American Constitutional Law & Politics Poli:3101

Stenberg v. Carhart Supreme Court of the United States, 2000

- "Nebraska's statute criminalizing the performance of "partial birth abortion[s]" violates the U.S. Constitution, as interpreted in Casey and Roe." The sharply divided Court struck down the statute because it placed an undue burden on a woman's right to have an abortion and did not allow for exception in cases of threatened health. "All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," that results in "an undue burden upon a woman's right to make an abortion decision," wrote Justice Breyer for the Court. - Writing for the majority, Justice Breyer applied three principles established in Casey: (1) before "viability . . . the woman has a right to choose to terminate her pregnancy"; (2) "a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before viability" is unconstitutional; and (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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." - Supreme Court's decision in Stenberg v. Carhart required the health exception in all cases where medical opinion on the necessity an abortion procedure is divided. Scalias dissent - "[t]he notion that the Constitution of the United States... prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."

Regents of the University of California v. Bakke Supreme Court of the United States, 1978

- 16 spaces of the 100 slots left for minorities - Minorities could go for the other 84 but whites could not get the 16 - Bakke was denied twice even tho he had "better scores then others" - Applied really late in the year Justices Is title 6 violated? Is title 6 more restrictive then EP EP violated? What test do they apply? Stevens, Burger, Stweart, and Renquist Yes. Way the wording is seems the program violates title 6. The second one is iffy arguments could be made each way ? Strict Scrutiny- compelling governemtn interest and necessary to achieve that interest and narrowly tailored Powell Yes to the first. No to the second its coextensive Yes Strict scrutiny Brennan, White, Marshall, and Blackman No and No They restrict the same thing NO Intermediate standard applies- requires important government interests that must be substantially related. Goal here is to protect the minority groups. Powells opinion - Three problems associated with prefrences o May not be clear if its benign o May reinforce stereotypes o Making innocent people pay for others actions - Obtaining the benefits from a ethnic student body is worth it. - Cant do a hard freeze out - Minorities should just be a plus - Race may be considered - Bakke gets in because of this LOOK AT NOTES FOR THE CHART

The Exclusionary Rule

- 1914 in Weeks v. United States - if the government obtains evidence through an unconstitutional search and seizure, it cannot use the evidence in a criminal prosecution. (a number of complex exceptions) - Applied to states in 196 through Mapp v Ohio - Justices Holmes and Brandeis in their dissents in Olmstead present the classic arguments for an even broader form of the exclusionary rule than now exists.

Classifications Other Than Race and Sex

- Alien status, national origin is the only category other than race that has been definitively held to be suspect and get strict scrutiny. - some argue the court has retreated from the national origin one, but it's not an officially announced and some justice, justice is still refer to national origin as a suspect classification - gender is still officially semi-suspect with cons. court no will probably stay intermediate but could move to suspect and strict later - illegitamacy is semi-suspect- non issue cuz noone really cares about legitimacy - Everything else would receive rational scrutiny. But again, federal or state law can, can raise that up. - religion, of course, discrimination, religion, we do have First Amendment protection of religious freedom. So that sort of got its own protections there - a lot of statutes will add all kinds of things dealing with age and associational rights, sexual orientation, sexual identification, all these kinds of things can be added in. And again, states can always provide additional protections for their citizens provided those protections don't conflict with some other constitutional right.

Roe v. Wade Supreme Court of the United States, 1973

- Blackman (joined by Burger, Douglas, Brennan, Stewart, Marshall, & Powell joined) for the court o Protect health and safety of pregnant women o Protecting pre natal life - This right of privacy and it is found with this - Right is absolute argued by roe - State has interest in health and safety and prenatal life - Texas argues that a fetus is a person. o 14th amendment - Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental "right to privacy" that protects a pregnant woman's choice whether to have an abortion. - this right is balanced against the government's interests in protecting women's health and protecting "the potentiality of human life." The Texas law challenged in this case violated this right. - tried to determine if the case was moot, concluding that it was not. When the subject of litigation is "capable of repetition yet evading review," a case need not be dismissed as moot. Pregnancy is a "classic justification for a conclusion of nonmootness." - Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman's right to choose to have an abortion falls within that right to privacy. - A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the "potentiality of human life," the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability. - In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. - In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. - In the third trimester, once the fetus reaches the point of "viability," a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother. Burger douglas and stwert filed concurring opinions, White filed a dissenting opinion joined by Rehnquist - Says court is exercising its power of judicial review Rehnquist filed a dissenting opinion - says privacy isn't involved in this case.

Voluntary Segregation

- Blacks and other ethnic groups occasionally ask for, or even demand, separate dorms, classes, etc., in schools and colleges. On the one hand having such separate facilities is justified as a way for members of these groups to feel less isolated. Sometimes the justifications become more of an actual separatist movement. - Is it constitutional to have segregated classes, dorms, etc., in colleges if it is the minority that wants them? no because - authorities may have problems determining whether the desire is legitimate. what if the "majority" makes life so miserable for the minority group that the latter seeks the shelter of segregation? "Voluntary segregation" under such circumstances would seem to be neither voluntary nor appropriate as a solution to the underlying discrimination. - allowing various groups to segregate themselves would deprive other students of their presence. One argument for "diversity" is that everyone benefits from having members of other racial and ethnic groups as part of the mix. the "intangibles" noted by the Court in Brown work both ways. - public authorities who allowed voluntary segregation would not be taking a race neutral approach to classes, etc. White students would not, for example, be able to exclude members of minority groups so the reverse should not be allowed either

Gratz v. Bollinger Supreme Court of the United States 2003

- Both went on to graduate from other schools - Add 20 points to the score of every applicant that's minorities - OC and breyer flip on this case. - Didn't give enough personal consideration

Brown v. Board of Education of Topeka Supreme Court of the United States, 1954

- Difference is these are children other then adults - Court concerned about protecting children - The facilities are equal or on the way to being equal (nearly equal) - Isolated only the intagables - Court has to say wither or not segregation is legal - Inherency argument o When you are advocating for a change it is not only wrong but you cant fix it but the only way to is to get rid of it - Seperating kids by race affects their heart and minds in ways that can not be undone. - Earl warren wrote for unanimous court o Linda Brown. The father brought the case on her behalf - in public education seprate but equal is illegal - NOTES o Would it be legal if black students did as well as whites in segregated schools? § Depends on the definition of as well as o Later expanded to outlaw it in public areas o How do you do it with private spaces § Threaten to withhold funds o Equal protections clause limits the states o There is no equal protection clause in the 5th amendments o Make decision on equal protection in 14th to apply their decision to the states o Bowling V Sharp § From DC so considered federal · Reinterpretation of the due process part of the 5th amendment that segregation is unconstitutional · Equal protection component of the due process clause of the 5th amendment. Apply it to the federal level o Warren's leadership in Brown § Legally 5-4 is the same as 9-0 § IT has the psychological power that all 9 agree § Some suggest that warren was not all that important to the court. Justice clark hints at this o Frankferter said that had segregation cases had been held the term before it would have been 5-4

The Effect of Brown

- Even though the most blatant examples of defiance to the Brown decision were struck down, many evasive techniques and excuses for delay were tolerated. - Ten years after Brown II, in 1963- 64, 98 percent of black children in eleven Southern states still attended all Black schools. - Civil Rights Act which provided that federal funds would be cut off to those school district still practicing discrimination. Coupled with a massive appropriation in 1965 for educational aid, this act became a spur to desegregation. - United States v. Fordice,

Frontiero v. Richardson Supreme Court of the United States, 1973

- Frontiero was in the Airforce - Richardson was sec def - frontiero wanted to claim her husband as a dependent to get increased benefits that males automatically got . (women had to prove that the husband relied on them for 50% of their support. - ratio for enlisted me to women was 99-1 - vast majority of wives of male service members did probably depend on the males income. - the husbands of women service members probably have a better job so unlikely to be relying on womens income for support. Brennan (joined by White, Douglas, and Marshall) opinion: - sex is a "suspect classification" - requires strict scrutiny. - immutable characteristics like race or national origin and sex requires strict scrutiny because it usually doesnt affect their ability to preform. Powell (Burger & Blackmun) concurring: - gender classification is not inherently suspect. - agreed with Brennens result but not that it is strict scrutiny. - Think it should be the same as reed so intermediate level of scrutiny - didn't want to preempt the legislative process of the ERA - wanted political process to play out before court stepped invidious discrimination in violation of const. - suggest strict scrutiny but said to use reed so rational basis maybe more. Stewart - didn't join either opinion. - statute worked with invidious discrimination, usually held for race - used wording for strict scrutiny but said use reed. so kind of confusing. rehnquist dissented NOTES - stewart didn't want the court to be seen as moving to fast - women don't feel a stigma about sex whereas races do - 1971 declared nationality origin to be suspect.

Wiretapping and National Security

- In United States v. U.S. District Court, 407 US 297 (1972) the Supreme Court held that domestic security cannot be used to justify wiretap activities performed without a warrant. - constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. - It is still an open question whether the President can authorize wiretapping without judicial supervision when national security interests relating to activities of foreign powers are involved.

Lawrence v. Texas Supreme Court of the United States 2003

- Kennedy joined by stevens sutter Ginsburg and breyer o Liberty protecting o Weapons disturbance call in home o Oral sex btw two men o equal protections ground appeal o SC said it was appropriate for Texas court to rely on bowers - Does it violate equal protections o Texas talks about same sex couples in statute - Violate due process clause? - Overturn baurers? o Within liberty of person without being charged as criminals o Planned parent hood o And casey o Can overturn president o Doesn't involve minors coercion and not were consent can be refused o They reverse it after 17 years - OC concurs o Doesn't join in overturning it o Violates equal protection clause - Scalia dissents o Attacks everything kennedy says o Presidents and talks about casey o Many laws deprive people of libery and 14th allows it through due process o Long history of laws against sodomy in general o Moral component of law - Thomas dissnets - NOTES o - Coercion doesn't matter is establishment cases

Loving v. Virginia Supreme Court of the United States, 1967

- Kustice Clark retired the day this was announced. Marshall nominated the next day - Virginia statute prohibited interracial marriage in Virginia - Statute says the law applles equally to blacks and whites - Punishment applies to both white and black person - Virginia law was suppose to protect the integrity of the white race - Are all racial classifications unconstiutionals? o No the court doesn't say that. Says strict scrutiny. - In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. - the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. - Virginia law violated the Due Process Clause of the Fourteenth Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

Palmore v. Sidoti Supreme Court of the United States, 1984

- Mom Palmore divorces from sadati the dad and took custody of the daughter - Mom dated a black man so the dad sued for custody - Lower court decision based singularly on race - So the SC overturned the decision and said they all love the child the same - Racial prejudice can not be used to remove a child from the custody of its natural mother

Ricci v. DeStefano Supreme Court of the United States 2009

- New Haven used objective examination to see who gets promoted - City is in a situation where they are gonna get sued either way - City defends to decertify. - Throwing out the evidence was necessary. - The city tries to argue they aren't job related but court says that's not true an why are you using them - Legislation can protect more people from discrimination

Craig v. Boren Supreme Court of the United States, 1976

- OK prohibited the sale of 3.2% alcohol to males under 21 and females under 18. - 2% of males and .18% of females arrested for this offense - 11x more males arrested for this. but only 1.82% difference. Brennan (White, Blackmun, Marshall, Powell, and Stevens) opinion: - classifications by gender must serve important gov. objectives and must be substantially related to achieving the objective. - language associated with an intermediate level of scrutiny. - interest is important but the relationship isn't close enough - because the female could buy the beer and give. it to the male. they are trying to tackle sales when consumption is the problem. - correlation is .086 so there isn't much relation to it. Powell concurrs. - intermediate level of scrutiny language. - doesn't want it to be strict scrutiny Stevens concurs. - wasn't on court for fontiero. - no substantial relation - says its perverse because men can consumer more alcohol before being at legal limit. - said you shouldn't put sins of 2 % on the 98% that's how it works tho Stewart concurs - says OK statute was irrational - using reed language still Burger dissents - gender is still not suspect classification but it is disfavored. - disagrees with his heightened status Rehnquist dissents - gender is not suspect - doesn't like the heightened standard - would put it at rational basis. Notes - sex may be considered a semisuspect classification tho RBG said the door was still open to change that - Michael M. Versus Superior Court, Supreme Court sustained California statutory rape law, that at that time made it only a crime for the male, even if the female is also under age to engage in sex with an under aged female. So you have maybe to 17 year olds having sex consensual - mail can be liable for criminal liability, criminal sanctions, and the female not. - males and females not situated the same - Rehnquist burger stewart, Powell and balckmun vote to uphold it. relys on pregnancy . - Brennan, white marshall and stephens vote to strike it. said it was outdated stereotypes. - Powell blackmun and stewart change votes from Craig. - roster v goldberg. - stevens switched from Michael m . - since being drafted was limited to males then so will registration - did not address if it was constitution but punted on it - many stereotypes have been shut down by the court - 5 say intermediate

Plessy v. Ferguson Supreme Court of the United States 1896

- Plessy was 1/8th black - Doctrine of seprate but equal was constitutional - Wanted to be in an all white rail road car Notes for PvF - Many railroads didn't enforce jim crow laws because an added epense - Law in question did not treat them unequally - Even if it did it was reasonable to treat them unequal - NOTE 5 o Mizzou exrel Gains V Canada § Mizzou didn't want the epense for blacks so they would ship him to a black law school out of state § Not seen as wqual § Thurgood marshal worked on all three of these cases o Sweat v Painter' § Just because they are separate puts them at an intangible factors · Prestige associated with law schools · Other lawyers will see you different. · Make connections with people o Mcloren V Ok state regions § Admitted into graduate school and was segregated. Had to sit at his own table and wasn't able to interact with other people

Griswold v. Connecticut Supreme Court of the United States, 1965

- Statute prohibits birth control devices - Anyone who assisted or counseled someone to commit a crime could be charged like the offender - Planned parenthood lawyer (Griswald) told married couple to use contraceptions - Douglas o Bill of rights imply a right to privacy § Zones of privacy · 3rd amendment · 4th amendment · 5th amendment § Penumbra and emminations · Penumbra= Shaded area. § Goldburg · Located right to privacy in the 9th · He is not saying that the 9th is the source cuz its not just found in the 9th. · All it does is the 9th says there may be other rights out there. That opens the door for the court to say one is privacy § Liberty · 14th amendment. · The court doesn't want to open its self up to say they are just making stuff up · Needed to find a word int eh constitution to hang it on - Other justices all focus on liberty o How do we determine if something is or isn't liberty § Its between married people § In their own home § Doctor patient (HIPPA) o Marriage family and procreation all covered - Harland and white concurred in judgement - Black dissents o Doesn't violate any specific part of constitution - Steward dissents o 6 argurments but don't say it violated NOTES - 9th has ambiguity - Could they be used to decrease the - Could you find it failed the establishment clause o No - Constitutional right and autonomy has traditionally been just for familys.

Grutter v. Bollinger Supreme Court of the United States 2003

- UM Law school - High scores do not mean admission - Soft variables are examined - Critical mass of underrepresented minorities - Grutter 161 (86th) and 3.6 gpa - EP title 6 and 44 USC 1981 used for her to sue on the bases are race - Race base double standards - Dennis Shields testified that they did not admit a certain numbers of minorities - Meanful representation. - No one wanted to quantify critical mass. o Minimum amount you need to start the reaction o Quota - If they didn't take race into account then the number of minorities would drastically drop - District court said it was unlawful - Sit in baunk (all the judges sit for it) - Reversed it and said it was narrowly tailored. - Court adopts what powell said. That it is a compelling state interest. - Protects persons not groups. Get strict scrutiny o Fight is over what test to apply - Not every decision based on race is equally objectionable - We defer to the law schools judgement that such diversity is needed for their program - Quotas and racial balancing are considered unconstitutional - Must be narrowly tailored. Some attention to numbers does not make it a quota - Individual consideration - Race can not be the defining feature o Tho it usually is if the scores are different - Percentage plan o At the college level, some states who got rid of AA they then got a percentage plan o If you finish in the top half of your class then you would automatically be accepted to the state school. - Scalia o Students not graded on all things about college o Lessons of life other then law - Michigan won - Renquest had a point - Kennedy desents. Court does not apply strict scrutiny o Court gives law school to much deference o Faculty was breath takingly cinical about who should be considered minorities

Washington v. Davis Supreme Court of the United States 1976

- Washington was mayor of DC - Black applicants for DC police said they were failing more then whites - The facts that 4x as many blacks failed then whites was a reason to say it was racial prejudice - SC says that the numbers are not enough

Bowers v. Hardwick Supreme Court of the United States, 1986

- Whites opinion o Oral sex in his bedroom with another man o He wasn't charged cuz in his house o Statute violated laws so hardwick sued o Gerogia Statute was not sex specific. If its two people committing sodomy its illegal o Prohibited activity o No marriage family or procreation available to use o Argument could be used for family o Inside the home should be protected. o Stanley did protect conduct not acceptable outside of home but fully grounded in 1st amendment. § Not fully grounded in first amendment. Cuz other criminal activity is not protected just cuz you are in your house - Burger and Powell concur o Punishment seems rather harsh (up to 20 years) o 8th amendment concerns - Blackman brennan marshal and stevens dissent o right to be left alone encompasses this NOTES - powell initially voted with blackman then switched and then after retiring said he might have changed his mind - majority concerned with line drawing. Could punish close relatives for sexual actions - majority line drawing questions.

The Privilege Against Self-Incrimination

- a right against compulsory self-incrimination, and, excepting rare occasions when judges intervened to protect a witness against incriminating interrogatories, the right had to be claimed by the defendant. - has been defended as a protection of the right to privacy. It ensures that the government in investigating a person cannot force him or her to give up this privacy in the most coercive form of state action—the criminal process. - cornerstone of the accusatorial system of justice as applied in English-speaking countries, as opposed to the continental European "inquisitorial" system.

Reed v. Reed Supreme Court of the United States, 1971

- administrator of estate (gets some fee of the estate) given to male over female when both qualified. - men on average had more business experience at the time. - Save court and state money and time - child's estate only worth a thousand dollars. Burger gives opinion: - arbitrary preferences to males can not stand under the equal protection clause of 14th amendment - states are not denied the power to treat different people differently but classification must have a reasonable reason - intermediate level of scrutiny - some legitimacy to what idaho did but also arbitrary - something more then rational basis

The Equal Protection Clause of the Fourteenth Amendment

- adopted in response to problems of racial discrimination - women tend to use it for sex discrimination

Nonverbal Evidence and Non-Criminal Cases

- clearly applied to verbal testimony. Should the privilege be extended to include non-verbal evidence, such as blood tests, handwriting analysis, and fingerprinting?

Schmerber v. California Supreme Court of the United States, 1966

- guy got drunk and drove. got in a crash. police took a bal on his blood. - guy petitioned that the blood should not be used in court because it was taken without his permission - he argued he was denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. Brennan (white & clark) opinion: - We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. - it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it. - Since the results of the blood test were neither "testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds." Harlan with stewart concur Cheif jsutice (CJ) Warren dissents Black & Douglas Dissent: - To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat. - extraction of petitioner's blood for analysis so that the person who analyzed it could give evidence to convict him had both a "testimonial" and a "communicative nature." - T]he Fifth Amendment marks "a zone of privacy" Fortas also dissents NOTES - differnce between 4th and 5th is that 4th you can use warrent to interfere in life you cant with 5th - "non-testimonial" information. This not only applies to the blood- alcohol content and the fingerprints of an individual, but also applies to his handwriting samples and to the quality of his voice. - Birchfield v. North Dakota 2016 -- states that require those arrested for drunk driving to submit to a (BAC) test where refusal to do so is considered a crime. Citing Schmerber, the Court held that such implied-consent, warrantless searches were constitutional for a breath test, but not for a blood test which is more intrusive because it involves piercing the skin and leaves the government with a tissue sample from which information beyond the BAC can be obtained (e.g., DNA).

Katz v. United States Supreme Court of the United States, 1967

- guy made bids from a phone booth. FBI attached hearing device to booth to catch him Stewart delivers opinion: - 7-1 decision said that it was unconstitutional (Marshall sat out) -4th amendment protects people not places. - Overturn olmstead and say Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." - not enough for warrent so unlawful search and seizure Douglas and and Brennan concur Harlan concurring: - he says that you expect privacy in that phone booth for as long as you have it. - reasonable expectation: - first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." White concurs: - exception for no warrant in national security cases Black dissents: - 1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times" and thus reach a result that many people believe to be desirable. - eavsedropping is neither a search or seizure

The Right of Privacy

- rests on the premise that there are certain kinds of individual conduct over which government should have no control at all.

The "Eavesdropper" Cases

- so long as there had been no entry by the police or by their instruments into the defendant's "protected area," the defendant's rights were not violated by the overhearing of his conversations. - cant complain if someone looks in your house with blinds open or overhears you cuz you are so loud in your house. - did not make any difference whether some technical aid had helped the spy - the problem was that technology had advanced so much that event trying to stay private people could hear into and see into your house.

The Equal Rights Amendment

- two constitutional issues. First, the validity of the extension. (3 year etension after the 7 years and questions of whether they could actualy do that. Second is whether states could resend the ratification. (5 states rescinded their approval before the 7 years so could they do that or was it a one way street) - is the ERA's phrase, equality of rights is the same as equal protection of the laws? And if not, what are the differences? Well, it sounds kinda the same, but as we've seen, it can be fairly close and you don't know and we won't know or wouldn't know, at least until the court had an opportunity to try to interpret it, could interpret it the same way it could interpreted differently. - 5 states recinded their approval of ERA Idaho, Kentucky, Nebraska, South Dakota, and Tennessee - ERA would have made gender a suspect classification. - didnt pass nationally but some states did add similar language to their constiution. or could have been done judically

The Requirement search Without a Warrant

1. consent searches, a very limited class of routine searches, and certain searches conducted under circumstances of haste that rendered the obtaining of a search warrant impracticable. 2. a warrantless search of the suspect's person may be made prior to arrest, to the restricted extent necessary to prevent him from destroying evidence. A "frisk" of the body of a suspicious person stopped on the street for investigative questioning may also be made if there are reasonable grounds to believe that he is armed and dangerous 3. an officer who has an arrest warrant or probable cause to arrest an individual may make an entry without a search warrant into any premises where he reasonably believes that the person whom he seeks to arrests is located.

Which of the following is not a modern purpose for the privilege against self-incrimination -affords some protection from grand jury investigations -is a buffer for the First Amendment in times of national stress -protects Eighth Amendment rights -prevents a type of weakening of law enforcement -limits government meddling in our lives

Answer = protects Eighth Amendment rights - The privilege has little or nothing to do with the Eighth Amendment.

In Goldberg's opinion in Griswold, the Ninth Amendment was construed to mean - protections of privacy not enumerated in the Constitution are invalid - not all rights held by the people are listed in the first eight amendments - that it does not contain an independent source of rights - both 2 and 3 above - both 1 and 2 above

Answer= both 2 and 3 above - not all rights held by the people are listed in the first eight amendments - that it does not contain an independent source of rights - Part 2 gets at the basic notion of the purpose of the Ninth Amendment. Part 3 was specifically noted by Goldberg in his concurring opinion. This position was essentially adopted by a majority of justices in later cases and was the reason they settled on notions of liberty as the justification for the right of privacy.

Based on the Court's opinion in United States v. Virginia, is it likely that any parallel program for women might have passed constitutional requirements? - no because there would not be enough women who would enroll in the program - yes if the quality of the students and the faculty had been more comparable - no because of the developmental differences between men and women - yes if the parallel program relied more on the adversative method than VWIL did - no because no other program would have the history and prestige of VMI

Answer= no because no other program would have the history and prestige of VMI - Like some of the problems the Court faced in the race cases, even if Virginia built, equipped, and staffed, a mirror image of VMI, such a school wouldn't have VMI's reputation and standing, let alone the network of alumni. This is one of the intangibles that would never allow a parallel program to satisfy constitutional requirements in the eyes of the majority.

The exclusionary rule - prohibits illegally seized evidence from being admitted at trial -comes from the First Amendment -comes from the Fourteenth Amendment -prohibits strict quota systems in affirmative action programs -2 and 3 only

Answer= prohibits illegally seized evidence from being admitted at trial - though there are some exceptions to the rule

In examining racial classifications, a majority of the Court has held - strict scrutiny is the proper level of judicial review - rational relation is the proper level of judicial review - an intermediate level of review is required - strict scrutiny is required, but in a remedial context an intermediate level should be used - both 3 and 4 above

Answer= strict scrutiny is the proper level of judicial review - This was the Court's holding in Adarand regardless of whether the program was remedial.

In general, the power on the Court lies with - those justices advocating strict and literal interpretations - those justices holding absolute positions on civil rights issues - the justices at the ideological center of the Court - no group of justices can consistently influence the Court's decisions - the Chief Justice

Answer= the justices at the ideological center of the Court - The center may shift a bit left or right as new justices join the Court, but whoever holds the middle positions will largely determine which side forms a majority. We saw this previously with Stewart. More recently, O'Connor, Kennedy, and Souter tended to wield that power.

As used by the Court in Roe v. Wade, viability refers to - the point at which the State's interest in maternal health becomes compelling - the point at which the State's interest in potential life becomes compelling - the point at which the State's interest in discouraging sexual conduct becomes substantial - both 1 and 2 above - none of the above

Answer= the point at which the State's interest in potential life becomes compelling - This point is chosen because the fetus could survive outside the womb. This is approximately the end of the second trimester.

The Court would probably consider "voluntary" racial segregation - constitutional because it is the minority group which requests the separation - unconstitutional because the Constitution specifically prohibits it - constitutional because as with affirmative action programs it would be considered in a remedial context - unconstitutional because the intangibles involved in integration work to the benefit of all - none of the above

Answer= unconstitutional because the intangibles involved in integration work to the benefit of all

Gonzales v. Carhart Gonzales v. Planned Parenthood Federation of America Supreme Court of the United States, 2007

FACTS - 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. - Planned parenthood sued the Attorney General of the United States, arguing that the Act was unconstitutional under the right to an abortion protected by the substantive component of the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Roe v. Wade and subsequent cases. The District Court agreed and stopped the Act from going into effect. - U.S. Court of Appeals for the Ninth Circuit affirmed. Though the government claimed that the Act banned only a narrow, rare category of abortions, the Circuit Court ruled that the Act applied to the common abortion procedure known as "dilation and evacuation", as well as to the far less common "intact D&E," sometimes called "dilation and extraction". This made the ban expansive enough to qualify as an unconstitutional "undue burden" on the right to abortion, as defined in Planned Parenthood v. Casey. - Circuit Court ruled that the Act was unconstitutionally vague, because the inclusion of ambiguous statutory terms such as "partial-birth abortion" would prevent physicians from knowing which methods of abortion were covered. The Circuit Court determined that the proper course of action was to block enforcement of the entire Act. Kennedy opinion - The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. - under the most reasonable interpretation, the Act applies only to the intact D&E method (also known as "partial-birth abortion") and not to the more common D&E procedure. - Because the majority found that the Act applies only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. - Court also held that Congress, after finding intact D&E never to be medically necessary, could validly omit a health exception from the ban, even when "some part of the medical community" considers the procedure necessary. To require the exception whenever "medical uncertainty" exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical profession." - Court left open the possibility that an as-applied challenge could be brought against the Act if it were ever applied in a situation in which an intact D&E was necessary to preserve a woman's health. RBG Dissent - disputed the majority's claim that the opinion was consistent with the Casey and Stenberg precedents and said "The Court's hostility to the right Roe and Casey secured is not concealed."

Parents Involved in Community Schools v. Seattle School District Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Bd. of Ed Supreme Court of the United States 2007

FACTS: - JCPS implemented an enrollment plan to maintain substantial racial integration. Students were given a choice of schools, but not all schools could accommodate all applicants. In those cases, student enrollment was decided on the basis of several factors, including place of residence, school capacity, and random chance, as well as race. However, no school was allowed to have an enrollment of black students less than 15% or greater than 50% of its student population. - Meredith sued saying arguing that the plan's racial classifications violated the students' Fourteenth Amendment right to equal protection of the laws. - Under the Supreme Court's decisions in Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. - The District Court ruled that the plan was constitutional because the school had a compelling interest in maintaining racial diversity. The court held that though the plan paid "some attention to numbers," it did not constitute a rigid quota system. - rigid racial quotas are never narrowly tailored. The Sixth Circuit Court of Appeals upheld the District Court without issuing an opinion of its own, Question 1) Do Grutter v. Bollinger and Gratz v. Bollinger allow a school district to use race as the sole factor to assign high school students to public schools? 2) Can a student enrollment plan that requires each school's student population to be between 15% and 50% African-American meet the Fourteenth Amendment's requirement that racial classifications be narrowly tailored to a compelling government interest? - No and no - a 5-4 vote, the Court applied a "strict scrutiny" framework and found Jefferson County's enrollment plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. - Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he present cases are not governed by Grutter." - Jefferson County's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("black" and "other"). Jefferson County's goal of preventing racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.' - The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that Jefferson County's enrollment plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. Jefferson County also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that Jefferson County's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity.

Korematsu v. United States Supreme Court of the United States, 1944

FACTS: - U.S. government decided to require Japanese-Americans to move into relocation camps as a matter of national security after pearl harbor - President Franklin Roosevelt signed Executive Order 9066 in February 1942,. - A Japanese-American man Fred Korematsu, chose to stay at his residence rather than obey the order to relocate. - Korematsu was arrested and convicted of violating the order. - He responded by arguing that Executive Order 9066 violated the Fifth Amendment. - The Ninth Circuit affirmed Korematsu's conviction. Blacks opinion: - the Court ruled that the evacuation order violated by Korematsu was valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure from invasion. The Court relied heavily on a 1943 decision, Hirabayashi v. U.S., which addressed similar issues. Black argued that the validation of the military's decision by Congress merited even more deference. Frankfurter concurred - the "martial necessity arising from the danger of espionage and sabotage" warranted the military's evacuation order. Jackson dissented, - arguing that the exclusion order legitimized racism that violated the Equal Protection Clause of the Fourteenth Amendment

City of Los Angeles Department of Water and Power v. Manhart Supreme Court of the United State, 1978

FACTS: - since women live longer then men, the department made them pay more out of their paycheck for retirement because they would last longer. - violation of title 7 because it was totally ran by the government. Brennan sits out Stevens (Stewart white and powell & in pertinent part by Marshall) opinion: - it is true as a class women live longer. - question is whether the existence or nonexistence of discrimination is to be determined by comparison of class characteristics or individual characteristics - Title 7 (unlawful to discriminate against any individual. With respect to his compensation terms, conditions, privileges of employment because of such individuals, race, color, religion, sex, or national origin) NOT equal protection clause - in the race cases isn't enough to say that this statute and race cases mostly involved Equal Protection Clause. Not really because the Fourteenth Amendment uses the term person, which was critically, critically important in the abortion cases, - a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply - no assurance any given women will live longer then any given man - would an equal system disadvantage men? And the answer is, that's a class, yes, even though individually, maybe not if they die young, the basic policy of statute requires that we focus on fairness to the individual rather than fairness to classes - reads title 7 as stricter then the equal protection clause when it comes to gender. - it's probably consistent with this position and Bacchae where he did not reach the constitutional question. This focus on the individuals also consistent with what we saw in Washington versus Davis, but may allow for discrimination against groups that may not be provable at the individual level. - might be subsidizing people who are health as unhealthy if you do it as a group rather then the individual . - attempts to distinguish the court's decisions and General Electric, General Electric versus Gilbert and Gedaldic v ACLO. He also says both cases involved the exclusion of pregnancy benefits from insurance plans. - Gedaldic was brought under the equal protection clause and Gilbert under title seven - there may be some difference here between how at least Stevens and at least at this time treating statutory versus constitutional requirements. He says in Gilbert, the court held at the exclusion of pregnancy from an employer's disability plan did not violate Title seven because the distinction was tween pregnant women and non-pregnant persons - it turned out that women as a class actually receive more benefits under the program than men. But again, isn't that contrary to Steven's current concern about the individual versus the class. - the absence of a discriminatory effect does not matter because the program is discriminatory on its face. - do you go back and repay the women for the excess they put in ? the court voted that down Blackman concurred in part and in the judgement) concurring - this decision weakens Gilbert and Gedaldic. Maybe not Gedaldic because on pregnant women get the benefit to - mentioned that life expectancy is non-stigmatizing and rational. He would maybe allow a little bit more. Marshal basically agrees with stevens but he would allow the refunds. Burger and Rehnquist dissent except for the part about not allowing that refund: NOTES - Manheart deals with an interpretation of title 7 of the civil rights act of 64. which forbids employers and unions from discriminating and employment on the basis of race, religion, national origin, and sex. - interpretations of Title Seven and the 14th Amendment may differ. we had the same discussion back in Bacchae with respect to the equal protection clause and title six. there we said, or at least five justices held that the restrictions of the two are co-extensive, meaning that they were the same. As far as Powell and the four justices on the liberal side. - bonafide occupational qualifications, BFOQs, cuz these allow for some gender discrimination in employment even so, the fact that most women would not qualify for a position does not mean that all women can be automatically excluded, which is pretty much what we saw in VMI. - the EEOC, Equal Employment Opportunity Commission, will look closely at qualifications that exclude a disproportionate number of women usually. - In terms of race, the EEOC has said that race can never be a BFOQ, but there are exceptions for actors and models as well - some distinctions based on pregnancy have been struck down. The crucial question may be if both sexes benefit or if women lose out for things like employment or seniority. - express gender distinctions may require more justification and gender related ones. So it's kind of an indirect sort of thing - preferences for veterans which tend to benefit men much more than women simply because more men are veterans and women. Such preferences are not saying that women cannot do the job - Arizona governing committee v Norris, the court said that gender distinctions and pension plans are no more constitutional at the payout stage rather than they are at the pay in stage. - was happening in man heart, it was at the pay in stage that they would, that men and women will get equal amount when they retire? Well, the other approach would be to say, okay, you paid an equally. But if we know that women live to 11% longer than men, they would get 11% less on a monthly or yearly basis than men so that it would supposedly even out. court said no. -

Planned Parenthood v. Casey Supreme Court of the United States, 1992

FACTS: - The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. - A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. OUTCOME: - In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions (minus the husband one). For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. - The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. O'C Kennedy & Souter wrote opinion - upheld roe (with stevens and Blackmun) - abortion similar to contraception in terms of protection. - Adhere to the essence of Roe's original decision - state has an interest even in that early time. so they can regulate 24 hours or information - reject trimester framework - undue burden = a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. three principles established in Casey: (1) before "viability . . . the woman has a right to choose to terminate her pregnancy"; (2) "a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before viability" is unconstitutional; and (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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (BAMN) Supreme Court of the United States 2014

Facts - In November 2006 election, a majority of Michigan voters supported a proposition to amend the state constitution to prohibit "all sex-and race-based preferences in public education, public employment, and public contracting." The day after the proposition passed, a collection of interest groups and individuals formed the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (Coalition). The Coalition sued the governor and the regents and boards of trustees of three state universities in district court by arguing that the proposition as it related to public education violated the Equal Protection Clause. About a month later, the Michigan Attorney General and Eric Russell, an applicant to the University of Michigan Law School, filed separate motions to intervene as defendants, which were granted. Both sides moved for summary judgment and the plaintiffs moved to have Russell removed from the case as he did not represent interests separate from those of the Michigan Attorney General. The district court granted summary judgment in favor of the defendants and granted the motion to remove Russell as an intervenor. The U.S. Court of Appeals for the Sixth Circuit affirmed in part and reversed in part by holding the proposed amendment unconstitutional and upholding the removal of Russell as a party to the litigation. Question - Does an amendment to a state's constitution to prohibit race-and sex-based discrimination and preferential treatment in public university admission decisions violate the Equal Protection Clause of the Fourteenth Amendment? Conclusion No. Justice Anthony M. Kennedy delivered the opinion for the three-justice plurality. The plurality held that this case was not about the constitutionality of race-conscious admissions, but rather about whether the voters of a state can choose to prohibit the use of race preferences in the decisions of governmental bodies, specifically with respect to school admissions. The plurality held that the attempt to define and protect interests based on race ran the risk of allowing the government to classify people based on race and therefore perpetuate the same racism such policies were meant to alleviate. While voters may certainly determine that some race-based preferences should be adopted, it is not the role of the courts to disempower the voters from making such a choice. If certain issues were decided to be too sensitive to be addressed by voters, it would be denying the voters their right to debate and act through the lawful democratic process. Chief Justice John G. Roberts, Jr. wrote a concurring opinion in which he argued that the use of racial preferences might reinforce racial awareness and therefore do more harm than good. In his opinion concurring in the judgment, Justice Antonin Scalia wrote that a state law that provided equal protection by not allowing the use of racial preferences at least facially did not violate the Constitution. Justice Scalia argued that judges should not be in the position of dividing the country into racial blocs and determining what policies are in each one's interests. Additionally, Justice Scalia saw no reason to allow local subordinate authorities to have more power over the use of race-based preferences than the voters of the state. Since the amendment in question prohibits the use of racial preferences, it patently provides equal protection under the law rather than denying it. Justice Clarence Thomas joined in the opinion concurring in the judgment. Justice Stephen G. Breyer wrote a separate opinion concurring in the judgment in which he argued that, while the Constitution allows local, state, and national communities to implement narrowly tailored, race-conscious policies, it is the voters and not the courts who should determine the merits of such strategies. The amendment better allowed for this process to take place because it took the power to decide whether to implement race-conscious policies away from unelected actors and placed it firmly in the hands of the voters. Justice Sonia Sotomayor wrote a dissenting opinion in which she argued that the democratic process does not in and of itself provide sufficient protection against the oppression of minority groups, which is why the Equal Protection Clause of the Fourteenth Amendment exists. Although equal protection is typically construed as referring to the treatment of different groups under existing laws, it also protects against the implementation of new laws that would oppress certain groups on the basis of race, among other things. Because the amendment in question creates one admission process for those who do think race should be considered and a separate one for those who do not, it places special burdens on minority groups in a manner that violates the Equal Protection Clause. Judicial precedent holds that governmental action violates the Equal Protection Clause when it has a racial focus that places a greater burden on minority. The amendment in question both has a racial focus and places a greater burden on the minority; therefore, it violates the Equal Protection Clause, and the voters of a state cannot democratically ratify an amendment that violates the Constitution. Justice Sotomayor argued that the plurality and concurring opinions allow a majority of voters in Michigan to prevent the elected university boards from implementing constitutional race-sensitive admission policies, and therefore they ignore a key purpose of the Equal Protection Clause. Justice Ruth Bader Ginsburg joined in the dissenting opinion. Justice Elena Kagan did not participate in the discussion or decision of this case.

Fisher v. University of Texas at Austin Supreme Court of the United States 2013

Facts In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university's undergraduate population and the state's population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission. Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher's application. Fisher filed suit against the university and other related defendants, claiming that the University of Texas' use of race as a consideration in admission decisions was in violation of the equal protection clause of the Fourteenth Amendment. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision. Fisher appealed the appellate court's decision. Question Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions? Conclusion Yes, but only under a standard of strict judicial scrutiny. Justice Anthony M. Kennedy delivered the opinion for the 7-1 majority. The Supreme Court held that, in affirming the lower court's decision, the Court of Appeals did not hold the University's admission policies to a standard of strict scrutiny, so the judgment was incorrect. Based on previous judicial precedent in cases dealing with minority admissions, the Court has held that such cases are reviewable under the Fourteenth Amendment and that they must be reviewed under a standard of strict scrutiny to determine whether the policies are "precisely tailored to serve a compelling governmental interest." If the policy does not meet this standard, race may not be considered in the admissions process. The Court held that it was the duty of the reviewing court to "verify" that the University policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits. The Supreme Court held that the lower courts did not conduct a sufficient strict scrutiny examination in this case. Justice Antonin Scalia wrote a concurring opinion in which he argued that the Constitution prohibits governmental discrimination on the basis of race. However, because this case did not ask the Court to overrule precedent that allowed universities to consider diversity a compelling interest that justified race-based admission policies, he joined the majority's opinion in full. In his separate concurrence, Justice Clarence Thomas wrote that he joined the majority's opinion that the lower courts did not sufficiently apply strict scrutiny, but he also argued that the Equal Protection Clause of the Fourteenth Amendment prohibits a state's use of race as a factor in higher education admissions. He further argued that there is nothing "necessary" about the benefits that flow from racial diversity in higher education, so there in no compelling state interest to promote it. Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she argued that the University's admission policy treats race as merely one factor in the overall decision to admit a student, which is permissible under previous judicial precedent. She also argued that the Equal Protection Clause does not require that state universities be blind to the history of overt discrimination and that it is preferable that they explicitly include race as a factor in admission decisions rather than attempt to obfuscate its role. Justice Elena Kagan did not participate in the discussion or decision of the case.

Distinctions Based on Sex-Specific Characteristics

Godel Digg vs. a. Yellow from 1974. - The court was asked to determine whether the exclusion of normal pregnancy from California State Disability Insurance Program was constitutional. In an opinion by Stewart, the court held that there was no gender discrimination. The statue differentiated between get ready for this. Pregnant women and unpregnant persons. - The burdens also went to both sexes, pregnant women, employees and their husbands. So again, that's how Stewart was looking at it saying, well, who benefits, who burdens and seem to be that on both sides of that, that the benefits and burdens were on both sexes, even though you initially think pregnancy must be women that are burden. Brennan dissents - the program compensation is paid for virtually all disabling conditions without regard to cost or voluntariness, uniqueness, predictability, or normalcy of the disability. - The question is not whether the insurance company has consistent necessarily and its overall plan NOTES could a state similarly eliminate sickle cell anemia from coverage? - doubtful because of race (suspect classification) - disease is not voluntary - smaller number (monetary concern) Stewart's justification consistent with the decision of Michael M where the distinction was allowed between because only women can become pregnant? Again, yes. Because most women can't get pregnant not all do and certainly not all at the same time.

United States v. Virginia Supreme Court of the United States 1996

RBG (stevens, OC, kennedy, souter, and brair) opinion - Virginia military institute. Only public university in the state out of 115 that is male only - said "neither the goal of producing citizen soldiers nor the adversity of method is inherently unsuitable to women" - most women would not like it - would it be inappropriate for all women? - VMI supported by the state. what makes it special is its mission. only 15% go on to active service. court said its closer to 40% - The adversity of method Ginsburg goes on to say features, physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior in indoctrination in desirable values, women have no opportunity, at least elsewhere in the state, to gain the benefits of this type of educational system - Said that in two years 350 women applied. with recruiting they could get to 10% women. that would be enough to provide female with a positive educ experience. (sounds like critical mass in gruder.) - what if they don't get to 10%? is that a quota. (court tried to stay away from quota bc it has a negative connotation.) - VMI had to admit women. - 10 years later they were at 5.7% - WOmen had to meet the same standards as males. - intermediate level of scrutiny - the district court found that a single gender school can have substantial benefits and provide diversity in educational offerings to the state. (so intermediate level of scrutiny ) - Fourth Circuit held that neither the goal of producing citizen soldiers nor the implementing methodology is inherently unsuitable women. But the Fourth Circuit accepted the district court's finding that physical trading, the absence of privacy and the adversity of approach would be materially affected by coeducation.- Fourth Circuit Court of Appeals offered Virginia three choices. They can admit women, or two, they could establish a parallel program. Or three, they could abandoned state support. - tried to get private funding. couldn't find it so tried to create a similar program for women. - problem was that the entrance into the school was lower and the teachers were lesser. Fourth circuit said it passed equal protection requirements and approved the plan. - RBG uses exceedingly persuasive justice to boost this up to strict scrutiny. - for some purposes. implies that for some purposes its strict scrutiny and fro others it isn't. so she leaves the door open again. - substantially related. so back to intermediate level of scrutiny - there are differences between men and women - you can use sex for remedial purposes. but in adarand a majority said that you cannot do so with race OC and Kennedy were in both majorities. - violates consistency of adarand - treat all sex cases differently. - back to VMI failed. - do you constantly need to keep updating with the times and leave yourself open to look unstable as a university? - look at modern reason to do what you are doing. - state only established one single sex public uni and cant have that cuz its all male. even tho there are other private ones. the court doesn't care about that. - just because a vast majority of women would not be interested or qualify does that mean you can deny all women?*** - cant deny all women because most wouldn't make it. not unsuitable to women. - adjustments are manageable. - the womens is not equal to VMI because it wouldn't have quality, prestige, schooling etc. - not equal - they have to admit women or go completely private Rehnquist concurs in judgement: - says that there is uncertainty to the appropriate test. - only benefits one sex cuz the school - says their method isn't more likely to produce beneficial character tratis then other methods. - said there could be separate institutions but the girls version was inferior and not equal. Scalia dissent - mad bc rehnquist ignores all private all womens colleges but VMI gets state funds and those private ones don't. - says court rejects that the all-male aspect is essential to VMI - says he doesnt know what test to use. - says intermediate scrutiny is the appropriate level - wants to defer to political branches rather then legislate from the bench - said that there wouldn't be enough women to make the parallel program work - says the court has no response to the clear conclusion reached by the application of the intermediate scrutiny, rather relies on contentions that are irrelevant or erroneous, - First. The unacknowledged adoption of what amounts to strict scrutiny is without antecedent in our sex discrimination cases and discredits the court's decision. but this is really what they did in reed. - Second, the court suggests Virginia Clean purpose and educational diversity is not genuine. But proving diversity was Virginia's objective is quite different for improving the anti-feminism was not. - Third, hat the court finds fault in Virginia is failure to offer adversity of education to women. it dismisses the courts findings on gender-based developmental differences - goes on to say there should be no argument in how much VMI would have to change to accept women. - VWIL said that there was a basis for the difference between the programs. - single gender is beneficial for education. - there are 3 private all girl and only 1 boys and then VMI NOTES - immediate affect was limited. it probably affects some single se private colleges if them or their students get govenment aid - Title Nine actually, to some extent too, that they had exempted schools that are single-sex from their inception. So private single-sex schools could continue to be and wouldn't violate gender discrimination laws that are in place. (VMI public not private) - the court has held that support to private schools at practice race discrimination is unconstitutional.Scalia points out that the issue becomes difficult. Agenda is also considered suspect. Would, for example, states violate the Constitution by giving funds to single-sex schools

Olmstead v. United States Supreme Court of the United States, 1928

Taft Opinion - wire taps of criminals durring prohibition (without trespassing on their land) - Olmstead argues taht wuretapping their private phones violated the 4th amendment - Taft argues that since it isnt a material thing it does not violate the 4th amendment - because the wires go outside his house they cant argue the government trespassed or violated the law Brandeis dissenting: - he says that technology is always changing so to keep the 4th amendment as the same as in 1787 is not right because one day they can recreate those documents without even leaving the house - says there is no difference between a sealed letter and a call - tapping one man's phone means you are actually tapping everyone he talks to - immaterial where the physical connection of the wires is leading and that it was to aid law enforcement - Butler stone and holmes also dissent

Mississippi University for Women v. Hogan Supreme Court of the United State, 1982

Unconstiutional for states women's university to limit enrollment of its nursing program for women. OC (Brennan, white, marshall, and stevens) opinion - 1884 MS legislature made MU for women. - MUW created nursing program - Joe HOgan was a RN and applied but was denied cuz of his sex - allowed to audit classes. because it could be to midigate damages - that was a mistake because they were arguing they needed a single sex atmosphere for education. then you undercut that by letting a man in the classes. - bc the challenge policy expressly discriminates on gender it is subject to scrutiny under the equal protection clause of 14th amendment. - MUW must show an exceedingly persuasive justification. (sounds like strict scrutiny) - goes on to say: met only by showing at least the classification serves important gov interests and the discriminatory means employed are substantially related to achieve the interest. (sounds like intermediate level of scrutiny) - policy is unconstiutiona; burger blackmun and powel with rehnquist disent NOTES: - state's primary justification was to compensate for discrimination against women in the educational field. - says that this policy continues the stereotype that nursing is an womens field - 99% of nursing degrees were women at that time. - semi-suspect classification applied to illegitimate. - ginsburg involved in 6 see cases and won 5 - WHite was on her side in all 6 cases. said sex should be suspect - jeb v alabama: that its still open to make it suspect. - no majority in craig for intermediate - all cases that have approved express gender distinction have been cases where the man was complaining.

suspect classification

category or class, such as race, that triggers the highest standard of scrutiny from the Supreme Court

Adarand Constructors v. Pena Supreme Court of the United States, 1995

check website

Strict Scrutiny

compelling government and necessary while being narrowly tailored

rational relation

had to have a legitimate gov. purpose and means chosen to achieve that purpose have to be rationally related

Intermediate Scrutiny

important governmetn interests and substantially related.