Chapter 7

Application

Constitutional law involves the application of the federal and state and local governments and whether their actions violate one or more terms of the U.S. Constitution.

Purely private entities are generally not subject to constitutional claims.

State action must be shown to proceed with a claim.

State Action Constitutions (and their amendments) only apply

to state action, except for the Thirteenth Amendment’s prohibition on slavery – this applies to private individuals, as well

State actors are those who act in furtherance of their positions as employees of governmental agencies.

Examples: Public school teachers, police officers, IRS employees, county government employees, staff at the DMV, athletic directors at state-run universities, high school athletic associations

Private Actors/State Actors Application NCAA not a state actor: NCAA v.

Tarkanian High school athletic associations

typically are state actors: Brentwood Academy v. TSSAABurrows v. Ohio High School Athletic

Association is an exception

Professional sport leagues and teams: Not state actors

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.”

Freedom of speech, religion, and assembly

First Amendment (cont’d.) Freedom of religion includes

establishment clause and free exercise clause

Establishment ClauseProhibits the establishment of a church by

the state as well as the endorsement or preference of religion and coercion of religious practice

Free Exercise ClauseProhibits the government from standing in

the way of private religious exercise

Test 1: Lemon Test It is a disjunctive three-part test. Under this test, a government practice is

unconstitutional if it lacks a secular purpose, its primary effect either advances or inhibits religion, or it excessively entangles government with religion (Lemon

v. Kurtzman).

Test has not been applied by the court in years. Its continued validity has been questioned by

scholars, but it has not been overruled by the Court.

Test 2: Coercion Test

The government directs a formal religious exercise in such a way as to obligate the participation of objectors (Lynch v. Donnelly).

In other words, the government cannot coerce individuals to participate in religion or its exercise.

Test 3: Endorsement Test This test seeks to determine whether the

government endorses religion by means of the challenged action.

The government endorses a religion when religion is favored, preferred, or promoted over other beliefs (Lee v. Weisman, 1992).

School Prayer

In most cases, student-initiated, student-led prayer at public high school sporting events in unconstitutional

Prayer in graduation speech was allowed when:Students decided whether or not to have a student

speakerStudents decided who the student speaker would beThe student speaker determined the content of the

speech

Religious Dress High school athletic association bylaw

prohibited students from wearing any headwear, except a sweatband, while participating in basketball

Bylaw was challenged by a student-athlete who was Jewish and wanted to wear a yarmulke

Court sympathized with student-athlete, but decided in favor of high school association

Freedom of Expression Protects freedom of speech for all persons NOT ALL SPEECH IS PROTECTED! Government may impose time, place, and

manner restrictions on speech Some types of speech, like obscenities,

receive no protection Symbolic speech (clothing, gestures, and

other nonverbal speech) is also protected Athlete is not constitutionally prohibited

from wearing symbol on uniform, but may be prohibited by association

Freedom of Expression (cont’d.)

Commercial speechRelates to advertisementsIs protected speechIs regulated by government to protect

consumers from false and misleading advertisements

Speech which is not protected?Defamatory speech, threatening speech,

and speech that violates laws

Freedom of Expression (cont’d.) Political speech

Strong protection for political speech unless it causes imminent lawless action (strict scrutiny)

Note that in a school setting, the right is more limited (Morse v. Frederick)

Freedom of the pressSame as for political speech.

Right of Association

Individuals have the right to form associations, thereby choosing with whom they wish to associate

This does not hold true if the association commits criminal activities, or violates an individual’s civil rights

Other Elements of 1st Amendment Very generally addresses equal

protection and due process Equal Protection

Guarantees that laws will be applied in an equal and nondiscriminatory manner

Due ProcessGuarantees that an individual cannot be

deprived of life, liberty, or property without a fair process or hearing

Fourteenth Amendment

Also known as the Equal Protection Clause

Provides that “no state shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws.”

How closely the Court will examine the discrimination depends on the basis for the discrimination

Fourteenth Amendment (cont’d.) Constitutional discrimination based on race

or national origin, or if the discrimination is linked to a fundamental right (right to vote, marry, reproduce, etc.) it is examined using strict scrutiny

Strict scrutiny says the action taken must be necessary and that there is no other way to accomplish the desired objective

The discriminatory action must be “necessary to achieve a compelling government interest.”

Fourteenth Amendment (cont’d.) If the discrimination is based on gender,

illegitimacy, and/or alienage, the courts base their decision on intermediate scrutiny

Intermediate scrutiny requires the government to show the actions were substantially related to achieving an important governmental interest

Fourteenth Amendment (cont’d.) Any other state action discrimination is

examined using the rational basis standard

Rational basis requires the basis for the discrimination to be rationally related to a legitimate governmental interest

Fifth Amendment

Also known as the Due Process Clause. Provides that “no person shall…be

deprived of life, liberty, or property without due process of law.”

The Fifth Amendment applies only to the federal government, but the Fourteenth expands it to the states

Exists to ensure fairness and impartiality

Life, Liberty, or Property Interest The Due Process Clause is triggered when the

government deprives someone of a life, liberty, or property interest

Life: A person’s life or freedom Liberty: Those privileges recognized as essential

to the orderly pursuit of happiness by free men Property: All valuable interests that can be

possessed outside of oneself, which have an exchangeable value or which add to an individual’s wealth or estate

May include Athletic scholarships and future pro careers

Substantive Due Process Requires the rules and regulations to be

fair and reasonable in content and application

To protect from arbitrary and capricious actions

Government must show a rational basis for rules and regulations (easy to do)

Looks only at the rule or regulation – and the court doesn’t even have to agree with the rule, just that there is a rational basis to justify it.

Procedural Due Process

Addresses the method used to enforce the rule or regulation.

Goal is to ensure fair treatment. Examines the decision-making process

that is followed to determine whether the rule or regulation has been violated and what sanctions, if any, will be imposed.

Minimum Procedural Due Process Requirements Statement of the specific violation Notice of the sanctions that will be

imposed An opportunity for accused to

comment Used in very minor rule violations (e.g.,

a speeding ticket)

Maximum Due Process Requirements Written notice of hearing Written statement of the charges Provision of adversarial hearing Written or taped record of proceedings Right of appeal Used in cases of major rule violations

(e.g., a murder case)