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Outline
Instructor: Beery
Definitions
Substantive Due Process: Prohibits the govt from infringing on fundamental constitutional liberties (rights)
Lochnerized (Lochnerizing): Inventing fundamental rights that have been created in thin air – economic (NOT fundamental),
Strict Scrutiny: Burden is w/ the State; State must prove a very compelling State interest (CSI - Save the Kids) and use narrowly
tailored means (NTM - no other way to achieve the state’s interest)
Rational Basis: Burden is w/ P; P must prove the law is NOT rationally related to a legitimate state interest
General Elements
1) If you are the Plaintiff, then go as broad as possible.
Identify the Right
2) If you are the Government, then be as narrow as possible.
1) Is it deeply rooted (1791 Fed, 1868 States) in the nation’s history and traditions?
Is the Right Fundamental? 2) Is it implied in the concept of ordered liberty?
Is it part of Fabric of our Society; Would the world crumble if we allowed this?
1) If it is fundamental, then apply Strict Scrutiny. NFC – Necessary to Further a Compelling state
Apply the Appropriate Level int
of Scrutiny 2) If NOT, then apply Rational Basis. RRL – Rationally Related to a Legitimate state interest.
3) BUT, if govt is banning conduct based on Morals alone, then No legitimate state interest.
2.1.2 Abortion
Controlling Texts
9th Amendment The enumeration of certain rights shall not be construed to deny or disparage others retained by the people
10th Amendment Powers not delegated by Constitution are reserved to the States
5th Amendment Due Process Clause of Liberty (Federal)
14th Amendment No State shall deny any person w/in jurisdiction, the equal pro of the law (State)
Definitions
Judicial Bypass: Any parental consent law must contain permission from the courts to override parental consent.
5 Constitutional Law II Outline | Microsoft
Viability: Point at which unborn child could survive w/o being in the womb w/o extraordinary intervention.
Post Viability: States can restrict up to & including a total ban, as long as exception for health &safety of mother.
Pre-Viability: Since fetus not viable, the govt does not have an interest in protecting the fetus w/o limits
Undue Burden: Places a Substl (significant, big) Obstacle in path of a woman who wants an abortion. Only Reasonable Obstacles
** ALL bans on abortion must have a mother’s safety (life or health; needs both) exception.
** Abortion is an un-enumerated fundamental right.
** A woman’s right to have control over her body w/ regard to decide if she wants to bear children. Woman has a FUNDAMENTAL
RIGHT to terminate pregnancy.
DE – Dilation & Evacuation: Both pre and post viability – Permitted.
DX – Dilation & Extraction: ALWAYS POST Viability. Breach birth, skull collapsed, then removed. PROHIBITED - NO EXCEPTION
Abortion Analysis: Do not due regular SDP analysis. 2 Steps: Determine Viability, then do Casey analysis, and Undue Burden.
General Elements
Identify Right 1) If you are the Plaintiff, then go as broad as possible
2) If you are the Government, then be as narrow as possible
Is the Right 1) Is it deeply rooted (1791 Fed, 1868 States) in the nation’s history & traditions?
Fundamental? 2) Is it implied in concept of ordered liberty? (Fabric of Society; Would world crumble if we allowed this?)
1. Informed Consent Before Getting Abortion: Reasonable b/c all med procedures require informed consent.
Apply CASEY 2. 24-hr Wait: Reasonable b/c won’t stop a woman wanting to have abortion; big decision “think overnight”
3. Parental Notification w/ Judicial Bypass for Parental neglect/abuse; reasonable as long as judicial bypass
4. Record Keeping/Reporting Rqmts: Reasonable for std record keeping b/c w/ all medical procedures. Specifics, however, are
5 Provisions: undue burden.
Rt to Abortion 5. Spousal Notification: UNDUE BURDEN. Woman’s interest outweighs a man’s. For too many women, it would be outcome
determinative of decision.
Cases
Roe v. Wade TX criminalized abortion except by med advice to save mother’s life.
(1973) Rule: Right of privacy protects a married/unmarried woman’s liberty to choose an abortion, but the right must be considered
against imp state interests in reg such as stage of pregnancy.
Analysis: Right of privacy per 14th Amdt is broad enough to encompass a woman’s decision whether to terminate her pregnancy.
Held: right of the woman is not absolute. The state can reg the woman’s actions where the law serves a “compelling state
interest.” Crt ruled in 1st trimester abortion can occur w/o state interference. After 1st trimesters, state can reg but only to
serve compelling interest of promoting health and life of the mother.
Maher v. Roe CT Welfare Dept passed a reg limitg state Medicaid benies for 1st trimester abortions to those that are “medically necessary,” a
(1977) term defined to include psychiatric care. Susan Roe (P), an indigent woman who was denied funding for an abortion under
reg brought suit against Maher (commissioner).
Rule: Roe, and CASEY, did NOT establish an unqualified constitutional right to an abortion, only a right protecting women from
unduly burdensome interference w/ her freedom to terminate a pregnancy.
Analysis: Govt does not have to help person who wants abortion. Govt is here to:
protect rights, and prevent from taking rights away from you but
govt is under no obligation to pay for, provide a facility, or assist a woman get an abortion.
Harris v Congress may deny public funds for some medical-necessary abortions, while fundg other med costs (incl carryg baby to term).
McRae (1980) Rule: Hyde Amdt’s prohibition against use of fed Medicaid funds to pay - does not violate the Constitution.
Liberty interest recognized in Roe does not prohibit a state from encouraging personal choice by subsidizing one choice and
not another.
Constitution merely prohibits a state from infringing upon a woman’s right to persnl choice by restrictg access to abortion.
Webster v Establishing Viability of a fetus > 20wks old. In 1986, Missouri enacted law that placed a several restrictions on abortions. The
Reproductive preamble of the law indicated that "the life of each human being begins at conception," and the law caused certain abortion
Hlth Srvcs, restrictions: TC ruled the law unconstitutional.
(1989) pub employees/facilities were not allowed to perform or assist abortions unless to save mother's life;
encouragement and counseling to have abortions was prohibited; and
Drs were to perform viability tests upon women in their 20th week of pregnancy.
Held: none of the challenged provisions were unconstitutional.
preamble was not applied rigidly to restrict abortions, and so did not pose a constitutional question.
Due Process Cls did not require states to enter med biz to perform abortions, nor create right to govt aid.
3rd, no case or controversy existed regarding the counseling provisions of the law.
viability testg is valid - State's interest in protecting potential life could exist before viability.
A state may prohibit the use of public facilities and public employees in performing abortions.
Plannd Planned Parenthood sued Casey, Gov of PA, for purpose of challenging 5 provisions on abortion under PA Law. CASEY expands
Parenthood of from “trimester” stages of Roe v. Wade, to “viability, pre/post viability”…more accurate & defined above. Proposed 5 Rqmts,
4 Deemed Reasonable
3 Equal Protection
Controlling Texts
14th Amendment No State shall deny any person w/in juris, the eq pro of the law (State)
5th Amendment Due Process Clause of Liberty (Federal)
History
What were drafters trying to accomplish by not specifying a group? Not allowing states to target ANY particular grp.
**Equal protect laws do not protect people, BUT groups of people against discrimination
Government has a duty to treat Similarly Situated persons Similarly.
It is okay to treat people differently, when the different treatment is based upon CONDUCT, NOT b/c of who THEY ARE.
Two different ways to analyze laws: 1. Facially, 2. As Applied,
Common Sense: Obviously laws discriminate against someone (speedg laws against speeders). Can’t discriminate against characteristic, only acts.
Definitions - Classes
Suspect: On its face, a presumptively unconstitutional distinction made between individuals on the basis of their trait being immutable and with a
history of political powerlessness. (Usually Race, Ethnicity, and Alienage)
Quasi – Suspect: A distinction of a certain group of people that falls short of quite being “of its face, a suspect class,” however, is still a higher level
than a non-suspect class. (Usually Gender and Illegitimacy)
Non-Suspect: A distinction of a certain group of people that does not satisfy qualifications of being suspect.
General Elements
Identify Class
(Group)
Is the 1. Is the Characteristic Immutable? (Non-Changeable Characteristic) Any sort of physical attribute perceived as being
Class Suspect? unchangeable, entrenched, and innate.
2. Is there a History (going on for awhile) of Political Powerlessness (minority that has been repeatedly targeted) ?
(Seems majority is always targeting someone) Carolene Products Co: Whether prejudice against discrete and insular
minorities are disadvantaged groups and should apply strict scrutiny.
Discrete: separate/identifiable
Insular: Isolated/Outside
3. Does the Characteristic have Anything to do w/ Ability to Contribute to Society (Is it arbitrary classification)?
(Being a useful citizen; hold a job; so on) Usually applies to gender/ethnicity, where you would say “no connections
with.” Some characteristics would apply, like being a homicidal maniac.
A. IF YES TO ALL AND ON IT’S FACE, THEN = SUSPECT CLASS
B. IF YES TO ALL BUT CAN’T TELL JUST BY LOOKING (falls a little short), THEN = QUASI-SUSPECT CLASS
C. IF NO, DOES NOT MEET CRITERIA, THEN = NON-SUSPECT CLASS
Apply the 1) Strict Scrutiny: Burden is on state; State must prove a very compelling state interest (Save Kids) and use narrowly
Appropriate tailored means (no other way to achieve the it’s interest)
Level of Scrutiny 2) Intermediate + (Gender): Must have exceedingly persuasive justification (Ginsburg- O’Connor),
3) Intermediate Scrutiny: State has burden and must have an argument interest that means are substantially related to
this interest that state is trying to achieve, basically it’s a good way to do it, doesn’t have to be the best way.
4) Animus - Rational Basis w/ Bite: State has burden and must prove law is rationally related to a legitimate state interest.
5) Rational Basis: Burden is on P who must prove law not rationally related to a legitimate interest.
Rational Basis w/ 1. Is the Group Politically Unpopular? (A Whipping Post Majoritarian Fear and Hostility)
Bite (Animus) 2. Do you Detect “A Bare Desire to Harm” or Irrational Fear? (Applies to Animus)
Cases
Harper v. VA Brd §173 of Virg. Constitution directed the legis to levy an annual poll tax not exceeding $1.50 on every resident 21 years of age or
of Elecs. older. Harper (P), a VA resident, brought suit alleging the poll tax violated Eq Pro Cle of 14th Amdt.
Rule: The right to vote in state elections is nowhere expressly mentioned in the Constitution, but once the franchise is
granted, lines may not be drawn which violate equal protection.
Analysis: Requiring payment to vote is an undue burden on some people, and fails the strict scrutiny analysis of the court.
When fundamental rights such as right to vote are asserted under the equal protection clause, "classifications which might
invade or restrain them must be closely scrutinized and carefully confined." A person's wealth or ability to pay tax has no
relation to his qualification as a voter.
Kramer v. Union A single man with no children who lived with his parents challenged a law that required voters in certain school board elections
Free School to either own or lease taxable property within that school district, or have children enrolled in the local schools.
District No. 15 Rule: Laws granting the voting franchise to residents on a selective basis always pose the danger of denying some citizens
any effective voice in their govt affairs which substantially affect their lives. Therefore, if a challenged law grants the right to
vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must
determine whether the conclusions are necessary to promote a compelling state interest.
Reynolds v. Sims Alabama requires itself to redistrict its legis every 10 years. Ps allege the last apportionment of the legis was based on 1900 fed
census and that the pop growth in the intervening 6 decades has now made representation against the fast-growing pops.
Under current apportionment, only 1 qtr of the pop lived in districts repd by a ma of the Senate and House of Reps.
Rule: A State must structure its elections and its state legis so its citizens are equally represented according to population.
Equal Pro requires "One - person - one - vote" for state legislative elections.
Analysis: In most instances, districts should be apportioned to allow each voter to have one, undiluted vote. If the State gives
voters in one part of the State much more weight in the vote of their legislators, the right to vote of voters in
underrepresented parts of the State has been diluted. Legislators represent people, not trees or acres.
Mobile v. Bolden Petitioner City has a 3-person council. Ea councilman runs for an open seat on the council and is elected by a majority vote,
serving a term of 4 years. Bolden, alleges that his voting rights have been adversely affected by this method of election, as
evidenced by the lack of any black persons in the city council.
Rule: Legis apportionment could violate Eq Pro, if purpose was to minimize or cancel out voting potential of minorities
Analysis: State actions that is racially neutral on its face violates 14th Amdt only if it is motivated by a discriminatory purpose.
Multi-member legis dists will only be found unconstitutional when their purpose is to minimize the voting power of racial
minorities. It is not enough to show only that minority council members were not elected in proportion to their % of the tl pop.
EXAMPLE
African American District Asian District Hispanic District
White District White District White District
White District White District White District
General Elements
Disparate Impact Must show class is Suspect or Quasi-suspect and the class was impacted differently than other classes
Intent Can be proven by circumstantial evidence but must show the law intended to discriminate against the class. Guidelines to
prove intent:
History of activity of the class or discrimination of the class/Sequence of events
No other reasonable explanation
Legislative History: Things like minutes or notes of the legislative sessions or debates
Selective Enforcement: The suspect class is targeted for enforcement in a disproportionate way
Irregular Procedure: Did client have board mtgs in the middle of the night? At someone’s house?
EVER EVER EVER Do An AS-APPLIED Attack Where You Cannot LINK THE INTENT BACK TO A SUSPECT or QUASI-SUSPECT Class. If You Do
This On A NON-SUSPECT CLASS, Then All You End Up With Is RATIONAL BASIS And ALL LAWS ARE SUBJECT TO RATIONAL BASIS.
HIGHER EDUCATION
Compelling State Diversity and Higher Education: Because generals and CEO's get their people from higher education and they want their
Interest people to know about the world. New Leaders need to manage a diverse workforce.
** High schools are not diverse b/c genls & CEO's are not recruiting from them.
Narrowly Tailored Critical Mass (Then race, ethnicity can be a plus): Where minorities feel comfortable in school, and not mere tokens, they
Means are able to make a meaningful contribution.
* You can only count ethnic/race as a plus when you have roughly = apps (it cannot be outcome determinative), if you
haven't reached critical mass. * Never use quotas (numbers) say you are trying to achieve critical mass.
EMPLOYMENT
Compelling State Passive Participation in a past and a history of discrimination: (Don't have to show that your client was actively
Interest discriminated against, just passive discrimination = knew it was happening and did nothing to stop it.)
** Public Entity knew there was private discrimination going on but did nothing.
Narrowly Tailored SCOTUS has never addressed this in regards to employment
Means Lower courts have said this can be a "Plus" on an application
3.1.5 Gender
Cases
Frontiero v. Sharron Frontiero, asserts that a military practice that automatically allowed wives of male Ofcs to be considered as
Richardson dependents and thus receive rights of dependents, but rqrd female Ofcs to actually prove that their husbands were
dependent, in order to get benefits is an unconstitutional gender-based classification.
Rule: Classifications based on Sex are inherently suspect & are subject to strict judicial scrutiny
3.1.6 Alienage
History
Strict Scrutiny Applies UNLESS:
1) A State is excluding citizens from governmental function
- Ex: Judges (Judicial), Police (Executive), Legislature, etc
2) Congress is the one making the rules = RATIONAL BASIS
- Art I Section 8: List of Congressional powers to regulate includes immigration
Cases
Sugarman v. A NY statute excluded aliens from all govt civil service jobs filled by competitive exam. It did not apply to higher office
Dougall positions, such as elected offices, offices filed by the governor or offices filled by legislative appointment. The purpose of
the statute was to retain civil servants free of competing obligations to other powers. The underlying premise for the
statute was that civil servants participate in the formation and execution of govt policy and that divided loyalty might
impair a civil servant's judgment or the public's confidence in her judgment.
Rule: Classifications based on alienage are subject to close judicial (strict) scrutiny
Analysis: The State's broad prohibition of the employment of aliens applies to many positions with respect to which the
State's proffered justification has little, if any relationship. At the same time, the prohibition has no application at all to
positions that would seem naturally to fall within the State's asserted purpose.
** State-based govt function is defined as: "Officers who participate directly in the formulation, execution, or review (3
branches) of broad public policy perform functions that go to the heart of representative govt."
Ambach v. NY ed statutes forbid certification of any prospective teacher eligible for US citizenship, but refuses to seek naturalization.
Norwick Rule: Education, like the police power, represents a "fundamental obligation of state govt," and thus allows rational
distinctions based on alienage.
Analysis: Court states that unequivocal bond that citizenship establishes makes it a rational distinguishing trait for purposes
of a state exercising its govtl functions. The rule "bars from teaching only those aliens who demonstrate their
unwillingness to obtain US citizenship," making it narrowly tailored enough to suit the Court.
** Teachers do, but lawyers do NOT fulfill a "fundamental obligation of state govt"
3.1.8 Illegitimacy
Cases
Clark v. Jeter In 1983, Cherlyn Clark (P) filed a support claim on behalf of her daughter born out of wedlock. She named Gene
Jeter as her daughter's father. Court ordered blood tests showing Jeter was father. Jeter moved to dismiss based
on 6 year statute of limitations for paternity actions. P claimed statute was unconstitutional under EPC.
Rule: Under heightened scrutiny, a statute is unconstitutional when not substantially related to the State's
interest in avoiding the litigation of stale or fraud claims.
Analysis: Illegitimacy = intermediate scrutiny
4.1.1 Incitement
General Elements
1. Advocacy Must be to persude another - Must ask another person(s) to do something
- IF NOT ASKING, THEN NOT ADVOCATING
2. Imminent Condtn Precedent is Time Displacement, therefore NOT IMMINENT. Condtn defeats imminent.
Ex: "If..continue..only then.."
3. Lawless "Illegal thing you are asking them to do"
4. Reasonably Likely to Incite Look to both Speaker AND Audience: Age, Education, Level of Sophistication...etc.
/Induce Illegal Activity Example: A Professor encourages to throw rocks at cars on side of 301.
- Law Student Class v. Elementary Students Class
Cases
Cases
Miller v. Miller (D) conducted a mass mailing campaign to advertise the sale of illustrated adult books. D's conviction was specifically
CA based on his conduct in causing 5 unsolicited advertising brochures to be sent through the mail.
Rule: THE MILLER TEST
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a
whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and
3. Whether the work, taken as a whole, lacks Serious LITERARY, ARTISTIC, POLITICAL, or SCIENTIFIC value (SLAPS test)
Analysis: Average person = weed out the extremes
Applying contemporary = Organic View; Not Originalist
Community Stds = What is my community? Court gives some lee-way stating never anything bigger than State
Taken as a whole = Not 1 scene, Not 1 image, Not 1 page
Appeal to Prurient Interest = We don't mean good old fashion sex. unusual, unwholesome, & abnormal.
If Lacks SLAPS value, then obscene.
Ample Alternative Channels: Law has to specifically define the obscenity therefore statute itself has to be obscene.
** KNOW FOR EXAM: New England/Midwestern = Region; Not Community
NY v. Ferber Ferber was a storeowner who sold material showing children under the age of 16 engaged in sexual activities. Use of
(Child Porn children in pornographic materials has increased over the years causing the introduction of many state laws prohibiting
Case) activities.
Rule: The prohibition on the sale and distribution of child pornography is presumed unconstitutional even if the material
is not obscene.
Analysis: Protection of children is a legitimate state interest that outweighs an adult's freedom to enjoy sexually explicit
material. Has to be a minor, not just look like one, in order to have presumption.
Cases
Chaplinsky v. New NH Statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on
Hampshire any street or public place or calling him by any derisive name. Chaplinsky called a City Marshal a "God Damn Racketeer"
and "a damned fascist" in a public place and was therefore arrested and convicted under the statute.
Rule: Imminent "Fighting words" are not entitled to protection under the First Amendment.
Analysis: "Fighting Words" are intended to inflict harm; bona-fide criticisms are intended to communicate ideas.
Another difference may lie in the differing likely effects of each:
"fighting words" are likely to provoke the average person to violence while bona fide criticisms are not.
Cohen v. CA Cohen was observed in the LA County Courthouse, in the corridor outside the municipal court, wearing a jacket bearing the
(Offensive Words) words "Fuck the Draft." At the time, there were women and children present in the area. After he was arrested, he
testified that he wore the jacket as a means of informing the public of the depth of his feelings against the Vietnam War
and the draft. D did not engage in, or threaten to engage in, nor did anyone as the result of his conduct in fact commit or
threaten to commit in any act of violence. D did not make any loud or unusual noise, nor was there any evidence that he
uttered any sound prior to his arrest.
Rule: Emotive speech that is used to get attention is protected by the 1st Amdt.
Cases
US v. O'Brien O'Brien and 3 companions burned their Selective Service regis certifis on the steps of the S Boston Courthouse.
Immediately after the burning, D stated to FBI agents that he had burned his regis certif b/c of his beliefs, knowing that
he was violating fed law.
Rule: A governmental reg of expressive conduct is sufficiently justified if it:
1) If it furthers an important or substantial governmental interest;
2) If the governmental interest is unrelated to the suppression of free expression AND
3) If the incidental restriction on alleged 1st Amendment constitutional freedoms is no greater than is essential to
the furtherance of that interest (narrowly tailored).
Analysis: Although the initial purpose of the draft card is to notify, it serves many other purposes as well. These purposes
would be defeated if the card were to be mutilated or destroyed.
Texas v. Johnson Respondent demonstrated by burning a US Flag in front of the Dallas City Hall.
Message Intended, Message Received (quite obvious)
1. Is it unprotected?
A) Incitement? No, not advocating anything
B) Fighting Words? No
C) Obscene: Most American would say yes, but legally no.
So, not only speech but it is protected.
2. Time, Place, Manner? No, because that's not even at issue here.
3. O'Brien Test:
A) Content Neutral? It is not, then no need to continue O'Brien. Once court determines not CN, then we are therefore
OUTSIDE O'BRIEN
SO what happens to all government excuses? Gone.
Why not CN? Statute doesn't make it a crime to burn or destroy objects. Only a crime if knowing that it'll offend
someone that will see or discover it. "Law criminalizes offensive messages" disrespectful of "monuments, burial
places, and flags."
Analysis: Since court says CN, then just need to survive 2 prongs. If not CN, then flicked outside of framework and
applying REAL Strict Scrutiny! Stricken down. Facial challenge to law.
** COULD BE FINAL ESSAY!
** How to fix statute? Take out all the offending stuff and make sure it couldn't even be interpreted that way. Keep it
to public property. Example: Illegal to damage in any way to damage/deface a flag or monument on public property.
** If only speech, then no O'Brien test b/c written/spoken words are pure speech, can't use O'Brien.
Cases
New York Times v. The US sought to enjoin the NY Times and Washington Post from publishing contents of a confidential study about
US the Government's decision-making with regards to Vietnam Policy.
Rule: Govt bears heavy burden of showing sufficient justification for the imposition of a prior restraint on speech.
An injunction that seeks to proactively quash speech is impermissible, unless imminent harm can be proven.
Analysis: Any prior restraint of info is necessarily an abrogation of the constitutionally protected rights of the press.
Branzburg v. Branzburg observed making of hashish and was later called before a grand jury to implicate persons involved. 2 of
Hayes the other Petitioners, Pappas & Caldwell, both were Black Panthers and were later called to a fed grand jury to
discuss their findings. All 3 reporters refused to participate in the grand juries claiming a newsman's privilege
Rule: Requirg reporters to disclose confidential info to grand juries serves a "compelling" state interest and does
not violate the 1st Admt. If a reporter, you have no privilege, & if subpoenaed to testify, then you must.
Times Film v. Chicago Chicago law requires submission of all motion pictures for examination or censorship prior to their public exhibition
and forbids their exhibition unless they meet certain standards. P applied for a permit to exhibit a certain motion
picture and tendered required license fee, but permit was denied solely b/c P refused to submit film for exam
Definitions
School Sponsored v. Non-Sponsored Speech
School Sponsored: Sporting Events, School Assemblies, Yearbooks are sponsored by the school itself (the name of the school is on it), therefore it is
the school's business what is said
- They get leeway in restricting what may or may not be said
Non-Sponsored Speech: Not stamped with the imprimatur (approval) of the school, and is subject to some scrutiny, but is not allowed to be
completely banned.
- The setting and maturity levels in a school are different, and have a different level of scrutiny applied.
Cases
Hazelwood v. The advanced journalism class was responsible for writing the school paper. Usually 4,500 copies were distributed to the
Kuhlmeier school and members of the community. The school principal always reviewed the page proofs prior to the printing. On this
occasion, he objected to two of the articles scheduled for inclusion and decided to print the paper without the articles.
One described the pregnancy of students and included specific sexual content while the other discussed the impact of
divorce on students in the school. The parents of the students did not consent to this article.
Rule: School can pertain, punish, control it as long as school's action is rationally related to legitimate pedagogical
(educational) interest.
Bethel v. Fraser The Respondent, a student at Bethel High School, made a speech in front of an assembly that was considered to be lewd. In
reaction to the speech, he was suspended from school. Respondent brought suit to enjoin the punishment, stating that his
speech was given within his 1st Amendment constitutional rights.
Rule: Court says punishing the kid was making a point and rationally related to a pedagogical interest, which Fraser
torpedoed the lesson plan.
The Infamous Speech: "I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm -- but most
of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If
necessary, he'll take an issue and nail it to the wall. He doesn't attacks things in spurts -- he drives hard, pushing, and
pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of
you. So, vote for Jeff for ASB Vice President -- he'll never come between you and the best our high school can be."
Tinker v. In protest of the Vietnam War, several students wore black armbands to school. No uniform at school so not school -
Des Moines Schools sponsored, so less leeway. School adopted a policy that any student wearing the bands would be suspended for causing
disruption.
Rule: 2 Ways School can win the banned speech argument for non-sponsored speech.
1) Material and Substantial Disturbance in Discipline (Breach of peace or interfering with what you're doing, violence,
riots, fights) OR
2) Material and Substantial Disruption in the Ability of the School to operate as a School ("The Algebra Test" Can you still
teach algebra? Swastika shirt example)
Cases
Employment Division Smith (Respondent) sought unemployment compensation benefits after he was fired from his job for using peyote in a
v. religious ceremony.
Smith Rule: The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law
of general applicability on the ground that the law makes criminal conduct that his religion prescribes.
Analysis: The Free Exercise Clause -
general applicability - OK
prohibits govt interference w/ religious beliefs, but genlly does not prohibit reg of conduct. If the govt action regs
genl conduct, including religious conduct it is valid.
does not require religious exemption from generally applicable govt regs that happen to burden religious conduct.
Hobbie Hobbie, a recent Sabbatarian convert was discharged by her employer after she refused to work on Saturdays.
v. Commission disqualified P from receipt of unemployment benefits.
Unemployment Rule: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or
where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial
Appeals Commission
pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.
Analysis: State's qualification of P forced her to choose between following the precepts of her religion and forfeiting her
Built - In Hearings: SS
benefits, or abandoning a precept of her religion in order to continue working. The State's legislative ultimatum is an
undue burden upon the free exercise of religion that fails under STRICT SCRUTINY.
Church of Lukumi Santeria is a religion that calls for animal sacrifices to keep the spirits alive. In response to the news that a Santeria
Babalu Aye church was to be built in the city of Hialeah, the city council held an emergency public session in order to pass 3 laws
v. outlawing any animal sacrifices in connection with Santeria rituals. All ordinances were passed by a unanimous vote.
Violations were punishable by fines and jail time.
City of Hialeah
Rule: A law burdening religious practice that is not neutral or not of general application must undergo the most
rigorous of scrutiny (STRICT SCRUTINY).
Built - In Exceptions: SS
Analysis: Where the govt restricts only conduct protected by 1st Amdt of Constitution and fails to enact feasible
measures to restrict other conduct producing substl harm or alleged harm of the same sort, the interest given in
justification of restriction is not compelling.
** If want to restrict animal sacrifices as a matter of public safety, then just put sanitary instructions and regs...take
religion out of the picture. Common Sense.