Constitutional Law I Prof.

Barrett
Spring 2010

THE PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several
states” (Art IV §2).” Under Article IV, P & I, No States can’t deny to non-residents the privileges
and immunities afforded to its own citizens.
1. The clause has explicit language that forbids states from discriminating against non-
residents differently from residents.
2. The Privileges and Immunities clause bars only state discrimination that burdens
fundamental rights, i.e., access to the courts and pursing lawful trades.
1. For example, a law requiring you to live in NY to practice law in NY could be
attacked via the Privileges and Immunities clause. Another example is a law
forbidding non-residents from attending CA state colleges.
Its function overlaps those of several other provisions of the Constitution:
1. Like the commerce clause, it serves as a restraint on state efforts to bar out-of-states from
access to local resources.
2. Like the 14th Amendment, it protects citizens against discrimination, in this context, on the
basis of state residency.
Applicability:
What does the privileges and immunities clause apply to?
1. Only applies to fundamental rights that are attributes of our national sovereignty.
a. Fundamental rights under privileges and immunities are mostly economic rights –
such as the right to engage in business or a profession.
b. The right to engage in recreational activity is not a fundamental right.
Differences from the Commerce Clause:
1. The courts say that the privileges and immunities clause, because of its wording, may only
be invoked by individuals – not corporations.
2. While Congress may consent to state practices that would otherwise be impermissible
under the Commerce clause, the Privileges and Immunities clause is a rights provision, not a
grant of authority to Congress, and so is arguably non-waivable by Congress.
3. Standard of review for privileges and immunities denials is arguably stricter than the
balancing test used in dormant commerce clause analysis
4. Extends not to all commercial activity but only to fundamental rights.
5. No market participant exception.

PREMPTION
What happens when Congress does take action in a particular area of commerce, and must ask, “to
what extent does Congress’ valid exercise of power restrict what the states may do?
1. In the case of a direct, obvious conflict between a federal and state statute, the resolution is
clear: the state statute is simply invalid because the Supremacy Clause says federal law is
going to trump state law.
a. Preemption can be found in one of the following ways
i. Express Preemption – if a federal statute explicitly said federal law is
exclusive in an area – state laws are preempted
ii. Implied Preemption – can be found exist these ways:
1. If federal law and state law are mutually exclusive states law is
preempted
2. If it is not possible to simultaneously complied with both federal and
state law

1
Constitutional Law I Prof. Barrett
Spring 2010
3. If a state local law impedes the achievement of a federal objective –
the sts law is deemed preempted.
4. If congress is evidence with clear desire that sts law is preempted
5. Sts cannot tax or regulate the federal gov’t.
2. Much more likely to arise is the situation where the federal and state actions involve similar
or identical subject matter, but there is no clear-cut conflict.
a. Preemption and undue burden on commerce clause arguments go together like ham
& eggs – if there’s a federal law on the subject.
 If the law gets attacked on one of those grounds, it will most likely be attacked on
both grounds.
There are two types of preemption:
1. Field Preemption: preemption where Congress occupies the field.
a. If Congress wants to occupy the field, it should expressly state so.
b. If Congress has the right to be in a field, then it has the right to occupy that field.
When it occupies the field, no one else may enter the field.
2. Conflict Preemption: First, the congressional statute and the state action may be in actual
conflict. If so, the state regulation is automatically invalid. If Congress doesn’t occupy the
field, we ask whether there was a conflict. There are two types of direct conflicts:
a. If it is impossible to obey both the state and federal regulations simultaneously,
there is an actual conflict.
b. There may also be an actual conflict the objectives behind the two sets of
regulations may be inconsistent. Here, too, the state regulation must fall even
though the regulated party could theoretically comply with both sets
simultaneously.
Consent to State Laws
Congress, if it wants to, can unplug or wake up the dormant commerce clause by simply
legislating that it’s okay for the states to keep out goods from other states. Congress can specifically
legislate that it’s okay.
1. Though Congress may authorize protectionalism under the Dormant Commerce clause, it
may not under the Privileges and Immunities clause.

Yes–––Premption ? No
Consent? Yes
Sts may regulate/effect
Nat’l ––––– Exd Interstate Commerce
Power
No––DCC bar? No
Yes Exclusive Nat’l Power
SUMMARY
1. Where there is no federal regulation, state regulation might be permissible. However, courts
will strike down legislation when the state has attempted to discriminate against interstate
commerce in favor of its own citizens.
2. Courts sometimes will allowed states to legislate in favor of its own citizens when the state
is acting as a market participant.
3. Even when a state is acting neutrally toward interstate commerce, courts will may
invalidate state legislation that imposes an undue burden on interstate commerce.

2
Constitutional Law I Prof. Barrett
Spring 2010
4. In cases where the federal government has chosen to regulate a particular area and the
state is inconsistent with the valid federal law, the state law is preempted by the federal
law.

EXECUTIVE AND LEGISLATIVE ACTION

1. Delegation: No limit exists on congress’s ability to delegate legislative powers.
1. Administrative agencies, which are generally part of the executive branch, have
been given or granted considerable lawmaking authority. Congress often gives
them little guidance.
2. The Court had held that one option for congressional control over executive action
is to be very specific and limiting in the delegation of power to agencies, so that their
rulemaking power will in turn be limited. It must be accompanied by some
guidance on how they must be enforced.
i. Congress cannot give these agencies a blank check to enforce the law as they
see fit.
ii. For congress to act there must always be a bicameralism pass by both the
house and congress and a presentment to the president.
2. Aggrandizement: when congress unreasonably enlarges the single powers, or legislates
without conforming to the constitutional procedures of bicameral action…
3. Encroachment: when congress enacts law that undermines the authority and
independence of any other branch of the federal gov’t

Separation of Powers
By insisting upon separation of powers, the Framers sought to promote such aims as
safeguarding against tyranny and promoting efficiency. The constitutional provisions themselves
reveal, however, that separation was not intended to be airtight. Repeatedly, powers are
intermixed, as with the participation of the President in the legislative process through the veto
power
 Tension exists as, when the Constitution was written, it did not have an administrative state
of such complexity in mind.
o The cases attempt to maintain notion of distribution of powers without disenabling
administration.
Executive Powers: Art. II, §2
There are a few powers which are explicitly granted by the Constitution to the President.
These are enumerated in Article II, §2. They include, for instance, the President’s status as
Commander-in-Chief of the armed forces and his treaty-making power.
1. However, the most important single separation of powers principle to remember is that the
President cannot make the laws. All he can do is to carry out the laws made by Congress.

J. Jacksons Concurrence stated the level in Executive Actions is at highest or lowest:

Green Light:
When the President acts pursuant
Congress, his authority is at its
presumption as to constitutionality
The burden of persuasion rests
authority.
to an express or implied authorization from
highest. There would be a strong
and wide latitude of judicial interpretation.
heavily on challengers to the President’s

3
Constitutional Law I Prof. Barrett
Spring 2010
Yellow Light:
When President acts in absence of a congressional grant or denial of authority, he can rely
only on his independent powers, but there is a zone of twilight in which he and Congress
may have concurrent authority, or in which distribution is uncertain. Any challenge will
depend on the imperatives of events and contemporary imponderables.
Red Light:
Where the President acts in contradiction of the expressed or implied will of Congress, his
power is at its lowest ebb. The President may only have authority if it is within his domain
and Congress does not have authority. Careful scrutiny.
1. President may still proceed if Congress’s red light is unconstitutional (i.e.
Congress interfering with president’s power to pardon federal criminals – a
power that only the president has)
2. Most of the time that Congress posts a red light and has the authority to do so
the President must stop.
3. In Youngstown the light was red – Congress rejected the power to seize in
deliberating over the Taft-Hartley Act.

Treaties, War & Foreign Affairs Powers

1. Treaty, Art. II, §2: The President may make a treaty, but it must be ratified by 2/3rds of
the Senate vote is required for ratification.
a. A treaty may not violate any distinct constitutional prohibitions or
guarantees. Thus, a treaty cannot infringe upon individual rights.
2. War, Art. I, § 8: Congress is given the power to declare war, and to tax and spend for
national defense. Also, it is explicitly given the right to “raise and support armies” and to
provide and maintain a navy. All of these powers are given by Article I, §8. The President, by
contrast, is made the Commander in Chief of the Armed Forces. Thus, Congress and the
President in effect split the war powers.
3. Foreign Affairs: Congress has broad authority to conduct foreign affairs—this is an
inherent attribute of sovereignty. The states have very limited authority in this area.
The power in Congress to regulate foreign affairs has been repeatedly recognized by the
Court, though the source of the power remains unclear. The Court has recognized a
general constitutional principle that foreign affairs are the proper province of the
federal government

War Power Resolution

1. The President has the power as commander-in-chief to conduct war but Congress has the
power to declare war.

EXECUTIVE PRIVILEGE AND IMMUNITIES

Executive Privilege
Several Presidents have evoked the “executive privilege” to justify their refusal to disclose
information which they claimed to be confidential.
1. It is not a constitutional power, but rather it is an inherent privilege necessary to protect the
confidentiality of presidential communications.
2. The determination whether presidential communications can be use as evidence or
otherwise admissible must be made by the trial judge after hearing the evidence.

4
Constitutional Law I Prof. Barrett
Spring 2010
3. Where the claim of privilege is a general one, and not related to a need to protect
military, diplomatic, or national security secrets, the executive privilege is a qualified
one. United States v. Nixon:
4. The President has absolute immunity “from civil liability for acts within the ‘outer
perimeter’ of his official [responsibility].” Nixon v. Fitgerald
 There remain several checks against misconduct: remedy of impeachment, constant
scrutiny by the press, vigilant oversight by Congress, desire to earn reelection, need to
maintain prestige as element of Presidential influence.
5. There is no immunity from civil liability for unofficial acts, including those committed
before taking office. Nor does the Constitution afford the President temporary
immunity from civil damages litigation arising from events that occurred before he
took office. Clinton v. Jones.

Individual Rights: Procedural/Substantive Due Process:

The Bill of Rights is applicable to the federal government. But these amendments did not
apply to the states expressly all of the provisions of the Bill of Rights; rather the 14th Amendment
provided simply:
"All persons born or naturalized in the US, and subject to the jurisdiction hereof, are
citizens of the US and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges and immunities of citizens of the US; 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."
Some of the Bills of Rights are now applicable to the state through the 14th
Amendment – through a process called “Incorporation.” Meaning the individual rights
afforded to all citizens of U.S cannot be infringe on by state laws that are unconstitutional.
Thus, there are three substantive provisions in the 14th Amendment:
1. Due Process based on 5th Amendment
2. Equal Protection
3. Privileges and Immunities Clause (similar to Art. IV) – No states may
deprive any citizens the privileges and Immunities of United States citizenship.
a. P & I is always the wrong answer unless the question involves the right to
travel (only one place the court have uses it)
b. Differences b/w Art. IV & 14th A P & I – The original privileges and immunities
clause provided that states can’t deny citizens of other states the P&I enjoyed by
citizens of that state. On the other hand, the 14th Amendment’s P&I clause provided
that states can’t deny their own citizens the P&I enjoyed by citizens of the U.S.

The Slaughter-House Cases

Facts: The Louisiana legislature passed a statute granting the exclusive right to engage in the
slaughterhouse business to one state-chartered company. Several butchers sought to invalidate the
statute under all three substantive grounds of the 14th Amendment:

Privileges and Immunities

 The 14th Amendment’s P&I Clause was designed primarily to overrule the holding of the
Dred Scott decision. It merely forbade state infringement of the rights of national
citizenship, not the rights of state citizenship.
o Examples of national rights include the right to petition for redress of
grievances and the privilege of the writ of habeas corpus.

5
Constitutional Law I Prof. Barrett
Spring 2010
 The sort of right asserted by the butchers, namely the right to pursue a particular
livelihood, was not encompassed by P&I of citizens of the U.S., but were instead
privileges of state citizenship, that the state itself could expand or contract as it saw fit.

There are two quite different functions that the Due Process Clause serves. It imposes certain
procedural requirements on governments when they impair life, liberty, or property. But the Due
Process Clause also limits the substantive power of the states to regulate certain areas of human
life.
1. Due Process: Procedural
a. The Court gave the Due Process Clause a narrow reading and held that it
protects only against procedural unfairness.
b. It includes an individual's right to be adequately notified of charges or proceedings,
the opportunity to be heard at these proceedings, and that the person or panel
making the final decision over the proceedings be impartial in regards to the matter
before them.
 Or, to put it more simply, where an individual is facing a (1) deprivation
of (2) life, liberty, or property, (3) procedural due process mandates that
he or she is entitled to adequate notice, a hearing, and a neutral judge.
Substantive:
1. This "substantive" component of the Due Process Clause derives mainly from the
interpretation of the term "liberty" – certain types of state limits on human conduct
have been held to so unreasonably interfere with important human rights that they
amount to an unreasonable (and unconstitutional) denial of "liberty".
2. The Court focuses on three types of rights under substantive due process in the
Fourteenth Amendment. Those three types of rights are:
1. the first eight amendments in the Bill of Rights;
2. restrictions on the political process (e.g. the rights of voting, association, and
free speech); and
3. The rights of “discrete and insular minorities.”
3. The Court usually look to see whether:
1. there is a fundamental right, by examining if the right can be found deeply
rooted in American history and traditions.
2. Where the right is not a fundamental right, the court applies a rational basis
test: if the violation of the right can be rationally related to a legitimate
government purpose, then the law is held valid.
3. If the court establishes that the right being violated is a fundamental right, it
applies strict scrutiny. This test inquires into whether there is a compelling
state interest being furthered by the violation of the right, and whether the
law in question is narrowly tailored to address the state interest.

INCORPORATION
The Supreme Court has implicitly rejected the notion that that Amendment automatically
made applicable to the states all of the Bill of Rights guarantees (which had previously been binding
solely on the federal government). The Supreme Court has never said that due process requires the
states to honor the Bill of Rights as a whole. Instead, the Court uses an approach called "selective
incorporation".
1. Under this approach, each right in the Bill of Rights is examined to see whether it is of
"fundamental" importance. If so, that right is "selectively incorporated" into the meaning of
"due process" under the 14th Amendment, and is thus made binding on the states.

6
Constitutional Law I Prof. Barrett
Spring 2010
2. Fundamental rights are those that are essential to the concept of ordered liberty.
a. Picks and choose among them based on ranking.
b. Only 2nd, 3rd, grand jury indictment clause of 5th, and 7th.
i. Fundamental vs. Non-fundamental rights
ii. Justice Cardozo – double jeopardy fails of what constitute fundamental
rights
iii. Freedom of speech and religion pass the test

ECONOMIC LIBERTIES
Lochnerism: A form of judicial activism in which court decisions are made based upon presumed
rights not specifically addressed by existing (Constitutional) law, especially when influenced by
political or personal beliefs
Today, the test for whether a court could step in and decide whether an economic law
violates the due process clause is the rational-basis test; an economic statute has to meet only two
easily-satisfied requirements to be in conformity with substantive due process:
1. Legitimate state objective: The state must be pursuing a legitimate state objective.
a. But virtually any health, safety or "general welfare" goal comes within the state’s
"police power" and is thus "legitimate".
2. Minimally rationally related: Second, there must be a "minimally rational relation"
between the means chosen by the legislature and the state objective.
a. To put it another way, the Court will presume that the statute is constitutional
unless the legislature has acted in a completely "arbitrary and irrational" way.

Privacy Rights
If a state or federal regulation is impairing a fundamental right, the court strictly
scrutinizes the regulation. Here is what it means in practical terms for the Court to apply strict
scrutiny to a state or federal regulation that impairs a fundamental right:
1. The objective being pursued by the state must be "compelling" (not just "legitimate" as for
a non-fundamental right); and
2. The means chosen by the state must be narrowly tailored to achieve that compelling end.
a. In other words, there must not be any less restrictive means that would do the job
just as well.
The only rights that have been recognized as "fundamental" for substantive due process purposes
are ones related to the loose category "right to privacy." This right of privacy or autonomy derives
indirectly from several Bill of Rights guarantees, which collectively create a "zone" of privacy.
1. The list of rights or interests falling within this "right to privacy" include just a few related
areas: sex, marriage, child-bearing, abortion and child-rearing.
Contraception
Individuals’ interest in using birth control is "fundamental." So, whether a person is
married or single, he or she has a fundamental interest in contraception, and the state cannot
impair that interest without satisfying strict scrutiny. Griswold v. Connecticut

Abortion

7
Constitutional Law I Prof. Barrett
Spring 2010
The right of abortion is the primary example of a right protected by substantive due
process. Roe v. Wade recognized that the right of privacy limits a legislature’s freedom to proscribe
or regulate abortion. But in Carey, the court rejects the premises of Roe that abortion is a
“fundamental right.” Apparently, abortion is no longer a fundamental right, and restrictions on it
are no longer to be strictly scrutinized. This represents a huge departure from the law as it stood
under Roe. Informed Consent, 24 Hour Waiting Period, Spousal Notification, Parental Consent – No
Undue Burden – all not undue burden on the woman’s right to abortion.

GENERAL RULE: The Undue Burden Standard

A woman has a constitutionally-protected privacy interest in choosing to have an abortion
before viability. However, the state has a somewhat countervailing interest in protecting "potential
life," even before viability. Regulation:
1. The state may regulate pre-viability abortion only if it does not place an "undue burden" on
the woman’s right to choose abortion. However, a regulation will constitute an "undue
burden" if the regulation "has the purpose or effect of placing a substantial obstacle in the
path of a woman" seeking a pre-viability abortion.
2. A state after viability may prohibit a woman from obtaining an abortion unless an abortion
is necessary to protect the mother’s life or health.
3. This is an issue with Carhart II because the court had ruled that partial abortion is ban.
a. So does that mean that even if the woman’s life is at stake, to abort the baby is still
prohibited – Make an argument for both on exam.
4. A state requiring informed consent, waiting period, parental consent partial-birth abortion
ban and physician only requirement will not place undue burden on a woman. However,
spousal consent is undue burden.

Family Relationships
Parents have a fundamental right to make decisions concerning the care, custody,
and control of their children.
1. Whenever the state interferes with a person’s decision about how to live his family life and
raise his children, you should be on the lookout to see whether a fundamental right is being
interfered with. Loving v. Virginia

Right to Die
The law of "right to die" and "right to pull the plug" is developing. The Supreme Court has issued
two major decisions, one on the right to decline unwanted medical procedures and the other on the
right to commit suicide. As a result of these decisions, there are several major propositions that we
can recite at this point:
1. A competent adult has a 14th Amendment liberty interest in refusing unwanted medical
procedures, including artificial life-sustaining measures. It’s not clear whether this is a
"fundamental" interest.
2. There is is no fundamental right to commit suicide; thus, a state may ban persons from
giving individuals assistance in commiting suicide.
3. The state has an important countervailing interest in preserving life.
4. In the case of a now-incompetent patient, the state’s interest in preserving life entitles it
to say that it won’t allow the "plug" to be "pulled" unless there is "clear and convincing
evidence" that the patient would have voluntarily declined the life-sustaining measures.
Cruszan.
8
Constitutional Law I Prof. Barrett
Spring 2010

Sexuality: Consensual Sexual Choices

The state has no legitimate interest in making it a crime for fully consenting adults to
engage in private intimate sexual conduct that is not commercial and a state law making it a crime
for members of the same sex to engage in sodomy violates the due process clause.
1. A person’s sexual conduct (apart from any issues of procreation or family life) may in some
instances be entitled to substantive due process protection. However, there seems to be no
general fundamental right to engage in adult consensual sexual activity.
2. In fact, outside of the marriage relationship, there is probably no kind of sexual activity the
practice of which is a "fundamental right". Thus the state can almost certainly prohibit, and
punish, adultery and fornication.
3. But where the parties are married, there probably is a fundamental right to have even
"deviant" sex, as long as it’s not physically dangerous and is consensual. For instance, the
state probably may not prohibit oral sex in marriage, since that would fall within the
marriage area of the right to privacy.
a. Liberty protects the person from unwarranted government intrusions. Freedom
extends beyond spatial bounds. Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate conduct. Ds are adults
and their conduct was in private and consensual.
b. The right to privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.

Equal Protection:
Equal protection is part of the 14th Amd. It provides that “no state shall make or enforce any
law which shall . . . deny to any person within its jurisdiction equal protection of the laws.”
In the Slaughterhouse Cases, the Court narrowly interpreted the Equal Protection Clause as
having been enacted only to protect the newly freed slaves from discrimination.
This soon changed. The Court did a “180”, and it has never returned to its original notion that the
clause only applies to racial discrimination.

Standard of Reviews:
Intermediate Scrutiny
Standard: A law will be upheld if it served important governmental objectives and is
substantially related to achievement of those objectives.
Applicable To: Court uses this standard when a law is based on quasi-suspect classification.
Quasi-suspect classification:
1. Gender
2. Illegitimacy

Rational Basis
Standard: A law will be upheld if the distinction between classes is rationally related to a
legitimate interest (a constitutionally permissible purpose), and not deemed arbitrary or
irrational. The court will usually defer to legislative’s decision that a law is rational.
Applicable To: Applies when the other two are not applicable (i.e. most leg).
Includes:

9
Constitutional Law I Prof. Barrett
Spring 2010
1. Mental
2. Sexual Orientation
3. Wealth & Poverty

Strict Scrutiny:
Standard: A law (violating the fundamental right or suspect classification) will be struck down,
unless the government shows that the law was enacted because it has a compelling governmental
interest and the law is narrowly tailored to achieve that interest.
Applicable To: Court will scrutinize the law/action when a suspect classification or fundamental
right is involved.
1. Thus, where there is a fundamental right (right to travel, voting, privacy, all 1st
amendment rights ) or where there’s a suspect classification, the burden shifts, and the
State has the burden of proving that the law was narrowly tailored to serve a compelling
interest.
2. Court will look to see if less burdensome means for accomplishing the legitimate goal are
available. Suspect Classification Examples:
a. Race
b. Alienage

Suspect Classifications/ Race & Ethnicity – If governmental actions classifies persons based on
exercise of a fundamental rights or involves a suspect classification, strict scrutiny is applied. A
group of people will be deemed a suspect class if:
1. Historically discriminated against - – when an immutable trait group have been
discriminated against for a long period of time
2. Politically powerless (nature of harm to victims)- couple with a lack of access to that
political power
3. Immutable characteristics (i.e. race, gender, etc.) – classifications by an immutable trait – a
fixed, unchangeable quality like race.

Purposeful Discrimination – For a legislative classification to be constitutionally suspect, the

challenger must prove that “the classification is intentionally discriminatory.”
1. Strict scrutiny applies only when if the challenger proves that action was intended to
deliver invidiously discriminatory effects and the government is unable to rebut that proof
by showing that the action would have been taken anyway

Segregation
The most important example of government action which classifies by race, but which,
superficially at least, does not explicitly disadvantage minorities, is segregation, i.e., the
maintenance of physical separateness between races. Brown v. Board of Educ.:
1. If it is proven that a school has engaged in racial segregation of schools, the school must
take steps to eliminate the effects of that discrimination.
2. Therefore, only intentional segregation in schools will be evaluated under the equal
protection by subjecting it to strict scrutiny.
3. Segregation of children in the public schools solely on the basis of race denies to black
children the equal protection of the laws guaranteed by the Fourteenth Amendment, even
though the physical facilities and other may be equal. Education in public schools is a right
which must be made available to all on equal terms.

10
Constitutional Law I Prof. Barrett
Spring 2010
4. The question presented in these cases must be determined not on the basis of conditions
existing when the Fourteenth Amendment was adopted, but in the light of the role of public
education in American life today. The separate but equal doctrine adopted in Plessy v.
Ferguson, which applied to transportation, has no place in the field of public education.
5. Separating black children from others solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts and minds in a
way unlikely ever to be undone. The impact of segregation is greater when it has the
sanction of law. A sense of inferiority affects the motivation of a child to learn. Segregation
with the sanction of law tends to impede the educational and mental development of black
children and deprives them of some of the benefits they would receive in an integrated
school system.
AFFIRMATIVE ACTION
“Affirmative Action” = steps that are taken to benefit minorities in a situation where minority
applicants for education or employment get some kind of preferential treatment.
Two vital questions are raised:
 What standard should be used to review the benign use of a suspect classification such as
race?
 Does it matter whether the discrimination is intended to benefit minorities?
The strict scrutiny is required of “affirmative action” attempts based on race as is required of
race-based classifications that disadvantage a minority. Government may discriminate to benefit
minorities, only if it satisfies strict scrutiny.
 Rationale: Anytime classification is based on race or national origin, whether it is benign or
invidious, it must be examined under strict scrutiny.

Academic Admissions:
Ethnic diversity (race) may be a factor in the admissions process, as long as it is not the only
one.
 A number of factors enter consideration for admissions, but equal protection guarantees
that individual rights may not be disregarded. No facial infirmity – meaning no
discrimination exists in an admissions prgm where race/ethnic background is simply one
element to be weighed fairly against the other elements in the selection process. See Bakke;
Hopwood v. TX.
 Quotas based on race are not allowed.

Education
The Court has declined to extend the list of fundamental rights to include education.
There is no fundamental right to equality in public school education. Therefore, the law was
subject to rational basis analysis.
Alienage
There are other classifications that arguably warrant heightened scrutiny.
In deciding whether or not to treat a particular type of classification as “suspect,” the Court
has given substantial weight to whether the class which is disadvantaged is a “discrete and insular
minority,” i.e., a minority which is politically powerless and has historically been discriminated
against.. In general, the Court has applied strict scrutiny to classifications disadvantaging
aliens.

11
Constitutional Law I Prof. Barrett
Spring 2010
“Alienage” as the term is used by the Court, means “not having U.S. citizenship.”
Discrimination against aliens often takes the form of discrimination against all aliens, without
regard to their country of origin.
In Plyler v. Doe, the Court invalidated a TX statute denying free public education to illegal alien
children.
1. Children can affect neither their own status nor that of parents.
2. Importance of education to children and nation generally (would create a permanent
underclass)

GENDER
Gender- based discrimination is analyzed through Intermediate Scrutiny.
Sex-based classifications get intermediate review:
1. The Court articulated the applicable standard as being that “classifications by gender
must serve important governmental objectives and must be substantially related
to achievement of those objectives.”
a. Where we apply the intermediate scrutiny standard, the government objective
must be "important," and the means must be "substantially related" to that
objective.
b. So if gov’t intentionally classifies on the basis of sex, the burden shifts to the
gov’t to show that it’s pursuing an important objective, and that the sex-based
classification scheme is substantially related to that objective.
2. Pure administrative convenience can never be an important government interest
sufficient to justify gender based discrimination.

Craig v. Boren:
Facts: An OK statute forbade the sale of “3.2 beer” to males under the age of 21, and to
females under the age of 18. The constitutional claim was that the statute denied equal
protection to males aged 18 to 20.
Held: The Court articulated the applicable standard as being that “classifications by
gender must serve important governmental objectives and must be substantially
related to achievement of those objectives.” – Intermediate scrutiny
1. Under this standard, the law was held unconstitutional. Here, the government
purpose was traffic safety, but stats did not bear out a reason for subjecting men
to greater restrictions than women.
2. Besides, even if the stats did show what the state believed (i.e., the men were more
likely to drive drunk), the law was not substantially related b/c the women could
go and buy the beer and give it to the guys.

U.S. v. Virginia
Facts: Woman wanted to enter all-male Virginia Military Institute. Virginia Military Institute (VMI)
was the only single-sexed school in Virginia. VMI used a highly adversarial method to train (male)
leaders of the future. There was no equal educational opportunity to that of VMI in the State for
women.
Held: VMI’s policy of excluding women violated equal protection, and the alternative program was
not sufficiently comparable to the VMI program.
Rationale: J. Ginsburg:
 Diversity of educational approaches may be legitimate interest, but not allowing women
into VMI does not further this interest.

12
Constitutional Law I Prof. Barrett
Spring 2010
 Not allowing women b/c they would destroy VMI’s atmosphere is not legitimate state
interest. Of course the place would be different – there would be women there! This
tautology is not enough to sustain intermediate scrutiny.
 Analysis: This case is prime example of the court using watered down strict scrutiny to
conduct its analysis Whenever it analogizes to race or national origin, expect a more strict
intermediate scrutiny.
o The court is especially likely to strike down a gender-based classification system
that seems to be based on faulty generalizations or stereotypes about the differing
abilities of the two sexes.
o After VMI, sex-based classifications apparently would have to undergo “skeptical
scrutiny,” and would be upheld only if the state demonstrated an “exceedingly
persuasive justification.”

FUNDAMENTAL RIGHTS
Fundamental Rights are another area where Equal Protection requires the Strict Scrutiny
Standard be applied. Two fundamental rights that get scrutiny, even though the discrimination in
the statute has nothing at all to do with race, gender, etc., are:
1. Voting
2. Access to justice [the courts].

Voting
The Ct. has found that the right to vote is a fundamental right. If this right is infringed
upon, it will have an impact on the exercise of other fundamental rights. See Harper v. Va. Bd. of
Elections (invalidating poll tax). Voting is different than other rights because it cannot be absolutely
quantified. Your right to vote is always measured against that of other citizens.

Access to Court
Existence of a classification based on wealth has never been enough to trigger strict
scrutiny. But where the state imposes fees which have the effect of preventing the poor from
gaining access to the courts, the Court has sometimes been willing to apply strict scrutiny – if the
particular type of judicial access being sought is found to be sufficiently important.
The Court has carefully scrutinized and frequently invalidated economic barriers impeding
access to the criminal and civil processes. The Court has repeatedly divided on the issue of whether
procedural due process or equal protection provides the appropriate analytical framework.
Generally, the Court has shown a greater likelihood of striking down barriers to the pursuit
of judicial remedies in criminal cases than in civil cases. Griffin v. Illinois is the leading case:

Freedom of Expression
The 1st Amendment provides, in part, that "Congress shall make no law ... 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 is not absolute and must be balanced against other important state interests.
1. Exclusions like bribery, perjury, and counseling to murder are not considered protected
under 1st Am

13
Constitutional Law I Prof. Barrett
Spring 2010
2. Closer calls: incitement, fighting words, libel, obscenity, and child pornography
(“unprotected” boundaries shrinking – especially anything resembling “political
speech,” which gets extra protection)
3. Lower value categories – commercial speech and sexually-explicit-but- non-obscene
speech – protected, but not fully so

CONTENT BASED VS. CONTENT NEUTRAL

Courts distinguish between “content-based” and “content-neutral” regulations on expression.
 If the government actions is content-based, the action will generally be subject to strict
scrutiny, and the action will usually be struck down.
o Regulation aims at the content of speech.
 On the other hand, if the government action is content-neutral, the government’s action
is subjected to intermediate scrutiny, and will usually be upheld. Most content-neutral
regulations of speech or symbolic conduct are subject to heightened rather than mere
rationality review.
o Regulation aims at some other, content neutral interst, such as peace & quiet,
the orderly movement of crowds, the aesthetic attractiveness of public spaces,
or the economic competitiveness of an industry.
o Content neutral regulations generally simply regulate the time, manner, and
place of speech.

Content-Based Restrictions
When a law discriminates based on content by placing burden on speech - Regulation aimed at
subject matter. i.e., political speech.
 Strict scrutiny applies - which places the burden on the government to show that
the regulation is narrowly tailored to achieve a compelling governmental interest
and that it has no less restrictive alternative to achieving that interest.
 Exception Includes: incitement, fighting words, libel, obscenity, and child
pornography (“unprotected” boundaries)
 It is difficult to find content-based discrimination that survives strict scrutiny. The Court has
considered several distinct types of content-based regulations:
Viewpoint restriction
The Court generally treats restrictions of the expression of a particular point of view as the
paradigm violation of the 1st Amendment. See e.g., Brandenburg; R.A.V.
Subject Matter Restriction
The Court has generally scrutinized subject matter restrictions strictly.
Content-Neutral Laws
Regulation aimed at the suppression of ideas; usually aimed at the way the speech is likely to be
delivered such as regulating the time, place, or manner in which the speech occurs.
i. These regulations are generally valid and as such subjected to Intermediate
Scrutiny Standard – which places the burden on the gov’t to show that the
regulation furthers some important governmental interest and is substantially
related to achieving that objectives.
Two types of content-neutral laws have come before the Court on free speech challenge:

14
Constitutional Law I Prof. Barrett
Spring 2010
 One type of content-neutral law, instead of focusing specifically on expression, is aimed at a
wider range of behavior and has only an “incidental” impact on speech.
o A 1st Amendment challenge typically arises against such a law when the violator
seeks to engage in an instance of expressive or symbolic conduct.
 A second type of content-neutral law aims at expression, but for reasons unrelated to its
content.
o Ex: Law limiting the decibel level of amplified sound or an injunction keeping
protestors at a certain distance from an abortion clinic entrance aim at interests in
tranquility and orderly movement that have nothing to do with the communicative
impact of the speech.
1. “Time, place, and manner” regulations of speech in the public forum represent the largest
single example of this type of content neutral law.
Time, Place, Manner test to be used when the gov’t is using content-neutral regulations b/c
concerned with conduct:
1. Significant (important, substantial) government interest
2. Narrowly tailored to achieve asserted interestdoesn’t have to be the least restrictive
alternative, but has to be a good fit.
3. Adequate alternatives must be available.
Standard of review
 The contemporary standard of review for content-neutral regulations, as opposed to that
that are content-based, is a form of intermediate scrutiny: government can justify content-
neutral regulations of speech, or of conduct that might amount to speech, only if it can show
that they are closely tailored to serve a substantial or significant govt interest.
o The interest need not be compelling, and the means/ends fit need not be perfect; the
state is not obliged to exhaust less restrictive alternatives before it may enact or
enforce a content-neutral law.

Symbolic Conduct
What if critics of public policies seek to express their views through symbolic behavior rather than
words: e.g., by burning a draft card (O’Brien), or by mutilating or burning the flag? Can such critics
claim as much protection as would be afforded if the criticism was expressed through the spoken or
printed word?
 Actions such as flying a flag can be expressive conduct entitled to as much protection as
traditional speech.
However, there has to be a point at which actions stop being symbolic speech and simply become
criminal actions.
 One cannot derail a troop train as expression of his objection to war. One cannot commit a
crime and wrap it in the flag of expression. After all, terrorism expresses a viewpoint and
yet it is not protected speech.
In cases such R.A.V. (burning cross), the challenged law was aimed expressly at symbolic conduct
for reason of its symbolism and communicative impact.
 But what about laws that have the incidental effect of prohibiting symbolic conduct?
 The court inquiry into whether there is an incidental intrution into the prohibition of
conduct starts and ends on the face of the statute.

15
Constitutional Law I Prof. Barrett
Spring 2010
In a Nutshell
Symbolic speech is communication effected through conduct  flag burning, draft card burning,
nude dancing. Symbolic speech always involves both a communicative element and a conduct
element.
 Look to see if the government it totally prohibiting the symbolic speech (apply the O’Brien
test) or just moving it around (time, place, manner test).
General rule; Where speech and non-speech are combined in conduct, a regulation that has only an
incidental restriction on expression will be tolerated only when it passes intermediate scrutiny
test: The Four Test:
1. regulation was within the constitutional power of the government;
2. it furthered an important or substantial governmental interest;
3. the interest was unrelated to the suppression of free expression;
4. incidental restriction on Firs Amendment freedoms was no greater than it is essential to the
furtherance of governmental interest.

Erogenous Zoning
Erogenous zoning laws are laws that disperse or concentrate establishments that specialize in
materials of specified sexual content.
1. The state can’t ban non-obscene materials and films, but it can sure them geographically.
Thus, to limit or prohibit the proliferation of nude films – porn theaters – a city can enact
zoning ordinances limiting the amount in any particular area.
A plurality of the court advocated that not all protected speech is protected equally (two-tier
approach), however, the majority of the court has not accepted this.
Low Value Speech? (Two Tier Approach)
A number of cases suggest that the court may believe that certain types of expression, while not
directly suppressible on the grounds of their content, are inherently less valuable and may
therefore be regulated more extensively than speech closer to the “core” of 1st Amendment values,
such as political speech. This less-favored speech seems to include mainly speech that is “indecent.”
Young v. American Mini Theatres (1976)
The court has split the categories of where some speech may fall on as “1A” and “Non-1A.”
Speech protected are Playboy(SS), O’Brien(IS) and Unprotected are Obscenity, Incitement, Child
Porn – If you happen to find yourself in the non-1A – the govt can do what it want.
Page 801 – list of the content matter
 Incitement, fighting words, libel, obscenity, and child pornography falls under the “Non-
1A unprotected” boundaries

Unprotected Speech: Obscenity

To begin with, obscenity is unprotected speech. Expression that is obscene is simply
unprotected by the 1st Amendment, so the states can ban it, punish it, or do whatever else they
want without worrying about the First Amendment. Therefore, all the state needs is a rational basis.
The Court continues to view obscenity as unprotected speech so long as it is sufficiently defined.
However, if speech is sexually explicit but is not obscene and does not constitute child pornography,
it is within the realm of 1st Amendment protection, but the Court has wrestled with it should occupy
a subordinate position as “lower value” speech.
Three Part-Test:

16
Constitutional Law I Prof. Barrett
Spring 2010
Obscenity, defined for purposes of free speech, is not deemed constitutionally protected
speech. However, laws designed to regulate obscene materials must be carefully limited. In Miller
v. California (1973), the Court agreed on a definition of “obscenity”.
In order for a state to regulate material on the basis of obscenity, the material must, when taken as
a whole:
1. Appeal to a prurient interest in sex – based on local community standards;
a. It has to be a “turn on”
2. Be patently offensive – based on local community standards;
3. Lack significant redeeming literay, political, scientific or social value – national
standard
i. S.L.A.P.S
ii. So something will not be "obscene" unless it depicts or describes "hard
core sex". (For instance, mere nudity, by itself, is not obscene.)

FIGHTING WORDS
Fighting words receive no 1st Amendment protection because, like other unprotected
categories of speech (e.g., defamation, obscenity, etc.) they are not normally part of any “dialogue”
or “exposition of ideas.”
Fighting words are words which are likely to make the person to whom they are addressed
commit an act of violence (probably against the speaker).
1. Fighting words are defined as words that would provoke a reasonable person to
actual likelihood of imminent violence (elicit a breach-of-peace).
2. True Threat - Unprotected – Statements meant to communicate an intent to
place an individual or group in fear of bodily harm (Virginia v. Black)
3. States may Ban words likely to INCITE Physical Retaliation – those personally
abusive epithets that, when addressed to ordinary citizens, are inherently likely to
incite immediate physical retaliation.
a. However, limited by Chapinsky ( was a Jehova’s Witness who called the
city marshal a “God damned racketeer” and “a damned Facist” and then got
in a fight with him on the sidewalk,)
1. Fighting words are directed at a particular person. The fighting words
doctrine originated in Chaplinsky.
2. Offensive Speech is analyzed under fighting words - CONFIRM

HATE SPEECH
Government efforts to regulate "hate speech" – speech attacking racial minorities, women,
homosexuals, or other traditionally disfavored groups – are likely to run afoul of the 1st Amendment
for being content-based.
1. Public expression of ideas may not be prohibited just b/c the content (of the ideas) are
offensive (R.A.V v. City of St. Paul)
2. Thus, “hate speech” is protected under 1st amendment, unless it rises to level of
"fighting words."
a. Within the area of unprotected speech the government may not proscribe some
unprotected speech, but permit other unprotected speech based on point-of-view

17
Constitutional Law I Prof. Barrett
Spring 2010
(i.e. specifically ban only fighting words which are racial in nature such as cross
burning).
3. However, A state can increase a convicted defendant’s sentence based on the fact that it
chose the victim of his crime based on race (Wisconsin v. Mitchell).
Protected but limited
Commercial Speech - Commercial speech is speech that advertises a product or proposes
some commercial transaction.
1. Commercial Speech in general have some 1st amendment protection, however, false
advertising does not. In determining a regulation on commercial speech is valid:
i. Determine whether the commercial speech concerns a lawful activity and is not
misleading or fraudulent. If it is, the regulation will be held valid only if it:
i. Serves a substantial government interest;
ii. Directly advances asserted interest; and
iii. Is narrowly tailored to serve the substantial interest. This part of the test
does not required that the least restrictive means be used. Rather, there
must be a reasonable fit b/w the legislation’s end and the mean chosen.
2. The court was clear in VA Pharmacy that commercial speech would not be protected when it
fell in one of these categories:
1. Advertising of illegal products (machine guns)
2. Discriminatory advertising (blacks only; males only)
3. False of deceptive advertising.

Content- Neutral Regulation as applied to Public Forum

1. If regulation is content-based, it makes no difference whether the expression is or is not in a
public forum: strict scrutiny will be given to the regulation, and it will almost never be
upheld.
2. It’s where a regulation is content-neutral that the existence of a public forum makes a
difference; especially regulations on “time, place & manner" are less likely to be upheld
where the expression takes place in a public forum.
3. When expression takes place in a non-public forum, the regulation merely has to be
rationally related to some legitimate gov’t objective, as long as equally effective
alternative channels for the expression are available.
4. When the expression takes place in a public forum, the regulation has to be narrowly
drawn to achieve a significant gov’t interest (roughly intermediate-level review). It is
necessary, but not sufficient, that the government also leaves alternative channels available.
5. One drop of content discrimination or regulation means that it is content based and the
strict scrutiny test must be applied – Does not matter that it is otherwise a TMP restriction,
any content discrimination subjects the statute to strict scrutiny.

Overbreadth – A statute is overbroad if, in addition to prohibiting activities which may be

constitutionally forbidden, it also sweeps within its coverage speech or conduct which is protected
by the First Amendment. “A governmental purpose to control or prevent activities
constitutionally subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.”

18
Constitutional Law I Prof. Barrett
Spring 2010
A defendant could claim overbreadth even if even if may have been found guilty under a narrower
statute.
1. Basis – chilling effect on speech and selective enforcement.
2. Overbreadth means that a law will affect protected conduct as well as unprotected
conduct and is therefore facially invalid – “Good roots but potentially unhealthy
branches”
Overbreadth analysis is an exception to two traditional rules of constitutional litigation:
1. First, it results in the invalidation of the law “on its face” rather than “as applied” to a
particular speaker. Thus, when invalidated for overbreadth, the law is not narrowed, but
rather becomes wholly unenforceable until a legislature rewrites it or a properly
authorized court construes it more narrowly.
2. Second, overbreadth is an exception to the usual rules of standing. Challengers are in
effect permitted to raise the rights of third parties.
3. Concern with the chilling effect of speech on overbroad laws. Laws affect many people –
some who may be afraid to challenge the law.
4. Substantial Overbreadth – The overbreadth must be substantial before facial
invalidation is appropriate.
a. Is a general doctrine – not limited to content based – free speech. It may be made
with respect with the right to travel, infinge the right to abortion

Vagueness –
1. A statute will be held void for vagueness if person of common intelligence must necessarily
guess at its meaning and differ as to its application.
2. If a law does not provide sufficient definite warning as to the proscribe conduct when
measured by common understandies and practices, it is unconstitutional vague and its
enforcement is a denial of due process.
1. Basis – This stems from the Due Process Clause’s requirement that people be
given fair notice of what conduct is prohibited.
 Challenger will often assert both vagueness and overbreadth. Vagueness, however, is
concerned with all statutes – not only speech. There is no exception for standing in
vagueness as there is in overbreadth
 The closer you get to the core of the 1st Am, the more precise the law has to be.
 The generic dangers of vagueness are as follows:
1. Insufficient notice
2. Hidden viewpoint-based discrimination (licensing cases)
3. Being governed at the whim of the executive (rule of law objection)
Vagueness is a procedural due process problem.
1. For instance, a law gives an awful amount of discretion to the arresting officer to decide
loitering, vagrancy, etc. There is the combined problem of unlimited discretion – plus a
reasonable person is not put on sufficient notice that they are doing something unlawful
2. Unconstitutional vague laws burdening expression are usually, but not invariably, facially
invlaid because such laws chill speech and permit covert view point based enforcement.

19
Constitutional Law I Prof. Barrett
Spring 2010
Prior Restraint – is an administrative or judicial order that prohibits speech before it occurs, and
does so, on the basis of the speech’s content. Only content-based restrictions on speech before it
occurs are prior restraints.
1. A content-neutral ban on speech before the fact is permissible if its purpose and effect are
not to suppress ideas but to advance legitimate state interests unrelated to the suppression
of speech
2. Punishments after the fact of the speech are not prior restraints.

Any governmental action which prevents expression from occurring is considered to be

constitutionally invalid – prevents speech before it even gets out to the marketplace.
With prior restraints, you have not been charged with anything yet. You do not have any of the
protections in prior restraint as when you have been prosecuted for a crime. You just have a law
that prevents the speech from being uttered.
Rationale
1. Public has a right to receive information, and if prior restraints are applied, then that info
will never enter the proverbial marketplace.
2. States have to criminalize act/publication after the fact.
a. People would prefer to have a DA make that decision, rather than a board of
censors (better for the people b/c DA has other issues to deal w/)
3. Challenging a censorship board decision would place burden on the challenger, as
opposed to burden on gov't to prove no 1st amend violation
a. There’s a chilling effect if the speech has to go through a censor: “I don’t need the
hassle” – People will take the line of least resistance
4. Ensures const'l right to jury, judicial process, etc.

There are two basic types of prior restraints:

1. Requiring a license or permit before a particular type of expression may be engaged in.
2. Governmental orders and court injunctions telling a particular person that he cannot
engage in a particular type of communication.
 Despite the general rule against prior restraints, the gov't may in fact use prior restraints in
certain situations. However, the gov't must show a lot to justify a prior restraint.

FREEDOM OF ASSOCIATION
Although the 1st Amendment does not mention a right of freedom of association, the right to
join together with other persons for expressive or political activity is protected by the 1st
Amendment.
1. However, the right to associate for the expressive purposes is not absolute.
2. Infringement on such right must be justified by compelling state interest, unrelated to the
suppression of ideas that cannot be achieved through means significantly less restrictive of
associational freedom.
COMPELLED SPEECH: FREEDOM NOT TO SPEAK
“The freedom of thought protected by the First Amendment includes both the right to speak
freely and the right to refrain from speaking at all.”
1. The government may not force a person to speak or to affirm any prescribed belief of idea.
2. The unenumerated right not to speak is based on the protections of the 1st Amendment.
a. Can’t be made an unwilling mouthpiece of the state

20
Constitutional Law I Prof. Barrett
Spring 2010
3. When examining compelled speech, the following factors are relevant. (Cited cases are dealt
with in detail below).
i. Will person being forced to carry the speech be able to easily disavow it? Or will
they be identified with it in some way?
ii. Will being forced to carry the speech make someone who would prefer to remain
silent speak up in order to disavow the unwanted speech?
iii. Has the government specified the message, as opposed to allowing private
individuals to do so?
iv. Is viewpoint the trigger for the regulation?

The Religion Clause: Free Exercise & Free Establishment

The 1st Amendment provides that: Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.
Thus, there were two clauses which sought to protect religion: (1) Free Exercise Clause; and (2)
Establishment Clause. They both apply to the state through the 14th Amendment.
FREE EXERCISE
The Free Exercise clause guarantees the free exercise of religion. Freedom of religion can
only be exercised to the extent of the law.
“Exercise” often implies conduct or action  to what extent may the state regulate activity which the
actor claims is required by religion?
1. Claim of Free Exercise Violation + Law of General Application = Rational Basis
2. If object of law is aimed at religion = Strict Scrutiny
ESTABLISHMENT CLAUSE
The Establishment clause prohibits state sponsored or established religion – we don’t want
to have a “Church of America.” It may also forbid government money from being given to religious
institutions.
Lemon Test
The Lemon Test, which still exists today is a guide, not an absolute rule, applied differently in
different cases and sometimes not at all.
1. Does the law have a secular purpose?
2. Is its principle or primary effect one that neither advances nor inhibits religion?
3. Does it foster an excessive government entanglement with religion?
Endorsement Test: A violation of the Establishment Clause is determined by the
"Endorsement Test":
1. Whether or not government is endorsing religion by its actions (would reasonable person
see this as endorsement)?
2. Look at:
a. The message program is sending (point to argue about)?
b. Direct benefit to school?
c. Whether it has a secular purpose?
d. Legislative history?
3. Key to Endorsement: if it is a mandatory event or at a public school, then may =
endorsement.
a. Examples of Endorsement
i. moments of silence
ii. prayer meetings

21
Constitutional Law I Prof. Barrett
Spring 2010
iii. 10 commandments in class (= clearly assoc'd w/ religion)
iv. creationism in school (= mandating religious doctrine in school)
v. released time program, where religion brought to a public school (allowed if
go off campus b/c accommodating students who do not participate)  here a
different message is sent via venue (if at school = saying "we support these
religions")
STATE ACTION
There are two classifications of questionable areas that depend on how closely related
the private action is to the usual functions of government:
1. Private entities assuming public/government functions;
2. Significant state involvement, i.e. whether there is state involvement in private activity
sufficient to constitute state action.
a. If a private individual is doing something that would clearly pose constitutional
problems were it done by government, that’s a tip off to a state action problem.
b. In all of these situations, there will be no state action (and thus no constitutional
violation), unless additional facts are presented that somehow tie the state in to the
private actor’s conduct.
Public Function
Under this approach to state action, if a private individual (or group) is entrusted by the
state to perform functions that are governmental in nature, the private individual becomes an agent
of the state, and his acts constitute state action. Company town case functioning like a regular
town does except it is privately owed

Significant State Involvement

Even if the private individual is not doing something that’s traditionally a "public function,"
his conduct may constitute state action if the state is heavily involved in his activities. This is the
"state involvement" branch of state-action doctrine. Thus, where there is sufficient state
involvement, private activity can be dragged over the line and become a state action.
The state may become responsible for the private party’s actions because it commanded, i.e.,
required, the private party to act in that way. Skelly v. Kraemer –the state enforced a private agmt
among neighbors that none will sell his house to a black.
1. Because the state has lent its state judicial enforcement mechanism to this otherwise
private K, the combination of enforcement and private discrimination violates equal
protection. The state was throwing its weight behind the enforcement of the covenant.
2. The state is responsible for the act of a private party when the state, by its law, has
compelled the act.

There is state action if there exists between the state and private actor a "symbiotic"
relationship, i.e., a relation between the two that is mutually beneficial. Burton v. Wilmington
Parking Authority, a Wilmington, Delaware city agency owned and ran a parking garage complex.
The agency gave a 20 year lease to a privately-operated restaurant located in the complex. The
restaurant refused to serve African Americans.

Section 5 of the 14th Amendment: Authorizes Congress to enforce laws of the 14th Amendment.
1. Under section 5, congress cannot create new rights or expand the scope of rights, all the
congress can do is act to prevent a remedy violation rights already recognized by the courts.
a. Must be narrowly tailored – The law must be Proportional and Congruence to
remedy proven constitutional violation. City of Boerne v. Flores

22