Substantive Law Study Support

Questions for Analysis and Responses

1. Refer to the facts in Living with the Constitution, where parents are challenging the way in which school assignments are made.
a. Is the school assignment based on any classification? If so, what?

The only obvious classification here is based on the neighborhood. However, there may be underlying classifications based on race or poverty. (This is the type of situation that led to busing.) While this is not clear from the questions, students should identify the potential problem.
b. Is any fundamental right involved?

Education, which is the right in question, is not a fundamental right.

c. If this case were to be heard by the Supreme Court, which test would they use to analyze the practice?
Unless the parents could show an underlying racial basis, the rational basis test would be used.

2. Refer to the case City of Cleburne v. Cleburne Living Ctr., Inc.

a. Why does the Supreme Court feel justified in departing from the general rule that state laws are presumed to be valid when laws classify by such factors as race, alienage, and national origin?
These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to

strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.
b. Why do laws that classify by gender require heightened scrutiny?

Gender generally provides no sensible ground for differential treatment. “What differentiates sex from such nonsuspect statutes as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest.
c. Why do laws that classify by age require only the rational basis test?

While the treatment of the aged has not been wholly free of discrimination, such persons, unlike those who have been discriminated against on the basis of race or national origin, have not experienced a “history of purposeful unequal treatment” or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.
d. Which test did the Court apply in this case and why?

The Court applied a rational basis test finding that mental retardation was not a special category. The Court stated:
“How this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary. [T]he distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Especially given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.”

3. Refer to the case Bush v. Gore.

a. Why did the Court find an equal protection violation in the recount?

There were no general rules on how to count votes, and it was done differently in different counties. The recount process was inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.

4. Refer to the Brown II case.

a. According to the Supreme Court, who has primary responsibility for desegregating the schools?
School authorities have the primary responsibility for elucidating, assessing, and solving these problems.
b. What practical problems could a court consider in deciding if a school district is integrating with proper speed?

The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations that may be necessary in solving the foregoing problems. They could also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.

5. Refer to Grutter v. Bollinger:

a. Why did the Court find race-conscious policy to be constitutional for the law school?
The Court found the policy to be constitutional because it did not assign set points to minority status for applicants. Admission was determined by a number of variables, including grades, academic ability, potential, and a personal essay describing how the applicant will contribute to law school life and diversity. The policy did not define diversity solely in terms of racial and ethnic status and did not restrict the types of diversity contributions eligible for consideration in admissions.
b. How did the Court explain the concept of “narrow tailoring”?

The Court stated that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”
c. Why does the decision in this case differ from the decision in Parents Involved in Community Schools v. Seattle School?
In Parents Involved in Community Schools v. Seattle School, race was the sole factor in the decision process for admission.

Assignments and Projects

1. Following the format provided in previous chapters, brief the case United States v. Virginia, 518 U.S. 515 (1996).
Judicial History: The district court acknowledged that women were missing out on a unique educational experience, but upheld the school’s policy. Pursuant to a decision by the Fourth Circuit, the Virginia Military Institute created the Virginia Women’s Institute for Leadership for women.
Facts: The Virginia Military Institute (VMI) was the only single-sexed school among Virginia’s fifteen public educational institutions. The mission of VMI was to produce “male leaders of the future.” There was no similar, or equal, educational opportunity for women in Virginia.
Issue: Did the VMI single-sex program violate the Fourteenth Amendment’s Equal Protection Clause?
Holding: Yes, the initial judgment of the Fourth Circuit Court of Appeals was affirmed.
Rationale: The Court ruled that Virginia had shown no “exceedingly persuasive
justification” for excluding all women. The school failed to show that admitting women would downgrade VMI’s stature or destroy the adversity system they had in place. In addition, VWIL did not qualify as a substitute for VMI as the student body, faculty, course offerings, and facilities did not match what VMI offered.

2. Summarize the factual allegations of the complaint filed by the Department of Justice against the State of New Jersey.
Student answers will vary slightly, but factual allegations of the complaint include:
- The New Jersey State Police have engaged in a pattern or practice of performing vehicle stops and post-stop enforcement actions and procedures, including searches, of African American motorists traveling on New Jersey roadways, including the New Jersey turnpike.
- The New Jersey State Police have the intent of discriminating on the basis of race and use criteria or methods of administration that have the effect of discriminating on the basis of race.
- The State of New Jersey has tolerated and continues to tolerate racially discriminatory law enforcement by New Jersey state troopers, including:
i. A failure to train troopers adequately to prevent racially discriminatory conduct related to vehicle stops
ii. Failing to supervise troopers adequately to prevent racially discriminatory conduct related to vehicle stops
iii. Failing to monitor troopers adequately who engage in or may be likely to engage in racially discriminatory conduct related to vehicle stops
iv. Failing to establish a procedure whereby all civilian complaints are documented and are investigated and adjudicated adequately
v. Failing to discipline troopers adequately who engage in racially discriminatory conduct related to vehicle stops

3. A leader in the Civil Rights Movement was Dr. Martin Luther King, Jr.

Research his life and write a short paper summarizing his accomplishments.

Student responses will vary, but possible accomplishments to discuss include:

- Leader of the civil rights movement

- Montgomery bus boycott of 1955

- The Southern Christian Leadership Conference

- The Birmingham campaign

- Involvement in the protests in St. Augustine, Florida

- Honorary degrees from various colleges and universities

- Nobel Peace Prize in 1964, among many other awards

- Authorship of several books including Stride Toward Freedom

- Accomplished speaker; his most notable speech was “I Have a Dream.”

Putting It Into Practice

1. Assume that you work for a law firm representing the Ebert family.

a. Identify any local, state, and federal agencies that might investigate their claim of discrimination.
Student answers will vary, but responses should include agencies similar to the following: U.S. Department of Justice, U.S. Department of Education, Center for Equal Opportunity, and the American Civil Liberties Union.

b. Write a letter to the Westside School District explaining the Ebert’s concerns.
Student responses will vary, but they should address the Ebert’s concerns that the denial of their request is a violation of their civil rights and the Equal Protection Clause.