Con Law Outline Fall 2008

Chapter 7 – Equal Protection

A. INTRODUCTION
1. Constitutional Provisions
 The Equal Protection clause of the 14th amendment was rarely used before the 1950’s.
 Brown v. Board of Education (1954) ushered in modern era for combating discrimination and
fundamental rights. (which applied the 14th amendment to the state government)
 Bolling v. Sharpe – court held that equal protection applies to the federal government through
the due process clause of the 5th amendment.
2. Frame work for EP
Question 1: What is the government’s classification?
o Is the law one of obvious facial classification?
o Is the law one that has a discriminatory impact? If so, was its purpose to
discriminate?
Question 2: What is the appropriate level of scrutiny?
 Strict Scrutiny: discrimination based on race, national origin, aliens.
o The government must have a truly significant reason for discriminating, and it must
show that it cannot achieve its objective through any less discriminatory alternative.
o The government has the burden of proof.
 Intermediate Scrutiny: discrimination based on gender and non-martial children.
o The government’s purpose need not be compelling but important – it must have a
substantial purpose being sought.
o The government has the burden of proof.
 Rational basis test:
o Minimal level of scrutiny tests
o A law will be upheld only if it is rationally related to a legitimate purpose.
o The challenger has the burden of proof.
 3 rigid tiers or sliding scale?
Question 3: Does the government action meet the level of scrutiny?
 The court evaluates both the laws ends and its means.
o Strict – the end must be deemed compelling for the law to be upheld.
o Intermediate – the end has to be regarded as important
o Rational basis test – there just has to be a legitimate purpose.
Underinclusive: a law that does not apply to individuals who are similar to those to whom the law
applies.
Overinclusive: a law that applies to those who need not to be included in order for the
government to achieve its purpose.

 The protection of fundamental rights under equal protection:

o Skinner v. Oklahoma – the act required surgical sterilization for individuals who had
been convicted three or more times for crimes involving moral turpitude. The law
was analyzed under strict scrutiny and held unconstitutional as it violated the
fundamental right to procreate.

B. THE RATIONAL BASIS TEST

1. Introduction
 It is rare that the SC to find that a law fails the rational basis test. (exception – Romer v.
Evans) Is this appropriate deference to the legislation process or undue judicial abandonment?
 Under the rational basis test there are 2 questions:
o Does the law have a legitimate purpose?
 What constitutes a legitimate purpose?
 • The government has a legitimate purpose if it advances a traditional
police power: protecting safety, public health, or public morals.
• Any goal not forbidden by the constitution will be deemed sufficient to
meet the rational basis test.
 Must it be the actual purpose or is a conceivable purpose enough?
• A law will be upheld so long as the government’s lawyer can identify
some conceivable legitimate purpose, regardless of whether that was
the government’s actual purpose.
• United States Railroad Retirement Brd. v. Fritz illustrates the debate
over whether conceivable purpose should be sufficient or legitimate
actual purpose is required.
o Is the law rationally related to achieving it?
 Tolerance for under inclusive and overinclusive.
• Railway Express Agency v. NY – Under inclusive - The Equal
Protection Clause does not require that a statute eliminate all problems
of the same type or none at all.
• NY City Transit Authority v. Beazer – Overinclusive - A policy
excluding all methadone users does not violate the EP Clause.
 Cases where laws are deemed arbitrary and unreasonable
• US Dept. of Agriculture v. Moreno: The federal law that denies food
stamps to any household containing an individual unrelated to any
other member of the household violates the EP Clause.
• City of Cleburne v. Cleburne Living Center - Laws impacting the
mentally retarded are not to e given heighten constitutional scrutiny.

C. Classifications based on Race and National Origin

1. Race discrimination and slavery before the 13th and 14th amendments.
 Dred Scott v. Sanford – The court held the Missouri Compromise to be unconstitutional
and broadly held that slaves were property not citizens.
 Post Civil War Amendments
o 13th amendment adopted in 1865 – made slavery unconstitutional.
o 14th amendment adopted in 1868 – provided equal protection which
overruled the Dred Scott decision.
2. Strict Scrutiny for discrimination based on race and national origin
 Racial classification is only allowed if the government can prove an extremely important
reason for its action and it must demonstrate that the goal cannot be achieved through
any less discriminatory alternative.
 Justification of strict scrutiny – political powerlessness of groups and unfairness to
discriminate against a trait acquired at birth that cannot be changed.
3. Proving the existence of a Race or National Origin Classification.
a. Race and National Origin classifications on the face of law: exist when the
law, in its very terms, draws distinction among people based on those
characteristics. There are (3) major types of such laws.
1. Race – Specific Classifications that disadvantage racial minorities.
 Korematsu v. US – a citizen of Japanese descent charged for not evacuating to a
concentration camp.
2. Racial classifications burdening both whites and minorities. Example: statutes
that prohibit interracial cohabitation and marriage.
3. Laws requiring separation of races – Plessey v. Ferguson: allowed for segregation
on railroads.
 Initial attack on “separate but equal” – Brown v. Board of Education: sad that
segregation is schools was a violation of EPC.
 b. Facially Neutral Laws with a Discriminatory Impact or with
Discriminatory Administration.
 The Supreme Court has said that there must be a proof of a discriminatory
purpose for such laws to be treated as racial or national origin classifications –
Washington v. Davis (1976) is a key case articulating this requirement.
 Although Washington v. Davis holds that equal protection requires proof of a
discriminatory purpose in order to demonstrate that a facially neutral law
constitutes a racial classification, civil rights statutes often allow violations to be
proven based on discriminatory impact without evidence of a discriminatory
purpose. (McCleskey v. Kemp: Death sentence more likely to be among blacks)
So the question then becomes is the clause only about equal treatment by the
government or should it also be concerned with equal results?
 15th amendment
o The Supreme Court extended the requirement for a discriminatory
purpose to include the 15th amendment, and its prohibition of race-
based interference with the right to vote. Mobile v. Bolden is the Key
Case.
o Soon after in 1982 (Rogers v. Lodge) – the same electoral system
became unconstitutional.
o Then the 1982 Amendments eliminate the need for proof of
discriminatory purpose in challenging an election system as being
racially discriminatory.
 Is proof of a discriminatory effect also required?
o Must there be both discriminatory impact and discriminatory purpose? The Supreme
Court has never expressly addressed the question, but it appears that both are
required.
o Palmer v. Thompson is the case that indicates that discriminatory impact also must
be shown. (pools were closed – after desegregation was enforced – but reason given
for closing pools was due to finances).
 How is a discriminatory purpose proven?
o It is not enough to prove that the government took an action with knowledge that it
would have discriminatory consequences – but that they desired to discriminate.
o Personnel Ad. Of Mass v. Feeney, in a case dealing with gender discrimination – the
court defines discriminatory intent as – Discriminatory purpose implies more than
intent as volition or intent as awareness of consequences. It implies that the
decision maker selected or reaffirmed an action at least in part of not merely in
spite of its adverse effects upon an identifiable group.
 Discriminatory use of peremptory challenges
o Baston holds that the discriminatory use of peremptory challenges by a prosecutor
denies equal protection.
o 3 step process to determine Baston
1. A prima facie case of discrimination must be presented.
2. The burden then shifts to the other side to offer race neutral explanation.
3. The court must decide whether explanation is persuasive.

Racial Classifications Benefiting Minorities

What is the level of scrutiny?---Strict Scrutiny
What purposes for affirmative action are sufficient to meet the level of scrutiny?
What techniques of affirmative action are sufficient to meet the level of scrutiny?

 Affirmative Action
o In Richmond v. J.A. Croson Co. (1989) the Supreme Court for the 1st time reviewed
affirmative action under the Strict Scrutiny Test.
 o A year after that in Metro Broadcasting (1990) it held that affirmative action needs
only to be reviewed under Intermediate Scrutiny.
o In Adarand Constructors (1995) the Supreme Court overruled Metro Broadcasting.
o The Arguments for and against Strict Scrutiny
 Those who favor strict scrutiny for affirmative action programs argue that all
racial classification – whether invidious or benign – should be subjected to
strict scrutiny.
 Moreover, supporters of strict scrutiny for affirmative action argue that all
racial classifications stigmatize and breed racial hostility and therefore all
should be subjected to strict scrutiny.
 Those who argue for a lower level of scrutiny emphasize that achieving social
equity requires affirmative action at this point in American history.
 It appears that the current Court is split, 5 – 4, between those 2 views as the
appropriate level of scrutiny for affirmative action.
 Three very important dissents: Ginsburg: No need for two types of legislation
to be reviewed equal when they are for two different purposes. Thomas:
Stamp of inferiority and sense of entitlement.

University of California Regents v. Bakke: 438 U.S. 265 (1978): Two admissions
programs. Asked question whether student wished to be considered disadvantaged or
minority. This option would allow them to be waived against general admissions or have a
2.5 G.P.A. ∏ was a white applicant who applied twice and was rejected. In third time, there
were four seats and still did not get in. ∏ claimed violations of fourteenth amendment and
claimed there was reverse discrimination claiming. Δ said that minority applicants were
ranked amongst each other, while other pool was weighed against all others. Factually
how was admissions process administered: Point system to make a composite score---
seats were just saved for minority students (NOT CONSTITUTIONAL)

o The use of race to benefit minorities in college and universities admissions.

 In Grutter v. Bollinger (2003) the Supreme Court held that the use of race
as a factor in student admissions by the University of Michigan Law School
was NOT unlawful because it had a compelling state interest that was
narrowly tailored. There was a point system
 Gratz v. Bollinger (2003) In this case the guidelines were not upheld
because they were not narrowly tailored.
o Drawing election districts to increase minority representation
 1) The Supreme Court has held that the use of race in drawing election
districts must meet Strict Scrutiny.
 2) 2 ways that it can be determined that race was used in drawling election
districts
1. Bizarre district shapes that makes it evident….
2. It is proven that race was a predominant factor in drawing the lines
 Court considered what justifications are sufficient to meet strict scrutiny?
1. Compliance with Voting Rights Acts.
Easley v. Cromate: Whether there is adequate support for the District Court’s key findings
particularly the ultimate finding that the legislature’s motive was predominantly

Summation of Racial and National Origin Classification

Race & National origin: Strict scrutiny
When a law benefits minorities: Strict Scrutiny
Does the government have a compelling and necessary interest? What is that interest?
Is the objective narrowly tailored? Is it overinclusive, under inclusive?
How do you know that there is discrimination when the law is neutral on its face? 1. Historical
Background of decisions with invidious motives 2. Departures from normal procedure 3.
Legislative or administrative history and statements made by members of decision making body.

D. GENDER CLASSIFICATION

1. The Level of Scrutiny

National Origin is an immutable characteristic.
 Advocates for Strict Scrutiny – immutable characteristics, immediately
visible characteristics, unrepresented in the political process.
 Advocates for Intermediate Scrutiny – equal protection (14th amendment)
meant to outlaw race discrimination only, biological differences.
In Reed v. Reed rational basis was used to invalidate gender classifications.
 Frontiero v. Richardson (US 1973) ∏ sued because felt it was unfair that
Women could not claim their husbands as dependents as easily as males
could claim females. This court applied Intermediate Scrutiny. The method
was upheld under the notion of governmental Administrative Convenience.
The court stated that sex could not bear relation to the ability to perform and
contribute to society.
 What part of the 14th amendment would apply to this situation? § 5 the
enforcing the laws section. Don’t forget the 14th amendment enacts the 5th
to the government.

Craig v. Boren (US 1976) said that it should be intermediate scrutiny.

Men were not allowed to buy beer until 21 but women at 18 could. The court
held that men’s equal protection rights were violated. ----Example of over
inclusiveness---

2. Proving the Existence of a Gender Classification

Two major ways: First: Can exist on the face of the law or the law by its very terms
draws a distinction between genders. Second way can be proved when there is a facially
gender neutral law that has both a discriminatory impact and a discriminatory
purpose.
When is it discrimination?
Geduldig v. Aiello: Pregnancy was not a covered disability under private insurance. This
court applied rational basis—one step at a time.
Gender classifications based on role stereotypes
Orr v. Orr: Alimony was only allowed for women to receive alimony. Ct applied that it must
have an important governmental objective and must be substantially related to
achievements of those objectives. This court did not sustain this holding. Classifications
based on role stereotypes will not be permitted, but benefits for women will go through
intermediate scrutiny will be permitted.
Mississippi v. Hogan: Can a state exclude men from the nursing school? No, the
governmental purpose was to remedy past discrimination. How is it invalid? In this case
there was no actual discrimination shown because nurses have always been women. In
sum, there is no relation to objective.
Michael M. v. Superior Ct.: Statutory rape statute, specifically man can’t have sex with a
woman. It only criminalized statutory rape.** This was also under inclusive**
Governmental purpose: To prevent teen pregnancy, only women can get pregnant.
Is this measure appropriate? It must be an important, but they could have placed a gender
neutral solution instead? So why did this court uphold it?
Rokster v. Goldberg: Is the Military Selective Service Act legal? Yes the Congress has great
deference in military affairs and congress is not denying equal protection of the laws by
only drafting men. Congress greatly considered drafting women as well as men but the
government decided that combat troops should be men mostly.
 Gender Classifications Benefiting Women: INTERMEDIATE SCRUTINY WHEN IT BENEFITS
WOMEN
Calafano v. Webster: What is the classification? Women
What is the governmental purpose? Must be important or significant
governmental purpose & objectives must be substantially related to
achievements of those objectives
Governmental Purpose Means related to end
Strict Scrutiny Compelling Necessary (narrowly tailored)
no other alternative—No Over
or Under Inclusiveness
Intermediate Scrutiny Significant/important Substantially related / fit
together like a puzzle--- Over
inclusive-depends
Under inclusive-depends
Rational Basis Legitimate/Conceivable Rationally related—(Can be
purpose under inclusive or
overinclusive)—Just one STEP
closer.

E. ALIENAGE CLASSIFICATIONS

Born in Cambodia: National Origin—Originally Chinese—(Race)

U.S. Citizen: Alienage Classification (not immutable)

Alienage Discrimination: Strict Scrutiny how do you know when to apply strict scrutiny(lack of
political representation, immutable characteristics, past discrimination, ability to represent
yourself,

Less than S.S. use Rational Basis: For Self- Government, Democratic process (voting rights, serve
on jury rights, hold office, right of a state to allow only citizens to be troopers), When a Federal
Law makes a distinction.

1. Strict Scrutiny
Graham v. Richardson: Rule: A state has a valid interest in preserving the fiscal integrity of its
programs. It may legitimately attempt to limits its expenditures, whether for public assistance,
public education, or any other program. BUT not with invidious means that deny aliens equal
protection rights.

2. Alienage classifications related to self-governments and democratic process:

Federal governments, have plenary power to regulate immigration, any state law would be pre-
empted. So states would have to pass strict scrutiny if they made a distinction on Alienage
unless there is a job that implies “direct participation in the formulation, execution, or review of
broad public policy and conduct representations that go to the heart of representative
government. Or Democratic process: Police officer, Self-Government: instilling values.
Federal Gov: Rational Basis.

Foley v. Connelie:

Ambach v. Norwick: Can a state require that their teachers be citizens? Yes why because
teachers play a critical role in the developing student’s attitude toward government and
understanding of the role of citizens in our society.
3. Congressionally Approved Discrimination:

4. Undocumented
Plyer v. Doe: What is the level of scrutiny for children of undocumented aliens?

Sum
Federal government=Rational Basis
(Except government agencies)
State Government= Strict Scrutiny
Unless it is for= Democratic /Government functions (police officers)
Discretion jobs
Jobs that instill values

F. Discrimination: What is the level of review? Intermediate scrutiny

The court has allowed both rational basis and intermediate review for illegitimate
children
First laws that provide a benefit to all marital children, but no non-marital children
are always declared unconstitutional

G. Other types of discrimination: Only rational basis review

1. Age classification: Rational Basis

Mass v. Murgia:

2. Discrimination based on disability

Rational Basis

3. Wealth Discrimination: making distinctions based on wealth usually rational basis****

Laws discriminating against the poor: heightened scrutiny.

4. Sexual Orientation: Rational Basis

_______________________________________________________________________________________________

Is there a classification?

S.S.----Facially: you can find it in words, on its face. Neutral: not in its words (but in effect)

Compelling Interest & necessary & narrowly tailored (if there is an alternative then
gov. fails)
no over or under exclusive

Intermediate Scrutiny---

Rational Basis--- Reasonably related to a legitimate governmental purpose (can be over or under
inclusive)
IN the end is it a step closer?

When you have a neutral piece of legislation what do you do?

Discriminatory Impact + Discriminatory Purpose (three factors- 1) historical background (what is
happening around the world at the time)2) Departure from legislative norms 3) Legislative &
Administrative History ) or Intent
When you have all of these you are showing discrimination, then you must decide the level of
scrutiny. Then you decide from the three. (Makes more sense to use for a S.S. or Int. Scr.)

What is the classification?

What is the level of scrutiny?

Does the government meet the level of scrutiny?

Chapter 8: Fundamental Rights under Due Process and Equal protection

A. Introduction: Some liberties are so important that they must be considered fundamental rights
and government cannot infringe them without first meeting strict scrutiny.
these rights include: Family autonomy; Procreation; Sexual Activity; Sexual Orientation;
Medical Care decision making; travel; voting; and access to the courts.

Fourth Amendment’s safeguard from unreasonable seizures

Fifth Amendments’ protection against self-incrimination and double jeopardy
Sixth Amendment’s right to bail and prohibition against cruel and unusual punishment
Few claims raise heightened scrutiny, most claims of rights under equal protection usually only
receive minimal judicial scrutiny; government only has to meet rational basis test and must be
rationally related to a legitimate governmental purpose.

Education is not a fundamental right****

Little depends on whether the court uses due process clause or equal protection clause as a
basis for protecting a fundamental right. Ct must decide whether a claimed liberty is sufficiently
important to be regarded as fundamental, although it is not mentioned in the Constitution.
Major differences between due process and equal protection as the basis for protecting
fundamental rightsin how the constitutional arguments are phrased.
Due Process: Whether the government as interference is justified by a sufficient purpose
Equal Protection: Whether the government’s discrimination as to who can exercise the right
justified by a sufficient purpose.

Ninth Amendment:
Procedural Due process

Framework:

Is there a fundamental right? Once you determine that there is a fundamental right, there is
strict scrutiny
Is the Constitutional Right Infringed?
Is there a sufficient justification for the government’s infringement of a right?
Is the means sufficiently related to the purpose?
1. The right to Marry
Loving v. Va:
Zablocki v. Redhail: ∏ sued because there was a statute that did not allow a male to marry
without having first complying with child support payments. The State’s goal was obviously to

2. The right to custody of one’s children:

 Stanley v. Illinois: Parents have a fundamental right to custody of their children in this
case petitioner was a single father whose wife died and the state attempted to give his
children to the state as wards because single dads were not fit parents.

Michael v. Gerald: Did Michael have any rights to see Victoria his biological daughter when
she was married and lived with her husband. If there is not sterility or infertility then the
child is considered to be the child of the married father. Ct held he did not; the court was
seeking to protect family autonomy and family ideals.
3. Right to keep the family together
Moore v. City of East Cleveland: In this case appellant Mr. Inez Moore lives with her son
and her two grandsons in the same home. The family received a violation notice from the city
that they were violating a statute in place and that the grandson was an “illegal occupant”
and he needed to move. She was charged and sentenced to five days in jail and a 25 dollar fine.
The city in this instance argues that the ordinance is permissible to alleviate traffic,
overcrowding, minimizing parking congestion and such state objectives. The state uses a
Belle Terre case that upheld this type of ordinance for college students that were not
related. In this a case the Court notes that the city seeks to slice deeply into the family itself.
Liberties recognized in this court: Freedom of personal choice in matters of marriage and
family rights are protected as a liberty by the due process clause of the fourteenth
amendment.
Holding: Court did not uphold the ordinance.
** There is not a liberty interest in foster parents that have not had the child for more than 18
months.**

4. Right of parents to control the upbringing of their children: Family autonomy

Myer v. Nebraska: In this case petitioner taught German to a student in a Parochial school
to a ten year old student in contravention of the State of Nebraska statute. This court struck
down that statute and declared that the teacher had the right to teach and the parents have
the right to engage the teacher to instruct their children.

Pierce v. Society of Sisters of Mary: In this case an Oregon statute mandated that all
children between 8 and 16 years of age attend a public school in the district in which the
child resides. The court held that applying the Myers doctrine, that the act plainly interferes
with the liberty of parents and guardians to direct the upbringing and education of children
under their control. These rights cannot be abridged by some legislation that has no
reasonable relation to some purpose within the competency of the state.
________________________________ _______________________________ ______________________________
However, the court has recognized that the rights to make parenting decisions are not absolute
and can be interfered with by the state if necessary to protect a child. Prince v. Mass: Did not
allow the solicitation by a 9 year old for Jehovah witness. In essence the court can interfere when
acting to guard the youth’s well-being and the state can require school attendance and
prohibiting child labor. Parens patriae
Wisconsin v. Yoder: Also the court here upheld the right of Amish parents to not have to send
their 14 and 15 year olds to public high school because it interferes with their right to control the
upbringing of their child and the free exercise clause.

Troxel v. Granville: In this case a Washington statute permitted any person to petition a
superior court for visitation rights at any time and authorizes that court to grant such visitation
rights whenever “visitation may serve the best interest of the child” In essence the court did not
defer in any way to the parent’s decision. Facts: Mother of two little girls decided to cut the
visitations by her daughters to their grandparents by their father’s side. The statute in place
allows the grandparents to petition the court and the judge to make the decision.
This court affirms the Washington Supreme Court decision overruling the statute because
it is very broad and it exceeded the bounds of Due Process. The grandparents never alleged
that the mom was not fit nor was the intervention for the best interests of the child.
D. Constitutional Protection for reproductive autonomy
1. Right to Procreate: Involuntary sterilization must meet strict scrutiny.

Buck v. Bell: In this case the court allowed the sterilization of a woman Carrie Buck
who was feeble minded and was institutionalized. Her mother was also
institutionalized and an act in Virginia in 1924 allowed for sterilization of “mental
defectives” to promote the welfare for society. The court upheld this finding that three
generations of imbeciles are enough.

Skinner v. Oklahoma: In this case an Oklahoma Habitual Criminal Sterilization Act

allowed for sterilization of individuals who had committed two or more felonies
involving moral turpitude. In this case the petitioner had been convicted of stealing
chickens, then armed robbery two times after that. The court here characterized the
sterilization of Δ as discrimination because someone convicted of
embezzlement would not suffer the same fate as a larceny crime(social distinctions). Court
noted right to procreate fundamental right overruled act, but here there was a
classification so it was really an equal protection issue.

2. Right to purchase and use contraceptives

Griswold v. Connecticut: In this case the petitioners included the director of the PPH
and the doctor as well as a married couple. The statute in place here did not allow for
contraceptives to be prescribed to women. The court did not uphold this because they
found it was a violation of the right to privacy. The court noted memorably that this
present relationship lies within the source of privacy created by fundamental
constitutional guarantees. The third amendment=quartering of soldiers, Fourth
Amendment= right against unreasonable seizures, Fifth Amendment= self-
incrimination clause. Ninth amendment provides: the enumeration in the constitution
of certain rights shall not be construed to deny of disparage others retained by the
people.

Eisenstaedt v. Baird: Under Massachusetts law there was a distinction drawn

between who could receive contraceptives. Married people could get contraceptives
to avoid pregnancy single women could not, and married or single women could get
contraceptives to avoid the spread of disease. This court defined that the right to privacy
if it means anything it should mean that the right of an individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether or not to beget a child.

3. Right to Abortion

a. The recognition and reaffirmation of the right to an abortion

Roe v. Wade: How was the court able to confront the traditions?
Critical issue: The balancing in the point of viability of the fetus with the woman’s freedom and
rights. So balancing the states interest with the woman’s free rights.
States interest: To prevent promiscuity, health of women, protecting the fetus, at the time
women mortality rate was high.

1) For the stage prior to the end of the first trimester, the abortion decision and its effectuation
must be left to the medical judgement of the patient and the medical doctor.(State can make
sure doctors are qualified and facilities, so states cannot prohibit, hands off, no state interest
whatsoever) First 3 months

2) For the stage subsequent to the end of the first trimester, the state in promoting its interest in
the interest of the mother, may if so chooses, regulate the abortion procedure in ways that are
reasonably related to maternal health. (3 months to 6 months)(Childs interest is not in play here,
only MOTHER’s HEALTH) (Can’t prohibit until the third trimester, you can regulate though in this
second)

3) For the stage subsequent to viability, the state in promoting its interests in the potentiality for
human life may, if it chooses regulate, and even proscribe, abortion except where it is necessary
in appropriate medical judgement, for the preservation of the life or health of the mother. (FETUS
VIABILITY)
*** Woman’s right, right to privacy etc***USED STRICT SCRUTINY

Planned Parenthood v. Casey: Technically speaking the court did not overruled Roe,
however they did away with the trimester distinctions and overruled the strict scrutiny.
This case kept the third trimester system,
Before viability state can still not prohibit, can there be regulation at three weeks? Yes, state
can regulate, need it be for the health of the mother---no undue burden (creating a substantial
obstacle) (Can a state require that women view a video of life of baby before an abortion?—YES,
but it has to be true. What is the state’s interest?—Promote viability
After viability: government can regulate and can prohibit with the exception of the abortion
being necessary to protect the life of the pregnant woman.
So what is the level of scrutiny now?—Must not be an undue burden, and must be reasonably
related of the goal set by the state (except saying birth begins at conception)

b. Government regulation of abortions: There are many ways a government can

regulate abortions. Partial birth**
Stenberg v. Carhardt: A Nebraska law banning partial birth abortions is in question
here. The statute does not allow them even a medical exception. Dr. Carhadt brought this action
seeking declaratory judgement that the Nebraska statute violates the Constitution.

In this case the court recognizes three established principles: 1) Before viability the woman has
the right to choose to terminate her pregnancy 2) A law designed to further a State’s interest in
fetal life which imposes an undue burden on the woman’s decision before fetal viability is
unconstitutional. An undue burden is shorthand for the conclusion that a state regulation has the
purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of
a non-viable fetus. 3) Subsequent to viability the state in promoting its interest in the potentiality
of human life, may if it chooses regulate and even proscribe abortion except where if it is
necessary in appropriate medical judgement, for the preservation of the life or health of the
mother. **Three is a substantial obstacles IF the alternatives ( to the regulated abortion) to
abortions are not safe**
This court applies these principles to this Nebraska law, which classifies this as a class III felony.
Issue: Does the statute violate the constitution as interpreted by Casey & Roe?

Holding: Yes, The court finds this statute unconstitutional for two reasons 1) no exception for the
preservation of the life of the mother, 2) imposes an undue burden on the woman’s ability to
choose a D&E abortion.

**does it apply to pre-viability or post? Both, the other alternatives are dangerous and the
statute is too broad. This affected both the pre-viability and the post viability analysis.

Notes: In Akron: the court looked at whether 24 hour waiting period was valid (decided under
Roe because was before Casey) this was under Roe so it was decided under strict scrutiny. Under
Roe it does not promote the health of the mother. Under Casey analysis it can regulate and add
this 24 hour provision if it promotes the health of the mother.

Thornburgh v. American College: Seven types of information given to mother, this was more to
promote the keeping of baby. In Casey this would have been upheld.
 c. Government restrictions on funds and facilities for abortions

Maher v. Roe: The Connecticut Welfare department limits abortions only to those
that are medically necessary, including psychiatric necessity.
Issue: Whether the constitution requires a participating state to pay for non-therapeutic
abortions when it pays for childbirth?
Holding: No, This does not impinge on any right or on the fundamental right recognized in Roe.
Reasoning: The constitution imposes no obligation to the states to pay the pregnancy related
expenses of indigent woman, but when the state decides to provide medical care, the manner in
which it dispenses the care is subject to constitutional limitations. This statute places no
limitations or obstacles to women who wish to get an abortion. Although government may not
place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove
those not of its own creation.
Here equal protection based on class- rational basis(wealth)
Privacy right

Harris v. McRae: Congress since 1976 has prohibited the use of federal funds to
reimburse the costs of abortions under the Medicaid programming except under certain
circumstances.
Issue: Whether the Hyde amendment by denying public funding for certain medically necessary
abortions, contravenes the liberty or equal protection guarantees of the Due Process Clause of
the Fifth Amendment?
This case differs from Maher in that the case involves a failure to fund non-therapeutic abortions,
whereas the Hyde Amendment withholds funding of certain medically necessary abortions.
Holding: No, it does not impinge on the due process right recognized in Wade.
Would this be valid under Casey? No because it makes no mention to health, only to the LIFE of
the mother. Court made it seem like it was going more to the funding of abortion, not a
prohibition.
Although the government may no place obstacles in the path os a woman’s exercise of her
freedom of choice, it need not remove those not of its own creation.

d. Spousal Consent and Notice Requirements: Supreme court recognizes that

government cannot require either spousal consent or spousal notification as a prerequisite for a
married woman’s obtaining of an abortion.

Planned Parenthood v. Danworth: Missouri law required that prior written consent
from a spouse must be shown unless the abortion is certified by a licensed physician to be
necessary in order to preserve the life of the mother.

Planned Parenthood v. Casey: Section 3209 of the Pennsylvania abortion statute

e. Parental Notice and Consent Requirements

Bellotti v. Baird:

E. Constitutional Protection for Medical Care Decisions

Right to refuse treatment

Cruzan v. Director, Missouri Dept. (1990)
Brief Fact Summary: Nancy Cruzan's parents sought to withhold medical treatment from their
vegetative daughter, but were denied because of insufficient evidence of Nancy's intent. Ms.
Cruzan's parents now bring suit on her behalf, alleging she has a liberty interest in withdrawal of
treatment.
Synopsis of Rule of Law: States are given wide latitude in determining how they give rights to
patient surrogates.
Facts. Missouri denied the withdrawal of treatment request because Ms. Cruzan's parents could
not establish Ms. Cruzan's wishes regarding such withdrawal by clear and convincing evidence.
Ms. Cruzan had a discussion with a friend who testified in court that she said she would not want
to be on life support, but this was the only evidence of her personal wishes.
Issue: Does Missouri have a legitimate state interest in protecting the liberty interests of
incompetent patients? Yes.
Missouri is free to choose whether or not they will accept a surrogate for an incompetent's
medical decisions, but they are free to establish the standard by which they do so. That is a
legislative, not judicial choice. The state interest is in the preservation and protection of human
life. The state is entitled to guard against potential abuses from family members therefore is
entitled to consider a judicial proceeding to make a determination of incompetent’s wishes.
Dissent. Justice William Brennan (J. Brennan) dissents, arguing that the State interest cannot
outweigh Ms. Cruzan's liberty interest in having treatment withheld.

Right to Physician-Assisted Suicide

Washington v. Glucksberg (1997)

Brief Fact Summary. Washington has a law that provides: A person is guilty of promoting a
suicide attempt when he knowingly causes or aids another person to attempt suicide. A group of
physicians who treat terminally ill patients declare that they would assist these patients in
ending their lives if not for the Washington Ban.
Issue: Whether Washington’s prohibition against causing or aiding a suicide offends the 14th
amendment? NO
Rationale:
The court looked to see if this was a violation of substantive due process. In the analysis they
looked at (2) primary features: (1) the protection of fundamental rights and liberties which are
deeply rooted in the Nation’s history and tradition and (2) a careful description of the asserted
fundamental liberty interest. The court found that the asserted right to assistance of another in
committing suicide is not a fundamental liberty interest protected by the due process cause.
Therefore the Washington’s assisted-suicide ban had to be ONLY rationally related to the
legitimate government’s interest.
The state’s listed several interests in banning assisted suicide:
(1) the preservation of human life
(2) the preservation of the integrity and ethics of the medical profession
i. As this could undermine the relationship b/w patient/doctor by blurring the
line b/w harming and healing.
(3) Protecting vulnerable groups – extending to disabled and terminally ill people from
prejudice.
(4) Involuntary euthanasia (mercy killing to prevent a prolonged and painful death.)
and the difficulty for police in distinguishing.

The court held that the state had unquestionable important and legitimate interests and the ban
was at least reasonably related to their promotion and protection.
Rule of Law: Assisted suicide is not a liberty interest protected by the Constitution.

Vacco v. Quill (1997)

Facts: New York made it a crime to aid another to commit or attempt suicide.

Issue: Whether NY’s prohibition on assisting suicide therefore violates the EPC of the 14th
amendment? NO

Rationale: The court discusses the difference b/w a patient’s right in refusing medical – life
sustaining treatment and in aiding in suicide. They looked at Intent and Causation.

In Refusing Life Sustaining treatment Assisting

- No intent - intent is there
- Just to honor patient’s wishes - doctor is the cause of death
- Doctor doesn’t cause death.

The court also found that all the state’s interest were valid and important public interest that
easily satisfy the constitutional requirement that a legislative classification bear a relation to
some legitimate end.

F. Constitutional Protection for Sexual Orientation and Sexual Activity

Lawrence v. Texas (2003)

Rule of Law. A statute criminalizing two consenting adults of the same sex for engaging in
certain intimate contact, is a violation of the Fourteenth Amendment.
FACTS: The police arrived at and entered Mr. Lawrence's home in response to a weapons
disturbance. The constitutionality of the entry was not in dispute. When the police entered the
home, they found the Petitioners, two adults, engaging in a consensual sexual act. Lawrence and
Garner were arrested and charged with violating Tex. Penal Code Ann. § 21.06(a), which provides
"[a] person commits an offense if he engages in deviate sexual intercourse with another
individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A)
any contact between any part of the genitals of one person and the mouth or anus of another
person; or "(B) the penetration of the genitals or the anus of another person with an object." §
21.01(1).
ISSUES
(1) Can a state criminalize intimate sexual conduct between (2) persons of the same sex in
violation of substantive due process of the 14th amendment? NO
The Supreme Court initially revisited its decision in Bowers v. Hardwick, in which a Georgia
statute criminalizing certain sexual conduct was upheld. The court rationed that the case was
decided on the traditions and beliefs and views of the society. It stated that the issue is whether
the majority may use the power of the state to enforce these views on the whole society through
the operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our
own moral code.
The court then discussed (2) cases that were decided after Bowers – Casey and Romer v. Evans.
In Casey the decision confirmed that our laws and tradition afford constitutional protection to
personal decisions relating to marriage, procreation, contraception, family relationships, child
rearing, and education. In Romer, the court struck down class-based legislation directed at
homosexuals as a violation of the EPC.
The court stated that the petitioners were entitled to respect for their private lives and that the
Tex. Statue furthers no legitimate state interest which can justify its intrusion into the personal
and private life of the individual.

G. Constitutional Protection for Control Over Information

Whalen v. Roe (1977)

Synopsis of Rule of Law: The government may maintain detailed lists of personal information for
administrative convenience and health of the community.
FACTS: The State of New York was collecting personal information regarding individuals
prescribed drugs for which there is a legal and an illegal market. The statute also criminalized
unauthorized release of any such information.
ISSUE: May the government maintain lists of personal health information without violating a zone
of privacy? YES
The NY program does not, on its face, pose sufficiently grievous threat to either interest to
establish a constitutional violation. Unquestionably, some individuals’ concerns for their own
privacy may lead them to avoid or to postpone needed medical attention However; some degree
of disclosure is already inherent in the current prescription drug system. The Appellee has failed
to establish how the statute invades any right or liberty.
Discussion: The Supreme Court does not argue there is no invasion of privacy here, only that
there is no constitutionally impermissible invasion of privacy. The court acknowledges the fear of
accidental disclosure, but he also acknowledges that there is a statutory penalty for
unauthorized disclosure.

When there is a fundamental right a governmental interest must be identified.

1) Is there an interest?
2) Is the interest infringed? If there is no infringement, the court applied RB.
In this case once the fundamental right to privacy is identified, then strict scrutiny.

H. Constitutional Protection for Travel

Saenz v. Roe:
Synopsis of Rule of Law. States may not discriminate against non-residents in such a manner
that denies them the privileges and immunities enjoyed by the citizens of that State.
FACTS: A California statute required families to live in California for twelve months before
becoming eligible for full welfare benefits. In the interim, they were limited to the amount
payable by the State of the family's prior residence. For example, a family of two moving from
Arizona would be eligible for only $275/month, where a California resident would be eligible for
$456/month.
ISSUE: May a State discriminate against non-citizens who travel to the State with regard to
current residents? NO
The court discussed (3) components that are protected in the RIGHT TO TRAVEL
(1) The right of a citizen of one state to enter and leave another state.
(2) The right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second state, and
(3) For those travelers who elect to become permanent residents, the right to be
treated like other citizens of the state.

The case a bar deals with the (3) aspect. The Privileges and Immunities Clause of the 14TH
Amendment guarantees to citizens of other States the ability to be treated in the same manner
as a citizen of a State to which he they are traveling. This should be the same whether they are
transiently in the new State or a traveling to settle in the new state.

California did not advance a discriminatory intent to the law, but rather noted it would save the
State almost $11 million annually. The court rationed that saving is an important issue, but that
the discriminatory means is inappropriate to the ends advanced.

Restrictions on Foreign Travel

I. Right to Vote

1. The right to vote as a fundamental right

The fifteenth amendment provides that “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 servitude”

Nineteenth amendment extended the right to vote to woman and says that the rights 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 sex.
Twenty fourth amendment prohibits poll taxes in elections for federal office. – This applies to
President, Vice President, Senate.

Twenty Sixth extends right to vote to citizens of the U.S. 18yrs old or older. (1971)

Right to vote is a fundamental right and protected under EPC and used Strict Scrutiny.

Poll Taxes

Harper v. Virginia State: Synopsis of Rule of Law. A State poll tax violates the Equal
Protection Clause of the Fourteenth Amendment of the Constitution.

FACTS: Virginia levied a poll tax not exceeding $1.50 on every resident of the State 21
years of age or older. Residents challenged the State tax under the EPC of the
Fourteenth Amendment.

ISSUE: Does a State poll tax violate the Equal Protection Clause of the Fourteenth
Amendment of the Constitution? Yes.

The tax divides the eligible voters of the State into two classes: those who can afford the
tax and those who cannot. As such, it invidiously discriminates against those who cannot
afford the tax.

Discussion. Because voting is a fundamental right, classifications involving the right to

vote are closely scrutinized. In the present case, a classification based on wealth is
clearly inappropriate.
Property Ownership Requirements

Kramer v. Union:
Whether § 2012 of the New York Education law is constitutional when it does not allow
everyone to vote in a school district election only reserves right to parents or homeowners in
area.
Holding: No, not constitutional because the remedy is not narrowly tailored the distinction
needs to show that the exclusion is necessary to promote a compelling state interest. In this
case the law was overinclusive and underinclusive.

Ball v. James:
Whether the peculiarity narrow function of this local governmental body and the special
relationships of one class of citizens to that body releases it from the demands of one person,
one vote principle of the EPC of the 14th amendment.
Well in this case the court allows the restriction and used reasonable relationship.

Literacy Tests

Ability to read and write can be implemented as a requirement.

Prisoner’s right to vote

States cannot deny the right to vote to those being held waiting for trial and in fact, must
provide them absentee ballots if they have no other way of voting. However once a person has
been convicted of a felony they may be disenfranchised but the felony cannot be for moral
turpitude.

3. Dilution of the rights to vote

Reynolds v. Sims: Alabama Legislature had not apportioned its district since 1900’s so this
was alleged to have denied “equal suffrage in free and equal elections and the equal
protection of the laws. This was a form of gerrymandering, and seemed to have the effect of
diluting voting power because the populations of 500 ppl were same as 100k people.

Wesberry v. Sanders: Fifth Congressional Districts, Reynolds v. Sims extends to federal, one
vote, one count.

Bush v. Gore: The equal protection claim was based on the different counting standards
throughout Florida.

J. Constitutional protection for access to courts

Fundamental constitutional right of access to courts

Right to be heard is a fundamental aspect of due process
Windsor v. McVeigh: Right to be heard is a principle that lies at the foundation of all well-
ordered systems of jurisprudence and is founded on the principles of natural justice
Access to the courts subjected to strict scrutiny
Protected under strict guarantees in the Bill of rights: 6th amendment’s right to counsel in all
criminal cases
Gideon v. Wainwright: this right applies to states, in this case states were required to
provide indigents attorney in all criminal cases that may lead to a prison sentence. Any
person too poor to hire a lawyer can’t be assured a fair trial unless counsel is appointed.
No right to appeal, but is appeals are made available government cannot make discriminatory
distinctions or create barriers. The state cannot deny to the poor an adequate appellate
review accorded to all who have enough money to pay costs in advance.
Above right limited to first appeals, not to discretionary appeals or collateral attacks on
convictions.

Filing Fees

Boddie v. Connecticut: appellants are welfare recipients who live in CT and are challenging
the filling fees for obtaining a divorce which is $60.00 at the time of this litigation. The court
finds that the appellants legitimately cannot afford this.

Issue: Does the filling fee deny equal access of welfare recipients to the courts?

Holding: Yes, Marriage is of utmost basic importance on our society, citizens must resort to the
state to get married and must invoke the state’s judicial machinery to get out of a marriage
also. Not allowing them to get out of marriage would essentially make the defendants be
excluded from the only forum in which they would be able to settle their disputes. This would
result in the equivalent of denying them an opportunity to be heard upon their claimed right to
dissolution of marriage and essentially a denial of due process.

State argues: states interest in preventing frivolous litigation is substantial and costs are
allocated where scarceness Id substantial and balancing this and a defendant’s right to notice
and plaintiffs right to access is reasonable.
Ct: finds that there are other alternatives to conserve the time of the courts from frivolous
litigation.

U.S. v. Kras: (Ct refused to extend Boddie to other civil proceedings) The Respondent Kras
lived in a small apartment with his wife, two children, and elderly mother. The Respondent
receives public assistance as well as a small amount of income he earns himself. The
Respondent cannot even afford to save up for a full year to afford the bankruptcy filing fee. He
challenges the Bankruptcy Act fee under the Fifth Amendment Due Process grounds and
claims that his case fits squarely within Boddie.

Issue: Does this case fit squarely within Boddie meriting the right to waive this filing fee?

Holding: No, Boddie stands for the notion that a state cannot deny access simply because of
one’s poverty to a judicial proceeding that is the ONLY effective means of resolving the
conflict in hand. Both the appellants in Boddie and Kras stand for completely different
purposes. Basically the elimination of debt does not rise to the level of significance as
marriage. Bankruptcy is not the only alternative available for a debtor for the adjustment of
his legal relationship with his creditors. No constitutional right in obtaining discharge of one’s
debts.

Notes:
Ortwein v. Schwab (1973): government was not obligated to waive filing fees for judicial
review of adverse welfare decisions.
M.L.B. v. S.L.J.: The Petitioner lost custody of her two minor children when their stepmother,
the Respondent, S.L.J. (Respondent), sued for adoption. The Petitioner is indigent and cannot
pay record preparation fees of over $2,000 to appeal the trial court judgment.
Issue: May a state, consistent with the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, condition appeals from trail court decrees terminating parental rights
on the affected parent’s ability to pay record preparation fees?
Holding: Yes. Reversed and remanded. Justice Ruth Bader Ginsburg (J. Ginsburg) argues that
as a petty criminal must be afforded access to appellate justice, so must the indigent parent
whom the courts have found unfit. Fee requirements are not examined only for rationality
when a fundamental right is involved.
Prisoners right of access to the courts

Ex Parte Hull: State may not abridge or impair the right of a petitioner to apply to a writ of
habeas corpus.
Johnson v. Avery: Invalidated a law that did not allow inmates to help other inmates with
appeals write, or legal assistance, unless the state provides alternatives.

Bounds v. Smith: Δ claim that the lack of libraries is a form of denying access to the courts.
Indigent inmates must be provided with paper & pens to draft legal memoranda and stamps to
mail. Only facts are needed to fill out a Habeas Corpus claim. However for Procedural
purposes a prisoner should arguable know what a lawyer knows.
Issue: Whether the states must protect the rights of prisoners to access to the courts by
providing them with law libraries or alternative sources to legal knowledge?
Holding: Yes.

Lewis v. Casey: (Limited Bounds greatly) The Respondents, Casey and other inmates
(Respondents), allege that the Petitioners, Lewis and others associated with the Department
of Corrections (Petitioners), have not presented them with up-to-date legal materials, legal
libraries and photocopying services, among others. The Respondents allege that these denials
have denied them the ability to access the courts. Appellant alleges that this deprives
illiterates and lock down prisoners.

Issue: Does the inadequacy of the libraries equate to a deprivation of the courts?
Holding: The court notes that Bounds did not create a new right, libraries are only an ends not
means. A prisoner cannot allege actual injury from not having an adequate library and for
Bounds to apply there must be an actual injury. For a court to find library inadequate the
alleged shortcomings must hinder an effort to pursue a legal claim. They would have to show
that a claim was dismissed for failure to satisfy a technical requirement that because of the
deficient libraries he could not have known. Court further establishes this under rational basis
review.

K. Constitutional Protection for a Right to Education

San Antonio v. Rodriguez: The State of Texas provides for free primary and secondary
education for the children of the State. The state provides a set amount of funding for each
district based on the number of students in the district. The district makes up the difference in
operating expense with funds from local property taxes. This reliance on property taxes
results in a large disparity in per student spending between property rich and property poor
districts. Respondents allege that this denies the children in poor district Equal Protection of
the laws in violation of the Fourteenth Amendment.

1 • If education is a fundamental right, classifications affecting access to education are

subject to strict scrutiny.
2 • There is no mention of education in the Constitution. Thus, there is no explicit
constitutional guarantee. The question is now one of whether education is implicitly a
fundamental right. The Court notes that Respondents do not argue that there is some
quantum of education that is fundamental and which the class is not receiving. Nor do they
argue that the class is entitled to the best education provided by public schools in Texas.
3 • Without explicit or implicit constitutional protections, the fiscal decisions of the State
of Texas are beyond review of the Court, unless they lack a rational basis. Such a lacking is
not found by the Court.
4 • Thus, the Court applied the rational basis test to require the Texas law to be rationally
related to a legitimate government interest.
Dissent.
1 • Justice William Brennan dissents along two arguments: (1) the funding system of the
State of Texas lacks a logical basis, and (2) that the explicit or implicit constitutional
guarantee analysis advanced by the Court ignores the Court's previous decisions.

L. Procedural Due Process

DPC is used to impose procedures on the government when it takes away a person’s life,
liberty or property.
 Classic Procedural Due Process concerns what type of notice and what form of hearing
the government should provide when it takes a particular action.
 Substantive Due Process: asks whether the government has an adequate reason for
taking away a person’s life, liberty, or property. This looks to whether there is sufficient
justification for the government’s action. This depends on the level of scrutiny used. – In
Rational Basis: justification by the government is met when there is a rationally related
to a legitimate governmental purpose. When strict scrutiny is used: then the
government will pass Sub D.P. if the law is necessary to achieve a compelling
governmental purpose.
o Example: Parental Custody: Fundamental Right, Strict Scrutiny applies. Therefore
to meet procedural due process a government must require that a notice and
hearing be given and there must be a clear and convincing need to terminate
custody, before parental rights are permanently terminated. Substantive D.P.
requires that government prove that terminating custody is necessary to achieve
a compelling purpose such as the need to prevent the abuse and neglect of a
child.
o Distinctions when S.D.P and P.D.P. are at stake: Person seeks government action
declared unconstitutional as violative of a constitutional right S.D.P. involved. If
the person seeks to have a gov. action declared unconstitutional because of the
lack of adequate safeguards such as notice, hearing, P.D.P at issue.
o What is the liberty? or property? If not a denial of liberty, property or life then the
government does not have to provide S.D.P. or P.D.P.

1) Has there been a “deprivation”?

2) Is it life, liberty or property?
3) Is it without “due process of law”?
What is a “deprivation”?

Is Negligence sufficient to constitute a deprivation?

Daniels v. Williams (1986):
Petitioner seeks damages for back and ankle injuries after falling after slipping on a pillow in
his prison when a guard negligently left a pillow in the stairwell. Ct holds that to hold that
injury that is caused by lack of due care as deprivation within the fourteenth amendment
would be a triviality of the regular notions of due process of law. The court also makes it a
point to state that petitioner can seek relief through tort claim statutes.

County of Sacramento v. Lewis (1998):

Issue: Does a police officer violate the Fourteenth Amendment guarantee of substantive due
process by causing death through deliberate or reckless indifference to life in a high speed
auto chase aimed at apprehending a suspect offender? Holding: No, only in cases in which the
purpose of the conduct is to cause harm unrelated to the legitimate object to the arrest will
satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due
process violation. Behavior at the end of the culpability spectrum is the type that would
support a substantive due process claim, conduct intending to injure in some way unjustifiable
by any governmental interest is the sort of official action most likely to rise to the conscience
shocking level.
Example of officer conduct: when extended opportunity afforded (not a split second decision)
and there was protracted failure to even care then the indifference needed is shocking.

When is the government’s failure to protect a person from privately inflicted harms
a deprivation?

DeShaney v. Winnebago Cnty Dept of Social Svc (1989)

Holding: The state’s failure to protect an individual against private action does not constitute a
violation of Due Process.
Nothing in D.P suggests that the language be extended to life, liberty and invasion by private
actors.
State does have a constitutional duty to care for an individual (safety and well being) if it has
deprived him of freedom.
State does not become the permanent guarantor of an individual’s safety by having once
offered him shelter.

2. Is it a deprivation of Life, Liberty or Property?

Rights-Privileges Distinction--& its demise

The government is required to give due process only if there has been a deprivation of life,
liberty or property. There is a liberty or a property interest only if there is a “right”/ A
governments bestowed privilege was not a basis for D.P.

Goldberg v. Kelly (1970)

Issue: Does a state that terminates public assistance payments to a particular recipient
without affording him the opportunity to attend an evidentiary hearing before termination
violate D.P of the Fourteenth Amendment?
Holding: Yes, Ct decides that the hearing will be at a meaningful time and in a meaningful
manner. The recipient must have timely and adequate notice detailing the reasons for
termination and effective opportunity to defend and confront any adverse witnesses and
present an argument and evidence orally.
Analysis: Court goes into this analysis of the interest of the eligible recipient in an
uninterrupted receipt of public assistance coupled with the state’s interest that his payments
not be erroneously terminated, clearly outweighs the state’s competing concern to prevent
any increase in its fiscal and administrative burdens. The court notes that because something
is conferred by the government and is classified a “privilege” and not a “right” it may give
rise to a serious loss by its recipient. Public assistance is not mere charity. but a means to
promote the general welfare and secure the blessings of liberty to ourselves and our posterity.

Welfare: once bestowed becomes property requiring due process before

termination.

What is a deprivation of property?

New approach for determining whether there is a property interest.

Board of Regents v. Roth (1972)

Petitioner’s contract was not renewed, he was not tenure track and was on a yearly contract,
brought suit alleging no D.P.
What is liberty? Liberty is freedom from bodily restraint, right of individual to contract, engage
in any occupation of life, acquire knowledge, marry, and establish a home, raise children,
worship.
What are forms of property interest? Certain attributes of property must be present, to have
property interest in a benefit, a person clearly must have more than an abstract desire and
need for it. More than a unilateral expectation of it. Must have a legitimate claim of
entitlement to it. Protect claims of which people rely on in their daily lives. Property rights are
not created by the constitution, rather defined by existing rules and state law of which rules or
understandings that secure certain benefits and that support claims to entitlement to those
benefits.

What is a deprivation of liberty?

Reputation as a liberty interest?

Goss v. Lopez (1975):

Students have a legitimate property right in their education which is protected by the D.P.C.
This right cannot be taken away without appropriate procedural hearings. Students have the
right to protect their right to attend school by making the administrators document the
misconduct and provide report to students’ parents. Where student’s reputation is at stake the
minimal requirements of DPC must be satisfied to prevent mistakes that could seriously harm
the students standing with pupils, teachers etc.

Paul v. Davis (1976):

Reputation alone apart from more tangible interests such as employment is neither liberty nor
property for due process purposes. Distinguishable from Goss b/c in that case property
entitlement was granted to students.

_______________________________________________________________________________________________
Class notes:

Has there been a deprivation?

Not negligence—(Daniels)—must be intentional
Intended result (Lewis)
a. non-private public official b. not negligence

Is it a life, liberty, property interest?

a. Goldberg- interest to person.

What procedures are due?