CONSTITUTIONAL LAW II

TOWARD A DOCTRINE OF STATE ACTION:

CONSTITUTIONAL PROVISIONS
FIRST AMENDMENT
- Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances.

FIFTH AMENDMENT
- No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation

THIRTEENTH AND FOURTEENTH AMENDMENTS

- 13th Amendment
 o Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the US, or any place subject to their jurisdiction

- 14th Amendment
o All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

- 15th Amendment
o The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color,
or previous condition of servitude.
o The Congress shall have power to enforce this article by appropriate
legislation.

CIVIL RIGHTS CASES

STATE ACTION IN THE CIVIL RIGHTS ERA

MARSH v. ALABAMA
o FACTS
o ISSUES
o RELEVANT FACTS THAT DEMONSTRATE THIS PRIVATE
COMPANY PERFORMS THE FUNCTIONS OF A MUNICIPALITY
(THEREFORE A PUBLIC ENTITY)?
 Mail from all towns passed through this post office
o ARGUMENT OF THE STATE?
o DOES THE COURT AGREE?
 When we balance the Constitutional rights of owners of
property against those of the people to enjoy freedom of press
and religion, as we must here, we remain mindful of the fact
that the latter occupy a preferred position
  This private entity was acting in a way that state/public entities do
 Although title to the sidewalks was in the corporation, the
corporation was performing “essentially a public
function” so corporation was a state—rather than private—
actor

SHELLEY v. KRAEMER
o ISSUE: racially restrictive covenant
 ". . . the said property is hereby restricted to the use and occupancy
for the term of Fifty (50) years from this date, so that it shall be a
condition all the time and whether recited and referred to as [sic]
not in subsequent conveyances and shall attach to the land as a
condition precedent to the sale of the same, that hereafter no part
of said property or any portion thereof shall be, for said term of
Fifty-years, occupied by any person not of the Caucasian race, it
being intended hereby to restrict the use of said property for said
period of time against the occupancy as owners or tenants of any
portion of said property for resident or other purpose by people of
the Negro or Mongolian Race."
o HOLDING: Racially restrictive agreements, standing alone, cannot be
regarded as being in violation of any rights guaranteed to petitioners
by the Fourteenth Amendment.
 Judicial enforcement of these racially restrictive covenants, makes
the state involved in these covenants
 Restrictive covenants alone do not violate 14th amendment
rights
o BUT, once the courts get involved and
restrict/impose/allow those covenants THEN it is
state action and, therefore, a violation of those
rights
 Private parties may abide by the terms of such a restrictive
covenant, but they may not seek judicial enforcement of such a
covenant, as that would be a state action. Because such state
action would be discriminatory, the enforcement of a racially based
restrictive covenant in a state court would therefore violate the
Equal Protection Clause of the Fourteenth Amendment.

BURTON v. WILMINGTON PUBLIC AUTHORITY

o Is a city constitutionally responsible for racial discrimination practiced by
privately-owned restaurant which rented spaced in its municipal parking
garage?
o COURT SAYS: It is irony amounting to grave injustice that in one part of
a single building, erected and maintained with public funds by an agency
of the State to serve a public purpose, all persons have equal rights, while
in another portion, also serving the public, a Negro is a second-class
citizen, offensive because of his race, without rights and unentitled to
 service, but at the same time fully enjoys equal access to nearby
restaurants in wholly privately owned buildings.
 Sifting facts and weighing circumstances…

- HYPO: Would a judge be likely to grant or deny a motion to dismiss for failure to
allege sufficient state action, if P alleged:
o The Alabama Legislature passed a statute that violated the plaintiff’s First
Amendment right to freedom of speech
 DENIED—because it is state legislatureSTATE ACTION
o The City of Austin, TX passed an ordinance that violated P’s First
Amendment right to free exercise of religion
 DENIED—municipality/governmentSTATE ACTION
o The Dept. of Prisons of NV, a state administrative agency, promulgated a
regulation that violated P’s First Amendment right to freedom of press
 DENIED—state agencySTATE ACTION

MOOSE LODGE v. IRVIS

o Justice Renquist: [Moose Lodge is] a private club in the ordinary
meaning of that term. It is a local chapter of a national fraternal
organization having well-defined requirements for membership. It
conducts all of its activities in a building that is owned by it. It is not
publicly funded. Only members and guests are permitted in any lodge of
the order; one may become a guest only by invitation of a member or
upon invitation of the house committee.
 Local, private club that refuses to sell alcohol to black man
o ISSUE: is Moose Lodge a private or state actor?
o HOLDING: PRIVATE—no symbolic relationship between the state and
Moose Lodge other than giving it a liquor license

STATE ACTION
BLUM v. YARETSKY (nursing home determines level of care needed/transfers)
o TEST for State Action
 Sufficiently close nexus
 When state exercises coercive power (Shelley)
 Private entity exercises powers that are traditionally the exclusive
privilege of the state; traditionally prerogative of state (Marsh)
PEREMPTORY CHALLENGES AND BATSON
- Preemptory challenges cannot be used to exclude jurors on the basis of race
- Applied only to prosecution of criminal trials
- And the juror must be the same race as he defendant trying to strike them
- To use a peremptory challenge, Batson establishes that they must be able to show
a compelling justification for why their exclusion was not based on race

ISSUE:
(1) Threshold question: Are civil proceedings state action? (Yes)
(2) Do the Batson requirements apply in civil proceedings? (Yes)
  
RULE:
To determine state action [two-part inquiry]: 
(1) Whether the claimed constitutional deprivation resulted from the exercise of a
right or privilege having its source in state authority, and 
(2) Whether the private party charged with the deprivation could be described in all
fairness as a state actor 
 
When determining part 2, it is relevant to examine the following: 
(a) The extent to which the actor relies on governmental assistance and benefits
(Burton v. Wilmington Parking Authority), 
(b) Whether the actor is performing a traditional government function (Marsh v.
Alabama), and
(c) Whether the injury caused is aggravated in a unique way by the incidents of
governmental authority (Shelley v. Kraemer) 

- Private attorney engaging in preemptory challenges but for all intents and
purposes they are acting under the state 
(1) The extent to which the actor relies on governmental assistance and
benefits (Burton v. Wilmington Parking Authority), [PART 1]
Reasoning: Judges take part in the jury system 
(2) Whether the actor is performing a traditional government function
(Marsh v. Alabama), and [PART 2]
Reasoning: Depends on governmental assistance; venue itself it the
courtroom 
(3) Whether the injury caused is aggravated in a unique way by the
incidents of governmental authority (Shelley v. Kraemer) [PART 3]
Reasoning: Injury caused by the discrimination makes it more severe
because the government allowed it to occur within the courtroom; state
government has a clear involvement 

Acting in a context the government created themselves 

EDMONSON v. LEESVILLE CONCRETE COMPANY, INC.
o FACTS: Edmonson (P) construction worker injured on job for D; P sues D
in fed. dist. court for negligence—invoked right to jury trial;
o PP: D used two of its three statutorily-permitted peremptory challenges
to remove AA persons from the jury—P, an AA, requested that the court
require D to give race-neutral reason for this—court DENIED; RESULT:
jury of 11 white people and 1 AA; jury verdict for P of 90K, reduced to
18K because P was 80% at fault; P appealed to court of app.—affirmed;
SCOTUS granted certiorari
o ISSUE: May a private litigant in a civil case use preemptory challenges to
exclude jurors on account of their race?
o RULE: A private litigant in a civil case may not use peremptory
challenges to exclude jurors on account of their race because the
exercise of peremptory challenges invokes state action
 o HOLDING: REVERSED
o RATIONALE: Lugar v. Edmonson Oil two-step analysis: (1) the act of
exercising peremptory challenges has its source in state authority & only
exercised based on statutory authority provided by the government (2) D
can be a government actor here—state action is when private parties make
“extensive use of state procedures with the overt, significant assistance
of state officials”
 HERE, the judge, state actor, enforced D’s discriminatory
peremptory challenges and effected the final/practical denial of the
excluded jurors’
 THEREFORE, D acted under state authority, and the
discriminatory challenges are prohibited by 14th amendment
o O’CONNOR DISSENT: just because the state provides the forum (the
courtroom); this was a matter of private choice, not state action
o SCALIA DISSNET: majority decision harms minority D’s by preventing
them from using race-based peremptory challenges to keep minorities on
jury; increases workload of the courts and detracts from the merits of the
underlying litigation

NCAA v. TARKANIAN
o FACTS: NCAA (D) adopted rules government the way its colleges could
engage in recruiting; investigation found coach (P) of UNLV and officials
committed 38 rules violations, including 10 by P—college resigned coach
rather than fire him; P filed for injunction alleging violation of DPC
o PP: trial court held D did violate P’s DPR because it was a “state actor”; D
appealed; NSC affirmed; SCOTUS granted certiorari
o ISSUE: Is NCAA a state actor whose actions can trigger DPC protections
under the 14th amendment?
o RULE: the NCAA is not a state actor whose actions can trigger due
process protections under the 14th Amendment to the USC
o HOLDING: REVERSED
o RATIONALE: typically, the question is whether the State was
sufficiently involved to treat the conduct as state action
 HERE, P argues D misused power it gained when UNLV
delegates some authority to adopt rules governing athletic
programs and to enforce rules on behalf of the college
 QUESTION: whether UNLV’s actions in compliance with
NCAA rules and recommendations turned NCAA’s conduct
into state action
 While UNLV had some input so did all other colleges—not
enough for state action
 The NCAA was never delegated specific power to take
action against a UNLV employee
 NCAA is a private actor at odds with the state when it represents
the interests of its entire membership in an investigation of one
public university
  NCAA could only threaten sanctions against the college
itself
o DISSENT: incorrect conclusion that NCAA and UNLV did not act jointly
when P was suspended—private parties may be state actors in
scenarios where the final act was carried out by a state official
- Arguments made by Tarkanian:
1. UNLV and NCAA are engaged in a joint action
a. The rule making is what the university adopts 
2. University has essentially delegated power to the NCAA
a. About trying to show NCAA is a state actor 
3. Partnership which is about the transfer of certain university powers to
NCAA
4. Power of the NCAA is so great that no university including UNLV have no
alternative BUT to meet with their demands 

SLAVERY AND RACIAL EQUALITY / CONSTITUTIONAL EQUALITY BEFORE

THE RECONSTRUCTION AMENDMENTS
PRIGG v. PENNSYLVANIA
o RULE: The USC grants exclusive authority to the federal government for
making laws regulating the capture and return of fugitive slaves
o Court says…
 WAS AN UNQUALIFIED RIGHT
 No state law or regulation can qualify or restrain the rights of the
slave owner
 UNQUALIFIED AND POSITIVE RECOGNITION OF RIGHTS
IN OWNERS OF SLAVE
 AND IS UNAFFECTED BY ANY STATE LAW OR ANY
STATE REGULATION WHATSOEVER
o Protecting “property”
 They require the aid of legislation to protect the right, to enforce
the delivery, and to secure the subsequent possession of the slave.
If, indeed, the Constitution guaranties the right, and if it requires
the delivery upon the claim of the owner (as cannot well be
doubted), the natural inference certainly is that the National
Government is clothed with the appropriate authority and functions
to enforce it. The fundamental principle, applicable to all cases of
this sort, would seem to be that, where the end is required, the
means are given; and where the duty is enjoined, the ability to
perform it is contemplated to exist on the part of the functionaries
to whom it is entrusted.
SCOTT v. SANDFORD
o ISSUE: The only matter in issue before the court, therefore, is, whether
the descendants of such slaves, when they shall be emancipated, or who
are born of parents who had become free before their birth, are citizens of
a State in the sense in which the word "citizen" is used in the Constitution
of the United States.
 o RULE: People of African descent brought to the US and held as slaves, as
well as their descendants (either slave or free), are not considered citizens
of the US and are not entitled to the protections and rights of the
Constitution
 “…. the right of property in a slave is distinctly and expressly
affirmed in the Constitution. The right to traffic in it, like an
ordinary article of merchandise and property, was guaranteed to
the citizens of the United States in every State that might desire it
for twenty years. And the Government in express terms is pledged
to protect it in all future time if the slave escapes from his owner.
“

EARLY CASES APPLYING THE RECONSTRUCTION AMENDMENTS

PLESSY v. FERGUSON
- LA Statute: …… that all railway companies carrying passengers in their
coaches in this state, shall provide equal but separate accommodations for the
white, and colored races, by providing two or more passenger coaches for each
passenger train, or by dividing the passenger coaches by a partition so as to
secure separate accommodations * * *. No person or persons shall be permitted
to occupy seats in coaches, other than the ones assigned to them, on account of
the race they belong to.
o Standard of Review: reasonableness
- Legal Equality v. Other Types of Equality
o The object of the [fourteenth] amendment was undoubtedly to enforce the
absolute equality of the two races before the law, but, in the nature of
things, it could not have been intended to abolish distinctions based upon
color, or to enforce social, as distinguished from political, equality, or a
commingling of the two races upon terms unsatisfactory to either. Laws
permitting, and even requiring, their separation, in places where they
are liable to be brought into contact, do not necessarily imply the
inferiority of either race to the other………..
- “Color Blind Constitution”
o The white race deems itself to be the dominant race in this country. And
so it is, in prestige, in achievements, in education, in wealth, and in power.
So, I doubt not, it will continue to be for all time, if it remains true to its
great heritage, and holds fast to the principles of constitutional
liberty…………
o Our constitution is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens are equal
before the law.

DISMANTLING PLESSY:
STATE OF MISSOURI EX REL. GAINES v. CANADA
- FACTS: Gaines is a citizen of Missouri and is refused admission at State of
Miss.; claims denial of admission was denial of equal protection rights under 14th
Amendment
 o Petitioned for the courts to enforce his admission
- HERE, petitioner's right was a personal one. It was as an individual that he was
entitled to the equal protection of the laws, and the State was bound to furnish him
within its borders facilities for legal education substantially equal to those which
the State there afforded for persons of the white race, whether or not other
negroes sought the same opportunity.
o A state CANNOT delegate its duty to provide equal education
- DISSENT: state rights

SWEATT v. PAINTER
- This case {and another} present different aspects of this general question: to
what extent does the Equal Protection Clause of the Fourteenth Amendment
limit the power of a state to distinguish between students of different races in
professional and graduate education in a state university?

BROWN v. BOARD OF EDUCATION

- RULE: in the field of public education, the doctrine of "separate but equal" has
no place. Separate educational facilities are inherently unequal

DISMANTLING BROWN?
BOLLING v. SHARPE
o But the concepts of equal protection and due process, both stemming from
our American ideal of fairness, are not mutually exclusive. The "equal
protection of the laws" is a more explicit safeguard of prohibited
unfairness than "due process of law," and, therefore, we do not imply
that the two are always interchangeable phrases. But, as this Court has
recognized, discrimination may be so unjustifiable as to be violative of
due process.
o Segregation in public education is not reasonably related to any
proper governmental objective, and thus it imposes on Negro children of
the District of Columbia a burden that constitutes an arbitrary deprivation
of their liberty in violation of the Due Process Clause of 5th Amendment.
 Classifications based on race must be “scrutinized with
particular care” – contrary to “our traditions” and thus
“constitutionally suspect

BROWN v. BOARD OF EDUCATION OF TOPEKA (BROWN II)

o The cases are remanded to the District Courts to take such proceedings
and enter such orders and decrees consistent with this opinion as are
necessary and proper to admit to public schools on a racially
nondiscriminatory basis with all deliberate speed the parties to these cases.

COOPER v. AARON
o Article VI of the Constitution makes the Constitution the "supreme Law of
the Land." In 1803, Chief Justice Marshall, speaking for a unanimous
Court, referring to the Constitution as "the fundamental and paramount
 law of the nation," declared in the notable case of Marbury v. Madison,
that "It is emphatically the province and duty of the judicial department to
say what the law is."

DE JURE // DE FACTO SEGREGATION

- De jure – classification, including segregation on the face of the law or policy
- De facto – law or policy is neutral on its face but either applied in a
discriminatory manner or has a discriminatory impact.

RACE AND EQUAL PROTECTION: TOWARDS STRCIT SCRUTINY

CAROLENE PRODUCTS, FOOTNOTE FOUR
- Most famous footnote for Equal Protection doctrine (US v. Carolene Products
Company)
o ISSUE: federal statute regulating shipment of “filled milk;” challenged based
on lack of Congressional power under Commerce Clause and DPC
o JUSTICE HARLAN
 The Court will continue use of heightened scrutiny where a law or
statute conflicts with Bill of Rights protections, issues with the
political process, and when regulations adversely affect “discrete and
insular minorities”
 Suggest a narrower scope for the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition
of the USC
 More exacting judicial scrutiny under the general prohibitions of
the 14th Amendment [re: legislation that restricts political processes]
o Shift in Supreme Court from protecting property rights to protecting other
individual rights
o CREATED NEW ROLE FOR COURTS concerning individual rights

- EQUAL PROTECTION:
o RATIONAL BASIS REVIEW
 The classification will be upheld if it is rationally related to a
legitimate governmental purpose
 “Reasonable Relationship” considers the fit between the ends and the
means
o STRICT SCRUTINY
 The classification is necessary to achieve a compelling governmental
interest and the goal cannot be achieved through any less restrictive
alternative
 Narrowly tailored

o TRADITIONAL EP ANALYSIS
 What is the classification?
 Rational Basis Review
(1) What is the asserted governmental interest? Is it legitimate?
 (2) What is the fit between the end and the means?

THE JAPANESE INTERNMENT CASES

HIRABAYASHI v. UNITED STATES
o FACTS: Due to Japanese attack on Pearl Harbor, EOs to prevent subversion
and espionage from those of Japanese descent living in the US; Hirabayashi
(D) was US citizen of Japanese descent—convicted for violating Act of
Congress making it a misdemeanor to knowingly disregard restrictions made
applicable by a military commander to persons in a military area prescribed by
him as such
o ISSUE: Whether this restriction was an unconstitutional exercise of
congressional/legislative power AND whether the restriction
unconstitutionally discriminates against citizens of Japanese ancestry in
violation of the Fifth Amendment
 P ARGUMENT
 D ARGUMENT
o RULE: The war power of the government is the power to wage war
successfully
 This power includes protection of war materials and members of
the armed forces
o HOLDING: affirmed
o REASONING:
 Considered the importance of military installations and weapons
production that occurred on the West Coast and the “solidarity” that
those of Japanese descent felt with their homeland
(1) The restrictions served an important national interest
o Focused on the curfew issue more than relocation—
necessary “protective measure”
 Justified because “in time of war residents having ethnic
affiliations with an invading enemy may be a greater source of
danger than those of a different ancestry”
(1) HERE, purpose of safeguarding an important military area
from sabotage/espionage by those of Japanese ancestry
[because of the threat by Japanese forces]
(2) The surrounding circumstances of the war = substantial
basis for the restriction
o CONCURRENCE [Murphy]
 The curfew order challenged 70K Americans to be placed under a
special ban/deprived of liberty because of their racial inheritance
(which resembles treatment of Jews in Germany/Europe)
 To sanction discrimination between groups of US citizens based on
ancestry = “the very brink of constitutional power”
 HERE, OK because condition of great emergency

KOREMATSU v. UNITED STATES

o FACTS: 1942, Civilian Restrictive Order #1 [EO] forcing Japanese-
Americans to move relocation camps in light of WWII; CEO #34 specifically
excluded Japanese-Americans from staying in San Leandro, CA (designate
military area)
 D (Korematsu) American citizen of Japanese descent; convicted by P
(US Government) for violating CEO #34
(1) No evidence/question of D’s loyalty to US
o Procedural History: Court of App (9th Cir.) affirmed D’s conviction and
SCOTUS granted certiorari…
o ISSUE: Is CEO #34 [requiring Japanese Americans to relocated to internment
camps during WWII] constitutional?
o RULE: State laws restricting rights based on race are subject to strict
scrutiny and will only be upheld if they further a “pressing public
necessary”
o HOLDING: affirmed conviction of D
o REASONING: Not all restrictions of civil rights for a single racial group
are automatically unconstitutional
 Subject to rigid scrutiny and only upheld if “pressing public necessity”
 Comparison to Hirabayshi v. US [upholding conviction for violation of
curfew order by Japanese American during WWII]
(1) In Hirabayshi, the order was a “protection against espionage
and sabotage”
(2) HERE, it is within power of Congress and Exec. Branch to
exclude Japanese Americans from West Coast war area during
WWII when US is in conflict with Japan
o Same concerns over preventing espionage and
sabotage = sufficient “pressing public necessity”
 Loyalty to US does not matter because military determined that many
retain loyalties to the Japanese government
 US Government does not have resources to determine loyalty
during war efforts, so this exclusion [regardless of “personal
loyalty”] is justified for “pressing public necessity”
o DISSENT [Murphy]
 Unconstitutional exercise of congressional authority and EO was
motivated by racism
 The military can make decisions, but that power is limited by the
judicial process to determine reasonableness
 Majority should have only looked to whether the exclusion was
“reasonably related” to the US interest is preventing
espionage/sabotage
(1) The mere fact that Japanese Americans are more likely to
commit certain acts, this is NOT sufficient for a racist
exclusion targeting a single group
o DISSENT [Jackson]
 The military’s authority is NOT unlimited (constrained by the
constitution)
  The courts cannot allow military decisions that are clearly
unconstitutional [as here] despite a struggle to determine/evaluate
“reasonableness” of their decision
*Korematsu case presents standard for reasonableness for necessity of a race-based
restriction

THE 14TH AMENDMENT

- All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.

EVALUATING RACIAL CLASSIFICATIONS

NOTE: STRICT SCRUTINY
o Racial classifications receive Strict Scrutiny—the government interest must
be compelling and the means chosen to serve that interest must be narrowly
tailored to achieve that interest
o Rational Basis Scrutiny requires only that the government interested be
legitimate and the means chosen to serve that interest be rationally related to
it

LOVING v. VIRGINIA
o FACTS: 1958, Jeter [black woman] and Loving [white male] (Defendants)
were married; later moved to VA (Plaintiff)—laws of VA banned interracial
marriages
 Oct. 1958: Ds indicted for violating VA law
o ISSUE: Can a state enact a statute preventing marriages between persons on
basis of racial classification without violating the EP and DPC?
 VA (P) argues that the law furthers a legitimate state purpose of
preserving racial integrity and preserving racial pride
(1) Regulation of marriage has traditionally been left to the states
(2) Argues that the meaning of the EPC is that the state is only
obligated to apply its laws equally among different groups of
people—this law prevents interracial marriage for all people,
but just Caucasians
o RULE: State cannot restrict marriages solely on basis of race under Equal
Protection and DPC of the 14th Amendment
o HOLDING: Reversed in favor of D’s
o REASONING:
 Rejects VA’s argument of equal application of the law—the statute is
motivated solely to restrict marriage based on race to which precedent
finds threatening to equality
 
At a MINIMUM, race-based classifications are subject to strict
scrutiny and must accomplish a permissible state objective
independent of the racial discrimination
(1) HERE, no legitimate purpose to justify the VA law
o CONCURRENCE:
 Notes McLaughlin v. Florida—“it is simply not possible for a state
law to be valid under our Constitution which makes the
criminality of an act depend on the race of the actor”

NEUTRAL CLASSIFICATIONS
YICK WO v. HOPKINS
o FACTS:
 San Francisco ordinance required that laundries be in brick or stone
buildings, unless operator obtained a waiver from the Board of
Supervisors.
 Over 200 waivers sought by operators of Chinese ancestry were
denied; all but one waiver by non-Chinese were granted.
 Evidence of how this “neutral” law was administered supported a
finding of violation of equal protection clause.

o RULE: A facially neutral law that is applied in a discriminatory manner

on the basis of race or nationality violates the EPC of the 14th
 14th amendment applies not only to racial discrimination but to
discrimination based on nationality or alienage as well

WASHINGTON v. DAVIS
o RULE: A state-sponsored racial classification violates the DPC of the 5th
amendment only if it is shown to have BOTH a disproportionate impact on
a particular race AND is motivated by invidious racial discrimination

ARLINGTON HEIGHTS v. METROPOLITAN HOUSING DEV. CORP.

o RULE: A state-sponsored racial classification will not be held to violate
the EPC of the 14th Amendment UNLESS P shows the law is motivated by a
discriminatory purpose AND has a discriminatory impact
 DISCRIMINATORY INTENT (FACTORS)
(1) Impact of official action and whether it bears more heavily on
one race than another
o Is the reason unexplainable in terms other than race?
(2) Show historical background of the decisions—do the facts
suggest that race is the only/primary factor
(3) Specific sequence of events leading to the challenged action
o Show some events/activities that may suggest the
officials actually were engaging in discriminatory
purposes
(4) D’s departures from normal procedures or substantive
conclusions
RACE AND EQUAL PROTECTION—AFFIRMATIVE ACTION
REGENTS OF UNIVERSITY OF CA v. BAKKE
o FACTS: UC Med school had policy reserving 16 of 100 admissions for
members of racial minority groups; P brought suit against UC (D) for this
policy after being denied while others with lesser ranks/grades got admitted
o ISSUE: Can a public university receiving federal funds constitutionally
exhibit a preference for racial minorities in its admissions policy?
o RULE: Under the EPC, a public university may NOT discriminate on the
basis of race in its admissions policies even when doing so benefits
members of minority races, and all such discriminatory racial classifications
are subject to strict scrutiny
o HOLDING: affirmed for P
o RATIONALE:
 All racial and ethnic classifications are inherently suspect and must be
viewed with strict scrutiny
 Framers of USC did NOT intend EPC to only protect racial minorities
(majority too)
*UC argued that program (1) reduces historic deficit of traditionally
disfavored minorities in medical profession, (2) counters effects of
societal discrimination, (3) increases number of physicians who will
practice in underserved communities, and (4) obtains educational
benefits associated with an ethnically diverse student body
o 1 = NO because USC forbids preferring one group to
another for no reason other than race or ethnic origin
o 2 = NO because Court will never approve classification
of racial groups to benefit those “victims” of society at
the expense of innocent people
o 3 = NO evidence that minority students will result in
greater number of physicians in underserved areas
o 4 = NO, while it is a permissible purpose, the policy
fails to consider any aspect of “diversity” other than
race

CITY OF RICHMOND v. J.A. CROSON CO.

o FACTS: City (D) adopted MBUP plan reserving 30% subcontracts for
minorities—after studies suggesting few contracts given to MBEs (no direct
evidence); P, city’s primary contractor, lost contract because of policy
o ISSUE: May a city constitutionally use a set-aside plan requiring prime
contractor to give 30% of their business to minority-controlled
subcontractors?
o RULE: Without evidence of past particular race-based discrimination, a
city may NOT enact a plan to provide race-based set-aside to exclusively
promote minority business enterprises, as this does not constitute
narrowly tailored means geared towards accomplishing a compelling
state purpose
 o HOLDING: affirmed for Croson—does not pass strict scrutiny
o RATIONALE:
 City must show it used narrowly tailored means to accomplish a
compelling state interest
 No evidence to justify beyond a general assertion of discrimination in
business contracts towards African Americans
 Absent evidence of particularized discrimination against minorities
and D does not consider other race-neutral alternatives that might
accomplish the same purposes

GRUTTER v. BOLLINGER
o FACTS: UM Law followed policy for student body diversity; P, white state
resident, was rejected with a 3.8 GPA and 161 LSAT score—filed suit against
Bollinger (university president) alleging violation of EPC
o PP: district court found for P; court of appeals reversed; SCOTUS granted
certiorari
o ISSUE: Can a school use race as a factor in student admissions without
violating the EPC
o RULE: Consideration of race as factor in admissions by a state law school
does NOT violate the 14th amendment BECAUSE supporting student
body diversity is a compelling state interest; however, the school must
demonstrate it previously made a serious, good faith consideration of
workable, race-neutral alternatives to achieve the sought-after racial
diversity
o HOLDING: affirmed for D—policy does not violate EPC
o RATIONALE:
 Student body diversity is a compelling state interest that justifies use
of race in admissions process
 Strict scrutiny—deference given to school’s admissions department’s
determination that diversity is essential to its educational mission—
benefits like promotion of cross-racial understanding, breaking down
stereotypes, and for students to get a better understand of other races =
compelling state interests
o Racial classifications merit strict scrutiny, which can
be met by the compelling governmental interest in
diversity in higher education, and the means chosen
will be narrowly tailored if they are based on a holistic
approach that does not use a quota and does not cause
an undue burden on individuals and there has been a
serious good faith consideration of race-neutral
means.
 School provided reasons that alternative methods risk sacrificing both
academic excellence and other types of diversity in the school
 HOWEVER, D should cease racial consideration in its admissions
policies after instances of past discrimination have been sufficiently
remedied
 GRATZ v. BOLLINGER
o FACTS: P, white, applied to UM and were denied—filed suit challenging
policy ranking applicants on 150 point scale (GPA, testing, personal
achievements) that gave 20 bonus points to minorities, attending minority or
disadvantaged high school, or recruited for athletics
o PP: district court found for P and issued injunction to prohibit use of policy;
court of appeals reversed; SCOTUS granted certiorari
o ISSUE: Whether racial preferences in undergraduate admissions violates the
EPC…
o RULE: A university’s admissions policy that automatically gives
preference to minority students on the basis of race, without additional
individualized consideration, violates the EPC
o HOLDING: found for P but remanded to district court for further
consideration re: summary judgment
o RATIONALE:
 Applicants are not afforded individualized review and the extra points
guarantee admission to minimally-qualified minority applicants
(1) D argues that policy manages the volume of applications
received
o The burden of a more individualized consideration (as a
less restrictive alternative) does not render this policy
constitutional
 D’s use of race in policy is NOT narrowly tailored to achieve the
asserted compelling interest in diversity

AFFIRMATIVE ACTION: LOOKING AHEAD

FISHER II
PARENTS INVOLVED
o Before Brown, schoolchildren were told where they could and could not go to
school based on the color of their skin. The school districts in these cases have
not carried the heavy burden of demonstrating that we should allow this once
again—even for very different reasons. For schools that never segregated on
the basis of race, such as Seattle, or that have removed the vestiges of past
segregation, such as Jefferson County, the way “to achieve a system of
determining admission to the public schools on a nonracial basis,” Brown II,
is to stop assigning students on a racial basis. The way to stop discrimination
on the basis of race is to stop discriminating on the basis of race. (p.828)

NONRACIAL CLASSIFICATIONS AND EQUAL PROTECTION: RATIONAL BASIS

STANDARD AS DEFAULT
RAILWAY EXPRESS AGENCY, INC. v. NEW YORK
o FACTS: NY (P) statute prohibiting vehicles devoted to solely advertising, but
allowed business vehicles to display signs for their business IF not solely for
advertising; D operated 1,900 trucks in NYC and sold ad space on sides of
 trucks unrelated to business; D convicted for violating statute; D appeals to
SCOTUS for statute’s lack of relation to legit state purpose and violated EPC
o RULE: A state law that is substantially underinclusive does not
necessarily violate the EPC because a state may rationally decide to
address a public problem in phases
 Cannot infer “no rational basis” (D’s argument rejected)
 Regulation passes rational basis review

o EPC ISSUE? (14th) STANDARD OF REVIEW…

 TEXT—EPC
 CLASS? Identify (i.e. truck businesses)
 Has the SCOTUS identified this class is suspect class?
o Immutable characterization (i.e. being black/Asian)
o Has the class been discriminated against historically?
 If YES, strict scrutiny (compelling interest,
narrowly tailored)
 If NO, rational basis (compelling interest,
reasonable related)

o THREE APROACHES TO “STANDARD OF NEED”

 That every family shall receive grants sufficient to meet fully the
determined standard of need.
 That each family unit shall receive a percentage of the determined
need.
 Grants to most families in full accord with the ascertained standard of
need, but imposition of upper limit on total amount of money any one
family unit may receive.

DANDRIDGE v. WILLIAMS
o FACTS: P in class of P’s challenging rule imposed by State of MD (D) on
distribution of funds to needy families through AFDC program—max limit of
$250; P alleges unfair discriminations against larger families; MD petitioned
to SCOTUS for review…
o RULE: A state law that imposes classifications subject to differential
treatment under welfare programs does not violate the EPC when the
classification can be justified by any conceivable rational basis

GENDER CLASSIFICATIONS—THE EARLY VIEW

BRADWELL

HEIGHTENED SCRUTINY
CRAIG v. BOREN
UNITED STATES v. VIRGINIA

SEX DIFFERENCES AND STEREOTYPES

ORR v. ORR
 MICHAEL M. v. SUPERIOR COURT
PERSONNEL ADMINISTRATOR v. FEENEY

OTHER CLASSIFICATIONS: ILLEGITMACY, AGE, AND LANGUAGE

SESSIONS v. MORALES-SANTANA
MASSACHUSETTS BOARD OF RETIREMENT v. MURGIA
HERNANDEZ v. NEW YORK

CLASSIFICATIONS BASED ON ANIMUS

UNITED STATES DEPT. OF AGRICULTURE v. MORENO
CITY OF CLEBURNE v. CLEBURNE LIVING CENTER

FUNDAMENTAL RIGHTS AND EQUAL PROTECTION

EDUCATION
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ
PLYLER v. DOE
THE RIGHT TO VOTE
HARPER v. VIRGINIA BOARD OF ELECTION
BUSH V. GORE

VOTING
APPORTIONMENT AND GERRYMANDERING
REYNOLDS v. SIMS
VIETH v. JUBELIRER

PRIVILEGES AND IMMUNITIES

SAENZ v. ROE (and notes)
THE SLAUGHTER-HOUSE CASES

SUBSTANTIVE DUE PROCESS AND ECONOMIC LIBERTY

LOCHNER v. NEW YORK
NEBBIA v. NEW YORK
WEST COAST HOTEL V. PARRISH
WILLIAMSON v. LEE OPTICAL

SUBSTANTIVE DUE PROCESS AND FUNDAMENTAL RIGHTS

PIERCE v. SOCIETY OF SISTERS
SKINNER v. OKLAHOMA

CONTRACEPTION AND ABORTION

GRISWOLD v. CONNECTICUT
ROE v. WADE
WHOLE WOMAN’S HEALTH v. HELLERSTEDT

SUBSTANTIVE DUE PROCESS AND FUNDAMENTAL RIGHTS

SEXUALITY
 LAWRENCE v. TEXAS
OBERGEFELL v. HODGES
LIFE
DE SHANEY v. WINNEBAGO
WASHINGTON v. GLUCKSBERG