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| An approach to interpretation that accords dispositive weight to the original meaning of the Constitution. A provision of the Constitution must mean today what it meant when it was adopted. Originalism is an approach to constitutional interpretation that properly recognizes the Constitution’s status as law. Originalism is necessary to protect and preserve democratic values. Originalism is uniquely promising for constraining the ability of judges to impose their own personal views under the guise of constitutional interpretation. |
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There are other sources that one can look to in interpreting the Constitution. Non-originalists still hold the original meaning of a constitutional provision as vital, but as a starting-off point for future discussion on the practical, modern applications of the provision. Non-originalism is sometimes compared with common-law decision-making, with both evolving gradually over time. Non-originalists are willing to depart from the original meaning of the Constitution and believe that is necessary to ensure the Constitution retains legitimacy as a binding doctrinal force over the public. The silence expressed by the historical record is not indicative of the Constitution having nothing to say about a topic – just that there may have been disagreement and the only way to move forward with the original crafting of the Constitution was to write a generally broad document. |
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| Marsh v. State of Alabama |
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| provides an example of a private party (Chickasaw was a company town owned by Gulf Shipbuilding Corporation) who assumed the functions traditionally left for the state – roads, police, mail, stores, etc. Just because the town was a private actor, because it was not discernibly different from any other town, it fit perfectly within this exception and was open to legislation. |
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the courts held that a shopping mall is not the equivalent of a company town and does not qualify as a state actor |
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Applies to States via incorporation
-Sec. 5 of 14th does not give congress the power to address private discrimination |
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| Judicial Enforcement Exception |
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private action can effectively become public action when a court acts to uphold the private action. Judicial decisions are a form of state action. Judges and courts are part of the government. Although private action does not violate the Constitution, a court’s enforcement of that conduct may constitute state action. Shelley v. Kramer perfectly exemplifies this exception. |
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Joint Participation (Entanglement) Exception |
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some private parties will be deemed to be state actors in certain circumstances when they are acting with the state or state officers. A private party may be held liable for a deprivation of a constitutional right if 2 elements are present (Lugar Test): first, the deprivation must be caused by the exercise of some right or privilege created by the State or a rule of conduct imposed by the state; second, the party charged with the deprivation must be a person who may fairly said to be a state actor – either a state official, someone who acted together with state officials, or someone whose conduct is chargeable to the State. Burton v. Wilmington Parking Authority exemplifies this perfectly. Edmonson v. Leesville Concrete is a stretch and Tarkanian v. NCAA shows how to fail the entanglement exception – by having contrary interests in the outcome of the litigation. |
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| Public Function Exception |
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| private parties assume the functions traditionally undertaken by the State |
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| Substantial historical evidence lends credibility to the idea that the 14th Amendment’s Privileges or Immunities clause was drafted and proposed to incorporate the provisions of the Bill of Rights. This would expand Bill of Rights protections against Congress and the States. As it turns out, it was the Due Process Clause of the 14th Amendment (by asking what rights were implicit in the concept of ordered liberty) that allowed this incorporation to happen, although on a case-by-case basis (Justice Black would lobby for TOTAL incorporation – easier to understand and apply; Justice Frankfurter would lobby for SELECTIVE incorporation – protect the states’ power in the legal process) when Adamson v. California was decided but eventually became TOTAL incorporation for the Bill of Rights (except the 3rd and 7th Amendments) |
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| The Kraemers were a white couple who owned a residence in a Missouri neighborhood governed by a restrictive covenant. This was a private agreement that prevented blacks from owning property in the Kraemers' subdivision. The Shelleys were a black couple who moved into the Kraemers neighborhood. The Kraemers went to court to enforce the restrictive covenant against the Shelleys. Does the enforcement of a racially restrictive covenant violate the Equal Protection Clause of the 14th Amendment? State courts could not constitutionally prevent the sale of real property to blacks even if that property is covered by a racially restrictive covenant. Standing alone, racially restrictive covenants violate no rights. However, their enforcement by state court injunctions constitute state action in violation of the 14th Amendment. |
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| Wilmington Parking Authoriy Case |
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| In August 1958 William H. Burton, an African-American, entered the Eagle Coffee Shoppe, a restaurant leasing space within a parking garage operated by the Wilmington Parking Authority, and was denied service solely because of his race. The Parking Authority is a tax-exempt, private corporation created by legislative action of the City of Wilmington for the purpose of operating the city's parking facilities, and its construction projects are partially funded by contributions from the city. The Parking Authority provided the restaurant heating and gas services and maintained the premises at its own expense. Burton filed suit seeking an injunction preventing the restaurant from operating in a racially discriminatory manner on the ground that doing so violated the Equal Protection Clause of the Fourteenth Amendment. the Court concluded that the restaurant, as a recipient of assistance by the Parking Authority, clearly benefited from the city's aid and "constituted a physically and financially integral and, indeed, indispensable part of the State's…plan to operate its project as a self-sustaining unit." As such, the Court found that the state, via the Parking Authority, had "made itself a party to the refusal of service." |
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| The worker filed suit against the company for negligence. At trial, the worker's request that the company articulate race-neutral reasons for using its peremptory challenges was denied. On appeal, the judgment was affirmed. The court held that use of peremptory challenges in civil suits did not constitute state action and did not implicate constitutional guarantees. The Supreme Court reversed, holding that peremptory challenges were only permitted when a statute or law allowed them. Use of peremptory challenges involved significant state action because they were not exercised without overt, significant assistance from the trial court. The trial court summoned and discharged jurors and exerted control over the voir dire system. The use of peremptory challenges involved the traditional government function of conducting a trial. The worker had standing to assert the rights of potential jurors because the worker was directly injured by the dismissals, and the task of jurors asserting their own rights was daunting. The Court reversed, holding that significant state action existed in a civil trial when the private company used peremptory challenges to dismiss jurors based on race, and the worker had standing to file suit. |
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| University informed respondent that it was going to suspend him. No dissatisfaction with respondent motivated the suspension. The impetus was a report by petitioner detailing violations of petitioner's rules by university personnel, including many involving respondent. Petitioner placed university's basketball team on probation for two years and ordered university to show cause why petitioner should not impose further penalties unless university severed all ties during the probation between its intercollegiate athletic program and respondent. Facing demotion and a drastic cut in pay, respondent brought suit in Nevada state court, alleging that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U.S.C.S. § 1983. Ultimately respondent obtained injunctive relief and an award of attorney's fees against both university and petitioner. The state supreme court affirmed. The U.S. Supreme Court reversed holding petitioner's participation in the events leading to respondent's suspension did not constitute "state action." The judgment was reversed; petitioner was not a state actor because it was acting under the color of its own policies rather than under the color of state law and because university did not delegate power to petitioner to take specific action against university or respondent. |
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John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses.
Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states |
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Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this created "involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of "liberty and property without due process of law." Did the creation of the monopoly violate the Thirteenth and Fourteenth Amendments?
No. The involuntary servitude claim did not forbid limits on the right to use one's property. The equal protection claim was misplaced since it was established to void laws discriminating against blacks. The due process claim simply imposes the identical requirements on the states as the fifth amendment imposes on the national government. The Court devoted most of its opinion to a narrow construction of the privileges and immunities clause, which was interpreted to apply to national citizenship, not state citizenship. |
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| Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in accordance with a California law, made comments to the jury which highlighted Adamson's decision not to testify on his own behalf. Is a defendant's Fifth Amendment right not to bear witness against himself applicable in state courts and protected by the Fourteenth Amendment's due process clause? A divided Court found that the the Fourteenth Amendment's due process clause did not extend to defendants a Fifth Amendment right not to bear witness against themselves in state courts. Citing past decisions such as Twining v. New Jersey (1908), which explicitly denied the application of the due process clause to the right against self-incrimination, and Palko v. Connecticut (1937), Justice Reed argued that the Fourteenth Amendment did not extend carte blanche all of the immunities and privileges of the first ten amendments to individuals at the state level. In a lengthy dissent which included a deep investigation of the Fourteenth Amendment's history, Justice Black argued for the absolute and complete application of the Bill of Rights to the states. |
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| McDonald v. City of Chicago |
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| Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed. Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states? The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense. |
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| The state of New York enacted a statute forbidding bakers to work more than 60 hours a week or 10 hours a day. The Court invalidated the New York law. The majority (through Peckham) maintained that the statute interfered with the freedom of contract, and thus the Fourteenth Amendment's right to liberty afforded to employer and employee. The Court viewed the statute as a labor law; the state had no reasonable ground for interfering with liberty by determining the hours of labor. |
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| To combat the effects of the Great Depression, New York adopted a Milk Control Law in 1933 which established a board empowered to set a minimum retail price for milk. Nebbia was a store owner who violated the law. Did the regulation violate the Due Process Clause of the Fourteenth Amendment? No. In a case which included a lengthy discussion of the Due Process Clause, the Court held that since the price controls were not "arbitrary, discriminatory, or demonstrably irrelevant" to the policy adopted by the legislature to promote the general welfare, it was consistent with the Constitution. There was nothing "peculiarly sacrosanct" about prices which insulates them from government regulation, argued Justice Roberts. |
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| West Coast Hotel Co. v. Parrish |
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| Elsie Parrish, an employee of the West Coast Hotel Company, received sub- minimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. Did the minimum wage law violate the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment? In a 5-to-4 decision, the Court held that the establishment of minimum wages for women was constitutionally legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally "free" in negotiating contracts, since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. This case explicitly overruled the Court's decision in Adkins v. Children's Hospital (1923). |
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| Williamson v. Lee Optical |
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| An Oklahoma law prohibited persons who were not licensed optometrists or ophthalmologists to fit lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law, bringing a suit against the state Attorney General, Mac Q. Williamson. Did the Oklahoma law violate the Due Process Clause of the Fourteenth Amendment? In a unanimous decision, the Court held that while the law may have been "needless" and "wasteful," it was the duty of the legislature, not the courts, "to balance the advantages and disadvantages of the new requirement." The Court emphasized that "[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." |
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| The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Pierce v. Hill Military Academy.Did the Act violate the liberty of parents to direct the education of their children? Yes. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." |
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| Oklahoma's Criminal Sterilization Act allowed the state to sterilize a person who had been convicted three or more times of crimes "amounting to felonies involving moral turpitude." Did the Act violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment? A unanimous Court held that the Act violated the Equal Protection Clause of the Fourteenth Amendment. Since some crimes such as embezzlement, punishable as felonies in Oklahoma, were excluded from the Act's jurisdiction, Justice Douglas reasoned that the law had laid "an unequal hand on those who have committed intrinsically the same quality of offense." Moreover, Douglas viewed procreation as one of the fundamental rights requiring the judiciary's strict scrutiny. |
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| Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. |
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| In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment? Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. The Court also held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State." |
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| Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling. Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents. |
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| On account of their race, black children in Washington D.C. were denied admission to the same public schools which white children attended. Did the segregation of the public schools of Washington D.C. violate the due process clause of the Fifth Amendment? Yes. In a unanimous decision, the Court found that racial discrimination in the public schools of Washington D.C. denied blacks due process of law as protected by the Fifth Amendment. Noting the legal peculiarities of the District of Columbia, Chief Justice Warren recognized that the Fifth Amendment (which applied to the District) did not contain an equal protection clause while the Fourteenth Amendment (which was used as the standard for outlawing school desegregation in Brown v. Board of Education) did. Lacking an equal protection standard to invalidate the District's segregation, Warren creatively relied on the Fifth Amendment's guarantee of "liberty" to find the segregation of the Washington D.C. schools unconstitutional. |
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| Strauder v. West Virginia |
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| Does the state law barring blacks from jury service violate the Equal Protection Clause of the Fourteenth Amendment? Yes. Strong, writing for the majority, declared that to deny citizen participation in the administration of justice solely on racial grounds "is practically a brand upon them, affixed by law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." |
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Strict Scrutiny (what a state must prove to look at the law under strict scrutiny)
1. State owes “us” collectively a compelling interest (the rationale for the law)
Goal must be to vindicate this interest (in this case, it is the US’s desire to win the war)
Survival of the state itself (protect from sabotage)
2. Must be narrowly tailored (necessary, no less discriminatory means by which the state can achieve or vindicate the compelling interest)
Did the court apply strict scrutiny in name only?
Court must ask whether the law is as narrow as it can be while still protecting its objective?
What were our other options besides interning 143,000 of our own citizens?
Dissent: overly narrow, didn’t include Germany or Italy (who was also at war with US)
Jackson: “This would legalize racism”
His solution: Not ready to say that this isn’t a necessary matter; we should just step away like a political question. (“Lies about like a loaded gun.”)
How can this opinion be defended?
Some Japanese Americans would not renounce their loyalties to the emperor.
Court wanted to defer to the decisions of the other branches (structural argument)
Takeaways:
Racial discrimination (classification) requires strict scrutiny
Be careful about the second prong of the test
There is a difference between narrow tailoring and Korematsu narrow tailoring
(Strict vs. not-so-strict scrutiny) |
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| as applied – facially neutral law but when you dig deeper you see that classification is happening at the administrative level. EP applies to both the law and the application of the law! Since the application violates, we run the case back through the 7 steps and see the classification is one of national origin (which is a suspect class) and that strict scrutiny should apply. However, the court only applies rational basis to defeat this statute – SCOTUS only applies the level of scrutiny necessary to defeat a law found to violate EP. |
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| Test 21 used by DC Metro Police as a prerequisite for hiring was excluding a disproportionately high number of African American applicants. SCOTUS overrules lower courts explaining that discriminatory effects only require a rational basis scrutiny (while purpose or intent requires strict). Since DC used a standardized test for all government employees, there was no intent or purpose, just effects. |
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| City of Richmond v. Croson |
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| In 1983, the City Council of Richmond, Virginia adopted regulations that required companies awarded city construction contracts to subcontract 30 percent of their business to minority business enterprises. The J.A. Croson Company, which lost its contract because of the 30 percent set-aside, brought suit against the city. Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment? In a 6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification. O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert constitutional values: "The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs." |
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| n 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." The District Court concluded that the Law School's stated interest in achieving diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. In reversing, the Court of Appeals held that Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), constituted a binding precedent establishing diversity as a compelling governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's finding that the Law School's "critical mass" was the functional equivalent of a quota. Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? No. In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race- conscious admissions program does not unduly harm nonminority applicants." |
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| In 1995, Jennifer Gratz applied to the University of Michigan's College of Literature, Science and the Arts with an adjusted GPA of 3.8 and ACT score of 25. In 1997, Patrick Hamacher applied to the University with an adjusted GPA of 3.0, and an ACT score of 28. Both were denied admission and attended other schools. The University admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." In addition, the University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups - African Americans, Hispanics, and Native Americans - that are considered to be "underrepresented" on the campus. Concluding that diversity was a compelling interest, the District Court held that the admissions policies for years 1995-1998 were not narrowly tailored, but that the policies in effect in 1999 and 2000 were narrowly tailored. After the decision in Grutter, Gratz and Hamacher petitioned the U.S. Supreme Court pursuant to Rule 11 for a writ of certiorari before judgment, which was granted. Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the University of Michigan's use of racial preferences in undergraduate admissions violates both the Equal Protection Clause and Title VI. While rejecting the argument that diversity cannot constitute a compelling state interest, the Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Chief Justice Rehnquist wrote, "because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause." |
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| Parents v. Seattle School District |
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The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total student population (approximately 40% white and 60% non- white), the racial tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal.
Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. Applying these precedents to K-12 education, the Circuit Court found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an "en banc" ruling by a panel of 11 Ninth Circuit judges. The en banc panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point.
Question
1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students?
2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?
3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race in an effort to achieve a desired racial balance?
No, no, and yes. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he present cases are not governed by Grutter." Unlike the cases pertaining to higher education, the District's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). The District's goal of preventing racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that the District's tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that the District's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity. |
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| The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. On appeal from a District Court ruling favoring VMI, the Fourth Circuit reversed. It found VMI's admissions policy to be unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to create the Virginia Women's Institute for Leadership (VWIL) as a parallel program for women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit ruled that despite the difference in prestige between the VMI and VWIL, the two programs would offer "substantively comparable" educational benefits. The United States appealed to the Supreme Court. Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further educational diversity. Furthermore, Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. Finally, the Fourth Circuit's "substantive comparability" between VMI and VWIL was misplaced. The Court held that the Fourth Circuit's "substantive comparability" standard was a displacement of the Court's more exacting standard, requiring that "all gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated with such "heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same opportunities as VMI provides its men and so it failed to meet requirements of the equal protection clause. |
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| A Massachusetts law gave hiring preference to honorably discharged veterans applying for state civil service positions. Feeney, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores. Did the law discriminate against women and violate the Equal Protection Clause of the Fourteenth Amendment? No. The Court held that the law was enacted to serve "legitimate and worthy purposes" and not to discriminate on the basis of sex. Even though few women benefitted from the scheme, Justice Stewart argued that "veteran status is not uniquely male." Furthermore, the law placed many men who were not veterans at a disadvantage as well. The distinction in the law was clearly between veterans and nonveterans, not between men and women. |
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Robert Murgia, although he was in excellent physical and mental health, was forced to retire at age fifty according to state law. Murgia had been a uniformed officer in the state police force. Murgia successfully challenged the mandatory retirement law in district court. Did the Massachusetts law violate the Equal Protection Clause of the Fourteenth Amendment?
In a per curiam opinion, the Court held that the law did not violate the Equal Protection Clause. The Court found that the right of governmental employment was not per se fundamental, and that uniformed state police officers over 50 did not constitute a suspect class under the Clause. Applying a rational relationship test, the Court reasoned that the statute was sufficiently justified as a means of protecting the public "by assuring physical preparedness of [the] uniformed police." The Court noted that while the law may not have been the best means to accomplish this purpose, it did not violate the Fourteenth Amendment merely because of its imperfections. |
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| egislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal. Does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." |
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After the 2000 census reduced the size of the Pennsylvania Congressional delegation by two members, the Republican-controlled state legislature passed a redistricting plan that clearly benefitted Republican candidates. Several members of the Democratic party sued in federal court, claiming that the plan was unconstitutional because it violated the one-person, one-vote principle of Article I, Section 2 of Constitution, the Equal Protection clause, the Privileges and Immunities clause, and the freedom of association. In a split decision that had no majority opinion, the Court decided not to intervene in this case because no appropriate judicial solution could be found. Justice Antonin Scalia, for a four-member plurality, wrote that the Court should declare all claims related to political (but not racial) gerrymandering nonjusticiable, meaning that courts could not hear them. Because no court had been able to find an appropriate remedy to political gerrymandering claims in the 18 years since the Court decided Davis v. Bandemer, 478 U.S. 109, which had held that such a remedy had not been found yet but might exist, Scalia wrote that it was time to recognize that the solution simply did not exist.
Justice Anthony Kennedy, however, wrote in his concurring opinion (which provided the deciding fifth vote for the judgment) that the Court should rule narrowly in this case that no appropriate judicial solution could be found, but not give up on finding one eventually. |
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| A revision to the Texas education laws in 1975 allowed the state to withhold from local school districts state funds for educating children of illegal aliens. This case was decided together with Texas v. Certain Named and Unnamed Alien Child. Did the law violate the Equal Protection Clause of the Fourteenth Amendment? Yes. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections. Since the state law severely disadvantaged the children of illegal aliens, by denying them the right to an education, and because Texas could not prove that the regulation was needed to serve a "compelling state interest," the Court struck down the law. |
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| A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school. |
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| In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church- related educational institutions"? Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools. |
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| An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. Did Alabama law violate the First Amendment's Establishment Clause? Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause. |
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| In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government. |
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| Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. The district court supported Chambers on the use of public funds. The appeals court supported Chambers on the prayer practice. Both parties appealed to the U.S. Supreme Court. Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment? In a 6-to-3 decision, the Court upheld the chaplaincy practice. In his opinion for the Court, Chief Justice Warren Burger abandoned the three-part test of Lemon v. Kurtzman, which had been the touchstone for cases involving the Establishment Clause. In its place, Burger rested the Court's opinion on historical custom. Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion. "It is," wrote Burger, "simply a tolerable acknowledgment of beliefs widely held among the people of this country." |
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| The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. The creche had been included in the display for over 40 years. Daniel Donnelly objected to the display and took action against Dennis Lynch, the Mayor of Pawtucket. Did the inclusion of a nativity scene in the city's display violate the Establishment Clause of the First Amendment? No. In a 5-to-4 decision, the Court held that notwithstanding the religious significance of the creche, the city had not violated the Establishment Clause. The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The Court held that the symbols posed no danger of establishing a state church and that it was "far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country." |
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| The American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for displaying framed copies of the Ten Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Sixth Circuit Court of Appeals ruled the displays violated the establishment clause. Do Ten Commandments displays in public schools and in courthouses violate the First Amendment's establishment clause, which prohibits government from passing laws "respecting an establishment of religion?" 2. Was a determination that the displays' purpose had been to advance religion sufficient for the displays' invalidation? Yes and yes. In a 5-4 opinion delivered by Justice David Souter, the majority held that the displays violated the establishment clause because their purpose had been to advance religion. In the case of each of the displays, the Court held, an observer would have concluded that the government was endorsing religion. The first display for presenting the Ten Commandments in isolation; the second for showing the Commandments along with other religious passages; the third for presenting the Commandments in a presentation of the "Foundations of American Law," an exhibit in which the county reached "for any way to keep a religious document on the walls of courthouses." |
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| Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion. Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?" No. In 5-4 decision, and in a four-justice opinion delivered by Chief Justice William H. Rehnquist, the Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause." |
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| Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), states receiving Temporary Assistance to Needy Families (TANF) can pay the benefit amount of another State's TANF program to residents who have lived in the State for less than 12 months. When California announced it would enforce this option, Brenda Roe brought this class action, on behalf of other first year residents, challenging the constitutionality of the durational residency requirement. On appeal from successive adverse rulings in the lower courts, the Supreme Court granted Rita Saenz, the Director of California's Department of Social Services, certiorari. Does a state statute, authorizing states receiving Temporary Assistance to Needy Families to pay the benefit amount of another State's TANF to its first year residents, violate the Fourteenth Amendment's right-to-travel protections? Yes. In a 7-to-2 decision, the Court held that the Fourteenth Amendment protects the right to travel in three ways by: allowing citizens to move freely between states, securing the right to be treated equally in all states when visiting, and securing the rights of new citizens to be treated like long-time citizens of a state. The Court explained that by paying first-year residents the same TNF benefits they received in their state of origin, states treated new residents differently than others who have lived in their borders for over one year. As such, enforcement of the PRWORA power unconstitutionally discriminated among residents. |
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Step 1. Define or Identify the Interest Protected – economic (rational basis) or fundamental (strict)
Step 1.5. Did the State really burden or infringe that right or interest?
Step 2. Scrutinize the State’s rationale for acting
Step 2.5 Question the level of scrutiny applied
Step 3. What constitutional link can be found for the liberty being discussed? If strong – use strict scrutiny; if weak – use low scrutiny (rational basis). The more fundamental the right, the more elevated the scrutiny.
Things to consider: size of the class of persons affected, the competence of the court on the subject/interest in question, the inferred right, and the range and scope of the issue. |
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1. 15th or 14th?
2. Classification?
3.Type of scrutiny?
Fundamental Rights = Strict Facial = Strict
Suspect Class = Strict Gender = intermediate
Age = rational Sexual orientation = intermediate/strict
Race = strict Status-based classifications – strict
Discriminatory effects – rational basis |
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| Strict scrutiny for case where student was denied to med school twice. Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. |
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| Annie E. Harper, a resident of Virginia, filed suit alleging that the state's poll tax was unconstitutional. After a three-judge district court dismissed the complaint, the case went to the Supreme Court. This case was decided together with Butts v. Harrison. Did the Virginia poll tax violate the Equal Protection Clause of the Fourteenth Amendment? In a 6-to-3 decision, the Court held that making voter affluence an electoral standard violated the Equal Protection Clause. The Court found that wealth or fee-paying had no relation to voting qualifications. The Court also noted that the Equal Protection Clause was not "shackled to the political theory of a particular era" and that notions of what constituted equal treatment under the Clause were subject to change. |
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