LAW 532-001 – Constitutional Law II

Equal Protection


  1. Identify the class affected
    • Also identify the class of people treated otherwise
  2. Determine whether the classification is suspect
    • Suspect Classification

      A few factors determine whether a classification is suspect. It is likely if it is:

      1. Historically irrationally marginalized or oppressed
      2. A minority
      3. Immutable traits
      4. Without the political power to remedy its issue
  3. Choose the relevant standard of review

Discriminatory impact does not mean that there is a discriminatory purpose, but it is evidence thereof.

Diversity is a compelling government interest in higher education.

  • Quotas are prohibited however because they are not narrowly tailored.
Private Discrimination

The U.S. Constitution does not prevent private racial discrimination, so neither state nor the federal governments have a duty to outlaw it.

States can outlaw private discrimination under their police powers however, and the federal government can under the commerce clause.

States can enforce private racially restrictive covenants of the sale of property, but they do not have to.

States may not be able to repeal a law that outlaws private racial discrimination if it is seen as intending to authorize racial discrimination.

Saving money is a legitimate state interest, but not a compelling state interest.

Contract Clause
Takings Clause
Establishment Clause

The Establishment Clause of the First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

There are three views of the Establishment Clause: separationism, non-preferentialism, and jurisdictionalism.


Separationists claim that the state may fund secular beliefs but not religious beliefs.


Non-preferentialists believe that the state may fund religious and secular beliefs equally.


Jurisdictionalists hold that the state may not fund any beliefs—and that the distinction between secular and religious beliefs is a false one.

Jurisdictionalism is the best.

Lemon Test

The Lemon test is the Supreme Court's test to determine whether a law can survive an establishment clause challenge.

  1. The statute must have a secular legislative purpose.
  2. Its principal or primary effect must be one that neither advances nor inhibits religion.
  3. The statute must not foster "an excessive government entanglement with religion."

The court's view on government aid has largely moved from separationism to non-preferentialism.

Release time from public schools is generally allowed as long as the religious instructions is off-premises.

Prayer is generally out, although the Lemon test is not really applied. They usually just say it is a religious service, coercion (specifically psycho-coercion), or endorsing religion.


In Weisman, O'Connor set out a two prong test to determine whether or not an act is a government endorsement of religion:

  1. Is the city's actual purpose to endorse or disapprove religion?
    • The subjective intent of the speaker
  2. Does the practice in fact convey a message of endorsement or disapproval of religion?
    • The objective meaning
Freedom of Speech
Freedom of Speech in a Bombshell 2019
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Tumola believes that, while regulating speech in general is outside of the government's jurisdiction, the First Amendment only prohibits abridging political speech that is critical of the government.

Inflammatory Speech
Masses Test

The Masses test, although never adopted adopted by the Supreme Court, held that speech directly advocating criminal activity is unprotected. It does not matter how likely, serious, or imminent the crime would be.

Clear and Present Danger

The clear and present danger test is not followed anymore, but it used to be the test for whether or not speech could constitutionally be prohibited.

The clear and present danger test says that the government may punish speech that is intended to produce, or of which the natural and probable effect is to create, a danger of a likely, imminent, and serious crime.

The Court will defer to Congress what constitutes a clear and present danger.

Brandenburg Test

The Brandenburg test is the current test for what inflammatory speech Congress can prohibit. It requires advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action.

Discuss all three on a test.


A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence ot a particular individual or group of individuals.

The most important element is the intent to put in fear.

Intent to carry out the threatened action is not needed.

The Supreme Court has not ruled whether knowledge or recklessness would be a sufficient mens rea.

Hate Speech

Hate speech is not a separate category of unprotected speech for First Amendment purposes.

Hate speech must fall within another recognized category to lose First Amendment protection.

Group Libel

Group libel is not unprotected speech.

A group libel conviction was upheld in Beauharnias v. Illinois, but for a number of reasons, this is probably not good law anymore.

Fighting Words

Fighting words are statements likely to cause the average addressee to fight. They must be given personally, face-to-face though.

Negligence might be enough mens rea.

Fighting words are unprotected speech.

Statutes can outlaw a subset of fighting words as long as that subset of fighting words is not content-based (based on viewpoint). (It gets strict scrutiny, even if the speech is worthless.)

Being motivated by race can be a basis for enhanced sentencing, just not an element of the crime itself.

The message intended to be conveyed by the speech must be apparent on its face. It cannot just be said afterwards.

West Virginia State Board of Education v. Barnette

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.


There are four types of forums:

Public Forum

Public forums are basically streets, parks, and sidewalks. Plus property by long tradition devoted to assembly and debate.

Public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Unlimited Public Forum

Designated unlimited public forums are defined by government fiat.

Designated unlimited public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Limited Public Forum

Designated limited public forums are nonpublic forums designated for use by the public as a place for speech but limited to certain groups or subjects. Usually they are schools after hours.

Designated limited public forums receive intermediate scrutiny for content-neutral regulation, likely intermediate scrutiny for content-based regulation, and strict scrutiny for viewpoint-based regulation.

Nonpublic Forum

All public property that is not traditionally or designedly open for speech is a nonpublic forum.

Regulation on nonpublic forums is usually tested as to the reasonableness in light of the purposes for which the property is lawfully dedicated with great deference to the regulation. However, if it is view-point based, dicta indicates that strict scrutiny would be used.

Government Speech

Governments, through their employees, must engage in speech to execute their powers, however public employees also have First Amendment speech rights.

To resolve cases involving speech of government employees, courts look at three distinctions:

  1. Speaking as public employee or citizen
  2. Speaking about matters of public or private concern
  3. Speaking about matters within or outside the scope of employment

Depending on where the speech falls, the speech will either be afforded no protection or the government, employee, and public interests will be balanced to see if it should be protected.

The government is not allowed to penalize speech it disagrees with, but it is allowed to subsidize speech that it does agree with. (Though this contravenes Justice Jackson's statement in Barnette.)

  • But it cannot fund speech just for the diversity of different private viewpoints.

The government can also therefore discriminate, even based on viewpoint, in deciding who to hire to speak.

Freedom of Association