Con Law II Outline
Bhagwat
Spring 2013
I. Equal Protection
a. General Framework for Equal Protection Analysis
i. BLL: All EP cases pose the same basic question: Is the gov’t classification justified by a sufficient purpose?
1. Question 1: What is the classification?
2. Question 2: What level of scrutiny should be applied?
3. Question 3: Does the particular government action meet the level of scrutiny?
b. Race and Segregation: The History of Equal Protection
i. Slavery and the Constitution
1. State v. Post (1845): NJ constitution is amended to read: “all men are by nature free and independent, and have certain natural and unalienable rights…” Abolitionists argued that this made slavery illegal.
a. H/∆: Language used in amendments must be interpreted in light of the nature, conditions, and laws of the society during the time in which it was adopted. Had the convention wished to abolish slavery, they would have made their intentions more explicit.
i. The constitution implicitly sanctions slavery (3/5, slave trade protections, fugitive slave clause)
ii. Slavery was being phased out in NJ, abolitionists just wanted to bring this test case to see if they could accelerate things and get precedent on the books
iii. This case highlights the sometimes frequent tension between legal and moral arguments
1. Legal: Slavery was a state law issue. But also was not federally banned.
2. Moral: Aves (MA): “slavery is contrary to natural right… and repugnant to the constitution.”
a. Court: Judges must escape the influence of a strong popular opinion.
2. Dred Scott v. Sandford (1857): π travels from slave state to free federal territory to slave state, and is then sold to ∆. π sues in federal court (asserting diversity Jx) arguing that trip to a free territory made him free.
a. H/∆: (1) π not eligible for diversity Jx b/c blacks are not citizens within the meaning of Article III. (2) This property “taking” is inconsistent w/ Due Process. People cannot be dispossessed of property merely b/c they enter a particular territory. Thus, the MO compromise – which made federal territories free – is void.
i. CivPro 101: Flawed as it may have been, the analysis should have ended upon a finding of no Jx, but Taney read the tea leaves and sought a judicial solution that would end once and for all the ever growing possibility of cessation.
ii. Counter re: #2: The argument is inherently flawed b/c slaves aren’t property!
1. The plow being pushed is property. The person doing the pushing is not!
iii. Judicial Arrogance: Slavery was far too fundamental to our way of life and engrained in our society to be judicially resolved.
ii. Reconstruction (Post-Civil War Amendments)
1. Plessy v. Ferguson (1896): LA statute required RR’s to provide separate, but equal accommodations
a. H/∆: A law that authorizes or requires the separation of races on public conveyances is consistent with the 14th Amendment, unless the law is unreasonable.
i. Dissent (Harlan): “The white race… [is] the dominant race in this country… But in view of the constitution…, there is… no superior, dominant, ruling class of citizens… Our constitution is colorblind…, [and] [i]n respect of civil rights, all citizens are equal before the law.”
1. “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”
ii. NOTE: Plessy is known for establishing the “separate but equal” doctrine, but the opinion itself doesn’t require the equality of separate facilities. After Plessy, if a state required private entities to maintain separate facilities, constitutionally obligated to enforce an equality requirement as well?
1. McCabe: OK statute requires certain RR amenities. Doesn’t require access for blacks. OK argues minimal black demand make hauling separate cars for this purpose impractical.
a. UNCONSTITUTIONAL: Const. privileges are invaded when amenities furnished to whites under substantially similar circumstances are denied to blacks.
iii. Question: Per the majority, what would make a law unreasonable?
1. Berea College: College convicted of admitting white and black students (a crime in KY).
a. UPHELD: College is a corp., and thus doesn’t have all the rights of individuals.
iii. Desegregation
1. Brown v. Board I (1954): State laws require or permit black kids to be denied admission to white schools.
a. H/π: “[I]n the field of public education the doctrine of ‘separate by equal’ has no place. Separate educational facilities are inherently unequal.”
i. “To separate [black students] from others of similar age and qualifications solely [b/c] of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
ii. SCOTUS cites Sweatt for its “’qualities… incapable of objective measurement’” discussion and McLaurin for the utilization of “intangible considerations” in reaching its holding.
iii. REVIEW: Methods of statutory interpretation (i.e. plain language, cong. intent, leg. history, etc.)
iv. Interpreting Brown’s Meaning… Brown Condemns:
1. The harmful effects of Jim Crow on blacks (unlikely);
2. The invidious intent and purpose behind Jim Crow segregation, which was well known and not really hidden from anyone; -OR- the social message sent by Jim Crow that the gov’t doesn’t think blacks are equal to, and deserving of similar concern as, whites, which is wrong regardless of the empirical effects of the message on the mental health of blacks; or
3. Any official use of racial classification (this one picks up steam eventually!!!)
v. Note: Brown doesn’t overrule Plessy. As written, Brown narrowly applies only to public education.
b. States Cannot Discriminate in Public Education… How about the Federal Government?
i. Bolling v. Sharpe: Segregation in D.C. is also unconstitutional. (same day as Brown)
1. “[In] view of our decision that the [Const.] prohibits the States from maintaining racially segregated public schools, it would be unthinkable that the same [Const.] would impose a lesser duty on the Federal Government.”
a. NOTE: Court reads an EP component into 5th Amendment Due Process.
2. Brown v. Board II (1955): How are we supposed to implement the Brown I decree?
a. Remand to D.Ct.’s to weigh private and public considerations in implementing Brown.
b. Schools Boards must (1) make a “prompt and reasonable start” towards full compliance; and (2) move towards racially neutral admissions policies “with all deliberate speed.”
i. Problems With Brown II
1. If segregation is unconstitutional, the Court cannot legitimately tolerate its continuance.
2. The lack of an immediate remedy encouraged the white resistance that followed.
3. Brown II overstated the administrative difficulties of desegregation.
4. The Court acted unwisely in remitting the task of enforcement and elucidation of Brown I to the lower federal courts. Defers to various regions problems that were arguably national.
ii. Brown I and II created significant confusion about what was actually required re: desegregation.
3. “Freedom of Choice” Plans: Dismantled Post-Civil Rights Act
a. Green v. County School Board (1968): District had two segregated schools. Dividing the county in two would have segregated the schools b/c there was little residential segregation. In order to avoid the loss of federal $$$, the district allowed students to “choose” (knowing they would segregation themselves).
i. SCOTUS: “[The] burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” The board has an “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial [discrim.] would be eliminated root and branch.” “Freedom of choice” does not satisfy the const. obligation because judged by its effectiveness as a means to achieve a unitary school system, it fails.
1. TEST: Whether “the plan [promises] realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.”
a. Bhagwat: School boards must move toward removing the vestige. Readily identifiable white and black schools proves a vestige remains and must be dealt with.
4. The Problem of Race-Conscious Remedies
a. Swann v. Charlotte-Mecklenburg Board of Education (1971): Despite steps to remedy the problem, the school district is still heavily segregated. In order to deal with the problem, the district court adopts a new plan that takes race into account in drawing school zones and buses students between inner-city and suburban schools.
i. SCOTUS: Emphasizing the scope/flexibility of equitable remedies, Court states that mathematical ratios and racial assignment can be a useful starting point in fashioning relief and endorses busing as “one tool of school desegregation.” But “[the] constitutional command to desegregate [doesn’t] mean… every school in every community must always reflect that racial composition of the school system as a whole.”
1. Swann Principles
a. Constitutional violations stem from purposeful state manipulation of racial composition.
b. The scope of judicial power is limited by the scope of the constitutional violation.
c. Once a school district achieves “unitary” status, judicial intervention should cease.
b. Note: Swann was the last major desegregation decision that was entirely “southern” in its orientation. It thus ended an era begun with Brown II.
5. De Jure v. De Facto Segregation
a. De Facto = Racial separation exists, but is a product of private choice, not government policy.
b. De Jure = Racial segregation that is a product of deliberate state policies.
i. Facially race-based laws
ii. Racially neutral laws adopt with a discriminatory intent
c. Keyes v. School District No. 1 (1973): D.Ct. concludes the Denver School Board deliberately segregated schools in the Park Hill section of the city (a portion of the larger school district) via gerrymandered attendance zones and similar devices.
i. R: π’s bear the burden of showing segregation was brought about by state action. But once established with re: to a few attendance zones, all segregation w/in a school district can be assumed to be the result of a constitutional violation justifying judicial intervention.
1. De Jure must still be established. But once it is, you have more options available.
d. Milliken v. Bradley I (1974): D.Ct. holds Detroit school system deliberately segregated by board decisions. Orders desegregation plan for the system AND 53 suburb districts around Detroit.
i. R: The fact that a single school district has engaged in purposeful racial segregation does not authorize the federal courts to reach into adjacent districts. “[S]chool district lines may [not] be casually ignored or treated as a mere administrative convenience.”
e. Milliken v. Bradley II (1977): Remand from Milliken I
ic manufacturers) was not historically vulnerable. Under normal RBR, the Court is more willing to take the MN legislature’s word that the enactment of the law was motivated by environmental goals.
b. QUESTION: Can the Court create a legitimate state purpose if one exists in order to save a law?
x. Railway Express Agency v. New York: NY regulation prohibits the operation of ad vehicles but allows “business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not merely or mainly for advertising.”
1. H: There is no “all or nothing” principle embedded in the EP Clause.
a. PURPOSE: Reduce pedestrian and driver distractions.
b. LINE: Ads as a product sold v. self-interested general ads. (But what about billboards???)
i. Concurrence: “[T]here is a real difference [b/t] doing in self-interest and doing for hire… [I]t is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.”
xi. Williamson v. Lee Optical: OK statute prevents opticians from fitting old lenses into new frames or supplying new or duplicate lenses w/o an optometrist/ophthalmologist prescription. Sellers of ready-to-wear glasses were exempted.
1. H: The prohibition of the EP Clause goes no further than invidious discrimination.
a. NOTE: Whether legislative means are “rationally related” (fit) to the purported goal(s) (ends) often turns on the answer to antecedent factual questions… Will doing what they did actually lead to the end goals?
b. NEXUS: Court says the legal prohibition against opticians is rationally related to the government’s goal of only having professionals with the requisite experience and training fitting lenses.
i. BUT: What about “ready-to wear”? à “Evils in the same field may be different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others.”
xii. Rational Basis Post-Mortem
1. “Animus” v. redistribution among economic interest groups
2. “True purpose” v. acceptance of asserted governmental purpose
3. NOTE: court will look for “true purpose” only when evidence and circumstances suggest that impermissible animus might be present.
4. QUESTIONS:
a. (1) What is the appropriate standard of review? RBR or RBRWB?
b. (2) What is the classification, i.e. who benefits and who is burdened?
c. (3) Does it matter if one group is burdened and another w/ similar characteristics is not? (Lee Optical)
d. (3) What is the purported government interest, i.e. what is the purpose of the law? Is it legitimate?
e. (4) Is the Alaw rationally related the achievement of the goal?
d. Strict Scrutiny: Modern Issues Regarding Race
i. Race-Specific Classifications and the Roots of Strict Scrutiny
1. BLL: Under Strict Scrutiny, the government must prove the challenged classification is (1) narrowly tailored (2) to further a compelling governmental interest.
a. NOTE: Compelling = unusually weighty.
i. QUESTION: How should a court rank the importance of various constitutionally permissible ends?
2. Strauder v. West Virginia: WV limits jury service to white men – uses race as a proxy for jury service fitness. Strauder, a black man, is convicted of murder by a WV trial court. Claims jury law violates EP Clause.
a. H: U.S. citizens have a constitutional right to a criminal trial by a jury selected w/o racial discrimination.
i. DISTINCTION: Not about whether a black man has a right to a jury that is whole or part black, but rather whether the law can exclude a race from jury service.
ii. NOTE: States can prescribe discriminatory jury qualifications. They just can’t be racially based.
3. Korematsu v. United States: During WWII, a military commander ordered all persons of Japanese descent to evacuate the West Coast. Korematsu, a U.S. citizen of Japanese descent is convicted for failing to comply.
a. H: “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect,… and courts must subject them to the most rigid scrutiny.” BUT: Pressing public necessity may sometimes justify such restrictions (WAR TIME!).
