Constitutional Law II Outline

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SPRING 2016 CON LAW II PROFESSOR BLOOM
14 T H A MENDMENT O VERVIEW
(1868) “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection
of the laws.”
Citizenship Clause – “All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.” This clause overruled Dred
Scott (1857), which held that people of African American descent could not be citizens of the US.
Privileges and Immunities Clause – “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.” This clause was arguably meant to govern how
a state treats its own citizens by voiding all state legislation, which impairs the privileges and immunities
of those citizens, or which deprives them of life, liberty, or property without the due process of law, or
which denies any of them the equal protection of the laws. Clause was rendered useless after the Slaughter-
House Cases (1873), which held that the P&I Clause does not incorporate the Bill of Rights against the States
– the Court subsequently began using the due process clause for this.
Not to be confused with the P&I Clause in Article IV, Section 2 of the US Constitution – “The
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.” which does not govern how a state treats its own citizens. It was meant to place
out of state citizens on equal footing with the citizens of other states with regard to fundamental
rights and relieve them from the disabilities of alienage in the other States. E.g. the Right to
Interstate Travel.
Equal Protection Clause – “[No state shall] deny to any person within its jurisdiction the equal protection
of the laws.” Prohibits a state from denying anyone within its jurisdiction the equal protection of the laws.
Requires that people under like circumstances be given Equal Protection in the enjoyment of personal
rights and the prevention and redress of personal wrongs. One person or one group claims that they are
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being afforded disparate treatment under a law as compared to another person or group who is similarly
situated.
Due Process Clause – “Nor shall any state deprive any person of life, liberty, or property, without due
process of law.” There are two Due Process Clauses in the Constitution – one in the 5th Amendment,
which pertains to the federal government, and one in the 14th Amendment, which protects persons from
state actions. Two types of Due Process:
1. Procedural Due Process – At the very least, Due Process requires that before a person is deprived
of life, liberty, or property he must be given notice of the case against him and an opportunity to
meet it. Unless the government is depriving a person of life, liberty, or property, it may use any
procedure it wants, including arbitrary and capricious procedures. The focus of procedural due
process is to identify the unenumerated substantive rights that are implicit in “life, liberty, or
property” and to assess whether the government’s procedures for taking them away are
constitutionally adequate.
2. Substantive Due Process – Some liberties not mentioned in the Constitution but identified by the
Court are considered so fundamental to the idea of liberty that their invasion by government is
presumed to be void and can be sustained only if the government justifies the invasion. E.g.
freedom to associate with others, the right to vote, the right to be accorded equal protection of the
laws by the federal government, the right to be presumed innocent and to have that presumption
overcome only by proof beyond a reasonable doubt, the right of interstate migration, the right to
marry or not, the right to have children or not, and the right to enjoy a zone of personal privacy or
autonomy into which the government may not intrude.
Two eras of substantive due process: (1) Lochner Era – where economic regulations covering
private property and contracts were struck down as void against an unwritten liberty of contract,
and (2) post-Lochner Era – still continuing, where some government regulations of intimate
relationships or decisions have been invalidated.
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D RED S COTT | T HE C IVIL W AR | R ECONSTRUCTION E RA
I. SLAVERY/RACE IN THE CONSTITUTION
Race in the Constitution Controversy over the legal status of African Americans has been central to US
politics since the founding of the Republic. Judicial decisions have shaped this controversy - Court’s
analysis of discrimination against African Americans has served as a prototype for the development of
other Constitutional doctrines.
A. Chronology – Race and the Constitution
 1787 – Ratification of the US Constitution

 1791 – Bill of Rights
 1820 – Missouri Compromise
 1856 – Dred Scott v. Sanford (holds blacks are personal property)
 1861-1865 – Civil War
 1863 – Emancipation Proclamation
 1865 – 13th Amendment (abolishes slavery)
 1866 – Civil Rights Act of 1866
 1868 – 14th Amendment (due process and equal protection)
 1870 – 15th Amendment (protection for voting)
 1873 – Slaughterhouse cases (USSCt gutted the privileges and immunities clause)
 1875 – Civil Rights Act of 1875 (Prohibits discrimination in public accommodations)
 1883 – Civil rights cases (CRA of 1875 declared unconstitutional)
 1896 – Plessy v. Ferguson (separate but equal declared constitutional)
 1938 - US v. Carolene Products
 1938 - Missouri ex rel Gaines v. Canada
 1948 - Sipuel v. Board of Regents
 1950 - Sweat v. Painter
 1950 - McLaurin v. Oklahoma State
 1954 – Brown v. Board of Education
B. History of Slavery and the Constitution
1. When Constitution was ratified

(a) “3/5 Compromise” – Slaves considered 3/5 of a person for purposes of state representation
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(b) Congress banned the prohibition of slavery (Congress later banned importing slaves into
the US in 1808)
(c) Fugitive Slave Clause – required States to participate in the return of runaway slaves to
their owners.
2. Slavery in the Territories: Biggest unresolvable issue during first half of 19th century
(a) When constitution was ratified there was only 13 states, by time of civil war it was up to 32
states. It was recognized that if a new territory was organized as a slave state, it would
probably enter the union as a slave state as opposed to a free state, and vice versa. The south
understood, that if too many new states were added that opposed slavery, at some point
they would have the supermajority to abolish slavery. Issue came to head in 1820 with
Missouri Compromise (1820). Maine joined union as a free state, and Missouri entered as
a slavery state. Compromise took position that no state above Missouri would enter union
as a slave state.
(b) Compromise of 1850 – much of Missouri Compromise was abolished and new states got to
decide whether they wanted to enter as slave states or free states.
(c) All of this comes to head in Dred Scott.
C. Dred Scott Case – Scott v. Sanford (1857, CJ Taney)
This case held that the Missouri Compromise was unconstitutional and that slaves were considered
property, not citizens, under the 14th Amendment. The decision in Dred Scott becomes a focal point in
the debate over slavery and by striking down the MO Compromise, and some argue it led to the Civil
War.
1. BACKGROUND
(a) As a slave, Dred Scott was sold in Missouri where he lived with his new owner, Dr.
Emerson, a physician in the army. Scott accompanied Emerson when he was sent to an
Illinois army post, a free state, and to Minnesota, also a free state. After they returned to
Missouri Dr. Emerson died and Scott was inherited as part of the estate by Emerson’s
widow. Scott sued for his freedom on grounds that he lived in a free state for an extended
period of time. Another MO case held a slave was free under similar facts to Scott’s.
(b) Scott I - Scott sued for his freedom claiming that, under Missouri law, if a slave lives in Free
territory for a certain period of time, he is considered to be emancipated.
(1) Trial court ruled for Scott but MO Supreme Court reversed holding that visiting an
army base with your owner is not sufficient for emancipation under the law.
(2) Scott did not appeal to US Supreme Court because he would likely lose.
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2. Scott v. Sanford (1857)

(a) FACTS: Following Scott I, Scott was sold to Sanford who lives in Massachusetts, and Scott
brought a new suit in Mass. claiming federal diversity. Scott claims he is a citizen of
Missouri and Sanford a citizen of New York. Sanford claims Scott isn’t a citizen under the
Constitution so federal diversity jurisdiction doesn’t apply.
(b) TRIAL CT.: Trial court directed verdict against Scott holding he wasn’t a citizen for
diversity purposes. Scott appealed to US Supreme Court.
(c) ISSUE: If Scott is emancipated because he traveled to a free state, then is the MO
Compromise is unconstitutional? If Scott is free, then Congress has unconstitutionally
deprived Sanford of his property. If Scott is not free, then he is not a citizen for
constitutional purposes.
(d) HOLDING: The Supreme Court dismissed the case for lack of jurisdiction.
(1) Scott, a slave, was not a citizen of Missouri because MO did not permit slaves to become
citizens.
(2) Furthermore, Scott did not gain freedom by being transferred into a US territory
declared free by Congress. Emerson has a substantive right to take his property
anywhere he chooses, and congress may not take that right away just because he
brought Scott into a free territory. Therefore, the law making the territory free – the MO
Compromise – was unconstitutional under the 5th amendment (the 14th amendment
wasn’t around yet). Congress cannot grant citizenship to slaves or their descendants
(but states theoretically could, and some had already treated blacks as citizens and gave
them restricted rights).
(e) CJ Taney’s Majority Opinion
(1) Taney was persuaded to write a decision that would have decided all of the issues in
the case versus just staying on the most simple topics. Taney might have resolved the
case on far narrower grounds:
(i) Narrowest: Court could have decided that the question of Scott’s citizenship was a
Missouri (state) issue – since the Supreme Court of Missouri already rejected Scott’s
claim, this should be the end of the matter.
(ii) Narrower: When Scott and Emerson lived in Illinois or Minnesota, the temporary
place of abode changed, but domicile never changed – Scott was not emancipated.
(iii) Narrow: Doctrine of Attachment—when Scott returned from the free territory, then
slavery reattached.
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(2) Taney argued on Original Understanding grounds, that as a matter of constitutional law,
neither a slave nor a descendent of a slave could ever become a citizen of the US. Hence
there was no diversity jurisdiction b/c Scott could not be a citizen of Missouri w/in
Article III. – Slaves are not citizens and could not invoke federal court diversity of
citizenship jurisdiction. Slaves held no rights or privileges.
(3) Even though the Court concluded that it lacked jurisdiction to hear Scott’s suit, it went
further and declared the MO Compromise unconstitutional and ruled that Congress
could not grant citizenship to slaves or their descendants (this would be a taking of
property to slave owners w/out due process or just compensation – a right which is
expressly affirmed in the Constitution).
(4) Taney is not saying congress violated a procedural right, rather it was that Emerson has
a substantive right to take his property anywhere he chooses, and congress may not
take that right away just because he brought it into a free territory.
(5) This aspect of the case was totally gratuitous since Taney had already found that there
was no federal jurisdiction. It was the first instance of an assertion of “substantive” due
process by the Court. The first federal statute invalidated by the Court since Marbury v.
Madison, 53 years earlier.
(6) It was a devastating blow to the efforts to further resolve the slavery in the territories
issue through compromise since the Court had effectively constitutionalized the issue
of slavery, i.e. slaves cannot be citizens under the Constitution. The only way to affect
slavery issue, you have to amend the Constitution.
(f) J. Curtis’ Dissent
(1) Attacks Taney’s historical argument. He seized on the breadth of the proceedings.
Pointing out that the case unnecessarily decided whether ALL slaves could be a citizen
of a state and not just this one slave. He pointed out that many former slaves were
treated as citizens around the time the constitution was ratified (New England).
(2) Taney concedes some of this – but says they weren’t given all their rights. They couldn’t
marry interracially, they couldn’t vote, etc. so they weren’t truly citizens under the
Constitution.
(3) Curtis responds by arguing that it’s not an all or nothing test. E.g. children and women
could not vote, but they were still considered citizens.
3. Aftermath of Scott
(a) The Court believed that it could resolve the slavery issue as a matter of constitutional law
but its decision was extraordinarily divisive and made matters much worse (even though
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by the time Scott was decided, the MO Compromise had already been overruled by the
Kansas Compromise).
(b) North claims court took issue of slavery out of the political realm and constitutionalize it.
E.g. Lincoln (for the North) claims that the Supreme Court Justices don’t have the right to
foreclose the issue on slavery based on this one case.
(c) Scott means slavery can’t be banned by any territory even those in North. Lincoln argued
that if a slave owner has right to bring his slave into a free territory without it resulting in
his emancipation, then slave owners could move into free states and establish slavery there
for a period of time and rotate their use of slaves. Next thing you know, slavery can be
established nationwide.
(d) Scott can’t be blamed for the Civil War, however it did serious damage to the reputation of
the Court for decades.
(e) Lincoln is elected President, Civil War is fought, the North wins.
D. Reconstruction Era – Post-Civil War (1865-1876)
After the North prevailed, Reconstruction Congress Exists - Congress began building constitutional
ideals into our Constitution passed much legislation and drafted and obtained the ratification of 3
constitutional amendments (the 13th, 14th, & 15th), which ultimately resulted in significant changes to
the constitutional structure of the nation.
1. 13th Amendment (1865) – The Emancipation Proclamation

(a) Banned slavery in the US and gives Congress the power to enforce it w/appropriate
legislation. NOTE: the 13th Amendment does NOT require “state action”
(b) Ironically, in a last ditch effort to save the Union, Lincoln was prepared to support a 13th
Amendment prior to the outbreak of the Civil War, which would have constitutionalized
the right to hold slaves.
2. Civil Rights Act of 1866
(a) The following year, Congress passed the Civil Rights Act of 1866, which granted citizenship
to all persons born in the US (excluding Indians) and granted all citizens “the same right to
make and enforce contracts, sue, give evidence, acquire property and to the full and equal
benefit of all laws…for the security of property and persons as enjoyed by white citizens.”
(b) This Act attempted to provide protection against racial discrimination with respect to
certain category of rights that framers at the time referred to as civil rights: right to contract,
hold property, testify in court, serve on jury, bring a law suit, rights integral to your role as
a citizen.
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(c) It was not a broad anti-discrimination law across the board, but only with respect to these
particular rights. This was more of an equality provision.
(d) There was concern that there was nothing in the Constitution gave Congress that kind of
authority to pass such legislation. This led to passage of 14th Amendment.
3. 14th Amendment (1868) – Due Process and Equal Protection Clauses
(a) Because of doubts regarding the constitutional power of Congress to pass the Civil Rights
Act of 1866, Congress debated and ultimately drafted the 14th Amendment, which has
become the centerpiece of modern constitutional civil rights jurisprudence.
(b) The original understanding of the 14th Amendment has been and continues to be one of
the most hotly debated issues in constitutional law.
(c) Some of the framers intended it to be a broad guarantee of racial equality; others wanted it
to be narrow and ineffective and others intended some middle ground.
(d) Overruling Dred Scott: The 14th Amendment overruled Scott in Section I, sentence 1 of the
14th Amendment – “All persons born or naturalized in the US, and subject to its jurisdiction
thereof, are citizens of the US and of the State wherein they reside.”
(1) It is 1 of 4 Constitutional Amendments that overrule a prior Supreme Court case.
(e) The Core of the 14th Amendment is Section I, sentence 2 – “No state shall make or enforce
any law which shall abridge the privileges and immunities of citizens of the US, nor shall
any state deprive any person of life, liberty or property without due process of law, nor
deny any person within its jurisdiction equal protection of the laws.”
(f) Substantive Guarantees: 3 substantive provisions
(1) Privileges & Immunities of US Citizenship
(2) Due Process of Law
(3) Equal Protection of the Laws
(g) Enforcement Clause – Section 5 gives Congress the power to enforce the amendment by
appropriate legislation. It was contemplated by the Framers that Congress, rather than the
Courts, would be the primary protector of 14th Amendment rights.
(h) Problem with ratifying 14th Amendment
(1) It cut deeply into state sovereignty, especially those that seceded and joined the
confederacy.
(2) It was going to impose lots of restrictions on those states that they didn’t like.
(i) Controversial Ratification – Did Congress need the states to ratify these constitutional
amendments?
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(1) Congress said to confederacy, although you are members of the Union, you can no
longer sit on the congress. If you want a seat on Congress, then you must ratify the 14th
Amendment. Since the Republican Congress needed the votes of the Southern States for
the ratification, the South was strong-armed by making ratification of the 14th
Amendment a condition of their re-admission (although they technically had not
seceded so it was really a matter of keeping their seat at the table).
(j) Framers of the 14th Amendment divided Rights into 3 parts
(1) Civil Rights – like those in Act of 1866
(i) Presumably, 14th amendment was only meant to cover civil rights. If it was broad
enough to cover political rights, then 15th amendment wouldn’t have been necessary
(banning racial discrimination in voting)
(2) Political Rights – right to vote
(3) Social Rights – right to be free of discrimination
4. 15th Amendment (1870) – Prohibited banning right to vote based on race
(a) In 1870, Congress drafted and obtained the ratification of the 15th Amendment providing
that the right to vote shall not be denied because of race, color, or previous condition of
servitude.
(b) This tends to confirm that the 14th Amendment was not intended to reach racial
discrimination in voting.
5. The Civil Rights Act of 1875 – Public Accommodation Laws
(a) Prohibited racial discrimination in places of public accommodation such as hotels,
restaurants, and facilities of public transportation in the private sector.
(b) The Supreme Court invalidated this Act in the Civil Rights Cases (1883) on the grounds that
Congress did not have the power to pass it - Congress did not have authority under 14th
amendment to reach private conduct and went beyond scope of prohibitions of 13th
amendment.
6. Other Civil Rights Acts
(a) To combat discrimination in the South, Congress passed several other Civil Rights Acts
including:
(1) The Enforcement Act of 1870
(2) The Ku Klux Klan Act of 1871
E. End of Reconstruction (1876)
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Reconstruction came to an end with a compromise to resolve the disputed election of 1876 (Hayes). The
court read the 14th Amendment very narrowly in several late 19th century cases including the
Slaughterhouse Cases (1873), The Civil Rights Cases (1883), and Plessy v. Ferguson (1896). Because
the 14th Amendment doesn’t use language like Due Process and Liberty, its breadth is left up to
interpretation. This history has permeated constitutional law ever since.
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P RIVILEGES & I MMUNITIES C LAUSE | I NCORPORATION D OCTRINE
P & I Clause: Arguably, the P&I Clause was intended to be the workhorse of the 14th Amendment
providing protection of most, if not all, fundamental constitutional rights against the states. However,
the Court has never interpreted the P&I Clause to incorporate the Bill of Rights. The Slaughterhouse
Cases all but read the Privileges and Immunities Clause out of the Constitution and eventually was
replaced by the Due Process Clause of the 14th Amendment. The P&I Clause has never been effectively
revived.
Incorporation Doctrine: A process by which the Court decides which Bill of Rights guarantees were to
be recognized as part of the substance guaranteed by the Due Process Clause. Three views on whether
the 14th Amendment incorporated some or all of the Bill of Rights to the States: (1) Total Incorporation
– all provisions of BOR are incorporated against the States; (2) Fundamental Fairness – look at each
provision in the BOR and ask whether the incorporation of the provision is necessary to have fundamental
fairness; and (3) Selective Incorporation – similar to fairness test but looks at those aspects of liberty
that are so fundamental that they are protected from state interference without regard to the BOR.
II. THE PRIVILEGES AND IMMUNITIES CLAUSE
A. The Privileges and Immunities Clause
1. The Slaughterhouse Cases (1873, J. Miller)
This was the Court’s 1st significant interpretation of the 14th Amendment 5 years after its ratification.
The P&I Clause was rendered a nullity by this case.
(a) Overview
(1) FACTS: A Louisiana law granted an exclusive monopoly of the butchering trade within
New Orleans to only one specific slaughterhouse. This law caused many other butchers
to close up shop. The excluded butchers challenged the law under the 14th Amendment
due process, equal protection, and privileges and immunities clause.
(2) ISSUE: Certainly the butchers are on to something like a state citizen’s right to be free
from arbitrary legislation that prohibits them from making a living. Justice Miller
doesn’t disagree, but it’s a right protected by the states as a matter of their common law.
The question then is whether the 14th amendment P & I, DP, or EP Clause changes that?
(3) HOLDING: The Court narrowly construed all three provisions and rejected the
butcher’s challenge upholding the law as valid.
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(4) RULE: The Privileges and Immunities Clause of the 14th Amendment was intended only
to guarantee that a citizen of one state could enjoy equality in another state, with regard
to fundamental rights. The Court precluded the use of this provision to apply to the Bill
of Rights – the P & I Clause was not meant to protect individuals from state government
actions.
(5) REASONING:
(i) Court said the general purpose of the 14th Amendment was the freedom and
security of former slaves.
(ii) BUT that the general language of the amendment extended further
(iii) BUT it wasn’t intended to significantly alter the state/federal relationship.
(iv) AND the Equal Protection Clause was only meant to protect blacks (overruled in later
decision).
(v) AND the Due Process Clause does not protect the right to practice one’s trade
because it can’t be construed to invalidate a monopoly as a deprivation of property.
If right to pursue a common calling is constitutionally protected, this would change
the entire federal system (overruled in later decision).
(vi) AND the 13th Amendment was not relevant since it bans servitude and refers to
slavery, which is not at issue here.
NOTE: What are the privileges or immunities of citizens of the US? Key issue is the extent to which
judiciary should protect civil liberties and civil rights when doing so means to strike down actions of
popular elected officials – issue of separation of powers. P&I Clause COULD be interpreted to say that
the Bill of Rights applies to the states – There is the suggestion that the Framers intended to protect
fundamental rights from state and local interference.
(b) Justice Miller (Majority)

(1) The P AND I Clause in Article IV, section 2 refers to the P & I of state citizens and not US
citizens. It says that rights granted by one State to its citizens must apply to citizens
from other States. It does not create rights but merely protects state created rather than
federally created rights, and guarantees that citizens traveling outside their home state
are equally entitled to the same rights as the citizens in the state in which they may be
traveling
(2) The P OR I Clause in the 14th Amendment refers to the protection of US citizens from
State-created rights – no State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.
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(3) Basic civil rights have traditionally been protected by the state and not the federal
government. Therefore, the P & I Clause in the 14th Amendment was not intended to
change this fact. The right to practice a trade is not a fundamental right and it would
result in too great of an alternation of the federal constitutional structure to allow the
federal government to interfere with a state’s laws, especially when the law in question
does not affect a recognized fundamental right.
(4) Dual Sovereignty: Balance Between State and Federal Protection of Fundamental Rights
(i) The Court had difficulty seeing the 14th Amendment as a supplement to state’s
protection of fundamental rights because it operated on an assumption of dual
sovereignty, that is that the spheres of state and federal power were mutually
exclusive and thus power to enforce civil rights must reside either in the states or in
the federal government, but not in both at the same time.
(ii) The working assumption of the generation of 1789 was that the states could be
trusted to protect civil rights but that the new national government couldn’t be.
(iii) In the aftermath of the civil war, the assumption was reversed; the states now
seemed to pose the greatest threat.
(iv) The Congress that drafted the 14th Amendment was the national government. It
undoubtedly trusted itself more than it trusted the states.
(5) Types of rights protected as privileges or immunities of US citizenship under the 14th
Amendment
(i) Right of Habeas Corpus
(ii) Right of Interstate Travel
(iii) Right of Assembly & Petition
(iv) Right to use Navigable Waters
(v) Right to avail oneself to treaties
(vi) Right to come to the seat of government
(vii) Right to share in its offices
(viii) Right to have free access to seaports
(c) Field Dissent
(1) Framers intended to provide basic civil rights protection against the states and the right
to pursue a lawful calling is the type of civil right that is protected as a P or I of US
citizenship.
(2) Source of P or I is the natural law, rights don’t come from the government, they come
from a higher power and the government is there to make sure they are not infringed
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upon – besides, it doesn’t really matter where the rights come from, the purpose of the
14th Amendment is to simply protect them.
(3) Miller’s understanding of the rights protected by the 14th Amendment P & I Clause
(listed above) must be incorrect because it makes the Clause redundant and
meaningless.
(d) Bradley Dissent
(1) The right to pursue a lawful calling is a P or I of US citizenship protected against
arbitrary interference by the states, but it is also a fundamental component of liberty
protected by the Due Process Clause, as well. NOTE: This is the same argument made
by Taney in Dred Scott. This, along with Dred Scott is the beginning of Substantive Due
Process
(2) The 14th Amendment was in fact intended to radically change the relationship of the
federal and state governments with respect to civil rights protection, and indeed it has
certainly had that effect. While the 14th Amendment was not intended to replace state
civil rights enforcement with federal, it was intended to supplement it.
(3) States have the right to restrict their citizens, but there are fundamental rights which
regulation cannot infringe upon. States may prescribe the manner of the exercise of their
citizen’s rights, but they may not undermine such rights.
2. General Critique
(a) Arguably, the P&I Clause was intended to be the workhorse of the 14th Amendment
providing protection of most if not all fundamental constitutional rights against the states.
(b) However, the Court has never interpreted the P&I Clause to incorporate the Bill of Rights.
(c) The Slaughterhouse Cases all but read the Privileges and Immunities Clause out of the
Constitution and eventually was replaced by the Due Process Clause of the 14th
Amendment. The P&I Clause has never been effectively revived.
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III. THE INCORPORATION DOCTRINE
Incorporation Doctrine – There is a lot of argument over scholars as to what the 14th amendment was
meant to do. One of the arguments that has persisted since the debate began in the 1890’s was whether
or not the 14th Amendment incorporated some or all of the Bill of Rights against the States. There
are three views on whether the 14th Amendment incorporated some or all of the Bill of Rights to the
States: (1) Total Incorporation – all provisions of BOR are incorporated against the States; (2)
Fundamental Fairness – look at each provision in the BOR and ask whether the incorporation of the
provision is necessary to have fundamental fairness; and (3) Selective Incorporation – similar to
fairness test but looks at those aspects of liberty that are so fundamental that they are protected from state
interference without regard to the BOR.
A. Following The Slaughterhouse Cases
1. The Slaughterhouse Cases set stage for interpreting the 14th Amendment
(a) Most historians believe that Miller was wrong and Field was right; however its still good
law.
(b) That the framers meant the P&I to be the primary work horse of the 14th amendment
(c) That it was meant to protect basic civil rights.
(d) If the states failed in their responsibility to protect these rights (as the Butcher’s argued)
then the federal government could come in to provide a backstop to protection under the
14th amendment – supplemental, as opposed to displacing state law.
2. The End of the P & I Clause
(a) The P & I was reduced to virtually nothing by the Slaughterhouse cases and remains
virtually meaningless despite repeated attempts by constitutional scholars to persuade the
court to revive it.
B. Barron v. City of Baltimore (1833)
1. Chief Justice Marshall for the majority

(a) Did the original Bill of Rights apply to the states?
(1) No. He concluded that the BOR, and in this case, the Takings Clause of the 5th
Amendment in particular, was intended to apply against the federal government but
NOT against the states.
(2) It was clear that originally, the BOR did not apply to the states. This is certainly correct
given that the BOR was a response to the threat of centralized power under the
Constitution.
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(b) Did the 14th amendment overrule Barron and incorporate some or all of the BOR to
states?
(1) Some of the framers of the 14th Amendment believed that the amendment would apply
some if not all of the provisions of the BOR to the states.
(2) The issue was not discussed in the state ratifying conventions however. Not one word
was said about it in fact. The significance of applying the BOR to the states, would then
be relatively serious (esp. in criminal procedure).
(3) Nevertheless, starting around 1890-1970, one of the great debates that took place in the
SC was to what extend are various BOR provisions applicable to the states. There were
dozens of cases decided individually where judges faced this issue.
2. Three different positions emerged:
(a) Total Incorporation (J. Black, J. Douglass)– All provisions of the BOR, and not other rights,
are incorporated against the states. Justice Black’s theory was that the 14th Amendment
was mean to apply the BOR to the states in whole at passage. It’s not the job of the court to
find new rights that are not in the constitution
(1) Black’s Case for Total Incorporation
(i) Language and history of the 14th Amendment supports it
(ii) Specifics of the BOR limit judicial discretion
(iii) Court’s cannot add new rights
(iv) Can’t experiment with fundamental rights
(v) Provides greater predictability
(2) Criticisms against Total Incorporation
(i) If this is true, then DP clause is superfluous.
(b) Fundamental Fairness (J. Frankfurter, J. Brandeis) – Must assess whether each particular
right is essential to fundamental fairness (Frankfurter/Harlan/Cardozo/Powell) – Look at
each provision and how it would be applied and ask whether the application of this provision against
the states is necessary to have fundamental fairness. Assess each protection and decided
whether it is the kind of protection that is so important and crucial as to be fundamental.
(1) This was Harlan’s approach in Griswold
(2) Adamson v. California (1947) - The question in Adamson was whether a state prosecutor
could comment on the D’s refusal to take the stand. Initially, the SC said yes because
that aspect of the 5th Amendment isn’t fundamentally fair. The court later on in the
1960’s reversed that point. RULE: It’s an example where, under this theory, each
particular application under each sub-rule may be examined on a case-by-case basis,
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even if you’ve already decided that the larger provision (i.e., the 5th Amendment) is
applicable to the states.
(i) Is the specific provision’s application fundamentally fair under the circumstances
(i.e. Is it essential to a fair trial?)
(ii) Look at the traditions and history of the people – looks at the culture and history of
England, America, and the colonies – Do all the states agree? Do most people hold
this value?
(3) Case for Fundamental Fairness
(i) Ratifying conventions did not discuss or assume total incorporation
(ii) Permits state experimentation
(iii) Permits evolution of rights
(iv) Takes into consideration differences between the state and federal system
(v) Distinguished judicial history
(vi) Courts must make value judgments – specifics are not so specific
(vii) Some provisions of the BOR are not that significant
(viii) Not all fundamental rights are set forth in the BOR
(ix) Total Incorporation would result in the dilution of the BOR at the federal level.
(x) Total Incorporation cuts too deeply into state autonomy
(xi) Selective Incorporation is an illogical compromise
(c) Selective Incorporation (J. Brennan)– Assess whether each guarantee is essential. This
approach goes through a fundamental fairness analysis, but looks at the entire right. Then
would apply to all states. Don’t need to break down specific to each part of the Constitution
like fundamental fairness analysis. Selective incorporation is a compromise.
(1) The selective incorporation approach denies that the entire Bill of Rights is made
applicable to the states via the 14th Amendment. Instead the term “ liberty” as used in
that amendment is to be interpreted by judges without regard to the Bill of Rights.
(2) Only those aspects of liberty that are in some sense “fundamental” are protected by the
14th Amendment are protected from state interference. That is, those parts of the Bill of
Rights that are fundamental are “selectively incorporated” into the 14th Amendment.
(3) While selective incorporation looks at history, it only looks at American history
(4) Engages in a fundamental fairness type approach
(5) Analyzes rights in a “bag and baggage” type approach
(6) You only address each Amendment once – if it applies it’s over – it will apply all the
time. Unlike Adamson v. California, under this approach, you only have to decide about
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15 cases, because once you’ve decided that something is incorporated, it’s

COMPLETELY incorporated.
(7) The approach shifted in the 60’s and 70’s to this approach and is how the court ended
up.
(8) One of the major civil liberties victories of the 20th century!!
3. What is the basic difference between the fundamental fairness and the selective
incorporation approaches?
(a) Both Fundamental Fairness & Selective Incorporation said there were unenumerated rights
that are fundamental and some BOR rights that aren’t and shouldn’t be applied to the states.
(b) Fundamental fairness asks whether each specific sub-right is essential while selective
incorporation simply evaluates whether the specific guarantee is essential, and if so, all of
the sub-rights necessarily follow.
(c) For instance, a selective incorporationist would ask whether the 5th Amendment privilege
against self-incrimination was fundamental and if it was, it would automatically follow that
specific rules developed from the privilege such as the right to preclude the prosecutor from
commenting on a defendant’s silence would necessarily be incorporated as well.
(d) A proponent of fundamental fairness would examine each sub rule such as the protection
against prosecutorial comment individually and ask whether it was also fundamental.
(e) A total incorporationist needs only one case to decide what applies to the states.
(f) A selective incorporationist needs 15 or so cases to decide.
(g) A fundamental fairness judge needs an endless series of cases
C. Present Day View of Incorporation Doctrine
1. Most of the BOR applies against the States through the Due Process Clause of the 14th
Amendment since the P&I Clause was rendered useless in the Slaughter-House Cases.
2. McDonald v. City of Chicago (2010) (Alito - Majority)
(a) Held: Utilizing selective incorporation, the second amendment right recognized in Heller is
fully applicable to the states through the due process clause of the fourteenth amendment.
The Second Amendment protects the right to keep and bear arms for the purpose of self-
defense and the right to possess a firearm for purposes of self-defense was “fundamental
to our scheme or ordered liberty. Because this right is ‘deeply rooted in our nation’s history
and tradition it is thus incorporated to the states through the 14th amendment’s Due Process
Clause.
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(b) Significance: Because of the Slaughter-House opinion, the privileges or immunities clause
has not been allowed to play a huge role in American Law; court has been overusing
substantive due process
(c) Note: The majority didn’t overturn The Slaughterhouse Cases even though they agree those
cases were wrongly decided.
(d) Thomas Concurred – argued that the 2nd Amendment right was a privilege of national
citizenship encompassed in the 14th Amendment’s P&I Clause (as opposed to using Due
Process Clause) and said reliance upon the due process clause to protect substantive
liberties is a legal fiction. Thomas believes the Court should go back and overrule the
Slaughterhouse cases. It was also the final nail in the coffin for those cases.
(e) Stevens Dissent – would have applied the fundamental fairness test and its application
requires a ruling against incorporation.
(f) Breyer Dissent – the Framers didn’t intend the 2nd amendment to protect the right to
private armed self-defense. This right has never been held to be fundamental.
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T HE 14 T H A MENDMENT & T HE R OAD TO B ROWN V . B OARD
IV. 14TH AMENDMENT REQUIRES STATE ACTION
A. The Civil Rights Cases (1883, J. Bradley)
1. Overview
(a) FACTS: The Civil Rights Act of 1875 passed by Congress made it illegal to deny blacks
service in hotels, theaters, and other places of public amusement. There were 5 cases where
blacks had been excluded from hotels, theaters and railroads. Four cases were criminal
prosecutions and a fifth was for the $500 dollar civil penalty.
(b) ISSUE: Does Congress have the power under Section 5 of the 14th amendment to enforce
laws affecting purely private action absent some showing of state action? No.
(c) HOLDING: The Supreme Court invalidated the Act and held that Congress lacked the
power to enact this legislation since Congress could not reach private citizen’s conduct
under the 14th Amendment.
(d) RULE: The substantive provisions of the 14th amendment (privileges or immunities, equal
protection and due process) prohibit violations by the state; in other words, they require
some state action. “The legislation which Congress is authorized to adopt in this behalf is not
general legislation upon the rights of the citizen, but corrective legislation". In other words, the
14th amendment authorizes Congress to pass laws only to combat violations of a citizen’s
rights protected in other sections. This holding is still valid today.
2. The court made three principle holdings in the case
(a) Holding #1 - The Court struck down the law since the 14th Amendment only applies to
state action
(b) Holding #2 - The 14th Amendment does not grant Congress the power to regulate private
conduct.
(1) This law steps into the domain of local jurisprudence, and lays down rules for the
conduct of individuals in society towards each other, and imposes sanctions for the
enforcement of those rules, without referring in any manner to any supposed action of
the state or its authorities.
(2) The court goes on to say that the law assumes that if the states are prohibited in acting
in such manner, congress is entitled to legislate on the subject generally. This, according
to the court violates the 10th Amendment.
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(i) 10th amendment – “…Powers not delegated to the United States by the constitution,
nor prohibited by it to the states, are reserved to the states.”
(ii) Unless the acts are in some way sanctioned by the state such that they can be
considered state action, the wrong must be addressed by state law.
(c) Holding #3 - The constitution seeks to protect the rights of citizens against discrimination
and unjust laws of the state.
(d) Implicit holdings in the case
(1) State action does not encompass the actions of government chartered, government
regulated, or quasi-public establishments like common carriers or places of public
amusement.
(2) State action encompasses only positive government activity, not passive activity, as
when the state acquiesces in discriminatory private conduct
3. Harlan’s dissent in the Civil Rights Cases
(a) Harlan would have upheld the law on three grounds.
(1) 13th Amendment view –Racial discrimination is a badge and incident of slavery under
the 13th amendment.
(i) Freedom from slavery necessarily entails not only the liberation from physical
bondage, but also the eradication of all burdens and disabilities suffered by black
people because of their race.
(ii) Congress can therefore enact laws to protect blacks from being denied, because of
their race, those “civil rights” granted to other free men of the same state
(iii) Such legislation may be directed at the states, their officers and agents, and such
individuals as corporations that exercise public power and wield power and
authority under the state.
 BUT SEE: Refusing housing, hotel rooms is not the same as slavery.
(2) 14th Amendment view – Section 5 of the 14th can be used to enforce US Citizenship in
the first sentence of section 1 which is an affirmative grant not limited by state action
and all citizens of the US are citizens of the state in which they reside.
(i) He believed this section gave blacks state citizenship and thus entitled them to
exemption from race discrimination in respect on any civil right belonging to
citizens of the white race in the same state. These civil rights include access to public
accommodations.
(3) Common Law – Harlan also argued that if state action was required, it could be found
in this case since the businesses in question, especially common carriers and inns, had
21
long been considered to have public responsibilities and obligations at common law
and thus were sufficiently public to be considered state action. Harlan also contended
that since RR companies, innkeepers, etc. serve the public and are subject to state
regulation, they should be viewed as agents of the state, so their conduct constitutes
state action.
B. Consequences of The Civil Rights Cases
Case had a devastating effect on Congress’ ability to prevent emergence of apartheid in the South. In the
1940s – finally some meaningful limits on unofficial racial discrimination were imposed. This happened
through the broadening concept of state action.
1. The Civil Rights Cases and Plessy

(a) Both decisions believed in the primacy of private conduct and the market, with a strong
presumption against state interferences with the operations of private preferences.
(b) Both refused to view the antidiscrimination principle from the perspective of blacks, or
examine functionally their exclusion from public accommodations.
(c) Both seem to be uncomfortable with the idea of racial mixing.
2. The Civil Rights Cases and Washington v. Davis
(a) So long as a statute is facially neutral and not shown to be impermissibly motivated, any
discriminatory effects resulting from it are seen as attributable to private discrimination
and other factors for which the state is not responsible.
(b) The equal protection clause places no affirmative duty on the states to attack societal
inequalities because the state is under no duty to act at all.
(c) Even when the state does act in matters that make things worse for blacks, the equal
protection clause will invalidate state action only if it were facially discriminatory or
intended to disadvantage minorities.
(d) Societal inequalities don’t matter constitutionally unless the government acted in a non-
neutral fashion.
C. Plessy v. Ferguson (1896, J. Brown) – “Separate But Equal” Doctrine
Plessy v. Ferguson provided the constitutional cornerstone for pervasive segregation throughout the
South and border states for the next 60 years in the form of “separate but equal.” This validated
segregation in schools was later confronted by Brown v. Board of Education.
1. Background
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(a) FACTS: A black man was excluded from a whites-only RR car pursuant to a Louisiana law
requiring “equal but separate accommodations.”
(b) ISSUE: Did the law being challenged violate the equal protection clause under the 14th
Amendment? No.
(c) HOLDING: The law did not violate the Equal Protection Clause in the 14th Amendment
because the law is reasonable and well within Louisiana’s police power to enforce social
customs and traditions.
2. Justice Brown (Majority):
(a) The framers did not intend to outlaw all discrimination. E.g. the D.C. schools were
segregated by congressional decision. Since the same Congress that drafted the 14th
Amendment provided for segregated schools in D.C, this. shows that it did not favor a
general antidiscrimination rule.
(1) The Court distinguished between Civil, Political, and Social rights. 14th amendment
does not control social rights. Social equality is not a goal of 14th amendment and can
only be attained by voluntary action by individuals.
(2) If the 14th Amendment was meant to outlaw all forms of discrimination, then the 15th
Amendment outlawing slavery would not have been necessary.
(3) The Court did not see the harm from segregation since everyone gets to ride the RR,
and also rejects argument that racial segregation stigmatizes blacks and presumes that
they are inferior. Brown says if blacks feel that way then it is because they have put that
stigma upon themselves.
3. Harlan’s Dissent in Plessy
(a) Harlan believes that the Court has misunderstood the whole point of the Equal Protection
Clause: Equal protection is violated by a statute that separates people by race, by creating
a caste system. And in this case, the purpose of the state law was to exclude blacks from
white establishments and therefore stigmatize them.
(b) The white race considers itself dominant. But in view of the Constitution, there is no ruling
class of citizens. The Constitution is colorblind, and neither knows nor tolerates classes
among citizens. In respect of civil rights, all citizens are equal before the law.
(1) Harlan clearly recognizes that the state’s and the majority’s argument that the separate
but equal law was not intended to disadvantage or stigmatize blacks was nonsense and
that of course the only reason for such a law is a belief in racial inferiority.
4. Two Modern Views (tracing their roots back to Harlan’s dissent)
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Modern controversy between these two theories over affirmative action.
(a) Anti-subordination theory – the point of the 14th Amendment is to prevent a class system.
Race can’t be used as a classifying factor for purposes of subordinating one race to another.
(b) Anti-discrimination theory – it is constitutionally wrong for the state to make decisions
based on race (colorblind). A lot of harm is done when states rely on race to classify people
and that it is an irrelevant factor.
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VI. THE END OF SEPARATE BUT EQUAL
In the early 20th century, the NAACP was formed and their goal was to form cases that challenged
segregation. It was decided in the 30’s that the most important battlefield for segregation was the schools.
If you could legally invalidate segregation in the schools, the whole house of cards would collapse. They
devoted their efforts to challenge segregation in the schools. They began with graduate and professional
schools.
They didn’t say Plessy should be overturned; rather NAACP assumed Plessy was good law and claimed
that even though these programs were “separate,” they weren’t equal.
A. Initials Attacks on “Separate but Equal”
1. Missouri ex rel. Gaines v. Canada (1938)

(a) MO required racially separate education. Only had 1 law school, which was white only.
MO would pay reasonable out-of-state tuition for blacks that wanted to go to law school.
Court held law was unconstitutional under equal protection clause.
2. Sweatt v. Painter (1950)
(a) UT refused to admit black law student on grounds there was a black only law school in TX.
Court held law was unconstitutional under equal protection clause because the black only
law school was quantitatively and qualitatively inferior.
3. McLaurin v. Oklahoma State Regents (1950)
(a) Univ. of OK admitted black law student but made his sit, eat, and study in blacks only areas
of the law school. Court held this arrangement unconstitutional under equal protection
clause because it impaired his ability to study, engage in discussions with other students,
and in general learn his profession.
** The question for the NAACP then was whether they should challenge Plessy head on and argue that it
should be overruled. But what if they lost? If the court upheld it, then they’d be a lot worse off. Can they
bring this case to in the elementary school setting? This would be much more controversial. Is the court
and society ready for that? **
B. Brown v. Board of Education (Brown I) (1954)
1. Overview
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(a) FACTS: The Supreme Court took five cases challenging segregation in elementary schools
from Kansas, Virginia, South Carolina, Delaware, and D.C., all dealing with separate but
equal in public schools. Brown was a case from Kansas where P sued because she had to
travel far to the black school when a better white school was much closer. The Court felt
that since this case was so controversial that unanimity was essential.
(b) HELD: Separate but equal violates the equal protection clause of the 14th Amendment.
Court overrules Plessy.
(c) REMEDY: Set for reargument on the question of appropriate remedies.
2. Justice Warren (Majority)
(a) ISSUE #1: What was the original understanding of the 14th amendment and what rights
did it mean to address?
(1) The evidence is inconclusive. Public education was not a primary concern back then,
especially in the south. Whatever the framers had thought about it doesn’t give us a
clear example of how to apply the 14th amendment today because the circumstances are
so different. We now know education is crucial in our society so we must focus on the
present impact of schools and education.
(2) Civil vs. Social Rights
(i) From the legislative history it seems clear the 14th Amendment was intended to
extend civil rights under the law, such as the right to marry, hold property, sue in
court, and so forth.
(ii) Social rights were not included. At the time education was considered a social
right.
1) P argued that Congress may well have concluded that it did not have the constitutional
power to ban segregation in public education (under The Civil Rights Cases), thus it
declined to take that risk legislatively in 1866. Rather, it granted itself such power and
exercised it to prohibit segregation in the 14th Amendment 1868.
(b) ISSUE #2: How did the Court get around Plessy?
(1) Times are different – schools are different from transportation. Education was
extremely different back then. Plessy has been undermined by social change, at least
with respect to education requirements. We now know school segregation is harmful to
our society and children by looking at social sciences and psychological impact.
(2) Earlier precedent
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(i) Strauder – WV discriminated with respect to jury and grand jury selection on the
basis of race. The court struck that down as a clear violation of the equal protection
clause;
(ii) The Slaughterhouse Cases – Miller argued that the central purpose of the 14th
amendment was to provide protection for newly freed slaves.
(iii) Missouri ex rel. Gaines v. Canada (1938)
(iv) Sweatt v. Painter (1950)
(v) McLaurin v. Oklahoma State Regents (1950)
(3) Civil vs. Social right distinction in Plessy not applicable here - In assessing the
importance that education now plays, one of the things that he is at least implying is
that if the framers had understood what education had become, they would consider it
a civil right and not a social right.
(c) Original understanding is not really the key in this case. BUT this case is a crucial case for
original understanding.
3. Attempts to reconcile Brown with Original Intent
(a) The importance of education has increased, thus segregation and equality are no longer
consistent in a modern context.
(b) The Framers underestimated the impact of stigma in undermining equality
(c) The Framers assumed the concept of equality was consistent with the concept of
segregation – we have learned otherwise.
(d) Concept/conception – The framers put forth a principle, which may not have applied to
this situation in their time, but it does now.
4. Brown’s Challenge to Originalism
(a) Brown v. Board of Education is an indelible constitutional landmark. If your theory can’t
explain Brown – perhaps you need a new theory.
(1) Generally, the Constitution’s text should normally be interpreted to mean generally
what it was understood to mean at the time it was ratified or at the very least, it should
not be interpreted to mean something that is clearly inconsistent with the original
understanding of its meaning.
(2) But whose understanding counts?
(i) Framers who drafted the text?
(ii) Ratifiers (such as state conventions) who gave it operative legal effect?
(iii) Informed society at the time, especially the bar and courts?
(iv) The bar at the time
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(3) The 14th Amendment was meant to apply the Bill of Rights to the states.
(i) There is evidence that this is what the framers intended
(ii) This effect was never debated by the ratifiers in the state conventions indicating that
they did not understand that that is what they were ratifying.
5. Arguments Against Originalism
(a) Original understanding can lead to the wrong result. Original understanding is
undermined by precedent over time.
(b) It is difficult to determine due to inadequate or inaccurate records, conflicts of vision among
framers, the problems of understanding an earlier age and the possibility that many
contemporary issues were not anticipated.
(1) E.g. Ex. Freedom of speech – there is no legislative history on freedom of speech. The
first freedom of speech case before the Court was in 1917.
(c) It’s easily manipulated and abused by lawyers and judges not trained in history.
(d) Should we be governed by a group of people who have been dead for 180 years?
(e) We need to be able to incorporate advances in knowledge, morals, social understanding,
and legal knowledge into our Constitutional interpretation.
(f) The courts are a good “engine” to change the Constitution.
(g) The farther we get away from the time of the framers, the harder it is to use original
understanding.
6. Original intent is difficult to determine due to:
(a) Inadequate records
(b) Conflicts of vision among framers
(c) Problems of understanding an earlier age
(d) Our problems are different and unique from those of the past, so we should not be governed
by the dead.
7. Defending Originalism
(a) Begin with the text – If there is any ambiguity, the meaning should be what the framers
intended it to be (although intent is often inconclusive).
(b) Originalism is constraining – it denies the legislature and the courts the ability to deny
rights to citizens.
(c) The constitution embodies broad principles, which can be applied today. Originalism is
not necessarily inconsistent with flexibility or evolution.
(d) Original understanding could make decisions more predictable. Only if the Court would
bind itself to that.
28
(e) Makes judges more accountable to their role under the Constitution – to interpret it.
(f) The fact that original understanding is sometimes difficult to discover shouldn’t mean that
we should ignore it when we find it.
(g) Just because it’s hard to understand doesn’t mean that original intent should be ignored.
(h) Trained historians can provide much useful guidance.
(i) Original understanding is routinely relied upon in statutory interpretation.
(j) Originalism is intuitively sensible – we ordinarily assume that words should mean what
the author intended them to mean or at least what they were reasonably understood to
mean at the time. Makes sense to look at a document and consider how it was created
(common sense appeal).
(k) Originalism is a fairly effective way of constraining courts from imposing their own values
in the name of the Constitution.
(l) The very notion of the written law assumes to some extent we will be ruled by the dead.
This is not problematic as long as we have the means to change the law (rather than to
simply ignore it). The proper response to outdated constitutional provisions is to amend
them rather than willfully misconstrue them.
(m) Everyone seems to be an originalist when it proves useful.
(n) It is worth sacrificing some flexibility to achieve predictability and stability.
(o) It is not obvious that the Framers intended to reject original understanding.
(p) Interpretive method should not necessarily be driven by predictions about the potential
outcome of particular decisions.
(q) It would be circular to determine the legitimacy of original intent by relying on original
intent.
Ultimately, the question is not whether original understanding is a relevant consideration, since almost
everyone assumes that it is, but rather how much weight it should be accorded. Is it one of many useful
considerations or is it the predominant or only consideration?
8. Sociological Studies and the Stigmatizing Effect
One way the court got itself into hot water with Brown was that Warren dropped a FN (one of the two
most famous footnotes in Con Law) when he is arguing that racial segregation in education has a
stigmatizing effect, he cites a number of sociological studies. Even the strongest supporters of Brown
argue that he shouldn’t have done that.
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(a) Kenneth Clark’s social science doll studies

(1) Black children chose the white dolls over the black dolls
(2) The court was heavily criticized at the time
(3) They were not very good studies from a scientific point of view
(b) Was it a mistake? Critics say that data was unsound – BUT data is ever-changing
(1) Yes – arguable that it was a mistake
(i) It is unclear if the court has knowledge to deal with such data and whether it can be
properly presented at trial. The court could be hoodwinked.
(ii) It rendered the decision subject to challenge if the studies were undermined by later
research
(iii) Social science is not easily filtered through or evaluated by the adversary process
(problems of access to evidence)
(iv) It cheapens the decision, making it appear to be not based on moral principle.
(2) No – it wasn’t a mistake
(i) The court, however, did not really rely on the data – so this is not a fair criticism
(ii) It simply cited it to refute the contrary conclusion in Plessy – that segregation does
not stigmatize blacks.
(iii) Most of the social science conclusions were intuitive and obvious
9. Nature of the Brown Opinion
(a) Unusual for a landmark decision
(1) Short
(2) Relatively non-legalistic
(3) Non-moralistic
(4) Unanimous
(5) Non-provocative
(6) Ambiguous
(b) Why was it written this way?
(1) Unanimity was crucial to enforce the decision in the face of massive resistance
(2) Unanimity encouraged compliance – especially since it is inconsistent with original
understanding and varying from established precedent. A united front stops the critics
(3) Unanimity also leads to compromise and ambiguity
(4) The opinion would certainly be criticized
(5) A shorter opinion gave the critiques a smaller target
(6) The court knew there would be extreme consequences
30
(7) It tried to keep things limited and non-provocative

(8) The court did not want to condemn the South – that might lead to noncompliance
(9) It was also short to appeal to the people – also to be understood by the people
(10) It was published in whole in several papers
(11) It needed to be short and understandable to the people
(12) It needed to avoid the impression of “mere imposition of a distant will” as Justice
Frankfurter put it.
(13) The court didn’t know where it was headed with respect to remedy
10. Is Brown limited to segregation in schools being unconstitutional? No.
(a) It can be argued that the stigma aspect of segregation in the education system is
unconstitutional, and this is really all that Brown holds.
(b) But over the next several years, the US Supreme Court receives lots of petitions from lower
courts that have stricken down segregation in other places like court houses, buses, golf
courses, etc. The Court affirms these and says “See Brown.” So apparently, there is a broader
principle in Brown than what appears.
C. Bolling v. Sharpe (1954) – Reverse Incorporation
1. How was Bolling different than Brown?

(a) FACTS: This case involved segregation in D.C. schools and not a State, thus the 14th
Amendment due process and equal protection clauses did not apply, since D.C. is not a
state. Court looked at government’s interest in maintaining segregation – something Brown
did not do.
(b) HELD: Court found that segregation was an unconstitutional infringement of the
substantive liberty protected by the due process clause of the 5th Amendment. There is no
legitimate purpose for segregation in the DC schools.
(c) SIGNIFICANCE: Bolling became doctrinally important because it held that equal
protection is available against the federal government through the 5th amendment’s due
process clause.
(d) Reverse Incorporation – when Court takes something that applies only to the States and
then incorporates it and applies it to the federal government through the 5th Amendment.
2. Support for Bolling
(a) Even if 5th amendment didn’t include EPC, it is unthinkable that the Constitution would
impose a lesser duty on the federal government. This is Reverse Incorporation.
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(b) Hard to argue EPC applies to state but not the federal government. The court had to forbid
segregation in D.C. if it hoped to get compliance in the South.
3. Criticisms of Bolling
(a) By finding equal protection in the 5th Amendment, the 14th amendment is redundant.
(b) 5th amendment allowed slavery for 60 years so how can it now be used to abolish it? This
creates a serious original understanding problem.
(c) There may not have been an equal protection clause in the 5th Amendment because
Congress didn’t see themselves as a threat to equal protection. They were the protectors of
equal protection. Congress trusted itself and not the states.
D. Brown v. Board of Education (1955) (Brown II) – The Remedial Decree
1. How should the Court tailor the remedy?

(a) The Court could choose any of the following options:
(1) Mandate that students be admitted forthwith to the school of their choice.
(2) Come up with specific detailed decree of its own
(3) Appoint special master who fact finds for the Court
(4) Allow gradual approach and remand to lower courts to allow them to figure out how
best to implement the remedy of desegregating schools - “Gradualism”
2. The Court chose Gradualism – “All deliberate speed”
(a) Historical material shows that gradualism was price of unanimity. Warren and Frankfurter
believe it was essential that court speak with one voice. If any dissent or concurrence, those
who wanted to resist would hang on to that. From a federalism standpoint, it’s healthier
for the states to work it out for themselves
(b) Sending it back to the lower courts would be more politically palatable.
(c) Assumed that the local judges would have a better appreciation of what could be achieved.
(d) The local judge would be a respected member of the community, and orders from him
would be easier to swallow.
(e) The Court recognized the logistical problems, but also did not suggest that the states can
drag their feet. Any delays that occur are expected to be justifiable and based on logistical
issues.
3. Was the Court’s approach a mistake?
(a) Yes, gradualism was an error
(1) It was unprincipled to sacrifice the rights of the plaintiff who had brought the litigation
(as well as other similarly situated children) to political pragmatism.
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(2) If there is a violation of a right, there should be a real and personal remedy (Marbury v.
Madison). There is a lack of commitment and certainty with respect to all deliberate
speed.
(3) The Court’s approach allowed southern resistance to exploit this approach whereas a
mandate to desegregate immediately might have been more successful.
(b) No, gradualism was the right decision
(1) The Court must make political calculation to be effective even if it means sacrificing the
rights of individuals from time to time when deciding a public interest like the one in
Brown.
(2) There may have been no Brown I absent the prospect of a gradual remedy.
(3) There would have been massive resistance no matter what the Court did.
4. “With all deliberate speed”
(a) Warren never intended this phrase to be a legal test but that is what ends up happening.
(b) Not much happens over the next 10 years.
E. Pushback from the States After Brown II
1. Cooper v. Aaron (1958)

(a) FACTS: The governor and legislature of Arkansas challenged the Supreme Court’s power
to enforce its court orders in the state. The governor and the legislature claimed they were
not bound by the court’s decision in Brown II because he was not a party to that suit. Gov.
says he has a constitutional right to protect his state citizens from federal government
tyranny. (Doctrine of Imposition – which says government officials are under duty to protect state
citizens from unconstitutional acts by the federal government – this was overturned during the Civil
War)
(b) HELD: The court ruled that the states are bound by the Supreme Court’s interpretation of
the Constitution – can’t deprive children of their rights to education because fear that there
would be a political response.
(c) SIGNIFICANCE: Once the Court has spoken on matter of constitutional law, it has final
word on meaning of constitution under Marbury, and no state official has the authority to
defy a Court order.
(1) Decision is signed by all 9 justices as if they all wrote it (only case in history). The court
was trying to put forth a sense of unity.
2. What is the court saying in Cooper?
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(a) It uses some strong language – when the Court’s authority and power were threatened, and
they were faced with complete defiance by AR governor, they wanted to make clear they
wouldn’t tolerate it.
(b) The court also says:
(1) The constitution is paramount
(2) The Court is supreme in the interpretation of the constitution
(3) Thus the Court’s opinion and interpretation is the supreme law of the land
(4) The oath taken pursuant to Art. VI by public officials applies to the Court’s
interpretation of the constitution itself.
3. After Holding In Cooper
(a) Southern Manifesto – A group of Southern Senators declare that Brown was wrong in 1956
and resisted implementing decision in Brown II.
(1) This came to a head in the Little Rock school desegregation
(i) The school decided to comply with the court order
(ii) The governor discovered the doctrine and decided to interpose himself to prevent
the integration of Central High in Little Rock
(iii) The governor called out the state national guard
(iv) The district court said he must comply and he did – the mob took over
(v) Eisenhower decided to call in federal troops to protect the black schoolchildren
(b) Court was criticized for not providing enough backup to lower courts
(1) 11,000 different segregated school district litigation across country. Decided initially in
federal district judges with some help from circuit courts.
(2) For a ten-year period, other than Cooper, the Court stayed out of segregation. Some
argue that if they had provided more backup to lower courts, decisions would have
gone down easier.
4. Should Supreme Court Decisions be the Supreme Law of the Land?
(a) NO: Bickel – The Least Dangerous Branch
(1) Alexander Bickel is critical of what Cooper seems to say
(2) He concedes that “under Marbury, the court is empowered to lay down the law of the
land and citizen must accept it uncritically. Whatever the court lays down is right, even
if it is wrong, because the court’s decisions are not subject to comment. The court has
spoken. There must be good order and peaceable submission to lawful order.”
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(3) However, we do in fact need public officials to act in defiance of the constitution to test
the decisions. Otherwise, a case would never come up to allow the court to change its
mind.
(b) KIND OF: Alexander and Shaver – H.L.R. Article
(1) Cooper has some good policy
(2) The country needs the law to be settled – stability
(3) Coordination – if every official is free to defy the Supreme Court until a court order
forces that individual to comply, institutions will collide with each other
(c) YES: Farber
(1) Serious legal consequences, including damages and injunctive relief, routinely follow
from violations of judicial rulings not directed at the public official in question
(2) Permitting violation of judicial rules is not consistent with the common law tradition
F. Developments after Brown - School Desegregation from Brown
The Supreme Court seemed to go out of its way to stay out of desegregation for the ten years after Brown.
The 4th and 5th Circuits are where much of the litigation was taking place. There was fear that the lower
courts would side with the local communities. This occurred in a few instances but was the exception
rather than the rule. Most district judges showed great courage and fidelity to the Supreme Court at
great cost to themselves.
Concern - without significant support from the political system nothing tends to happen when the
Supreme Court announces major changes in the law.
1. Post-Brown II Chronology
(a) 1956 – Southern Manifesto – declared Brown illegitimate
(b) 1956 – Gayle v. Browder – bus integration case overruled Plessy without mention
(c) 1958 – Cooper v. Aaron
(d) 1962 – Barnett attempt to bar admission of Meredith to Mississippi
(e) 1962 – Goss v. Board of Education – minority to majority transfers prohibited – social
system and pressure kept everything the same.
(f) 1964 – Griffin v. School Board – this case ended the “deliberate speed” question
(1) County shut down school district and began subsidizing private schools for whites
(2) Shutting down schools to avoid implementing remedy is not compliance. The Court
said they have had more than enough time since Brown II to implement a remedy.
(g) 1964 – Civil Rights Act of 1964 – Title VI of the Act allows federal funding to districts that
comply with desegregation and authorizes suits by the Justice Department.
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(h) 1965 – HEW Guidelines – Dept of Health, Education, and Welfare issues anti-
discrimination guidelines under Title VI for schools to receive federal funds.
(i) 1967 – US v. Jefferson County (5th Cir.) The court uses the HEW guidelines as a benchmark
for desegregation – very detailed in telling schools what to do.
** You’re Out of Time – States Have an Affirmative Duty to Integrate **
(j) 1968 – Green v. County School Board (Sometimes referred to as Brown III)
(1) Facts: School district implemented “freedom-of-choice” plan permitting students to
choose which school they wanted to attend. But most black students chose black schools
and vice versa. After 3 years all black school was still all black and all white school was
85% white.
(2) Issue: Even though school district’s plan was neutral, does it’s results violate Brown II?
(3) Held: Yes. School district has a duty to integrate and must eliminate dual system “root
and branch” and it must be done now – no more deliberate speed. First time Court says
states have an affirmative duty to integrate the schools.
(i) What was the remedy in Brown II? To Desegregate or Integrate?
 Narrow reading – stop legally requiring schools to be segregated.
o A southern state might simply say, “Ok, we’ll no longer enforce the law and
we now have a neutral neighborhood policy or a freedom of choice plan.”
o That wouldn’t lead to much desegregation
 Broader reading – Integration
o The districts must create schools which are racially integrated
o Green is the case that makes it clear that schools must integrate.
(4) Significance of Green
(i) Ends era of “all deliberate speed” - If you were operating a dual school system when
Brown II was decided, you must tear down the dual system “root and branch” and
replace it with a unitary system.
(ii) First time Court says Brown II requires a duty to integrate rather than merely stop
segregating.
(iii) Until the lower court can find the school is unitary, it must supervise the district. A
dual system must become unitary to end federal judicial supervision
(k) 1969 – Alexander v. Holmes County
(1) The Court ordered the school to implement a desegregation plan in the middle of the
semester and school asked if they could wait until the end of the semester. No More
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Delay – means that the Court is saying NO you can’t wait. “You’ve had 15 years to do
it – do it now”.
** The Scope of the Remedy is Dictated by the Scope of the Wrong **
(l) 1971 – Swann v. Charlotte Board of Education – The scope of the remedy is dictated by the
scope of the wrong. First case to involve large urban school district that had segregated
neighborhoods.
1) Facts: School district also implemented a freedom-of-choice plan that resulted in 1/2 of
black students attending schools which were 99% black. Even re-drawing lines in the
large urban area wouldn’t result in an integrated school system due to the segregated
neighborhoods. Court appointed expert’s plan called for busing black kids to white
schools and white kids to black schools. The result would integrate schools such that
the student population will become 9% - 38% black.
2) Issue: Is busing black kids to white schools and white kids to black schools
constitutional? Yes.
3) Held: The scope of remedy is dictated by scope of wrong.
a) The courts can employ many techniques to achieve desegregation, including
(1) busing,
(2) numerical goals,
(3) altering attendance zones, and
(4) magnet schools.
b) In large urban districts where there is a large degree of racial segregation, may
not be possible to achieve desegregation so bussing is permissible – BUT there
comes a point when it becomes overly burdensome for children and schools.
c) The court cited Green in saying that school authorities are charged with the
affirmative duty to take whatever steps might be necessary to convert to a
unitary system in which racial discrimination would be eliminated root and
branch.
** The Nature of Constitutional Adjudication **
 Traditional version of constitutional litigation in Marbury

o Constitutional litigation is a simple exercise in which a plaintiff sues the government to
enforce the plaintiff’s constitutional rights.
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o If the court agrees, then injunctive relief is issued preventing the government from
violating those rights
 The newer version of institutional reform litigation
o Sees constitutional litigation as the assertion of group rights
o Seeks an injunction against the government to return to the status quo
 It’s a given under Marbury that a plaintiff is entitled to a remedy. However, the remedy in
Brown cases are intrusive and far-reaching
o In Brown, there is a global institutional type of remedy
o The court plays a different role – fundamentally changing the institution
o Requires the court to get involved – micromanage
** The Tailoring Principle **
 A basic principle of equity is that the remedy must be tailored to the violation.
 Under Washington v. Davis, the remedy must be tailored to the violation that occurred in the
past.
o If the school board is currently acting in good faith, any constitutional violation must
be found in the past, when the board’s motives were intentionally malicious.
o Before initiating a remedy, the court must find the conditions are traceable to past
discrimination, and once the remedy is implemented, must determine when the remedy
has actually eliminated those effects so that judicial interference may terminate.
** De facto vs. De jure Segregation **
Up to this point the court had not addressed the issue of whether intentional conduct by the state or
simply impact or effect are required. For example, in the South, segregation was generally required by
law resulting in de jure segregation. Western and northern states said there was just a natural pattern
of segregation not as a result of any segregation laws, i.e. de facto segregation.
(m) 1973 – Keyes v. School Dist. of Denver

(1) Facts: Plaintiffs from western and northern schools where there was never segregation
by law (de jure), but the schools were nonetheless segregated (de facto) affecting about
10% of the school district.
(2) The court set up a procedural system that put the North at about the same burden as the South
(i) If no past segregation laws:
 De facto segregation + no showing of discriminatory intent  no violation.
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 Discriminatory intent + substantial segregation (10%)  presumption of

system-wide violation.
(ii) If state had segregation laws:
 No showing of discriminatory intent required  courts will presume
segregation was the result of current discriminatory intent or was caused by past
discriminatory acts.
(3) Presumptions – when violation has been found
(i) Presumption of Effects – If a substantial portion of the school district was
substantially segregated in the past then the impact of that spreads to other areas
and times. E.g. School district’s past segregative acts did not contribute or create the
current segregated conditions.
(ii) Presumption of Intent – segregation acts in one time and place may suggest that
there were other segregation acts at other times and other places. Patterns of
segregation are not coincidental. E.g. Discriminatory intent was not among factors
that motivated their actions.
(4) **Burden is on school district to rebut both of these presumptions**
(i) The state can show that other factors have caused the segregation
 Residential patterns
 Industrial growth
 City grew a certain way
 Employment opportunities developed a certain way
(ii) Impact of the presumptions
 Plaintiff must prove some degree of intent as to a substantial portion of the
school district
 Heavy burden to rebut the presumption
 The presumptions are often outcome-determinative since it is extraordinarily
difficult to prove exactly why a school district has developed a pattern of de
facto discrimination.
 Thus, whoever has the burden of proof is at a severe disadvantage
(iii) Rehnquist’s Dissent in Keyes
 Court should not discard Tailoring Principle – Proof of something in one school
zone should not have wide-sweeping implications for an entire district.
 Affirmative means to guarantee racial mixing isn’t the solution
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 Remedy should be merely drawing racially neutral boundary lines
** Moving away from desegregation
Tipping Point- as the proportion of black students w/in a particular school increased, white students
might abandon the school with increasing velocity
White Flight—60s and 70s white movement to the suburbs. Cities ended up with a minority majority.
Fleeing from busing was a significant contribution the whites started moving to the suburbs because
they could afford to do so.
Court response - political opposition and “white flight” were not excuses for avoiding constitutional
requirements of desegregation
(n) 1974 – Milliken v. Bradley - intentional discrimination by all districts required

(1) Facts: The district court found that governmental actions at all levels had combined to
establish and maintain a pattern of residential segregation throughout the city of
Detroit. By the time the court got involved, the school was 80% black. There weren’t
enough white students to go around. The district court ordered cross-district busing
with the suburbs. Because there was no evidence that the suburban school districts had
ever intentionally discriminated, the Supreme Court disallowed the plan.
(2) Rule: There must be proof of intentional discrimination by all of the districts involved
before court can mandate cross-district bussing. Specifically, it must be shown that
racially discriminatory acts of the state or local school districts, or of a single school
district, have been a substantial cause of inter-district segregation.
(3) Held: Evidence not sufficient in this case to order cross-district bussing.
(i) Theories rejected by the court
 The court rejected the argument that the state is responsible for education in the
state as well as the conduct of the local districts on the ground that local school
boards have substantial discretion and there was no proof that the state engaged
in segregating action.
 The court rejected the theory that the education system was really controlled by
the state.
(4) Remedy: The court ordered the district to spend significant amounts of money to
improve the quality of the schools even though it doesn’t lead to integration. The duty
to desegregate lies with the district that discriminated.
(5) Dissent: by Justice Marshall and joined by Justices Douglas, Brennan, and White
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(i) Dissent believed that the Court rendered district judges powerless to require States
to remedy its constitutional violation in any meaningful way
(o) 1977 – Missouri v. Jenkins (Jenkins I) – School responsible for $ for improvements
(1) Facts: KS City Sch. District was mainly black & had no real hope for integration. So KS
City D.Ct wanted to battle white flight & ordered a tax increase to finance/create super
school district w/ amazing amenities.
(2) Holding: The Supreme Court said that the courts can’t order a tax increase to finance
improvements, but can order the improvement and then it’s the school district’s
problem to find a way to get the money.
(3) Rule: Taxing is a legislative function and ordering a tax increase is an abuse of
discretion.
(p) Jenkins II – Remedy in Jenkins I didn’t work
(1) Facts: The state of Missouri pumped millions of dollars into the school district. It didn’t
work – there was no reversal of white flight. So the district judge ordered teachers’
salaries raised and then the case came back to the Supreme Court
(2) Holding: Court cannot order district to spend money to create an urban district so
strong that it would reverse white flight when there is no proof of intentional
segregation by suburban districts. Abuse of discretion.
(i) The focus was on the order to raise salaries
(ii) The Supreme Court rejected the theory that the judge had the power to impose these
burdens on the state and the city to lure suburban kids back into the schools
(iii) There was no proof that the state or the suburban schools had ever segregated –
only the inner-city school.
 If test scores in the inner city are below state average, that is evidence of past
discrimination and the district court should maintain oversight.
a) That’s been rejected everywhere – Judges do not know how to raise test scores
(q) 1992 – Freeman v. Pitts - School district not responsible for white flight
(1) District Court cannot give up continuing jurisdiction until school has achieved unitary
status. Court may conclude that the school has achieved partial unitary status. The
district is not responsible for voluntary changes in residential patterns (white flight)
leading to resegregation after the unitary status is achieved.
(r) 1992 – US. v. Fordice – What is a sufficient remedy at the university level?
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(1) Facts: Mississippi operated 3 white universities, 1 predominantly black university, & 2
primarily black & 2 primarily white regional colleges. 99% whites were enrolled in
white schools, 71 % of blacks attended black schools.
(2) Holding: State has duty to remedy segregation that resulted from its actions. Brown
applies if you have situation where state legally places system that segregates. There is
a same duty to integrate. But more complicated b/c you choose where you go to college.
(3) Issue: 2 seemingly contradictory showings that segregative system was in place
(i) duplicative programs at geographically close black & white colleges hints
segregation
(ii) completely different programs at black & white colleges also hints segregation
(4) Remedy is Problematic: Remedial aspect was difficult because unlike grade schools,
you don’t go to a college because you live in a particular neighborhood, so busing
remedy at the college level makes no sense.
(i) Also, Black colleges did not want their focus on black students to be lost and Court
said they have legitimate interest in preserving traditionally all black colleges.
(ii) It is difficult to determine what the problem is – Court says that similar programs
in white and black colleges seem separate but equal and evidence of segregation
could be found by white and black schools teaching different things. So, whatever
they do, seems to be problematic.
(5) Holding: Court remanded back to district court and instructed them to come up with a
remedy. District court came up with Milliken II type remedy.
G. Legacy of Brown v. Board of Education
1. It started the ball rolling that ended segregations  Desegregation

2. Focus the nation on civil rights as a compelling issue.
(a) Marshall believed litigation was best.
(b) MLK thought public protest and marches were best.
(1) These two were skeptical of each other. They didn’t work together with a common
strategy.
3. Minority Protection
(a) In a democracy, since the majority has the authority to impose its view on the minority, this
case brought to the forefront the struggle between the minority needing protection from
the majority and the role of the court in protecting these minorities.
(b) But the Courts can’t always undo what the majority does.
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4. Brought Equal Protection to the forefront.

(a) Pre-Brown, the equal protection clause didn’t get you anywhere and was considered a
losing argument.
(b) After-Brown, equal protection becomes the primary constitutional basis for the Supreme
Court civil rights jurisprudence.
5. Litigation First
(a) Brown emphasized that litigation can be a way of solving intractable problems that you
believe needed to be solved. It was such a victory in overturning a social structure that
existed for over 60 years.
(b) The Court stepped in where the legislature nor the executive branch would solve.
(c) So people started turning to the courts to seek remedies where people weren’t getting what
they wanted in Congress.
6. Institutional Reform Litigation
(a) Brown represented that a judge would take on an entire institutional system and have him
run it until he sees fit. (like prisons, mental hospitals, fire departments, etc.)
7. Judge as Hero
(a) The judges of the South that ordered and upheld the desegregation in the schools became
heroes  Because he was an outcast after that, but he did what was right.
(b) They gained a reputation that they’re there to protect those who are oppressed
8. Two Views on Taking Race into Account
(a) Anti-discrimination means that race should not be taken into account when the state makes
a decision
(b) Anti-subordination - Race must be taken into account because the situation of blacks today
is a consequence of racial discrimination long rooted in American history and the only way
to rectify that is through state action helping subordinated racial groups
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E QUAL P ROTECTION – S TANDARDS OF R EVIEW
“No state may deny any person within its jurisdiction the equal protection of the laws.”
The Equal Protection Clause of the Fourteenth Amendment directs states that all people who are similarly
situated will be treated equally. The clause acts as a limitation upon the States and prevents arbitrary
state legislation that treats a particular class of people unequally or infringes upon certain fundamental
rights.
The issue in all Equal Protection cases is whether the State law being challenged is valid under the Equal
Protection Clauses of the Fourteenth Amendment.
VII. STANDARDS OF JUDICIAL REVIEW IN EQUAL PROTECTION CASES
A. Overview of Three Standards of Judicial Review
1. “Rational Basis” – the most deferential standard

(a) If a law neither burdens a fundamental right nor targets a suspect class, the law will be
upheld so long as (1) it bears a rational relation (2) to some legitimate end. Only if the
government has acted in an arbitrary and irrational way will this rational link between the
means and end not be found.
(b) To show that legislation violates EPC, challenger must establish
(1) Government’s objectives are illegitimate; or
(2) The legislative classification is utterly irrational and arbitrary in relation to legitimate
objectives.
(c) Used in the following situations:
(1) Law does not affect a fundamental right.
(2) Law does not affect a suspect class (race, national origin, lawful resident alienage) or
quasi-suspect class (gender, sexual orientation) class
(d) Subject Matter
(1) Economic Regulations
(2) Social Welfare Legislation
(e) Cases
(1) Railway Express Agency v. NY
(2) Mass v. Murgia
(3) US Dept of Agriculture v. Moreno
(1) Romer v. Evans – arguably a rational basis case,
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(i) “By requiring that the restriction placed upon a class of people bear a rational relationship
to an independent and legitimate legislative end, we ensure that classifications are not drawn
for the purpose of disadvantaging the group burdened by the law. The EPC invalidates laws
whose purpose and practical effect of the law are to impose a disadvantage, a separate status,
and a stigma upon the class affected by the legislation.”
2. “Strict Scrutiny” – law is presumed to be invalid
(a) When a state law or regulation significantly interferes with the exercise of a fundamental
right, it is presumptively invalid and will not be upheld unless the state can establish
(1) the state’s objectives are supported by sufficiently compelling state interests,
(2) the law is narrowly tailored (necessary) to achieve those interests, and
(3) there is no less onerous means that would accomplish the government’s objective.
(b) Subject Matter
(1) Fundamental Rights
(i) Freedom of speech
(ii) Right to bear arms
(iii) Voting
(iv) Access to courts
(v) Interstate travel
(2) Implied Fundamental Rights
(i) privacy,
(ii) marriage,
(iii) childbearing,
(iv) childrearing,
(v) education,
(vi) use of contraceptives,
(3) Suspect Class
(i) race,
(ii) national origin, and
(iii) lawful resident alienage.
(4) What makes a classification “suspect”?
(i) Immutable traits
(ii) History of purposeful unequal treatment
(iii) Perennial lack of access to political power
(5) Why does the Court apply Strict Scrutiny to suspect classes like race?
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(i) Immutability (unchangeable trait—race, national origin, sometimes alienage)

 Colorblind Theory (Plessy) - racial classifications have been so harmful and they
do so little good (so useless) that as a practical matter, it’s simply a factor that
the government has no right to rely on.
(ii) Discrete (identifiable) and insular minority (isolated or not in mainstream)
(iii) History of unequal treatment
(iv) Unequal treatment and history of harmful stereotypes resulted in stigmatic effect
(Brown)
 Anti-Subordination Theory (Plessy) – Racial classifications are troublesome, if
and only if, they subordinate one racial group to another.
(v) Political Powerlessness (subjected widespread discrimination—especially official
discrimination)
(6) Classifications based on characteristics like race are subject to strict review because they
are likely to be the product of prejudice against discrete and insular minorities which
tends to seriously curtail the operation of the political process. Racial classifications
should be strictly scrutinized because they are stigmatizing. United States v. Carolene
Products (1938) Footnote 4
3. “Intermediate Scrutiny” – quasi-suspect classification, e.g. gender
(a) A state regulation must be (1) substantially related to (2) an important governmental
interest, and (3) must not be substantially more burdensome than necessary to advance
these interests.
(b) Law is invalid if challenger can establish
(1) The state intended to discriminate against one sex over the other
(2) The sex-based classification reinforces traditional gender roles
(3) The law was drawn for the purpose of disadvantaging the group burdened by the law
(c) Subject matter
(1) Quasi-suspect class
(i) Gender
(ii) Alienage
(iii) Illegitimate children
(iv) Age – (Murgia held that age limit for police force not suspect class)
(v) Disability
(vi) Sexual orientation
(d) Cases
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(1) US v. Virginia
B. How to Determine if State Objective is Legitimate
1. Under/Over Inclusive
To determine whether the relationship between the government’s goal and the classification/means
employed to further that goal is rational, substantial, or compelling, it is helpful to consider whether the
legislation is over-inclusive or under-inclusive.
(a) Under-inclusive – when the classification made in the statute does not include all who are
similarly situated with respect to the purpose of the law. E.g. all people included in the
statutory classification have the trait relevant to the aim of the statute, but other people with
the trait are not included in the classification.
(1) Under-inclusion tends to demonstrate that the classification is grounded in prejudice
or overbroad generalizations about affected class of people.
(i) E.g. if the state law was truly focused on achieving a particular goal, then the
classification would have excluded a lot more people in order to assist in achieving
that goal.
(2) Significant under-inclusion is strong evidence of a Naked Preference for one private
interest at the expense of another. (Sunstein argues this in his book “Naked Preferences
and the Constitution” – e.g. transferring wealth from A to B for no purpose is not
legitimate state purpose.)
(3) When the classification does little to foster any real and demonstrable public purpose
but is instead likely to be the product of a naked preference for one private interest at
the expense of another.
(b) Over-inclusive – when the classification made in the statute includes more persons than
just those who are similarly situated with respect to the purpose of the law. It imposes a
burden upon a wider range of individuals than are included in the class of those with the
trait relevant to the aim of the law.
2. How Courts View Over/Under-Inclusive Classifications
(a) As the degree to which a statutory classification is shown to be over-inclusive or under-
inclusive increases, so does the difficulty in demonstrating the classification rationally,
substantially, or compellingly furthers the legislative goal.
(1) Under Rational Basis
(i) Over or under-inclusive law not sufficient to find law invalid under rational basis.
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 E.g. Massachusetts v. Murgia – Mass. had a law that required every police
officer to retire at 50. Legitimate interest is that as they age they may not be able
to do the job adequately. The Court upheld the law as valid despite the fact that
it is overinclusive and underinclusive.
(2) Under Intermediate Scrutiny
(i) A law that is simultaneously over-inclusive and under-inclusive is not substantially
related to the government’s purported objective.
(3) Under Strict Scrutiny
(i) If under or over-inclusive, then the law is not narrowly tailored to a compelling state
interest.
C. Rational Basis: Default Level of Review
1. How deferential should the Court be?

(a) When the classification does little to foster any real and demonstrable public purpose but
is instead likely to be the product of a naked preference for one private interest at the
expense of another.
2. Railway Express Agency v. New York (1949) (Douglas - Majority)
(a) Facts: NY passed a law that prohibited the operation of an “advertising vehicle,” but
created an exception for “Business notices upon business delivery vehicles, so long as such
vehicles are engaged in the usual business or regular work for the owner and not used
mainly for advertising.”
(b) Held: Court upheld the law as valid and concluded that the law had the legitimate purpose
of enhancing traffic safety and promoting public safety because the city might rationally
perceive that the prohibited advertisements could be more distracting.
(c) Jackson Concurrence
(1) Business owner advertising for himself and someone hired to do the owner’s
advertising are not similarly situated for purposes of EPC and this distinguishing factor
is rationally related to the government objective here.
(2) “There is no more effective practical guaranty against arbitrary and unreasonable government
than to require that the principles of law which officials would impose upon a minority must be
imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to
allow those officials to pick and choose only a few to whom they will apply legislation and thus
to escape the political retribution that might be visited upon them if larger numbers were
affected.”
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3. Williamson v. Lee Optical (1955)

(a) Facts: An optician sought to have Okla. Stat. Ann. tit. 59, §§ 941-947 (1951) declared
unconstitutional because the effect of § 941 was to forbid an optician from fitting or
duplicating lenses without a prescription from an ophthalmologist or optometrist. In
practical effect, it meant that no optician could fit old glasses into new frames or supply a
lens without a prescription.
(b) Held: The United States Supreme Court held that, although the law might have exacted a
needless, wasteful requirement in many cases, it was for the legislature, not the courts, to
balance the advantages and disadvantages of the new requirement. “The day is gone when
this Court uses the Due Process Clause 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.”
(c) Significance: The court doesn’t need to concern itself with what the law was actually about.
If the Court could come up with a hypothetical justification for the law, then that is
sufficient to uphold it. This is basically deferential review run riot and the state will always
win these cases, because the court can always think of something.
4. United States Railroad Retirement Board v. Fritz (US, 1980) – Naked Preference Case
(a) Facts: A distinction was made in the Railroad Retirement Acts where some current and past
RR workers retained their vested retirement benefits while others lost their retirement
benefits, even if they were vested. Congress claims the objective of the law was to insure
solvency of the RR retirement system. The benefit losers claimed the law’s statutory
distinction between RR workers violates the EPC.
(b) Held: This seems to be a naked preference case but the Supreme Court upheld the law.
(c) Rule: If there is a plausible reason for the law (post hoc or otherwise) it is constitutionally
irrelevant whether this reasoning is the actual purpose of creating the classification.
(d) Justice Stevens Concurrence
(1) If the adverse impact on the disfavored class is an apparent aim of the legislature, its
impartiality would be suspect, unless it may reasonably be viewed as an acceptable cost
of achieving a larger goal, in which case, an impartial lawmaker could rationally decide
that the cost should be incurred.
(e) Justice Brennan dissent:
(1) The Court needs to look at actual purpose of the law, and if there was no legitimate
purpose then it is invalid.
49
(2) The rational basis standard is not a toothless one and will not be satisfied by flimsy or
implausible justifications for the legislative classification, proffered after the fact by
Government attorneys.
5. US Department of Agriculture v. Moreno (1973) (Brennan - Majority) – “Rational Basis with a
Bite”
(a) Facts: Food Stamp Act prevented unrelated persons living together from getting food
stamps even though they satisfied the income requirements. Law was challenged under
equal protection clause. The justification was to fight food-stamp fraud and save money by
ensuring that people don’t live together for the purpose of obtaining food stamps.
(b) Held: Court invalidated the provision related to the unrelated household classification on
the grounds that it was not rationally related to the state objective of preventing fraud.
(c) Reasoning: Classification acted to exclude those who might abuse the system, but also
excludes those who cannot afford to alter their living situation to comply with the law, thus
it was not rationally related to the state’s objective. Sometimes there is more than one
purpose and sometimes they may come into conflict.
(1) With food stamps – state purpose is to help those in need, but also state purpose is to
reserve government benefits for people who congress decides are really in need and to
create limits on the program so that not everyone can come in and claim the food
stamps.
(d) Rule: Rational basis standard in Moreno is something more than Fritz, Lee Optical, and
Railway Express – State needed to put forth a non-arbitrary relationship between the means
and the end in order to win. If state finds a non-arbitrary relationship between the means
and the ends, government wins all of the time.
(e) Rehnquist Dissent
(1) The fact that a law may have unfortunate and perhaps unintended consequences
beyond the stated purpose does not make it unconstitutional.
D. Strict Scrutiny: Law is Presumptively Invalid
When an immutable trait defines a discrete and insular minority, and this is coupled with widespread
irrational prejudice about that trait, it has a stigmatizing effect upon the entire minority group. This
irrational prejudice is likely to produce legislation targeting these groups even though the immutable trait
is not relevant to any legitimate government objective. The same irrational prejudice that produces such
legislation is also likely to hinder or permanently block the minority’s access to political redress, thus
prohibiting them from success in the democratic arena by hindering the normal process of shifting
50
political alliances which is necessary in order for the minority to overcome the disadvantages caused by
the legislation at issue.
1. Origin and Purpose of Heightened Scrutiny

(a) United States v. Carolene Products (1938) Footnote 4
(1) Facts: Lochner comes to an end in 1936 and 1937, and that era of constitutional law is
dead and gone. The following year in Carolene, there the P challenges a federal law
based on due process (substantive and equality argument) with respect to a regulation
of filled milk.
(2) Held: In an opinion by Justice Stone, the Court rejects the Lochner era and is no longer
going to take a hard look at economic type regulations. It’s telling plaintiff’s, “quit
bringing us these kind of lawsuits.”
(3) Footnote 4: But then, after having said that in the text of the opinion, Justice Stone drops
what is considered the most important and influential footnote in Supreme Court
history (p. 49-50). Normally, the baseline standard of review is a very deferential
rational basis standard. But then he says in the footnote, HOWEVER, there might be
certain instances in which we would take a harder look at the constitutionality of certain
legislation.
(i) 3 Theories of when the Court might raise the standard of review:
 You have state or federal legislation that burdens a fundamental right –
specifically expressed in the Bill of Rights.
 A state or federal legislation restricts the political or democratic process, i.e. it
interferes with the democratic or political process. (i.e., a voter ID law).
o Strict scrutiny would apply in such a case because Stone reasons, that as a
general rule, in a democracy, we rely on the political process for primary
protection of people.
 E.g. If you have an issue, you take it to the legislature and try to pass or
change a law through the representative political process. If you have a
law that infringes your ability to do that, then you don’t have the same
protection that you ordinarily have in a democracy and the court needs
to step in.
 Legislation that is directed at “discrete and insular minorities.” Like theory
number 2, it’s also a process-based theory.
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o If you have a minority that is discrete and insular, and it is precluded from
utilizing the political process to achieve its end because of prejudice, then
the court is going to have to step in. It’s a group that has difficulty in
protecting itself in the political process.
(4) The court over time, takes this Footnote relatively seriously. Frankfurter was disturbed
that it played much of a role that it did in constitutional history – didn’t believe dicta
should have that influence.
(b) Skinner v. Oklahoma (1942) (Douglas – Majority) – First time Court uses “Strict Scrutiny”
(1) Facts: Oklahoma statute made it illegal for people who had been convicted three times
or more for felony crimes of moral turpitude to have children by making them sterile.
But, violation of prohibitory laws, revenue acts, embezzlement, or political offenses
were not w/in the scope of the act. Skinner argued the law was unconstitutional
because statute punishes like offenses differently (embezzlement vs. stealing) and thus
violating equal protection act of the 14th Amendment.
(2) Held: Right to have offspring is fundamental. And when intrinsically the same crime is
committed, those crimes may not be punished differently. Not only is the Act penalizing
in character, sterilization is cruel and unusual punishment and also violates the 14th
Amendment.
(3) Rule: First time Court uses the term Strict Scrutiny and says, “Court should apply Strict
Scrutiny when fundamental rights are involved.”
(4) Justice Stone concurring
(i) Was not persuaded that equal protection clause was appropriate and said Court
should have used due process clause.
E. Strict Scrutiny: Proving Intentional Discrimination
1. To subject legislation to strict scrutiny, P must show intent to discriminate on the part of the
government.
(a) The challenger must prove that the legislative classification was adopted for the purpose of
intentionally discriminating against that particular class.
(b) Discriminatory effect is not sufficient to trigger strict scrutiny or intermediate scrutiny.
2. Intent can be shown in three ways:
(a) facial discrimination;
(b) discriminatory application; or
(c) discriminatory motive.
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3. Other Considerations
(a) Sole purpose – A discriminatory purpose need not be the sole purpose of the statute – it is
enough that the purpose was a motivating factor
(b) Causation – statute must have been enacted because of a desire to bring about a
discriminatory impact, not merely in spite of
(c) Stereotypes – prevalence of stereotypes attached to the classification/group that is
disadvantaged by the legislation makes it more likely that the Court will find those
classifications to be suspect.
4. Facially Discriminating Classifications
(a) Overview
(1) If the classification directly employs a suspect criterion (e.g. race, national origin,
alienage), then the legislation is presumed to be suspect and strict scrutiny will apply.
(b) Strauder v. West Virginia (1879) – Black man was convicted of murder by all-white jury.
Challenged state law prohibiting black males from serving on juries under EPC. Court held
the facially discriminatory law invalid. See Loving v. Virginia.
(c) Korematsu v. United States (1944) (J. Black – Majority) – “People of Japanese Descent”
(1) Facts: Petitioner was convicted of violating a law targeted at people of Japanese descent:
(1) Curfew—couldn’t be out past a certain time; (2) Relocation order—forced to move
inland; (3) Detention order that Japanese descendants could not leave dentition centers.
Petitioner challenged the law under the 14th amendment.
(2) Held: Compulsory exclusion of groups of citizens from their homes, except under
circumstances of direst emergency and peril, was inconsistent with the basic
governmental institutions. Because the order curtailed the rights of a group based on
national origin, the order was inherently suspect and rigid scrutiny was applied.
Nevertheless, the Court held that the exclusion order was valid:
(i) The exclusion order, like a previously upheld curfew order, was for a compelling
government interest, i.e. it was intended to prevent espionage and sabotage in
threatened areas during war.
(ii) The exclusion from such an area was narrowly tailored to the government interest
in enforcing the order.
(iii) The exclusion order was necessarily justified by the exigencies of war and the
threat to national security.
53
(iv) Moreover, the Court could not reject the judgment of the military and Congress that
there were disloyal members of the population who constituted a menace to the
national defense and safety.
(3) Justice Murphy Dissent
(i) The military is entitled to great deference but is still subject to the judicial process
of having its reasonableness determined.
(ii) Believed that the military gave into irrational public fears and misinformation
(iii) While there is a compelling state interest, the government used race alone as the
basis for predicting who was a threat and who would remain free. Thus, the
classification is not narrowly tailored to that interest for being both overinclusive
and underinclusive.
(iv) And there are less restrictive ways to accomplish the goals of preventing espionage
and sabotage.
(4) Justice Jackson (concurrence and dissent)
(i) The Court shouldn’t second guess a military decision, but it should not endorse the
legislation, and they shouldn’t have taken the case at all.
(ii) Relied heavily on the fact that the war is over
(iii) Concerned with the fact that once the Court decides a certain way, they can’t take it
back, even if it is wrong and unjust
(5) NOTES
(i) This case was considered one of the biggest Supreme Court’s mistakes.
(ii) But this was the first case to recognize race as a suspect classification and strict
scrutiny applies.
 One aspect of strict scrutiny is the focus on the particular ends the state has.
o In Korematsu, this was a legitimate state interest, so the Legislation would
have to have been not narrowly tailored enough or there was a least
restrictive alternative that could have applied.
 The State could have taken an individual basis to seek out suspect
Japanese Terrorists and only place these people in confinement.
 London did this.
 Hawaii did this.
 Thus, there could have been a better way to do this.
54
(6) Justice Black does not tell us why race is a suspect classification.  the best way to study
equal protection cases is to look at the classifications: like Japanese people v. Non-
Japanese people
5. Facially Neutral Classification Applied in a Discriminatory Fashion
(a) Overview
(1) In some instances, a facially neutral classification that classifies on a non-suspect basis
is actually applied on a suspect basis. Persons challenging the governmental action
must prove that the government officials applying the law had a discriminatory
purpose (and used discriminatory standards in such application), the law will be
invalidated.
(b) Yick Wo v. Hopkins (1886)
(1) Facts: San Francisco enacted a law prohibiting operation of Laundromats in wooden
buildings in order to reduce risk of fires. In application, this resulted in all but 10 of the
320 laundries being barred from operation. Chinese operated 75% of the city’s laundries
and almost all were wooden structures. 2/3 of the 240 Chinese persons running
laundries were arrested for violating the law while 80+ European-run laundries were
left unmolested.
(2) Held: Law was invalidated because San Francisco had no justification for invidiously
discriminatory application of its facially neutral law.
6. Neutral Classification Motivated by Discrimination Produces a Discriminatory Effect
(a) A facially neutral classification that is adopted solely because of an invidiously
discriminatory motive and that produces the intended effect is treated as a suspect
classification.
(1) Disparate Impact – When the application of a law has a disproportionate impact on a
particular class of persons (such as a racial minority or women), the law will be viewed
as suspect and will be subject to the level of scrutiny appropriate to that classification
only if a court finds that the law-making body enacted or maintained the law for a
discriminatory purpose.
(i) Statistical proof that the law has a disproportionate impact on a targeted class of
persons must be combined with other evidence of legislative or administrative
intent to show that a law or regulation was motivated by discrimination.
 Mere statistical evidence alone will rarely be sufficient to prove that the
government had a discriminatory purpose in passing a law.
55
o But See Griggs v. Duke Power (1971) – under Title VII of the Civil rights act,
if you bring a claim of racial discrimination in the context of employment,
you don’t have to show discriminatory intent – disparate impact is usually
enough (with certain qualifications and limitations).
(ii)
(b) Gomillion v. Lightfoot (1960)
(1) Facts: Tuskegee, AL redrew its voter boundaries from a square to a 28-sided figure. As
a result of this redraw, about 99% of the black voters were excluded from voting in
Tuskegee while not a single white voter was removed.
(2) Held: The legislation was solely concerned with discrimination and produced a
discriminatory effect.
7. Examples: 1) A police department used results from a written test as a criterion for hiring
police officers. Members of identifiable racial minorities consistently got low scores on the
test, although there was no proof that the test was written or otherwise employed for the
purpose of disadvantaging minority applicants. Because of the absence of nonstatistical
proof of discriminatory purpose, there was no equal protection violation. [Washington v.
Davis, 426 U.S. 229 (1976)]
8.
9. 2) A state law gave a preference in the hiring and promotion of civil service employees to
persons who were honorably discharged from the United States military. The foreseeable
and actual impact of this law was to disadvantage the female population of job applicants,
because the majority of veterans are men. Because there was no proof (other than the
statistical impact of the law) that the legislature enacted the law for the purpose of hurting
women (as opposed to the purpose of aiding veterans), the law was upheld.
10. 3) A statistical study showing that black defendants in capital cases are much more likely to
receive the death penalty than are white defendants in a state will not in itself establish that
a particular black defendant was denied equal protection by being sentenced to death for
murder in that state. The statistical study is insufficient to prove purposeful discrimination.
[McCleskey v. Kemp, 481 U.S. 279 (1987)]
56
A. Should enactment of legislation for bad reasons, standing alone, justify judicial
invalidation? Cases relevant to Washington v. Davis
1) US v. O’Brien – legally required to have draft card in possession at all times. O’Brien
burned his card and was criminally prosecuted. Claimed amendment to draft law was
punishment for Vietnam protestors. Congress said the law was necessary given the
times.
a) The court would not let a challenger to a law requiring persons to have their
draft cards with them at all times to impeach stated congressional purpose of
military necessity with proof that some legislators favored the law because it
allowed for the prosecution of was protestors
2) Palmer v. Thompson (1971)
a) The city of Jackson, Mississippi once ran 4 white and 1 black swimming pools
and closed them all instead of integrating them.
b) Justice Black, writing for the majority, stated, “no case in this court has held that
a legislative act may violate the equal protection clause solely because of the
motivations of the men who voted for it.”
c) Court seemed disinterested in P’s attempt to show that refusal for desegregation
was racially motivated.
d) Closing the pools affects both races.
3) O’Brien and Palmer support 3 reasons why courts should not inquire about
discriminatory motive – Why did the Court resist the use of legislative motive to
impeach neutral purpose?
a) Deference to the legislature – too intrusive into the legislative process (Congress
could just pass the law again with right reasons only)
b) Evidentiary problems – hard to figure out what the motive is
(1) What kind of proof?
(2) How much proof?
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c) Remedial and judicial futility -- The same statute if reenacted with pure motives
would be valid.
4) Another reason not to inquire about legislative motive is that it will inhibit debate
a) Legislators will be much more circumspect in what they say if it can be used
against them.
b) We want to know the real reason for legislation – we don’t want legislators
hiding their motives
B. What can be said in favor of inquiry into legislative motive?
1) Due process of law-making (Tribe)
a) Example – if you did pass laws for the wrong reason – you shouldn’t be able to
say it serves a purpose and that we could possibly pass it for the right reason.
b) The people have a right to legislation passed for the right reason – legislative
process should not be infected by unconstitutional motives
c) There is something valuable about an untainted process in and of itself
2) The law might not have been passed if the legislature could only take account of proper
considerations
3) We can often discover improper motives
4) Courts routinely look closely at the legislative record in interpreting statutes, thus it is
not too intrusive
C. Alternative rationale for Palmer -- The court could have and probably should have invalidated
the pool closings as an explicit attempt to undermine a judicial desegregation order similar to
the Prince Edward County school closing case. (Griffin)
2. What standard of review does the court apply to race neutral legislation challenged under the
equal protection clause as discriminatory
A. Standards of Review
1) Rational basis review
2) Strict scrutiny – only if there is proof of discriminatory motive
B. Washington v. Davis (1976, J. White)
1) Applicants for the police force in Washington DC were required to take a test, and
statistics revealed that blacks failed the exam much more often than whites.
2) Does the proof of discriminatory impact alone show the existence of racial
discrimination?
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3) Justice White for the majority – There must be proof of discriminatory purpose for
such laws to be treated as racial or national origin classifications. While a showing
of disproportionate racial impact is a factor in ascertaining intent, it can never by
itself be sufficient to prove intent. Affirmative efforts to recruit blacks negated any
showing of disparate impact.
4) Discriminatory impact, standing alone, does not trigger the rule that racial
classifications are to be subjected to the most strict scrutiny
a) Laws that are facially neutral will receive more than rational basis review only
if there is proof of discriminatory motive.
b) While disproportionate impact is a factor in ascertaining intent, it can never by
itself be sufficient to prove discriminatory intent
5) The rule in this case is neutral and rationally may be said to serve a purpose the
government is constitutionally empowered to pursue.
a) The test was a standard civil service test
b) The police force did not come up with it itself
c) Despite the city’s desire to hire black police officers, it felt that verbal skills were
too important to ignore despite the disparate impact.
C. Distinguishing Davis from Palmer v. Thompson
1) Presumably every statute has some point to it. That’s what the law is concerned with.
2) If there’s a statute passed by a legislature, different lawmakers will vote for the law for
different reasons. In Palmer & O’Brien the court is saying it doesn’t want to get into
that.
3) But - If the only possible motive for the law is discrimination, then there is strict
scrutiny.
D. Civil Rights Act of 1964 Title VII
1) Extended racial discrimination prohibition to private sector businesses involved in
interstate commerce
2) You don’t have to show discriminatory intent
3) Businesses must show that their methods are necessary
4) Title VII was relied on prior to Washington v. Davis to assume that discriminatory
intent was not necessary in discrimination cases against the government
5) A Title VII action is much more desirable for plaintiffs
a) Procedural advantages
b) Lower standard
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E. When there is a race neutral law being challenged, the plaintiff must show discriminatory
intent to have strict scrutiny
1) Intent may be inferred from the totality of the circumstances including the disparate
impact
2) Gross statistical disparities may still establish discriminatory intent
a) Arbitrary decisions are more likely to show intent
b) Yick Wo
3) Ways to Prove Intent (Arlington Heights v. Metro Housing Corp.)
a) The specific sequence of events leading up to the challenged decision
(1) Historical background – particularly if it reveals a series of official actions
taken for invidious purposes
b) Departures from the normal procedural sequence
c) The ignoring of facts usually considered important to the decision maker
d) The act’s legislative or administrative history
e) In some extraordinary circumstances – testimony by legislators
F. “But for” not merely “in spite of”

1) Personal Administrator of Mass. v. Feeney
2) The statute must have been enacted because of a desire to bring about a discriminatory
impact, not merely in spite of the probability of such an impact.
G. What happens if P shows that racial discrimination was at least one purpose of the legislation?
1) The burden then shifts to the state to show that there was also a legitimate race-neutral
purpose and that the legislature was passed in spite of and not because of the disparate
impact.
2) The court has never acknowledged the difference, much less explained it
H. 3 ways to view intent
1) Impact is irrelevant
2) Impact is evidence of intent
a) Creating an inference (the Court’s approach)
b) Creating a presumption, or
c) Shifting the burden of proof
3) Impact is a violation
a) Intent doesn’t matter, or
b) Intent is the key, but disparate impact is overwhelming evidence of intent
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(a) Batson v. Kentucky (1986)

(1) Rule: Batson Laws allow attorneys to strike potential jurors from a jury for cause or
without cause (a peremptory strike). In either case, there is an equal protection violation
only when it is proven that an attorney struck a person from the jury on account of the
person’s race or sex.
3. Why might the Court have resisted adopting a Disparate Impact Approach?
A. The court largely relied on the fact that blacks are worse off economically and educationally.
There are a lot of laws which affect the poor and therefore disproportionately affect blacks
B. Process oriented theory – (Carolene Products)
1) Equal protection is about a fair process, not about equal results
2) Davis is a very strong argument that the court is very process oriented.
3) Commentators were very surprised by Davis because 6 years earlier the court said in
Palmer legislative intent did not matter.
4) A disparate impact approach is a results oriented approach
5) When you focus on intent – you focus on fault. Under the impact standard there does
not have to be fault.
C. All the disparate impact is not the result of past discrimination but it is difficult if not
impossible to sort out causation.
D. A race neutral law with no discriminatory purpose is far less likely to stigmatize
E. It would give minorities the benefits, but not the burdens of legislative compromise
4. Arguments for Disparate Impact Approach

A. An intent standard ignores the patterns of unconscious racism (Lawrence) such as reliance of
stereotypes & indifference (Brest)
B. Intent is too hard to prove
C. Judicial intrusion is appropriate if the legislature has relied on improper considerations
D. Intent standard ignores the effects of past discrimination
E. Intent standard can ignore the cultural or symbiotic meaning that laws with disparate impact
can have
F. Fault/perpetrator oriented
5. McCleskey v. Kemp (1987) – capital sentencing case where D said sentencing in GA was
administered in a racially discriminatory manner.
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A. Baldus study showed that black on white crime is punished more severely – shows a disparate
impact.
B. Selective Insensitivity arises when the legislature is pursuing a neutral aim but in doing so is
selectively indifferent to the welfare of certain groups
C. The Baldus study indicated that murderers of black victims were less likely to receive the death
penalty than murderers of white victims. It did not indicate that black defendants were more
likely to receive the death penalty than white defendants.
D. Why does the Court reject McCleskey’s Equal Protection challenge to his death sentence?
1) There was no specific proof of intent to discriminate by the judge or jury in McCleskey’s
case
2) There was a neutral and legitimate explanation – McCleskey committed murder with
aggravating circumstances (in spite of rather than because of assuming there was
discriminatory intent)
3) Imposition of the death sentence is not a routine relatively non-discretionary decision

continually made by a single decision maker thus unlike the jury selection cases,
statistics say little about purpose.
E. Why was the Court unwilling to conclude that based on the statistics, there must be
discriminatory intent somewhere in the system even if it cannot be identified?
1) Acceptance of such a statistical challenge might ultimately result in the invalidation of

significant portions of the criminal justice system in view of the degree of discretion
exercised.
2) Constitution imposition of the death penalty requires the exercise of guided but
individualized discretion.
3) Such a systemic challenge is more appropriate for the legislature than the Courts given
that the Court has previously sustained Georgia death penalty procedure.
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63
EQUAL PROTECTION
AFFIRMATIVE ACTION/BENIGN DISCRIMINATION
1. DeFunis v. Odegaard
A. A rejected white applicant sued the Univ. of Washington law school for reverse discrimination
on the grounds that he would have been admitted but for the school’s affirmative action plan
B. He won at the state courts and was admitted
C. The Supreme Court granted cert. but by the time it got there he was in the 2nd semester of his
third year. So the court dismissed the case as moot. Win or lose, he was still going to get his
degree.
2. Regents of the University of California v. Bakke (1978)

A. Facts
1) The faculty of Cal – Davis medical school, which had no history of past discrimination,
adopted an affirmative action plan where 16 out of 100 of the entering spots were set
aside for minorities.
2) Bakke, a white guy, was denied admission twice, even though his evaluation scores
were substantially higher than those of minority students admitted pursuant to the set
aside. Bakke was an older student who openly criticized the affirmative action plan in
his interviews.
B. The California Supreme Court invalidated the set-aside and ordered Bakke admitted
C. The Supreme Court granted cert. and asked the parties to address Title VI and Equal Protection
D. Title VI – no discrimination is allowed in any program receiving federal assistance
E. Powell, The Stevens Four, and The Brennan Four
1) Powell and the Brennan Four held that the same standards apply under equal
protection and Title VI
a) If it’s a violation under Title VI – it’s also an Equal Protection violation
b) If a university takes federal funds, even a private one, then it is held to Equal
Protection under Title VI.
2) Brennan Four – A racial set-aside violates neither Title VI nor Equal Protection.
3) Powell – A racial set-aside violates Title VI and Equal Protection, but an institution can
consider race as a plus in the file.
4) The Stevens Four relied totally on Title VI and held that the set-aside clearly violated
Title VI
64
a) A racial set-aside violates Title VI and it is unnecessary to reach the question of

Equal Protection
5) Powell and the Stevens Four are the five votes that strike down the Cal – Davis set-
aside.
6) Powell and the Brennan Four uphold using race as a criteria
F. Powell and Brennan disagree vigorously about when race can be considered
1) Why did Justice Powell believe that the Court should apply the strict standard to benign
racial considerations?
a) Equal protection should apply the same standards to all “persons”
(1) Equal protection applies to persons not groups
(2) Brennan takes a group approach
b) Neither stigma nor prejudice against discrete and insular minorities is
controlling
(1) Ely says if whites pass a law which discriminates against whites, there’s
no need for strict scrutiny under Carolene Products
(2) Powell says it has already been decided that race is a suspect
classification
c) There is no principled basis for deciding which races to prefer
d) They may reinforce stereotypes that minorities can not succeed without
assistance
e) Racial preferences may harm members of the minority group
f) It is unfair to burden the innocent
g) They may exacerbate racial antagonism
2) Justice Brennan applies an intermediate standard
a) Race can be considered to provide a remedy for past discrimination – not for
diversity
b) There must be a substantial purpose in remedying the effects of past
discrimination
c) Preferences can not stigmatize in Brennan’s view
d) There can be no other means of achieving minority access
e) Why Brennan believes an intermediate standard is best
(1) The legislature can decide which groups to favor
(2) The preferences do not stigmatize the majority or stereotype the
minority
65
(3) It shouldn’t be suspect if a majority burdens itself

(4) Whites are not a historically subordinated group
G. What were the state justifications in Bakke?
1) Wanted more minorities in the school and in the medical community
2) Provide greater service to the minority community
3) Provide a remedy for past societal discrimination
4) Promoting diversity of viewpoint and perspective in the student body
H. Powell dismissed the first two reasons quickly
1) Increasing minority representation for its own sake is discrimination and not only is
that not a compelling state interest, but it is an illegal goal.
2) Providing more health care to underserved minority communities may be a compelling
state interest, but racial preferences in admissions are not finely tailored nor the least
discriminatory means of achieving that goal.
I. Powell – Providing a remedy for past discrimination may be a compelling state interest, but
there was no fact finding of past discrimination here, nor was the medical school faculty
institutionally competent to make such a finding and assertions of societal discrimination were
simply too amorphous to support a remedy
1) The court is not going to allow a government entity to rely on a remedial justification
without some finding of past discrimination, how it occurred, when it occurred, and its
effect.
2) Swann – the scope of the remedy is tied to the scope of the wrong
3) Even if the Cal – Davis faculty had made a finding of past discrimination it would not
have been adequate. That is beyond the scope of what the medical school faculty are
capable of doing.
a) The faculty was too politically insulated to weigh effectively the competing
interests
(1) Cannot judge the large-scale societal interests
(2) Very politically insulated - tenure
b) It was not institutionally competent to make a record and a finding of fact
c) Tribe – institutional due process/structural due process
4) Who could make such a finding
a) Courts
b) Legislature
c) Administrative agency – such as the state civil rights agency
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5) Should the Supreme Court tell California how to delegate authority within its system?
6) Will there be political accountability in the extreme case?
a) Is Proposition 209 an example of such political accountability in California?
b) If some seemingly insulated bodies push it too far there is indeed political
accountability
7) Why must there be a fact-finding of discrimination
a) It provides a definition and a means for supervision
b) As Swann indicated, the scope of the remedy is determined by the nature and
scope of the violation
c) If the violation is not clearly specified, it is impossible to tell if it is remedied
J. Diversity - Powell
1) Race as a factor to admit a diverse student body
2) Diversity will contribute to the academic and social interchange and further the
educational process
3) Academic freedom requires that an institution be permitted to select its own student
body and academic freedom is supported by the 1st Amendment
K. Why doesn’t Powell think the Cal – Davis plan is justified by the diversity rationale?
1) A flat-out set-aside undermines true diversity by considering only one diversifying
factor
2) It fails to treat persons like unique individuals
3) Race cannot be considered an adequate proxy for other characteristics
L. According to Powell, race can only be taken account of as part of other characteristics. How
can race be taken account of according to Powell?
1) As a “plus in the file” that is one of the diversifying factors such as economic
background, special talents, hardships overcome, geographic background, work
experience, leadership potential, etc. – as is done in the Harvard Plan.
M. Why can’t a university decide that it values racial diversity but doesn’t care about broader
based diversity promoted by the Harvard Plan?
1) Apparently because race is constitutionally different than any other factor – it is a
suspect classification
2) There must be individualized treatment with regard to race
a) A university can still employ GMAT, LSAT, GPA cut-offs or limit the number
of out of state students
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b) The state must provide individualized consideration only with respect to race
N. Brennan’s Response
1) Race is still the determinative factor under Powell’s “plus in the file” consideration
2) It can be used as a smokescreen for employing quotas
3) The Harvard Plan may have originated as a means for limiting the number of Jews at
Harvard and diversity has also been used to discriminate against Asians in California
4) Academic freedom should permit the university to determine what type of diversity is
important to its mission
5) The diversity justification is based on racial stereotypes – that viewpoints and
perspectives are associated with race.
6) It focuses on the good of the institution rather than the good of the student
O. Powell’s opinion was written to provide guidance -- During the 80’s most universities thought
that if they followed Powell, everything would be alright
P. Summary of Bakke
1) Powell and Brennan 4 -- It is constitutional to competitively consider race and ethnic
origin
2) Powell and Stevens 4 -- Quotas are unconstitutional
3) If Brennan had said that the primary rationale is past discrimination, but diversity is
also sufficient, the Bakke diversity rationale would be good precedent – but he didn’t.
a) Brennan expressed cynicism of the diversity rationale
b) Racial classifications are only acceptable to Brennan as a remedy for past
discrimination. In footnote 1 Brennan ever says a plan like the Harvard Plan
would be OK to correct lingering discrimination
4) For Powell, diversity and remediation are separate justifications
5) Powell and Brennan agree on the result – use of race. But they disagree significantly on
the reason why.
3. Fullilove v. Klutznik (1980)

A. The court upheld against a facial challenge a federal program providing federal funds to state
and local building projects that required that, unless an administrative waiver was granted, at
least 10% of the money had to be spent procuring goods and services from MBEs
B. The court upheld the program 6-3 applying a deferential standard of review
C. Congress was ruled to have more power than the states to provide a remedy for past
discrimination relying on §5 of the 14th Amendment.
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D. Powell, writing separately, argued that the statute survived under his approach in Bakke
because it serves the compelling government interest in eradicating the continued effects of
pass discrimination identified by Congress
E. Stevens wrote a dissent noting that under strict scrutiny – there is no way the program would
pass
F. For most of the 80’s and 90’s the assumption was Congress and the states played under
different rules
1) Burger stressed that Congress has the most comprehensive power and is expressly
charged by the constitution with competence and authority to enforce equal protection
2) Burger concluded that the objective of the statute – attacking the perpetuation of past
discrimination – was constitutionally permissible
G. Congress made no finding on perpetuation of discrimination
1) The court relied on past congressional reports to say congress had enough information
to conclude MBEs had been denied participation
2) There were also waiver provisions when a qualified MBE couldn’t be found
4. Wygant v. Jackson Board of Ed. (1986)

A. The court invalidated a plan which based teacher layoffs on the racial proportionality of the
student body
B. The court distinguished layoffs from hiring and rejected the role model justification for the
action
1) With layoffs, the burden is much more targeted
2) The burden on ensuring diversity should not fall squarely on the shoulders of white
teachers
C. Role Model Theory
1) The state said it wanted to make sure there were enough black role models.
2) Only Justice Stevens agreed at all with this justification
3) Somewhat of a diversity theory
4) Does this suggest that the court is not as wild about diversity as people seemed to think
Bakke indicated? O’Connor dropped a footnote distinguishing Bakke’s diversity
argument from Wygant.
5) Role Model Theory was rejected for 2 reasons
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a) The statistical disparity between students and teachers had no probative value
in determining the kind of prior discrimination in hiring and promoting that
would justify race-based relief
b) Because the role model theory had no relation to some basis for believing a
constitutional violation had occurred, it could not be used to justify race-based
decision making essentially limitless in scope and duration
5. City of Richmond v. J.A. Croson Co. (1989)

A. Introduction
1) Richmond City Counsel adopted a 30% set aside of city contracts for MBEs
2) Blacks were 50% of the population, but MBEs only received .67% of city contracts
3) The law was challenged by a white-owned contractor that lost a contract under the
program
B. Part II (O’Connor, Rehnquist, White, Kennedy)
1) This case is different from Fullilove because Congress is afforded more deference in
remedying discrimination than the States.
2) The Fourteenth Amendment is a restraint on State power and States must undertake
any remedial efforts in accordance with the 14th amendment.
a) Richmond legislature has the authority to remedy past discrimination it itself
has perpetuated
(1) The city may use its procurement policies to remedy private
discrimination if it identifies that discrimination with particularity
required by the 14th Amendment
(2) If a city had become a “passive participant” in a system of racial
exclusion, the city could take steps to dismantle that system
(3) The state has a compelling interest to assure that its tax dollars do not
serve to finance private prejudice
C. Part III-A (O’Connor, Rehnquist, White, Kennedy, Scalia)
1) The first opinion where a whole majority agrees that strict scrutiny is the standard of
review
a) The purpose of strict scrutiny is to smoke out illegitimate uses of race by
assuring that the legislative body is pursuing a compelling state purpose that is
narrowly tailored to achieve that goal in order to justify enforcing such a highly
suspect law based on race.
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b) Societal discrimination, without more, is too amorphous a basis for imposing a

racially classified remedy
2) The standard of review under Equal Protection is not dependent on the race of those
burdened or benefited by a particular classification.
D. III-B (O’Connor, Rehnquist, White, Kennedy, Stevens)
1) A generalized assertion of past discrimination in an industry provides no guidance for
a legislative body to determine the precise scope of the injury it seeks to remedy.
2) The mere recitation of a legitimate purpose for a racial classification carries no weight –
there must be a precise finding of discrimination
3) A racial preference must be based on the relevant labor pool which in this case would
be the qualified minority contractors in Richmond
E. IV (O’Connor)
1) The program is not narrowly tailored to remedy prior discrimination and O’Connor
gives two reasons for this conclusion.
a) There does not appear to have been any consideration to the use of a race-neutral
means to increase minority participation – the state must consider a race-neutral
means first
b) A goal, quota or preference must be narrowly tailored to the achievement of a
compelling interest
(1) A 30% quota cannot be said to have been narrowly tailored to any goal,
except perhaps outright racial balancing.
(2) In Fullilove, congress had allowed a waiver if the MBEs higher price
could not be attributed to the effects of past discrimination
(3) MBEs who have not suffered discrimination must be excluded
(4) In Richmond’s plan, the waiver was only available if an MBE could not
be found. There is no inquiry into whether an MBE had ever suffered
from any discrimination.
F. V (O’Connor, Rehnquist, White, Kennedy)
1) A city could provide a remedy if there is evidence of systematic discrimination by the
industry
2) An inference of discrimination can arise from significant statistical disparity between
the number of minority contractors willing and able to perform a particular service and
the number of such contractors actually engaged by the locality.
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3) In that case, eliminating the effects of this discrimination might be a compelling

objective, and some sort of race conscious plan might be a sufficiently narrowly tailored
means of correcting that discrimination.
4) Otherwise, without such findings, there is a danger that a racial classification is merely
unthinking stereotypes or a form of racial politics.
G. Steven’s Concurrence in Croson
1) The court should encourage forward-looking approaches over backward looking
2) Remedial programs will rarely be sufficiently tailored unless limited to specific victims
and perpetrators
a) Too much over and under inclusiveness in remedial programs
(1) Burdens the innocent
(2) Benefits people who haven’t been victims
(3) Entitlement type thinking
b) The Richmond plan was over-inclusive because it included people who have
never been discriminated against – it could include firms that had never been in
business in Richmond.
3) Courts are more suited to provide remedies than legislatures –remediation is better left
to the courts
4) Stevens likes forward looking justifications
a) Diversity
b) He liked the role model approach in Wygant
c) Example: Police force in a town that had had race riots – a more diversified
police force would serve a compelling state interest in quieting civil unrest.
H. Kennedy’s Concurrence in Croson
1) The court should not speculate on the powers of congress
2) Congress shouldn’t have any more power in this area than the states
3) Kennedy indicated he liked Scalia’s per se rule and indicated he might go that way in
the future
I. Scalia’s Concurrence in Croson
1) Per se rule of unconstitutionality of racial classifications
a) The benign purpose of remedying past discrimination cannot be pursued by the
illegitimate means of racial classification
b) “Our constitution is color-blind and neither knows nor tolerates classes among
citizens.” (Harlan’s dissent in Plessy)
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2) A state may only use a racial remedy to address its own discrimination. For instance if
a police force had a policy of paying blacks 20% less – it could correct this by raising
black salaries 20%.
3) Nothing prohibits Richmond from according preferences to identified victims of
discrimination. While most, if not all, beneficiaries would be black, they would be
receiving the benefit because they were victims of discrimination – not because of their
race.
J. Marshall Dissent in Croson
1) The court should apply intermediate scrutiny to race conscious remedial plans
a) Important government objectives
b) Substantially related to those objectives
2) The power of the states is not limited by §5 of the 14th Amendment
3) Providing a remedy for past discrimination and preventing city spending from
perpetuating past discrimination are compelling state objectives
4) There was sufficient evidence of discrimination
a) .67% of contracts went to blacks
b) No minority membership in the trade organizations
c) The evidence must be assessed in the aggregate and in the general context
5) The plan was sufficiently tailored
a) Temporary
b) Prospective – didn’t take any rights from anyone – it worked with future
contracts
c) Sound basis for the percentage
6. Is the court correct in requiring a fact-finding or solid proof of discrimination?

A. A state must
1) Show victims
2) Show effects
3) Show perpetrators
B. Argument for specific fact-finding requirement
1) Otherwise there is no basis for molding a remedy or determining whether it has been
successful
2) Otherwise there is too much danger that racial preferences will be used as a political
reward
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3) Racial preferences can be harmful if loosely used

a) Divisive
b) Political handouts
c) Corruption
4) Racial preferences are too divisive and should be used only where essential
5) Without the discipline of fact findings that will eventually justify ending racial
preference, there is too much danger that the racial preferences will become an
entrenched entitlement
6) Remedial preferences will rarely benefit those who have been victimized the most be
past discrimination.
a) Unless there is a strict standard of proof, the remedy is too broad
b) It benefits people who have not been victimized
7) Individualistic anti-discrimination model of equal protection
C. Arguments against a requirement of a specific fact-finding
1) A focus on fault, victims, and perpetrators makes it more difficult to achieve racial
reconciliation in society
2) Institutions will be hesitant to comply voluntarily because they will be embarrassed to
admit that they discriminated or fear liability
3) Requiring a fact-finding of discrimination and a qualified labor pool ignores the
debilitating effect of pervasive societal discrimination
4) If the standard must rely on the number of qualified contractors, the more severe the
past discrimination, the higher the standard
D. Assessing Croson’s Impact

1) Optimistic – It provided a blueprint for drafting constitutional preference plans in
contracting, but it does not impose impossible standards
2) Pessimistic – It imposes requirements that few if any cities can meet, and suggests a
spirit of hostility by the courts to affirmative action plans
7. Metro Broadcasting v. FCC (1990)

A. Identical conduct is evaluated differently depending on whether a state or federal government
engaged in it. Congress was entitled more deference than the states.
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B. The court applied an intermediate standard and upheld two FCC programs approved by
congress (one was a set-aside, the other was a “plus in the file” program), which gave racial
minorities an advantage in obtaining broadcast licenses.
1) Only minority owned companies can benefit from the distress sale of licenses
2) Congress did not create the programs, but Congress approved them and did not permit
the FCC from abandoning them.
C. Brennan, writing for the majority, relied on the justification that the programs serve the 1st
Amendment interest of promoting diversity viewpoints over public airwaves
1) Relying on Fullilove, the court deferred to Congress by applying an intermediate
standard of review.
2) In reliance on Powell’s opinion in Bakke, Brennan concluded that enhancing
broadcasting diversity was an important state interest and the programs were
substantially related to that end.
D. Justice Stevens added a short concurrence pointing out that the court’s decision clearly rejected
the notion that racial classifications could only be legitimately employed by the government
for remedial purposes.
E. O’Connor’s Dissent in Metro Broadcasting (joined by Rehnquist, Scalia, and Kennedy)
1) The use of racial classifications endorses race-based reasoning and the conception of a
nation divided into racial blocs, thus contributing to an escalation of racial hostility and
conflict
2) As a consequence, O’Connor argued the standard of review must be strict scrutiny
3) O’Connor challenged the rationale as a forbidden racial stereotype (which must raise
questions about the validity of a Bakke-type diversity argument)
a) A remedy for past discrimination was the only previously recognized state
interest capable of supporting a racial classification
b) Broadcast diversity was not such an interest
c) She zeros in hard on the theory that minority ownership leads to more minority
programming
4) O’Connor is a key player in affirmative action
a) O’Connor’s opinions
(1) Wygant
(2) Croson
(3) Adarand
b) O’Connor’s dissent attacks the diversity argument in Bakke
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c) The Hopwood court seizes on O’Connor’s dissent to defeat the diversity

justification
F. Kennedy’s Dissent in Metro Broadcasting (joined by Scalia)
1) Compared the court’s analytical approach to the court’s approach in Plessy v. Ferguson
2) Argued that an interest as trivial as broadcast diversity could never justify a racial
preference
G. Metro Broadcasting must be carefully considered in evaluating the continuing validity of
Powell’s diversity justification in the educational context of Bakke.
8. Adarand Contractors v. Pena (1995)

A. A challenge brought by a contractor who lost a project to a complicated federal program which
gave members of qualified minority groups an advantage in receiving federally funded
contracts
B. O’Connor held that a strict standard of review applied to a complex, federally funded
construction program -- “Federal classifications, like that of a state, must serve a compelling
government interest, and must be narrowly tailored to further that interest”
C. The court adopted three principles for assessing racial preferences
1) Skepticism – Must apply strict scrutiny
2) Consistency – Doesn’t matter which race is benefited or whether the classification is
benign or invidious
3) Congruence – The same standard applied to Congress under the 5th Amendment as to
the states under equal protection
D. How does the court treat Metro Broadcasting?
1) Overruled Metro to the extent that it applied an intermediate standard rather than strict
scrutiny
2) Metro was inconsistent with Croson and the Powell analysis in Bakke
a) The Equal Protection principle protects persons – not groups
b) Metro’s holding ignored the justification for strict scrutiny in Croson – “There is
simply no way of determining what classifications are benign or remedial and
what classifications are in fact motivated by illegitimate notions of racial
inferiority or simple racial politics.”
c) Metro was inconsistent with Congruence – the 5th and 14th amendments protect
individuals – not groups
E. What does the court suggest about future affirmative action plans?
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1) O’Connor stressed that strict scrutiny was not “fatal in fact”

a) Suggested instead that racial classifications can sometimes be sustained
b) She cites an Alabama case where the Alabama DPS had discriminated against
blacks, and a 1-to-1 promotion quota was upheld
2) The court remanded the case for reconsideration under strict scrutiny – the DC Circuit
invalidated it on remand.
F. Scalia Concurrence
1) Scalia reiterated his strong colorblind approach to equal protection
2) “The state can never have a compelling interest in discriminating on the basis of race in
order to make up for past racial discrimination in the opposite direction”
3) There is no creditor or debtor race
G. Thomas’s Concurrence
1) Took issue with the dissenting justices’ (Stevens & Ginsburg) “racial paternalism
exception” to equal protection
2) “Benign discrimination teaches that, because of chronic and apparently immutable
handicaps, minorities cannot compete with them without their patronizing
indulgences.”
H. Stevens Dissent (joined by Ginsburg)
1) The court’s principle of Consistency “would disregard the difference between a no
trespassing sign and a welcome mat.”
2) Congruence is inconsistent with precedent – Congress has more authority than the
states do in this area based on § 5 of the 14th Amendment.
3) Stevens interpreted the court’s overruling of Metro as merely a rejection of the
application of strict scrutiny and by no means a denial of the significance of the state
interest in promoting diversity
I. Adarand and Methods of Constitutional Interpretation
1) Textualism – The Equal Protection clause only applied to the states
2) Formalism – The constitution does not contain an equal protection clause applicable to
the federal government
3) Original Intent – In the Freedman’s Bureau Acts, Congress engaged in race-based
affirmative action by providing land, education, medical care, and other benefits to
newly freed slaves.
9. Hopwood v. Texas (5th Cir. – 1996)
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A. Facts of Hopwood
1) UT Law School had a history of discrimination (Sweatt v. Painter)
2) The school was subject to the supervision of the Office of Education pursuant to Title
VI with respect to increasing minority enrollment
3) The law school adopted a series of plans to increase minority enrollment culminating
in the one in place in 1992 that was challenged in Hopwood
4) 4 white applicant who were denied admission challenged the selection process
a) There were separate admissions committees to evaluate the files of black and
white applicants
b) The minority admissions scores required of minorities to be admitted were
adjusted up or down during the course of the year to ensure that the number of
minority students desired would be admitted
c) The presumptive denial score for whites was higher then the presumptive admit
score for minorities
B. The court stated that the central purpose of the 14th Amendment Equal Protection Clause is to
prevent the states from purposely discriminating between individuals on the basis of race
1) It seeks to ultimately render the issue of race irrelevant in government decisions
2) O’Connor in Croson
a) Strict scrutiny is necessary because the mere labeling of a classification by the
government as benign or remedial is meaningless
b) The purpose of strict scrutiny is to smoke out illegitimate uses of race by
assuring that the legislative body is pursuing a goal important enough to
warrant the use of a highly suspect tool
3) Strict Scrutiny
a) Does the racial classification serve a compelling state interest?
b) Is it narrowly tailored to the achievement of that goal?
C. 2 judges concluded that Bakke does not provide proper guidance
D. 3 reasons Bakke’s diversity justification is not good law
1) There never was precedent for diversity
a) Justice Powell’s argument in Bakke garnered only his vote and has never
represented the view of the majority
b) Bakke – 2 majorities
(1) One majority held that flat-out set-asides are unconstitutional
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(2) Another majority held that race can be used as a factor in decision
making
c) Brennan 4 – race can only be used as a remedy for past discrimination
(1) The Brennan 4 explicitly rejected Powell’s diversity argument
d) Powell
(1) As a remedy you need a specific fact finding by a qualified body
(2) Diversity is a compelling interest
e) Powell & Brennan’s theories on using race as a factor are in conflict
f) The 5th Circuit decided that Bakke is too confusing to be good law
(1) Powell said diversity, but no one joined in the opinion
(2) There’s never been a majority holding that diversity is a compelling state
interest
g) Metro did have a diversity justification – but under an intermediate standard of
review. Adarand overruled Metro only in that it held that the standard of
review is strict scrutiny.
2) Even if Bakke was precedent for a diversity justification, it’s inconsistent with
precedent since then
a) Opinions inconsistent
(1) Croson - stated that remedying past wrongs was the only compelling
state interest to justify racial classification under strict scrutiny
(2) O’Connor’s dissent in Metro
(3) Adarand – O’Connor, joined by 3 other justices, stated that remedying
past discrimination is the only compelling state interest.
b) Metro dissent looms large
(1) O’Connor really raked the diversity jurisdiction over the coals at least
with respect to broadcasting
(2) She said that diversity justification is just the kind of stereotyping the
14th Amendment was intended to prohibit
(3) The views of one member of a race do not represent that race
(4) The 14th Amendment is individualistic and not group oriented
(5) 5 members of the current court likely share her opinion
(a) 4 in the Metro dissent
(b) Thomas who has since joined the court - Thomas condemned
benign discrimination in his Adarand concurrence
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3) Diversity is inconsistent with the equal protection principle

a) Individualistic nature of Equal Protection
b) People of the same race do not necessarily share the same viewpoints and
experiences
c) There are other ways to define diversity other than by race.
d) Fear of stigmatizing
e) Entrenching racialism
(1) If the point of equal protection is to de-emphasize race, a diversity
justification is not justified because it will go on forever
f) They use Powell’s argument in favor of strict scrutiny to undermine Powell’s
argument for diversity justification
E. Anticipatory Overrule
1) If the 5th Circuit relied on its 2nd and 3rd justifications, the Supreme Court has ruled
that lower courts cannot anticipatorily overrule the Supreme Court
2) If the 5th Circuit used the 1st justification (that Bakke was never really good precedent)
then there’s nothing it’s overruling
3) So, if Hopwood is good law – the 5th Circuit had to base its decision on the first
justification
F. Remedial Claim in Hopwood
1) UT had discriminated in the past (Sweatt v. Painter)
2) But over the last several decades, UT had made efforts to recruit blacks and Hispanics
and the court found that the current under-representation was not due to past
discrimination
3) In Croson, a majority held that remediation is a compelling state interest, but the state
does not have a compelling interest to remedy the effects of societal discrimination –
The discrimination and its effects must be identified.
4) 3 questions must be answered
a) What is the relevant government entity to analyze – the law school or the state
education system?
(1) The state’s use of remedial racial classifications is limited to the harm
caused by a specific state actor
(2) In Croson, the court held that there must be present effects of past
discrimination “in the Richmond construction industry.”
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(3) The law school can only use remedial racial classifications to correct the
present effects of discrimination by the law school
(a) One state actor is not competent to determine the scope of harm
and the appropriate remedy for the discriminatory actions of
another agency
(b) The specific agency involved is best able to measure the harm of
its own past discrimination.
(4) It was argued that any discrimination by the state, state education
agency or the university could be grounds for a remedy
(a) The court rejects this argument
(b) The law school can only design a remedy to address the
discrimination it has done itself
(c) The UT law faculty cannot design a remedy for the university as
a whole
b) What type of present effects are necessary under strict scrutiny?
(1) Test to determine if there are present effects of discrimination sufficient
under strict scrutiny
(a) The present effect must be caused by discrimination
(b) The effect is of sufficient magnitude to justify the program
(2) Mexican-Americans have never been excluded from the law school
(3) Blacks were admitted in the 1950’s after Sweatt v. Painter
(4) By the 1960’s, the school had implemented its first program designed to
recruit minorities, and it now engages in extensive minority recruiting
that includes a significant amount of minority scholarship money.
c) Is remedial action necessary and is it narrowly tailored?
(1) The court does not discuss whether the school’s admission program was
narrowly tailored because there was not a compelling state interest.
G. Summary – Race cannot be used as a factor in admissions.
F. Lead-up to where we go next: Grutter and Gratz
The next 25 years, educational institutions rely on the Powell approach in Bakke as the applicable law,
whether it is or not.
- The Fifth Circuit, in Hopwood didn’t think the diversity opinion in Bakke is good law. And they think that
O’Connor pulls the rug out from under it in Crosen. They think that the only compelling state interest was
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specific past discrimination. This encouraged other challenges by courts. SC didn’t take cert. in the
Hopwood case.
- This encouraged other challenges to various University racial programs.
- The U of Michigan Law school was operating a program in which they were considering a lot of factors –
but race was the factor they were probably considering the most; thought they were complying with
Bakke.
- They also made the argument that it won’t help achieve racial diversity, unless they have a critical mass
of minority students to reap the benefits of racial diversity in the admissions process.
- The U of Michigan undergrad at the time was utilizing a point-based system, in which race was worth a
whole lot of points.
- These cases were litigated in separate district courts in Detroit.
- The DC in the law school case struck it down, and the DC in the undergrad case upheld it.
- The cases went up to the 6th Circuit – which decides by an 8-7 vote en banc to reverse the DC with respect
to the law school case, but can’t reach a decision in the undergrad case. The SC then grants cert. in the
law school case and requests the other case as well.
- So both cases, Grutter and Gratz, like Bakke become a really big deal.
G. Back to Grutter and Gratz cases
- These were great cases in the sense that the public was focused like a laser beam on the SC. There was so
much publicity in that the SC released and allowed a radio version of the oral argument to be played on
radio and TV shortly after the argument was over.
- They’ve only ever done that in three other cases – Sebilius, Bush v. Gore and these two
- One thing that is in common with Bakke and Grutter, is that they are the unusual cases in which it is fair to
say that an amicus brief played a decisive role in the case.
- The justices do not generally read most of amicus briefs.
- In Bakke, the amicus brief that seemed to matter was the Harvard Plan – which explained how a
University ought to be able to go about legally using race in the admissions process. Powell quoted from
that brief and basically gave it his blessing. He attached it as an appendix to his opinion. Powell is only
speaking for himself, but over time, his approach seems to carry the day.
- The same thing happened in Grutter. MI understood that it had a serious problem.
- The MI Law school had a very elitist, very highly selective, admissions process – which screened out a
huge number of minority applicants. It wanted to be diverse but its admissions plan made it difficult to do
so.
1. Grutter v. Bollinger (2003)(p. 735)(O’Connor)

(a) ORAL ARGUMENT
(1) The DC said that MI had done this to themselves by their high admissions standards.
(2) The general counsel of MI was having lunch during the course of the litigation with a
retired army officer. He mentioned that the service academics have had the same
problem or issue and maybe he should look at what they do and they could help.
(3) A brief was filed by the who’s who of retired military officers.
(4) They explained what the service academies did. After the Vietnam War, it was crucial
to increase the number of minority officers in the armed forces. So they began taking
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race into account in a very serious manner. It was a very focused attempt – not broad
based. It still would’ve been hard to pass the Bakke test, but argued that it was crucial.
(5) The P’s used the brief and made the parallel to law school.
(6) That brief played a major role in the oral arguments and in the opinion itself.
(7) There were several other problems that MI faced in presenting the case to the SC. One
great concern that might arguably sink the MI program given the makeup of the court
as it stood (O’Connor was the swing vote and spokesman in this area), was the fact that
this program had no stopping point. O’Connor made it clear in prior opinions that these
programs shouldn’t be something that could go on and on – if you want to have a
narrowly tailored program, you need to have a stopping point.
(8) MI understood that this would be a stumbling block.
(9) She did raise this point in oral argument and asked them what the stopping point was.
(10) Another problem that MI had that arose in the oral arguments was this concept of
“critical mass.” Harvard made this point in their brief in Bakke. MI said that it’s not
enough to have token minority students but to have a critical mass in order for
educational benefits to be realized.
(11) The problem they had was that they were going to get hammered in the oral
argument – Scalia as the lead – trying to define exactly what you mean by “critical mass”
(12) How can you and the SC tell if you’ve achieved a critical mass if you don’t put a
number on it.
(13) But if you put a number on it, it could be seen as a quota, which is invalid.
(14) They ultimately never provided a number
(15) When the attorney for Grutter got up and started to argue his case, he hardly got
three words out of his mouth before Breyer stepped in and asked about the Green
(Officer’s) Brief?
(16) This brief gives O’Connor the bridge that she needs.
(17) She ultimately placed a lot of reliance on it, both in the oral argument and the
opinion.
(b) OPINION
(1) The first thing O’Connor considers is the argument of whether Powell’s Bakke diversity
opinion was good law – came about in Hopper
(2) Although the result that a University could use race at least somewhat in admissions –
there was still a severe split as to why and under what theory (e.g., remedial, diversity)
(3) Was the Powell opinion in Bakke the law?
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(4) O’Connor says that the court adopts and endorses Powell’s approach – maybe wasn’t
the law up to that point, but now it is.
(5) O’Connor carries through, at least on the surface, in arguing that based on her opinion
in Adarand, that when race is utilized, it’s a suspect classification and strict scrutiny
applies – doesn’t matter if its invidious or benign or who’s doing it.
(6) That means at the outset, the governmental entity utilizing race needs to produce a
compelling state interest
(7) Is there a compelling state interest here?
(i) Yes
(8) MI had argued that significant educational benefits are achieved by a diverse class. The
focus very quickly focuses on racial diversity
(9) These reasons for why it matters were given deference – O’Connor says that the
University is the expert on educational matters. She says that if they say diversity results
in significant educational benefits, then who is the Court to quarrel with that
(10) They’re very deferential on the issue of whether there is a compelling state interest
(11) But as Thomas points out in his DISSENT, why is the Court now being deferential
to the school’s expertise when they haven’t in past cases (Wygant)
Accepting diversity as a compelling state interest was not a close call on the Court – surprising (7-2
vote; both Kennedy and Rehnquist agree with it even though they dissented)
(c) Why is it that O’Connor seems to think this okay?

(1) The educational benefits that occur in class and out of class that the learning process is
enhanced by broad based diversity, including racial diversity
(2) In a racially diverse environment, it’s crucial to have businessmen and leaders that are
trained in a racially diverse atmosphere.
(3) She goes on and points out that a great many of the leaders of the country in business
and politics are graduates of highly selective law schools. All 9 SC justices were
graduates from the top 10 law schools. So O’Connor is shifting the focus a bit in this
case. Powell concentrated almost exclusively on the educational benefits that take place
on an off campus but in the educational process itself. O’Connor does talk about that –
but it’s not the be all, end all. She seems to put more emphasis and weight on the output
of a diverse education.
(4) Scalia and Thomas (DISSENT) make the point that when you work your way through
the case, the compelling state interest has more to it than achieving diversity. Thomas
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argues in detail that if achieving diversity, esp. racial diversity, was a compelling
interest (interest of highest importance), presumably it could achieve a lot more racial
diversity if it lowered its standards and broadened the admissions pool – something MI
wasn’t going to do.
(5) As a practical matter, presumably the compelling state interest is achieving diversity
without changing the high admissions standards.
(6) Once O’Connor turns away from the impact of diversity in the educational institution
itself, and starts to focus on the societal output, it seems like she is focusing almost
exclusively at that point, on race.
(7) Almost the entire emphasis is placed on creating a minority leadership class. On one
hand, she’s saying that Powell got it right – looking at individual factors; however, it’s
a compelling state interest so more minorities will rise up and become leaders –
opposite of what Powell said was okay.
(8) She seems to do this to fight against the powerful argument the dissenters are making.
(9) O’Connor did point out that it needs to have a stopping place.
(10) One argument you could make is that race ought to matter in modern society, and
in fact it does. It is a very significant factor. Maybe racial diversity, utilizing race in the
admissions process, won’t matter that much if racial tension at some point in the future
subsides. But when will that happen?
(11) In order to satisfy that there is a stopping point, O’Connor references that it’s been
25 years since Powell approved the use of race in public education and that they expect
that 25 years from this point, racial preferences will no longer be necessary because
since the last time, minority applicants with high grades and test scores have increased.
(12) If in fact, the pool of highly qualified minority students continues to increase, if it
increases sufficiently, then maybe there won’t be a need to take account of race as a
diversity factor.
(13) Three justices put different spins on this:
(i) Rehnquist says that as a practical matter the majority has created permanent racial
preferences. There is no logical stopping point
(ii) Thomas probably reads more into it than is warranted. So it will become
unconstitutional 25 years to the date? O’Connor probably wasn’t saying this.
(iii) Ginsburg, in her concurring opinion, says this is an entrenched problem and is
wishful thinking on O’Connor to think this problem could go away in 25 years – but
from her standpoint, this is fine.
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(14) Once the court concludes that there is a compelling state interest, it turns to the
narrowly tailored issue. At this point, Kennedy and Rehnquist don’t have much of a
problem with the majority. Once they turn to narrow tailoring, the dissenters jump ship.
(15) Why does O’Connor think this is narrowly tailored?
(i) To be narrowly tailored, a race conscious admissions program cannot use a quota
system. Instead, a university may consider race or ethnicity as a plus in a particular
applicant’s file, without insulating the individual from comparison with all other
candidates for the available seats.
(ii) C.J. Rehnquist disagrees that this is NOT a quota system. He dissents and is joined
by Scalia, Kennedy and Thomas
(iii) As a practical matter, he believes there is a “floating quota.”
(iv) He points to the result of substantially different treatment among the three
underrepresented minority groups – Black, Hispanic and Native-American.
(v) He argues that this is deceptive. He compares the proportion of minorities in the
applicant pool, and the ones actually admitted, the correlation is very close. Every
year, it seemed like MI was admitting almost the same percentage of minorities that
were in the applicant pool.
(vi) MI could control who it admits, but not over who comes.
(vii) It seems to create the presumption that MI has a floating quota and MI doesn’t
have an explanation for it.
(viii) It also undermines the critical mass theory. Why does the number of minority
students differ so greatly between the three races? Says that this is also unexplained.
(ix) This is one argument that exists on narrowly tailoring.
(x) This concept of critical mass that MI refuses to define, and when you look at the
statistics it looks suspiciously like a numerical quota. This doesn’t seem to be a
holistic review.
(16) What is MI’s answer to that argument, or O’Connor’s argument?
(i) She assumes that even if the program looks kind of shaky, they’re saying they’re
engaging in honest holistic review, and the Court will presume “good faith” on their
part.
(ii) This is where Kennedy jumps ship – under strict scrutiny, the burden is on MI to
explain why they are doing this in a legitimate constitutional manner. We don’t
presume good faith under strict scrutiny. If it looks suspicious, the person who has
the burden of proof loses.
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(iii) O’Connor gives them the benefit of the doubt – and Kennedy argues that this isn’t
strict scrutiny. He says it’s a demanding and hard standard to satisfy.
(17) O’Connor also points out that essential to narrowly tailoring is the act of giving each
file “individual consideration.” Race cannot be the defining feature of his or her
application.
(18) She also points out that MI didn’t go about this willy nilly. They sat down and had
a detailed study of their admissions program and came out with a lengthy and detailed
mission statement of what they’re trying to achieve. One of the lessons to be gleaned
here is that if you want to do this as a University, it’s best to lay out in advance why
you want to do it, how you’re going to do it, and why you think it’s important.
(19) What about the time limit? She says that it should continue as long as its practicable.
One aspect of narrow tailoring is that you always have to be thinking about the time
limit and that it would be useful to have a sunset provision. At the very least, continuing
attention to it, thinking about it and tweaking it are positive things that you should be
doing under narrow tailoring. On the other hand, must you consider a less
discriminating alternative?
(20) Somewhat. Narrow tailoring also requires good faith consideration of workable
race-neutral alternatives that will achieve the diversity the university seeks. Maybe
universities should focus on economic disadvantage rather than race.
(21) It must not unduly harm members of any racial group.
(22) You have Scalia and Thomas arguing that there is no compelling interest at all.
(23) Kennedy thinks it is a compelling state interest, but doesn’t think the Court applied
real strict scrutiny here. It gave the University way too much deference on tailoring.
(24) BLOOM LIKES THE KENNEDY DISSENT
2. Gratz v. Bollinger (2003)(p. 747)(Rehnquist)

(a) Involved the UofMI undergrad admissions
(b) They assigned numerical values to various factors of applications. Race was one of those
factors – given an extreme amount of weight in the process (20 points total – 1/5th required)
(c) The Univ. is arguing that it isn’t a quota, because some white kids can surmount the racial
preference. But the response of the Court says that while this is true, the record shows that
every minimally qualified minority did in fact get admitted.
(d) Two ways of thinking about what was wrong in Gratz (6-3 decision – Breyer agrees the
system is unconstitutional)
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(1) The best way of reading it is that such a large number was placed on race that as a
practical matter it was “outcome determinative.”
(2) The other reading of the case is simply that because it was numerical in nature, it was
inconsistent with the holistic type of review that Powell in Bakke and O’Connor in
Grutter emphasized. Once you reduce these factors to numbers, you lose the subjective
analysis, the balancing that is so crucial to treating each individual as an individual. Is
this a good argument?
(i) O’Connor did concur and express a difficulty with the fact that you can’t really
reduce the holistic analysis to numerical variables – she wasn’t crucial to the
majority.
(ii) Nevertheless, although the best reading is that don’t give race an overwhelming
amount of weight, the safe reading is just don’t use numbers.
(iii) Lesson of Gratz, stay away from numerical formulas even though that may be okay.
What these cases meant as a practical matter, is that if you want to engage in a racial preference program,
you’re going to have to operate it in this highly fact sensitive individualized basis. In order to do this,
you have to hire and train more admissions personnel. If you want to use race, you better spend more
money and hire more people to read files.
3. Fisher v. United States (in supplement)

(a) BACKGROUND
(1) It came out of the University of Texas program
(2) Remember, after Hopwood, TX was precluded from using race at all
(3) As a result, TX instituted the top 10% program in which the top 10% of high school
classes were automatically admitted. Since there are a lot of one-race schools in TX, that
resulted in a significant amount of diversity.
(4) In addition, they had another program that admitted students based on overcome
economic hardships
(5) UT then did a study in which they concluded that they simply didn’t maintain enough
diversity based on these two programs. In small classes (20 students or less), in over
80% of those classes, there were no minority students. In certain schools at UT, there
were very few minority students. So they still said they have a lot of work to do.
(6) So they adopted a Grutter type program – modeled after theirs
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(7) There were 4 ways for minority students to be admitted (1) academic merits, (2) top
10%, (3) economic hardship, and (4) Grutter-type overlay
(8) This case challenged the Grutter program on the grounds that it wasn’t narrowly
tailored on the grounds that it wasn’t necessary.
(9) The DC agreed that the TX program was okay, the 5th Circuit also agreed it was okay,
and the SC took cert.
(b) Under a remedial theory – the scope of the remedy has to be sufficiently tied to the scope
of the wrong
(1) This case only challenged the additional Grutter based program
(c) The argument was a “narrow-tailoring” one
(1) Given that UT had done a good job achieving diversity through the top ten percent
program, the argument was that it was unnecessary to utilize race because they were
doing good enough by race-neutral means.
(2) The District Court and App. Court agreed
(3) There was hardly any diversity in small section classes – this made UT look bad –
because it seemed like they were trying to achieve racial diversity in ALL classes. A fair
reading is that they weren’t doing that, but just that it was evidence that more needed
to be done. Nevertheless, that seemed to catch the court’s attention.
(4) The SC had sorted things out in Grutter and Gratz and come up with a solution that
seemed acceptable. No more Court after these cases had struck down a diversity
program. There was no split among the Circuits – this case was the only case where a
racial challenge was brought after the two cases
(5) There was no Circuit split on this issues so it seemed unlikely that the SC would take it
up
(6) But they did take it up
(7) In the oral argument, the factor that played such a major role – like it did in Grutter –
was this concept of “critical mass.” The attorney’s for UT and the solicitor general were
hammered on “what was critical mass?” Is there a number on it?
(8) The attorney’s for UT were smart enough to know that you don’t want to put a number
on it because if you do the Court will call it a quota.
(9) It’s fair to say that Grutter didn’t apply strict scrutiny as we traditionally know it. It
seemed to water it down and apply a highly deferential version of strict scrutiny –
Kennedy’s complaint in his dissent.
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(10) The difference between Grutter and Fisher is that O’Connor had retired and been
replaced by Alito.
(11) Kennedy ends up writing the majority opinion and it focuses on taking strict
scrutiny seriously with respect to narrow tailoring
(12) He reverses on the ground that the Court of Appeals didn’t seem to take it seriously
(d) The court sends it back on remand.
(1) It went back to the Fifth Circuit without sending it back to the DC. Higgenbotham wrote
a majority opinion upholding what UT did and arguing that it does in fact pass narrow
tailoring
(e) One other aspect of this litigation is that Garza wrote a scathing concurring opinion in the
first Fisher case in the Fifth Circuit making two points:
(1) argued that it was impossible to apply strict scrutiny because UT wouldn’t pin down
what it meant by critical mass – and if you don’t know what they mean by it, how can
you judge if its narrowly tailored or not, and
(2) argue at great lengths that Grutter was wrong (this is rare). Much of his complaint about
Grutter was that because it basically gives the universities something of a smoke screen
to work behind, the subjectivity of the plus-in-the-file approach is such that you can
never tell for sure what they’re doing or how they’re using race, how can the court of
appeals or DC determine whether they are playing fair or treating. The whole
framework that Grutter created was impressible because it will not allow judicial review
as a practical matter – it allows the university to use race and avoid any meaningful
strict scrutiny because they’re able to obstruct the degree to which race is a factor.
(f) One of the points the majority made – Higgenbotham in the Fifth Circuit – that certainly
under Grutter, UT could have, had it chosen, scrapped the 10% program and gone to an
entire Grutter based holistic review program. It didn’t do that. The question was what to
make of that. The majority says that since they could’ve used race much more, it wasn’t fair
to condemn them for using it much less.
(g) On the other hand, Garza flips that – given that they weren’t achieving all that much
additional diversity (20%) – that should count against them.
(h) The 5th Circuit en banc, denied a rehearing of that this past fall. It’s probably over, but who
knows.
4. One more word on Fisher
(a) It was at least possible that Fisher might wind its way back up to the SC once again.
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(b) Almost as he was speaking, that very thing happened. On Tuesday, Fisher’s attorney filed
cert. with the SC seeking review of the most recent decision in Fisher – Fisher II.
(c) That doesn’t mean the Court will take the case – esp. in a case like this where it seems to be
dealing with settled law and there is no circuit split.
5. Parents Involved v. Seattle (p. 753)(Roberts opinion)
(a) BACKGROUND
(1) 2 different schools – elementary and high school – trying to achieve racial integration
(2) Seattle had never discriminated on the basis of race.
(3) Louisville did have de jure desegregation but achieved unitary status at some point and
were released from the court order.
(4) From the SC’s standpoint, that places both schools in the same position.
(5) Each district believes there is a significant amount of de facto segregation – i.e.,
neighborhood segregation – so they come up with plans to combat that.
(6) Issue: does this use of race that they have engaged in violate the equal protection clause?
(7) Is this case governed by the school desegregation cases?
(i) Robert says that since neither SD (school district) was in the shoes of one that had
operated a segregated system, Brown and the desegregation cases don’t seem to
have any relevance (Breyer argues against this in the dissent)
(b) ISSUE
(1) If the use of race to achieve integration, and can’t be justified under Brown, does Grutter
help?
(i) No, for two reasons:
 One is that if you look at Bakke and its incorporation in Grutter, the focus was on
the context of higher education where have different perspectives and points of
view makes a fairly significant difference. This isn’t necessarily the case in
elementary school. Powell in Bakke had relied on the First Amendment as
propping up diversity as a compelling state interest in higher education. Powell
explained that the concept of academic freedom gives a university a relatively
wide birth in determining who to admit and who not to admit. The concept of
academic freedom is supported by the First Amendment at least in the public
school sense – which is why it’s a compelling state interest. Robert says it doesn’t
apply to the lower levels of education.
 Another is that both Bakke and Grutter – to the extent that they recognized the
educational benefits of diversity – thought of diversity as big picture – all the
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diversifying factors, where race isn’t the only one. This knocked these plans out
of the box because the SD’s are trying to achieve diversity ONLY based on race
– and they make that known and feel like racial diversity is all they’re concerned
about.
(ii) Certainly, Bakke and Grutter won’t help because the context is so different
(2) What is the nature of the compelling state interest that the SD’s are arguing for?
(i) They try to point out that they’re only using race as a “tiebreaker.”
(ii) They’re trying to achieve racial “diversity” – so they say, but really it’s just racial
“balancing or proportionality” – which is a illegitimate state interest.
 If you’re just trying to create a balance in your school system that mirrors the
makeup of your city, it’s pure racial balancing and something that is impressible.
IS racial integration a compelling state interest?
(c) Roberts recognizes at the beginning two compelling state interests for race-based
classifications: (1) remedial purposes, and (2) using race as a plus-in-the-file to create broad
based diversity.
(1) Even if there was a compelling interest at achieving race-based diversity at an
elementary level, was this method narrowly tailored? The court says no
(2) There were other ways to go about it – see alternatives at bottom of page 755
(i) It would be appropriate to take account of race through these less strict alternatives.
These methods are somewhat race-neutral and not as egregious as labeling each
student with a particular racial identity.
(ii) There were, according to Kennedy, a number of less discriminative alternatives
(3) It also fails narrow tailoring because it’s only meant to achieve “racial balancing” – “an
objective this Court has repeatedly condemned as illegitimate.”
(4) Essentially, what these schools are arguing is that they think that elementary and high
school education in a racially mixed environment is a good thing – so good that it ought
to be a compelling interest because there are educational benefits that flow from it, it
produces a group of students who are able to work together in a racially mixed
environment, it tries to provide a remedy for de facto racial exclusion (not a
constitutional violation), and maybe in society at large, it is more desirable that more
kids go to school in a racially diverse environment.
(5) They did not convince the court that this was a compelling state interest – there’s no
question that Roberts rejects this. He pretty clearly concludes that what Seattle and
Louisville are attempting to do does not qualify as a compelling state interest.
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(6) Nevertheless, in SECTION IIIB – Kennedy drops out and argues that it could possibly
be a compelling state interest.
(d) Breyer in his dissent
(1) argues that it is a compelling state interest. – joined by 3 others
(2) The Roberts four believe that it isn’t a compelling state interest.
(e) Kennedy has a problem with the Roberts plurality and Breyer dissent.
(1) He seems to say that racial integration as such, on the basis of race alone, not broad
based diversity, ought to be a compelling state interest and something that is
significantly worthy – if you go about it in the right way. He does strike down the
programs however on the grounds that they don’t satisfy narrow tailoring – they’re
pure racial balancing.
(2) Kennedy is in the Breyer camp on the issue of compelling state interest – which means
that 5 justices seems to say that this is another compelling state interest (added to the
two above)
(3) Now Breyer hammers away as had been the case in Bakke dissent and the Crosen dissent
that there ought to be a distinction between benign and invidious situations of race.
(4) Kennedy agrees with Roberts that this issue has been settled – strict scrutiny applies the
same way regardless of how you’re using race.
(f) One of the reasons that Roberts set forth as to why this isn’t narrowly tailored is because it
doesn’t necessarily achieve very much – see paragraph on page 755. Is that right? Similar
argument in Fisher
(1) You’re using a suspect classification and not really getting enough mileage out of it for
it to be worthwhile. It can’t pass narrow tailoring because its not effective enough –
Garza in Fisher
(2) On the other hand, you could say that given that race is playing a relatively minor role,
isn’t that better than it playing a major role – Higgenbotham in Fisher
(g) There is a dispute near the end of Roberts opinion where he quotes both statements from
the briefs and oral arguments in Brown.
(1) See page 758 --Color-blind argument
(2) In that sense, Roberts is correctly describing what they said but got hammered in the
law reviews that this was only in the context of invidious discrimination and didn’t
mean to adopt the color-blind approach no matter what.
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PART XI: 14TH AMENDMENT

EQUAL PROTECTION
RATIONAL BASIS TO INTERMEDIATE REVIEW/GENDER CASES
1. The Rational Basis Standard of Review

A. The 14th Amendment protects “any person” against the denial of the “equal protection of the
laws.”
B. One way to think about equal protection is as a generalized requirement, the state must treat
all similarly situated people the same
C. Any general protection standard evaluating whether there is a rational basis for a classification
must somehow identify a goal for the statute and decide whether the mans chosen in the statute
to effectuate that goal are rational
D. Rational basis review as requiring that a statute be justified as furthering through
reasonable means some constitutionally permissible goal that plausibly serves the general
public interest
E. State legislatures are presumed to have acted within their constitutional power.
F. Requirement for a legitimate purpose
1) Has to advance a traditional police power of protecting safety, public health or public
morals
2) Virtually any goal that is not forbidden by the Constitution
G. Purpose for the law
1) Actual v. Conceivable purpose: Enormous judicial deference supports any conceivable
purpose
2) Law should be upheld if some conceivable purpose even if it is not the actual purpose.
3) PP – different legislators support a law for a variety of reasons – very rarely is there one
actual purpose
H. Reasonable Relationship – whether the classifications drawn in a statute are reasonable in light
of its purpose. Laws will be upheld UNLESS:
1) Governmental action is clearly wrong
2) A display of arbitrary power
3) Not an exercise of judgment
2. Heightened Scrutiny – From rational basis to Intermediate Scrutiny in Gender cases
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A. Until the early to mid - 1970s, the court applied a deferential review to gender based
classifications and readily upheld laws based on the most blatant sexual stereotypes and the
court seemed to wholeheartedly endorse such stereotypes
B. Reed v. Reed (1971)
1) An Idaho law provided a tiebreaker preference for males over females of equal degrees
of relationship to be appointed administrator of estates on the ground that men are
more likely to have business experience.
2) Burger, writing for the majority, purported to use a rational basis, but struck the law
down.
a) The court seemed to be using a “rational basis with a bite” standard as Gunther
put it.
b) The review was clearly tougher – the court required more of a reason to justify
the law
3) Gunther suggests that in these cases the court was taking the rational basis a bite more
seriously. Gunther argued that rational basis should always be applied with a bite
4) The court stated that the classification “must be reasonable, not arbitrary, and must rest
on some ground of difference having a fair and substantial relation to the object of the
legislation, so that all persons similarly situated shall be treated alike.”
a) The state relied on the justification of administrative convenience
b) In rejecting the state’s contention that the preference reduced the workload of
the probate courts by eliminating hearings on the merits, the court was clearly
putting more bite into the traditional standard than it had done previously
5) Was this a new rational basis, or was the court coming up with a new less deferential
standard to apply in certain cases?
3. Frontiero v. Richardson (1973)

A. The case involved the military’s policy that allowed men to claim their wives as dependent
without regard to whether she is in fact dependent, while requiring servicewomen to prove
their husbands in fact rely on them for at least 50% of their support
B. Brennan wrote a plurality opinion (Brennan, Douglas, White, Marshall) announcing the
decision of the court in which he struck down the law applying strict scrutiny to gender cases.
C. Powell wrote a concurring opinion that rejected the use of strict scrutiny in gender cases
1) Powell said it was possible to resolve the issue under Reed without using strict scrutiny
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2) Powell also noted that at the this time the Equal Rights Amendment was being
considered by the states – It is not proper for the judiciary to preempt a major political
decision currently in the process of resolution.
4. Craig v. Boren (1974)

A. An Oklahoma statute prohibited the sale of 3.2% beer to men under 21 and women under 18,
but did not prohibit men18-21 from drinking 3.2% beer. The state argued that the law was
justified in that men are more likely to drive drunk.
B. Brennan, writing for the majority, applied an Intermediate Standard
1) Citing Reed, the court adopted an intermediate standard
2) Classifications by gender must serve important governmental objectives and must be
substantially related to those objectives
3) The nature of the interest does not have to be as significant as under strict scrutiny
a) Important interest – not compelling
b) Substantially related – not narrowly tailored – but better than mere rationally
related
4) Enhancement of traffic safety is an important government interest, but the law in this
case is not substantially related to that objective
C. Rehnquist’s Dissent in Craig
1) The court’s conclusion that laws treating men less favorably than women “must serve
important governmental objectives and must be substantially related to the
achievement of those objectives” apparently came out of thin air.
2) What is “important” is a legislative question
3) The requirement that the court decide if a law is “substantially related” to the important
objective requires the court to make subjective judgments as to the operational effects
a) Courts do not have the expertise
b) Courts do not have the data to make the determination
D. Brennan talks about “the normative philosophy of the equal protection clause.”
1) Should the court make decisions based on the way things ought to be?
2) Women really are less likely to drive drunk.
5. As a practical matter, how is the intermediate standard different from the deferential standard?
A. Obviously the interest must be more important and the means-ends fit must be tighter
B. The state must identify and define the actual purpose of the law
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1) Similar to what Gunther identified in rational basis with a bite

2) Actual purpose means the state must come forth and say what the law is intended to
do today
C. The state may have to provide a sufficient empirical basis for the means-end nexus as it was
unable to do in Craig
D. The state must explain:
1) Why gender must be used as a proxy for another characteristic
2) Why would a non-gender based classification not serve the state purpose
E. But the gender-based classification need not be the least discriminatory alternative
F. Providing a remedy for past discrimination can be an important purpose
G. Examples -- Reed v. Reed
1) Under a rational basis standard of review, the law would be justified.
2) But under an intermediate standard, administrative convenience is not an important
state interest that can justify the classification
H. Administrative convenience will rarely, if ever, be an important state interest
I. The state would have to explain why discrimination against women instead of simply a test to
carry a fire hose up a flight of stairs
J. Gender based stereotyping will usually be an improper purpose
6. What can be said for and against the intermediate standard

A. Intermediate standard gives the court more flexibility
B. Greater flexibility is both a strength and a weakness
1) Strength - It is not as outcome determinative, thus it allows the court to uphold or
invalidate the law as may be appropriate to the specific case
2) Weakness – The intermediate standard is less predictable and readily subject to
manipulation
a) Predictability is an important thing in the law
b) Won’t know until you litigate it
c) Administrative disadvantage
d) Easily manipulated
e) Allows the judges to reach whatever decision they want
7. Argument for and against recognizing gender as a suspect classification and therefore applying
strict scrutiny
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A. Against strict scrutiny in gender cases

1) “Real differences” – There are more situations where there is a good reason for the
gender classification
2) Original Intent – Women argued for inclusion of women at the time of the 14th
Amendment and it was rejected
3) Slaughter House Cases – the 14th Amendment is limited to racial classifications
4) Fails under the Carolene Products Footnote 4 approach
a) Women are discrete
b) Not insular – wherever you find men – you find women
c) Women are in the majority
5) Immutability/Privacy
a) Gender like race is immutable
b) This argues for protection
c) But sometimes this immutability creates differences that do matter
d) Privacy – bathrooms for example
6) Discrimination has not been invidious
a) There is a qualitative difference between the pedestal and the auction block
7) There is not the same societal consensus on gender as there is on race
8) There were not enough cases to see what strict scrutiny would mean in 1974
9) ERA would have applied strict scrutiny to gender
a) No good reason for the court to come in and do what was trying to be done by
amendment
b) The political process was addressing the issue
10) Women do not suffer the severe depravation economically and socially
11) Recent societal changes show that women can be fairly represented in the political
process
B. Arguments for strict scrutiny in gender cases
1) Stereotypes are deeply entrenched in the law and society. There is a history of pervasive
discrimination
2) Women were excluded from all relevant debate about the original constitution and the
14th Amendment. The system was set up by men and women did not participate
3) There is always the possibility that laws could be upheld, even under strict scrutiny.
a) Real differences that matter can overcome strict scrutiny
b) Privacy for example
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4) Immutability – sex is an immutable characteristic

5) A strict scrutiny standard of review would be able to single out instances where the
classification is based on real differences and where it is based on a stereotype.
8. Real Differences Between Men and Women

A. Michael M (1981)
1) Unlawful intercourse involves “an act of sexual intercourse accomplished with a female
not the wife of the perpetrator, where the female is under the age of 18.”
2) Petitioner set aside the indictment on the constitutional ground that it unlawfully
discriminated on the basis of gender.
3) What standard of review did Justice Rehnquist purport to apply?
a) Rational basis with a sharper focus
b) Rehnquist refuses to accept the intermediate standard of review
c) Rehnquist never liked the idea of an intermediate standard
d) He also hated men using equal protection to strike down laws – He thought laws
should only be struck down when women are being disadvantaged in some
way.
4) If you have similarly situated people who are treated differently, then you have an
equal protection problem
a) You have to decide at the outset if people are similarly situated
b) Rehnquist decides they aren’t
(1) Girls can get pregnant
(2) Boys can’t
c) The state wants to reduce teen pregnancy without discouraging girls from
reporting the incident.
5) Men and women are not similarly situated because there is a real difference – women
can get pregnant and men cannot
6) Thus the state can provide man with an extra disincentive against engaging in
premarital sex at an age when the consequences are particularly severe
7) The court concluded that
a) Preventing illegitimate pregnancy is the purpose of the statute
b) The state has a strong interest in preventing pregnancy
c) Young men and women are not similarly situated with respects to the problems
and risks of intercourse
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d) The statute is sufficiently related to the state objective to pass constitutional

muster
8) Brennan dissent in Michael M
a) California should have the burden of showing that a gender neutral law would
be a less effective means of achieving fewer illegitimate pregnancies
b) California failed to do this
B. Rostker v. Goldberg (1981)

1) The draft was challenged on equal protection grounds since women are not required to
register for the draft. Women are barred from combat. The President and the
Department of Defense supported having women register for the draft – Congress said
no.
2) Rehnquist, writing for the majority, purported to use a rational basis with a sharper
focus.
a) Rehnquist – “Announced degrees of legislative judgments, just as levels of
scrutiny which this court announces that it applies to particular classifications
made by a legislative body, may all too readily become facial abstractions used
to justify a result.”
3) The justification was largely administrative convenience
a) Women are barred from combat
b) The draft is generally for a supply of combat troops
4) There was not an underlying challenge to the exclusion of women in combat
5) The court used the exclusion to show that men and women are not similarly situated
without questioning the constitutionality of the combat exclusion.
a) Applying Craig v. Boren, the government’s interest in raising an army is an
“important governmental interest.”
b) Women are not eligible for combat
c) The existence of combat restrictions clearly indicates the basis for Congress’s
decision to exempt women from registration
d) Men and women, because of the combat restrictions on women, are simply not
similarly situated for the purposes of the draft.
6) This case may simply be deference to Congress with respect to a military decision.
7) Marshall’s Dissent in Roster
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a) Even assuming excluding women from combat is an important government

interest, the exclusion of women from registration is not substantially related to
that goal
b) Legislative classifications b gender carry the inherent risk of reinforcing sexual
stereotypes about the “proper place” of women and their need for special
protection
c) If a gender neutral law would serve the purpose just as well, the gender
classification cannot be permitted.
(1) Just because they register, that doesn’t mean they have to be called
(2) If all the army needs is combat troops – it could still only call men.
d) The court has repeatedly said that administrative convenience is not an
adequate objective under Craig v. Boren.
C. Arguments for and against women in combat
1) Arguments against women in combat – Policy has loosened up a little now
a) Most women lack the strength and stamina required
b) There would be inadequate protection of women’s health & hygiene under
adverse circumstances
c) There would be a potential of disruption through pregnancy
d) There would be interference with bonding and mission completion because of
romantic involvement – probably the best argument, everyone should treat each
other as equals and sacrifice equally
e) The nation couldn’t handle the death, rape, and torture of women that would
occur, which in turn would undermine the war effort.
There is no empirical data for the above, mostly based on speculation taken from previous wartime experiences.
2) Counter-arguments
a) Individual testing can scan for strength and stamina
b) Soldiers are tough and can deal with health and hygiene problems, already
providing medical care for soldiers, can easily provide for women, too.
c) Other nations seem to integrate women into combat (Israel, the Soviet Union)
d) The male bonding stereotype is nothing more than prejudice and stereotyping
D. Personal Administrator of Ma. v. Feeney (1979)
1) A woman challenged a Massachusetts civil service statute, which gave an absolute
hiring preference to any veteran who obtained a passing score on a competitive exam.
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Over 98% of veterans were men so the preference operated overwhelmingly to benefit
men.
2) The court held that the statute was not intentionally gender based. A significant
number of men were also adversely affected by the preference to permit an inference
that the statute was but a pretext for preferring men over women
3) Awareness of the consequences is not sufficient to prove discriminatory intent.
4) Only if the legislature chose the this course of action because of and not in spite of its
adverse effects on women, could there have been intentional discrimination.
E. Johnson v. Transportation Agency (1987)
1) Title VII case – case spoke clearly about remedying past discrimination in gender.
2) California Transportation Agency voluntarily adopted a plan which allowed for the
consideration of gender as a factor in deciding on promotions to traditionally male
occupations
a) Women were over-represented in office and clerical jobs
b) The plaintiff applied for a job as a road dispatcher and scored 2 points higher
than the woman who got the job
3) Brennan upheld the program based on a liberal interpretation of Title VII to permit
affirmative action plans when there is a “manifest imbalance” in the workforce.
4) An employer can employ gender as a factor if it identifies that a “manifest imbalance”
in the workforce existed with respect to traditionally segregated job categories
a) The program was not a set-aside
b) Not an attempt to achieve a permanent balance
c) Not a denial of settled expectations (not a layoff Wygant)
d) Gender was only one of the many factors considered.
e) The goal was reasonable and realistic
5) O’Connor concurring – employers are not under a duty to have a proportionate amount
of women in every job category.
a) Argued Title VII and equal protection standards are the same
b) Affirmative action is justified when the employer has a firma basis for deciding
that under-representation of women is the result of prior discrimination
6) Scalia dissenting – No affirmative action is allowed under Title VII. Proportionality
would not occur in a discrimination free society. Plan is concerned with altering social
attitudes not past discrimination.
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An employer can use gender as a factor if it identifies that a manifest imbalance in the work force existed
with respect to traditionally segregated job categories in comparison with women in the labor market. It
need not prove a prima facie case of discrimination.
F. Mississippi University for Women v. Hogan (1982)

1) MWU’s nursing school allowed men to audit courses but not take them for credit.
Hogan was denied admission to the degree program at the nursing school because he
was a man.
2) University says that they did this because of the past discrimination against women and
they were trying to remedy this. Court said could use remedy of past discrimination as
a reason for gender classifications, but no proof of disadvantage to women in the
nursing context. Needs to be an understandable relationship between the gender and
the past discrimination you are trying to remedy.
3) O’Connor wrote for the 5 Justice majority striking down the women-only admission
policy. The majority opinion applied the intermediate level of scrutiny prescribed by
Craig v. Boren.
4) O’Connor said that for a gender classification to be justified as compensating for past
discrimination, members of the gender benefited by the classification must “actually
suffer a disadvantage related to the classification, this would require a showing that
women are disadvantaged in the field on nursing.”
5) O’Connor talked about intent – MWU v. Hogan seems to say that in cases involving
intermediate scrutiny, the “important government purpose” to which the means must
be substantially related must be an actual purpose of the legislation.
Issue of gender-based education still exists. Question has not been answered.
G. US v. Virginia (1996) – most significant recent gender discrimination case
1) Background
a) VMI was founded in 1839
b) Its role is to produce citizen soldiers – men trained for leadership in military and
civilian life.
c) It is the only service institute in the state – but only 15% of the graduates actually
enter the military.
d) It uses the adversarial method – men are stripped of all privacy and everyone is
treated the same. There is a strict class system and honor code.
e) It is successful in producing leaders.
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f) VMI admitted only men – the state proposed a parallel program at Mary
Baldwin College – the Virginia Women’s Institute for Leadership (VWIL)
(1) The theory behind VMI and the adversarial method is that men are
arrogant and need to be broken down
(2) The theory behind VWIL is that women lack self-confidence and need
to be built up.
2) Justice Ginsburg purports to apply “skeptical scrutiny” which requires “exceedingly
persuasive” justification. Not your typical gender case. Adds a twist to intermediate
scrutiny – more demanding that intermediate.
a) The state failed to show an exceedingly persuasive justification.
b) Scalia seems to say in his dissent that Ginsburg is threatening to use strict
scrutiny.
3) Ginsburg’s test
a) The reviewing court must determine if the proffered justification is exceedingly
persuasive – Court has used this standard before in Hogan
b) The state must show “at least that the challenged classification serves important
objectives and that the discriminatory means employed are substantially related
to the achievement of those objectives.” – at the very least.
c) The justification must be genuine, not invented post hoc in response to litigation.
d) It must not rely on overly broad generalizations about the different talents,
capacities, or preferences of males and females.
4) Diversity among public education alternatives may be important, but Virginia did not
show that it adopted the program for diversity. Diversity seemed to be an ad hoc
justification in response to litigation. Slightly different take on diversity from Bakke.
5) Why isn’t VWIL sufficient to serve women in Virginia who desire public military
leadership training? Tangibles and intangibles are not equal, plus not enough women
who might be interested in the program to make the program workable – low demand
a) VWIL is qualitatively different in that it does not offer military training and
doesn’t offer the adversarial method
b) Unequal endowment, different course offerings, different academic standards.
c) VWIL does not have the traditions of VMI or the alumni network.
d) Similar to court’s reasoning in Sweatt v. Painter.
6) Rehnquist’s Concurrence
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a) Perhaps if VWIL employed the adversarial method and invested enormous

amounts of money, but even then, the reputation and traditions would never
catch up. It is unfair to ask Virginia to do something they cannot do overnight.
Virginia was not on notice that they would even have to build a comparable
female institution (except maybe with Hogan).
b) There seems to be insufficient demand for the adversarial method among
women to justify such expenditures
c) Rehnquist opposed the use of exceedingly persuasive justification
(1) It seems to alter the intermediate scrutiny test - Important government
objective & substantially related.
7) Scalia’s Dissent in VMI
a) The virtue of the democratic process is that it enables the people to decide to
change their laws based on a change in their values.
b) Majority ignores the “real differences” argument; VMI would have to change its
whole program. Would create new concerns about sexual harassment so would
have to modify its programs. Not really an integration, it is a change.
c) Court is random in applying standard of review. Thinks majority created a new
one.
d) That democratic system is destroyed if the smug assurances of each age are
removed from the democratic process and written into the constitution. History
is ruined. Shouldn’t decide constitutional issues in the abstract – look to history.
e) This is the elite class imposing its own values in a controversial area. Makes this
point in a lot of other cases, too. See f.
f) The illiberal court has embarked on a course of inscribing the current counter-
majoritarian preferences of the law-trained elite into the constitution. The court
has inscribed the preferences of the law-trained elite into the constitution. And
it uses intermediate scrutiny to load the dice.
g) When a practice not expressly prohibited by the Bill of Rights bears the
endorsement of a long tradition of open, widespread, and unchallenged use that
dates back to the beginning of the Republic, we have no proper basis for striking
it down.
h) People may decide to change one tradition through the democratic process, but
the assertion that the tradition is unconstitutional is not law, but politics-
smuggled-into-law.
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Does Virginia keep the door open for all-female schools? If empirical evidence show that women are successful there
and no classes are different than those offered to men elsewhere? Look to standard of review, would not survive
Ginsburg’s tough standard.
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PART XII: 14TH AMENDMENT

EQUAL PROTECTION
OTHER SUSPECT CLASSES
1. Non-citizens
A. Under longstanding precedent, the federal authority over foreign relations and immigration
has included nearly plenary power over aliens. Accordingly, federal regulation of non-citizens
is ordinarily subject at most to rationality review when challenged on 5th Amendment equal
protection grounds. Mathews v. Diaz (1976).
B. States have no substantial justification for treating non-citizens differently from citizens.
1) Graham v. Richardson (1971)
a) The court held that equal protection was violated by states that denied welfare
benefits to non-citizens lawfully present in the country.
b) “Classifications based on alienage, like those based on nationality or race, are
inherently suspect and subject to close judicial scrutiny. Non-citizens as a class
are a prime example of a ‘discrete and insular’ minority (Carolene Products n.
4) for whom such heightened judicial solicitude is appropriate.”
2) If non-citizens can achieve citizenship and the right to vote, is alienage an immutable
characteristic?
3) Are they really insular? Many of them are Anglos and pass unnoticed in the social scene
4) The court applies strict scrutiny when state laws are protectionist – reserving economic
benefits for citizens (Graham)
5) But the court has backed away from strict scrutiny with regard to laws rationally related
to reserving the sovereign functions of citizens (holding office)
2. Illegitimacy
A. The court applies “intermediate scrutiny” to illegitimacy cases. Clark v. Jeter (1988)
B. In essence, the decisions are based on the premise that persons born outside of wedlock have
suffered from irrational discrimination that imposes burdens upon them bearing no relation to
their own responsibility or wrongdoing.
C. Wrongful death suits
1) Levy v. Louisiana (1968) – EP violated when state does not allow illegitimate children
to sue for wrongful death of a parent.
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2) Glona v. America Guarantee & Liability (1968) – EP violated when parent is not allowed
to sue for wrongful death of an illegitimate child.
D. Inheritance
1) Trimble v. Gordon (1977) – The court cannot categorically deny intestate inheritance
to illegitimate children.
2) Lalli v. Lalli (1978) – The court can limit inheritance to children who established
paternity during the life of the deceased.
3. Age
A. The court has been unwilling to apply any form of heightened scrutiny to age classifications.
B. The court has upheld mandatory retirement for state employees and an ordinance not allowing
people over 18 in certain dance halls.
4. Sexual Orientation
A. The Supreme Court has never held that legal classifications based upon sexual orientation are
subject to strict scrutiny.
B. Bowers v. Hardwick (1986)
1) The court rejected a due process attack on a Georgia sodomy law.
2) Although the statute on its face applied to both hetero and homo sodomy, the court said
that its approval of the statute only applied to homo sodomy.
3) Although the court claimed not to address equal protection, Blackmun’s dissent stated
that the EP clause may be violated by the state’s singling out of gay men.
C. Carolene Products n. 4 Analysis
1) Gay and lesbians are not entirely discrete and insular
a) Most people don’t know a gay person when they see one
b) Gays mingle and prosper in mainstream culture
2) On the other hand, gays have been subject to vicious discrimination
5. Wealth
A. There is no heightened Equal Protection scrutiny of wealth classifications as such, however....
B. Decisions striking down laws requiring fees for governments services or licenses or requiring
the state to provide an attorney have been based not on equal protection, but on the notion of
“fundamental rights”
C. Three fundamental rights discovered in the 60’s
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1) Right to vote
2) Limited right of access to the judicial process
3) Interstate migration
D. Other Categories where Equal Protection raised standard to strict scrutiny
1) Criminal cases
a) Griffin v. Illinois (1956) – The state may not impose appellate filing fees or charge
for a transcript on appeal if that would preclude access to the appellate process.
b) Douglas v. California (1963) – A poor person charged with a crime has a right to
free counsel at trial and on appeal.
2) Marriage
3) Divorce
a) Boddie v. Connecticut (1971) – Outlawed imposing a filing fee on a poor person
seeking to file a divorce action.
4) Voting
a) Harper v. Virginia Bd. Of Elections (1966) – the court struck down a $1.50 poll tax.
Voting is a fundamental interest, but disc. Based on wealth is invidious. It’s the
combination that raises standard to strict scrutiny.
E. In 1970 the court rules that the equal protection clause does not require states to provide
meaningful welfare assistance to the poor or to draw distinctions among welfare recipients
carefully. Dandridge v. Williams (1970).
6. Mental Disability - City of Cleburne v. Cleburne Living Center (1985)

A. The Supreme Court refused to treat mental retardation as a quasi-suspect classification.
B. Reasons cited why the court should not apply a higher standard of review.
1) Judicial second guessing is undesirable
a) There are legitimate reasons to treat the mentally retarded differently
b) The treatment to be given to the mentally retarded is a difficult and often
technical matter, very much a task for the legislature guided by qualified
professionals and not by the perhaps ill-informed opinions of the judiciary.
2) No antipathy by lawmakers toward the retarded. Laws are passed to benefit the
retarded population.
3) Not politically powerless – The laws that have been passed to benefit the mentally
retarded negate the claims that they are politically powerless.
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4) Impact of Quasi-suspect status on other groups – If quasi-suspect class was given to the
large and amorphous class of mentally retarded people then there would be no
principled way to deny quasi-suspect class to a large number of other groups.
C. The court purported to be applying a “mere rationality test” but struck down the town’s refusal
to grant the special use permit to the home.
1) The court appeared to apply more rigor to the test than usual.
2) The refusal to grant the permit was found not to be even rationally related to any
legitimate state purpose.
3) Rather, the denial was of the permit rested on an irrational prejudice against the
mentally retarded
D. Dissent in Cleburne (Marshall, Brennan, Blackmun)
1) Contended that mental retardation deserved quasi-suspect classification.
2) Mentally retarded people have the subject of a “lengthy and tragic history… of
segregation and discrimination that can only be called grotesque.”
3) They contended that the right to establish a home is a fundamental liberty.
4) Responding to the legislation with regard to the mentally retarded, the dissent pointed
out that race did not become any less suspect once the legislature began to deal with the
concerns of blacks.
5) While retardation is indeed relevant is some circumstances, it is not relevant in all
circumstances. Strict scrutiny would help smoke out where it was not relevant. The
fact that retardation is irrelevant in some circumstances, when coupled with a history
of discrimination against the retarded, was enough to require heightened scrutiny.
E. Significance of Cleburne
1) The case probably indicates that a majority of the present court is reluctant to establish
additional “quasi-suspect classes”
2) The case also seems to confirm the Burger/Rehnquist Court’s reluctance to treat a
classification as more suspicious when it is used to burden a groups than when it is
used to benefit a particular group. The court gives the same level of scrutiny regardless
of benefit or burden.
3) Preference for “as applied” disposition – The court did not strike down the ordinance
itself. Instead, it held that as applied to the particular group home in this case, the
ordinance violated equal protection.
4) After Cleburne, for a majority of the court there may now be four tiers of scrutiny.
a) “anything goes” rational basis
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b) Rational basis with a bite

c) Intermediate scrutiny
d) Strict scrutiny
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PART XIII: FUNDAMENTAL RIGHTS

VOTING/TRAVEL
1. During the sixties, the Court indicated that there were certain interests or rights that were
fundamental under the Equal Protection Clause.
A. If a state classification challenged on Equal Protection grounds affected such an interest, it
would be tested by strict scrutiny.
B. The Court identified voting in a state election, certain rights in the criminal process such as the
right to appeal and the right to travel interstate as fundamental interests.
C. At the same time, the Court seemed to indicate that there might be suspect classifications other
than race and alienage, which could give rise to strict scrutiny.
D. In several cases, the Court seemed to suggest that wealth or ability to pay might be a suspect
classification, which could give rise to strict scrutiny.
2. Voting
A. As the nation grew increasingly more urban, legislative districts often became grossly mal-
apportioned.
B. The legislatures were generally unwilling to reapportion themselves since that would mean
that many incumbents would be reapportioning themselves out of power or even out of office.
C. Colegrove v Green (1946)
1) The mal-apportionment of the Illinois legislature was challenged under the Guarantee
of a Republican Form of Government Clause
2) The Supreme Court determined that the case presented a political question because
there were no judicially manageable standards under the Guarantee Clause.
D. Baker v Carr (1962) Warren Court
State requires reapportionment by state constitution. Issue was whether the fact that
Tennessee did not reapportion per the state constitution violated the Equal Protection
Clause. Was not a political question.
Concept of political question – areas in which even though you are making a claim of
legal right, nevertheless, if it is a political question, Court may not do anything about
it. Certain constitutional issues that will be resolved by another branch of the
government.
Standards for determining political questions: Basic principle is separation of
powers
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6 principles:
1. Textual commitment to another branch of the government – impeachment
2. Lack of judicially manageable standards
3. Policy decision requiring non judicial discretion
4. Lack of respect for coordinate branch
5. p. 679 Emanuel’s
The question of whether a war is legal implicates all 6 criteria
1) The mal-apportionment of the Tennessee legislature was challenged under the Equal
Protection Clause
2) The Court held that the political question doctrine did not preclude the suit because
there were judicially manageable standards under the Equal Protection Clause.
Luther v. Borden (1849) p. 682 Emanuel
1. Case grew out of a rebellion by some dissatisfied Rhode Island citizens
2. Required the federal courts to decide which of 2 competing governments was the lawful
government of the state.
3. Case was decided under the Guaranty Clause
4. Non-justiciable political question – applies to all Guaranty Clause cases like the apportionment
cases
5. Guaranty Clause would have been a convenient way of disposing of the apportionment cases, but
they relied on Equal Protection instead.
6. Case was all about lack of judicially manageable standards – reason why automatic denial of
Guaranty Clause claims – turns on the nature of the legal theory
Colgrove v. Green (1946)
Guaranty Claim that was denied because of precedent of Luther v. Borden
It’s the issue not the theory that ought to be decisive – courts should not legislate
6. Guaranty v. Equal Protection
Guaranty Clause provides no judicially manageable standards but that is not a
problem here because there are well-developed standards under Equal
Protection
Problem is with the legal theory not the underlying problem of reapportionment.
7. Other Avoidance Doctrines and their relation to Political Question Doctrine – why Court
declines to hear constitutional cases
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1. No standing – it will suffer no particularized injury regardless of how the

case is decided.
2. No injury yet – not ripe
3. It is moot – there was an injury but it no longer exists (Defunis case is a good
example)
Ripeness and mootness are about timing. Standing is about the parties, whether person before the court
has a sufficient stake in the controversy. Under all 3 doctrines, presumably, somebody could – needs to
be the right person at the right time
PQ Doctrine seems to assume that there are some issues of constitutional law that a federal court cannot
decide. Nature of the issue itself. Bit more powerful doctrine in terms of its preclusive effect.
Most significant PQ case is US v. (Judge) Nixon – impeachment case, Court rejected his challenge on
political question grounds
Court really focuses on #1 factor in Baker v. Carr – textual commitment to another branch is the best reason
b. Reynolds v. Sims (1964)
i. Facts: only ¼ of the population lived in districts represented by a majority of the
Senate and HoR
ii. In a suit brought by residents of a large Alabama county against state officials and
political party officers, the federal district court concluded that the population
inequality among state congressional and senatorial districts violated the equal
protection clause.
iii. The Court concluded that the standard that it had alluded to in Baker v Carr was
one person one vote. The Court concluded "with respect to the allocation of
legislative representatives, all voters…stand in the same relation regardless of
where they live."
iv. Chief Justice Warren struck down Alabama’s apportionment scheme on equal
protection grounds. Warren relies on the text of the Constitution.
1. The equal protection clause requires that the seats in both houses of a
bicameral legislature must be apportioned on a population basis.
DILUTED
a. The Court rejected the federal analogy under which the US Senate is
grossly mal-apportioned on the grounds that states unlike state
subdivisions were independent sovereigns when the Constitution
was adopted and the "Great Compromise" was politically essential
to the adoption of the Constitution.
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b. A state can pursue bicameralism and create divergent constituencies

for the two houses by varying the size of the legislative districts
however both must be apportioned on the basis of one-person one
vote.
2. An individual’s right to vote for state legislators is unconstitutionally
impaired when its weight is in a substantial fashion diluted when compared
to votes of citizens in other parts of the state.
3. The court observed that equal protection generally requires uniform
treatment of persons standing in the same relation to the governmental
action questioned or challenged.
4. Since legislators represent people, not trees, acres or pastures, there was no
apparent reason for making a rural citizen’s vote worth more than a person
in a heavily populated county.
v. The court did not require strict mathematical equality
1. Some deviations would be allowed if they were directed towards the
carrying out of a rational state policy.
2. Population may not, however, be submerged as the controlling
consideration.
vi. ISSUE: The difficult issue in Reynolds (which the Court assumed away) was why
are persons living in different legislative districts similarly situated? If they are,
one-person one vote tends to follow but why can't geography be a legitimate
differentiating factor?
vii. The Court had already applied the one-person one vote principle to Congress
pursuant to Article I (Wesberry v Sanders).
viii. It applied it to virtually all elected state and municipal bodies following Reynolds
ix. It applied it even when the voters of a state by referendum deliberately chose to
employ a degree of mal-apportionment (Lucas).
x. One-person one vote probably had as much impact as any decision other than
Brown, and while it was controversial with some commentators, the public
appeared to accept it since it benefited majorities and seemed intuitively fair.
xi. Ely uses it as Exhibit #1 under his representation reinforcing theory.
xii. In subsequent cases such as Kramer v Union School Bd (1969) & Harper v Va State
Bd of Elections (1966), the Court recognized that the right to vote in a state election
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was a fundamental interest under the Equal Protection Clause giving rise to strict
scrutiny.
xiii. Stewart’s Concurrence
1. Stewart agreed that Alabama’s scheme was completely lacking rationality.
2. But Stewart believed the equal protection clause did not bar a state’s
divergence from mathematical equality if this was done for the purpose of
providing effective and balanced representation of all substantial interests
3. The only limit was that a plan must not permit the systematic frustration of
the will of the majority of the electorate of the state. As long as the majority
was not consistently blocked from electing a majority of the legislators, the
scheme must merely be rational.
4. Techniques such as providing that one legislative chamber (like the senate)
be smaller than the other and apportioned on some basis other than
population could be rational attempts to provide some insulation from the
influence of the dominant political currents that Madison feared might
overwhelm minority rights.
xiv. Harlan’s dissent – talking about political theory rather than economic theory, don’t
believe that it is part of the Constitution, left it up to the states – not one person, one
vote
1. Harlan argued that the framers did not intend the 14th Amendment to limit
the power of the states to apportion their legislative districts, historically
never imposed one person, one vote
2. Textual Problems in Reynolds
a. Why include § 2 of the 14th Amendment on voting if the § 1 equal
protection applies to voting?
b. Why adopt the 15th Amendment if the 14th Amendment applies to
voting? 14th Amendment was not about voting – focused on one
aspect of voting, racial discrimination in voting.
3. Like Justice Frankfurter in Baker, Justices Harlan and Stewart argued in
dissent that the Court had simply chosen one of many rational theories of
representation and could not explain why one person one vote was any
more constitutionally required than other alternatives.
xv. KEY QUESTION – what is the proper metric of determining the method of one
person one vote?
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1. Case before the SCOTUS may answer this question.

2. Evenwel vs. Abbott
a. Basing on population is easiest solution using the census and
reapportion accordingly.
b. But in this case before SCOTUS, challengers argue that the
appropriate standard should be registered voters. If we are
concerned with dilution and equality among voters then it shouldn’t
be based solely on populations.
c. Case has been argued. If it were a 5-4 decision (counting Scalia) then
it would put it over for argument for next terms.
d. Bloom thinks Court will reject the challengers theory
i. The proper approach is one person one vote regardless of
whether they are registered or not. This is the national
standard
ii. Or they will uphold Burns and say either standard is
acceptable and that decision is up to the states. **Bloom
thinks this is what they will decide.
e. Finding an alternative would be challenging because it would be
more difficult to get the data
f. Deviation limits over 10% most likely will be reviewed by the courts.
3. Voting Rights Act
a. Prohibits a state from utilizing a discriminatory methodology, even
if it has disparate impact as opposed to intent.
D ILUTION OF R IGHT TO V OTE
VIII. ONE PERSON, ONE VOTE PRINCIPLE
The Equal Protection Clause of the Fourteenth Amendment has been interpreted to prohibit state dilution
of the right to vote, and Article I has been interpreted to place the same type of restriction on the federal
government.
A. Establishing Voting Districts
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Whenever a governmental body establishes voting districts for the election of representatives, the number
of persons in each district may not vary significantly. This is commonly referred to as the one person,
one vote principle.
1. Congressional Elections—Almost Exactly Equal

(a) States establish the districts for congressional elections. However, the Supreme Court
requires almost exact mathematical equality between the congressional districts within a
state; thus, deviations of even a few percentage points between the congressional districts
within a state may result in the invalidation of the congressional district plan.
2. Compare—Apportionment Among the States
(a) Congress apportions representatives among the states “according to their respective
number.” [Art. I, §2] Congress’s good faith choice of method in so apportioning the
representatives commands far more deference than state districting decisions and is not
subject to the same precise mathematical standard as state plans. [United States Department
of Commerce v. Montana, 503 U.S. 442 (1992)]
3. State and Local Elections—Variance Not Unjustifiably Large
(a) The variance in the number of persons included in districts for the purpose of electing
representatives to a state or local governmental body must not be unjustifiably large, but the
districts need not be within a few percentage points of each other: If a state can show that
the deviation from mathematical equality between districts is reasonable and tailored to
promote a legitimate state interest, the law establishing the districts may be upheld. [Mahan
v. Howell, 410 U.S. 315 (1973)—16% variance in district populations was upheld in light of
state’s interest in preserving political subdivisions, although 30% variance would be
excessive]
B. Scope
1. The one person, one vote principle applies to almost every election where a person is being
elected to perform normal governmental functions. [Hadley v. Junior College District, 397
U.S. 50 (1970)—trustees for junior college district] However, there are a few exceptions to
note:
2. Exception—Appointed Officials and Officials Elected “At Large”
(a) The apportionment requirement is inapplicable to appointed officials. Neither is it
applicable in at-large systems of election, because in such a system there are no electoral
districts to violate the one person, one vote principle. However, if an at-large voting system
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were established or maintained for the purpose of suppressing the voting power of
minority race voters, it would be unconstitutional.
3. Exception—Special Purpose Government Units (Water Storage Districts)
(a) The government can limit the class of persons who are allowed to vote in an election of
persons to serve on a special purpose government unit if the government unit has a special
impact on the class of enfranchised voters. To date, the Supreme Court has found only
“water storage districts” to be so specialized that their governing boards are not subject to
the one person, one vote principle. [Salyer Land Co. v. Tulane Water District, 410 U.S. 719
(1973); Ball v. James, 451 U.S. 355 (1981)—apportionment rules do not apply to water district
even if the district is major supplier of electricity in the state]
C. Current One Person, One Vote Rule
1. Regarding congressional districts,

(a) almost exact mathematical equality between the congressional districts within a state is
required under the one person, one vote principle. The rationale is that voting is a
fundamental right, diluting one person’s vote compared to another’s raises equal protection
concerns, and there is no compelling interest that would justify more than a couple of
percentage points difference from district to district.
(b) A variance of 10% is NOT permissible. In congressional districts almost exact mathematical
equality is required and a variance of even a couple of percentage points might be ruled
invalid.
2. Regarding state government districts,
(a) Almost exact mathematical equality between districts is NOT required under the one person, one
vote principle. In state government districts, the variance from district to district may not
be unjustifiably large. But this is a much more lenient standard than the almost exact
mathematical equality standard.
(b) A variance of more than 3% is NOT invalid under the one person, one vote principle. The
variance may not be unjustifiably large, but a variance of even 16% has been found to be
valid.
3. Bush v. Gore (US 2000)
xvi. D
7. Voter ID
a. Crawford v. Marion County Election Board – p. 813 (2008)
b. In Texas –
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i. you must have photo ID but are registered, they will give you a provisional ballot,
and then you can attempt to show you are who you really say you are afterwards
(within 5-10 days)
ii. Other voter ID laws give other options to prove you are who you say you are within
a certain period of time.
iii. Texas law was challenged in Dist. Ct. prior to 2014 elections.
1. Held invalid
2. Texas SC held 6-3 it should be in operation for 2014 election pending further
litigation.
3. Went back to Dist. Ct. and invalidated it because it violate Sec. II of voting
rights act because disparate impact and was a poll tax
4. Appeals Ct. agreed with disparate impact but disagreed with the poll tax
part.
8. Political Gerrymandering
(a) Shaw v. Reno, 509 U.S. 630 (1993)
(1) Facts: A state law established districts for the election of Representatives to the United
States Congress. The bizarre shape of one of the districts could not be explained except
in terms of establishing a district where minority race voters would control the outcome
of the election.
(b) Held: The law was deemed to use a racial classification on its face even though the
language of the law did not include racial language, because the law could not be
explained except in racial terms.
(i) The Court did not rule on the question of whether this racial classification was
narrowly tailored to a compelling interest, such as remedying proven past
discrimination, because that question had not been addressed in the lower courts.
(c) Hunt v. Cromartie, 532 U.S. 234 (2001)—“Hunt II”
(1) Facts: Similar facts to Shaw. When a law is facially neutral, the burden falls to the
persons attacking legislative districts as being based on racial classifications and they
must show that district lines were drawn for a racially discriminatory purpose.
(2) Held: If a legislative districting map could be explained in terms other than race, the
Court will not find that the law constituted racial discrimination on its face.
i.
9. The Right to Travel – fundamental interest – strict scrutiny applied
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a. In Shapiro v Thompson, (1969), the Court invalidated state laws that prohibited persons
who had recently moved to the state from receiving welfare benefits until they had satisfied
one year residency requirements.
i. The Court held that the right to travel from one state to another was a fundamental
interest under the Equal Protection Clause and that the residency requirements
could not survive strict scrutiny.
ii. The Court did not identify a specific source for the right to travel but indicated that
it might be derived from the commerce clause, Article IV privileges or immunities
or constitutional structure – citizens have the same rights in every state
iii. In dissent, Justice Harlan argued that if there was a right to travel, the Equal
Protection Clause was irrelevant to the analysis and if there wasn't, rational basis
analysis should apply. Said that the 5th Amendment Due Process Clause protects
the right to travel – assess under right to travel, not Equal Protection – speaks to the
difference between fundamental rights and fundamental interests (only raised in EP
challenge)
b. Subsequent to Shapiro, the Court has analyzed these cases by asking whether a particular
state residency requirement "penalizes" the right to travel.
c. It has invalidated one-year residency requirements for voting and eligibility for non-
emergency medical services by the poor but upheld such a requirement for divorce.
10. The State Criminal Process

a. In a series of cases involving various rights in the criminal process, such as the right of an
indigent to receive a free transcript (Griffin) and the right of an indigent to appointed
counsel on appeal, the Court has indicated that such rights are fundamental and
classifications which restrict them are subject to strict scrutiny.
b. These cases are difficult to analyze because they turn on a combination of a fundamental
interest (criminal process) and wealth discrimination and the Court relied on a combination
of Equal Protection and Due Process (since the state can't possibly provide the indigent
defendant with all that the wealthy defendant can purchase).
11. Basic Rights for the least advantaged - Wealth as a Suspect?

a. There is no heightened equal protection scrutiny of wealth classifications
b. But cases involving the poor have been subjected to heightened scrutiny under the notion
of “fundamental rights.”
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i. Fair process in criminal procedure – right to a lawyer

ii. Marriage – fees
iii. In Harper v Va. Bd. Elec (1966), the Court invalidated a $1.50 poll tax on the basis of
the fundamental right in voting along with discrimination against the poor.
iv. In Boddie v Conn (1968), the Court invalidated a filing fee for divorce under the due
process clause as wealth discrimination burdening a fundamental right.
c. By the late sixties, it appeared that the Court was inclined to identify more fundamental
rights and suspect classifications under the Equal Protection Clause – end of the Warren
Court
d. Between 1970-1971, President Nixon appointed four justices to the Court (Burger,
Blackmun, Rehnquist and Powell replacing Warren, Fortas, Black and Harlan) and the
Court quickly began to show far less enthusiasm for the discovery of new fundamental
interests and suspect classifications.
i. The Court declined to recognize welfare as a fundamental interest in Dandridge v
Williams (1970) and housing as a fundamental interest in Lindsey v Normat (1972).
ii. The Court declined to invalidate filing fees for bankruptcy with regard to indigents
in US v Kras (1973) and declined to require states to appoint counsel for indigent
criminal defendants seeking discretionary review of their convictions before the
state Supreme Court or the US Supreme Court in Ross v Moffitt (1974).
e. The fundamental interest/ suspect classification controversy came to a head with judicial
challenges to property tax based financing of public education in the early seventies.
i. At the time, virtually all states financed a significant portion of local education
through local property taxes.
ii. This lead to significant disparities in resources from one school district to the next
within a state since taxable wealth was not distributed equally.
iii. Large inner city urban districts like DISD tended to be around the median, suburban
districts tended to have more taxable wealth and rural districts had less.
iv. In 1970 in the case of Serrano v Priest, the California Supreme Court invalidated the
property tax based financing scheme under the Equal Protection Clause finding
education to be a fundamental interest and wealth a suspect classification. The
decision was immune from Supreme Court review since it also relied on the state
constitution.
f. San Antonio Ind. School District v. Rodriguez (1973)
i. Gives us standard for cases involving suspect class and a fundamental right.
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ii. Is a doctrinal debate between Powell and Marshall

iii. Known as the school financing case
iv. Class action suit on behalf of poor children living in Texas districts with low
property tax bases
v. Powell upheld the Texas school financing scheme
vi. Strict scrutiny applies when (1) Government action impinges upon a fundamental
right or interest, or (2) Statute classifies on a suspect basis. If neither of these are
present, then rational basis is the proper standard of review.
vii. Justice Powell used this case as a vehicle for attempting to bring some order to Equal
protection analysis. Wants to clean up the mess in the fundamental rights and
suspect classification area.
1. Justice Powell concluded that wealth was not a suspect classification at least
in the context of this case. However, wealth may matter in later cases Plyler
v. Doe.
2. The financing plan did not discriminate against poor persons since they did
not necessarily live in property poor districts.
3. There was no basis for concluding that property poor districts were suspect.
4. According to Justice Powell, the precedent which gave special consideration
to discrimination on the basis of ability to pay only applied to instances in
which there was a complete deprivation of a benefit because of a total
inability to pay while here there was only a relative disadvantage since all
children received a state funded education.
5. Differentiating the case from other precedents on WEALTH
a. The scheme does not operate to the particular disadvantage of the
indigent or people below the poverty line
b. Lack of personal resources has not wholly deprived the group of the
desired benefits
c. Justice Powell argued that the criminal procedure cases supported
his analysis since the indigent was totally deprived of transcript or
attorney on appeal.
d. Justice Marshall argued that they did not support Justice Powell
since what the indigent was really seeking was an appeal and he got
it--it simply wasn't as effective. The kids in a poor district are getting
an education – just not a good one.
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viii. Justice Powell also argued that the deprivation in Rodriguez should not give rise to
strict scrutiny since there was no empirical proof that increased educational
spending lead to better academic performance.
1. Justice Marshall replied that most people act on the assumption that more
money means better schools and better student performance, and whether
that can be empirically demonstrated parents in property poor districts
ought to have the opportunity to proceed on that assumption just as parents
in wealthy districts do. If parents in better funded districts do not believe
that more money means better education, why do they oppose
redistribution of educational spending so vigorously? Wealthy districts are
acting on the assumption that more money means better school.
g. EDUCATION AS FUNDAMENTAL INTEREST
i. Justice Powell rejected the argument that Education was a fundamental interest
explaining that the Court doesn’t create fundamental interests simply because the
interests are important but only applies strict scrutiny under Equal Protection to
those interests that are explicitly or implicitly protected by the Constitution.
Absolute equality in education is not guaranteed even implicitly by the
Constitution. Even though it is agreed that education is important, but it does not
make it fundamental.
1. Justice Marshall agreed in dissent that there must be a nexus between the
Constitution and a fundamental interest but argued that that was the case
since education enables a person to use his constitutional rights to free
speech and to vote more effectively.
ii. Justice Powell responded that the Constitution doesn't guarantee effective
utilization of constitutional rights.
1. A person has a constitutional right to send a child to a private school or to
choose to have an abortion but the state needn't make these rights effective
by paying for them.
2. Moreover, there is no way to determine whether a less well educated person
is unable to speak and vote as effectively as a more educated person nor is it
possible to determine whether the degree of public education that Texas
provides all students is in some sense inadequate.
3. Justice Powell also noted that Justice Marshall's nexus argument would also
lead to the conclusion that welfare and housing are fundamental interests
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(contrary to the Court's precedents) since a person can’t speak or vote

effectively if they are starving or freezing.
iii. If education was not a fundamental interest and wealth was not a suspect
classification, Justice Powell did not believe that the strict standard should apply
simply because both were implicated by the Texas educational financing system.
h. DECIDE ON RATIONAL BASIS
i. Justice Powell also noted that rationality review was appropriate in this type of case
since the Court is hesitant to second guess complicated legislative taxing and
spending plans which inevitably involve expertise, difficult choices among
priorities and political compromise.
1. Powell also noted the justices’ lack of competence to decide education issues
and the traditional deference to state taxing and spending schemes. Have to
let the local governments make their own choices. Plus, schools are not the
only things financed by local property taxes.
2. Invalidating the Texas financing plan would caste doubt on similar plans in
most states and the rationale might extend to the financing of other
municipal social services as well including police and fire protection. Would
have to decide these other cases if we decided it affects education.
ii. Justice White would have invalidated the financing plan under rational basis
analysis since the state caps on the maximum school tax rates prohibited local
districts from raising as much money as other districts even if they were willing to
tax themselves at an extremely high rate thus it was inconsistent with the goal of
local control. If they don’t have much property wealth, there is a point where they
can’t go any higher.
i. MARSHALL WANTS A SLIDING SCALE
i. Justice Marshall argued for a sliding scale approach to Equal Protection review
under which the Court would vary the level of scrutiny with the importance of the
right affected as well as the nature of the classification rather than adhering to the
two traditional standards of review.
1. Justice Powell and the Court rejected the sliding scale approach on the
ground that it was so ad hoc that it lacked ability to guide, constrain or
predict and would thus be subject to result oriented manipulation.
2. Rodriguez is a good example of a rule-oriented approach (Powell)
contrasted with a standards based approach (Marshall).
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ii. Justice Marshall noted that there were many formulas under which a state could
combine equal funding opportunities with local control.
iii. Justice Powell responded that the state need not pursue less restrictive alternatives
under the rational basis test.
j. Edgewood ISD v Kirby
i. After losing in Rodriguez, the plaintiffs challenged the Texas school financing plan
in state court under the state constitution and eventually won.
ii. The Texas Supreme Court held that the plan violated the provision that required the
state to operate an efficient (meaning "serves its purpose") system of public schools.
iii. After extended political debate and a failed referendum, the Texas legislature
passed and the Supreme Court of Texas upheld a plan under which school districts
above the state median were given the option of sending a portion of their tax
revenues to the state for redistribution or sending revenues directly to a below
median district.
iv. In Rodriguez, Justice Powell seemed to be attempting to settle the argument on
fundamental interest/ suspect classification analysis once and for all but subsequent
cases suggest that he may have succeeded imperfectly if at all.
k. Plyler v. Doe (1982) (ALMOST LIKE RATIONAL BASIS BUT WITH MORE—ONE OF
A KIND—LIKE THE MULTIFACTOR TEST THAT MARSHALL WANTS)
i. The Court invalidated a Texas statute that denied the children of undocumented
aliens a free education charging them instead prohibitively high tuition to attend
public schools.
ii. The case is arguably consistent with Rodriguez in that it involves a complete
deprivation based on an inability to pay.
iii. The court struck down the law as a violation of equal protection
1. Brennan stated that the Equal Protection Clause was meant to abolish all
caste-based and invidious class-based regulation
2. Brennan applied a rational basis standard and struck down the law despite
the state’s 3 stated reasons
iv. Justice Brennan wrote an opinion however that emphasized the importance of
education, the impact on indigent children and the blamelessness of the children
which sounded quite like Marshall's sliding scale approach especially since he
applied an intermediate standard of review.
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v. Plyler could be read as an outright rejection of Justice Powell's attempt at a

categorical rule oriented approach in Rodriguez.
1. This was a complete deprivation of a right which makes it different from Rodriguez.
vi. In light of Cleburne, it is probably better understood as a particularly appealing case
in which the Court temporarily disregarded the Rodriguez framework in order to
reach an equitable result.
vii. THE MULTI-FACTOR TEST THAT MARSHALL WANTS:
1. (1)THE CONSTITUTIONAL AND SOCIETAL IMPORTANCE OF THE
INTEREST ADVERSELY AFFECTED
2. (2) THE RECOGNIZED INVIDIOUSNESS OF THE BASIS UPON
WHICH THE PARTICULAR CLASSIFICATION IS DRAWN
viii. Powell’s Concurrence
1. Powell argued for intermediate scrutiny
2. The statute classified the children because of a violation of the law by their
parents
3. Powell compared this to the intermediate scrutiny given to classifications
based on illegitimacy.
l. Cleburne v Cleburne Living Ctr. (1985)
i. Appeals: mental retardation is a quasi-suspect classification and that the ordinace
violated equal protection bc it did not further important governmental interest.
Applied intermediate.
ii. Issue: whether it is rational to treat the mentally retarded differently. No. Irrational
prejudice.
iii. The Court invalidated an ordinance, which required a home for the feeble minded,
alcoholic, drug addicted or a prison to obtain a special permit.
1. The Court rejected the plaintiff's arguments to treat mental disability as a
"quasi-suspect classification" noting that mental retardation is often a
relevant legislative consideration, the mentally retarded (at least through
their lobbies are not politically powerless, there are different degrees of
retardation and stricter review might discourage reform).
2. Thus the Court applied rational basis review instead of intermediate review
urged by the plaintiffs, however it invalidated the permit requirement on
the ground that the state's justifications did not differentiate the home from
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other types of multi-person dwellings that were not covered indicating that
the rule was the result of irrational prejudice.
iv. This was Economic and Social Legislation that required rational basis. Why?
1. How to be treated under law is technical matter to be left for legislators
guided by qualified professionals.
2. Lawmakers have been addressing their difficulties in a way that shows
continuing antipathy or prejudice and a corresponding need for more
intrusive oversight of the judiciary.
3. The legislative process negates any claim that the mentally retarded are
politically powerless.
4. If they were deemed quasi-supect, difficult to find a principled way to
distinguish a variety of other groups with immutable disabilities.
v. Why the City Council wanted the permit.
1. Worried about elder residents about neighborhood and their attitude.
a. Mere negative attitude, fear, unsubstantiated by factors which are properly
cognizable in zoning proceeding, are not permissible basis for treating a
home for mentally retarded differently.
2. Across street from Jr. High and worried about how students would harass
occupants.
a. No. The school has mentally retarded students.
b. Denying permit based on vague, undifferentiated fears is permitting the
community to commit an equal protection violation.
3. Located on a 500 year flood plain
a. None of the other types of homes would have to get a permit, so this
reasoning is false.
4. Size of home and people that would occupy
a. No restrictions for other types of himes.
vi. Justice Stevens concurred arguing that there is only one Equal Protection Clause
thus no need for different standards of review.
vii. Justice Marshall argued that the Court was obviously apply a higher standard than
rational basis review thus it should be honest and admit that it is applying sliding
scale or intermediate review.
1. The ordinance would be valid under traditional rational basis test.
2. Under traditional you do not sift through the record.
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3. Burden is not on the legislature to convince the court that the lines it has
drawn are sensible.
4. Do not provide the factors, so provide no principled foundation to
determine when more searching inquiry will be invoke.
5. What Marshall Believes? The case should vary with the constitutional and
societal importance of the interest adversely affected and the recognized
invidiousness of the basis upon which the particular classification is drawn.
a. 1. Int. in group homes is substantial.
b. 2. Lengthy and tragic history of segregation and discrimination.
viii. Cleburne may suggest that the Court does intend to cling to Powell's Rodriguez
approach in name but that it will apply standards disingenuously from time to time
to reach a desired result.
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D UE P ROCESS & S UBSTANTIVE D UE P ROCESS
Substantive Due Process asks whether the government has an adequate reason for taking away a person’s
life, liberty or property. Is there a sufficient justification for the government’s action? Look to the levels
of scrutiny.
Controversy – Objections to Substantive Due Process also arise in conjunction with arguments against
the Supreme Court protecting rights not enumerated in the Constitution. Due Process denotes
procedures and that it is incorrect to use due process as the place to protect substantive rights. The P&I
Clause is the better place for safeguarding rights. BUT, The Slaughterhouse Cases gave it too narrow a
reading and left it defunct. Should we protect substantive due process rights using the due process
clause?
2 Ways the Court has used Substantive Due Process:
1. Safeguard economic liberties and to protect freedom of K as a fundamental right – Lochner
2. Protect rights of privacy and personal autonomy –Roe v. Wade
** The Rise and Fall of Economic Rights as Substantive Due Process
IX. LOCHNER ERA
Economic Liberties – Constitutional rights concerning the ability to enter into and enforce K, to pursue
a trade or profession and to acquire, possess and convey property (K Clause, Takings Clause)
Lochner Era – Court protected economic rights under Due Process Clause. Freedom of K under the Due
Process Clause limited the government’s ability to impair existing Ks and to regulate the content of
future Ks.
PP – Strong commitment to a laissez-faire (unregulated) economy and to protect business from

government regulations. Theory that society would thrive with the least government regulation.
Reflected increasing hostility toward government regulation designed to protect workers, etc.
A. The Road to Lochner
1. Dual Federalism – federal and state power are mutually exclusive

(a) Industrialization & urbanization increases significantly after the Civil War resulting in
social and economic problems. Congressional attempts to regulate working conditions,
compensation, and pricing increased in the early 20th century at both the state and national
level.
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(b) Generally, courts held that labor relations, even in large-scale industries, were local in
nature and thus were not in interstate commerce nor did they directly affect it. Thus, such
regulation was beyond the scope of Congressional power under the Commerce Clause and
reserved to the states pursuant to the 10th Amendment.
2. Lochner v. New York (1905) seemed to use rational basis, but looked like it was higher
(a) FACTS: Lochner, the owner of a bakery, was charged with violating a NY statute that
prohibited employers from requiring bakers to work more than 60 hours a week. He
challenged the statute on constitutional grounds that it interfered with his constitutional
right to contract under the due process clause in the 14th amendment.
(b) ISSUE: What constitutional right did the Court believe that the NY legislature violated and
what was the source of the right?
(c) HOLDING: The right to contract, which was an aspect of liberty protected by the due
process clause of the 14th Amendment. Court said that freedom of K is a basic right
protected as liberty and property rights under due process. The Government could only
interfere with freedom of K only to serve a valid police purpose (protect health, safety, or
morals). It is the judicial role to carefully scrutinize legislation interfering w/ freedom of
K to make sure it served a police purpose.
(d) This is known as Substantive Due Process – the problem isn’t the Lochner was given
inadequate procedural protection before his liberty was infringed, but rather that the state
was unable to justify the infringement.
A. Substantive Due Process –
1) Life, liberty, and property are in and of themselves protected by the constitution.
2) The liberty of contracting is protected
a) Art I § 10 – “No state shall pass any laws impairing the Obligations of
Contracts.”
b) In the 1880’s, the court found a liberty of contract right in the due process clause.
The right to contract is protected by the Due Process Clause.
3) The court first seemed to recognize substantive due process in Scott v. Sanford (1857)
when it held that Congress could not constitutionally deprive a slave owner of his
property in a slave.
4) The Court ignored the substantive due process right to contract in the Slaughterhouse
Cases (1873)(La. gave a monopoly of New Orleans slaughterhouses to a particular
company) though raised by the Bradley dissent.
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5) A state CAN pass legislation for the common good (due process doesn’t prevent ever
presenting legislation) BUT the legislation has to be a reasonable exercise of the police
power.
6) BUT, the court then began taking substantive due process right to contract seriously in
Allegeyer v. La. (1896) having earlier discussed that it might (Munn v. Louisiana (1877)
& Mugler v. Kansas (1887). “The general right to contract …is part of the liberty of the
individual protected in the 14th Amendment.” Allgeyer. Arguably, the right to
contract was derived from pre-war anti-slavery “free labor” ideology.
B. LIMITSLimitations on the Freedom of Contract – What are the limitations of freedom of
Contract?
1) It is limited by the police power
2) Thus, the state may enact reasonable regulation for the protection of
a) Health
b) Safety
c) Morals
d) The General Public welfare
3) On its face at least, this would seem like a deferential standard of review.
C. What might the NY legislature have been attempting to accomplish with the passage of this
law? Labor or Health
1) Bakers’ Health – decrease the amount of time that they spent in an unhealthy
environment.
2) Purely labor laws – regulating the labor market to protect workers against unfair
exploitation due to lack of bargaining power or to provide for more jobs by decreasing
the hours that a particular employee can work.
a) The state may be trying to spread the jobs around
b) Correct lack of bargaining power of the part of bakers unequal bargaining
process
3) There is some reason to believe that the law was favored by large bakeries because it
put smaller bakeries at a disadvantage.
D. Why did the Court conclude that the law was not constitutionally justified if its purpose was
to regulate the labor market? The court says that pure labor regulation – not tied to public
health – is not within the power of the legislature – Labor law is an improper purpose. Baking
was never shown to be more unhealthy than any other occupation and thus needing protection
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1) “A labor law pure and simple” would be an illegitimate state end wholly beyond
legislative power. Problem not the means but the end. State doesn’t have power to
interfere with labor
2) There is no reason according to the court why bakers cannot protect themselves – they
are not wards of the state.
3) It is an example of the trend toward a legislative increase in the interference with
ordinary trades.
E. HEALTHThe Health Justification – Why did the Court conclude that the law was not
justified as a means of protecting health?
1) The state has a right to protect public health
2) This law is not justified on health reasons – the bakers’ health was not at any more risk
than many other occupations
3) No relationship between the hours a baker worked and public health (i.e. the
wholesomeness of the bread) – Insufficient means/end nexus
4) Nor is there adequate support for the proposition that working more than 60 hours a
week has an adverse effect on the health of the baker’s given that baking is not an
unhealthy or dangerous trade.
F. The Lochner court may have been troubled by the fact that the legislation looked like class or
special interest legislation in that it singled out one particular trade for different treatment. The
anti-class theme had had political resonance since the Jacksonian era.
G. The court purported to use a deferential standard of review, but they appear to use a higher
standard.
1) The court seems to say the liberty to contract is a fundamental right that is subject to a
higher standard of review
2) Interfering with liberty to contract is more serious
H. Harlan’s Dissent in Lochner – Why does Justice Harlan believe that the law should be upheld?
The means ends nexus between the limitation of hours and the bakers’ health IS sufficient
1) Its not the courts job to describe who is right and who is wrong
2) When the state has some empirical evidence for their means-end nexus the game should
be over.
3) Where, as here, there is sufficient evidence from which the legislature could conclude
that long hours adversely affect the health of Bakers, the court should not 2nd guess the
legislative conclusion.
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I. Holmes Dissent in Lochner – Why did Justice Holmes conclude that the law was
constitutional?
1) Regulating the labor market is not a constitutionally illegitimate purpose. States have
broad powers to interfere with liberty concluding the so-called liberty of contract.
2) The Constitution does not enact an economic theory – it is for people with
fundamentally different views.
3) Why is the right to contract so special? Why should the court uphold other limitations
of liberty and strike down a law limiting the liberty of contract?
4) The question should be whether the law is wholly arbitrary and irrational
a) There seems to be a rational basis for this law
b) If the court is really applying a deferential standard, then this should have been
left to the legislature
c) Regulating the labor market is not a constitutionally illegitimate purpose
d) The states have broad power to interfere with liberty, including the liberty of
contract.
e) The court should apply the most minimal scrutiny to socio-economic laws.
5) Liberty is perverted when it is used to prevent the outcome of a dominant opinion,
unless the law proposed would infringe on a fundamental principle, as they have been
understood by the traditions of our people and of our law.
2. What is Wrong with Lochner – Why is it considered one of the court’s worst decisions?
A. Critiques of Lochner
1) Inconsistent in its application of the doctrine
2) Un-elected judges are just substituting their values to protect rights – not using the
democratic process (NOTE: You can always have this argument)
3) No basis for treating one aspect of liberty more importantly than others.
4) There is an insufficient basis for increasing the standard of review.
5) It has found substantive content in due process – Shouldn’t invalidate legislation under
this theory when there are necessary regulations – Due Process should mean procedure.
6) It protected right or values not identified in the constitution.
7) It applied too rigorous review in the economic sphere - There is no justification for
increased judicial scrutiny. A reasonable person could believe that this legislation
makes sense.
8) It was too demanding with respect to empirical support from the legislature.
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9) Freedom of K should not be an obstacle to necessary regulations – failed to explain why

the right to K is such a highly protected aspect of liberty.
B. In defense of Lochner
1) The contract clause does provide some constitutional text upon which Lochnerian strict
scrutiny might be based.
2) The law struck down in Lochner might have been pushed through by big bakeries and
unions to raise the labor costs for small bakeries.
a) Unions had gotten maximum hour contracts with the big bakeries
b) Small bakeries were not unionized
3) Economic regulation is often passed so some special interest can get economic rents
4) Even during the height of Lochner the Court upheld far more state labor regulation than
it invalidated. The Court upheld largely indistinguishable maximum hour regulation
10 years later without even citing Lochner.
3. Death of Lochner – Cases following Lochner, Court invalidated nearly 200 state laws under the
14th Amendment.
A. The court rejected a strict reading of the Commerce Clause. NLRB v. Jones & Laughlin Steel
(1937)
B. The court also rejected Lochner and the right to contract in
1) Affected with Public Interest - Starting with Munn v. Illinois (188 ), the Court had
allowed the state more leeway to regulate businesses that the Court concluded were
“affected with the public interest.” Apparently the grain elevators in Munn were so
affected while a bakery in Lochner wasn’t. Shows inconsistent application of Lochner
doctrine.
2) Nebbia v. NY (1934, J. Roberts) – In Nebbia, dealing with retail milk prices, the Court
concluded that there was “no closed class” of business “affected with the public
interest,” consequently the state, pursuant to the police power, could impose reasonable
health, safety and morals regulation of any business, conceptually ending the Lochner
era. Court questioned the basic premise of Lochner era saying that property rights and
K rights are not absolute and declared a need for judicial deference to legislative choices.
The state is free to adopt whatever economic policy may reasonably be deemed to
promote public welfare.
3) West Coast Hotel v. Parrish (1937, CJ Hughes)
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a) Upheld a state law establishing a minimum wage for women

b) “The constitution does not speak of freedom of contract. It speaks of liberty and
prohibits the depravation of liberty without due process of law. Regulation
which is reasonable in relation to its subject is adopted in the interest of the
community is due process.”
c) The court focused on the unequal bargaining power of women
4) Thereafter, the Court applied extraordinarily deferential review to substantive due
process claims with respect to economic regulation leading to the conclusion that
substantive due process as a viable constitutional doctrine was dead.
C. The Lochner line of cases were rejected in 1937
D. From this point onward, the courts gave the states and congress wide latitude in regulation.
1) Substantive due process becomes a frivolous argument
2) The government has wide power to regulate the economy, and the court will give wide
deference.
4. 2 ways to view Lochner
1) The court went astray with the Lochner cases and the strict reading of the Commerce
Clause
2) The conception of the Commerce Clause and substantive due process was not too far
from that of the framers and the current level of regulation is not consistent with the
framers’ view of government
3) If this was the case – 1937 was a constitutional revolution
4) Even if everyone agrees that the constitution is out of step, there needs to be a
constitutional amendment to change it.
5) Ackerman – they amended the constitution informally. That was 60 years ago and
we’ve lived with it.
SDP has been gone until Roe v. Wade.
5. Shift in focus for the court to Equal Protection

A. US v. Carolene Products (1938, J. Stone) “Filled Milk – Footnote 4” “Minimum Rationality
+ Presumption of Constitutionality”
Shortly after the demise of Substantive Due Process, the Court decided US v. Carolene Products, a
run of the mill economic regulation case. It applied a deferential standard of review and rejected
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due process and equal protection challenges. However, in its Equal Protection discussion, it
dropped Footnote 4.
1) The court upheld a federal prohibition on the interstate shipment of filled-milk against
a due process attack
2) “The existence of facts supporting the legislative judgment is to be presumed, for
regulatory legislation affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless …it is of such a character as to preclude the
assumption that it rests upon some rational basis within the knowledge of the
legislature.”
3) This test might be characterized as a “minimum rationality” standard, coupled with a
presumption of constitutionality.
4) Most of the constitutional issues prior to 1937 had to do with business.
5) Carolene Products Footnote 4
a) If a law interferes with a fundamental right or discriminates against a discrete
and insular minority, then the court will give it a harder look.
b) Now that the court is not going to review economic regulation, they need
something to do.
c) As the court drops substantive due process as its main tool for reviewing
legislation – it picks up equal protection.
6) Footnote 4, paragraph 1
a) There may be a narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within s specific
prohibition of the Constitution, such as the 1st Amendment (Shows that there is
an exception to broad deference of state laws. The Court will be more
demanding in these instances – a guardian of textual limitations).
a) It is unnecessary to consider whether legislation which restricts those political
processes which can ordinarily be expected to bring about repeal of undesirable
legislation is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the 14th Amendment (As a general rule, we need to trust
democratic process, elected legislators obey their own constitutional oath. BUT
if there is reason to believe that the legislation appears to interfere with the
democratic process, then let’s take another look).
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a) Nor…whether similar considerations enter into review of statutes directed at

particular religious, national or racial minorities; whether prejudice against
discrete and insular minorities may be a special condition which tends to
sharply curtail the operation of the political processes ordinarily relied upon to
protect minorities (Court will take a harder look at those statutes that appear to
discriminate against minorities – shows that the political process is not working
because of prejudice, so a harder level of scrutiny is applicable).
9) The Rise of Equal Protection – Thus at the very point where the Court decided to
forsake searching judicial review as a matter of substantive due process in the economic
sphere, it laid the groundwork for an expanded judicial role under the Equal Protection
Clause in the civil liberties area.
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139
PART XIV: 14TH AMENDMENT

SUBSTANTIVE DUE PROCESS
PROTECTION OF NON-ECONOMIC RIGHTS
CONTRACEPTION & ABORTION
1. Early non-economic due process precedent

A. Meyer v. Nebraska (1923)
1) The court struck down a law prohibiting the instruction in public schools of any
language other than English
2) The 14th Amendment protects the right of the individual to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of free men.
3) This liberty may not be interfered with by legislative action, which is arbitrary without
reasonable relation to some purpose within the competency of the state to effect.
B. Pierce v. Society of Sisters (1925) -- The court struck down a state statute requiring children to
attend public schools.
2. Poe v. Ullman (1961)

A. Connecticut statute criminalized birth control
B. The court decided not to hear the case because it was not “ripe”
C. Justice Harlan’s Dissent in Poe
1) Justice Harlan’s dissent had an important impact in Griswold and Casey
2) 14th Amendment due process is not limited to the rights spelled out in the first 8
amendments to the constitution, but rather those concepts which embraces those rights
that are fundamental; which belong to citizens of all free governments
3) But judges are not free to roam where unguided speculation might take them. The court
must look to the country’s history and traditions.
4) “Liberty” is a rational continuum, which includes a freedom from all substantial
arbitrary impositions and purposeless restraints.
a) Here Justice Harlan cites Meyer and Pierce
5) Each new claim of constitutional protection must be considered against a background
of Constitutional purposes, as they have been rationally perceived and historically
developed.
6) How broad is the tradition?
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a) Harlan’s Griswold & Poe opinions stop short of recognizing a general right to
privacy for sexual relations.
b) He explicitly rejected the idea that adultery, homosexuality, fornication, and
incest were protected by the same right to privacy.
c) Harlan distinguished these from the marital relations situation by noting that
the state allows (even encourages) the marital relation, and should therefore not
be permitted to use the criminal law to regulate the intimate details of that
relation.
3. Griswold v. Connecticut (1965)

A. Bork wrote a law review article criticizing Griswold which cost him a spot on the Supreme
Court
B. Background & Facts of Griswold
1) A Connecticut statute made it a crime to use contraceptives to prevent pregnancy – you
could use it to prevent disease.
2) The court rejected a challenge to the statute in 1943 for lack of standing. Tileston. And
threw it out again in 1961. Poe v. Ullman.
3) They had a hard time getting anyone charged under the law so they could have a case
in controversy.
4) Director of Planned Parenthood was charged as an accessory under the law.
a) The court rules that the defendant had third party standing to assert the
constitutional rights of patients.
b) Requirements for 3rd party standing
(1) Relationship
(2) Obstacle to the 3rd party ever being able to assert their rights (i.e.
unlikely to be prosecuted)
(3) There must be some harm to the third party (chilling effect on married
couples)
C. Griswold discovers a constitutional right to privacy
D. How does Douglas find a right to privacy, which he relies on to invalidate the Connecticut
law?
1) Various Zones of Privacy
a) Right of association (1st)
b) Prohibition against the quartering of soldiers (3rd)
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c) Prohibitions against unreasonable searches and seizures (4th)

d) 5th Amendment self-incrimination clause (5th)
e) 9th Amendment – “The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.”
2) The constitution gives penumbras and emanations of privacy
3) Examples
a) Right of association (NAACP v. Alabama)
(1) The first amendment protects the right of association with any people
at least for the purposes of free speech and political activity
(2) This right is necessary to protect the underlying freedom of speech
b) Right to educate and the right to study
(1) Pierce v. Society of Sisters
(2) Meyer v. Nebraska
(3) These were Lochner era cases; the court had rejected both of these laws
under the right to contract.
(4) Douglas takes these two Lochner era substantive due process cases
and resurrects them from the dead and re-rationalized them in
Griswold as 1st Amendment cases.
4) Where do these Bill of Rights protections of privacy and penumbras lead Douglas?
a) Douglas puts them all together and finds a right to privacy
b) Apparently he concludes that these penumbras and emanations combine to
create an independent freestanding right to privacy that is capable of protecting
conduct that would not be protected by the specific amendments.
c) Otherwise he wouldn’t need penumbras and emanations.
5) Why does this right to privacy protect the use of contraceptives by married people?
a) Douglas emphasizes the value and tradition of marriage
b) Marriage is a noble and valued association older then the Bill of Rights
c) “Would we allow the police to search the sacred precincts of marital bedrooms
for telltale signs of contraceptives?”
E. Douglas was trying to avoid Lochner
1) He was trying to find the right in the Bill of Rights and avoid Lochner
2) Douglas and Black were New Deal judges – they didn’t want to be accused of using
Lochner
3) They were appointed to bury Lochner
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F. Goldberg’s Concurrence
1) Don’t forget the 9th Amendment
2) The enumerated right do not preclude other rights
3) The 9th Amendment is not a source of rights – but there may be rights of constitutional
importance that aren’t in the constitution.
4) Traditional Interpretation of the 9th Amendment
a) Affirms that the BOR preempt all of the other rights derived from common law,
state statutes and state constitutions, or perhaps natural law – but it does not
mean that these rights are of federal constitutional status.
b) This traditional interpretation would make the 10th Amendment redundant.
5) The language and history of the 9th Amendment reveal that the framers of the
constitution believed that there are additional fundamental rights protected from
governmental infringement, which exist alongside those fundamental rights
specifically mentioned in the first 8 amendments.
6) In determining which rights are fundamental, the court must look to the “traditions and
collective conscious of our people to determine whether a principle is o rooted there as
to be ranked as fundamental.” Issue of natural rights – don’t look to a document to
create or confirm your natural rights. This is not a lasting theory – look to
documentation to find rights.
7) Just as the 9th Amendment showed that certain rights not enumerated in the
constitution are protected from federal intrusion, the 14th Amendment should be found
to protect against state action infringing on fundamental rights.
a) Goldberg found “marital privacy” among those fundamental rights.
b) Goldberg cites Harlan’s dissent in Poe to limit the right of intimacy to married
couples
(1) The 9th Amendment support Justice Harlan’s approach
(2) If you can objectively find the right in the traditions of the country and
people – the 9th Amendment supports it. Some say 9th A. is a
recognition of natural rights thinking.
G. According to Stewart, the function of the 9th Amendment is to protect the states from the
federal government, not to allow the federal government to impose new rights on the states.
H. Harlan’s Concurrence in Griswold
1) Unlike Douglas, Harlan is ready to say that substantive due process is a valid doctrine
so he doesn’t need to find a right to privacy
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a) The fact that substantive due process has been abused doesn’t mean it’s invalid
b) Harlan’s critique of Lochner is that the court used substantive due process to
impose its own values into the constitution – but there are rights that are there.
2) The question is whether the act is a specific aspect of liberty that receives special
protection
a) Lochner got it wrong because it gave the right to contract more protection than
justified
b) But some liberties are more highly protected – these liberties must be identified
on an objective basis – includes his dissent in Poe v. Ullman as support.
(1) Look at traditions of civil rights and liberties
(2) History
(3) Values underlying our society
(4) Federalism and separation of power’s role in preserving American
freedoms
3) Applying Harlan’s Fundamental Fairness Approach to Griswold
a) Tradition has fostered marriage – hard to establish or discern traditions
b) Tradition has also fostered intimacy in marriage
c) By fostering intimacy in marriage the state established that fundamental right
d) It’s objective – you can point to the tradition BUT traditions are sometimes
defined generally and could encompass more than you want. Description of the
tradition can be narrow or abstract and general. Also hard to get consensus
behind the tradition, Court will not look to abandoned traditions.
I. White’s Concurrence
1) In White’s view the law deprived married couples of “liberty” without ever having to
address due process.
2) The law simply does not make sense – It’s goofy
3) The law is in no way rationally related to the state purpose of banning illicit sexual
relationships
4) It’s not even enforced
J. Black’s Dissent
1) Only the rights explicitly protected by a specific Bill of Rights provision are protected
by the 14thAmendment
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2) Total incorporation approach – The 14th Amendment was meant to apply the whole
Bill of Rights to the states – and the only rights constitutionally guaranteed are those
listed in the first 8 Amendments of the Bill of Rights.
4. Bork’s Critique of Griswold

A. Douglas took rights from the 1st, 3rd, 4th, and 5th Amendments – none of which covered the
case before him – and said these various “zones of privacy” created an independent right to
privacy.
B. Griswold is an unprincipled decision, both in the way it derives a new constitutional right and
in the way it fails to define that right. Do we believe in natural law and does it provide
discoverable answers?
C. Where the constitution does not embody the moral or ethical choice – the judge has no basis
other then his own values upon which to set aside the community judgment embodied in the
statute. Not sure whether the courts are capable of philosophical analysis
D. The issue of the community’s ethical and moral values are matters concluded by the passage
and enforcement of the laws in question.
5. Eisenstadt v. Baird (1972) – bridge between Griswold and Roe

A. A birth control advocate was prosecuted under a Massachusetts statute, which made it illegal
to distribute contraceptives to unmarried persons. He had given a girl a free sample of a birth
control device after a lecture.
B. The court invalidated the law under Equal Protection using rational basis with a bite. Rights
must be same for married or unmarried – rights of the individual.
C. Brennan writing for a plurality – “If the right of privacy means anything it is the right of the
individual, married or single, to be free from unwanted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget a child.” Thus,
marriage is no longer a restricting factor.
D. Importance of marriage emphasized throughout the opinion.
6. Abortion & Roe v. Wade (1973) – most controversial decision

A. Jane Roe, an unmarried pregnant woman, brought a constitutional challenge to the Texas
abortion law, which criminally prohibited abortions except to save the mother’s life. A three
judge district court invalidated the law providing the state with an appeal right to the Supreme
Court
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B. Justice Blackmun engaged in a lengthy discussion of the history of abortion regulation from
ancient times to the present, which presumably was intended to show that protecting the life
of the fetus as opposed to the health of the mother was a relatively recent justification.
C. Mootness Issue
1) Court made an exception because certain situations involve the same conduct and are
capable of repetition.
D. Possible state purposes in prohibiting abortion
1) Enforcing moral standards with respect to sexual conduct (not relied on in Roe.)
2) Protecting the health of the mother
3) Protecting the life of the fetus
E. What was the court’s constitutional basis for invalidating the restrictions on abortions?
1) Right to privacy derived from Due Process Liberty which the court previously
interpreted as protecting various activities with respect to
a) Marriage
b) Procreation
c) Contraception
d) Family relations
e) Child rearing
f) Education
2) What does Blackmun mean by “privacy”? p. 957
a) Looking at the cases he refers to, “privacy” seems to mean autonomy.
b) Presumably autonomy of personal decision-making with respect to important
life decisions
c) It seems to have little to do with secrecy or confidentiality as Rehnquist points
out
3) Is “privacy” a vague slogan?
a) Does the court decide what is to be protected and then call it privacy?
b) Rehnquist dissent
(1) “As Blackmun uses privacy it doesn’t seem to mean much.”
4) If there is a right to privacy, why does it protect abortion?
a) The right to privacy is broad enough to cover abortion
b) An unwanted pregnancy may cause medical harm to the woman both from
pregnancy and from having to care for an unwanted child, plus non-medical
distress to the woman and to others
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c) Blackmun really seems to assume the right and jump to the burden (does the
burden outweigh the state’s interest? A bigger burden does not necessarily
mean that it warrants constitutional protection and avoid the burden)
d) Does the extent of the potential harm show that the abortion decision falls within
the privacy right?
e) Should the Court first have explained why the decision implicates a
fundamental right and then described the burden to show how the state is
infringing the right?
F. Does the right to privacy mean that a person has a right to do whatever they chose with their
body?
1) No--the Court explicitly rejects such a broad right of autonomy, which might include
the right to take drugs, engage in prostitution, commit suicide, drive a motorcycle
without a helmet etc.
7. Personhood – Is a fetus a person within the 14th Amendment?

A. According to the Court, what would be the significance of concluding that the fetus is a
"person" within the meaning of the Fourteenth Amendment?
1) If the fetus is a person, then the challenge to abortion regulation collapses because the
fetus would be entitled to protection of life pursuant to the due process clause of the
Fourteenth amendment. Would have to give fetus Due Process Protection.
B. Why does Justice Blackmun believe that a fetus is not a constitutional person?
1) The term “person” would not seem to cover a fetus where it is used elsewhere in the
Constitution.
2) A common tool in textual interpretation is that if a word is used is used in several places,
it means the same thing throughout the document.
3) “Person” is used in several places where fetuses clearly would not apply.
4) The fetus generally has not been accorded legal rights at common law or by state statute,
which suggests that the framers f the 14th Amendment probably didn’t mean to protect
a fetus as a person. Counter to this would be an originalist argument.
C. Response to Blackmun’s Personhood argument
1) The trend at common law is certainly to extend greater rights to the fetus (but to what
extent, at least since Roe, is this done to deliberately attempt to undermine Roe?)
2) If the term liberty is capable of evolution, why isn't the term person capable of growth
as well (since in other contexts defenders of Roe are fond of the "living Constitution")?
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3) Even if the fetus is a person, might the state not have a compelling interest in overriding
its right to life at least where there is a risk to the mother's life or a serious risk to her
health analogizing to the privilege of self defense?
D. Was it appropriate for the Court to conclude that a fetus cannot be a constitutional person?
1) Blackmun says, “We can’t tell when life begins” – Texas’s response to that was – “We
did – democratically – get out of the way!”
2) It seems like a standard question of textual interpretation for the Court. However,
Judge Guido Calabresi argues that it was the most divisive and destructive thing the
Court could say in that it suggests that if you disagree strongly you simply are not part
of America akin to the Dred Scott Court concluding a slave is not a citizen. There are
classes of persons that do not count under the Constitution – like Dred Scott.
Personhood is a deeply moral and religious issue on which people are divided.
E. Does the Court concede too much by concluding that it can't say when life begins? Shows that
there is not principled basis for deciding this – Texas government should not have decided it.
F. Must the Court adopt some theory of life to reach any decision at all?
1) Isn't Texas saying, if you can't tell when life begins get out of our way--we can and we
have?
2) But the Court goes on to hold that no institution of government can say when life
begins.
G. Why can't the state determine when life begins according to Justice Blackmun?
1) Theologians, philosophers and scientists are in disagreement on this issue so how can
the Court or the legislatures resolve it? **BUT as a practical matter, Court seems to be
deciding this by looking to viability. Court is forced to draw a line that is differently
qualitative from the lines it normally draws – perhaps cannot be defended on more of
a moral or spiritual basis. Someone has to draw the line – but why is Court more
qualified than Texas legislature?
2) Blackmun obviously means the question of when "human" life begins since a fetus is
unquestionably life from the very outset.
H. What are the most obvious possibilities for dating the commencement of human life?
1) Conception - Texas
2) Quickening – fetus begins to move around
3) Viability – Court chooses here
4) Live Birth
Scientific v. Moral approach
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I. How does the Court resolve the issues raised by the case?
1) It adopts an analytical framework that divides the pregnancy into three trimesters and
varies the degree of regulation accordingly.
2) First--Virtually no regulation – lower mortality rates of mothers during this trimester,
so state has no valid state interest in protecting the health of the mother.
3) Second--Regulation to protect the health and safety of the mother
4) Third--Prohibition to save the fetus. The fetus’s rights are capable of outweighing the
rights of the mother. The fetus has the capability of surviving outside of the womb. The
third trimester is determined by viability of the fetus, not timing of the pregnancy.
5) In the third trimester the fetus is viable, which happens about the third trimester.
* Trimester framework criticized for being like a hospital regulation.
J. According to the Court, why does the state's interest in protecting fetal life become paramount
as of the third trimester?
1) Because at that point, the fetus is viable – meaning it can live outside of the womb.
2) Why does that matter? The Court doesn't really explain.
3) According to Ely it mistakes a definition for a syllogism--a viable fetus can live outside
of the womb, but so what? You haven’t explained what viability means.
4) Is the Court suggesting that the protected right is a right not to be pregnant as opposed
to a right not to give birth an unwanted child?
5) Does the emphasis on viability put the Court on a collision course with itself, as Justice
O'Connor later charged, in that as science pushes viability back into earlier stages of the
pregnancy, the abortion right evaporates?
K. Ely/Bork/Epstein Criticism of Roe v. Wade
1) Roe was an illegitimate decision because the court could not decide it on a principled
basis
2) Ely – The political compromise is a good one – if I were a legislator, that’s what I’d vote
for – but the court is not the right institution to decide this issue.
3) If a legislature imposes their values on people through legislation, the law can be
changed if the values change – if the court imposes its values, then value is entrenched
in the constitution – to change it, you have to amend the constitution or the court has to
overrule itself.
L. How does the Court reach the conclusion that the trimester framework is the correct
constitutional approach?
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1) It seems to engage in ad hoc tort law type interest balancing.

2) Is this type of interest balancing an inappropriate method for the Court to use to derive
intermediate or subsidiary rules from general constitutional language?
a) No--the Court engages in this type of analysis frequently.
b) The adoption of the three standards of review in the Equal Protection area is an
obvious example of an intermediate analytical framework that the Court has
worked out to provide structure to constitutional adjudication.
M. Why should ad hoc interest balancing be problematic then in the abortion context?
1) Arguably, because the Court has already conceded that this particular moral issue is
incapable of resolution on a principled basis, especially a principled basis derived from
the Constitution, and if that is so, then it is not the business of the Court to resolve. BUT
if there is no principled basis for enforcing the right, then maybe should not recognize
at all.
2) Unlike the Supreme Court, legislatures need not resolve issues on the basis of principled
rules derived from some defensible constitutionally based source; rather they may
legitimately engage in the type of ad hoc interest balancing that is at the core of the
decision in Roe v Wade.
3) The original reason the Texas legislature passed the law was to protect the mother
(1857)
a) The court is not going to make the legislature re-pass the law for a different
reason
b) The state can argue a new justification different from the original justification.
4) Might it also be argued that the nature of at least one of the interests that the Court is
balancing--the commencement of human life--is qualitatively different from, in that it
is more morally or spiritually based, then the type of interests that the Court balances
in virtually all other constitutional cases.
N. What might be said in favor of the Court's interest balancing approach in Roe? Need for
Protection?
1) If the Court doesn't attempt to strike a balance, then the legislature will be able to
completely override the woman' s constitutional right to privacy with respect to the
abortion decision.
2) Consequently, the Court must do the best it can even if its balance can be attacked as
arbitrary and unprincipled.
3) But might this suggest either that
150
a) The Court was wrong to recognize such a substantive right since it can't enforce
it in a principled manner or
b) This is a constitutionally right that exists but is not judicially enforceable (such
as would be the case with respect to the political question doctrine).
8. What is the nature of the argument that attempts to re-rationalize Roe v Wade on Equal
Protection grounds?
A. The argument tends to build on Judith Thompson's philosophical writing and has been
transformed into legal argument by Donald Regain, Laurence Tribe and others. Makes an
equality-based argument that we are under no duty to aid strangers. Fetus, who cares if it is a
person or not, is a stranger and woman should not be forced to come to its aid and save its life.
State can’t order you to save this person. Duty is imposed only on women and not on men and
thus this a gender discrimination.
B. Our law generally does not impose a duty on persons to come to the aid third parties. “Bad
Samaritanism”
C. A prohibition on abortion forces a woman to be a human incubator for nine months and thus
it imposes a duty to aid the fetus.
D. This is gender discrimination in violation of Equal Protection since it can only be imposed on
women.
1) The law places a special obligation on women it doesn’t place on men.
E. The seeming strength of the argument is that it eliminates the need to wrestle with the issue of
the beginning of human life since there is no duty to aid human beings as Thompson illustrates
with her violinist hypothetical.
F. Challenges to the argument
1) The no duty to rescue doctrine is one of the most criticized doctrines in Anglo-American
law so it seems like a strange choice for providing the foundation of important
contemporary legal right.
2) There are exceptions to the no duty rule
a) "Special relationship"
b) If the person is responsible for the victim's plight.
3) Might not both of these exceptions cover at least voluntary pregnancies?
G. Does the Equal Protection approach tend to relieve women of all responsibility for pregnancy,
and if so, is that in and of itself a problematic gender based stereotype? In other words is
Thompson's "people seeds" hypothetical misleading?
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H. Following Roe, a number of commentators tried to analyze the case and figure out what Roe
stands for.
1) Tribe – Abortion Restrictions are the result of improper religious domination of the
political process (which he later disavowed)
2) Justice Stevens was attracted to this approach in Casey
3) Tribe’s second approach – Invalidation of the Restrictive abortion laws is a legitimate
attempt to break political gridlock – Court shouldn’t have to break up political logjams.
Only a limited justification might validate eliminating existing abortion laws but does
not validate the Court coming up with their own solution. Doesn’t provide for an
affirmative judicial solution.
4) Tribe’s third approach – Equal Protection rationale
5) Professor Perry – distinction between public and private morality
6) Dean Wellington – opinion is an example of Court creating fundamental values
jurisprudence that represents public consensus – BUT there is no public consensus on
abortion otherwise it would not be so controversial. Why is it the Court’s business to
impose a consensus?
* Following Roe, the Court was relatively protective of the right recognized in Roe. It invalidated many
requirements imposed by state legislatures.
Refused to extend Roe to public funding of abortion. It rejected both Equal Protection and Due Process
challenges to state and federal legislation under which the government paid for the costs of childbirth but
not abortion arguing that a failure to pay did not unduly burden exercise of the right. See Casey below.
9. Planned Parenthood v Casey (1992)

A. During the 20 years after Roe, the court generally rejected all restrictions on abortions
B. Except in funding
1) The state will pay for childbirth, but not abortion
2) The court held that refusing to fund abortions is constitutional
3) The state has a right to take a position. It cannot deny the right to abortion, but it doesn’t
have to pay for it.
C. It appeared that there were five justices on the Court (Rehnquist, White, Scalia, Thomas and
Kennedy) prepared to overrule Roe v Wade, and a sixth (O'Connor) who might concur when
Casey was argued.
D. Apparently five justices voted to overrule Roe, Rehnquist wrote the opinion but Kennedy
changed his mind.
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E. What does the Joint Opinion (joined by Kennedy and O'Connor and apparently written by
Souter) purport to establish in Part I? Joint Opinion is key to the survival of Roe v. Wade.
1) It attempts to revise Roe v. Wade.
2) The essential holding of Roe is affirmed--a woman can choose to have an abortion prior
to viability without undue interference from the state. Remember, core of Roe v. Wade
is viability.
3) The state may prohibit abortion after viability if there are exceptions with respect to
danger to the woman's life and health.
4) Established an undue burden standard instead of strict scrutiny test
a) The standard came from the differential funding cases
b) It was O’Connor’s approach all along
c) The court had previously applied strict scrutiny to any attempt to regulate
abortion in the 1st trimester
5) The state has a legitimate interest from the outset in the health of the woman and the
life of the fetus.
F. What does the Joint Opinion establish in Part II? Court explains in more detail exactly what
the nature of the right of privacy is and where it comes from. It is a decisional autonomy right
– ability to make a decision one way or the other about something that is of extreme significance
to a woman’s body. This is a uniquely personal decision to the woman.
1) Due Process has a substantive component recognized since Mugler v Kansas.
2) Substantive Due process liberty is not limited to rights explicitly protected by the Bill of
Rights nor to the practices of the states at the time of the framing of the 14th
Amendment.
3) Such liberties are not protected only at the most specifically defined levels.
4) Harlan in Poe described this protected liberty as a rational continuum – court has to
evaluate where the particular activity falls along that continuum.
5) Protected liberty includes intimate and personal choices central to dignity and
autonomy.
6) At the heart of liberty is the right to define one's own concept of existence, meaning, the
universe and human life,
7) Abortion is fraught with consequences for others.
8) The woman's suffering is too intimate and personal for the state to insist on its own
version of her role.
153
9) Her destiny must be shaped by her own version of her spiritual imperatives and her
place in society.
G. How does the plurality in Casey apply its principles to abortion precedent in general (part IV)?
1) Viability should still remain the line at which the state's interest in protecting fetal life
should be capable of overriding the woman's right to choose.
2) No line other than viability is workable.
3) The trimester approach is not essential to Roe's holding and is abandoned.
4) The state may enact laws, which attempt to ensure that the woman's choice is thoughtful
and meaningful even before viability.
a) A state law violates liberty only if in purpose or effect it imposes an undue
burden on the woman's choice by putting a substantial obstacle in her path.
b) The woman's right is to make a decision--not to be insulated from information.
5) The state may enact regulation to further the health and safety of the woman at any
point during the pregnancy.
H. How does the plurality apply its principles to the Pennsylvania statute?
1) The medical emergency exception does not impose an undue burden as construed
(majority).
2) Informed consent provision (requiring physician to advise of risks, nature of procedure,
age of fetus and alternatives) does not impose an undue burden (plurality)
a) Akron I & Thornburgh are overruled.
b) Pennsylvania gave the mother materials that told her of the consequences to the
fetus and did not relate at all to her health.
3) The state may express its preference for childbirth.
4) A 24-hour waiting period does not seem unreasonable on this record in and on the face
challenge. Give the woman an opportunity to digest the information the state provides,
not intended to be burdensome (financial burden for those who cannot afford to stay
overnight at clinics that they traveled to).
5) Spousal notification imposes an undue burden (majority).
6) Parental consent with judicial bypass is constitutional--Hodgson and Belloti. Minor
has the opportunity to go into court and plead why parents don’t need notification
(parents are abusive and knowledge of teen pregnancy would be detrimental to well-
being of girl).
I. Stevens concurring & dissenting in Planned Parenthood v. Casey – likes things under Roe
1) The interest in potential life is not grounded in the Constitution.
154
2) The state should not be able to inject material into the woman's decision-making process
in an attempt to change her mind.
3) There is no showing that the 24-hour waiting period benefits the woman.
J. Blackmun concurring – defends Roe and has written most of the Court’s abortion opinions,
but would be receptive shifting the justification from due process privacy to equal protection
approach
1) Gender equality is implicated in that women’s bodies are conscripted into service
against their wills.
2) The trimester framework is still workable.
3) Viability is a sensible, objective biological standard.
4) The Court has invalidated most of the provisions it now upholds.
K. Why does Rehnquist (with White, Scalia & Thomas) believe that Roe v. Wade should be
overruled?
1) There is no deep historical tradition supporting the position that the abortion decision
is fundamental.
2) The Joint Opinion won't proclaim that Roe was correct when it was first decided.
3) Its not enough that people have grown used to Roe.
4) The Court shouldn't worry about appeasing one side or the other since a decision either
way will give rise to the perception that the Court yielded to pressure.
5) The Court actually rejects much of Roe by adopting the undue burden and substantial
obstacle standards.
6) Rational basis is the proper standard.
7) Rehnquist also criticized the majority for striking down the husband notification
provision
a) A husband’s interests in procreation within marriage and in the potential life of
his unborn child are certainly substantial ones.
b) The state itself has legitimate interests both in protecting these interests of the
father and in protecting the potential life of the fetus
c) Spousal notification is reasonably related to advancing those state interests.
d) The state also has a legitimate interest in promoting “the integrity of the marital
relationship.”
8) Rehnquist also brings up the debate about whether the fetus is a person
a) There is an effect on potential human life
155
b) To look “at [abortion] which is assuredly the subject of a liberty interest in

isolation of its effect on other people [is] like inquiring whether there is a liberty
interest in firing a gun where the case at hand happen to involve its discharge
into another human’s body.”
L. Why does Scalia (with Rehnquist, White & Thomas) believe that Roe should be overruled?
1) The whole argument of abortion opponents is that what the court calls the fetus and
what others call the unborn child is a human life.
a) There is no way to determine that as a legal matter
b) It’s a value judgment
2) The Constitution does not speak to the abortion decision and there is no long-standing
tradition supporting it.
3) The Court's adjectives--undue burden and substantial obstacles are simply attempts to
conceal its value judgments. Hard to tell what these are.
4) A state can only pursue its interest in potential life if it isn’t too successful.
5) The Court's conception of stare decisis is unprincipled in that it seems to be-- keep what
you like and throw away the rest.
6) The trimester framework seemed as essential to Roe as the viability standard.
7) The Court should not stand behind a wrongly decided case simply to prove that it can.
8) Scalia also says that the right should be narrowly defined.
10. Conservation & Tradition (Differing views on tradition)

A. The differing views of the authors of the joint opinion and the dissenters, particularly Scalia,
have a lasting importance.
B. Justice Scalia views tradition as consisting of a number of discrete, static practices and beliefs.
1) Tradition plays something of a “trade usages” role as in construing contracts
2) We know the word “liberty” does not include abortion because of a consistent history
of past legislation.
C. The joint opinion (like Frankfurter in Adamson and Harlan in Poe and Griswold) portrays
tradition as a subject of growth and reconsideration.
1) This view of tradition parallels the joint opinion’s concern about stare decisis (discussed
below)
2) The common law, with its deep respect for precedent, but also a historic ability to grow,
provides a model that connects both living tradition and stare decisis.
156
3) To determine the scope of “liberty”, the joint opinion relies on common law techniques
like analogy with other precedents, rather than the clear deductive logic Scalia demands
in his dissent.
11. What factors should the Court consider in deciding whether to overrule one of its precedents
according to the joint opinion? Note: the legitimacy of the Court would be undermined if it were
to overrule Roe. If the Court overruled Roe w/out a compelling reason to do so, it would be seen
as surrendering to political pressure.
A. 4 Factors – Stare decisis – doctrine says that courts should not lightly overturn precedent. Where
a constitutional decision has not proven “unworkable” and where overturning it would
damage reliance interests, stare decisis dictated that the decision should not be overturned.
1) Has the rule proved unworkable?
2) Has there been a reliance interest, which would lead to a special hardship? People like
predictability.
3) Has the doctrine been abandoned?
4) Have the underlying facts changed?
B. How does the Joint Opinion apply these principles to Roe? Apply test of stare decisis to Roe.
1) Roe is controversial but not unworkable – it works in the real world and the line of
viability is a decent enough line.
2) Reliance interests are stronger in the commercial context however two decades of
women have relied on the availability of abortion. Not your typical reliance case, could
order your affairs differently in 9 months. Reliance interest is on the right to privacy –
as established in Griswold, Roe, etc. People have assumed for 30 + years that right to
privacy is a constitutional right. The concept of taking away a constitutional right has
great impact – even if one never uses it.
3) It has not been undermined or legally abandoned.
4) Any factual change relates to the strength of the state's interest – viability is still
undefined and not been undermined.
* So, no good reason to overrule Roe.
C. How does the Joint Opinion explain the Court's decisions to overrule Plessy v Ferguson and
Lochner v New York?
1) Plessy--Brown recognized that racial segregation did stigmatize.
2) Lochner--It was proved to rest on incorrect assumptions about the capacities of
unregulated markets.
157
3) Thus both were overruled due to changed factual predicates.

D. Does this seem like an adequate explanation of either of these overrulings?
1) Wasn't Plessy overruled, at least in part, because Brown concluded that stigma mattered
and Plessy didn't really care
2) Wasn't Lochner overruled because the Court concluded that there was no acceptable
basis for treating the right to contract as a fundamental right; thus both reflected
changes in the law rather than the facts. Right to K is not so special.
12. What is the basis of the Court's legitimacy as a constitutional interpreter according to the Joint
Opinion?
A. The Court's legitimacy is derived from the people's acceptance of the Court, which is in turn
based on the understanding that the Court's decisions are based on principled justifications
grounded in the Constitution and not merely on political or social compromises.
B. Isn't the Joint Opinion's explanation of judicial legitimacy the very reason that Ely and other
critics use to challenge Roe’s legitimacy as a constitutional precedent; that is, the lack of a
principled justification derived from an accepted constitutional source?
1) Ely & Scalia – The court made a political compromise and cannot defend Roe or Casey
on principled constitutional grounds.
C. Why does the Joint Opinion believe that the Court must be cautious about overruling past
precedent?
1) The Court has created a bond with those who have relied on and obeyed its precedents.
2) Frequent overruling would cause the public to question whether the Court was really
interpreting the law or merely creating and reworking political compromises. Don’t
want to be seen as giving in to partisan pressure.
3) Once the court takes a position on something, it has an obligation to stick to it for those
people who relied on it
a) Scalia – That’s an excuse to be stubborn
13. Does the right to privacy extend to Consensual Sexual Activity – (Homosexual Relations)?
A. Bowers v. Hardwick (1986), after, one of the Court’s more controversial issues
1) The Court rejected a substantive due process privacy challenge to the application of a
Georgia sodomy statute to a homosexual act where the charges were dropped and the
plaintiff sought a declaratory judgment that the law was unconstitutional under the
right to privacy. Statue prohibits sodomy period.
158
2) The issue according to the Court was "Whether the Federal Constitution confers on
homosexuals a fundamental right to engage in sodomy? " What level do you describe
the right/how general should you be?
3) No Tradition: The Court rejected the Privacy challenge because
a) There was no tradition permitting or protecting homosexual sodomy,
b) It not related to family, marriage or procreation,
c) There is no constitutional principle protecting private sexual conduct.
4) Consequently, the rational basis standard applied and enforcing public morality is a
legitimate state interest. Rejects principle that you have the liberty to do whatever you
want as long as you don’t harm anyone else.
5) Blackmun’s & Steven’s Dissents
a) Justice Blackmun dissenting would vary the level of abstraction defining the
issue as whether there is a right to "intimate association" (which he would find)
rather than asking whether there is a right of homosexual sodomy. He argued
that the statute did not support any legitimate state interest. To have a
protective enumerated right, have to describe generally to encompass some of
the more eccentric practices.
b) Both Justices Blackmun and Stevens argued that enforcing majoritarian morality
where there was no showing of non-moral harm was an impermissible state
purpose in that it was nothing more than legislative protection of irrational
prejudice. What’s the point of this law? State might reply that under police
power to protect health, welfare, safety, and morals, this activity is wrong. Law
has a strong moral component. Is it OK that there is no tangible harm? BUT is
state trying to impose its moral prejudices on everyone else.
6) Libertarian vs. Moralist Approaches to the Regulation of Sodomy – Biggest issue
a) Bowers raises the much debated question of whether protecting against pure
moral harm is a legitimate state interest or merely majoritarian hostility.
b) In Paris Adult Theaters v Slaton (1973), the Court also seemed to accept pure
moral harm as a legitimate state end in the context of adult theater regulation.
No unsuspecting person would be harmed since so much notice as to the nature
of the films there.
c) The question of the legitimacy of prohibiting moral harm was the subject of a
famous philosophical debate between H L A Hart (Law, Liberty & Morality
(1965)) and Lord Patrick Devlin (The Enforcement of Morals (1965)).
159
(1) H.L.A. Hart (leading moral philosopher of 20th century) argued in

favor of decriminalizing sodomy in England. Echoing the libertarian
philosophy of John Stuart Mill, Hart argued that the law should not
intrude into the private sphere unless private conduct caused harm to
others; the criminal law should not seek to impose majority moral
belief upon an unwilling minority.
(2) Lord Patrick Devlin (leading judge in England) responded that law
and morality were necessarily interconnected and that many crimes
are only explicable upon grounds of moralism.
d) The real issue is how you define “Harm”
7) In retrospect, many commentators have argued that an Equal Protection challenge,
perhaps casting the argument in terms of gender discrimination might have been more
successful.
B. Romer v Evans (1996) Bloom covered after US v. Virginia
There seems to be a restructuring of the political process going on. Restructuring
cases have been limited to racial classifications and racial issues.
1) Aspen, Denver, and Boulder Colorado adopted local ordinances, which banned
discrimination in housing, employment, education, public accommodations and health
and welfare services on the basis of sexual orientation. Essentially includes sexual
orientation with race and gender.
2) The voters of Colorado passed a referendum which provided that neither the state nor
its subdivisions may enact any regulation whereby "homosexual, lesbian or bisexual
orientation, conduct practices or relationships shall…entitle any person… to claim
minority status, quota, preferences, protected status or claim discrimination” Effect is
to say local communities no longer have the power to do what they did and the state
legislature does not have this power. If you want to pass a law that protects gay and
lesbian status under Civil Rights laws, would have to amend the state constitution. –
Significant restructuring took place – decision-making moved from local level to
Constitution.
3) The state Supreme Court applied strict scrutiny and rejected the state's justifications.
4) The US Supreme Court invalidated the amendment on the ground that it could not
survive rational basis review in that the target of the ordinance was so narrow
(homosexuals – targets gays and lesbians) and the coverage was so broad (all state
benefits) that it appeared to serve no legitimate state purpose and was simply the result
160
of prejudice. Not very often does the court invalidate legislation on a rational basis
review – does so because of tailoring (totally arbitrary and irrational). But, here there
is no legitimate state purpose at all.
5) The Court noted that – points to the restructuring
a) It repealed existing laws and made the enactment of new protective laws much
more difficult.
b) It treated homosexuals different than all other groups subject to protection by
antidiscrimination laws. – Narrowness of the law
c) It applied to the private and the public sphere – too broad
d) It seemed to preclude protection of gays under even general antidiscrimination
laws preventing arbitrary discrimination against any person.
e) It provided a special disability since only homosexuals need to amend the
constitution to obtain protection.
f) It provided a broad and undifferentiated disability on a single named group.
g) It denied one group access to government protection.
6) The Court did not
a) Repudiate Bowers v Hardwick – doesn’t even mention it
b) Suggest that sexual orientation was a suspect classification – doesn’t need to
because it relies on rational basis
c) Or rely exclusively on the cases, which hold that it is unconstitutional to
restructure the political process to the detriment of racial minorities.
7) Relevant factors in the court analysis: if not all present does a case come out a different
way?
a) Narrowly targeted class
b) Breadth of coverage
c) Change in the locus of protection –move from one place of protection to another
d) Constitutional entrenchment – probably going to have to get a super majority in
order to change the rules – restructuring +
e) Apparently the result of hostility
f) Application to status rather than conduct
g) Application to a class not a classification
8) Scalia’s dissent in Romer v. Evans –perhaps this is a legitimate moral disagreement,
not out to get gays and lesbians
161
a) Scalia depicts gays as a group earning higher than average incomes and
wielding political power much greater than their tiny numbers would suggest.
The result is “special rights” legislation.
b) If it is constitutional to criminalize the conduct that defines the class (Bowers) –
surely it is constitutional for a state to enact other laws merely disfavoring
homosexual conduct.
c) The Court is once again imposing the views of the elite class on the country.
d) The referendum denies special but not general protection.
e) The principle seems to be that a group is denied equal protection if it is required
to appeal to a more general and difficult decision making process for relief
(referring to the state wide vote on the referendum as compared to the local
votes)
f) The law is an attempt to counter the geographic concentration of homosexuals
in Aspen and Boulder by removing the issue to the state level.
g) It is indistinguishable from state constitutional bans on polygamy.
h) It is a legitimate expression of moral disapproval rather than prejudice.
Significance of Romer – applies some sort of heightened equal protection review to government action
that disfavors homosexuals.
Some say that this is an easy Equal Protection case
Some say this is like a Bill of Attainder (legislative burdening of one person or an identifiable closed class
of persons), but is it a sufficiently closed class?
Restructuring of Political Process – but not a suspect class?
When the majority writes an opinion that does not have a clear hard line rule, it becomes an easy target
for a dissenter.
A lot is arguable open after this case – voters may still do some things
162
PART XV: 14TH AMENDMENT

REQUIREMENT OF STATE ACTION
State Action:
Comes out of the 14th Amendment – due process of law or deny equal protection – states were denying
protection of the law to former slaves – aimed specifically at what states were doing
14th A. and BOR requires that the state be involved in denial of rights
Does not apply to private deprivation – eg. SMU does not violate rights b/c we are a private institution
Hopwood applies to SMU, but not b/c of the 14th A. – Have to abide by b/c of Title VI – we take federal
funds
If we have what seems to be a private institution that seems to be denying a constitutional right – look for
a connection between state and private institution in order to apply equal protection
Civil Rights cases – Congress prohibited racial discrimination in inn – beyond Congressional power
Harlan dissent said we could find state action – under section 2 enforcement power of 13th A.
Decline of State Action – court began to feel uncomfortable w/ state action when faced w/ racial
discrimination cases – trying to find state action wherever it could
Happened to such an extent that some believed that state action doctrine was dead – but proved to be
inaccurate prophecy
Common Themes:
1. The performance of a public function by a private party or
1. Authorization or encouragement by the state
Court built on these theories in late 60’s
Marsh v. Alabama – (1946) – case involved a company town – owned and operated by a corporation
Court found state action and a 1st A. violation where Jehovah’s Witnesses were prohibited from
distributing literature on the streets of the town
Court concluded that running a town constituted a public function – if it looks like a duck and quacks like
a duck
Landmark – public function doctrine
Application to Shopping Centers – equivalent to a company town

Malls didn’t like people handing out literature, can’t exercise 1st A. rights here unless we let you
163
Court said like a town in Marsh but later pulled back and said that there are more differences than
similarities – people don’t live there, they just seem to and doesn’t have the same characteristics of a town
Not going to recognize a shopping mall as state action
One area where states have gone on their own in their state constitutions – thought the court got it right
at first (NY, CA)
Other leading examples of public function doctrine – white primary cases

1940s Court held that local democratic party organizations in TX could not operate private racially
discriminatory primaries since running an election was clearly a state function thus state action existed
and the 14th A. applied = running an election is a public function
Shelley v. Kramer – controversial state action case – restrictive covenant case

Covenant prevented white seller from re-selling to minorities
Other homeowners sued one for breach of K
Question of state action – is this state action or is it a private K between some people? Court found state
action but difficult to explain why – if you have to go to court to debate your property rights, then that is
state action
Court explains that the state does not have the right to stand between a willing buyer and seller and
prevent the sell on racial grounds. Problem is that there are 3 parties to the K – other property owners are
not willing
Douglas explained Shelley as Public Function Doctrine – if private parties try to engage in zoning practices,
assume zoning of the state
Tribe – as a general rule, court is opposed to restrictive covenants
Burton v. Wilmington Parking – symbiotic relationship theory

Parking garage that rented space to a coffee shop that discriminated based on race
Court emphasized the relationship between state and private entity – garage and coffee shop were related
– both profiting from each other’s location - when the 2 support each other, sufficient to show state action
Civil Rights Act of 1964 – most of the cases where the court defined state action broadly was in civil rights
cases – however, most private institutions were controlled by federal law once the act was passed, so no
more need to find broad state action
164
Court hears a lot of state action cases in Procedural Due Process – Court usually has declined to find state
action when the issue is presented (starting in early 70s)
Court wants to find good reasons why state action is needed – racial discrimination presented these good
reasons
Court has cut down public function doctrine – to prove a case today, have to show that this is the sort of
function that is traditionally and exclusively performed by the state (be careful with word exclusive) eg.
Schools, hospitals, parks – both state and private industry run these
No public function:
1. Operation of utilities
2. Settling debtor creditor disputes
3. Sponsoring Olympic team
4. School
Authorized and Encouraged – has to be compelled – unless state says that this is the way you HAVE to do
it, it is not state action
Heavy regulation – licensing is not enough, heavily regulated or subsidized is not enough, state created
monopoly – not enough to find state action
Court made this difficult to prove – only one symbiotic relationship found
Edmonson v. Leesville Concrete – Court found state action in jury selection process
BUT this test is not applied across the board – only here, case driven by the fact of racial discrimination in
judicial process
165

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SPRING 2016 CON LAW II PROFESSOR BLOOM

D RED S COTT | T HE C IVIL W AR | R ECONSTRUCTION E RA

I. SLAVERY/RACE IN THE CONSTITUTION

A. Chronology – Race and the Constitution

 1787 – Ratification of the US Constitution

B. History of Slavery and the Constitution

1. When Constitution was ratified

C. Dred Scott Case – Scott v. Sanford (1857, CJ Taney)

2. Scott v. Sanford (1857)

D. Reconstruction Era – Post-Civil War (1865-1876)

1. 13th Amendment (1865) – The Emancipation Proclamation

E. End of Reconstruction (1876)

P RIVILEGES & I MMUNITIES C LAUSE | I NCORPORATION D OCTRINE

II. THE PRIVILEGES AND IMMUNITIES CLAUSE

A. The Privileges and Immunities Clause

1. The Slaughterhouse Cases (1873, J. Miller)

(b) Justice Miller (Majority)

III. THE INCORPORATION DOCTRINE

A. Following The Slaughterhouse Cases

B. Barron v. City of Baltimore (1833)

1. Chief Justice Marshall for the majority

15 cases, because once you’ve decided that something is incorporated, it’s

C. Present Day View of Incorporation Doctrine

T HE 14 T H A MENDMENT & T HE R OAD TO B ROWN V . B OARD

IV. 14TH AMENDMENT REQUIRES STATE ACTION

A. The Civil Rights Cases (1883, J. Bradley)

B. Consequences of The Civil Rights Cases

1. The Civil Rights Cases and Plessy

C. Plessy v. Ferguson (1896, J. Brown) – “Separate But Equal” Doctrine

Modern controversy between these two theories over affirmative action.

VI. THE END OF SEPARATE BUT EQUAL

A. Initials Attacks on “Separate but Equal”

1. Missouri ex rel. Gaines v. Canada (1938)

B. Brown v. Board of Education (Brown I) (1954)

8. Sociological Studies and the Stigmatizing Effect

(a) Kenneth Clark’s social science doll studies

(7) It tried to keep things limited and non-provocative

C. Bolling v. Sharpe (1954) – Reverse Incorporation

1. How was Bolling different than Brown?

D. Brown v. Board of Education (1955) (Brown II) – The Remedial Decree

1. How should the Court tailor the remedy?

E. Pushback from the States After Brown II

1. Cooper v. Aaron (1958)

F. Developments after Brown - School Desegregation from Brown

** You’re Out of Time – States Have an Affirmative Duty to Integrate **

** The Scope of the Remedy is Dictated by the Scope of the Wrong **

** The Nature of Constitutional Adjudication **

 Traditional version of constitutional litigation in Marbury

** The Tailoring Principle **

** De facto vs. De jure Segregation **

(m) 1973 – Keyes v. School Dist. of Denver

 Discriminatory intent + substantial segregation (10%)  presumption of

 Remedy should be merely drawing racially neutral boundary lines

** Moving away from desegregation

(n) 1974 – Milliken v. Bradley - intentional discrimination by all districts required

G. Legacy of Brown v. Board of Education

1. It started the ball rolling that ended segregations  Desegregation

4. Brought Equal Protection to the forefront.

E QUAL P ROTECTION – S TANDARDS OF R EVIEW

VII. STANDARDS OF JUDICIAL REVIEW IN EQUAL PROTECTION CASES

A. Overview of Three Standards of Judicial Review

1. “Rational Basis” – the most deferential standard

(i) Immutability (unchangeable trait—race, national origin, sometimes alienage)

You’re Out of Time – States Have an Affirmative Duty to Integrate

The Scope of the Remedy is Dictated by the Scope of the Wrong

The Nature of Constitutional Adjudication

The Tailoring Principle

De facto vs. De jure Segregation