Constitutional Law II; Halpin; Fall 2010
Chapter 5: Civil Rights & Civil Liberties
A. State Action Doctrine
a. State Action Doctrine – The Constitution applies only to the government at all levels … Federal, State, and Local
b. HOWEVER …The Constitution does NOT apply to Private Conduct
i. The 2 Exceptions:
1. The Public Functions Exception – a private entity must comply with the government if it is performing a task that has been traditionally & exclusively done by the government … the Constitution applies
a. Running a town … A state violates the 1st and 14th Amendments by imposing criminal liability on a person who distributes religious literature on the premises of a company-owned town without permission of the town’s management (Marsh 1946)
i. There is NO state action when a private utility company terminates the services of a customer, meaning the federal government can NOT regulate the company (Jackson 1974)
b. Elections – running an election for governmental elections (even local elections), is a tasks that has been traditionally and exclusively done by the government … There is State Action (Must Comply w/ Constitution)
c. Private Property Used for Public Purposes … There is State Action (Must Comply w/ Constitution)
i. HOWEVER … The Public Functions Doctrine does NOT apply to shopping mall, which actually means the shopping malls may discriminate against certain races or freedoms of speech if they wanted to L
2. The Entanglement Exception – private conduct must comply with the Constitution if the government authorizes, encourages, or assists unconstitutional (private) conduct … there is state action (the Constitution applies)
a. Judicial and Law Enforcement Actions:
i. A party in a civil action may NOT exercise peremptory challenges on the basis of race (Edmondson 1991)
ii. Courts can NOT enforce racially restricted covenants (a contract where members of a neighborhood withholds property from blacks and Jews) … this would enforce discrimination
b. Government Regulations – the Entanglement Exception applies when the government licenses or regulates a private activity
i. There is state action if the government leases premises to a restaurant that racially discriminates
ii. HOWEVER … There is NOT state action when a private school (which is over 99% funded by the government) fires a teacher because of her speech … government finance is NOT enough for finding a state action
iii. HOWEVER … There is NOT state action when the NCAAP orders the suspension of a basketball coach at a state university, because the NCAAP is a private entity and does NOT have to provide Due Process state action
3. HOWEVER … Over time, the courts have been doing away with both the Public Functions –AND- the Entanglement Exceptions
4. FOR THE EXAM … Only use the State Action Doctrine Analysis for Private Conduct and NOT Public Conduct (such as a police officer beating Rodney King)
Chapter 7: Equal Protection
A. Equal Protection Analysis
a. Equal Protection Challenge – applies whenever the government draws a distinction between people
b. The 3 Equal Protection Analysis Questions:
i. What is the Classification? … (Factually, how is the government or a certain law drawing a distinction between people?)
ii. What is the Level of Scrutiny? … (Define Level of Scrutiny that it falls under –AND- why it does NOT fall under the other levels)
iii. Does the government’s action meet the level of scrutiny? … (Yes/No and why?)
B. The 3 Levels of Scrutiny
a. Rational Basis Review à Intermediate Scrutiny à Strict Scrutiny
C. Rational Basis Test
a. What is the classification?
i. (Give facts of a distinction between people)
b. What is the Level of Scrutiny?
i. Rational Basis Review – applies whenever the government discriminates against individuals NOT based on their race or gender
1. Age discrimination
2. Disability discrimination
3. Wealth discrimination
4. Sexual orientation discrimination
5. Economic Regulation discrimination
ii. Under Rational Basis Review, a discriminating law will be upheld if it is rationally related to a legitimate government purpose
c. Does the law or government’s action meet Rational Basis Review?
i. Means / Ends = The discriminating law must reasonably or rationally achieve / a conceivable or legitimate government purpose
1. The government’s actual purpose is NOT necessary … only a conceivable or legitimate purpose is required to persuade the court
2. The challenger has the burden of proof (since gov. usually wins)
ii. Rational Basis with a “Bite” – if a Rational Basis Review reveals that the government’s purpose is “irrationally prejudice” … the discriminating law will be deemed unconstitutional
1. Colorado’s Amendment 2 violates the Equal Protection Clause because it singles out a class of citizens … homosexuals’ legal status (Romer)
2. A federal law that denies food stamps to any household containing an individual unrelated to any other member of the household violates the Equal Protection Clause (Moreno)
3. Laws impacting the mentally retarded are NOT to be given heightened constitutional scrutiny (Cleburne)
iii. Economic Regulations– state that laws regulating bu
. Means / Ends = The law must substantially achieve / an important government purpose
1. The government’s purpose must be more than conceivable or legitimate … an actual purpose is required to persuade the court
2. The government has the burden of proof
ii. Gender Discrimination is allowed if there is an “exceedingly persuasive justification” (U.S. v. Virginia)
i. Affirmative Action for Women – whenever the government benefits women … Intermediate Scrutiny is used to remedy past discrimination and differences in opportunities
a. Social Security Act uses a different formula to calculate wage-benefits for women, because there has been a long history of wage-discrimination against women and the formula is meant to compensate women for such past discrimination (Califano)
b. A statute that discriminates against men must meet the same equal protection analysis as statues which discriminate against women (Hogan)
c. HOWEVER … Gender Classifications benefiting women based on –Role Stereotypes– are NOT allowed
a. Whenever “dependant & weak” wives can be awarded alimony, but NOT “strong & independent” husbands
b. Denying a man from entering Nursing School, since only women can be a “nurse”
E. Strict Scrutiny
a. What is the classification?
i. (Give facts of a distinction between people)
ii. The 2 Types of Race Classification:
1. Race Classification on the Face of the Laws – refer to laws that draw a distinction between races in its very terms … “Blacks can NOT serve on juries”
2. Facially Race Neutral Laws – refer to laws that demonstrate both discriminatory purpose –AND- discriminatory impact
a. “The purpose and result of the law is to disadvantage blacks” (without actually stating it in the law)
i. A municipal at-large electoral system that has discriminatory effect but does NOT have discriminatory purpose does NOT violate the 14th and 5th Amendment (City of Mobile)
b. HOWEVER … If the law demonstrates only discriminatory purpose … Rational Basis Review is used (instead of Strict Scrutiny, since both discriminatory purpose and impact is required for that)
