Constitutional Law II: Second Review

Professor MorrisonSpring 2006

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Subjects Covered

Equal Protection State Action Congressional Enforcement

Equal Protection

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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

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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

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Three basic tests

Strict scrutiny Intermediate scrutiny Basic scrutiny

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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 some cases involving

fundamental rights (see below)

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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

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Intermediate scrutiny

Applies to gender discrimination Craig v. Boren

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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

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Basic scrutiny

Applies in all other cases Railway Express v. New York

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Basic scrutiny

Law must have A legitimate public purpose Rational relationship to it

Burden is on challenger to demonstrate this

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Other suspect (or semi-suspect) classes

Alienage (see above) Legitimacy

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Other classifications are not suspect

Age Wealth

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Fundamental rights

Also invoke strict scrutiny Political rights (ballot access,

voting, equal representation) Access to the courts Family rights (right to marry, etc.)

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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

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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

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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

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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

State action

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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

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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

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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

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State action: Symbotic relationship

“Symbotic relationship” Burton v. Wilmington Parking Authority

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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

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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”

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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

Congressional Enforcement of

Civil Rights

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“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

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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)

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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

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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

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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.

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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

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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

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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.

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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

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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