Little Known Works of Famous Authors




Amber Whillock – Spring 2007 (Denning)



I          Generally

A)      Two Due Process Clauses

1)       Fourteenth Amendment – Applies to States

“Nor shall any state deprive any person of life, liberty, or property, without due process of law.”


2)       Fifth Amendment – Applies to Federal Government

“No person shall . . . be deprived of life, liberty, or property, without due process of law.”


B)      Types of Due Process

1)       Procedural Due Process – Guarantee of certain procedures

2)       Substantive Due Process – Guarantee of certain substantive rights


C)      State Action Doctrine

To have a violation of the Due Process Clause, there must be some type of government action, either federal or state.  Private action is not sufficient to claim a violation of the Due Process Clause. 


II        Procedural Due Process


A)      Denning’s Procedural Due Process Analysis

1)        What interests are recognized?

§          Life

§          Property

§         Liberty


2)       What process is due?  How much is enough? 


B)      Specific v. Legislative Action

Government action directed at a specific person involves due process.  Alternatively, legislative action directed at a class of people does NOT involve due process.  There must be specific government action to invoke due process. 


C)      Defining the Interests that are Protected

What constitutes a life, liberty, or property interest? Life is pretty self-explanatory, but what about property and liberty interests?


1)       Property


§         Phase 1 – Benefits as Privileges

This test has now been abandoned.


o        Government benefits were treated as privileges rather than rights. 

o        The Court used the common law to define liberty or property interests.  There was no common law property right in government employment or continued receipt of government benefits, so procedural due process was not applicable to deprivations of these interests. 

o        Government employment and benefits were treated as “privileges” that the government could suspend at its pleasure rather than individual rights that may be divested only after affording the individual due process. 


§         Phase 2 – Subjective Test

This test has now been abandoned. 


o        Professor Charles Reich

Reich argued in his book The New Property that important statutory entitlements ought to be regarded as property interests to which procedural due process attaches. 


o        Goldberg v. Kelly (1970)

?          This was the high-water mark of property interests.  Court held that any government benefit that was extremely important to its recipient was a form of liberty or property to which due process attached.  The importance of the interest was determined as a matter of constitutional law. 

?          Focus was on the subjective importance of the right. 

?          Court held that a welfare recipient was entitled to an evidentiary hearing before the termination of benefits because the benefits are a matter of statutory entitlement for persons qualified to receive them and their continued receipt was of the utmost importance to the affected individual.  Elimination of the benefits would deprive the claimant of “the very means to live.” 

?          This principle was quickly extended to apply to claims made by government employees, licensees, students, prisoners, debtors, etc. 


o        Bell v. Burson (1971)

?          Georgia law automatically suspended the driver’s license of any uninsured motorist who failed to post a security bond to cover the claimed damages in accidents in which he was a party. 

?          Court held the law was invalid because it failed to provide any form of pre-deprivation hearing.

?          Driver’s licenses were held to be a property right because the licenses were “essential in the pursuit of a livelihood” and suspension adjudicates important interests of the licensees.


§         Phase 3 – Reference to State Law

This is the current test used. 


o        Bishop v. Wood (1976)

?          Current View of the law

?          The sufficiency of the claim of entitled to a protected property interest must be decided by reference to state law.


o        Board of Regents v. Roth (1972) – No Property Interest

?          Roth hired as university professor for one-year term with no tenure or other rights to continued employment.  University told Roth that he would not be rehired, gave no explanation, and treated decision as final. 

?          Court said Roth had no property or liberty interest at stake.  Court says you have to look at the nature of the interest, NOT to the weight of the interest.  To have property interest in a government benefit, one must have more than a unilateral expectation of it, he must have a legitimate claim of entitlement to it.

?           Property interests are NOT created by the Constitution.  They are created and are defined by existing rules and understandings that stem from an independent source such as state law. 


o        Perry v. Sindermann (1972) – Property Interest May Exist

?          University professor was not rehired when the fixed term of his contract expired.  However, here the professor claimed the University had created a de facto tenure system by informing its faculty that the school wishes each faculty member to feel that he has permanent tenure so long as his teaching services are satisfactory and he displays a cooperative attitude. 

?          Court held that the professor raised a triable issue of fact as to whether he had a protected property interest in continued employment. 

?          Court held that a contract was NOT necessary for there to be a property right.  Court says that a person might be able to show from the circumstances and other relevant facts that he has a legitimate claim of entitlement to job tenure. 


o        Arnett v. Kennedy (1974)

?          Plurality Opinion

?          Former federal employee challenged the procedures by which he was dismissed.

?          Plurality of 3 justices reasoned that where the legislation conferring the substantive right also sets out the procedural mechanism for enforcing that right, the two cannot be separated. 

?          The employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.  Where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant must take the bitter with the sweet. 

?          This view was specifically rejected by the Court in Loudermill.





o        Cleveland Board of Education v. Loudermill (1984)


?          FACTS

Loudermill was hired by the Cleveland Board of Education as a security guard.  Ohio law provided that he could only be terminated for cause (good behavior and efficient service; for malfeasance, misfeasance, or nonfeasance in office) and gave procedures for review and for termination.  The law provided for review of the termination AFTER being fired, but NO procedures for responding to the charge BEFORE the termination.  Loudermill was fired according to the procedures provided by Ohio law and had no opportunity to respond to the charge or challenge the dismissal before he was fired.  He sought review afterwards, but the termination was upheld. 


?          HOLDING

Loudermill had a property interest in not being discharged without cause.  Therefore he was entitled to due process. 


?          ANALYSIS

The property interest and the procedures necessary for compliance with due process are two separate issues.  The property interest itself is created by independent sources, such as state law (here the Ohio law), BUT the property interest CANNOT be defined by the procedures provided for its deprivation.  States confer the rights, and the Constitution provides what process is necessary before that right can be deprived. 


?          IMPORTANCE

The right and the procedures are separate.  State law determines the right, federal constitutional law determines the adequacy of the procedures required for deprivation. 



Rehnquist says Arnett plurality got it right.  The statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which the legislature designated for the determination of cause. 

The procedures are part of the property right. 


o        Castle Rock v. Gonzalez (2005)

?          Jessica Gonzalez had a restraining order against her husband.  Her husband abducted her three daughters in violation of the restraining order.  Jessica repeatedly requested police to enforce the restraining order, but the police failed to act for 10 hours and the husband murdered the three daughters. 

?          Jessica claimed that the police had deprived her of a property interest without affording her due process because they have never heard nor seriously entertained her request to enforce and protect her interests in the restraining order. 

?          Court said that to have a property interest in a benefit, a person must have more than a mere unilateral expectation, but must have a legitimate claim of entitlement.

?          Court said that whether what state law has given constitutes a property interest for purposes of the 14th Amendment is a question of federal constitutional law. 

?          Court concluded that police had discretion concerning how and when to enforce restraining orders.

?          Court said that an entitlement to enforcement of a restraining order could probably not constitute a property interest because it lacks monetary value, arises incidentally not out of some new species of government benefit or service, but out of a function that government actors have always performed. 


2)       Liberty

Government actions that alter one’s legal status under positive law implicate a liberty interest, but some government actions that may not do so are nevertheless such massive invasions of liberty that due process attaches. 


§         Paul v. Davis (1976) – Name on List/Damage to Rep NOT Liberty Interest

o        Davis was arrestd for shoplifting and his name was placed on a list of “active shoplifters” by local police that was circulated to local merchants.  Charges were later dropped.  

o        Davis claimed that he had a liberty interest in his reputation, and he was deprived of this interest by his name being placed on the list. 

o        Court held that reputation, alone, apart from some more tangible interest such as employment is neither liberty nor property by itself sufficient to invoke the procedural protection of the Due Process Clause. 


§         Wisconsin v. Constantineau (1971) – Obtaining Liquor IS Liberty Interest

o        Wisconsin law provided that whenever someone by “excessive drinking” exposes himself or his family “to want” or makes himself “dangerous to the peace” government officials could (without notice or hearing to the drinker) post the drinker’s name in retail liquor outlets as  person to whom sales or gifts of liquor are forbidden for one year.

o        Court held that the drinker had suffered more than injury to reputation, she had also been deprived of a right previously held under state law – the right to obtain liquor in common with the rest of citizenry.  This added factor significantly altered her status as a matter of state law.  This alteration of legal status, combined with the injury to reputation, justified the invocation of procedural safeguards. 


§         Meachum v. Fano (1976) – Medium to Max Prison NOT Liberty Interest

o        Court held that NO liberty interest at stake when a state decided to shift a prisoner from a medium security to a maximum-security prison.

o        Once a criminal defendant has been constitutionally deprived of his liberty and so long as the conditions of confinement do not otherwise violate the Constitution the selection of a prison is within the normal range of custody which the conviction has authorized the state to impose.  That life in one prison is much more disagreeable than in another does not in itself signify that a constitutional liberty interest is implicated. 


§         Vitek v. Jones (1980) – Prison to Mental Hospital IS Liberty Interest

o        Court held that transfer from prison to a mental hospital implicated a liberty interest, therefore before such transfer the prisoner was entitled to procedural due process. 

o        First, the Court noted that Nebraska law had created by statute and official practice an objective expectation that a prisoner would not be transferred except under prescribed conditions.  This created a liberty interest that entitled the prisoner to the benefits and appropriate procedures in connection with determining the conditions that warranted his transfer to a mental hospital.

o        Second, Court held that transfer of a prisoner from a prison to a mental hospital required procedural protection because the prisoner “residuum of liberty would be infringed by transfer to a mental hospital.

?          Stigma of commitment to a mental hospital

?          Possibility of compelled drug and behavior modification treatment

?          Lesser freedom permitted mental patients


§         Greenholtz v. Inmates (1979)

o        No constitutional liberty interest is involved in a DENIAL of parole. 

o        In dicta, the Court suggested that REVOCATION of parole implicated a constitutional liberty interest. 

o        Court said that loss of a benefit already conferred is of greater moment than the refusal to exercise discretion to confer the benefit. 


§         Wilkinson v. Austin (2005)

o        Prisoners challenged the procedures by which prisoners are assigned to supermax prison facilities. 

o        Court held that the prisoners had a liberty interest at stake.  Court had previously held that a prison inmates liberty interest is implicated when a state imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Assignment to the supermax prison was held to impose such an atypical and significant hardship under any plausible baseline.  


D)      Determining What Process is Due

1)       Minimum Requirement

§         Before a person is deprived of life, liberty, or property he must be given “notice of the case against him and opportunity to meet it.” (Joint Anti-Fascist Refugee Commission v. McGrath (1951) – Justice Frankfurter, concurring). 

§         If the government is NOT depriving a person of life, liberty, or property then it can use any procedure it wants even if the procedure is arbitrary and capricious. 


2)       Goss v. Lopez (1975)

§         Court held that an informal conversation between a public school administrator and a student PRIOR to the student’s suspension from school for ten days was enough to satisfy due process as long as the conversation included the charges, a summary of the evidence supporting the charges, and a chance for the student to tell his or her version of the events. 

§         IMPORTANCE:  The process due depends on the situation or circumstances. 


3)       Mathews v. Eldridge (1976)


§         FACTS

o        Eldridge received disability benefits for chronic anxiety and back strain. 

o        The agency tentantively concluded that Eldridge’s disability had ceased and informed Eldridge of this decision and reasons for it and invited him to provide a written response and provide new evidence. 

o        Eldridge responded, but the government terminated his benefits anyway. 

o        Eldridge was entitled to seek a post-termination hearing to contest the termination of benefits and to recover retroactive benefits if the termination was found to be in error. 

o        Eldridge claimed that the PRE-termination procedures did not satisfy due process. 


§         ANALYSIS

o        Due process is not a technical conception with a fixed content unrelated to time, place, and circumstances.  Due process is flexible and calls for such procedural protections as the particular situation demands. 


o        Resolution of the issue of whether the procedures here are sufficient requires analysis of the governmental and private interests that are affected. 


o        Court looks at THREE FACTORS in a “Balancing Test” –

?          (1) The private interest that will be affected by the official action

?          (2) The risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any of additional or substitute procedural safeguards.  Also the length of the wrongful deprivation. 

?          (3) The Governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. 


o        Court says that because the recipient whose benefits are terminated is awarded full retroactive relief if he ultimately prevails, his sole interest is in uninterrupted receipt of the benefits. 



o        Factor 1 – Private Interest

In Goldberg v. Kelly, the Court held that due process requires an evidentiary hearing PRIOR to a temporary deprivation.  The Court here distinguishes Golberg’s welfare benefits from Eldridge’s disability benefits.  Welfare assistance is given to those on the very margin of subsistence, whereas disability benefits are not based on financial need and do not take into account income from other possible sources.  Potential deprivation here is LESS than that in Goldberg. 


o        Factor 2 – Existing Procedures

Here, a medical assessment of the worker’s physical or mental condition is required, which is more objective and easily documented than determination of welfare entitlement.  The decision will usually turn upon routine, standard, unbiased medical reports by physical specialists concerning a person whom they have personally examined.  The risk of error is therefore low, and the potential value of an evidentiary hearing prior to termination is less than in Goldberg.  Also, the recipient has full access to all of the information relied upon by the government in making the determination and has an opportunity to provide additional evidence.  This is an additional safeguard. 


o        Factor 3 – Governmental Interest

This includes the administrative burden and other societal costs associated with requiring a PRE-deprivation hearing in all cases prior to termination of benefits.  The extra cost would be a huge burden, but financial cost alone is NOT controlling.  Government interest in conserving scarce fiscal and administrative resources is important.  At some point the benefit of an additional safeguard to the individual affected and to society may be outweighed by the cost. 


§         HOLDING

An evidentiary hearing is NOT required PRIOR to termination of disability benefits and that the present administrative procedures fully comport with due process. 


§         DENNING SAYS

The court announces factors, but then the Court arbitrarily assigns weight to each factor, throws each in and reaches a conclusion.  The Court does not give us a way to determine the weight to be assigned to each factor.  Denning says the Court is wary of raising the costs of offering the benefits for fear that the government will just stop offering the benefits altogether.


4)       Pre- v. Post- Deprivation Hearing


§         General Rule – Due process generally requires the government to provide notice and opportunity to be heard BEFORE depriving someone of property or liberty, BUT sometimes due process is satisfied by a post-deprivation hearing or other remedy.  Two situations are listed below in which post-deprivations remedies are sufficient.   


§         POST-deprivation remedies are sufficient to prevent immediate public harm.  In this case no pre-deprivation hearing is required. 


o        North American Cold Storage Co. v. Chicago (1908)

No prior hearing needed before the government destroyed tainted food because the food was an immediate danger to public health and a later tort suit provided an adequate remedy.


o        Mackey v. Montrym (1979)

Court upheld the suspension without a hearing of a driver’s license of a motorist refusing to submit to tests for intoxication when arresting officers suspected he was drunk.  Imminent threat to public safety coupled with the prospect of a timely post-deprivation hearing were sufficient to satisfy due process. 


§         POST-deprivation remedies are sufficient when the liberty or property interest at stake is relatively minor AND either the risk of an erroneous deprivation is low OR it is impractical to provide pre-deprivation hearings. 


o        Ingraham v. Wright (1977)

Pre-deprivation hearing NOT necessary before schools could administer corporal punishment (corporal punishment implicated a liberty interest) because due process was satisfied by the availability of a post-spanking righ tot bring suit for damages for excessive, unjustified infliction of physical harm. 


o        Parratt v. Taylor (1981)

Due process is satisfied by the availability of tort remedies for the negligent destruction of a prisoner’s property.  No PRE-deprivation hearing required.


o        Hudson v. Palmer (1984)

No PRE-deprivation hearing required before the intentional destruction of prisoner’s property because of availability of tort remedies. 


o        Daniels v. Williams (1986) & Davidson v. Cannon (1986)

Even when NO POST-deprivation tort remedy was available to recover damages caused by negligence of governmental officials, due process was NOT offended.  When a government official is merely negligent, no procedure for compensation is constitutionally required.  Due process is NOT a guarantee of due care by government officials. 


5)       Connecticut Department of Public Safety v. Doe (2003)

§         Connecticut law required convicted sex offenders to register and disclose publicly their whereabouts after release from custody.  Court UPHELD the law.

§         Due process does NOT require a hearing prior to registration and disclosure because those obligations were imposed as a result of conviction, and the criminal trial resulting in conviction afforded ample due process process protection.  Court did NOT address whether there was a SUBSTANTIVE due process violation.   


6)       Hamdi v. Rumsfeld (2004)

§         American citizen alleged to be an enemy combatant and held as a prisoner by the government was entitled to challenge his status as an enemy combatant.

§         Due process requires that the citizen receive notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker. 


III      Substantive Due Process

A)      Generally

Some liberties NOT mentioned in the Constitution but identified by the Court are considered so fundamental to the idea of liberty that their invasion by government is presumed to be void and can be sustained only if the government justifies the invasion. 


1)       Calder v. Bull (1798)

§         Shows that from the beginning of American constitutional law there has been a doctrinal voice that insists that there are unwritten individual rights that should be judicially protected against government invasion. 


2)       Fletcher v. Peck (1810)

§         Court embraced judicially enforceable unwritten limits on governmental action.

§         Court ruled that Georgia could not repeal its conveyance of the “Yazoo” lands even though the original grant had been obtained through bribery.  The repeal was invalid because it was inconsistent with “certain great principles of justice, whose authority is universally acknowledged” but that are not embedded in constitutional text. 

§         Court relied on natural reason and principle. 


B)      Denning Says to Look for these in each Substantive Due Process Case: 

1)       The justification for the judicial role in choosing certain interests and designating them as “fundamental.”  What gives the Court this right?  Should they have this right? 


2)       Source of the “fundamental” rights which are not listed in the Constitution.


3)       Criteria for “fundamental-ness” – Where do these criteria come from?


4)       Scope of the right – Is it expansive or narrow?  How does it change over time from narrow to expansive? 

§         High level of abstraction – “personal autonomy”?  Problem is that lots of laws impinge this, such as drug use. 

§         Narrow way?  Like Bowers “right to engage in homosexual sodomy”?  This is too narrow. 


5)       Standard of Review – Deference?  Strict Scrutiny? 

§         What does the Court SAY it is using?

§         What does the Court ACTUALLY use? 


6)       Double Standard – In some cases, the Court requires the government to prove a lot less for an enumerated right than it does for certain UNenumerated rights. 


C)      Incorporation Doctrine

The doctrine by which most of the substantive guarantees of the Bill of Rights have been “incorporated” into the Fourteenth Amendment’s due process clause and thus made applicable to the states. 


1)       Barron v. Baltimore (1833)

Unanimous decision


§         FACTS

City of Baltimore diverted several streams during a construction project making it impossible for vessels to use the wharf.  Barron sued the city claiming that the city had taken his property for public use without just compensation in violation of the Fifth Amendment.  Barron claimed that because the takings clause is in favor of the liberty of the citizen, it ought to be so construed as to restrain the legislative power of the state as well as that of the federal government. 


§         HELD

The Fifth Amendment does NOT apply to the states. 


§         ANALYSIS

o        The Constitution created the federal government, therefore the limitation on government power listed in the Constitution apply to the federal government only (because it was the government created by the Constitution). 

o        The states have created their own Constitutions.  If they want to restrain state governmental action, they should do so in their own state Constitutions. 

o        Article I, § 10 applies specifically to the states by its language.  The framers drew a distinction between states and federal government, therefore other provisions NOT specifically addressed to the states do NOT apply to the states. 

o        If the framers wanted the amendments to apply to the states, they would have explicitly stated such as they did in Article I, § 10. 


2)       Slaughter-House Cases (1873)


§         FACTS

Louisiana chartered a slaughter-house company and gave it a monopoly over livestock slaughtering in and around New Orleans.  Other butchers were required to close and were given the right to slaughter animals at the company’s facilities upon payment of fees fixed by statute.  Butchers challenged the validity of the law contending that the law deprived them of their right to exercise their trade in violation of the Fourteenth Amendment’s due process, equal protection, and privileges and immunities clauses. 


§         HELD

Court upheld the law because the butchers were claiming a violation of privileges of state citizenship and the P or I clause applies only to protect rights of federal citizenship.  State was exercising its police power so the law is valid. 


§         ANALYSIS

o        Due Process Clause is not applicable because there is no deprivation of property.

o        Equal Protection Clause is not applicable because it ONLY applies to race because that was its purpose. 

o        There was a unity of purpose in the 13th, 14th and 15th Amendments to protect former slaves

o        Privileges or Immunities Clause of the 14th Amendment

?          There is a distinction between citizenship of a state and citizenship of the United States and each depend upon different characteristics or circumstances in the individual. This distinction is made in Clause 1 of the 14th Amendment.

?          The Privileges or Immunities Clause says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  This clause therefore protects ONLY privileges or immunities of federal citizenship, NOT state citizenship. 

?          The privileges that the butchers claim are privileges of STATE citizenship, so their claim under the P or I clause must fail. 

?          Rights of federal citizenship must owe their existence to the federal government, its national character, its Constitution, or its laws.  Examples:  right to come to the seat of government to assert any claim against the government, transact business with the government, seek its protection, share its offices, engage in administering its functions; free access to seaports, access to land offices, access to courts of justices, ETC.    SEE LIST on page 452 of text. 

?          Basically the Court says that the state was exercising its police powers so the law is valid. 


3)       Rights of Federal Citizenship

§         The right of interstate travel or migration is a right incident to federal citizenship.  See also the list on page 452 of the text. 

§         Saenz v. Roe (1999)

Court held that there are three components of the “right to travel,” and only one component is protected by the P or I clause of the 14th Amendment.  The P or I Clause protects the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. 


4)       Twining v. New Jersey (1908)

§         The Court admitted that it was possible that some of the rights safeguarded by the BOR from federal action may also be safeguarded against state action because a denial of them would be a violation of due process of law.  However, the Court said that the reason for this was NOT because the rights were enumerated in the Constitution, but because they are of such nature that they are included in the conception of due process of law.  Only rights that constitute a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government are included in this concept. 

§         Privilege against self-incrimination was not one of these fundamental rights.


5)       Selective v. Total Incorporation


§         Selective Incorporation

o        Selective incorporation has ALWAYS commanded a majority of the Court

o        Palko v. Connecticut (1937)

?          Court stated that the 14th Amendment’s due process clause incorporated ONLY those parts of the Bill of Rights that are “the very essence of a scheme of ordered liberty,” things so rooted in the traditions and conscience of our people as to be ranked as fundamental, or rights such that neither liberty nor justice would exist if they were sacrificed. 

?          Freedom of speech was such a fundamental right, but protection against double jeopardy was not.  This was later overturned in Benton v. Maryland (1969) which held that the protection against double jeopardy was so fundamental that it must be incorporated into due process. 


§         Total Incorporation

o        Black’s Dissent in Adamson v. California (1947)

?          Black said that Twining and the “natural law” theory of the Constitution degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court broad power which we are not authorized by the Constitution to exercise. 

?          One of the chief objects of the 14th Amendment was to make the Bill of Rights applicable to the states. 


§         Current View

o        The only provisions of the first 8 Amendments that have NOT been incorporated are:

?          2nd Amendment

?          3rd Amendment

?          Grand Jury indictment clause of the 5th Amendment

?          7th Amendment


o        “Jot for Jot” Approach to Incorporation

?          The Court has determined that the particular right incorporated into due process and made applicable to the states applies to the states in precisely the same way it would apply to the federal government.

?          Prior to this decision, an incorporated right might have one consequence when applied to the federal government, and another when applied to the states.  Example:  Treatment of the exclusionary rule in Wolf v. Colorado (1949); Mapp v. Ohio (1961) made the exclusionary rule uniform for both federal and state courts. 

?          Current EXCEPTION to “jot for jot” approach – federal juries must reach unanimous criminal verdicts, but state juries may convict by less than unanimity. 




D)      Economic Substantive Due Process


1)       Pre-Lochner Cases

§         Hepburn v. Griswold (1870)

o        Court declared that Congress could NOT make paper money legal tender.  As an alternative holding the Court reasoned that contracts were property and a requirement that creditors accept paper money deprived them of property. 

o        This decision was overruled in The Legal Tender Cases (1870)


§         Munn v. Illinois (1877)

o        Court upheld against a due process challenge state regulation of grain storage rates. 

o        Court held that government could regulate private property when it is affected with a public interest or used in a manner to make if of public consequence and affects the community at large. 

o        The Court suggested that such regulations might be unreasonable and void when applied to mere private contracts relating to matters in which the public has no interest. 


§         Mugler v. Kansas (1887)

o        Court upheld state law prohibiting alcoholic beverages against a challenge by a brewer that the law deprived him of his property without due process. 

o        In dicta, the Court observed that laws have no real or substantial relation to a state’s legitimate police powers or which are palpable invasions of rights secured by the fundamental law would be struck down. 


§         Allgeyer v. Louisiana (1897) – “Liberty” includes “Right to Contract”

o        State law required that insurance contracts covering Louisiana property must be made with an insurer licensed to do business in Louisiana.  Allgeyer purchased marine insurance on his goods from an insurer not licensed to do business in Louisiana. 

o        Court struck down the law as a violation of substantive due process. 

o        Court held that the term “liberty” in the due process clause embraces the right of the citizen to be free in the enjoyment of al his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. 


§         Santa Clara County v. Southern Pacific Railroad (1886)

o        Court held that corporations were persons for purposes of the 14th Amendment.  This meant that corporations could challenge the constitutional validity of economic regulations. 


§         Holden v. Hardy (1898)

o        State law limited the employment of workmen in all underground mines to 8 hours per day. 

o        Law was upheld as a valid exercise of the police powers of the state becaue the kind of employment and the character of the employees were such to make it reasonable and proper for the state to interfere  to prevent the employees from being constrained by the rules laid down by their bosses.  (Unequal bargaining power between employees and bosses)


2)       Lochner v. New York (1905) – “Liberty of Contract


§         FACTS

New York law prohibited bakery workers from working more than 10 hours per day or 60 hours per week. 


§         HOLDING

Court struck down the law as a violation of substantive due process because it interfered with “liberty of contract.”


§         ANALYSIS

o        In Allgeyer the Court said that the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. 


o        The Court says that the right to purchase or sell labor is part of the liberty protected by the 14th amendment unless there are circumstances which exclude the right. 


o        The Court recognizes the existence of police powers of the state and says that the 14th Amendment does NOT interfere with the police powers of the state. 


o        The Court says that there are limits to the valid exercise of the police power.  The law here does NOT involve the safety, morals, nor welfare of the PUBLIC, nor does it involve the safety, morals, nor welfare of the INDIVIDUAL bakers affected by the law. 


o        The Court says that the act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. 



o        The Court should NOT be concerned with the wisdom of the legislation. 

o        The Court should only look to determine whether the means used by the state are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of the health of bakery workers. 

o        Rational relationship between end (safety of bakery workers) and means (limiting the work week) is all that is needed and is found here.  (Baking is very dangerous).


o        It’s settled law that states may regulate life in many ways that we might think are tyrannical – Sunday laws and usury laws.

o        Law should be upheld because a reasonable man might think it was a proper measure of protection of the health of bakery workers. 


§         DENNING SAYS

o        “Liberty of contract” is NOT in the Constitution. 

o        Where does the Court find the source of this right? 



o        Court makes factual assumptions about the relative bargaining power of bakers versus miners

o        Court does not explain the SOURCE of the “liberty of contract” right.

o        Court does not explain the SCOPE of the “liberty of contract” right.

o        Court does not address the fact that lots of other doctrines interfere with contract rights and are constitutional.  Examples:  Statute of Frauds, Duress, Infancy, Incapacity


3)       Post-Lochner Cases

§         Adair v. United States (1908)

o        Federal law that prohibited interstate railroads from enforcing “yellow dog” contracts, contracts that required employees to promise not to join a labor union. 

o        This law was considered a private benefit – a skewing of common law contractual freedom to benefit one side of the bargaining process. 


§         Muller v. Oregon (1908)

o        Court upheld a state law that limited women to no more than 10 hours of labor a day.  Court said that “liberty of contract” was not absolute. 

o        Court cited the “inherent difference between the two sexes.” 


§         Bunting v. Oregon (1917)

o        Court upheld a state law that required overtime pay after 10 hours and barred anyone from working more than 13 hours in a day. 

o        Court didn’t mention Lochner. 


§         Adkins v. Children’s Hospital (1923)

o        Court struck down a law prescribing minimum wages for women.  Court said that 19th Amendment giving the women the right to vote was evidence that men and women were now equal so that a minimum wage for swomen was arbitrary. 


SHIFT OCCURS – At this point, the Court widened the scope of legitimate government objectives and employed a more deferential review to measure the connection between legislative means and ends.


§         Nebbia v. New York (1934)

o        New York fixed the price for a quart of milk at 9 cents. 

o        Court held that the law was valid because the law was not arbitrary, unreasonable, or capricious and the means selected had a real and substantial relationship to the governmental objective. 

o        A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. 

o        Court applied Lochner in a more deferential fashion. 


§         Sunshine Coal Co. v. Adkins (1940)

o        Court upheld price fixing of coal.  Court says that price control is one of the means available to protect and promote the welfare of the economy. 


§         West Coast Hotel Co. v. Parrish (1937)

o        Minimum wage for women was upheld.  Court overruled Adkins.


§         United States v. Carolene Products (1938)

o        Federal law prohibited the interstate shipment of “filled milk” because it led to undernourishment. 

o        Court upheld the law against a due process challenge.  Court said that the existence of facts supporting legislative judgment is presumed. Regulatory legislation affecting ordinary commercial transactions is constitutional unless the challenger proves that there is no rational basis for the legislation. 


4)       CURRENT VIEW of Economic Substantive Due Process

§         Laws that regulate commercial, economic, or business relations are upheld against due process challenges so long as there is some conceivable basis to conclude that the law bears a rational relationship to a constitutionally permissible objective of the government AND economic regulation itself is a legitimate government objective. 


5)       DEATH of Economic Substantive Due Process

§         Ferguson v. Skrupa (1963)

o        Kansas made it unlawful for anyone except lawyers to carry on the business of debt adjusting.

o        Court upheld the law.  Court said that there was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, unwise, or incompatible with some particular economic or social philosophy. 

o        Court said “Substantive due process has long since been discarded.” 


E)      Non-Economic Substantive Due Process

The Court uses the due process clauses to protect an ill-defined cluster of non-economic personal interests that the Court thinks are critical to human autonomy. 


1)       Analysis

§         Burden is on the challenger to prove that the right is fundamental. 

§         If the claimed right is a fundamental liberty, then the law will be subject to strict scrutiny.  The law is presumed void.  Government must prove that the infringement is necessary to achieve a compelling government objective and the law is narrowly tailored to achieve this interest.

§         If the claimed right is NOT a fundamental liberty, then the law will be subject to minimal scrutiny.  The law is presumed valid.  Challenger must prove that the law is not rationally related to a legitimate state interest. 


2)       Privacy


§         Meyer v. Nebraska (1923)

o        Meyer was convicted of teaching German to children, which Nebraska had made a crime.

o        The Court struck down the law holding that the substantive liberty protected by due process included the right “to acquire useful knowledge, to marry, to establish a home and bring up children, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

o        The Court suggested that it might have upheld the law if Nebraska had offered a convincing justification for its necessity. 


§         Pierce v. Society of Sisters (1925)

o        Oregon law required all children to attend public schools.  Parochial and private schools challenged the law as a denial of liberty without due process of law. 

o        Unanimous Court struck down the law, finding that Oregon had shown no justification for its interference “with the liberty of parents and guardians to direct the upbringing and education of children under its control.” 


§         Skinner v. Oklahoma (1942)

o        Decided under the Equal Protection Clause.

o        Oklahoma mandated sterilization of people convicted three times of felonies involving moral turpitude (did not include white collar criminals, but did include three time chicken thieves). 

o        Court struck down the law because sterilization of three-time chicken thieves but not three-time embezzlers failed the strict scrutiny test. 

o        Why strict scrutiny?  Court said the law “involves one of the basic civil rights of man.  Marriage and procreation are fundamental to the very existence and survival of the race.”  Application of the law would have “forever deprived [Skinner] of a basic liberty.

o        DENNING SAYS – Procreation is a fundamental right because Douglas says it is.  No mention of the source of the right and no criteria given for distinguishing which rights are fundamental. 


§         Griswold v. Connecticut (1965)

o        FACTS

?          Connecticut law made it a crime to use any drug, medicinal article, or instrument for the purpose of preventing contraception.  These articles could be used to disease prevention, just not contraception.  The law penalized any person who assists, abets, counsels, causes, hires, or commands another to use a contraceptive device.

?          Griswold gave a MARRIED COUPLE information about contraceptive use and was found guilty and fined.


o        HELD

The law is struck down.  The end is legitimate, but the means are unnecessarily broad. 


o        ANALYSIS

?          Lochner is not the guide.  The Court is not a “super legislature” that determines the wisdom, need, and propriety of laws that touch on economic problems, business affairs, or social conditions. 


?          Court looked at Meyer and Pierce and NAACP v. Alabama as suggesting that specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. 


?          Court says that various Bill of Rights guarantees create zones of privacy.

            - First (Freedom of Association)

            - Third (No quartering of soldiers in homes)

            - Fourth (Security against unreasonable search and seizure)

            - Fifth (self-incrimination – enables citizen to create a zone of privacy which government may not force him to surrender)

            - Ninth (Enumeration of rights will not deny other rights retained by the people)


?          Court says that this case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees AND it concerns the use of contraceptives rather than regulating their manufacture or sale, which would have a maximum destructive impact upon the relationship. 


?          Basically the Court says that the means are OK, but the means (the law) is unnecessarily BROAD.  “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. 



?          Due Process protects “fundamental rights” and is NOT confined to the Bill of Rights. 

?          How to tell which rights are fundamental? 

            - “traditions and collective conscience of our people” to determine whether a principle is so rooted there as to be ranked as fundamental”

            - is the right of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.



?          Due Process does NOT have to involve a violation of the Bill of Rights.  Due Process protects basic values “implicit in the concept of ordered liberty.” 



?          Meyer, Pierce, and Skinner affirm that there is a “realm of family lie which the state cannot enter” without substantial justification.

?          Goal of preventing promiscuous or illicit sexual relationships is a permissible and legitimate legislative goal, but the law does NOT reinforce this goal. 



?          Government has a right to invade privacy unless it is prohibited by a specific constitutional provision.  Court shouldn’t use Due Process Clause to invalidate laws which the Court finds irrational, unreasonable, or offensive.  Court shouldn’t rely on “natural justice.”



?          Nothing in the Bill of Rights invalidates this law.  It is not the function of the Court to decide on the basis of “community standards.” 



?          Source of Right – “Penumbras” of the specific Bill of Rights guarantees.  Basically the Court doesn’t want to be seen as engaging in “Lochnerism” (natural law) so the Court looks to “penumbras.”

?          Scope of the Right – Court seems to restrict itself to the marriage relationship.  Lots of language concerning marital bedrooms, etc.  Although privacy was a concern, the court seemed to have in mind “MARITAL” privacy, NOT privacy in general. 


§         Eisenstadt v. Baird (1973)

o        Massachusetts enacted a law banning the distribution of contraceptives to UNMARRIED people.

o        Court struck down the law on Equal Protection grounds.  Court held that the law was not rationally related to the legitimate government objective of deterring pre-marital sexual intercourse because it would be unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication. 

o        Prohibition on contraception was NOT a legitimate state objective. 

o        Court said that if under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried person would be equally impermissible.  In Griswold the right of privacy in question inhered in the marital relationship.  Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.  If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 

o        DENNING SAYS – Is the Court stretching Griswold too far?  Griswold Court thought that they were protecting rights of married persons. 


3)       Abortion

§         Roe v. Wade (1973)

o        FACTS

?          Texas made it a crime to get an abortion except to protect to the life of the mother. 


o        HOLDING

?          First Trimester (0-3 mths) – No state regulation is allowed.

?          Second Trimester (4-6 mths) – States can regulate abortion PROCEDURES  to protect the HEALTH of the mother.

?          VIABILITY

?          Third Trimester (7-9 mths) – State can regulate however it wants including a total ban as long as there are exceptions to protect the LIFE of the mother. 


o        ANALYSIS

?          Standard of Review – Strict Scrutiny

            (1) Government must prove a compelling government interest

            (2) Government must prove that the law is narrowly tailored to meet that interest

?          Right to Privacy, includes right to an abortion, as a fundamental right. 

?          Person in the 14th Amendment does NOT include the unborn.

?          No real source given for the right.  Denning says the Court just throws everything in and sees what sticks. 

?          Court says that prior decision suggest that some state regulation in areas protected by the right to privacy are appropriate. 

?          State’s interest in the HEALTH of the mother become compelling, in light of present medical knowledge at approximately the end of the first trimester because until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. 

?          State’s interest in the POTENTIAL LIFE OF THE UNBORN becomes compelling at viability because the fetus then has the capability of meaningful life outside of the mother’s womb. 



?          Eisenstadt recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.  That right necessarily includes the right of a woman to decide whether to terminate her pregnancy. 



?          The Court simply fashions and announces a new constitutional right.  The judgment is an improvident and extravagant exercise of the power of judicial review. 



?          Privacy is not really involved in this case.  The performance of an abortion is not private. 

?          The test traditionally applied is whether or not such law has a rational relation to a valid state objective.  The Court’s sweeping invalidation of restrictions on abortion during the first trimester is impossible to justify under rational basis standard. 


§         Planned Parenthood v. Danforth (1976)

o        Court struck down a law requiring a married woman seeking an abortion to provide written consent of her husband, except where abortion was necessary to “preserve the life of the mother.” 


§         Planned Parenthood v. Ashcroft (1983)

o        Court upheld a parental consent requirement that included an adequate judicial bypass.


§         Akron v. Akron Center for Reproductive Health (1983)

o        Court struck down law that required all abortions after the first trimester to be performed in hospitals.  This was not reasonably designed to further the state interest in health regulation because medical evidence showed that out-patient abortions could be safely perfomed. 


§         Maher v. Roe (1977)

o        Equal Protection Challenge

o        Court upheld law that provided Medicaid benefits for childbirth but denied them for medically unnecessary abortions.  Court said that Roe did not declare an unqualified constitutional right to an abortion, rather the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.  It implies no limitation on the authority of the state to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. 


§         Harris v. McRae (1980)

o        Court upheld “Hyde Amendment” which barred the use of federal Medicaid funds for abortions except when the pregnancy resulted from rape or incest or when necessary to save the life of the pregnant woman.

o        Upheld in a 5 to 4 vote.


§         Webster v. Reproductive Health Services (1989)

o        Court upheld law prohibiting the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life. 

o        Court said result might be different if the state had socialized medicine so that all hospitals and physicians were publicly funded or if the state barred a physician from a public hospital because he performed an abortion privately.


§         Rust v. Sullivan (1991)

o        Court upheld law that conditioned receipt of federal funds for family planning services on the recipient’s compliance with three provisions:

?          No counseling concerning the use of abortion as a method of family planning

?          Could not provide referral for abortion as a method of family planning

?          Could not encourage, promote, or advocate abortion as a method of family planning


§         Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

o        Pennsylvania Abortion Control Act requires:

?          Informed Consent

?          24 hour waiting period

?          Parental consent with Judicial bypass

?          Certification of Spousal Notification

?          Reporting Requirements for Clinics

o        Plurality Opinion – majority agreed as to the result, but not the reasoning.  Court said that it affirmed Roe v. Wade.  

o        Court rejects the trimester framework and replaced it with the “UNDUE BURDEN” standard. 

?          PRIOR TO VIABILITY – state can only regulate if the regulations does NOT place an undue burden on the woman seeking an abortion

?          AFTER VIABILITY – state can prohibit abortion with exceptions for the life and health of the mother.

o        “Undue Burden” – Regulation with the purpose OR effect of placing a “substantial obstacle” in the path of a woman seeking an abortion.  Court says that NOT ALL BURDENS ARE UNDUE BURDENS.

o        DENNING SAYS – After Casey, is abortion a fundamental right?  If fundamental rights are associated with strict scrutiny, then maybe in Casey abortion is NOT a fundamental right because the Court does NOT employ strict scrutiny. 


§         Stenberg v. Carhart (2000)

o        Court struck down a law outlawing partial-birth abortions because the law was an “undue burden” on a woman’s right to terminate her pregnancy prior to viability. 

o        The law was too broad in that it prohibited both “dilation and extraction” and “dilation and evacuation.”  ALSO, there was no exception for cases in which this type of abortion would be necessary to preserve the HEALTH of the pregnant woman. 


4)       Right to Die


§         Cruzan v. Director, Missouri Department of Health (1990)

o        FACTS

?          Missouri law required “clear and convincing” evidence that an individual had expressed a desire (when competent) to refuse life-sustaining measures when in her present condition BEFORE it would allow the care givers to remove life-sustaining treatment. 

?          Parents of Nancy Cruzan claimed that forced administration of food and water invaded Cruzan’s liberty interest under the due process clause to refuse unwanted medical treatment. 


o        HELD

?          Court upheld the law.  The Constitution does NOT prohibit establishment of Missouri’s procedural safeguard.


o        ANALYSIS

?          Court said “for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse life-saving hydration and nutrition.”  A competent person has a liberty interest in refusing treatment.  This can be inferred from previous decisions and the common law doctrine of informed consent and battery. 

?          Missouri’s interest – Protection and preservation of human life.  The Court says Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. 

?          BALANCING TEST – The Court weighs the state’s interest in the protection of human life against the constitutionally protected interests of the individual.  Because of the finality of the decision, the state may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual’s life-sustaining treatment.  An erroneous decision not to terminate results in maintenance of status quo, whereas an erroneous decision to withdraw life-sustaining treatment is not susceptible of correction. 



?          Court does NOT decide whether the state must give effect to decisions of a surrogate which the patient has appointed to make decisions about such matters.  The decision does NOT preclude a future determination that the Constitution requires states to implement the decisions of a patient’s duly appointed surrogate.

?          The liberty guaranteed by due process must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.



?          Scalia would have preferred that the federal courts have NO business in this field because the answer is not in the Constitution. 

?          No substantive due process claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against state interference which cannot be established here. 



?          If a competent person has this interest, then so does an incompetent person. 

?          State’s only interest is in making an accurate determination of the incompetent’s wishes.  State can exclude anyone with improper motives from making the decision, but a state must either repose the choice with the person whom the patient himself would most likely have chose as proxy or leave the decision with the patient’s family.



?          Court should look to the best interests of the incompetent person, not any general state policy that simply ignores those interests.


§         Washington v. Glucksberg (1997)

o        FACTS

?          Washington law makes it a felony to knowingly cause or aid another person to attempt suicide.  Withholding or withdrawing life-sustaining treatment is NOT considered suicide. 

?          Plaintiffs claim the right to control the time and manner of death – claim to “integrity.”

?          Plaintiffs rely on Cruzan – if there is a right to refuse treatment even though it hastens death, which stems from right to bodily integrity, then it makes sense to extend that right to suicide


o        HELD

Law is valid.  No fundamental right involved. 


o        ANALYSIS

?          Court says that refusing treatment and committing suicide are different.  The law has always prohibited suicide and assisting suicide.  The law has also always recognized the need for informed consent to prevent liability for battery.  Historically the law has treated the two things differently. 

?          There is no fundamental right involved so the Court uses the rational basis test. 

?          All of Washington’s interests are legitimate (protecting human life, integrity of medical profession, protecting vulnerable groups, preventing euthanasia). 



?          There is no generalized right to commit suicide.  State’s interests justify the prohibition. 

?          A patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. 



?          Cruzan makes it clear that some individuals who no longer have the option of deciding whether to live or die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the state’s interest in preserving life at all costs. 

?          I do not foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought could prevail in a more particularized challenge.



?          Sources of Fundamental Rights:

            (1) those expressed in the constitutional text OR

            (2) those exemplified by the traditions from which the nation developed OR

            (3) those revealed by contrast to those traditions from which it broke



?          It would be a totally different case if a desire to avoid pain at the end of life were at issue. 


§         Vacco v. Quill (1997)

o        Companion case to Glucksberg

o        Court rejected an equal protection challenge to the assisted suicide ban while permitting patients to refuse lifesaving medical treatment. 

o        Court said that the laws did NOT treat people differently – everyone can refuse treatment and no one can assist a suicide. 


§         Gonzalez v. Oregon (2006)

o        Oregon’s Death With Dignity Act bars liability for physicians who dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.

o        US Attorney General issued a ruling (with the force of law) declaring that the use, dispensation, or prescription of controlled substances to assist suicide is not a legitimate medical practice and was unlawful under the Controlled Substances Act. 

o        Court held that the AG lacked the statutory authority to issue such a ruling.  NO constitutional issues were decided.


5)       Sexual Choices


§         Bowers v. Hardwick (1986)

o        Court upheld the validity of Georgia’s criminal sodomy law which provided that a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. 

o        Court concluded that no fundamental liberty interest was involved and applied minimal scrutiny.  Court upheld law because it was rationally related to the legitimate interest of declaring homosexual sodomy to be “immoral and unacceptable.” 

o        Justice White says no fundamental right to engage in homosexual sodomy because the right is not deeply rooted in this nation’s history or tradition or implicit in the concept of ordered liberty.

o        BLACKMUN DISSENT – Right to privacy has both decisional and spatial aspects.  This case implicates both.  Sexual intimacy is a sensitive key relationship of human existence, central to family life, community welfare, and the development of human personality.  The right to conduct intimate relationships in the intimacy of one’s own home seems to me to be at the heart of the Constitution’s protection of privacy. 

o        STEVENS DISSENT – State has the burden of justifying selective application of its laws.  A policy of selective application must be supported by a neutral and legitimate interest – something more substantial than habitual dislike for or ignorance about the disfavored group.


§         Lawrence v. Texas (2003)

o        FACTS

?          Texas law made it a crime to engage in deviate sexual intercourse with an individual of the same sex.


o        HELD

Court overrules Bowers and declares the law unconstitutional. 


o        ANALYSIS

?          Not a fundamental right.

?          Standard of Review – Rational Basis.

?          No legitimate state interest.  State claims an interest in protecting the majoritarian moral sentiment. 

?          Problem – lots of laws are based on morality as a legitimate interest.  What about those? 



?          Statute is unconstitutional under the Equal Protection Clause. 



?          Court says no fundamental right and doesn’t apply strict scrutiny, but still finds it unconstitutional is an “unheard-of form of rational-basis review.” 

?          Countless judicial decisions have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.  State laws against bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are only sustainable as based on moral choices. 



?          No general right to privacy in the Constitution or Bill of rights so law is NOT unconstitutional. 



?          Court did NOT declare a fundamental right, just a liberty interest so rational basis is used.

?          This is a much different type of rational basis than in Skrupa.

?          Court says that basing law on moral disapproval is not a legitimate interest in this case.  Problem is that lots of laws are based on morality – animal cruelty laws.

?          What was going on here?

            (1) Texas was an outlier, only one of four states outlying sodomy so it was easy to strike it down.

            (2) Issue of gay marriage looming so the Court was hesitant to declare a fundamental right.

            (3) So Court just says “liberty interest” and no legitimate interest of the state, morality isn’t sufficient.  Basically the Court fudged the standard of review. 


§         United States v. Extreme Associates (3d Circuit 2005)

o        District judge relied on Lawrence to dismiss an indictment for criminal distribution of obscenity. 

o        Judge said that after Lawrence the government can no longer rely on the advancement of a moral code as a legitimate state interest. 

o        Third Circuit Reversed reasoning that the Supreme Court had implicitly rejected privacy claims to immunize the distribution of obscenity and it was for the Supreme Court to decide if Lawrence has striped the government of any legitimate interest in imposing criminal prohibitions upon distribution of obscenity. 



I          Generally

A)      14th Amendment’s Equal Protection & 5th Amendment’s Due Process

1)       Fourteenth Amendment provides that no state may “deny to any person within its jurisdiction the equal protection of the laws. 

2)       In Bolling v. Sharpe (1954) the Court concluded that the Due Process Clause of the 5th Amendment obligated the federal government to provide equal protection also. 

3)       In Buckley v. Valeo (1976) the Court held that equal protection analysis in the 5th Amendment area is the same as under the 14th Amendment. 


B)      Purpose

Original purpose of the Equal Protection Clause (EPC) was to protect African Americans from government racial discrimination. 


C)      Application

The Equal Protection Clause applies to governments, not private actions.  Only states have to provide equal protection of the laws.  It applies to states under the 14th Amendment, and Bolling v. Sharpe applied it to the federal government.  


II        Levels of Judicial Scrutiny


A)      Carolene Products Footnote 4 – Justice Harlan Fiske Stone

Laws generally are presumed to be constitutional, but in the following situations, the legislative classifications might be subject to heightened scrutiny: 

1)       Classifications that are in facial conflict with the specific rights guaranteed by the Constitution

2)       Classifications that inhibit the democratic process (voting)

3)       Classifications based on race, religion, or membership in any other“discrete and insular minority”


B)      Minimal Scrutiny (Rational Basis) – Default Level of Review

1)       Default level of review.

2)       Legislative classification must be rationally related to a legitimate government objective. 

3)       Classification is presumed valid. 

4)       Plaintiff challenging the validity of the classification must prove EITHER:

§         The classification is NOT rationally related to a legitimate state objective OR

§         No matter how well the classification serves the objective, the objective itself is illegitimate


C)      Strict Scrutiny – Race & Ethnicity

1)       Classification is presumptively void because it employs a suspect classification or impinges substantially on a constitutionally fundamental right. 

2)       Government MUST prove:

§         Compelling government objective or interest

§         The classification is “necessary” or “narrowly tailored” to accomplish that objective


D)      Intermediate Scrutiny – Sex & Illegitimate Birth

1)       Involves “quasi-suspect” classifications and these classifications are presumptively void

2)       Government MUST prove:

§         Important governmental interest

§         Classification is “substantially related” to the accomplishment of that interest (more than compelling but less than


III      Minimal Scrutiny

A)      Railway Express Agency, Inc. v. New York (1949)

1)       FACTS

§         New York City law provided that ads on vehicles were not allowed unless vehicles are engaged in the regular work of the owner and are NOT used merely or mainly for adverting. 

§         Basically, businesses could advertise on their own cars, but advertising on cars for hire was prohibited. 

§         City claims an interest in safety.  Ads on cars are distracting for other drivers. 

§         There was no evidence that advertising for hire was more of a problem than other advertising. 

§         Plaintiff is engaged in a nation-wide express business and sells the space on the sides of its trucks for advertising. The advertising was unconnected with its own business.  Plaintiff was convicted under the law.

§         Plaintiff claims that the MEANS are bad.


2)       HELD

Law is valid.  No violation of the Equal Protection Clause. 


3)       ANALYSIS

§         Plaintiffs claim that the classification the regulation makes has NO RELATION to the traffic problem because a violation of the law turns not on what kind of advertisements are carried on trucks, but on whose trucks they are carried.

§         Court says that the classification has a relation to the purpose of traffic safety and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. 

§         Court says the fact that the city sees fit to eliminate only part of the problem but does not eliminate other sources of the problem (billboards, etc) is IMMATERIAL.  It is NOT a requirement of equal protection that all evils of the same genus be eradicated or none at all. 



§         The beginning of the concurrence sounds like a dissent. 

§         Then Jackson says that the difference between carrying on any business for hire and engaging in the same activity on one’s own is a sufficient one to sustain some types of regulations that apply to one and not to the other.  He says that the hireling may be put in a class by himself and may be dealt with differently than those who act on their own because there is a real difference between doing in self-interest and doing for hire. 



§         Court says that the end (object) is legitimate – traffic safety. 

§         Court says that the means (eliminating some ads) are rationally related to the goal of traffic safety. 


B)      Williamson v. Lee Optical Co. (1955)

1)       Oklahoma barred opticians from making glasses without a prescription from an ophthalmologist or optometrist. 

2)       Court held the law against both Due Process and Equal Protection challenges. 

3)       Court said that as long as there was an “evil at hand or correction” however modest it may be, the  law must be upheld if it might be thought that the legislation was a rational way to correct it.  Basically the Court said that if there was any conceivable basis to surmise that the law was rationally related to a legitimate state goal, the law would be upheld.


C)      Problem of Under-Inclusion

Under-Inclusion involves regulating only PART of the problem, or burdening fewer people than would be necessary to totally fix the problem.  This may raise the possibility that someone is being “picked on.”  However, under Railway Express and Lee Optical, under-inclusion seems to be ok as long there is a rational relationship to a legitimate government objective. 


D)      Problem Over-Inclusion

Over-inclusive classifications burden more people than is necessary to accomplish the classifications legitimate objective. 


1)       New York City Transit Authority v. Beazer (1979)

§         Court upheld a New York rule that excluded all methodone users from employment in order to assure job and passenger safety. 

§         Court applied rational basis and said that a no drugs policy is supported by the legitimate inference that as long as a treatment program or other drug use (methodone) continues, a degree of uncertainty persists. 


2)       Massachusetts Board of Retirement v. Murgia (1976)

§         Court upheld a requirement that all uniformed state police offers retire at age 50. 

§         Court said to fundamental right to public employment.  Court said AGE is NOT a suspect class.  Court applied minimal scrutiny.

§         Purpose was to assure a physically fit and vigorous police force. 

§         Even though some (possibly many) officers over age 50 are fit and vigorous and some under age 50 are not, the Court regarded the retirement age as rational in relation to the goals of the regulation. 

§         Court said that perfection in making classifications is neither possible nor necessary.  Where rationality is the test, the state does not violate equal protection merely because the classifications made by its laws are imperfect. 


E)      United States Railroad Retirement Board v. Fritz (1980)

1)       FACTS

§         Congress eliminated railroad benefits for some railroad workers, but not for others.  Non-retired railroad workers who currently did not work in the railroad industry or had completed less than 25 years of service in the industry were denied benefits. 

§         Workers claimed a violation of equal protection.


2)       HELD

Law is valid. 


3)       ANALYSIS

§         Congress’s stated purpose was to insure the solvency of the railroad retirement system and protecting vested benefits.  Court held that these were legitimate government interests. 

§         Congress’s means were to terminate some of the benefits.  Court said that this was rationally related to insuring the solvency of the program, the stated purpose. 

§         Court said that because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for congress to have drawn lines between groups of employees for the purpose of phasing out benefits. 

§         Court says that where there are PLAUSIBLE REASONS for Congress’s action, the inquiry ends.  It is constitutionally IRRELEVANT whether this reasoning in fact underlay the legislative decision because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. 



§         Stevens believes that the Constitution requires something more than merely a “conceivable” basis or a plausible explanation for the unequal treatment, BUT he doesn’t think that every statutory classification must further the “actual purpose” of the legislature (because actual purpose may be unknown).

§         Stevens believes that we must discover a correlation between the classification and either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislature.



§         Brennan says that a challenged classification can be sustained under the rational basis test ONLY if it is rationally related to the achievement of an ACTUAL legitimate governmental purpose. 

§         He says Court should deduce the independent objectives of the statute, usually from statements of purpose and other evidence in the statute and legislative history, and to analyze whether the challenged classification rationally furthers achievement of those objectives. 

§         Brennan says that here the stated purpose is to preserve vested benefits.  The classification eliminates some of the vested benefits, therefore the classification is NOT rationally related to the stated purpose. 

§         DENNING SAYS – Problem with this view is how to determine what the actual purpose of the statute is?  Also, losers would salt the legislative history with purposes favorable to their position. 


IV      Strict Scrutiny

A)      Generally

1)       All classifications based on race or ethnicity/national origin trigger strict scrutiny.  Classifications based on race/ethnicity/national origin are generally irrelevant, therefore are subject to strict scrutiny.  These are the ONLY classifications that trigger strict scrutiny under the Equal Protection Clause.


2)       Presence of the following factors leads to a determination that strict scrutiny is warranted:

§         Immutable Traits (a fixed, unchangeable quality)

§         History of purposeful unequal treatment – 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.  

§         Perennial lack of access to political power – Not just lack of political power, but lack of ACCESS to that power


3)       Racial discrimination must be INTENTIONAL, as opposed to just having a disparate impact or effect on one group.  Intent may be shown by:


§         Facial Discrimination –

o        The classification directly employs the suspect criterion.

o        Strauder v. West Virginia (1879)

?          Law that limited a jury to white males was facially discriminatory and violated Equal Protection.

o        Loving v. Virginia (1967)

?          Law prohibiting interracial marriage violated Equal Protection, despite the fact that states punish equally the white and black participants in the relationship. 

?          Court said that equal application to both races does NOT immunize a statute from strict scrutiny. 


§         Discriminatory Enforcement –

o        A facially neutral classification that is ACTUALLY APPLIED on a suspect basis is treated as a suspect classification, but the party challenging the classification has the burden of proving the suspect classification.

o        Yick Wo v. Hopkins (1886)

?          Law said no laundries were allowed to be operated in wooden buildings.

?          The law was only enforced against laundries owned by Chinese persons. 

?          Court invalidated the law because there was no justification for its invidiously discriminatory application of the facially neutral law.


§         Discriminatory Effects coupled with Discriminatory Motives –

o        A facially neutral classification that is adopted solely because of an invidiously discriminatory motive and that produces discriminatory effects is treated as a suspect classification. 

o        Gomillion v. Lightfoot (1960)

?          City redrew boundaries to eliminate 99% of black voters but no white voters. 


4)       See p. 55-56 of the supplement for jury selection issues. 


5)       Two Views of the Equal Protection Clause

§         Anti-Discrimination – Government is colorblind.  No differentiation on the basis of race at all.

§         Anti-Subordination – Government cannot affirmative discriminate on the basis of race, but cannot forget the history.  Government has a role in affirmatively promoting a closing of the gap between the races.  Under this view assisting the minority is allowed. 


B)      Korematsu v. United States (1944)

1)       Military order excluded all persons of Japanese ancestry from certain portions of the Pacific Coast.  Court upheld the order.

2)       Court said that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.  Courts must subject them to the most rigid scrutiny.  Pressing public necessity may sometimes justify the existence of such restrictions, but racial antagonism never can. 

3)       Court held that the pressing public necessity of preventing espionage or sabotage justified the classification. 


C)      Washington v. Davis (1976)

1)       FACTS

§         DC police force required applicants to pass a test that measured verbal ability, vocabulary, reading, and comprehension.

§         Four times as many blacks as whites failed the test.

§         No claim of intentional discrimination or purposeful discriminatory acts.  Claim was highly discriminatory IMPACT in screening out black candidates.


2)       HELD

Use of the test was VALID.  Disparate impact is NOT sufficient for violation of equal protection.  There must be a purpose or intent to discriminate.  Disparate impact ALONE does not trigger strict scrutiny.


3)       ANALYSIS

§         Court upheld the test under rational basis test.  Test was reasonably and directly related to police recruitment. 


D)      Arlington Heights v. Metropolitan Housing Development (1977)


1)       Housing Development Corp. requested that a mostly white Chicago suburb rezone property to permit construction of low-income housing, which would be occupied in part by racial minorities.  Suburb refused.


2)       Trial court found that the refusal was motivated in part by concern for the integrity of the zoning plan, rather than racial discrimination.  Supreme Court held that the plaintiffs failed to prove racial discrimination was a motivating factor. 


3)       Arlington Factors for determining whether racial discrimination was a motivating purpose:  (p. 652)

§         Historical background of the decision to classify, particularly if it reveals a series of official actions taken for invidious purposes.

§         Sequence of events leading up to the law (deviation from the usual procedure)

§         Legislative or Administrative history


E)      Burdens

Plaintiff must make a prima facie case that there is something funny going on, then the burden shifts to the government to show that it is neutral.  If the plaintiff presents enough evidence that a court could infer discrimination then the burden shifts to the government.  Government then must prove either no discriminatory intent OR that the same decision would have been reached if no discriminatory intent was present.  Preponderance of the evidence standard for the government.  Then the court will apply strict scrutiny or rational basis. 


F)      Denning’s View of Multi-Factor Tests

Denning says that these multi-factor tests make it expensive for plaintiffs to bring claims.  If all the plaintiffs had to prove was disparate impact, then make the government prove neutrality, it would be easier (less expensive) for plaintiffs to bring claims because the government would have to pay. 


V        Official Racial Segregation

A)      Road to Brown

1)       Dred Scott v. Sanford (1857)

§         Court said that persons who are descendants of Africans are not and could not become U.S. Citizens. 

§         This was overruled by the 13th, 14th, and 15th Amendments.


2)       Plessy v. Ferguson (1896)

§         Court upheld laws that required railroads to provide equal but separate accommodations for the white and colored races and subjected passengers who used the wrong accommodations to criminal liability. 


3)       Missouri ex rel. Gaines v. Canada (1938)

§         White university system included a law school and the black system did not.  Missouri would pay reasonable tuition at an out-of-state school to enable black students to attend law school.

§         Court said this was a violation of equal protection.  The basic consideration was the opportunities that Missouri itself furnishes to white students and denies to black students.


4)       Sweatt v. Painter (1950)

§         University of Texas refused to admit a black student to its law school because a black law school was available. 

§         Court said this was a denial of equal protection because the black school was quantitatively and qualitatively inferior.


5)       McLaurin v. Oklahoma State Regents (1950)

§         Black student admitted but forced to sit separately in cafeteria, in library, etc. 

§         Court said violation of equal protection. 


B)      End of “Separate but Equal” - Brown v. Board of Education of Topeka (1954)

1)       Unanimous decision.

2)       Plaintiffs claimed that segregated public schools are not equal and cannot be made equal therefore plaintiffs were deprived of equal protection of the laws. 

3)       Court said that to separate students from others solely because of 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. 

4)       Court held that separate educational facilities are inherently unequal therefore were a violation of equal protection. 


C)      Application to Federal ActionBolling v. Sharpe (1954)

Court held segregated public schools in D.C. (under federal law) were an impermissible infringement of the substantive liberty protected by the due process clause of the Fifth Amendment.  It is now well-settled that equal protection applies with equal force to the federal government. 


D)      Implementing Brown

1)       The Court has consistently held that Brown is violated only by acts of intentional racial discrimination, and thus courts lack any remedial power in this area in the absence of an unjustifiable intentional discrimination that constitutes a constitutional violation. 


2)       Green v. County School Board (1968)

§         School district with two schools adopted a freedom-of-choice plan that permitted students to choose the school they wished to attend.  After 3 years one school was still all black and one was still all white.

§         Court said the plan was INVALID.  The end sought by Brown was a unitary, nonracial school system.  School boards operating state-compelled dual systems were charged by Brown with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.  The burden on a school board today is to come forward with a plan that promises realistically to work and to work now.


3)       Swann v. Charlotte-Mecklenburg Board of Education (1971)

§         Court said that once a right and a violation have been shown, the scope of the district court’s equitable powers to remedy past wrongs is broad.  But judicial powers can be exercised only on the basis of a constitutional violation. 


4)       Keyes v. School District No. 1 (1973)

§         Court said that de facto segregation violated the EPC only when it was produced by intentionally invidious discrimination.  Where no statutory dual system of segregated schools has ever existed, plaintiffs must prove that segregated schooling exists AND that it was brought about or maintained by intentional state action. 


E)      Limits of Judicial Remedial Power

Milliken v. Bradley (1974)

§         The scope of the remedy is determined by the nature and extent of the constitutional violation.

§         Before school district boundaries can be crossed for remedial purposes, it must be shown that there has been a constitutional violation in one district that produces a significant segregative effect in another district.  Without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy. 


F)      End of Judicial Supervision

1)       Once the constitutional violation has been completely cured, judicial power to monitor the defendant should cease. 

2)       Board of Oklahoma City Public Schools v. Dowell (1991)

§         Unitary status is achieved and judicial control should cease when

o        All vestiges of past discrimination have been removed and

o        The schools are in good faith compliance with any existing court orders


3)       Freeman v. Pitts (1992)

§         Vestiges of segregation that are the concern of the law must have a causal link to the de jure violation being remedied.  But resegregation that is a product NOT of state action but of private choices does NOT have constitutional implications. 


VI      Affirmative Action

A)      Regents of the University of California v. Bakke (1978)

1)       FACTS

§         University of California at Davis Medical School set aside 16 of its total of 100 seats for minorities (blacks, chicanos, asians, and Indians).  White applicants could not compete for those 16 spots, they could only compete for 84 spots, whereas minority applicants could compete for all 100 spots. 


2)       HELD

Court held that race can be considered in university admissions, but not in the way that UC Davis Medical School considered it.  Court ordered that Bakke be admitted to the medical school. 



§         Strict scrutiny applies to all classifications based on race, even those that are “benign” in that they discriminate in favor of a minority.  Government must prove compelling governmental interest and that the classification is necessary (narrowly tailored) to accomplish the governmental goal. 

§         Purposes offered by UC Davis Medical School:

o        Assure that a certain percentage of the student body is comprised of minorities.  INVALID PURPOSE.  Court says that preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake and it forbidden by the Constitution.

o        Countering the effects of “societal discrimination.”  INVALID PURPOSE.  Without evidence of specific discrimination that constitutes a constitutional violation (like in the school desegregation cases) the government does NOT have a compelling interest in correcting the discrimination by harming another group. 

o        Increasing the number of physicians that will practice in minority communities, the “role model” approach.  INVALID PURPOSE. 

o        Obtaining the educational benefits that flow from a diverse student body.  VALID PURPOSE. 

§         Court says that the means used by UC Davis Medical School are NOT necessary (or narrowly tailored) to achieve their goal of diversity. 

o        Assignment of a fixed number of spots for minorities is NOT a necessary means. 

o        The fatal flaw in the program is that it disregards individual rights. 



§         Brennan would not use strict scrutiny, but rather a form of intermediate scrutiny. 

§         The government must show an important and articulated purpose for its use of race in classification AND any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political processes. 

§         Brennan says UC Davis’s goal of remedying past societal discrimination is a VALID purpose and is sufficiently important to justify the use of race-conscious criteria.  Brennan then says that the classification does NOT stigmatize any group.  Bakke was not stamped as inferior.  Use of racial preferences for remedial purposes does not inflict a pervasive injury upon individual whites. 



§         Stevens would avoid the constitutional issue and deal only with the Title VI statute. 



§         There is no majority opinion.  Powell’s opinion was his own.  To decide the rationale, try to find the least common denominator which most of the justices would have agreed upon. 

§         Brennan’s group probably would have signed on to Powell’s opinion rather than strike down the whole program, so Powell’s opinion pretty much is the opinion to go with. 


B)      Wygant v. Jackson Board of Education (1986)

1)       Court held that racially preferential layoffs violated equal protection, but could not form a majority as to the reasons. 

2)       Powell said strict scrutiny and societal discrimination was not a compelling interest, a showing of prior discrimination by the governmental unit involved was required before allowing limited use of racial classifications in order to remedy such discrimination.  Also, even if it was a compelling interest, that the layoff plan was not narrowly tailored. 


C)      City of Richmond v. J.A. Croson Co. (1989)

1)       FACTS

§         City of Richmond required that general contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to a minority subcontractor. 

§         City showed that very few contracts had been awarded to minority businesses and there was virtually no minority business involvement in contractor’s associations.

§         City’s purpose was to remedy effects of past discrimination in the construction industry. 

§         There was NO evidence of race discrimination on the part of the city in awarding contracts. 


2)       HELD

No compelling interest. Not narrowly tailored.


3)       ANALYSIS

§         No compelling interest.  An amorphous claim that there has been past discrimination in a particular industry is not a compelling governmental interest.  States may take remedial action when they have evidence that their own practices are exacerbating a pattern of discrimination, but they must identify that discrimination with some specificity before they may use race-conscious relief.

§         Not narrowly tailored.  No consideration of race-neutral means to increase minority business participation other than use of a race-based quota.  The only goal to which the quota could be narrowly tailored is outright racial balancing, which is not a compelling interest.  No need for a quota because they already have to consider contracts on a case by case basis. 



§         Nothing in the opinion precludes a state or city from taking action to rectify effects of identified discrimination within its jurisdiction. 



§         Agrees that strict scrutiny should apply to all race-based classifications.

§         Disagrees with the dicta that suggests that governments may in some circumstances discriminate on the basis of race in order (in a broad sense) to ameliorate the effects of past discrimination.

§         Says that at least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb (ex- prison riot requiring temporary segregation of inmates) can justify an exception to the principle that the Constitution is colorblind. 



§         Race-conscious classifications to further remedial goals must serve important governmental objectives and be substantially related to achievement of those objectives.  This program is constitutional under those standards.  Remedying past discrimination is an important goal. 


D)      Metro Broadcasting v. FCC (1990)

Court held that benign racial preferences used by the FEDERAL government would be subjected to intermediate scrutiny.  This made it so that state preferences would be subject to strict scrutiny and federal preferences to intermediate scrutiny.  This was overruled by Adarand


E)      Adarand Constructors, Inc. v. Pena (1995)

1)       FACTS

§         US Dept of Transportation gave additional compensation to contractors that hired subcontractors who were controlled by “socially and economically disadvantaged individuals.”  This was required by federal law. 

§         Adarand is not one of these subcontractors and was not awarded a contract even though it had the low bid because of the additional compensation given to the contractor to hire a minority subcontractor. 

§         Adarand claims that the law requiring additional compensation violates the Fifth Amendment obligation not to deny equal protection of the laws. 


2)       HELD

§         Strict scrutiny should be applied to all racial classifications whether by states or federal government. 

§         Remanded.


F)      Grutter v. Bollinger (2003)

1)       FACTS

§         University of Michigan Law School’s admissions policy requires officials to look beyond grades and test scores to other criteria that are important to the school’s education objectives. 

§         School seeks a “critical mass” of underrepresented minority students. 

§         School’s interest is the educational benefits of a diverse student body. 

§         Critical mass means meaningful numbers or meaningful representation sufficient to encourage minority students to participate in class discussion and not feel isolated. 


2)       HELD

§         Diversity in education is a compelling state interest.

§         Program is narrowly tailored because it involves “individualized consideration” of each student. 


3)       ANALYSIS

§         Court “defers” to the school’s judgment that diversity is a compelling educational objective.  (Weird – in strict scrutiny the Court shouldn’t really be deferring to anything)

§         To be narrowly tailored, a race-conscious admissions program cannot use a quota system.  University may consider race as a plus in a particular applicants file without insulating the individual from comparison with all other candidates for available seats.  Program must be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each application to place them on the same footing for consideration.



§         Law school’s program is NOT narrowly tailored.  Law school is just trying to achieve racial balancing.

§         Court applies strict scrutiny too deferentially.  It’s really not strict scrutiny. 

§         Percentage of minorities admitted is the always the same as the percentage which applied. 

§         Also, the plan is not narrowly tailored because there is no time limit on the school’s use of race. 



§         Court doesn’t really apply strict scrutiny.  Individual determination is NOT preserved at the end of the admissions process.  For the last 15-20% of the seats race is outcome determinative for many members or minority groups. 



§         Critical mass is a sham to cover racially proportionate admissions. 



§         No pressing public necessity to have a public law school, much less an elite public law school.  Marginal improvements in legal education (from diversity) do not qualify as a compelling interest. 

§         Lots of race-neutral alternatives available, but the Court doesn’t require the school to consider any of those.

§         Don’t use the LSAT.  Schools know minorities perform poorly on it, but then still use it and want to correct for it by using racial discrimination in the admissions process. 


G)     Gratz v. Bollinger (2003)

1)       FACTS

§         University of Michigan Undergraduate Admissions uses a point system in which an applicant received 20 points based upon membership in an underrepresented minority group.  The total amount of points needed for automatic admission was 100-150. 

2)       HELD

§         Diversity is a compelling objective.

§         Program is NOT narrowly tailored. 


3)       ANALYSIS

§         Program not narrowly tailored because it does not provide individualized consideration.  The distribution of 20 points has the effect of making race decisive in many cases. 

§         The fact that individualized consideration might present administrative challenges does NOT render constitutional an otherwise problematic system. 



§         The admissions program is closer to what was approved in Grutter than what was rejected in Bakke.  No quota.  Lots of factors taken into account.  Valid.


VII    “Enhanced” Minimal Scrutiny

The Court often declares that in applying minimal scrutiny it will not strike down legislation because its purpose is unwise.  But sometimes the court says that it is applying minimal scrutiny but it’s actually applying some type of heightened scrutiny.


A)      United States Department of Agriculture v. Moreno (1973)

1)       FACTS

§         Food Stamp Act excluded from participation in the food stamp program any household containing an individual unrelated to any other individual.  The Act originally stated that any group of people living together as one economi