EQUAL PROTECTION.. 2
State Action. 2
Levels of Scrutiny. 4
Fundamental Rights. 8
Congressional Enforcement of the Reconstruction Amendments. 9
Free expression of ideas. 10
Speech and Expression. 10
Speech Regulation. 11
Governmental Purposes and Goals. 11
Freedom of religion.. 17
The Free Exercise Clause. 17
The Establishment Clause. 17
I. 14th Amendment- “No state shall make or enforce any law which shall … deny any person within its jurisdiction of the equal protection of the laws”
a. This guarantees that similarly situated people will be treated similarly.
b. Remember: The Constitution generally does not guarantee anything affirmative; it merely guarantees that the gov’t will not do certain things.
II. The state gov’ts are bound by the 14th amendment and the federal gov’t is bound by the 5th. Both of the amendments are read the same for these purposes.
III. Equal Protection Analysis
a. Is there a state action?
b. Identify the classes of people affected by the law or implicated fundamental right
c. Assign a level of scrutiny
d. Assign purpose(s) and goal(s) for the law
e. Use the level of scrutiny to examine the nexusbetween the classification and the goal
The initial inquiry/issue for every question (except the 13th Amendment which will apply directly to individuals) will be whether a state actor exists.
I. State Action will exist where either:
a. The gov’t itself is acting in some capacity;
b. A private entity is performing a public function (Public Function Theory); or
c. A private entity is sufficiently involved with the state (Significant State Involvement Theory)
II. Public Function Theory
a. If the powers and acts are “traditionally and exclusively reserved to the state,” then the actor will be considered to be engaging in a public function.
b. Acts that do not trigger scrutiny:
i. Running a shopping center (Hugdens);
ii. A regulated activity (Jackson); or
iii. Resolving private disputes under State law (Flagg Bros.).
c. It is rare to incur liability under the Public Function Theory because we generally do not see corporations running towns (Marsh), parks (Newton), or elections (Terry).
i. Hint: Use argument by analogy for cases to determine public function.
III. Significant State Involvement Theory
a. State action exists where there is:
i. Interdependence/Symbiosis (Burton);
1. The relationship is mutually beneficial
ii. Joint participation (Lugar);
1. The state and the private party act together
iii. “Entwinement” (Brentwood Academy);
1. Analyzing all of the facts t
ii. Immutable Traits- a fixed, unchangeable quality (like race) is dubious. This sometimes may be relevant to legitimate state objectives, but more often is not.
iii. History of Pervasive Discrimination- When a particular group sharing an immutable trait has received purposefully unequal treatment for a long period it is difficult to escape the conclusion that some prejudice is at the heart of that history. By itself, however, this factor may be unimportant.
iv. Perennial Lack of Access to Political Power- Perennial lack of power coupled with a lack of any access to that power is suspicious. Mere lack of access to political power is not the issue (felons).
1. Discrete (affecting a particular class alone) and insular (isolated and separated from society) minority status (Caroline)
v. Any Stigmatizing Effects of Classification Based on the Immutability of the Trait- ethical or moral equality (telling people where to sit).
The Limited Relevance of the Immutable Trait to Gov’t Decision-Making- rational equality (race is almost never relevant/appropriate for legislation)