POS 4606 Unit 4

What is the first of three things that Section 1 of the Fourteenth Amendment prohibits states from doing?

Make or enforce any law which shall abridge the privileges or immunities of citizens

What is the second thing that Section 1 of the 14th amendment prohibits states from doing?

State should not deprive any person of life, liberty, or property without due process

What is the third thing that Section 1 of the 14th amendments prohibits states from doing?

Cannot deny to any person within its jurisdiction the equal protection of the laws

What entity does Section 5 authorize to enforce the provisions of the 14th amendment?

Congress

In *Baron v. Baltimore* (1833)*,* what did the Supreme Court say about the Bill of Rights? 

The bill of rights restricted only the national government and not the states

After the Fourteenth Amendment was ratified, how long did lawyers and judges debate the extent to which that amendment’s due process clause “incorporated” the Bill of Rights and made those rights applicable to the states?

The century following its ratification

What is the first thing the 1st amendment prohibits congress from doing?

No law respecting an establishment of religion

What is the second thing the 1st amendment prohibits congress from doing?

Should not prohibit free exercise of religion

What is the third thing the 1st amendment prohibits congress from doing?

Shall not abridge the freedom of speech

What is the fourth thing the 1st amendment prohibits congress from doing?

Shall not abridge the freedom of press

What is the fifth thing the 1st amendment prohibits congress from doing?

Shall not impede on right of the people to peaceably assemble

What is the sixth thing the 1st amendment prohibits congress from doing?

Shall make no law prohibiting the right to petition the Government for a redress of grievances

What was the Supreme Court’s *Lemon* test designed to help judges identify?

Whether or not a government practice violates the Establishment Clause

Generally, describe how the Supreme Court’s approach to **religious aid cases** changed from about 1985 to 2002. 

Initially the Court believed that the government must be neutral between religious and non-religious institutions that provide education or other social services

From the 1970s and the 1980s the Court shifted to the belief that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine

Recently have gone back to the first idea

In the next category of establishment clause cases discussed in the article (government-sponsored prayer), what did the Supreme Court hold unconstitutional in *Engle v. Vitale* and *Abington School District v. Schempp*? 

For public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. 

How did the Supreme Court extend *Engle* and *Schempp* in *Lee v. Weisman*? 

Extended the prohibition to prayers at graduation ceremonies

What does the Supreme Court consider in assessing whether government sponsored prayer involving adults violates the Establishment Clause? 

Has generally allowed government- sponsored prayer

Upheld legislative prayer because it is steeped in history

What was similar about public reaction to the Warren Court’s rulings in *Engle v. Vitale* and *Brown v. Board of Education*? 

Congressional and presidential responses to these rulings tended to legitimize the opposition to the Court’s decision

What rulings of the Warren Court did the Supreme reaffirm in *Wallace v. Jaffree* (1985)?

Earlier rulings of *Engel v. Vitale* and *Arbungton School District v. Schempp*

Held that states may not require silent prayer, though meditation may be allowed so long as states do not expressly try to promote religion in the classroom

In *Lee v. Weisman*, why did Justice Kennedy conclude the challenged prayer improperly coerced students to support or participate in religion?

Places public and peer pressure on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as overt compulsion

What legal question was presented in *Lee v. Weisman*? 

Does the inclusion of clergy who offer prayers at official public-school ceremonies violate the Establishment Clause of the First Amendment?

What legal reason did Justice Kennedy rely on to rule that the prayer in *Lee v. Weisman* violated the Establishment Clause?

The cornerstone of the establishment clause is that the government may not compose official prayers to recite as part of a religious program carried on by the government

What were the facts in *Kennedy v. Bremerton*?

HS football coach engages with several students during and after school games. 

The school drastic said that he must discontinue practice to protect the school from a lawsuit based on violation of the Establishment Clause

He refuses, rallied media

Sued the School district for violating his rights under the first amendment and Title VII of the Civi Rights Act of 1964.

District court held that because he was suspended solely due to constitutional liability, its actions were justified.

Appealed and the US Court of Appeals for the Ninth Circuit confirmed

What was the question presented in *Kennedy v. Bremerton*?

Is a public-school employee’s prayer during school sports activities protected speech, and if so, can the public school employer prohibit it to avoid violating the Establishment Clause?

Why did the Court uphold Coach Kennedy’s right to pray on the field after games? 

Kennedy did not offer his prayers while acting within the scope of his duties as a coach

What did Justice Gorsuch say about the *Lemon* test? 

Test is abandoned and replaced by a consideration of “historical practices and understandings”. Applying that test, there is no conflict between the constitutional commands of the First Amendment in this case.

13th amendment

Abolished slavery

14th amendment

Citizenship rights, due process, equal protection, apportionment, Civil War debt

15th amendment

Right to vote may not be denied on the account of race, color, or previous condition of servitude

Facts of *Slaughter-House* Cases

Louisiana created a monopoly that prevented retain butchers from working

Challenged the law under the 14th amendment’s privileges and immunities clause

What was the ruling in *Slaughterhouse*

Challenge was rejected because privileges and immunities clause did not apply

*Plessy v. Ferguson*

Louisiana law required Blacks to separate railcars

This created the pernicious doctrine of “separate but equal”

“Our Constitution is color- blind, and neither knows nor tolerates classes among citizens”

What general issue did the Supreme Court grapple with in *Engle v. Vitale*, *Lee v. Weisman*, and *Kennedy v. Bremerton*?

how much prayer the Constitution allows in public schools

What was the Supreme Court's *Lemon* test designed to help courts figure out?

whether the government was establishing religion

What wrinkle did *Kennedy v. Bremerton* introduce into the constitutional debate the has existed since the Supreme Court decided *Engle v. Vitale*?

how much the Constitution protects a teacher's free exercise of religion

How did the Supreme Court interpret the Fourteenth Amendment’s Privileges and Immunities clause in the *Slaughter-House Cases* to limit the reach of the Fourteenth Amendment? 

The Privileges or Immunities Clause required states to respect only the rights associated with federal citizenship, not state citizenship

What reason did the Supreme Court give in the Civil Rights Cases for striking down the Civil Rights Act of 1875? 

Congress has exceeded its authority under Section 5 of the 14th amendment, which gives it “the power to enforce, by appropriate legislation, the provisions” of the amendment

In his *McDonald* (Second Amendment) opinion, what case did Justice Thomas urge the Supreme Court to overturn? 

*Slaughter- House*

Why did Barnett and Bernick write their book (who do they seek to persuade)?

Second Amendment rights belong to individuals

No doubt whatsoever that the 14th Amendment’s privileges or Immunities clause was aimed at the protection of the individual right- in their case the individual rights of the freed blacks to keep and carry their own weapons

They were trying to persuade the courts

How did the Fourteenth Amendment alter the Constitution’s federalist structure regarding the protection of individual rights?

The belief that states were “on their own” when it came to protecting the rights of their citizens

How does Rehnquist describe the Supreme Court’s ruling in *Plessy v. Ferguson*?

If the facilities provided to each race were equal, segregation did not violate the Equal Protection Clause

How did the Supreme Court “chip away” at the ruling in *Plessy v. Ferguson* during the middle of the twentieth century?       

By finding that state-provided facilities were not, in fact, equal

Why did Frankfurter think it would have been “catastrophic” to overrule *Plessy* with a splintered ruling from the Court?

Because Congress had established schools segregated by race in DC

Why did Reconstruction come to a "bruising halt" when Republican Hayes became president instead of Democrat Tilden? 

Hayes had indicated a willingness to withdraw federal troops, fully aware that it would mean that ex- Confederates would seize power

How many consolidated cases did the Court decide in *Brown v. Board of Education*?

5 cases

What 5 cases did the Court decide in *Brown v. Board of Education*?

*Briggs v. Elliot*

*Gebbart v. Belton*

*Davis v. Prince Edward County*

*Brown v. Board of Education*

*Bolling v. Sharpe*

What did all these cases challenge?

Racial segregation in public schools

Why did Thurgood Marshall decide to challenge racial segregation in Clarendon County, South Carolina?

Segregation in the Deep South was deeply rooted in the region’s laws and customs

What did Thurgood Marshall expect to prove by the doll experiment that social psychologist Kenneth Clark conducted?

The stigma of inferiority that segregation inflicted on black children

When Professor Holt testified in the Topeka case, what effect did she say segregation had on all people?

There is legal and official sanction to a policy which inevitably is interpreted both by the white people and blacks as denoting the inferiority of African Americans

In oral argument before the Supreme Court, what factual point did Marshall emphasize over and over?

The glaring disparities in Clarendon County’s schools

Rarely, the Supreme Court decides not to issue an opinion the term that a case is argued. Instead, it reschedules the case for argument on a new issue. Why did Justice Frankfurter want *Brown* to be reargued the next term?

The believed that they need to overturn *Plessy* without dissent, but several justices were not ready to overturn the case

What two issues did the Court ask the *Brown* lawyers to brief and argue the next term?

Had the framers of the 14th amendment intended to outlaw school segregation

If not, did the Court have the power to do so?

Like Justice Kagan, Earl Warren did not have any judicial experience before he was appointed to the Court. What 3 Chiefs also lacked judicial experience when they were appointed?

John Marshall

Charles Evans Hughes

Harlan Fiske Stone

What was the main reason *Brown* relied upon to strike down segregated education policies?

The fact that the children still played together but were only separated in their schooling

What does Irons mean when he says that *Marbury*, *Dred Scott*, *Lochner*, *West Coast Hotel*, and *Brown* were all legislative decisions (400)?

These cased were made to create new laws, replacing the old ones.

To claims that the justices simply “interpret” the Constitution denies reality; the Court plays a role in the political process

*Brown* was re-argued in December 1953, but the justices did not follow typical procedure in conference after oral argument: they did not formally express their views or vote in conference until February. What was Warren’s rationale for delaying the normal conference procedure (285)?

When a person once announces he has reached a conclusion it is more difficult for him to change his thinking

What legal claim did Bakke make against the University of California Medical School for rejecting his application?

His qualifications exceeded those of any minority students admitted in the two years his applications were rejected

He contended that he was excluded from admissions solely based on race

Did the Supreme Court rule for Bakke (requiring that he be admitted) or against him (allowing the University’s decision to stand)?

No and yes

Minimized white opposition to the goal of equality while extending gains for racial minorities through affirmative action

*Bakke* resulted in a plurality opinion. This means 5 justices did not agree on the reasoning, although 5 justices agreed on the result. What was the position of each group of 4 justices? How did Justice Powell divide his vote and reasoning between the two factions?

The position of the first group of four was that any racial quota system supported by the government violated the Civil Rights Act of 1964

The remaining four justices held that the use of rase as a criterion in admissions decision in higher education was constitutionally permissible 

Powell agreed that the medical school should admit Bakke, however he argued that the rigid use of racial quotas violated the Equal Protection Clause of the 14th amendment

Contended that the use of race was permissible as one of the several admission criteria

What legal question did the *Gratz* court?

Did the University of Michigan’s use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the 14th amendment and the Title VI of the civil Rights Act of 1964?

Did the Court uphold or strike down Michigan’s undergraduate admissions policy? Why?

They struck down the policy

Did not provide individual consideration

Not narrowly tailored in the manner required by previous jurisprudence on the issue

What legal question did the *Grutter* court consider?

Does the University of Michigan Law School’s use of racial preferences in student admissions violate the Equal Protection Clause of the 14th amendment of Title VI of the civil Rights Act of 1964?

Did the Court uphold the law school’s admissions policy or strike it down in *Grutter v. Bollinger*? Why?

It upheld the admission policy

Because the Law School conducts highly individualized reviews of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors may contribute to diversity are meaningfully considered alongside race

What does “equal protection” mean

No state shall… “deny to any person within its jurisdiction the equal protection of the laws.”

Fourteenth Amendment, Section 1

What did Brown I rule

separate educational facilities are inherently unequal

What did Brown II require?

“all deliberate speed” to end racial segregation

What orders/ acts used affirmative action?

Kennedy’s Executive Order 10925 

Civil Rights Act of 1964

*Korematsu* (1944):

“all legal restrictions which curtail the civil rights of a single racial group are immediately suspect”

*Loving v. Virginia* (1967):

“The equal protection clause demands that courts must consider racial classifications with the ‘most rigid scrutiny.’”

Facts of *Regents of the University of California v. Bakke*

16 of 100 spots set aside for minority applicants.

Bakke, a white man denied admission, challenged the set aside program on the theory that it violated the Equal Protection Clause.

Holding in *Regents of the University of California v. Bakke*

4 (liberal) justices would have upheld the set aside program. The use of race did not violate the Equal Protection Clause or the Civil Rights Act. ◦

4 (conservative) justices would have struck down the program on the grounds that it violated the Civil Rights Act. 

Swing Justice Powell: The set aside program violates the Equal Protection Clause.

Universities may make decisions based on race only if race is one factor among many considered in promoting a diverse student body . . . 

Since UC Davis’ plan was not narrowly tailored, Bakke won.

Facts in *Gratz v. Bollinger*

The University of Michigan’s undergrad admissions program rated applicants based on a selection index.

An applicant in an underrepresented racial or ethnic minority group received 20 of 150 points.

Virtually every qualified minority applicant was admitted

Issue in *Gratz v. Bollinger*

Does the use of race in the undergrad admissions program violate the Equal Protection Clause and the Civil Rights Act?

Holding in *Gratz v. Bollinger*

Yes. The program is not narrowly tailored. There is no individual consideration of the applicants. 

What were the facts in *Grutter v. Bollinger*

The University of Michigan’s law school considered race a “plus” among many other factors in admissions.

What was the holding in *Grutter v. Bollinger*

No. The law school’s use of race as one factor in admissions was “narrowly tailored to further a compelling state interest” in “assembling a diverse student body.”

What was the issue in *Grutter v. Bollinger*

Does the law school’s use of race in admissions violate the Equal Protection Clause and the Civil Rights Act?

What was the holding in *Parents involved in Community Schools v. Seattle School District*

No. The school may not use race in the admissions process. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

What three categories of rights does the Supreme Court protect under through the Due Process Clause of the Fourteenth Amendment?

Procedural Protections

Individuals’ rights

Fundamental rights not specifically enumerated elsewhere in the constitution

Procedural protections

Ex. Notice and a hearing before termination of entitlements

Individuals’ rights

Ex. Freedom of speech and free exercise of religion

Fundamental rights not specifically enumerated elsewhere in the constitution

Ex. Right to marry

What did the statute challenged in *Lochner v. New York* prohibit?

A statute providing that no employer in certain types of occupations, including bakeries, could work his employees more than sixty hours per week.

According to Justice Peckham, what provision of the Constitution did the New York law violate (107)?

Due Process Clause of the fourteenth amendment

According to Justice Peckham’s reasoning, why did the New York statute violate the U.S. Constitution (107)?

Interfered with the freedom of the employer and employee to contract guaranteed them 

What rights does *Pierce* establish an important precedent for?

The rights of parents to educate their children

Rights of parochial schools to operate alongside public schools

What did the Oregon law challenged in *Pierce* require?

Required. Most children to attend public school through age sixteen

What reason did Justice McReynolds give for striking down the Oregon law in *Pierce*?

The law deprived the school owners of their property without due process of law and interfered with the liberty of parents to choose schools for their children

What was the holding in *Obergefell v. Hodges*?

State bans on same sex marriage and on recognizing same sex marriages duly performed in other jurisdictions are unconstitutional under the Due Process and Equal Protection clauses. 

What reason did Justice Kennedy give for concluding that the right to marry is protected by the due process clause of the Fourteenth Amendment?

The right to marry is a fundamental right “inherent in the liberty of the person”.

What two clauses of the Fourteenth Amendment did *Obergefell* hold were violated by the same-sex marriage bans?

Due process and equal protection clause

What Supreme Court case from the 1960’s did *Obergefell* rely upon to affirm that the Fourteenth Amendment extends to intimate choices that define personal identity and beliefs?

Griswold v. Connecticut

What reason did *Obergefell* give for removing the issue of same-sex marriage from the democratic process?

No individual must rely solely on the democratic process to exercise a fundamental right

What was the main reason Justice Roberts rejected the majority’s conclusion that prohibiting same-sex marriage violated the due process clause?

No prior decision had changed the core component of marriage, that is between a man and woman, so same sex marriage bans did not violate the Due Process Clause

What was the main reason Justice Roberts rejected the majority’s conclusion that prohibiting same-sex marriage violated the equal protection clause?

They were rationally related to a governmental interest of preserving the traditional definition of marriage

What reason did Justice Thomas give for rejecting the entire concept of substantive due process?

It invites judges to roam at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document which leads to the judiciary reaching too far and overstepping

What are the only interests Justice Alito believes should be protected by substantive due process?

Protects only rights and liberties that are deeply rooted in US history and tradition

According to Section 5 of the Fourteenth Amendment, who is responsible for enforcing the Fourteenth Amendment's guarantees?

Congress

Which of the following is true of the Supreme Court's ruling in the *Slaughter-House Cases*?

The decision limited the protections of the Fourteenth Amendment