DPC
What is substantive due process (SDP)?
A way to make rights that aren't mentioned in the Constitution fundamental
What is the equal protection clause? Who does it apply to?
prevents states from denying any person within their jurisdiction the equal protection of the laws
EPC applies to all people not just citizens
What are the types of classes for EPC? What level of scrutiny do they get?
Suspect = SS
Quasi-suspect = IR
Non-suspect = RBR
What are suspect classes? What about Quasi and non-suspect?
Suspect
- Race, National origin, alienage
- immutable traits
Quasi-suspect
- Gender
Non-suspect
- mental capacity, age, wealth
To encourage the growth of its population, a state established a program that awarded $1,000 to the parents of each child born within the state, provided that at the time of the child's birth the mother and father of the newborn were citizens of the United States.
A family are aliens who are permanent residents of the United States and have resided in the state for three years.
When their first child was born two months ago, they applied for and were denied the $1,000 award by state officials on the sole ground that they are not citizens of the United States. The family filed suit in federal court contending that their exclusion from the award program was unconstitutional. Assume no federal statute addresses this question.
In this case, the court should hold that the exclusion of aliens from the state award program is...
unconstitutional, because strict scrutiny governs judicial review of such state classifications based on alienage, and the state cannot demonstrate that this classification is necessary to advance a compelling state interest.
How do you determine if a right is fundamental? What are the other theories?
If right is deeply rooted in the nation's history and traditions
Other theories
- Emerging awareness
acknowledges that fundamental rights can emerge over time based on societal changes and increased recognition of rights, even if they were not historically recognized
- Most specific traditions
looks for fundamental rights in the most specific historical traditions and practices
- Careful description
describe the asserted right narrowly and precisely, ensuring it is grounded in historical practices and traditions
- Functional Equivalent
look to the functions served by recognized fundamental rights and extend them to modern equivalents that serve similar social and legal purposes
- Sauter's Common law
builds upon precedent, using a common law methodology to determine whether a right is fundamental
- Harlan's rational continuum
fundamental rights are seen as part of a rational continuum, evolving in a way that reflects societal progress
- Douglas's Penumbras
Fundamental rights can be inferred from the “penumbras” or emanations of specific constitutional provisions. These emanations, taken together, create a broader, implied right, such as the right to privacy
What are RBR with bite and IR with bite? What type of classes get these levels?
RBR with bite = Apply Rational basis review but really look at the gov't interest to see if it's really legitimate
- applies to laws regarding sexual orientation
IR with bite = Apply intermediate scrutiny, but the government must demonstrate an ‘exceedingly persuasive justification’ for that action. The justification must be genuine, not hypothesized or invented post hoc in response to litigation.
- Applies to gender class that is facially neutral
What does it mean to be a non-race-based law?
gov't doesn't single out a particular racial group for different treatment on its face but may have a discriminatory purpose and/or a disproportionate impact
How do you prove a discriminatory purpose?
can infer discriminatory purpose from an extremely stark pattern of discriminatory effects (Yick wo)
absent pattern, need direct proof that a discriminatory purpose was the motivating factor (historical background of the decision, a departure from normal procedures, legislative history)
A state law provides that only U.S. citizens may serve as jurors in the state courts of that state. A woman who is a lawful resident alien and who has resided in the state for many years was summoned for jury duty in a state court. The woman's name was selected from a list of potential jurors that was compiled from a comprehensive list of local residents. She was disqualified from service solely because she is not a U.S. citizen.
The woman has filed an action for a declaratory judgment that the state law is unconstitutional.
Who should prevail in this action?
The state should prevail because the law excluding aliens from jury service is rationally related to the state's legitimate interest in ensuring that only citizens perform functions that are central to self-government.
Although strict scrutiny generally applies to state laws that discriminate against aliens, rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for offiice or serving on a jury.
What are examples of fundamental rights and what level of scrutiny do they get?
What about non-fundamental rights?
Fundamental rights => SS
- Right to marry
- Right to procreate
- Right to contraceptives
- Right to raise your child
Non-fundamental =>RBR
- Abortion
- Right to assisted suicide
What are the levels of scrutiny and their tests? Who bares the burden in each?
SS= Restriction must be narrowly tailored to serve a compelling gov't interest (BOP- Gov't)
IR= Restriction must be substantially related to important gov't interest (BOP- Gov't)
RBR= Restriction must be rationally related to a legitimate gov't interest (BOP- Individuals)
How do you analyze race-based classifications?
Race-based
- all racial classifications => SS
- doesn't matter if they are facially neutral or benefit/disadvantage minorities
- must show discrimination in relevant market not just societal
How do you analyze gender-specific classifications? What about non-gender-specific classifications?
Gender-specific classifications
1. That disadvantage/benefit a gender => IR
- Struck down if based on archaic & overbroad generalizations or stereotype
- Upheld if based on "real biological" differences or if to remedy past discrimination
2. That are facially neutral =>IR
- Struck down if separate but NOT equal
- Upheld if they are equal (bathrooms/locker rooms, sports teams)
Non-gender-specific classifications
1. With a disproportionate impact and discriminatory purpose => IR
2. With disproportionate impact => RBR
A state law allocates funding for public libraries based on the population of each community, using general state revenues derived primarily from sales and income taxes. The law further allows individual communities to supplement library funding through locally levied property taxes. As a result, there is a significant disparity in library resources among communities, with wealthier areas offering substantially better-funded libraries than poorer ones.
Residents of a low-income community have challenged the law, claiming that it violates the Fourteenth Amendment's Equal Protection Clause.
Which of the following best states the burden of persuasion/proof in this action?
A) The state must demonstrate that the law is necessary to vindicate a compelling state interest.
B) The state must demonstrate that the law is rationally related to a legitimate state interest.
C) The residents must demonstrate that the law is not rationally related to any legitimate state interest.
D) The residents must demonstrate that the law is not substantially related to an important state interest.
B) The state must demonstrate that the law is rationally related to a legitimate state interest.
Disparities in funding due to wealth or income do not implicate a suspect classification or fundamental right, so rational basis review applies. Under this standard, the state only needs to show that the law is rationally related to a legitimate state interest, such as allocating resources based on population and allowing local control over supplemental funding.
What is the rule regarding obstacles/funding and fundamental rights?
The government doesn’t have to remove obstacles it didn’t create, but can’t create obstacles/undue burden
ex: Maher v. Roe:
- The Court held that the government could choose to fund childbirth through Medicaid but not elective abortions. The government's decision to encourage childbirth over abortion through the allocation of public funds does not create an obstacle to abortion, as the right to an abortion does not include an entitlement to government funding.
How do you analyze a DPC/EPC problem?
1. Is there gov't action?
2. Does the law involve a fundamental right or classification?
3. Determine if the right is fundamental (SDP analysis)
4. Determine what type of classification (Suspect, quasi, non-suspect)
4.5 Go through EPC analysis
5. If not fundamental or suspect determine if liberty interest involved (gestalt)
How does the EPC apply to non-citizens?
applies to all people within a state's jurisdiction, including non-citizens
-consider whether the action relates to the political function of government or the distribution of economic benefits
- Can't economically discriminate against non-citizens but can discriminate politically/sovereign functions
- Classifications related to the political function of government are more likely to be upheld, while classifications concerning the distribution of economic benefits are typically subject to strict scrutiny
What is the standard of review for affirmative action based on race? What is the interest?
Strict scrutiny
Compelling interests - only 2
1. remediating specific, identified instances of past discrimination that violated the Constitution or a statute (Parents Involved)
2. Avoid imminent and serious risks to human safety in prisons, such as a race riot (Johnson v. California)
A city enacted an ordinance requiring individuals to obtain a license to provide tutoring services to children under the age of 12 for pay. City officials justified the ordinance by stating that the licensing process would ensure that tutors are qualified and that children receive appropriate educational support. To receive a license, applicants must complete 15 hours of instruction in educational methods, pass a basic knowledge exam, and pay a $150 fee. The ordinance disproportionately affects women, as female tutors far outnumber male tutors in the city.
Is the ordinance constitutional?
Yes, because it is rationally related to a legitimate government interest in promoting child education
Although the ordinance disproportionately affects women, a disparate impact by itself does not trigger strict or heightened scrutiny unless there is proof of discriminatory intent. Gender-based disparate impacts generally fall under rational basis review when there is no intentional discrimination, and ensuring the quality of child education is a legitimate government interest. The licensing process is rationally related to this goal.
The government only needs to show that the regulation is rationally related to a legitimate interest, such as ensuring the quality of education for children. Even if the ordinance disproportionately impacts certain groups, a disparate impact alone is insufficient to trigger heightened scrutiny unless there is evidence of intentional discrimination.
What is Kat's husband's approach to SDP?
Get rid of it!!!
Re-enact PIC, only allow rights that are explicit in the constitution
If the right is not fundamental and the class of people is not suspect, how can the court give it a heightened scrutiny level?
Adopt gestalt approach:
- the right isn't fundamental but is important and the class is not suspect but should get some protection, combine the right and the class and create a core liberty interest
Ex: Illegal immigrants going to school (not suspect and not fundamental)
How do you analyze a non-race-based law?
Non-Race-based
- If the law is non-race-based but has a discriminatory purpose OR a disproportionate impact => RBR
- If the law is non-race-based but has a discriminatory purpose AND a disproportionate impact => SS
i. Can be as enacted, as applied, or by direct proof
How can an Affirmative action program be narrowly tailored?
1. Flexible and Individualized Review
- The program must evaluate each applicant holistically
2. Defined End Point
- the program must include a mechanism for periodic review and articulated plans to phase out the use of race in admissions when diversity goals are met
3. Minimal Harm to Other Groups
- The use of race should not unduly harm members of other racial groups by excluding them solely based on their race
4. Avoidance of Racial Balancing
-the program cannot aim for proportional representation or racial balancing
5. Race-Neutral Alternatives
- The program must demonstrate that no workable race-neutral alternatives exist to achieve diversity
A state law provides that only U.S. citizens may serve as jurors in the state courts of that state. A woman who is a lawful resident alien and who has resided in the state for many years was summoned for jury duty in a state court. The woman's name was selected from a list of potential jurors that was compiled from a comprehensive list of local residents. She was disqualified from service solely because she is not a U.S. citizen.
The woman has filed an action for a declaratory judgment that the state law is unconstitutional.
Who should prevail in this action?
The state, because a state may limit to U.S. citizens functions that are an integral part of the process of self-government.