In-Class Scratchpad

This page serves as a kind of blackboard/whiteboard for in-class instruction. I will use this page when it would be helpful for students to have text available outside of the slides that I am presenting.

April 2

Midterm Review

A copy of the midterm exam is available here.

February 20

Substantive Due Process

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

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Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

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Reproductive Autonomy

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Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

Supreme Court Precedents: Buck v. Bell (1927) Skinner v. Oklahoma (1942)

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“That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.”

Art. 1, §8, Tenn. Const.

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“That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an inalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”

Art 1. §1, Tenn. Const.

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“That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”

Art 1. §2, Tenn. Const.

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Why connect right to privacy with right to violently overthrow government?

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Abortion cases

In re T.W. 551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt 440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State 975 N.W.2d 710 (Iowa 2022)

New assigned reading for Thursday: Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (Pa. 2024) (Wecht, concurrence) Pgs. 40-71

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Right of Intimate Association

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State v. Saunders

381 A.2d 333 (N.J. 1977)

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Crime of fornication

“an act of illicit sexual intercourse by a man, married or single, with an unmarried woman”

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Infringement on right to privacy?
If so, compelling state interest to justify infringement?

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Compelling state interests asserted:

Preventing venereal disease
Preventing number of illegitimate children
Safeguarding marriage and public morals

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Concurrence

“The Legislature cannot infringe on the rights of individuals who in private and without affecting others adopt and live by standards which differ from those of society.”

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Commonwealth v. Bonadio

415 A.2d 47 (Pa. 1980)

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Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)

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KRS 510.100 punishes “deviate sexual intercourse with another person of the same sex” as a criminal offense, and specifies “consent of the other person shall not be a defense.”

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Civil Union and Same-Sex Marriage

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Baker v. State

744 A.2d 864 (Vt. 1999)

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Three-part analysis

Significance of the benefits
Goverment’s goals
Classification under- or over-inclusive

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Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

February 8

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

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“Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.”

Article V, Pennsylvania Const.

“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

Article I, §1 Pennsylvania Const.

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Arneson v. State

864 P.2d 1245 (Mont. 1993)

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“The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Art II. § IV Montana Const.

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Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

“All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Iowa Const. Art 1. § 6

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AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

February 6

Excerpts used in class:

“All people are created equal and are entitled to equal rights and opportunity under the law.” Wis. Const. art. I, § 1.

“Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Utah Const. Art. IV, § 1.

“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” Conn. Const. Art I. § 20.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, Fourteenth Amendment.

Tiers of scrutiny

Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

“There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” Conn. Const. Art VIII. § 1.

“[A]ll persons are equal and entitled to equal rights, opportunities, and protection under the law.” Article I, § 1, Alaska Const.

“No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin.” Article I, § 3, Alaska Const.

“Girls shall not compete or practice against boys in any athletic contest.” Athletic Association bylaw.

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Art. I, § 28, Penn. Const.

“Equality of rights under the law shall not be denied or abridged by the State on account of sex.” Art. 1, § 21, Hawaii Const.

February 1 - Interpretation Exercise

Facts of the case:

Like many other high schools, Loyola City public high school has been dealing with a problem of cyberbullying. To address this problem, the principal of the high school created an anonymous reporting system for students to alert the school administration to incidents of bullying. The principal received an anonymous tip that a high school sophomore J.T. had been harassing his female classmates online and through text messages. The principal called J.T. into his office, asked him to hand over his cellphone, and looked through J.T.’s messages, browser history, and photos. The text messages and browser history revealed that he had repeatedly messaged female classmates on multiple platforms, asking them on dates, commenting upon and criticizing their physical appearance, and describing in lurid detail the sexual acts he would like to perform with them. In almost all instances, the classmates asked J.T. to stop texting them, but he kept texting, including messaging them on alternate platforms when they blocked his phone number. The photos on the phone, complete with geolocation data, revealed that he had also been following some of his classmates home from school and taking photos of them from outside their home.

As a result of this evidence, J.T. was arrested and prosecuted for stalking. At the trial court level, J.T. filed a motion to suppress the evidence, arguing that the principal searched his cellphone in violation of the Fourth Amendment to the United States Constitution and Article 2, Section 6 of the Loyola Constitution. The trial court denied the motion. The Loyola Court of Appeals affirmed. The case is now being heard by the Loyola State Supreme Court.

Please write a majority and dissenting opinion for this case.

Relevant constitutional provisions:

U.S. Constitution, Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Loyola Constitution, Article 2, § 6

No person shall be disturbed in their private affairs, or have their home invaded, by an unreasonable search or seizure. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.

U.S. Supreme Court Precedent:

New Jersey v. T.L.O. (1985)

A teacher caught a high school freshman, T.L.O., smoking in the school bathroom, and took her to the principal’s office. T.L.O. denied she had been smoking. The principal demanded to see her purse. He opened it and found a pack of cigarettes. He also saw a packet of cigarette rolling papers, which he believed was closely associated with marijuana use.

Because he suspected a further search of the purse would turn up evidence of drug use, he searched the purse thoroughly. He found a small amount of marijuana, a pipe, a large amount of cash, and what appeared to be a list of students who owed T.L.O. money. The state brought charges. At trial, T.L.O. argued that the evidence seized from her purse should be suppressed, because the principal searched it in violation of her Fourth Amendment Rights.

The Supreme Court ruled that the Fourth Amendment’s prohibition on unreasonable searches and seizures does apply to searches by public school officials. The Court said that school students have legitimate expectations of privacy, and they do not waive all rights to privacy by bringing items onto school grounds. But school officials have a responsibility to keep students safe and maintain order at the school, so the Fourth Amendment applies in a slightly different way at school than it does in public. Warrants are not required for searches at school. Also, the “probable cause” standard required for a search outside of school is replaced with a “reasonable suspicion” standard.

In assessing a search by school officials, courts must ask two questions: 1) was the search justified by reasonable suspicion when it began? And 2) was the scope of the search reasonably related to the circumstances that justified the search? Here, it was reasonable to believe that a search of T.L.O.’s purse would turn up cigarettes, in violation of school rules. Once the principal saw the rolling papers, it was reasonable for him to search further and his search was not excessively intrusive. The evidence against T.L.O. could be used in court against her.

Loyola Supreme Court Precedent

The Loyola Supreme Court follows the interstitial approach for addressing claims that arise under both the federal and state constitutions.

The Loyola Supreme Court “gives respectful consideration to the decisions of the United States Supreme Court in its interpretation of parallel provisions of the Federal Constitution” but has found on multiple occasions that Article 2, § 6 “affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment.”

The Loyola Supreme Court has not yet addressed how Article 2, § 6 applies to searches conducted by public school officials. In the policing context, the Loyola Supreme Court has found that Article 2, §6 — like the Fourth Amendment — requires police to have probable cause before conducting a warrantless search.

The court has defined private affairs as those “interests which citizens of this state have held, and should be entitled to hold, safe from government trespass.”

As a matter of history, the Supreme Court of Loyola adopted its constitution in the year 1900 and recognized the exclusionary rule 50 years before the United States Supreme Court.

Note: The summary of New Jersey v. T.L.O. was copied from Colorado Law Constitution Day Project September 2019, available at https://www.colorado.edu/law/sites/default/files/attached-files/constitution_day_lesson_plan_2019.pdf

Last updated on Apr 2, 2024