con law outline ny bar 2012

7/28/2019 Con Law Outline NY Bar 2012

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CONSTITUTIONAL LAW 1

I. THE FEDERAL JUDICIAL POWER Article III: Interpretation of C, federal laws, treaties, and admiralty and maritime laws; disputes between states,

states and foreign citizens, and diversity cases.

Scope of judicial review (Supremacy Clause of Article VI): Constitutionality of govt acts and state acts.A. ARTICLE IIIREQUIREMENT FORCASES AND CONTROVERSIES

STANDING: Is P is the proper party to bring a matter to the court for adjudication?o Injury. P personally has been injured or imminently will be injured. (economic loss best) Ps seeking

injunctive or declaratory relief must show a likelihood of future harm.

o Causation & redressability: D causedinjury. Favorable decision likely to remedy. No advisory opinions.o No third party standing. P cant assert claims of others who arent before the court.

Exceptions: Close relationship; 3d party unlikely to be able to assert own rights; organizationstanding, if (i) individual members would have standing; (ii) interests are germane to orgs

purpose; AND (iii) neither the claim nor relief requires participation of individual members.

o No generalized grievances. Cant sue solely as a citizen/taxpayer seeking government follow the law. Exception: Government expenditures under federal statutes violating Establishment Clause.

BUT, no standing to challenge govt grants of property, even if its to religious organizations.

RIPENESS: Usually P must be injured first. Here, question of whether court may grant pre-enforcement reviewof a statute or regulation where P doesnt want to violate the law, wants to get declaratory judgment.

o 2 criteria: (i) hardship w/o pre-enforcement review; and (ii) fitness of issue and record for judicial review. MOOTNESS: If events after the filing of a lawsuit end Ps injury, the case must be dismissed as moot.

o Exceptions: Capable of repetition but evading review; voluntary cessation; class action where at least oneclass member has ongoing injury.

POLITICAL QUESTION DOCTRINE: Some constitutional claims left to the political branches to resolve.o E.g.: Art. IV republican form of government; foreign policy; impeachment and removal process;

partisan gerrymandering.

B.SUPREME COURT REVIEW Writ of certiorari: Complete discretion for SCOTUS to take case. Need votes of 4 justices to hear it.

o E.g.: State high court cases; US court of appeals cases. Cases SCOTUS must hear: Appeals from three-judge federal district courts opinions (Voting Rights Act); suits

between state governments (original and exclusive jurisdiction).

Requirements to be heard: Final judgment (no interlocutory review). No independent and adequate state lawgrounds for the decision. If SCOTUSs reversalof the federal law ground wont change the result in the case,

because theres an independent state law decision for it, SCOTUS cant hear it.

C. LOWERFEDERAL COURT REVIEW Cant sue state govt. 11th Am sovereign immunity bars suits against states in fed & state court, and fed agencies.

o Exceptions: Statutory waiver; fed laws adopted under 5 of the 14th Am (e.g., Title VII); fed govt suitagainst state govt; and bankruptcy.

o Suits against state officers are allowed for (i) injunctive relief; and (ii) money damages to be paid out ofofficer pockets (even if indemnified). Cant sue if state treasury will be paying retroactive damages.

Abstention. Fed courts may not enjoin pending state court proceedings, even though it has jurisdiction. Mustappeal through the state system with your federal claims, and can then get to SCOTUS if lucky.

II.THE FEDERAL LEGISLATIVE POWER,ARTICLE I

A.CONGRESSAUTHORITY TO ACT No general federal police power. Congress has to be able to point to express or implied authority.

o Exceptions: (i) military; (ii) Indian reservations; (iii) federal lands or territories; OR (iv) DC. Necessary & proper clause, 8. Congress can choose any means not prohibited by C to carry out its authority.


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Taxing/spending power: Congress can tax/spend for general welfare. Commerce Power: Congress may regulate the channels of interstate commerce (highways, internet, etc.);

instrumentalities of IC (phones, trucks); and persons or things in IC (stock, insurance, power lines, cattle, people).

o Economic activities with substantial effect on IC: Look to aggregate effect. eg: Even small amounts ofmarijuana for medicinal use can be regulated because pot travels in IC in the aggregate.

o Non-economic activities effect on IC: Substantial effect cant be base on cumulative impact. U.S. v.Morrison: not every state provided findings of effect of DV & SA, but law applied nationwide, so no go.

10th Amendment as a limit on Congressional powers: All powers not granted to the US, nor prohibited to thestates, are reserved to the state or the people. Congress cant compel state regulatory or legislative action, but can

prohibit harmful commercial activity by state governments (not affirmative duty, just bar on bad practices).

o Conditioning grants to states to induce behavior: Congress can put strings on grants, so long as conditionsare expressly stated and relate to the purpose of the spending program (e.g.: 21 year old drinking age).

5 of the 14th Am. Congress may not create new rights or expand the scope of rights. Congress may act only toprevent or remedy violations of rights recognized by the courts and such laws must NARROWLY TAILORED

such that they are PROPORTIONAL and CONGRUENT to remedying constitutional violations.

B.DELEGATION OF POWERS No limit exists on Congress ability to delegate legislative power to agencies. Legislative vetoes (congressional resolution to overturn an agency rule) and line-item vetoes (president vetoing

only part of a bill) are unconstitutional. For Congress to act, there must always be bicameralism (passage by both

the House and the Senate) and presentment (giving the bill to the President to sign or veto).

Congress may not delegate executive power to itself or its officers.III.THE FEDERAL EXECUTIVE POWER,ARTICLE II

A. FOREIGN POLICY Treaties: Negotiated by President with foreign country. Effective when ratified by the Senate.

o Conflicts: Cant conflict with US Constitution; if conflicts with fed statute, one adopted last in timecontrols; prevails over conflicting state laws.

Executive agreements: Effective when signed by the President and the head of the foreign nation.o Conflicts: Prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

Use of American troops in foreign countries: The President has broad powers as Commander-in-Chief; casesabout will likely be dismissed as non-justiciable political questions, and because of the Presidents broad power.

B.DOMESTIC AFFAIRS APPOINTMENT AND REMOVAL POWER

o Presidential appointments: Ambassadors, federal judges, and officers of the US. (The Senate thenconfirms them.)

o Congressional authority to appoint: Congress may vest the appointment of inferior officers in thePresident, the heads of departments, or the lower federal courts (inferior officers are those who can be

fired by an officer of the US). Congress cant give the appointment power to itself or its officers.

o Removal power. Unless limited by statute, the President may fire any executive branch officer. Exception: Office where independence from President is desirable (e.g., Special Prosecutor

investigating the President); AND removal isnt prohibited, its just limited to good cause.

IMPEACHMENT AND REMOVAL. The President, the VP, fed judges, and officers of the US can beimpeached by majority vote of Congress and removed from office post-trial by Senate (2/3 vote) for treason,

bribery, or for high crimes and misdemeanors.

PRESIDENTIAL IMMUNITY FROM CIVIL SUIT: absolute immunity to civil suits for money damages for anyactions while in office. No immunity for actions that occurred prior to taking office.


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EXECUTIVE PRIVILEGE OF PRESIDENT: For presidential papers and conversations, but must yield to otheroverriding important government interests.

PARDON POWER: President can pardon those accused or convicted of federal crimes. Cant pardon someonewho was impeached. Can only pardon as to criminal liability, not as to civil liability.

IV.FEDERALISM Limits what state and local government can do because of the existence of federal government and other states.

A. PREEMPTION Supremacy Clause of Art. VI: Constitution, and laws and treaties made pursuant to it, are supreme law of the land Types of preemption:

o Express preemption: Federal statutes that say that state and local laws in this area are invalid.o Implied preemption: Conflict, obstacle/interference, and field.

Intergovernmental Immunity: States may not tax or regulate federal government activity, or burden federalactivity, e.g., states cant apply theirstricter state environmental laws to the federal government.

B. THE DORMANT COMMERCE CLAUSE AND PRIVILEGES &IMMUNITIES CLAUSE OF ARTICLE IV

Dormant commerce clause (negative implications of commerce clause): State and local laws are unconstitutionalif they place an undue burden on IC, i.e., prevents states and local governments from interfering with IC.

o Congressional approval of a state or local law means the commerce clause is no longer dormant, and withsuch approval, state law wont be found unconstitutional.

Privileges and immunities clause of Article IV: No state may deprive citizens of other states of the privileges andimmunities it accords its own citizens. Anti-discrimination provision.

o Market participant exception: State or local government may prefer its own citizens in receiving benefitsfrom govt programs or in dealing with govt businesses. e.g.: In-state tuition benefit, or govt acting as biz.

o Distinguish - Privilege and immunities clause of the 14th Amendment: (wrong answer unless involves theright to travel.) No state shall deprive any citizen of the privileges and immunities of being a US citizen.

Does the state law discriminate against out-of-staters?o IF NO,

Privileges and immunities clause of Article IV doesnt apply. DCC violated if the laws burdens exceed its benefits. e.g.: IL required a kind of mud guard

different from the mud guards used by every other state on big trucks. Too much of a burden.

o IF YES, Privileges and immunities clause of Art. IV violated if the state law interferes with civil liberties

or important economic activities (i.e., ability to earn a living) unless it is necessary to achieve

IMPORTANT government purpose and the discrimination is NECESSARY (no less

discriminatory alternative available. Note: no protection for corps and aliens.

DCC violated if law burdens IC unless NECESSARY to achieve important govt purpose, i.e., noless discriminatory alternative. Only case was Maine v. Taylorthe state was worried that

imported fish would bring diseases to their fish, so valid to protect environment

C. STATE TAXATION OF INTERSTATE COMMERCE States may not use their tax systems to help in-state businesses. Must be substantial nexus to state to tax an

activity. Taxation of interstate business must be fairly apportioned. e.g.: IC trucking company can only be

subject to % of revenue earned in that state.

D. FULL FAITH AND CREDIT

Courts in one state must give full faith and credit to judgments of courts in another state, so long as all of thefollowing requirements are met: (1) court had jurisdiction over parties and subject matter; (2) judgment on merits;

and (3) judgment is final.


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V.THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES

A.IS THERE GOVERNMENT ACTION? Constitution applies only to government action, federal, state, and local. Private conduct need not comply with C. Statutory exceptions allowing application of constitutional norms to private conduct:

o 13th Am: Prohibition ofprivate race discrimination. 1, cant own slaves, no involuntary servitude, 2,Congress has broad powers to enforce the 13th Am, i.e., can prohibit racial discrimination.

o Commerce power: Discrimination affects IC. e.g., CRA of 1964 prohibits racial discrimination in hotels.o NOTE: Congress cant use 5 of the 14th Am to regulate private behavior.

Private actors acting under color of law:o Conspiracy / Joint Action: State and private actor worked together, engaged in constitutional deprivation.o Nexus: State provided such encouragement that the act of the private party can be deemed to be that of

the state. State licensing and funding is not enough. Even extensive state regulation is not enough.

o Entwinement test: Govt authorizes or encourages or facilitates private conduct. Explicit involvement.o Exclusively public function: Traditionally something that the state and the state alone has done.o Symbiosis test: Both parties are benefiting so much from each other that they the private actor can be held

to be acting under COL because the state is getting benefit from their actions.

B. THE APPLICATION OF THE BILL OF RIGHTS Application: Directly to federal govt. State and local through its incorporation into 14th Am DPC. What has NOT been incorporated to the states?

o 3rd Am right to not have a soldier quartered in a persons home.o 5th Am right to grand jury indictment in criminal cases.o 7th Am right to jury trial in civil cases.o 8th Am right against excessive fines.o EVERYTHING else is incorporated.

C.LEVELS OF SCRUTINY Rational basis test: RATIONALLY RELATED to a LEGITIMATE government purpose. P has burden.

o Need only be a conceivable legit purpose, it doesnt even have to be the actual purpose. Intermediate scrutiny: SUBSTANTIALLY RELATED to an IMPORTANT government purpose. Govt burden.

o Court will look only at the governments actual objective, not just a conceivable one.o Substantially related: Doesnt have to be the best way, least restrictive alternative, just good way.

Strict scrutiny: NECESSARY to achieve a COMPELLING government purpose.o Actual purpose, no less restrictive alternative, more than narrowly tailored.

VI.DUE PROCESS

A. DEFINITIONS Procedural DP: Procedures government must follow when it takes away a persons life, liberty, or property. Substantive DP: Government must have an adequate reason for taking away someones life, liberty, or property. Equal Protection: The governments differences in the different treatment of people must be adequately justified.

A.PROCEDURAL DUE PROCESS Has there been a deprivation of life, liberty, or property?

o Deprivation of liberty: Loss of significant freedom provided by C or statute. e.g.: To institutionalizeadult, notice and a hearing, unless there is an emergency. Parent is institutionalizing a child, screening by

neutral factfinder. No deprivation from harm to reputation. Prisoners rarely have liberty interests.

o Deprivation of property: Entitlement and it isnt fulfilled. Continuing benefit or right to benefit.o Intentional or at least reckless government action required for liability to exist; negligence not enough.

EMERGENCY SITUATIONS: Conduct must shock the conscience (govt intended to hurt vic) .


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o Failure to protect doesnt deny DP, unless person is in govt custody or govt created the danger. What procedures are required if deprivation of DP? Balancing test: (1) importance of interest to individual; (2)

ability of addl procedures to increase accuracy of fact-finding; and (3) govt interest (efficiency, saving money).

C. ECONOMIC LIBERTIES Laws affecting economic rights are only subjected to rational basis review. Minimal protection. TAKINGS CLAUSE: The government may take private property for public use if it provides just compensation.

o Is there a taking? Possessory taking: Government confiscation of physical occupation of property. Regulatory taking: Regulation (either new or in existence when property was acquired) leaves no

reasonably economically viable use of the property. Cant just be a reduction in a value.

Government conditions on development of property must be justified by a benefit that isroughly proportionate to the burden imposed; otherwise, its a regulatory taking.

Temporary denial of use of property is not a taking so long as govt action is reasonable.o Is it for public use? Govt only needs reasonable belief that the taking will benefit the public.o Is just compensation paid? Measured in terms of the loss to the owner using reasonable market terms.

CONTRACTS CLAUSE. Art. I, 10. No state (doesnt apply to feds) shall impair the obligations of existing Ks.o Legislation must not SUBSTANTIALLY IMPAIR a partys rights under an existing K unless the law a

reasonably and narrowly tailored means of promoting an IMPORTANT & LEGITIMATE public interest.

o State or local interference with government Ks must meet strict scrutiny.o Retroactive civil liability only need meet a rational basis test.

D.PRIVACY:AFUNDAMENTAL RIGHT PROTECTED UNDERSDP

STRICT SCRUTINY - Rights to: Marry; procreate; custody of ones children (cant terminate custody unlesscompelling reason, but the state can create an irrebuttable presumption that a married womans husband is the

father of her children); keep your family together; control upbringing of your children (can bar grandparent

visits); and purchase & use contraceptives.

UNDUE BURDEN TEST - Right to abortion: Prior to viability, states may not prohibit abortions, but mayregulate abortions so long as they dont create an UNDUE BURDEN on the ability to obtain abortions. After

viability, states may prohibit abortion unless necessary to protect womans life or health.

o Not undue burden: 24 hour waiting period; requiring licensed physician to perform abortion; prohibitionof partial birth abortions.

o Undue burden: Spousal consent and notification laws.o Government has no duty to subsidize abortions or provide abortions in public hospitals.o Parental notice and consent laws for unmarried minors: Acceptable so long as the state creates an

alternative procedure where a minor can obtain abortion by going before a judge who can approve the

abortion by finding it would be in minors best interests or that she is mature enough to decide for herself

UNDETERMINED LEVEL: Right to engage in private consensual homosexual activity. No level of scrutinyarticulated inLawrence v. Texas.

CLEAR AND CONVINCING EVIDENCE - Right to refuse medical treatment. Per Cruzan,o competent adults have the right to refuse medical treatment, even life-saving medical treatment;o state may require clear and convincing evidence that a person wanted treatment terminated before its end;o AND a state may prevent family members from terminating treatment for another.

NO PRIVACY RIGHT: There is not a constitutional right to physician-assisted suicide.E. THE SECOND AMENDMENT RIGHT TO BEARARMS

DC v. Heller: Citizens do have a right to have firearms, its not just for militia service. Not an absolute right (canbe forbidden in schools, for instance), can regulate who and where. Eg: can say prior felons cant have guns.

Incorporated to states by McDonald v. City of Chicago.


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F.THE FUNDAMENTAL RIGHT TO TRAVEL OF THE PRIVILEGES &IMMUNITIES CLAUSE OF THE 14TH AM. Strict scrutiny for laws denying access to move across states or creating durational residency requirements.

o For voting, 50 days is the maximum allowable durational residency requirement. Rational basis for restrictions on foreign travel. International travel isnt a fundamental right.

G. THE RIGHT TO VOTE

15th Am says right to vote shall not be infringed upon on the basis of race. Also covered under EP. STRICT SCRUTINY for laws that deny right to vote, or that draw district lines to favor or disadvantage someminority. Unconstitutional to require poll tax, property ownership (except in water district elections).

o Regulations of the electoral process to prevent fraud only need be on balance desirable, e.g., show ID. One person one vote: All state & local elections. In multi-district elections, districts must be same in population. At-large elections (where every voter votes for every councilmember) are constitutional unless there is proof of a

discriminatory purpose.

Counting uncounted votes without preset standards in a presidential election violates EP.VII.EQUAL PROTECTION

RACE AND NATIONAL ORIGIN: Strict scrutiny. Face of the law, or as discriminatory impact + intent.o Quotas or set-asides only allowed to remedy clearly proven past discrimination.o Higher ed institutions can use race as one factor among many in admissions to benefit minorities.o Public schools can only use race in assigning students if strict scrutiny is met. Parents Involved(need to

show that you are trying to desegregate based on history of segregation).

GENDER CLASSIFICATIONS: Intermediate. Face of law or discriminatory impact and intent.o Laws cannot be based on stereotypes. Only allowable to remedy past discrim if clear discriminatory

impact plus intent, e.g., SS benefits, different timing for promotion of navy officers.

ALIENAGE CLASSIFICATIONS: Scrict.o Exceptions getting rational basis review: (1) Issues involving self-government and democratic process

(e.g., voting, serving on a jury, police officer, teacher); (2) Congress has plenary power to regulate aliens.

o Exception getting intermediate scrutiny: Issues involving undocumented alien children. The one caseaddressing this issue wasPlyler v. Doe (have to give undocumented kids a free public education).

ILLEGITIMACY: Intermediate. Unconstitutional to deprive nonmarital children of benefit, like inheritancerights. But constitutional to impose burdens or set restrictions, like requiring establishment of paternity during

fathers lifetime to be able to inherit.

RATIONAL BASIS FOR EVERYTHING ELSE: Age discrimination, disability, poverty, sexual orientation (perRomer v. Evans, cant single out gays and lesbians for not being covered from anti-discrimination laws).

VIII.FIRST AMENDMENT:FREE SPEECH

A. GENERAL PRINCIPLES Importance of speech or assembly right v. interests or policies to be served by govt regulation of speech. Government Speech: Govt speech and funding of speech upheld if rationally related to legitimate state interest.

o Government can voice its own opinion and choose to fund private speech that furthers its views (absentother limitations, like the Establishment Clause or EPC).

BUT, when government funds private messages, it must do so on a content-neutral basis.Exception: Govt can choose which artists to fund even though its content -based decision.

o Public monuments are govt speech, even if privately donated, not subject to Free Speech Clause scrutiny. Private speech regulation: Distinguish between content-neutral and content-based laws.

o CONTENT-BASED laws (subject matter restriction based on topic of speech, or viewpoint restriction,based on ideology): STRICT SCRUTINY. (not obscenity and defamation)

o Content-neutral laws: INTERMEDIATE SCRUTINY.


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Prior restraint as judicial order to stop speech before it occurs: STRICT SCRUTINY.o Must show: (1) Special societal harm if speech isnt stopped before it starts; (2) narrowly drawn,

reasonable, and definite standards; (3) injunction promptly sought; and (4) prompt and final determination

of the validity of the restraint. Proper order must be obeyed until vacated or challenge will be barred.

Prior restraint as licensing or permit system that stops speech before it occurs: STRICT SCRUTINY.o Must show: (1) important reason for license/permit; (2) clear criteria, almost no discretion to the licensing

authority, AND (3) procedural safeguards (prompt review of applications, judicial review of denials).

Unconstitutional Vagueness: Reasonable person cannot tell what speech is prohibited. Violates DP. Overbreadth: A law regulates substantially more speech than what the Constitution allows to be regulated. Will

usually be found facially invalid, hence cant be enforced against anyone. Alternatively, court will develop a

limiting construction to remove the threat to constitutionally protected expression.

Scope of speech: Freedom to speak includes the freedom not to speak. Includes symbolic speech.o Symbolic speech: Govt can regulate symbolic speech if there is an important interest unrelated to

suppression of the message and effect is no greater than necessary to achieve the governments purpose.

Constitutionally protected symbolic speech: Flag burning; cross burning (in the woods, but noton the lawn of an African American family where there was intent to threaten).

Unprotected speech symbolic speech: Draft card burning (govt has an interest in having men keeptheir draft cards in case an emergency mobilization is needed).

o Election campaign contribution & spending limits: Corp & individual expenditure limits are unconst.Contribution limits to individual candidates are constitutional. Corps cant give directly to one candidate.

o Anonymous speech is constitutionally protected.B. CATEGORIES OF SPEECH THAT GET LESS ORNO PROTECTION

Incitement of Illegal Activity: Unprotected.o Test: (1) substantial likelihood of imminent illegality, AND (2) the speech is directed at causing

imminent illegal activity.

Obscenity and sexually-oriented speech: Some protection.o 3-Part Test (Miller v. California): (1) Material appeals to the prurient (that which excites morbidly lustful

and lascivious thoughts) interest by contemporary community standards; (2) patently offensive under thelaws definition of obsenity; AND (3) taken as a whole, lacks serious redeeming artistic, literary, political

or scientific value, based on a nationalstandard.

o Adult bookstores and movie theaters: Govt may use zoning ordinances to regulate location (preservingcharacter of neighborhood and home values), but cannot ban them altogether.

o Child porn: The government mayban child pornography even if its not obscene.o Private possession of obscene material: Protected, unless its child porn, which can be banned.

Profane and indecent language: Protected.o Exceptions: Broadcast media (not cable); speech in schools.

Commercial speech: INTERMEDIATE SCRUTINY, i.e., NARROWLY TAILORED to DIRECTLYADVANCE a SUBSTANTIAL GOVT INTEREST.

o Exception: No protection for advertising that is false, deceptive, or that promotes illegal activity. Defamation & privacy: See torts outline. Speech by government employees on the job in the performance of their duties: NO PROTECTION.

C. WHAT PLACES ARE AVAILABLE FORSPEECH? Public forums, like sidewalks and parks: Speech can only be regulated if (1) subject-matter and viewpoint

neutral; and (2) regulation is time, place, and manner restriction that serves an important government purpose and

leaves open adequate alternative locations for communication.

o Need not be least restrictive alternative; just narrowly tailored. Permit fees must be non-discretionary.


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Limited public forums, like a school: Govt properties that govt could close to speech, but has voluntarily openedto speech. Once opened, govt has created a limited public forum and the same rules apply as for public forums.

Non-public forums, like military bases, areas outside jails, city buses, sidewalks on USPS property, airports:Govt can regulate speech in a non-public forum so long as the regulation is viewpoint neutral and reasonable.

Private property, like private shopping centers: Not constitutionally protected, can be totally regulated.IX.FIRST AMENDMENT:FREEDOM OF ASSOCIATION -STRICT SCRUTINY

To punish membership in a group it must be proven that the person: (i) actively affiliated with the group; (ii)knew of its illegal activities; and (iii) had the specific intent of furthering those illegal activities.

Laws that require disclosure of group membership, where such disclosure would chill association, must meetstrict scrutiny. eg: NAACP v. AL held that NAACP didnt have to share membership, no one would want to join.

Laws that prohibit a group from discriminating are constitutional UNLESS they interfere with intimateassociation or expressive activity. So Boy Scouts with anti-gay expressive message can discriminate, but service

org must follow state law barring gender discrimination and allow women to be members.

X.FIRST AMENDMENT:FREEDOM OF RELIGION Free Exercise Clause: The government can make no law that abridges the free exercise of religion.

o Cant be used to challenge a neutral law ofgeneral applicability (eg: law barring use of peyote).o Government cannot deny benefits to individuals who quit their jobs for religious reasons (e.g., can quit

your job when they try to make you work on Sunday and still get unemployment benefits).

Establishment Clause: Government may make no law respecting the establishment of religion.o Lemon Test: (1) secular purpose to law; (2) primary effect must be neither to advance nor inhibit religion;

(3) no excessive govt entanglement with religion (cant directly pay teacher salaries in parochial schools).

Government discrimination among religions, or discrimination against religious speech in favor of secular speech,would have to meet strict scrutiny.

Government sponsored religious activities in public school classrooms are not allowed.o BUT if a school is going to open its facilities to student or community groups, it cant discriminate

against religious groups. That would be content-based discrimination. The government may give aid to parochial schools so long as its not used in religious education.

o Vouchers for use in parochial schools ok; government has an important secular purpose in improvingeducational opportunities for students.

con law outline ny bar 2012

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