veterans based on their date of arrival in
the state violates equal protection by creating a new class of people (Hooper v.
Bernallillo County Tax Assessor)
o Miscellaneous
One-year residency requirement for voters violates equal protection (Dunn v.
Bernstein)
Cannot require 1-year residency before being eligible for non-emergency
medical care (Memorial Hospital v. Maricopa County)
A 1-year residency requirement for bar applicants violates the privileges and
immunities clause (Piper v. NH)
State cannot require a 1-year residency for in-state tuition eligibility state can
require proof of residency (Vladis v. Kline)
A statute making it a misdemeanor to abandon a child and a felony to leave the
state after abandonment does not infringe on the right to travel (Jones v. Helm)
State can require that its employees live within the state (McCarthy v.
Philadelphia Civil Service Commission)
Right to Education
o There is no right to education
o There is no right to integrated schools
o Segregation in public schools is unconstitutional (Brown I)
o Enforcement of desegregation with all deliberate speed is responsibility of district
courts (Brown II)
o State officials are bound by the Supreme Courts rulings and orders (Aaron v. Cooper)
o Federal law is supreme (Aaron v. Cooper)
o The Supreme Court is the final interpreter of federal law (Aaron v. Cooper)
o A free choice school plan will probably be unconstitutional if it tends to prevent
desegregation (Green v. New Kent County School Board)
o District courts have broad enforcement authority WRT desegregation, but only exercise
it when local authorities have defaulted in their obligations to desegregate (Swan v.
Charlotte-Mecklenburg)
o When local authorities have defaulted, district courts may use mathematical quotas as a
starting point (Swan v. Charlotte-Mecklenburg)
o Burden is on the school to show that the segregation is not the result of past/current de
jure segregation (Swan v. Charlotte-Mecklenburg)
o Intentional discrimination is unconstitutional must be shown to be intentional (Keyes
v. School District #1)
o Segregation resulting from residential patterns is not intentional (Keyes v. School
District #1)
14

o Court cannot force the state to spend more money on school staff to attract more white
students (MO v. Jenkins)
Right to Privacy
o A fundamental right
o Derived from the liberty prong of the 14
th
Amendment
o An implied right not explicitly stated in the Constitution
o Infringement on privacy (i.e., liberty) triggers strict scrutiny
o Liberty includes (Meyer v. NE)
Ability to pursue the common occupations of life
Acquisition of useful knowledge
Right to marry
Right to establish a home
Right to raise children
o Parents have a right to determine how their children are educated (Meyer v. NE)
o Other components of liberty (Allgeyre v. LA)
Freedom to enjoy faculties
Freedom from restraint
Freedom to reside where one wishes
o Penumbras of the constitution suggest the existence of zones of privacy 1
st

Amendment, 3
rd
Amendment, 4
th
Amendment, 5
th
Amendment, 9
th
Amendment
(Griswold v. CT)
o An outright ban abortion violates the fundamental right of privacy (Roe v. Wade)
o State has a compelling interest in the competing right to life after the first
trimester/viability (Roe v. Wade)
o State cannot compel a woman seeking an abortion to obtain spousal consent (Planned
Parenthood of KC v. Danforth)
o If the state provides funding for normal childbirth, it is not required to provide funding
for abortion affected group is indigent women, who are not a suspect class (Maher v.
Roe)
o Abortion does not have to take place in a hospital (Akron v. Akron Center for
Reproductive Health)
o Woman does not have to be informed of status of pregnancy, development of fetus,
date of possible viability, possible physical/emotional complications, availability of
agencies/alternatives (Akron v. Akron Center for Reproductive Health)
o State can declare that life begins at conception aspirational statement (Webster v.
Reproductive Services)
o State law violates the fundamental right of privacy if it places an undue burden on
someone seeking an abortion (Planned Parenthood v. Casey)
o Undue Burden spousal consent (Planned Parenthood v. Casey)
o Not Undue Burden prenatal materials on childbirth, consequences for the fetus, etc.;
24-hour waiting period; consent of minors parents (requires availability of judicial
bypass) (Planned Parenthood v. Casey)
o State can regulate/prohibit abortion after viability as long as there is an exception for
the life of the mother
An exception for the life of the mother:
Is required
State can regulate the exception
State can require some special procedures
15

o Prohibition on partial birth abortion does not place an undue burden on fundamental
right of privacy does not endanger the life, health of the mother (Gonzales v.
Carhart)
Right to Family
o Derived from the liberty prong of the 14
th
Amendment
o State cannot limit housing to members of the same nuclear family without a compelling
interest; triggers strict scrutiny keeping lower class people out of an area is not a
legitimate state interest (Moore v. City of Cleveland)
Right to Die
o No right to die suicide is unlawful
o MO does not recognized a fundamental right to die family cannot unilaterally
withdraw life support (Curzon v. MO Department of Health)
o Refusing unwanted medical treatment is distinguishable there is a fundamental right
to refuse medical treatment
Procedural Due Process
General: Implicated when there is deprivation of property or liberty
Deprivation of property or liberty requires a hearing
Deprivation of Property
o Procedural due process is always implicated when a person is deprived of property
o Deprivation of property requires a hearing to comply with procedural due process
o Government benefits have been considered a property since the 1960s
o Property consists of more than real estate and money (Board of Regents v. Roth)
o A non-tenured professor does not have a property interest in future employment
(Board of Regents v. Roth)
o A tenured professor does have a property interest in future employment ((Board of
Regents v. Roth)
o Tenure is usually expressed in a contract or statute
o Other statements by the university/state may confer a tenured status (Perry v.
Sindermann)
o Opportunity to respond, as well as post-termination procedures, provide adequate due
process for terminated civil servants (Cleveland v. Loudermill)
Deprivation of Liberty
o The statutory loss of significant freedom of action implicates procedural due process
o Deprivation of liberty requires a hearing to comply with procedural due process
o Public employees cannot be fired for the exercise of freedom of speech (Givhan v.
Western Line School District)
o A child has a liberty interest in his bodily in school paddling cases (Ingraham v. Wright)
o A hearing is not required if another remedy (e.g., a tort) is available a hearing is
required if no other remedy is available (Ingraham v. Wright)
o There is no liberty interest in damage to ones reputation, unless it has a negative effect
on future job opportunities
o Suspension from a public school implicates a liberty interest could negatively affect
job opportunities (Goss v. Lopez)
o Students can be suspended for poor academic performance, provided they have had
advance notice (Curators v. Horowitz)
o Minors have a liberty interest in not being unnecessarily confined for medical treatment
(Parham v. JR)
16

o Inmates
Inmate being transferred from one facility to another (medium to maximum
security) has no liberty interest (Meachum v. Fano)
Inmate has no right to call witnesses at a disciplinary hearing (Sandin v. Connor)
Inmate does have a liberty interest if being transferred to a super-max facility
(Wilkerson v. Atkinson)
Inmates do not have a liberty interest in the denial of parole, do have a liberty
interest in the revocation of parole (Greenholtz v. Inmates)
Mental patients do have a liberty interest in commitment proceedings
purpose of commitment is treatment not incarceration (Vitek v. Jones)
o Benefits
A pre-termination hearing is required for the termination of welfare benefits
presumed that termination will precipitate a crisis (Matthews v. Eldridge)
A post-termination hearing is required for termination of disability benefits
presumed that termination will precipitate a crisis (Matthews v. Eldridge)
Termination of benefits requires notice, opportunity to respond, and an
evidentiary hearing (Matthews v. Eldridge)
Termination hearing must be before a fair, impartial decision-maker (Matthews
v. Eldridge)
If a person meets the relevant criteria, he has a liberty interest in welfare
benefits (Goldberg v. Kelly)
Hearings must be before a fair, impartial decision-maker (Goldberg v. Kelly)
Termination of welfare benefits requires a full evidentiary hearing, i.e., a trial-
type proceeding termination of non-welfare benefits require less formality
(Goldberg v. Kelly)
Miscellaneous
o Government negligence does not trigger procedural due process government action
must be intentional (Daniels v. Williams)
o Procedural due process may require recusal of a judge, i.e., bias (Caperton v. Massey)
o Difficult to fire tenured teachers even in private schools if they receive federal
benefits
Takings Clause
Basics
o Government must compensate property owners for property that it takes
o Government takings are subject to rational basis review (HA v. Midkiff)
o Taking must be done for a public purpose legislatures can determine the public
purpose (HA v. Midkiff)
o Taking cannot be for the purpose of turning property over to a private party must
serve a public purpose (HA v. Midkiff)
o Creating new jobs, increasing tax revenues are legitimate public purposes (Kelo v. City
of New London)
o Court can strike down a taking if the taking if for the benefit of a private party or the
reason for the taking is illegitimate/pretextual (Kelo v. City of New London)
o State can direct property owners to chop down diseased trees without compensation
not a taking because the land still has economic value (Miller v. Schoene)
o Restrictions on construction by property owners are not a taking if the state has a
legitimate public purpose and the property retains some economic value (Penn Central
v. NYC)
17

o Historic preservation is a legitimate public interest (Penn Central v. NYC)
Zoning Restrictions
o Legitimate if:
Serves a legitimate public interest
Does not strip the property of its economic value
The property owner retains the propertys economic value
o Destroying one stick in the bundle of sticks is not a taking
o Merely reducing the value of property is not a taking
Easements
o Easements are takings unless
They serve the public interest
The proposed development by the property owner adversely affects the area
Regulations
o Regulation raising rent by 8% is not a taking does not reduce the economic value to
$0
o Government can regulate owners who invite others onto their property (including
renters)
o Government can regulate the harmful or noxious use of property
o Considerations in evaluating regulations as takings:
Must serve the public interest
Cannot arbitrarily target an individual
Regulation cannot defy expectations
Regulation cannot lower the economic value of the property to $0
Determining whether there has been a taking:
o Has there been a physical invasion? if so, its more likely to be seen as a taking
o Has the economic value of the land been reduced to $0 if so, its a taking
Takings Generally
o Prohibition on the sale of eagle parts is not a taking owner still owns the property, he
simply cannot sell it (Andrus v. Allard)
o Consolidating small parcels of Sioux land into larger parcels is a taking abrogated the
ability to pass property to heirs (Hodel v. Irving)
o Converting industrial property to residential property, lowering its value from $25K to
$10K, is not a taking does not lower the economic value of the property to $0 (Euclid
v. Ambler)
o A statute allowing a cable company to place a cable across private property is a taking
(Lorretto v. Teleprompter)
o Conditioning a building permit on the granting of an easement is a taking that requires
compensation (Nollan v. CA Coastal)
1
st
Amendment
Freedom of Speech
o General
A fundamental right government restrictions trigger strict scrutiny
Federal speech restrictions implicate the Due Process Clause of the 14
th

Amendment
State speech restrictions implicate the Due Process Clause of the 5
th

Amendment
18

Not an absolute right but government must have a compelling interest
fighting words and obscenity are not protected
Applies to private speech, not government speech
Government Speech
Simply has to be related to a legitimate government purpose
Includes the establishment of monuments
Exception
o Cannot endorse a religion
o Monuments to the 10 commandments can be established:
Must be for the purpose of promoting the communitys
legal traditions
Must not promote a particular religion
Government does not have to establish monuments to
other religions
o Fighting Words/Hate Speech
Fighting words are not protected
Speech likely to incite imminent violence can be restricted
Not well defined by the Court must incite an immediate breach of the peace
The state has an interest in the prevention of violence (Brandenburg v. OH)
State cannot restrict speech that no one is likely to act on (Brandenburg v. OH)
State cannot restrict speech that articulates an aspirational goal (Brandenburg
v. OH)
Mere advocacy/threats cannot be restricted (Brandenburg v. OH)
State cannot restrict the use of opprobrious words opprobrious words
include non-fighting words (Gooding v. Wilson)
Content-Based Restrictions:
Presumptively invalid (RAV v. City of Saint Paul)
Often over-broad cannot restrict some fighting words but not others
(RAV v. City of Saint Paul)
Profane language used by protesters at funerals cannot be restricted (Snyder v.
Phelps)
o Obscenity
Not protected, can be regulated
Determined by whether an average person, applying a community standard,
would find that the material as a whole is obscene (Roth v. US; Alberts v. US)
Material that incites lust is not necessarily obscene (Roth v. US; Alberts v. US)
Portrayal of sex alone is not enough to deny constitutional protection (Roth v.
US; Alberts v. US)
Prurient material appeals to the morbid/shameful interest (Brockett v. Spokane
Arcade)
Basic Test for Obscenity (Miller v. CA)
Whether a person, applying a contemporary community standard,
would find that the material, taken as a whole, appeals to a prurient
interest
Whether the work depicts/describes, in a patently offensive way, sexual
conduct specifically defined by state law
19

Whether the work, taken as a whole, lacks serious literary, artistic,
scientific value
Can use a state/local community standard (Hamling v. US)
Jurors determine the community standard (Hamling v. US)
Films are not exempt from regulation simply because they are exhibited solely
for the entertainment of consenting adults (Paris Adult Theater v. Slaton)
State has the right to regulate obscene material (Stanley v. GA)
Person can possess obscene material in his own home cannot possess child
pornography (Stanley v. GA)
Child Pornography
Not protected; by definition obscene only triggers rational basis
review (NY v. Ferber)
State has a legitimate interest in eliminating child pornography (NY v.
Ferber)
o Physical/psychological health of the child
o Child pornography is inherently child abuse
o Child pornography is a permanent record that follows the child
If material involves children, it doesnt have to appeal to a prurient
interest (US v. Williams)
Child pornography is distinguishable from virtual child pornography
virtual child pornography is not subject to the same restrictions
because there is no child abuse (Ashcroft v. Free Speech Coalition)
Profanity
Not obscenity obscenity deals with erotic material (Cohen v. CA)
Profanity is low-level protected speech
Fuck the draft is unlikely to trigger violence had some political
content (Cohen v. CA)
o Content Neutral Restrictions
Any restriction on free speech in a public forum is subject to strict scrutiny
Types of forums
Public: Streets, sidewalks, parks, etc.
o State can require permits
o Can restrict speech for traffic control, public safety
Non-Public: Military installations, privately owned property, public
schools
Designated Public Free Speech Areas: State must have an explicit policy
State can limit time, place, manner of speech
Test:
Must be content neutral
Must be narrowly tailored to serve an important/compelling state
interest
There must be alternate means of speech available
A restriction that violates one prong is unconstitutional
Prohibiting leaflet distribution to prevent littering ins unconstitutional not
narrowly tailored to an important state interest (Schneider v. State)
20

Ordinances prohibiting missionaries from knocking on doors to proselytize are
unconstitutional not narrowly tailored, alternate means of speech not
available (Martin v. Struthers)
Protecting the well-being and tranquility of the community is an important
state interest (Kovacs v. Cooper)
Blanket prohibition on billboards for the purpose of traffic safety and aesthetics
is unconstitutional if not linked to issues by evidence (MetroMedia v. San
Diego)
Ordinance prohibiting placing political signs on property owners lawn is
unconstitutional preventing visual clutter is not an important state
interest; political speech from ones property is unique, there is no alternative
(City of Ladue v. Gilleo)
Freedom of the Press
o Infringement triggers strict scrutiny
o Journalists access to information is not unlimited journalists can be compelled to
reveal information about confidential sources during a government investigation
(Branzburg v. Hayes)
o Barring the public/press from a criminal trial is a substantial infringement on freedom
of the press requiring a compelling state interest (Richmond Newspapers v. VA)
o The state cannot automatically bar the press/public court during the testimony of minor
victims of sex crimes court must assess this decision on a case-by-case basis (Globe v.
Superior)
o State cannot grant tax advantages to certain newspapers on the basis of how much
newsprint & ink they purchase power to tax is the power to censor (Minneapolis Star
& Tribune v. MN)
o Newspapers cannot be compelled to allow the subjects of negative coverage to respond
state cannot regulate content, require editors to publish information they dont
believe; there is no compelling state interest (Miami Herald v. Tornillo)
o The Fairness Doctrine in broadcasting is constitutional requiring broadcasters to
allow subjects of negative coverage the opportunity to respond because the state has a
legitimate interest in the allocation of opinion on the airwaves; the Fairness Doctrine is
not a substantial infringement on freedom of the press (Red Lion LLC v. FCC)
o Radio/TV and newspapers are distinguishable media for the purposes of allowing
subjects of negative coverage the opportunity to respond (Miami Herald v. Tornillo;
Red Lion LLC v. FCC)
Establishment Clause
o Court Definition of Religion:
Does not require belief in a supreme being
Does not have to arrive out of a traditional faith
Must occupy a place parallel to orthodox religion
Individual must practice this belief
o Public Prayer:
Public school prayer is unconstitutional
Legislative prayer is constitutional reflects a US legislative tradition
o Providing transportation funds to both public & parochial school students does not
substantially infringe on the Establishment Clause; therefore it only triggers rational
basis review the state action was taken for a secular purpose, education (Everson v.
Board of Education)
21

o Lemon Test for religion:
Does the state have a secular interest?
Does the primary effect of the state action enhance/inhibit religion?
Is there excessive state entanglement with religion? (A non-secular interest or a
primary effect that inhibits/enhances religion = excessive state entanglement)
o Government can erect a nativity scene if it is part of a more secular Christmas display
portrays the historic origin of the holiday (Donnelly v. Lynch)
o A government-erected nativity scene that was part of a larger, secular display does not
result in excessive entanglement of government and religion relationship to religion
is remote, indirect, incidental (Lynch v. Donnelly)

22

Detailed Outline

Origins
Interpreting the Constitution
o Original Intent School: Interpret the Constitution through the eyes of the Framers
o Living Constitution School: Adapt the Constitution to the needs of contemporary society
Amendment Process cumbersome
Constitution as a Democratic/Undemocratic Document
o Excluded women, slaves, non-property holders
o Senate in undemocratic small states = large states
o Electoral College does not have to reflect the will of the people
o Supreme Court can trump popular will
Republicanism
o Based on the idea of governance motivated by civic virtue, altruism
o Madison was a strong proponent
Believed it could be implemented on a massive scale
Obsessed with the threats posed by factions
Presbyterian upbringing led him to believe that people were fallen beings in
need of correction
o Madison was a minority even among white men
Wealthy slave owner feared loss of slavery because it was the source of his
wealth
Believed that wealth freed people from selfish impulses didnt trust those
who worked for others
Feared redistribution of wealth through taxation redistribution of wealth
threatened his wealth
o Madison at the Constitutional Convention
Wanted to restrict voting to white male property owners they understand
liberty and rights
Distributed Federalist #10, outlining his fear of factions
Factions are part of human nature even those with the best of
intentions are prone to self-interest, passion
Most durable source of factions is the unequal distribution of wealth
Case or Controversy & Jurisdiction
Origin
o Article III of the Constitution
o Counter-Majoritarian Problem
Court can overrule democratically-made law
Court can overturn the will of the majority
Passive Virtue: Courts decision not to act (e.g., gay marriage)
Advisory Opinions
o Constitutionally forbidden Courts interpretation of Article III
o Declaratory Judgments
ddresche
Enables a party, under certain circumstances, to obtain a declaration of its rights
and obligations before engaging in contemplated conduct
Plaintiffs must show that the specific action will violate federal law AND
23

The law poses a real and immediate danger to the plaintiff
Standing
o Constitutional Standing
Requirements
Injury in fact
Injury caused by the defendants conduct
Injury is likely to be redressed by a decree in the plaintiffs favor
o Prudential Standing
Requirements
Arguably within the zone of interests protected/regulated by the
statutory/constitutional provision at issue
Not be too generalized be particular and not shared by all or almost
all citizens
Judicially self-imposed limits on the exercise of Federal jurisdiction
Requirements are not meant to be especially demanding
Cases Falling Under Prudential Standing Requirements
Aesthetic Injuries
Injury to a 3
rd
Party Affects plaintiffs relationship to 3
rd
party
Threatened Injury must be immediate
Taxpayer Standing
o Generally denied
o Exception:
Schools violating the Establishment Clause
Applies only to Congresss power to tax and spend
Citizenship Standing
o Political Questions
o Timing: Ripeness and Mootness
Equal Protection
Background
o Rooted in the Due Process Clause of the 14
th
Amendment
All citizens are entitled to equal protection of the law
Equal protection applies only to state action
Rational Basis Review
o Basic standard for reviewing equal protection claims
o Test:
Is there a state action that targets a class of people?
Is the states definition of the class legitimate?
Is the states action legitimate?
Is the states action reasonably related to its goal?
o Legitimate Class:
Is the class targeted simply because it is unpopular? If yes, it is not legitimate
(NYC Transit Authority v. Beazer)
Is the classs distinguished by a voluntary characteristic? Court is more
sympathetic to discrimination against voluntary characteristics (NYC Transit
Authority v. Beazer)
Class does not have to be outwardly visible (Romer v. Evans)
24

o Legitimate Goal: Even if there is evidence to the contrary regarding discrimination, the
court will defer to the state action if it is rationally related to its legitimate goal, e.g.,
safety (NYC Transit Authority)
o USDA v. Marino
Targeted people who were not related but sharing the same residence by
denying them food stamps
Targeted class (hippies) were not a protected class rational basis
Class was targeted because it was unpopular
o State objective/goal
Must be legitimate cannot be undertaken to be vindictive
Actual Purpose Review:
There is no equal protection claim against legitimate goals
A statute containing one legitimate goal and several illegitimate goals
will survive rational basis review
Strict Scrutiny
o Related to race, i.e., race is a suspect class
o The 14
th
Amendment is silent on race
Derives from societys evolution
Strict scrutiny was initially applied to protect African Americans
Expanded to include other races
Japanese Americans (Korematsu v. US)
Mexican Americans (Hernandez v. TX)
o Race classifications are not necessarily unconstitutional state simply must show a
compelling interest, such as national security (Korematsu v. US)
o Test:
Is there a state action that targets a class?
Is the class a suspect class?
Is the states action legitimate, i.e., does the state have a compelling interest in
its objective (e.g., national security)?
o Loving v. VA
Lovings were a white-black couple in VA
VA statute made marriage between blacks and whites illegal
Test:
State Action: Prohibition on white-black marriage
Class: Interracial couples
Goal: Preserve racial integrity
Legitimate:
o No; blatantly racist
o State argued that there was no discrimination since whites and
blacks were equally targeted
o The Court disagreed race was a factor, so strict scrutiny
applies
The Court refused to hear Naim v. Naim in 1955
Same issue
Probably refused on the basis of prevailing cultural norms
Court may have also feared that its decision would be ignored
o Palmore v. Sidoti
25

Custody was granted to mother in a divorce
Mother was white; later married an African-American
Court reassigned custody to white father, fearing child would suffer social
stigmatization
Test:
State Action: Shifting custody of the child to the father
Class: The mother
Goal: Prevent stigmatization of the child
Legitimate: No; no compelling state interest
Means Test:
o Is the states action narrowly tailored to its objective?
o Is the states action the only way to accomplish its compelling
interest?
o Challenger must show that the discrimination is intentional (Washington v. Davis)
o Discrimination does not have to be the sole/primary purpose of the state action, but it
must be one of its objectives (Village of Arlington Heights v. Metropolitan Housing Dev.
Corp.)
o A discriminatory impact is not, by itself, enough to trigger strict scrutiny (Washington v.
Davis)
o Criminal Justice
Jury selection can have a disparate impact on outcome
Casteneda v. Partida: Convictions can be reversed on Equal Protection grounds
if facially neutral jury selection statutes are administered in a racially
discriminatory manner
Batson v. KY
If people are stricken from the jury pool on the basis of race, there is an
Equal Protection cause of action
Defendant has to show he is part of a racial/ethnic group
If he succeeds, the prosecutor bears the burden of proof to show that
he has not discriminated on the basis of race
McCleskey v. Kemp
Defendant claimed death penalty is applied in a racially discriminatory
manner
Claim was overwhelmingly supported by statistical evidence
Evidence was not sufficient to challenge a death penalty statute
There is a distinction between a trial and a sentence
Defendant has a right to a jury trial
Defendant does not have a right to a particular sentence
US v. Armstrong
Racial disparity in crack cocaine convictions
Must show that similarly situated persons of a different race would be
treated differently
Must show that police have profiled and targeted a particular group
o Affirmative Action
Regents v. Bakke
Bakke was a medical school applicant who was denied admission
26

Alleged that the schools policy of reserving 16/100 seats for racial
minorities cost him admission
State Action: Reserving 16 seats for minority students
Targeted Class: White students not allowed to compete for these seats
Powell wrote tie-breaking concurrence believed in diversity but not
equality; diversity preserved by segregation
Holding
o Diversity is a compelling interest
o Remedying past discrimination is not a sufficient basis for
discriminating
A general history of discrimination is not enough
Need specific evidence of discrimination, i.e., did
Berkley have a specific policy of denying admission to
certain groups?
School used a strict quota which was not acceptable to the Court
Richmond v. Croson
City of Richmond set aside 30% of its contracts for minorities
Court rejected argument that Fullilove demanded deference to the
citys plan
Cannot maintain an affirmative action program unless you can show
that it eliminates the effects of past discrimination
o Richmond was not remedying past discrimination
o City council was controlled by African-Americans promoting
the new majority
No evidence the city had an explicit policy of
discrimination
General proof of discrimination is not sufficient to
support a racially discriminatory policy
An explicit policy to justify such a program
o No explanation for where the 30% figure is derived from
o It is Congresss job to enforce the 14
th
Amendment
United Jewish Organizations v. Carey : City of New York demonstrated specific
examples of intentional discrimination, causing it to redraw voting districts
US v. Paradise: Remedying past discrimination is acceptable if a government
agency has engaged in racial discrimination
Adarand v. Pena:
Subcontractor denied a government contract despite being the lowest
bidder
State Action: Providing incentives to prime contractors who steer
subcontracts to businesses run by people from socially/ economically
disadvantaged backgrounds
Targeted Class: Socially/economically advantaged people not a
suspect class on its face
Court vacates the appellate courts decision
o Should have applied strict scrutiny rather than intermediate
scrutiny
27

o Socially and economically disadvantaged status is a surrogate
for race
Grutter v. Bollinger
White applicant denied admission to University of Michigan law school
Race was a factor in schools admissions decisions strict scrutiny
Court : Diversity is a compelling state interest
o Business leaders say that diversity is necessary for a strong
economy
o Military leaders say that diversity is essential to national
security
o Law schools also produce many of the nations leaders
o Policy was narrowly tailored to serve the compelling interest of
diversity
School considered using a lottery uncertain as to
whether this would have furthered diversity
School considered lowering standards across the board
wanted to retain its status as an elite institution
Did not employ a quota
o Admissions policy was appropriate did not use a quota;
quota system would not survive
o Race is simply one factor of many
Can be a plus factor but not a deciding factor
Cannot award points on the basis of race
o Do not have to try every possible solution or to have arrived at
the only solution
Parents Involved v. Schools of Seattle: Diversity not a compelling interest in
primary/secondary schools
Wygans v. Jackson: Cant fire teachers (here, white) to maintain a diverse
workforce
o Redistricting
Shaw v. Reno: Cannot redistrict for solely racial reasons
Hunt v. Cromartie:
Gerrymandering for political purposes is OK
Race can be a factor, just not the factor
Intermediate Scrutiny
o Test
Is there a state action?
Is there a targeted class?
Is there an important state interest
Is the states action substantially related to the states important interest?
o Applies to:
Sex
Gender
Illegitimacy
Sexual Orientation
Same Sex Marriage
o Gender
28

Reed v. Reed
State Action: ID statute that gave primacy to men over women in
appointing administrators of estates
Targeted Class: Women who were excluded from being administrators
State Objective/Interest: Promote judicial efficiency
Holding:
o State action is not rationally related to a legitimate objective
real purpose is to appoint men because the state believes men
can deal with these matters better than women
o Statute represents the type of arbitrary action the 14
th

Amendment intended to protect
Frontiero v. Richardson
State Action:
o Female service members were required to prove that they
provided more than 50% of their husbands support to qualify
for benefits at the with dependents rate
o Male service members were not required to do this WRT their
wives
Targeted Class: Married female service members
State Objective/Interest: Saving on administrative costs by not
determining whether each wife is/is not a dependent
Holding:
o Court compared gender to race an immutable characteristic
o Compared status of women to that of slaves during
Reconstruction
o Immutable characteristics are more likely to be protected than
other characteristics
Most members employed rational basis review, while the plurality
employed strict scrutiny
Stanley v. IL
State Action: IL statute granting custody to unwed mothers and denying
custody to fathers
Targeted Class: Unwed fathers
State Objective: Prompt efficacious procedures
Holding: Statute is based on a conclusive presumption of unfitness
against men violates due process
Cleveland Board of Education v. LaFluer
State Action: School board policy that requires pregnant teachers to
take medical leave long before her due date
Targeted Class: Pregnant teachers
State Objective: Classroom safety, teacher absenteeism, classroom
discipline, safety of the teacher and her unborn child,
Holding:
o There is no relationship between the policy and the stated
objectives real reason for policy is to prevent children from
asking questions
o Due process issue, not gender based issue
29

Taylor v. LA: State cannot exclude women from juries
Weinberger v. Wiesenfeld:
State Action: Statute that granted SSA benefits to widows but not to
widowers
Targeted Class: Widowers
Holding: Statute violates the Due Process Clause of the 5
th
Amendment
Stanton v. Stanton
State Action: UT statute required parents to support sons until age 21
and daughters until age 18
Targeted Class: 19, 20 year old women
State Interest/Objective:
o Ensure that men received the education necessary to become
the head of household
o Provide for males who mature more slowly than females
o Provide for males who enter the workforce at a higher rate than
females
Holding: Such old notions of gender are no longer valid
Kalin v. Shevin
State Action: FL law grants a property tax exemption to widows but not
widowers
Targeted Class: Widowers
State Interest/Objective: Widows who tend to suffer discrimination in
the workforce
Holding:
o Constitutional women suffer from discrimination in the job
market
o This statute is an acceptable exception because it addresses
ongoing discrimination
Schlesinger v. Ballard
State Action: Navy policy that gave women more time to be promoted
than men
Targeted Class: Male officers
State Interest/Objective: Remedy discrimination that women suffer as a
result of being excluded from combat roles
Geduldig v. Aiello
State Action: CA statute that excluded pregnant women from a disability
insurance program
Targeted Class: Pregnant women seeking disability assistance
State Objective: Maintain a viable disability insurance program
Holding:
o Valid based on a condition, pregnancy, not gender-based,
i.e., not all women get pregnant
o Pregnancy is not an immutable characteristic
It is temporary
It is a choice
Craig v. Boren
30

State Action: OK statute that allowed the sale of 3.2 beer to women at
age 18, but required men to be 21
Targeted Class: Men who were 18.19, 20 years old
State Objective: Traffic safety
o Men are more likely to drink and drive
o Women mature more quickly
Holding:
o Law is not substantially related to an important state objective
o State relied on old stereotypes
o Gender requires heightened/intermediate scrutiny because it is
an immutable characteristic
US v. VA
2 x suits 1 on exclusion of women another on VWIL as an alternative
to VMI
State Action: Exclusion of women from VMI student body
Targeted Class: Women who want to attend VMI
State Objective: Produce citizen soldiers using an adversative model of
education
Holding:
o State action isnt related to its objective
o Women are capable of attaining the same goal
o Inclusion of women would not undermine the states goal
o There is no compelling exception such as national security
only 15% of graduates serve in the military
o Gender classification in this case does not correct past
discrimination
o State action simply reinforces stereotypes
Title IX and Same Sex Schools
Same sex schools are permitted if attendance is voluntary
Comparable courses, facilities, services, etc. must be available for both
sexes
Private schools must comply with Title IX if they receive federal funds
Nguyen v. US
Background:
o Nguyen was born to an American father and anon-American
mother
o Was convicted of a felony as a non-citizen he was subject to
deportation
State Action: Federal statute that recognized automatic citizenship for
the children of mothers who are the American parent but not of fathers
who are the American parent unless
o A blood relationship can be established by clear and convincing
evidence
o The father agrees, in writing, to provide support
o Formal recognition occurs before the child turns 18
Targeted Class: Those born with an American father rather than an
American mother
31

State Objective: Control citizenship
Holding:
o Controlling citizenship and the loyalty to the US of those
considered citizens is an important state interest
o Policy is substantially related to attaining that goal
o Distinction between fathers and mothers is biological, not
prejudicial
Califano v. Goldfarb
Background:
o Statute grants widows benefits based on their husbands
earnings
o Widowers receive benefits only if they can show that their
wives provided more than of their support
State Action: Differing standards for widows and widowers for
determining survivors benefits
State Objective: Save the expense of determining who was really a
dependent
Holding:
o This is invidious discrimination
o Statute relies on overbroad and archaic generalizations about
women
Califano v. Webster
Background:
o Federal statute calculated retirement benefits using a method
that was more favorable to women than men
o Congress later altered the statute to eliminate the distinction
o The alteration was not retroactive
State Action: Different methods for calculating the retirement benefits
for men and women
Targeted Class: Men whose benefits were calculated under the old
system
State Objective: Compensate for difficulties faced by women during an
earlier era
Holding:
o Congress can replace one constitutional calculation scheme
with another
o Congressional alteration of the calculation scheme id not an
admission that the original scheme employed invidious
discrimination
Wengler v. Druggists Mutual: Court invalidated a MO law that provided for a
gender-based payout system for death benefits
Family Medical Leave Act
Federal employees are entitled to 12 weeks of unpaid leave for
childbirth
Leave can be extended for women
Can argue that women have a greater need for physical recovery
32

Nguyen case mothers have a closer relationship to children than
fathers do
Sexual Orientation & Same Sex Marriage
o 14
th
Amendment
Due Process Clause
Pertains to conduct
Protects against state intrusion against:
o Life
o Liberty:
Relates to individual action
Court extends this to privacy
Substantive due process refers to
Conduct
Substantive freedom
o Property: State must compensate owner for any property it
takes
Lawrence v. TX
o State statute criminalized sodomy Court views this as state
regulation of conduct
o Infringement of the Due Process Clause
o No suspect/intermediate class identified rational basis
review
o Rational Basis Analysis
State has no legitimate interest justifying the intrusion
into the private/personal lives of individuals
State is seeking to regulate relationships it cannot
target the personal relationships of consenting adults
conducted in private
Equal Protection Clause
Defining a class:
o Does not have to be visible for equal protection purposes
(Romer v. Evans)
o Gender preference Gay people
Not a suspect class
Not an intermediate class
Treated like any other group
Targeted for unpopularity (Romer v. Evans)
Entitled to rational basis review
o 5
th
Amendment
Due Process Clause for use against the Federal government
Windsor v. US
Windsor and her same sex spouse were legally married in Canada
Marriage was legally recognized in their home state of NY
Windsor was not exempted from her late spouses estate taxes because
DOMA prevented the IRS from recognizing their marriage
Windsor invoked the 5
th
Amendments Due Process Clause against the
IRS
33

2
nd
Circuit Analysis
o There is a history of discrimination against the class of people
o The class is capable of functioning in/contributing to society
o The class does have a defining characteristic that makes it
discernable/discrete
Characteristic does not have to be immutable
Characteristic can simply be distinguishing
o Class is politically powerless and cannot turn to the political
process for help
DOMA is eventually invalidated by the Supreme Court
Aliens and Equal Protection
o General Rules
Aliens are not a suspect class (Phyler v. Doe)
Status is not immutable can become citizens
Rational basis review
Undocumented aliens are not entitled to the same level of protection as
documented aliens
Federal government can take any action that is not arbitrary and unreasonable
Hospitals are only required to provide emergency care for illegal aliens
Illegal aliens can be denied most state services
The President can authorize military tribunals for non-citizens while requiring
regular courts for citizens
State cannot transfer custody of an illegal aliens child to a potential adoptive
parent
Seems arbitrary
Alienage is unrelated to parental fitness
Aliens cannot challenge deportation on equal protection grounds (Reno v.
American-Arab Antni-Defamation Committee)
o State can bar aliens from:
Becoming police officers (Foley v. Connelie)
Becoming probation officers (Cabell v. Chavez Salido)
Teaching in public schools (Ambach v. Norwalk)
o State cannot bar aliens from:
Becoming notaries (Bernal v. Fainter)
Joining the state bar (In re Griffiths)
State civil service under a blanket policy (Sugarmann v. Dougall)
This case was subject to strict scrutiny because alienage is often closely
tied to race
Statute was invalid because it was not narrowly tailored to
sensitive/policymaking decisions
o State cannot bar illegal aliens from public education (Phyles v. Doe)
Subjects children to a lifetime of hardship for their parents actions
Not rational unless it can further some substantial state goal
o Municipalities can withhold business permits from businesses that employ illegal aliens
o Standards of review
Undocumented Aliens Rational Basis
Documented Aliens
34

Federal Rational Basis
State Strict Scrutiny
Wealth Classifications
o Poor are not a suspect class
Theoretically not an immutable characteristic
The history of discrimination against the poor has been private rather than
public
Framers did not want to help the poor
o Cases: 1960s Deference toward the poor
Harper v. VA:
State imposed a poll tax on voters
Tax was designed to discourage black voters, but had a negative effect
on all voters
Court: A statute violates the Equal Protection Clause of the 14
th

Amendment if the affluence of the voter or the payment of a fee is an
electoral standard
Griffin v. IL:
Appellants were convicted of armed robbery
IL guaranteed the right of review by writ of error
Court:
o State does not have to provide appeals
o When it does, it must afford the same advantage to indigent
appellants as it does to others must not deny appellant a trial
transcript because of an inability to pay
Shapiro v. Thompson:
Welfare applicants in DC were denied benefits because they had not
lived there for at least 1 year
Court: If the applicant is otherwise eligible, the state cannot impose a
residency requirement without showing a compelling interest
Goldberg v. Kelly: Indigents are entitled to a hearing before the state
terminates welfare benefits
o Cases: 1960s-70s Greater hostility toward the poor
US v. Kras: There is no equal protection claim against filing fees for ordinary civil
litigants
James v. Valitierra
CA Constitution required that any building project for low income
housing be pre-approved by a popular vote during a referendum
Court: CAs referendum procedure does not violate the Equal Protection
Clause of the 14
th
Amendment
San Antonio v. Rodriguez
School districts were funded by local property taxes wealthier
communities had better schools than poorer communities
State Action: Funding off schools
Class:
o Schools that get less funding
o Students in poorer school districts
Court:
35

o Rejected plaintiffs request for strict scrutiny
o Nothing linked individual poverty to school funding s student
who is in a school district wont be turned away for lack of
income
o Poverty and Rights
Poverty should not prevent access to fundamental rights
Voting
Divorce
Parental rights
o MLB v. SLJ:
Appellant cannot be barred from appealing a
termination of parental rights through the imposition of
a filing fee
Loss of parental rights is loss of a fundamental right
There is no right not to be impoverished
States are not required to pay for abortions
Edwards v. CA: Court struck down a statute prohibiting indigents from entering
the state
Other Disadvantaged Groups
o Mentally Retarded
Not a suspect class
Analysis of class
Unpopular class
Mental retardation is an immutable characteristic
Politically powerless class
But there is good reason to treat this class differently cannot interact
with the rest of society in the same way as others
Cleburne v. Cleburne Living Center
City denied a permit to a group home denial was simply a subterfuge
to keep the retarded out of the neighborhood
Rational basis review applied
o Illegitimate Children
South often used illegitimacy as a surrogate for race
NC made it easier to put white children up for adoption than black
children
MS eliminated common law marriages after Brown v. Board of
Education used more often by blacks than white
Illegitimate children are not a suspect class
No strict scrutiny
No intermediate scrutiny
Rational basis with a bite status is not the fault of the illegitimate
child
General:
Levy v. LA: Struck down a statute barring illegitimate children from
claiming a parents death benefit
Glora v. American Guarantee: Same as Levy
36

Weber v. Aetna: Cant exclude illegitimate children from workers
compensation benefits
Illegitimate children are entitled to child support
o Aged
Not a suspect class no strict scrutiny
There are however, some statutory protections (ADEA)
Vance v. Bradley: Court upheld a foreign service regulation that required
retirement at age 60
Substantive Due Process and Fundamental Rights
Fundamental Rights
o Concept can be used to get at the state through the 14
th
Amendment
o An inalienable right that derives from being a human being
o Cannot be deprived, regardless of whether it is written into the Constitution
Includes many of the rights in the Bill of Rights
Rights not expressed in the Constitution are implied rights
o Actionable against the Federal government
o Actionable against state governments because much of the Bill of Rights has been
incorporated against the states
Incorporated
1
st
Amendment
2
nd
Amendment
4
th
Amendment protection against unreasonable search and seizure
5
th
Amendment right
o Against self-incrimination
o To compensation for property taken by the government
6
th
Amendment right to:
o Impartial jury
o Confrontation
o Counsel
8
th
Amendment ban on:
o Cruel and unusual punishment
o Excessive bail
Not incorporated
3
rd
Amendment protection against quartering
5
th
Amendment right to a grand jury
7
th
Amendment right to a civil jury
8
th
Amendment protection from excessive fines
o Evolution of implied rights
Right to contract was popular until the 1930s
Civil rights started to gain prominence in the 1940s
Rights concerning the poor became an issue in the 1930s stigma of poverty
as a moral failing began to fall away
Right to Have Children
o A fundamental right
o Buck v. Bell:
Court held that that mandatory sterilization was Constitutional
37

This was at the height of the eugenics movement (1927) overturned by
Skinner
o Skinner v. OK:
Statute required the sterilization of people convicted of more than one crime
involving moral turpitude
Court:
Statute is unconstitutional
How do you differentiate between different types of crimes?
Sterilization takes away a fundamental right, the right to have children
requires strict scrutiny
Sterilization, unlike a prison term, cannot be reversed
There is also a right to marry
Sterilization could probably be mandated if the state can show a compelling
interest
o New Test for Strict Scrutiny
Is there a suspect class or a fundamental right that has been implicated?
Is there a compelling state interest?
Is the state action narrowly tailored to the purpose of the action?
Right to Vote
o Not originally a fundamental right at the Founding, only 5% of the population was
allowed to vote
o NH was the first state to eliminate the property restriction
o By the 1840s, some states allowed women to vote in state elections
o Until the 15
th
Amendment, states completely controlled the right to vote
15
th
Amendment gave African-Americans the right to vote
Poll taxes and KKK were still impediments to voting
o 19
th
Amendment gave women the right to vote during the WWI era
o Chinese Exclusion Act prevented Chinese from voting until WWII
o Voting age reduced to 18 as a result of the Vietnam war
o Historically poll taxes (Breedlove v. Suttles, 1937) and literacy tests (Lassiter v.
Northampton, 1959)
o Court recognized voting as a fundamental right in 1964 Reynolds v. Simms
o Harper v. VA
Challenged a VA poll tax of $1.50
Affected poorer voters poverty is not a suspect class
Majority used strict scrutiny
Tax significantly infringed on the fundamental right to vote
No relationship between wealth and the ability to understand politics
o Bush v. Gore
Unconstitutional to order a recount without issuing guidance on how to conduct
it
Lack of guidance treats some voters differently than others violates equal
protection
o Kramer v. Union Free School District
Statute limited voting to those who owned/leased taxable property or had
children in school
Excluded voters are not a suspect class but a fundamental right is infringed
38

Triggers Due Process Clause strict scrutiny
Statute was not narrowly tailored Court suggests that some restrictions are
acceptable if there is a compelling interest
o Cipriano v. Houma: Invalidated an ordinance that limited voting on municipal bonds to
property owners
o Sayler v. Tulare Lake Basin Water District
CA statute limited voting to landowners and apportioned votes in proportion to
the amount of land owned
Court determined that voting rights can be restricted when the issue concerns
water storage districts
o Ball v. James: AZ water storage district votes for Directors based on a 1 acre, 1 vote
scheme Constitutional
o Residency Requirements:
Dunn v. Blumstein
1-year residency requirement is not reasonable
State must have a compelling reason to restrict the right to vote
strict scrutiny
Burns v. Forlson
50-day residency requirement is reasonable
Enables states to ensure the accuracy of voter rolls
o Richardson v. Ramirez: Felons can be denied the right to vote 14
th
Amendment
restrictions on Confederate soldiers provides some textual basis for this
o Registration Deadlines
Rosario v. Rockefeller: Upheld a NY statute that voters register their party
affiliation at least 30 days before the general election prevents party raiding
and sabotage by the opposing party
Kusper v. Pontikes: Invalidated a restriction that prevented voters from voting
in one partys primary if they had voted in another partys primary within the
previous 24 months
o Crawford v. Marion County
State Action: IN required voters to show a photo ID
State Interest: Prevent voter fraud
Implicated a fundamental right, but Court declined to apply strict scrutiny
said that requirement did not substantially restrict voters
o American Party of TX v. White: States can subsidize primary elections of major parties
without subsidizing the elections of minor parties
o Apportionment
Reynolds v. Sims:
State Action: Failure to reapportion legislative districts every 10 years,
over a 60 year period
Targeted Class:
o Urban voters who were inequitably represented
o Underlying civil rights issue black voters were
disproportionately affected
State Interest: Balancing urban/rural interest
Standard of Review: Confusing, but ultimately was strict scrutiny
Court was not persuaded by states argument
39

States determine apportionment, but the Supreme Court can declare a
scheme invalid if it doesnt have an almost exact mathematical
equality
Department of Commerce v. MT: Congress determines how many
representatives come from each state
Mahan v. Howell: States have more discretion WRT state and local elections
districting doesnt have to be as precise as for federal elections
Hadley v. Junior College District:
One person, one vote applies to any election for a position where the
official will perform a normal government function even junior
college trustees
One person, one vote does not apply to:
o At large positions
o Appointed official
o Special purpose governmental units (e.g., water districts)
o Gerrymandering
Since 1964, the Supreme Court has been reluctant to reverse districts on the
basis of gerrymandering
Political gerrymandering is OK, racial gerrymandering is not
Shaw v. Reno:
The bizarre shape of a district can be used to show that it is
discriminatory
Discriminatory districts that are designed to help a minority are just as
improper as those designed to harm the minority motive/intent does
not matter
Shelby v. Holder: Struck down section 4 of the VRA must show evidence of
current discrimination
o Campaigns:
States may allocate more public funds to major parties than to minor parties
States can impose a fee on candidates running for office, if there is a waiver
provision for indigents
Gordon v. Lance: States may require supermajorities in referendums
Right to Travel
o There is a fundamental right to travel
o A drivers license requirement is not a restriction on travel state has a compelling
interest in safety
o Flight screening does not infringe on the right to travel
Other forms of travel are available
Safety precautions implicate the right to life
o A photo ID requirement is not a restriction on travel ID must be available to the
indigent
o Shapiro v. Thompson
State Action: CA requirement that welfare applicants meet a one-year residency
requirement
State Interest:
Fiscal integrity of the welfare system
Enable budget planning
40

Determine legitimate residents & prevent fraud
Statute implicates the fundamental right to travel state purpose does not
survive strict scrutiny
o Saenz v. Roe
State Action: A limited welfare benefits to the level a newcomer would have
been eligible for in his previous state
State Interest: Limiting welfare fraud
Court:
Limits the fundamental right to travel states interest is not
compelling
Statute violated the privileges and immunities clause
o Departure from Shapiro
o Court may have been trying to show where the right to travel
came from
o Zobel v. Williams:
AK distributes payments to residents based on their length of residence
State claimed to be rewarding residents based on past contributions
Court: Not a legitimate purpose violates equal protection
o Hooper v. Bernallillo County Tax Assessor
State Action: NM statute provides veterans with a tax benefit if they arrived in
the state prior to a particular date
Court: State cannot create a new class of people violates equal protection
o Miscellaneous
Dunn v. Blumstein: TN statute requiring a 1-year residency in order to vote
violates equal protection
Memorial Hospital v. Maricopa County: Statute requiring a 1-year residency
before being eligible for non-emergency medical care violates equal protection
NH v. Piper: 1-year residency requirement for those wishing to take the bar
violates the privileges and immunities clause
Vladis v. Kline: 1-year residency requirement to qualify for in-state tuition is
invalid state can still require proof of residency, however
Jones v. Helm: Upheld a statute that made it a misdemeanor to abandon a child
and a felony to leave the state after the abandonment
McCarthy v. Philadelphia Civil Service Commission: State can require its
employees to live within the state
Right to Education
o Black Letter Law:
No right to education
No right to integrated schools
o Brown I:
Segregation of public schools is unconstitutional education should be
available to all on an equal basis
Eisenhower thought the South would need time to adjust never really
embraced Brown
o Brown II:
Supposed to be the implementation phase of Brown I
Referred to all deliberate speed essentially gave states an unlimited
amount of time to desegregate
41

Gave enforcement authority to the district courts
o Aaron v. Cooper
AR governor refused to comply with court orders to desegregate schools
unrest ensued and federal troops were required to protect 9 school children
A school board petitioned the district court to suspend the court orders for 2
years because of the disruption they caused in the classroom
District court grants request
Circuit court of appeals overturns
Supreme Court:
State officials are bound by the Supreme Courts rulings and the orders
that are based on those rulings
Federal law is supreme
The Supreme Court is the final interpreter of federal law
o Green v. New Kent County School Board
County was 50% black, with no residential segregation
County maintained separate white and black elementary-high schools
Under a statute, were automatically reassigned to the school they had attended
the previous year could apply to go to the other school
This particular free choice option violated the Constitution such plans
tended to prevent desegregation, but were not always unlawful
o Swan v. Charlotte-Mecklenberg
District court has broad authority, but exercises it only when the local
authorities have defaulted in their efforts to desegregate
Courts may use mathematical quotas as a starting point when local authorities
have completely defaulted
Burden is on the school to show that its single race composition is not the result
of past/present de jure segregation
o Keyes v. School District #1:
Intentional discrimination is unconstitutional must be shown to be
intentional
There is no intentional discrimination if the segregation is due to housing
patterns
o MO v. Jenkins: Supreme Court struck down a requirement that required a state to
spend more money on school staff salaries to attract more while students
Right to Privacy
o General:
Comstock Laws post-Civil War
Laws against abortion, pornography, contraception
Departure from previous history
Derived from the liberty prong of the Due Process Clause of the 14
th

Amendment
Three Prongs:
o Life
o Liberty
o Property
An implied right
Not explicitly stated in the Constitution
42

Not recognized as a liberty interest until 1965
Infringement of liberty triggers strict scrutiny
Meyer v. NE
o During WWI, many schools banned teaching of German
language
o Court:
Invalidated statute parents had a right to determine
what their children learned
Liberty includes:
Ability to pursue common occupations of life
Acquisition of useful knowledge
Right to marry
Right to establish a home
Right to raise children
Allgeyre v. LA
o Freedom to enjoy faculties
o Freedom from restraint
o Freedom to reside where one wishes
Pierce v. Society of Sisters
o Sought to extinguish German culture in the United States
tried to inculcate American values
o Required children to attend public rather than private schools
o Invalidated by the Court
Right to privacy is an implied right
Not mentioned in the Constitution
Not recognized as a liberty interest until 1965 Scalia, a dick, disagrees
Griswold v. CT
o Married couple challenged an anti-contraception statute
o Doctors emerged as a special class of people in their dealing
with their patients
o Douglas recognized that previous cases recognized that
marriage is a fundamental right
Sanctity of the marital bedroom
Right to privacy predates the Constitution
NAACP v. AL: Recognized the right of privacy in
associations
o Penumbras in the Bill of Rights imply zones of privacy
1
st
Amendment: Freedom of association
3
rd
Amendment: Freedom from soldiers being quartered
in homes
4
th
Amendment: Freedom from unreasonable searches,
seizures
5
th
Amendment: Freedom from self-incrimination
9
th
Amendment: Envisions rights not specifically
enumerated
o Roe v. Wade
43

TX statute placed a blanket prohibition on abortion, the only exception being
the life of the mother
Implicates the liberty prong of the Due Process Clause
Fundamental right rather than a class privacy
Substantial infringement because of the outright ban
Outright ban might be OK, but it has to survive strict scrutiny
State Interest:
Limit illicit sexual conduct
o Never made the argument
o Falls out
Protect the health of the mother
o Largely overcome by modern technology
o Does not survive strict scrutiny
Protect pre-natal life
o Constitution does not seem to contemplate unborn life
o Abortion was formally prohibited only after viability
o Not a strong argument before the end of the first trimester
Competing interests:
Right to life
o Compelling interest after the first trimester
o Doctor can make the call up through the first trimester
Right to privacy
o Backlash Against Roe/Limits to Privacy
1 year after Roe, MO enacted a spousal/parental consent statute
Planned Parenthood v. Danforth: Struck down spousal consent requirement
Maher v. Roe:
State Action: State provided funds for childbirth but not abortion
services
Targeted Class: Indigent women not a suspect class, rational basis
review
Court:
o Legitimate interest
o Action was rationally related to objective
o Statute actually doesnt even address abortion
Distinguishable from the right to travel and obtain welfare benefits
bus fare was not at issue
Harris v. McRae:
Challenged Hyde Amendment Hyde Amendment = state action
Targeted class: Indigent women not suspect, rational basis review
Fundamental right not substantially infringed rational basis review
Court:
o Government may not create obstacles to the exercise of a
fundamental right
o Government does not have to remove obstacles not of their
own making government doesnt have to pay for the exercise
of the right
Akron v. Akron Center for Reproductive Health
44

Eliminated
o Requirement that abortion take place in a hospital
o Woman be informed of:
Status of pregnancy
Development of fetus
Date of possible viability
Physical/emotional complications
Availability of agencies/alternatives
o 24 hour waiting period
Planned Parenthood of KC v. Danforth: Upheld requirement that
doctors keep records
Webster v. Reproductive Services: Upheld state statute that said life
began at conception court said this was merely aspirational
Planned Parenthood v. Casey:
o State Action: PA imposed a number of pre-abortion
requirements
o Class: All women
o Implicated the fundamental right to privacy
o State law violates the fundamental right of privacy if it places an
undue burden or obstacle to obtaining an abortion undue
burden = substantial infringement
o Question for Court Did the requirements place an undue
burden on women?
o Requirements:
Physician must provide pre-natal materials on
childbirth, consequences for fetus, etc. not undue
24-hour waiting period not undue
Consent of minors parents not undue if there is a
judicial bypass procedure
Consent of spouse undue
Post-viabiliity:
o State can regulate/prohibit abortion after viability as long as
there is an exception for the life/health of the mother
o Exception for mothers life/health
Required
State can impose some level of regulation
Abortion may require some special procedures
Gonzales v. Carhart:
o State Action: Prohibition of a particular abortion procedure
partial birth abortion
o Implicates fundamental right to privacy
o Does this place an undue burden on the fundamental right?
o Court: NO No undue burden means rational basis review
There are alternative procedures
Restriction does not endanger the life/health of the
mother
45

o Procedure was in 2
nd
trimester probably a viability issue;
even if it were pre-viability, however, there is no undue burden
o Since this falls under rational basis review, the state need only
show a legitimate interest here, it is the preservation of life
Privacy Summary:
o No Undue Burden
Informed consent
24-hour waiting period
Parental consent (with judicial bypass provision)
State refusal to fund abortion
Ban on partial birth abortion
o Undue Burden
Outright ban
Spousal consent
o Limits to Privacy
o Family and Other Privacy Interests
Right to Family
Moore v. City of Cleveland
o Ordinance limited occupancy of single dwellings to members of
the same nuclear family
o Implicates a fundamental right
Freedom of personal choice related to the right of
privacy
Derived from the liberty prong of the 14
th
Amendment
Triggers strict scrutiny state must have a compelling
interest
o State claimed an interest in:
Traffic
Overcrowding
Burden on the schools
o Court:
State action is not related to its purported interest
real goal was to keep lower-class people out of East
Cleveland
Even if the ordinance did not implicate a fundamental
right, the ordinance would still have to survive rational
basis review
Powell:
Right to choice in family matters is deeply
rooted in our societys tradition
Right is not explicitly stated in the Constitution
Ordinance cuts into the family
o Right to Die
No right to die
Curzon v. MO Department of Health
o Curzon was severely injured in a car accident persistent
vegetative state
46

o Curzon could not consent to the withdrawal of life support
o Parents argued that she had a fundamental right to die
o Court:
State has a compelling interest
Suicide is unlawful
No fundamental right to die
Family cannot unilaterally withdraw medical treatment
without clear and convincing evidence of Curzons
consent
There is a fundamental right to refuse unwanted medical treatment Making
someone die and letting someone die are different
Procedural Due Process
Always implicated when the government takes property
Government can take property, but must provide a hearing
Historically, government benefits were not considered a property interest changed in the
1960s
Board of Regents v. Roth
o Roth was a non-tenure track professor working under a 1-year contract
o When his contract was not renewed, Roth claimed that his due process rights were
violated
Claimed a property interest in continued employment
Did not receive a hearing prior to termination
o Court:
Property interest extends beyond real estate and money
If Roth had tenure, he would have had a property interest in his continued
employment
Could have only been terminated for cause
Tenure would have to have been explicitly stated statute or
government contract
There is a distinction between a right and a privilege
Perry v. Sinderman
o Professor did not have tenure faculty guide told faculty members to think of
themselves as tenured
o Distinguishable from Roth university communicated a statement of de facto tenure
to faculty members
o Sinderman had a property interest in continued employment entitled to a hearing
and a showing of cause for termination of employment
Cleveland v. Loudermill
o Loudermill was a classified state employee (school security guard) who could only be
fired for cause
o Terminated when it was discovered that he had been convicted of grand larceny but had
denied it on his job application
o Claimed violation of his due process rights
o Court: Opportunity to respond as well as post termination procedures under the OH
statute are adequate
Deprivation of Liberty
o Refers to the statutory loss of significant freedom of action
47

o Implicates procedural due process
o Givhan v. Western Line School District
Cannot fire a public employee for exercise of free speech
Protection does not necessarily apply to private employees
o Ingraham v. Wright
A child has a liberty interest in bodily integrity in school paddling cases
A hearing is not required if the complainant has another remedy, i.e., a tort
remedy
A hearing is required if there is no other alternative available
o Paul v. Davis
There is no liberty interest in damage to ones reputation
There is a liberty interest if damage to ones reputation leads to a negative
effect on job opportunities
o Goss v. Lopez
Students were suspended from public schools for up to 10 days
Suspension from public school implicates a liberty interest could affect future
employment
o Curators v. Horowitz: Student can be suspended for poor academic performance
without a hearing requires advance warning
o Meachum v. Fano: Inmates have no liberty interest in being transferred from one prison
to another inmate was being transferred from medium to maximum security prison
o Sandin v. Connor: Inmate has no right to call witnesses at a disciplinary hearing
o Wilkerson v. Atkinson: Inmates do have a liberty interest in being transferred to a
maximum security prison
o Greenholtz v. Inmates
Inmates have no liberty interest in the denial of parole
Inmates do have a liberty interest in the revocation of parole
o Vitek v. Jones
Mental patients do have a liberty interest if they are being committed
A hospital is different from a prison treatment vs. incarceration
o Parham v. JR: Minors have a liberty interest in not being unnecessarily confined for
medical treatment
o Matthews v. Eldridge
Government determined that a beneficiary had recovered from disability
Government provided:
Notice
Explanation of termination
Opportunity to respond
Post-termination hearing
Court considered:
Private interest
Risk of erroneous deprivation of the interest & probable value (if any) of
any additional safeguards
Government interest
Hearing Requirement:
Pre-termination for welfare benefits assumes likelihood of
precipitating a crisis
48

Post-termination for disability benefits assumes that denial of
disability will not precipitate a crisis
Court:
Requirements of notice, opportunity to respond and evidentiary hearing
remain
Hearing must be before a fair and impartial decision-maker
o Goldberg v. Kelly
One has a property interest in welfare benefits if one meets the relevant criteria
Hearing must be before a fair, impartial decision-maker
o Hearing Requirements
Welfare
Full evidentiary hearing required
Full evidentiary hearing = trial type hearing
Non-Welfare: Less formality required
o Procedural Due Process in General
Procedural due process is implicated only if a particular individual is singled out
for deprivation of liberty/benefit (property)
There is no deprivation if the government cuts/eliminates the benefit for
everyone
Daniels v. Williams: Government negligence does not trigger procedural due
process government action must be intentional
An alternate remedy, such as a tort, can provide due process in the absence of a
hearing
Caperton v. Massey: Procedural due process may require the recusal of a judge
i.e., for bias WRT to one of the parties
Tenure: Difficult to fire tenured teachers applies to private institutions if they
receive federal funds
Takings Clause of the 5
th
Amendment
Government must compensate property owner if it takes property
HA v. Midkiff:
o HA took land from large sugarcane plantation owners to make it available to small
purchasers designed to address oligopoly
o Midkiff challenged the validity of taking property not a public purpose
o Court:
Rational basis review
Legislature has the ability to determine public purpose courts can step in if
theres a dispute
Legislature cannot simply turn property over to a private party turning
property over to a private party must serve a public purpose
Kelo v. City of New London:
o City took private property for the purpose of redevelopment
o Court:
Rational basis review
Legislature has the power to determine public purpose
Must have a public purpose to be constitutional
Public Purpose:
o New jobs
49

o Increased tax revenues
Court could strike down the redevelopment plan if:
o Property was taken simply to transfer to a private party
o Public purpose is pretextual/illegitimate
Saint Louis and Eminent Domain
Miller v. Schoene
o VA required property owners to chop down red cedars because they carried a disease
dangerous to apple trees
o Apples were an important economic crop
o Court said this was not a taking, because there was still economic value in the land no
compensation required
Penn Central v. NYC
o NYC was protecting historic sites at the time Penn Central wanted to build a high rise
above Grand Central Station, a designated historical site
o Are restrictions on construction by the owner on his property a taking?
o Court:
State has a legitimate interest in the preservation of historic sites
Not a taking because the state can limit the use of the property as long as some
economic value remains
Zoning Restrictions:
o Zoning restrictions are permissible if:
They serve a legitimate purpose
They do not strip the property of its economic value
The owner retains the propertys economic value
o Destroying one stick in the bundle of property rights is not a taking
o Merely reducing the economic value of a property is not a taking
Andrus v. Allard: Prohibition on the sale of eagle parts under the Eagle Protection Act is not a
taking, since the owner can retain the property; he simply cannot sell the property
Hodel v. Irving: Consolidating Sioux property into larger parcels was an unconstitutional taking
because it abrogated the right to pass property to ones heirs
Euclid v. Ambler: Converting industrial property to residential property, lowering its value from
$25K to $10K, is not a taking because there is still economic value left in the property
Lorretto v. Teleprompter: A law allowing a cable company to place a cable across private
property is a taking
Nollan v. CA Coastal:
o Nollans wanted to tear down a bungalow and replace it with a beach house
o Coastal Commission conditioned issuing a building permit to the Nollans granting an
easement so that the public could cross the beach
o Court:
State had a legitimate interest in granting public access to the beach
This is, however, an invasion of private property a taking; requires
compensation
Nollans are simply trying to replace an existing building
Easement = a taking unless:
o It serves the public interest
o The proposed development by the property owner adversely affects the area
Regulations:
50

o Regulation raising rent by 8% is not a taking does not reduce propertys economic
value to $0
o Government can regulate owners who invite others (including renters) onto their
property
o Government can regulate noxious or harmful uses of property
o Evaluating takings WRT takings
Cannot arbitrarily target an individual
Regulation cannot defy expectations
Cannot reduce economic value of property to $0
Takings
o No precise formula
o Physical invasions are likely to constitute a taking
o Reduction of propertys economic value to $0 is a taking
First Amendment
Free Speech
o Fundamental right one of the first amendments to be incorporated against the states
o Triggers strict scrutiny, requiring:
A compelling state interest
Narrow tailoring of any restriction
o Restrictions implicate the Due Process Clause of:
14
th
Amendment in the case of federal restrictions
5
th
Amendment in the case of state restrictions
o Not an absolute right
o Does not include government speech not bound by the 1
st
Amendment as private
speech is
As long as government speech is related to a legitimate state interest, it is
constitutional public monuments are government speech
Exception government endorsement of religion is prohibited
Government may erect monument of 10 commandments
o Must be for the purpose of promoting the communitys legal
traditions
o Cannot be for the purpose of promoting a particular religious
viewpoint would violate the Establishment Clause
o Government does not have to establish monuments for other
religions
o Most private speech is protected by the 1
st
Amendment
Examples of protected speech:
Fuck the draft
Motherfucker
Flag burning
Fighting Words and Hate Speech
o Fighting Words
Must incite an immediate breach of the peace
Language likely to incite violence can be restricted
Not clearly defined by the Court
o Brandenburg v. OH
51

Reporter filmed a KKK leader giving a speech in the presence of other Klan
leaders spoke of the potential need for revengence against the US
government
Convicted under an OH statute prohibiting incitement to violence
Court
State has an interest in preventing violence
In this case, there was no immediate/imminent threat of violence
o No one was likely to act on the words
o Speaker was articulating an aspirational goal
o Mere advocacy/vague threats can advocate for violence in
the abstract
o Chaplinsky v. NH
Jehovahs Witness was convicted of violating a NH statute prohibiting the use of
offensive, insulting language created a disturbance
Court:
Chaplinskys 1
st
Amendment right of free speech was not violated
statute was narrowly tailored
Freedom of speech is not absolute fighting words are not
protected speech
Decision would probably not stand today
o Gooding v. Wilson
Defendant was arrested at an anti-war protest in front of an induction center
for violating a statute prohibiting the use of opprobrious words
Court:
Prohibition on opprobrious words was overly broad
Opprobrious words fighting words
Opprobrious words include non-fighting words
o RAV v. City of Saint Paul
Juvenile is arrested for violating an ordinance prohibiting the use of hate
symbols burned a cross on the property of a black family
Court:
Content-based restrictions are presumptively invalid
Overbroad not permissible to prohibit some fighting words and allow
others
o Snyder v. Phelps: Profane language during funeral protests cannot be restricted not
fighting words
Obscenity
o Can be regulated
o Emphasis is on child pornography not much emphasis elsewhere
o Roth v. US; Alberts v. CA
Defendants mailed obscene material in violation of statute
State regulation of obscene material does not violate the 1
st
Amendment
Obscene material appeals to a prurient interest in sex
Obscenity is determined by whether an average person, applying a
community standard, would find the material to be obscene
Material that incites lust is not necessarily obscene
Portrayal of sex alone is not enough to deny Constitutional protection
52

o Brocket v. Spokane Arcades: Material that appeals to a shameful or morbid interest is
purient
o Miller v. CA
Defendant conducted a mass mailing of advertisements for adult books to
people in violation of state statute
State cannot regulate obscene material without limits
Basic Test for Obscenity
Whether the person, applying contemporary community standards
would feel that the material, taken as a whole, appeals to a prurient
interest in sex
Whether the work depicts/describes, in a patently offensive way,
sexual conduct specifically defined by state law
Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value
o Hamling v. US
Either a state or local community standard is acceptable
Jurors determine what the community standard is
o Paris Adult Theatre v. Slaton
GA sought to enjoin an Atlanta adult theater from showing two films because
they were obscene
Performances were not visible to the public
Exterior of the theater was not in any way obscene
Signs warned potential customers of what was being portrayed
Theater barred entrance to minors
Trial judge found films to be obscene, but declined to enjoin because of
protections afforded the public
Supreme Court:
Films are not immune from regulation simply because they are
exhibited solely for the entertainment of consenting adults
State has a legitimate interest in regulating commercialized obscenity
o Stanley v. GA
State has the right to regulate obscene material
Person can possess obscene material in his home
Cannot possess child pornography
o NY v. Ferber
Defendant convicted of selling child pornography to undercover cops
NY statute prohibited exhibition of sex acts by people under 16
Rational basis review
Obscenity is not protected speech Child pornography is by definition
obscene
State has a legitimate interest in stopping child pornography
Physical/psychological health of the child
Child pornography is inherently child abuse
Pornography becomes a permanent record that will follow the child
o Cohen v. CA
Defendant wore a jacket that said Fuck the Draft
Profanity is not the same as obscenity
53

Obscenity deals with erotic material
State can regulate fighting words these are not fighting words; unlikely to
provoke violence
Profanity is low-level speech
This particular speech has political value
o United States v. Williams: If the material involves children, it does not have to appeal to
a prurient interest to be regulated
o Ashcroft v. Free Speech Coalition
Supreme Court invalidated the Child Pornography Prevention Act (CPPA) as
overbroad
Court distinguished between the use of children in pornographic material and
virtual child pornography
Since no child is being harmed in the case of virtual child pornography, there
is no child abuse
The CPPA implicates a fundamental right free speech
Content Neutral Restrictions
o Freedom of speech is not absolute restrictions on freedom of speech in public forums
is subject to strict scrutiny
o Types of forums
Public forums
Sidewalks
Streets
Parks
State can require permits for speech on public property
State can restrict speech for the purposes of traffic safety, public safety
Non-Public Forums
Privately owned property
Government-owned property with speech restrictions
o Military installations national security trumps freedom off
speech
o Public schools
Designated Public Forums
Area identified by the state expressly for free speech
State must have an explicit policy that identifies such an area
o Freedom of speech can be limited in terms of:
Time
Place
Manner
o Test for evaluating restrictions on speech
Is the restriction content neutral?
Is the restriction narrowly tailored to support an important/compelling state
interest?
Are there alternate means of speech available?
o If even one prong of the test is not met, the restriction is unconstitutional
o Cases:
Schneider v. State
54

Ordinance prohibits the distribution of leaflets on the street, in order to
prevent littering
Test:
o Ordinance is content neutral
o Not narrowly tailored to support an important state interest
there are other ways to prevent littering
o Alternative channel of speech do exist
Holding
o Unconstitutional
o Violates 2
nd
prong of test
Martin v. Struthers
Jehovahs Witness was charged with violating an ordinance that
prohibited people from going door-to-door ringing doorbells without
being invited
Test:
o Ordinance was content neutral
o Ordinance was not narrowly tailored, because going door-to-
door was an important method for poorly financed people to
disseminate their ideas
o There might not be an alternate channel of speech available
that is effective as this one
Holding
o Unconstitutional
o Violates 2
nd
and 3
rd
prong
Kovacs v. Cooper
Kovacs was charged with violating a Trenton ordinance that prohibited
the use of sound trucks and other amplifying devices that emitted loud
and raucous noises
Test
o Ordinance was content neutral
o Was narrowly tailored to support an important state interest,
i.e., protecting the well-being and tranquility of the
community
o Alternate means of speech were available
Holding: Constitutional
MetroMedia v. San Diego
The city of San Diego essentially banned all billboards, supposedly to
improve traffic safety and improve the citys aesthetics
Test:
o Ban was content neutral
o Ban was not narrowly tailored to serve an important state
interest
No evidence linking billboards and traffic safety
No evidence that the city was actually concerned about
aesthetics
o There was no alternative channel of speech available
Holding:
55

o Unconstitutional
o Violates 2
nd
and 3
rd
prong of test
City of Ladue v. Gilleo
City ordinance prohibited lawn signs, which led to the removal of
Gilleos lawn sign, protesting the Persian Gulf War; city wanted to
prevent visual clutter
Test:
o Ordinance was content neutral
o Ordinance was not narrowly tailored to serve an important
state interest preventing visual clutter is not important
enough to restrict political speech
o No alternate channel of speech was available, at least not one
as powerful as expressing a political viewpoint from ones own
property
Holding
o Unconstitutional
o Violates 2
nd
and 3
rd
prong of test
Freedom of the Press
o Branzburg v. Hayes:
State Action: Grand jury sought information about a reporters confidential
source
Issue: Is journalistic confidentiality protected by 1
st
Amendment
Court:
Journalists access to information is not unlimited
o Government can bar access to disaster/emergency scenes
o Government can revoke passports of reporters travelling to
certain countries
o Richmond Newspapers v. VA:
State Action: Court bars public and reporters from trial
Implicated fundamental right freedom of the press
Court: A substantial infringement
Discourages perjury
Discourages misconduct of participants
Discourages bias/partiality
Therapeutic value to public:
o Some crimes spark outrage, shock
o Coverage is an outlet for concern, hostility, emotion
o Globe v. Superior Court
State Action: Automatically excluded public/press from courtroom during
testimony of certain minor sex crime victims
State Interest: Protect victims, encourage them to come forward
Court:
Implicates a fundamental right press, speech
States legitimate interest does not override the fundamental rights
Court must consider exclusion of public/press on individual basis not
narrowly enough tailored
o Minneapolis Star & Tribune v. MN Commissioner of Revenue:
56

State Action: Special tax on newsprint and ink that was triggered when a
newspapers purchases exceeded $100K
State Interest: Creating an equitable tax system
Court:
Implicated a fundamental right freedom of the press
Right was substantially infringed strict scrutiny
Slippery slope argument tax system can be used to favor/censor
newspaper
o Miami Herald v. Tornillo:
Tornillo was running for state legislature and was attacked by the Herald
sought enforcement of statute granting him the right to respond in the
newspaper
Herald did not want to let him respond
State Action: Requirement that newspapers grant public figures the opportunity
to respond to attacks
Court:
Implicated a fundamental right freedom of the press
Substantial infringement strict scrutiny
o Regulated content
o Requires editors to publish information they dont believe
No compelling state interest
o Red Lion v. FCC:
State Action: Fairness Doctrine requires that broadcasters let those
people/institutions that it has attacked respond
Challenged by Red Lion as an infringement on its freedom of speech
Court:
Not a substantial infringement
State had a legitimate interest in the allocation of opinion on airwaves
o Radio/TV and newspapers are distinguishable
Establishment Clause
o Everson v. Board of Education:
State Action: Providing transportation funds for public/parochial school
students
Implicated a fundamental right freedom of religion (establishment clause)
Court:
Action served a secular purpose education
No substantial infringement rational basis review
o Court definition of religion
Does not require belief in a supreme being
Does not have to arise out of traditional organized faith
Must occupy a place parallel to orthodox religion
Individual must practice this belief
o Lemon Test:
Refines Everson
Prongs:
Does the state have a secular interest?
Does the primary effect enhance/inhibit religion
57

Is there excessive state entanglement with religion
o Yes, if there is no secular interest
o Yes, if the effect is to enhance/inhibit religion
o Lee v. Weisman:
Rabbi delivered invocation at a middle school graduation someone in the
audience complained on Establishment Clause grounds
State Action: Invitation on clergy to speak at the graduation
Court:
Did the state action have a secular purpose? No
Did it inhibit/enhance religion?
o Yes
o Graduation is essentially a mandatory event
o Teenage students would have to:
Participate in prayer
Protest and be unfairly singled out
o Public Prayer
Public school prayer is unconstitutional
Legislative prayer is constitutional based on historic tradition in US
o Lynch v. Donnelly:
State Action: City erected a nativity scene as part of a bigger, largely secular
Christmas display
State Interest: City claimed that it was depicting the scene as part of a larger
event portrayed historic origins
Court:
No excessive entanglement of government and religion
Relationship to religion is remote, indirect, incidental