3/25 con law

Plessy v. Ferguson (1896)

Upheld "separate but equal" 7-1 under rational basis. Louisiana streetcar law doesn't violate 14th Amendment if facilities are equal. Harlan's dissent: "Our Constitution is color-blind." Part of early NAACP advocacy strategy to challenge racist statutes.

Harlan's Plessy dissent — key phrase

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Meant the Equal Protection Clause should not favor one race over another; separate but equal does exactly that.

Economic erosion of separate but equal (Lecture)

Maintaining truly separate AND equal facilities required double the state resources. This practical/logistical/economic impossibility gradually undermined the doctrine — in practice, "separate" never meant "equal."

Brown v. Board of Education I (1954)

Unanimous 9-0 (Warren). "Separate educational facilities are inherently unequal." Overturned Plessy in education. Race = suspect classification → automatic strict scrutiny. NAACP strategy: argue segregation per se is unconstitutional, not just that facilities are unequal.

Brown v. Board — NAACP strategy (Lecture)

Led by Thurgood Marshall. Argued segregation per se (as it exists) is unconstitutional — not just that facilities were unequal. Major risk: if they lost, separate but equal would become MORE entrenched. NAACP board made the policy decision to proceed. Expected 5-4 at best.

Brown v. Board — Warren's unanimity

Earl Warren rallied all justices to be unanimous. Motley: "If it were divided, the South would continue to fight. Because they had hope. This way, they had no hope." The legal team never expected 9-0.

Brown v. Board of Education II (1955)

Addressed remedies. Desegregation must proceed "with all deliberate speed." Local school boards implement, federal district courts oversee. Desegregation orders are STILL being enforced today (Lecture: St. Martin Parish, LA example).

Bolling v. Sharpe (1954)

Decided same day as Brown I. D.C. is not a state → 14th Amendment doesn't apply. Court read an equal protection requirement INTO the 5th Amendment Due Process Clause. Rule: sue federal government for discrimination → use 5th Amendment + Bolling v. Sharpe.

Sweatt v. Painter (1950)

Texas's hastily created Black law school not "substantially equal" to UT Law. Considered intangible factors: reputation, alumni, prestige. Unanimous. Showed economic/logistical erosion of separate but equal — new school couldn't match UT's "ethereal metrics."

Korematsu v. United States (1944)

Upheld Japanese internment BUT established strict scrutiny for racial classifications — "immediately suspect" and "most rigid scrutiny." Later overruled by Trump v. Hawaii (2018).

Swann v. Charlotte-Mecklenburg (1971)

Affirmed broad district court powers to remedy de jure segregation: racial balance ratios, gerrymandering zones, busing. "The nature of the violation determines the scope of the remedy." Unanimous (Burger).

De jure vs. de facto segregation

De jure = segregation by law (courts can remedy). De facto = segregation from private choices/residential patterns (harder to challenge). This distinction matters for determining judicial authority to impose remedies.

Civil War Amendments enforcement clauses (Lecture)

13th Amdt § 2, 14th Amdt § 5, 15th Amdt § 2 — all say Congress can enforce those amendments by legislation. This is the constitutional basis for civil rights statutes. The 14th uses § 5 because other sections deal with debt, representation, insurrection.

State action requirement

The 14th Amendment's Equal Protection Clause only prohibits government discrimination, not private actors. Established in Civil Rights Cases (1883). This is a PRELIMINARY/PROCEDURAL question before reaching the merits (Lecture: similar to justiciability).

Shelley v. Kraemer (1948)

Judicial enforcement of private racially restrictive housing covenants = state action. Using the courts to enforce the covenant = deploying "the full coercive power of government" to deny rights based on race. Unanimous (Vinson).

Burton v. Wilmington Parking Authority (1961)

Private restaurant in publicly owned parking garage refused to serve a Black man. State action: financial integration made the parking authority an "alter ego" of the state — "joint participant" in discrimination due to public building, public funds, mutual benefits. 6-3.

Moose Lodge No. 107 v. Irvis (1972)

Private club with state liquor license refused Black guest. NO state action — a liquor license alone doesn't create "symbiotic relationship." If ANY government benefit = state action, then ALL private entities would be state actors. 6-3 (Rehnquist). Partially eroded Shelley's broad rationale.

Four elements of state action (Lecture)

Private actor subject to constitutional liability if one or more present: (1) Traditional public function; (2) State enforcement of private contracts; (3) Joint action/entanglement between state and private actor; (4) State encouragement of private discrimination.

Three tiers of equal protection scrutiny

Strict scrutiny (race/national origin): narrowly tailored to compelling interest. Intermediate scrutiny (gender): substantially related to important objective. Rational basis (everything else): rationally related to legitimate interest.

Carolene Products Footnote Four (1938)

Suggested "more searching judicial inquiry" for laws targeting "discrete and insular minorities" facing prejudice that curtails normal political processes. Origin of heightened scrutiny concept.

Factors for suspect class status

(1) History of discrimination; (2) immutable characteristics; (3) political powerlessness; (4) characteristic bears no relation to ability to contribute to society.

Rational basis review standard

Government wins if the classification bears a "rational relation to some legitimate end." Challenger bears the burden. Most classifications upheld. BUT has bite when animus is present (Cleburne).

Cleburne v. Cleburne Living Center (1985)

Intellectually disabled NOT a quasi-suspect class, BUT zoning denial failed rational basis — motivated by "irrational prejudice." Key: "A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Loving v. Virginia (1967)

Struck down antimiscegenation law. Racial classifications require "the most rigid scrutiny." Marriage is a fundamental right. Shows how substantive due process and equal protection can blend in the same case (Lecture).

Washington v. Davis (1976)

Facially neutral police exam with disproportionate racial impact. Disproportionate impact ALONE insufficient — must prove discriminatory intent/purpose to trigger strict scrutiny. 7-2.

Regents of UC v. Bakke (1978)

Powell: strict scrutiny for ALL racial classifications. Quotas unconstitutional. BUT diversity is compelling; race can be a "plus" in holistic admissions. No majority opinion — Powell's became the framework.

Grutter v. Bollinger (2003)

Upheld UM Law holistic admissions, race as one factor. Diversity = compelling interest. 5-4 (O'Connor). "25 years from now, racial preferences will no longer be necessary." Effectively overruled by SFFA v. Harvard (2023).

Gratz v. Bollinger (2003)

Struck down UM undergraduate automatic 20 points for race — not individualized, functioned like a quota. 6-3.

Fisher v. University of Texas (2016)

Upheld UT holistic review including race. Strict scrutiny applies; deference on compelling interest; NO deference on narrow tailoring. University proved race-neutral alternatives failed. 4-3 (Kennedy).

Adarand v. Pena (1995)

Strict scrutiny applies to ALL government racial classifications — federal, state, and local alike. 5-4.

Reed v. Reed (1971)

First law struck down for sex discrimination. Idaho law preferring males as estate administrators = arbitrary. Used rational basis (not strict scrutiny despite Ginsburg/ACLU asking for it). Unanimous.

Craig v. Boren (1976)

ESTABLISHED INTERMEDIATE SCRUTINY for sex classifications. Gender classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives." Oklahoma beer law struck down. 7-2 (Brennan). Professor traces this standard through to Skrmetti.

Intermediate scrutiny standard

Classifications by gender must serve IMPORTANT governmental objectives and be SUBSTANTIALLY RELATED to the achievement of those objectives. Government bears the burden. Also called "heightened scrutiny."

United States v. Virginia (VMI) (1996)

Ginsburg: "exceedingly persuasive justification" required for gender classifications. VMI's male-only policy unconstitutional; VWIL not substantially equal. 7-1.

San Antonio v. Rodriguez (1973)

Poor are NOT a suspect class — "large, diverse, and amorphous." Education is NOT a fundamental right. 5-4.

Romer v. Evans (1996)

Colorado Amendment 2 struck down under rational basis — "sheer breadth" was "inexplicable by anything but animus." 6-3 (Kennedy).

Geduldig v. Aiello (1974)

California insurance excluding pregnancy disabilities ≠ sex discrimination. "Not every legislative classification concerning pregnancy is a sex-based classification." Key precedent applied in Skrmetti to transgender status.

Bostock v. Clayton County (2020)

Title VII: firing for being gay/transgender = discrimination "because of sex." Gorsuch (6-3): plain textual reading. Causation: sex need only be ONE but-for cause — even 1% is enough. Dissents (Alito, Kavanaugh): Congress in 1964 wouldn't have contemplated sexual orientation/gender identity.

Bostock — key distinction for Skrmetti (Lecture)

Title VII has a DELINEATED LISTING of prohibited characteristics. The Equal Protection Clause does NOT. So the "interpretive calculus and judicial decision-making space may be different." The Court in Skrmetti declines to extend Bostock's Title VII reasoning to equal protection.

Title VII constitutional basis (Lecture)

Commerce Clause for private employers; 14th Amdt § 5 for state employers. Codified at 42 USC § 2000e. Prohibits discrimination based on race, color, religion, sex, national origin.

Title IX constitutional basis (Lecture)

Spending Power (Article I, § 8, cl. 1). Attaches to institutions receiving federal funds. Prevents sex discrimination in education. Constitutional basis separate from 14th Amendment.

United States v. Skrmetti (2025) — holding

Tennessee's SB1 banning puberty blockers/hormones for transgender minors is NOT subject to heightened scrutiny. Classifies by age and medical use, not sex or transgender status. Survives rational basis review. 6-3 (Roberts).

Skrmetti — why no sex classification

SB1 prohibits certain treatments for ALL minors regardless of sex. "Medical treatment" = drug + diagnosis. Mere reference to sex in medical context ≠ sex classification. No minor of any sex can get hormones for gender dysphoria; any minor can get them for other conditions.

Skrmetti — Geduldig analogy

Just as pregnancy classifications don't automatically = sex classifications, excluding gender dysphoria diagnoses doesn't classify on transgender status. "Lack of identity" between transgender status and excluded diagnoses.

Skrmetti — Bostock distinguished

Bostock's but-for causation (Title VII) doesn't apply because changing a minor's sex under SB1 doesn't change the outcome — the diagnosis, not sex, is the but-for cause. Court declines to extend Bostock to equal protection.

Skrmetti — rational basis satisfied

Tennessee's findings: risks (sterility, disease); experimental; minors lack maturity; regret; less invasive alternatives. States have "wide discretion" in "medical and scientific uncertainty." Cited Cass Review.

Skrmetti — Thomas concurrence

(1) Bostock shouldn't apply (different text); (2) Expert consensus doesn't override democracy; (3) No medical consensus; (4) WPATH guidelines based on weak evidence + political influence; (5) Children can't meaningfully consent; (6) Detransitioners illustrate risks.

Skrmetti — Barrett concurrence

Transgender NOT suspect class: not immutable (detransition), not discrete (diverse/amorphous). History of discrimination requires DE JURE discrimination — private prejudice isn't enough. Evidence of de jure discrimination against transgender people "as a class" is "sparse."

Skrmetti — Alito concurrence

Assumes SB1 classifies on transgender status but holds it's not suspect/quasi-suspect. "Sex" = biological sex. Classifies by treatment purpose, not sex. Bostock methodology shouldn't apply constitutionally.

Skrmetti — Sotomayor dissent

SB1 plainly classifies by sex: sex determines who gets treatment. Religion analogy. Bostock confirms. Geduldig "egregiously wrong." Transgender = quasi-suspect class. Should at minimum remand for intermediate scrutiny. Categorical ban ignores individual assessment.

Skrmetti — Kagan dissent

Agrees intermediate scrutiny applies. Takes NO position on whether SB1 survives it. Would remand. "I would both start and stop at the question of what test SB1 must satisfy."

Cass Review (2024)

England's NHS independent review. Evidence on puberty blockers/hormones for transgender minors is "remarkably weak" with "no good evidence on long-term outcomes." Cited in Skrmetti majority + Thomas concurrence.

Strict scrutiny — virtually "fatal in fact"

So demanding that classifications almost never survive. Post-Brown: if race is the motivating factor → presumption against constitutionality, against the state. Government must prove compelling interest + narrow tailoring (least restrictive means).

Parents Involved v. Seattle (2007)

Struck down voluntary race-conscious student assignment plans with racial-balancing characteristics. 5-4.

Green v. New Kent County (1968)

"Freedom of choice" desegregation plans that don't desegregate are unconstitutional. School boards have an "affirmative duty" to dismantle dual systems "root and branch."

Cooper v. Aaron (1958)

Violence or threats will not slow desegregation. Federal court orders must be obeyed. Unanimous.

"Exceedingly persuasive justification"

VMI (1996) standard for defending gender-based government action. Heightened form of intermediate scrutiny (Ginsburg).

Overinclusive vs. underinclusive classifications

Overinclusive: covers too many (includes non-problems). Underinclusive: misses people who ARE the problem. Poor fit between classification and justification may indicate pretextual motive.

Missouri ex rel. Gaines v. Canada (1938)

State can't send Black students out of state for law school — must provide equal in-state facilities. 7-2. Early challenge to separate but equal.

5th vs. 14th Amendment equal protection (Lecture)

14th Amendment Equal Protection Clause applies to STATES. No express Equal Protection Clause against the federal government in the 5th Amendment — but Bolling v. Sharpe (1954) reads an equal protection requirement into the 5th Amendment's Due Process Clause.