Con Law III

  1. 14th Amendment Basics.
  1. Textual Analysis.
  1. Equal protection, § 1. Source of law on impermissible discrimination.
  2. Due process clause. Source of law: substantive due process, implied fundamental rights.
  3. Generally: state action requirement, must be govt actor (not as important).
  1. Themes and Methodology.
  1. 14th is the study of lessons learned from mistakes of the past. How remedy our mistakes as a society.
  2. How interpret?
  1. Intent of framers? If disregard, what left with?
  2. Tradition?
  3. Judges apply own moral judgments?
  1. HisH
  1. Equal Protection Clause: The Early Years.
  1. Strauder v W Va. (1879; 595). First case invalidate law EPC.
  1. Statute forbade AA serving juries. D convicted murder all-white jury.
  2. W Va argues jury service is burden not a right.
  1. From D's side, right at issue. Surrogate standing?
  2. Jurors—burden/benefit (civil participation).
  1. Right not to have members his race excluded jury pool. Must be in pool, but OK have all white jury.
  2. Purpose 14th protect ex-slaves. §1 doesn't say anything race. 15th talks about race. If not an ex slave, no protection? Minorities in general.
  3. What if town ordinance says ceremonial marshal has to be white? AA sues under EPC? No. "Protection" remedial, not ceremonial opportunity. Way framers though of EPC. Criminal laws, tort laws, not schools, ceremony. Could sue under Strauder.
  4. Court: state may prescribe juror qualifications: citizenship, age, education.
  1. Literacy test? At the time, 80% blacks illiterate. OK then.
  2. What if ban AA because 80% illiterate, valid statistical genealization? Doesn’t address white illiterate.
  3. While accurate, still brands people as inferior. Reinforces effects past discrimination (formerly illegal educate slaves).
  1. Race as paradigm what 14th concerned about, matter of history not text. Later question, how much other areas like AA paradigm.
  1. The Anti-Precedents.
  1. Segregation.
  1. After reconstruction abandoned, move to Jim Crow regime. Explicit segregation by law. Ignore 15th amendment—poll taxes, literacy test, violence to stop AA voters.
  2. Traditional? Some historical evidence result of political opportunism and economic conditions 1890s. Not deep-rooted.
  1. Plessy. (1896; 513) The First Great Anti-Precedent.
  1. Court can't change society, if segregation stamps minority with badge of inferiority, not because of law, because of society.
  2. Plessy 7/8 white. RR didn't like law, test case.
  3. Court's action consistent w/precedents, lwr courts, not surprising.
  4. Technically consistent w/Strauder. Social milieu v. legal protex.
  1. Korematsu. (1944; 597)Anti-precedent.
  1. Japanese internment. Relied on idea disloyalty/sabotage among Japanese group, mostly fabricated by military.
  2. Not AA. Treated as case of racial discrimination w/o discussion.
  3. Jackson concurrence—at the time internment, OK (emergency), but when S Ct heard case, clear not needed. Don't uphold now.
  4. All legal restrictions curtail civil rights single racial group immediately suspect. STRICT SCRUTINY.

(i)Still good law (this point only). Black calls "rigid."

(ii)Must satisfy compelling state interest—national security. End prob OK, means not.

(iii)If can't show good evidence for restriction, suspect what's going on is prejudice.

  1. Broad Points/General Concerns.
  1. Racial classifications stigmatize. Strauder.
  2. If see race signaled out, suspect something wrong with process, just based on prejudice. Korematsu (lip service; not holding).
  3. Ruritanean wiretap hypo. Worried terrorism, small/closely-defined ethnic community. No other way prevent violence. Can you tap them?
  1. First, challenge FBI on no other way.
  2. Interest at stake (wiretap rather than internment). No. Law is same no matter interment or golf courses at stake.
  3. Suspects identified by ethnic group all the time, racial profiling?
  4. Probably allow wiretap. Push as hard as can to narrow, then allow.
  1. Strict scrutiny: ends have to be very important (necessary to promote compelling state interest), and have to have close fit means-ends.

III.Modern Equal Protection.

  1. Lead up to Brown.
  1. Historical Background.
  1. (1) Migration of AA to Northern city; (2) WWII gave bad name to racial discrimination; (3) segregation tool of USSR propaganda.
  2. NAACP litigation campaign to end segregation.
  1. Gaines. (1938; 519). Univ Mo law school, if AA wanted to go, pay for tuition in out of state school, separate but equal.
  2. Sweat v Painter (1950; 522). Univ TX Law all white. Separate school (response to Gaines), court said not equal: reputation, faculty, etc.
  3. After Sweat could you establish separate but equal facility? Each case try to approximate equality, struck down.
  4. Evolution doctrine. Brown may be seen as part of common law evolution.
  1. Brown. (1954; 523). Fixed point con law.
  1. What makes segregation unconstitutional? Opinion basically points out original understanding against them, OK.
  1. Text alone, equal? Too broad.
  2. Intent of framers? Against them, thought school segregation OK. Asked for re-briefing intent framers, then not discussed, clear against them. Level of generality.

(i)Framers want racial equality generally, though segregation consistent w/that, now know that is wrong.

(ii)Wrote in general terms, language allows new interpretation. If wanted segregation forever, used those words.

(iii)But original intent about pol decision made at that time.

(iv)But why freeze 1868?

  1. Or go up a level of generality. Framers concerned about justice. But then constitution becomes document promote good society.
  2. Concept equal protection changed. We know now that separate but equal doesn't work, why ignore that wisdom.

(i)Like common law. S likes. Treats orig intent as precedent.

(ii)We know they were wrong about facts, not about political decision. Don't perpetuate ancient decision facts.

  1. Brown focuses on importance education.
  1. Realpolitik. Diplomacy. Outcome inflammatory enough.
  2. Per curiams afterward reflect political reality.
  3. Picked battles, cautious mixed marriage laws, etc.
  1. Social science justification, different outcome if studies different? No.
  2. Justifications. Again paradigm case, Jim Crow South.
  1. Stigma. [Statistical generalizations still stigma].
  2. Prejudice: defect in way decision made.
  3. Carolene Product: defect in political process. Not presume constitutional if (1) explicit guarantee bill of rights; (2) situations political process questionable (1P1V); (3) cases involving discrete (easily identified) and insular (unable to organize) minorities.
  1. CRS attack on Brown. Better response to Plessy, allow separate but equal, but must be really equal.
  1. Bolling v Sharp. (1954; 526) DC Schools, companion case, but under 5th. Discrimination so unjustifiable, banned even though no EPC under 5th.
  2. Post-Brown Segregation Cases.
  1. Struggle how far to go in a remedy.
  2. Brown II (1955; p 530). Brown bound only parties before court. Everyone else free to litigate district by district.
  3. Little real integration until CRA 1964.
  1. Title VII. Gave authority Feds cut off funding, forced integration.
  2. Doesn't mean Brown ineffectual.
  1. Griffin (1964; 535). VA schools closed, white to private. Court said unconstitutional. State allowed private discrimination to take place, extreme rationale. Later cases may tie up better.
  2. Green (1968; 538). Freedom of choice plan, segregation remained in practice. Unconstitutional. Why?
  1. Looks like Brown, basically same thing, outcome same.
  2. Still have black school/white school, problem.
  1. Swann v C-M (1971; 539). Kids assigned by geography, still segregation. If past discrimination, much leeway craft remedy d ct ordered busing OK.
  1. Permits results-oriented remedy once violation found.
  2. Companion case: NC v Swann—stuck down NC statute said couldn’t take race into account.
  3. Spread to North? Could get court order North if show race discrimination in system in past. Hard to prove.
  4. Must take race into account some times to be constitutional?
  5. Busing plan require kids go very far from home, maybe not const.
  1. Keyes (1973; 543).
  1. Powell concurrence: show discrimination part of district, can get at all district. Distinguishing district past problems and not.
  2. Pretty hands on. If past segregation, schools must show tried to integrate. No matter where school is.
  1. Milliken (1974; 548). End of road. Symbolism only post-Brown?
  1. Redistricting problems b/c of white flight? If Detroit discriminated remedy limited to Detroit. Must show suburbs also discriminated.
  2. No interdistricting means court getting out of business.
  1. Fordice. (1992; 555).
  1. All black Univ in Miss. Race-neutral admissions? All black school not necess tool oppression. But state skewing choices applicants, so race-neutral admissions not cool. Really free choice?
  2. Cannot leave policies in place previously used to discriminate without educational justification.
  3. Eliminating discrimination does not require restrict student choice.
  1. Modern EPC Cases.
  1. Palmore v Sidoti. (1984; 1028). Stigma.
  1. Couple divorced, Mom custody, Mom marries AA man. Father sues for custody. Judge awards to father, child interracial parents tough, best interest of child go w/dad. Bigoted people problem.
  2. S Ct reversed unanimously. Can't give in to race prejudice.
  3. But interest child? Wrong? But determined by racist outsiders?
  1. What happens if race corresponds valid factor? Proxy argument.

(i)Post-Korematsu NEVER upheld discrimination against minority even w/good statistical foundation. One exception: Martinez-Fuerte, hasn't gone anywhere.

(ii)But courts tend to dodge Q, like Palmore.

(iii)Very heightened standard, minority classification only if avoid something horrible, terrorism.

(iv)What about suspect descriptions? Analytically racial profiling? System hasn't confronted.

  1. Washington v Davis. (1976; 610)
  1. Facts. Qualifying test police department (verbal) result in de facto discrimination against AA?
  2. Why go this route (and not Green, Keyes).

(i)Rejection far-reaching Brown.

(ii)Worried court interference; judicial activism. Lots of practices disproportionate effects (tax, welfare).

  1. Doctrine: (1) Explicit race classification NG. SS. (2) NG if neutral and product of discriminatoryintent. SS. (3) If neutral, no discriminatory intent, no basis challenge. RB.
  2. Disparate impact on its own not unconstitutional.
  3. Steps:

(i)Step 1: Korematsu/Brown race class v. rigid scrutiny.

(ii)Step 2: Preventing Shams. Once have rule explicit class NG, must have rule prevent shams/gerrymanders.

(A)Yick Wo. (1886; 616) Laundry operation forbidden w/o variance, gave variance to white operators, not Chinese.

(B)Gomillion (618; 1960). 28-sided district.

(iii)Step 3: Title VII CRA 1964 forbade discrimination in employment (explicit and pretextual).

(A)Griggs. (nib) Employer not require Diploma if DQ mostly blacks, unless business necessity.

(B)W v D rejects Griggs? OK unless discriminatory intent.

  1. W v D and three justifications: (1) effects/stigma; (2) prejudice/stereotype, (3) Carolene Products.

(i)Doesn’t go far eliminate stigma. Could double-stigmatize in that allow law continue. If worried primarily effects, W v D doesn’t really address.

(ii)Doesn’t satisfy CP. How analysis deliberations lawmakers make up for lack political power?

(iii)W v D OK about process not outcome [prejudice].

  1. McClesky. (1987; 623). Statistical analysis showed race victim factored heavily death penalty. Accept statistical discrepancy but not con violation. Remedy?
  2. Armstrong (nib) black Ds crack cocaine harsher penalties (white powder). Const? Perverse, helps black communities.
  1. Discriminatory intent.
  1. (1) Statistical discrimination still bad. Peremptory challenge cases. (2) extend to civil actors, not state action?; (3) intent discrim basis race, what do we mean by race? Latino jurors?
  2. How ascertain intent collective body? Hypo p 628 playground.
  3. Theoretical point: Flip burden and benefit races, if answer different, that is discriminatory intent. Selective sympathy (society not bothered way burdens fall).
  4. Closest definition in case, Feeney (1979; 625), decided "because of" not merely "in spite of."
  5. Malice not test because lots of Jim Crow not b/c malice.
  6. Intent NG, lots of justifications same outcome. S thinks purpose important, process issue.
  7. Paradigm discriminatory intent. Yick Wo. (1) repeated decisions; (2) confined limited number of factors. Harder if single decision or larger number factors. Show pattern.
  1. Loving. (1967; 635). Stigma.
  1. 2nd post-Brown (Naim punted 1956, political capital problem).
  2. Felony for white to marry colored and vice-versa. Not equal (minorities marry w/i OK). Why unconstitutional?

6.W v D, de facto discrimination OK. At least not a Q for courts.

  1. Race-Based Affirmative Action.
  1. Adarand (1995; 672) says official standard same irrespective benefits white/black, principle of symmetry. Strict scrutiny. Narrowly tailored compelling state interest.
  1. Facts: minority preferences highway subK in KS.
  2. But strict scrutiny as burdens minorities automatically unconst.
  3. Failure in fact, not failure in fact. Different. Why not say benefit/burden minorities different. Matters whose ox gored.
  4. Only interest justify AffA: remedying past discrimination (so far). Maybe diversity in education (but S Ct hasn't ruled).
  5. SS. Measure narrowly-tailored to right end, OK. Close means-ends fit, important end.
  6. 5th A, federal action. Bolling justifies functionally not textually..
  1. Croson. (1989; 652) Victims discrimination probably moved on (couldn't get jobs), new entrants benefit law. City may remedy past private discrimination, but must be identified and confined to a particular sector.
  1. Facts: minority sub K provision construction K Richmond. Reversal upheld (but with roadmap).
  2. Impulse that can't divvy up the pie by race (but why not on race alone?).
  3. ID past discrimination, AA can remedy but not Aleut.
  1. Narrow-tailoring? Close look at Factors: (1) some kind of fact-finding; (2) consideration alternatives (+ termination point); (3) close consideration numerical goal (why 20% w/waivers etc.). Cases evidence intensive. Courts must inquire purpose of measure.
  2. Doctrinal anomalies.
  1. Why different from of strict scrutiny.
  2. Why only acceptable end remedy for past discrimination?

(i)Measures may not be remedial in that same individuals not getting benefits today that were burdened yesterday.

(ii)Large societal problem, why not remedy? Limitless. Using past discrimination as a limit.

  1. Private company, want to remedy past discrimination, what do? Recruit to counteract bad PR. How get rid of middle-management discrimination problem. Quota? Maybe sends signal to the discriminators. May be over-inclusive, but costs hiring non-worthy minorities less than benefits.
  2. Minic. Hire operatives to infiltrate street gangs, hire particular races. That's OK, but limited amount of hiring involved.
  1. What if hire to patrol particular neighborhoods, hire that race? Entire bureaucracy?
  2. Narrowly-tailored? Rational? Courts looking for limits.
  1. What if want to give AA benefit, automatic exemption jury service? If court doesn’t look at AffA statutes, what do? Of course not constitutional, Strauder all over again.
  2. If Unversity tries to award scholarships disadvantage, everything but race (and race correlates w/ disadvantage), isn't that discrimination against race. If single out race as thing that may not be taken into account, singling it out as the only thing that is being taken into account.
  1. Rational Basis Review.
  1. Emerged after New Deal, way of upholding legislation.
  2. Most recent doctrine: Any reasonably conceivable state of facts that could provide a rational basis for the classification. Beach. Reasonable but not arbitrary. Royster Guano.
  3. Paradigm case strike down: classification dependent color of eyes or day of week born. Kooky. If justification justifies eye color, you lose.
  4. Beazer. NY Transit authority disqualify methadone users unless on a program for a year (then case-by-case).
  1. Any reason to think not going to be rational? But not DQ drunks.
  2. Is drug addiction race-like? Concern about prejudice?
  3. Q about judgment legislature/judgment court?
  1. Lee Optical. (1955; 572). Can't make glasses unless optometrist, etc., or under prescription. Lobbying deal. Court pulls out the cliches to sustain.
  2. Jackson in Railway Express. Equal protection rule good, interest favoring people coming up w/own solution.
  3. Cleburne. (1985; 577) Zoning prevented group homes mentally ill. Race-like? RB but invalidated.
  1. Court said not a suspect classification.
  2. But then applied heightened standard. Says antipathy but preserve such laws all the time. What is the line? Intuition? Status/action?
  1. Moreno. (1973; 585) Food stamps for hippies. Strikes down, animus.
  2. Doctrine 3 possibilities:
  1. Take a hard look at factual basis of decision. Beazer.
  2. Root out interest group legislation. Not shocking if court went here, but hasn't. If just interest group not a state interest? Hard for courts to parse good/bad legislation.
  3. Invalidation laws based mere antipathy. Cleburne, Marino. Must have category of ends NG, or all OK. Statute justifies statute.
  1. Fritz. (1980; 579). Any legitimate purpose behind the law OK.
  1. Court not hold legislature to the professed purpose, not inquire into actual purpose. Law must be justified according to A rational purpose, but not the one actually back there.
  2. Mistake to assume legislation has clear purpose.
  1. Gender.
  1. Bradwell (1873; 697) is antiprecedent. Held ♀ primary role wife/mother (nurturer), state may regulate to protect that.
  2. Reed. (1971; 699) 1st case strike down gender, purported to apply RB.
  1. Estate law, decide who serves as administrator, gender tiebreaker.
  2. Not irrational, good idea to have a tie breaker.
  3. Really applying higher standard of review.
  1. Craig. (1976; 703).
  1. Intm scrutiny: "substantially related to an important state interest."
  2. Near beer 18 ♀; 21 ♂. Challenged by ♂.
  3. Who laws harming?

(i)Rely on stereotype ♀ "good." Paternalism.

(ii)Surface burdens ♂, but reinforces gender stereotype.

(iii)♂ don't get special protection EPC.

  1. Rehnquist thinks substantially related important state interest—drunk driving, ♂ 10 times more likely to drink/drive.
  2. Statistics? Would allow ban outright, why not ban to one group (♂ 18-21). Majority doesn’t want to rely on statistics.
  3. Candid opinion: not allowing generalization based on certain characteristics even if statistically valid.
  1. Basis finding hostility to gender discrimination in EPC?
  1. Framers didn’t think getting into this. Original understanding?
  2. Same arguments level of generality, language provisions, etc.
  1. Similarities race: (1) possible have law benefits that actually burdens and (2) statistical generalization doesn’t justify using characteristic as proxy. Why if statistical generalization accurate, still can't use?
  2. Doctrine: intermediate scrutiny. Substantially related to an important state objective. VMI adds "exceedingly persuasive justification." Hard to see how fit together, not exactly the same.
  1. But some things not OK even if related important state objective.
  2. Background: if perpetuates arcane stereotype, not OK.
  3. After the fact justifications not OK (VMI). Has to be something in the legislation justifies (on reenactment OK).
  4. But, separate but equal probably OK.
  1. Biological classifications? Geduldig (1974; 702) statute didn't distinguish ♀/♂ but treated pregnancy different, gender? Hard conceptual problem.
  2. Hogan (1982; 712). ♂ excluded nursing school. Unconstitutional. Stereotype about ♀ what bothers court.
  3. Weinberger (1975; 701). Widowed mom not dad receive benefits earn spouse. Widows dependent not widowers? Probably true. But not a real difference, difference created by society, court worried about perpetuation.
  4. Archaic and overbroad generalizations. Long history, justification no longer applies. Stereotype of ♀ as dependent.
  5. VMI. (1996; S160).
  1. Ginsburg suggests all generalizations gender NG, but backs away.
  2. Justification must be genuine (not hypothesized or invented post hoc in response to litigation). Must not rely on overbroad generalizations about gender. Must not create/perpetuate legal, social, economic inferiority women.
  3. VMI argued ♀ make impossible for ♂ to have this education. Hard. Court not trying to ban single-sex education.
  4. Court didn't like VMI's post-hoc rationalization what already in existence. VMI didn't change. That is the problem.
  5. Also experience US military academies, gender integration OK.
  6. VMI justifications: diversity education (not clear disadvantaging women promotes); maintaining adversarial education (no reason maintaining this form education important). Neither good intermediate scrutiny, Rehnquist concurrence.
  7. Justify single sex school?

(i)Focus education characteristics.