Constitutional Law II: Second Review

1. Constitutional Law II: Second Review Professor Morrison Spring 2006

2. Subjects Covered • Equal Protection • State Action • Congressional Enforcement Constitutional Law II: Review 2

3. Equal Protection

4. Equal Protection • Provided by 14th Amendment • Applies against “state action” (see below) • Parallel doctrine limits federal government under 5th Amendment, but probably not as strong Constitutional Law II: Review 2

5. All laws classify (discriminate) • Every law classifies between those covered by the law and those not covered • In some cases classification is more obvious • Question is whether the classification has a sufficient justification to pass constitutional scrutiny Constitutional Law II: Review 2

6. Three basic tests • Strict scrutiny • Intermediate scrutiny • Basic scrutiny Constitutional Law II: Review 2

7. Strict Scrutiny • Applies to classifications based on race Brown v. Board of Education • Also applies to some classifications based on alienage In re Griffiths • But not to those involving exercise of political rights or public office Foley v. Connelly • Or on some federal actions Hampton v. Mow Sun Wong; Matthews v. Diaz • Also applies to somecases involving fundamental rights (see below) Constitutional Law II: Review 2

8. Strict scrutiny • Law must have • Compelling public purpose • No less burdensome means (more recently: “must be narrowly tailored”) • Burden is on state to demonstrate this Constitutional Law II: Review 2

9. Intermediate scrutiny • Applies to gender discrimination Craig v. Boren Constitutional Law II: Review 2

10. Intermediate scrutiny • Law must have • Important governmental purpose • Be substantially related to it Craig v. Boren • More recently: “exceedingly persuasive justification” U.S. v. Virginia • Burden is on state to demonstrate this Constitutional Law II: Review 2

11. Basic scrutiny • Applies in all other cases Railway Express v. New York Constitutional Law II: Review 2

12. Basic scrutiny • Law must have • A legitimate public purpose • Rational relationship to it • Burden is on challenger to demonstrate this Constitutional Law II: Review 2

13. Other suspect (or semi-suspect) classes • Alienage (see above) • Legitimacy Constitutional Law II: Review 2

14. Other classifications are not suspect • Age • Wealth Constitutional Law II: Review 2

15. Fundamental rights • Also invoke strict scrutiny • Political rights (ballot access, voting, equal representation) • Access to the courts • Family rights (right to marry, etc.) Constitutional Law II: Review 2

16. Are these tests fixed steps or a flexible incline? • Are these pigeonholed standards, or is there a flexible standard? • Effect on democratic institutions • Problem cases (don’t fit nicely): • Alienage (see above) • Illegitimacy—”heightened scrutiny” • Cases like Cleburne v. Cleburne Living Center Constitutional Law II: Review 2

17. Invoking higher levels of scrutiny • Show discrimination on the face of the law • Purpose to discriminate • Yick Wo v. Hopkins • Washington v. Davis • Mere disparate impact is not enough • Distinguish constitutional and statutory claims • Keyes v. School District • Facts can establish discriminatory purpose • Note evolution of standards Constitutional Law II: Review 2

18. Remedies • To create (restore) proper relationship • If racial discrimination case, can include remedies that seek to offset that wrong, even if based on race. Swann v. Charlotte-Mecklenberg • Cannot involve orders against additional entities not party to the discrimination. Milliken v. Bradley • When effects of prior discrimination have been corrected, injunction can be ended. Board of Ed. of Oklahoma City v. Dowell Constitutional Law II: Review 2

19. Affirmative action • In education, diversity may be a sufficiently compelling public interest Gratz • But the action must still be “narrowly tailored” Grutter • In other areas, the compelling interest may be harder to show Croson, Adarand Constitutional Law II: Review 2

20. State action

21. State action • 14th amendment says “No state shall …” • Only limit is on states and their agents and instrumentalities • Private persons (and companies) not limited by 14th amendment unless they are agents of the state • Private parties can be limited by other laws Constitutional Law II: Review 2

22. Typical state action • The state itself • A state agency • E.g., a state university • A unit of local government created by the state • An employee of one of the above, acting on its behalf Constitutional Law II: Review 2

23. State action: public function • Public function Marsh v. Alabama • Including primary elections Terry v. Adams • But not shopping centers Lloyd v. Tanner • And not privately-owned public utilities Jackson v. Metropolitan Edison • Function must be one that ONLY the state can perform Constitutional Law II: Review 2

24. State action: Symbotic relationship • “Symbotic relationship” Burton v. Wilmington Parking Authority Constitutional Law II: Review 2

25. State action:State enforcement of claims • State enforcement of restrictive covenants is not permitted Shelley v. Kraemer • But private action pursuant to law is allowed Contrast Evans v. Abney and Newton v. Abney Constitutional Law II: Review 2

26. State action: State enforcement of claims • Similarly under due process: • Use of state agency to enforce a claim (e.g., repossession) requires due process Lugar v. Edmonson Oil • But private action (e.g., sale of goods for failure to pay storage charges) does not Flagg Bros. v. Brooks • Distinguish a sheriff and a “repo man” Constitutional Law II: Review 2

27. State action: Receipt of public money not enough • The mere fact that a party receives state funds is not enough, by itself, to create state action. Rendell Baker v. Kohn Constitutional Law II: Review 2

28. Congressional Enforcement of Civil Rights

29. “Enforcement clauses” of 13th 14th and 15th amendments • Congress is given power “to enforce” 13th, 14th, and 15th amendments • Laws sometimes enacted under these provisions but sometimes under other authority • Reason: 14th amendment doesn’t reach private action, so Congress seeks other authority, e.g., commerce clause Constitutional Law II: Review 2

30. 13th Amendment • Prohibits slavery • Interpreted to include power to eliminate “badges and incidents of slavery” • Federal laws enacted under it may thus reach private actors. Jones v. Alfred Mayer Co. • But only applies to racial discrimination (because of its association with slavery) Constitutional Law II: Review 2

31. 14th Amendment • State action requirement limits its usefulness • Private action must be reached through Commerce Clause, 13th Amendment, or otherwise • Can apply to all denials of equal protection and due process Constitutional Law II: Review 2

32. Enforcement of the 14th Amendment • Congressional action must be • Proportional • Congruent City of Boerne v. Flores; U.S. v. Morrison • Congress must enforce, not define, the right Constitutional Law II: Review 2

33. Other enforcement clauses • 15th Amendment. Voting. Katzenbach v. Morgan • 19th Amendment. Women’s suffrage. • 23rd Amendment. Voting in D.C. • 24th Amendment. Poll tax • 26th Amendment. Voting age of 18. Constitutional Law II: Review 2

34. 11th Amendment • Text prohibits suits in U.S. courts against a State, if brought by residents of other States or of foreign countries • By extension, also prohibits suits in U.S. courts against States, if brought by citizens of that State. Hans v. Louisiana Constitutional Law II: Review 2

35. 11th Amendment • Precludes suits in federal court against a State under the Constitution or under federal laws enacted under the powers granted in the text of the Constitution itself. • Also prevents Congress from creating a cause of action in state court. Alden v. Maine. • Also prevents administrative adjudication. Federal Maritime Comm’n v. South Carolina Ports Authority Constitutional Law II: Review 2

36. 11th Amendment • Does not preclude— • Use of federal law as a defense in a suit brought by the state • Appeal of a state case to federal court • Suit against an officer or employee, or against an entity created by the State Ex parte Young • Suits against cities, counties, etc. • Suits against the Attorney-General, etc. Constitutional Law II: Review 2

37. 11th Amendment • Also does not preclude suits under amendments after it; or under statutes enacted under authority granted by those amendments • So— • Cannot sue State if statute enacted under Commerce Clause • Can sue State if enacted under 14th Amendment • Can sue State officials, subject to limitations Constitutional Law II: Review 2

38. Minnesota law • Minnesota has waived its sovereign immunity (and the protection of the 11th Amendment) with respect to— • Age Discrimination in Employment Act • Fair Labor Standards Act • Family and Medical Leave Act • Americans with Disabilities Act Minn.Stat. sec. 1.05 Constitutional Law II: Review 2