CONSTITUTIONAL LAW II OUTLINE
S
TATE
A
CTION
public function theory
significant state involvement theory
1
C
ONGRESSIONAL
P
OWER
TO
R
EACH
P
RIVATE
I
NTERFERENCES
WITH
C
ONSTITUTIONAL
R
IGHTS
2
C
ONGRESS
’
S
§ 5 E
NFORCEMENT
P
OWER
3
E
QUAL
P
ROTECTION
socioeconomic legislation
levels of scrutiny
4
R
ACE
racial classifications
disparate impact
5
G
ENDER
gender classifications
7
O
THER
S
USPECT
/Q
UASI
-S
USPECT
C
LASSES
& L
EVELS
OF
S
CRUTINY
classifications summary
9
F
UNDAMENTAL
R
IGHTS
voting
access to courts
10
E
QUAL
P
ROTECTION
S
UMMARY
10
F
IRST
A
MENDMENT
first amendment theories
11
CATEGORICAL
APPROACH
unprotected categories
protected categories
overbreadth & vagueness
categorical approach summary
11
STANDARDS
,
FORA
,
PROCEDURE
symbolic conduct
traditional public forum; licensing & medium bans; discretion; prior restraint
time, place, manner regulations
compatibility approach
government as proprietor:
Perry
modern tripartite approach
government as educator
government as employer
government as patron/speaker
right against compelled speech
15
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right to associate/not associate
R
ELIGION
C
LAUSES
free exercise
establishment
religion in curriculum
religious symbolism
financial aid
21
S
OME
T
IPS
23
S
TATE
A
CTION
Hypo: If I want to arrange a block party for whites only, can Congress reach my discrimination? The
answer is no, because 14A requires state action (
Civil Rights Cases
). The court is trying to balance my
freedom to associate with whom I please in my personal autonomy vs. an interest to prevent
discrimination. Today, the narrow reading requiring state action stems from the
Civil Rights Cases
, which
construed 14A, § 5 as requiring a distinction between private and public wrongs, and Congress can reach
only the latter.
Issue: Is there a sufficient nexus between the state and the actor? Is there significant state involvement?
Is the action “sanctioned in some way by the State,” or “done under State authority”? Are there laws on
the books, customs, judicial or executive proceedings that render it state action? At what point in time is
there significant entanglement, rendering you a state actor? Could one survive without the other? Is the
State placing its imprimatur on the activity of discrimination?

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- Spring '04
- Shea
- Law, Constitutional Law, Discrimination, The Lottery, Sula, state action
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