Con Law Outline - CONSTITUTIONAL LAW II OUTLINE STATE ACTION public function theory significant state involvement theory CONGRESSIONAL POWER TO REACH

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?