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Constitutional Law II
Valparaiso University School of Law
Levinson, Rosalie Berger

Constitutional Law II
Text: American Constitutional Law: Powers and Liberties, Massey

Exam Prep:
– Cut down this outline into easy framework of analysis, look at Best Outline
– Sample Exam Questions
– Flash Cards
– Read Emmanuel’s Exam Tips, and Gilbert’s Chapter Approach
– Copy Crunchtime Flowcharts

Exam Analysis:
First question: state action? Can be private if meets criteria

Second Question: EP (look for classification), Freedom of Expression (look for situation where government is regulating speech/conduct), or Freedom of Religion?

Green on Exam:
– 2 essay, 25 multiple choice, 4 short fact pattern
– essays à under 8 (more like 6) pages each
– do essays first. Doesn’t count
– come to some sort of conclusion and take a position (even if wrong)
– Essays: 1st will be EP, 2nd will be First amendment
o Remember state action, 13th 14th 15th amendment will be tied in.

level of scrutiny





narrowly tailored



substantially related

rational basis



I. Framework for Equal Protection Analysis (528):

State Action? Is the action in question (regulation) one taken by government, or someone acting in conjunction w/ gov.
What is the Classification?

Is there intentional wrongful discrimination (Wash. v. Davis)

i. Challenger bears burden of proving
ii. If there is only a discriminatory effect – then apply RB
iii. However, if facially discriminatory, discriminatory as applied, or discriminatory motive – then apply heightened scrutiny

What is the appropriate level of scrutiny?
Does the government action meet the level of scrutiny?

EP Clause (14th Amend) – says that no state shall deprive any person of equal protection of the laws. (14th applies to states as 5th applies to Fed)

Imposes a general restraint on the governmental use of classification.

Question 1: What is the classification?(does the classifcation affect a fundamental right – if it affects a fund. right, then go to fr anaylsis below)

How is the government drawing a distinction among people?
For a legislative classification to be considered const. suspect, the challenger must prove that the classification is purposefully discriminatory (not just mere disproportionate impact)

Three basic ways of establishing an intentional/purposeful classification:
De Jur Discrimination (Discrimination in Law)

One à Facially Discriminatory: where the classification exists on the face of the law (that is, where the law in its very terms draws a distinction among people based on a particular characteristic).

Examples: a law that prohibits blacks from serving on juries. A law that says that only those 16 and older can have driver’s licenses.

Two à Facially Neutral, but applied in a discriminatory fashion

Example: Yock Wo v. Hopkins. Directed and enforced only against a specific class.

De facto Discrimination (Discrimination in Fact)

Three à Facially Neutral but there is a discriminatory impact: Sometimes laws are facially neutral but there is a discriminatory impact to the law or discriminatory effects from its administration.

Example of FN but discrim. impact: a law that requires all police officers be at least 5’10” and 150 pounds is, on its face only a height and weight classification. Stats however show that 40% of men, but only 2% of women will meet this requirement. The result is that the law has a discriminatory impact against women in hiring for the police force
The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, demonst

essary to achieve a compelling purpose.
SS is usually fatal to the challenged law

Affirmative Action programs:

Any scheme giving preference to one racial group, use SS

SS in Affirmative Action at Public University:

A) race-conscious admissions measures will receive strict scrutiny, and thus must be narrowly tailored to achieve a compelling objective.
B) The pursuit of diversity in the student body can be a compelling objective
C) A one-student at a time evaluation in which the student’s race is merely one factor among various ones considered is sufficiently narrowly-tailored; but
D) Mechanical approaches resembling quotas, such as automatically awarding an applicant a fixed number of points towards admission based on his race, are not narrowly tailored and therefore violate equal protection.

Can Do: individualized evaluations of each applicant to determine their contribution to a diverse class, individualized review, more admissions officers, maybe points as a threshold
Can’t Do: no mechanical system, quota, administrative convenience is not an excuse (lack of admin. officers to evaluate apps)

SS and Alienage

Classifications that treat lawful resident aliens as different from citizens are subject to SS. (unlawful aliens – not given any form of heightened scrut.)
Why SS: they have no political power, xenophobia (phobic attitudes towards strangers), also to protect against stereotypes and suspicion of disloyalty b.c. of their citizenship. But, it’s not an immutable characteristic.

Need to determine