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Con Law-Equal Protection and due Process
N/A
44
Law
Graduate
05/21/2013

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Cards

Term
When will state action be found in relationship to the activities of a private individual?
Definition
When the private person carries on activities that are TRADITIONALLY PERFORMED EXCLUSIVELY BY THE STATE.

E.G. a shopping mall may discriminate against picketers, but a private counsel may not discriminate against jurors because selection of jurors is a traditional state function.
Term
Does licensing or regulation of private parties constitute state action?
Definition
Generally no, the state must affirmatively facilitate, encourage, or authorize the activity.
Term
What is procedural due process?
Definition
It ensures that the federal and state governments must follow certain procedures before depriving any person of life, liberty, or property. E.G. notice, hearing
Term
Which amendment incorporates most of the bill of rights to the federal government? To the states?
Definition
The 5th to the federal government. The 14th to the states.
Term
Does the due process clause address injury from governmental negligence?
Definition
Mere negligent conduct by a govt employee does not trigger a due process right.
Term
When does an impingement on liberty occur?
Definition
When significant government restraint on ones physical freedom, exercise of fundamental rights, or freedom of choice or action occurs. Injury to reputation is generally not enough unless the individual has lost significant employment or associational rights.
Term
When determining whether process is due, what does the court consider?
Definition
1. Is the interest at stake a protected one?
2. If so, what process is due?
Term
Is the interest in property a legitimate interest to require due process?
Definition
Yes, if it is a legitimate property interest, but there must be legitimate claim of entitlement by virtue of statute, employment contract, or custom.
Term
If an individual's protected interest is threatened by government action, what type of factors are considered in determining the amount of procedural process is due?
Definition
1. THe private interest affected by government action.
2. The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards.
3. The burden (fiscal and administrative) cost involved in providing additional process.
Term
Are enemy combatants entitled to procedural due process?
Definition
Yes.
Term
What burden of proof is allocated to the termination of parental rights?
To paternity suits?
Definition
Termination of parental rights requires clear and convincing proof. Paternity only requires a preponderance.
Term
What type of procedural due process is afforded to public employees?
Definition
1. Notice of termination
2. Pre-employment opportunity to respond.
3. Post-termination evidentiary hearing.
Term
A fundamental right acquires which level of scrutiny?
Definition
Strict.
Term
What is the strict scrutiny test?
Definition
A law must be necessary by the least restrictive means to achieve a compelling governmental interest.
There cannot be a way to achieve the same interest that is less restrictive of the right at issue. The law should also not be under or over-inclusive. Overinclusive reaches more people or conduct than necessary, underinclusive reaches less people than it should.
Term
When a right that is not fundamental is involved, what standard of scrutiny is involved?
Definition
Rational basis.
Term
What is rational basis?
Definition
A law meets rational basis review if it is rationally related to a legitimate state interest. It is only invalidated if the challenger can overcome the presumption of validity by proving that the law is arbitrary or irrational.
Term
What are some fundamental rights?
Definition
1.The right to vote.
2. The right to travel domestically.
3. The right to privacy (marriage, sexual relations, abortion, child rearing, related persons to live together)
4. Bear arms
5. Fair trial
Term
What requirements may the government impose on voting rights? Which are illegal?
Definition
May:
1. 18 years old
2. Residency requirements (length of residency only subject to strict scrutiny)
3. Voter ID
4. No voting for felons
5. Banning write-in candidates.
Invalid:
1. Property ownership.
2. Poll taxes are illegal
Term
Is holding public office and having access to the ballot a fundamental right?
Definition
No fundamental right to HOLD office or appointment BUT fundamental right to be considered without invidious discrimination.

Can require:
1. Filing fee
2. Obtaining signatures in support of candidacy
3. Making a state office holder quit before being considered for another office seat.
Cannot require:
1. Property ownership
2. Acceptance of write ins if the state provides reasonable means to get on the ballot
Term
Is marriage a fundamental right?
Definition
Only between man and woman as of now.
Term
Is there a fundamental right to use contraceptions?
Definition
Yes.
Term
IS there a fundamental right in intimate sexual behavior?
Definition
Yes.
Term
How does abortion work as a fundamental right?
Definition
Pre-viability (meaning the fetus is likely to survive outside the womb if it's viable), the state may not impose an undue burden on the right to obtain an abortion.
Term
Post-viability is there a fundamental right to abortion?
Definition
At this point, the state may regulate and even prohibit abortion as long as there is an exception for preserving the life of the mother.
Term
Name a few state abortion requirements that have been held to not impose an undue burden.
Definition
1. THe requirement that only a licensed M.D. perform an abortion.
2. A requirement that the physician must provide the woman with truthful information about the procedure, health risks, etc.
3. A 24-hour waiting period for the procedure after giving informed consent.
4. A minor must obtain consent, or provide the parents. The court must be able to bypass the consent requirement.
5. Ban on uncommon abortion techniques.
Term
Is there a constitutional right to have government provide indigent women with funding for an abortion or for medical care related to abortion?
Definition
No.
Term
A parent has a fundamental right to make what kind of decisions about their children?
Definition
Care, custody, control, limit visitation of grandparents, and to homeschool.
Term
Is there a fundamental right to possess obscene material?
Definition
Yes, except for child pornography. However, the state may restrict the sale, purchase, receipt, transport, and distribution of obscene material.
Term
Is there a fundamental right to refuse medical treatment?
Definition
Yes, but no fundamental right to die.
Term
Is the second amendment right to possess a firearm absolute?
Definition
No, states may pose conditions and qualifications on the commercial sale of arms as well as prohibitions on concealed weapons, possession by felons and the mentally ill, and carrying guns into public schools, federal buildings, etc.
Term
How does intermediate scrutiny work?
Definition
A law must be substantially related to an important government interest. The burden generally appears to be on the government.
Term
To get strict scrutiny when the law is not facially discriminatory, but discriminatory in practice, what must the challenger prove?
Definition
That there was a discriminatory purpose behind the law.
Term
When a law disproportionately impacts a group of people, but is not facially discriminatory, it has a:
Definition
Disparate impact.
Term
What are the three ways of proving discriminatory intent?
Definition
1. Facial discrimination: the law is facially discriminatory.
2. The law has been applied in practice in a discriminatory fashion.
3. Discriminatory motive: Proof of discriminatory motive.
Term
What suspect classifications are subject to strict scrutiny?
Definition
Race, ethnicity, and national origin.
Term
What level of scrutiny is affirmative action law subject to?
Definition
Strict.
Term
What must a government show to give affirmative action? In what contexts is it valid?
Definition
It must show past discrimination by government.

In public universities and colleges, race may be used as a plus factor because there is a compelling interest in obtaining the educational benefits of a diverse student body. Racial quotas are invalid.

AA is invalid in public schools (non-university) unless it is necessary to accomplish a compelling interest. A school district may employ race-neutral criteria having the same effect.

In the private setting, AA is ok. However, intentional discrimination is not.
Term
When Congress makes a law regarding alienage, is that subject to heightened scrutiny?
Definition
No, generally congress has plenary power over alienage and the law will likely be valid unless it is arbitrary or unreasonable.
Term
If a state makes a classification involving alienage, what level of scrutiny is it likely subject to?
Definition
Strict unless state law restruct or prohibits the alien's participation in government functions, then RB.
Term
Are undocumented aliens a suspect class?
Definition
No, but the states may not deny primary or secondary public education to undocumented aliens.
Term
What level of scrutiny to women and men get?
Definition
Intermediate
Term
What level of scrutiny do illegitimate (non-marital) children get?
Definition
Intermediate scrutiny.
Term
What level of scrutiny does age, poverty, and sexual orientation get?
Definition
RB
Term
Do fundamental rights apply to equal protection or just due process.
Definition
Both.
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